Recent Decisions

Court of Appeals of Texas, Seventh District

Mayfield v. The State of Texas, 07-14-00055-CR (TexApp Dist 02/09/2017)

Appellant was convicted of aggravated sexual assault of a child, one offense of indecency with a child by contact, and one offense of sexual performance by a child less than 14 years of age. The court assessed sentences of confinement for life for each of the aggravated sexual assault convictions and twenty years' confinement for each of the other two convictions. On appeal, appellant argued the trial court erred by failing to conduct a competency examination as appellant produced evidence of attempted suicide and ineffective assistance of counsel. The court noted that, prior to the instant appeal, it remanded the matter for a competency evaluation. The trial court conducted the retrospective trial on competency and filed supplemental clerks' and reporter's records. The court now affirmed holding evidence during the competency hearing reflected that appellant was competent to stand trial and appellant presented no evidence in opposition. Further, the court found appellant's absence from trial was the result of appellant's voluntary and intentional act, rather than from lack of competence. Moreover, the court concluded counsel provided effective assistance by actively participating in the case, evidence supported the conviction, and counsel effectively addressed appellant's suicide attempt which negatively impacted counsel's ability in the midst of trial. As counsel subjected the prosecution's case to a meaningful adversarial testing, the conviction was affirmed. Stephen Scott Mayfield v. The State of Texas, Amarillo Court of Appeals, Case No.: 07-14-00055-CR, 07-14-00057-CR, 07-14-00058-CR, 07-14-00060-CR, 02/09/2016

07-14-00055-CR
JAMES T. CAMPBELL, JUSTICE

Court of Appeals of Texas, Sixth Appellate District

In the Interest of D.W. and K.W., 06-16-00076-CV (TexApp Dist 02/08/2017)

Family Law; Diversity In March 2011, the Texas Department of Family and Protective Services sought protection of the minor children and termination of the parent-child relationship in the 115th judicial district. The district court adjudged father as the sole managing conservator of the children and dismissed the department as a party to the suit. Subsequently, in March 2015, the department filed a petition seeking protection of the children and termination of the parent-child relationship in the 307th judicial district. The petition recognized that the 115th district had continuing, exclusive jurisdiction under Tex. Fam. Code Ann. §155.001. The department moved for a transfer to the 307th district despite continuing jurisdiction. The father objected stating the proper procedure was to file a motion in the 115th district. The 307th district granted the motion transferring jurisdiction to itself and terminating parental rights. On appeal, the court reversed holding the 307th lacked jurisdiction to enter a final order terminating both parents' parental rights. Although Tex. Fam. Code Ann. §§262.102-.103 authorizes a court to enter emergency orders and temporary orders, the court shall than transfer final determining orders to the court who holds continuing, exclusive jurisdiction under §155.001. Chapter 262 does provide a limited exception for a mandatory transfer from the court of continuing, exclusive jurisdiction when grounds exist; such exception was inapplicable in this matter and the judgment of the district court was reversed. In the Interest of D.W. and K.W., children, Texarkana Court of Appeals, Case No.: 06-16-00076-CV, 02/08/2017

06-16-00076-CV
RALPH K. BURGESS JUSTICE

Court of Appeals of Texas, Eighth District

Molinar v. S.M., 08-15-00083-CV (TexApp Dist 02/08/2017)

Non-party mother filed an application for a protective order on behalf of appellee, her minor daughter, alleging that appellant had committed acts of family violence and sexual assault against appellee. Appellant failed to attend the hearing, and a protective order was entered with the agreement of mother and appellant's attorney whereby appellant was prohibited from committing acts of family violence, communicating or going within 200 yards of appellee, and engaging in harassing conduct against appellee or a member of the family. Appellant moved to vacate the order arguing there was no threat to appellee, he was not present at the hearing, was not charged with any offense, and that the order was a means to harass and terminate appellant's visitation rights. The district court denied the motion and the instant appeal followed. The court affirmed concluding appellant lacked standing to vacate a protective order as such direction is held by either the original applicant or the person subject to the protective order under Tex. Fam. Code Ann. §85.025(b). Even if appellant had standing, he failed to preserve the issues raised on appeal. Accordingly, the court affirmed the judgment of the district court denying appellant's motion to vacate. Molinar v. S.M., El Paso Court of Appeals, Case No.: 08-15-00083-CV, 02/08/2017

08-15-00083-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

United States Court of Appeals, Fourth Circuit

Hernandez v. Amistad Ready Mix, Inc., 04-16-00267-CV (4th COA. 02/08/2017)

Appellee, Amistead Redy Mix, hired non-party Jesse Carillo as a contractor to construct a truck port at its cement plant. Carillo, in turn, hired appellant, Rolando Hernandez to assist completing the project. During construction, appellant was injured when a cross-beam hit him on the side of the head and knocking him off the forklift breaking his ankle and knee. Appellant sued for damages, alleging twenty different negligent acts and omissions. Appellee filed a traditional and no-evidence motion for summary judgment; the trial court granted the motion and rendered a take-nothing judgment in its favor. On appeal, appellant argued he produced some evidence raising fact issues as to the statutory elements under Chapter 95 of the Civil Practices & Remedies Code as well as support for is negligent-entrustment theory of liability. The court reversed in part concluding appellant raised a fact issue as to whether appellee retained some control over materials and equipment used and had actual knowledge of dangers in such use as required under §95.003. However, the trial court did not err in granting summary judgment as to the negligent entrustment theory as appellant presented no evidence that appellee had knowledge of applicable safety regulations and standards in equipment operation. Accordingly, the court reversed in part and affirmed in part the trial court's judgment. Hernandez v. Amistad Ready Mix, Inc., San Antonio Court of Appeals, Case No.: 04-16-00267-CV, 02/08/2017

04-16-00267-CV
LUZ ELENA D. CHAPA, JUSTICE

United States Court of Appeals, Fourth Circuit

Radcliffe v. Tidal Petroleum, Inc., 04-15-00644-CV (4th COA. 02/08/2017)

In their suit, appellants alleged appellee was removing minerals from their mineral estate without permission. Appellee moved for, and was granted, traditional and no-evidence summary judgment on the grounds that appellants submitted no evidence of any ownership interest in the subject tract. Following a second motion for rehearing, the court withdrew its prior opinion, and subsequently reversed summary judgment in part concluding appellants provided more than a scintilla of evidence of ownership. Notably, the court held there was evidence of an unbroken chain of title in the mineral interest from grantor to appellants which would preclude the trial court from granting appellee's no-evidence motion as to appellants' trespass-to-try-title claim. However, the court affirmed in part holding appellee conclusively proved each essential element of its co-tenancy affirmative defense against each of appellants' tort claims. The court stated the evidence showed appellees leased the property from a co-owner which invoked the law of cotenants and appellee was entitled to summary judgment against the bad faith trespass and other tort claims as a matter of law. Radcliffe v. Tidal Petroleum, Inc. San Antonio Court of Appeals, Case No.: 04-15-00644-CV, 02/08/2017

04-15-00644-CV
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, Third District

Post Acute Medical, LLC v. Montgomery, 03-16-00212-CV (TexApp Dist 02/10/2017)

Following his wife's death during her post-operative stay at a rehabilitation hospital, appellee filed healthcare-liability claims against the surgeon and the hospital. Appellee argued the physician was negligent which caused the wrongful death of his wife and alleged the surgical procedure was unnecessary and performed improperly. Appellant filed and served expert reports on the appellants which concluded the physician breached the standard of care by, among other things, recommending and performing an unnecessary surgery. After receiving the reports, appellant hospital moved to dismiss asserting that because appellee's expert reports did not "implicate" the hospital, they constituted "no report" as to the hospital. The district court denied the appellant-hospital's motions to dismiss for failure to file an expert report, and granted appellee 30 days to cure any deficiencies. On appeal, the court reversed concluding the expert reports provided were "no report" as to the appellant-hospital and did not implicate the hospital's conduct in any way. The court noted the reports, although filed within the statutory deadline, failed to meet minimal requirements, including implicating the hospital, failing to discuss post-surgical care, or suggest a cause of death. Therefore, the reports were so inadequate that they could not be cured and the district court had no discretion but to dismiss with prejudice appellee's claims against the appellant-hospital. Post Acute Medical, LLC v. Montgomery, Austin Court of Appeals, Case Nos.: 03-15-00807-CV, 03-16-00212-CV, 02/10/2017

03-16-00212-CV
JEFF ROSE, CHIEF JUSTICE

Court of Appeals of Texas, Eleventh

Deleon v. The State of Texas, 11-15-00143-CR (TexApp Dist 02/10/2017)

Jason Eugene Deleon appealed his conviction for tampering with evidence. Police noticed the smell of fresh marijuana during a traffic stop and noticed appellant chewing something. Police "advised" him to spit it out, and discovered it was gum mixed with marijuana. At trial, appellant moved to suppress the evidence, but the court denied him. Appellant pled guilty, was sentenced to four years, and appealed his conviction, arguing the court erred by denying his motion to suppress. The appeals court rejected appellant's argument under State v. Steelman (93 S.W.3d 102) that marijuana odor alone is insufficient to conduct a warrantless search, noting that other cases allowed such a search and also that the totality of circumstances gave the officer probable cause. In addition to the odor, circumstances included appellant chewing something and appellant admitting to police that he had smoked marijuana several hours earlier. Furthermore, the court found that the potential destruction of evidence created exigent circumstances that, coupled with probable cause, gave rise to an exception to the warrant requirement. Because police had reason to conduct a warrantless search, the court did not reach appellant's argument that police had no justification to conduct a Terry frisk, or the state's argument that appellant consented to the search. The court affirmed the trial court's judgment. Jason Eugene Deleon v. The State of Texas, Eastland Court of Appeals, Case No. 11-15-00143-CR, 2/10/17.

11-15-00143-CR
MIKE WILLSON JUSTICE

Court of Appeals of Texas, Second District

Foster v. West, 02-16-00250-CV (TexApp Dist 02/09/2017)

Appellant Donald Foster, an indigent inmate acting pro se, sued six individuals and the trial court dismissed his case. On appeal of the dismissal, the court asked him to file an affidavit of previous filings under Tex. Civ. Prac. & Rem. Code § 14. That section requires an indigent inmate to identify and describe each action that person had previously brought without an attorney. Appellant's affidavit did not describe the facts of previous filings, and he failed to cure the defect even after the court notified him that his affidavit was noncompliant and extended a deadline for him to comply. The court found that when an inmate does not meet the criteria of § 14, the court can assume that his lawsuit is substantially similar to previous lawsuits and dismiss the case as frivolous. (Douglas v. Moffett, 418 S.,W.3d 336, 340). Because Foster's affidavit did not comply and because the court gave him a chance to cure it, the court dismissed his appeal. Foster v. West, Fort Worth Court of Appeals, Case No. 02-16-00250-CV, 2/9/17.

02-16-00250-CV
BILL MEIER JUSTICE

Court of Appeals of Texas, Twelfth

Richardson v. Mills, 12-15-00170-CV (TexApp Dist 02/08/2017)

This case arose from a dispute over interpretation of two contracts: a 1906 document granting oil, gas and mineral rights, and a 1908 release. The trial court found that the two contracts were ambiguous when construed together, and therefore that extrinsic evidence was admissible to determine intent. The court further found that the 1906 document was a contract containing executory promises with no express term for time of performance. The court held that a reasonable time for performance had passed. Thus, the trial court held that the one-half mineral interest in the land had reverted to the defendants, that defendants thus owned an undivided one-half interest in the oil, gas and other minerals of the real property and that plaintiffs took nothing. Plaintiffs appealed. On appeal, citing Danciger Oil & Refining Co. of Tex.v. Powell, 154 S.W.2d 632 (Tex. 1941), the court held that the 1906 document did not contain an implied covenant for development. The 1906 instrument did not place any limits on the one-half mineral interest being conveyed. To construe the document otherwise, the court held, would effectively rewrite it, which the court is not permitted to do. The court also rejected appellees' argument that the 1906 instrument was a contract for exploitation of minerals and that the conditions described in the first paragraph weigh in favor of it being construed as a mineral lease rather than a mineral deed. No further conveyances were contemplated in the instrument, the court held. The future services to be performed were part of the consideration, not a condition to transfer of the minerals. Accordingly, the instrument was a deed and not a lease. A number of discrepancies between the 1906 document and the 1908 release appear to indicate that the 1908 release does not refer to the 1906 document, but to some other instrument, the court held. Although appellees claimed that the fact that the 1908 release refers to releasing an instrument dated July 9, 1907 and the 1906 document was dated July 9, 1906 created a latent ambiguity in the release that could only be explained by parol evidence, the court rejected this argument, holding that the documents are each unambiguous on their face and unconnected to each other. Accordingly, the court held that the trial court erred in finding the documents ambiguous and permitting extrinsic evidence to construe them. It reversed the trial court's judgment and held that appellees take nothing and that they have no interest in the undivided one-half of the oil, gas and other minerals in the property. Richardson v. Mills, Texas, 12th Court of Appeals No. 12-15-00170-CV, 2/8/2017.

12-15-00170-CV
JAMES T. WORTHEN CHIEF JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Willis v. State of Texas, 06-16-00040-CR (TexApp Dist 02/09/2017)

Appellant Willis, pled guilty to two counts of sexual assault of a child, and elected jury-assessed punishment. The jury decided upon a $5,000 and 13-year sentence for each count which the trial court ran consecutively. Willis appealed, claiming that the trial court's failure to pronounce his sentence in open court was fundamental in error, and that he should not have been convicted of both counts of sexual assault because he pled guilty to one. Because the trial court did not pronounce the sentences, the court initially lacked jurisdiction to hear Willis' appeal. The court remedied this by abating the matter to the trial court to allow it to pronounce the sentence in the presence of the defendant in open court. Turning to Willis' second point of error, the court stated that Article 27.13 of the Texas Code of Criminal Procedure requires that a guilty plea must be made in open court by the defendant in person, but does not require that the plea be oral. Rather, if the facts point to the defendant's voluntary desire to plead guilty, the statute is satisfied. Here, the State reminded the trial court that Willis was charged with two counts of sexual assault of a child, and Willis acknowledged that his guilty plea encompassed two counts after an explanation from his attorney. Accordingly, the record reflects Willis' voluntary desire to plead guilty to two counts, the court held. Lastly, Willis contended that because the statement of costs was not certified by an officer of the court, the evidence was insufficient. The court held that because the statement was not a proper bill of costs the court must instead look to the record to decide whether there was a basis for the costs. The court looked to the record and found that $509 of the $624 assessed against Willis was supported Willis v. State of Texas, Texas, 6th District No. 06-16-00040.

06-16-00040-CR
RALPH K. BURGESS JUSTICE

Court of Appeals of Texas, First District

Garcia v. Sasson, 01-15-01010-CV (TexApp Dist 02/07/2017)

Appellants Macarina Garcia and Juan Figueroa moved out of their rented mobile home after the Harris County Flood Control District began surveying the mobile home park for encroachments on an easement it held. They sued their landlord, Eli Sasson, for fraud and related claims, alleging he knew about the encroachments when he made and renewed their lease. The trial court entered a take-nothing judgment against appellants. On appeal, they argued the judgment was against the great weight of the evidence. Appellants requested a partial reporter's record and submitted it in support of their appeal. The court found that when requesting a partial reporter's record, a party must raise specific points or issues to be argued on appeal. Such a statement would entitle the party to a presumption that the partial record includes all portions of the record relevant to arguments on appeal, but absent such a statement, courts will assume that the missing portions of the record support the trial court's judgment. The court also found that the partial record did not establish a fraud claim, as it showed the flood control district did not require Sasson to remove encroachments on the easement until after appellants moved out. Thus, the court reasoned, the partial record did not "conclusively demonstrate" that Sasson knew he was making misrepresentations about his mobile home lot at the time he made and renewed appellants' lease, The court therefore held that appellants' evidence was not sufficient to establish a fraud claim, and it affirmed the trial court's judgment. Garcia v. Sasson, Houston 1st District Court of Appeals, Case No. 01-16-01010-CV, 2/7/17.

01-15-01010-CV
EVELYN V. KEYES JUSTICE

Court of Appeals of Texas, First District

Gutierrez v. The State of Texas, 01-16-00148-CR (TexApp Dist 02/09/2017)

Appellant Joshua Ray Gutierrez was convicted of misdemeanor assault for an incident in which he choked his girlfriend, Emily Rodriguez. Emily's mother, Maria, called 911 after the incident – and after appellant had left their home – and Emily gave a statement to the responding officer, Deputy S. Deliphose. Deliphose was the state's sole witness at trial. The court admitted into evidence the 911 call and Deliphose's testimony about what Emily had told him, over appellant's objections that both were hearsay and violated the Confrontation Clause. In admitting the evidence, the court held that Emily's statements were nontestimonial. Guttierez appealed, again arguing that the 911 call and the officer's testimony violated the Confrontation Clause. The court found that a statement is or isn't testimonial depending on the reason an officer solicited it: When an officer seeks information to address an ongoing emergency, the statement is nontestimonial, but statements made to establish past events are testimonial. The court found that Deliphose was not addressing an ongoing emergency, based on the facts that Emily refused medical treatment; appellant had already left the scene; Emily focused on details not immediately necessary by going through her phone to look for pictures of appellant's license plate to provide to the 911 operator; and Deliphose testified Emily's comments were consistent with a written statement she later gave, indicating that her statements in his initial interview were focused on details of what happened. Furthermore, the court found Deliphose's testimony contributed to appellant's conviction because the state relied on it heavily, as he was the state's only witness. The court also rejected the State's argument that appellant waived his right to appeal because he entered into evidence a 17-page report by Deliphose that included a brief description of the offense. The court said the report, unlike the 911 call and Deliphose's testimony, offered no details about the offense and misstated the offense, erroneously stating that appellant had choked Maria Rodriguez rather than Emily. The court reversed and remanded the trial court's judgment. Joshua Ray Gutierrez v. The State of Texas, Houston 1st District Court of Appeals, Case No. 01-16-00148-CR, 2/9/17.

01-16-00148-CR
LAURA CARTER HIGLEY JUSTICE

United States Court of Appeals, Fifth Circuit

Childers v. Iglesias, 16-10442 (5th Cir. 02/09/2017)

Appellant Randy Childers sued Parker County Sheriff's Deputies Ed Iglesias and Anne Hollis for unlawful arrest. He had called police to his ranch to help evict a tenant. When Iglesias and Hollis arrived, appellant's truck was in front of the gate. While he was trying to "explain the situation" to them, Iglesias asked appellant to move his truck, but he continued talking instead and appellants arrested him for interfering with the officers' duties. The charge was dismissed after appellant spent more than 24 hours in jail, and he sued, alleging Fourth Amendment violations. The officers claimed qualified immunity and the trial court granted their Rule 12(b)(6) motion to dismiss. On appeal, appellant argued he did not interfere with the officers' duties because he was merely explaining the situation to the officers, which he claimed was protected speech under the First Amendment, relying on Carney v. State. (31 S.W.3d 392). The court distinguished Carney, in which a court overturned the conviction of a man who argued with but did not block officers executing a search warrant, because appellant in the present case failed to move his truck when asked. The court found the interference charge stemmed from the failure to comply with police instruction rather than from appellants' attempts to talk to officers, which amounted to conduct rather than speech. Similarly, the court found, failure to comply with an officer's instruction to stand back is not protected speech. (Haggerty v. Tex. S. Univ., 391 F.3d 653, 657). The court affirmed the trial court's dismissal. Childers v. Iglesias, Fifth Circuit, Case No. 16-10442, 2/9/17.

16-10442
EDWARD C. PRADO, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Fisher v. Lufkin Industries, 15-40428 (5th Cir. 02/10/2017)

Appellant William Fisher sued Lufkin Industries for retaliation, claiming he was fired for a complaint that his supervisor racially harassed him. Appellant, an African-American, complained that a supervisor directed the term "boy" at him in a heated exchange. The company's human resources department found no wrongdoing, but about a month later, after a complaint against appellant by another employee, a higher-level supervisor conducted a "sting" operation to catch appellant selling pornographic DVDs at work. Appellant denied selling such material, denied that pornographic DVDs found in his locker were his, and prevented a search of his car. The trial court found that although the investigation was motivated by retaliation for appellant's initial complaint, his lies and obstruction of the investigation gave Lufkin independent reasons to justify termination. The court dismissed the suit. The appeals court, however, found that his resistance did not create independent grounds for dismissal. The court found that an employer can be held responsible for the retaliatory animus of any employee who influences the termination decision under the "cat's paw" theory. (Staub v. Proctor Hospital, 562 U.S. 411). The court then found that appellant satisfied the cat's paw theory at the trial court: the trial court found appellant's co-worker complained about him due to a desire to retaliate, and that this complaint motivated the investigation. The court found the trial court's "necessary conclusion" is that a retaliatory animus was a proximate cause of appellant's termination. Furthermore, Fisher's response did not break the causal chain as a superseding cause because his "resistance to a retaliatory investigation" was "entirely foreseeable." The court reversed and remanded the trial court's ruling. Fisher v. Lufkin Industries, Fifth Circuit, Case No. 15-40428, 2/10/17.

15-40428
JAMES L. DENNIS, CIRCUIT JUDGE

Court of Appeals of Texas, Twelfth

Chambers v. San Augustine County, 12-15-00201-CV (TexApp Dist 02/08/2017)

Five landowners in Shelby County leased oil and gas rights in 2007 to XTO Energy's predecessor. In 2010, those leases were pooled with interests in San Augustine County, and the San Augustine Central Appraisal District (SCAD) sent appellants a tax bill in 2013. Appellants contested the bill before the appraisal review board and then the trial court, on grounds that their land was in Shelby County and outside SCAD's reach. The board and the court both ruled against appellants, accepting SCAD's argument that the pooling and requisite cross-conveyance of interests created a taxable property interest in San Augustine County. On appeal, the landowners argued that the lease with XTO expressly prevented cross-conveyance and that a taxing unit can only tax a royalty interest within its geographic jurisdiction, because the royalty interest is an interest in real property. The court found that although a pooling agreement generally serves to cross-convey interests among the parties to the agreement, parties may prevent cross-conveyance through lease terms. (Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 422.) The court also found that the lease properly rejected cross-conveyance, as it included a provision stating that units on land outside of appellants' "shall not have the effect of exchanging or transferring any interest." Thus, the court found that SCAD failed to show that appellants owned in interest in pooled minerals in San Augustine County and held that appellants had no obligation to pay taxes there. The court reversed and remanded the trial court's judgment. Chambers v. St. Augustine, Tyler Court of Appeals, Case No. 12-15-00201-CV, 2/8/17.

12-15-00201-CV
BRIAN HOYLE JUSTICE

Court of Appeals of Texas, Eighth District

Sanchez v. Balderrama, 08-15-00088-CV (TexApp Dist 02/08/2017)

Plaintiff Sanchez was a passenger in a car driven by her daughter when a pickup truck backed into the car, injuring Sanchez. She sued her daughter and the driver of a pickup truck that collided with the vehicle they were traveling in. At trial, the jury found the daughter 40% negligent and the other driver 60% at fault and awarded plaintiff $1,000 for past physical pain and mental anguish. After her motion for a new trial was denied, plaintiff appealed, alleging that the trial court erred by admitting evidence that she was not wearing her seatbelt. On appeal, the court held that because Sanchez brought up the issue of her seat belt use, she waived any error regarding admission of seat belt evidence. Even if she had preserved the issue, the court continued, the Texas Supreme Court held in Nabors Well Service, Ltd. v. Romero, 456 S.W.3d 553 (Tex. 2015) that relevant evidence of the use or nonuse of seat belts is admissible if it caused or was a cause of the damages sought, overruling decades of case law to the contrary. Further, the jury was specifically instructed not to reduce the amount of its award because of Sanchez's negligence, so any error in admitting the seat belt evidence could not have affected the judgment. The court noted that deciding the amount of damages for pain and suffering is solely the province of the jury, and the jury has broad discretion. As long as sufficient probative evidence exists to support the jury's verdict and it is not clearly based on passion, prejudice, or improper motive, or is so excessive as to shock the conscience, the court will not set it aside. Here, the jury's verdict was not so contrary to the weight of the evidence as to be unjust. Accordingly, the court affirmed the trial court's verdict. Sanchez v. Balderrama, Texas, 8th District Court of Appeals, No. 08-15-00088-CV, 2/8/2017.

08-15-00088-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Twelfth

Albertson’s Holdings, LLC v. Kay, 12-16-00181-CV (TexApp Dist 02/08/2017)

Ruth Kay was injured on the job at Albertson's. She sued appellants Alberton's and two contractors, claiming negligence, and husband Frank sued claiming loss of consortium. Appellants moved to compel arbitration pursuant to a workplace injury agreement Ruth had signed in 2010. The trial court denied the motion, finding that the agreement was unconscionable and that Frank was not bound by it. Appellants filed an interlocutory appeal, claiming that Frank was bound by the agreement, and that the Kays waived their defense that the agreement was unconscionable and unenforceable. Appellants argued Frank was bound by the agreement because Ruth signed as his agent, because he was a third-party beneficiary, and that his claim his derivative of Ruth's claim. The court found that marriage does not raise a presumption that one spouse is the agent of the other. It also found that Frank was a third-party beneficiary for death benefits and therefore is bound by the agreement only when making a death-benefit claim. It then found that although Frank's claim required him to prove that appellants were liable for Ruth's injuries, a loss of consortium claim is not "entirely derivative" of Ruth's negligence claim. However, the court also found that the agreement, despite granting appellants the right to approve a firm for arbitration, was not so one-sided as to be unconscionable because Ruth was allowed to participate in the process of choosing an arbitrator and Ruth showed no evidence of bias in the selection process. The court affirmed the trial court's order denying the motion to compel arbitration with Frank Kay, and reversed and remanded the order as to Ruth Kay. Albertson's Holding, LLC, v. Kay, Tyler Court of Appeals, Case No. 12-16-00181-CV, 2/8/17.

12-16-00181-CV
BRIAN HOYLE JUSTICE

Court of Appeals of Texas, Fourteenth

Triyar Companies, LLC v. v. Fireman’s Fund Insurance Company, 14-14-00160-CV (TexApp Dist 02/09/2017)

An appellate court upheld a take-nothing judgment against insureds, holding that the insurer overpaid the cash value of claims for damage caused to two shopping malls by Hurricane Ike in 2008. Fireman's Fund Insurance Co. had issued Triyar Cos. a commercial insurance policy covering property at two shopping malls owned by appellant/plaintiff GPM Houston Properties and appellant/plaintiff SJM Realty. Triyar, GPM and SJM sought coverage under the policy, seeking to recover the value of the lost or damaged property at replacement cost. Finding that the insured's lost or damaged property was not actually repaired or replaced, defendant paid the claims based on actual cash value. Plaintiffs sued the insurer for breach of contract, breach the duty of good faith and fair dealing, seeking damages for allegedly underpaid property damage claims and treble damages for alleged bad faith. Defendant asserted a counterclaim, alleging that plaintiff Triyar was dissolved before it issued the policy, and that it accepted over $23 million in insurance proceeds for the hurricane damage without disclosing that it did not exist at the time and did not own or lease any of the properties that sustained hurricane damage. At trial, the jury found that the insurer knowingly failed to make a good-faith attempt to effectuate a prompt, equitable and fair settlement of the claim when its liability had become reasonably clear. The insurer argued that the jury's finding regarding good-faith attempts at settlement was immaterial in light of its other findings that the insurer complied with both the policy and the Insurance Code, and moved for a take-nothing judgment against plaintiffs. The trial court granted the motion. Plaintiffs appealed and defendant filed a cross-appeal, arguing that, based on the jury's findings, it had actually overpaid under the policy terms for the claimed losses on an actual cash-value basis. The court agreed, finding that the insurer paid more than the amount of the only legally viable damage findings made by the jury. The court held that the evidence insufficient to support the jury's finding that the insurer's actions made it impossible for the insured to repair or replace the property at the shopping malls. Therefore, the insured may not recover replacement cost value. Further, the court found the trial evidence legally insufficient to support the award of any damages for lost business income as well as temporary repairs. Triyar Companies, LLC, et al. v. Fireman's Fund Insurance Co., Texas, 14th Court of Appeals, No. 14-14-00160, 2/9/2017.

14-14-00160-CV
KEM THOMPSON FROST CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Davidson v. City of Stafford, 16-20217 (5th Cir. 02/07/2017)

Police arrested appellant Jonathon Davidson while he was protesting outside a Planned Parenthood office in Stafford. Appellant and a Planned Parenthood employee gave police differing accounts of the extent of his protest. The employee said he was delaying clients from entering but appellant said he was merely talking to people in cars who stopped to talk to him. After ordering him to move under Tex. Penal Code § 42.04, police arrested him under Tex. Penal Code § 38.02 for failure to identify himself, but he was released that night. He later sued the two officers and the City of Stafford for violating his civil rights. The trial court dismissed the case, holding that the officers had qualified immunity and the city had no municipal liability. On appeal, resolving the factual dispute in appellant's favor, the court found police had no probable cause to make an arrest. The court found officers had no reason to invoke § 42.04 – obstructing a highway or other passage – and therefore the incident never triggered § 38.02, under which a suspect must identify himself to police only when lawfully arrested. Furthermore, the court found that officers should have given greater weight to appellant's First Amendment right to protest. However, the court rejected appellant's claim that Stafford had a policy of improperly applying § 38.02, finding that although appellant demonstrated the police chief testified as to the legality of applying the relevant code in the situation at hand, the testimony was not evidence of an official policy. The court affirmed the trial court's dismissal as to the city and reversed and remanded as to the officers. Davidson v. City of Stafford, Fifth Circuit, Case No. 16-20217, 2/7/17.

16-20217
HAYNES, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Foster v. Deutsche Bank, 16-11045 (5th Cir. 02/08/2017)

Appellant Regina Foster filed a petition to stop a foreclosure of her home after her ex-husband defaulted on the payments. She had received a notification of acceleration of the debt from Power Default as the substitute trustee, and filed a petition in state court alleging wrongful foreclosure against Power Default, the loan servicer Ocwen, and mortgagee Deutsche Bank. The trial court issued a temporary stay, halting the foreclosure. Ocwen and Deutsche Bank removed the case to federal court based on diversity jurisdiction, even though Power Default was a non-diverse party, arguing that Power Default was added for a sole purpose of defeating diversity. The federal district court allowed the removal, dismissed all claims against Power Default with prejudice, and later granted summary judgment for the other two defendants with prejudice. On appeal, the court found that the trial court's rulings were proper, because no foreclosure had taken place. Appellant's only possible cause of action against Power Broker as a substitute trustee was a claim for wrongful foreclosure, the court found, so appellant had no cause of action before foreclosure occurred. Thus, the removal based on dismissing a non-diverse defendant was proper. The court also found that appellant could not bring a wrongful foreclosure against the remaining defendants because she had not lost possession of the property. Lastly, the court declined to reach appellant's argument that she did not have viable notice of foreclosure due to Power Default badly misspelling her name in its mailing. The court affirmed the trial court's ruling. Foster v. Deutsche Bank, Fifth Circuit, Case No. 16-11045, 2/8/17.

16-11045
HAYNES, CIRCUIT JUDGE

Court of Appeals of Texas, First District

McLane Company, Inc. v. Texas Alcoholic Beverage Commission, 03-16-00415-CV (TexApp Dist 02/01/2017)

Appellant submitted a request for public information under Texas's Public Information Act. Appellee sought counsel from the attorney general as it wished to withhold portions of responsive records from disclosure. The attorney general issued a letter ruling stating appellee must release the requested information, with two exceptions. Appellee brought the underlying suit to challenge the decision wherein appellant intervened seeking mandamus relief ordering appellee to produce the requested information. Appellant also sought declarations and alleged appellee failed to comply with the PIA's requirements. Appellee filed a plea to the jurisdiction contending that sovereign immunity deprived the trial court of jurisdiction over appellant's claims; the trial court granted the pleas and this appeal followed. The court affirmed concluding that appellant's claims under the Uniform Declaratory Judgments Act did not waive appellee's sovereign immunity as the requests did not seek a declaration concerning the validity of the PIA or any other statute, rather a declaration of appellant's rights under the statute. The court noted that precedent from the supreme court, as well as this court, compelled the conclusion that the UDJA did not waive sovereign immunity for "bare statutory construction" claims. Further, the court concluded the trial court lacked jurisdiction to hear appellant's ultra vires claims under the redundant remedies doctrine. Because appellant can pursue relief through the PIA, any remedies it could obtain through an ultra vires suit would be redundant. Accordingly, the trial court's order was affirmed. McLane Company, Inc. v. Texas Alcoholic Beverage Commission, Austin Court of Appeals, Case No.: 03-16-00415-CV, 02/01/2017

03-16-00415-CV
SCOTT K. FIELD JUSTICE

United States Court of Appeals, Fifth Circuit

City Of Dallas v. Delta Air Lines, 16-10051 (5th Cir. 02/02/2017)

Delta Airlines sought to use some of the 20 gates at Love Field. Although Delta was not party to the lease agreement the distributed the gates among airlines, the agreement provided for accommodations of non-parties. The City of Dallas selected United Airlines to share its gates because it was under the cap of 10 flights per day per gate, and Delta began operating flights. However, Southwest acquired United's two gates – giving Southwest 18 of the 20 – and later announced plans to use the full gates' capacity. The city rescinded the accommodation, intending to renegotiate an accommodation deal in light of the change. The city also sought a declaratory judgment as to its legal obligations; as part of the lawsuit, Delta sought injunctive relief preserving its status quo and Southwest sought injunctive relief prohibiting Delta from operating flights out of Love Field. The city then filed for a preliminary injunction requested the court to grant either of the airlines' request or any other relief the court found proper. The district court granted the city's motion by preserving the status quo in favor of Delta. Southwest appealed, challenging the court's finding that the city had a substantial likelihood of success on the merits. The appeals court found that Delta had properly requested all parties to seek accommodation, as required of non-parties under the contract; that the contract granted Southwest preferential but not exclusive use of the gates; and that the contract did not allow Southwest to obtain exclusive use by ramping up its own usage after an accommodation request was made. Thus, the court found that Southwest could have accommodated another carrier without "unduly interfering" with its own operations, as required under the lease agreement, and that the City could establish that Southwest breached the lease agreement by failing to do so. The court affirmed the trial court's judgment. City of Dallas v. Delta Airlines, Fifth Circuit, Case No. 16-10051, 2/2/17.

16-10051
W. EUGENE DAVIS, CIRCUIT JUDGE

Supreme Court of Texas

Crawford v. XTO Energy, 15-0142 (TexApp Dist 02/03/2017)

Petitioner Richard Crawford sued XTO Energy for breach of contract for failure to pay royalties on an oil-and-gas lease on a small strip of land (the Crawford tract). The land was surrounded by lots that his mother had conveyed years earlier; she reserved the oil and gas rights only beneath Crawford tract. When an XTO well began producing, XTO obtained a title order concluding that the share of royalties for the Crawford tract should go to the surrounding landowners under the strip-and-gore doctrine. XTO began paying the landowners, failed to pay petitioner, and petitioner sued. The trial court ruled that petitioner must join the landowners in his suit as necessary parties under Texas R. Civ. Pro. 39, eventually dismissing the suit, and the appeals court upheld the ruling. Petitioner argued before the Supreme Court that the adjacent landowners never claimed an interest, the landowners have no interest because the strip-and-gore doctrine does not apply, and the appeals court erred in holding that XTO's payments to the landowners created an interest. The Supreme Court denied Petitioner's strip-and-gore argument, siding with the appeals court's decision that the question of whether the landowners are necessary parties must be decided first. However, it agreed with petitioner's other arguments that they are not necessary parties. The court found that the landowners did not assert a claim in any way and noted that in relevant caselaw, parties asserted their rights by holding leases or filing suits. It also found that XTO had a legitimate concern that the landowners might sue when their royalties are reduced, but held that XTO cannot create a claim for the landowners by unilaterally deciding to pay them. Furthermore, it noted that XTO can address its concern by joining the landowners as proper (but not necessary) parties under Rule 37. The court reversed the appeals court's judgment and remanded. Crawford v. XTO Energy, Texas Supreme Court, Case No. 15-0142, 2/3/17.

15-0142
DEBRA H. LEHRMANN JUSTICE

United States Court of Appeals, Fifth Circuit

Heniff Transportation Systems v. Trimac Transportation Services, 16-40553 (5th Cir. 01/30/2017)

Appellant Heniff Transportation Services entered a contract to transport chemicals from Texas to Illinois, and hired Trimac Transportation to perform a thorough "Kosher wash" of its tanker as required by its contract. Trimac did not perform the wash correctly, the chemicals became contaminated, and appellant settled with its client for the resultant damage for nearly $239,000. Appellant sued Trimac for various state claims and a claim under the federal Carmack Amendment, which governs liability for losses incurred during the transportation phase of interstate commerce. The trial court held that the state claims were pre-empted by the Carmack Ammendment, and later granted summary judgment for Trimac on the Carmack claim. On appeal, appellant challenged the pre-emption ruling, arguing that although the amendment generally pre-empts state law claims against carriers in interstate commerce, Trimac was not a "carrier" covered by the amendment. The court found that the amendment by its plain language defines "carrier" broadly enough to include businesses that provide "services related to" interstate transportation, such as elevation, refrigeration, handling, packing, etc. The court rejected appellant's argument that Trimac was not covered because washing services were not specifically listed in the act. The court found that the Kosher wash was so critical to this transaction that the client specifically requested it under the contract; therefore, it was a related service. It also rejected appellant's argument that Trimac was not covered because it was not a party to appellant's bill of lading, finding that the plain language of the amendment did not require a bill of lading. The court held that the Carmack Amendment pre-empted appellant's state law claims and affirmed the trial court's dismissal. Heniff Transportation Systems v. Trimac Transportation Services, Fifth Circuit, Case No. 16-40553, 1/30/17.

16-40553
E. GRADY JOLLY,, CIRCUIT JUDGE

Court of Appeals of Texas, Ninth District

Lone Star Groundwater v. City of Conroe, 09-16-00201-CV (TexApp Dist 02/02/2017)

The Lone Star Groundwater Conservation District passed a rule imposing production caps on water producers. Several public and private water producers sued the district and district board members under the Declaratory Judgment Act and the Texas Water Code, claiming they had no authority to issue such a rule. The district and board members filed pleas to the jurisdiction, which the trial court denied, and they filed an interlocutory appeal. The District argued that the Declaratory Judgment Act applies only to statutes, not agency rules, and that the act did not operate as a waiver of the district's sovereign immunity. The directors argued that they are immune from suit under the water code as government actors. In respect to the District, the court found that while the Declaratory Judgment Act does not operate to waive immunity, the Water Code allows lawsuits that challenge district rules. (Tex. Water Code § 36.251 and §36.066(a)). In respect to the directors, the court found that the Water Code grants them immunity when acting in their official capacity. (Id. § 36.066). The water producers argued the officials exceeded their authority on the theory that the Legislature did not intend for a district to impose production caps. But the court reasoned that such a reading would expose government officials to lawsuits for virtually any vote, and that officials exceed their authority for purposes of losing immunity only when voting with a conflict of interest, undertaking unconstitutional acts, or similar abuses. The court also held that the Water Code does not allow plaintiffs to recover attorney's fees, and that the water producers' claim for fees should have been dismissed with prejudice. The court affirmed in part and reversed and remanded in part. Lone Star Groundwater v. City of Conroe, Beaumont Court of Appeals, Case No. 09-16-00201-CV, 2/2/17.

09-16-00201-CV
HOLLIS HORTON JUSTICE

Supreme Court of Texas

Colorado County v. Staff, 15-0912 (TexApp Dist 02/03/2017)

The Colorado County Sheriff fired Deputy Mark Staff, an at-will employee, after a series of incidents in which he screamed at and threatened calm and cooperative drivers during traffic stops. His dismissal came with a "performance deficiency notice," signed by his supervisor, detailing several of the incidents. Staff sued the sheriff and the county, the petitioners in this case, alleging they violated the Texas Government Code by firing him without a complaint signed by "the person who was the subject of the alleged misconduct." (Tex. Gov't. Code § 614.022-23). Both sides moved for summary judgment, and the trial court granted the county's but the appeals court reversed and remanded. At the Supreme Court, the county and sheriff argued that the relevant Code provisions do not apply to at-will employment, and argued alternatively that they satisfied the provisions. The court first found that although the code does not require the sheriff to give cause for firing an at-will employee, when a complaint underlies the termination, it must conform to the code. Applying this provision protects law enforcement personnel from losing their jobs over unwarranted complaints, the court said. However, it also found that the sheriff's office complied with the code. Under the plain meaning of the terms, "person" and "complaint" could apply to a sheriff's officer and documentation like the signed deficiency notice. The court found the definition of "complainant" in a similar statute – defining the term as the victim of an officer's misconduct – should not apply here, because the other statute used the term to distinguish civilian complaints from those inside a civil service department and because the Legislature chose not to use the term "complainant" in § 614.022. The court reversed the appeals court's judgment and rendered judgment for the county and sheriff. Colorado County v. Staff, Texas Supreme Court, Case No. 15-0912, 2/3/17.

15-0912
EVA M. GUZMAN JUSTICE

Court of Appeals of Texas, Fourteenth

In re Fairway Methanol LLC and Celanese Ltd., 14-16-00884-CV (TexApp Dist 01/31/2017)

Relator owned and operated the Clear Lake Facility where an employee was injured when he tripped on an angled iron that was protruding from the floor and fell into charged electrical equipment. In anticipation of a personal injury and workers' compensation suit, relator's in-house attorney requested an investigative team assess potential liability and to begin strategizing legal theories and defenses. Following the filing of his lawsuit, plaintiffs served discovery requests. Relator responded and produced over 11,000 pages of documents but objected to requests to the extent it sought attorney-client and work-product privileged documents. Plaintiffs filed a motion to compel production of the documents withheld; the trial court granted the motion and ordered the production of all documents. Relators filed the instant writ of mandamus arguing the documents it withheld were protected by the attorney-client and work-product privileges. The court granted the writ concluding many of the documents at issue were protected by the attorney-client privilege and the work-product privilege and that the trial court abused its discretion by ordering their production. The court noted the investigative team was a representative of the client as the analysis was to effectuate legal representation; as such, the attorney-client privilege covered the team and its work-product. Further, the analysis was in anticipation of litigation as there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. The court granted the writ as relator had no other available remedy at law. In re Fairway Methanol LLC and Celanese LTD, Houston 14th Court of Appeals, Case No.: 14-16-00884-CV, 01/31/2017

14-16-00884-CV
TRACY CHRISTOPHER JUSTICE

Court of Appeals of Texas, Eighth District

Cruz v. Sanchez, 08-15-00167-CV (TexApp Dist 02/02/2017)

The underlying case stemmed from a defamation action whereby appellee argued appellants made defamatory statements as part of a wide-ranging conspiracy against him orchestrated by various prominent townspeople. The trial court held a summary judgment hearing and awarded appellee damages and attorneys' fees. As with all previous attempts to mail notices, the notice of the summary judgment hearing was returned undeliverable. Upon learning of the judgment, appellants filed for a stay and a bill of review; the trial court denied the request. On appeal, appellants contended appellee never served them with the summary judgment motion, nor did they receive notice of the summary judgment hearing that terminated the underlying case. Appellee maintained that he attempted to serve the motion electronically both through the court's EFM system and via email. The court reversed holding appellant's failure to receive electronic service of appellee's motion for summary judgment was not the fault of appellants. The court noted that appellee's certificate of service did not establish that he used a method or manner that was reasonably calculated to successfully provide notice as appellants were not registered with the electronic filing manager system and the email address was admittedly incorrect. Further, the court's attempt at service was not sufficient to cure the defect in service. Accordingly, the court reversed the trial court's denial of appellant's bill of review. Cruz v. Sanchez, El Paso Court of Appeals, Case No.: 08-15-00167-CV, 02/02/2017

08-15-00167-CV
YVONNE RODRIGUEZ JUSTICE

Court of Appeals of Texas, Fourteenth

Pickron v. The State of Texas, 14-16-00080-CR (TexApp Dist 01/31/2017)

Appellant's conviction for murder was upheld where complainant's statements were excited utterances properly admitted into evidence as an exception to the rule against hearsay. Appellant Leonard Pickron, a resident in a group home for individuals with intellectual disabilities, was riding with complainant in her truck, which witnesses testified was moving straight down the highway before it swerved sharply into oncoming traffic. Complainant, worked in the group home where Pickron resided, was heard screaming on the phone before dying in the crash. In appellant's trial for murder, complainant's sister testified that complainant had called her the night before, sounding terrified. The sister further testified that complainant said that she and appellant were arguing and that appellant was "tearing up the house." Appellant's sole contention on appeal was that the sister's testimony was hearsay. The conviction was affirmed. The relevant factors weighed in favor of admitting the statements as excited utterances. An exciting event (appellant destroying the house) evoked a spontaneous reaction from the declarant; the declarant's reaction to the startling event was immediate and was unlikely to be fabricated; the declarant's statement directly related to the startling event; and the statement was not made in response to questioning. Leonard Pickron v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-16-00080-CR, 1/31/2017

14-16-00080-CR
KEM THOMPSON FROST CHIEF JUSTICE

Court of Appeals of Texas, Eighth District

Thomas v. The State of Texas, 08-15-00236-CR (TexApp Dist 02/02/2017)

Evidence was sufficient to support appellant's conviction for burglary of a habitation. The evidence showed that appellant, without the owner's consent, entered a home late at night by using a screwdriver to break a window lock and went into at least two bedrooms of the home. Appellant removed articles of women's clothing from the bedrooms and hid the clothing in his underwear. The evidence also supported an inference that appellant would have fled from the home with the stolen clothing if the homeowner had not returned and forcibly held appellant until police arrived. While the evidence could permit an inference that appellant had a prurient interest in the articles of clothing, the jury's conclusion that appellant entered the home with the intent to commit theft was rational. Moreover, appellant's contention that the trial court erred in not charging the jury on the lesser-included offense of criminal trespass was rejected, as criminal trespass and burglary have different statutory definitions of "enter." State v. Meru, 414 S.W.3d 159 (Tex.Crim.App. 2013). The indictment did not allege the necessary facts to support the lesser-included instruction. Vernon Adrian Thomas v. The State of Texas, El Paso Court of Appeals, Case No. 08-15-00236-CR, 2/2/2017

08-15-00236-CR
YVONNE RODRIGUEZ JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Kellogg Brown & Root, 15-41623 (5th Cir. 02/03/2017)

A whistlerblower alleged that Robert and James Bennett took kickbacks under a U.S. Army contract in January 2004 in violation of the False Claims Act. The Bennetts worked for appellant Kellogg, Brown & Root, which subcontracted with EGL. The government intervened in August 2010, filing claims against the two under the Anti-Kickback Act. The trial court originally dismissed the case; on remand, the court found the two knowingly accepted kickbacks and held appellant liable, imputing the Bennetts' knowledge of the kickback schemes to the company. Appellant raised three issues of first impression on appeal: 1) the proper standard for imputing knowledge; 2) whether the term "kickback" requires a connection with specific favorable treatment; and 3) whether the government's AKA claims can relate back to the original FCA claims. On the first claim, the court found that apparent authority is not enough to impute an agent's knowledge to the an employer; instead, the employee must have some level of authority, responsibility, or management in the corporation. The court found that Robert Bennett has sufficient authority because he supervised the EGL contract, whereas James Bennett did not. Furthermore, as to the second claim, Bennett got money for overlooking problems under the contract. The court found that the AKA required such a specific connection between favorable treatment and a specific result; conversely, the government does not want to punish gifts given to build general goodwill in the hopes of getting future business. On the third court, the court rejected KBR's argument that the AKA's six-year statute of limitations began in January 2004 and had lapsed by August 2010. The court found the plain language of the AKA allowed the government to relate its claims back to the January 2004 False Claims Act action. The court affirmed the trail court's judgment as to the claims involving Robert Bennett, and reversed and remanded the judgment as it pertained to James Bennett. U.S.A. v. Kellogg Brown & Root, Fifth Circuit, Case No. 15-41623, 2/3/17.

15-41623
LESLIE H. SOUTHWICK, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

City of Houston v. Collins, 14-16-00449-CV (TexApp Dist 01/31/2017)

While en route to assist, non-party officer struck appellee's vehicle while attempting to go around her, causing the vehicle to roll onto its side. Appellee sued for personal injuries claiming the officer's reckless operation of an emergency vehicle caused the action. Appellant filed a plea to the jurisdiction in which it asserted that it was entitled to governmental immunity under the Texas Tort Claims Act. The trial court originally granted the plea, however the court reversed concluding the evidence did not support whether the officer's acted in good faith in a circumstance that did not involve the driver of a motor vehicle fleeing arrest. Appellant filed a second plea to the jurisdiction with new affidavits alleging the officer acted in good faith; the trial court denied appellant's second plea to the jurisdiction. In this interlocutory appeal, appellant argued there was no waiver of its governmental immunity from suit because the officer was entitled to official immunity. The court reversed and dismissed appellee's suit concluding the officer was entitled to official immunity as he was: (1) performing a discretionary function; (2) acting in good faith when responding to a motorcyclist who was evading arrest as a similarly situated officer would under the same or similar circumstances; and (3) was acting within the scope of his authority. The court further noted appellee failed to provide evidence that no reasonable officer could have thought the facts were such that they justified the officer's actions. The judgment of the trial court was reversed. City of Houston v. Collins, Houston 14th Court of Appeals, Case No.: 14-16-00449-CV, 01/31/2017

14-16-00449-CV
WILLIAM J. BOYCE JUSTICE

United States Court of Appeals, Fifth Circuit

Grand View PV Solar Two v. Helix Electric ,16-20384 (5th Cir. 02/01/2017)

Centaurus Renewable Energy of Houston became engaged in a contract dispute with appellants the Helix Entities, a set of California and Nevada companies that build solar plants. Appellants had entered contracts with Grand View PV Solar Two; later, Centaurus and one of the appellants entered into a Mutual Confidentiality Agreement as part of Centaurus' plans to buy Grand View. The MCA had a forum-selection clause granted exclusion jurisdiction to Harris County courts. Centaurus sued the Helix Entities in Harris County for breach of the contracts with Grand View and sought a declaratory judgment to determine rights under the MCA. Appellants then sued Centaurus in California federal court and removed the Harris County case to federal court. Centaurus moved for remand, which the district court granted. On appeal, the court found the forum selection clause of the MCA served as a clear and unequivocal waiver of removal rights. It also found that because removal must be unanimous, the waiver by a single defendant defeated removal. It rejected appellants' arguments that certain provisions of the clause were ambiguous, finding the relevant language "obvious" and that appellants' reading of the clause was "not a reasonable interpretation." The court affirmed the trial court's judgment. Grand View PV Solar Two v. Helix Electric, Fifth Circuit, Case No. 16-20384, 2/1/17.

16-20384
JERRY E. SMITH, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Janvey v. Alguire, 14-10857 (5th Cir. 01/31/2017)

After a Ponzi scheme run by Allen Stanford through his Stanford International Bank collapsed, a court appointed Ralph Janvey the Receiver of various Stanford entities. He froze assets and sought to recover money from people who profited from the scheme, including lawsuits against several Stanford employees who moved to compel arbitration. He purported to sue on behalf of the bank, which was not a party to arbitration clauses in promissory notes at the heart of the case. The district, despite rejecting the Receiver's argument that he may choose which Stanford entity to sue on behalf of, nonetheless denied the motion to compel, holding that the Receiver had properly rejected the arbitration clauses and that arbitration would conflict with the federal equity receivership sheme. The employees appealed their individual cases, which were consolidated. The court held that the Receiver could choose to sue on behalf of the bank. It found the bank was a separate legal entity from the people running the Ponzi scheme that had been freed from its captive role in the scheme by the appointment of a receiver. It was also not a signatory to most of the employees' promissory notes (except in one case, where the court found the defendant waived his right to enforce arbitration). The court also rejected defendants' arguments that the bank is bound by the agreements under the theories of alter ego, estoppel, and third-party beneficiary; in all three cases the reasoning was a variation on the theme of the bank having been separated from Allen Stanford. Having determined that the Receiver could sue on behalf of the bank, the court declined to reach the questions of whether the Receiver could reject the arbitration clauses and whether arbitration conflicted with the federal equity receivership scheme. The court affirmed the trial court's denial of the motion of compel arbitration. Janvey v. Alguire, Fifth Circuit, Case No. 14-10857, 1/13/17.

14-10857

Court of Appeals of Texas, First District

In Re M & O Homebuilders, Inc., 01-16-00602-CV (TexApp Dist 02/02/2017)

Real-party-in-interest Elizondo sued relators for damages in connection with the construction of a home. Seeking to remove a lien placed on the property by Elizondo, relators filed a summary motion and obtained an order removing the lien, but the order also disposed of all parties and claims and stated it was final and appealable. The trial court issued a corrected order more than thirty days later, correcting the original order to remove the finality language. Relators sought mandamus relief to require the trial court to set aside the amended order on the ground that it was improperly signed outside the trial court's plenary power and was therefore void. The court granted the petition holding the order was clear and unequivocal in its finality language. The court held it was not required to review the entire record as the order was clear and unequivocal in disposing of all parties and claims and was therefore following the directive set out in Lehmann. Having determined the order was final, the court further concluded that the trial court had no power to sign the amended order after its plenary power expired as the amended order corrected a judicial error rather than a clerical error. Although the judgment the trial court signed was prepared by relator and contained a mistake, once the trial court signed it, "the mistake [became] part of the court's judgment as actually rendered and it [was] therefore a judicial error rather than a clerical error." The court, therefore, granted relator's petition for mandamus relief. In re M & O Homebuilders, Inc., Houston 1st Court of Appeals, Case No.: 01-16-00602-CV, 02/02/2017

01-16-00602-CV
HARVEY BROWN JUSTICE

Supreme Court of Texas

Paxton v. City of Dallas, 15-0073 (TexApp Dist 02/03/2017)

The City of Dallas received two requests for public information and failed to meet the deadline under the Texas Public Information Act to obtain an attorney general decision that the requested information was exempt. The information in both cases was protected by attorney-client privilege, and had the city met the deadline, it would have received an exemption as attorney-client privilege is categorically exempted under the act. However, when a request for a decision is not timely filed, the act requires public disclosure "unless there is a compelling reason to withhold the information" (Tex. Public Info. Act § 552.101), and Attorney General Ken Paxton issued decisions that the city must release it in both cases. The city challenged the decisions in two separate court actions; the two trial courts split, but in both cases the appeals courts held attorney-client privilege is a compelling reason to withhold information. Paxton appealed to the Supreme Court, which also held that the privilege is a compelling reason. The court stated because the privilege protects free communication and frank disclosure, it applies "with special force" in government actions, so that lawmakers are encouraged to seek out full assistance of counsel when creating policy that affects the public at large. It also found that it had previously gone so far as to expand the privilege to meet another state's standard in a choice-of-law case (Ford Motor Co. v. Leggat, 904 S.W.2d 643), and that federal courts have found the attorney-client privilege "compelling" in other contexts. (e.g. Hanson v. Wells Fargo Home Mortg., Inc., 2013 WL 5674997). The court rejected an argument that the privilege could not be a compelling reason because it is already a categorical exemption under the Public Information Act, finding that the privilege is a compelling reason "in its own right." The court affirmed the appeals courts' rulings. Paxton v. City of Dallas, Texas Supreme Court, Case No. 15-0073, 2/3/17.

15-0073
EVA M. GUZMAN JUSTICE

Court of Appeals of Texas, Fifth District

In re David E. Martin, 05-16-00987-CV (TexApp Dist 02/03/2017)

Following the death of mother in a car accident, relator, the biological father of the subject children, and the maternal grandparents entered into a judgment designating relator as the sole managing conservator. The judgment provided the grandparents with unsupervised visitation to be scheduled subject to the discretion and agreement of all parties. The grandparents subsequently filed a petition to modify the parent-child relationship and sought to be appointed joint managing conservators. Relator filed a motion to dismiss claiming the grandparents failed to meet the statutory requirements for general standing. The trial court signed an order of enforcement for possession and denied relator's motion to dismiss. Relator filed the instant writ of mandamus alleging the trial court abused its discretion by entering the order for enforcement which awarded additional periods of possession and lack of standing. The court conditionally granted the writ in part holding the trial court abused its discretion in rendering the enforcement order as the original judgment was not enforceable by contempt. Notably, the court held the original judgment was not specific and clear regarding the amount of time the grandparents were entitled to visitation as it was allowed only upon agreement of the parties, and therefore was not enforceable by contempt. However, the grandparents had standing to file the petition as they were parties to the original judgment that affects them. As such, the court granted the conditionally granted the writ in part. In re David E. Martin, Dallas Court of Appeals, Case No.: 05-16-00987-CV, 02/03/2017

05-16-00987-CV
CAROLYN WRIGHT CHIEF JUSTICE

Court of Appeals of Texas, Twelfth

Carrizo Oil & Gas, Inc. v. Barrow-Shaver Resources Company, 12-15-00083-CV (TexApp Dist 01/31/2017)

Appellee filed the instant action for breach of a consent-to-assignment provision in a farmout agreement. Appellant asserted that the negotiations and previous drafts informed the trial court that the reasonableness clause for the type of consent it would give had been removed and therefore it could withhold consent for any reason or for no reason. The trial court sided with appellee and, based on the parol evidence rule, did not allow evidence of the parties' negotiations or the four drafts of the farmout agreement to be admitted. As such, judgment was rendered against appellant for $27,690,466. In thirteen issues, appellant contended the trial court erred. The court reversed and rendered judgment that appellee take nothing holding negotiations of a contract can matter in determining whether it was silent on a material term. Here, the previous drafts and negotiations between the parties informed the court that the consent-to-assignment provision was not silent as to the type of consent. Further, the consent-to-assign language was unambiguous and Texas does not require reasonableness or good cause to withhold such consent. Further, the trial court erred in granting appellee's fraud cause of action as there was no evidence to support the element of justifiable reliance. Accordingly, the trial court's judgment was reversed. Carrizo Oil & Gas, Inc. v. Barrow-Shaver Resources Company, Tyler Court of Appeals, Case No.: 12-15-00083-CV, 01/31/2017

12-15-00083-CV
BRIAN HOYLE JUSTICE

Court of Appeals of Texas, Seventh District

Ryder v. The State of Texas, 07-15-00003-CR (TexApp Dist 02/02/2017)

Appellant's convictions for the offenses of aggravated sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure were affirmed. At trial, a family friend and an interviewer from the Department of Family and Protective Services testified as to statements made by the child victims. The court rejected appellant's various arguments on appeal, holding that (1) the evidence of appellant and his wife engaging in sexual intercourse in front of the victims was sufficient to support the conviction of indecency with a child by exposure; (2) there was no error in the jury charge not requiring a unanimous verdict on the identity of the indecent exposure victim, as the exposure itself completes the offense; (3) admission of evidence of an extraneous offense, the sexual assault of a third minor, under article 38.37 of the Texas Code of Criminal Procedure was not an abuse of discretion where the lower court assessed the credibility of the witnesses in a hearing outside the jury's presence; (4) the 2013 amendments to article 38.37 §2 did not alter rules to permit an extraneous offense to be offered as substantive evidence of guilt, and therefore was not a violation of the ex post facto prohibition; and (5) even if counsel's action in not calling a witness fell below an objective standard of reasonableness, appellant did not show with a reasonable probability that, but for the error, the result of the trial would have been different. James Duvall Ryder v. The State of Texas, Amarillo Court of Appeals, Case No. 07-15-00003-CR, 2/2/2017

07-15-00003-CR
JAMES T. CAMPBELL JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Santiago Solano-Hernandez, 15-41554 (5th Cir. 01/26/2017)

Appellant Santiago Solano-Hernandez pled guilty in New Jersey in 2012 to illegal re-entry after deportation following a conviction for an aggravated felony. The underlying felony was a 1995 conviction for endangering the welfare of a child. He was again deported after the 2012 conviction but illegally entered the U.S. twice more, and was tried in the Southern District of Texas for a December 2014 incident. Appellant pled guilty and the trial court sentenced him to 30 months using guidelines that considered his 1995 conviction a crime of violence because it involved sex with a minor. He appealed the sentence, arguing that the trial court erred by considering his felony a crime of violence. Because appellant did not object during trial, the appeals court looked for plain error, which, if found, would give the court discretion to reduce the sentence. The court found appellant satisfied the first element of plain error, that the trial court made an error, because appellant pled guilty only to endangering the welfare of a child and did not assent to the underlying facts about the sexual encounter. However, even assuming appellant could establish the second and third elements (the error was clear or obvious and it affected his substantial rights), the court declined to exercise its discretion. Courts modify only those sentences that "shock the conscious" (U.S. v. Segura, 747 F.3d 323, 331) and do not reduce sentences for recidivists (U.S. v. Martinez-Rodriguez, 821 F.3d 651, 666.) Based on appellant's multiple arrests, and the fact that the sentence well within the maximum of 20 years, the court affirmed the trial court's sentence. U.S.A. v. Santiago Solano-Hernandez, Fifth Circuit, Case Nos. 15-41554 and 15-41582, 1/26/17.

15-41554
JERRY E. SMITH, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Brown v. Hensley, 14-14-00981-CV (TexApp Dist 01/26/2017)

Plaintiff condominium owners sued association and board members to restore their homes after hurricane and fire damage. when complex was instead demolished,. Trial court granted summary judgment in favor of board members, and severed the remaining claims against the association. . In affirming, the court held that board members were immune from personal liability under § 84.004 of the Texas Charitable Immunity and Liability Act because they were volunteers rendering services for the association. "For immunity purposes, a person is acting within the scope of his authority if he is discharging the duties generally assigned to him even if the specific act is wrong or negligent." Dowdy v. Overton, No. 11-96-218-CV. The evidence established that board members were acting on behalf of the association as to decisions made relating to the property. Owners failed to demonstrate that any named board member took any action that constituted a tort or breach of a fiduciary or contractual duty. Moreover, owners could not demonstrate the existence of a genuine issue of material fact because the trial court struck their summary judgment evidence and owners did not challenge that ruling on appeal. Brown v. Hensley, Houston 14th Court of Appeals, Case No. 14-14-00981-CV, 1/26/2017

14-14-00981-CV
John Donovan Justice

Supreme Court of Texas

Nasser v. Liberty Mutual Fire Insurance Co., 15-0978 (TexApp Dist 01/27/2017)

Hurricane Ike damaged petitioner Elie and Rhonda Nasser's six-acre property in Richmond. Liberty Mutual paid several claims, but a dispute arose as to whether petitioners' 4,000-foot fence, which sustained at least $58,000 in damage, was covered under the "dwellings" or "other structures" sections of their policy. Under the latter, the limit of $24,720 would be significantly less than the actual damage. Petitioners sued Liberty Mutual for breach of contract, deceptive trade practices, and related charges. The trial court granted summary judgment for Liberty Mutual and the appeals court affirmed, finding the policy unambiguously defined "other structures" to include the fence. The Supreme Court found that an insurance policy is "ambiguous" if it is "genuinely subject to more than one meaning." Because the fencing was attached to the house on the property at various places, the court found that petitioners' reading of the "dwelling" portion of the policy to include the fence was reasonable. The court also found Liberty Mutual's interpretation unreasonable, which was that fencing necessarily had to be considered an "other structure" because part of the definition of "dwelling" was any structure "connected to the dwelling by fencing." The court found this reading would lead to absurd real-world scenarios. With only one reasonable interpretation, the Court held that the policy unambiguously favored petitioners. The Court reversed the appeals' court affirming of summary judgment and remanded to the trial court. Nasser v. Liberty Mutual Fire Insurance Co., Texas Supreme Court, No. 15-0978, 1/27/17.

15-0978
PAUL W. GREEN JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Jamel McLelland Fowler v. State of Texas, 06-16-00038-CR (TexApp Dist 01/27/2017)

Appellant Jared McClelland Fowler was convicted of two burglaries and theft of an ATV. Among the evidence was video footage of appellant purchasing a box cutter that was found near the abandoned ATV, on the same day marked on a receipt for the box cutter also found near the ATV. Because the store could not electronically copy the video to give to police, an officer used a department camera to record a screen showing the video at the store. On appeal, Fowler argued that the video was not properly authenticated and that the evidence was insufficient to convict. The court found that while police could establish that the video shown in court was an accurate recording of the original surveillance video, the original could not be authenticated. The court noted the state offered no evidence that the store's equipment was functioning properly or that its timestamp was accurate, undermining its authenticity. The court also noted, without further explanation, that the trial court's error of admitting the evidence "undoubtedly affected Fowler's substantial rights and was, therefore, harmful." The court rejected appellant's argument that the evidence – including the erroneously admitted video – was insufficient. But because of the improperly admitted video, the court reversed the conviction and remanded for a new trial. Jamel McLelland Fowler v. The State of Texas, Texarkana Court of Appeals, 06-16-00038-CR, 1/27/17.

06-16-00038-CR
BAILEY C. MOSELEY JUSTICE

Supreme Court of Texas

UDR Texas Properties, L.P. v. Petrie, 15-0197 (TexApp Dist 01/27/2017)

Alan Petrie sued petitioner UDR Texas Properties, d/b/a The Gallery Apartments after he was shot and robbed in the apartment complex parking lot at 2 a.m. He went there to attend a party when he was attacked. Petrie alleged petitioner should have known of the high crime rate in the area and should have used ordinary care to make its property safer, with expert witnesses on both sides discussing foreseeability of crime. The trial court found petitioner had no duty and entered a take-nothing judgment against Petrie. The appeals court reversed, appling the five-factor Timberwalk test (Timberwalk Apartments, Partners, Inc., v. Cain, 972 S.W.2d 749) – proximity, recency, frequency, similarity, and publicity – and finding there was a foreseeable and unreasonable risk of injury. The Supreme Court, however, found the Timberwalk test only gauges foreseeability, whereas the risk must be foreseeable and unreasonable for Petrie to recover. It also found Petrie offered no evidence that the risk was unreasonable, and that he was on notice throughout the proceedings that he must show both. The court reversed the appeals court's ruling and entered judgment in Gallery's favor. UDR Texas Properties, L.P. v. Petrie, Texas Supreme Court, Case No. 15-0197, 1/27/17.

15-0197
JEFFREY V. BROWN JUSTICE

Court of Appeals of Texas, Eighth District

Christopher Ian O'Brien v. The State of Texas, 08-14-00221-CR (TexApp Dist 01/25/2017)

Appellant Christopher O'Brien went hunting on private land with his brother and two friends. One of the friends told the group that his father owned the property and granted permission for the hunt, even though he knew the property had been sold two years earlier to Nathan Pickett. The jury convicted appellant of criminal trespass and the trial court sentenced him to 180 days in jail, a $1,000 fine, and $2,000 in restitution. On appeal, he argued 1) the court should not have allowed two photos from Pickett's surveillance camera into evidence because they were not properly authenticated and violated the Confrontation Clause, and 2) the state did not prove he knowingly and intentionally hunted Pickett's land. On the first count, the court ruled that although the photos were not initially authenticated, any error was cured and therefore harmless because both Pickett and a game warden authenticated them later in the trial, and because appellant acknowledged while testifying that they accurately showed him on Pickett's land. It also found no Confrontation Clause violation because Pickett and the warden testified at trial and appellant's counsel cross-examined them. On the second count, the court found that there was conflicting testimony. Pickett testified that damage and tire tracks at the front gate of the property indicated the group entered through that gate, which was marked with No Trespassing signs, some of which bore his name. Appellant claimed the group entered through an open and unmarked back road and he saw no warning signs until the group left; Pickett countered that the back entrance had a fence and ingress was impossible because of a deep canyon. The court ruled that despite the conflict, this evidence was sufficient for a jury to believe Pickett and to conclude appellant had notice that entry was forbidden. The court affirmed the trial court's judgment. Christopher Ian O'Brien v. The State of Texas, El Paso Court of Appeals, Case No. 08-14-00221-CR, 1/25/17.

08-14-00221-CR
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, First District

Wooters v. Unitech International, Inc., 01-15-00174-CV (TexApp Dist 01/26/2017)

Unitech International, which makes equipment for offshore oil exploration, fired and sued Chris Kutach and Jason Pennington, alleging the two stole trade secrets and otherwise breached their duties to Unitech in the process of attempting to start a competing company. Unitech also sued appellant Tim Wooters, Kutach's former boss at a previous company, who was involved in the startup. The jury cleared appellant of stealing trade secrets and converting Unitech's property, but found that he conspired with Kutach and Pennington to breach their fiduciary duty to Unitech. The jury also found against Kutach and Pennington, assessing damages of more than $7 million for which the three were jointly and severally liable. The appeals court found that Texas recognizes a claim for conspiracy to breach fiduciary duty, but it is a narrow one. The court found no conspiracy in the present case because, while Kutach and Pennington might have breached their employment contract with Unitech by planning to start a company, such an act is neither illegal nor a tort and appellant was not beholden to the contract. Furthermore, appellant was not a party to the two foremer employees' more brazen acts that would constitute a breach of fiduciary duty, such as possessing stolen Unitech property and breaking into the CEO's office. The court also found Unitech had no evidence appellant was aware of any unlawful acts. The appeals court reversed the trial court's judgment against appellant, entered judgment that Unitech take nothing from appellant, and affirmed the judgment in all other respects. Wooters v. Unitech International Inc., Houston 1st District Court of Appeals, Case No. 01-15-00174-CV, 1/26/17.

01-15-00174-CV
JANE BLAND JUSTICE

Court of Appeals of Texas, Second District

In the Matter of M.K., 02-16-00291-CV (TexApp Dist 01/23/2017)

In 1973 the state accused appellant M.K., who was then 15, of murdering his friend while they were home alone playing basketball. The state filed a delinquent-child petition in juvenile court, but dismissed it several months later, because prosecutors believed they did not have enough evidence to rebut appellant's story that a home intruder killed the friend. When police re-opened the case in 2015, they re-interviewed appellant's mother, who told them appellant confessed to her after police had interviewed them in 1973. Confronted with this evidence, appellant also confessed. The state then filed a petition with the juvenile court to waive its exclusive original jurisdiction and transfer the case to the criminal district court. The juvenile court waived its jurisdiction and granted transfer, under Texas Fam. Code § 54.02(j), upon a finding that it was not practicable for the state to proceed before appellant's 18th birthday. However, the appeals court – examining the case sua sponte for subject matter jurisdiction – found that the juvenile court decision relied on language in § 54.02(j) that was not added until 1995, in an amendment that expressly provided it applied only to conduct that occurs from 1996 onward. The law in effect at the time of the conduct granted exclusive jurisdiction to the juvenile court based on the person's age at the time of trial, and because appellant was 58 when the petition to waive jurisdiction was filed, the juvenile court did not have subject-matter jurisdiction to hear the waiver. The court declared the waiver and transfer order void and vacated the order. In the Matter of M.K., Fort Worth Court of Appeals, 02-16-00291-CV, 1/23/17.

02-16-00291-CV
LEE GABRIEL JUSTICE

Court of Appeals of Texas, Eighth District

Juan Antonio Gonzalez v. The State of Texas, 08-14-00293-CR (TexApp Dist 01/25/2017)

Appellant Juan Antonio Gonzalez was convicted of murder of an off-duty police officer and sentenced to 55 years in prison. The incident occurred when appellant was walking home from school with friends and the officer came out of his home to confront the group because one of the friends keyed his car. During the confrontation, appellant knocked the victim to the ground by undercutting his feet with a judo move. The victim hit his head on the concrete sidewalk, and he died 10 days later. The jury heard conflicting evidence about who was the aggressor and other details, and the state also offered evidence that appellant had taken an ecstasy pill that morning at school, six or seven hours before the altercation. The jury was given the choice to convict or acquit on charges of capital murder, murder, manslaughter, and reckless homicide, and convicted on murder (deciding against capital murder likely because appellant could have reasonably doubted the victim's assertion that he was a police officer). Appellant raised 15 issues on appeal. The court denied his claim that the state failed to properly disprove his self-defense theory, finding that the jury reasonably resolved conflicting evidence in favor of its verdict. However, it sustained his issue that the evidence of drug use was extraneous. The court found that it could improperly color the jury's perception of appellant and offered almost no probative value because the state offered no evidence to show that appellant was still under the influence several hours later – and most jurors would be unequipped to gauge the effects for themselves (as they might with alcohol). "We overruled Appellant's legal sufficiency challenge on self-defense not because the evidence of guilt was overwhelming, but largely because the evidence conflicts, and we must honor the jury's choice of which evidence to believe. But painting Appellant as high on drugs that day goes directly to the matter of who the jury was to believe," the court stated. The court declined to consider appellant's other issues, because to do so would compel the court to make a determination as to the lesser included charges, whereas the evidentiary objection warranted remand. The court reversed appellant's conviction and remanded. Juan Antonio Gonzales v. The State of Texas, El Paso Court of Appeals, 08-14-00293-CR, 1/25/17.

08-14-00293-CR
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Supreme Court of Texas

Hall v. McRaven, 16-0773 (TexApp Dist 01/27/2017)

Petitioner Wallace Hall, a University of Texas Regent, prompted an investigation of UT-Austin admissions practices in 2013. A 101-page report, the "Kroll Report," found the university president exercising undue (though not illegal) oversight, helping underqualified students gain admission based on input from influential people. When the report and the names of the influential people became public, petitioner sought the records used in producing the report. The new UT chancellor, William McRaven, denied this request, and a struggle ensued over how much information McRaven was allowed to disclose under the Family Educational Rights and Privacy Act. Petitioner sued, seeking a declaratory judgment that McRaven was acting ultra vires. The Board of Regents then adopted McRaven's proposal to supply records with redactions to meet FERPA requirements. The trial court dismissed the suit and the appeals court affirmed, finding that the Board restricted McRaven's actions by adopting the redaction plan. The Supreme Court found that the Board did not entirely limit McRaven: It allowed him discretion in interpreting and applying FERPA. It also found, therefore, that a successful ultra vires motion must challenge McRaven on an abuse of that discretion. The court then found that McRaven did not abuse this discretion; even if he misinterpreted the law, such an erroneous act is an abuse only if an official reaches it by stepping outside his authority, which McRaven did not. "Indeed, an ultra vires doctrine that requires nothing more than an identifiable mistake would not be a narrow exception to immunity: it would swallow immunity," the court stated. The court affirmed the appeals court's judgment. Hall v. McRaven, Texas Supreme Court, No. 16-0773, 1/27/17.

16-0773
John P. Devine Justice

Supreme Court of Texas

Kramer v. Kastleman, 14-1038 (TexApp Dist 01/27/2017)

Petitioner Lisa Kramer and Bryan Kastleman divorced after nine years of marriage, splitting a $30 million estate. They signed a settlement agreement, but a year later she revoked her consent and asked the court to set aside the agreement, claiming it was fraudulent and she was coerced into agreeing to it. Kastleman objected, because petitioner had already taken cash, reworked a loan, and rented marital property, all under the settlement agreement. The trial court ruled in favor of Kastleman, awarding him $32,000 in attorney's fees, and appeals court dismissed petitioner's appeal. She then petitioned the Supreme Court for review. Kastleman moved to the court to dismiss under acceptance of benefits doctrine, as the appeals court had done, but the Supreme Court rejected this argument. The court said too rigid an application of acceptance of benefits could force a spouse into choosing between meeting daily needs and appealing for what they are due. The court found that in applying the doctrine, courts must determine whether the appealing party clearly intended to acquiesce, whether assets had so dissipated as to prevent the opposing party's recovery if the judgment is modified, and whether the opposing party would be unfairly prejudiced. Here, the assets hadn't dissipated because petitioner was able to reimburse Kastleman if the judgment was modified. The court also found Kastleman wasn't prejudiced, after citing a lost list of factors to consider, because petitioner's handling of affairs after the settlement was reached kept assets within her control whereas otherwise they would have been lost to either party. Furthermore, the court found Kastleman would be prejudiced only if petitioner was unable to reimburse anything owed to Kastleman under any redistribution of property. The court reversed and remanded. Kramer v. Kastleman, Texas Supreme Court, Case No. 14-1038, 1/27/17.

14-1038
EVA M. GUZMAN JUSTICE

Court of Appeals of Texas, Eighth District

Christopher Ian O'Brien v. The State of Texas, 08-14-00221-CR (TexApp Dist 01/25/2017)

E.J.E., a juvenile, appealed a trial court judgment committing him to the Texas Juvenile Justice System for delinquent behavior. Later, his attorney filed a motion to dismiss his appeal, although the motion was not signed by E.J.E. or his guardian. The attorney explained to the court that a signature was not required under Tex. R. App. Pro. 42.1. The court found that while juvenile appeals are generally covered by the Rules of Appellate Procedure, Rule 42.1 does not address whether a juvenile must affirmatively waive a right to an appeal that he has already filed. Texas Fam. Code § 51.09, on the other hand, requires an affirmative waiver once a juvenile files notice of appeal. Thus, the court held that a motion to dismiss an appeal must be supported by the juvenile's signature on the motion or a written waiver of the right to appeal. The court denied the motion with a stipulation that it would reconsider if E.J.E. filed a compliant motion to dismiss. In the Matter of E.J.E., El Paso Court of Appeals, 08-16-00101-CV, 1/25/17.

08-16-00101-CV
YVONNE T. RODRIGUEZ, JUSTICE

Supreme Court of Texas

Brady v. Klentzman, 15-0056 (TexApp Dist 01/27/2017)

The West Fort Bend Star published a story detailing Fort Bend County Sheriff Chief Deputy Craig Brady's improper efforts to help his underage son after a traffic stop that included alcohol. The son, petitioner Wade Brady, sued the newspaper and reporter LeeAnne Klentzman for libel and libel per se for printing, among other things, allegations that he was "unruly and intoxicated" during the stop. The jury found some statements in the article were untrue and found Klentzman acted with malice, although it relied on a definition of "malice" other than "knowledge of falsity or reckless disregard of the truth." The trial court assessed damages totaling $280,000. The appeals court reversed and remanded, holding that Brady bore the burden of proof that the statements were false and that he had to show knowledge of falsity or reckless disregard of the truth. Both sides petitioned the Supreme Court for review; Brady asking to affirm the trial court judgment and the newspaper and Klentzman on the grounds that the case should not have been reversed but not remanded. The Court first found that reporting misbehavior by public officials, and especially police officers, is a matter of public concern (Brawner v. City of Richardson, 855 F.2d 187, 191-92). It also found that a "logical nexus" existed between the public concern and individual statements in that article that Brady alleged were defamatory. Thus, Brady was required to prove falsity and actual malice – knowledge of falsity or reckless disregard for the truth – and the appeals court correctly reversed. However, it also found that the record showed some evidence that the story hurt Brady's reputation, making the damage award appropriate if Brady could prove libel, and therefore remand was proper. The Court affirmed the appeals court's judgment. Brady v. Klentzman, Texas Supreme Court, Case No. 15-0056, 1/27/17.

15-0056
John P. Devine Justice

Court of Appeals of Texas, Fourteenth

In Re Elaine T. Marshall, 14-17-00038-CV (TexApp Dist 01/24/2017)

Preston Marshall filed an application for a temporary restraining order. Relator Elaine T. Marshall, the executor of E. Pierce Marshall's estate, filed a handwritten motion to recuse Judge Mike Wood. The judge stated his belief that the motion did not comply with rules and signed the TRO without first ruling on the motion to recuse nor referring it to another judge. Relator filed for a writ of mandamus, arguing the TRO was void. The court found that a judge must grant or refer a motion to recuse "regardless of whether the motion complies with rules of Civil Procedure." (Tex. R. Civ. Pro. 18a(f)(1)). Although Preston Marshall cited case law holding that a party waives its right to complain if its motion for recusal is not compliant, the court found these cases were decided before the rule was amended in 2011 to add the "regardless" language, and that subsequent decisions rebutted his argument. (Barnhill v. Agnew, No. 12-12-00080-CV, 2013 WL 5657644). Preston Marshall alternatively argued Judge Wood had a "good cause" exception under Rule 18a(f)(2)(A), but the court found this exception "must relate to the necessity for taking further action in a case." The court held the TRO was void, granted a conditional writ of mandamus, and directed the judge to vacate the TRO. In re Elaine T. Marshall, Houston 14th Court of Appeals, Case No. 14-17-00038-CV, 1/24/17.

14-17-00038-CV
Kevin Jewell Justice

Court of Appeals of Texas, First District

In re Hugh Larkin, 01-17-00055-CV (TexApp Dist 01/26/2017)

Relator Hugh Larkin sued a neighboring condominium owner over an encroachment. On the first day of pretrial proceedings, Relator asked that the hearing be recorded. It were not, and Larkin that day filed a written motion to record all proceedings. The next day, after the judge still had not signed an order to record, Relator petitioned for mandamus relief and a stay of proceedings. The court found that the Texas Government Code and Texas Rules of Appellate Proceedings require that all proceedings be recorded by an official court reporter. The trial court had no discretion to deny his request and therefore abused its discretion by failing to record. The court granted mandamus relief and directed the trial court to prepare a transcript for all requested proceedings. In re Hugh Larkin, Houston 1st District Court of Appeals, Case No. 01-17-00055-CV, 1/26/17.

01-17-00055-CV
LAURA CARTER HIGLEY JUSTICE

Court of Appeals of Texas, Fourteenth

Human Biostar v. Celltex Therapeutics, 14-15-00234-CV (TexApp Dist 01/19/2017)

Following mediation, a settlement agreement made pursuant to Rule 11 of the Texas Rules of Civil Procedure was entered into between appellee and two appellants. The agreement contained a provision to arbitrate. When the parties were unable to resolve the differences in their draft documents so as to consummate the agreement, appellee moved to compel arbitration. An order to compel was granted by the trial court, and several months later the trial court entered an order confirming the arbitration award. Appellants argued that the court lacked jurisdiction to entertain an appeal from the order compelling arbitration. Appellants' argument that the trial court, not the arbitrator, should have decided whether the agreement was enforceable before compelling arbitration. Because appellants' challenge to the motion to compel was not specific to the arbitration clause itself, but instead attacked the enforceability of the entire agreement, the trial court did not err in submitting the question of arbitrability to the arbitrator. As for the order confirming the arbitration award, the appeals court found that appellants had waived arguments that they were not provided with appropriate notice of the arbitration proceedings. Further, where one appellant made no application to the trial court to vacate the arbitrator's award, and where the other appellant filed its motion to vacate after confirmation of the award, those issues were also waived on appeal. Human Biostar, Inc. v. Celltex Therapeutics Corporation, Houston 14th Court of Appeals, Case No. 14-15-00234-CV, 1/19/2017

14-15-00234-CV
JOHN DONOVAN JUSTICE

Court of Appeals of Texas, Eighth District

Chambers v. San Augustine County Appraisal District, 12-15-00201-CV (TexApp Dist 01/18/2017)

Appellants owned land in Shelby County, Texas and entered into oil and gas leases which eventually resulted in an interest in two production units which also contained interests in land in San Augustine County, Texas which sent appellants a notice of appraised value. Appellants sought judicial review of the determination of San Augustine County. The trial court granted summary judgment in favor of appellees. Appellants argued that an interest in real property is taxable by a taxing unit only if it is located within its jurisdictional limits and that the express language of the leases prevented cross-conveyance of any interest. Appellees argued that appellants pooled interests with other owners and a portion of a unit is in San Augustine County, thus the appellants cross-conveyed their mineral interests with other mineral owners and are properly taxed in both San Augustine County and Shelby County in proportion to the percentage of the unit lying within each county. Pooling allowed a lessee to join land from two or more leases into a single unit. Ordinarily all participants in a pooling lease agreement cross-conveyed to one another an interest in the minerals subject to the agreement. But parties may include language in lease agreements to avoid cross conveyance. Appellants' leases specified that units "shall not have the effect of exchanging or transferring any interest under" the leases. This language operated as a specific rejection of cross-conveyance of interests and therefore as a matter of law the appellants' leases allow for pooling but not cross-conveyance and therefore the trial court's summary judgment is reversed. Chambers v. San Augustine County Appraisal District, Twelfth Court of Appeals, No. 12-15-00201-CV, 1/18/17

12-15-00201-CV
BRIAN HOYLE JUSTICE

United States Court of Appeals, Fifth Circuit

US v. Dantana Tanksley,15-11078 (5th Cir. 01/18/2017)

Appellant Dantana Tanksley plead guilty to gun possession as a felon. At sentencing, the federal trial court found his previous drug conviction qualified as a "controlled substance offense" under the United States Sentencing Commission Guidelines Manual. He objected to the enhancement and also appealed, but conceded that United States v. Ford (509 F.3d 714) held that possession with intent to deliver – his crime – qualifies as a "controlled substance offense" under the guidelines. Shortly thereafter, however, the U.S. Supreme Court clarified issues regarding "divisible" statutes (Mathis v. United States, 136 S.Ct. 2243), and appellant petitioned for a rehearing to determine whether Ford – a Fifth Circuit case – was still controlling law. Ford had determined that the relevant statute was divisible, defining two crimes: Possession with intent to deliver, which qualified for the enhancement under the Guidelines, and mere delivery, which did not. Mathis held that this approach is proper only when the statute lists elements in the alternative, and furthermore held that when a state court ruling offers guidance as to whether a statute should be read as such, the state ruling controls. The Fifth Circuit found that a state court provided guidance that the statute in question, prohibiting delivery of drugs, was an indivisible statute (Lopez v. State, 108 S.W.3d 293), thus appellant's conviction did not qualify as a controlled substance offense under the Guidelines. It rejected the government's argument that the error was harmless, as the record did not establish that the trial court didn't use the Guideliness in its calculations. However, the court also held that it could not "narrow" appellant's conviction to possession with intent to deliver. The court vacated appellant's sentence and remanded for resentencing. United States v. Dantana Tanksley, U.S. Fifth Circuit Appeals Court, Case No. 15-11078, 1/18/18.

15-11078
REAVLEY, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Dallas Roadster v.Texas Capital Bank,15-41396 (5th Cir. 01/17/2017)

Dallas Roadster obtained $6 million in loans from Texas Capital Bank, including a revolving $4 million loan for operations of its used car business. Two years later, before the loans matured, the Drug Enforcement Agency began investigating Roadster and its CEO, Bahman Hafezamini, with TCB's cooperation. The investigation led to an arrest, although Hafezamini's indictment was eventually dismissed. Shortly before the arrest, TCB notified Roadster, Hafezamini, and the loan guarantors that they were in default because Roadster obtained loans from another bank. Upon the arrest, TCB added two independent grounds for default under the contract related to the arrest. TCB then sued and Roadster filed for bankruptcy, with the actions consolidated in bankruptcy court. That court approved a Confirmed Plan resolving disputes over the loans, but the plan specifically allowed TCB to pursue attorney's fees. TCB sued for the fees. Hafezamini and Roadster filed counter-claims. The trial court entered a take-nothing judgment against Roadster and TCB, and a grant of summary judgment against Hafezamini. All three parties appealed. Hafezamini appealed the trial court's grant of summary judgment against him on five of his original claims. The court rejected all of them on grounds related to Hafezamini's misunderstanding of the law; for example, basing a claim on an "inadequate and conclusory declaration" with no other evidence or seeking relief under a tort that did not fit the facts. Roadster appealed on the grounds that the trial court erred by finding its breaches were material; the breaches that the trial court found included Roadster misrepresenting its financial statements and failing to inform TCB of a change in ownership. The court rejected this argument, noting that the breaches deprived TCB of information highly important in a revolving loan. TCB appealed the trial court's finding that contract provisions allowing attorney's fees were unenforceable and that TCB acted in bad faith by pursuing the fees. The court found that TCB was entitled to the fees and that the trial court did not sufficiently explain its reasons for using its inherent powers to sanction TCB by denying those fees. The court affirmed the trial court's grant of summary judgment against Hafezamini, affirmed the take-nothing judgment against Roadster, vacated the trial court's take-nothing judgment against TCB, and remanded for further proceedings. Dallas Roadster v. Texas Capital Bank, U.S. Fifth Circuit Appeals Court , Case No. 15-41396, 1/17/17.

15-41396
KING, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Charles Richard Joseph v. State of Texas, 14-15-00965-CR (TexApp Dist 01/19/2017)

Two police officers arrested appellant for driving without his license. A car search yielded a baggie of cocaine. Appellant said that the cocaine was his and he bought it 30 minutes prior. A jury found appellant guilty of possessing a controlled substance – cocaine weighing less than one gram. Appellant argued the trial court erred in denying a motion to suppress his statement. The court affirmed, holding that the appellant did not preserve for review any complaints that his statement should have been suppressed based on an illegal search of his automobile or because it was given as a result of compulsion. To preserve an issue for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Here, appellant's motion to suppress did not specify why the search was unlawful, other than a general assertion that the search was not based on probable cause. Nor did the motion to suppress specify why appellant's statement was not made freely or voluntarily and was instead a result of compulsion. Finally, appellant's third argument that his statement should be suppressed because he was not given Miranda warnings was without merit because appellant was not under custodial interrogation when he made the statement. Because the officer's conduct of showing appellant the cocaine was not reasonably likely to elicit an incriminating response, appellant was not being interrogated. Charles Richard Joseph v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-15-00965-CR, 1/19/2017

14-15-00965-CR
KEN WISE JUSTICE

Court of Appeals of Texas, Eighth District

In the Matter of E.H., 08-15-00070-CV (TexApp Dist 01/18/2017)

Appellant E.H. was convicted and sentenced to five years confinement, probated for two years, for charges related to sexual assaults against his sister over a period of several years. At trial, his counsel attempted to establish that the sister, A.S., had lied about the assaults. As part of this strategy, he sought to introduce evidence that A.S. gained advanced knowledge of sexual matters by learning about her parental uncle's conviction for sexual assault. However, A.S. and her mother – both testifying outside the jury's presence – gave conflicting accounts of how much A.S. knew about the conviction, and the mother provided no support for her belief that A.S. knew any details. The court excluded evidence of the conviction and declined to allow counsel to question A.S. in front of the jury. On appeal, E.H. argued that the trial court erred in excluding the evidence and violated his right to confront witnesses. The appeals court found that appellant failed to offer any evidence that the uncle's offense was similar to appellant's, and that appellant "was not prevented from establishing his defense that A.S. obtained her knowledge of sexual matters from alternative sources – just not this particular source." It also found that appellant failed to preserve his Confrontation Clause argument at trial, as counsel did not object to the denial of the request to cross-examine A.S. specifically on those grounds. Having overruled both of appellant's objections, the appeals court affirmed the trial court's judgment. In the Matter of E.H., a Juvenile, El Paso Court of Appeals, Case No. 8/15/00070-CV, 1/18/17.

08-15-00070-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, First District

Datar v. National Oilwell Varco, 01-15-00541-CV (TexApp Dist 01/19/2017)

Appellant, a welder for appellee company had hypertension. He was injured on the job and was diagnosed with a lower-back sprain, but his doctor permitted him to work without restrictions. Several days after this injury, appellant filed a complaint against a coworker, the "lead man" on his shift, claiming the coworker tried to pull down his pants at work. A human resources investigation could not substantiate the sexual harassment complaint, and appellant was advised that he had to continue to work with the coworker as his "lead man." Appellant refused and was terminated for insubordination. Appellant sued asserting discrimination for failure to accommodate his disability, and for retaliation claims under the Texas Commission on Human Rights Act (TCHRA) and the Texas Workers' Compensation Act (TWCA). The trial court granted summary judgment dismissing all of appellant's claims. In affirming, the Court of Appeals found that appellant was released to work without restrictions, and otherwise presented no evidence that his hypertension or back pain substantially impaired him in his ability to work in general. He thus did not present a fact question on reasonable accommodation and summary judgment was appropriate. The retaliation claims also failed under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Even assuming that appellant could establish a prima facie case of retaliation under the TCHRA or TWCA, the burden then shifted to the company to provide a non-discriminatory, non-retaliatory reason for its action to terminate. The company did just that when it presented evidence that appellant refused to work under the only "lead man" on his shift and that he was unwilling to switch shifts. Appellant failed to provide evidence that those reasons were pretextual or had a retaliatory motive. Datar v. National Oilwell Varco, L.P., Houston 1st Court of Appeals, Case No. 01-15-00541-CV, 01/19/2017

01-15-00541-CV
EVELYN V. KEYES JUSTICE

Court of Appeals of Texas, Eighth District

Aguilar v. Morales, 08-15-00098-CV (TexApp Dist 01/18/2017)

Aguilars filed a wrongful death action against the Moraleses over the death of Alvida Aguilar. Margaret Morales was executor of Alvida Aguilar's estate and moved to have the suit transferred to Probate court and the motion was granted. After the change in venue Morales filed a Rule 91a Motion to Dismiss which was granted. Appeal court reversed the order changing venue and case returned to the state trial court where Moraleses filed a Rule 91a Motion to Dismiss which was granted by the trial court and the Aguilars appealed on three issues: the appellees did not file a timely Motion to Dismiss; the trial court erred in dismissing Appellants' claims, and; the trial court did not have the authority to dismiss the case more than 45 days after it had been filed. Appellants argued that the failure of appellees to file a motion to dismiss before venue was transferred to probate court precludes re-asserting the motion when the case was transferred back to the trial court, thus making the motion to dismiss not timely filed. Court held that the relation-back doctrine applied because the original cause of action was never dismissed. When the action was transferred back to the trial court every pleading originally involved, including the petition and motion to dismiss remained the same. So the motion to dismiss filed in the trial court is treated as an amendment to the motion to dismiss filed in probate court making the motion timely filed given that the motion to dismiss filed in probate was filed within the 60 day requirement found in Rule 91a. Court found no error in trial court's order dismissing appellants' claim. A wrongful death action requires the existence and violation of a duty. There is no authority supporting appellants' argument that appellees owed the deceased a duty because the decedent provided appellees with housing, money and other benefits. A trial court must rule on a 91a motion to dismiss within 45 days and ruled on such motion in this case 68 days after the motion was filed. But appellants must still show that such error probably caused an improper judgment, and the appellants failed to show such cause. Aguilar v. Morales, Eighth District Court of Appeals, No. 08-15-00098-cv, 1/18/17

08-15-00098-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Eighth District

Brenda Guadalupe Trevino v. State of Texas, 08-14-00216-CR (TexApp Dist 01/20/2017)

A jury found appellant guilty of interference with public duties. In her appeal appellant argues that the evidence was insufficient to show that the officer was conducting an "investigation" when the alleged interference occurred; and that the trial court did not instruct the jury on statutory speech-only defense. Officers were called to the home of appellant in order to perform a welfare check on appellant's sister who may have been suicidal. While checking on appellant's sister it was alleged that she physically tried to restrain an officer who was performing the check. Court found that there is no statutory definition of "investigation" and that therefore a jury is free to define the term by its common and ordinary meaning. Police officers are tasked by statute to investigate more than just criminal activity – they are tasked, for example, under the health and safety code to determine if someone poses a substantial risk of serious harm to herself or others. Therefore the jury was in its proper discretion when determining that the officer was conducting an investigation at the time of the alleged interference. On the issue of the speech-only defense the court found that there existed a distinction between instructions pertaining to the "law applicable to the case," which are required even in the absence of a request from a defendant, and instructions on "defensive issues," which are not required to be given absent a request from defendant. Court held that the speech-only defense is a defensive issue and thus no requirement for its instruction to be given to the jury absent a request from the appellant. It further held that the evidence supported a finding that there was physical contact anyway and therefore the speech-only defense would not have been found. Brenda Guadalupe Trevino v. State of Texas, Eighth District Court of Appeals, No. 08-14-00216-CR, 1/20/17.

08-14-00216-CR
YVONNE T. RODRIGUEZ JUSTICE

Court of Appeals of Texas, First District

Guam Industrial Services v. Dresser-Rand Company, 01-15-00842-CV (TexApp Dist 01/19/2017)

Appellee Dresser Rand moved for rehearing and for reconsideration move Appellee Dresser Rand sued appellant shipyard, Guam Industrial Services for breach of contract after the shipyard failed to pay appellee for repair and restoration work. Appellee contended that the trial court had jurisdiction over its suit because the parties' contract included an arbitration provision that operated as a forum-selection clause by which the shipyard consented to personal jurisdiction in Houston district court. Appellant filed a special appearance asserting that the trial court lacked jurisdiction, which the trial court denied. The issue on appeal was whether that denial was in error. The Court of Appeals reversed the trial court's order, rendered judgment granting the special appearance, and remanded for further proceedings. The court held that the arbitration provision did not constitute consent to personal jurisdiction in Houston for lawsuits that seek adjudication of claims on the merits. Nothing in the arbitration provision constituted consent to suit in Houston for claims unrelated to compelling arbitration or confirming an arbitration award. Because appellee was not seeking arbitration at the time of the special appearance hearing and because the claims it asserted were unrelated to arbitration, the arbitration provision did not confer personal jurisdiction over the shipyard. The trial court erred in denying the shipyard's special appearance. Guam Industrial Services, Inc. v. Dresser-Rand Company, Houston 1st Court of Appeals, Case No. 01-15-00842-CV, 1/19/2017

01-15-00842-CV
REBECA HUDDLE JUSTICE

Court of Appeals of Texas, First District

Justin Daren Buxton v. State of Texas, 01-15-00857-CR (TexApp Dist 01/19/2017)

Appellant Justin Daren Buxton was sentenced to life for continuous sex abuse of a child, his girlfriend's daughter. Because some time had elapsed since the last instance of abuse, police had no physical evidence, and appellant was convicted on testimony from the victim and her sister. The victim testified she suffered abuse from age 5 until age 10, when the abuse was discovered, and her sister testified that she had frequently witnessed the abuse and that appellant abused her too. Buxton appealed on grounds that challenged the sufficiency of the indictment and on evidentiary grounds. As to the sufficiency of the indictment, appellant argued that the state failed to plead a culpable mens rea as required by the statute, that it failed to give proper notice in violation of due process, and that it was so vague that he could be charged with the individual underlying acts in violation of double jeopardy. Appellant argued the Penal Code required the state to plead a specific culpable mental state (§ 6.02(b-c)), but the court rejected this argument, noting that the Austin Appeals Court already held in a similar case that this provision does not apply to continuous sexual abuse when the underlying offenses have a mental state defined by statute. (Lane v. State, 357 S.W.3d 770, 776). The court also held that the state did not violate due process, despite any lack of specificity in the charges, because appellant had proper notice of the charges against him via a probable cause affidavit, medical evidence. It held that the double jeopardy question is not ripe for review until such time as the state charges appellant with the underlying offenses. On evidentiary grounds, appellant argued evidence of his abuse of the victim's sister should have been excluded under Rules of Evidence 404 and 403. The court found that Texas statute allows such evidence for the charges against appellant "for any bearing the evidence has on relevant matters." (Texas Code Crim. Proc. 38.37 § 1(b)), that several Texas appeals courts have upheld this law as Constitutional, and that the state followed the safeguards enshrined in the law. As to Rule 403, the court found the sister's testimony was not unfairly prejudicial and in fact was necessary to refute appellant's defenses, including his allegation that the victim had lied to help her father win his custody battle. The court also rejected appellant's final argument that the evidence was insufficient to support the charge because the state could not establish two individual acts of abuse in a span of more than 30 days, finding that a reasonable jury could accept the girls' testimony that the abuse lasted for years. The court affirmed the trial court's judgment. Justin Daren Buxton v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-15-00857-CR, 1/19/17.

01-15-00857-CR
EVELYN V. KEYES JUSTICE

Court of Appeals of Texas, Eighth District

Edwin Odell Collins, Jr. v. State of Texas, 08-15-00103-CR (TexApp Dist 01/18/2017)

Appellant convicted for murder of his daughter was sentenced to 40 years in prison. Evidence showed that after ingesting methamphetamines, appellant saw lights outside his home and heard noises. Armed with a shotgun, he investigated with his three children. Appellant heard a yelp and saw the flashlights circling behind him. He fired the shotgun fatally injuring his daughter. On appeal, the court affirmed the conviction. First, the evidence was sufficient to support the finding of guilt, as a rational jury could have convicted appellant under a transferred intent theory. The court declined to consider a polygraph test purporting to show that appellant answered truthfully when denying that he intentionally caused the death of his daughter, as it was not admitted and not part of the evidence before the jury. Nor would the court go outside the record to take judicial notice of information on methamphetamines. There was no error in the omission of jury instructions on self-defense, defense of third persons, and mistake of fact. Appellant never presented evidence that the person or persons with the lights, if they existed, posed any danger. A mistake of fact defense does not apply where an accused shoots one person, thinking them to be another. Finally, there was no error in the trial court allowing the elected district attorney to recuse from the case due to a heavy case load and appointing attorneys pro tem in his stead. Edwin Odell Collins, Jr. v. The State of Texas, El Paso Court of Appeals, Case No. 08-15-00103-CR, 1/18/2017

08-15-00103-CR
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Santillana v. Upton,15-10606 (5th Cir. 01/16/2017)

Appellant Tiofila Santillana sold methadone to Brandon Moore, who was admitted to the hospital the next day with a mix of drugs in his system and died after two weeks of treatment. Appellant was convicted in federal court in 2009 of distributing drugs that resulted in Moore's death. The court rejected her argument that the term "resulted in" should carry "a stronger degree of causation than mere contribution." Subsequently, the U.S. Supreme Court held that a distribution defendant cannot be held liable for a user's death or bodily injury "unless such use is a but-for cause of the death or injury." (Burrage v. United States, 134 S. Ct. 881, 892.) Appellant then filed a petition for a writ of habeas corpus under Burrage, which the trial court dismissed for lack of jurisdiction, holding that Burrage did not apply retroactively without an explicit instruction from the Supreme Court and that it was not authorized to determine otherwise. Santillana appealed. The court found that any Supreme Court decisions "interpreting federal statutes that substantively define criminal offenses automatically apply retroactively." Although noting that some courts view Burrage as a procedural ruling, the Fifth Circuit found it was a substantive ruling, relying on rulings from the Seventh and Eighth Circuits. (Krieger v. United States, 842 F.3d 490; Ragland v. United States, 784 F.3d 1213). The court also rejected the trial court's finding that Tyler v. Cain (533 U.S. 656) required an explicit holding of retroactivity, noting that Tyler only applies when the federal statute in question requires such a holding. Lastly, the court rejected the government's argument that the initial conviction supported a finding of but-for causation, such that it was proper even under Burrage. The court reversed the dismissal of appellant's habeas corpus and remanded. Tiofila Santillana v. Jody Upton, Warden, Federal Medical Center Carswell, U.S. Fifth Circuit Appeals Court, Case No. 15-10606, 1/16/17.

15-10606
JERRY E. SMITH CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Republic Waster Servicesv. Texas Disposal,15-11035 (5th Cir. 12/15/2016)

Appellant Republic Waste Services of Texas sued Texas Disposal Systems over which company had rights to dispose waste from various construction projects in San Angelo. Both firms had contracts with the city; Texas Disposal's contract allowed any disposal service "that does not conflict … with the exclusive rights granted by" appellant's contract. When Texas Disposal began hauling waste from certain projects, appellant sent a cease-and-desist letter, and Texas Disposal answered that exclusive contracts for temporary projects are unenforceable under Texas Health and Safety Code § 364.034(h). Appellant sued, seeking money damages in addition to a declaratory judgment that its contract was valid and an injunction against Texas Disposal. Texas Disposal filed a 12(b)(6) motion for dismissal, citing the Code; appellant filed a motion for partial summary judgment; and the trial court granted Texas Disposal's motion, then denied appellant's motion as moot. An appeal followed. The court found that the relevant section indeed excluded temporary projects from the Code's general grant of authority for municipalities to enter into waste-hauling contracts, but that section did not overrule San Angelo's home-rule authority to enter into exclusive contracts. Furthermore, whereas subsection (f) of the code (regarding grease disposal) demonstrated a clear legislative intent to limit home-rule powers, subsection (h) was devoid of such language and that therefore the Legislature had no such intent. The court thus held the trial court erred in granting the 12(b)(6) motion to dismiss. The court reversed the trial court's order to dismiss, vacated the part of the order denying appellant's motion for summary judgment as moot, and remanded for proceedings consistent with its opinion. Republic Waste Services of Texas, Ltd., v. Texas Disposal Systems, Inc., U.S. Fifth Circuit Court of Appeals, Case No. 15-11035, 12/15/16.

15-11035
CARL E. STEWART CHIEF JUDGE

Court of Appeals of Texas, Second District

Teresa Lathem v. The State of Texas, 02-15-00228-CR (TexApp Dist 01/12/2017)

Just before jury selection commenced in a criminal trial, an indigent appellant asked for new court-appointed counsel at a pretrial hearing. When that request was denied by the court, appellant said, "Then I need to have him removed as counsel, and I'll name myself as counsel." That request was similarly denied, and the trial court commenced voir dire. Defense counsel entered a plea of not guilty on behalf of appellant, but she was eventually convicted of six counts of criminal solicitation of capital murder with 50 years' imprisonment on each count. Appellant contended on appeal that the trial court erred in denying her request for self-representation. The appeals court found that appellant's statement was a clear and unequivocal assertion of her wish to represent herself. The plain, ordinary, and generally accepted meaning of her statement – "I'll name myself as counsel" – showed that she wanted to act as her own lawyer. It is well-settled law that a request for self-representation is timely if brought before the jury is impaneled. Once the request was made, the trial court had a duty to determine that appellant voluntarily, knowingly, and intelligently waived counsel and as required by Faretta v. California, 422 U.S. 806 (1975) it was incumbent upon the court to admonish her of the dangers and disadvantages of self-representation. There was no evidence in the record that appellant's statement was simply an off-the-cuff de minimis protest designed as a dilatory tactic to delay the start of trial or to gain a tactical advantage, and the state's various arguments that appellant waived her request by later conduct were without merit. The judgment of the trial court was reversed and the case remanded for further proceedings. Teresa Lathem v. The State of Texas, Fort Worth 2nd Court of Appeals, Case No.: 02-15-00228-CR, 1/12/2017.

02-15-00228-CR
KERRY FITZGERALD JUSTICE

Court of Appeals of Texas, Eighth District

Ordonez v. Abraham, 08-14-00157-CV (TexApp Dist 01/11/2017)

A probate court appointed appellant Rene Ordonez administrator of the estate of Jay Clayton Grady, who was killed by a truck while crossing a street. The court authorized him to engage counsel to pursue claims on behalf of the estate according the terms of an engagement letter. Appellant filed a wrongful death suit against the William Abraham and Joseph Abraham, the driver and owner of the truck, on behalf of two children Grady had with Maria Hernandez, who claimed to be his common-law wife. However, the probate court discovered that Grady was married to Josephine Grady, who also filed a wrongful death suit – and later, Hernandez filed a separate wrongful death suit on behalf of her children. The 327th District Court consolidated the various cases, authorizing another attorney to represent the children. Hernandez settled out of court, appellant objected to the settlement, the court overruled him, and an appeal followed. Appellant argued 1) the 327th order authorizing another attorney was a collateral attack on an earlier order of the probate court, 2) no other suit on behalf of the children was permitted once he properly filed, and 3) the settlement was void under public policy due to its terms. The appeals court, noting the importance of allowing parties to choose their own attorneys, found on the first issue that in an issue on concurrent jurisdiction – as between the probate court and district court – parties can forfeit their right to contest jurisdiction by their conduct. The court also found that appellant invoked the 327th's jurisdiction to resolve certain issues along the way, thereby forfeiting his right to contest its jurisdiction. On the second issue, the court found the 327th cured any errors caused by multiple suits by consolidating all suits. On the public policy issue, appellant argued that a provision in the settlement functioned as a "Mary Carter" agreement, but the court found he waived his right to raise that objection. Having overruled all of appellant's objections, the appeals court affirmed the trial court's judgment. Ordonez v. Abraham, El Paso Court of Appeals, 08-14-00157-CV, 1/11/17.

08-14-00157-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Thirteenth

Jerry Hartfield v. State of Texas, 13-15-00428-CR (TexApp Dist 01/19/2017)

Appellant Jerry Hartfield was convicted of murder and sentenced to death in 1977. The appeals court in 1983 vacated his conviction and ordered a mandate for a new trial to issue 15 days later. On the 11th day, the governor commuted appellant's sentence from the death penalty to life in prison. The state, believing that appellant's life sentence was valid, did not retry. He filed a series of pleadings beginning in 2006, including claims that the state violated his 6th Amendment right to a speedy trial, and petitioned the Matagorda County trial court to dismiss his indictment. The trial court in 2014 denied the motion to dismiss under a Barker analysis (Barker v. Wingo, 407 U.S. 514, 530–33), clearing the way for retrial in 2015, when appellant again was convicted and sentenced to life. He appealed on grounds that the state violated his right to a speedy trial. The appeals court applied its own analysis of the four factors in Barker. It found the first and second factors, length of the delay and reason for the delay, weighed heavily against the state. As to the second factor, it found the state was negligent in misapplying the law regarding the governor's commutation, and that the delay was not caused by intentional action on appellant's part. (Conversely, the trial court found the state was negligent but did not weigh this factor heavily against the state because prosecutors did not act in bad faith.) The court found the third factor, timing of the assertion of a right to a speedy trial, weighed against appellant because of his 23-year delay in asking for a new trial. It found the fourth factor, prejudice against the accused, weighed against the state because appellant spent a lengthy term in prison without a conviction. However, it agreed with the trial court that this factor was "extenuated" by appellant's inaction for 23 years, as a lengthy delay erodes the state's ability to present a trial due to lost evidence and other factors. Balancing the four factors, the court ruled the state violated appellant's right to a speedy trial "due to the unprecedented amount of time Hartfield spent in prison without a conviction or sentence, as well as the serious negligence on the part of the State." The court reversed the trial court's dismissal of appellant's motion to dismiss and ordered a dismissal of the state's indictment with prejudice. Jerry Hartfield v. The State of Texas, Corpus Christ Court of Appeals, Case No. 13-15-00428-CR, 1/19/17.

13-15-00428-CR
GINA M. BENAVIDES JUSTICE

Court of Appeals of Texas, First District

Jason Robinson v. State of Texas, 01-15-00808-CR (TexApp Dist 01/19/2017)

Appellant Jason Robinson, an accused pimp, was sentenced to 45 years for aggravated kidnapping and aggravated sexual assault for an incident involving a prostitute who worked for him. Appellant moved for a new trial because his counsel did not call any witnesses during sentencing to testify on his behalf. The trial court declined to hold a hearing on the motion for a new trial, and he appealed on three grounds: 1) ineffective counsel, 2) the trial court abuse of discretion by failing to hear the motion, and 3) trial court's assessment of court costs. On the first argument, eight of appellant's relatives wrote letters to the court painting appellant's character in a positive light. However, seven of the eight failed to mention whether the letter writer was available in court to testify and none of the letter writers submitted sworn affidavits as to the contents of their letters or their opinion of appellant. The court thus found that no evidence on the record showed appellant would have benefitted from calling witnesses to the stand. On appellant's second argument, the court held that without affidavits stating the factual basis for his claim, as a matter of law appellant was not entitled to a new trial. (Hobbs v. State, 298 S.W.3d 193, 199). As to the third argument, the trial court improperly assessed court costs for both charges even though they were heard together (Tex. Code Crim. Proc. art. 102.073), and appellant asked the court to vacate the higher of the two ($659 for the aggravated sexual assault offense). Jason Robinson v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-15-00809-CR, 1/19/17.

01-15-00809-CR
EVELYN V. KEYES JUSTICE

Court of Appeals of Texas, Eighth District

Ring Energy v. Trey Resources, 08-15-00080-CV (TexApp Dist 01/18/2017)

Oil firm Trey Resources obtained permits from the Texas Railroad Commission for an injection well in an oil field in Andrews County. Appellant Ring Energy, a neighbor of Trey, disputed whether its predecessor received required notice of the project. Before Trey's operations began, appellant sued Trey in Andrews County seeking damages and an injunction. Trey moved to dismiss because appellant failed to exhaust its administrative remedies and for lack of jurisdiction, arguing Texas law required appellant to file suits for equitable relief only in Travis County, where the Commission is headquartered. The trial court granted the motion to dismiss for lack of jurisdiction. On appeal, both parties relied on Tex. Gov't Code § 85.321, which says "[a] party that may be damaged by another party['s] … waste … may sue for and recover damages and have any other relief to which he may be entitled at law or in equity." Appellant focused on the "at law or in equity" language, whereas Trey interpreted the "recover damages" language to mean the entire provision applies only when damages have occurred. The court found fault with both readings, and instead turned to other provisions of the code. Finding that certain sections explicitly required equity suits only in Travis County, but § 85.321 did not, the court held that "the Legislature intended to allow pre-injury injunctive relief in the country where the injury is threatened." The court reversed the trial court's order dismissing the suit. Ring Energy v. Trey Resources, Inc., El Paso Court of Appeals, Case No. 08-15-00080-CV, 1/18/17.

08-15-00080-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Eighth District

Chico Auto Parts v. Crockett, 08-15-00021-CV (TexApp Dist 01/18/2017)

Appellant, a provider of hazardous material remediation services alleged it was only partially paid for its cleanup services, and sued Montcrest Energy, a co-owner of oil and gas interests in the well. The trial court ruled against Montcrest, which filed for bankruptcy without paying the judgment. Appellant then filed the present suit for breach of contract, quantum meruit, and fraud against Black Strata, the LLC that operated the well, and appellee, another co-owner of the well and the managing member of Black Strata. Appellant contended that all three parties were jointly and severally liable for the debt. As to appellee, the trial court granted summary judgment on all claims in his favor. The court affirmed. On the breach of contract claim, appellant's pleadings in the prior lawsuit, as well as its responses to discovery requests, revealed that the contract was with one of the corporate entities, not with appellee in his individual capacity as a well owner. As for appellee's membership in the LLC as grounds for contractual liability, appellant completely failed to come forward with evidence to establish that appellee could be held liable by piercing the corporate veil. On the remaining causes of action, the existence of an implied-in-fact contract between appellant and Black Strata barred appellant from recovering under a quantum meruit theory for those same services. Summary judgment was also proper on the fraud claim. Although a plaintiff may sue a corporation's affiliate for his torts, including fraud, without the need to pierce the corporate veil, the traditional elements of fraud must be established. Here, there was no evidence that alleged misrepresentations as to the true owners and operators of the well were material or that appellant justifiably relied on a material misrepresentation. Chico Auto Parts & Service, Inc. v. Crockett, El Paso Court of Appeals, Case No. 08-15-00021-CV, 1/18/2017

08-15-00021-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Third District

Joseph Weber v. The State of Texas, 03-16-00338-CR (TexApp Dist 01/12/2017)

Appellant was charged with five counts of aggravated sexual assault of a child, with one count of continuous sexual abuse of a child, and with two counts of indecency with a child by exposure. At the conclusion of the guilt-or-innocence phase of the trial, the jury found appellant guilty of the first two aggravated-sexual-assault counts, of the continuous-sexual-abuse count, and of the two indecency-by-exposure counts and recommended an imprisonment term. On appeal, appellant argued that the jury charge submitted violated his double-jeopardy guarantee against multiple punishments for the same offense and was inconsistent with the dictates of the continuous-sexual-abuse statute. The court reversed appellant's convictions for aggravated sexual assault holding his double jeopardy rights were violated as the three convictions were based on conduct occurring in the same period of time and the alleged victim was the same in both counts. The court determined that it would violate appellant's rights against double jeopardy to permit convictions for both continuous sexual abuse and an attempt to commit a predicate act with respect to conduct committed against the same complainant during the same period of time. Price v. State, 434 S.W.3d 601, 610 The court concluded that the proper remedy was to vacate appellant's two convictions for aggravated sexual assault and to uphold his conviction of the more serious count of continuous sexual abuse. Joseph Weber v. The State of Texas, Austin Court of Appeals, Case No.: 03-16-00338-CR, 01/12/2017

03-16-00338-CR
DAVID PURYEAR, JUSTICE

United States Court of Appeals, Fourth Circuit

JBS Carriers, Inc. v. Washington, 04-15-00463-CV (4th COA. 01/11/2017)

This appeal arose out of a personal-injury negligence suit brought by appellees, the surviving children of decedent who was killed in an accident when she was struck by an 18-wheeler tractor-trailer driven by appellant. At trial, the jury determined that appellant's negligent conduct was 50% responsible for the accident; appellant-employer was 30% responsible for the accident; and decedent's negligent conduct was 20% responsible for the accident. On appeal, appellant-employer argued that the evidence was legally and factually insufficient to support the jury's finding of direct negligence on its part. Appellants further argued that the trial court's evidentiary rulings resulted in an improper judgment and did not support the damages award. The court affirmed holding the evidence, including expert testimony, was legally and factually sufficient to support the jury's findings of direct negligence against appellant-employer and the that the trial court did not abuse its discretion in its Rule 403 evidentiary rulings. Finally, the court held the evidence was legally and factually sufficient to support the jury's award of wrongful-death damages to appellees. However, the court found that the trial court's judgment erroneously omitted the jury's award of survival damages, erroneously calculated the wrongful-death damages, and erroneously calculated prejudgment interest. As such, the matter was remanded to with instructions to sign an amended judgment in conformity with the opinion. JBS Carriers, Inc. v. Washington, San Antonio Court of Appeals, Case No.: 04-15-00463-CV, 01/11/2017

04-15-00463-CV
KAREN ANGELINI, JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Knoderer v. State Farm Lloyds, 06-16-00009-CV (TexApp Dist 01/13/2017)

Appellants' home sustained extensive water damage resulting from the separation of a water pipe from its fitting. In the first appeal of this matter, the court reversed the trial court's death penalty sanctions assessed against the appellants and remanded the cause for further proceedings. On remand, the trial court assessed lesser sanctions against appellant-husband related to his sanctionable actions. Following a jury trial on the misrepresentation claim brought under the insurance code, the jury found that neither party made misrepresentations relating to an insurance policy; that at least one of the appellants contributed to the loss; that at least one of the appellants intentionally concealed or misrepresented a material fact; and that at least one of the appellants committed fraud against appellee. The trial court entered a take-nothing judgment against appellants. On appeal, the court found that the trial court did not abuse its discretion in assessing monetary sanctions. However, the court determined that the trial court erred in admitting spoliation evidence and in submitting a spoliation instruction, but that such error was harmless. Moreover, the court held that the trial court erred in awarding attorney fees under §541.153 of the insurance code. Therefore, the court reversed the trial court's award of attorney fees but affirmed the remainder of its judgment. Knoderer v. State Farm Lloyds, Texarkana Court of Appeals, Case No.: 06-16-00009-CV, 01/13/2017

06-16-00009-CV
BAILEY C. MOSELEY JUSTICE

Court of Appeals of Texas, Eighth District

Segoviano v. Maria D. Guerra, 08-15-00190-CV (TexApp Dist 01/13/2017)

Appellant Jorge Segoviano sought to remove Maria Guerra from a mobile home he owned. Guerra had contracted with appellant in 2003 to assume his promissory note on the home, with title passing to her only when she made all payments due under the note, but she stopped making payments in 2014. Appellant first filed an eviction petition, which was denied, then sent Guerra a letter demanding she vacate, which she did not. Appellant then filed a petition with the Justice Court to evict Guerra as a trespasser, arguing that her contract had been canceled, in which case the contract provided that Guerra would be a trespasser subject to a forcible detainer action. The trial court granted Guerra's motion to dismiss for lack of jurisdiction, and Segoviano appealed. Guerra argued in her appeal brief that forcible detainer is not an appropriate cause of action because the mobile home is not real property. The appeals court found that a mobile home is personal property under the Texas Property Code unless the owner files a statement electing to treat it as real property. The court also found appellant did not do so, and that the property taxes he presented as evidence at trial show a personal property serial number. Because the home was personal property, the court found, the proper cause of action is a trial of the right of property in a court with proper jurisdiction. The court thus held that Guerra's brief implicated an issue of subject matter jurisdiction that cannot be waived, and therefore the trial court did not have jurisdiction to hear the matter, affirming the trial court's judgment. Segoviano v. Guerra, El Paso Court of Appeals, 08-15-00190-CV, 1/13/17.

08-15-00190-CV
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, Fourteenth

In the Interest of A.L.H., 14-16-00578-CV (TexApp Dist 01/10/2017)

Adam was born in jail to two parents with long histories of crime and drug abuse. They belonged to the United Nuwaubian Nation of Moors, which was described at trial as a cult. A trial court terminated both parents' rights and placed Adam with a foster family (the Hoods), although Adam's aunt, M.M., had also applied for conservatorship. The Department of Protective and Family Services had found M.M. to be an appropriate parental figure but placed Adam with the Hoods because he had bonded to them. After an appeals court reinstated father's rights, the Hoods filed a petition to adopt Adam. The court terminated the father's rights again, denied conservatorship to M.M., and granted conservatorship to the Hoods. M.M. and the father both appealed. The appeals court denied several of M.M.'s challenges because the evidence supported the jury's findings, and several others because she failed to preserve them. It also turned down her challenge on grounds of res judicata and collateral estoppel, finding that the parties and circumstances were different in the first round of litigation. On the father's appeal, the court noted that terminating parental rights after a court terminated them required clear and convincing evidence. (Texas Fam. Code § 161.001). The appeals court found clear and convincing evidence due to the father's history of several arrests and several incidents that suggested untreated mental illness, including his focus on Nuwaubian beliefs and rambling text messages he sent to a social worker on the case discussing (among other things) UFOs and his association with the Rockefeller family. The court also turned down other challenges by the father because he did not preserve them at trial. The appeals court affirmed the trial court's judgment. In the Interest of A.L.H., a Child, Houston 14th Court of Appeals, 14-16-00578-CV, 1/10/17.

14-16-00578-CV
KEN WISE JUSTICE

Court of Appeals of Texas, Fourteenth

In re State Farm Lloyds, 14-16-00696-CV (TexApp Dist 01/10/2017)

Hai and Kieu Nga Tran had an insurance policy for their Sugar Land home with Relator State Farm. The policy included a clause allowing either party to demand an appraisal if the parties disagreed on a damage amount. After the Trans reported damage from a storm, State Farm's inspector estimated the damage at $432, well short of the Trans' $8,174 deductible, and wrote to inform them State Farm would not cover the damage. A public adjuster estimated the damage at $73,000, and the Trans, without contacting Relator, sued for breach of contract, breach of the duty of good faith and fair dealing, and violations of Texas insurance law. Relator demanded an appraisal, which the Trans rejected, and Relator then moved for the court to compel appraisal and abate the case pending the appraisal. The trial judge rejected the motion, and Relator sought mandamus relief. The appeals court rejected the Trans' argument that Relator waived its right to appraisal, finding that "appraisal still may be appropriate after the insurer has denied the claim." (State Farm Lloyds v. Johnson, 290 S.W.3d 886, 894). In the present case, Relator denied the claim only because its estimate fell below the Trans' deductible, and it did not waive its appraisal right in writing, as required by the policy. The appeals court found there was no issue of fact as to whether Relator waived its right to appraisal, and therefore the trial court abused its discretion by determining that it did. The court also rejected the Trans' argument that the appraisal clause was illusory, finding that it allowed either party to demand appraisal and did not grant Relator the power to terminate or modify the clause. The appeals court directed the trial court to 1) vacate the order denying Relator's motion to compel appraisal and 2) order the parties to engage in an appraisal. In Re State Farm Lloyds, Houston 14th Court of Appeals, 14-16-00696-CV, 1/10/17.

14-16-00696-CV
KEM THOMPSON FROST CHIEF JUSTICE

Court of Appeals of Texas, Seventh District

Ex parte Emily Kay Smirl, 07-16-00055-CV (TexApp Dist 01/12/2017

Emily Kay Smirl sought expunction of her arrest record for DWI arrest after her conviction was overturned. She originally pled guilty, but the appeals court ruled the arresting officer did not have reasonable suspicion to detain her. On remand, appellant the State of Texas moved to dismiss the charges "in the interests of justice." Smirl moved for expunction of her record, arguing the charges were dismissed because "the presentment [of the charge] had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal," meeting the standard for expunction under Texas Code of Crim. Proc. 55.01(a)(2)(A)(ii). The trial court granted Smirl's motion, and the state appealed. On appeal, Smirl again argued that the state lacked evidence, and appellant argued only that her prior guilty plea was evidence of probable cause, relying on In re Expunction of Wilson (932 S.W.2d 263). However, the appeals court distinguished Wilson because prosecutors in that case had other evidence of guilt, and noted that in State v. N.R.J. (453 S.W.3d 76) the Fort Worth appeals court ruled that only an admission of guilt to a different offense arising out of the same facts would bar expunction of the arrest record. Here, "Smirl's original guilty plea was a nullity and no effective plea was ever entered." The appeals court affirmed the trial court's order granting expunction. Ex Parte Emily Kay Smirl, Amarillo Court of Appeals, 07-16-00055-CV, 1/12/17.

07-16-00055-CV
PATRICK A. PIRTLE JUSTICE

Court of Appeals of Texas, Eighth District

In the Interest of R. A. G., 08-16-00178-CV (TexApp Dist 01/11/2017)

R.A.G. was born in 2007 while his parents, mother G.B. and appellant father R.E.G., were in prison for drug trafficking. R.A.G. lived with his maternal grandmother until G.B. was released; appellant was deported to Mexico upon his release in 2012. When G.B. was later arrested an imprisoned on multiple charges, the Texas Department of Family Services placed him with his aunt, S.O., and her husband. The Department filed to terminate parental rights of both G.B. and appellant, conducting a lengthy search for appellant. Eventually, the trial court ordered an attorney ad litem and ordered substitute service. Appellant later filed a general denial and attended the trial by telephone. The court terminated both parents' rights, finding that appellant endangered his child and termination was in the best interests of the child. R.E.G. appealed. The appeals court found that there were sufficient facts to determine that appellant endangered R.A.G. The court found that engaging in crime leading to deportation can harm a child's physical and mental well-being. Noting that these factors are not sufficient to warrant termination, the court also found that appellant made no effort to contact his son after release and that this total lack of contact endangered R.A.G's emotional well-being. It overturned appellant's challenge to the appointment of the Department as R.A.G.'s permanent managing conservator, ruling it was subsumed in appellant's challenge to termination of parental rights. Turning to appellant's challenge to the best interest ruling, the court found that many of the factors that determines a child's best interest weighed against appellant: S.O. and her husband provided a safe home, R.A.G. bonded to them and considers her husband to be his father, they provide the "permanence" that is paramount to a child's well-being, appellant has a criminal record, and appellant has been completely absent from R.A.G.'s life, not only through his deportation but by his own inaction in neglecting to attempt contact. Lastly, the court rejected appellant's argument that the Department intentionally failed to serve him and thereby denied him due process, finding that he waived this complaint by filing an answer and making an appearance. The court affirmed the trial court's order terminating parental rights. In the Interest of R.A.G., a Child, El Paso Court of Appeals, 08-16-00178-CV, 1/11/17.

08-16-00178-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, First District

William Porter v. The State of Texas, 01-15-00960-CR (TexApp Dist 01/10/2017)

A jury found appellant guilty of murder and sentenced him to 33 years of imprisonment. The murder investigation had revealed that after police left the scene of the crime, appellant paged his attorney, who arrived and performed a walk-through of the premises. While there with an eyewitness, the attorney noticed a bullet hole in the back of a couch, pulled a bullet from the hole, put it in his pocket, and removed if from the scene. The attorney later acknowledged that his conduct could constitute evidence tampering, but in exchange for immunity testified to his actions before a grand jury and at trial. On appeal, appellant contended that the trial court erred in admitting the attorney's testimony about his removal and secretion of the bullet because it constituted a privileged communication whose admission violated the attorney-client privilege. The conviction was affirmed, with the testimony deemed allowable. The attorney's testimony did not concern a communication that he had with the appellant, nor work done to facilitate the rendition of legal advice. Neither Tex. R. Evid. 503(b)(1), nor the special rule for criminal cases under 503(b)(2), extends the privilege to bar testimony regarding attorney conduct that constitutes tampering with evidence. Such conduct is not in furtherance of the attorney-client relationship, which is required to invoke the privilege. And, when a lawyer tampers with evidence, with or without the client's knowledge, he is not engaged in the rendition of legal services even if he thought his conduct was in his client's best interest. Finally, any error in failing to limit the attorney's testimony was rendered harmless by consistent and cumulative testimony admitted into the record through the eyewitness's testimony. William Porter v. The State of Texas, Houston 1st Court of Appeals, Case No.: 01-15-00960-CR, 1/10/2017

01-15-00960-CR
JANE BLAND JUSTICE

United States Court of Appeals, Fifth Circuit

Hamilton v. Turner, 16-40611 (5th Cir. 01/12/2017)

Brandy Hamilton and Alexandria Randle sued three police officers and their departments after they were detained for more than a half hour during a traffic stop for speeding and subjected to a roadside body cavity search for marijuana. Two of the officers settled. A trial proceeded against the third, appellant Aaron Kindred, who was on the scene but not involved in the detention or search. Appellant argued he was entitled to qualified immunity as a bystander because the search did not involve excessive force and moved for summary judgment. The trial court denied his motion, finding that Plaintiffs had established excessive force and appellant was therefore liable. In an interlocutory appeal, he first argued that the trial court erred in allowing a theory of excessive force, because that theory applies only to seizures, not searches. The appeals court called this argument "meritless" and found Plaintiffs were seized when they were handcuffed. It also found that the incident fit the elements of excessive force: injury, direct force, and unreasonableness (Flores v. Palacios, 381 F.3d 391, 396). The court noted that the invasive search gave rise to injury, resulting directly from the force in the search, and that any reasonable officer would have conducted the search at a medical facility instead of during the stop. The court also declined to address appellant's argument that there was no dispute of material fact regarding the elements of bystander liability, as it lacked jurisdiction to review the trial court's determination of a dispute. The appeals court dismissed the interlocutory appeal. Hamilton v. Kindred, U.S. 5th Circuit Court of Appeals, 16-40611, 1/12/17.

16-40611
EDWARD C. PRADO CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Adedunye-Ikhimokpa v. Methodist Hospital West Houston, 14-16-00160-CV (TexApp Dist 01/10/2017

Appellants the Ikhimopka family sued Houston Methodist West Houston Hospital after a family member died while waiting for treatment in the hospital lobby. Appellants first filed a complaint with an expert report attached, but failed to serve it on the hospital. Later they served an amended complaint without the report. After the hospital answered the amended complaint, appellants properly filed and served an amended complaint again without the report, and later still properly served the report. The hospital answered 21 days after service of the report, claiming the report was insufficient. The trial court granted summary judgment for the hospital. On appeal, the Ikhimopkas argued that the hospital waived its right to object to the report by failing to make a timely reply, and that the report was sufficient. Appellants had based their first argument on a 21-day window from the time they first filed the report, but the appeals court found the hospital was required to respond within 21 days of proper service, which it did. The court also found that appellants did not cite to any authority to support their claim that the hospital failed to perform its duties, and that therefore the report was not sufficient. The court affirmed the trial court's order granting summary judgment. Adedunye-Ikhimopka v. Houston Methodist West Houston Hospital, Houston 14th Court of Appeals, 14-16-00160-CV, 1/10/17.

14-16-00160-CV
KEM THOMPSON FROST CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Ultraflo Corp. v. Pelican Tank Parts, Inc., 15-20084 (5th Cir. 01/11/2017)

Thomas Mueller helped draw designs for new butterfly valves for appellant Ultraflo. Pelican Tank Parts hired Mueller away from appellant, whereupon Pelican began manufacturing similar valves. Appellant suspected Pelican hired Mueller to gain access to trade secrets. After several legal maneuvers on both sides, and a federal court ruling that most of appellant's state tort claims were preempted by copyright law, appellant filed a claim for copyright infringement and misappropriation of trade secrets. A jury rejected both claims. On appeal, Ultraflo sought reversal of the court's pretrial ruling that copyright law preempted its initial claim of unfair competition by misappropriation. After ruling, over Pelican's objection, that appellant properly preserved the issue for appeal, the court laid out a two-part test for copyright preemption. First, courts ask "whether the intellectual property at issue is within the subject matter of copyright," and if it is, a state law claim seeking to protect any of the exclusive rights within the general scope of copyright is preempted. (Alcatel USA, Inc. v. DGI Techs., Inc. , 166 F.3d 772, 785-86). The appeals court found that Pelican misappropriated appellant's designs, and that the "useful article or idea" conveyed by copyrighted drawings of those designs was within the scope of copyright law. It also found Texas law did not any "extra elements" that would take appellant's claim out of the shadow cast by copyright protection. The appeals court affirmed the trial court's ruling. Ultraflo Corp. v. Pelican Tank Parts, Inc., U.S. 5th Circuit Court of Appeals, Case No. 15-20084, 1/11/17.

15-20084
GREGG COSTA CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

United States of America v. Euneisha Hearns, 16-40222 (5th Cir. 01/09/2017)

Appellant Euneisha Hearns, a former mortgage loan officer for Countrywide Bank, filled out a loan application with falsehoods to help a buyer obtain a loan knowing that he wouldn't otherwise qualify. She was convicted under 18 U.S.C. §20(1) and sentenced to 46 months in prison based on a presentencing report attributing to the conspiracy losses from that property (the "Brownstone Property") and nine others. Hearns appealed her conviction and sentence. As to her conviction, appellant argued she was convicted ex post facto for actions committed in 2008 because the U.S. government did not add "a mortgage lending business" to the definition of "financial institution" in §20(1) until 2009. However, the appeals court found that prosecutors established that Countrywide fit the underlying definition even as written in 2008, and that they referred to Countrywide as a "financial institution" repeatedly. For the same reason, the court rejected appellant's argument that the trial court erred by failing to instruct the jury that it must find Countrywide was a "mortgage lending business." However, the court agreed with appellant's argument that the trial court erred in calculating her sentence. Appellant argued that the losses attributed to her should be limited to the Brownstone Property and none of the other nine. The government argued that the losses should be a foreseeable result of the conspiracy, but the appeals court found that the trial court failed to "make specific findings as to the scope of that conspiracy." Namely, the trial court accepted the government's allegation about losses from the other nine properties even though no information was included as to any criminal activity for six of the nine. The appeals court held the trial court erred by relying on loss amounts for those six properties in calculating appellant's sentence. The appeals court affirmed the conviction but vacated appellant's sentence and remanded to the district court for resentencing. United States of America v. Euneisha Hearns, U.S. 5th Circuit Court of Appeals, Case No. 16-40222, 1/9/17.

16-40222
WIENER, CIRCUIT JUDGE

Court of Appeals of Texas, First District

City of Houston and Annise D. Parker v. Phillip Paul Bryant, 01-16-00273-CV (TexApp Dist 01/12/2017)

After Houston voters approved a ballot measure increasing term limits for the city's elective offices, appellee Bryant brought an election contest to challenge the measure, asserting that the ballot language was deceptive and that the initiative violated the Local Government Code. Appellee Scarborough later moved to intervene, putting forth similar arguments. Appellants, the city and its former mayor, argued that Bryant did not properly serve the city under Texas Election Code §233.008 and filed a plea to the jurisdiction of the trial court. The jurisdictional challenge was denied, and the appeals court affirmed. The trial court obtained subject matter jurisdiction upon Bryant's timely filing of his petition under §233.006. Section 233.008's directive that a citation issued in an election contest "must direct the officer receiving the citation to return it unserved if it is not served within 20 days after the date of issuance" is not a jurisdictional requirement. While other consequences may flow from a party's failure to comply with the statute's requirement, consideration of those consequences, such as whether service was timely, is not properly addressed through a plea of jurisdiction. Such claims of procedural error in service must be raised in a motion to quash. The court further held that an unserved petition may be reissued after the 20-day period in §233.008 has expired. Finally, the trial court had jurisdiction over Scarborough's petition in intervention, even though it was filed outside of the mandatory 30-day filing period for election contests. Interventions are, by their very nature, made after a petition has already been filed in a matter and the trial court's jurisdiction has already been invoked. They are not separate causes of action. The Election Code does not provide a deadline for filing an intervention. City of Houston v. Bryant, 1st Court of Appeals, Case No.: 01-16-00273-CV, 1/12/2017

01-16-00273-CV
EVELYN V. KEYES JUSTICE

Court of Appeals of Texas, First District

Hospadales v. McCoy, 01-16-00239-CV (TexApp Dist 01/12/2017)

After appellee was involved in a motor vehicle accident, a jury awarded him damages totaling $292,000 for past medical expenses, past lost earning capacity, and past pain and suffering. Appellant appealed the judgment, challenging the legal and factual sufficiency of the evidence to support the jury's findings. The judgment of the trial court was affirmed, in that (1) a doctor had the knowledge, skill, experience, training and education to qualify him to give his expert opinion that the accident caused appellee's back, neck, and knee injuries, and his causation opinion was sufficiently reliable to support the jury's negligence finding; (2) the court properly admitted appellee's medical records and bills into evidence; (3) the jury's award of $40,000 in past lost earning capacity was supported by the evidence in the case, which allowed the jury to be able to reasonably measure earning capacity in monetary terms; (4) the jury's awards of $92,000 for past medical expenses and $160,000 for past pain and suffering were not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust; and (5) photographs and videos taken from an onboard monitoring system in appellant's truck, data taken from that system, and testimony of an expert witness were sufficient to support the jury's finding that appellee was not contributorily negligent. Hospadales v. McCoy, Houston 1st Court of Appeals, Case No.: 01-16-00239-CV, 1/12/2017

01-16-00239-CV
LAURA CARTER HIGLEY JUSTICE