Decisions

Recent Decisions

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. Longview Energy Co.

The appellant challenges court-ordered discovery and the amount of a court-ordered supersedeas bond. The trial court ordered ongoing discovery "for the duration of the appeal." a plain reading of this judgment supports the conclusion that the $95, 500, 000 is compensatory in nature. The amount of the security required to suspend a judgment pursuant Texas Civil Practice and Remedies Code §52.006(b) applies per judgment and not per judgment debtor. The trial court did not abuse its discretion in ordering, pursuant to Texas Rule of Appellate Procedure 24.1(e), the periodic reporting to monitor and thus secure the trust assets during pendency of the appeal when, as here, evidence was presented demonstrating the assets controlled by the judgment debtors are at risk of expiring or being depleted. The order does not conflict with Texas Civil Practice and Remedies Code Chapter 52. The appellant's motion is affirmed in part and denied in part. San Antonio Court of Appeals, No. 04-12-00630-CV, 02-12-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

In re Willa Peters Hubberd Testamentary Trust

A trust beneficiary appeals the probate court's orders modifying the terms of the testamentary trust based on a mediated settlement agreement signed by all of the parties to the underlying cause and their attorneys. Because the mediator was an attorney who was authorized to represent the beneficiaries and the trustee in filing the petition, he had standing to file the petition. Each purpose of the trust is equal in determining whether compliance with the terms of the trust would defeat or substantially impair those purposes based on a circumstance not anticipated by the settlor. Quasi-estoppel does not preclude the appellant from arguing that the probate court was without authority to order modifications to the trust that were in violation of Texas Property Code §112.054. The probate court's orders are affirmed in part and reversed and rendered in part. San Antonio Court of Appeals, No. 04-13-00452-CV, 02-12-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 4

Benavidez v. State

The appellant pleaded nolo contendere to three counts of aggravated sexual assault of a child. The appeal is frivolous. Nothing in the record shows a material change in the appellant's financial circumstances since counsel was appointed to represent him. Absent a showing of a material change in financial circumstances, it was error for the district clerk to assess attorney's fees against him in the bill of costs. The district court is ordered to prepare and file a corrected bill of costs. San Antonio Court of Appeals, No. 04-13-00029-CR, 02-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Benavides v. Mathis

A trustee was appointed temporary guardian of the person and estate of Carlos Y. Benavides, Jr. Benavides' wife sued, claiming that one-half of the distributions to the estate were owed to her. Because the trust is irrevocable, and Benavides does not have a present, possessory interest in the corpus of the irrevocable trust, the distributions received are not community property. Summary judgment in favor of the trustee is affirmed. San Antonio Court of Appeals, No. 04-13-00186-CV, 02-12-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 4

Methodist Healthcare System of San Antonio, Ltd. v. Dewey

A hospital appeals the trial court's order order denying a motion to dismiss for failure to file an expert report. The plaintiff was a visitor who was fell after a door allegedly closed on him. The claim does not implicate a standard of care that requires medical or medical safety expert testimony to prove or refute its merits, and therefore, it is not a health care liability claim. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-13-00277-CV, 02-05-2014

Practice Areas: Health Law

Tex. App. Dist. 4

Ex parte Campos Leal

The appellant claims his trial attorneys were ineffective for failing to properly advise him of the immigration consequences of his no contest pleas. The attorney in the first case was not ineffective. It was not clear that appellant would be deported as a result of a single conviction for possession of marijuana. The terms of the relevant immigration statutes are succinct, clear, and explicit in defining deportation as a consequence of appellant's second conviction. Advising a criminal defendant that his plea will result in "deportation proceedings" is not the equivalent of advising the defendant that his conviction will result in deportation. The trial court's judgment is affirmed in part, and reversed and remanded. San Antonio Court of Appeals, No. 04-13-00633-CR, 04-13-00634-CR, 02-12-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Rodriguez v. State

This is a substituted opinion. The appellant claims that he was entitled to a 10-year plea-bargain offer from the state and that the trial court was required to accept the 10-year plea agreement. If the appellant had received competent advice prior to trial, there is a reasonable probability that he would have accepted the original 10-year plea-bargain offer. The state was required to reoffer the 10-year plea bargain after the original trial judge recused herself. The trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-12-00341-CR, 02-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Christus Santa Rosa Health Care Corp. v. Vasquez

A hospital appeals the denial of its motion to dismiss based on the plaintiff's expert report. If a plaintiff chooses to serve its expert reports well before the 120-day deadline, as the plaintiff did in this case, the hospital was still required to file objections to the report within 21 days after they were served, even though a motion to dismiss could not yet be filed. The trial court could not grant or deny the motion to dismiss the cause of action during the 120-day window. The trial court's order is affirmed. No. 04-13-00564-CV, 2-05-2014

Practice Areas: Health Law

Tex. App. Dist. 4

Ramirez v. State

The appellant contends the evidence at trial was insufficient to prove beyond a reasonable doubt that the person named in the indictment as the owner of the house he allegedly burglarized was the "owner" within the meaning of the Penal Code. A rationaly jury could conclude that the person in the house was a guest who had the right to use kitchen appliances and implements and the right to deny entry to a person who had no right to enter the house at all. The guest had a greater right of possession than the appellant. The convictions are affirmed. San Antonio Court of Appeals, No. 04-12-00764-CR, 04-12-00765-CR, 2-12-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Hill Country San Antonio Management Services, Inc. v. Trejo

The appellee asserted the appellant breached the standard of care applicable to an adult day-care facility by failing to monitor or assist a person as he exited a van after a facility outing. The injuries occurred outside the facility and were not a result of a breach of medical, health care or safety standards. The claims are not health care liability claims. The trial court's order that denied the appellant's motion to dismiss is affirmed. San Antonio Court of Appeals, No. 04-13-00559-CV, 02-12-2014

Practice Areas: Health Law

Tex. App. Dist. 5

Lawyers Title Co. v. J.G. Cooper Development, Inc.

A title company appeals the summary judgment granted to a real estate investment and development company on the investment company's claims of conversion, bailment, and money had and received. The summary-judgment evidence raises a genuine issue of material fact regarding whether the title company exercised control of both the escrow account and $1.8 million that was wired into the account. The summary judgment grant to the investment company is reversed and remanded, and the judgment is otherwise affirmed. Dallas Court of Appeals, No. 05-11-01537-CV, 02-10-2014

Practice Areas: Torts

Tex. App. Dist. 6

Jackson v. State

The appellant was convicted of alleged murder. Forced entry is not an element of burglary; rather, burglary requires entry to be made without the effective consent of the owner. In a capital murder prosecution, the evidence need only be sufficient to establish one of the underlying felonies in the indictment. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00077-CR, 02-04-2014

Practice Areas: Criminal Law

Tex. App. Dist. 6

Hutchison v. State

The appellant appeals his conviction. While partial corroboration of a statement excuses the lack of a writing or recording, that corroboration does not provide an exception to the Miranda warnings codified in Texas Code of Criminal Procedure article 38.22 §2(a). Custodial interrogation includes express questioning of a suspect as well as words or actions by police that the police should know are reasonably likely to elicit an incriminating response. The trial court's judgment is reversed and remanded. Texarkana Court of Appeals, No. 06-13-00035-CR, 02-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 6

State v. Chesnut

The state appeals the dismissal of an indictment pursuant to the Interstate Agreement on Detainer's Act, arguing the appellee was not entitled to the dismissal because the warden of the Oregon prison failed to ensure that the request for final disposition was received by the court. When a prisoner complies with his or her obligations under the IADA, and the prosecuting office actually receives notice of that prisoner's proper request for final disposition along with all the required documentation, the 180-day period for bringing the prisoner to trial commences on the date of receipt by the prosecuting office. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00107-CR, 02-12-2014

Practice Areas: Criminal Law

Tex. App. Dist. 7

Republic Power Partners, L.P. v. City of Lubbock

The appellant challenges the trial court's order granting the plea to the jurisdiction filed by a city. Immunity applies to claims arising from the breach of an express contract arising out of the performance of a proprietary function. The city did not enter into the underlying agreement and no one executed it on behalf of the city, therefore Texas Local Government Code §271.152 does not apply to the facts of this case. The trial court's order is affirmed. Amarillo Court of Appeals, No. 07-12-00438-CV, 02-05-2014

Practice Areas: Contracts

Tex. App. Dist. 7

Keener v. State

The appellant challenges her conviction by jury for the alleged offense of criminally negligent injury to a child. A jury charge allowing the jury to find the appellant guilty of criminal negligence by omission was erroneous and caused the appellant egregious harm. The trial court's judgment is reversed and remanded. Amarillo Court of Appeals, No. 07-12-00424-CR, 02-11-2014

Practice Areas: Criminal Law

Tex. App. Dist. 7

In re M.Y.G.

The appellants appeal an order terminating their respective parental rights to the children. The law does not require that a child suffer actual injury; rather, it is enough when the parental conduct produces an endangering environment. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00298-CV, 01-31-2014

Practice Areas: Family Law

Tex. App. Dist. 7

West Texas Municipal Power Agency v. Republic Power Partners, L.P.

The appellant, a municipal power agency, appeals the denial of its plea to the jurisdiction. The proprietary/governmental distinction employed in the Texas Tort Claims Act does not apply to contract disputes. Because the agency sought and received planning and development services clearly intended to benefit the agency and its member cities, the underlying agreement provides for the delivery of goods or services to a local governmental entity and Texas Local Government Code §271.152 waives immunity from suit. The trial court's order is affirmed. Amarillo Court of Appeals, No. 07-12-00374-CV, 02-05-2014

Practice Areas: Contracts

Tex.Crim.App.

State v. Swearingen, AP-77

The state appeals the decision of the trial court to grant the appellee's fourth Texas Code of Criminal Procedure article 64 motion for DNA testing. The appellee argues that "exculpatory result" means DNA results that are not from the convicted person and which generate a hit in the Combined DNA Index System. The statute requires only that the results be run through CODIS. It does not set a standard for exculpatory results. The trial court's order is reversed and remanded. Texas Court of Criminal Appeals, No. AP-77, 020, 02-05-2014

Practice Areas: Criminal Law

Tx. Sup. Ct.

Finance Commission of Texas v. Norwood

This is a supplemental opinion on motion for rehearing. Per diem interest is still interest, though prepaid; it is calculated by applying a rate to principal over a period of time. Legitimate discount points to lower the loan interest rate, in effect, substitute for interest. True discount points are not fees "necessary to originate, evaluate, maintain, record, insure, or service" but are an option available to the borrower and thus not subject to the 3% cap. Texas Constitution Article Article XVI §50(a)(6)(N) precludes a borrower from closing the loan through an attorney-in-fact under a power of attorney not itself executed at one of the three prescribed locations. The motion is denied. Texas Supreme Court, No. 10-0121, 01-24-2014

Tex. App. Dist. 8

Neal Autoplex, Inc. v. Franklin

A car dealer appeals from a judgment awarding damages for a cash price violation. Even assuming the appellees were fully aware of and agreed to the increased price, the cash price of the vehicle is not defined as the price ultimately agreed upon or stated in the contract. Rather, the cash price is the price the appellant offered to all customers in the ordinary course of business to all customers. The appellant points to no evidence demonstrating that the price offered to customers in the ordinary course of business was anything over the sticker price. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00136-CV, 02-05-2014

Practice Areas: Commercial Law

Tex. App. Dist. 8

Richardson v. Richardson

The appellant challenges the trial court's calculation of community reimbursement. The appellant did not characterize a mobile home, purchased prior to marriage, or the debt thereon as being the parties' separate property or debt, nor did he plead a separate property claim. The appellant filed four signed and sworn inventory and appraisement documents with the court, each listing the mobile home as community property and the debt associated with it as a community liability. A party's sworn inventory is simply another form of testimony. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00076-CV, 02-05-2014

Practice Areas: Family Law

Tex. App. Dist. 14

Kamat v. Prakash

Former employers of the plaintiff challenge the award of damages for conduct that occurred more than two years before the plaintiff filed her Fair Labor Standards Act suit. The plaintiff, a citizen of India, was employed as a live-in nanny. The evidence is sufficient to support the jury's finding that the employers are equitably estopped from relying on the statute of limitations to bar any part of the plaintiff's FLSA claims. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-11-00661-CV, 14-11-00662-CV, 01-28-2014

Practice Areas: Labor and Employment

Tex. App. Dist. 14

Ortiz v. State

The trial court denied appellant's motion to suppress out-of-court statements he made to a police officer before he was administered Miranda warnings. An officer's testimony was the only evidence adduced at the suppression hearing. It would have been reasonable to conclude that the appellant was initially handcuffed to temporarily detain him for officer safety while the cause of the disturbance report was ascertained. There is no evidence the officer used any force on appellant beyond the application of the handcuffs, and the period of time between his use of the handcuffs and appellant's statements was mere seconds. Lastly, the officer indicated to appellant that appellant was not under arrest at that time but was only being detained until the officers could figure out what had happened. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00726-CR, 01-28-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Shaw v. State

The appellant challenges his conviction for alleged murder. The trial court denied the appellant's request to cross-examine a medical examiner regarding the m.e.'s placement on pretrial diversion. The m.e.'s testimony at trial in no way deviated from her written report, which was prepared well before she was charged with an alleged felony offense or placed on pretrial diversion. Had appellant requested an extraneous offense instruction, the trial court would not have erred in denying his request because giving such an instruction is a useless act if no unadjudicated offenses have been introduced. The trial court erred in entering a specific dollar amount without any support in the record for that dollar amount. The trial court's judgment is affirmed as modified to delete the assessment of specific court costs. Houston's 14th Court of Appeals, No. 14-12-00876-CR, 01-23-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Mutual of Omaha Life Insurance Co. v. Costello

An insurer appeals from a summary judgment in favor of a beneficiary on his claims of breach of contract seeking benefits under a life insurance policy. The insurer was not foreclosed from challenging the policy's validity because the insured died during the contestability period. When Texas Insurance Code §1101.006 is read in conjunction with Texas Administrative Code §3.104, the governing language prohibits policy provisions extending the contestable period of a policy other than provisions consistent with §1101.006. The trial court's judgment and orders are reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00050-CV, 01-23-2014

Practice Areas: Insurance Law

Tex. App. Dist. 14

In re S.A.H.

In a child custody modification order, the trial court named the child's maternal great aunt as joint managing conservator. Even if a parental presumption applied, the trial court did not err in granting certain rights to the great aunt under other unchallenged sections of the Texas Family Code, therefore, a constitutional challenge to Texas Family Code §156.101 is not resolved. The evidence supports the finding that the mother allegedly voluntarily relinquished care, control and possession of the child to the great aunt. A parent's living with a boyfriend or girlfriend, after having exposed a child to several different people in dating relationships, can support a finding that it is in a child's best interest not to visit with a parent while a non-relative boyfriend or girlfriend is present. The trial court's order is affirmed. Tex. App. Dist. 14, No. 14-12-00618-CV, 01-28-2014

Practice Areas: Family Law

Tex. App. Dist. 14

Johnson v. State

The appellant challenges his conviction of alleged capital murder. The evidence is sufficient to support appellant's conviction as a co-conspirator under Texas Penal Code §7.02(b) because the evidence supports a finding that appellant should have anticipated the possibility of a murder resulting from the course of committing robbery. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00114-CR, 01-28-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Ex parte Castellanos

The appellant contends that bail set by the trial court is excessive. The trial court had before it evidence that appellant had allegedly engaged in extensive credit card fraud and theft by cloning hundreds of credit cards. The appellant is not a citizen of the United States and has family members in Cuba. Given the nature of the charged offenses and the aggravating circumstances, the trial court could have reasonably concluded a bond of $225, 000 for each count was necessary to deter appellant from fleeing the jurisdiction. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00538-CR, 14-13-00539-CR, 14-13-00540-CR, 01-23-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Belt v. City of Houston

The trial court sustained a city's plea to the jurisdiction and dismissed the plaintiffs' ultra vires causes of action. The plaintiffs have met their affirmative pleading requirement with regard to their claim that an official exceeded his authority and discretion to impose a drainage charge on a property alleged to be not a "benefitted property" under the drainage fee ordinance. The trial court's order granting the plea to the jurisdiction is reversed, and the order is affirmed as to claims that the official acted ultra vires when determining the impervious square footage of their properties subject to drainage charges. Houston's 14th Court of Appeals, No. 14-13-00273-CV, 01-23-14

Tex. App. Dist. 14

Memorial Hermann Hospital System v. Galvan

A hospital appeals the trial court's denial of its motion to dismiss this non-patient slip-and-fall claim. Health care liability claims based upon alleged departures from accepted safety standards must involve an alleged departure from standards for protection from danger, harm, or loss, but need not involve an alleged departure from standards that involve health care or are directly or indirectly related to health care. The plaintiff's slip-and-fall claim is a claim based upon an alleged departure from accepted standards of safety and is a health care liability claim. The trial court's order is reversed and remanded with instructions. Houston's 14th Court of Appeals, No. 14-13-00120-CV, 01-28-2014

Practice Areas: Health Law

Tex. App. Dist. 2

In re D.D.G.

The appellant appeals the termination of her parental rights. When a child is born to a mother who allegedly used a controlled substance during her pregnancy and the child exhibits the demonstrable presence of a controlled substance in the bodily fluids after the birth, expert testimony is not required to establish that the child was born addicted to a controlled substance. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-13-00307-CV, 01-23-2014

Practice Areas: Family Law

Tex. App. Dist. 2

In re PrairieSmarts LLC

The relator seeks a writ of mandamus directing the respondent to vacate an order granting the real party in interest's Texas Rule of Civil Procedure 202 order. A rule 202 petitioner seeking presuit discovery of information that has been proven to be trade secret information must satisfy both of the two distinct and separate burdens imposed under Texas Rule of Evidence 507 and under rule 202. The writ is conditionally granted. Fort Worth Court of Appeals, No. 02-13-00338-CV, 01-23-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 2

Stobaugh v. State

The appellant argues that the circumstantial evidence presented by the state at trial is insufficient to establish beyond a reasonable doubt that he acted with the requisite mens rea to commit the offense of murder. Without evidence that wrongful conduct has occurred, there is nothing for motive and opportunity evidence to link the defendant to. Because no evidence exists in the record that a murder has occurred, the utterance of false statements or inconsistent statements does not, by itself, create an inference that a murder or any wrongful conduct has occurred. The trial court's judgment is reversed and an acquittal is rendered. Fort Worth Court of Appeals, No. 02-11-00157-CR, 01-23-2014

Practice Areas: Criminal Law

Tex. App. Dist. 2

Weatherford Texas Hospital Co., L.L.C. v. Smart

The trial court denied a hospital's motion to dismiss the plaintiff's tort claim. After visiting a patient in the hospital emergency room, the plaintiff slipped on a puddle of water in the hospital lobby and fell. There must be some connection, even indirect at best, between the safety claim and the provision of health care for the claim to fall under the Texas Medical Liability Act health care liability claim definition. The trial court's judgment is affirmed. No. 02-13-00063-CV, 01-23-2014

Practice Areas: Torts

Tex. App. Dist. 4

Bexar County Texas v. Deputy Sheriff's Association of Bexar County

This appeal arises from Bexar County's refusal to permit payroll deductions which it contends are not authorized by law. The trial court did not err when it granted the declaratory judgment in favor of the Deputy Sheriff's Association of Bexar County. Membership dues in Texas Local Government Code §155.001(a)(2) may include any amount paid in exchange for the status or benefits of membership, including different amounts associated with different tiers of membership. While it likely would not have been an abuse of discretion to deny fees to both parties, the trial court's decision to award fees to only one party was not an abuse of discretion. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00316-CV, 01-22-2014

Practice Areas: Criminal Law

Tex. App. Dist. 2

Kirk v. State

The appellant argues that the state failed to disprove that he acted in self-defense and in defense of property. The jury was entitled to conclude that appellant's belief that deadly force was immediately necessary was unreasonable, given that a victim was shot in the back several times and the forensic evidence showed that the shots were fired at a downward trajectory. Photographs of objects found within the appellant's house, including photos of fake skulls, fake skeletons and a plastic manikin torso and head suspended by a noose around its neck, did not likely move the jury from acquittal to conviction. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-12-00095-CR, 01-23-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mountain Ranch, Inc.

The appellants in their adverse possession claim contend an express easement violates the statute of frauds because it cannot be located with reasonable certainty, and the appellees waived their claim of easement by necessity. A high fence installed for the purpose of preventing deer from leaving the property does not conclusively establish adverse possession under the theory of "designed enclosure." The appellants' construction of a deer fence did not establish a claim of right. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00841-CV, 01-22-2014

Tex. App. Dist. 4

Saenz v. State

The appellant challenges her convictions of alleged murder and alleged aggravated assault. The jury was not required to unanimously agree on the alternate theories of capital murder as alleged under subsections (A) and (B) of Texas Penal Code §19.03(a)(7). Where each predicate murder victim does not constitute a separate offense, the jury need not unanimously agree on that victim's identity. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00238-CR, 01-22-2014

Practice Areas: Criminal Law

Tex. App. Dist. 5

Holmes v. Zurich American Insurance Co.

This case arises out of a workers' compensation carrier's denial of payment for spinal surgery. There was a dispute about whether the surgery repaired only the compensable injury and the appellants, the injured worker and healthcare providers, did not present this dispute to the Division of Workers' Compensation for medical dispute resolution. Because the DWC did not have the opportunity to determine whether the insurer was required to pay for the surgery, the appellants failed to exhaust their administrative remedies. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-11-01579-CV, 01-22-2014

Practice Areas: Labor and Employment

Tex. App. Dist. 5

In re Fisher & Paykel Appliances, Inc.

The relator filed this mandamus proceeding challenging the trial court's production order. The weight of authority does not favor recognition in Texas of a doctrine of selective waiver of privilege. Communications compiled expressly for the purpose of responding to a mandatory government reporting requirement should not be covered by the selective waiver doctrine because as to those documents, the party making the disclosure and the government agency are in an adverse relationship. The mere fact that in compiling a response to a regulatory inquiry or mandate an attorney selects and transmits documents to a regulator does not transform ordinary business documents into work product. The petition is denied. Dallas Court of Appeals, No. 05-13-01498-CV, 01-22-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 6

In re K.S.

A father appeals from an order terminating his parental rights. The father, who was in prison, was unable to participate during a portion of the trial because the telephone connection was lost. There may have been some trial strategy on the part of trial counsel in not re-establishing the telephonic connection with the father and having him testify. Even if error was shown, there is no evidence of harm. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00116-CV, 01-23-2014

Practice Areas: Family Law

Tex. App. Dist. 5

Medrano v. State

The appellant, a former justice of the peace, challenges his conviction of alleged illegal voting. The appellant was charged as a party to another person's illegal voting. Texas Election Code chapter 273 does not violate the separation of powers doctrine. The state was required to show that the person who allegedly voted illegally voted in an election knowing she was not a resident of the territory covered by the election for the office on which she desired to vote. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-00316-CR, 01-27-2014

Practice Areas: Election and Political Law

Tx. Sup. Ct.

Galveston Central Appraisal District v. TRQ Captain's Landing

This review concerns the ad valorem tax exemption available under Texas Tax Code §11.182 for property owned by a community housing development organization. Equitable title is sufficient to qualify for the exemption. The appraisal district's argument regarding timeliness was based on the mistaken position that an exemption must be based only on legal title. Under §11.436, the CHDO's application was timely. The trial court's judgment is affirmed. Texas Supreme Court, No. 07-0010, 01-17-2014

Practice Areas: Taxation

Tx. Sup. Ct.

In re K.N.D.

The court of appeals upheld the Department of Family and Protective Services' appointment as sole managing conservator but reversed the termination judgment and denied the department's petition for termination. In light of In re E.C.R., holding in part that "[w]hile subsection O requires removal under chapter 262 for abuse or neglect, those words are used broadly," the child was removed for abuse or neglect under Texas Family Code chapter 262. The court of appeals judgment is reversed and remanded. Texas Supreme Court, No. 13-0257, 01-17-2014

Practice Areas: Family Law

Tx. Sup. Ct.

Texas Coast Utilities Coalition v. Railroad Commission of Texas

A municipal coalition and state agencies petition for review of a decision upholding the authority of the Railroad Commission of Texas to adopt a cost of service adjustment. By granting the commission the authority to establish "rates, " and defining "rates" to include "practices" that affect a utility's compensation and charges, GURA expressly grants the commission authority to include a COSA clause in a gas utility's rate schedule. No. 12-0102, 01-17-2014

Practice Areas: Energy and Natural Resources

5th Cir.

United States v. Cortez-Rocha

The appellant argues that his prior conviction does not constitute a crime of violence under the sentencing guidelines. The parties agree that the conviction was under Texas Penal Code §22.02. The whole of the statute cannot be read to constitute a crime of violence. Because the appellant could be convicted under the Texas statute for causing serious bodily injury or for assaulting a peace officer absent proof he used physical force, his prior offense is not a crime of violence based on U.S.S.G. §2L1.2's use-of-force clause. 5th U.S. Circuit Court of Appeals, No. 13-40049, 01-15-2014

Practice Areas: Criminal Law

5th Cir.

City of Alexandria v. Brown

Attorneys and a Louisiana city cross appeal the district court's determination of the fees owed by the city to the attorneys. Under both Saucier analysis and quantum meruit analysis, a court must use the factors articulated by Louisiana Rule of Professional Conduct 1.5(a) to determine the contribution that a lawyer made to his client's case. Where there was only partial performance of a joint, indivisible obligation before default, recovery must be in quantum meruit. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-30823, 01-15-2014

Practice Areas: Legal Profession

Tex. App. Dist. 13

In re Casterline

The relator files for writ of mandamus contending that the trial court abused its discretion by granting a motion to reconsider and reopen an expedited foreclosure proceeding after it had already denied the application for expedited foreclosure. Texas Rule of Civil Procedure 736.8(c) expressly prohibits motions for rehearing, new trial, bill of review, or appeals, and in this case, the bank filed a "Motion to Reconsider and Reopen" which the trial court expressly granted by order. The nature of a motion is determined by its substance, not its title or caption. The writ of mandamus is conditionally granted. Corpus Christi Court of Appeals, No. 13-13-00708-CV, 01-15-2014

5th Cir.

United States v. Simpson

The appellants challenge their convictions and sentences for alleged participation in a wire and mail fraud conspiracy in the telecommunications industry. Given that the CAN-SPAM Act specifically targets and punishes only unprotected, intentionally misleading commercial speech, and thus excludes commercial speech that is not misleading and all political or charitable speech, it is not facially vague or overbroad. Even assuming that a domain name renewal can be a false registration under the 18 U.S.C. §3559(g), the government is required to prove that the name was used in the course of the conspiracy after it was allegedly fraudulently registered, as defined by §3559(g). The convictions are affirmed, except an appellant's conviction for false registration of a domain name, which is reversed, vacated, and remanded. 5th U.S. Circuit Court of Appeals, No. 12-10574, 01-15-2014

Practice Areas: Criminal Law

5th Cir.

Wellogix, Inc. v. Accenture, L.L.P.

The appellant challenges a jury verdict finding it had allegedly misappropriated trade secrets. Testimony about the meaning of certain terms, and the availability of the plaintiff's source code, was within an expert's experience, training or education. The ratio of punitive to compensatory damages in this case is $18.2 million to $26.2 million, or about 0.7:1, within the single-digit ratio likely to comport with the due process. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 11-20816, 01-15-2014

Practice Areas: Intellectual Property

Tex. App. Dist. 14

Adeshile v. Metropolitan Transit Authority of Harris County

Appellant challenged an adverse directed verdict in this suit alleging retaliation. Because the appellant did not obtain a reporter's record, it is assumed that the evidence presented at trial supported the trial court's judgment. The trial court's judgment is affirmed. Houston's 14th Court of Apeals, No. 14-12-00980-CV, 01-16-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 14

Caffe Ribs, Inc. v. State

The appellant challenges a jury verdict in this eminent domain proceeding for the state's whole taking of a 7.5214-acre parcel of land and improvements. Discounted cash flow analysis, also is known as income capitalization, is an accepted valuation approach in appropriate circumstances. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00401-CV, 01-16-2014

Tex. App. Dist. 14

Dodd v. Savino

This is a substitute opinion in an appeal challenging a default judgment. The appellants were unable to establish the first Craddock element. Although counsel's emails were hacked, this incident does not establish that this excuse negates his alleged conscious indifference to the warnings from opposing counsel. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00555-CV, 01-16-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 12

Key Energy Services, LLC v. Shelby County Appraisal District

The taxpayer appeals the appraisal district's valuations of two saltwater disposal wells. The trial court lacked jurisdiction concerning the 2007 tax year. The appraisal district provided adequate notice as to what was being taxed and properly categorized the wells as an estate or interest in land. The trial court's judgment is affirmed. Tyler Court of Appeals, No. 12-13-00075-CV, 01-15-2014

Practice Areas: Taxation

Tex. App. Dist. 14

Mitchell v. State

As a condition of community supervision, the appellant was ordered to attend a program that may specifically include polygraph and plethysmograph examinations. Though several courts have held these procedures are unreliable as items of evidence, the appellant failed to show the conditions do not have a reasonable relationship to the treatment of the accused. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00038-CR, 01-14-2014

Practice Areas: Criminal Law

Tex. App. Dist. 2

Morrison v. Campbell

The appellant challenges the trial court's denial of his motion for summary judgment on the claim for loss of use damages brought against him. Damages for loss of use are available in total loss cases when the insurer unreasonably delays payment of a claim. The denial of the motion for summary judgment is affirmed. Fort Worth Court of Appeals, No. 02-13-00174-CV, 01-16-2014

Practice Areas: Torts

Tex. App. Dist. 14

Walker v. Schion

The plaintiff in this defamation suit contends that the trial court erred in granting the defendant's motion to dismiss pursuant to the Citizens Participation Act. The abuse of discretion standard is applicable to review of a denial of a motion for discovery under the Citizens Participation Act. The appellant failed to challenge a ruling of the trial court that sustained the objections to an affidavit that allegedly established essential elements of the claim. The trial court's judgment is affirmed. No. 14-13-00236-CV, 01-14-2014

Practice Areas: Torts

Tex. App. Dist. 2

In re Wilson

The petitioner challenges a decision to withhold her name from a primary ballot. Relying on public voter registration records maintained by the Tarrant County Elections Office, the chair of the Tarrant County Democratic Party determined that the petitioner had not provided at least 250 signatures of registered voters within Precinct 8. The petition for writ of mandamus is denied. Fort Worth Court of Appeals, No. 02-14-00007-CV, 01-15-2014

Practice Areas: Election and Political Law

Tex. App. Dist. 5

Crisp Analytical Lab, L.L.C. v. Jakalam Properties, Ltd.

A jury found the appellant breached an oral agreement to make the appellee "whole" following an error the appellant allegedly made while testing for asbestos. The failure to specify a price does not necessarily render a contract so indefinite as to be unenforceable. How to determine the reasonableness of expenses or how the parties would settle a disagreement regarding the reasonableness of expenses are not essential terms. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01311-CV, 01-13-14

Practice Areas: Contracts

Tex. App. Dist. 5

In re N.L.T.

The trial court terminated the appellant's parental rights, relying on a 25-year old default judgment as the sole substantive ground. The Department of Family and Protective Services' reliance on Texas Family Code §161.001(1)(M) as the sole ground for termination in this case is an unconstitutional retroactive application of the law as applied to the appellant. The decree of termination is reversed and remanded. No. 05-13-00692-CV, 05-13-00693-CV, 01-15-2014

Practice Areas: Family Law

Tex. App. Dist. 5

Schmidt v. Richardson

This is an interlocutory appeal from the trial court's granting of a temporary injunction enjoining the appellants from various acts, including attempting a foreclosure. The mortgage contains a condition precedent to the post-default possession-or-foreclosure remedies: the mortgagees must give notice by certified mail setting out the default, and allow a 10-day opportunity to cure the default. No such notice has been given, therefore harm is not imminent. The trial court's order is reversed and remanded. Dallas Court of Appeals, No. 05-13-00206-CV, 01-13-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 3

State of Texas Agencies & Institutions of Higher Education v. Railroad Commission of Texas

This is an appeal appeal from a district-court judgment in a suit for judicial review of the Texas Railroad Commission's final order in a gas-utility rate case. The Commission had a reasonable basis in the record for concluding that most costs of the system were related to installing and maintaining facilities sized to meet the peak needs of the regulated, non-interruptible, customers and that it was appropriate to credit revenue received from the competitive customer's use of the system's available excess off-peak capacity against the total revenue requirement assessed to the regulated customers in their cost-of-service-based rates rather than establish a separate "Other Revenue" rate class. The Commission had the authority to approve Rider Rev, an adjustment mechanism that effects no changes to the revenue requirement established in a full cost-of-service rate-making proceeding as provided by the Gas Utility Regulatory Act. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-13-00018-CV, 01-17-2014

Practice Areas: Energy and Natural Resources

Tex. App. Dist. 6

Estate of Fisher

Appellants challenge the trial court's grant of partial summary judgment finding no evidence of undue influence in this will contest. The appellants filed an accelerated permissive appeal pursuant to Texas Civil Practice and Remedies Code §51.014(d). The trial court's finding is essentially one of fact, and judicial economy will not be served if permissive appeal is allowed at this stage. The appeal is dismissed for want of jurisdiction. Texarkana Court of Appeals, No. 06-13-00106-CV, 01-15-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 6

In re Lumbermen's Underwriting Alliance

An insurer petitions for mandamus to either compel the opposing party to produce documents or to require the trial court to compel the production of a privilege log and then to conduct an in-camera inspection of the withheld documents. There is no evidence that all of the 6, 000 withheld documents are privileged communications or documents from, to, or by a lawyer or lawyer's representative. Many of the requested items involved communications and documents not involving lawyers or their representatives. The trial court abused its discretion in not requiring the production of a privilege log so that the claim of privilege could be properly assessed. The writ of mandamus is conditionally granted, and the trial court's order is vacated. Texarkana Court of Appeals, No. 06-13-00108-CV, 01-16-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 8

Mullendore v. Muehlstein

The appellant challenges a judgment awarding him $30, 000 in damages following a jury trial in a prescriptive easement and temporary loss of use of land case. In a temporary loss of use of land case, loss of rentals continues to be but one of several measures of damages available, and the measure ultimately employed should be tailored to the specific circumstances of the case. Out of pocket expenses and loss of profits can be appropriately recovered as compensation for temporary loss of land use. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00140-CV, 01-15-2014

5th Cir.

Vantage Drilling Co. v. Su

A foreign corporation appeals the district court's denial of its motion to remand in this suit against a director of the corporation on various state law claims. Diversity jurisdiction under 28 U.S.C. §1332(a)(2) may not be invoked in a suit between an alien and an alien corporation with its principal place of business in a state of the United States. The discussion in Chick Kam Choo concerning the remote risk of bias to the defendant was an alternative ground and not a holding. The district court's denial is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-20379, 01-07-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 8

J.C. General Contractors v. Chavez

The appellant was found negligent and liable as a nonsubscriber to workers' compensation insurance under Texas Labor Code section 406.033. The appellant did not invite error by requesting the same jury question the trial court ultimately submitted. Appellant made the same arguments requesting the change in language of the charge question in his memorandum and at the charge conference that he now brings on appeal. However, error is waived by inadequate briefing. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00012-CV, 01-15-2014

Practice Areas: Labor and Employment

5th Cir.

United States v. Keele

The appellant challenges the district court's restitution order, arguing that it was not encompassed by his appeal waiver. The record supports the conclusion that the appellant's valid appeal waiver barred his right to appeal the restitution order - specifically, the plea agreement and the appeal waiver, the PSR, the district court's statements to the appellant at sentencing and rearraignment, and the appellant's statements at sentencing. The appeal is dismissed. 5th U.S. Circuit Court of Appeals, No. 12-10551, 01-07-2014

5th Cir.

In re Moore

The district court dismissed this adversary proceeding after finding that the appellant had continued to pay the trustee's attorneys' fees after the two had become adverse over the issue of whether to settle. The bankruptcy court had authority to enter final judgment because the appellant's state-law claims would necessarily be resolved in the claims allowance process. because the bankruptcy court failed to find by clear and convincing evidence that Cadle acted in bad faith, it erred in invoking its inherent sanction power. The bankruptcy court's order is reversed, vacated, and remanded. 5th U.S. Circuit Court of Appeals, No. 13-10325, 01-09-2014

Practice Areas: Bankruptcy

Tex. App. Dist. 8

Rivera v. Hernandez

The appellant alleges that the trial court mischaracterized his separate property as community property and divested him of his interest in the real estate. There is no cognizable judicial admission when 1. a litigant pleads separate property; 2. a litigant tenders requests for admission related to a claim for separate property; 3. a litigant discloses during discovery the documentary evidence to support the claim of separate property; 4. the party opposite files responsive pleadings concerning economic contribution and equitable reimbursement demonstrating a recognition of a separate property claim; 5. the litigant seeks leave of court to amend an inventory to correct an error; 6. the trial court grants leave to amend an inventory; and 7. there is no objection to the admission of contradictory evidence. It is unnecessary to show harm because divestiture of separate property is reversible error. The trial court's judgment is reversed and remanded. El Paso Court of Appeals, No. 08-11-00287-CV, 01-15-2014

Practice Areas: Family Law

5th Cir.

Brumfield v. Cain

The district court found that a habeas petitioner was mentally retarded and therefore ineligible for execution. The state of Louisiana appeals.The district court erred in its determination that the state court decision was not entitled to AEDPA deference. The state is not required to provide expert funds to the petitioner to make out a prima facie case. the strictures of procedural due process associated with Ford and Panetti attach only after a prisoner has made a "substantial threshold showing." The state court did not violate 28 U.S.C. §2254(d)(1). The district court's grant of habeas relief is reversed. 5th U.S. Circuit Court of Appeals, No. 12-30256, 01-08-2014

Practice Areas: Criminal Law

5th Cir.

Energy Management Services, LLC v. City of Alexandria

The appellant challenges the district court's denial of its motion to remand its suit to the state court from which it was removed. The district court denied the appellant's motion to remand on the ground that it possessed supplemental jurisdiction over the appellant's claims against the city of Alexandria because the appellant's subsequent lawsuit was "factually interdependent" with a previous claim, City v. CLECO. The settled and dismissed City v. CLECO claims may not serve as an anchor claim to support supplemental jurisdiction over the present suit; and the court's retention of jurisdiction over the post-settlement matters likewise do not support supplemental jurisdiction over the appellant's state-law breach-of-contract claims, given that the claims were not asserted in the same proceedings as the City v. CLECO. The district court's denial is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-31184, 01-09-2014

Practice Areas: Appellate Law - Civil

5th Cir.

United States v. Guzman

The appellant was convicted, following a stipulated bench trial, of being a felon in possession of a firearm. Whether consent is voluntary following an officer's alleged misrepresentation is a question of fact. The question whether a subsequent admission is sufficiently an act of free will to purge the primary taint similarly involves an evaluation of the record. The conviction and sentence are vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-11279, 01-07-2014

Practice Areas: Criminal Law

5th Cir.

United States v. Ramos

The appellant appeals the judgment and sentence regarding his conviction for alleged offenses related to material involving the sexual exploitation of children. Under the specific facts here, where the sadistic-conduct enhancement already covered the vulnerability of bondage, counting it again in the form of a vulnerable-victim enhancement was impermissible. Procedural sentencing errors are harmless if the government shows that the district court would have imposed a sentence outside the correct U.S. Sentencing Guidelines range for the same reasons it gave for imposing a sentence outside the miscalculated Guidelines range, and the government shows that the sentence imposed was not influenced by the erroneous Guideline calculation. The sentence is affirmed. 5th U.S. Circuit Court of Appeals, No. 11-51232, 01-09-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Bliss & Glennon Inc. v. Ashley

This is an appeal from the trial court's order certifying a nationwide class in this case alleging damages due to alleged data theft. Because the individual plaintiff/appellant pleads a specific, redressable harm, cases concluding that persons seeking class certification without alleging a sufficient and particularized harm to demonstrate individual standing are inopposite. The trial court's determination that an obligation to give notice under Texas Business and Commerce Code §521.053 equates to an obligation to give Class Notice under Texas Rule of Civil Procedure 42 was erroneous. There is no evidence of typicality, commonality, or that the individual plaintiff could adequately protect the class. The certification order is reversed and remanded. Houston's 1st Court of Appeals, No. 01-12-01177-CV, 01-07-2014

Practice Areas: Appellate Law - Civil

5th Cir.

United States v. Imo

The appellants challenge their conviction for their alleged involvement in a health care fraud scheme. Although it would have been preferable for the district court to provide a cautionary instruction to the jury on the permissible purpose of the alleged Medicare and Medicaid violations, the district court did not abuse its discretion in refusing to give the requested limiting instruction. The prosecution is permitted to cross-examine defendants on alleged fraudulent acts because they are indicative of the defendant's character for truthfulness. The convictions and sentences are affirmed. No. 11-20791, 01-07-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Windwood Presbyterian Church, Inc. v. Presbyterian Church

This case involves a property dispute between a local church and its parent denominational church. Because the denominational church's summary judgment motion was strictly based on hierarchical deference, a neutral principles analysis is not performed by the appellate court. Masterson's application is not limited to cases involving a schism. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-10-00861-CV, 01-07-2014

5th Cir.

In re Berman-Smith

The plaintiffs in this adversary proceeding attempt to appeal the district court's judgment regarding their suit against a former business partner and his wife and co-debtor. Since the statute defining jurisdiction over bankruptcy appeals, 28 U.S.C. §158, expressly requires that the notice of appeal be filed under the time limit provided in Bankruptcy Rule 8002, the time limit is jurisdictional. The failure to file a timely notice of appeal in the district court leaves the district court and the appellate court without jurisdiction to hear the appeal. The appeal is dismissed, the district court's decision is vacated and remanded with instructions to dismiss. 5th U.S. Circuit, No. 13-50154, 12-16-2013

Practice Areas: Bankruptcy

Tex. App. Dist. 10

Brumbalow v. State

The appellant was convicted of alleged aggravated assault against a public servant. The offense of misdemeanor resisting arrest is not a lesser-included offense of the charged offense of aggravated assault against a public servant. Stepping forward while making eye contact and holding a knife carries the implied threat to kill or cause serious injury. The trial court's judgment is affirmed. Waco Court of Appeals, No. 10-11-00427-CR, 01-09-2014

Practice Areas: Criminal Law

Tex. App. Dist. 10

Luna v. Texas Department of Family and Protective Services

The appellant challenges the trial court's dismissal with prejudice of a bill of review alleging that her voluntary relinquishment of parental rights was obtained by fraud. Because she filed the suit more than six months after the order of termination is signed, the suit is barred by Texas Family Code §161.211. The trial court's order is affirmed. Waco Court of Appeals, No. 10-12-00482-CV, 01-09-2014

Practice Areas: Family Law

Tex. App. Dist. 4

Lower Colorado River Authority v. City of Boerne

The Lower Colorado River Authority, a political subdivision of the state, appeals the portion of the trial court's order granting the city of Boerne's plea to the jurisdiction, thereby immunizing the city from LCRA's suit for declaratory relief. Because the provision of electrical power to the city's residents is a proprietary function, LCRA contends that the city has no immunity against LCRA's suit arising out of the Wholesale Power Agreements. In view of Texas Local Government Code §271.152's statutory waiver for certain breach of contract claims against governmental entities, there is no proprietary-governmental dichotomy to contractual or quasi-contractual claims. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-13-00108-CV, 01-08-2014

Tex. App. Dist. 2

Lawrence v. State

The appellant challenges the revocation of his deferred adjudication community supervision. Nothing in the modifying phrase "as directed by the court or supervision officer" was intended to limit the immediately preceding phrase, "no fewer than 10 hours per month"; instead, a logical reading of the condition in its entirety indicates that appellant was expected to perform no less than 10 hours each month and that those 10 hours would also need to be completed at the direction of the court or supervision officer. The judgment is affirmed as modified to delete language regarding fees. Fort Worth Court of Appeals, No. 02-13-00021-CR, 01-02-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Dearborn v. State

The appellant argues that he was egregiously harmed by the trial court's alleged failure to apply the law of justification as a defense to the charges against him. A justification defense was not fairly raised by the evidence in this case and, to the extent it was, the trial court presumptively considered and rejected it. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00735-CR, 14-12-00736-CR, 01-07-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

In re Platinum Energy Solutions, Inc.

An oil field services provider petitions for writ of mandamus challenging the trial court's denial of its motion for protective order and its grant of a motion to compel in the underlying derivative shareholder suit. Texas Business Organizations Code §21.556 controls over §21.562(a) in this specific context involving the scope of permissible discovery in connection with a foreign corporation's motion to dismiss a derivative action. The trial court acted beyond its discretion insofar as it required production of the 43 categories of documents at issue to occur based on a determination that §21.562(a) governs this inquiry. The writ of mandamus is conditionally granted. Houston's 14th Court of Appeals, No. 14-13-00681-CV, 01-02-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

Ex parte Baldez

The appellant challenges the trial court's denial of his post-conviction application for writ of habeas corpus. The application was made pursuant to Texas Code of Criminal Procedure article 11.072 regarding misdemeanor convictions. The trial court's order did not find the application "frivolous," but failed to include findings of fact and conclusions of law. The appeal is abated for the trial court to clarify its order. San Antonio Court of Appeals, No. 04-13-00494-CR, 01-08-2014

Practice Areas: Criminal Law

Tex. App. Dist. 5

Wells Fargo Bank, N.A. v. Leath

A bank appeals the judgment voiding the deed of trust lien on the appellee's homestead and ordering forfeiture of the principal and interest on the related home equity adjustable rate note. Although pleadings are not admissible in evidence to prove the facts alleged therein, the issue of notice concerns the effect of the allegations pleaded, not whether the allegations are true. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-11-01425-CV, 01-06-2014

Practice Areas: Banking and Financial Institutions

Tex. App. Dist. 5

Dallas County v. Logan

Dallas County asserts a single issue challenging the trial court's denial of its plea to the jurisdiction in a suit brought by the appellee under the Texas Whistleblower Act. An investigative firm hired by the county is not part of the state or local government merely because of its duty to report to the county. An appropriate law-enforcement authority must be actually responsible for regulating under or enforcing the law allegedly violated. The trial court's denial is reversed and remanded. Dallas Court of Appeals, No. 05-11-00480-CV, 1-09-2013

Practice Areas: Labor and Employment

Tex. App. Dist. 5

Rico v. L-3 Communications Corporation

The appellant challenges an adverse summary judgment on his claims for alleged intentional infliction of emotional distress and alleged malicious prosecution. There is an initial presumption that the defendant acted reasonably and in good faith and had probable cause to initiate criminal proceedings. In order to rebut this presumption, the plaintiff must produce evidence that the motives, grounds, beliefs, or other information upon which the defendant acted did not constitute probable cause. There is no evidence that the report to the police was made with knowledge that the appellant was innocent, therefore there is no evidence that the conduct was extreme or outrageous. The trial court's summary judgment is affirmed. Dallas Court of Appeals, No. 05-12-01099-CV, 1-10-2013

Practice Areas: Torts

5th Cir.

Bell v. Thornburg

A former employee of the standing bankruptcy trustee for the Western District of Louisiana filed suit in state court alleging that she had been terminated in violation of the Louisiana Employment Discrimination Law. The district court granted summary judgment to the employer. A standing trustee "act[s] under" officers of the United States and fall within 28 U.S.C. §1442(a)(1)'s purview. The trustee has averred a colorable federal defense and was entitled to remove this case under the federal officer removal statute. The trustee has not employed the requisite number of people to qualify as an "employer" under the LEDL. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30155, 12-30-2013

Practice Areas: Labor and Employment

Tex. App. Dist. 9

Blasdell v. State

The trial court excluded the testimony of a forensic psychologist concerning witness identifications that occur during crimes that involved guns. whether a gun is a distraction during a brief encounter does not appear to be a question far removed from what the jury would likely expect based on their common experience; thus, the focus on the witness's qualifications with respect to this topic are less important than whether the testimony is reliable. While the expert described the weapon focus effect, he did not describe the principles that apply to it. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-09-00286-CR, 01-08-2014

Practice Areas: Criminal Law

Tex. App. Dist. 6

Brooks v. State

The appellant challenges his conviction as a party to capital murder. When a juror obtains information about a case, a number of factors are involved in looking for harm, such as the nature of admonishments to the juror, the jurors statements about whether the articles involved would impact their deliberations, whether the jurors stated that they could disregard the articles, whether the articles contained information other than that which would be presented at trial, and whether the juror stated that she would follow the court's direction to decide the case based solely on the evidence. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00088-CR, 01-02-2014

Practice Areas: Criminal Law

Tex. App. Dist. 6

Reeder v. State

The appellant challenges a warrantless blood seizure. Because the appellant's blood specimen was obtained in compliance with Texas Transportation Code §724.012(b)(3)(B), a warrant was not required. The trial court's judgment is affirmed as modified to reflect the proper statutory references. Texarkana Court of Appeals, No. 06-13-00126-CR, 01-08-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Hightower, Russo & Capellan v. Ireson, Weizel & Hightower, P.C.

A firm appeals the trial court's apportionment of fees between itself and a predecessor firm. The total fee was not based on the amount of work necessary to prosecute client's case; instead, it was a contingency fee set by contract as a defined percentage of the client's total recovery. The trial court rationally concluded the reasonable value of each firm's services to client should be calculated by applying the defined percentage to the portion of the settlement funds attributable to each firm's work. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00685-CV, 12-31-2013

Practice Areas: Appellate Law - Civil

5th Cir.

Venable v. Louisiana Workers' Compensation Corp.

The appellants challenge a summary judgment in favor of the Louisiana Workers' Compensation Corporation, which cross-appeals the denial of its motion to dismiss for want of subject-matter jurisdiction. Even assuming arguendo the district court was correct that the issue of waiver under 33 U.S.C. §933 raises a substantial federal issue, the well-pleaded-complaint rule forecloses federal-question jurisdiction. The district court lacked jurisdiction under diversity or admiralty. A district court cannot exercise ancillary jurisdiction to compel a third party's consent to a proposed, but not final, settlement agreement. The district court's summary judgment is reversed and rendered. 5th U.S. Circuit Court of Appeals, No. 12-30965, 12-30-2013

Practice Areas: Appellate Law - Civil

5th Cir.

In re Energytec, Inc.

Energytec, Inc. owns and operates gas pipelines. The company filed for bankruptcy relief under Chapter 11. The bankruptcy court authorized a sale of a pipeline system to Red Water Resources Inc., but reserved for later determination whether the sale was free and clear of the appellant, Newco Energy's, right to certain fees and other interests in the pipeline. Over a year after the sale, the bankruptcy court ruled that Newco's rights were not covenants running with the land and that the sale of the pipeline system was free and clear of Newco's interests. 11 U.S.C. § 363(m) does not deprive the appellate court of jurisdiction. Newco's right to transportation fees and its right to consent to assignment are covenants running with the land. The judgment is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-41162, 12-31-2013

Practice Areas: Bankruptcy

5th Cir.

Jose v. Transmaritime, Inc.

The appellee was granted summary judgment on its claim for the loss of its goods in transit under the Carmack Amendment to the Interstate Commerce Act. Two Form 7512s do not carry the same weight as a bill of lading, and are insufficient to show delivery of the goods in good condition to the carrier. Further,because the forms had an "apparent good order" clause, such bills would likely be prima facie proof of delivery in good condition only as to those portions of the cargo which were open for inspection at the time of delivery. The appellee failed to establish the first element of its prima facie case under the Carmack Amendment: delivery of the goods in good condition to the carrier. The district court's summary judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-40147, 12-30-2013

Practice Areas: Commercial Law

Tex. App. Dist. 14

In re BDPJ Houston, LLC

The relator challenges an order compelling the production of confidential settlement information. In the underlying suit, a company seeks compensation it's allegedly owed from the owner and manager of a building. The manager cross-claimed against the owner, alleging that the owner had recovered a settlement with an insurer. There is no basis for concluding that the location, amount, or expenditure of the settlement funds is relevant to a claim or defense in the underlying suit or is reasonably calculated to lead to the discovery of admissible evidence. The writ of mandamus is conditionally granted. Houston's 14th Court of Appeals, No. 14-13-00751-CV, 12-31-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

City of Leon Valley Economic Development Corp. v. Little

The trial court denied the plea to the jurisdiction made by the appellant, the City of Leon Valley Economic Development Corporation. An EDC, like a private nonprofit corporation, is not inherently entitled to governmental immunity; Texas Local Government Code §505.106(a) raises an immunity from liability shield for non-tort claims arising from an EDC's "performance of a governmental function;" §505.106(b) statutorily invokes common-law governmental immunity, including both immunity from liability and immunity from suit, but only for tort claims. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-12-00142-CV, 12-31-2013

Tex. App. Dist. 3

Combs v. Newpark Resources, Inc.

The Comptroller of Public Accounts asserts that the trial court erred in concluding that the appellee was entitled to a tax refund because the appellee's subsidiary did not qualify for a cost-of-goods-sold deduction and the appellee was not entitled to exclude from its total revenue the subsidiary's payments to subcontractors. Each member's cost-of-goods-sold deduction must be determined by considering the member's expenses in the context of the combined group's overall business. Texas Tax Code §171.1012(i) means that the party that supplies labor or materials to the construction, improvement, remodeling, repair, or industrial maintenance of real property can deduct its labor or material expenses as a cost of goods sold, assuming those expenses would qualify as the cost of selling real property. The trial court could have reasonably concluded that the removal and disposal of waste material was labor furnished to a project for the construction and improvement of real property. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-12-00515-CV, 12-31-2013

Practice Areas: Taxation

Tex. App. Dist. 4

Graham v. Prochaska

The appellants and heirs of the grantees of a 1950 warranty deed contend the trial court misconstrued the warranty deed and seek to reverse the trial court's judgment that the appellee's are entitled to a "fixed" one-sixteenth royalty interest. The royalty interest reserved by the deed was a floating one-half royalty interest. In 1950, the appellees conveyed the entirety of their present interest to the grantees, but they excluded the possibilities of reverter to two floating one-quarter royalty interests contained in outstanding reservations from passing under the deed, and reserved those interests to themselves. Upon the termination of those prior interests, the appellees' future interests became present possessory interests. The appellees are entitled to one-tenth of production under the current lease and to one-half of whatever landowner's royalty may be negotiated under future leases. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00755-CV, 12-13-2013

Tex. App. Dist. 6

Burden v. Burden

The appellant challenges an order declaring that she and a man she had divorced, but subsequently lived with, were not common-law married. The evidence pertaining to an agreement to be married was controverted. There was no direct evidence that these parties agreed to be married after the divorce was granted. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00024-CV, 12-31-2013

Practice Areas: Family Law

5th Cir.

Island Operating Co., Inc. v. Director, Office of Worker's Compensation Programs

This is a petition to review a modification of a benefits award under the Longshore and Harbor Workers' Compensation Act. LHWCA §22 mistakes of fact are not limited to newly discovered and previously unattainable evidence. The Benefits Review Board decision is affirmed. 5th U.S. Circuit, No. 12-60222, 12-20-2013

Practice Areas: Admiralty

Tex. App. Dist. 8

Bonacci v. Bonacci

The appellant contends the trial court was without jurisdiction to enter the final divorce decree on the appellee's petition for divorce filed in El Paso County because Appellant had first filed for divorce in Montgomery County. Despite filing a plea in abatement, appellant subsequently filed his counter-petition for divorce in the 388th District Court. Appellant also executed a Rule-11 agreement agreeing that venue for the divorce would be in El Paso County, participated in mediation, and executed a binding, irrevocable mediated settlement agreement that was filed with the 388th District Court. Moreover, by filing his cross-petition for divorce, wherein he prayed that the 388th District Court would grant him a divorce and other relief, the appellant submitted himself to the El Paso trial court's jurisdiction. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-11-00255-CV, 12-27-2013

Practice Areas: Family Law

Tex. App. Dist. 8

In re R.R.

Appellant challenges the trial court's finding that he engaged in delinquent conduct by allegedly possessing two ounces or less of marijuana. The state was not required to call an expert witness, offer the alleged substance or photos of it at the adjudication hearing, and present the chain of custody for the marijuana into evidence to prove that the substance was in fact marijuana. An officer's testimony that the marijuana was in a usable amount is sufficient to support the trial court's judgment. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00284-CV, 12-27-2013

Practice Areas: Family Law , Juvenile Law

Tex. App. Dist. 1

Smith v. State

The appellant challenges his conviction of alleged murder and his punishment of confinement for 40 years. The trial court erred in admitting various disciplinary records that constituted hearsay and violated the appellant's right to confrontation. The appellant suffered harm from the error. The appellant's conviction is affirmed, the judgment of punishment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-11-00898-CR, 12-19-2013

Practice Areas: Criminal Law

5th Cir.

Garza v. Stephens

The petitioner's federal habeas petition and certificate of appealability were denied by the district court. Petitioner seeks a COA to pursue his Strickland claims, arguing, in part, that because counsel did not ask what the jurors would do in a case exactly like this one, the jurors may not have been fair and impartial. The petitioner utterly fails to satisfy Strickland's second prong, relying solely on speculation. Moreover, no authority requires a defense attorney to ask specific questions at voir dire. The COA request is denied. 5th U.S. Circuit Court of Appeals, No. 12-70036, 12-20-2013

Practice Areas: Criminal Law

Tex. App. Dist. 1

In re Milton

Petitioner seeks mandamus relief to compel the trial court to vacate its orders denying her special appearance and motion to dismiss the underlying divorce proceeding and suit affecting the parent-child relationship. Amending a petition does not constitute a new suit for the purpose of determining a child's "home state" under the UCCJEA. The date for purposes of establishing subject-matter jurisdiction is the date of the first pleading, not the last. Because of the child custody and visitation issues, venue is appropriately reviewed by mandamus. Mandamus relief is conditionally granted, the case is abated and the trial judge who will preside over the case is directed to review challenged temporary orders. Houston's 1st Court of Appeals, No. 01-13-00240-CV, 12-19-2013

Practice Areas: Family Law

5th Cir.

United States v. Tuma

The appellant challenges his conviction of various alleged crimes related to his alleged involvement in disposing of untreated wastewater. The district court denied a request for the issuance of letters rogatory to depose a Canadian CEO because it did not find the need to depose the CEO exceptional as required by Federal Rule of Criminal Procedure 15(a). A conviction is constitutional and does not violate a defendant's right to compulsory process even when the court lacks the power to subpoena potential defense witnesses from foreign countries. There is no appellate jurisdiction to review the denial of a downward departure unless the district court's denial resulted from a mistaken belief that the Sentencing Guidelines do not give it authority to depart. The convictions and sentence are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-31234, 12-23-2013

Practice Areas: Criminal Law

Tex. App. Dist. 12

Fantich v. State

The appellant challenges the denial of his pretrial application for writ of habeas corpus. Because the primary alleged crime of the aggravated assault in this case is an alleged misdemeanor, the limitation period for the aggravated assault alleged in the indictment is two years. The trial court's denial is reversed and the indictment is dismissed. Tyler Court of Appeals, No. 12-13-00011-CR, 12-20-2013

Practice Areas: Criminal Law

Tex. App. Dist. 12

State v. Johnson

The appellee was charged with the alleged offense of destruction of a flag. The state appeals the trial court's dismissal. Texas Penal Code §42.11 is not sufficiently narrow to prevent a chilling effect on the exercise of First Amendment freedoms as they relate to conduct involving the flag. Individuals intending to convey a message by engaging in one of the prohibited acts will nevertheless be subject to arrest and prosecution. The statute is unconstitutionally overbroad. The trial court's dismissal is affirmed. Tyler Court of Appeals, No. 12-12-00425-CR, 12-20-2013

Practice Areas: Criminal Law

Tex. App. Dist. 1

Paramount Credit, Inc. v. Montgomery

The appellant argues that a default judgment entered against it is void because of improper service. To support the default judgment, the officer's citation itself must affirmatively show the exercise of reasonable diligence. It is not clear from the record that one attempt at service constituted reasonable diligence. Additionally, the absence of a seal renders the original citation invalid, and the deputy's return does not bear the name of the case in which the citation was issued. Because the trial court lacked jurisdiction, the default judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-12-00733-CV, 12-19-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 1

Tarley v. State

The appellant challenges his conviction of the alleged assault of an individual with whom he had a dating relationship. Under the doctrine of forfeiture by wrongdoing, a defendant may not assert a confrontation right if his deliberate wrongdoing resulted in the unavailability of the declarant as a witness. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-11-00463-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 14

Lee v. State

The appellant argues that the trial court erred by allowing an autopsy report without providing an opportunity to cross-examine the medical examiner who prepared it. The improperly admitted autopsy report's conclusions were cumulative of properly admitted independent testimony drawn from the autopsy record. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00615-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 14

Lyle v. State

The appellant challenges his conviction for allegedly driving while intoxicated. A police officer's testimony of a "report of a DWI" made to explain how the appellant became a suspect was not hearsay. The trial court's judicial notice of the element of "public place" weights in favor of finding egregious harm for failing to make a Texas Rule of Evidence 201 instruction, but because the "public place" element was supported by the evidence and not seriously contested, there was no egregious harm. The trial court's judgment is affirmed. Tex. App. Dist. 14, No. 14-12-00748-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 14

Sloan v. State

The appellant challenges his sentence of life imprisonment on the ground that a mandatory punishment of life imprisonment is unconstitutionally cruel and unusual. Except for fundamental error that appellant does not assert, an objection in the trial court is required to preserve error for appellate review; the "right not recognized" doctrine does not apply. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00514-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 14

Vidal v. State

The appellant challenges his conviction for allegedly recklessly causing serious bodily injury to a child. A witness testified that the appellant allegedly said "[Y]ou better not say nothing or I'm going to finish you and the kids off." Any potential prejudice associated with the statement was cured by the trial court's instruction to disregard. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00799-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 4

Springer Ranch, Ltd. v. Jones

This dispute concerns the allocation of royalties from a horizontal well located on two properties. The contract is construed as requiring royalties to be allocated on the basis of the productive portions of the well underlying the properties. Each party is entitled to royalties determined by the ratio of the productive portions of the well on their respective properties to the entire length of the well, multiplied by the one-eighth lease royalty. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00554-CV, 12-20-2013

Practice Areas: Energy and Natural Resources

Tex. App. Dist. 2

Roots v. State

The appellant challenges his convictions for alleged assault against a member of his family or household and alleged aggravated assault with a deadly weapon. Because the indictment expressly alleged that he used or exhibited a deadly weapon, the deadly weapon finding was made as a matter of law when the appellant was convicted. Because the trial court had already found, upon entering the original judgment of conviction, that appellant had used or exhibited a deadly weapon in committing aggravated assault, the court did not err by later following Texas Code of Criminal Procedure art. 42.12 §3g(a)(2) and clerically entering that finding through a nunc pro tunc judgment. The trial court's judgments are affirmed. Fort Worth Court of Appeals, No. 02-12-00439-CR, 02-12-00440-CR, 12-19-2013

Practice Areas: Criminal Law

Tex. App. Dist. 4

In re Archer Directional Drilling Services LLC

The relator filed a petition for writ of mandamus complaining of the Dimmitt County District Court's order denying the relator's plea in abatement to allow an earlier filed Harris County suit to proceed under dominant jurisdiction. The Texas Deceptive Trade Practices Act does not preclude a party in receipt of a DTPA notice letter from filing suit for breach of contract during the 60-day waiting period, and such filing does not constitute inequitable conduct preventing dominant jurisdiction. The writ is conditionally granted. San Antonio Court of Appeals, No. 04-13-00692-CV, 12-20-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 3

State v. Villarreal

The state petitions for mandamus seeking enforcement of a plea bargain. Based on the plain language of the plea bargain, the parties intended for the defendant to plead guilty to and be adjudicated for one count of alleged sexual assault of a child in exchange for the state's recommendation that the defendant get credit for time served and dismissal of the remaining two counts of alleged sexual assault of a child. The trial court failed to perform its ministerial duty to either enforce or reject the plea agreement without modification. The writ is conditionally granted. Austin Court of Appeals, No. 03-13-00423-CR, 03-13-00657-CV, 12-20-2013

Practice Areas: Criminal Law

Tex. App. Dist. 5

State v. Ojiaku

The state appeals the trial court's grant of a pretrial application for writ of habeas corpus and dismissal of the case with prejudice. The offense of bail jumping is not a continuing offense. The state's indictment of appellee for alleged bail jumping was filed after the limitations period had expired. The trial court's grant of relief and dismissal with prejudice is affirmed. Dallas Court of Appeals, No. 05-13-00840-CR, 12-23-2013

Practice Areas: Criminal Law

Tex. App. Dist. 5

In re L.T.H.

The appellant appeals the trial court's final judgment that she take nothing in her post-divorce enforcement suit. The agreement incident to divorce in this case is governed by contract law and not chapter 8 of the Texas Family Code. Pursuant to the terms of the agreement, the parties could modify the contractual obligation of spousal support by signing a written agreement. A court order was not necessary to achieve a valid modification. Because the Reformed California Divorce Decree and the MSA were founded upon settlement agreements reached by the parties, the trial court had no power to supply terms, provisions, or conditions not previously agreed upon by the parties. The trial court's judgment is reversed and remanded. Dallas Court of Appeals, No. 05-11-01707-CV, 12-18-2013

Practice Areas: Family Law

Tex. App. Dist. 5

Union Pacific Railroad Co. v. Stouffer

This is an appeal of the trial court's denial of a motion to transfer venue. Nothing in Texas Civil Practice and Remedies Code §15.003 suggests that §15.003(b)(1)'s interlocutory appeal is available only if different plaintiffs rely on different theories of proper venue. The trial court's order is reversed and remanded. Dallas Court of Appeals; No. 05-13-01224-CV, 12-19-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

In re Farmers Texas County Mutual Inc. Co

The relator, an insurance company, filed a petition for writ of mandamus complaining of three orders signed by three different judges in the underlying suit for personal injury and underinsured motorist coverage. The conduct complained of in this instance, the late production of a recorded statement, is not the type of egregious conduct or exceptional case which clearly justifies death penalty sanctions. Further, the trial court failed to consider the appropriateness of lesser sanctions to promote compliance before imposing the death penalty sanctions. The writ is conditionally granted. San Antonio Court of Appeals, No. 04-13-00644-CV, 12-20-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 8

Peterson, Goldman & Villani, Inc. v. Ancor Holdings, L.P.

The appellant, as owner of a guaranty, attempts to hold the appellees-a limited partnership and its members-liable for satisfaction of a judgment awarded against the limited liability company. Because the appellees allegedly profited in this action by asserting a position contrary to that asserted in a prior action in support of their argument that the appellant is not liable under the guaranty, they are judicially estopped from asserting limitations as an affirmative defense. The trial court's judgment in favor of the appellees on the declaratory judgment and contract claims are reversed and remanded, and otherwise affirmed. El Paso Court of Appeals, No. 08-12-00135-CV, 12-19-2013

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 8

Moreno v. Texas Department of Transportation

The appellant argues that the trial court erred in granting a directed verdict on his discrimination and due process claims and in excluding evidence of discrimination. By failing to introduce disciplinary records into evidence, the appellant failed to satisfy the first requirement of Texas Rule of Evidence 107. Absent express agreements addressing discharge protocols, statements about disciplinary procedures in an employee handbook or manual constitute no more than general guidelines and do not create contractual rights regarding those procedures. The trial court's judgment is affirmed. El Paso Court of Appeals; 08-12-00078-CV, 12-18-2013

Practice Areas: Labor and Employment

Tex. App. Dist. 8

Yardeni v. Torres

The appellants challenge a temporary injunction preventing them from locking the appellees out of a property. The appellants claim error predicated on the allegation that the appellees are not named as tenants in a lease to the property. However, there is enough evidence, if taken as true, to show a likelihood of success on other claims. Also, the trial court could have believed the appellee's testimony that there was a valid lease, or could have found that the appellee was a 50 percent owner of the property. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00067-CV, 12-19-2013

Tex. App. Dist. 6

Dolph v. State

The appellant chose to represent himself for a portion of his trial during the guilt/innocence phase. The appellant's persistence in asserting his right of self-representation despite the court's admonishments was all that was required in order for the court to determine that the assertion was made purposefully. In a hybrid-representation case, the trial court's failure to give requested admonishments does not render involuntary the waiver of the right to counsel. The trial court's judgment is affirmed as reformed to delete the assessment of a fine. Texarkana Court of Appeals, No. 06-13-00029-CR, 12-20-2013

Practice Areas: Criminal Law

Tex. App. Dist. 8

City of El Paso v. Collins

A city appeals from an order denying its plea to the jurisdiction arising from a lawsuit involving injuries to a child at a city swimming pool. To the extent appellees' pleadings seek to impose liability on the city based solely on the responsible third party designation and without establishing a waiver of the city's immunity, the trial court erred by denying the city's plea to the jurisdiction. Complaints regarding alleged deficiencies in the pleadings and lack of notice do not constitute a challenge to the trial court's subject matter jurisdiction and are not addressed. The denial of the plea as it applies to the responsible third party claim is reversed and rendered, as the denial applies to the premises liability claim it is remanded, and the denial is affirmed as to the negligence claim. El Paso Court of Appeals, No. 08-12-00243-CV, 12-18-2013.

Practice Areas: Torts

Tex. App. Dist. 8

Salazar v. Sanders

This is a dispute between two neighbors over flooding on their properties. The plaintiff appeals a take-nothing judgment on his private nuisance, interference with lateral support, and water code claims. An instruction that permitted the jury to find that a person who engaged in an intentional entry onto land did not trespass unless he entered with intent to trespass was erroneous, but did not cause harm. The trial court's take-nothing judgment is affirmed. El Paso Court of Appeals, No. 08-11-00335-CV, 12-18-2013.

Practice Areas: Torts

5th Cir.

Daigre v. City of Waveland, Mississippi

In this case alleging excessive force and false arrest, the plaintiff appeals the district court's dismissal of her claims under the favorable termination rule set forth in Heck v. Humphrey. Regarding excessive force, broad claims of innocence relating to the entire arrest encounter, and not merely to a discrete part of it, are barred by Heck. A false-arrest claim is Heck-barred where the plaintiff would have to attack one of the grounds for the arrest leading to a conviction. The district court's summary judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-60863, 12-18-2013.

Practice Areas: Civil Rights

5th Cir.

Tercero v. Stephens

The petitioner seeks a certificate of appealability challenging his Texas capital sentence. The petitioner never requested an evidentiary hearing in the state court, and, in any event, had already substantially developed his claim in the district court prior to remand. The state habeas courts gave the petitioner the opportunity to be heard, and their adjudication warrants AEDPA deference. The district court's determination was reasonable that the evidence supporting a new birthdate urged by the petitioner in his Roper claim was unpersuasive. The application is denied. 5th U.S. Circuit Court of Appeals, No. 13-70010, 12-18-2013.

Practice Areas: Criminal Law

5th Cir.

Imperial Ed Promotions, L.L.C. v. Pacquiao

During discovery, the plaintiff produced an assignment purporting to transfer an interest in the production of a boxing match to the plaintiff. The district court concluded that the assignment was not executed until after the district court raised the issue of standing at the pretrial hearing, and dismissed the suit with prejudice as a sanction. The district court made detailed findings and gave multiple warnings before the sanction. The sanction of dismissal with prejudice is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40448, 12-18-2013.

Practice Areas: Appellate Law - Civil

5th Cir.

United States v. Andaverde-Tinoco

A jury found the appellant guilty of illegal reentry subsequent to removal after conviction of an aggravated felony. The appellant argues that the government improperly elicited testimony and argued to the jury that he had remained silent in violation of Doyle. There is no formula for the analysis of the final prong of plain error review. The Doyle violations do nit rise to the level of error that seriously affects the fairness, integrity, or public reputation of judicial proceedings. The conviction and sentence are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-40472, 12-17-2013.

Practice Areas: Criminal Law

5th Cir.

Petteway v. Henry

The district court awarded fees to the plaintiffs in this voting rights case. Preclearance had always been an express condition of any election. Postponing preparatory activities for the eventual election under a precleared map cannot be characterized as a material legal success, and consequently, the plaintiffs have failed to meet the test of prevailing parties. Without evidence of the substance of the plaintiffs' presentations to the DOJ, the plaintiffs failed to show that the proposed maps would have been treated differently without the intervention of the plaintiffs. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-40856, 12-17-2013.

Practice Areas: Election and Political Law

Tex. App. Dist. 1

Jimenez v. State

The appellant was found guilty of alleged aggravated sexual assault of an elderly person. The appellant was not entitled to a jury instruction on the lesser-included offense of attempted aggravated sexual because his medical records demonstrate he had been unable to achieve and maintain an erection for eight years. Though penetration is an element of aggravated sexual assault, erection is not. Although the trial court erred in giving Texas Penal Code §21.011(b)(11)'s definition of "without consent" without an accompanying §2.05 instruction, the error was harmless. The trial court's judgment is affirmed. Tex. App. Dist. 1, No. 01-12-00588-CR, 12-17-2013

Practice Areas: Criminal Law

Tex. App. Dist. 4

Balderama v. State

The appellant contends that the trial court denied his rights under the Sixth Amendment by limiting his cross-examination of the state's witness, a former breath-test technical advisor. The court found that the witness was not an expert witness. The appellant failed to preserve the error. Had he preserved error, the appellate court would hold that the limitation on cross examination imposed by the trial court's finding was not unconstitutional. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00653-CR, 12-18-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 5

In re A.M.

The father appeals numerous rulings in this suit affecting the parent child relationship. By failing to make an offer of proof, the father waived his argument that the trial court abused its discretion by sustaining the mother's objection to testimony by a court-appointed psychologist, regarding discussions the psychologist had with another person concerning cultural context of recorded conversations between the mother and father. Comments on the reasons for the testimony or why the testimony is admissible are insufficient; the proponent must describe the actual content of the testimony. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-00907-CV, 12-16-2013.

Practice Areas: Family Law

Tex. App. Dist. 5

City of Dallas v. Davenport

This is an appeal the trial court's denial of a city's plea to the jurisdiction on a premise defect claim. The plaintiff was injured after allegedly slipping at an airport. The plaintiff was a licensee. Payment to park his car in the airport parking garage was not a fee he paid specifically for entry onto and use of the terminal in the area where he fell. The plaintiff's purchase of an airline ticket was not a fee he paid specifically for entry onto and use of the terminal in the area where he fell. The trial court's order is reversed and rendered. Dallas Court of Appeals, No. 05-13-00039-CV, 12-16-2013.

Practice Areas: Torts

Tex. App. Dist. 5

Ward v. Hawkins

The appellants appeal the denial of their motion to vacate a Kansas judgment. Nothing in the record demonstrates the trial court did not apply Texas law to the determination of personal jurisdiction. The record establishes sufficient minimum contacts with Kansas to permit the Kansas district court to exercise personal jurisdiction over the appellants. The record does not establish that the Kansas judgment is void. The record does not support an argument that the trial court did not consider appellants' admitted evidence concerning personal jurisdiction of the Kansas court over appellants. The trial court's denial of the motion to vacate is affirmed. Dallas Court of Appeals, No. 05-12-00712-CV, 12-16-2013.

Practice Areas: Appellate Law - Civil

Tex.Crim.App.

Ex parte Villegas, WR-78

The applicant for habeas corpus has demonstrated that counsel was ineffective for not presenting evidence of possible alternative perpetrators and for not discovering and presenting evidence that would have allowed the jury to give effect to the voluntary confession jury instruction submitted in this case. The trial court found that Sixth Amendment ineffective assistance of counsel violations, combined with cumulative evidence of innocence, showed that the applicant was actually innocent. Because applicant's ineffective assistance of counsel claims are not procedurally barred as subsequent, a Schlup innocence claim dependent on them is improper. Relief is granted, the judgment is set aside, and the applicant is returned to custody to answer the indictment. Texas Court of Criminal Appeals, WR-78, 260-01, 12-18-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 6

In re Baker

The defendant petitions for mandamus ordering the trial court to vacate its order setting aside the jury verdict, to vacate a nonsuit, and to enter judgment on the verdict. A jury is not required to find someone at fault; the evidence here demonstrates that the jury could have found the hay bales, that allegedly caused the accident giving rise to this case, may have shifted in heavy rain or might have become loose when the defendant's trailer crossed railroad tracks. Because the grant of new trial was improper, the notice of nonsuit -- filed after the plaintiffs introduced all their evidence -- was untimely. The petition is granted. Texarkana Court of Appeals, No. 06-13-00118-CV, 12-17-2013.

Tex. App. Dist. 5

State For Best Interest and Protection of M.P.

The appellant appeals from an order of commitment for temporary inpatient mental health services. The expert diagnosis was based on more than the appellant's refusal to take medication and the expert's opinions and recommendations were more than mere conclusions. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-13-01079-CV, 12-16-2013.

Practice Areas: Health Law

5th Cir.

United States v. Guerrero-Navarro

The appellant challenges the district court's classification of his state of Washington 2009 conviction of Residential Burglary as a crime of violence for the purposes of United States Sentencing Guidelines Manual §2L1.2(b)(1)(A). The jurisprudence of Washington's courts have consistently interpreted the term "dwelling" such that it denotes and connotes traditional structures, and only those used for human habitation. The statute at issue constitutes the enumerated generic crime of burglary of a dwelling. The sentence enhancement is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-40802, 12-16-2013.

Practice Areas: Criminal Law

5th Cir.

In re Berman-Smith

The plaintiffs filed this adversary proceeding in bankruptcy court against their former business partner. Since the statute defining jurisdiction over bankruptcy appeals, 28 U.S.C. §158, expressly requires that the notice of appeal be filed under the time limit provided in Bankruptcy Rule 8002, that time limit is jurisdictional. In re Stangel remains good law, and the failure to file a timely notice of appeal in the district court leaves the district court, and the court of appeals, without jurisdiction. The appeal is dismissed, the district court's judgment is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-50154, 12-16-2013.

Practice Areas: Bankruptcy

5th Cir.

United States v. Duron-Caldera

The appellant, who was convicted of alleged illegal reentry, argues that the district court's admission of his grandmother's affidavit violated his Confrontation Clause rights. The government didn't provide sufficient evidence to support its argument that the affidavit is nontestimonial because it was created for the primary purpose of providing evidence for immigration, rather than criminal, proceedings. The court declines to adopt a primary purpose test that would find testimonial only statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct. The judgment of conviction is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50738, 12-16-2013.

Practice Areas: Criminal Law

5th Cir.

Weeks Marine, Inc. v. Standard Concrete Products, Inc.

This case involves an indemnity agreement between a general contractor and Standard Concrete, a manufacturer of pre-cast concrete fender modules. The complaint alleges alleges a defect in a module that is not a Standard Concrete product. Standard Concrete could have been liable for any defects in its concrete fenders even though the fenders are ultimately components of the bridge project. However, it does not extend Standard Concrete's duty to defend against claims allegedly caused by the steel forms that are not distributed commercially by the indemnitor. The same reasons that negate the duty to defend also negate the duty to indemnify. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-20610, 12-16-2013.

5th Cir.

In re Whitley

The appellants, a bankruptcy attorney and his firm, represented a client who failed to reorganize his debts under Chapter 13. The bankruptcy court issued a disgorgement order that was affirmed by the district court. The attorney appeals a portion of the order obliging him to return two properties outright. A bankruptcy judge's reach under the plain language of 11 U.S.C. §329(b) is limited to attorney compensation. The bankruptcy court here did not value the property at the time of transfer to the attorney, nor did it value the property at the time it ordered its return to the estate. Accordingly, the §329(b) remedy the bankruptcy court imposed was not indexed to the compensation paid. The attorney did not use estate funds to buy the properties at the foreclosure sales. It is undisputed that the foreclosure purchase was made from the attorney's account. The bankruptcy court's order is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-41125, 12-16-2013.

Practice Areas: Bankruptcy

Tex. App. Dist. 6

Adams v. State

The appellant was removed from the courtroom before the formal commencement of trial. His appointed counsel was instructed to act as "shadow counsel" and consequently did nothing during the course of the trial. A complete denial of the right to counsel is a structural constitutional error. The evidence, including statements made during voir-dire examination, is sufficient to support the jury's finding that the appellant was the individual charged in the indictment. The trial court's judgment is reversed and remanded. Texarkana Court of Appeals, No. 06-13-00013-CR, 12-13-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 6

Taylor v. State

The appellant challenges his conviction of alleged theft of property having a value of $1,500 or more but less than $20,000. Although the entire chain of events does not evidence the intent, at the time the contract was formed, to unlawfully deprive the alleged victim of its funds, an allegedly false representation made by the appellant to induce the victim to make a $10, 000 payment is legally sufficient evidence supporting a finding of unlawful appropriation. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00078-CR, 12-13-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 5

Gonzalez v. VATR Construction LLC

The trial court granted summary judgment in favor of the defendants in this case arising from a construction accident. The appellant cannot rely on upstream contracts to establish the existence of a duty, and the summary judgment evidence established that the parties to the contracts did not intend to confer third-party beneficiary status on the appellant or anyone else. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-00277-CV, 12-12-2013.

Practice Areas: Torts

Tex. App. Dist. 8

Edwards v. Edwards

The appellant challenges the denial of his motion for a new trial following an adverse verdict in a personal injury suit. Since the appellant failed to file a statement of issues with his partial trial record at the time of perfection under Texas Rule of Appellate Procedure 34.6(c)(1), it is presumed that his failure to provide evidence of due diligence indicates the lack of due diligence. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00032-CV, 12-11-2013.

Practice Areas: Appellate Law - Civil

Tx. Sup. Ct.

Tucker v. Thomas

The court of appeals held that the trial court in this modification suit had discretion to characterize an award of attorneys' fees as necessaries and, as necessaries, had discretion to award fees as additional child support. In the absence of express statutory authority, a trial court does not have discretion to characterize attorneys' fees awarded in non-enforcement modification suits as necessaries or as additional child support. The court of appeals' judgment is reversed in part and remanded to the trial court. Texas Supreme Court, No. 12-0183, 12-13-2013.

Practice Areas: Family Law

Tx. Sup. Ct.

Ysleta Independent School District v. Franco

The court of appeals affirmed the trial court's denial of a school district's plea to the jurisdiction in this whistleblower case. The plaintiff was indefinitely suspended after reporting an alleged asbestos hazard. The plaintiff failed to show an objective, good-faith belief that the school district qualifies as an appropriate law-enforcement authority under the Whistleblower Act. The court of appeals' decision is reversed and the case is dismissed. Texas Supreme Court, No. 13-0072, 12-13-2013.

Practice Areas: Labor and Employment

Tex. App. Dist. 7

Saldana v. State

The appellant challenges his conviction for alleged unlawful possession of a firearm. The hypothetically correct jury charge in this case would obligate the state to prove that appellant was previously convicted of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of his release from confinement. The prosecutor's invitation to "do the math" and infer the date of appellant's release from confinement from the date of the 2007 conviction, the length of sentence, and jail credit offered the jury an unworkable formula requiring surmise and speculation. The trial court's judgment is reversed and rendered. Amarillo Court of Appeals, No. 07-13-00091-CR, 12-06-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 8

Sierra Club v. Andrews County

The appellant claims that the appellees' claims for declaratory judgment and tortious interference with a contract should have been dismissed pursuant to the Texas Citizens' Participations Act. The protected activity here - threating to enjoin shipment of radioactive waste to a leased facility - is the specific conduct complained of, from which all the other allegations of wrongdoing emanate and around which they revolve. The threat of injunctive relief was the act that led to appellees' claims. Because the claims brought by appellees arose from protected activity, the burden shifted to them under Section 27.005(c) to establish by clear and specific evidence a prima facie case for each essential element of their declaratory judgment claims, which they failed to do. El Paso Court of Appeals, No. 08-13-00003-CV, 12-06-2013.

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 13

Arbor E & T, LLC v. Lower Rio Grande Valley Workforce Development Board, Inc.

The appellant challenges the trial court's grant of a plea to the jurisdiction by Lower Rio Grande Valley Workforce Development Board. Local workforce development boards are governmental units under the Texas Tort Claims Act. The board is not a state agency. Local workforce development boards exist as distinct governmental entities entitled to assert immunity in their own right for the performance of governmental functions. As a local governmental entity, the statutory waiver applies to this breach of contract dispute. The trial court's order is reversed and remanded. Corpus Christi Court of Appeals, No. 13-13-00139-CV, 12-05-2013.

Tex. App. Dist. 12

East Texas Medical Center Regional Health Care System v. Reddic

The trial court denied a hospital's motion to dismiss this suit for damages caused by injuries the plaintiff allegedly sustained when she fell in the hospital's lobby. A fall, even by a visitor, in a hospital lobby meets the Texas Medical Liability Act's safety prong so that the plaintiff's claims in this case are properly classified as health care liability claims. The trial court's order is reversed and remanded. Tyler Court of Appeals, No. 12-13-00107-CV, 12-04-2013.

Practice Areas: Health Law

Tex. App. Dist. 14

Miller v. State

The appellant challenges the denial of his motion to suppress. Based on the totality of the circumstances and the officer's experience, the trial court reasonably could have concluded that the officer did not stop the vehicle solely for failing to maintain a single lane, and the officer observed driving behavior that reasonably lead him to believe appellant was driving while intoxicated, asleep, overmedicated, or otherwise impaired. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00062-CR, 12-05-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 14

Melendez v. Houston Independent School District

The trial court granted summary judgment to the employer in this case alleging the plaintiff was forced to resign due to a disability. The Texas Commission on Human Rights Act does not have a safe harbor provision, and the Americans with Disabilities Act version applies "only to individuals who have been drug-free for a significant period of time." The appellant's alleged condition of addiction was current at the time of her adverse employment action. Houston's 14th Court of Appeals, No. 14-12-00946-CV, 12-05-2013.

Practice Areas: Labor and Employment

Tex. App. Dist. 14

Salinas v. State

The appellant contends, inter alia, that the trial court's assessment of a "consolidated court cost" against him violates the Texas Constitution. Because the admittedly valid uses are severable and are not foreclosed by other assertedly invalid uses to which the challenged court cost is put, appellant has not established that Texas Local Government Code §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, 12-05-2013.

Practice Areas: Criminal Law

Tex. App. Dist. 4

Mitchell v. State