Recent Decisions

Court of Appeals of Texas, Second District

Tarrant Regional Water District v. Johnson, 02-16-00043-CV (TexApp Dist 12/30/2016)

Appellees' nineteen-year-old daughter tragically drowned in the Trinity River after apparently attempting to walk across the Trinity Park Dam No. 2. Appellees sued appellant which owned, operated and maintained the area under the Texas Tort Claims Act alleging that the conditions constituted either a premises defect, a special defect or both, as well as negligence and wrongful death. Appellants filed a plea to the jurisdiction alleging that its immunity had not been waived. In a single-issue interlocutory appeal, appellant contended that the trial court erred by denying its plea to the jurisdiction because the Texas Tort Claims Act did not waive its immunity from suit on the claims brought by appellees. The court reversed in part holding all evidence supported the conclusion that the condition of the kayak chute to which appellees complain – that its surface was smooth and slippery and that a dangerous, swift current ran through it – was an intentional result of the chute's design and not a malfunction of the chute or appellant's failure to maintain it. Accordingly, appellees' claims regarding such, as well as their claims regarding inadequate warning signs, were barred by §101.056. However, the court affirmed denial of the plea to the jurisdiction as to the dam's deepening scour hole and resulting boil effect was due to appellant's alleged failure to maintain that area and part of the river channel. Tarrant Regional Water District v. Johnson, Fort Worth Court of Appeals, Case No.: 02-16-00043, 12/30/2016

02-16-00043-CV
TERRIE LIVINGSTON CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Tooker v. Alief Independent School District, 14-15-00124-CV (TexApp Dist 01/04/2017)

Appellant started working for appellee school district in 1986 as an energy manager assistant in the district's maintenance department. Upon the retirement of the employee whose Class A license the district was using, appellant offered her license; appellant alleged appellee offered to pay her half of that which was being paid to the retired male employee for use of the license. Appellant lodged an internal claim for gender discrimination. Appellant further alleged discrimination after being placed on suspension for alleging creating a hostile work environment. Appellee filed a plea to the jurisdiction, which the trial court granted as to appellant's human rights act claims. The trial court later rendered a final judgment when it granted pleas to the jurisdiction and summary judgment motions in favor of appellee. On appeal, the court reversed as to a retaliation claim under the fair labor standards act and affirmed the remainder of the judgment. The court noted appellant failed to timely submit evidence raising a fact issue as to whether she was treated less favorably than similarly situated males regarding payment of the license use. Further, appellant failed to adequately brief her hostile-work environment and whistleblower act claims and therefore waived such appeal. However, the evidence raised a genuine fact issue as to each element of appellant's fair labor act retaliation claim based on the overtime-restriction memorandum, and therefore it was error to dismiss such claim. Tooker v. Alief Independent School District, Houston 14th Court of Appeals, Case No.: 14-15-00124-CV, 01/04/2017

14-15-00124-CV
KEM THOMPSON FROST CHIEF JUSTICE

Court of Appeals of Texas, Third District

Wets Travis County Public Utility Agency v. CCNG Development Co., L.P., 03-16-00521-CV (TexApp Dist 01/04/2017)

Appellee sued appellant seeking damages for alleged breaches of a utility agreement, along with related declaratory and injunctive relief. Appellants filed a general denial and plea to the jurisdiction asserting governmental immunity as to any claim for which its immunity was not waived. Two years later, a district judge signed a blanket order dismissing the case, along with approximately 500 others, for want of prosecution because those cases had been pending for a period of time in excess of the standards set forth under Rule 6. Appellee filed a timely motion for a new trial and motion to reinstate the case asserting that it had not received notice of the court's intent to dismiss the case. The trial court reinstated the case. On appeal, appellant argued that the trial court erred by reinstating the case because it lacked subject-matter jurisdiction over a moot case and had no power to reinstate the case over which it had no jurisdiction. The court dismissed the appeal for lack of subject matter jurisdiction holding the reinstatement order did not expressly address appellant's challenge to the trial court's jurisdiction on either immunity or mootness grounds. Because the trial court had yet to enter an order that granted or denied the appellant's jurisdictional challenge, the court lacked subject-matter jurisdiction over the interlocutory appeal. Tex. Civ. Prac. & Rem. Code §51.014(a)(8) Consequently, the court granted appellee's motion to dismiss the appeal. Wets Travis County Public Utility Agency v. CCNG Development Co., L.P., Austin Court of Appeals, Case No.: 03-16-00521-CV, 01/04/2017

03-16-00521-CV
SCOTT K. FIELD, JUSTICE

Court of Appeals of Texas, Twelfth

Richardson v. Mills, 12-15-00170-CV (TexApp Dist 12/30/2016)

This suit involved the construction of a 1906 instrument pertaining to the minerals under certain property and a 1908 release. Appellees first argued the 1906 instrument was an oil and gas lease, and not a mineral deed. Subsequently, they argued the 1908 instrument released the 1906 document. The trial court, concluding that the two instruments were ambiguous when construed together, determined that appellees owned an undivided one-half interest in the oil, gas, and other minerals described in the 1906 instrument, and that the heirs, devisees, and assigns of appellants take nothing. On four issues for appeal, the court reversed the trial court's judgment and rendered judgment that appellees take nothing, and that they had no interest in the oil, gas and other minerals in the real property. The court held that the 1906 instrument was an unambiguous mineral deed by which the appellants conveyed a one-half interest in the minerals under the subject property. As such, the trial court erred in concluding that the 1906 instrument was an executory contract. Finally, the court held that the 1908 release was unambiguous and that it did not have a connection to the 1906 mineral deed. Consequently, the trial court erred in determining otherwise and in considering extrinsic evidence to construe the instruments. Richardson v. Mills, Tyler Court of Appeals, Case No.: 12-15-00170-CV, 12/30/2016

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

Court of Appeals of Texas, Fourteenth

Gerpa v. Fazeli, 14-15-00608-CV (TexApp Dist 12/29/2016)

In 2006, certain Mexican travel agencies purchased tickets for the World Cup Soccer tournament from various ticket fulfillment websites, including Onlinetickets.com, operated by The Ticket Company. After the travel agencies did not receive many of the tickets or refunds, the appellants brought suit against corporate defendants, including The Ticket Company and appellee. The trial court originally rendered judgment in favor of appellant and awarded damages. Appellees filed a motion and supplemental motion to disregard jury findings and enter judgment notwithstanding the verdict, and a motion for new trial, motion to reconsider, and motion to modify. The trial court granted these motions, vacated its judgment and signed a new judgment that appellant take nothing on its claims. On appeal, appellant argued the trial court erred by disregarding all the jury's findings and by refusing to enter judgment on the verdict. The court affirmed holding there was not legally sufficient evidence illustrating how appellee's alleged fraudulent usage of The Ticket Company was primarily for his direct personal benefit. Further, appellant failed to establish a breach of contract claim as the evidence was not legally sufficient to sustain a damage award for any breach of the master sales agreement. Such lack of damages finding additionally rendered the fraudulent-transfer liability issue immaterial and any error harmless as well as dismissing any punitive damage claims. Accordingly, the trial court's final judgment was affirmed. Gerpa v. Fazeli, Houston 14th Court of Appeals, Case No.: 14-15-00608-CV, 12/29/2016

14-15-00608-CV
MARC W. BROWN JUSTICE

Court of Appeals of Texas, Fourteenth

Fernando Rafael Ferreira v. The State of Texas, 14-15-00767-CR (TexApp Dist 12/29/2016)

Appellant Fernando Rafael Ferreira was convicted of stabbing a man and sentenced to 35 years. He appealed on grounds that the trial court provided improper jury instructions and ineffective counsel. On one issue of improper jury instruction, appellant argued the court erred by including a limiting-offense jury instruction even though appellant did not request it (due to a strategy of "not calling attention to it"). The appeals court found the trial court was not prohibited from including such an instruction when a defendant does not request it, and furthermore that a limiting instruction is beneficial to a defendant. On a second issue of improper jury instruction, appellant argued the trial court erred by including a law of parties instruction over his objection in the jury charge on guilt-innocence. The court found he did not properly brief the issue by failing to identify how the charge was erroneous, and overruled the issue. Lastly, appellant argued ineffective assistance of counsel in regards to a witness comment. At trial, his counsel asked a Houston police investigator if appellant's getaway driver had an extensive criminal history, to which the officer replied "Yes, they do," in an apparent reference to appellant. Appellant argued that any competent attorney would have objected to this "unintended testimony," but the appeals court found that some reasonable attorneys would let it pass for strategic reasons, and therefore his silence at trial was not "so outrageous" as to rise to the level of ineffective counsel. The appeals court affirmed the trial court's judgment. Fernando Rafael Ferreira v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-15-00767-CR, 12/29/16.

14-15-00767-CR
SHARON MCCALLY JUSTICE

Supreme Court of Texas

Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, Ltd., 15-0225 (TexApp Dist 01/06/2017)

Following the issuance of a T-4 permit to obtain common carrier status, petitioner filed suit for an injunction allowing access to the land tracts so that it could complete its pipeline survey. While the suit was pending, petitioner took possession of respondent's property pursuant to §21.021(a) of the Texas Property Code. On cross-motions for summary judgment, the trial court found that petitioner was a common carrier with eminent domain authority pursuant to the Natural Resources Code. The court of appeals reversed summary judgment for petitioner concluding that new evidence showed reasonable minds could differ regarding whether petitioner would serve the public. The Supreme Court was tasked with deciding whether petitioner was a common carrier pursuant to the Texas Natural Resources Code §111.019(a) and the test previously set out in Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192, 202 (Tex. 2012). Because petitioner's summary judgment evidence conclusively established a reasonable probability that, at some point after construction, the carbon dioxide pipeline known as "the Green Line" would serve the public, as it does currently, the Supreme Court held petitioner was a common carrier as a matter of law. Accordingly, the Supreme Court reversed the judgment of the court of appeals and reinstated the trial court's judgment. Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, Ltd., Supreme Court, Case No.: 15-0225, 01/06/2017

15-0225
PAUL W. GREEN JUSTICE

Court of Appeals of Texas, Fourteenth

Katie Alice Ripstra v. The State of Texas, 14-15-00842-CR (TexApp Dist 12/29/2016)

Appellant Katie Alice Risptra was convicted and sentenced to 20 years for felony injury to a child. Her daughter showed a pattern of symptoms almost since birth including poor weight gain and vomiting in which she was unable to achieve proper nutrition despite ongoing treatment by doctors. The symptoms stopped only after a "therapeutic separation" from appellant, at which point the baby regained health within a week. The baby was diagnosed with medical child abuse on the theory that the mother was administering sodium to her, and appellant was arrested, tried, and convicted. On appeal, she challenged several of the trial court's evidentiary rulings and one regarding voir dire. On one issue, appellant argued the evidence supported findings that the baby suffered from dehydration rather than salt poisoning, was misdiagnosed as having medical child abuse, and got better in the separation only because she was "overmedicalized," all on the strength of her own expert witnesses' testimony. The appeals court ruled it was reasonable for the jury to believe the state's experts instead. On another issue, the appeals court rejected appellant's argument that her Facebook posts regarding the case should have been excluded as hearsay, finding that the posts were a party-opponent admission and therefore not hearsay. The appeals court also rejected appellant's arguments that her statements to the baby's guardian ad litem should be suppressed because warnings required by Miranda v. Arizona and Texas law. The appeals court found that the guardian did not qualify as an agent of the state for law-enforcement purposes, and that in any event, appellant made the statements voluntarily and outside of custodial interrogation. On the voir dire issue, appellant argued the court erred by allowing the state to question the panel on their knowledge of "Munchausen by proxy" disease because appellant had never been diagnosed with that disease, but the appeals court ruled the trial court was within its discretion because the state did not suggest to potential jurors that appellant had the disease. Having overruled all of appellant's arguments, the appeals court affirmed the trial court's judgment. Katie Alice Ripstra v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-15-00843-CR, 12/29/16.

14-15-00842-CR
MARTHA HILL JAMISON JUSTICE

United States Court of Appeals, Fifth Circuit

Adhikari v. Kellogg Brown & Root, 15-20225 (5th Cir. 01/03/2017

In 2004, an Iraqi insurgent group kidnapped and murdered twelve Nepali men as they traveled through Iraq to a U.S. military base to work for defendants. In 2008, the victims' families, and one employee whom was not captured, sued alleging defendants "willfully and purposefully formed an enterprise with the goal of procuring cheap labor and increasing profits," and thereby engaged in human trafficking. The district court, after nearly six years of motion practice and discovery, eventually dismissed all of plaintiffs' claims. The court affirmed holding, in light of the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), which held that that the Alien Tort Statute did not apply extraterritorially. The court also concluded that the district court correctly dismissed the Trafficking Victims Protection Reauthorization Act because (1) the act did not apply extraterritorially at the time of the alleged conduct, and (2) applying a 2008 amendment to the act that had the effect of permitting plaintiffs' extraterritorial claims would have an improper retroactive effect on defendants. Finally, the court affirmed holding the district court did not abuse its discretion in dismissing the common law claims by refusing to equitably toll plaintiffs' state law tort claims. Adhikari v. Kellogg Brown & Root, Fifth Circuit, Case No.: 15-20225, 01/03/2017

15-20225
EDWARD C. PRADO CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

United States of America v. Jose Casillas-Casillas, 16-50379 (5th Cir. 01/05/2017)

Appellant was stopped at the Bridge of Americas Port of Entry in El Paso when the border patrol noticed his facial features did not match the passport he was utilizing. Appellant was subsequently charged with and pled guilty to attempted illegal re-entry by a removed alien in violation of 8 U.S.C. §1326(a) and improper use of another's passport in violation of 18 U.S.C. §1544. The district court denied appellant's objection to the four-level sentencing enhancement and sentenced him to 15 months in prison. On appeal, the court affirmed the enhancement concluding the plain language of the sentencing guidelines did not distinguish between passport cards and "regular passports." In addition, the Code of Federal Regulations unequivocally stated that a passport card was a U.S. passport. Because a passport card is a U.S. passport within the meaning of §2L2.2(b)(3)(A), the district court did not err in granting a four-level enhancement. Further, the court held that the statute was not ambiguous and clearly included passport cards; as such, the "rule of lenity" was inapplicable. Accordingly, the district court's sentence was affirmed. United States of America v. Jose Casillas-Casillas, Fifth Circuit, Case No.: 16-50379, 01/05/2017

16-50379
JAMES E. GRAVES, JR., CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

In re OSG Ship Management, 14-16-00240-CV (TexApp Dist 12/29/2016)

Rasheed Lawal was injured while working on a ship operated by Relator OSG Ship Management. He was sent home and OSG began making maintenance and cure payments of $16 a day pursuant to a collective bargaining agreement with Lawal's union. OSG also offered Lawal a "Post Incident Payment Plan Agreement" in which he would receive $2,500 a month until he received $10,000 or the maximum cure payment, which Lawal signed. The payment plan agreement contained a clause that all litigation would be heard in a federal court in Hillsborough County, Fla.; however, Lawal later sued OSG in Texas under the Jones Act, which provides remedies for maritime workers to recover for personal injuries suffered at sea. OSG filed a motion to dismiss based on the payment plan, and Lawal argued 1) it contained a unenforceable venue-selection clause, 2) it was void for lack of consideration because OSG had a pre-existing duty to make maintenance and cure payments, 3) enforcement of the payment plan would be unreasonable, and 4) the plan was not enforceable because he did not have a union representative when he signed it. The trial court denied Relator's motion to dismiss, and Relator filed for mandamus relief. The appeals court found that the choice of court to hear litigation was a forum-selection clause, rather than a venue-selection clause, and therefore Texas statute defining mandatory venues for Jones Act litigation did not apply. It also found that the monthly payments exceeded OSG's pre-existing duty, with the excess serving as consideration. The court rejected Lawal's argument that a forum-selection clause is an unreasonable affront to public policy because he it amounted to signing a release of legal rights without legal representation; the court found that the payment plan agreement was not a release. Lastly, it found that the CBA did not require union representation for Lawal because the payment plan agreement did not change or diminish any obligations of the CBA. The appeals court issued a conditional writ of mandamus and directed the trial court to vacate its order denying the motion to release and dismiss the case. In re OSG Ship Management, Houston 14th Court of Appeals, Case No. 14-16-00240-CV, 12/29/16.

14-16-00240-CV
J. BRETT BUSBY JUSTICE

Court of Appeals of Texas, Fourteenth

Gusma Properties, L.P. v. The Travelers Lloyds Insurance Co., 14-15-00892-CV (TexApp Dist 12/29/2016)

Appellant Gusma Properties owned properties that sustained $1.85 million of hurricane damage. Travelers tendered a check jointly payable to appellant and its attorney; the attorney negotiated the check and kept the money. Appellant sued the attorney, the banks involved in the transaction, and Travelers. After the banks settled for the full amount, a court entered summary judgment for Travelers on all counts, and appellant contested the ruling on only on count: Appellant continued to seek damages under the Prompt Payment provision of the Texas Insurance Code for the delay it incurred in payment. This count formed the basis of the appeal. Appellant argued Travelers failed to comply with the provision because it made the check payable jointly, rather than alternatively, to appellant and its attorney. The appeals court found that while Travelers is required to make payment to appellant, the Prompt Payment provision does not displace agency provisions and Travelers therefore constructively made payment to appellant when it tendered payment to its agent. As such, payment to the agent tolls prompt payment penalties. Furthermore, the court found that the principal bears the risk of loss by an agent, thus assigning the risk of loss to appellant. The appeals court affirmed the trial court's judgment dismissing the case. Gusma Properties, L.P. v. The Travelers Lloyds Insurance Co., Houston 14th Court of Appeals, Case No. 14-15-00892-CV, 12/29/16.

14-15-00892-CV
SHARON MCCALLY JUSTICE

United States Court of Appeals, Fourth Circuit

George Munoz Jr. v. The State of Texas, 04-15-00492-CR (4th COA. 01/04/2017)

Appellant George Munoz was convicted for of felony murder aggravated by the use of a deadly weapon hitting a car while fleeing police at high speed, killing a 7-year-old boy in the other car. The trial court convicted him, and sentenced him to life in prison. The underlying felony was evading arrest, and the deadly weapon was his car. Appellant filed for a new trial on grounds that the verdict was contrary to the evidence, but his motion was denied without a hearing and he appealed. Appellant first argued the trial court erred by declining his request to offer the jury the lesser included charge of criminally negligent homicide. Although that is not a lesser included offense of felony murder, because it requires a culpable mental state and felony murder does not, appellant argued that the state unwittingly transformed its charge from felony murder into intentional murder – for which criminally negligent homicide is a lesser included offense – through its wording of the indictment. The state used the phrase "knowingly or intentionally" in its indictment, although not required by statute, and appellant argued this usage required the state to prove that appellant knowingly or intentionally caused the boy's death. The appeals court found that the indictment could only be read to mean that appellant knowingly or intentionally engaged in the dangerous conduct that caused the boy's death, keeping the case within the parameters of felony murder. The court also rejected two other arguments based on the superfluous wording. Appellant then argued the trial court erred by failing to require jury unanimity on which of the several listed traffic offenses was the dangerous act giving rise to the felony murder count. The court found due process required jury unanimity only on the essential element of the offense – committing a dangerous act – not on alternate theories of the act itself. (Pizzo v. State/, 235 S.W.3d 711). Lastly, the court rejected appellant's argument that the evidence supported an inference that he was fleeing another driver rather than a police officer, based on video from a nearby fast-food restaurant. The appeals court thus overruled all of appellant's challenges and affirmed the trial court's judgment. George Munoz Jr. v. The State of Texas, San Antonio Court of Appeals, Case No. 04-15-00492-CR, 1/4/17.

04-15-00492-CR
REBECA C. MARTINEZ, JUSTICE

Court of Appeals of Texas, Second District

Compass Bank v. Jerry Durant, 02-15-00390-CV (TexApp Dist 01/05/2017)

Jerry Durant obtained a $6 million loan from appellant Compass Bank to open a car dealership. He asked for a fixed interest rate on a 15-year note with no prepayment penalty. Durant and appellant eventually agreed on a 15-year loan with a floating interest rate, with a separate rate-swap agreement to address Durant's concern about the interest rate. The loan note had no prepayment penalty, but the rate-swap agreement provided for payments if Durant repaid the loan before the agreement expired. When Durant repaid the entire loan three years later, appellant sought to impose a nearly $1 million fee under the rate-swap agreement. Durant sued for breach of contract and a declaratory judgment of non-liability, both parties filed for summary judgment, and the trial court granted Durant's motion. The appeals court found there was a valid fee because the loan note and rate swap agreement incorporated each other with unambiguous terms. As such, it held the trial court erred by granted summary judgment for Durant. However, it also rejected appellant's motion for summary judgment on the breach of contract claim because a material fact issue remained as to the amount of the penalty it could charge appellant under the contract, and it rejected appellant's motion for summary judgment on the declaratory judgment as contrary to the Texas Declaratory Judgments Act. The Appeals court reversed the trial court's ruling and remanded for further proceedings. Compass Bank v. Jerry Durant, Fort Worth Court of Appeals, Case No. 02-15-00390-CV, 1/5/17.

02-15-00390-CV
BONNIE SUDDERTH JUSTICE

Court of Appeals of Texas, Second District

Cordrecus Dunque Burton v. The State of Texas, 02-16-00067-CR (TexApp Dist 01/05/2017)

Appellant Cordrecus Dunque Burton was convicted of aggravated robbery with a deadly weapon and sentenced to 30 years. He was accused of slapping a woman on the rear end, punching her in the face, and holding her at gunpoint while searching her car, eventually taking her cellphone and purse but returning them after a short chase. He claimed he was looking for $1,202 stolen from him in a failed drug purchase and denied striking the woman. Appellant raised two issues on appeal: The trial court violated his right to a unanimous verdict by failing to instruct the jury that they must unanimously agree on which paragraph of the indictment they found him guilty, and the evidence was insufficient to support his conviction. On the unanimous verdict issue, the prosecution had submitted an indictment alleging in the first paragraph that appellant caused bodily injury while using or exhibiting a gun, and the second alleged that he threatened or placed the victim in fear of imminent death or bodily injury while using or exhibiting a gun. The jury charge properly instructed the jury to convict if they found evidence of either charge, in accordance with Texas Penal Code § 29.02(a) and § 29.03(a). The appeals court found that prosecutors may obtain "a general verdict where the alternate theories involve the commission of the 'same offense.' " (Rangel v. State, 199 S.W.3d 523). The court overruled appellant on this issue. On the evidence issue, appellant argued that prosecutors failed to meet their burden to show that he deprived the victim of her property because he gave back her cellphone and purse. However, the court found that only an intent to deprive is necessary to establish robbery, and a completed theft is not necessary. (Ex parte Denton, 299 S.W.3d 540; Texas Penal Code § 29.02(a)). "The gravamen of robbery is the assaultive conduct and not the theft," the court stated. Having thus overruled both of appellant's challenges, the appeals court affirmed the trial court's judgment. Cordrecus Dunque Burton v. The State of Texas, Fort Worth Court of Appeals, Case No. 02-16-00067-CR, 1/5/17.

02-16-00067-CR
BONNIE SUDDERTH JUSTICE

Court of Appeals of Texas, Fourteenth

Carmel Financial Corp., Inc, v. Julian Castro, 14-15-00478-CV (TexApp Dist 12/29/2016)

Appellant Carmel Financial Corporation sued Julian Castro in his capacity as Housing and Urban Development secretary for a declaratory judgment enforcing what it believed was a priority lien on a foreclosed property. Appellant had financed the sale and installation of a water treatment system that was affixed to the home with a purchase-money security interest, which was properly perfected. The homeowner later defaulted on the mortgage payments and payments to appellant; HUD eventually gained possession of the property and sold it, at which point appellant sued. Both parties filed motions for summary judgment and the trial court granted Castro's. Appellant argued on appeal that its security interest created a super-priority lien on not only the fixture but also the real property to which it was attached. It relied on Tex. Bus. & Com. Code § 9.334(d) and § 9.604(b), which provides in relevant part that "if a security agreement covers goods that are or become fixtures, a secured party may proceed … in accordance with the rights with respect to real property." However, the court found that for this provision to take effect, the fixture filing must describe the collateral that the creditor may claim (Crow-Southland Joint Venture No. 1 v. N. Fort Worth Bank, 838 S.W.2d 720), so that third parties have notice (Villa v. Alvarado State Bank, 611 S.W.2d 483) – and it found that appellant contracted only to create an interest in the treatment system, not the real property. "Neither section 9.334(d) nor section 9.604(b)(2) operates independently to create a security interest in real property that the underlying security agreement did not authorize. These provisions address mechanisms for pursuing the security interest that the creditor and debtor agreed to create," the court stated. The appeals court affirmed the trial court's judgment dismissing the case. Carmel Financial Corp., Inc, v. Julian Castro, Houston 14th Court of Appeals, Case No. 14-15-00478-CV, 12/29/16.

14-15-00478-CV
WILLIAM J. BOYCE JUSTICE

Supreme Court of Texas

Oncor Electric Delivery Company, LLC v. Public Utility Commission of Texas, 15-0005 (TexApp Dist 01/06/2017)

On January 1, 2002, respondents implemented a competitive retail market for electricity in the Electric Reliability Council of Texas. Each incumbent, vertically integrated electric utility within the market was required to "unbundle" its business activities into three separate units: a power generation company, a transmission and distribution utility ("TDU"), and a retail electric provider ("REP"). Of the three, only the TDUs continued to be regulated by the respondents. In this case, several parties to a TDU ratemaking proceeding sought judicial review of respondent's order. Only three issues remained to be determined by the Supreme Court. The Supreme Court held that PURA §36.351, which required electric utilities to discount charges for service provided to state college and university facilities did not apply to TDUs because they provided service to REPs' customers. Secondly, the former PURA §36.060(a), which required an electric utility's income taxes to be computed as though it had filed a consolidated return with a group of its affiliates eligible to do so under federal tax law, did not require a utility to adopt a corporate structure so as to be part of the group. Finally, the Supreme Court held the evidence established that franchise charges negotiated by the TDU with various municipalities were reasonable and necessary operating expenses under PURA §33.008. As such, the Supreme Court affirmed the judgment of the court of appeals in part. Oncor Electric Delivery Company, LLC v. Public Utility Commission of Texas, Supreme Court, Case No.: 15-0005, 01/06/2017

15-0005
PAUL W. GREEN JUSTICE

United States Court of Appeals, Fifth Circuit

United States v. Jose Palacios, Jr., 14-40279 (5th Cir. 12/27/2016)

Appellant, a licensed attorney, became involved in a drug trafficking conspiracy wherein he oversaw the organization's drug transportation activities, was involved in the collection of narcotics proceeds, and represented members of the organization in state legal proceedings to gain access to privileged information regarding law enforcement activity. Appellant pled guilty to possession with the intent to distribute 100 kilograms or more of marijuana. Appellant subsequently appealed his 144-month sentence asserting the district court committed reversible error by denying him the right of allocution before pronouncing his sentence. Appellant argued that although the district court allowed him the opportunity to speak with regard to acceptance of responsibility, the court did not allow him "the right to speak on any subject of his choosing prior to imposition of sentence." In agreement, the court vacated and remanded for resentencing holding that in order to satisfy Rule 12, the district court must communicate "unequivocally" that the defendant had a right to allocute. The court noted that although appellant and the district court engaged in discussion prior to the imposition of his sentence, the record did not show that appellant as given a specific and unequivocal opportunity to speak in mitigation of his sentence. The court held this error affected his substantial rights and therefore the matter was vacated and remanded for resentencing. United States v. Jose Palacios, Jr., Fifth Circuit, Case No.: 14-40279, 12/27/2019

14-40279
JENNIFER WALKER ELROD CIRCUIT JUDGE

United States Court of Appeals, Fourth Circuit

Westport Oil & Gas Company, L.P. v. Mecom, 04-15-00714-CV (4th COA. 12/14/2016)

This was an oil and gas lease construction case; its disposition turned on the relationship between the royalty and gas purchase agreement paragraphs. Appellees, the royalty owners, sued appellants alleging underpayment of royalties. The trial court construed the lease to determine the applicable royalty. It calculated the royalty owed based on the gas purchase agreement's formula for calculating the minimum sales price, rather than the royalty paragraph's express provision that the gas royalty owed was a percentage of the market value at the well. Having reviewed the lease and the applicable law, the court concluded the proper construction was that the royalty owed was a percentage of the market value at the well. The court stated that the lease was unambiguous, its royalty and gas purchase agreement paragraphs had independent purposes, and the paragraph's minimum gas sales price formula did not alter the gas royalty paragraph based on the market value of the well. Thus, the trial court erred when it denied appellant's motion for a directed verdict. Accordingly, the court reversed the portion of the trial court's judgment on the breach of contract claim for underpaid royalties, declaratory judgment actions and attorney's fees claims; rendered a take-nothing judgment for appellant against the appellees; and affirmed the remainder of the judgment. Westport Oil & Gas Company, L.P. v. Mecom, San Antonio Court of Appeals, Case No.: 04-15-00714-CV, 12/14/2016

04-15-00714-CV
Patricia O. Alvarez, Justice

United States Court of Appeals, Fifth Circuit

Delek Reining, Limited v. Occupational Safety and Health Review Commission, 15-60443 (5th Cir. 12/29/2016)

Petitioner purchased an oil refinery in Tyler, Texas from Crown Central. After the transfer of ownership, respondents conducted an inspection and issued a citation for violations of its process safety management rules, which governed an employer's responsibility to inspect, and to develop inspection and recording regimes for, machinery that handled large volumes of hazardous chemicals. The court concluded that the citations for Items 4 and 12, which related to the process hazard analysis and compliance audits, were barred by the six-month statute of limitations in 29 U.S.C. §658(c) and vacated the citations for those items. The court disagreed with applying a "continuing violations theory" as it would conflict with the basic purpose of a statutory limitations period. However, the court concluded that the regulations relevant to the citation for Item 8 for failure to inspect a piece of equipment was ambiguous and the secretary's interpretation was reasonable, it affirmed the citation for Item 8. The court concluded that respondents reasonably determined that the equipment was part of the overall "process" and was therefore covered by 29 C.F.R. §1910.119(b) given it served an important function to prevent the flow of hazardous chemicals or vapors. Delek Reining, Limited v. Occupational Safety and Health Review Commission, Fifth Circuit, Case No.: 15-60443, 12/29/2016

15-60443
JENNIFER WALKER ELROD CIRCUIT JUDGE

Court of Appeals of Texas, First District

Trimble v. Financial Freedom Senior Funding Corporation, 01-15-00851-CV (TexApp Dist 12/20/2016)

In their petition, the Hendersons, who subsequently assigned their rights to appellant, alleged they owned a home in League City, Texas. On or about October 25, 2004, they executed "a home equity conversion mortgage…and [a] security instrument…in the amount of $148,500." Appellee "attempt[ed] to foreclose" on the home equity conversion mortgage, but allegedly never sent a proper notice of default or acceleration. Further, the Hendersons argued appellee was barred from foreclosing on the property because it did not obtain an order to foreclose. The Henderson filed a Notice of Non-Suit but sought its withdrawal arguing they did not authorize their counsel to file the pleading and wanted to pursue their case; they then filed a motion to reinstate. In his sole issue, appellant argued that the trial court erred in refusing to reinstate the Hendersons' suit because the non-suit was filed by their former counsel without their knowledge or permission. The court reversed, holding the trial court retained jurisdiction as it had not previously signed an order granting the non-suit and the Hendersons provided reasonable grounds to reinstate their case. As the trial court erred in denying the motion to reinstate the case, the court sustained appellant's sole issue. Trimble v. Financial Freedom Senior Funding Corporation, Houston 1st Court of Appeals, Case No.: 01-15-00851-CV, 12/20/2016

01-15-00851-CV
TERRY JENNINGS JUSTICE

Court of Appeals of Texas, Fourteenth

Meyers v. JDC/Firethorne, Ltd., 14-15-00860-CV (TexApp Dist 12/22/2016)

In this accelerated interlocutory appeal, the court was asked to determine whether the developer of a subdivision sufficiently pled an ultra vires claim against a county commissioner related to the processing of two plat applications. Appellee, the developer, brought suit seeking a writ of mandamus and injunctive relief against appellants alleging that appellants acted without legal authority in directing or instructing the county engineer to hold or delay the submitted plat applications. Appellants filed a plea to the jurisdiction asserting that governmental immunity barred the suit. The trial court denied the plea. The court concluded appellee sufficiently pled an ultra vires claim such that the trial court had subject-matter jurisdiction. The court stated there was no express statutory or regulatory authority allowing appellant to halt or hold submission of a completed plat application. Rather, Tex. Gov't Code §232.0025 and §2.6 of the Regulations of Subdivisions state the county engineer had the responsibility to review and submit the applications to the commissioners court within sixty days. Further, the court held appellant, as county commissioner, had no more right to governmental immunity in directing the delay than the county engineer has for obeying the instruction. The trial court's order was affirmed. Meyers v. JDC/Firethorne, Ltd., Houston 14th Court of Appeals, Case No.: 14-15-00860-CV, 12/22/2016

14-15-00860-CV
TRACY CHRISTOPHER JUSTICE

United States Court of Appeals, Fourth Circuit

Terrence Mouton v. The State of Texas, 04-16-00070-CR (4th COA. 12/28/2016)

On February 3, 2016, appellant was found guilty of thirty-six counts of cruelty to nonlivestock animals. The following day, the jury assessed punishment at 365 days' confinement and a $4,000 fine on each count. The trial court ordered the sentences to run concurrently. In his sole issue on appeal, appellant contended the trial court erred in denying his motion for directed verdict based on appellee's failure to prove the animals in question where in his custody. The court affirmed holding a reasonable jury could have found that appellant was responsible for the health, safety, and welfare of the dogs on his property and that the dogs were subject to his care and control, regardless of whether he was the actual owner of each animal. The court noted that several witnesses testified that appellant lived at the house and appellant offered to the investigating officers that "he did care for the dogs." The court concluded a reasonable juror, based on the direct and circumstantial evidence, could have found that appellant was "aware of, but consciously disregarded, a substantial and unjustifiable risk" that he failed to provide property nutrition, water, or shelter for the dogs. As such, the trial court did not err in denying appellant's motion for a directed fired, and the court affirmed the judgment. Terrence Mouton v. The State of Texas, San Antonio Court of Appeals, Case No.: 04-16-00070-CR, 12/28/2016

04-16-00070-CR
PATRICIA O. ALVAREZ JUSTICE

Court of Appeals of Texas, First District

Trimble v. Federal National Mortgage Association, 01-15-00921-CV (TexApp Dist 12/20/2016)

Appellee purchased real property sold at a foreclosure sale after the original owners of the property, who subsequently assigned their rights to appellant, defaulted on their mortgage. After the owners refused to vacate the property, appellee filed a forcible detainer action to remove them. The trial court issued an order granting summary judgment for appellee and granting a writ of possession of the property. There are at least two rights at issue when a mortgagee defaults on his financial obligations: a right to title to the property and a right to possession. The justice court's determination "of possession in a forcible detainer action is a determination only of the right to immediate possession of the premises[.]" Appellee needed to demonstrate a superior right to immediate possession by establishing that: (1) it has a landlord-tenant relationship with the borrower; (3) it purchased the property at foreclosure; (3) it gave proper notice to the occupants to vacate; and (4) the occupants refused to vacate. Appellant challenged the first and third elements on appeal. Here, a deed of trust between the parties created a landlord-tenant relationship between the purchaser at the foreclosure and appellant. Further, appellee mailed notice to appellant via both certified mail with return receipt requested and first-class mail, both notices were properly address and there was no evidence that the first-class-mail envelope was not delivered to the premises. Accordingly, appellee satisfied that it had superior right to the property and the trial court's judgment was affirmed. Trimble v. Federal National Mortgage Association, Houston 1st Court of Appeals, Case No.: 01-15-00921-CV, 12/20/2016

01-15-00921-CV
HARVEY BROWN JUSTICE

Court of Appeals of Texas, First District

Kendall Bell v. The State of Texas, 01-15-00510-CR (TexApp Dist 12/15/2016)

When the appellant was 16, the state filed a petition in juvenile court alleging that he had committed aggravated robbery with a deadly weapon. The juvenile court transferred the case to district court for criminal proceedings because of seriousness of the offense. After pleading guilty the appellant violated terms of his supervision and was imprisoned. The appellant argued that the juvenile court abused its discretion by waiving jurisdiction without making adequate findings to supports its decision that the case required criminal proceedings. The court stated that the juvenile court only relied on the seriousness of the offense and did not look at the appellant's background. The court determined that the juvenile courts only case specific finding was that the offense was against another person and made no determinations regarding the appellant's conduct or the robbery. The court found that the juvenile court did not provide sufficient case specific findings to support its waiver of jurisdiction and vacated judgment of the district court, dismissed the criminal case and remanded to juvenile court. Kendall Bell v. The State of Texas, 1st Court of Appeals, Case No.:01-15-00510-CR, 12/15/2016

01-15-00510-CR
REBECA HUDDLE JUSTICE

Court of Appeals of Texas, Third District

Ex Parte Robert Burns Springfield IV, 03-14-00739-CV (TexApp Dist 12/21/2016)

Claimant Robert Burns Springsteen IV was sentenced to death in the infamous 1991 Austin yogurt shop murders of four teenage girls. He was released from prison after a subsequent U.S. Supreme Court decision regarding the confrontation clause, Crawford v. Washington (541 U.S. 36), which rendered inadmissible a written statement from his co-defendant implicating him in the murders. The claimant then sought compensation for his time in prison under a Texas statute that imposed a ministerial duty on comptroller to grant it under certain conditions, with appeal only to Texas Supreme Court. The relevant portion of the statute required that a prisoner be released "in accordance with a writ of habeas corpus" and was actually innocent of the crime. The comptroller denied his claim, concluding he had failed to establish these requirements. Instead of turning to the Supreme Court, claimant sued the comptroller in the U.S. Court for the Western District of Texas on due process grounds, but was dismissed for lack of jurisdiction, lack of standing, and sovereign immunity. Claimant then filed in state district court under the Uniform Declaratory Judgments Act. Although he filed a purported ex parte claim with no defendants, in an apparent attempt to get around sovereign immunity, the Travis county prosecutor filed an opposition to his claim. The district court granted the prosecutor's plea to the jurisdiction, and claimant appealed. The appeals court found that the UDJA does not "enlarge" a trial court's jurisdiction. Therefore, the trial court did not have jurisdiction to hear claimant's due-process argument, nor his argument that release from prison is effectively "in accordance with" a habeas corpus determination even though no such judgment was issued, nor to determine his actual innocence under the compensation statute. The court affirmed the trial court's dismissal. Ex Parte Robert Burns Springfield IV, Austin Court of Appeals, Case No. 03-14-00739-CV, 12/21/16.

03-14-00739-CV
BOB PEMBERTON, JUSTICE

United States Court of Appeals, Fourth Circuit

Candelaria Garcia v. State Farm Lloyds, 04-16-00209-CV (4th COA. 12/14/2016)

Appellant Candelaria Garcia sued State Farm and adjuster Sylvia Garza for breach of contract in a dispute about a claim for wind and hail damage. Garza's initial estimate was less than appellant's $1,760 deductible. After the suit was filed, the parties agreed to an appraisal that found damages of more than $6,000, and State Farm sent payment for the amount less appellant's deductible. Appellant amended her suit to set aside the appraisal award, State Farm moved for summary judgment, and the court granted it. On appeal, appellant argued State Farm's grounds for dismissal – that it paid appellant what she was due – did not address her original claim. The appeals court found that State Farm's motion, though addressed at appellant's amended petition, was broad enough to encompass the initial claim, and that it successfully established its defense that estoppel barred all of appellant's claims based on payment of the appraisal award. The court also held appellant did not present facts to support her initial breach of contract claim. The court brushed aside her argument that State Farm breached the contract by failing to cover certain items in its initial estimate that were later included in the appraisal, saying that argument "has been rejected by numerous courts." The court affirmed the trial court's judgment. Candelaria Garcia v. State Farm Lloyds, San Antonio Court of Appeals, Case No. 04-16-00209-CV, 12/14/16.

04-16-00209-CV
SANDEE BRYAN MARION, CHIEF JUSTICE

Court of Appeals of Texas, Second District

Christopher Hoskins v. Perry Fuchs, 02-15-00369-CV (TexApp Dist 12/22/2016)

Perry Fuchs, a University of Texas at Arlington professor, sued appellant Christopher Hoskins for defamation. The suit followed appellant's unsuccessful claim filed with UTA's Office of Equal Opportunity Services alleging Fuchs violated university policy by engaging in an inappropriate sexual relationship with a student – appellant's girlfriend – who worked for Fuchs, and then threatening appellant's career. At trial, Fuchs showed 1) the EOS' report that both Fuchs and the woman denied the affair, and 2) his own affidavit that he never had a sexual relationship with any student and never threatened appellant. The trial court denied appellant's motion for summary judgment under the Texas Citizens Participation Act, and he filed an interlocutory appeal. The appeals court found that Fuchs' evidence established a prima facie case that appellant's accusations were false and furthermore that they could injure his reputation, thereby meeting the standard to survive a summary judgment motion. The court also found Fuchs, although a government employee, is not a public figure because the case did not generate any interest and comment from the public. It then found he showed a prima facie case that appellant was negligent in making his comments, the standard required for private figures to prevail in a defamation case. Because Fuchs could establish a prima facie case for every element of his case, it dismissed as moot the first step of the summary judgment test: whether appellant could establish by a preponderance of evidence that Fuchs's claim was based on, related to, or filed in response to appellant's exercise of the right of free speech, the right to petition, and the right of association. The court affirmed the trial court's order denying the motion to dismiss. Christopher Hoskins v. Perry Fuchs, Fort Worth Court of Appeals, Case No. 02-15-00369-CV, 12/22/16.

02-15-00369-CV
ANNE GARDNER JUSTICE

United States Court of Appeals, Fourth Circuit

Ronald Rife v. Joseph Kerr, 04-16-00018-CV (4th COA. 12/21/2016)

The Rife and Kerr families disputed title to a one-half interest in mineral rights underneath 477 acres in Dimmit County. Both claimed to trace title according to a series of agreements between the family patriarchs starting in 1909. The Rifes sued the Kerrs and alleged trespass to try title claim, and the Kerrs raised adverse possession as an affirmative defense. The trial court denied the Rifes' motion for summary judgment and granted the Kerrs' no-evidence motion. The Rifes appealed, on the grounds that they showed evidence of superior title through a common source, and the Kerrs argued they showed evidence of adverse possession. The appeals court found the Rifes showed sufficient evidence of superior title to survive a summary judgment motion, mostly on the questions of 1) whether a 1916 agreement that made L.A. Kerr a trustee for unsold lots of land became a passive trust; 2) whether that agreement gave Kerr the authority to convey the land, as he did to his wife in 1932; and 3) whether A.H. Rife was a cotenant in the land. The appeals court held these were questions of fact. However, the court also found the Kerrs showed evidence of adverse possession by fencing in the land and using it to graze cattle, noting in that adverse possession does not require an owner to live on the land. The court therefore reversed the trial court's ruling of summary judgment for the Kerrs. However, because a question of fact also remained on the adverse possession issue, the court did not enter judgment for the Rifes and instead remanded the case for trial. Ronald Rife v. Joseph Kerr, San Antonio Court of Appeals, Case No. 04-16-00018-CV, 12/21/16.

04-16-00018-CV
LUZ ELENA D. CHAPA, JUSTICE

Court of Appeals of Texas, First District

Christopher Ernest Braughton v. State of Texas, 01-15-00393-CR (TexApp Dist 12/29/2016)

The appellant's father called him and stated that he was being followed by another vehicle and upon arriving home an altercation occurred. The appellant came out of his house and killed the man fighting with his father. A jury found the appellant guilty of murder. The appellant argued that the evidence was insufficient to show he had the mental state to commit murder. The court found that a rational jury could find that the appellant intentionally and knowingly caused the death of another. Furthermore, the appellant contended that the evidence was not sufficient to reject his claims of self-defense. The court determined that any reasonable trier of fact could have found the elements of murder and against the appellant on the self-defense issue. The court also denied the appellant's argument that the trial court should have allowed his request for instruction of lesser included offenses because the evidence did not support the instruction and no error occurred. The judgment of the trial court was affirmed. Christopher Ernest Braughton v. State of Texas, 1st Court of Appeals, Case No.: 01-15-00393-CR, 12/29/2016

01-15-00393-CR
HARVEY BROWN JUSTICE

United States Court of Appeals, Fourth Circuit

Joeris General Contractors, Ltd. v. Ronaldo Cumpian, 04-15-00481-CV (4th COA. 12/21/2016)

Ronaldo Cumpian's foot was crushed in a workplace accident in which a co-worker dropped a steel staircase frame off of forklift. Cumpian worked for Leal Welding, which was on the job site as an independent contractor of appellant Joeris General Contractors. In the operative incident, a co-worker with a history of safety violations attempted to affix the frame to the forklift with nylon straps and it fell off onto Cumpian's foot. Cumpian, who eventually had three toes amputated as a result of the incident, sued appellant for negligence only on a negligent-act theory, not on a premises-defect theory. The jury returned a verdict finding appellant and Leal negligent and apportioning 80 percent of the fault to appellant, and an appeal followed. The appeals court first noted that a general rule holds an employer has no duty to ensure an independent contractor safely performs its work, and that narrow exceptions apply. It found that under a negligent-act theory, the exceptions are based on the nexus between the general contractor's control of the independent contractors and the conditions or activity that give rise to the injury, rather than over the general contractor's overall control of operations. It also found that although appellant's personal were on site and overseeing certain aspects of Leal's work, no personnel were directly supervising Cumpian and his co-worker in the incident. It rejected Cumpian's argument that appellant owed a duty of care to require corrective measures due to the co-worker's history of violations, finding that this duty also relates directly to the incident that caused the injury, not its constructive knowledge that the co-worker was unsafe. The court reversed the trial court's judgment and rendered judgment in favor of appellant. Joeris General Contractors, Ltd. v. Ronaldo Cumpian, San Antonio Court of Appeals, Case No. 04-15-00481-CV, 12/21/16.

04-15-00481-CV
JASON PULLIAM, JUSTICE

Court of Appeals of Texas, First District

John Khoury v. Prentis B. Tomlinson, Jr., 01-16-00006-CV (TexApp Dist 12/22/2016)

Appellant John Khoury and PetroGulf CEO Prentis B. Tomlinson agreed that Tomlinson would repay appellant's $400,000 investment in the oil-trading company. Appellant memorialized the agreement in an email, to which Tomlinson replied "We are in agreement." The email set an interest rate and gave Tomlinson the option to pay monthly installments for four or five years. When Tomlinson neglected to make payments, appellant sued for breach of contract and other claims. A jury found for appellant, but the court granted Tomlinson's motion for judgment notwithstanding the verdict on grounds that the repayment contract violated the Statute of Frauds and that the contract was too indefinite to be enforceable. Khoury appealed. The appeals court found that the contract, for repayment of a third party (PetroGulf)'s debt, called for a signed writing. However, it found under the Texas Uniform Electronic Act that Tomlinson's email formed the contract and that his name in the "from" field functioned as a signature for Statute of Frauds purposes because it "authenticated the writing in the email to be Tomlinson's." It also rejected Tomlinson's argument that the contract was indefinite because it did not specify whether the loan would be repaid in four or five years. The court found that because Tomlinson held the option, "this was not a term requiring further negotiation." The court also upheld the jury's award of attorney's fees to appellant. The court reversed the trial court's ruling and rendered judgment conforming to the jury verdict. John Khoury v. Prentis B. Tomlinson, Jr., Houston 1st Court of Appeals, Case No. 01-16-00006-CV, 12/22/16.

01-16-00006-CV
LAURA CARTER HIGLEY JUSTICE

Court of Appeals of Texas, Fourteenth

Robby Jo Hovis v. The State of Texas, 14-15-00769-CR (TexApp Dist 12/22/2016)

Appellant Roby Jo Hovis was convicted of intoxication manslaughter for an accident wherein she drove through a red light, hitting another car and killing its driver. A police officer who spoke with her at the scene requested a blood sample when appellant was in the hospital several hours later, and it showed a blood-alcohol concentration of 0.099. After the jury found her guilty and the court sentenced her to 20 years in prison, Hovis appealed. Appellant argued the court was required to instruct the jury to disregard the blood evidence as illegal – which the court did not do – because she did not consent to the warrantless search. While it was undisputed that police did not have a warrant for the blood draw, the officer and a nurse testified at trial that appellant orally consented to the search, and the court found that the document she declined to sign was not a consent form but rather a warning form that a subject would sign to indicate refusal to consent. The court thus held that appellant consented to the blood draw, thus the warrantless search was constitutional, thus no jury instruction was required, and thus the trial court did not err. The court affirmed the trial court's ruling. Robby Jo Hovis v. The State of Texas, Houston 14th Court of Appeals, Case No. 14-15-00769-CR, 12/22/16.

14-15-00769-CR
KEM THOMPSON FROST CHIEF JUSTICE

Court of Appeals of Texas, First District

FP Stores, Inc. v. Tramontia US, Inc., 01-16-00031-CV (TexApp Dist 12/29/2016)

Tramontia US sued appellant FP Stores for breach of contract over a disputed security deposit from a sublease. Tramontia had subleased part of a commercial space from appellant. When the sublease and master lease ended, appellant vacated the premises and Tramontia signed a new lease with the master landlord and sought a return of its $50,000 security deposit. After a roughly two-month delay, appellant declined to return the deposit, in large part because the master landlord refused access to the premises to determine damages. Tramontia sued for its deposit and a $150,100 penalty, claiming bad faith. Appellant denied the claim and also argued impossibility. The trial court granted Tramontia's motion for summary judgment and FP appealed. The appeals court, borrowing from the parallel residential landlord statute, found a commercial landlord acts in bad faith when the landlord "acts in dishonest disregard of the tenant's rights or intends to deprive the tenant of a lawfully due refund." The court found appellant was honest, if inexperienced, in its dealings as a landlord, noting that appellant called and emailed Tramontia several times with status updates on the refund and eventually issued an offer of a partial refund after it inspected the premises. The court also found that appellant offered evidence that the master landlord wouldn't allow an inspection to support its impossibility claim. The court held that appellant presented more than the scintilla of evidence needed to defeat a summary judgment claim and reversed and remanded the trial court's judgment. FP Stores, Inc. v. Tramontia US, Inc., Houston 1st District Court of Appeals, Case No. 01-16-00031-CV, 12/29/16.

01-16-00031-CV
EVELYN V. KEYES JUSTICE

Court of Appeals of Texas, First District

Tanya L. McCabe Trust v. Ranger Energy, 01-15-00044-CV (TexApp Dist 12/22/2016)

The Tanya L. McCabe Trust appealed an order for summary judgment in Ranger Energy quiet title action, in which the trial court also issued judgment that the trust's royalty interests in two disputed leases were extinguished. Ranger had acquired the leases along with several others at a foreclosure sale. The two disputed leases were inadvertently omitted from a 2008 mortgage that included the other leases, and appellants argued that correction deed conveying the additional two leases to Ranger did not comply with statutory requirements. The Texas Supreme Court had ruled in 2009 that a correction deed cannot convey a separate parcel of land (Myrad Properties, Inc. v. LaSalle Bank National Ass'n, 300 S.W.3d 746); the Legislature then amended the Property Code to expressly allow such measures with proper authentication. (Tex. Prop. Code §§ 5.027–.031). Appellants argued that the addition of the two leases was a material change under the statute, requiring execution by each party to the original conveyance. Ranger argued the addition was a nonmaterial change, with no such requirement. The appeals court found the addition of the leases was a material change, and that the parties to the 2008 mortgage and their successors in interest did not execution the correction deed. The court also rejected Ranger's arguments that the earlier parties ratified the correction deed and that appellant must show it is a bona fide purchaser, as the statute does not make provisions for such elements. Thus, the court reversed the trial court's judgment, rendered partial summary judgment for appellant, and remanded the case for proceedings on attorney's fees and related issues. Tanya L. McCabe Trust v. Ranger Energy, Houston 1st District Court of Appeals, Case No. 01-15-00044-CV, 12/22/16.

01-15-00044-CV
MICHAEL MASSENGALE JUSTICE

United States Court of Appeals, Fourth Circuit

Cody Texas, L.P v. BPL Exploration, Ltd., 04-16-00078-CV (4th COA. 12/14/2016)

The appellee asserted breach of contract charges against the appellant after alleging violations of a right to purchase provision in the operating agreement. The trial court entered a final judgment in favor of the appellee. The appellant filed a request for amended findings of fact and conclusions of law. The clerk filed final judgment but failed to give notice to the parties. Appellant filed a motion for a new trial, notice of appeal and a petition for bill of review. Subsequently, both parties filed motions for summary judgment. The appellant's motion was denied and the appellees was granted. The appellant contended that the trial court erred by issuing summary judgment based upon a finding that they failed to prove grounds for appeal. The court determined that the appellee failed to satisfy the burden of proof for summary judgment and the appellants failure to receive notice of the trial courts final judgment was not due to any fault of its own. It was held that the trial court erred by granting appellees summary judgment and denying the appellants bill of review. The court reversed the trial court's decision, granted the appellant's bill of review and the case was remanded. Cody Texas, L.P v. BPL Exploration, Ltd., 4th Court of Appeals, Case No.:04-16-00078-CV, 12/14/2016

04-16-00078-CV
JASON PULLIAM, JUSTICE

Court of Appeals of Texas, Fourteenth

Andre Oneal Hunter v. The State of Texas, 14-15-00937-CR (TexApp Dist 12/22/2016)

Appellant was found guilty of assault of a family member as a second offender, enhanced by two prior felony convictions. The appellant pleaded not true to the enhancement paragraphs and the trial court found the allegations to be true. Appellant contended that the trial court erred in allowing three letters into evidence and that the evidence was insufficient to sentence him as a habitual offender. The court overruled appellants' evidentiary challenges because the evidence was legally insufficient to support a finding of true to the enhancement findings. However, the court found no evidence to show that appellant was a habitual offender and that the prior offenses were committed and became final in the proper sequence. No evidence was presented as to the sequence in which the prior offenses were committed. Subsequently, the court reversed the punishment portion of the trial court's judgment, and remanded to the trial court for a new punishment hearing. Andre Oneal Hunter v. The State of Texas, 14th Court of Appeals, Case No.:14-15-00937-CR, 12/22/2016

14-15-00937-CR
MARC W. BROWN JUSTICE

United States Court of Appeals, Fifth Circuit

WBCMT 2007 C33 Office 9720, L.L.C. v. NNN Realty Advisors, Incorporated, 15-20086 (5th Cir. 12/22/2016)

In June 2007, Wachovia Bank loaned $17.5 million to various borrowing entities formed by investors for the sole purpose of owning tenant-in-common interest in an office building complex. Upon default, and following appellee's Chapter 11 bankruptcy filing, appellant obtained 100% ownership and sued appellee for breach of its guaranty. Appellee persuaded the district court that its guaranty of financing was not activated despite a part of the property becoming an asset in its voluntary bankruptcy proceeding. Interpreting a complex set of financing documents, the district court held that the term "borrower" in the guaranty referred collectively to all of the numerous borrowing entities, not to each of them individually. On appeal, the court reversed and rendered judgment for appellant holding the district court erred in reasoning that the parties' use of the conjunctive "and" indicated that the term "borrower" referred to the full complement of entities. That reasoning placed more weight on the word "and" than it can bear and overlooked the unambiguous definition of "borrower". Further, the guaranty incorporated the security instrument's definition of "borrower," which also unambiguously included each borrowing entity individual as well as collectively. Accordingly, the court reversed and rendered judgment for appellant. WBCMT 2007 C33 Office 9720, L.L.C. v. NNN Realty Advisors, Incorporated, Fifth Circuit, Case No.: 15-20086, 12/22/2016

15-20086
EDITH H. JONES, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

County of El Paso, Self-Insured, v. Mary Orozco, 08-15-00079-CV (TexApp Dist 12/21/2016)

El Paso County Sheriff's Sgt. Ruben Orozco died in a car accident while driving a marked patrol car. He was in uniform but was returning home from an extra-duty assignment for the University of Texas at El Paso. His wife, Mary Orozco, filed a claim for death benefits from appellant El Paso County under the Texas Workers' Compensation Act . Mary argued, with the sheriff's support, that Ruben was acting within the course and scope of his employment, because he was in uniform in a marked car and could enforce traffic laws at any time, and because his position was on-call 24 hours a day. The county denied the claim in its role as self-insurer; the Texas Department of Insurance held at a hearing that he was in the course and scope of employment because he was "performing patrol functions"; and the department's Appeals Panel reversed the ruling on the grounds that Sheriff's Office policy did not specifically allow officers to drive a patrol car home. Mary filed suit and both she and the county filed motions for summary judgment, with the trial court granting Mary's. The county appealed. The appeals court laid out a the process to determine whether an employee is acting in the course and scope of employment while traveling to or from work: 1) determine whether the activity both originates in the employer's work and furthers the employer's affairs, in which case it is in the course and scope of employment; 2) check the two exclusions in Tex. Lab. Code § 401.011(2) to see if either applies; 3) check for exceptions to the exclusions. The appeals court found that police officers can work in furtherance of their employer's affairs while commuting – providing an example of pursuing a disabled vehicle – but that Sgt. Orozco was not. It therefore did not reach the second and third steps of the test. The court reversed the trial court's ruling and rendered judgment, granting the county's motion for summary judgment. County of El Paso, Self-Insured, v. Mary Orozco, El Paso Court of Appeals, No. 08-15-00079-CV, 12/21/16.

08-15-00079-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Orr v. Copeland, 16-50023 (5th Cir. 12/22/2016)

Appellant-police officer engaged in a physical interaction which ended when appellant fired three shots into the decedent's chest. Although appellant's dashcam and microphone continued to record as the events unfolded, the majority of the fight took place off-camera. Appellees, decedent's family, filed suit; appellant moved for summary judgment on qualified immunity grounds. The district court denied the motion, finding that the absence of video evidence and the third-party eyewitness accounts could not be credited until subject to cross examination. The question on appeal was whether the district court erred in holding that – in the absence of video evidence – eyewitness testimony should not be considered for summary judgment until subject to cross examination. The court reversed holding that, although the district court was empowered to disregard testimony that was at odds with video evidence, its current holding would prevent summary judgment from being granted in the absence of video evidence, effectively stripping all officers of qualified immunity if their actions were not recorded. Secondly, because the testimony was "uncontradicted and unimpeached," the district court was required to give it credence. Finally, because appellees failed to demonstrate a constitutional violation, they did not satisfy their burden of showing appellant was not entitled to qualified immunity. Orr v. Copeland, Fifth Circuit, Case No.: 16-50023, 12/22/2016

16-50023
EDITH BROWN CLEMENT, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Spear Marketing, Incorporated v. BancorpSouth Bank, 16-10155 (5th Cir. 12/22/2016)

Appellant, a small software developer that produced a computer program to assist banks in managing their cash invoices, filed its original petition alleging appellees had stolen trade secrets related to the operation of the software in order to create its new program. The matter was dismissed for appellant's failure to show appellee used the trade secrets, an essential element for a misappropriation claim. Appellees subsequently moved for attorneys' fees. The district court awarded appellees nearly $1 million in attorneys' fees under the state law claim, or, in the alternative, under the Copyright Act. On appeal, appellant argued that the district court erred in awarding attorneys' fees under state law because its state law claim was preempted and erred in alternatively awarding attorneys' fees under the Copyright Act because it never pleaded or litigated a copyright claim. The court concluded that, at the time of the motion for attorneys' fees, no court had ever held the state claim was preempted. Rather, the state claim was litigated and dismissed on the merits during summary judgment, and therefore it was proper to award attorneys' fees under such claim because that law supplied the rule of decision. Accordingly, the district court's award for attorneys' fees was affirmed. Spear Marketing, Incorporated v. BancorpSouth Bank, Fifth Circuit Case No.: 16-10155, 12/22/2016

16-10155
KING, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

In Re Midland Funding LLC, 08-16-00275-CV (TexApp Dist 12/20/2016)

Relator Midland Funding sued one of its customers over an unpaid credit card balance. The parties settled the case, and Midland's attorney did not show up in court on the day of the bench trial. The court began contempt proceedings, and although Midland filed a notice of non-suit the next day, the court set a status hearing on the underlying case. When Midland's lawyer did not appear at that hearing, the court set a show-cause hearing, and Midland sought mandamus relief to compel the court to enforce the non-suit notice. The appeals court found that a plaintiff has an "unqualified and absolute right to file a non-suit" (Travelers Ins. Co. v. Joachim, 315 S.W. 3d 860; Texas Rule of Civil Procedure 162) and the court has a ministerial duty to dismiss the case. The court also found that a trial court retains plenary power under Rule 162 even after notice of the non-suit, until resolving collateral issues such as sanctions, but that the merits of the case are moot from the time of notice and the present case had no collateral issues. Thus, the court found the trial court had a ministerial duty to dismiss the case, and granted conditional mandamus relief. In Re Midland Funding LLC, El Paso Court of Appeals, 08-16-00275-CV, 12/20/16.

08-16-00275-CV
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, Eighth District

El Paso County v. Sunlight Enterprises Co., 08-16-00081-CV (TexApp Dist 12/09/2016)

Appellant El Paso County terminated a contract with Sunlight Enterprises to renovate the El Paso County Sports Park, claiming lack of performance, and imposed liquidated damages. Sunlight sued for breach of contract, seeking reimbursement for costs it alleged it incurred due to delays by the county. The county defended on the grounds that Sunlight failed to meet a provision in the contract that such claims must be filed within seven days. Sunlight argued the provision was void under Texas Civil Practice and Remedies Code § 16.071(a), which requires a 90-day window for "a claim for damages as a condition precedent to the right to sue," and the trial court granted Sunlight's motion for partial summary judgment. The appeals court then allowed a permissive interlocutory appeal by the county, which argued § 16.071(a) did not apply because the contract required notice merely for a claim under the contract and not as a condition precedent to sue. Sunlight argued the provision effectively prevented it from filing suit, but the appeals court rejected this argument. The court found that Texas construes § 16.071(a) very narrowly to mean notice of filing a lawsuit. (Komatsu v. U.S. Fire Ins. Co., 806 S.W.2d 604). The court stated that narrow construction is necessary to preserve the right to freely contract and noted courts do not void insurance contracts requiring a 24-hour or less window for notice of claims. (St. Paul Mercury Ins. Co. v. Tri-State Cattle Feeders, Inc., 683 S.W.2d 868, Commercial Standard Ins. Co. v. Harper, 103 S.W.2d 143). It also found that requiring the seven-day notice would promote quick identification of issues under the contract such that they can be resolved before a lawsuit is necessary. The court reversed the trial court's ruling and remanded. El Paso County v. Sunlight Enterprises Co., El Paso Court of Appeals, No. 08-16-00081-CV, 12/9/16.

08-16-00081-CV
STEVEN L. HUGHES, JUSTICE

Court of Appeals of Texas, Fifth District

Eddington v. Dallas Police and Fire Pension System, 05-15-00839-CV (TexApp Dist 12/13/2016)

At issue is whether certain recent amendments to the pension plan of appellees violated section 66 of article XVI of the Texas Constitution. Section 66 prohibits, in certain circumstances the reduction or impairment of "benefits" under certain retirement systems in Texas, including the pension system. The instant lawsuit was filed by several current and retired police officers, seeking declaratory relief respecting the constitutionality of the pension plan amendments. In four issues on appeal, appellants challenged the accelerated withdrawal requirements denying their ability to benefit from the plan's interest rate. The court affirmed holding the term "benefits" as used in §66 referred to payments and did not encompass the formula by which those payments were calculated. As such, the court stated the formula used for calculating retirement income, including interest rate, was not a protected benefit under §66. Based on such conclusion, the court held the withdrawal provision did not reduce or impair a benefit protected by §66 and the trial court did not err in concluding the pension plan amendments did not violate §66. Eddington v. Dallas Police and Fire Pension System, Dallas Court of Appeals, Case No.: 05-15-00839-CV, 12/13/2016

05-15-00839-CV
DOUGLAS S. LANG JUSTICE

Court of Appeals of Texas, Eighth District

Texas Tech University Health Sciences Center v. Victor Tabi Enoh, M.D., 08-15-00257-CV (TexApp Dist 12/14/2016)

Doctors at Texas Tech University Health Sciences Center declined to certify resident Dr. Victor Enoh for his final year of class credit in the center's residency program. The school claimed the decision was based on Dr. Enoh's misuse of a school-issued credit card and on Dr. Enoh lying to take a sick day. Dr. Enoh, alleging this action came in response to his reporting a supervisor's weeklong absence, appealed the decision at a hearing. When the appeal was denied, he sued the school, the supervisor, and one other program official on due-process grounds. Defendants filed a plea to the jurisdiction, which the trial court granted in part and denied in part. Defendants appealed, raising four issues: 1) Dr. Enoh had no liberty or property interest in the completion of the program; 2) Even if Dr. Enoh could establish an interest, the school afforded the process he was due; 3) Dr. Enoh did not assert a ultra vires claim against the named doctors to overcome sovereign immunity; and 4) Dr. Enoh's claim for declaratory relief was based upon premises that were barred. The appeals court did not reach a decision as to the first count, but agreed with appellants on the second count that even if Dr. Enoh could establish an interest he was granted sufficient process via his hearing. The court found that the decision was grounded in a student-teacher relationship and was made on academic grounds, requiring less process than an employee-employer relationship and disciplinary grounds. However, the court also found that the hearing, and the notification for it, would pass the higher level of process required for a disciplinary dismissal. The court also held that Dr. Enoh had no available ultra vires exception, in large part because the named doctors properly granted him due process. Lastly, the court held that Texas Tech is protected by sovereign immunity and is not a proper party to Dr. Enoh's claim for declaratory relief. The court rendered judgment dismissing the case. Texas Tech University Health Sciences Center v. Victor Tabi Enoh, M.D., El Paso Court of Appeals, No. 08-15-00257-CV, 12/14/16.

08-15-00257-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

The Port of Houston Authority of Harris County v. Zachry Construction, 14-10-00708-CV (TexApp Dist 12/15/2016)

Zachry Construction sued Appellant Port of Houston Authority of Harris County for breach of a contract to build a wharf. Appellant has enlisted Zachry as an independent contractor, with control over the "means and methods" to build the wharf, to protect itself from liability for damage to other structures during construction. Zachry bid on the project with a plan to build the wharf "in the dry," using a frozen earthern wall to seal out Galveston Bay water during the build. After work began, appellant rejected a plan modification, and Zachry's only means of meeting appellant's tight timeline was to work "in the wet," at considerable extra cost. Zachry sued, charging that the contract did not give appellant authority to reject its new plans. A jury awarded Zachry $23.4 million, the appeals court overturned the ruling, and the Texas Supreme Court reinstated it, remanding the case to the appeals court to resolve questions it hadn't reached in overturning the verdict. Appellant submitted 10 issues for consideration. In the main one, the state argued that it had no liability for contract damages as a matter of law and that the jury misread the contract to impose such liability. The court rejected this argument, agreeing with the jury that appellant had no authority to reject the modification because it fell within the "means and methods" of construction – which appellant had specifically granted control of to Zachry for its own benefit (the protection from liability for other damages). In a related issue, the court rejected appellant's argument that Zachry was required to show that appellant's breach caused its damages. The court noted that Mack Trucks v. Tamez, 206 S.W. 3rd 572) was a products liability case and that no case law required such a showing in a contracts case – instead, Zachry needed only to show that the damages are the "natural, probable, and foreseeable consequence of the defendant's conduct." As noted in Mead v. Johnson Group, 615 S.W. 2nd 685. The court also rejected several evidentiary challenges, an argument that Zachry failed to satisfy conditions precedent, and related arguments. The court affirmed the trial court's judgment. The Port of Houston Authority of Harris County v. Zachry Construction, Houston 14th Court of Appeals, No. 14-10-00708-CV, 12/15/16.

14-10-00708-CV
SHARON MCCALLY JUSTICE

Court of Appeals of Texas, Fourteenth

R.E. Janes Gravel Company v. The Texas Commission on Environmental Quality, 14-15-00031-CV (TexApp Dist 12/15/2016)

Appellant R.E. Janes Gravel, contested the City of Lubbock's application to convey treated wastewater effluent on the Brazos River. Lubbock had a permit since 2001 to discharge wastewater and was seeking a permit to transport from the discharge point 2.7 miles downstream. Appellant argued this would hinder its senior permit, issued in 1968, to divert water from a point downstream of the discharge point. The Texas Commission on Environmental Quality granted appellant's permit with the approval of an administrative law judge, and appellant filed suit against the commission and several individual members. The trial court upheld the commission's decision, and Janes appealed. Appellant argued under Texas Water Code § 11.046(c) that once the water is discharged and returned to the water stream, it is considered surplus water ineligible for an amendment to an existing permit. Appellant also argued that Lubbock's plan would run afoul of § 11.042, requires the commission's prior approval, because the city was already discharging water. The court, reviewing the agency's decision under a substantial evidence standard, found that the agency had evidence to make a reasonable ruling that the diverted water would not be considered surplus water under § 11.046(c) because Lubbock's application sought to transport no more than the maximum amount of water it was allowed to discharge. It also found that § 11.042 applied only to the diversion of water, an operation that Lubbock had not yet begun, so there was no conflict with Lubbock's existing operation to discharge water. In turn, the commission was not required to evaluate senior water rights. The court also rejected appellant's argument that the commission miscalculated carriage losses and therefore had insufficient evidence for its finding. The court affirmed the trial court's judgment upholding the commission's order to grant the amended permit. R.E. Janes Gravel Company v. The Texas Commission on Environmental Quality, Houston 14th Court of Appeals, No. 14-15-00031-CV, 12/15/16.

14-15-00031-CV
JOHN DONOVAN JUSTICE

Court of Appeals of Texas, Fourteenth

Denbury Onshore, LLC v. Texcal Energy South Texas, L.P., 14-15-00439-CV (TexApp Dist 12/06/2016)

Appellees owned a majority interest in certain producing mature oil and gas fields to which appellant, a business which focused on enhanced oil recovery using carbon dioxide injection, sought recover oil from such fields. The parties signed an option agreement with calculation of the payout date dependent on commodity and transportation costs. In 2012, an audit revealed appellant was charging appellee more than expected resulting in appellee bringing an arbitration against appellant for declaratory judgment. The arbitration panel unanimously interpreted the contractual language and issued an award in appellee's favor. The district court denied appellant's application to modify and vacate the arbitration award and granted appellee's motion to confirm. On appeal, the court affirmed holding the option agreement unambiguously stated the parties did not agree to expand judicial review of the arbitration award to encompass reversible error under standards applicable in a conventional appeal from a final judgment rendered after trial. Instead of contractually expanding the scope of judicial review, the parties expressly agreed in the arbitration agreement to restrict the available grounds for vacatur to only fraud and corruption. As appellant failed to meet its burden to show that the arbitration panel exceeded its powers, the district court did not err in confirming the arbitration panel's award. Denbury Onshore, LLC v. Texcal Energy South Texas, L.P., Houston 14th Court of Appeals, Case No.: 14-15-00439-CV, 1206/2016

14-15-00439-CV
MARC W. BROWN JUSTICE

Supreme Court of Texas

Byrdson Services, LLC v. South East Texas Regional Planning Commission, 15-0158 (TexApp Dist 12/23/2016)

Following Hurricane Ike, federally fund rebuilding projects in disaster-stricken areas of Texas were overseen by various local governmental entities. The state provided $95 million to respondent for various disaster-relief and housing-restoration services. The contract authorized respondent to subcontract the repair work and it entered into five contracts with petitioner. A dispute arose between the parties regarding the quality of petitioner's work and payment due under the contracts. Petitioner sued respondent for payments allegedly due. On interlocutory appeal, the court of appeals held that governmental immunity had not been waived and reversed denial of respondent's plea to the jurisdiction. The sole issue was one of governmental immunity: Did petitioner's suit fall within Chapter 271 of the Local Government Code, which waived immunity if the contract, among other things, provided "goods or services to the local governmental entity"? The Supreme Court answered yes: The statutory-immunity waiver applied. Texas homeowners were primary beneficiaries under the recovery-and-rehabilitation program, but they were not the only beneficiaries. The contract also benefited the local governmental entity providing rebuilding work the entity was obligated to provide itself. Accordingly, the Chapter 271 immunity waiver applied and the Supreme Court reversed the court of appeals' judgment. Byrdson Services, LLC v. South East Texas Regional Planning Commission, Supreme Court, Case No.: 15-0158, 12/23/2016

15-0158
DON R. WILLETT JUSTICE

Court of Appeals of Texas, Fourteenth

Texas Law Shield LLP v. Brad Crowley, 14-15-00705-CV (TexApp Dist 12/20/2016)

Appellant law firm partners developed a firearms legal defense retainer program marketing the program at gun shows and at concealed handgun license classes. The appellants signed facility agreements with gun ranges offering concealed handgun licensing classes. Appellees were attendees of the classes at a facility that had signed a facilities agreement with the appellant. Appellants' sales representative introduced by an instructor stated that if they purchased a contract, the appellants' lawyers would represent the students without any additional cost if they encountered legal issues concerning the use of their guns. The appellees immediately purchased a contract. The appellees filed suit alleging that the appellant had violated the civil barratry statute through these concealed hand gun class presentations and motioned for class certification. The appellants moved for summary judgment and the trial court granted the motion based on all the appellees barratry claims. The court granted the appellees motion for class certification and an interlocutory appeal followed. The court determined that the issue on appeal was whether the trial court abused its discretion when it certified the class action. The court questioned whether common issues of the class would predominate in the case. The court ruled that the class action predominance requirement prevents class certification when diverse individual issues will severely compromise the ability of a party to present viable claims or defenses. The court found that the appellants correctly identified issues requiring individualized proof, and that most courts and litigants time in litigation would be spent trying to resolve individual issues. The court concluded that the trial court decision to certify a class did not meet the predominance requirement. Therefore, the trial court abused its discretion when it certified the class and the court reversed the trial courts order and remanded the case. Texas Law Shield LLP v. Brad Crowley, Houston 14th Court of Appeals, Case No.:14-15-00705-CV, 12/20/2016

14-15-00705-CV
J. BRETT BUSBY JUSTICE

Court of Appeals of Texas, Fourteenth

Joshua Emmanuel Barnett v. State of Texas, 14-15-00919-CR (TexApp Dist 12/20/2016)

Jury convicted appellant of evading arrest using a motor vehicle. Subsequently, the appellant moved for a new trial, arguing his right to a public trial had been violated. The appellant's brother, testified that when he went to the courtroom he was unable to enter because the door was locked. Several other witnesses testified that they had no trouble entering or leaving the courtroom and the judge stated that he did not order the courtroom to be locked. The court denied the motion for a new trial and an appeal followed. The appellant contended that the trial court erred in denying his motion for a new trial because his right to a public trial was violated when his brother could not enter the courtroom. To determine if his right to a public trial was violated the court analyzed whether the courtroom was closed. The court found that no evidence established that the courtroom was locked and the trial courts finding was supported by the record. The court affirmed, determining that since no closure existed the trial court did not err in denying the appellants motion for a new trial and overruled the sole issue on appeal. Joshua Emmanuel Barnett v. State of Texas, Houston 14th Court of Appeals, Case No.:14-15-00919-CR,12/20/2016

14-15-00919-CR
WILLIAM J. BOYCE JUSTICE

Court of Appeals of Texas, Seventh District

Tregellas v. Carl M. Archer Trust No. Three, 07-14-00421-CV (TexApp Dist 12/20/2016)

Appellants obtained a mineral deed from non-parties without the requisite notification to appellee-trustees. Subsequently, a prospective oil and gas lessee reported the sale to appellees who sued arguing they "desire[d] to exercise their right to purchase the mineral interest" conveyed. Appellees sought specific performance requiring appellants to convey the mineral interest to the trustees on their payment of the price appellants remitted. Following a secondary purchase, appellees amended their petition alleging appellants obtained such purchase through subterfuge, artifice, or device used to make a voluntary sale appear involuntary and remove it from the right of first refusal. The trial court granted specific performance for the appellee-trustees as to both interests. The court reversed specific performance on the first purchase interest in the mineral estate as barred by the statute of limitations; a suit for specific performance of a contract for the conveyance of real property must be brought no later than four years after the cause of action accrues. Here, non-parties granted appellees a right of first refusal to purchase their interest in the mineral estate in June 2003. Non-party subsequently conveyed the interest by deed in March 2007 to appellants. Upon closing – a discoverable event – the action for breach of first refusal accrued, a date more than four years prior to the filing of this action. The court however affirmed the trial court's judgment as to the second sale for its failure to disclose to appellees their willingness to sell. Tregellas v. Carl M. Archer Trust No. Three, Amarillo Court of Appeals, Case Nos.: 07-14-00421-CV and 07-16-00461-CV, 12/20/2016

07-14-00421-CV
JAMES T. CAMPBELL JUSTICE

Court of Appeals of Texas, Eighth District

In Re Wal-Mart Stores, Inc., 08-15-00126-CV (TexApp Dist 12/14/2016)

Blanca Calderon sued relator Wal-Mart alleging she was fired due to age or in retaliation for a worker's compensation claim. After a dispute about three of Calderon's 86 discovery requests, the court held a hearing on March 12, 2015, and ordered relator to fully respond to all discovery requests by March 20, 2015. Relator sought an extension to comply, and the court granted a hearing on April 9, 2015, but in the interim it levied thousands of dollars of fines and attorney's fees against relator for its non-compliance. On April 9, the court denied relator's motion, assessed more fines and attorney's fees, and held relator in contempt for non-compliance. Relator sought a writ of mandamus for emergency relief. On relator's first issue, lack of notice of the contempt charge, the appeals court found that relator was charged with criminal contempt because the trial court's actions were strictly punitive, and that the trial court did not provide adequate notice of criminal contempt. It rejected Calderon's argument that relator had constructive notice by attending all court hearings, calling constructive notice "constitutionally inadequate." On relator's second issue, that the discovery request was overbroad, the court held that relator abandoned its objection by representing at the March 12 hearing that it would fully respond to discovery requests. In its third issue, relator argued the trial court erred by denying its motion for a protective order to shield confidential information in its discovery responses. Relator argued that its responses included personal information about employees that is protected by HIPAA and other federal laws, and was required to keep that information confidential. However, the appeals court found that relator did not establish the need for a protective order at the March 12 hearing, and held the trial court did not abuse its discretion by denying it. In relator's last issue, it challenged the fines and fees levied against it. The appeals court found that the sanctions would be valid for at least 83 of Calderon's 86 discovery requests and that relator cited no authority that the trial court abused its discretion. The court overruled relator's second, third, and fourth issues, and granted conditional mandamus relief only on the contempt issue. In Re Wal-Mart Stores, Inc., El Paso Court of Appeals, 08-15-00126-CV, 12/14/16.

08-15-00126-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Supreme Court of Texas

4Front engineered Solutions, Inc. v. Rosales, 15-0298 (TexApp Dist 12/23/2016)

Respondent, a subcontractor, sued petitioner, a premises owner, for personal injuries suffered when a forklift, operated by a contractor to install a sign, toppled over onto him while on petitioner's premises. A jury found that all three parties negligently caused the accident and assigned seventy-five percent of the responsibility to petitioner, fifteen percent to the contractor, and ten percent to respondent. Petitioner appealed and the Supreme Court concluded that no evidence supported the jury's liability findings against petitioner. Notably the Supreme Court held respondent did not offer or rely on any affirmative evidence that petitioner "knew" or "should have known" that the contractor was incompetent or reckless to operate a forklift – a necessary element to prove negligent entrustment. Further, no evidence in the record supported liability based on a "condition of the premises." The Supreme Court stated there was no evidence that any condition of the sign was dangerous or proximately caused the accident. And even if the sidewalk's edge was dangerous and proximately caused the accident, the Supreme Court declined to impose a duty for premises conditions that were open and obvious, regardless of whether such conditions were artificial or naturally occurring. Accordingly, there was no evidence to support either of the theories on which the jury found petitioner liable. 4Front engineered Solutions, Inc. v. Rosales, Supreme Court, Case No.: 15-0298, 12/23/2016

15-0298
JEFFREY S. BOYD JUSTICE

United States Court of Appeals, Fifth Circuit

Kingdom Fresh Produce, Incorporated v. Stokes Law Office, L.L.P., 14-51079 (5th Cir. 12/21/2016)

This attorney's fee dispute has its roots in the Perishable Agricultural Commodities Act, a depression-era statute designed to protect sellers of perishable produce from delinquent purchasers. Two such purchasers filed for bankruptcy and the bankruptcy court appointed appellant as special counsel to collect and disburse funds to PACA-protected sellers that had claims against the purchasers-turned-debtors. When appellant sought approval of his fees and expenses, which would be paid out of the PACA fund, some appellee-sellers objected and appealed the bankruptcy court's fee award to the district court, which vacated it. On appeal, the question was whether appellant's fees and expenses can be disbursed from the PACA fund. The court affirmed the district court's order vacating the fees holding that PACA's trust provision stated that buyers of perishable agricultural commodities must hold receivables or proceeds from the sale of those commodities in trust for the benefit of all unpaid sellers "until full payment of the sums owing in connection with such transactions has been received" by the sellers. As appellant was a PACA-trustee, he was not entitled to payment from trust assets "until full payment of the sums owing" were paid to all claimants. Kingdom Fresh Produce, Incorporated v. Stokes Law Office, L.L.P., Fifth Circuit, Case No.: 14-51079, 12/21/2016

14-51079
GREGG COSTA, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

In the matter of the guardianship of Mark Scott Croft, 14-15-00911-CV (TexApp Dist 12/20/2016)

In 2009, the appellant suffered serious injuries in a motor vehicle accident. A Florida court found him to be incapacitated and took guardianship of his person and estate. The guardianship of his estate was transferred to Texas. The appellant filed an application seeking restoration of his capacity with respect to the guardianship of his estate in Texas. The trial court signed an order dismissing the appellants application for restoration of capacity to manage his estate stating that the appellant continued to suffer from bipolar disorder and continued guardianship of his estate was needed. The appellant challenged this order stating that the trial courts order dismissing his application did not conform with statutory requirements. The court stated the trial courts order, findings of fact, and conclusions of law did not follow the statutory requirements for keeping the guardianship in place or dissolving it. It was determined that the order and conclusions of law did not state whether the trial court addressed if the appellant continued to be an incapacitated person. The court determined that they could not determine the sufficiency of the courts determination that guardianship over the estate should remain in place before the trial court order complied with all statutory prerequisites. The court agreed with the appellant that the trial courts order did not comply with statutory requirements. Therefore, the court reversed the order of dismissal and remanded to the trial court. In the matter of the guardianship of Mark Scott Croft, Houston 14th Court of Appeals, Case No.:14-15-00911-CV, 12/20/2016

14-15-00911-CV
WILLIAM J. BOYCE JUSTICE

United States Court of Appeals, Fifth Circuit

Pineda v. JTCH Apartments, L.L.C., 15-10932 (5th Cir. 12/19/2016)

Appellants lived in an apartment owned by appellee and leased to them; appellant-husband did maintenance work in exchange for discounted rent. Appellants filed this lawsuit initially just seeking unpaid overtime under the Fair Labor Standards Act. Following service of the suit, appellants received a notice to vacate their apartment for nonpayment of rent. Appellants amended their complaint to include retaliation claims based on the back rent demanded after the filing of the lawsuit. During the jury trial, appellees moved successfully for judgment as a matter of law on the retaliation claim, arguing that appellant-wife was a nonemployee who was outside the protections of the FLSA. On appeal, appellant-wife argued that she was within the zone of interests protected by the FLSA retaliation provision and thus should be able to seek damages. The court began by deciding that the FLSA's broad authorization of "legal and equitable relief" encompassed compensation for emotional injuries suffered by an employee on account of employer retaliation. As such, a question asking whether appellant-husband had proven any damages for emotional distress should have been submitted to the jury. However, the court affirmed the district court in finding that appellant-wife was not covered by the FLSA which only prohibited discharging or discriminating against an "employee." Pineda v. JTCH Apartments, L.L.C., Fifth Circuit, Case No.: 15-10932, 12/19/2016

15-10932
GREGG COSTA, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Elidia Cura-Cruz v. CenterPoint Energy, 14-15-00632-CV (TexApp Dist 12/20/2016)

A rogue spark from a transformer ignited a fire that damaged several businesses for a total of $2 million. The property owners sued CenterPoint Energy Houston Electric, which owned and maintained the transformer, for negligence. The trial court granted CenterPoint's motion to exclude the property owners' expert witness under Texas Rule of Evidence 702, and then granted CenterPoint's no-evidence motion because the owners lacked an expert witness. The property owners appealed. The expert, Michael McGraw, worked in electrical engineering since 1978, focused on transformers since 1996, and ran his own transformer business for nine years, but did not have an engineering degree or license. The appeals court found that Rule 702 does not require a degree or license, and held that McGraw's career experience qualified him as an expert, reversing the trial court' exclusion. Regarding the no-evidence motion, the appeals court agreed with the trial court that expert testimony is required to establish the standard of care for the utility and the breech of that standard. But because the appeals court found McGraw to be a competent witness, it held that his affidavit and deposition testimony (attached to the appellants' brief) provided more than the scintilla of evidence needed to overcome the no-evidence motion. It reversed the trial court on this issue as well and remanded the case. Elidia Cura-Cruz v. CenterPoint Energy, Houston 14th Court of Appeals, No. 14-15-00632-CV, 12/20/16.

14-15-00632-CV
MARTHA HILL JAMISON JUSTICE

Court of Appeals of Texas, Eighth District

Anita Connally v. Dallas Independent School District, 08-15-00310-CV (TexApp Dist 12/21/2016)

The Dallas Independent School District fired appellant Anita Connally, who was tasked with ensuring compliance with statewide rules on athletic eligibility, after fraudulent documents regarding athletes came to light. DISD claimed it fired her for failing to prevent the frauds; appellant believed she was fired for investigating the documents and reporting the discrepancies. She sued for wrongful termination, seeking an exception to sovereign immunity under the Texas Whistleblower Act. The act forbids a governmental entity from firing an employee who makes a good-faith report of governmental wrongdoing to a law enforcement official who is authorized to 1) regulate or enforce the law alleged to be violated or 2) investigate or prosecute a violation of criminal law. The trial court dismissed the case, finding that appellant did not make the reports necessary to invoke the Whistleblower Act. Connally appealed. The appeals court found that reports appellant made to internal DISD agencies, and to a DISD official who was concurrently a police officer for a short time, did not implicate the act because those agencies – and the official after relinquished his police commission – did not have authority to regulate or enforce forgery laws. It also found that appellant, who had worked for DISD for 20 years, could not have reasonably believed the agencies and official had enforcement powers. The court then considered appellant's conversations about the issue with two DISD police officers. The court found that the conversations can be considered a "report" under the act even though they were not formal reports and were merely comments made "in passing," in the officers' words. Because these officers had the authority to investigate criminal wrongdoing, as reported by appellant, the court held the second element of the act applied. The court reversed the trial court's judgment as to appellant's comments to the two police officers, affirmed it in all other respects, and remanded. Anita Connally v. Dallas Independent School District, El Paso Court of Appeals, 08-15-00310-CV, 12/21/16.

08-15-00310-CV
STEVEN L. HUGHES, JUSTICE

Court of Appeals of Texas, Eighth District

Michael Simpson, M.D., v. Maria Barton, 08-16-00076-CV (TexApp Dist 12/09/2016)

Maria Barton developed an infection after her dermatologist, appellant Dr. Michael Simpson, performed a biopsy on her. She reported to him that she was in extreme pain with a bad smell emanating from the wound, and he advised her these conditions were part of the healing process and there was nothing he could do for her. Four days later, she was admitted to a hospital, where she was administered antibiotics and eventually underwent surgery to remove the infection. She sued appellant for malpractice and offered the testimony of a medical expert, Dr. Louis Roddy, that if appellant had ordered antibiotics when Barton first told him of her symptoms she likely would have avoided surgery. She prevailed at the trial court, and Dr. Simpson appealed on the grounds that 1) Barton's expert, an internist, was not qualified to testify as to the standard of care appellant owed as a dermatologist, and 2) the expert failed to show causation. The appeals court found that because infections are common to all fields of medicine, any physician familiar with infections and their prevention may testify as an expert on the subject. (Gonzalez v. Padilla, 485 S.W. 3d 286). The court noted that Dr. Roddy's qualifications to testify on the case were "less direct" than in other cases, but held that the trial court did not abuse its discretion by allowing his testimony. On the causation issue, the court held that Dr. Roddy's opinion was sufficiently detailed to establish appellant's inaction as a substantial cause of Barton's need for surgery. The court also dismissed a concern that Dr. Roddy's initial report did not include his qualifications as an expert, finding that the report was timely filed and the trial court reasonably granted a good-faith extension to cure the report. The appeals court affirmed the trial court's judgment. Michael Simpson, M.D., v. Maria Barton, El Paso Court of Appeals, 08-16-00076-CV, 12/9/16.

08-16-00076-CV
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, First District

Austin v. Coface Seguro de Credito Mexico, S.A. de C.V., 01-15-00760-CV (TexApp Dist 12/13/2016)

Appellee-bank obtained a judgment in Mexico and later registered it in Texas state court, using the debtor's full name, which included a first and a second surname. Appellee then abstracted the authenticated judgment in the county records. The county clerk indexed the judgment using the second surname of the debtor and included the first surname among debtor's other first names. Later, appellee determined that the debtor owned a home in Texas and had sold the home to appellant, a third-party buyer; appellee sought foreclosure of the home in satisfaction of its judgment lien. Appellant contested appellee's lien arguing it was obligated to secure an index under the firs surname listed in abstract of judgment to enforce the lien; appellee responded that the chain of title for the property included the debtor's full name as it contained in the abstract judgment. On cross-motions for declaratory relief, the trial court found in favor of appellee. The court dismissed appellant's motion for en banc determination holding the abstract of judgment met the statutory requirements and the debtor's full name was also found in the property's chain of title as indexed under both surnames. Accordingly, the court affirmed the trial court's judgment. Austin v. Coface Seguro de Credito Mexico, S.A. de C.V., Houston 1st Court of Appeals, Case No.: 01-15-00760-CV, 12/13/2016

01-15-00760-CV
JANE BLAND JUSTICE

Court of Appeals of Texas, Second District

City of Krum, Texas v. Taylor Rice, 02-15-00342-CV (TexApp Dist 12/15/2016)

In this interlocutory appeal, appellant complained of the trial court's denial of its plea to the jurisdiction. Appellee brought the underlying action challenging appellant's sex offender residency restrictions ordinance which prohibited such a person from establishing a residence in the city that was within 2,000 feet of any place where children commonly gather. A violation under the ordinance was a misdemeanor subject to a fine of up to $500. When appellee failed to timely respond to a request for admissions, the admissions were deemed admitted and appellant filed a plea to the jurisdiction. Appellee's attorney then filed a motion to withdraw the deemed admissions asserting that he had first discovered his failure to respond upon review of the plea to the jurisdiction. After a hearing, the trial court granted appellee's motion to withdraw the deemed admissions and denied appellant's plea to the jurisdiction. The court affirmed holding that the ordinance was a civil ordinance and the trial court did not err by not dismissing appellee's claims. The court noted the ordinance's residency restrictions had a rational connection to a nonpunitive purpose, even though a violation may give rise to prosecution. As such, appellee did not have to plead a violation of a property right in order for the court to jurisdiction over his claims. Finally, the court noted appellee established good cause as to the untimely response to admissions and it was not error of the trial court to allow its withdrawal. City of Krum, Texas v. Taylor Rice, Fort Worth Court of Appeals, Case No.: 02-15-00342-CV, 12/15/2016

02-15-00342-CV
LEE ANN DAUPHINOT JUSTICE

Court of Appeals of Texas, Fourteenth

In re Larry Blankenhagen and Dian Petty, 14-16-00699-CV (TexApp Dist 11/17/2016)

On April 18, 2012, the parties entered into a contract for the construction of relators' home. Relators alleged that the real party-interest breached the contract in several respects, including by performing defective work and by failing to timely proceed with the work. Relators subsequently filed their petition for declaratory judgment and received a default judgment upon real party-interest's failure to timely file an answer. Relators alleged that they attempted to execute on the default judgment, but were unable to because the district clerk could not ascertain the amount of monetary damages awarded. Relators filed a motion for hearing on unliquidated damages arguing that the default judgment was not a final judgement. The trial court denied the motion "for lack of plenary jurisdiction." The court held the default judgment was not a final judgment because the amount that it awarded as damages could not be ascertained from either the judgment or the exhibits to the judgment. Thus, the trial court abused its discretion by concluding that it lacked plenary jurisdiction to hear and consider an award of damages. As relators had no adequate remedy by appeal for this error, the court conditionally granted the petition for writ of mandamus. In re Larry Blankenhagen and Dian Petty, Houston 14th Court of Appeals, Case No.: 14-16-00699-CV, 11/17/2016

14-16-00699-CV
JOHN DONOVAN JUSTICE

Court of Appeals of Texas, First District

John Robert Coulter v. The State of Texas, 01-15-00018-CR (TexApp Dist 12/15/2016)

A jury convicted appellant of aggravated sexual assault of a child, and the trial court assessed punishment at 35 years' confinement. In his sole issue on appeal, appellant contended that he should be granted a new trial because the official record was incomplete in that "new testimony from the child's time on the stand was produced at [the abatement] hearing," and that "an audio-record [from] the court reporter was produced at [the abatement] hearing which shows that the prosecutor was whispering and coaching the child witness while she was on the witness stand during the trial." The court affirmed holding the trial court was not required to videotape the child's testimony nor could appellant show that the result of the case would have been different had counsel request same. Further, the record from the abatement hearing included not only the court reporter's back-up, but audio before and during the jury's entrance into the courtroom, but before trial proceedings and stenographic recording resumed. The audio captured before the jury entered was not a "significant portion" of the record nor necessary to the appeal's resolution. The court concluded that appellant failed to show he was harmed and the judgment of the trial court was affirmed. John Robert Coulter v. The State of Texas, Houston 1st Court of Appeals, Case No.: 01-15-00018-CR, 12/15/2016

01-15-00018-CR
SHERRY RADACK CHIEF JUSTICE

Court of Appeals of Texas, First District

Rocha v. Marks Transport, 01-15-01073-CV (TexApp Dist 12/13/2016)

Appellant Patricia Rocha sued car dealership Marks Transport under a premises liability theory for personal injuries she suffered when she slipped and fell on a wet floor inside the dealership. She was there for warranty work on a car her husband had purchased, but for which she was the primary driver. The contract appellant's husband signed to by the car contained a clause allowing either side to elect arbitration to settle any disputes arising from the contract. The trial court enforced the clause, compelled arbitration, and dismissed her lawsuit, and Rocha appealed. She argued that direct-benefit estoppel did not apply to the case, and that her claims fall outside the scope of the arbitration agreement. The dealership conceded that the trial court erred in dismissing Rocha's case, but argued that the trial court was correct to compel arbitration and that the appeals court had no jurisdiction to hear the case. The appeals court first ruled it had jurisdiction, finding that Brooks v. Pep Boys Automotive Supercenters, 104 S.W.3d 656 involved an interlocutory appeal, whereas Rocha appealed from a final judgment. It also noted several passages in which Brooks made clear that a final judgment is appealable, and noted subsequent precedent clarified as much (Childers v. Advanced Foundation Repairs, 221 S.W.3d 90). The court then ruled that the arbitration agreement did not apply to appellant as a non-signatory because her theory of liability arose not from the contract her husband signed but rather under a general legal obligation to keep the premises safe. Because the court ruled the agreement did not apply to her, it did not reach the question of whether the incident was within the agreement's scope. The court vacated the trial court's dismissal of her suit, reversed its order compelling arbitration, and remanded the case. Rocha v. Marks Transport, Houston 1st Court of Appeals, No. 01-15-01073-CV, 12/13/16.

01-15-01073-CV
SHERRY RADACK CHIEF JUSTICE

Court of Appeals of Texas, First District

Perry v. Perry, 01-16-00156-CV (TexApp Dist 12/13/2016)

William Perry appealed a post-divorce order appointing a receiver to sell the marital home several years after his divorce. The 2012 divorce decree granted appellant sole ownership of the house; divested his ex-wife Vickie Reams Perry of any interest and ordered her to sign any deeds or documents needed to transfer ownership to appellant. The decree also included a hand-written modification granting Vickie 50 percent of the profit in a sale of the house. Years later, appellant sued to enforce the decree for Vickie to sign over the house, and Vickie countersued to appoint a receiver to sell the house, alleging without evidence that it was about to go into foreclosure. The trial court appointed a receiver to sell it "in his sole discretion … upon terms and conditions determined by him." William appealed, on grounds that the appointment modified the terms of the divorce decree. The appeals court found that the decree granted all rights to the house to appellant and divested Vickie of all interests except a one-half interest in the profits from a sale, as no other interpretation would give effect to all portions of the divorce decree, including the hand-written portion. It then found that because the decree did not include a specific time and price for the sale, Texas law provides that the house must be sold at a reasonable time and at a reasonable price. It then ruled that because the order appointing a receiver gave him sole discretion over the time and price of the sale – rather than requiring him to sell it at a reasonable time and price – the trial court modified the divorce decree. Because a trial court may not modify a final divorce decree, the appeals court vacated the trial court's order appointing a receiver and remanded the case. Perry v. Perry, Houston 14th Court of Appeals, No. 01-16-00156-CV, 12/13/16.

01-16-00156-CV
HARVEY BROWN JUSTICE

Court of Appeals of Texas, Fourteenth

Ex Parte Jared Scott Enger, 14-15-00846-CV (TexApp Dist 12/08/2016)

This appeal arose from the trial court's order denying J.S.E.'s petition for expunction. Appellant contended the trial court erred in construing Tex. Fam. Code Ann. §51.001(b) and Tex. Code Crim. Proc. Ann. art. 55.01 to exclude an adult with a juvenile detention record from the remedy of expunction. The court affirmed holding appellant failed to overcome all the statutory requirements necessary for expunction. The court held that an arrest was a threshold requirement under the expunction statute. A juvenile is not "arrested" until the juvenile court certifies him as an adult and signs a proper transfer order to district court. It is the transfer of custody that constituted an arrest. Here, appellant was never arrested, rather just detained, as his matter was dropped following his removal from school. Further, appellant was not claiming that people similarly situated to him were treated differently under the law, and therefore there was no equal protection violation. Because appellant did not prove all statutory requirements were satisfied, the court held the trial court did not abuse its discretion in denying appellant's petition for expunction. Ex Parte Jared Scott Enger, Houston 14th Court of Appeals, Case No.: 14-15-00846-CV, 12/08/2016

14-15-00846-CV
JOHN DONOVAN JUSTICE

Court of Appeals of Texas, Fourteenth

County Investment, LP v. Royal West Investment, LLC, 14-15-00207-CV (TexApp Dist 12/15/2016)

In 2010, appellees were involved in a litigation arising out of several real estate transactions with a non-party; the jury's verdict and post-trial rulings resulted in appellee being the prevailing party. In an effort to execute the judgment, appellee placed a lis pendens relative to certain property owned by appellant. In the present suit, appellant sought actual and punitive damages for appellees' alleged violation of the Tex. Civ. Prac. & Rem. Code Ann. §§12.002(a), (b), 12.003(a)(8) by filing a fraudulent lien resulting in the loss of a sale on the property. Appellees filed a traditional motion for summary judgment, contending all claims were barred by the defense of absolute privilege. The trial court signed an order granting summary judgment and ordering appellant take nothing. The court affirmed holding Tex. Gov't Code Ann. §51.903 provided a method whereby a person who owned or had an interest in real property and believed a filed document purporting to place a lien or claim against the property was fraudulent may file a motion and obtain, even ex parte, a judicial determination that the lien was not valid. Appellant presented no reason it could not have sought cancellation as authorized under such statute. The court concluded that appellant's claims for damages were barred by the defense of absolute privilege. County Investment, LP v. Royal West Investment, LLC, Houston 14th Court of Appeals, Case No.: 14-15-00207-CV, 12/15/2016

14-15-00207-CV
JOHN DONOVAN JUSTICE

Court of Appeals of Texas, Tenth

Mansolo v. The State of Texas, 10-16-00251-CR (TexApp Dist 12/14/2016)

Appellant Johnny Candido Mansolo was convicted of possession of a prohibited item in a correctional facility (enhanced) and aggravated assault with a deadly weapon (enhanced). He pled guilty to both charges in a single hearing and was sentenced to 20 years and 50 years for the crimes, respectively, with sentenced to run concurrently. Mansolo appealed, and his court-appointed attorney filed an Andres brief. The court found, without mention of appellant's arguments, that his appeal was "wholly frivolous." It noted, however, that the trial court erred by charging costs in both judgments of convictions even though they took place in a single hearing. The appeals court therefore modified one of the judgments to remove the assessed court costs, then affirmed the judgments and granted the attorney's motion to withdraw from representation. Mansolo v. The State of Texas, Waco Court of Appeals, No. 10-16-00251-CR and 10-16-00252-CR, 12/14/16.

10-16-00251-CR
TOM GRAY CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

United Airlines. v. Harris County Appraisal District, 14-15-01014-CV (TexApp Dist 12/06/2016)

Harris County appraised appellant United Airlines' property in the county at $971 million for tax purposes. Appellant estimated the same property to be worth $404 million. Appellant exhausted its administrative remedies by seeking a reduction from the Harris County Appraisal Review Board, and after gaining only a small reduction, filed a timely lawsuit. However, after a 60-day window to file suit had closed, appellant filed a petition changing its grounds from a market-value challenge to an excessive-appraisal challenge. Harris County sought to have the suit dismissed under a plea to the jurisdiction, arguing that the new grounds constituted a new lawsuit that was not timely filed and therefore the trial court did not have subject matter jurisdiction. Appellant later filed another petition changing back to the original grounds, but the trial court granted the county's plea and dismissed the suit. United appealed. The appeals court found that grounds for a lawsuit do not give rise to a jurisdictional question: the only requirements for jurisdiction over an appraisal review board ruling are that the property was the subject of an appraisal review board finding, the party filed its initial petition within 60 days, and the petition provided enough information to identify the property. The court also found that all these requirements were satisfied, and that other parts of the tax code support the finding that grounds for appeal is not a jurisdictional requirement. The court reversed the trial court's dismissal of the case and remanded it for further proceedings. United Airlines v. Harris County Appraisal District, Houston 14th Court of Appeals, No. 14-15-01014-CV, 12/6/16.

14-15-01014-CV
JOHN DONOVAN JUSTICE

Court of Appeals of Texas, Fourteenth

American Risk Insurance Company, Inc. v. Serpikova, 14-14-00859-CV (TexApp Dist 12/06/2016)

In this insurance-coverage case, the appellant-insurer under a homeowner's policy appealed the trial court's determination that, as a matter of law, the policy provided coverage for the appellee-insured's loss resulting from a fire. The court concluded that under binding statements from the Supreme Court of Texas in Greene v. Farmers Insurance Exchange, 446 S.W.3d 761 (Tex. 2014), the policy did not provide coverage as a matter of law. Therefore, the trial court erred in granting summary judgment in favor of the appellee. The court held that the statements in Greene were judicial dicta that bind the court to adopt the insurer's construction of the definition of "residence premises" which provided dwelling coverage for a dwelling and other structures set apart from the dwelling by clear space "where an insured resides or intends to reside within 60 days after the effective date of the policy." Appellee argued that the clear wording of the policy, the definition of "residence premises" was the residence premises shown on the declaration page, which was the property on which appellee's house was located. The court stated that under the policy's unambiguous language, the property did not fall within the definition of "residence premises" because appellee never resided on the property during the term of the policy nor did she intend to reside on the property during the 60 days after the policy's effective date. Accordingly, the court reversed the trial court's grant of summary judgment in favor of appellee. American Risk Insurance Company, Inc. v. Serpikova, Houston 14th Court of Appeals, Case No.: 14-14-00859-CV, 12/6/2016

14-14-00859-CV
KEM THOMPSON FROST CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Hendricks v. Barker, 14-15-00673-CV (TexApp Dist 06/02/2016)

The parties entered into a contract to purchase certain real property from the estate of appellee's deceased father. The contract was a so-called "contract for deed," in which the parties agreed that legal title would pass to appellant only when he made all of his required payments. In the event of a default, appellee had the right to terminate the contract and retain any payments as deemed rental charges. A dispute arose sometime after the contract was executed with appellant alleging he contacted appellee to inquire about the balance remaining. Appellant filed suit alleging several causes of action. When the trial date arrived, neither appellant nor his attorney (whom was previously disqualified) made an appearance and the matter was dismissed for want of prosecution. The court affirmed holding appellant failed to preserve appellate review for his assertions that he did not receive notice of the trial setting, despite assertions in his original notice of appeal. The court further affirmed disqualification of counsel as evidence showed counsel had previously provided legal services for appellee and counsel agreed to undertake that legal representation. The trial court's order dismissing the case for want of prosecution was affirmed. Hendricks v. Barker, Houston 14th Court of Appeals, Case No.: 14-15-00673-CV, 12/13/2016

14-15-00673-CV
TRACY CHRISTOPHER JUSTICE

Court of Appeals of Texas, Tenth

Abraham C. Martinez v. The State of Texas, 10-16-00217-CR (TexApp Dist 12/07/2016)

Appellant complained that (1) the trial court abused its discretion in ordering the sentence in this case to run consecutive to a prior sentence in which appellant was on parole; and (2) the assessment of court costs violated his equal-protection rights in light of the Texas Supreme Court's recent pronouncement in Campbell v. Wilder, 487 S.W.3d 146, 152 (Tex. 2016). The court modified the trial court's cumulation order as it erred in ordering the sentence in this case to run consecutive to a prior sentence. The court held that the trial testimony established that appellant had "made parole" at the time of the offense and was still on parole throughout the trial. As such, the judgment should be modified accordingly to delete the provision that this sentence not begin to operate until the sentence in the prior case ceased to operate. Secondly, the court found that the non-punitive recoupment of costs associated with the trial of the case constituted a rational basis for different treatment that advanced a valid public purpose and a legitimate governmental interest. As such, the court concluded that appellant had not met his burden in showing that he was denied equal protection of the law through the assessment of court costs upon his conviction. Abraham C. Martinez v. The State of Texas, Waco Court of Appeals, Case No.: 10-16-00217-CR, 12/7/2016

10-16-00217-CR
AL SCOGGINS JUSTICE

Court of Appeals of Texas, Twelfth

Wasson Interests v. City of Jacksonville, 12-13-00262-CV (TexApp Dist 12/09/2016)

Appellant Wasson Interests held a lease for two lots on the city-owned and –operated reservoir Lake Jacksonville in Jacksonville. The city rescinded the lease after appellant offered weekly rentals of the property in violation of a lease provision prohibiting commercial uses as per the zoning ordinance. It reinstated appellant under an agreement clarifying acceptable uses of the property, and rescinded the lease again after appellant continued to offer weekly rentals. Appellant sued, charging the city breached the lease by improperly evicting appellant, and the city defended by arguing that it had governmental immunity (along with a no evidence motion for summary judgment). The case reached the Texas Supreme Court, which remanded it to the appeals court to determine whether the city's acts were governmental or proprietary. Relying on the Texas Tort Claims Act for guidance, the court found that maintaining a reservoir is a governmental function, and that enforcing zoning laws is a governmental function as a part of government's police powers. It also found that while profit motive can classify a governmental act as proprietary, this does not hold true for profit-driven acts with an underlying governmental function. Furthermore, it found that if any one component of a government function is governmental, the entire function will be classified as such. The appeals court therefore held that the city engaged in governmental acts and enjoyed governmental immunity, and it dismissed the suit, affirming the trial court's judgment. The court did not reach the no-evidence motion because its ruling on the governmental function question was dispositive. Wasson Interests v. City of Jacksonville, No. 12-13-00262-CV, Tyler Court of Appeals, 12/9/16.

12-13-00262-CV
JAMES T. WORTHEN CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

John Michael Enard v. The State of Texas, 14-15-00855-CR (TexApp Dist 12/08/2016)

Appellant was charged by indictment with the offense of intentionally or knowingly violating a civil-commitment requirement imposed under Texas Health and Safety Code §841.082 after having been adjudicated and civilly committed as a sexually violent predator. As a basis for seeking pre-trial habeas-corpus relief, appellant alleged many constitutional violations and claims the Code violated his constitutional rights in various respects. The trial court denied appellant's request; appellant subsequently pled guilty, waived his rights to a jury trial, and waived "the other constitutional rights to fight" the cases. Here, the court addressed appellant's appeal from his conviction for violating a civil-commitment requirement and ineffective assistance of counsel. The court affirmed holding appellant failed to file in the criminal prosecution a pre-trial motion to dismiss or quash the indictment and, therefore, did not preserve error as to any of his complaints from his conviction. Further, appellant did not allege ineffective assistance of counsel in the trial court, and the record contained no evidence as to the explanation for counsel's conduct. The court stated that it could not conclude that appellant's counsel's failure to preserve error was to the appellate complaints was conduct so outrageous that no competent attorney would have engaged in it. The court affirmed the trial court's judgment. John Michael Enard v. The State of Texas, Houston 14th Court of Appeals, Case No.: 14-15-00855-CR, 12/08/2016

14-15-00855-CR
KEM THOMPSON FROST CHIEF JUSTICE

Court of Appeals of Texas, First District

Texas Windstorm Insurance Association v. Jones, 01-16-00385-CV (TexApp Dist 12/15/2016)

Appellant Texas Windstorm Insurance Association challenged trial court's dismissal of its plea to the jurisdiction in a lawsuit brought by Randy Jones. Jones filed a claim with appellant after his roof sustained hail damage. Appellant specializes in wind and hail damage along Texas' coastline. Appellant's inspector determined that certain shingles needed to be replaced and set the damage at $3,660. Appellant notified Jones that it accepted his claim in full for that amount (minus his deductible) and notified him – as required by the Texas Insurance Code – of the process to dispute its findings, including requesting appraisal within 60 days, which Jones did not do. He later sued appellant for denial of his claim, arguing that the damage merited a full roof replacement at a value of $14,584. The trial court dismissed appellant's plea to the jurisdiction, and appellant filed an interlocutory appeal. The appeals court found that the disagreement as to the amount of damage did not constitute a partial denial of coverage, that Jones failed to follow procedures to dispute the amount under the Texas Insurance Code as communicated to him, that appellant notified Jones it accepted his claim in full, and the appellant followed all proper procedure for accepting a claim in full but no procedure for denying a claim in full or in part, indicating that it intended to accept the claim in full. The court thus ruled that appellant did not partially deny Jones' claim. The court also rejected Jones' argument that appellant's inconsistent opinion in another case required the court to affirm the trial court's judgment under a theory of judicial estoppel. The appeals court found that judicial notice of the other case was not proper because it was not in the appellate record, and therefore the court could not consider Jones' judicial estoppel argument. The court reversed the trial court's ruling and dismissed Jones' suit. Texas Windstorm Insurance Association v. Jones, Houston 1st Court of Appeals, No. 01-16-00385-CV, 12/15/16.

01-16-00385-CV
RUSSELL LLOYD JUSTICE

United States Court of Appeals, Fourth Circuit

Gillespie v. Hernden, 04-15-00405-CV (4th COA. 12/14/2016

This appeal involved a dispute between two clients (appellants) and their two attorneys (appellees) over a written contingent fee contract and an oral fee-sharing agreement in an oil and gas case. Following obtaining a settlement for the clients, appellants sued arguing the contingent fee contract was unconscionable and the appellees should forfeit their fees. The trial court denied the appellants' traditional motion for summary judgment and granted the appellees' no-evidence and traditional motions. Because appellants did not meet their traditional motion's burden or provide any competent evidence in response to the appellees' no-evidence motion, the court affirmed the trial court's order. The court stated the summary judgment evidence disproved as a matter of law the very facts appellants had the burden to prove: that the contingent fee contract was unconscionable based on an unreasonable fee or a recovery greater than the appellants' recover, or that appellees breach their fiduciary duty to the appellants on those bases. Moreover, appellants failed to prove that the contract and resultant disbursement were instances of self-dealing or bestowed an improper benefit on appellees. Finally, the court held appellants received the protection of Tex. Disciplinary Rules Prof'l Conduct. R. 1.04(f) and that the oral fee-sharing agreement was not unconscionable. Gillespie v. Hernden, San Antonio Court of Appeals, Case No.: 04-15-00405-CV, 12/14/2016

04-15-00405-CV
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, First District

Stallworth v. Ayers, 01-16-00012-CV (TexApp Dist 12/06/2016)

Appellant sued his former appointed criminal counsel, appellee Randall Ayers, for breach of contract, breach of fiduciary duty, gross negligence, and violations of the Deceptive Trade Practices Act arising from his conviction in a criminal case. Appellee moved for dismiss under Texas Rule of Civil Procedure 91a, arguing that appellant's suit had no basis in law. The trial court granted the motion and dismissed the case. In two issue, appellant argued that appellee breached his employment contract and fiduciary duties owed to appellant. The court affirmed holding appellant failed to prove that appellee owed him a duty, appellee breached that duty, and the breach proximately caused appellant's injury causing damages. Further, appellant failed to demonstrate that but for appellee's breach of his duty, he would have prevailed in the underlying criminal case. Because appellant had not been exonerated for the underlying offense, his criminal conduct was the cause in fact of his conviction, and his claims against appellee were barred as a matter of law. As a result, appellant's claims against appellee had no basis in law and the trial court did no err in granting appellee's motion to dismiss. Stallworth v. Ayers, Houston 1st Court of Appeals, Case No.: 01-16-00012-CV, 12/06/2016

01-16-00012-CV
EVELYN V. KEYES JUSTICE

United States Court of Appeals, Fifth Circuit

United States of America v. Taylor Alan Mills, 16-40258 (5th Cir. 12/08/2016)

Appellant pled guilty pursuant to a plea agreement to coercion or enticement of a minor in violation of 18 U.S.C. §2422(b) and was sentenced to a 300-month term of imprisonment to be followed by a life term of supervised release. Appellant appealed his sentence, claiming that the district court should not have considered his prior Texas deferred adjudication for the purpose of enhancing his sentence and, in the alternative, that his 300-month sentence violated the Eighth Amendment. The court affirmed holding a sentence was enhanced under §4B1.5(a) when "the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction." Appellant argued that his deferred adjudication was not a prior "conviction" within the meaning of the statute. The court previously concluded that a Texas deferred adjudication counted as a "prior conviction" for purposes of 21 U.S.C. §841(b)(1)(A), because after receiving a defendant's guilty plea and hearing the evidence the trial court had to find that the evidence substantiated the defendant's guilt in order to defer proceedings without entering an adjudication of guilt. Further, the court found that appellant's sentence was not grossly disproportionate to his offense and therefore not a violation of the Eighth Amendment. The court affirmed the sentence imposed by the district court. United States of America v. Taylor Alan Mills, Fifth Circuit, Case No.: 16-40258, 12/08/2016

16-40258
STEPHEN A. HIGGINSON, CIRCUIT JUDGE

Court of Appeals of Texas, First District

Akhtar v. Leawood HOA, Inc., 01-15-00694-CV (TexApp Dist 12/08/2016)

Appellee, the homeowners' association for Leawood Condominiums sued appellant, owner of several units, sued following appellant's failure to pay an assessment for repairs of the property following Hurricane Ike. The justice of the peace conducted a bench trial and found appellant liable; the judgment was affirmed on appeal by the county court. Appellant now appealed arguing that the evidence was legally insufficient to support the county court's judgment. He maintained that the declaration required appellee to conduct a vote at a meeting of the development's unit owners and obtain a two-thirds vote approving any assessment. The court, taking the declaration words at their common meaning, affirmed holding the declaration's use of the word "shall" imposed mandatory, rather than discretionary, duties on appellee. Thus, appellee had no discretion regarding whether or not to repair the common elements, nor did it have any discretion as to how to pay for such repairs. The declaration further made an assessment mandatory in the event of a disaster requiring repair or reconstruction for which insurance proceeds were insufficient. Finally, the court held its decision is supported by Tex. Prop. Code §81.207(a) which requires unit owners to pay the difference between the cost of reconstruction and the insurance proceeds. As the evidence was legally sufficient to support the county court's judgment, the court affirmed. Akhtar v. Leawood HOA, Inc., Houston 1st Court of Appeals, Case No.: 01-15-00694-CV, 12/08/2016

01-15-00694-CV
REBECA HUDDLE JUSTICE

Court of Appeals of Texas, First District

International Association of Drilling Contractors v. Orion Drilling Co., 01-16-00187-CV (TexApp Dist 12/06/2016)

Orion Drilling and software firm Integrated Drive Systems sought discovery of the filer of an incident report with appellant International Association of Drilling Contractors. The report, issued on a form implicated Orion and Integrated. It claimed Integrated's software caused equipment to drop on an Orion rig, endangering workers. Orion and Integrated sought discovery of the reporter's name to depose him in anticipation of a lawsuit. Trial court authorized the deposition. Appellant appealed on grounds that the discovery would infringe on the reporter's First Amendment right to speak anonymously and that Orion and Integrated failed to show that their need for the information outweighed appellant's burden, as required by Texas Rule of Civil Procedure 202. The court first ruled that it had jurisdiction to hear the case because a discovery order against a third party not subject to litigation is final and appealable. On the First Amendment issue, the court cited Univ. of Pa. v. E.E.O.C., 493 U.S. 182 wherein the U.S. Supreme Court forced an independent third party to reveal the name of a speaker. It noted that, as in those cases, the reporter had provided his name to appellant, eliminating any realistic expectation of anonymity. Furthermore, it found that the form the reporter filled out guaranteed anonymity only for "safety alerts," not for other uses such as a deposition. The court also dismissed appellant's claims that it is protected from disclosing the name under the Texas Free Flow of Information Act and the Texas Citizens' Participation Act (both designed to protect whistleblowers) on the grounds that appellant did not properly raise these grounds during the initial proceedings. The court thus affirmed the trial court's order. International Association of Drilling Contractors v. Orion Drilling Co., Houston 1st Court of Appeals, No. 01-16-00187-CV, 12/6/16.

01-16-00187-CV
JANE BLAND JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Bobo v. Varughese, 06-16-00048-CV (TexApp Dist 12/09/2016)

Susan Bobo suffered injuries in a July 2012 car accident with Elezebeth Varughese. The trial court awarded Bobo just under $44,000 for damages, prejudgment interest, and court costs, which was less than 80 percent of the $55,000 Varughese offered during settlement negotiations. Because the amount fell below the 80 percent threshold, Varughese was entitled to recover litigation costs incurred after the offer, pursuant to Rule 167.2 of the Texas Code of Civil Procedure. Her costs were greater than $44,000, so the trial court entered a take-nothing judgment. Bobo appealed on the grounds that the trial court erred by accruing interest from June 15, 2013, instead of Jan. 26, 2013. The argument turned on the timing of correspondence between Bobo's attorney and Varughese's insurer, Geico. Bobo's attorney sent Geico a letter on July 27, 2012 notifying the insurer that he would document Bobo's claim upon completion of her medical treatment, and he sent full "Demand for Settlement" on Dec. 6, 2012. Bobo argued that the July 27 letter constituted a claim and that interest should therefore accrue from 180 days after the July 27 letter, not 180 days from the Dec. 6 letter, which the trial court used as its calculation point. The extra interest would push Bobo past the 80 percent threshold, allowing her to collect her award. Varughese argued that that prejudgment interest should not be considered for Rule 167.2 purposes, and argued in the alternative that the trial court used the correct date. The appeals court found that the July 27 letter constituted a claim and therefore ruled that interest should accrue from 180 days after that date. However, in a question of first impression, it ruled that only the damages portion of an award applies toward the 80 percent threshold. It found that defining "award" in this way under Rule 167.2 would align with other portions of Texas' civil-practice code, and also noted that including prejudgment interest in Rule 167.2 calculations would create a perverse incentive to delay final settlement of a case. Because the change in date would not affect the outcome of the case, the court ruled the trial court's error as to the date was non-reversible, and affirmed the take-nothing judgment. Bobo v. Varughese, Texarkana Court of Appeals, No. 06-16-00048-CV, 12/9/16.

06-16-00048-CV
RALPH K. BURGESS JUSTICE

Supreme Court of Texas

Laverie v. Wetherbe, 15-0217 (TexApp Dist 12/09/2016)

Respondent, a Texas Tech professor and associate dean, sued petitioner, a colleague, for defamation after he was passed over for promotion. Petitioner moved for summary judgment arguing respondent must name Texas Tech as a defendant and dismiss her from the suit. The trial court denied that motion and the court of appeals affirmed on the ground that petitioner failed to offer evidence she was not furthering her own purposes, rather than her employer's, when she made the allegedly defamatory statements. Respondent apparently conceded that petitioner possibly acted within the scope of her employment – he simply argued that it could not be known with certainty unless it was determined why she said what she said. The Supreme Court disagreed concluding petitioner was entitled to dismissal when she furnished conclusive evidence she was acting within the scope of her employment; she need not have offered evidence of her motives for making the allegedly defamatory statements. Nothing in the election-of-remedies provision or the statutory definition of "scope of employment" suggested subjective intent was a necessary component of the scope-of-employment analysis. Accordingly, the Supreme Court reversed the court of appeals and rendered judgment dismissing petitioner from respondent's suit. Laverie v. Wetherbe, Supreme Court, Case No.: 15-0217, 12/09/2016

15-0217
JEFFREY V. BROWN JUSTICE

Court of Appeals of Texas, Third District

Auspro Enterprises, LP, v. Texas Department of Transportation, 03-14-00375-CV (TexApp Dist 12/08/2016)

The appeals court overruled a trial court judgment ruling that the Texas High Beautification Act (the "Act") is constitutional, based on a subsequent Supreme Court ruling that a similar law in Arizona was illegal. The Texas case sprang from a 2011 incident in which appellant Auspro Enterprises placed a sign supporting Ron Paul's 2012 presidential campaign on its roadside property. The Texas Department of Transportation (the "Department") notified appellant that the sign violated the act, because the company did not have a permit and was not within the timeline for an exemption for political signs (90 days before an election until 10 days after). The trial court sided with the department; Auspro appealed; and the appeals court allowed him to abate his appeal until the Supreme Court resolved Reed v. Town of Gilbert (135 S.Ct. 2218). In Reed, the Supreme Court clarified that a law abridging speech is content-based, and therefore subject to strict scrutiny, if it differentiates between speech based merely on the topic of discussion, and not only on the viewpoint of the speaker. The Supreme Court rejected an Arizona law banning the display of any outdoor sign without a permit that had several carve-outs, including one for "temporary direction signs." (The town's repeated punishment of a church for running afoul of the law by leaving its event signs in place after its events were over gave rise to the case.) The Texas Appeals Court then reinstated Auspro's appeal and, based on Reed, declared the act to be content-based because of different provisions for political and other forms of speech. It also held that the Department could not meet strict scrutiny, finding that the act's approach to meet the state interests of aesthetic appeal and traffic safety were underinclusive because the act would allow potentially dangerous and/or unappealing signs without a permit at certain times. The court rejected the department's arguments that Reed did not apply and that the appeals court was nevertheless bound by a 2003 Texas Supreme Court precedent ruling the act constitutional (Texas Department of Transportation v. Barber, 111 S.W. 3rd 86). However, under Texas' severability doctrine, the court struck down only those sections of the Act regarding speech. Auspro Enterprises, LP, v. Texas Department of Transportation, Austin Court of Appeals, No. 03-14-00375-CV, 12/8/16.

03-14-00375-CV
JEFF ROSE, CHIEF JUSTICE

United States Court of Appeals, Fourth Circuit

In re David Gordon Lewis, 04-16-00591-CV (4th COA. 12/07/2016)

Relator David Lewis was sentenced to 90 days in jail for contempt of court during a divorce proceeding. The contempt charge sprang from alleged violations of a "Standing Order Regarding Property of Parties in Divorce and Suits Affecting the Parent-Child Relationship." He sought a writ of mandamus from the appeals court relieving him of the sentence. The court found that the standing order went into effect May 11, 2016, and that his wife Debra Lewis submitted evidence of incidents that occurred between Dec. 1, 2015, and Feb. 29, 2016, as evidence that he violated the order. Because the conduct pre-dated the standing order by several months, the court found that these actions could not have been in violation of the standing order, and granted conditional mandamus relief, ordering the trial court to vacate its order for enforcement of the contempt conviction. In re David Gordon Lewis, San Antonio Court of Appeals, No. 04-16-00591-CV, 12/7/16.

04-16-00591-CV
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, Eighth District

Burnett v. Lunceford, 08-14-00311-CV (TexApp Dist 12/07/2016)

Appellees filed an application for appointment of a successor guardian and sought to be appointed as guardian of Lynne Paxton's, a person of diminished capacity, person and estate. Paxton's sister, appellant, filed a contest to the application asserting that they were disqualified under §681 of the Texas Probate Code from serving as guardian as well as asserting appellees had an adverse interest or adverse claim to Paxton or her property as they were parties to a lawsuit concerning or affecting Paxton's welfare. The probate court agreed and held appellees were disqualified from appointment due to the lawsuit concerning or affecting the welfare of Paxton; the probate court appointed a professional guardian. Two year later, appellees filed a petition for bill of review to name the professional guardian as a party respondent. Appellants filed a motion for summary judgment alleging that the bill of review was barred by the two-year statute of limitations. The court affirmed the grant of summary judgment concluding that the limitations period began on the date the trial court rendered the order or judgment in question rather than the date the court signed the judgment or order. Further, at the conclusion of the hearing, the probate court unequivocally granted appellant's motion to disqualify appellees and, therefore, rendered its order at the hearing. Accordingly, the bill of review was untimely and the court affirmed the trial court's judgment. Burnett v. Lunceford, El Paso Court of Appeals, Case No.: 08-14-00311-CV, 12/07/2016

08-14-00311-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

United States of America v. Obed Torres-Hernandez, 15-41654 (5th Cir. 12/06/2016)

Appellant was charged under 21 U.S.C. §841(a)(1) and (b)(1)(C) with possession with intent to distribute 95 kilograms of marijuana, and he pled guilty to that offense. He was sentenced to 57 months of imprisonment and contended on appeal that because his participation in the drug trafficking offense was limited to carrying a bundle of marijuana on his back across the border between Texas and Mexico, the district court erred in failing to grant a downward adjudgment of his offense level. The court affirmed the district court's judgment holding appellant did not offer any evidence as to the participation, or expected participation, of others involved in the growing, further transportation, or intended sale of the marijuana. Further, there was no evidence as to whether appellant had a proprietary interest that would be a mitigating factor to a sentencing adjustment. Based on the record, the district court considered and rejected appellant's arguments, not because the district court was unaware of or failed to consider the factors in the commentary to §3B1.2, but because it weighed the factors and concluded that based on the offense charged and appellant's role in that offense as compared to the others identified, appellant was not entitled to an adjustment. The court affirmed the district court's judgment. United States of America v. Obed Torres-Hernandez, Fifth Circuit, Case No.: 15-41654, 12/06/2016

15-41654
OWEN, CIRCUIT JUDGE

Court of Appeals of Texas, First District

Texas Department of Family and Protective Services v. Mitchell, 01-16-00101-CV (TexApp Dist 12/08/2016)

Appellee filed suit against appellant, the Texas Department of Family and Protective Services, alleging that it fired her in an unlawful retaliation for filing a workers' compensation claim. Appellant filed a consolidated plea to the jurisdiction and motion to dismiss based on the doctrine of sovereign immunity. The trial court denied the plea and appellant appealed. The court affirmed holding the State Application Act held that designation of state agencies as employers for purposes of the Anti-Retaliation Law was a clear and unambiguous waiver of their sovereign immunity. The court reasoned that the designation of state agencies as employers for purposes of anti-retaliation claims would be meaningless if construed as anything other than consent to suit. For the same reason, the court rejected appellant's contention that it was shielded from suit by the Tort Claims Act's bar on intentional torts. Because the court held that state agencies were not immune from claims for financial damages under the Anti-Retaliation Law, appellee may seek to recover reasonable damages, including lost income and benefits. Accordingly, the court affirmed the trial court's order denying appellant's consolidated plea to the jurisdiction and motion to dismiss. Texas Department of Family and Protective Services v. Mitchell, Houston 1st Court of Appeals, Case No.: 01-16-00101-CV, 12/08/2016

01-16-00101-CV
MICHAEL MASSENGALE JUSTICE

Court of Appeals of Texas, First District

Jordan v. Hall, 01-16-00430-CV (TexApp Dist 12/06/2016)

Appellee sued alleging that appellant placed a defamatory and illegal political radio advertisement about him during appellee's mayoral campaign. Three days later and without service of the petition, appellant filed an answer with special exceptions. Appellant moved to dismiss the suit under the TCPA five months later, and the trial court denied the motion as untimely. On appeal, appellant contended the trial court erred by denying his motion as untimely because (1) the 60-day deadline to file a TCPA motion did not expire if a defendant was not served with process, and (2) the 60-day deadline was tolled by the trial court's order requiring appellee to replead in response to appellant's special exceptions. The court affirmed holding it was well-settled that the purpose of the TCPA was "to allow a defendant early in the lawsuit to dismiss claims that seek to inhibit a defendant's constitutional rights to petition, speak freely, associate freely, and participate in government as permitted by law." To interpret the statute as permitting a voluntarily appearing defendant to file a TCPA motion at any time would run counter to the purpose of the TCPA. As such, appellant's 60-day window began to run on the date on which he voluntarily appeared by filing an answer. Further, the court held the TCPA deadline did not reset when a plaintiff filed an amended petition that added no new claims and relied upon the same factual allegations underlying an original petition. Jordan v. Hall, Houston 1st Court of Appeals, Case No.: 01-16-00430-CV, 12/06/2016

01-16-00430-CV
REBECA HUDDLE JUSTICE

Court of Appeals of Texas, First District

Ortegon v. The State of Texas, 01-15-00880-CR (TexApp Dist 12/06/2016)

Appellant Frank Ortegon robbed a grocery store at gunpoint, also taking $300 from the clerk. A jury convicted him, and the court sentenced him to 40 years in prison, with a requirement that he pay the clerk $300 in restitution. Ortegon appealed, challenging the restitution requirement on the grounds that he elected to let a jury impose punishment and the jury did not include restitution in its punishment verdict. He argued that Texas Code of Criminal Procedure Rule 37.07 (allowing the accused to make this election) conflicted with Texas Rule 42.037 (authorizing restitution to victims). The court found no such conflict, noting that Rule 42.037 authorizes "the court" – not the jury – to order restitution, and noting that appellant cited no law providing that the jury specifically may order restitution and no case law supporting the notion of a conflict. The court also found that restitution serves other purposes in addition to punishment, chief among them that it returns the victim to his or her status quo, and therefore is not an issue reserved for the jury when deciding punishment. The court held that the trial court did not abuse its discretion in ordering restitution and affirmed the order. Ortegon v. The State of Texas, Houston 1st Court of Appeals, No. 01-15-00880-CR, 12/6/16.

01-15-00880-CR
EVELYN V. KEYES JUSTICE

Court of Appeals of Texas, Second District

Lindemann Properties, Ltd. v. Campbell, 02-15-00392-CV (TexApp Dist 12/08/2016)

Appellant sued seeking a declaration that appellee's radio-transmission tower easement terminated when he removed the original tower and replaced it with a new one. The trial court ultimately signed a take-nothing judgment in favor of appellee, concluding that the easement had not terminated, and awarded him attorney's fees. In three issues on appeal, appellant challenged the trial court's findings and conclusions regarding the easement, the denial of its related request for injunctive relief, and the award of attorney's fees. The court affirmed in part holding that the term "maintaining," as used in the easement, was broad enough to include the right to replace the tower when necessary; that the evidence was both legally and factually sufficient to show that the original tower's replacement was necessary; and that the easement did not terminate when appellee removed the original tower and replaced it with the new tower. However, the court held the trial court abused its discretion by awarding appellee unsegregated attorney's fees and sustained this part of appellant's challenges. Lindemann Properties, Ltd. v. Campbell, Fort Worth Court of Appeals, Case No.: 02-15-00392-CV, 12/08/2016

02-15-00392-CV
BILL MEIER JUSTICE

Court of Appeals of Texas, Third District

Westlake Ethylene Pipeline Corporation v. Railroad Commission of Texas, 03-15-00728-CV (TexApp Dist 12/07/2016)

Pursuant to a commission-issued permit, appellant owned and operated a pipeline that solely transports liquefied ethylene between Mont Belvieu and Longview, Texas. In July 2013, appellee filed a complaint with the commission alleging that appellant's new tariff, published and filed with the commission, was discriminatory. Specifically, appellee alleged that the 2013 tariff's cancellation of two pre-existing services was discriminatory because it provided an unreasonable preference and advantage in favor of another shipper that was its affiliate. Appellant appealed the district court's final judgment affirming a final order of appellees concluding that appellant's 2013 tariff was discriminatory and may not be enforced. The court affirmed holding discrimination included not only disparate treatment of similarly situated shippers but also the granting of an undue or unreasonable preference or advantage to a particular shipper. As concluded by the commission, the tariff's elimination of services did just that by "cutting off access to a market so that all other shippers on the pipeline are forced to sell or exchange their product with a shipper on that same pipeline with is affiliated with the pipeline." These fact findings were supported by substantial evidence and demonstrated that there was a reasonable basis for the commissions' determination that the tariff was discriminatory and provided an unreasonable preference or advantage. Westlake Ethylene Pipeline Corporation v. Railroad Commission of Texas, Austin Court of Appeals, Case No.: 03-15-00728-CV, 12/07/2016

03-15-00728-CV
DAVID PURYEAR, JUSTICE

Court of Appeals of Texas, First District

In the Matter of H.Y., 01-16-00501-CV (TexApp Dist 12/06/2016)

Appellant H.Y. was charged at age 16 with aggravated robbery with a deadly weapon. The juvenile court waived its jurisdiction and transferred the case to adult court, where appellant entered a plea agreement with a 10-year sentence that recognized his right to appeal the transfer order. He appealed and his case was remanded back to juvenile court, but he had turned 18 and the juvenile court again transferred the case. Appellant then appealed on grounds that Juvenile Justice Code §54.02(j) (allowing transfer of those 18 and older) violated the Equal Protection guarantees of the U.S. and Texas Constitutions; that the juvenile court improperly allowed certain evidence; and that the juvenile court abused its discretion by allowing the transfer on insufficient evidence. He argued §54.02(j) violated Equal Protection because children should be a suspect class and the law made it easier to transfer a child who committed a crime after procedural issues delayed trial until after the accused's 18th birthday. The court found a long line of precedent denying children as a suspect class, and the court furthermore noted that appellant sought extra protection for adults, not children. It therefore applied a rational-basis level of review and found Texas' law constitutional because appellant could not dispute the rational basis that the law allows the juvenile system to focus its facilities and resources on suspects under 18. Appellant also argued that the juvenile court allowed evidence the arresting officer gathered after arrest and before bringing him to a juvenile facility, which was improper because the law required him to immediately bring an underage suspect to a facility. The appeals court ruled the evidence was allowable because appellant did not object to its inclusion in other forms of evidence, such as the probation report. As such, any error in allowing the evidence was harmless. The court rejected appellant's argument along similar lines that the juvenile court had insufficient evidence of probable cause that he committed the offense when making its transfer order. It also rejected a due diligence argument, finding that the law on which appellant relied applied only to law enforcement, not the overall juvenile justice system, as appellant alleged. The appeals court affirmed the juvenile court's transfer order. In the Matter of H.Y., Houston 1st Court of Appeals, No. 01-16-00501-CV, 12/6/16.

01-16-00501-CV
REBECA HUDDLE JUSTICE

Court of Appeals of Texas, First District

Unocal Pipeline Company v. BP Pipelines (Alaska) Inc., 01-15-00266-CV (TexApp Dist 12/08/2016)

Appellant filed a suit for declaratory judgment seeking resolution of controversies arising from its withdrawal from the Trans-Alaska Pipeline System and the accompanying Trans-Alaska Pipeline System Agreement. The parties filed cross-motions for summary judgment regarding interpretation of the transfer provisions in the agreement. Appellant argued that the trial court erred in its construction of the transfer provisions in the agreement and in concluding that other portions of the dispute were not ripe. The court reversed holding the DR&R obligations under the right-of-way leases were not separable from the rest of the interest in TAPS. Accordingly, the court held the trial court erred in concluding that the DR&R obligations contained in the federal right-of-way were not transferred when a withdrawing owner like appellant withdraws from the TAPS agreement and transfers its interest to the remaining owners. DR&R obligations were transferred, but the NSV due to the withdrawing party to purchase an interest thus burdened was determined by subtracting the value of the DR&R obligations at the time of the transfer from the gross salvage value of the interest transferred. Further, the court reversed dismissal of appellant's claim for declaratory judgment seeking construction of the "shall pay" provision. Unocal Pipeline Company v. BP Pipelines (Alaska) Inc., Houston 1st Court of Appeals, Case No.: 01-15-00266-CV, 12/08/2016

01-15-00266-CV
EVELYN V. KEYES JUSTICE

Court of Appeals of Texas, First District

Jones v. Shipley, 01-16-00046-CV (TexApp Dist 12/08/2016)

While chaperoning a school field trip, appellee allegedly rushed toward a second grader and shook her finger at him while stating she would "get him." Appellants, the child's parents, sued for assault by threat of bodily injury. The trial court granted appellee's motion to dismiss under Tex. R. Civ. P. 91a which argued that there was insufficient support to sustain the cause of action. In their sole issue on appeal, appellants argued that the trial court erred by granting the motion. The focus in an assault by threat case was on the defendant's words and conduct, and the critical inquiry was whether a reasonable person under the circumstances would consider the words and conduct to be an objective threat of imminent bodily injury. The court affirmed holding appellee's alleged words and conduct did not amount to assault by threatening imminent bodily injury as a matter of law. The cases in which conduct has been held sufficient to constitute assault by threat of imminent bodily injury involved words and conduct that, viewed from the objective perspective of a reasonable person, constituted express and unambiguous threats of imminent bodily injury, frequently death. The act of walking "aggressively" toward the child and shaking her finger at him, together with the vague verbal threat to "get" him, did not support a reasonable inference in the mind of a reasonable person that appellee made an objective threat to inflict bodily injury. Jones v. Shipley, Houston 1st Court of Appeals, Case No.: 01-16-00046-CV, 12/08/2016

01-16-00046-CV
REBECA HUDDLE JUSTICE

Court of Appeals of Texas, Second District

Texas Workforce Commission v. Wichita County, 02-15-00215-CV (TexApp Dist 12/08/2016)

Appellee employed non-party Julia White beginning in 2006. White went on FMLA leave for depression and anxiety beginning on August 16, 2011. White applied to appellant for unemployment benefits when her paid leave extinguished. Appellee contested the claim on the basis that she was still employed and therefore could not receive benefits. Appellant reached an initial decision that White was entitled to benefits finding that "while she was on unpaid leave of absence she was considered unemployed." The appeal tribunal found that the Texas Unemployment Compensation Act entitled White to benefits as she was separated from her last employment and the employer could not make any accommodations based on her restrictions. The trial court reversed appellant's decision to grant unemployment benefits. On appeal, the court affirmed holding that White may not simultaneously enjoy the benefits of both the FMLA and Texas Labor Code. The court concluded that any other interpretation was unreasonable when construing §201.091(a)'s definition of "unemployed" together with §207.021's benefit eligibility requirements and with provisions of federal law. Texas Workforce Commission v. Wichita County, Texas, Fort Worth Court of Appeals, Case No.: 02-15-00215-CV, 12/08/2016

02-15-00215-CV
TERRIE LIVINGSTON CHIEF JUSTICE

Court of Appeals of Texas, Tenth

Eian Tilor Hurlburt v. The State of Texas, 10-15-00400-CR (TexApp Dist 11/30/2016)

Appellant Eian Tilor Hurlburt was indicted in four separate incidents of aggravated sexual assault of a child. The trial court found him guilty of all four offenses, sentenced him to 20 years in prison on each offense to be served consecutively, and assessed him $354 in court costs for each conviction. Hurlburt appealed the costs on the grounds that he should be forced to pay court costs for only one trial, rather than four, because he was convicted "in a single criminal action." The court found that Texas Penal Code § 3.02 "clearly states that when there are convictions of two or more offenses or of multiple counts of the same offense tried in a single criminal action, court costs cannot be assessed in each conviction." The court rejected the state's argument that "a single criminal action" is one springing from an individual filing instrument, noting that this definition conflicted with the statute. It also distinguished other cases in which multiple counts were heard separately and consecutively in a single court action, rather than joined. The court thus modified the trial court's order to delete $354 in court costs in three of the cases. Eian Tilor Hurlburt v. The State of Texas, Waco Court of Appeals, Nos. 10-15-00400-CR, 10-15-00401-CR, 10-15-00402-CR, and 10-15-00403-CR, 11/30/1016.

10-15-00400-CR
TOM GRAY CHIEF JUSTICE