Recent Decisions

United States Court of Appeals, Fifth Circuit

U.S. v. Brooker, 16-10698 (5th Cir. 06/07/2017)

Brooker began serving a three-year term of supervised release on June 26, 2015. In May 2016, the government moved to revoke Brooker's term of supervised release, alleging, inter alia, that Brooker had used and possessed methamphetamine multiple times, failed numerous drug tests and failed to make consistent payments toward a fine imposed on him as part of his sentence. Brooker pleaded true to these violations and the district court revoked Brooker's term of supervised release. After hearing testimony, argument, and allocution from the defense, the district court sentenced Brooker to 24 months' imprisonment and no supervised release. Brooker appealed, arguing that the district court failed to consider a drug treatment program in lieu of imprisonment. The court disagreed. It held that, by rejecting Brooker's plea for drug treatment, the district court "implicitly considered substance abuse treatment in lieu of imprisonment." The court also rejected Brooker's argument that the district court erred by not giving him an opportunity to speak before revoking his supervised release. It held that Federal Rule of Criminal Procedure 32 simply requires that a defendant be given the opportunity to speak before a sentence is imposed, but not before supervised release is revoked. U.S. v. Brooker, 5th Circuit, No. 16-10698, 6/7/17

16-10698
EDWARD C. PRADO, CIRCUIT JUDGE:

Court of Appeals of Texas, Fifth

Aubrey v. Aubrey, 05-16-00506-CV (TexApp Dist 06/07/2017)

Richard Aubrey died in 2004, with a will creating a trust that named his wife, Betsy, as trustee. One of their three children, appellant Steven Aubrey, sued in 2015 to remove Betsy as trustee, alleging that Betsy engaged in self-dealing and another son, Richard Jr., "tricked" Betsy into transferring trust assets into his own corporation. Betsy moved to determine appellant a vexatious litigant, alleging that in the previous seven years he filed more than five actions that were decided against him, thus meeting the statutory threshold. She also asserted appellant lacked standing to bring the suit, submitted a "book" of evidence of contentious communications by appellant, and sought sanctions of $350,000. At a hearing that appellant did not attend, the court found appellant was a vexatious litigant and imposed sanctions of $250,000. An appeal followed. The court found that appellant had standing. The court found that the Texas Property Code allows an "interested person" to petition to remove a trustee, and that §111.004(6-7) defines an "interested person" as a "trustee, beneficiary, or any other person" who has an interest – "present or future, vested or contingent" – in the trust. The court rejected Betsy's argument that appellant's interest was too speculative for standing under Davis v. Davis (734 S.W.2d 707), distinguishing that case because it involved a plaintiff who stood to inherit from a living person if that person died intestate. However, the court rejected appellant's argument that the trial court abused its discretion, finding the record supported Betsy on issues of self-dealing, breach of fiduciary duty, and the statutory threshold for vexatious litigation. On the last point, the court rejected appellant's argument that Betsy improperly repeated various actions in her count, finding that appellant would be well past the threshold by any count. On appellant's other issue, the court found the $250,000 award improperly included attorney's fees for past cases. The court reversed the trial court's judgment as to the sanctions award, remanded the case to determine the proper amount, and affirmed in all other respects. Aubrey v. Aubrey, Dallas Court of Appeals, Case No. 05-16-00506-CV, 6/7/17.

05-16-00506-CV
DOUGLAS S. LANG, JUSTICE

Court of Appeals of Texas, Eighth District

Gonzalez v. State of Texas, 08-14-00203-CR (TexApp Dist 06/07/2017)

Police found appellant Luis Gonzalez standing outside a car that had crashed into mesquite bush off of Interstate 10. After talking to appellant, they performed field sobriety tests on him, which he failed. Police then arrested him and took him to a police station for a breath test. Before trial, appellant filed two motions to suppress: one for the evidence from the field sobriety tests and another FOR the "Intoxilyzer" evidence. The trial court denied the first but did not rule on the second. At trial, appellant plead guilty and the court sentenced him to probation. On appeal, he argued police did not have reasonable suspicion to detain him before the arrest, and that he did not consent to the breath test. On the first issue, the court found police had reasonable suspicion almost immediately upon speaking with appellant. He had told them he was coming from a downtown club where he had at least two vodka drinks, and police smelled alcohol on his breath. Furthermore, the court found that police have a statutory duty to investigate car accidents, which "supports the legality of an investigative detention at [the] inception" of the investigation. The court rejected appellant's argument that the state did not seek testimony from all officers on the scene, finding that under State v. Woodard (341 S.W.3d 404) the burden was on appellant to establish that he was improperly detained, not upon the state to establish each officer's reasonable suspicion. On the breath test issue, the court found appellant did not properly preserve it because he did not obtain a ruling on the motion to dismiss at trial. The court affirmed the trial court's judgment. Luis Carlos Gonzalez v. The State of Texas, El Paso Court of Appeals, Case No. 08-14-00203-CR, 6/7/17.

08-14-00203-CR
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Lance Mitchell Luckenbach v. The State of Texas, 14-15-01048-CR (TexApp Dist 06/06/2017)

Appellant challenged his conviction for driving while intoxicated, arguing in a single issue that the trial court should have granted his motion to suppress evidence of blood-alcohol-concentration tests conducted under a search warrant because the supporting affidavit did not show probable cause. Appellant asserted the affiant-officer made conclusory statements which did not support each other and that the four corners of the affidavit did not support the affiant-officer's initial conclusion that appellant was intoxicated. Following denial of suppression, appellant pled guilty to the offense in exchange for appellee's recommendation of forty-five days' confinement. On appeal, the court affirmed concluding that the magistrate may draw reasonable inferences from the facts and circumstances contained in the affidavit's four corners, and that the magistrate had a substantial basis for concluding that, under the totality of the circumstances, there was a fair probability that evidence appellant committed a DWI offense would be found by appellant's blood. Further, the absence of such statements that appellant was swaying, staggering, slurring his speech, fumbled, or appeared disoriented did not mean the magistrate lacked a substantial basis for his approval of a search warrant to conduct a blood draw. Accordingly, probable cause supporting the issuance of a search warrant existed as the facts included in the affidavit, coupled with reasonable inferences from those facts, would lead to a fair probability that appellant's blood would evidence his committing a DWI offense. Lance Mitchell Luckenbach v. The State of Texas, Houston 14th Court of Appeals, Case No.: 14-15-01048-CR, 06/06/2017

14-15-01048-CR
KEM THOMPSON FROST, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Total Gas & Power North America v. Federal Energy Regulation Commission, 16-20642 (5th Cir. 06/08/2017)

FERC initiated a formal investigation into TGPNA and two of its trading managers ("Total"), based on a tip it received from a former TGPNA employee alleging that the company had been manipulating prices in the natural gas markets. After more than three years of investigation, FERC's enforcement office advised Total that it was going to recommend that FERC initiate enforcement proceedings for violations of the Natural Gas Act and assess corresponding civil penalties. When FERC initiated the proceeding, Total filed a declaratory judgment action, alleging that FERC lacked the authority to adjudicate violations of the NGA and assess corresponding civil penalties through in-house administrative proceedings, because the NGA vested such authority exclusively in federal district courts. The district court granted FERC's motion to dismiss. The court affirmed. It held that the challenge to FERC's jurisdiction was not ripe because the FERC action remained pending, the agency had not reached any conclusion about whether the NGA had been violated, and the agency had not imposed any fine. The court held that, if FERC found a violation and imposed a fine, Total could then challenge those decisions in federal district court. Total Gas & Power North America v. Federal Energy Regulation Commission, 5th Circuit, No. 16-20642, 6/8/17

16-20642
KING, CIRCUIT JUDGE

Court of Appeals of Texas, Sixth Appellate District

Douglas v. First National Bank, 06-16-00090-CV (TexApp Dist 06/06/2017)

Appellants Gloria and Charlie Douglas took out a car loan from First National Bank. They agreed to automatic monthly transfers of $686 from their checking account to make the payments. Appellants also carried a disability insurance policy that provided for $686 monthly payments to the bank. After Gloria Douglas became disabled, the insurance made payments and the bank continued to make monthly withdrawals from appellants' checking account, such that the loan was paid off in 30 months rather than 60. When appellants learned their loan was paid off, they sued First National for deceptive trade practices and breach of an implied contract for continuing to make monthly withdrawals. The trial court granted summary judgment for First National, and an appeal followed on the breach of implied contract claim. Appellants, who testified they noticed "irregularities" in their bank account but attributed them to medical expenses, argued the contract contained implied terms to halt automatic payments when it received disability benefits. The court found that the express terms of the agreement required written notice to terminate payments, and allowed First National to continue making withdrawals until the loan was fully paid unless appellants provided written notice. The court also found appellants never tendered written notice. The court thus overruled appellants' issue and affirmed the trial court's judgment. Douglas v. First National Bank, Texarkana Court of Appeals, Case No. 06-16-00090-CV, 6/6/17.

06-16-00090-CV
BAILEY C. MOSELEY, JUSTICE

United States Court of Appeals, Fourth Circuit

ConocoPhillips v. Ramirez, 04-15-00487-CV (4th COA. 06/07/2017)

Appellant ConocoPhillips had been extracting oil and gas from a plot of land known as Las Piedras Ranch since 1995, under leases granting mineral rights. The land was part of a larger plot had been in the same family for decades, which had split the surface rights and mineral rights over the years via various family members' wills. Appellant had been paying royalties to some family members, but two grandchildren of matriarch Leonor Ramirez – who were not signatories and did not receive royalties – sued appellant and their uncle to receive their share. Leonor's will devised all of her rights to Las Piedras to her son Leon for life, with a vested interest for the grandchildren. The trial court found that the grandchildren had an interest in the mineral rights and ordered appellant to pay roughly $11.7 million. An appeal followed on several grounds, all of which turned on the ownership of Leonor's original mineral interest in the ranch. Appellant argued that Leonor's will granted only surface rights to Las Piedras. Although the family regularly severed surface rights from mineral rights through the years, the court found that Leonor's will granted "all" of her rights and that mineral rights are conveyed along with surface rights unless they are expressly severed. Thus, the grandchildren held an interest in the mineral rights. The court also rejected appellant's statute of limitations argument. Appellant argued the statute accrued in 1990, when Leonor died and other family members began signing leases granting appellant mineral rights. However, the court found the grandchildren's statute did not accrue until 2006, when their father died and their interest vested. Their 2010 lawsuit therefore was not barred by the four-year statute. Due to the grandchildren's interest in the land, appellant was required to obtain their signatures on the leases but did not. The court affirmed the trial court's judgment. ConocoPhillips v. Ramirez, San Antonio Court of Appeals, Case No. 14-15-00487-CV, 6/7/17.

04-15-00487-CV
REBECA C. MARTINEZ, JUSTICE

Court of Appeals of Texas, Eighth District

Garcia v. Harding, 08-16-00096-CV (TexApp Dist 06/07/2017)

Mildred Harding died while in the care of Horizon Healthcare Center, a nursing home. Her children, John and Jane Harding, sued Horizon and its administrator, appellant Erik Garcia. The parties settled for a $115,000 sum, but months later – and after both sides missed a trial court deadline to submit final paperwork for approval – the Hardings moved to retain the case because Horizon and Garcia had not made any payments. At the hearing to retain, the court granted the Hardings' motion for a judgment under Rule 11 of Texas civil procedure, and ordered each defendant to pay $57,500. Appellant moved for a new trial, claiming he had revoked his consent to the settlement and that Horizon had agreed to pay the entire settlement amount. His motion was denied by operation of law, and an appeal followed on grounds that appellant did not have proper notice of the hearing. The court found that appellant had notice only of a hearing to retain the case, and the judgment went beyond the relief requested in that notice. Furthermore, under appellant's version of events, the judgment modified the terms of the settlement and required him to bear half the burden instead of apportioning all of it to Horizon. As such, the court found that appellant was entitled to notice of the court's intent to enter a final judgment, and the lack thereof violated his due process rights. The court reversed the trial court's judgment and remanded. Garcia v. Harding, El Paso Court of Appeals, Case No. 08-16-00096-CV, 6/7/17.

08-16-00096-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Second District

In Re The Commitment of Von Michael Short, 02-16-00179-CV (TexApp Dist 06/08/2017)

Appellant Von Michael Short was nearing the end of a 25-year prison sentence for a series of sexual assaults and related crimes committed in 1991. The state petitioned to have appellant civilly committed as a sexually violent predator under Tex. Health and Safety Code §841.081. The statute defines a sexually violent predator as a repeat sexually violent offender who has a "behavioral abnormality" that makes him likely to repeat his crimes. The jury found appellant is a sexually violent predator, the trial court ordered him civilly committed, and an appeal followed. Appellant challenged the sufficiency of the evidence connecting his past and present behavior. The court found that two psychologists testified that they diagnosed appellant with sexual deviance, along with antisocial personality elements and alcohol abuse. Although both conceded that appellant curtailed his drinking in prison, they noted it was a controlled environment, not conducive to substance abuse. Both also testified that appellant showed a lack of remorse for his crimes and blamed his crimes on his drinking, and they noted he did not attend sex offender treatment while in prison, which they testified could mitigate his likelihood of recidivism. The court also found that although appellant presented an expert witness testifying that he is not sexually deviant and did not act out sexually in prison – despite unsupervised visits with female clients in his job in the prison's graphics department. However, the court, reviewing the evidence in the light most favorable to the jury's findings, held that a reasonable jury could conclude appellant was a sexually violent predator. It also held that "the verdict does not reflect that a risk of an injustice remains too great to allow the verdict to stand." The court affirmed the trial court's judgment. In Re The Commitment of Von Michael Short, Fort Worth Court of Appeals, Case No. 02-16-00179-CV, 6/8/17.

02-16-00179-CV
MARK T. PITTMAN, JUSTICE

Court of Appeals of Texas, Fourteenth

Kreit v. Brewer & Pritchard, P.C., 14-16-00046-CV (TexApp Dist 06/08/2017)

Appellants were medical doctors and representatives of non-party hospital whom was involved in several ongoing lawsuits. Appellants subsequently met with an attorney of appellee's firm to discuss obtaining legal services and several fee agreements were drafted to include representation of the hospital and appellants, and representation of appellants alone as it was unclear whether appellants had authority to enter into an agreement for the hospital. Upon receipt of an invoice for services rendered, appellants declined to pay informing appellees to look to the hospital for payment. Appellees then initiated an arbitration proceeding in accordance to arbitration clauses found within the fee agreement alleging it provided appellants with legal services to which appellants refused to pay thereby breaching the parties' agreement. The arbitrator conducted the arbitration as "documents-only" in accordance with the arbitration clause and found that appellants were individually bound and breached the agreement by failing to pay the fees. Appellees moved for, and were granted, confirmation of the arbitration award. On appeal, appellants challenged the trial court's judgment confirming the arbitration award and denying their motions to vacate contending they did not agree to arbitrate their dispute as they signed no agreement in their individual capacities. The court affirmed holding appellant Samir did not timely assert the vacatur grounds raised on appeal. Further, the court found appellant Camil failed to establish grounds for vacatur and that appellant Camil did not object to the lack of an agreement to arbitrate in the arbitration proceeding. Accordingly, the trial court properly confirmed the arbitration award as appellants did not establish any statutory grounds for vacatur. Kreit v. Brewer & Pritchard, P.C., Houston 14th Court of Appeals, Case No.: 14-16-00046-CV, 06/08/2017

14-16-00046-CV
KEVIN JEWELL, JUSTICE

Court of Appeals of Texas, First District

Texas Education Agency v. S.E.H., 01-16-00420-CV (TexApp Dist 06/06/2017)

Appellee, a Texas public school teacher, repeatedly solicited sex from a person he believed to be a thirteen-year-old girl. He was arrested for the felony offense of online solicitation of a minor in violation of Tex. Pen. Code §33.021(b). Appellee pled guilty and was placed on eight years' deferred adjudication community supervision. After §33.021(b) was found to be facially unconstitutional, appellant filed for, and was granted, an application for writ of habeas corpus and the case against him was dismissed. Appellant subsequently filed a petition for expunction of criminal records; the trial court granted the petition and issued an order expunging all records. On appeal, the court reversed finding appellant did not satisfy the statutory requirements for expunction and failed to demonstrate that he had not been placed on community service. The court noted Tex. Code Crim. Proc. Ann. Art. 55.01(a), (a)(2) indicated expunction may be obtained if the charge had not resulted in a final conviction, was no longer pending, and there was no court-ordered community supervision. Here, the record reflected � and appellant admitted � that he was placed on community supervision. Although the penal code predicating his conviction was found facially unconstitutional, the historical fact of his conduct and requisite community service still existed. Accordingly, the trial court erred by granting appellant's petition for expunction as he failed to demonstrate his compliance with the requirements for expunction set out in the plain language of the statute. Texas Education Agency v. S.E.H., Houston 1st Court of Appeals, Case No.: 01-16-00420-CV, 06/06/2017

01-16-00420-CV
RUSSELL LLOYD, JUSTICE

Supreme Court of Texas

In Re National Lloyds, 15-0591 (TexApp Dist 06/09/2017)

Homeowners sued various insurers and claims adjustors, alleging underpayment of insured property-damage claims. Among other damages, the homeowners sought attorney's fees, which the insurers opposed. The homeowners submitted interrogatories requesting the insurer's attorney's hourly rates, total amount billed, and total reimbursable expenses; and requests for production seeking all billing invoices, payment logs, ledgers, and payment summaries; audits; and any documents pertaining to flat-rate billing. The homeowners argued that the insurers' fees were relevant to show that the homeowners' fees were reasonable. The insurer argued that it was not going to use its fees to attack the reasonableness of the homeowners' fees, and that the information was protected by the attorney-client and work-product privileges. The trial court rejected these arguments and ordered the insurer to produce the information. The court of appeals denied the insurer's petition for mandamus relief. On appeal, the court first held that a request to produce all billing records invades a party's work-product privilege because, cumulatively, billing records constitute a mechanical compilation of information that, at least incidentally, reveals an attorney's strategy and thought processes and that redacting privileged information would be insufficient to mask the attorney's thought processes and strategies. The court held that, while a party could waive the privilege by offensive use � by relying on its billing records to contest the reasonableness of opposing counsel's attorney fees or to recover its own attorney fees � the insurer here had disclaimed any such use. The court further held that the requested information was not relevant unless the party used its own fees to challenge the opposing party's fees. The court conditionally granted mandamus relief and directed the trial court to vacate its order. In re National Lloyds Insurance Company, Supreme Court, No. 15-0591, 6/9/17

15-0591
EVA M. GUZMAN, JUSTICE

United States Court of Appeals, Fifth Circuit

U.S. v. Rodriguez, 15-40357 (5th Cir. 06/05/2017)

Rodriguez pleaded guilty to conspiring to transport undocumented aliens. The district court entered Rodriguez's judgment of conviction on June 28, 2012. He did not file an appeal. On July 25, 2014, Rodriguez filed a pro se petition, claiming that his trial attorney (Montemayor) rendered ineffective assistance by failing to file an appeal, despite the fact that Rodriguez instructed him to do so. Rodriguez acknowledged that he had failed to file his motion within the one year required by statute, but argued that he was excused from doing so because he did not learn of Montemayor's failure to file the appeal until October 2013. The district court denied Rodriguez's motion and dismissed the action with prejudice. On appeal, Rodriguez argued that his one year to file his motion should run from the date on which he discovered that Montemayor allegedly deceived him by failing to file a notice of appeal (October 2013) rather than the date of the judgment of conviction (June 2012), and that he exercised diligence in attempting to learn that his appeal had not been filed. The court held that the facts supporting Rodriguez's claim could have � and should have � been discovered earlier by Rodriguez and that the record did not show that Rodriguez exercised diligence. It affirmed the district court's judgment. U.S. v. Rodriguez, 5th Circuit, No. 15-40357, 6/5/17

15-40357
EDWARD C. PRADO, CIRCUIT JUDGE:

Court of Appeals of Texas, First District

EWB-I v. PlazAmericas, 01-15-00527-CV (TexApp Dist 06/06/2017)

Appellant EWB-I owned five overflow parking lots at the former Sharpstown Mall. Appellant came into possession of the lots through foreclosure in 2009, when the mall was already in serious decline and no longer drew enough customers to necessitate overflow parking. Appellant sought to redevelop the lots, but was subject to restrictive covenants put in place in 1979 during the mall's heyday. Appellant sued the various other owners of mall property for a declaratory judgment to lift the covenants. The trial court, through a series of orders, granted summary judgment for the owners and awarded them attorney's fees. An appeal followed on several grounds, the first of which was that the covenants were unenforceable under the changed conditions doctrine. The court found that at least six factors weigh on a determination of changed conditions under Simon v. Henrichson (394 S.W.2d 249), and underlying all of them is the question of whether the covenant's purpose no longer serves a benefit. Here, however, the court found the 1979 agreement was ambiguous as to its purpose, creating a question of fact that should have precluded summary judgment. The court found conflicting evidence as to whether the agreement sought to ensure a certain number of parking spaces or to ensure ample parking generally. The court also found fact issues as to whether motorists park in the overflow lots for mall shopping or for other reasons; whether the agreement's floor space calculations should include an anchor store that had been vacant and padlocked since 2007; whether one of the owners waived its claims by shuttering its parking garage in violation of the agreement; and whether any owners waived their claims by allowing appellant to operate traveling carnivals in its parking lots. Furthermore, the court found that none of the six factors weighed heavily for either side. The court also found that the trial court improperly granted certain summary judgment motions for all owners, even though not all owners joined the motions. The court reversed the trial court's judgment and remanded. EWB-I v. PlazAmericas, Houston 1st Court of Appeals, Case No. 01-15-00527-CV, 6/6/17.

01-15-00527-CV
HARVEY BROWN, JUSTICE

Supreme Court of Texas

Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp., 16-0078 (TexApp Dist 06/09/2017)

Respondent, a member-owned non-profit water-supply corporation, contracted with petitioner to provide engineering-design and project-supervision services for a new water-treatment plant. After the project's substantial completion, respondent complained about the water's quality, eventually attributing the water-quality issues to the plant's design and construction. Respondent subsequently sued petitioner, the project's engineers, and others involved with the construction, asserting claims for breach of contract, breach of express and implied warranties, negligence, and negligent misrepresentation. To comply with Civ. Pract. And Rem. Code Chapter 150's "certificate of merit" requirement, respondent filed the affidavit of a non-party professional engineer who had 23 years' experience in "master planning, detailed design and construction management." Petitioner objected complaining the affidavit failed to comply with the statute's requirements and petitioned the Supreme Court for review. On review, the Supreme Court affirmed denial of the complaint's dismissal finding the certificate attached complied with Chapter 150. The Supreme Court concluded the third-party engineer's averments about his education and experience were "factual statements" supporting his knowledge of the area of practice and competency to testify. Further, the Supreme Court concluded the statute required the third-party expert to attest to petitioner's professional errors or omissions and their factual basis to demonstrate that respondent's complaint was not frivolous. Here, the expert properly attested to his experience and, following review of the available documentation, the negligence and other errors by petitioner. Accordingly, the Supreme Court affirmed denial of dismissal based on the certificate of merits' sufficiency. Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp., Supreme Court, Case No.: 16-0078, 06/09/2017

16-0078
JOHN P. DEVINE, JUSTICE

Supreme Court of Texas

Columbia Valley Healthcare System, L.P. v. Zamarripa, 15-0909 (TexApp Dist 06/09/2017)

Zamarripa sued a variety of defendants, alleging that they were liable for the death of Yolanda Flores and her stillborn child which occurred while she was being transported from one hospital (Valley Regional) to another facility. The Texas Medical Liability Act imposes a threshold requirement that the plaintiff furnish "a statement of opinion by an individual with expertise indicating that the claim asserted . . . has merit." This expert report must address, in part, "the causal relationship" between a health care provider's failure to meet applicable standards of care and the claimed injury. Valley Regional moved to dismiss, in part, on the ground that the expert reports were insufficient to show how Valley Regional caused Flores's death when it was a doctor, and not the hospital, who ordered Flores transferred. The trial court overruled Valley Regional's objection and denied its motion to dismiss. Valley Regional appealed the interlocutory order, and the court of appeals affirmed, agreeing with Zamarripa that an expert report was not required to address proximate cause. The court disagreed. It held that the expert report must make a good-faith effort to explain, factually, how proximate cause is going to be proven and that, because the reports here did not do so, they were deficient. It remanded the case to the trial court to consider whether Zamarripa should be afforded an opportunity to cure the deficient reports. Columbia Valley Healthcare System, L.P. v. Zamarripa, Supreme Court, No. 15-0909, 6/9/17

15-0909
NATHAN L. HECHT, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Powell v. CIT Bank, N.A., 14-15-00949-CV (TexApp Dist 06/08/2017)

Following the death of the original owner, appellant acquired the subject property whose lien was assigned to appellee-bank through a reverse-mortgage transaction but failed to make any payments. Appellee filed suit seeking a declaratory judgment to reform the legal description in the deed of trust due to mutual mistake and divest the original owner's estate of title and interest in the property. The parties subsequently entered into a motion for nonsuit. A few months later, appellant filed the underlying suit seeking to enjoin appellee from foreclosing on the property in the future. Following a bench trial, the trial court signed a judgment declaring the note and deed of trust were enforceable contracts that were in default, that appellee was the current holder who had standing to proceed with foreclosure, and that foreclosure was not barred by the statute of limitations. On appeal, the court reversed in part finding the trial court erred in granting declaratory relief because the claim accrued when all outstanding principal and other charges became immediately due and payable upon the borrower's death, without any ability of the creditor to accelerate the debt. Because the four-year limitations period expired before appellant filed this lawsuit, the real-property lien and the power of sale to enforce the lien became unenforceable. The court further reversed the portions of the trial court's judgment in which it granted declaratory relief and dismissed as moot the appellee's alternative quantum meruit claim. Powell v. CIT Bank, N.A., Houston 14th Court of Appeals, Case No.: 14-15-00949-CV, 06/08/2017

14-15-00949-CV
KEM THOMPSON FROST, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

U.S. v. Zuniga, 14-11304 (5th Cir. 06/05/2017)

A police officer (Chavarria) observed a vehicle failing to properly signal before turning left, and parking in a disabled parking spot without authorization. He radioed this information to his sergeant, who instructed a third officer (Pruit) to stop the vehicle. Because the driver did not have a valid license, and the passenger (Zuniga) had two outstanding warrants, both were arrested. A subsequent search of the vehicle revealed methamphetamine. Zuniga moved to suppress the search, arguing that Pruit lacked reasonable suspicion to stop the vehicle because the alleged turn violation was "stale" by the time the vehicle was stopped. The district court denied the motion to suppress. The court affirmed. It held that, viewing the facts as a whole, the delay was not enough to negate the violation as grounds for a later stop. It also held that Chavarria's knowledge of the vehicle's traffic violations were attributable to Pruit under the "collective knowledge" doctrine. The court agreed with Zuniga, however, that his prior Texas conviction for delivery of a controlled substance could not serve as a predicate offense for purpose of a sentencing guideline enhancement, relying upon two Fifth Circuit decisions that were decided while Zuniga's case was on appeal. It vacated Zuniga's sentence and remanded the case for resentencing. U.S. v. Zuniga, 5th Circuit, No. 14-11304, 6/5/17

14-11304
JAMES E. GRAVES, JR., CIRCUIT JUDGE:

Court of Appeals of Texas, Fourteenth

O.C.T.G., L.L.P. v. Laguna Tubular Products Corp., 14-16-00210-CV (TexApp Dist 06/06/2017)

Following a contractual dispute and subsequent lawsuit, the trial court signed a final judgment in favor of appellees and ordering appellees to recover actual damages, prejudgment interest and court costs. Appellants deposited cash in lieu of a supersedeas bond for actual damages and interest and one-half its claimed net worth, along with a net-worth affidavit. After the clerk accepted the bond, appellee objected to the net-worth affidavit; appellant responded to the objection and alternatively moved to reduce the amount of supersedeas bond based upon substantial economic harm. At the net-worth evidentiary hearing, the trial court ordered the amount of supersedeas bond deposit, or security necessary for appellants to supersede the court's judgment. On appeal, appellants argued the trial court erred by ordering it to post security for prejudgment interest, eliminating from its net-worth calculation payables to affiliates, not including controlling GAAP standards, and finding that appellant had not met its burden regarding substantial economic harm. The court affirmed in part finding affirmative statements in the trial court that the prejudgment interest should be included precluded such argument by appellant. The court further affirmed holding the judgment was not to be included in the net worth as the plain language of the statute did not include a contingent money judgment in calculating net worth. Moreover, the court found insufficient evidence to support appellant's contention that it would suffer substantial economic harm by posting the additional security required. However, the court reversed in part finding the trial court erred by eliminating payables to affiliates based on the GAAP consolidation rule that the net worth of each individual judgment debtor must be determined separately. O.C.T.G., L.L.P. v. Laguna Tubular Products Corp., Houston 14th Court of Appeals, Case No.: 14-16-00210-CV, 06/06/2017

14-16-00210-CV
MARC W. BROWN, JUSTICE

United States Court of Appeals, Fifth Circuit

U.S. v. Leatch, 16-10701 (5th Cir. 06/06/2017)

Leatch was convicted of three counts of distributing cocaine base and one count of conspiring to traffic in more than 50 grams of that substance. At sentencing, the district court found that Leatch's criminal history was overrepresented, imposed a downward departure, and imposed a sentence at the low end of the guideline range that resulted from that reduced criminal history category. The Sentencing Commission thereafter lowered the guideline range applicable to Leatch's offense. At resentencing, Leatch argued that the district court should reapply the criminal history downward departure in determining the new range. The district court concluded that the Sentencing Guidelines forbade the consideration of any departures in determining the applicable guideline range for a sentencing reduction. The court affirmed. It found no support for Leatch's position in the Sentencing Guidelines, which, the court held, only allowed a downward departure during resentencing where the defendant received a downward departure at the original sentence hearing for providing substantial assistance to the government. The court held that the Commission's commentary to the Guidelines did not support Leatch's position, which had been rejected by other circuits. U.S. v. Leatch, 5th Circuit, No. 16-10701, 6/6/17

16-10701
GREGG COSTA, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

Gonzalez v. State of Texas, 08-14-00175-CR (TexApp Dist 06/07/2017)

Two passers-by saw a white truck in a ditch and stopped to help. They saw appellant Luis Carlos Gonzalez fall out of the driver's side door into the dirt, and he tried to flee when they called 911. They flagged down state trooper Daniel Martinez and pointed out appellant to him. Martinez saw appellant stagger while trying to walk, saw he was covered in dirt, saw red marks consistent with a seat belt tightening in a crash, and smelled alcohol on appellant's breath. Although appellant repeatedly denied he was driving, Martinez arrested him for DWI. The trial court sentenced appellant to probation, and an appeal followed. Appellant argued Martinez did not see appellant driving and therefore lacked reasonable suspicion for a detention and probable cause for an arrest. The court found that facts provided by witnesses can give rise to reasonable suspicion if the witnesses can be held accountable for the information. Here, the court found, the witnesses identified themselves to police and stayed on the scene, thus making them accountable and making their information reliable. Furthermore, Martinez combined the facts he got from the witnesses with his own observations to determine appellant had been driving. The court also noted officers have a duty to investigate car accidents, providing an "independent basis" for an investigative detention. On the probable cause issue, the court found that Tex. Code Crim. Proc. art. 14.03(a)(1) allows a warrantless arrest of a person found "in a suspicious place" under conditions showing he breached the peace. The court found that any place can be suspicious given the totality of the circumstances, and the scene of a single-vehicle accident is a suspicious place under Layland v. State (144 S.W.3d 647) and other cases. The court also overruled a separate issue in which appellant challenged a jury instruction, finding the instruction was required to contain certain language that appellant argued highlighted the evidence against him. The court affirmed the trial court's judgment. Luis Carlos Gonzalez v. The State of Texas, El Paso Court of Appeals, Case No. 08-14-00175-CR, 6/7/17.

08-14-00175-CR
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Third District

Premier Learning Academy, Inc. v. Texas Education Agency, 03-17-00064-CV (TexApp Dist 06/08/2017)

After appellant, Premier Learning Academy, received unacceptable academic performance ratings for three consecutive years, appellees, Texas Education Agency, informed appellant it would not renew appellant's charter and appointed conservators. When appellant tried to pay off several debts, including its superintendent's severance package, using state FSP funds, a conservator refused to allow payment prompting the underlying suit whereby appellant sought declaration that it may use the remaining state funds to meet its contractual obligations and that appellees lacked authority to "take possession" of or "assume control" of appellant's bank account which held the state funds. Appellant further asserted ultra vires claims against appellee-commissioner and sought a temporary restraining order and injunction prohibiting appellees from controlling and accessing its bank accounts. Appellees filed for, and were granted, a plea to the jurisdiction dismissing appellant's claims arguing appellant lacked standing to raise its claims and that sovereign immunity barred the claims. On appeal, the only question properly before the court was whether the trial court erred in granting appellee-commissioner's plea to the jurisdiction as to appellant's ultra vires claims. The court affirmed the plea to the jurisdiction holding appellee-commissioner did not exceed his statutory authority by refusing to allow appellant to use its remaining state funds to pay its superintendent's severance package under Education Code §12.128 and §39.111. Accordingly, the court affirmed the trial court's granting the plea to the jurisdiction of appellees. Premier Learning Academy, Inc. v. Texas Education Agency, Austin Court of Appeals, Case No.: 03-17-00064-CV, 06/08/2017

03-17-00064-CV
SCOTT K. FIELD, JUSTICE

Supreme Court of Texas

Bedford v. Darin Spassoff and 6 Tool, LLC, 16-0229 (TexApp Dist 06/09/2017)

Bedford's son played for a youth baseball team run by Spassoff. Bedford contacted Spassoff and complained that the team's batting coach was engaged in an inappropriate relationship with Bedford's wife. Apparently unsatisfied with Spassoff's response, Bedford posted on Facebook that the club was supporting a "home wrecker" and wrote "[v]ery unethical and from talking with the executives they don't plan on changing. Please stay away." Spassoff sued Bedford for libel, business disparagement and intentional infliction of emotional distress, and the baseball club asserted claims for breach of contract and tortious interference with contract. Bedford moved to dismiss the suit under the Texas anti-SLAPP statute. The trial court denied the motion to dismiss. On interlocutory appeal, the court of appeals, in a split decision, held that the plaintiffs established a prima facie case for each element of the libel claim, so that the trial court did not err in denying the motion to dismiss this claim. It held, however, that the trial court should have dismissed the remaining claims. Bedford appealed. The court held that the libel claim should also have been dismissed. It held that, even if the facebook post was defamatory, the statement was not defamation per se because it did not accuse Spassoff/the baseball club of lacking a peculiar or unique skill related to baseball or running a baseball organization. The court held that, because Spassoff/the baseball club failed to establish damages by clear and specific evidence, Bedford was entitled to dismissal of the libel claim. It remanded the case to the trial court for dismissal and a determination of attorney's fees contemplated by the statute. Bedford v. Darin Spassoff and 6 Tool, LLC, Supreme Court, No. 16-0229, 6/9/17

16-0229

Supreme Court of Texas

Longview Energy Co. v. The Huff Energy Fund LP, 15-0968 (TexApp Dist 06/09/2017)

This matter involved the questions of whether two directors breached their fiduciary duty to a corporation, and if so, whether the evidence and jury findings supported the remedies imposed by the trial court. Petitioner sued respondents, two of its directors and entities, after discovering one of the entities purchased mineral leases in an area where petitioner had been investigating the possibility of buying leases. The case was tried to a jury, which found that respondents breached their fiduciary duty to petitioner in two ways: (1) by usurping a corporate opportunity, and (2) by competing with the corporation without disclosing the competition to petitioner's board of directors. The trial court rendered judgment awarding a constructive trust to petitioner on most of the leases in question and required the disgorgement of money derived from past lease production revenue. The court of appeals revered and rendered judgment for respondents finding the evidence was not legally sufficient to support the jury's findings of a breach of fiduciary duty. The Supreme Court affirmed holding that, to obtain a constructive trust, petitioner had the burden to identify the particular property on which it sought to have a constructive trust imposed. The Supreme Court found the evidence was legally insufficient to support a finding which traced any specific leases to respondents that were acquired by a breach of fiduciary duty by the respondent-directors. Accordingly, petitioner was not entitled to have a constructive trust imposed and the jury could not find the value of the assets to support the money judgment. Longview Energy Co. v. The Huff Energy Fund LP, Supreme Court, Case No.: 15-0968, 06/09/2017

15-0968
PHIL JOHNSON, JUSTICE

Court of Appeals of Texas, Fourteenth

Abdullatif v. Choudhri, 14-16-00116-CV (TexApp Dist 06/08/2017)

The trial court awarded Ali Choudhri $50,000 in damages in a dispute over ownership of two businesses. The court also issues a supersedeas order allowing appellants Osama Abdullatif and Ali Mokaram to post a cash deposit equal to the damages plus interest. While appellants appealed the court's decision, Choudhri moved for review of the supersedeas order, arguing it was insufficient to protect him from loss while the case was on appeal and did not require any security for the portion of the award based on a declaratory judgment as to his ownership. Appellants argued declaratory judgments are suspended automatically on appeal, and raised an issue as to which rule of appellate procedure governed the order. The court first found appellants relied on outdated law in their argument that declaratory judgments are automatically suspended. The court found current law is codified in Rule 25.1(h), which states "[t]he filing of a notice of appeal does not suspend enforcement of a judgment." The court then found that because ownership in a partnership or LLC is personal property, the order should be governed by Rule 24.2(a)(2) – relating to recovery for personal property – rather than Rule 24.2(a)(3), as appellants argued. Furthermore, the court found that the trial court issued its order under 24.2(a)(3), which permits the trial court to set the amount of security, but that Rule 24.2(a)(2) requires that the security is at least equal to the value of the property. The court remanded the supersedeas order with instructions for the trial court to determine the amount of security appellants most post. Abdullatif v. Choudhri, Houston 14th Court of Appeals, Case No. 14-16-00116-CV, 6/8/17.

14-16-00116-CV
J. BRETT BUSBY, JUSTICE

Court of Appeals of Texas, First District

Hardin v. Obstetrical and Gynecological, 01-15-01004-CV (TexApp Dist 06/06/2017)

Appellant Layne Hardin, a Louisiana resident, had eight vials of sperm frozen at the OGA lab in Houston in 2002 before undergoing a vasectomy. He was dating co-appellant Katherine LeBlanc at the time, and an agreement with the lab provided that only LeBlanc had authority over the samples. Hardin later began dating Tobie Devall, and when that relationship ended in 2009, Devall obtained two of the vials and was impregnated without Hardin's knowledge. Devall also spread a story in their small town that Hardin consented to the arrangement, even showing other residents a document purporting to be Hardin's authorization. Hardin and LeBlanc sued Devall and OGA for intentional infliction of emotional distress, conversion, breach of contract, and related torts. A jury awarded appellants nearly $900,000, most of which was based on mental anguish underlying the various tort claims. The trial court entered a judgment notwithstanding the verdict removing the mental anguish awards, leaving only a $1,950 judgment for LeBlanc for conversion of the two vials of sperm. An appeal followed. The court found that mental anguish damages, while generally valid, are not available when they are based on the birth of a healthy child. The court noted that public policy strongly supports "recognition of the dignity, sanctity, and profound value of life," and mental anguish for the birth of a child would undercut that policy. Such an award would cause great emotional harm to the child when he inevitably grew older and learned his family history, the court noted. Furthermore, the court found, mental anguish over a child's birth is a highly speculative award – even more so for LeBlanc than Hardin because her biological connection to the child is only through a son she had with Hardin. However, the court allowed Hardin to recover for mental anguish on his IIED claim to the extent it was based on Devall spreading false rumors about him, which the court found forced him to ostracize himself in his small town. The court found that the contract claims against OGA, other than LeBlanc's conversion claim for the loss of two vials of sperm, were also based on mental anguish and unrecoverable. The court reversed in part, remanded Hardin's IIED claim to determine a proper reward based on Devall's rumors, and affirmed in all other respects. Hardin v. Obstetrical and Gynecological Associates, Houston 1st Court of Appeals, Case No. 01-15-01004-CV, 6/6/17.

01-15-01004-CV
HARVEY BROWN, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Massey, 16-10438 (5th Cir. 05/31/2017)

Appellant pled guilty to knowingly possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. §922(g)(1). Appellant presentence report determined that he had three prior convictions for violent felonies or serious drug offenses enabling appellee to seek an enhanced penalty under the Armed Career Criminal Act. The act provided that a person who violated §922(g)(1) and who had three previous convictions for a violent felony or a serious drug offense committed on occasions different from one another shall be imprisoned for a minimum of fifteen years. At his sentencing hearing, appellant did not dispute that his two drug convictions were serious drug offenses, but objected to counting his Texas conviction as a "violent felony" and therefore argued that the normal ten-year maximum sentence be applied. The district court concluded Tex. Penal Code §38.14 contained such a "violent felony" definition as found under the ACCA and accordingly sentenced appellant to a prison term of fifteen years and eight months. On appeal, appellant argued that the court should apply the dictionary definition of "force": "violence compulsion or constraint exerted upon or again a person or thing." Dobbs v. State, 434 S.W. 3d 166 (Tex. Crim. App. 2014). The court affirmed and distinguished this case from Dobbs holding that §38.14 could be violated with the use of less than "physical force," and that would not rule out the possibility that the offense "has an element the …threatened use of physical force against the person of another." The court therefore concluded that §38.14 had as an element the "threatened use of force" and qualified as a violent felony under the ACCA. U.S. v. Brenton Thomas Massey, Fifth Circuit, Case No.: 16-10438, 05/31/2017

16-10438
JAMES L. DENNIS, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Bams, 16-41197 (5th Cir. 06/01/2017)

Following a traffic stop for unsafe lane change and a consensual vehicle search which yielded ten kilograms of cocaine concealed in two false compartments in the rear quarter panels, appellant was indicted for conspiracy to possess with intent to distribute cocaine and use of an interstate facility in aid of racketeering. Appellant moved for, and was denied, suppression of the evidence; a jury subsequently convicted appellant on both counts. The district court accepted the presentence report classifying appellant as a career offender, but granted appellant's motion for a downward departure, sentencing appellant to 240 months on the first count and 60 months on the second, to run concurrently. Appellant appealed his convictions arguing that certain evidence should have been suppressed and that there was insufficient evidence for conviction as well as various challenges to his sentence. The court affirmed holding the traffic stop was reasonable under Ark. Code Ann. §27-51-306 as appellant changed lanes without a safe distance and the officer had reasonable suspicion that appellant was engaged in drug trafficking based on his observations of appellant and the condition of the vehicle, including the modified quarter panel. Thus, the officer did not unreasonably extend the detention, and appellant's consent was not tainted. Further, the evidence supported that a reasonable jury could conclude appellant reached an agreement with another to distribute drugs and that the trial court properly considered appellant's career criminal activity when determining the sentencing guidelines. Accordingly, the judgment of conviction and sentence was affirmed. U.S. v. Henry Korvett Bams, Fifth Circuit, Case No.: 16-41197, 06/01/2017

16-41197
JERRY E. SMITH, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

Berge v. State of Texas, 08-15-00263-CR (TexApp Dist 05/31/2017)

Lauri LaBree, the office manager for Kendrick Electric, wrote checks on the company's account to buy cocaine from appellant Ronald Berge. Over the course of four years she wrote 253 checks totaling $1.8 million to appellant, who would cash them and share some of the proceeds with LaBree. The court convicted appellant of misapplication of fiduciary property and theft over $200,000, and sentenced him to 15 years and one day. On appeal, appellant argued the evidence was insufficient to show he had a fiduciary relationship to Ralph Kendrick, the company's owner. The court found that the state charged appellant as a party, not as a principal actor, arguing that he assisted LaBree in violating her fiduciary duty. The court rejected appellant's argument that only a primary actor can be convicted for misappropriation of fiduciary property under Amaya v. State (733 S.W.2d 168); the court found that Amaya expressly held that the state can obtain conviction "on the law of parties." The court also rejected appellant's argument that he did not intend to assist LaBree, whom appellant claimed told him she was a part owner of Kendrick Electric, in her crimes. However, the court found that to establish misapplication of fiduciary duty, the state only had to show appellant knew he was assisting LaBree in a crime, not that he had intent. The court also found that LaBree disputed appellant's ownership claims at trial, that appellant's brief conceded the evidence was sufficient to show that LaBree committed a crime, and that the duration and monetary volume of the scheme were great enough that a reasonable jury could find appellant should have doubted LaBree was an owner. The court affirmed the trial court's judgment. Ronald Berge v. The State of Texas, El Paso Court of Appeals, Case No. 08-15-00263-CR, 5/31/17.

08-15-00263-CR
ANN CRAWFORD McCLURE, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Lower v. Papalote, 16-50317 (5th Cir. 05/31/2017)

Lower Colorado River Authority (LCRA), a conservation and reclamation district based in Austin, Texas, and a political subdivision of the State of Texas, entered into an agreement with Papalote, which builds and operates wind farms, in which LCRA agreed to purchase all energy generated from an 87-turbine wind farm. The agreement provided that either party could submit a dispute to binding arbitration. In June 2015, LCRA sought to initiate arbitration over how a limitation of liability clause operated in the parties' agreement. Papalote protested that there was no dispute to arbitrate and that, in any event, a dispute over the limitation of liability provision was not covered by the arbitration provision, which was limited to disputes regarding performance obligations. LCRA filed a petition to compel arbitration, which the district court granted, reasoning that, while the arbitration clause covered only performance obligations, the dispute fell within its scope. The district court did not address the ripeness question because the parties had failed to adequately brief the issue. The arbitrator ruled in favor of LCRA. Papalote then appealed, arguing that the district court erred in compelling arbitration because the issue was not ripe, and thus, the district court lacked jurisdiction to compel arbitration. The court agreed. It held that a court must "look through" the petition to compel arbitration in order to determine whether the underlying dispute presents a sufficiently ripe controversy to establish federal jurisdiction. The court rejected LCRA's argument that ripeness was a question to be resolved by the arbitrator, explaining that the district court must have jurisdiction in the first instance to compel arbitration, and a ripe controversy is a necessary component of subject matter jurisdiction. The court held that, because the issue over how the limitation of liability clause worked was not ripe at the time LCRA first sought to compel arbitration, the district court lacked jurisdiction to order the parties to arbitration. Lower Colorado River Authority v. Papalote Creek II, LLC, 5th Circuit, No. 16-50317, 5/31/17

16-50317
KING, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Eurocat v. Marklund, 14-15-00418-CV (TexApp Dist 05/31/2017)

Soren Marklund and Douglas Wene were high-level employees of appellant Eurocat U.S., which performed off-site catalyst activation for petroleum refiners. Marklund and Wene, who were at-will, contract employees, started their own competing company, Chem32, in 2011. Wene raised the idea in a conversation in appellant's parking lot after Marklund expressed concern about losing his job. Chem32 used a different process for activation, employing a "fixed-bed reactor" instead of a "moving-bed reactor." Appellant sued the two for breach of contract, misappropriation of trade secrets, and related claims. The jury found for Marklund and Wene on most claims, and the court ordered appellant to pay $600,000 in attorney's fees. On appeal, the company raised several issues. The court found that Wene did not breach his fiduciary duty to appellant because he did not "solicit" Marklund for the new company. The court found that the term "solicit," by definition, required more than simply asking someone to do something. It requires a party to strongly urge, entreat, or incite another party to do something. Merely mentioning the possibility of starting a new company is not a "solicitation," the court found. The court also found that both Wene and Marklund did not breach their fiduciary duty in using a fixed-bed reactor for their company, because evidence showed appellant had already considered and rejected the idea. Furthermore, the court found that Wene and Marklund did not breach a Patent and Trade Secret Agreement that both signed in 2011 and that Marklund purportedly signed in 1999. The court found that Marklund, although already serving as appellant's president in 1999, was not officially employed until 2005 and could not have signed the 1999 agreement. The court found the 2011 agreements were not supported by consideration, because the only consideration offered was continued employment, which is illusory for at-will employees. The court also found the trial court did not err by prohibiting appellant from serving discovery on 89 companies that were potential Chem32 clients. The court found that the request could have hurt Chem32's business, and that Chem32 had already provided evidence that appellant claimed it sought via the request, namely evidence into Chem32's relationship with a client that switched from appellant to Chem32. Having overruled all of appellant's arguments, the court affirmed the trial court's judgment. Eurocat v. Marklund, Houston 14th Court of Appeals, Case No. 14-16-00418-CV, 5/31/17.

14-15-00418-CV
J. BRETT BUSBY, JUSTICE

Court of Appeals of Texas, Seventh District

Thibodeaux v. State of Texas, 07-16-00324-CR (TexApp Dist 05/30/2017)

Appellant appealed his conviction for being a felon who unlawfully possessed a firearm within the five years of his release from mandatory supervision. The court was asked to determine the effectiveness of trial counsel who allegedly failed to attack the voluntariness of appellant's consent to search and failed to subject respondent's case to "meaningful adversarial testing." Appellant alleged such deficiency in representation effectively deprived him of his sixth amendment right to an attorney under United States v. Cronic, 466 U.S.648, 104 S. Ct. 2039 (1984). The court affirmed holding counsel, regardless of any perceived errors, participated in the trial and an effort to test appellee's case such that appellant was not deprived of his right to an attorney. Secondly, the court affirmed the denial of appellant's motion for a new trial premised on counsel's failure to move to suppress the firearm because appellant's consent to search the vehicle was neither knowing nor voluntary. The court noted the trial court properly denied the motion without a hearing as appellant lacked reasonable grounds entitling him to relief and the sheriff had probable cause to believe the vehicle contained contraband. As the sheriff had authority to search beyond appellant's consent, the trial court had an alternative basis upon which to uphold the search. Accordingly, the court affirmed the judgment of conviction. Garland Thibodeaux v. The State of Texas, Amarillo Court of Appeals, Case No.: 07-6-00324-CR, 05/30/2017

07-16-00324-CR
BRIAN QUINN, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Neale v. State of Texas, 14-15-00553-CR (TexApp Dist 06/01/2017)

Appellant Craig Allen Neale was operating a boat on the Trinity River shortly after midnight while game warden Patricia Vannoy was conducting a safety inspection on another boat nearby. Vannoy shined her flashlight in a "sweeping motion," and Neale's boat slowed down, eventually drifting near hers. After completing her safety inspection, Vannoy decided to perform an inspection on appellant's boat. She detected a strong smell of alcohol and saw appellant stumbling in the boat. She performed field sobriety tests and took him to a hospital onshore for a blood test, which showed a blood-alcohol content of 0.169. A jury convicted appellant of boating while intoxicated and he appealed on several issues. Appellant argued Vannoy's flashlight use was a "show of authority" triggering Fourth Amendment protections. The court found several Texas courts have held a spotlight is often necessary for safety during police interactions. It also found that appellant's boat was roughly 100 yards from Vannoy when she shined her flashlight and that she did not stop her water safety check as he approached. Thus, the court held Vannoy shined the flashlight as a safety warning and not a show of authority, and that no seizure had taken place at that point under the Fourth Amendment. When Vannoy observed appellant was intoxicated, she had probable cause for an arrest and thus did not violate the Fourth Amendment, the court held. The court also overruled appellant's evidentiary issues. It found that slight deviations from the standard timing of eye-movement tests affect the weight of evidence, not its admissibility. Although the state conceded that the trial court erred in admitting a forensic scientist's testimony as to appellant's blood-alcohol level and admitting the blood tests he prepared, the court found that the error was not reversible. The court found the expert's brief testimony on BAC had a negligible effect on the jury and the state offered other evidence of intoxication, distinguishing this case from others in which improper expert testimony led to a reversal. The court found appellant did not properly preserve the blood test issue for appeal. The court affirmed the trial court's judgment. Craig Allen Neale v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-15-00553-CR, 6/1/17.

14-15-00553-CR
KEVIN JEWELL, JUSTICE

United States Court of Appeals, Fourth Circuit

Shipley v. Vasquez, 04-16-00295-CV (4th COA. 05/31/2017)

The parties engaged in an on-again/off-again relationship resulting in the birth of two children, one of which occurred while appellee was incarcerated. The parties had mutually agreed upon child support; however, following the deterioration of their relationship, appellant ceased paying the alleged agreed upon amount. Subsequently appellant filed suit seeking injunctive relief and trademark relief against appellee for unauthorized use of his business name; in her counterclaim, appellee alleged appellant breached their child support agreement and his fiduciary duty. Following a jury trial, appellant was found to have breached an oral agreement between the parties with the jury awarding appellee $216,000 in damages; however, the jury found that the business did not participate in any breach of fiduciary duty. The trial court denied appellant's motion for judgment notwithstanding the verdict and signed a final judgment. On appeal, appellant argued that the terms "take care of" and "like a Shipley" are indefinite and cannot be defined as a matter of law. The court reversed finding that the terms of the oral agreement between the parties were not reasonably definite and certain, and that determination was dispositive. The court noted that neither the agreement nor any evidence adduced at trial contained any specifics regarding the parameters of the obligation and therefore the terms "take care of" and "like a Shipley" were indefinite. As the essential terms were not reasonably definite and certain, the court reversed finding appellant was entitled to judgment notwithstanding the verdict. Shipley v. Vasquez, San Antonio Court of Appeals, Case No.: 04-16-00295-CV, 05/31/2017

04-16-00295-CV
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, Eighth District

In Re Rivas-Luna, 08-16-00312-CV (TexApp Dist 05/31/2017)

Relator Leticia Rivas-Luna had joint custody of her children after her divorce. Her husband filed for enforcement of possession, claiming she denied him access to the children 25 times. Relator attended the hearing without counsel. The trial court found her in contempt on all 25 counts, imposed a suspended jail sentence of 30 days for each, placed her on supervision, and ordered her to pay $1,000 in attorney's fees. She filed for mandamus relief on grounds that the trial court did not advise her of her right to counsel. The court first found that mandamus was her only available remedy, because contempt orders cannot be appealed and the $1,000 fine was not a sufficient restraint on liberty for habeas corpus. The court then found that when incarceration is a possible result of a contempt hearing, the trial court must advise the respondent of the right to counsel or else the contempt order is void. The court found that here incarceration was a potential result, and rejected the husband's argument that incarceration was possible only if relator failed to pay the attorney's fees. The court found the Texas Supreme Court rejected that same argument in Ex parte Acker (949 S.W.2d 314). The court also found that relator did not waive her right to an attorney by stating to the trial court, "I couldn't afford an attorney so I'm here to do the best I can." The court found that without an admonishment from the court, a respondent might not be aware of the right to counsel. Lastly, the court found that because the failure to advise voided the trial court's order, the order to pay attorney's fees is also void. The court granted conditional mandamus relief, directing the trial court to set aside its contempt order and order the husband's attorney to refund any payments relator made pursuant to the order. In Re Rivas-Luna, El Paso Court of Appeals, Case No. 08-16-00312-CV, 5/31/17.

08-16-00312-CV
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, Fourteenth

Akhtar v. Leawood, 14-16-00363-CV (TexApp Dist 06/01/2017)

Appellant Iqbal Akhtar owns several condominiums that were damaged by Hurricane Ike. After the condos were repaired, the homeowner's association, Leawood HOA, sought to recoup part of the insurance deductible from appellant. Two justice of the peace courts ruled for Leawood. After several more rounds of litigation, including an action in which Leawood sought a finding that appellant filed a frivolous case, a country court awarded Leawood $9,300 in attorney's fees. An appeal followed, challenging the award on several grounds. Appellant claimed there was no legal or factual basis for the sanctions under Rule of Civil Procedure 13 or Civil Practice Code §10. However, the court found that Leawood sought sanctions under Rule 215 and appellant failed to challenge on that ground. Appellant also argued the trial court failed to hold an evidentiary hearing on sanctions. The court, however, found that appellant's brief referenced an oral hearing, and furthermore, appellant failed to preserve error because he did not object to the failure to conduct a hearing. The court rejected two other arguments -- that the trial court failed to give its reasons for the sanctions, as required by Rule 13, and that the sanctions were excessive – on similar procedural grounds. The court affirmed the trial court's judgment. Akhtar v. Leawood, Houston 14th Court of Appeals, Case No. 14-16-00363-CV, 6/1/17.

14-16-00363-CV
JOHN DONOVAN, JUSTICE

Court of Appeals of Texas, Eighth District

Paz v. State of Texas, 08-15-00354-CR (TexApp Dist 05/31/2017)

Appellant Carlos Soria Paz pled guilty to aggravated sexual assault of a child. The incident happened around his 15th birthday, but the victim's outcry didn't come until years later, when appellant was an adult. After a juvenile court transferred the case to the district court, appellant moved to dismiss for lack of jurisdiction but the motion was never set for a hearing. The trial court sentenced appellant to 10 years and he appealed, arguing the juvenile court had insufficient evidence to waive jurisdiction in several respects. The court found that appellant did not properly preserve the issue for appeal, because Tex. Code Crim. Proc. art. 4.18(b)(1) requires a defendant to obtain a ruling on the jurisdictional motion before pleading guilty. It also found the trial court did not make an implied ruling on the motion, and that the motion did not make specific objections, which denied the state the opportunity to properly respond at trial. Furthermore, the court found that even if it were to address appellant's issue, the juvenile court had sufficient evidence to transfer. The court found appellant acknowledged at the juvenile court hearing that he was 15 at the time of the incident, putting him above the age threshold for a transfer (14 years old). Also, the state showed a good reason for the delay, because the victim's outcry didn't happen until appellant was an adult. The court affirmed appellant's conviction. Carlos Soria Paz v. The State of Texas, El Paso Court of Appeals, Case No. 08-15-00354-CR, 5/31/17.

08-15-00354-CR
ANN CRAWFORD McCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Twelfth

Red Ball v. Southwest Railroad, 12-16-00049-CV (TexApp Dist 05/31/2017)

This matter involved a dispute over a supply contact between the parties which led to litigation involving a suit on account tortious interference, and reciprocal breach of contract claims. In six issues, appellant asserted the trial court misconstrued the contract and that appellees breached the contract requiring appellant to be entitled to damages and attorney's fees. In looking solely to the four corners of the contract to determine its meaning and intent, the court affirmed holding the contract clearly did not allow appellant to pass along cost increases due to other expenses appellant may incur such as operational and overhead costs. As such, appellant's interpretation otherwise was unreasonable and the trial court did not err in construing such contractual provision. Further, the court held the plain language of the contract prohibited appellant from charging appellee for deliver charges, hazardous material charges, or fuel surcharges; the single phrase in the contract regarding location did not require appellee to pay such charges when the product did not originate from appellee's location. Moreover, the record was clear that appellee did not continue performance under the contract as a result of the breaches by appellant and was therefore excused from further obligation to perform. Finally, the court affirmed the trial court's decision not to award appellant attorney's fees and damages as appellant's conduct resulted in the decisions of the trial court and the evidence conclusively established that appellant breached the parties' contract. Red Ball Oxygen Co., Inc. v. Southwest Railroad Car Parts Co., Tyler Court of Appeals, Case No.: 12-16-00049-CV, 05/31/2017

12-16-00049-CV
JAMES T. WORTHEN, CHIEF JUSTICE

United States Court of Appeals, Fourth Circuit

In re S.C., 04-16-00567-CV (4th COA. 05/31/2017)

After a witness accused S.C. and V.C. of burglarizing a house and stealing cash and a video game console, San Antonio police went to the brothers' house to investigate. Because S.C. was "fidgety" during questioning, police handcuffed him and put him in the back of a patrol car, but told him he was not under arrest. After S.C.'s mother repeatedly refused to let police search the house, they spoke to S.C., who agreed to show them where the stolen goods were. Police then uncuffed him, followed him into the house, and retrieved the console and other items (but not the cash; police searched unsuccessfully for V.C., who allegedly left the scene with it). The state filed a juvenile petition against S.C., who was 15. He moved to suppress evidence because he wasn't read his Miranda rights and because the search of his house was illegal. The juvenile court adjudicated S.C. a delinquent and sentenced him to 12 months' probation, and an appeal followed challenging the juvenile court's denial of the motion to suppress. The court found that the Miranda warnings were unnecessary. Although he was handcuffed, the court found police were concerned he might try to flee and were merely trying to preserve the status quo for interrogation. The court noted S.C. was cuffed for only eight minutes, and noted the weightiest factor was that police told him he was not under arrest. Under the totality of circumstances, the court found, S.C. was not in custody for Miranda purposes. However, the court found the warrantless search of the home was unreasonable in light of the mother's repeated refusal. Although S.C. consented to the search, the court found that in a hierarchical situation – such as a parent-child relationship, where the parent has the legal right to make decisions for a child – the child can rely on the parent's refusal to consent. The court reversed the juvenile court's ruling and remanded. In the Matter of S.C., San Antonio Court of Appeals, Case No. 04-16-00567-CV, 5/31/17.

04-16-00567-CV
LUZ ELENA D. CHAPA, JUSTICE

Court of Appeals of Texas, Thirteenth

Davis v. State of Texas, 13-15-00355-CR (TexApp Dist 06/01/2017)

Appellant Steven Davis, a prison inmate, punched his cellmate in the back of the head and then several times in the face and upper body. He was angry that the cellmate's behavior led guards to take away their TV. The cellmate received stitches to his nose but suffered no permanent injury. The trial court convicted appellant of assault with a deadly weapon, a second-degree felony, and assault family violence, a third-degree felony that required a finding that appellant and his cellmate were members of the same household. The court sentenced him to 60 years. An appeal followed, challenging the sufficiency of the evidence for the household finding and for the finding that appellant used a deadly weapon. In a question of first impression, the court found that a jail cell is not a household under Texas' family violence statute. The court noted that unlike members of a traditional household, inmates cannot come and go as they please, must follow a strict schedule, and are under constant supervision. "There is a clear distinction between a dwelling, where related and non-related individuals may choose to reside, and a jail, where an individual is confined involuntarily for penal purposes," the court stated. On the deadly weapon question, the court found that hands qualify as a deadly weapon only if the state shows a specific, potentially fatal use, such as throttling a person to the point of suffocation or repeatedly punching a vulnerable area. In this case, the state only proved a "hypothetical capability" that appellant could use his hands as a deadly weapon. The court overruled appellant's ineffective counsel argument, in part because appellant was not "in custody" for interrogation purposes because he was not under arrest while talking to guards after the fight. However, it sustained his other issues. The court reversed the trial court's judgment, reformed the verdict to the lesser included misdemeanor offense of assault causing bodily injury, and remanded for a new sentencing hearing. Steven Davis v. The State of Texas, Corpus Christi-Edinburg Court of Appeals, Case No. 13-15-00355-CR, 6/1/17.

13-15-00355-CR
LETICIA HINOJOSA, JUSTICE

United States Court of Appeals, Fifth Circuit

Duarte v. City of Lewisville, 15-41456 (5th Cir. 05/30/2017)

In 2006, Duarte was convicted of online solicitation of a minor. After serving a three-year prison term, he returned to Lewisville to live with his family. Because of his sex offender status, however, Duarte was prohibited by Lewisville's sex offender residency ordinance from residing anywhere in the city limits that was within 1,500 feet of "premises where children commonly gather." Although the ordinance allowed a person to ask for an exemption, that option was only available to persons that were subject to community supervision. Because Duarte did not fall within this category, he could not apply for the exemption. Instead, he filed suit, alleging that, because the ordinance eliminated 99.975% of the available housing in Lewisville, it violated his due process and equal protection rights. The district court granted Lewisville's motion for summary judgment. The court affirmed. With respect to Duarte's claim that he was entitled to a hearing – so that he could establish he was no longer a danger – the court held that the absence of an additional hearing allowing Duarte to contest current dangerousness did not offend the principles of procedural due process. It also rejected Duarte's equal protection claim, which argued that the ordinance unfairly allowed those under community supervision to seek an exemption while Duarte could not, holding that the differing treatment rationally furthered a legitimate state interest. The court accordingly affirmed the district court's judgment. Duarte v. City of Lewisville, Texas, 5th Circuit, No. 15-41456, 5/30/17

15-41456
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Jones v. Wells Fargo, 16-10042 (5th Cir. 06/01/2017)

Wells Fargo served as trustee for four trusts for which Jones was a beneficiary. In 2013, Jones sued Wells Fargo on a number of claims. The district court dismissed all of the claims except for a claim that Wells Fargo had breached its fiduciary duty to Jones by nonsuiting an earlier suit between the same parties, instead of proceeding to trial. During his closing argument, Jones' lawyer changed his theory and argued that Wells Fargo breached its fiduciary duty by not nonsuiting the case earlier, when it became clear that Wells Fargo would not prevail. Wells Fargo did not object to the new theory, which apparently resonated with the jury, which found in favor of Jones. Both parties appealed. The court first held that, because Jones neither pleaded nor tried his case on the frivolous-lawsuit theory, and because Wells Fargo did not consent to a post-trial amendment, it was improper for the court to award damages against Wells Fargo on that theory. The court agreed, however, that the district court properly dismissed Jones' other legal theories as barred by the statute of limitations. The court accordingly vacated the jury award, entered judgment in favor of Wells Fargo and affirmed the summary judgment in Wells Fargo's favor on Jones' cross-appeal. Jones v. Wells Fargo Bank, N.A., 5th Circuit, No. 16-10042, 6/1/17

16-10042
JERRY E. SMITH, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Rhea v. Ritchey, 16-41032 (5th Cir. 05/30/2017)

Rhea underwent surgery that was paid for, in part, by a medical plan offered by her husband's employer, Ritchey. The summary plan description (SPD) provided that, if a beneficiary received benefits from a third-party because it caused sickness or injury, the recipient was required to remit any benefits to the plan. Rhea settled a malpractice claim against her doctor, but refused to reimburse the plan. The district court granted the plan's motion for summary judgment. The court affirmed. Although Rhea argued that Ritchey was required to have an "official" plan document, separate and apart from the SPD, the court disagreed, holding that the SPD could serve both as the summary plan description and the plan's written instrument. The court also rejected Rhea's argument that the SPD was not sufficiently detailed, holding that the description was sufficient to satisfy ERISA. Finally, the court held that, while the SPD suggested there was a separate written instrument, which was false, Rhea had not shown how she this "misrepresentation" was material or detrimental to her interests. Rhea v. Ritchey, 5th Circuit, 16-41032, 5/30/17

16-41032
JERRY E. SMITH, CIRCUIT JUDGE

Court of Appeals of Texas, Twelfth

Permian Power v. Diamondback, 12-16-00092-CV (TexApp Dist 05/31/2017)

Oil company Diamondback E&P called on appellant Permian Power Tong to install pipe casing in a newly drilled well under the companies' contract. The pipe became deformed shortly after installation, and the parties disagreed as to the cause. Diamondback was forced to plug the well and sued appellant for breach of contract. The court awarded Diamondback $824,000 in damages and $320,000 in attorney's fees, plus conditional attorney's fees for appeal and court costs. An appeal followed on several grounds, including a challenge to the attorney's fees. The court found that Diamondback's attorney submitted his resume and detailed evidence as to the work performed, the staff members who performed it, and the hourly rates. The court found block billing was acceptable here because it was detailed enough to provide meaningful review. The court rejected appellant's argument that the attorney was required to submit resumes of staff members as well, finding that not all of the seven factors for attorney's fees under Arthur Andersen & Co. v. Perry Equip. Corp. , (945 S.W.2d 812) are required. The court also upheld the conditional attorney's fees because appellant did not provide controverting evidence at trial. However, the court found that Diamondback's attorney did not properly segregate fees for claims that are unrecoverable, and remanded to the trial court to determine the amount to be segregated. On other issues, the court overruled several evidentiary challenges. The court found there was ample evidence for a jury to determine that the pipe was free of defects before appellant's installation and that only appellant's equipment touched the pipes where the deformities occurred. It also found that any error in admitting invoices as support for Diamondback's calculation of damages was harmless because appellant failed to object to another exhibit with substantially the same information. However, the court also found that Diamondback's evidence did not fully support the damages award and suggested a remittitur of roughly $810,000, with an order to remand if appellant did not pay the remittitur. The court affirmed in part, reversed in part, and remanded. Permian Power v. Diamondback, Tyler Court of Appeals, Case No. 12-16-00092-CV, 5/31/17.

12-16-00092-CV
BRIAN HOYLE, JUSTICE

United States Court of Appeals, Fifth Circuit

Dewan v. M-I, 16-20182 (5th Cir. 05/30/2017)

M-I specializes in engineering drilling-fluid systems and additives designed to improve performance for oil and gas well drilling operations. It employed Dewan as a "mud engineer" to manage the system and interact directly with customers. After M-I terminated Dewan, he filed a putative class action suit, alleging violations of the FLSA for unpaid overtime. The district court granted M-I's motion for summary judgment, holding that Dewan and the mud engineers were exempt under the FLSA's administrative exception. The court reversed. It held that the record reflected differing facts about the mud employees' primary duties and if they exercised independent discretion and judgment, and that a jury needed to resolve those disputed facts to determine if M-I was entitled to the administrative exception. Dewan v. M-I, LLC, 5th Circuit, No. 16-20182, 5/30/17

16-20182
LESLIE H. SOUTHWICK, CIRCUIT JUDGE

Court of Appeals of Texas, First District

Cardenas v. Bilfinger, 01-16-00422-CV (TexApp Dist 06/01/2017)

Appellant Alejandro Cardenas injured his back while working as a contract electrician for Bilfinger TEPSCO in September 2013. Bilfinger filled out an injury report and placed appellant on light duty. On Oct. 11, 2013, management at Bilfinger prepared a list of electricians to let go, including appellant, as the project they were staffing wound down. Appellant hired an attorney on Oct. 14; Bilfinger and its insurance carrier were notified of appellant's worker's compensation claim on Oct. 16; and Bilfinger terminated appellant's employment on Oct. 17. Appellant sued, the trial court granted summary judgment for Bilfinger, and an appeal followed. In one issue, appellant argued he established a prima facie case of retaliation and the trial court therefore should not have granted summary judgment. The court found that appellant failed to show that his superintendent, who made the decision to terminate him, even knew about his worker's compensation claim, and thus could not have fired him in retaliation for it. The court rejected appellant's argument that the one-day turnaround between Bilfinger learning about the claim and appellant's termination established a prima facie case. The court found that although such a timeline can show retaliation, here it did not because the superintendent made the decision to terminate before appellant pursued his claim. In another issue, appellant argued the trial court improperly granted summary judgment before the discovery period ended. The court found that appellant's motion to continue discovery did not name the people he sought to depose, did not address the information he sought from them, and did not discuss why he was not able to obtain the information in the previous 14 months of discovery. Thus, the court held the trial court did not abuse its discretion. The court also overruled appellant's issue that he was not given proper notice of the summary judgment hearing, finding that he was properly served 21 days before the hearing as required. The court affirmed the trial court's judgment. Cardenas v. Bilfinger, Houston 1st Court of Appeals, Case No. 01-16-00422, 6/1/17.

01-16-00422-CV
EVELYN V. KEYES JUSTICE

United States Court of Appeals, Fifth Circuit

ASARCO v. Montana, 16-40682 (5th Cir. 06/02/2017)

Asarco partnered with Montana Resources, Inc. (MRI) in a Montana copper mine. Their partnership agreement provided that, if one partner failed to pay a cash call within 30 days, the other partner could cover the default with the understanding that, for every $100,000 the nondefaulting partner paid, it diluted the defaulting partner's share by one percent. During a 14-month period in 2002, Asarco missed four cash calls, totaling more than $5 million. MRI covered all of them, which had the effect of reducing Asarco's interest from 49.9% to 0%. In 2005, Asarco filed for bankruptcy protection. In that proceeding, Asarco alleged fraudulent transfer, breach of contract and improper expulsion against MRI, sought a declaration and sought monetary damages. It later dropped the declaratory judgment claim and the remaining claims were dismissed with prejudice. In 2007, Asarco tendered the amounts of the cash calls to MRI and argued that, under the terms of the partnership agreement, its tender entitled it to reinstatement. When MRI refused, Asarco filed suit, alleging breach of contract. After the district court denied MRI's motion for summary judgment, MRI obtained permission to take an interlocutory appeal. On appeal, MRI argued that Asarco's breach of contract claim was barred by claim preclusion, because it should have been asserted in a prior proceeding between the same parties (i.e., the bankruptcy proceeding). The court held that, because MRI had not refused Asarco's reinstatement demand at the time of the bankruptcy proceeding, the breach of contract claim was not ripe at that time, so that Asarco was not required to assert. The court also held that, while MRI now argued that Asarco was precluded from suing MRI because it did not disclose its "reinstatement" right in its bankruptcy court schedules, the district court did not abuse its discretion in rejecting this argument. It affirmed the district court's denial of MRI's motion for summary judgment. Asarco, LLC v. Montana Resources, Inc., 5th Circuit, No. 16-40682, 6/2/17

16-40682
GREGG COSTA, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Abbott, 16-10814 (5th Cir. 05/31/2017)

Appellant lost his qui tam cases against his former employer, appellee, in three separate rulings. Appellant pursued three False Claims Act theories based on claims submitted to Medicare by medical providers engaged in the "off-label" use of appellee's medical stents. A false inducement claim and a claim predicated on false certification of compliance with the Anti-Kickback Statute failed on a motion to dismiss. A false presentment claim was limited at summary judgment to periods when appellant worked for appellee. The jury found against appellant on what was left of his false presentment claim. On appeal, appellant argued that the motion to dismiss and motion for partial summary judgment should not have been granted. Appellant further contended that the erroneous evidentiary rulings and mistakes in instructing the jury tainted its verdict. The court affirmed holding appellant's allegations failed to allege the details of the scheme with sufficient particularity. The court noted the pleadings devoted a single, vague paragraph to the alleged kickback scheme; no additional particulars or links to the alleged kickbacks are provided and therefore appellant failed to satisfy Rule 9(b). Further, the court found the district court correctly dismissed the false inducement claim under the public disclosure bar set forth in United States ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 327 (5th Cir. 2011) which applied whenever qui tam relators brought suit based on publically available information. Finally, the district court properly limited the time frame of the false presentment theory and correctly instructed the jury regarding the false claim. U.S. v. Abbott Laboratories, Fifth Circuit, Case No.: 16-10814, 05/31/2017

16-10814
GREGG COSTA, CIRCUIT JUDGE

Court of Appeals of Texas, First District

Rolle v. Hardy, 01-16-00402-CV (TexApp Dist 06/01/2017)

In this child custody case involving two children whose mother passed away, appellant, the children's maternal uncle, petitioned the trial court to name him the sole managing conservator. Appellee, the children's father and joint managing conservator at the time of the mother's death, moved to dismiss the suit on the basis that appellant could not establish standing to maintain his claim. The trial court found that appellant failed to demonstrate by "satisfactory proof to the court that…the order requested is necessary because the [children's] present circumstances would significantly impair [their] physical or emotional development." Tex. Fam. Code Ann. §102.004(a)(1) In his sole issue on appeal, appellant challenged the trial court's ruling arguing that he presented satisfactory proof and erred by requiring him to overcome the parental presumption. The court reversed the dismissal holding that the trial court did not properly apply the standard of proof in evaluating whether appellant had standing to pursue a modification of the children's conservatorship under §102.004(a)(1). Although standing is based on the existence of certain fact rather than certain proof, questions of standing which impact a parent's right to make decisions about how to best care for his children free from interference by nonparents has a different standard. When a relative within the third degree of consanguinity seeks managing conservatorship, he is to provide satisfactory proof that the order is necessary rather than plead facts. Because appellant provided evidence of both past and current behavior of appellee, the court reversed finding the trial court did not properly make findings of all such behavior and failed to apply the correct standard of proof in making its standing determination under §102.004(a)(1). Rolle v. Hardy, Houston 1st Court of Appeals, Case No.: 01-16-00402-CV, 06/01/2017

01-16-00402-CV
EVELYN V. KEYES JUSTICE

United States Court of Appeals, Fifth Circuit

Fairmont v. James, 16-41449 (5th Cir. 05/31/2017)

After numerous violations of the federal Gun Control Act, the ATF decided to revoke Cash Cow Pawn Shop's federal firearms license. At an administrative hearing requested by Cash Cow, a hearing officer concluded that Cash Cow had willfully violated the Gun Control Act and recommended that the ATF uphold the revocation of its license. Cash Cow then sought review in federal court. The district court granted the ATF's motion for summary judgment, concluding that the ATF had followed the correct administrative procedure and that the undisputed evidence in the administrative record established that Cash Cow had committed at least one willful violation of the Gun Control Act. On appeal, Cash Cow first argued that the violations were committed by one "rogue" employee, and could not be attributed to the company. The court disagreed, holding that the employee's multiple violations were attributable to the company. The court also noted that other Cash Cow employees committed violations that were sufficient to support revocation of its license. The court also held that the district court did not abuse its discretion in denying Cash Cow's motion to compel the ATF to produce its internal investigative file, because Cash Cow was unable to point to otherwise unavailable relevant evidence contained solely in the file. The court accordingly affirmed the district court's grant of summary judgment and its denial of Cash Cow's motions. Fairmont Cash Management LLC v. James, 5th Circuit, No. 16-41449, 5/31/17

16-41449
PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Austin v. Kroger, 16-10502 (5th Cir. 04/14/2017)

Austin, a Kroger employee, was allegedly injured while attempting to clean an oil/water spill at work. Kroger moved for summary judgment on Austin's ordinary negligence/necessary instrumentalities claim. After summary briefing was complete, but before the district court ruled, Austin moved to file a surreply, which the district court denied. He then moved for reconsideration of the denial of his motion for leave to file a surreply, and attached an expert report (which had been produced to Kroger before summary judgment briefing). The district court denied the motion for reconsideration and granted Kroger's motion for summary judgment. The court reversed. It first held there were disputed issues of material fact on whether Kroger had a duty to provide Austin with a specific product intended to safely clean oil/water spills, given that it typically provided this product to its employees. The court also held that employers who do not subscribe to the Texas workers compensation system owe their employees a duty to provide necessary instrumentalities to safely perform their customary work. The court finally held that the district court erred by relying upon Federal Rule 59(e) to reject Austin's motion for leave to file a surreply attaching his expert report. It held that the appropriate standard was Federal Rule 54(b), which is more flexible. It held that, on remand, the district court should consider whether to allow Austin's late filing under Federal Rule 54(b), and suggested that the "interests of justice" seemed to favor allowing the expert report, given the preference for deciding matters on the merits, and not on technicalities. Austin v. Kroger Texas, L.P., 5th Circuit, No. 16-10502, 4/14/17

16-10502

United States Court of Appeals, Fourth Circuit

Guerra v. L&F Distributors, 04-16-00233-CV (4th COA. 05/24/2017)

Appellant Julian Guerra suffered injuries in a car accident while working for L&F Distributors, and sued L&F for retaliation after he was fired. An arbitrator awarded appellant a little more than $40,000. L&F paid all but the portion for lost wages, about $10,000, claiming it needed to withhold federal taxes and could not make payment until appellant furnished W4 and W9 forms. Both parties asked the trial court to confirm the award, and the court ordered appellant to furnish the forms and pay $600 in attorney's fees and sanctions. Before the court signed the order, L&F sent appellant a check for roughly $7,000, claiming the remainder was withheld for taxes, and appellant cashed the check. The court eventually signed an order for L&F to pay the full amount "less any and all federally required withholdings," and an appeal followed. The court first rejected L&F's motion to dismiss the appeal as moot, rejecting L&F's argument that appellant accepted settlement by cashing the $7,000 check. The court noted that nothing on the check indicated it was a settlement. It also found that the acceptance of benefits doctrine did not apply – the benefit, in theory, being that L&F paid appellant's taxes – because L&F withheld an arbitrary amount. It also found that any prejudice to L&F, such as paying appellant's taxes twice, arose from L&F's conduct. Turning to the appeal itself, the court found that the trial court did not have authority to modify the award by ordering taxes withheld. The court found that the arbitrator did not address the tax issue in its award and the parties did not ask. It also found that arbitration awards are not "wholly analogous" to trial judgments, wherein tax withholdings are implied. Next, the court found that the sanctions award was not proper under Texas Rules of Civil Procedure because the trial court did not specify reasons for the sanctions. It rejected L&F's argument that the court had the inherent power to sanction appellant for failing to furnish W4 and W9 forms, based on its finding that the arbitration award did not address taxes and thus did not require such forms. The court reversed the trial court's award of sanctions and rendered judgment denying sanctions, modified the trial court's judgment on payment of the full amount to remove the withholding provision, and affirmed the modified judgment. Guerra v. L&F Distributors, San Antonio Court of Appeals, Case No. 04-16-00233-CV, 5/24/17.

04-16-00233-CV
SANDEE BRYAN MARION, JUSTICE

Court of Appeals of Texas, First District

Johnson v. Phillips, 01-15-00173-CV (TexApp Dist 05/23/2017)

Siblings Kaleta and Seth Johnson, who were descendants of the founder of Exxon and who are two of the four appellants in the current case, won a $20 million award from Dinesh Shah for assault and related claims. Shah had coerced appellants' mother, Joan, to control her finances and let him to move into their house in the exclusive River Oaks neighborhood, leading to psychological abuse of the children and sexual abuse of Seth. Shah's lawyer, Michael Phillips, wrote a book about Shah's transgressions. Appellants, along with their mother Joan and brother Wirt Blaffer, found several passages defamatory and sued Phillips for libel. The trial court granted summary judgment for Phillips, and an appeal followed. Appellants argued that they raised legitimate issues of fact as to whether the book as a whole and certain passages are defamatory. The court found that the book as a whole was not defamatory because it paints appellants as victims who found the strength to give "powerful" testimony against Shah, whom the book paints as the villain. The also court found that the author's commentary, even when critical of appellants, cannot be defamatory because it is opinion rather than fact. Furthermore, the court found, many of the statements in the book critical of appellants were taken from Shah's courtroom testimony and exposed as false in the book. "[A] defendant cannot be liable for presenting a true account of events, particularly an account of a trial in which communications are judicially privileged, regardless of what someone may infer from the account," the court said. Appellants had complained of specific passages that accused them of violence, drug or alcohol abuse, parental neglect, and other vices, but the court found these were all taken from trial testimony. The court affirmed the trial court's judgment. Johnson v. Phillips, Houston 1st Court of Appeals, Case No. 01-15000173-CV, 5/23/17.

01-15-00173-CV
REBECA HUDDLE, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Westbrooks, 16-20409 (5th Cir. 05/24/2017)

Westbrooks was convicted of obstructing the administration of the tax code by submitting tax returns that overstated the amount of compensation her business paid to its employees, not filing appropriate forms, paying employees in cash, and being deceitful at a hearing about whether Westbrooks had produced documents responsive to an IRS subpoena. On appeal, Westbrooks argued that the indictment did not allege an essential element of the tax obstruction statute because it did not assert she acted with knowledge of a pending IRS action, such as an investigation or proceeding. The court expressly joined a majority of the circuits to consider the question and held that the defendant's knowledge of a pending action was not a requirement under the IRS obstruction statute. The court also rejected Westbrooks' vagueness challenge, holding that the statute provided sufficient clarity and notice of the prohibited acts. It also rejected Westbrooks' venue challenge, holding that, because some of the alleged conduct occurred in Houston, that sufficed to establish venue. Turning to the restitution order, the court held that the amount of restitution was supported by the record, but that Westbrooks could not be required to make restitution until after her prison sentence ended, and modified the district court's order accordingly. U.S. v. Westbrooks, 5th Circuit, No. 16-20409, 5/24/17

16-20409
GREGG COSTA, CIRCUIT JUDGE

Court of Appeals of Texas, Sixth Appellate District

Isa v. Public Utility, 06-16-00070-CV (TexApp Dist 05/26/2017)

Appellant Nawaid Isa operated a cricket field lighted with floodlights. The field's energy consumption passed a certain threshold and trigged "high-demand charges" of roughly $2,000. Appellant complained to the Public Utility Commission against Ambit Energy, his electricity retailer, and CenterPoint Energy Houston Electric, the transmission utility. Ambit eventually credited appellant's account for the full amount owed, and the Administrative Law Judge dismissed his complaint with prejudice, holding that he had no additional remedies available. Appellant filed for judicial review and the trial court dismissed for lack of jurisdiction because he did not first file for rehearing with the PUC. An appeal followed. He argued that his appeal should be construed as a motion for rehearing, that filing for rehearing would be futile, that the ALJ's dismissal did not comply with PUC rules, and that PUC rules prevented him from filing for rehearing. On his first argument, the court found that a rehearing is required to give the agency notice that an appeal may be forthcoming and to advise the agency of specific issues for appeal. Thus, the court held that the appeal itself cannot be construed as a motion for rehearing. On his next argument, the court found that a complainant cannot establish futility merely because an agency has already denied his complaint. The complainant must show that the complaint will be denied again on rehearing, and the court found appellant offered no evidence of such. On his argument that the ALJ's dismissal did not comply with PUC rules, the court found that appellant was required to preserve the issue for appeal by specifying the deficiencies in his motion for rehearing, which appellant did not file. On his last argument, appellant relied on Tex. Admin. Code §22.123(b)(1), which he construed to prohibit a motion for rehearing. However, the court found this provision by its plain language applied only to interim orders, whereas the ALJ in this case issued a final order. Having overruled all of appellant's arguments, the court held that appellant was required to move for rehearing and therefore the trial court did not have jurisdiction. The court affirmed the trial court's judgment dismissing for lack of jurisdiction. Isa v. Public Utililty Commission, Texarkana Court of Appeals, Case No. 06-16-00070-CV, 5/26/17.

06-16-00070-CV
BAILEY C. MOSELEY, JUSTICE

Supreme Court of Texas

In Re State Farm, 15-0905 (TexApp Dist 05/26/2017)

After homeowners sued State Farm, alleging that it underpaid hail-damage claims, a dispute arose between the parties over how electronic documents (ESI) would be produced in discovery. State Farm explained that it scanned, stored and maintained documents in static formats (e.g., JPEG, PDF, and TIFF), and that it would be expensive and time-consuming to produce in native formats. The homeowners argued that static format was more expensive for them to maintain and review and that static images did not provide the metadata provided by native formats. The trial court agreed with the homeowners and entered an order requiring all ESI to be produced in native or near-native forms. State Farm sought mandamus relief from the court of appeals, arguing that the trial court's order violated the proportionality provisions in the discovery rules, and that the proposal offered by State Farm was consistent with the rules of civil procedure. The appellate court denied the mandamus request. On appeal, the court held that a requesting party could not unilaterally determine the form of production. Rather, if the producing party could show that the information could not be produced in the requested form, despite "reasonable efforts," but was available in some other "reasonably usable" alternative form, the trial court was required to consider the alternative proposal, taking into account the likely benefit of the requested discovery, the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and other factors bearing on proportionality. The court acknowledged that these proportionality principles aligned with those under the Federal Rules of Civil Procedure. In Re State Farm Lloyds, Supreme Court, No. 15-0903; 15-0905, 5/26/17

15-0905
EVA M. GUZMAN, JUSTICE

Court of Appeals of Texas, Eleventh

Hawkins v. State of Texas, 11-15-00106-CR (TexApp Dist 05/25/2017)

Appellant Steven Dale Hawkins began to abuse K.M., his niece by marriage, when she was 11 years old. After K.M. and her aunt, appellant's wife, went to police, two officers came to appellant's house and one went in to ask appellant to come to the station. Appellant went voluntarily, and after the officer read him his Miranda warnings, appellant described several incidents of abuse, most of which confirmed K.M.'s accusations. K.M. also testified at trial to several instances of abuse. The court convicted appellant on seven counts: one of aggravated sexual assault, three of indecency with a child by contact, and three of indecency with a child by exposure. The court imposed sentences totaling 115 years and an out-of-time appeal followed several years later on double jeopardy grounds. Appellant argued two of the indecency by exposure counts were subsumed by the other counts, resulting in multiple punishments for the same offense. The court found that under Speights v. State (464 S.W.3d 719), indecency by exposure is not subsumed into an indecency by contact count "even if they occur during the same criminal act." Furthermore, the court found that between K.M.'s testimony and appellant's confession to police, the evidence supported more than enough separate acts of abuse to convict appellant on all seven charges. In a separate issue, the court rejected appellant's argument that his confession was involuntary under the Fourth Amendment because it was the product of an illegal arrest. The court found that appellant voluntarily went to the police station, and the lone officer who entered his home did not handcuff him or imply that he would be restrained if he did not come along. Thus, appellant was not under arrest for Fourth Amendment purposes. The court affirmed the trial court's judgment. Steven Dale Hawkins v. The State of Texas, Eastland Court of Appeals, Case No. 11-15-00106-CR, 5/25/17.

11-15-00106-CR
JOHN M. BAILEY, JUSTICE

Court of Appeals of Texas, First District

Ashby v. State of Texas, 01-15-00182-CR (TexApp Dist 05/23/2017)

After an anonymous call about a black SUV that hit a wall at a toll bridge, Deputy T. Gossett located the vehicle and began following it. After observing the SUV weaving within lanes and crossing the shoulder line, he pulled it over. The driver, appellant David Rowe Ashby, claimed he had not been drinking but performed poorly on field sobriety tests. Gossett arrested appellant, and a voluntary blood sample showed TFMPP, a controlled substance similar to MDMA. After the court ruled the blood sample was admissible, appellant plead guilty to driving while intoxicated, the court sentenced him to one year of probation with a fine, and he appealed. In one issue, appellant argued the state failed to show its evidence of TFMPP in the blood sample was relevant and reliable. The court found that the trial court properly held a Kelly hearing, at appellant's request, to assess the reliability of expert testimony using the test the Court of Criminal Appeals devised in Kelly v. State, (824 S.W.2d 568). The court also found that the three expert witnesses at the hearing, all doctors, testified either to the presence of TFMPP in appellant's system, or the effects of TFMPP, or both. The court found the testimony was relevant because it was probative of appellant's mental state at the time of the traffic stop. Although the doctors testified that no attempt was made to determine the quantity of TFMPP appellant had ingested, and that they could not reliably ascertain how recently he ingested it, the court found these statements went to the weight of their testimony, not its relevance. In another issue, appellant argued Gossett did not have reasonable suspicion to pull him over because he did not see appellant commit a traffic violation, and therefore evidence from the stop – including the blood draw – should not have been admitted. The court found that appellant's erratic driving, though not illegal, was indicative of intoxication and therefore provided reasonable suspicion to pull over appellant's vehicle. The court overruled both of appellant's issues and affirmed the trial court's judgment. David Rowe Ashby v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-15-00182-CR, 5/23/17.

01-15-00182-CR
REBECA HUDDLE, JUSTICE

Court of Appeals of Texas, Fourteenth

Farmers v. Okelberry, 14-15-01081-CV (TexApp Dist 05/25/2017)

Steven Okelberry and his sons were injured in a collision with an 18-wheeler. The parties eventually settled for the truck owner's insurance policy limits of $750,000. Of that money, $639,989 was allocated to Okelberry and paid via three checks: One to his attorneys, one to a subrogation firm, and one paid jointly to Okelberry and his wife for $320,777. Okelberry then sued his insurer, appellant Farmers Texas County Mutual Insurance Company, to enforce his $500,000 underinsured motorist coverage. The jury awarded Okelberry more than $825,000, which, under the policy, obligated appellant to pay the lesser of $500,000 or the difference between the jury award and the amount already "paid or payable" to Okelberry. The parties disagreed on how to calculate the offset, and Okelberry argued that the $639,989 already paid on his behalf was community property in which he held only a one-half interest and that appellant had the burden to prove that the proceeds were allocated differently. The jury awarded him $500,000, and an appeal followed. The court found that the general rule of a 50-50 split in community property is primarily applicable in divorces and does not apply to personal injury settlements. During the marriage, community property is subject to joint management and control under Tex. Fam. Code §3.102(c), the court found. "The community property scheme thus makes the spouses equal owners of undivided interests in all of the community property," the court said. Although the proceeds might be split equally upon a divorce, the full amount is available to either spouse during the marriage, the court reasoned. Furthermore, the court found that the trial court improperly placed the burden to prove the allocation of settlement proceeds on appellant. The court found that under Mobil Oil Corp. v. Ellender (968 S.W.2d 917), the burden should have been on Okelberry. Based on these findings and the "conclusive evidence" that $639,989 had been paid to Okelberry or on his behalf, the court held that appellant was entitled to offset the entire $639,989 from the $825,000 award. The court reversed the trial court's judgment and remanded with an instruction to render judgment awarding appellant a credit for the full amount. Farmers v. Okelberry, Houston 14th Court of Appeals, Case No. 14-15-01081-CV, 5/25/17.

14-15-01081-CV
KEN WISE, JUSTICE

Court of Appeals of Texas, Third District

Texas Department v. Levin, 03-15-00044-CV (TexApp Dist 05/25/2017)

In the course of their legal representation of Texas death-row inmates, and against the backdrop of legal and policy controversy regarding so-called "botched" executions by lethal injection in other states, appellees made written requests of appellant under the Public Information Act (PIA) for the agency's "execution protocol," the drugs it uses in lethal injections, any results of testing on such drugs, and the drugs' sources. Appellant eventually produced all of the information appellees requested except with regard to the drugs' source; it divulged only that the source was a licensed compounding pharmacy that was open to the public and located in an urban area of some Texas city. On advice of the attorney general, appellant maintained such disclosure would threaten physical harm in accordance with Texas Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112 (Tex. 2011). On motion, the district court granted appellees' mandamus request to compel disclosure arguing that the Cox protection was inapplicable. On appeal, the court affirmed holding that a person's manufacturing or supplying of lethal-injection drugs was not the sort of activity that "would create a substantial threat" within the contemplation of Cox, that others would attempt to physically injure or kill the person. The court noted that, in the case at hand, summary judgment was appropriate as appellants failed to show that disclosing the source of the drug would make it probable that the pharmacist, pharmacy employees, or others would be physically harmed. Rather, appellants merely demonstrated only the residual or general threat of physical harm that would accompany virtually any participation in governmental functions or controversial issues. Accordingly, the court affirmed the decision of the district court. Texas Dept. of Criminal Justice v. Levin, Austin Court of Appeals, Case No.: 03-15-00044-CV, 05/25/2017

03-15-00044-CV
BOB PEMBERTON, JUSTICE

Court of Appeals of Texas, Fourteenth

Washburn v. Ford, 14-16-00459-CV (TexApp Dist 05/23/2017)

Appellant purchased a vehicle from appellee, which included a "Buyers Guide" indicating that "a manufacturer's warranty comes with the vehicle" and the truck was still under the "manufacturer's warranty," instructing the buyer to "[c]onsult the manufacturer's warranty booklet for details as to warranty coverage." Approximately a month after appellant purchased the vehicle, the truck began experiencing mechanical difficulties. Appellant took it to a dealership for repairs and was informed that the needed repairs were not covered by the warranty because "there was a restriction on the truck." Appellant ultimately made the repairs at his own expenses and filed the underlying lawsuit bringing causes of action under the Texas Deceptive Trade Practices Act, breach of contract, and negligence. The trial court rendered a final take-nothing summary judgment in favor of appellee. On appeal, the court affirmed holding appellee did not make false or misleading statements of fact concerning price reductions as required under the DTPA laundry list subsection (b)(11). Further, the court found appellee did not fail to disclose known material information or engaged in an unconscionable course of action. Having concluded that appellee conclusively established that it did not engage in the alleged violations of the DTPA, the court affirmed the judgment of the trial court. Washburn v. Sterling McCall Ford, Houston 14th Court of Appeals, Case No.: 14-16-00459-CV, 05/23/2017

14-16-00459-CV
MARTHA HILL JAMISON, JUSTICE

Supreme Court of Texas

Davis v. Mueller, 16-0155 (TexApp Dist 05/26/2017)

In 1991, two individuals (Cope and Mills) executed agreements with James Davis in which Cope and Mills conveyed their mineral rights in certain tracts of land to Davis. In 2011, Cope and Mills deeded to Mark Mueller, a landman who had contacted them, the interests they had conveyed to Davis in 1991. Mueller then sued Davis, alleging that the property descriptions in the 1991 deeds were not sufficiently certain as required by the Statute of Frauds. The trial court found for Davis on summary judgment. The court of appeals reversed, holding that the question of what was conveyed was a jury question. The court reversed. It agreed that the specific property descriptions in the 1991 deeds did not satisfy the Statute of Frauds. It held, however, that the general granting clause in the 1991 deeds was sufficient to convey the interests in question. Because the 1991 conveyances preceded the conveyances to Mueller, the court held that Davis had superior title to the property. It reversed the court of appeals' judgment and reinstated the trial court's judgment that Mueller take nothing. Davis v. Mueller, Supreme Court, No. 16-0155, 5/26/17

16-0155
NATHAN L. HECHT, CHIEF JUSTICE

Court of Appeals of Texas, First District

Hatzenbuehler v. Essig, 01-16-00515-CV (TexApp Dist 05/23/2017)

Josef Hatzenbuehler, a German citizen who lived in Texas, purchased an antique cauldron through an agent, Jens Essig. Hatzenbuehler became acquainted with Essig and the cauldron on a visit to Germany. Essig, both in visit to Germany and in communications after Hatzenbuehler had returned to Texas, repeatedly represented that the cauldron was of Celtic origin and highly valuable. He eventually bid on and purchased the cauldron for Hatzenbuehler at an estate sale in Switzerland under an agreement governed by German law. Several weeks later, Hatzenbuehler and his wife, appellant Brigitte, learned that Essig knew beforehand that the cauldron was actually crafted by the Nazis and was considerably less valuable than he had led them to believe. Josef Hatzenbuehler sued Essig in Texas. Essig made a special appearance and argued the court had no jurisdiction over him; Hatzenbuehler argued that his business dealings with a Texas resident established sufficient minimum contacts. The trial court dismissed the suit for lack of personal jurisdiction, and an appeal followed, pressed by Brigitte as Josef's successor as plaintiff after his death. The court found that any contact Essig had with Texas was not systematic enough to qualify for general personal jurisdiction, and also found that he did not fit any theory of specific jurisdiction. On the latter, the court found appellant's tort claims were not committed in Texas because the "substance of the transactions" took place in Europe. It also found the contract to bid on the cauldron was not performable in Texas because Josef became the sole owner of the cauldron after the winning bid was made, and he alone was responsible for transport to and storage in Texas. Lastly, it found the Essig's communications with Josef while Josef was in Texas were not "for the purposes to doing business in Texas," because the contract was governed by German law and performed in Europe. Finding no basis for personal jurisdiction, the court affirmed the trial court's judgment. Hatzenbueler v. Essig, Houston 1st Court of Appeals, Case No. 01-16-00515-CV, 5/23/17.

01-16-00515-CV
JANE BLAND, JUSTICE

Court of Appeals of Texas, Thirteenth

Traylor v. State of Texas, 13-13-00371-CR (TexApp Dist 05/25/2017)

A jury found appellant guilty of first-degree burglary of a habitation, and the trial court sentenced him to twenty years in prison. Appellant's first trial was declared a mistrial after the jury failed to reach a verdict. One week before the scheduled retrial date, appellant requested a continuance and dismissal on speedy trial grounds; the trial court denied appellant's motions and the case proceeded to trial. By two issues, appellant contended that his conviction violated the sixth amendment's speedy-trial clause and the fifth amendment's double jeopardy clause. The court reversed and remanded for a new trial on the lesser-included offense of second-degree burglary. Initially, the court found that the delay in trial was not a deliberate attempt by the state to delay in order to hamper appellant's defense and appellant's sixth amendment rights were not violated. Rather the delay resulted in several reasons, including appellant's breakdown of his attorney-client relationship, new counsel's need to prepare, appellant's multiple requests to continue, and a mistrial. However, the court reversed finding the conviction of first-degree burglary was barred by double jeopardy as the foreperson in the first trial reported that all twelve jurors were unanimous against guilt on the charged offense, but they were deadlocked against guilt on the lesser-included offense. In reaching this conclusion, the court acknowledged that Texas law recognized the existence of an informal verdict of acquittal. As appellant could not be retried for the offense of first-degree burglary without running afoul of the double jeopardy clause's prohibition on successive trials, the court reversed and remanded. Peter Anthony Traylor v. The State of Texas, Corpus Christi-Edinburg Court of Appeals, Case No.: 13-13-00371-CR, 05/25/2017

13-13-00371-CR
ROGELIO VALDEZ, CHIEF JUSTICE

Supreme Court of Texas

Horizon v. Acadia, 15-0819 (TexApp Dist 05/26/2017)

Several upper-management employees of Horizon, which provides contract management services to hospitals, joined Acadia, where they began successfully competing with Horizon. Horizon sued the departing employees under a variety of theories. A jury found for Horizon on most claims and awarded it $4.1 million in future lost profits, as well as additional contractual and punitive damages. The court of appeals held that Horizon was not entitled to any lost profits because its expert testimony was impermissibly speculative and legally insufficient. The court of appeals held that the remaining damages (approximately $55,000) meant that the jury's $1.7 million punitive damages award was constitutionally excessive, and reduced it to $1.1 million. Both sides appealed. The court first held that, because there was no evidence that clients would have executed contracts with Horizon in the future, any lost profits award based upon these lost contracts was speculative. It similarly held that the jury's lost profits award, based upon business a departing salesperson would have obtained in the future, was too speculative to support the verdict because there was no guarantee how long the employee would have remained at Horizon, his productivity during that period, or the profitability of his contracts. The court held that, while the evidence supported that each of the defendants acted with malice, as required to support the punitive damages award, the award was constitutionally excessive, even with the remitter suggested by the appellate court. The court held that the proper basis for assessing the constitutional excessiveness of an exemplary damages award is per-defendant, rather than per-judgment, because calculating the constitutionally permissible ratio by comparing the total compensatory damages recoverable to the total exemplary damages awarded fails to contemplate the scenarios in which defendants act with varying degrees of reprehensibility. The court accordingly held that, in determining the basis for a constitutionally permissible amount of exemplary damages, courts must consider the harm each defendant actually caused and assess the punishment based on that harm, because this approach most closely matches the punishment to each defendant's misconduct. It remanded the case to the court of appeals so that it could reconsider its suggested remittitur of exemplary damages in light of the court's decision. Horizon Health Corp. v. Acadia Healthcare Co., Inc., Supreme Court, No. 15-0819, 5/26/17

15-0819
PAUL W. GREEN, JUSTICE

Court of Appeals of Texas, Fourteenth

Ho & Huang v. Parkway, 14-14-00528-CV (TexApp Dist 05/24/2017)

Parkway Dental Associates signed a five-year lease with appellant Ho & Huang Properties to run a dental office in a shopping center. The lease contained a provision that no competitive business, defined as a business practicing general dentistry, could operate in the center. Two years into the lease, appellant sold a portion of the center's parking lot, and a subsequent owner leased space to a dental office. Parkway sued for breach of the lease and anticipatory repudiation, and the trial court initially ruled against it, but on remand awarded Parkway $11,500 plus attorney's fees, interest, and court costs. An appeal followed on seven issues, which were largely focused on appellant's complaint that the court erred in two jury instructions. Appellant had sought an instruction that a breach of one section of the lease did not constitute a waiver of other lease provisions. The court found that although the proposed instruction was a correct statement of law, it was unnecessary because the jury had access to the entire lease. Thus, the trial court was not required to issue the instruction. Appellant had also sought to modify an instruction as to whether Parkway's breaches of the lease were excused. The instruction notified the jury that appellant failed to comply with the lease if any space in the shopping center was used "for a business that engaged in the practice of general dentistry," and appellant sought to insert the word "competitive" before "business." The court found that the instruction properly defined a "competitive business" without the word "competitive." The court thus held that the trial court did not abuse its discretion in instructing the jury. On other issues, the court found the evidence supported the jury's conclusions that 1) appellant breached the lease, and 2) although Parkway also breached the lease, its breaches were excused because appellant's breach preceded Parkway's. The court affirmed the trial court's judgment. Ho & Huang v. Parkway, Houston 14th Court of Appeals, Case No. 14-14-00528-CV, 5/24/17.

14-14-00528-CV
KEM THOMPSON FROST, CHIEF JUSTICE

Supreme Court of Texas

Kinsel v. Lindsey, 15-0403 (TexApp Dist 05/26/2017)

Certain beneficiaries of a ranch owned by Lesey Kinsel sued Kinsel's niece (Lindsey) for tortious interference with inheritance, alleging that they were misled into agreeing to the sale of the ranch before Lesey died, which meant they did not receive the proceeds, which went to Lindsey. The beneficiaries sought a constructive trust on the proceeds from the sale. A jury found that Lesey was mentally incapacitated when the decision to sell the ranch was made, found for the beneficiaries and awarded them the sale proceeds. The appellate court reversed the jury's damages award for tortious interference with inheritance on the basis that cause of action was not recognized in Texas. It also reversed the fraud damages because the jury was presented with an incorrect measure and no evidence supported the correct measure of damages. It agreed, however, that the evidence supported the incapacity finding. On appeal, the court agreed that the trial record supported the jury's finding of incapacity, that the jury was improperly instructed on the fraud damages, and that there was no evidence supporting the appropriate measure of fraud damages in the record. Turning to the claim for tortious interference with inheritance, the court held that it had never recognized this claim, nor had the legislature created a statutory cause of action. Believing that a constructive trust provided sufficient relief for this type of dispute, the court declined to recognize a claim for tortious interference with inheritance. Finally, the court held that, on remand, the beneficiaries might be able to recover their attorneys' fees, if they should show that they were incurred in pursuit of successful claims. Kinsel v. Lindsey, et al. Supreme Court, No. 15-0403, 5/26/17

15-0403
JEFFREY V. BROWN, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Garcia, 16-10863 (5th Cir. 05/23/2017)

Garcia was involved in the armed robbery of a gun store with two accomplices. He pled guilty to one count of armed robbery and one count of possessing and discharging a firearm during a crime of violence. The presentence report recommended a sentencing enhancement based on the assessment that Garcia and his accomplices had physically restrained the store employees. Both the defense and the government objected to the enhancement as foreclosed by Fifth Circuit precedent. The district court overruled the objections and imposed an enhancement. On appeal, Garcia first argued that the statute under which he was convicted (§924(c)(3)(B)) was unconstitutionally vague. The court held that it was bound by U.S. v. Gonzalez-Longoria, in which the court had rejected an identical argument. The court agreed, however, that the "physical restraint" enhancement was improper because none of the defendants' conduct involved tying, binding or locking up the victims, or forcing them to move to a confined space. The court held that the statute required "physical" restraint, so that simply standing at the door and telling the employees to get on the ground was insufficient. It according held that the district court erred by enhancing Garcia's sentence, and remanded the case for resentencing. U.S. v. Garcia, 5th Circuit, No. 16-10863, 5/23/17

16-10863
EDWARD C. PRADO, CIRCUIT JUDGE

Supreme Court of Texas

Chavez v. Kansas City, 15-0717 (TexApp Dist 05/26/2017)

Chavez and Kansas City Southern Railway agreed to a settlement in a letter agreement signed by counsel, resolving Chavez's claims arising out of the alleged wrongful death of her husband and son. At a hearing to approve the agreement, however, Chavez said that she did not want to settle, and instead wanted new counsel. The trial court twice rescheduled the hearing, but Chavez did not appear at either hearing. At the second rescheduled hearing, one of Chavez's attorneys appeared, and represented that, while she no longer represented Chavez, Chavez consented to the settlement. The trial court granted Railway's motion to enforce the agreement. Chavez appealed, and the appellate court reversed because the agreement had not been entered in the trial court. On remand, Railway entered the agreement into the record and moved for summary judgment. Although Chavez argued, by affidavit, that she did not consent to the agreement, the trial court entered summary judgment for Railway. Chavez appealed, arguing that her counsel did not have authority to bind her to the settlement agreement. The appellate court affirmed, holding that Chavez's attorney presumably had authority to bind her. The court reversed. It held that, to prevail on summary judgment, Railway had to conclusively establish that Chavez actually authorized her counsel to enter into a settlement agreement on her behalf, and could not simply rely upon a presumption that the counsel was authorized to act. Chavez, et al. v. Kansas City Southern Railway Co. Supreme Court, No. 15-0717. 5/26/17

15-0717

Court of Appeals of Texas, Second District

The Dallas v. Hall, 02-16-00371-CV (TexApp Dist 05/25/2017)

Appellants published a series of articles that largely centered around the potentially illegal business practice in which compounding pharmacies financially incentivize physicians to write prescriptions for their products and services. The articles referenced appellees' pharmacy as engaging in such practice and was the subject of a federal health care fraud investigation. Appellees filed suit for libel alleging appellants had defamed them by publishing statements that appellees were "under investigation by authorities concerning violation of criminal statutes" and by publishing statements that accused appellees of defrauding the federal government, insurance providers, or both. Appellants moved to dismiss arguing appellees could not meet their burden to establish that appellants had falsely reported that appellees were under federal investigation; the trial court denied dismissal. On appeal, the court affirmed holding a person of ordinary intelligence could conclude that one gist of the publications was that appellees were under federal investigation for violating criminal laws aimed at prohibiting fraud in the healthcare context. The court noted that appellants' argument that a search warrant was issued thereby substantiating its argument that the publications were not defaming did not conclusively establish that appellees were under federal investigation as the search warrant affidavit was not in evidence and mentions other individuals and entities beyond appellees. Accordingly, the court found appellees met their burden of proof to maintain suit and affirmed the trial court's denial of dismissal. The Dallas Morning News, Inc. v. Hall, Fort Worth Court of Appeals, Case No.: 02-16-00371-CV, 05/25/2017

02-16-00371-CV
BILL MEIER, JUSTICE

Court of Appeals of Texas, First District

Vance v. Popkowski, 01-15-00897-CV (TexApp Dist 05/25/2017)

Appellees, the purchasers of deed-restricted property in a residential subdivision, began operating a business from a single-family residence located on the property. Appellants, whom also own property in the subdivision, claimed that the operation of the business violated the deed restrictions. Appellants brought suit seeking a permanent injunction prohibiting operation of the business; appellees admitted that they were operating a business but asserted as an affirmative defense that the deed restrictions had been abandoned. A jury found that the restrictions had been abandoned, and the trial court rendered judgment in favor of appellees. On appeal, appellants argued that the appellees waived their affirmative defense of abandonment by failing to request or obtain a jury finding regarding whether a nonwaiver provision contained in the deed restriction had been waived. The court reversed finding the jury verdict was insufficient to support a finding of abandonment of particular deed restrictions absent findings regarding nonwaiver provision. Further, because the appellees admitted that the operation of the business would violate the deed restrictions, if enforceable, the court remanded for entry of an injunction and for further proceedings as may be necessary to resolve claims to recover attorney's fees. The court concluded that the nonwaiver provision operated to preclude a finding that particular restrictive covenants were abandoned in this matter. Vance v. Popkowski, Houston 1st Court of Appeals, Case No.: 01-15-00897-CV, 05/25/2017

01-15-00897-CV
MICHAEL MASSENGALE, JUSTICE

United States Court of Appeals, Fifth Circuit

BHTT v. Brickhouse, 16-10687 (5th Cir. 05/24/2017)

This matter began as a "garden-variety" trademark dispute over appellant's usage of its marks infringed on appellee's marks. After an entry of default against appellants, appellee discovered that the other two defendants also had managerial roles; appellee amended its complaint to add them as defendants and attempted to serve its complaint. Faced with an inability to serve, appellees successfully moved for substituted service. Appellant failed to respond or contest the default judgment; rather appellant appealed. Initially, the appeal was dismissed for want of prosecution, however the clerk reopened the matter upon reconsideration. In opposition, appellee argued the court lacked jurisdiction to hear the appeal as the court never recalled the mandate that issued when the case was initially dismissed for want of prosecution and that the failure to recall the mandate was fatal to appellate jurisdiction. The court concluded it had jurisdiction as a motion to reopen a case and a motion to recall the mandate had the same effect; they both ask the court to resurrect a matter it had finally disposed of. Therefore, the court concluded that the clerk had the power to recall the mandate here, that its order reopening the case did do so, and that the court had appellate jurisdiction. However, the court affirmed default finding appellant was properly serviced, despite its elusiveness, in accordance with proper methods of service under both Texas and federal law. The court noted appellee effectuated service in accordance with the district court's direction by leaving the summons and complaint with one person in one location, with a certificate of service properly filed. Accordingly, the court affirmed the default judgment. BHTT Entertainment, Inc. v. Brickhouse Café & Lounge, L.L.C., Fifth Circuit, Case No.: 16-10687, 05/24/2017

16-10687
JERRY E. SMITH, CIRCUIT JUDGE

Court of Appeals of Texas, Third District

Texas Health v. Olguin, 03-16-00323-CV (TexApp Dist 05/24/2017)

Appellee, a former employee of appellant, filed a charge of discrimination with the Texas Workforce Commission Human Rights Division, alleging that his termination was the result of discrimination and retaliation. Following a "right to sue letter," appellee filed suit alleging discrimination, retaliation, and aiding and abetting discriminatory behavior. For reasons not entirely clear, but apparently because of a clerical error on the part of the district clerk's office, citation was not served until after the 60-day deadline following receipt of the right to sue letter. After a hearing and supplemental briefing, the trial court granted the plea to the jurisdiction as to the claim for aiding and abetting discriminatory behavior and denied it as to the discrimination and retaliation claims. In a single issue, appellant contended that the trial court erred in denying its plea to the jurisdiction because appellee failed to meet the deadline in §21.254 for "brining a civil action." The court affirmed holding that to "bring suit" within the 60-day deadline under §21.254 did not require service of process within that period in addition to filing suit and that service of process within the 60-day deadline in §21.254 was not a statutory prerequisite. The court noted that appellee exercised due diligence in his attempt to effectuate service, however a clerical error prevented the issuance of a citation. Therefore, the court concluded that appellee was not jurisdictionally barred from suit and that the trial court did not err in denying appellant's plea to the jurisdiction. Texas Health and Human Services Comm. V. Olguin, Austin Court of Appeals, Case No.: 03-16-00323-CV, 05/24/2017

03-16-00323-CV
MELISSA GOODWIN, JUSTICE

Court of Appeals of Texas, First District

Paulsen v. Yarrell, 01-16-00061-CV (TexApp Dist 05/25/2017)

Appellant James Paulsen, a law professor at the South Texas College of Law, wrote a letter to a judge in a custody case highly critical of the court proceedings and the father's attorney. A dispute arose between the attorney, Ellen Yarrell, and appellant. Yarrell eventually notified appellant's employer and the State Bar of Texas about his communications to the court and to her, although she stopped short of filing a formal grievance. Nevertheless, appellant sued for defamation and tortious interference with a contract. Yarrell filed several motions to dismiss, including one based on the Texas Citizens Participatory Act, and appellant moved to dismiss that motion to dismiss. The court granted partial summary judgment and both sides appealed; on remand, the court also denied appellant's motion to dismiss, saying such a motion "would lead to an endlessly circular and absurd result." An appeal followed, challenging the denial of the motion to dismiss and the earlier summary judgment rulings. Appellant argued that because his lawsuit arose from the letter he sent the court, which he characterized as an amicus brief, Yarrell's motion to dismiss under the TCPA was based on his right to petition, which is also protected by the TCPA. The court, however, found that his motion to dismiss is not a "legal action" protected by the TCPA because, unlike an initial lawsuit or a counter-claim, it is not "a procedural vehicle for the vindication of a legal claim." Furthermore, such a motion would frustrate the TCPA because it would allow a party to defeat a motion to dismiss a TCPA claim without establishing a prima facie case for the claim, as required by the TCPA. The court overruled this issue. It also overruled appellant's challenge to summary judgment on his defamation claim, finding that Yarrell's letters to appellant's employer and the Texas Bar were objectively true statements of fact. The court affirmed the trial court's judgment. Paulsen v. Yarrell, Houston 1st Court of Appeals, Case No. 01-16-00061-CV, 5/25/17.

01-16-00061-CV
MICHAEL MASSENGALE, JUSTICE

Supreme Court of Texas

Exxon v. Rincones, 15-0240 (TexApp Dist 05/26/2017)

Rincones was employed by WHM as a refinery technician, working at an Exxon facility. In April 2008, Rincones failed a drug test administered by a third-party testing company (DISA), which made him ineligible to work until he completed certain rehabilitation requirements. Because Rincones did not complete the required rehabilitation requirements, he was not allowed to return to work. Rincones sued WHM, Exxon and DISA under 16 separate legal theories. The trial court granted summary judgment to the defendants on all claims, but the court of appeals reinstated nine of the causes of action. Defendants appealed. The court reversed and reinstated the trial court's final take-nothing judgment against Rincones. It first held that, because the publication element of a defamation claim cannot be satisfied by a theory of "compelled" self-disclosure and there is no independent cause of action for compelled self-defamation, the court of appeals improperly reinstated Rincones' defamation claim. It next held that, because Rincones could not show similarly-situated employees outside his race or national origin class who were treated differently, the court of appeals improperly reinstated Rincones' race/national origin discrimination claim. Next, because Rincones could not identify any "protected conduct," the court held that his retaliation claim was improperly reinstated by the court of appeals. The court also held that Exxon did not tortuously interfere with Rincones by sending WHM a letter about Rincones' positive test, so that the court of appeals erred by reinstating that claim, and that Exxon had no right to control DISA, so that it could not be held liable for DISA's alleged negligence. With respect to Rincones' tortious interference claim against DISA, the court held that it accrued at the time Rincones knew the nature of the injury, regardless of whether his contract was terminated at that time and, as a result, Rincones claim was time barred because it was first asserted more than two years after he learned about the positive drug test and its impact on his employment. The court similarly held that Rincones' negligence claim against DISA was subject to a two-year statute of limitations, could not be extended by the continuing-tort doctrine, was not subject to equitable estoppel and was not rescued by misnomer. Exxon Mobil Corp. v. Rincones, Supreme Court, No. 15-0240, 5/26/17

15-0240
JEFFREY V. BROWN, JUSTICE

United States Court of Appeals, Fourth Circuit

Interest of C.R.-A.A., 04-16-00782-CV (4th COA. 05/24/2017)

The Texas Department of Family Services became temporary managing conservator for C.R.-A.A., whose mother lived in Texas and whose father lived in Oklahoma. Father moved to place the child with him, based on a previous court ruling in Oklahoma establishing his paternity and ordering child support. At an interstitial hearing, an associate judge found the Oklahoma court had exclusive continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, and that the Interstate Compact on the Placement of Children mandated that the child must be placed with the father unless he is unfit. After a hearing on fitness, the associate judge ordered the child placed with the father. The trial court upheld the decision and the mother appealed. The appeals court found that the Oklahoma case did not award custody and therefore did not confer continuing exclusive jurisdiction upon that court, under both the Texas and Oklahoma versions of the UCCJEA. In addition, the court found that Texas was the child's home state. Thus, the court held that the Texas court had jurisdiction over the custody matter. The court also found that the ICPC only applies to interstate placement of children into foster homes. Although noting that several states' courts came to different interpretations of the ICPC on this issue, the court held that by its plain language the ICPC does not apply when a child is placed with a natural parent as long as he or she is fit to be a parent. Thus, the court held that the trial court erred in determining that the Oklahoma court had jurisdiction under the UCCJEA and in determining that the ICPC applies. The court reversed and remanded the trial court's judgment. In the Interest of C.R.-A.A., Houston 1st Court of Appeals, Case No. 04-16-00782-CV, 5/24/17.

04-16-00782-CV
MARIALYN BARNARD, JUSTICE

United States Court of Appeals, Fifth Circuit

Renegade v. Wright, 16-11152 (5th Cir. 05/22/2017)

Appellee sued appellant in state court for breach of employment agreement-related claims. Appellant counterclaimed based on unpaid bonuses and Fair Labor Standards Act violations. Soon after, appellee nonsuited its claims without prejudice and moved to realign the parties in state court. Before the state court decided on the motion to realign, appellee noticed its removal to federal court, asserting that removal was proper because "the affirmative civil claims pending in the lawsuit arise under the Constitution, laws, or treaties of the United States." After the case arrived in federal court, appellant moved for remand and attorney's fees arguing appellee "lacked an objectively reasonable basis for seeking removal" and requested costs pursuant to 28 U.S.C. §1447(c). The district court denied realignment, granted appellant's motion to remand, and awarded her costs and fees. Appellee moved for, and was granted, partial reconsideration challenging the award of costs and fees arguing that it had an "objectively reasonable" basis to remove. On appeal, the court reversed holding appellant did not have an objectively reasonable basis for removal, and the district court abused its discretion in finding otherwise. The court noted the text of 28 U.S.C. §1441 granted the power to remove to "defendants," yet appellee was the original plaintiff despite appellant asserting FLSA counterclaims. Appellee removed the matter before the parties were realigned – and there was no guarantee that they would have been a functional defendant. Finally, the court reversed holding appellee's well-pleaded complaint did not assert any claim arising under federal law, and therefore was not reasonable to be removed. Renegade Swish, L.L.C. v. Wright, Fifth Circuit, Case No.: 16-11152, 05/22/2017

16-11152
PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

National Security v. Hurst, 14-15-00714-CV (TexApp Dist 05/23/2017)

Ozier Hurst's home sustained wind damage from Hurricane Ike. Appellant National Security Fire & Casualty Co., his insurer, assessed the damage and issued Hurst a check for $3,525, which Hurst cashed. However, he subsequently sued appellant, along with the adjusting firm and the adjuster, claiming they engaged in unfair or deceptive acts. Several years later Hurst invoked the policy's appraisal clause, and an umpire awarded Hurst $7,166. Appellant issued a check for the difference, but Hurst did not cash it and instead pushed his litigation. A jury found for Hurst and the court awarded him in excess of $250,000 plus interest. An appeal followed. The court found that appellant's timely payment of the appraisal award estopped Hurst from pursuing the lawsuit, and that under United Neurology, P.A. v. Hartford Lloyd's Ins. Co. (101 F. Supp. 3d 584) it was irrelevant that Hurst never accepted the award. The court rejected Hurst's argument that appellant's payment was a partial or conditional payment because appellant tendered it with a release of claims against appellant and other parties, which it expected Hurst to sign. (He did not.) The court found that appellant's payment was for the full amount, and that therefore the release did not render the check to be anything other than full payment. Thus, the court held that the trial court erred by denying appellant's motion for a directed verdict. The court also found that the full payment precluded interest and penalties at trial. Lastly, the court found that Hurst's bad faith claims can succeed only for injuries that are independent from the loss of benefits, and here, the dispute was entirely about the amount of benefits – which Hurst received in the full amount. The court reversed the trial court's judgment and rendered a take-nothing judgment on Hurst's claims. National Security v. Hurst, Houston 14th Court of Appeals, Case No. 14-15-00714-CV, 5/23/17.

14-15-00714-CV
JOHN DONOVAN, JUSTICE

Court of Appeals of Texas, Fourteenth

In Re Amy McPeak, 14-17-00104-CV (TexApp Dist 04/13/2017)

Relator Amy McPeak separated from her husband, James McPeak, and moved with their children from Brazoria County to Thorndale, outside of Austin. In subsequent divorce proceedings, the trial court signed a temporary order requiring relator to move the children back to Brazoria County. She moved to set aside the order, but at the hearing the judge stopped the proceedings because relator failed to file an affidavit, as required by Tex. Fam. Code §156.102. The trial court denied relator's motion to set aside and another motion to confer with the oldest child, who was 13, and she sought mandamus relief. The court found that the trial court abused its discretion by applying the wrong Family Code provision. The court found that §156.012, which requires the affidavit, applies only to final orders, whereas temporary orders are governed by §105.001, which requires no affidavit. The court reasoned that the rules for temporary orders are intentionally looser to allow courts more discretion in modifying such orders, whereas the rules for final orders are more stringent to inhibit re-litigation of custody disputes. The provision for final orders also imposes a higher standard of proof. The court held the trial court prejudiced relator by imposing a code provision with a higher standard of proof than required and by stopping the hearing and preventing her from completing her case. On her motion to confer, the court found that Fam. Code §153.009(a) requires a court to interview a child 12 or older in chambers. The court conditionally granted the writ of mandamus and directed the trial court to vacate its orders denying relator's motions, hold another hearing on the motions, and confer with the oldest child. In Re Amy McPeak, Houston 14th Court of Appeals, Case No. 14-17-00104-CV, 4/13/17.

14-17-00104-CV
J. BRETT BUSBY, JUSTICE

Court of Appeals of Texas, Fourteenth

University of Texas v. Joplin, 14-16-00538-CV (TexApp Dist 05/18/2017)

Appellees filed a healthcare liability suit against two doctors in connection with surgery performed on appellee-husband in August 2013 alleging vicarious liability negligence claims against appellant-hospital based on the doctor's conduct. Appellees filed two exhibits with their original petition: 1) an expert report signed by a doctor, and 2) the doctor's curriculum vitae. Appellees failed to upload these exhibits when they filed their first amended petition substituting appellant-hospital as a defendant and failed to serve the exhibits on appellant. Appellant subsequently moved to dismiss for failure to serve an expert report and CV pursuant to Tex. Civ. Prac & Rem. Code §74.351 arguing that dismissal was mandatory. In their response, appellees argued that their mistake in inadvertently not uploading, attaching, and serving the expert report and CV with their first amended petition should not result in dismissal and contended they fulfilled the statutory purpose because the doctor forwarded a copy of the original petition with the attachments. The trial court denied dismissal and appellants timely appealed. On appeal, the court reversed finding the trial court abused its discretion by denying dismissal for failure to serve an expert report and CV. The court found §74.351 mandatorily required dismissal for such failure with no exception for accident or mistake; the plain language of the statute did not include any exception for failed attempts to serve or mistakes concerning service of the documents. Finally, the court noted that service on a doctor employee defendant under §74.351 did not satisfy the statutory requirement with regard to service of the expert report and CV on the doctor's government employer as a separate defendant. The Univ. of Texas Health Science Ctr. at Houston v. Joplin, Houston 14th Court of Appeals, Case No.: 14-16-00538-CV, 05/18/2017

14-16-00538-CV
MARC W. BROWN, JUSTICE

Court of Appeals of Texas, Ninth District

OCI Beaumont v. Barajas, 09-16-00406-CV (TexApp Dist 05/18/2017)

An employee of appellant OCI Beaumont struck and injured Yazmin Barajas in a parking lot before his shift at work. Appellant did not own or operate the lot, but had arranged with the owner to allow its employees to park there. Barajas sued the employee, Ikechukwu Obodo, and sued appellant on a vicarious liability theory. Appellant moved for summary judgment on grounds that the Obodo was not in the course and scope of his employment because he was commuting to work when the incident occurred. The trial court accepted Barajas' request to apply the "access doctrine" from worker's compensation law, in which an area closely related to the employer's premises are treated as part of the premises, and denied appellant's motion. On appeal, the court adopted the logic of a non-binding precedent, Harris v. Mundy Contract Maint. (Case No. 09-96-045 CV, Tex. App.—Beaumont), and found that the access doctrine does not apply in tort cases. The court reasoned that the access doctrine is part of a statutory scheme for worker's compensation that is "liberally construed to allow the employee to receive worker's compensation benefits" and that the doctrine was not intended for other areas of law. The court found that all cases Barajas relied on except one were worker's compensation cases, and in the lone exception, the court held the access doctrine did not apply and decided the case on other grounds. The court also found that "Texas courts have consistently held that the employer is not vicariously liable for the torts committed by employees when their connection to their job shows they were merely commuting to work," and that appellant had no control over the manner that Obodo drove his truck. The court reversed and remanded the trial court's opinion. OCI Beaumont v. Barajas, Beaumont Court of Appeals, Case No. 09-16-00406-CV, 5/18/17.

09-16-00406-CV
HOLLIS HORTON JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Cluff, 16-20116 (5th Cir. 05/18/2017)

After the government advised Cluff of its intent to charge him with conspiracy to possess with intent to distribute cocaine and aiding and abetting bulk cash smuggling, Cluff agreed to work as a confidential informant. He apparently believed that this arrangement meant he would not be prosecuted. The government had a different interpretation and, after Cluff stopped working as an informant, indicted him. After Cluff's motion to dismiss the indictment was denied by the district court, he entered into a plea agreement in which the government agreed to a reduced sentence if Cluff accepted responsibility. At his allocution hearing, however, Cluff accused an FBI agent of breaking his promise not to prosecute Cluff. In response, the government withdrew the downward departure, arguing that Cluff's argument evidenced a lack of responsibility, and instead requested an enhancement, for obstruction of justice. The district court sentenced Cluff without giving him the benefit of the downward departure. Cluff appealed, arguing that the government breached the plea agreement. The court held that the government could withdraw the downward departure for acceptance of responsibility and request an enhancement for obstruction of justice without breaching the plea agreement because of Cluff's claim that the government had broken a promise, which the district court did not credit. The court also held that the record did not support Cluff's argument that the government was acting vindictively to punish Cluff. The court accordingly affirmed the district court. U.S. v. Cluff, 5th Circuit, No. 16-20116, 5/18/17

16-20116
JUNELL, DISTRICT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Enrique-Ascencio, 16-10274 (5th Cir. 05/19/2017)

Enrique-Ascencio pled guilty to reentering the country after a prior removal. The probation officer who prepared his presentence report recommended an increase in his base level based on a 2006 California felony conviction, for which Enrique-Ascencio was initially sentenced to 120 days of work release, followed by 36 months of probation, but which was increased to 365 days in county jail after Enrique-Ascencio violated the terms of his probation. Enrique-Ascencio objected to the enhancement, arguing that it required a sentence of greater than 13 months and that his sentence of 120 days of work release did not qualify. After the district court overruled his objection and imposed the sentence recommended in the presentence report, Enrique-Ascencio appealed. The court affirmed. It held that, while it had not previously decided if California's work-release program counted towards the period of incarceration, California state and federal decisions supported this conclusion. The court noted that, although Enrique-Ascencio served his 120 day sentence through work release, the original sentence was for 120 days in the county jail, so that the decision to allow him to serve this term through work release was irrelevant. The court also rejected Enrique-Ascencio's argument that he should have benefitted from a post-sentencing amendment to the Sentencing Guidelines, which would have resulted in a lesser sentence. It reasoned that, under its prior cases, it is not plain error for a district court to fail to consider a non-retroactive post-sentencing amendment to the Guidelines, even if it might have affected the sentence imposed by the district court. U.S. v. Enrique-Ascencio, 5th Circuit, No. 16-10274, 5/19/17

16-10274
JAMES E. GRAVES, JR., CIRCUIT JUDGE

Supreme Court of Texas

Pinto v. Sheldon, 16-0007 (TexApp Dist 05/19/2017)

Two minority shareholders alleged that IDEV officers and directors took steps intended to dilute their shares in order to deprive them of a significant payout in connection with IDEV's impending acquisition by another company. The defendants moved to dismiss the suit, arguing that a forum-selection clause in the shareholders' agreement, in which the parties agreed to resolve "any dispute arising out of this agreement" in Delaware, controlled. The trial court agreed and dismissed the suit. A divided court of appeals reversed, holding that the forum-selection clause was inapplicable because the suit did not "arise out" of the shareholders agreement, but was instead based upon statutory and common law. After an evenly divided en banc panel denied reconsideration, the defendants appealed. The court first held that forum-selection clauses should be given a broad interpretation that does not depend on the causes of action in the complaint, but instead looks at the underlying facts. Examining the operative complaint, the court held that, despite the fact the complaint omitted a claim for breach of contract, the dispute was based upon the shareholders agreement, which was central to the dispute. The omission of a breach of contract claim, the court held, was insufficient to avoid the forum-selection clause. The court also held that one of the minority shareholder plaintiffs was bound by the Delaware forum-selection clause, even though he did not sign the specific shareholders' agreement containing the operative language, because he signed a prior agreement that was later amended. The court held, however, that two of the IDEV officer defendants could not invoke the forum-selection clause because they were not signatories to the shareholders' agreement, and the agreement specifically stated that it did not extend to non-signatories. Pinto Technology Ventures, L.P., et al. v. Sheldon, et al., Supreme Court, No. 16-0007, 5/19/17

16-0007
EVA M. GUZMAN, JUSTICE

Supreme Court of Texas

Lightning v. Anadarko, 15-0910 (TexApp Dist 05/19/2017)

Anadarko entered into an oil and gas lease that restricted its use of the surface estate and required it to drill from off-site locations. Anadarko decided to locate its wells on adjacent parcels, and drill horizontally. It entered into an agreement with Briscoe Ranch, owner of an adjacent surface estate, to drill from its surface – vertically and then horizontally – into the estate. Lightning, which owned the mineral rights under Briscoe Ranch, sought to enjoin Anadarko's drilling activities. The trial court and court of appeals found for Anadarko. The court affirmed. It agreed with Lightning that Anadarko's drilling would displace and extract minerals belonging to Lightning. It held, however, that the removal of miniscule amount of minerals was insufficient to support a claim for trespass. The court also rejected Lightning's arguments that its mineral estate rights were being impaired by the court's decision, reasoning that Lightning still retained the right to use as much of the surface as was reasonably necessary to produce its minerals. The court finally held that Lightning's tortious interference with contract claim failed because Anadarko was exercising the rights afforded to it by Briscoe Ranch, and was thus not acting tortiously. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, Supreme Court, No. 15-0910, 5/19/17

15-0910
PHIL JOHNSON, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Torres, 16-50320 (5th Cir. 05/18/2017)

Appellant appealed the denial of a motion for reduction of his sentence stemming from his convictions of conspiracy to possess with intent to distribute marijuana, to import marijuana, and to launder money instruments. He was sentenced under the 2007 version of the United States Sentencing Guidelines §§3D1.2(c) and 2S1.1(a)(1). Faced with those guidelines, the court sentenced appellant to 262 months for each drug conviction and 240 months for money-laundering, with the sentences to run concurrently. In May 2015, appellant and the government filed an "Agreed Motion for a Sentence Reduction" under 18 U.S.C. §3582(c)(2) which permitted a reduction when guidelines have been subsequently lowered by the Sentencing Commission. The district court agreed, at least as regarded drug-trafficking, but was skeptical it had the power to reduce the sentence for money-laundering based on Amendment 782, noting such offense "[was] really not up for consideration. On appeal, the court reversed the money-laundering offense level was entirely dependent on the drug-trafficking level. As all parties agreed that Amendment 782 permitted a reduction in sentencing levels, the district court erred when it believed its lacked authority to reduce the money-laundering sentence. The court noted that if a reduction was appropriate for the drug-trafficking offense levels, then it was appropriate for money-laundering as well. Because such error substantially affected appellant's rights and seriously affected the fairness, integrity or public reputation of judication proceedings, the court reversed the decision of the district court. U.S. v. Roberto Torres, Fifth Circuit, Case No.: 16-50320, 05/18/2017

16-50320
JERRY E. SMITH, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

In Re Martin, 08-16-00296-CR (TexApp Dist 05/10/2017)

Relator Martin Borunda plead guilty to speeding and appealed. The county court granted the state's motion to dismiss on grounds the appeal was not timely filed and relator sought mandamus relief, which the district court and appeals court dismissed for lack of jurisdiction. The appeals court found mandamus relief is not available in criminal cases. Relator then sought mandamus relief in the appeals court challenging the district court's refusal to hear his original petition on its merits. The appeals court first found that its dismissal of his appeal was erroneous because the Texas Supreme Court held in Hogan v. Turland (428 S.W.2d 316) that mandamus relief is available in a criminal case. Thus, a relator normally would not have mandamus relief as a remedy in this situation because he has another remedy available, namely an appeal – except that in this case, the appeals court foreclosed that remedy with its erroneous denial. The court therefore allowed relator's second mandamus petition to be heard. The court found that case law is inconsistent as to whether a district court has jurisdiction to issue writs of mandamus to county courts or other lower courts. However, it also found that in criminal matters, district courts have general mandamus jurisdiction over lower courts under Thompson v. Velasquez (155 S.W.3d 551). The court granted conditional mandamus relief and directed the district court to vacate its order dismissing for lack of jurisdiction and hear relator's original mandamus petition on its merits. In Re Martin, El Paso Court of Appeals, Case No. 08-16-00296-CR, 5/10/17.

08-16-00296-CR
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, First District

Rawlins v. State of Texas, 01-16-00435-CR (TexApp Dist 05/18/2017)

A jury convicted appellant of first-degree felony offense of murder and, after finding the allegations in an enhancement paragraph true, assessed his punishment at thirty-eight years' confinement. Prior to his trial, appellant moved in limine to exclude evidence of any gang affiliation; the trial court permitted the introduction so long as appellee could "link" appellant to a gang. In his sole issue, appellant contended the trial court erroneously admitted evidence that he and other witnesses were affiliated with street gangs arguing appellee failed to prove that appellant and the victim were in rival gangs. The court affirmed holding appellant failed to preserve for appellate review his complaint concerning the evidence of his own gang affiliation, as well as that of other witnesses. Here, in his motion in limine, appellant objected to the introduction of evidence of his gang affiliation unless appellee could demonstrate that it was relevant to a material issue in the case. The trial court granted appellant a running objection so he would not be required to object before the jury. However, even if appellant was correct in his assertion, he failed to re-urge his relevancy objection at the close of appellee's case, and he did not move to strike the evidence or request that the trial court instruct the jury to disregard such alleged affiliation. As a result, appellant failed to preserve for appellate review his complaint about the trial court's conditional admission of evidence of his gang affiliation, and the court overruled appellant's sole issue. Jonathan Rawlins v. The State of Texas, Houston 1st Court of Appeals, Case No.: 01-16-00435-CR, 05/18/2017

01-16-00435-CR
EVELYN V. KEYES, JUSTICE

United States Court of Appeals, Fourth Circuit

Texas Outfitters v. Nicholson, 04-16-00392-CV (4th COA. 05/17/2017)

Appellees, owners of a 50% mineral interests on a 1,082-acre track, sought concurrence with appellant to lease the parties' interests following appellant's purchase of the surface rights. Two separate offers for the lease were remitted and several meetings between the parties ensued. After the parties were unable to reach a settlement agreement on the lease, appellees filed the underlying action alleging appellant breached its duty of utmost good faith and fair dealing by refusing lease. Following a bench trial, the trial court awarded appellee damages and made findings of fact and conclusions of law finding appellant breached it duty by refusing to lease their mineral interest. In addition, the trial court made several specific fact-findings regarding the factual background of the case. On appeal, the court affirmed concluding the trial court, as the factfinder, made reasonable credibility determinations based on conflicting evidence and did not err in awarding damages to appellees based on its findings. The court noted the trial court correctly stated that a party's refusal to lease may not motivated by self-interest or arbitrary. Here, the trial court appeared to have focused on appellant's breach evidenced by the fact that appellee's interest in the mineral estate was greater than that held by appellant, the mineral co-tenants had already entered the lease, and appellant eventually sold the property. Taken together, the court found the trial court's findings supported an award for damages for breach of the executive duty for refusing to permit any mineral lease. As appellant's refusal to lease was arbitrary or motivated by self-interest, the court affirmed the damages award determined by the trial court. Texas Outfitters Ltd., LLC v. Nicholson, San Antonio Court of Appeals, Case No.: 04-16-00392-CV, 05/17/2017

04-16-00392-CV
LUZ ELENA D. CHAPA, JUSTICE

Court of Appeals of Texas, Eighth District

Flores v. State of Texas, 08-16-00025-CR (TexApp Dist 05/18/2017)

Appellant Eric Flores was convicted and sentenced to six years for burglary. Security footage from the store showed him entering a private office in a store where the owner's husband had left $1,500 in cash unattended for less than a minute. The money was gone after appellant walked out. Appellant challenged his conviction on several issues, one of which was that he was denied the right to a speedy trial. Applying a four-part test from Barker v. Wingo (407 U.S. 514), the court found that the five-year gap from arrest to trial "weighs heavily against the state" but also found appellant was almost entirely responsible for the delay. His actions caused two attorneys to withdraw, the court found, and a considerable part of the delay was due to numerous motions and two interlocutory appeals appellant filed. Furthermore, appellant never asserted his right to a speedy trial in any of his motions, and he was free on bond throughout the five-year period. The court also rejected appellant's argument that the delay prejudiced his case because witnesses' memories would be faded, preventing adequate cross-examination. The court found nothing in the record indicated witnesses' memories were lacking. In another issue, appellant argued the trial court failed to disqualify jurors who expressed a bias against him because he has tattoos. The court found that the record showed the trial court struck jurors who expressed a bias against tattoos during voir dire, and that two other sitting jurors rebutted appellant's claims that they told him outside court they would find him guilty. In another issue, appellant argued the store owner, her husband, and police lacked the personal knowledge to testify because they did not see him take the money. The court overruled this issue because appellant did not object to their testimony on personal knowledge grounds during trial. In another issue, appellant argued the trial court improperly admitted the surveillance video, which appellant argued was irrelevant because it did not show him taking the money (he argued at trial that he was merely looking for the store's bathroom). The court found the video was highly relevant because it depicted who was in the store and where when the burglary happened. The court also overruled several other issues, including two regarding the trial court sustaining objections to appellant's presentation of his case and three regarding a motion for a new trial. The court affirmed the trial court's judgment. Eric Flores v. The State of Texas, El Paso Court of Appeals, Case No. 08-16-00025-CR, 5/18/17.

08-16-00025-CR
YVONNE T. RODRIGUEZ, JUSTICE

United States Court of Appeals, Fifth Circuit

Equal v. EmCare, 16-10598 (5th Cir. 05/19/2017)

The EEOC sued EmCare, a provider of physicians and physician management services to hospitals, alleging that it retaliated against three employees by terminating their employment after they complained about sexual harassment in the workplace. The jury found in favor of the EEOC and awarded monetary damages to the three employees. The district court denied EmCare's post-trial motion for judgment. Two of the employees then reached settlements with EmCare. EmCare appealed the judgment in favor of the third employee (Trahan), arguing that the evidence did not support the jury's verdict. The court affirmed. Because it was conceded that Trahan had engaged in protected activity (complaining about sexual comments) and had suffered an adverse employment action (his termination), the court focused on whether there was a causal link between the protected activity and termination. EmCare argued that the person who made the decision to terminate Trahan was unaware of his complaints, so that the causal link was missing. Upon reviewing the record, the court concluded that, because there was conflicting evidence on this issue, the jury was entitled to accept the EEOC's argument that the decisionmaker was aware of Trahan's complaints or that he was involved in the termination decision, which sufficed to establish the causal link. Equal Employment Opportunity Commission v. EmCare, Inc., 5th Circuit, No. 16-10598, 5/19/17

16-10598
EDWARD C. PRADO, CIRCUIT JUDGE

Court of Appeals of Texas, Second District

City of Westworth v. Texas Voices, 02-16-00106-CV (TexApp Dist 05/18/2017)

Appellant the City of Westworth Village passed an ordinance prohibiting registered sex offenders from taking a residence within 1,000 feet of "where children commonly gather." A non-profit named Texas Voices for Reason and Justice sued, claiming the ordinance violated the Texas Constitution. Appellant sought to dismiss for lack of subject matter jurisdiction, claiming TVRJ lacked standing, and the trial court denied the plea. An interlocutory appeal followed, with appellant claiming TVRJ did not have members and alternatively that any members of TVRJ would not have standing to sue individually. On the first argument, the court, finding no controlling Texas law, adopted rules from several federal cases in which an organization has members for questions of standing if it is a traditional membership organization or is the "functional equivalent" of one. The court found TVRJ is not a membership organization because its certificate of formation shows that it would have no members, and although its bylaws were later amended to allow members, the certificate controls under Tex. Bus. Orgs. Code §22.103(a). It also found that TVRJ was not the functional equivalent of a membership organization because its members failed an "indicia of membership" test from Hunt v. Washington State Apple Advertising Commission (432 U.S. 333). The court found TVRJ failed the test because its members lack voting power and therefore do not directly control TVRJ's actions, and furthermore because the members are not required to donate money to the group. The court rejected TVRJ's argument that it can meet the indicia of membership test merely because it provides a means to express collective views and protect collective interests. The court reversed the trial court's judgment and, because the trial court did not have subject matter jurisdiction, rendered judgment dismissing the case. City of Westworth Village v. Texas Voices for Reason and Justice, Fort Worth Court of Appeals, Case No. 02-16-00106-CV, 5/18/17.

02-16-00106-CV
LEE GABRIEL, JUSTICE

United States Court of Appeals, Fourth Circuit

De Los Santos v. Commission, 04-16-00065-CV (4th COA. 05/17/2017)

Appellant Hugo de los Santos represented Kelle Martinez and her daughter in a personal injury lawsuit in 2001. He paid their medical expenses out of an escrow account, and when the case settled in 2004, he put the proceeds – $85,000 for Martinez and $6,000 for her daughter – in an escrow account. Appellant represented Martinez and her husband Pete in other matters from 2001 to 2011, using the same account, until Martinez grew dissatisfied because she had not yet received the proceeds of the personal injury suit. Appellant then paid Martinez roughly $10,000 for the personal injury suit, with a report showing all funds received and expended on her family's behalf. Martinez later complained to the Commission for Lawyer Discipline, which sued appellant for violating the Rules of Professional Conduct. A jury found he failed to keep personal funds separate from client funds, and an appeal followed. The court found that appellant in 2007 charged the Martinezes a $15,000 retainer, with $5,000 to be paid in cash and the remainder to be paid in kind by work Pete Martinez was contracted to perform on the gate for appellant's law office. Appellant withdrew $10,000 from the escrow account that day, which he referred to as a "lien" in case Pete Martinez did not perform the work, which he didn't. The court also found that after appellant paid the Martinezes in 2011, he replenished the escrow account from his personal account. The court found the various transactions supported the jury's conclusion, and thus it overruled two issues in which appellant argued the evidence was insufficient. The court overruled several other issues, mostly on procedural grounds. The court affirmed the trial court's judgment. De Los Santos v. Commission on Lawyer Discipline, San Antonio Court of Appeals, Case No. 04-16-00065-CV, 5/17/17

04-16-00065-CV
IRENE RIOS, JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Brown v. Snider, 06-16-00078-CV (TexApp Dist 05/17/2017)

Appellant Moses Brown filed a trespass to try title action against Snider Industries, a sawmill that had been using a disputed 8-acre tract of land since 1978. Appellant claimed his grandparents acquired the property in 1923 and it passed to him and at least one other heir through the intestacy of his grandparents and their 10 children, including appellant's mother. Snider claimed it had perfected an adverse possession claim to title, the court granted summary judgment for Snider, and an appeal followed on two issues. In one issue, appellant argued Snider failed to prove it satisfied all elements of adverse possession. Among other claims, appellant argued Snider could not show exclusive use, based on a 1985 easement from his family to Loyd Oney to haul detritus across the tract to a dump Snider owned. The court found "it would require speculation and the stacking of one inference upon another" to conclude that Oney acted without Snider's permission. The court also rejected an argument that a 1977 offer to convey to property to another party interrupted Snider's limitations period, because Snider's use of the property began in 1978. The court rejected appellant's argument that Snider did not act under a claim of right, because Snider's predecessor in interest filed a correction deed in 1980. It rejected a statutory argument because the statute in question applies to tracts that are completely surrounded by another tract, whereas the 8-acre tract in dispute here was adjoined on only three side by land Snider owned. The court thus overruled this issue. In his other issue, appellant argued that the trial court failed to join all parties, namely the other heir. The court found that appellant failed to move to abate the proceedings, which would be the proper procedure, and that appellant cited no authority for his argument that the trial court had a duty to join other parties. The court overruled this issue as well. Having overruled both of appellant's issues, the court affirmed the trial court's judgment. Brown v. Snider, Texarkana Court of Appeals, Case No. 06-16-00078-CV, 5/17/17.

06-16-00078-CV
BAILEY C. MOSELEY, JUSTICE

Supreme Court of Texas

Town of Dish v. Atmos, 15-0613 (TexApp Dist 05/19/2017)

In 2011, the town of Dish and 18 of its residents sued energy companies who owned four natural-gas compressor stations and a metering station just outside the town for nuisance and trespass, because of noise and odor emanating from these facilities. The trial court granted the defendants' motions for summary judgment, holding that, because the noise and odors began as early as 2006, the suit was time barred. The court of appeals reversed. On appeal, the court reversed the court of appeals and reinstated the trial court's take nothing judgment. The court held that, because noise and odor complaints and threats of litigation against the energy companies began in 2006 and 2007, the claims accrued as of those dates, meaning that the 2011 suit was barred by the two-year statute of limitations. Although the plaintiffs submitted affidavits stating that they were "not aware" of the specific allegedly dangerous substances emanating from the facilities until 2010, the court held that these averments were insufficient to toll the statute of limitations where the record showed that the plaintiffs were aware of the odors and noise much earlier. Town of Dish, et al. v. Atmos Energy Corp., et al., Supreme Court, No. 15-0613, 5/19/17

15-0613
JEFFREY V. BROWN, JUSTICE

Court of Appeals of Texas, First District

In Re Kubosh, 01-16-00417-CV (TexApp Dist 05/16/2017)

Relators Paul Kubosh and Felix Kubosh operate a law firm (Paul Kubosh) and bail bond agency (Felix Kubosh). Several dozen plaintiffs had sued relators for barratry in three separate actions after they called the Kubosh bond agency and were transferred to the Kubosh law office without being asked. Relators countersued plaintiffs and competitor Andrew Sullo for fraud and conspiracy, alleging Sullo orchestrated the calls to catch relators violating recent changes in the barratry law, and they sought discovery of emails Sullo exchanged with a paralegal at another law firm. The emails discussed arrangements for two of the plaintiffs to make calls from the firm's office in their home county of Jefferson. The plaintiffs produced heavily redacted versions of the email, claiming they were privileged as work product in anticipation of litigation. The trial court agreed, and relators filed for mandamus relief. The court found that the two plaintiffs who made the calls in question, Michael Youngblood and Brandon Nash, were the parties who could invoke the privilege, and that they could not have exchanged the emails in anticipation of litigation because they had not yet made the calls and suffered the alleged injury of barratry when the emails were written. The court rejected Sullo's argument that the emails were in anticipation of litigation because 68 other plaintiffs had already filed suit. The court found that although the work product privilege is "of continuing duration" and can apply to subsequent suits filed by the same parties, Youngblood and Bash were not parties to the actions the other 68 plaintiffs filed. The court also found that even if the work product privilege had applied, it would be waived because here it was used in an offensive, rather than defensive, manner. The court also found that withholding the emails severely hampered relators' case, as they were relevant to relators' argument that the claims against them were improperly solicited. The court granted conditional mandamus relief and ordered the trial court to vacate its order denying production of the full emails. In Re Kubosh, Houston 1st Court of Appeals, Case No. 01-16-00417-CV, 5/16/17.

01-16-00417-CV
EVELYN V. KEYES, JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Ocampo-Vergara, 15-41235 (5th Cir. 05/19/2017)

A jury convicted appellants of conspiracy to possess with intent to distribute heroin. On appeal, appellants argued there was insufficient evidence for the conviction, that the district court erred by permitting the government to introduce "guilty-by-association" evidence, admitting certain testimony form the DEA agent and permitting the government to introduce certain summary charts. The court affirmed conviction holding appellants failed to renew the challenge of insufficient of evidence at the close of all evidence and therefore did not properly preserve that issue. Further, appellants failed to show the record was "devoid of evidence point to guilt" or was "so tenuous that a conviction [was] shocking." Secondly, although a defendant's guilt may not be proven by showing he associated with unsavory characters, in a conspiracy case such evidence was highly relevant. The court found all of the challenged evidence was relevant to showing that appellants were members of the conspiracy, and none of it was unfairly prejudicial. Moreover, appellants failed to meet their burden that the admitted testimony was clear error or that there was "a reasonable probability that his trial would have come out differently but for the illegitimate aspects of" the agent's testimony. Finally, the court affirmed admission of the challenged summary charts which showed a tie of phone numbers to particular conspirators; the court noted that even if the admission was in error, such error was harmless. Accordingly, the judgments of conviction were affirmed. U.S. v. Salvador Ocampo-Vergara, Fifth Circuit, Case No.: 15-41235, 05/19/2017

15-41235
JERRY E. SMITH, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Martinez-Rodriguez, 15-41688 (5th Cir. 05/12/2017)

Martinez-Rodriguez pled guilty to being unlawfully in the United States after deportation. In his presentence report, the probation officer took the position that, because Martinez-Rodriguez had been convicted for causing injury to a child under Texas Penal Code §22.04(a), that conviction qualified as a "crime of violence," supporting an enhancement to Martinez-Rodriguez's sentence. The district court agreed and enhanced Martinez-Rodriguez's sentence. The court reversed. It explained that, although it had previously construed §22.04(a) as a crime of violence, the Supreme Court had called that approach into question. Examining the statute with the benefit of the intervening Supreme Court guidance, the court held that the district court applied the incorrect standard. It vacated the sentence and remanded the case so that the district court could resentence Martinez-Rodriguez. U.S. v. Martinez-Rodriguez, 5th Circuit, No. 15-41688, 5/12/17

15-41688
KURT D. ENGELHARDT, DISTRICT JUDGE:

Court of Appeals of Texas, First District

Syed v. Masihuddin, 01-16-00071-CV (TexApp Dist 05/18/2017)

Following the parties second separation and filing of the divorce petition, appellant-husband testified he was not able to have any communication with his children and any attempts at mailing cards and money were returned to him marked as refused. At various times during the divorce trial, appellee-wife identified incidents of mistreatment by appellant, as well as issues regarding appellant's immigration status and employment history. The trial court entered a final divorce decree naming appellee as sole managing conservator and appellant as a possessory conservator. The trial court further found that a standard possession order was "unworkable and inappropriate [and] not in the best interest of the children." On appeal, appellant argued the trial court abused its discretion by restricting his possession of and access to the children more severely than was necessary to protect the children's best interest and such order was not supported by sufficient evidence in the record. The court affirmed holding the trial court made numerous findings of fact in support of the portion of its decree, including age of the children, history of the parties' relationship, and a pattern of neglect which the recorded supported. Based on these findings and evidence, the court concluded the trial court had sufficient information upon which to exercise its discretion and that it did not abuse its discretion in rendering the order. Because the court found the record supported a deviation from the standard possession order and appellant's lack of regular involvement with his children, the court affirmed the decision of the trial court. Syed v. Masihuddin, Houston 1st Court of Appeals, Case No.: 01-16-00071-CV, 05/18/2017

01-16-00071-CV
EVELYN V. KEYES, JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Nard v. State of Texas, 06-16-00124-CR (TexApp Dist 05/19/2017)

Thomas Nard appealed a conviction for aggravated assault with a deadly weapon and deadly conduct, which carried a 70-year prison sentence. The sentence was based on an enhancement for previous felony convictions of assault of a peace officer and sexual assault of a child. In one of his issues on appeal, appellant argued that the state did not prove at trial that he was the person convicted of those felonies. He based his argument on the fact that the state offered evidence of judgments of conviction and judgments denying parole that did not include identifying information such as fingerprints or social security numbers. However, the court found that a separate evidentiary exhibit, Cass County jail records from the 1980s, identified appellant through fingerprints and also contained notations of his crimes that matched the charges and dates of the felonies in the exhibits showing the judgments. The court held that the "totality of evidence" was sufficient for a jury to find the enhancement to be true. The court overruled appellant's other two issues as well. In one, appellant argued the trial court failed to give a jury instruction on the lesser included charge of assault, but the appeals court found that the language of the jury instruction included the name and elements of the assault charge and the verdict form had a checkbox for assault. In the second, he argued the appeals court could not review the case because the record did not include a master venire list, but the court overruled this issue because the clerk supplemented the record with the list. The court affirmed the trial court's judgment. Thomas Nard v. The State of Texas, Texarkana Court of Appeals, Case No. 06-16-00124-CR, 5/19/17.

06-16-00124-CR
RALPH K. BURGESS, JUSTICE

Court of Appeals of Texas, Fourteenth

E.L. v. Pabon, 14-15-00631-CV (TexApp Dist 05/18/2017)

Efrain Lopez founded appellant E.L. & Associates in 1999 to run a Mexican restaurant. He owned a 55 percent share in the company, with the other 45 percent owned by Jorge and Ruth Pabon, who ran the restaurant. When a 10-year lease ended in 2009, the Pabons declined to sign a new one in an attempt to buy out Lopez and his son, and the restaurant continued on a month-to-month lease while the parties unsuccessfully negotiated ownership terms. The landlord eventually terminated the lease in February 2011. In the next several weeks, both Pabons resigned their positions on appellant's board of directors, their son signed a lease for a restaurant at the same location, and the son began operating a Mexican restaurant. Appellant sued the Pabons for breach of fiduciary duty and related claims; the jury found for appellant but also found the company suffered no past or future lost profits and the court entered a take-nothing judgment. An appeal followed, based on a jury instruction to discount any damages appellant "could have avoided by the exercise of reasonable care." Appellant argued that its duty to mitigate began when the Pabons' son signed his lease, on the theory that mitigation of damages cannot happen before the damages happen. The court rejected this argument, finding that the key date is not when damages occur but when the incident that gives rise to damages occurs. The court also noted that damages are commonly delayed in a breach of fiduciary duty case. "It is not the damages themselves that trigger the duty to mitigate, but knowledge by the non-breaching party of the breach that ultimately causes the damages," the court stated. The court found that at several points in the month-to-month period of the restaurant's operation, the Lopezes had knowledge that the Pabons might be working in their own self-interest, and that they could have protected themselves and their company by signing a lease during the ownership dispute. The court therefore held the take-nothing judgment was not in error and affirmed the trial court's judgment. E.L. & Associates v. Pabon, Houston 14th Court of Appeals, Case No. 14-15-00631-CV, 5/18/17

14-15-00631-CV
WILLIAM J. BOYCE, JUSTICE

Supreme Court of Texas

Henry v. Cox, 15-0993 (TexApp Dist 05/19/2017)

A Galveston county judge (Henry) fired an administrator who was providing administrative support to the district court. One of the district court judges (Cox) then ordered Henry to reinstate the administrator. Henry ultimately agreed to reinstate the administrator, but at a much lower salary than suggested by Cox. Cox sued Henry and obtained an injunction requiring Henry to reinstate the administrator at the salary demanded by Cox. A divided court of appeals affirmed. On appeal, the court first held that the injunction should have been directed at the entire court, and not just Henry. Because the other judges were indispensable parties, the court held that Cox's failure to name them deprived the trial court of the authority to bind them. Turning to the salary issue, the court held that, under the Texas Code, county judges set the salary range, and the district judges' authority is limited to determining if that range is reasonable. The court explained that, if the district judges determined the range was unreasonable, they could not require a salary outside the range. As a consequence, the court held that the trial court lacked the authority to require Henry to reinstate the employee at a specific salary; at most, the trial court should have directed the county judges to reset the range. Henry v. Cox, Supreme Court, No. 15-0993, 5/19/17

15-0993
DON R. WILLETT, JUSTICE

Court of Appeals of Texas, First District

Ramirez v. Noble, 01-16-00155-CV (TexApp Dist 05/18/2017)

In this personal injury matter, appellant sued appellee for negligence after he allegedly sustained injuries while unloading a truck on appellee's property. After appellant failed to timely respond to appellee's requests for admissions, appellee moved for, and was granted, summary judgment. While the case was pending in the trial court, appellant passed away, and his wife and personal representative of his estate, took over prosecution of the suit. On appeal, appellant argued the trial court abused its discretion by overruling his motion to withdraw deemed admissions and erroneously rendered summary judgment based on the deemed admissions. Appellant argued that the deemed admissions were "factual in nature and not merit-preclusive," noting that it did not ask appellant to admit that he had no cause of action against it. The court reversed holding appellee's request that appellant admit it was not a proper defendant to the lawsuit was essentially asking him to admit the validity of his claim against appellee, which was not a proper use for requests for admissions. Appellee relied upon such deemed admissions as evidence that appellant had no claim against it and was entitled to summary judgment. As such, the court agreed with appellant that the deemed admission had a merits-preclusive effect, implicating due process concerns. Because the deemed admission had a merits-preclusive effect, the court held the burden to deny withdrawal shifted to appellee who failed to present evidence that appellant's failure to respond was flagrantly in bad faith or a callous disregard for the discovery rules. Accordingly, the court reversed the grant of summary judgment. Ramirez v. Noble Energy, Inc., Houston 1st Court of Appeals, Case No.: 01-16-00155-CV, 05/18/2017

01-16-00155-CV
EVELYN V. KEYES, JUSTICE