Recent Decisions

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: CLIFFORD J. WOERNER; GAIL S. WOERNER, Debtors;

This case concerns a bankruptcy court's order reducing the fees a debtor's counsel received under 11 U.S.C. §330. If a fee applicant establishes that its services were "necessary to the administration" of a bankruptcy case or "reasonably likely to benefit" the bankruptcy estate "at the time at which [they were] rendered," 11 U.S.C. §330(a)(3)(C), (4)(A), then the services are compensable. In assessing the likelihood that legal services would benefit the estate, courts adhering to a prospective standard ordinarily consider, among other factors, the probability of success at the time the services were rendered, the reasonable costs of pursuing the action, what services a reasonable lawyer or legal firm would have performed in the same circumstances, whether the attorney's services could have been rendered by the trustee and his or her staff, and any potential benefits to the estate (rather than to the individual debtor). Insofar as Pro-Snax precludes resort to this prospective analysis, those portions of the opinion are overruled. The attorney’s fee award is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-50075, 04-09-2015

13-50075
EDWARD C. PRADO

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE MENDOZA, also known as Jose Mendoza-Arriola, Defendant - Appellant.

The appellant contends that the district court relied on the presentence report in order to prove that his prior alleged money laundering conviction was an aggravated felony. Whether a defendant's previous money laundering conviction satisfies 8 U.S.C. §1101(a)(43)(D)'s $10,000 threshold is a question of specific circumstances. The district court, therefore, was not determining whether a prior conviction met the elements of a generic crime in a statute. The restrictions set forth in Shepard and Taylor did not apply. The district court’s ruling is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-40168, 04-09-2015

14-40168
EDITH B. CLEMENT

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. SEALED JUVENILE, Defendant - Appellant

A juvenile challenges a special condition requiring prior written approval for his use of the Internet. This condition is unreasonably restrictive. The district court is instructed that the condition is not to be construed or enforced in such a manner that the juvenile would be required to seek prior written approval every single time he must use a computer or access the Internet. Computer monitoring provisions are affirmed, given the potential influence of the Internet on the juvenile’s sexual development, the apparent influence the Internet has already had on his alleged behavior, and because the provisions are useful in ensuring that the juvenile complies with the restrictions against accessing sexually explicit materials. The district court’s judgment is affirmed as modified. 5th U.S. Circuit Court of Appeals, No. 14-30357, 03-13-2015

14-30357
FORTUNATO P. BENAVIDES

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RANDY JENKINS, Plaintiff - Appellant v. CITY OF SAN ANTONIO FIRE DEPARTMENT, Defendant - Appellee

Because the plaintiff was unsure of when he received his EEOC right -to-sue letter, the district court applied a three-day presumption and found that his suit alleging discrimination and retaliation claims was untimely filed. A three-day presumption is permissible. Although 29 C.F.R. §1614.604(b) provides a five-day presumption, this provision applies only to federal employees, which the plaintiff is not. The district court’s judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-50483, 04-20-2015

14-50483
HAYNES

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: DEAN E. BUESCHER; SHERRY R. BUESCHER, Debtors;

The bankruptcy court declined to grant a discharge to the debtors. Because the debtors have jointly-held community property, the creditor could seek repayment in Texas court through an in rem suit. Pioneer did not alter the "good cause" test that applies under Federal Rule of Civil Procedure 4(m); the trial court did not err in finding good cause to extend the time for the creditor to perfect service. The creditor is not required to personally seek discovery in order to show that a debtor failed to keep financial records under 11 USC §727(a)(3). The district court’s judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-40361, 04-13-2015

14-40361
EDITH BROWN CLEMENT

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: MARCO A. CANTU, ROXANNE CANTU, Debtors;

Debtors sued sued their bankruptcy attorney for causes of action related to her representation prior to the conversion of their case from Chapter 11 to Chapter 7. The Chapter 7 trustee contends that proceeds from the settlement of that case belong to the estate. The "prepetition relationship" or "middle ground" test, adopted in Lemelle to address whether a claim asserted against a restructured company had been discharged, does not apply to determining whether a claim that a debtor seeks to assert constitutes property of the estate. Here, the focus is on whether the allegations and causes of action in the the petition injured the estate in a manner that would have enabled the trustee to file the suit prior to conversion. The district court’s judgment, holding the proceeds belong to the estate, is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-40597, 04-16-2015

14-40597
GREGG COSTA

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

CPM TRUST, KLM SECURE TRUST, AND RMP PARKER CENTRAL, LLC, Appellants v. CITY OF PLANO, TEXAS AND THE BOARD OF ADJUSTMENT OF THE CITY OF PLANO, TEXAS, Appellees

The appellants challenge a decision by a municipal board of adjustment requiring them to remove a billboard. The board abused its discretion by not allowing appellants the option to make repairs as provided under the city's ordinances and the trial court erred by affirming the board's decision. Based on Carlson, appellants have not alleged a taking and the trial court properly granted the city's plea to the jurisdiction respecting appellants' taking claim; the appellants do not contest the sign regulations in the city's zoning ordinance, but rather complain about the city's misapplication of certain regulations as to their property. The trial court's judgment is affirmed in part, reversed and rendered in part, and remanded. Dallas Court of Appeals, No. 05-14-00104-CV, 04-07-2015

05-14-00104-CV
DOUGLAS S. LANG

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

JERRY MICHAEL CHANCE D/B/A OUTER LIMITS GAMEROOM, Appellant, v. ELLIOT & LILLIAN, LLC, Appellee.

A lessee challenges the trial court's grant of summary judgment for the lessor. The trial court expressly asked the parties to submit their objections to the evidence, but no proposed rulings on the objections are contained within the record on appeal, and the trial court's order granting summary judgment makes no reference to whether it considered the objections and contains no ruling on the evidentiary objections. Therefore, all summary judgment evidence not otherwise excluded from the trial court's consideration is considered on appeal. Genuine issues of material fact exist, including whether the appellee performed or tendered performance under the terms of the lease agreement. The trial court's judgment is reversed and remanded. El Paso Court of Appeals, No. 08-13-00248-CV, 04-08-2015

08-13-00248-CV
YVONNE T. RODRIGUEZ

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

M. KATHLEEN MCKINNEY, Regional Director of Region Fifteen of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Plaintiff - Appellee v. CREATIVE VISION RESOURCES, L.L.C., Defendant - Appellant

The district court granted an injunction under the National Labor Relations Act requiring the appellant to negotiate and bargain in good faith with a labor union. A district court reviewing a petition for §10(j) injunctive relief should provide only relief that is necessary and must issue specific findings of fact that suggest harm requiring §10(j) injunctive relief. The district court's findings do not indicate specific, egregious or exceptional, employer conduct or harms in this case that support a § 10(j) injunction. The district court's injunction is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 14-30839, 04-13-2015

14-30839
E. GRADY JOLLY

Practice Areas: Labor and Employment , Labor Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WALTER POWERS, JR., individually, and in his capacity of President of the Fraternal Order of Police, Crescent City Lodge #2, and its Members; FREDERICK C. MORTON, Plaintiffs - Appellants [...] v. UNITED STATES OF AMERICA; POLICE ASSOCIATION OF NEW ORLEANS; MICHAEL GLASSER, individually and as President of the Police Association of New Orleans, Inc., Intervenors - Appellees, CITY OF NEW ORLEANS, Defendant - Cross-Defendant - Appellee, MITCHELL J. LANDRIEU, in his official capacity as the mayor/ch [...]

The appellants challenge the district court's judgment upholding certain ordinances passed by the City of New Orleans related to paid detail for officers of the New Orleans Police Department. Even assuming that the ordinances substantially impaired paid detail contracts of NOPD officers, the ordinances would not be invalidated under the federal or state Contract Clauses because they were a reasonable exercise of the city's police power. Stemming police misconduct and improving the quality of policing qualifies as a significant and legitimate public purpose. The district court correctly concluded that the civil service commission does not have jurisdiction over NOPD paid details; the city, not the CSC, has the exclusive jurisdiction to set wage rates for NOPD paid details. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-30444, 04-15-2015

14-30444
EDITH BROWN CLEMENT

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROBERT LEE ORTEGA, Petitioner-Appellant, v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

The appellant challenges the dismissal of his habeas petition that challenged his Texas conviction for assault of a public servant as a double jeopardy violation. The appellant's decision to not appeal the court of appeals' decision on remand to the Court of Criminal Appeals is not a basis to dismiss for failure to exhaust; such appeal would be futile, because the Court of Criminal Appeals already rejected the double jeopardy claim. The Court of Criminal Appeals' conclusion that resisting arrest is not a lesser included offense of assault of a public servant is reasonable. The motion for a certificate of appealability is denied. 5th U.S. Circuit Court of Appeals, No. 14-40455, 04-09-2015

14-40455
JAMES L. DENNIS

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LITO MARTINEZ ASIGNACION, Plaintiff-Appellee, v. RICKMERS GENOA SCHIFFAHRTSGESELLSCHAFT MBH & CIE KG, Defendant-Appellant.

The district court held that enforcing an arbitral award would violate the United States public policy protecting seamen. The district court determined that the arbitration and award effectively denied the seaman the right to pursue his general maritime remedies. That finding is insufficient to support the conclusion that the public policy of the United States requires refusing to enforce the award. There is no evidence that the arbitral award was inadequate relative to the seaman's medical needs. The district court erred when it relied on the prospective-waiver doctrine to afford the seaman an opportunity to pursue his claims under the general maritime law; the prospective-waiver doctrine is limited to statutory rights and remedies. The district court's order is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 14-30132, 04-16-2015

14-30132
PRISCILLA R. OWEN

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

EX PARTE RIKU MELARTIN

The appellant challenges the increase of bail to the aggregate amount of $7.2 million. The trial court's increase was more than 1600%. Considering the high amount that was set, coupled with the undertones of punitive action, the bail appears to have been used as an instrument of oppression. The trial court's judgment is reformed to reflect that bail is set at $100,000 in each of appellant's nine cases, for an aggregate amount of $900,000. Houston's 14th Court of Appeals, No. 14-14-00926-CR, 04-02-2015

14-14-00926-CR
Tracy Christopher

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

STEPHEN CLARK WEBB, Appellant v. THE STATE OF TEXAS, Appellee

The trial court overruled appellant's hearsay objections to the complainant's testimony concerning her nightmares. The sleep statements were excited utterances. That many years had passed since the alleged abuse does not affect the analysis. The common law rule followed in Mayfield — that when a declaration is offered, it must appear that the declarant was mentally conscious — has been supplanted by the Texas Rules of Evidence. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-14-00174-CR, 04-02-2015

01-14-00174-CR
Harvey Brown

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

THE STATE OF TEXAS, Appellant v. JASDEEP SINGH CHANA, MANJIT SINGH CHANA, AND AMAR PAL SINGH CHANA, Appellees

This eminent-domain case involves a dispute over the fair market value of 2.072 acres of land. The trial court did not abuse its discretion by refusing to exclude expert testimony on the ground that his appraisal violated the project enhancement rule. The trial court did not err by not excluding the opinion testimony of the condemnee's expert on the basis that the 2.385-acre tract, containing the condemned property, could not be valued as a separate economic unit. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00953-CV, 04-02-2015

01-13-00953-CV
Laura Carter Higley

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

THE STATE OF TEXAS, Appellant v. ALLEN TERCERO, Appellee

The state appeals from the trial court's order granting the appellee's motion to suppress results of a warrantless blood-draw. A general balancing test is not appropriate here to justify a warrantless blood draw, and even if it were, the state's interest in curbing drunk driving through the use of warrantless searches does not outweigh a DWI suspect's privacy interest. No "good faith" exception from the Texas exclusionary rule applies here. The trial court was not required to determine that Texas Transportation Code §724.012(b) was facially unconstitutional in order to determine that the nonconsensual, warrantless taking of the appellee's blood specimen violated his Fourth Amendment rights. Houston's 1st Court of Appeals, No. 01-14-00120-CR, 04-02-2015

01-14-00120-CR
Evelyn V. Keyes

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

DAVID EOFF, Appellant v. CENTRAL MUTUAL INSURANCE COMPANY, Appellee

The trial court rendered judgment for the plaintiff, an insurer, who alleged the defendant breached his contract to reimburse the insurer. The Texas Department of Public Safety did not have exclusive jurisdiction over the insurer's claim for damages following the appellant's default on the installment agreement between the parties. Accordingly, the insurer was not required to exhaust any administrative remedies. Because the insurer failed to establish an anticipatory repudiation and the payments due under the installment agreement were not accelerated, it was entitled to recover only the past due payments under the installment agreement. The trial court's judgment is affirmed contigent on the filing of remittitur. Dallas Court of Appeals, No. 05-14-00035-CV, 04-07-2015

05-14-00035-CV
ROBERT M. FILLMORE

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

UNITED MEDICAL SUPPLY COMPANY, INC., Appellant v. ANSELL HEALTHCARE PRODUCTS, INC., Appellee

The appellant a distributor of medical supplies, asserts it is entitled to indemnity from the appellee, a manufacturer of latex-containing gloves, for litigation costs it expended in defending two products liability suits related to such gloves. The plain language of Texas Civil Practice and Remedies Code §82.002(a) requires indemnity. The pleadings need not allege the seller sold a particular manufacturers' product before a statutory duty to indemnify can arise. The appellant's failure to pursue claims against other manufacturers or to segregate expenses that could have been shared amongst them does not preclude recovery. The trial court's judgment is reversed and remanded. Dallas Court of Appeals, No. 05-12-01365-CV, 04-03-2015

05-12-01365-CV
ADA BROWN

Practice Areas: Products Liability

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Juan Francisco MONTALVO, M.D., F.A.C.O.G., et al., Appellants v. Gabriela LOPEZ, Appellee

The trial court denied the appellant's motion to dismiss based on the limitations provision in Texas Civil Practice and Remedies Code §74.251. The limitations period set forth in §74.251 is unconstitutional as applied to minors under the open courts provision of the Texas Constitution. Tolling under §16.001 does not satisfy the purpose of the pre-suit notice, which is intended to provide a minor with additional time in which to pursue her claims; it is not designed to trigger negotiation between the parties. The trial court's denial of summary judgment is affirmed. San Antonio Court of Appeals, No. 04-14-00803-CV, 04-08-2015

04-14-00803-CV
Sandee Bryan Marion

Practice Areas: Health Law

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. EXCELLENCE MORTGAGE, LTD., Appellee

The appellee sued former employees, loan officers, alleging that the employees took "pipeline" loan customers when they moved to a different employer. Because the employees' resignations were submitted nine after after the employer ceased to exist, the employees were involuntarily terminated. A reasonable term for compensation in the event of the employer's termination of a loan officer's employment for its convenience — a term that is missing from the compensation plan — is the same compensation due for the loan officer's voluntary termination of employment for the loan officer's convenience. The trial court's judgment is affirmed in part, and reversed in part and remanded. San Antonio Court of Appeals, No. 04-13-00106-CV, 04-01-2015

04-13-00106-CV
Patricia O. Alvarez

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

CITY OF GALVESTON, DOROTHY PALUMBO, CITY ATTORNEY AND STERLING W. PATRICK, DIRECTOR OF GRANTS AND HOUSING, Appellants v. CDM SMITH, INC., Appellee

Appellants contend they are immune from suit in conjunction with claims arising from the a city's contract with the appellee as administrator of a program related to housing damage. Although the services provided under the agreement benefitted individual citizens, the city also enjoyed direct benefits through the appellee's management and operational services, assisting the city's Grants and Housing Department with the program, and developing and completing a neighborhood master plan and housing market study that the city would own. The agreement in this case provides services to the city, therefore, the city's immunity was waived under Texas Local Government Code chapter 271. The trial court's judgment is affirmed in part, and reversed and dismissed in part. Houston's 14th Court of Appeals, No. 14-14-00294-CV, 04-02-2015

14-14-00294-CV
Martha Hill Jamison

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

BARRE MORRIS, Appellant v. VICTORIA BARRIENTES O'NEAL, Appellee

The trial court denied the appellant's bill of review seeking to set aside a judgment nunc pro tunc. The appellant asserts that the judgment is void because it allegedly corrected a judicial error, rather than a clerical error, after the expiration of the trial court's plenary power. The only evidence the record indicates the appellant presented to the trial court in support of his bill of review is the certified copy of the judgment nunc pro tunc. This document alone does not constitute prima facie proof to support the appellant's contention that the judgment nunc pro tunc is void, because it does not provide details about the original final order. Because there is no way to tell whether there was a prior rendition of judgment by the trial court preceding the original final order or the substance of any such rendition, it cannot be determined whether the judgment nunc pro tunc made judicial or clerical modifications to the terms of the original final order. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-14-00252-CV, 04-07-2015

14-14-00252-CV
Marc W. Brown

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

KAREN WOODING BRYANT, Appellant v. THE STATE OF TEXAS, Appellee

The reporter's record in this case is irretrievably lost. A new trial is required when the missing record is necessary to the appeal's resolution. The trial court's judgment is reversed and remanded for a new trial. Houston's 14th Court of Appeals, No. 14-13-00922-CR, 04-07-2015

14-13-00922-CR

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

LISA ANN BARFIELD, appellant v. THE STATE OF TEXAS, Appellee

The appellant argues that the presence of a MADD plaque in the courtroom violated her constitutional rights. The display of the MADD plaque does not rise to the level of fundamental error. While the display of the plaque could be viewed as evidence the trial judge dislikes drunk driving, it was not a comment on this particular defendant's guilt or innocence. It therefore does not overcome the presumption that the trial judge conducted the trial properly. The trial court's judgment is affirmed as modified to remove a notation regarding appellant's blood-alcohol content. Houston's 14th Court of Appeals, No. 14-13-00518-CR, 04-02-2015

14-13-00518-CR
Martha Hill Jamison

Practice Areas: Criminal Law

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

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellant, v. TEXAS FARM BUREAU, FRANK VOLLEMAN, FRANK DESTEFANO, DAVID AND MARY BALLEW, RON AND SHERIE BURNETTE, SAM JONES, THEODORE AND MARY KALLUS, GLEN MARECEK, JOHN GAULDING, AND CHARLES AND KATHERINE HARLESS, Appellees.

Pursuant to its authority under Texas Water Code §11.053(c), TCEQ adopted the Drought Rules, which contain the following clause: "The executive director may determine not to suspend a junior water right based on public health, safety, and welfare concerns. . . ." The district court in this declaratory judgment action found the TCEQ drought rules invalid. Section 11.053(a) requires TCEQ to apply the §11.053(b) factors within the framework of "first in time, first in right." TCEQ's police power and general authority does not allow TCEQ to exempt junior preferred water rights from suspension based on public health, safety, and welfare concerns. The district court's judgment is affirmed. Corpus Christi Court of Appeals, No. 13-13-00415-CV, 04-02-2015

NUMBER 13-13-00415-CV
Perkes

Practice Areas: Environmental Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Richard J. Malouf, DDS; Richard J. Malouf, DDS, PC; and Richard J. Malouf, DDS, PA, Appellants v. The State of Texas ex rel. Dr. Christine Ellis, DDS and Madelayne Castillo, Appellees

This action is a consolidation of two cases alleging "unlawful acts" in violation of the Texas Medicaid Fraud Prevention Act. The appellants challenge the trial court's denial of their motion to dismiss for failure to provide an expert report under the Texas Medical Liability Act. The state when bringing suit under the TMFPA is not a "person" within the definition of "claimant" under the TMLA and, thus, not subject to the expert report requirement. The other relators' claims concern payments made by the state and were brought in the name of the state, and they do not seek to recover for an injury that they sustained as a proximate result of alleged conduct by the defendants; these claims are not subject to expert report requirements. The trial court's order is affirmed. Austin Court of Appeals, No. 03-14-00036-CV, 04-02-2015

03-14-00036-CV
Melissa Goodwin

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

TEXAS DEPARTMENT OF PUBLIC SAFETY, APPELLANT v. JOSEPH TRENT JONES, APPELLEE

The Texas Department of Public Safety denied the appellee's application for a concealed handgun license. The trial court found that the appellee was eligible for a concealed handgun license and that a 2010 deferred adjudication had been "set aside" and, by statute, was no longer considered a conviction for the purposes of eligibility for a concealed handgun license. Texas Code of Criminal Procedure Article 42.12 §5 is not strictly limited to events or actions specifically falling within the listed descriptors, the listed events or actions in subsection C are broad in scope, capable of encompassing a variety of circumstances, including the early release order here. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-14-00258-CV, 04-01-2015

07-14-00258-CV
Mackey K. Hancock

Practice Areas: Administrative Law

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

EX PARTE BRIAN JOHN VANORMAN, Appellant

The appellant challenges the trial court's denial of his application for writ of habeas corpus seeking to be released from custody on a reduced or personal recognizance bond under Texas Code of Criminal Procedure Article 17.151. As of the day the appellant was indicted, he had been detained for a total of 82 days. Because the appellant had not been detained 90 days when the state indicted the appellant, Article 17.151 was inapplicable. The trial court's denial is affirmed. Beaumont Court of Appeals, No. 09-14-00500-CR, 04-01-2015

09-14-00500-CR
CHARLES KREGER

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

THE STATE OF TEXAS, Appellant v. MICHAEL BURL MASSINGILL, Appellee

Following the trial court's decision to quash the appellee's indictment for the alleged offense of online solicitation of a minor, the state appealed. Approximately one week later, the trial court, without conducting a further hearing, signed an order to rescind the order quashing the indictment, and ordered "the indictment be reinstated as originally filed." The trial court no longer had jurisdiction after it quashed the indictment, therefore, the trial court's order reinstating the indictment is void. To adequately allege a violation of Texas Penal Code §33.021, the state was not required to specifically allege exactly how it would prove at trial that the alleged intended victim was a "minor." The trial court's orders are set aside, and the case is remanded. Beaumont Court of Appeals, No. 09-14-00472-CR, 04-01-2015

09-14-00472-CR
HOLLIS HORTON

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Donald F. HUFF, Appellant v. The STATE of Texas, Appellee

A jury convicted the appellant of felony murder — the underlying offense alleged was driving while intoxicated, third offense. The alleged victim was a passenger on the appellant's motorcycle. The evidence, including that the appellant was essentially unharmed by the crash, satisfies the corpus delicti rule. Assuming a prisoner may himself deliver a request for final disposition to the court and prosecuting attorney, or do so through counsel, rather than by delivering it to the warden, he or his attorney must do so in accordance with the requirements of the Interstate Agreement on Detainers Act. The trial court's denial of the appellant’s motion to suppress the results of a warrantless blood draw is reversible error. The trial court’s judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00891-CR, 04-08-2015

04-13-00891-CR
Marialyn Barnard

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SEALED APPELLEE, MovantAppellee, v. SEALED APPELLANT, RespondentAppellant.

The appellant, a federal prisoner, challenges the district court's order civilly committing her under 18 U.S.C. §4245. The different contexts for civil commitment — prisoners as distinguished from citizens — reflects distinct liberty interests that justify different evidentiary standards. In light of the other significant procedural protections afforded to prisoners subject to civil-commitment proceedings, §4245's preponderance-of-the-evidence standard does not violate the Fifth Amendment's Due Process Clause. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-10274 Summary Calendar, 11-17-2014

14-10274 Summary Calendar

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

POOLRE INSURANCE CORPORATION; CAPSTONE ASSOCIATED SERVICES, LIMITED; CAPSTONE ASSOCIATED SERVICES (WYOMING), L.P.; THE LAW FIRM, L.L.P.; CAPSTONE INSURANCE MANAGEMENT, LIMITED, Plaintiffs-Appellants v. ORGANIZATIONAL STRATEGIES, INCORPORATED; NICOLETTE HENDRICKS; WILLIAM HENDRICKS, Defendants-Appellees

The appellee OSI created a captive insurance program with the assistance of appellant Capstone. The appellant PoolRe, managed by Capstone, provided insurance services to OSI's newly created captive insurance companies. Capstone and OSI entered into contracts requiring AAA arbitration. PoolRe and the captive insurance companies entered into contracts requiring ICC arbitration. An arbitrator joined all of the parties for arbitration under AAA rules. Arbitration awards made by arbitrators not appointed under the method provided in the parties' contract must be vacated. Because the arbitrator acted contrary to the express arbitrator- and forum-selection clauses in the arbitration agreements to which PoolRe was a party, the arbitrator exceeded his authority under 9 U.S.C. §10(a)(4). The district court did not err by vacating the entire award, instead of carving out the objectionable portion. The district court's orders are affirmed. 5th U.S. Circuit Court of Appeals, No. 14-20433, 04-07-2015

14-20433
EDWARD C. PRADO

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CAMPBELL HARRISON & DAGLEY, L.L.P.; CALLOWAY, NORRIS, BURDETTE & WEBER, P.L.L.C., Plaintiffs - Appellants Cross-Appellees [...] v. ALBERT G. HILL, III, individually and on behalf of N. Hill; C. Hill; the unborn and unascertained beneficiaries of the Margaret Hunt Trust Estate and/or the Haroldson Lafayette Hunt, Jr Trust Estate who descend from Albert G. Hill, III and/or Erin Hill...; ERIN HILL, individually and on behalf of N. Hill; C. Hill; the unborn and unascertained beneficiaries of [...]

The district court, inter alia, enforced an arbitrator's hourly-rate fee award in this dispute concerning a fee agreement, but vacated the contingency-fee award as unconscionable. In rejecting the arbitrators' determinations regarding the uncertainty of recovery, the reasonableness of the total fee, and unconscionability, the court substituted its judgment for that of the arbitrators merely because it would have reached a different decision. The district court's judgment is affirmed in part, reversed and rendered in part in favor of the firms, and remanded. 5th U.S. Circuit, No. 14-10631, 04-02-2015

14-10631
RHESA HAWKINS BARKSDALE

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DANIEL LEE LOPEZ, Petitioner - Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

Appellant's counsel contends that the appellant is incompetent to waive habeas review because he is wrong to think further judicial review would be unavailing. A court's competency finding is distinct from, and must be confirmed independent of, legal avenues of attack that may exist pertaining to a sentence. A court appointed mental health evaluator's involvement, including his written report and hearing testimony subject to cross-examination, satisfies the "meaningful opportunity to present evidence relevant to the question of competency" required by Mata. The district court's competency finding to waive federal habeas proceedings is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-70025, 04-06-2015

14-70025
STEPHEN A. HIGGINSON

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FERMIN RODRIGUEZ-BERNAL, Defendant-Appellant.

The appellant challenges a sixteen-level enhancement imposed under U.S. Sentencing Guidelines §2L1.2(b)(1)(A)(i) for a Texas possession-with-intent offense. The appellant argues that his "sentence of imprisonment" was less than 13 months because he was discharged by the Texas Department of Criminal Justice after serving 10 months. Only a court can suspend a sentence for purposes of the §4A1.2(b)(2) exception. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-10287, 04-03-2015

14-10287

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

KEN LANDERS AND CLARLINDA LANDERS, APPELLANTS v. NATIONSTAR MORTGAGE, LLC, APPELLEE

Homeowners filed suit against the lender asserting fraud and estoppel claims. A temporary restraining order and temporary injunction enjoined the lender from foreclosing on the subject property. The trial court granted summary judgment in the fraud suit in favor of the lender, the agreed temporary injunction expired by its own terms, and the lender later filed this suit to judicially foreclose its lien. Any tolling by the temporary restraining order and the temporary injunction applied to the limitations period for nonjudicial foreclosure only and not to the one for judicial foreclosure. The trial court's judgment is reversed and rendered in favor of the homeowners on the judicial foreclosure claim, and the lender's rescission claim is remanded. Tyler Court of Appeals, No. 12-14-00261-CV, 04-08-2015

12-14-00261-CV
JAMES T. WORTHEN

Practice Areas: Banking and Financial Institutions

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

GAYLE MILLER MCMULLIN, Plaintiff - Appellant v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY; ALBERT SANTA CRUZ, In his official capacity as Commissioner of the Mississippi Department of Public Safety, Defendants - Appellees

The district court dismissed this case against the Mississippi Department of Public Safety, finding that the plaintiff failed to establish a prima facie case of race-based discrimination. The director's position at issue in this case had been filled by a captain for at least 25 years. When a vacancy occurred, a notice was circulated that the vacancy would be filled with a lieutenant instead of a captain. The department gave the position to a master sergeant, after promoting him to the rank of lieutenant. Testimony by a witness for the defendant implied that possibly there were two director positions, one for a lieutanant and one for a captain. A factfinder could reasonably find that there was only one job opening for director, and that the plaintiff applied for the director's position and was rejected. The trial court's judgment is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 14-60366, 04-06-2015

14-60366
E. GRADY JOLLY

Practice Areas: Labor and Employment

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JERRELL P. SQUYRES, Plaintiff - Appellant v. THE HEICO COMPANIES, L.L.C.; S-LINE CORPORATION, L.L.C.; ANCRA INTERNATIONAL, L.L.C., Defendants - Appellees

The district court granted summary judgment in favor of the defendants in this suit alleging age discrimination. That all the other employees were at-will, and the plaintiff was not allowed to continue working as an at-will employee after his employment agreement expired, is not evidence of pretext. A reasonable jury could not conclude that a coworker's reference to the plaintiff as "old guy" demonstrated discriminatory animus. The district court was not bound by the parties' quid-pro-quo agreement to not oppose a leave to amend. The district court's summary judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-11358, 04-02-2015

13-11358
STEPHEN A. HIGGINSON

Practice Areas: Labor and Employment

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

GULF RESTORATION NETWORK; MISSOURI COALITION FOR THE ENVIRONMENT; IOWA ENVIRONMENTAL COUNCIL; TENNESSEE CLEAN WATER NETWORK; MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY; SIERRA CLUB; PRAIRIE RIVERS NETWORK; KENTUCKY WATERWAYS ALLIANCE; ENVIRONMENTAL LAW & POLICY CENTER; NATURAL RESOURCES DEFENSE COUNCIL, INCORPORATED; WATERKEEPER ALLIANCE, I [...] v. GINA McCARTHY, Administrator of the United States Environmental Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants - Appellants

The EPA Administrator denied a petition for rulemaking, declining to make a Clean Water Act "necessity determination." The district court ordered the EPA to make a determination. A denial of a rulemaking petition is presumptively reviewable. Textual limits on agency action remain a prerequisite to jurisdiction. Congress has placed sufficient guideposts around the EPA's prerequisite decision not to make a necessity determination, therefore, there is subject matter jurisdiction. The Massachusetts v. EPA "reasonable explanation" rule applies to §1313(c)(4)(B). The EPA may decline to make a necessity determination if it provides an adequate explanation, grounded in the statute, for why it has elected not to do so. The district court's order is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-31214, 04-07-2015

13-31214
PATRICK E. HIGGINBOTHAM

Practice Areas: Environmental Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOHN REYES MATAMOROS, Petitioner Appellant, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent Appellee.

The appellant sought post-conviction relief on the ground that he is intellectually disabled and thus ineligible for the death penalty. The Court of Criminal Appeals was free to weigh the historical and observational evidence and its interpretation of the appellant's testimony more heavily than it weighed the scientific and expert reports presented. Even though the only competent scientific evidence in the record suggests that the appellant has deficits in numerous adaptive behavior areas, he has not clearly and convincingly shown that it was unreasonable for the Court of Criminal Appeals to conclude that the appellant did not satisfy the Briseno test for adaptive behavioral defects. The district court's denial of relief is affirmed. 5th U.S. Circuit Court of Appeals, No. 10-70016, 04-06-2015

10-70016
JENNIFER WALKER ELROD

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee v. MARCO ANTONIO ALVARADO-ZARZA, also known as Marco Antonio Alvarado Zarza, Defendant-Appellant

The appellant entered a conditional guilty plea in which he reserved the right to appeal the district court's determination regarding the legality of his traffic stop. The terms "turn" and "lane change," signify distinct actions. Texas Transportation Code §545.104(b), by its plain terms, does not apply to lane changes. Because of his mistaken assumption about the application of the 100-foot requirement, the officer's estimations of distance related to the point where the appellant changed lanes rather than the point where he turned. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-50745, 04-06-2015

13-50745
LESLIE H. SOUTHWICK

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CHRISTOPHER L. CRANE; DAVID A. ENGLE; ANASTASIA MARIE CARROLL; RICARDO DIAZ; LORENZO GARZA; FELIX LUCIANO; TRE REBSTOCK; FERNANDO SILVA; SAMUEL MARTIN; JAMES D. DOEBLER; STATE OF MISSISSIPPI, by and through Governor Phil Bryant, Plaintiffs [...] v. JEH CHARLES JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; JOHN SANDWEG, in His Official Capacity as Director of Immigration and Customs Enforcement; LORI SCIALABBA, in Her Official Capacity as Acting Director of United States Citizen [...]

Immigration agents and the state of Mississippi filed suit against the Department of Homeland Security challenging the Deferred Action for Childhood Arrivals program. Article III standing mandates that Mississippi must show a "concrete and particularized" injury that is "fairly traceable" to DACA. The state's assertion that DACA will cost the state money because the state provides social benefits to illegal immigrants is insufficient to show injury. Regarding the agents, the violation of one's oath alone is an insufficient injury to support standing. The burden of compliance with DACA is insufficient to satisfy the injury requirement of standing. The agents allegation of possible employment sanctions is not sufficient to confer standing: no evidence of actual sanctions was provided; the grant of discretion to the agents makes it highly unlikely that the agency would impose an employment sanction. The district court's dismissal for lack of subject-matter jurisdiction is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-10049, 04-07-2015

14-10049
W. EUGENE DAVIS

Practice Areas: Immigration Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

STEPHEN W. CLARK, Appellant v. DILLARD'S, INC. AND THE CAMPBELL AGENCY, INC., Appellees

The trial court awarded the appellant damages for unjust enrichment but ordered that he take nothing on his other claims. The unjust enrichment claim is barred by statute of limitations. Facts came into existence that authorized the plaintiff to seek a judicial remedy when the defendant first used the plaintiff's image for packaging without having paid for the right to use his image on product packaging. Because the claim of misappropriation of likeness was tried, the denial of summary judgment on that issue is not appealable. The trial court's judgment is reversed and rendered in part, and otherwise affirmed. Dallas Court of Appeals, No. 05-13-01503-CV, 03-25-2015

05-13-01503-CV
LANA MYERS

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

TAYLOR DWAYNE DERING, Appellant v. THE STATE OF TEXAS, Appellee

The appellant argues that the trial court erred when it refused to consider social media evidence at the hearing on his motion to transfer venue. The Facebook posts offered were not made by the appellant or sent by the appellant. All that the appellant offered in terms of authenticity were the names and photos as shown on the accounts of the owner and posters. Without more, this evidence is insufficient to support a finding of authenticity. The trial court's judgment is affirmed. Eastland Court of Appeals, No. 11-13-00076-CR, 03-26-2015

11-13-00076-CR
JOHN M. BAILEY

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

DAVID LEE CLEMENT, JR., Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the sufficiency of the evidence to prove that he had previously been convicted of two prior offenses of driving while intoxicated. The police officer indicated that the odor of alcohol was a factor he relied upon in making the decision to arrest appellant. However, the record is silent as to what other factors the officer may have relied upon in making the decision to arrest. Based on the very limited record developed at the hearing on the motion to suppress, the trial court erred in determining that the state met its burden of proof to show probable cause for appellant's arrest. The trial court's erroneous denial of the appellant's motion to suppress influenced his decision to enter a stipulation that he was driving while intoxicated, therefore the error is reversible. The trial court's judgment is reversed and remanded. Eastland Court of Appeals, No. 11-13-00055-CR, 03-20-2015

11-13-00055-CR
JOHN M. BAILEY

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

REGINALD LEVON COOK, Appellant v. THE STATE OF TEXAS, Appellee

The appellant's conviction for cocaine delivery arises out of the alleged sale of drugs to a confidential informant. At trial, video of a transaction between the covert agent and the appellant was admited. The fact that a covert agent served as the sponsoring witness for the video exhibit does not preclude it from serving as corroborating evidence because the jury was able to watch the video and make its own determination regarding the images depicted in the video. The trial court's judgment is affirmed. Eastland Court of Appeals, No. 11-12-00370-CR, 03-20-2015

11-12-00370-CR
JOHN M. BAILEY

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

TELESIS/PARKWOOD RETIREMENT I, LTD., TELESIS/PARKWOOD RETIREMENT, INC., TELESIS MANAGEMENT CORPORATION, PARTY DOING BUSINESS AS PARKWOOD RETIREMENT COMMUNITY, AND PARTY DOING BUSINESS AS THE TELESIS COMPANY, Appellants, v. EDNA ANDERSON, Appellee.

The appellants, owners and managers of a retirement community, appeal the judgment against them awarding $636,517 compensatory and $587,217 exemplary damages. The plaintiff was injured after she fell in her apartment in the community and after there was allegedly no response after she tried to use the emergency call system. The trial court did not abuse its discretion in refusing to submit a negligent undertaking instruction. The plaintiff presented a negligence cause of action based upon one or more duties arising from an ordinary duty of care. At a minimum, the plaintiff's fear of being without an emergency call button constitutes some direct evidence of the nature, duration, and severity of the plaintiff's mental anguish evidencing a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment or anger. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00029-CV, 03-20-2015

08-13-00029-CV
YVONNE T. RODRIGUEZ

Practice Areas: Torts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee v. ELMER GOMEZ-ALVAREZ, Defendant-Appellant

The appellant challenges the district court's imposition of a 16-level sentencing enhancement based on a prior conviction for a drug trafficking offense. For a prior conviction to qualify as a "drug trafficking offense," the government must establish that the substance underlying that conviction is covered by the Controlled Substances Act. The district court's finding that the complaint was the charging document for the prior California offense was plausible, for reasons including that the appellant and his probation officer referred to it as the charging instrument. The complaint expressly charged possession of heroin, which qualifies for enhancement. The sentence is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-40059, 03-31-2015

14-40059
PATRICK E. HIGGINBOTHAM

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

UNIVERSITY OF TEXAS SYSTEM, Appellant v. LETITIA THOMAS, Appellee

The trial court granted summary judgment for an employee who argued that her travel to work, under the circumstances of this case, fell within the definition of "course and scope of employment" because her employer — a state university — provided free parking and free use of the shuttle bus on which her injury occurred. The university, as a state agency, retains its sovereign immunity from a claim for attorney's fees. As the party that filed the suit for judicial review of the Workers' Compensation Division's administrative decision in the district court, the university is "[t]he party who initiated a proceeding" pursuant to Texas Labor Code §410.258(a). Because the university did not comply with the statutory notice requirements, the trial court's judgment is void. The appeal is dismissed for lack of jurisdiction. Houston's 1st Court of Appeals, No. 01-14-00244-CV, 03-26-2015

01-14-00244-CV
Evelyn V. Keyes

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

LYDELL ANTON JONES, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the admission of text messages as hearsay because they stated the names of banks, amounts of money, and what appeared to be account numbers. The text messages were not offered to show the truth of the matters asserted because they were not used to prove that particular amounts of money were deposited in particular accounts. The text messages were offered to show a course of conduct preceding the arrest in this case in which large sums of money were transferred to various bank accounts in exchange for the shipment of packages from California to Texas. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00920-CR, 03-31-2015

01-13-00920-CR
Michael Massengale

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

VINCE POSCENTE INTERNATIONAL, INC., VINCE POSCENTE, AND MICHELLE POSCENTE, Appellants v. COMPASS BANK, Appellee

The trial court granted summary judgment in favor of a bank in its suit on a note. The appellants argue that the appellee failed to show "good cause" for admission of copies of the promissory note as required by Collin County Local Rule 4.1. The local rule may not be read to conflict with Texas Rule of Civil Procedure 166a(c). Homestead waivers in the guaranties are severable. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-14-00165-CV, 03-19-2015

05-14-00165-CV
DAVID SCHENCK

Practice Areas: Banking and Financial Institutions

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

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

The appellant was charged with alleged bribery under Texas Penal Code §§36.02(a)(1) and 36.02(a)(2). The state failed to prove that payments made were something other than political contributions. Under the definition of "political contribution" in the election code, no exception is made for covert indirect transfers of money. The payments did not need to be transferred directly to the candidate's campaign account, nor did it need to be properly reported in campaign filings, in order for it to constitute a political contribution. The appellant's convictions are reversed and judgments of acquittal are rendered. Dallas Court of Appeals, No. 05-13-01010-CR, 03-25-2015

05-13-01010-CR
ELIZABETH LANG-MIERS

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

ALBERT G. HILL III, Appellant v. ALBERT G. HILL JR., AND DANIEL L. JACKSON, RECEIVER FOR HILL 3 INVESTMENTS, LLC, Appellees

This is an appeal from a final summary judgment ordering the termination and winding up of a limited liability corporation. The trial court granted the receiver's applications for fees and expenses incurred in this appeal. These orders were signed after plenary power over the final judgment had expired. At least as long as the main case is on appeal, the trial court has jurisdiction to appoint, control, modify, or otherwise deal with a receivership related to the main case. The trial court has power to modify an order discharging a receiver and to reinstate or authorize the receiver to act if new circumstances arise after the order discharging the receiver and while the main case is on appeal. The trial court's judgment is affirmed and writ of mandamus is denied. Dallas Court of Appeals, No. 05-13-00732-CV, 03-27-2015

05-13-00732-CV
CRAIG STODDART

Practice Areas: Torts , Business Torts

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

LAZARUS IROH, ANDREW OKAFOR, LUI AKWURUOHA, CALEB OKEKE, AND HENRY NNABUGWU, Appellants v EMMANUEL IGWE, Appellee/Cross Appellant v. OBOWU FOUNDATION DALLAS, INC. AND OBOWU UNION DFW, Cross Appellees

The appellants contend that the plaintiff’s pleading of his defamation claim does not comport with the trial court's judgment. The petition is sufficient if it gave fair and adequate notice of the facts upon which he based his defamation claim so that appellants were able to prepare a defense to that claim. The pleadings need not mirror the proof so long as the variance between them is not substantial and misleading. The trial court’s judgment is affirmed. Dallas Court of Appeals, No. 05-13-00027-CV, 03-19-2015

05-13-00027-CV
DAVID L. BRIDGES

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

THE VILLAGE OF TIKI ISLAND, Appellant v. PREMIER TIERRA HOLDINGS, INC., Appellee

The appellant, a city, contends that the trial court erred in denying the city's plea to the jurisdiction because there is no justiciable controversy. The landowner's request for declaratory relief fails to present a justiciable controversy because the record does not disclose the reasons why the city denied a 2010 plat application; the landowner has never requested that the city certify the reasons for the denial; no plat or permit applications have since been denied for any specified reasons; and the landowner has not challenged the city's denial of its plat application in any proceeding. A judgment of dismissal with prejudice is rendered. Houston's 14th Court of Appeals, No. 14-14-00629-CV, 03-24-2015

14-14-00629-CV
Ken Wise

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

WALLER MARINE, INC., Appellant v. SCOTT M. MAGIE AND THE POWER IN.COM, LLC, Appellee

The trial court granted the special appearance of two non-resident defendants, an individual and his consulting service, in this case alleging breach of contract. Whether the parties' agreement created a partnership bears upon the question of liability for the alleged breach, not upon the question of jurisdiction. The plaintiff does not actually allege any liability on the part of the consulting service, therefore any contacts between the consulting service and Texas are not substantially connected to the operative facts of the litigation. Casas Grandes does not apply here, because the amended petition does not contain any allegations of wrongdoing by the appellees. Cases supporting a jurisdiction-by-profit theory have been overturned to the extent they do not require a substantial connection between the non-resident defendant's contacts and the operative facts of the litigation. The trial court's order is affirmed. Houston's 14th Court of Appeals, No. 14-14-00181-CV, 03-26-2015

14-14-00181-CV
J. Brett Busby

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

KERRY DEAN PARKS, Appellant v. THE STATE OF TEXAS, Appellee

Appellant challenges his conviction of allegedly causing serious bodily injury to a child. Trial counsel was not deficient in failing to object to evidence of an extraneous offense: evidence of the complainant's head injuries was necessary as same-transaction contextual evidence in order for the jury to understand how the investigation into complainant's injuries came about, and physician testimony was arguably relevant to rebut a defensive theory that the complainant's injuries were caused by a dog. The record is silent regarding why trial counsel didn't request a limiting instruction. Any error in exempting a testifying psychologist from the witness sequestration rule did not influence the jury's deliberations to appellant's detriment or had but a slight effect. The fact that a police officer felt the need to stay late at the hospital with the complainant speaks to the seriousness of the child's injuries and was therefore relevant. Thet trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00554-CR, 03-19-2015

14-13-00554-CR
Martha Hill Jamison

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JAMES E. ARCHER, JR. AND GIDGET ARCHER, Appellants v. DDK HOLDINGS LLC, DIANE E. CAMPBELL, AND HAYES LEASING COMPANY, INC., INDIVIDUALLY AND D/B/A HAYES TRUCK GROUP, Appellees

This is an appeal from a nonjury trial of two sets of competing breach-of-contract claims between the parties to a commercial lease and the parties to a sublease of the same property. The contract required the tenant to pay "additional rent" equal to the property's ad valorem taxes. A breach of the contractual obligation to pay a certain amount necessarily gives rise to damages in the unpaid amount. Because these are general damages, the plaintiff was not required to specifically plead for them. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-14-00017-CV, 03-24-2015

14-14-00017-CV
Tracy Christopher

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

THE WILLIARD LAW FIRM, L.P., Appellant v. JOHN SEWELL, Appellee

A law firm appeals from the trial court's grant of a judgment notwithstanding the verdict favoring the plaintiff, a former client. The jury found, inter alia, that in the exercise of reasonable diligence, the plaintiff should have discovered the alleged breach of fiduciary duty more than four years before he filed suit, based on his initial payment on a promissory note. Even if the jury was required to accept as true the plaintiff's testimony regarding his education and physical abilities, it still could have reasonably deduced that he should have discovered the nature of his injuries by the time he began making payments on the promissory note. The trial court erred in disregarding this jury finding. The trial court's judgment is reversed and a take-nothing judgment is rendered. Houston's 14th Court of Appeals, No. 14-14-00621-CV, 03-26-2015

14-14-00621-CV
Martha Hill Jamison

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

STEVEN STEPTOE AND PATRICIA CARBALLO, Appellants v. JPMORGAN CHASE BANK, N.A., Appellee

The appellant's challenge the trial court's judgment permitting non-judicial foreclosure on a home equity loan. The Kaspar rule applies to a home equity lien. The underlying purpose of the Kaspar rule is to "prevent a borrower from depriving its lender of a choice of remedies." When the security instrument in a home-equity loan contains a power of sale provision, the lender has a choice of remedies. A home-equity lender, who has contracted for the right of non-judicial foreclosure under a power of sale provision, may choose to pursue the special procedure found in Texas Rule of Civil Procedure 736 to obtain an order allowing it to proceed with a non-judicial foreclosure under the Texas Property Code. Thus, the bank was not required to assert a compulsory counterclaim in a previous action to preserve the foreclosure claim that it has here asserted. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-14-00813-CV, 03-19-2015

01-14-00813-CV
Laura Carter Higley

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

John Christopher DOMINGUEZ, Appellant v. The STATE of Texas, Appellee

The appellant argues that he was entitled to a mitigating instruction under Texas Penal Code §20.04(b). To satisfy the voluntary release provision, the defendant must have performed some overt and affirmative act that brought home to the complainant that she had been fully released from captivity. Although the complainant and her friend both used the phone and left the motel room where the complainant was allegedly sexually assaulted, these actions are more consistent with escape rather than voluntary release. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00789-CR, 03-25-2015

04-13-00789-CR
Patricia O. Alvarez

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

GALVESTON CENTRAL APPRAISAL DISTRICT, Appellant v. VALERO REFINING - TEXAS L.P., Appellee

A jury found that portions of a refinery appraised at approximately $527 million were unequally appraised, and that the "Equal and Uniform Value" of those portions was approximately $337 million. The appraisal district appeals. Even if Covert were a jurisdictional limitation that foreclosed unequal-appraisal challenges to the value of only some property tax accounts within a multi-account facility, it would not require dismissal here because the taxpayer alleged that the overall appraised value of the entire refinery is unequal. The taxpayer's experts offered no reason for removing the pollution control equipment from the equal-and-uniform analysis other than that the taxpayer had told them to do so, therefore the jury's finding is not supported by legally sufficient evidence. The trial court's judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00434-CV, 03-31-2015

14-13-00434-CV
J. Brett Busby

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

CONOCOPHILLIPS COMPANY, Appellant v. NOBLE ENERGY, INC., Appellee

This case concerns whether the appellee owes indemnification to the appellant for underlying environmental claims based on a 1994 Exchange Agreement and Assignment and Bill of Sale involving the exchange of oil and gas assets in Louisiana. The trial court did not abuse its discretion by allowing the appellee to withdraw certain admissions. Even a slight excuse will suffice to withdraw admissions, especially where delay or prejudice will not result against the opposing party. The agreement to purchase "rights and interests in and to all contracts" is not automatically an agreement to purchase all obligations and liabilities. The exchange agreement is an executory contract; the mutual indemnification obligations, along with mutual responsibilities regarding environmental cleanup, constituted material obligations. The trial court's judgment is reversed, rendered, and remanded. Houston's 14th Court of Appeals, No. 14-13-00884-CV, 03-26-2015

14-13-00884-CV
Marc W. Brown

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

GRANT PRIDECO, INC. AND AGGREGATE PLANT PRODUCTS CO., Appellants V. EMPEIRIA CONNER L.L.C., EMPEIRIA CONNER II L.L.C., AUBREY CONNER, LEGG MASON SBIC MEZZANINE FUND, L.P., AEA MEZZANINE FUND, L.P., AEA MEZZANINE (UNLEVERAGED) FUND, L.P., PAUL FRONTIER HOLDINGS, L.P., JOE FIAMINGO, WES DEHAVEN, ALEX SUAREZ, AND EMPEIRIA CONNER L.L.C., IN ITS CAPACITY AS THE SELLER REPRESENTATIVE, Appellees

The parties dispute the meaning of a contractual indemnity provision. The clause refers to products liability claims that first arose prior to the closing date. The language "first arose" in the indemnity clause has a broader meaning than "accrue." The trial court's judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00644-CV, 03-19-2015

14-13-00644-CV
Martha Hill Jamison

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

SHAWN MAYREIS, Appellant v. THE STATE OF TEXAS, Appellee

This is an appeal from a conviction for capital murder of a child under the age of 10. Based on testimony from the medical examiner, anthropologist, and treating physician that the child's injuries resulted from violent and intentional action, the jury could have concluded that the child could not have suffered those injuries unless appellant inflicted them knowingly or intentionally. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00769-CR, 03-24-2015

14-13-00769-CR
Kem Thompson Frost

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

IN THE INTEREST OF C.D.B., A MINOR CHILD

The trial court dismissed the appellant's attempted "Petition to Modify the Parent Child Relationship" that claimed he paid child support while the child lived with him. The portion of the appellant's earlier petition requesting reimbursement or offset relative to arrearages presents a live controversy. The appellee's plea to the jurisdiction was narrowly based on the contention that the child had been emancipated; the plea did not address the appellant's request for reimbursement or offset against a claim for arrearages. Because the appellant pleaded for reimbursement or offset against a claim for arrearages, the appellee's plea failed to negate the trial court's jurisdiction. The trial court's order is reversed and remanded in part, and otherwise affirmed. Houston's 14th Court of Appeals, No. 14-13-00718-CV, 03-24-2015

14-13-00718-CV
John Donovan

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

IN THE INTEREST OF O.A.P., A CHILD

The appellant filed a timely motion to extend the deadline for filing a notice of appeal. The document is a bona fide attempt to invoke the appellate court's jurisdiction. Although it's not titled "notice of appeal," implicit within it is the notion that the party wants to prosecute an appeal. A previous order dismissing the appeal for want of jurisdiciton is vacated and the appeal is reinstated. Amarillo Court of Appeals, No. 07-15-00040-CV, 03-20-2015

07-15-00040-CV
Brian Quinn

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

DAVIE C. WESTMORELAND D/B/A ALLEGHENY CASUALTY CO. BAIL BONDS, APPELLANT v. RICK STARNES D/B/A STARNES & ASSOCIATES AND THOMAS BEVANS, APPELLEES

The trial court excluded the testimony of an expert due to the appellant's failure to provide the general substance of the expert's mental impressions and opinions and a brief summary basis for them within the discovery response. Opting to not depose a witness does not vitiate any claim of surprise or prejudice. A litigant should be able to rely on discovery responses provided by his opponent in determining what other discovery, if any, to pursue. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00364-CV, 03-24-2015

07-13-00364-CV
Brian Quinn

Practice Areas: Evidence

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

IN THE MATTER OF THE GUARDIANSHIP OF LINDA JANE HART

The appellant in this guardianship matter attempts to attack the denial of her motion to recuse. A party may appeal from an order denying a motion to recuse a judge of a statutory probate court only after final judgment has been entered. The appeal is dismissed for want of jurisdiction. Fort Worth Court of Appeals, No. 02-14-00318-CV, 03-26-2015

02-14-00318-CV

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

THOMAS ALLEN HAMMER, APPELLANT v. THE STATE OF TEXAS, STATE

The trial court revoked appellant's deferred adjudication community supervision, adjudicated his guilt of the offense of burglary of a habitation, and sentenced him to 15 years' confinement. In resolving an Eighth Amendment disproportionality complaint, the gravity of the offense is first compared to the severity of the sentence. The original offense is relevant, not the community supervision violations, in making this comparison. Nothing in the record shows that the 15-year sentence imposed in this case constitutes a grossly disproportionate sentence or is cruel and unusual punishment. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-13-00480-CR, 03-26-2015

02-13-00480-CR
LEE ANN DAUPHINOT

Practice Areas: Appellate Law - Criminal

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

CTL/THOMPSON TEXAS, LLC, APPELLANT v. STARWOOD HOMEOWNER'S ASSOCIATION, INC., APPELLEE

The trial court denied the appellant's motion to dismiss. The appellant asserted the inadequacy of the appellee's prior certificate of merit filed in the prior suit that had been dismissed without prejudice. The plain language of Texas Civil Practice and Remedies Code §150.002(e) authorizes a dismissal without prejudice; a dismissal without prejudice does not entitle the appellant to an automatic dismissal of subsequently refiled claims. The trial court's order is affirmed. Fort Worth Court of Appeals, No. 02-14-00236-CV, 03-26-2015

02-14-00236-CV
SUE WALKER

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

TYWRON PIERRE THOMAS A/K/A TYRONE PIERRE THOMAS, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant argues that the trial court reversibly erred and denied him effective assistance of counsel by refusing to strike a witness' direct-examination testimony when he invoked the Fifth Amendment in response to questions on cross-examination. Through skillful cross-examination, appellant's counsel was able to elicit the information the witnes had announced that he would not reveal when he invoked his Fifth Amendment protection, that is, that the witness allegedly participated in a scheme to cheat the government. In light of the appellant's ability to secure the relevant evidence, any error was harmless beyond a reasonable doubt. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-13-00553-CR, No. 02-13-00554-CR, 03-26-2015

02-13-00553-CR, NO. 02-13-00554-CR
LEE ANN DAUPHINOT

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Tom Bennett and James B. Bonham Corp., Appellants v. Larry Wayne Grant, Appellee

This is a substituted opinion in a case alleging malicious prosecution. In determining that a ratio of 3:1 exemplary damages compared to the combined actual and potential damages passes constitutional muster, the court concludes that four of the five reprehensibility factors weigh in favor of punitive damages; potential harm is relevant in evaluating the ratio to exemplary damages, but even considering potential harm, the resulting ratio of 5:1 likely exceeds constitutional boundaries; there are no comparable civil sanctions, but the state has a significant interest in protecting the integrity of the criminal justice system and would vigorously prosecute, fine, and imprison persons who engaged in such behavior. The trial court's judgment is affirmed as reformed. Austin Court of Appeals, No. 03-11-00669-CV, 03-20-2015

03-11-00669-CV
Scott K. Field

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

RONNIE ANDERSON, Appellant v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellee

An inmate appeals the trial court's grant of a plea to the jurisdiction. Caselaw interpreting the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code as they applied to actions filed in trial courts also apply to actions filed in an appellate court. When an inmate fails to comply with the affidavit requirements, the court may assume that the current action is substantially similar to one previously filed by an inmate and thus is frivolous. The appeal is dismissed. Waco Court of Appeals, No. 10-14-00326-CV, 03-19-2015

10-14-00326-CV
TOM GRAY

Practice Areas: Appellate Law - Criminal

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN THE INTEREST OF N.G.J., A CHILD

The appellant challenges the termination of his parental rights to a child. Termination under Texas Family Code Section 161.001(1)(P) is not supported; evidence of resulting danger from the appellant's alleged drug use and evidence regarding completion of a court-ordered substance abuse program is absent. Termination is not supported under §161.001(1)(F), because there was no evidence regarding the appellant's ability to pay support during the statutory time period. The trial court's order is reversed and rendered. Texarkana Court of Appeals, No. 06-14-00083-CV, 03-26-2015

06-14-00083-CV
Josh R. Morriss, III

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN THE INTEREST OF X.R.L., S.J.S., AND Z.N.S., CHILDREN

The appellant challenges the termination of her parental rights to three children. Evidence regarding the Holley factors includes limited income and a lack of family support, an alleged history of drug abuse, and a continued relationship with a man who allegedly engaged in sexual misconduct with one of the children. The Holley factors support termination. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00090-CV, 04-01-2015

06-14-00090-CV
Bailey C. Moseley

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

MARTIN SUAREZ JUAREZ, Appellant v. THE STATE OF TEXAS, Appellee

The appellant argues that a statement by a district attorney's office investigator was hearsay. Testimony about immigration status based upon an AIS system report falls into the Texas Rule of Evidence 803(8)(B) exception. The trial court's judgment is affirmed as modified to reflect conviction under the correct statute. Texarkana Court of Appeals MARTIN SUAREZ JUAREZ, Appellant v. THE STATE OF TEXAS, Appellee, No. 06-14-00052-CR, 03-25-2015

06-14-00052-CR
Ralph K. Burgess

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

PRISCILLA SANDERS, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant, as a justice of the peace, signed an incomplete "emergency magistrate order for protection" and gave it to a person seeking custody of a child. The appellant challenges the sufficiency of the evidence to establish that she made a governmental record "with knowledge of its falsity." There is no evidence in the record reflecting that appellant knowingly made a governmental record that she knew to contain false information. The trial court's judgment is reversed and a judgment of acquittal is rendered. Amarillo Court of Appeals, No. 07-14-00038-CR, 03-18-2015

07-14-00038-CR
Mackey K. Hancock

Practice Areas: Criminal Law

SUPREME COURT OF TEXAS

PLAINSCAPITAL BANK, PETITIONER, v. WILLIAM MARTIN, RESPONDENT

The court of appeals reversed the judgment of the trial court in this foreclosure case. Texas Property Code § 51.003 applies; the bank's argument, that the Legislature's use of the word "the" when referencing deficiency limits the application of §51.003 to deficiencies calculated using the precise foreclosure sales price, is rejected. "Fair market value" in §51.003 does not equate precisely to the common, or historical, definition; rather, it means the historical definition as modified by evidence §51.003(b) authorizes the trial court to consider, to the extent such evidence is not subsumed in the historical definition. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 13-0337, 03-27-2015

13-0337
Phil Johnson

Practice Areas: Banking and Financial Institutions

SUPREME COURT OF TEXAS

SOUTHWESTERN BELL TELEPHONE, L.P. D/B/A AT&T TEXAS, PETITIONER, v. ED EMMETT, EL FRANCO LEE, JACK MORMAN, STEVE RADACK, AND R. JACK CAGLE, AS MEMBERS OF THE HARRIS COUNTY COMMISSIONERS' COURT; MICHAEL MARCOTTE, AS DIRECTOR OF THE CITY OF HOUSTON DEPARTMENT OF PUBLIC WORKS AND ENGINEERING; AND CITY OF HOUSTON, RESPONDENTS

The trial court determined, and the court of appeals affirmed, that a flood control district was not responsible for the relocation costs of public utility facilities attached to a bridge designated for demolition. Absent the district's flood control plan, the bridge would not have been scheduled to be demolished and the utility would not need to relocate its facilities. The district caused the relocation of the facilities to become necessary within the meaning of Texas Water Code §49.223. The commissioners clear repudiation of the district's statutory obligation is in violation of their duty, therefore declaratory relief is not barred by immunity even though it would compel prospective payment. The failure to to perform the ministerial task of authorizing payment was ultra vires. The court of appeals' judgment is reversed and remanded in part. The portion of the judgment in favor of a city employee is affirmed. Texas Supreme Court, No. 13-0584, 03-20-2015

13-0584
Phil Johnson.

Practice Areas: Public Utilities

SUPREME COURT OF TEXAS

IN RE MICHAEL ALLYN CONNER AND IESI SOLID WASTE SERVICES, RELATORS

The trial court denied the defendant's motion to dismiss for want of prosecution. The court of appeals denied mandamus relief. The plaintiff's failure to provide good cause for their nearly decade-long delay mandates dismissal under Texas Rule of Civil Procedure 165a(2). The suit well exceeded the time frame set forth in Texas Rules of Judicial Administration 6.1(b)(1). Absent any reasonable explanation for the delay, the trial court clearly abused its discretion by disregarding the conclusive presumption of abandonment. The defendant's petition for writ of mandamus is conditionally granted. Texas Supreme Court, No. 14-0177, 03-20-2015

14-0177

Practice Areas: Appellate Law - Civil

SUPREME COURT OF TEXAS

RANDALL KALLINEN AND PAUL KUBOSH, PETITIONERS, v. THE CITY OF HOUSTON, RESPONDENT

Before the attorney general ruled on whether city documents were exempt from a Public Information Act request, the requestor filed suit for a writ of mandamus to compel the city to disclose. The AG then closed his file. The trial court granted summary judgment for the requestor, and awarded attorneys' fees. The court of appeals dismissed the suit for want of jurisdiction. The requirement that a governmental body seek a ruling from the Attorney General when withholding requested information is a check on the governmental body, not a remedy for the requestor to exhaust. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 14-0015, 03-20-2015

14-0015

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

THE STATE OF TEXAS, Appellant, v. EMERITUS CORPORATION, Appellee.

The office of the attorney general filed suit against a nursing home following the death of a resident. The trial court dismissed the suit on the grounds that it was a health care liability claim, and the state had failed to file an expert report. The state, acting in its sovereign capacity on behalf of the public interest, seeking the imposition of statutory civil penalties and injunctive relief, does not constitute a claimant seeking damages under the Texas Medical Liability Act. The trial court's judgment is reversed and remanded. Corpus Christi Court of Appeals, No. 13-13-00529-CV, 03-26-2015

NUMBER 13-13-00529-CV
ROGELIO VALDEZ

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Gulf Chemical and Metallurgical Corporation, Appellant v. Glenn Hegar, Comptroller of Public Accounts of the State of Texas; and Ken Paxton, Attorney General of the State of Texas, Appellees

The trial court found that the taxpayer's methodology used for calculating its franchise tax apportionment factor was not proper and entered a final judgment concluding that the taxpayer was not entitled to any refund. The taxpayer is not bound by its characterization of its metals credits -- discounts provided to its customers -- on its federal tax returns. The characterization of the metals credits turns on the substance of the transactions and the metals credits must properly be considered "allowances" under Texas tax law and should operate to reduce gross receipts. The trial court's judgment is reversed and remanded. Austin Court of Appeals, No. 03-12-00772-CV, 03-26-2015

03-12-00772-CV
David Puryear

Practice Areas: Taxation

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALMOND J. RICHARDSON, Defendant-Appellant

The appellant was retried because his right to self-representation was violated in the first trial. He was found guilty at the second trial. The appellant challenges the district court's decision to allow into evidence the prior testimony of a government witness at the first trial, who was unavailable at the second trial. if the defendant had an adequate opportunity for cross-examination at the first trial, then the witness's prior testimony may be introduced in the second trial without offending the Confrontation Clause, at least when the defendant has not claimed that he received ineffective assistance of counsel at the first trial. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-31190, 03-20-2015

13-31190
EDWARD C. PRADO

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TAMMY BRYANT, Plaintiff - Appellee v. TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES; KIM LITTLETON, Defendants - Appellants

In this FMLA claim against a state agency and the plaintiff's supervisor, the district court denied the defendants motion for summary judgment based on immunity. Though there is no final judgment in this case, the collateral order doctrine provides jurisdiction to hear an interlocutory appeal of an order denying a claim of Eleventh Amendment immunity. States may assert an Eleventh Amendment immunity defense against self-care claims. The Ex parte Young exception does not apply to suits against state agencies; this narrow exception is limited to certain claims against state employees acting in their official capacities. Because the plaintiff took all the FMLA leave to which she was entitled, her interference claim against the supervisor fails. The district court's orders are reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 14-20278, 03-25-2015

14-20278
LESLIE H. SOUTHWICK

Practice Areas: Labor and Employment

SUPREME COURT OF TEXAS

G.T. LEACH BUILDERS, LLC, ET AL., PETITIONERS, v. SAPPHIRE V.P., LP, RESPONDENT

The trial court denied the defendants motions to compel arbitration in this dispute between a property developer and several parties. The court of appeals erred by deciding a question of procedural arbitrability -- questions of construction and application of limits on an agreement. The parties' dispute over the meaning and effect of the contractual deadline does not touch upon the issue of whether an enforceable agreement to arbitrate exists. However, were a party to contend that a contractual deadline renders the agreement to arbitrate unconscionable or that the deadline operates to limit the scope of the claims the parties agreed to arbitrate, those contentions might raise issues of substantive arbitrability for the courts to decide. The court of appeals' judgment is affirmed in part, reversed in part, and remanded. Texas Supreme Court, No. 13-0497, 03-20-2015

13-0497
Jeffrey S. Boyd

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

SUPREME COURT OF TEXAS

NABORS WELL SERVICES, LTD. AND JOE FUENTES, PETITIONERS, v. ARMANDO LOERA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JOSEFINA LOERA, JOINED BY MORAYMA LOERA, RESPONDENTS

Although the jury awarded the plaintiffs approximately $450,000 in damages in this case stemming from a vehicle collision, the trial court entered a take-nothing judgment, presumably based on the jury's answer regarding the non-use of seatbelts. The court of appeals concluded admission of evidence of nonuse of seat belts was harmful error and remanded the case for a new trial. In light of Romero, holding that relevant evidence of use or nonuse of seat belts is admissible for the purpose of apportioning responsibility in civil suits, the court of appeals' judgment is vacated and remanded. Texas Supreme Court, No. 13-0126, 03-20-2015

13-0126

Practice Areas: Torts

SUPREME COURT OF TEXAS

DORIS VIRGINIA MCGREGOR STRIBLING, MARTHA LEE MCGREGOR, AND FRANK BOBBITT MCGREGOR, JR., PETITIONERS, v. MILLICAN DPC PARTNERS, LP, AND PEACH CREEK PARTNERS, LTD., RESPONDENTS

Adjacent landowners dispute ownership of a 34.28-acre tract. The trial court found that the plaintiff did not have record title but the court of appeals' reversed and remanded for consideration of the opposing party's adverse possession claim. The metes-and-bounds description in a 1973 Deed does not include the 34.28-acre tract, but the general description, referring to a previous deed, does. Whenever the metes-and-bounds description conflicts with other language in the deed, the specific description controls, except where it is apparent that the parties intended the general description to control. The court of appeals' judgment is reversed and the trial court's judgment is affirmed. Texas Supreme Court, No. 14-0500, 03-20-2015

14-0500

SUPREME COURT OF TEXAS

JOHN KLUMB, VERONICA MCCLELLAND, VIVIAN MONTEJANO, JOHN GONZALEZ, ANITA ROBLES, AND CHARMAINE PILGRIM, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, AND THE CITY OF HOUSTON, PETITIONERS, v. HOUSTON MUNICIPAL EMPLOYEES PENSION SYSTEM, BARBARA CHELETTE, DAVID L. LONG, LENARD POLK, ROY SANCHEZ, AND LONNIE VARA, RESPONDENTS

The city of Houston attempted to remove a division of employees from the pension system by forming quasi-governmental entities to perform the same governmental functions using the same employees. Contemporaneously with the city's restructuring efforts, the pension board determined that those employees remained under the city's effective control and payroll and therefore fell within the ambit of the statutory definition of "employee," which defines an individual's status as a pension system member. The pension board's actions were not ultra vires. Because any differentiation between employees is rationally related to legitimate governmental objectives, the petitioners' equal-protection claims fail as a matter of law. The petitioners have no vested rights in the retirement benefits and pension-plan contributions at issue. The court of appeals' judgment is affirmed. Texas Supreme Court, No. 13-0515

13-0515
Eva M. Guzman

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOSE ROBERTO PACHECO-ALVARADO, also known as Jose Roberto Alvarado, also known as Jose Robert Alvarado-Alvarado, Defendant Appellant.

Appellants challenge the district court's sentences. The district court imposed a monthly payment schedule as a proportion of future prison wages conditioned upon those wages materializing in fact. The district court has the authority to impose a fine and provide for a payment schedule. A sentencing court may base a conclusion about a defendant's future ability to pay a fine on prospective prison wages. The condition requiring payment of any remaining balance during the term of a defendant's supervised release is read in light of the condition of supervision requiring him to obtain regular, lawful employment, unless excused, thus the condition does not require the defendant to obtain unlawful employment. The sentences are affirmed, with one sentence remanded for correction of a clerical error. 5th U.S. Circuit Court of Appeals, No. 13-31083, No. 14-30478, 03-30-2015

13-31083, No. 14-30478
PATRICK E. HIGGINBOTHAM

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ANGUS CHEMICAL COMPANY, Plaintiff - Appellee v. GLENDORA PLANTATION, INCORPORATED, Defendant - Appellant

This contract dispute involves a right-of-way easement option involving the plaintiff-appellee, a chemical company, and the defendant-appellant, landowners. The appellant contends that one cannot "replace" something without removing the original while the appellee claims that "replace" does not impart an obligation to remove the substitute's predecessor. The term is not clear and unambiguous. The installation of fiber optic ables was allowed by the agreement; just because the fiber optic cables are not connected does not mean that they would not be "convenient" if and when they are connected. The partial summary judgment is vacated in part, and affirmed and remanded in part. 5th U.S. Circuit Court of Appeals, No. 14-30416, 03-24-2015

14-30416
FORTUNATO P. BENAVIDES

Practice Areas: Contracts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MICAH B. PHILLIPS, Plaintiff - Appellant v. CITY OF DALLAS, Defendant - Appellee

An employee of the Dallas Fire Department was terminated for allegedly violating a city law preventing city employees from seeking office in any county overlapping the city of Dallas. Candidacy alone constitutes speech on a matter of public concern. The provision is not unconstitutional as applied under Letter Carriers -- the employee's sphere of permissible political activity dwarfs the corresponding range afforded the mailmen in Letter Carriers. The appellant's overbreadth challenge is controlled by Broadrick, which upheld a far more expansive state statute. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-10379, 03-27-2015

14-10379
CARL E. STEWART

Practice Areas: Constitutional Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN FRANCISCO MARTINEZ-LUGO, Defendant-Appellant.

The appellant challenges the district court's application of a 16-level sentence enhancement pursuant to U.S. Sentencing Guidelines §2L1.2(b)(1)(A)(i) for his having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months based upon the appellant's 2002 Georgia conviction for alleged possession with intent to distribute marijuana. Moncrieffe does not control this case given that its holding rested on the specific requirement of the INA's aggravated felony provision requiring that the state offense would constitute a felony under the federal drug laws. Under a straightforward application of the categorical approach, the Georgia offense has the same elements as the generic possession with intent to distribute offense. The sentence is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40924, 03-27-2015

13-40924

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff -Appellee v. JESSE TYRONE CHAVFUL, Defendant-Appellant

Charges against the defendant arose from an alleged negotiation to sell drugs in November 2011 and an alleged actual sale in June 2012. The appellant entered into a cooperation agreement. The government argued that the two transactions were separate, and the district court sentenced the defendant accordingly. The government referenced the information protected by a proffer agreement in order to advocate that the defendant be held accountable for a sentencing enhancement unrelated to the specific protected conduct. The government supplied the protected information to "fill the gap" between the two transactions in its narrative of the underlying facts. Because the government breached the plea agreement, the sentence is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-11173, 03-20-2015

13-11173
EDWARD C. PRADO

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DONNIKA IVY; BERNARDO GONZALEZ; TYLER DAVIS, as next friend of Juana Doe, a minor; ERASMO GONZALEZ; ARTHUR PROSPER, IV, Plaintiffs - Appellees v. COMMISSIONER MICHAEL WILLIAMS, in his official capacity as head of the Texas Education Agency, Defendant - Appellant

The plaintiffs request injunctive and declaratory relief requiring the Texas Education Agency to bring driver education into compliance with the Americans with Disabilities Act and Rehabilitation Act. The lack of a contractual or agency relationship between driver education schools and the TEA cuts strongly against holding that driver education is a program of the TEA. Public entities are not responsible for ensuring the ADA compliance of even heavily-regulated industries. The district court's order denying the TEA's motion to dismiss is reversed and rendered. 5th U.S. Circuit Court of Appeals, No. 14-50037, 03-24-2015

14-50037
EDITH BROWN CLEMENT

Practice Areas: Civil Rights

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

SENIOR CARE CENTERS, LLC AND MIDLAND SCC, LLC, Appellants v. CYNTHIA SHELTON AND BETSY TAYLOR, BOTH INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF CAROLYN MCCAIN, DECEASED, Appellees

The appellant, a nursing home, appeals the trial court's decision not to grant a dismissal for failure to file an adequate expert report. The patient, who was not to be fed by mouth, died following respiratory distress. Food particles were found in her airway. An expert's assertion of a breach of the standard of care may not be based solely on evidence of a bad result. A description of only a possibility of causation does not constitute a good faith effort to comply with the statute. The trial court's judgment is reversed and remanded for dismissal. Dallas Court of Appeals, No. 05-14-00586-CV, 03-06-2015

05-14-00586-CV
DAVID EVANS

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

JANE MCCURLEY BACKES D/B/A BACKES QUARTER HORSES AND TRACY JOHNS, Appellants v. KAREN MISKO AND MISKO QUARTER HORSES, LLC, Appellees

The appellants challenge the trial court's denial of their motions to dismiss under the Citizens Participation Act. The parties, competitors in the quarter horse breeding business, filed various claims and counterclaims regarding online communications and alleged communications with a genetics laboratory. Asking others about information related to a recognized psychological disorder is clearly an inquiry into someone's state of mind, which falls under the definition of "health," and falls within the statutory definition of "matter of public concern." Although the post did not refer to the plaintiff by name, the evidence is clear and specific to establish the post concerned her because those who knew and were acquainted with her understood from reading the post that it referred to her. A rhetorical question, as opposed to rhetorical hyperbole, may be actionable. The trial court's orders are affirmed in part, reversed and rendered in part, and remanded in part. Dallas Court of Appeals, No. 05-14-00566-CV, 03-13-2015

05-14-00566-CV
DAVID L. BRIDGES

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

JACK THEOTRICE CLARK, JR., Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for alleged assault on a public servant. An assault against a public servant is a result-oriented offense. Evidence, including pictures of the officer's wounded fingers and the officer's testimony, was sufficient to show that appellant knowingly or intentionally caused bodily injury to the officer's finger. An officer investigating a suspicious circumstance, while in uniform and driving a marked patrol car, is evidence the officer is acting in the lawful discharge of his official duty. The trial court's judgment is affirmed. Eastland Court of Appeals, No. 11-12-00134-CR, 03-12-2015

11-12-00134-CR
MIKE WILLSON

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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

Counsel argues that because he represented the petitioner during state habeas proceedings, it would be a conflict of interest for him to determine, in the federal habeas proceeding, whether his state conduct was ineffective. Martinez and Trevino do not create a constitutional right to counsel on collateral review. They only offer remedial relief from procedural bars to the presentation of federal claims attending that defective performance. The court appoints supplemental council under its 18 U.S.C. §3599 authority in the interest of justice. 5th U.S. Circuit Court of Appeals, No. 13-70001, 03-30-2015

13-70001
PATRICK E. HIGGINBOTHAM

Practice Areas: Criminal Law