Trial court did not abuse its discretion by denying appellants motion to disqualify the attorney because the appellants failed to establish that allowing attorney to represent the appellees would cause the appellants actual prejudice, based on his limited communication with the appellant
Busby v. Harvey
Courts, Election, Litigation: Personal Injury, Procedure, Professional Responsibility, Torts
Texas 2nd Court of Appeals
July 27, 2017
02-16-00311-CV
Terrie Livingston
Published
     The appellants owned a barrel-racing horse. They took the horse to the appellee doctor for a routine exam. The appellee doctor treatment started a course of events that resulted in severe injuries to one of the horse’s legs. The appellants brought claims against the appellees for negligence, gross negligence, veterinary malpractice, and breach of contract. The appellants filed a motion to disqualify the appellee's attorney. In the appellees’ response to the appellants motion to disqualify, the appellees contended in part. The trial court denied the appellants’ motion to disqualify the attorney. After the trial court’s decision concerning disqualification, the parties presented evidence and arguments to a jury. The jury found that no negligence of the appellee proximately caused an injury to the horse. In accordance with the verdict, the trial court signed a take-nothing judgment on the appellants claims against the appellees. The appellate court found that the record did not disclose any strategic or tactical advantage that attorney received and used based on his limited communication with the appellant. Thus, the court concluded that the trial court did not abuse its discretion by denying the appellants’ motion to disqualify the attorney because the appellants failed to establish that allowing attorney to represent the appellees would cause the appellants actual prejudice. Accordingly, the judgment was affirmed.


Trial court erred by excluding the proffered evidence, appellant’s reasons for the sexual assault complainant’s contradictions in her testimony and the reasons the testimony was unreliable, thereby violating the appellant’s constitutional right to present a defense
Golliday v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
July 27, 2017
02-15-00416-CR
Lee Ann Dauphinot
Published
     A jury convicted the appellant of sexual assault, charged in a single-count indictment. The jury assessed his punishment at two years’ confinement and recommended that imposition of sentence be suspended and that the appellant be placed on community supervision. The trial court sentenced the appellant accordingly, assessing a seven-year term of community supervision. The appellate court found that complainant’s testimony was contradictory and difficult to follow. But the appellant was not allowed to offer his reasons for the contradictions or his reasons that her testimony was unreliable. He was not allowed to present his defense or to fully impeach a complainant. Thus, the trial court erred by excluding the proffered evidence, thereby violating the appellant’s constitutional right to present a defense. Further, the evidence the appellant wanted the jury to hear was constitutionally required to be admitted. Thus, the trial court reversibly erred by excluding it and thereby preventing the appellant from presenting his defense to the jury. Accordingly, the judgment was reversed and remanded.


The evidence of appellant’s identity as the driver of the vehicle that sped through a school zone and was pursued by police but was not stopped was legally sufficient to establish appellant’s guilt for evading arrest with a motor vehicle
Jackson v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 27, 2017
14-16-00817-CR
Kevin Jewell
Published
     A jury found the appellant guilty of evading arrest with a motor vehicle. The appellate court found that the appellant did not complain in the trial court about the procedure underlying Deputy Constable (the officer)’s pretrial identification. He did not file a pretrial motion to suppress the identification, nor did he object at trial to the officer’s testimony regarding that identification. He has therefore waived any error concerning the admission of the officer’s pretrial identification. Further, the court found that the appellant cited no case authority supporting the notion that the Neil v. Biggers, 409 U.S. 188 (1972), factors controlled, or applied to, a legal sufficiency review of the evidence. Appellant was free to (and did) incorporate the Biggers factors into his trial strategy by emphasizing them on witness cross-examination and by arguing to the jury that it should consider the State’s identification evidence unreliable. His lawyer thoroughly cross-examined the officer about the allegedly incorrect information in the call log and how his identification would be affected by an adrenaline surge. As the sole judge of witness credibility, the jury alone decided whether to believe eyewitness testimony and resolved any conflicts in the evidence. The court would not substitute the judgment for that of the jury. Accordingly, the judgment was affirmed.


Fact appellee did not file certificate of merit with original pleading did not require dismissal with prejudice, where appellant conceded appellee’s conduct was not intentional or for an improper purpose, and appellant had not challenged denial of its motion to strike the certificate of merit
CDI Corp. v. Total Specialties USA, Inc.
Contracts, Damages, Oil, Gas, & Mineral, Procedure, Torts
Texas 14th Court of Appeals
July 27, 2017
14-16-00407-CV
Ken Wise
Published
     On October 28, 2015, the appellee filed the instant lawsuit against the appellant in the 11th District Court in Harris County. The appellee’s petition included claims for breach of contract, negligence, gross negligence, and fraud related to the construction of the appellee’s hydro de-aromatization unit at the appellee’s Bayport refinery in Pasadena, Texas. The trial court signed an order denying both the appellant’s motion to dismiss with prejudice and its motion to strike. The order noted that the case was dismissed without prejudice on March 31, 2016. The appellate court found that the mere fact that the appellee did not file the required certificate of merit with its original pleading does not, without more, require dismissal with prejudice. Further, in the instant case, the appellant stipulated that the appellee’s counsel was unaware of the statutory requirements of section 150.002 of the Texas Civil Practice and Remedies Code or its applicability to the case when it filed the petition, thus conceding that the appellee’s conduct was not intentional or for an improper purpose. A certificate of merit was obtained and filed with the appellee’s notice of nonsuit within four months after the appellant’s motion to dismiss notified the appellee’s counsel of the mistake. The appellee’s notice of nonsuit attached the 36-page certificate of merit and indicated that the appellee intended to refile its lawsuit to remedy the mistake, which was some evidence that the claims have merit. The trial court denied the appellant’s motion to strike the certificate of merit, and the appellant has not challenged that ruling on appeal. Considering the facts and circumstances of the instant case, the court concluded that the trial court did not abuse its discretion in denying the appellant’s motion to dismiss without prejudice. Accordingly, the court affirmed the trial court’s judgment.


Evidence was legally insufficient to establish causation for single-vehicle, tractor-trailer accident, in which the two passenger-drivers were killed, by appellant motor-carriers, where there was no evidence to indicate why the drivers drove off the roadway, aside from driver inattention
Moore Freight Services, Inc. v. Lorena Munoz
Evidence, Litigation: Personal Injury, Torts, Transportation
Texas 8th Court of Appeals
July 26, 2017
08-14-00254-CV
Ann Crawford McClure
Published
     The instant was a suit for wrongful death, survival, and exemplary damages brought pursuant to Civil Practice and Remedies Code Chapters 71 and 41, respectively, by the beneficiaries and family members of the decedents. At issue is an August 17, 2010, single commercial motor vehicle accident in Mitchell County, Texas, in which the decedents were killed after the tractor-trailer in which they were driving veered off the highway at a slight angle. The appellate court found that even if the first appellant had undertaken each step of the screening and qualification process, nothing in the first decedent’s background would have alerted the first appellant that hiring him would have created a risk of harm. The court concluded that the evidence was legally insufficient to support the jury’s finding that the first appellant caused the accident in question. The court concluded that the evidence was legally insufficient to hold the first appellant vicariously liable for the second appellant’s conduct because he was not acting in the course and scope of his employment at the time the accident occurred. There was no evidence from which a fact-finder could reasonably infer that the second decedent made the decision to allow the first decedent to drive. Further, the evidence showed that both the decedents were well-rested and in compliance with the FMSCRs reset period, any finding that the decedents were fatigued is unsupported by the evidence. Furthermore, the court agreed with the third appellant that there was legally insufficient evidence to support a finding that its failure to implement proper processes to qualify, screen, or monitor fatigue of its drivers caused the accident. a reasonably jury could infer that the second appellant dispatched the load on behalf of the third appellant. Nonetheless, because the evidence does not support a finding that the actions by the second appellant proximately caused the accident, the evidence was insufficient to hold the third appellant vicariously liable. Accordingly, the judgment was reversed and rendered.


Evidence was sufficient to support the fraud damages, but not the breach-of-contract damages, and the trial court did not abuse its discretion in refusing appellee’s proposed charge questions regarding the appellant individual's liability for fraud
Teclogistics, Inc. v. Dresser-Rand Group, Inc.
Appellate: Civil, Business, Contracts, Corporations, Damages, Torts, Transportation
Texas 14th Court of Appeals
July 27, 2017
14-16-00189-CV
Tracy Christopher
Published
     In the instant appeal from a jury trial on claims of breach of contract and common-law fraud, both sides challenged the judgment. The appellant company contended that no evidence supported the breach-of-contract and fraud damages assessed against it. A successful claimant, the appellee company argued that the trial court abused its discretion in failing to submit to the jury a question on the appellants' liability for fraud. The appellate court held that it agreed with the appellant company that the evidence was legally insufficient to support the jury’s finding of breach-of-contract damages. The evidence was sufficient, however, to support the fraud damages assessed against it. Further, regarding the appellee cross-appeal, the court held that the trial court did not abuse its discretion in refusing the appellee’s proposed charge questions regarding the appellant individual's liability for fraud. Thus, it modified the judgment to eliminate the award of damages for breach of contract. Accordingly, the judgment was affirmed.


Even if the sentence could be considered too harsh, 25 years for multiple robberies with co-defendants, appellant did not present evidence that it was unconstitutional, or so clearly wrong as to lie outside that zone within which reasonable persons might disagree
Randall v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 27, 2017
14-16-00451-CR
Ken Wise
Published
     The appellant pleaded guilty to engaging in organized criminal activity predicated on multiple robberies. The trial court assessed punishment and sentenced him to twenty-five years’ confinement. The appellate court found that the court would reverse a trial court’s decision on a motion for new trial only when the decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Further, the surveillance videos of the robberies show the robbers chasing customers or employees, forcing their way through a door, and threatening the victims with guns. Further, a Sprint store employee testified that because of various robberies, some employees had quit, and others would not work after dark or would panic when cars drove slowly by the store. Furthermore, balancing these factors, there was no inference of disproportionality that would justify comparing appellant’s sentence to those imposed on his co-defendants or other offenders. Even if the sentence could be considered too harsh, the appellant did not present evidence that it was unconstitutional. Finally, the trial court did not abuse its discretion by denying the motion for new trial and the appellant’s sole issue was overruled. Accordingly, the trial court's judgment was affirmed. 


Appellee attorney’s share of the construction defect judgment earned with the appellant attorney prepetition became part of the judgment creditors’ bankruptcy estate, and it was extinguished with the bankruptcy court’s asset sale order of the defective house
Lemon v. Hagood
Appellate: Civil, Bankruptcy, Contracts, Creditor/Debtor, Damages, Professional Responsibility, Torts
Texas 8th Court of Appeals
July 26, 2017
08-15-00309-CV
Ann Crawford McClure
Published
     The appellee acted as co-counsel alongside the attorney & the appellant in a construction defect case. The lawyers were ultimately successful in obtaining a substantial judgment for their clients. Everyone agreed that the appellee was entitled to twenty-five percent of the forty percent contingency fee for his role in the case, which equated to ten percent of the total recovery. The contingency fee issue became thorny, however, when both the judgment creditors and the judgment debtor went into bankruptcy. The case became more complicated still when the appellant was hired as special counsel in the judgment debtor’s bankruptcy case and recovered more than a million dollars for the bankrupt estate, much of which was used to pay part of the judgment that the appellee had helped to obtain. The appellant was paid a substantial attorney’s fee but nothing was paid to the appellee. Upset with the state of affairs, the appellee sued the appellant over the unpaid fee in state court. The appellate court held that it enforced statutes as written and refrained from rewriting text that lawmakers chose. Thus, it concluded that the exceptions pertain to the satisfaction period, and not the requirement to obtain a judgment. Further, because one of the exceptions in Tex.Bus.Orgs.Code Section 152.306(c) already included the concept of waiver, there was little violence to the underlying purpose of the statute if it be non-jurisdiction. Further, the jury heard testimony that the appellant had changed his position, by agreeing to, then denying, then again agreeing to the existence of the partnership, the appellant urged inconsistent positions that the jury might have believed was unconscionable. Furthermore, the reference to the appellant’s fee award was a convenient proxy for the jury to determine the value of what could have been awarded had the appellant protected the partnerships fee interest. Lastly, while a jury had some evidence to conclude that the appellant’s action with respect to the Fee Orders made collection by the attorney & the appellant partnership impossible, there was no similar evidence with respect to the Sale Order. The date of the Sale Order preceded the builders' bankruptcy, and rendered any actions based on the appellant’s conduct there irrelevant. Accordingly, the judgment was reversed and rendered.


Discovery rule did not apply, the four-year statute of limitations barred appellee company’s fraud action against its corporate officer, and settlement agreement barred appellant from recovering from the indemnified corporate officer as an indirect recovery from appellee
Sandt v. Energy Maintenance Services Group I, LLC
Contracts, Corporations, Damages, Procedure, Torts
Texas 1st Court of Appeals
July 27, 2017
01-15-01070-CV
Jane Bland
Published
     The appellant was a former officer and shareholder of the appellee, a closely held Delaware limited liability company. The appellee individual was the chief executive officer of the appellee company. In 2005, the appellant sued the appellee company and the appellee individual, among other officers of the company. While the appellant’s suit was pending, the appellee company’s board of directors agreed to indemnify the appellee individual for any liability arising out of or relating to the appellant litigation. The trial court entered judgment in the appellant’s favor. The appellee individual responded to the appellee company’s new claims against him by pleading the statute of limitations as an affirmative defense and moving for summary judgment on that ground. The appellee company replied and asserted the discovery rule, alleging that it did not discover the appellee individual’s wrongdoing until the company fired him in 2011. The trial court granted the appellee individual’s summary-judgment motion. The appellate court found that because the discovery rule did not apply, the four-year statute of limitations barred the appellee company’s fraud and fiduciary duty claims. Thus, the trial court properly granted summary judgment in the appellee individual’s favor on the claims. Further, the settlement agreement barred the appellant from recovering from the appellee individual because it would result in an indirect recovery from the appellee company, which was obligated to indemnify the appellee individual for the appellant judgment. Thus, the court held that the trial court properly interpreted the settlement agreement. Accordingly, the court affirmed the judgment of the trial court.


Appellee’s evidence did not conclusively establish either the appellant’s liability for embezzlement or the amount of the appellee’s loss, and the appellate court reversed the summary judgment and remanded the case for further proceedings
Esquivel v. Garcia
Appellate: Civil, Damages, Employment, Procedure, Professional Responsibility, Torts
Texas 8th Court of Appeals
July 26, 2017
08-16-00154-CV
Ann Crawford McClure
Published
     A claimant may obtain summary judgment on either liability, damages, or both by showing the absence of any genuine issue of material fact on issues. The appellee corporation later sued the appellant, alleging that she left with several receipt books reflecting payments by the firm’s clients, and that she embezzled approximately $4,000 per month over an undisclosed period. The petition sought monetary relief of $144,000 in loss of revenue and $56,000 in exemplary damages. The appellate court found that the appellee’s primary argument on appeal was that the appellant did not timely file a response to the summary judgment motion. The appellee then relied on Tex. R. Civ. P Rule 166a(c)’s provision that issues not expressly presented to the trial court by written motion, answer or other response should not be considered on appeal as grounds for reversal. That provision did not salvage an otherwise deficient traditional motion for summary judgment. Further, the quoted portion of Rule 166a(c) required the non-movant to timely raise any reasons that might avoid movant’s entitlement, such as those set out in rules 93 and 94, and he must present summary judgment proof when necessary to establish a fact issue. Furthermore, the non-movant would also need to object to the form of any of the affidavits or attachments made part of the summary judgment. However, the non-movant could, even without a response, argued that the movant never met its initial burden establishing the right to a traditional motion for summary judgment. Because the appellee’s evidence did not conclusively establish either the appellant’s liability or the amount of the appellee’s loss, the court sustained Issues One and Two. The court reversed the summary judgment and remanded the case for further proceedings.


Appointment of a receiver was new relief not connected to enforcement of the original temporary orders, and section 6.709(a) jurisdiction to grant such relief expired 30 days after perfection of appellant’s appeal, thus, trial court was without jurisdiction to appoint a receiver
Fuentes v. Zaragoza
Courts, Creditor/Debtor, Family, Procedure
Texas 1st Court of Appeals
July 27, 2017
01-17-00112-CV
Jane Nenninger Bland
Published
     The instant interlocutory appeal arose from the trial court’s temporary order appointing a receiver to monitor and preserve marital assets during the appeal of an underlying divorce decree between the appellee and the appellant. The appellant challenged the trial court’s jurisdiction to issue the temporary order appointing the receiver, the notice provided, and the sufficiency of the evidence. The appellate court found that the appointment of a receiver during an appeal from a divorce decree was governed by Family Code section 6.709, which explicitly required the appointed no later than 30 days from the date the appeal was perfected. Further, the appellee appeared to rely upon section 6.709(b)’s granting the trial court continuing jurisdiction to enforce its temporary orders and the appellee further claims that the trial court had continuing jurisdiction to appoint a receiver because the instant Court’s opinion called for a modification of the order, rather than a vacatur. The court addressed both of those arguments regarding jurisdiction outside of section 6.709(a) below. Because the appointment of a receiver was new relief not connected to the enforcement of the original temporary orders, section 6.709(b) did not apply. Rather, section 6.709(a) governed the trial court’s jurisdiction to grant such relief. As a result, it expired 30 days after perfection of the appellant’s appeal. Because the trial court’s appointment of a receiver was outside of the time allowed under section 6.709(a) and did not constitute enforcement of a timely order under section 6.709(b), the trial court lacked jurisdiction to appoint the receiver. The court opinion could not create jurisdiction that the trial court lacked by statute. Finally, the court held that the trial court’s appointment of the receiver was void for lack of jurisdiction and the court vacated the trial court’s orders appointing a receiver and creating a receivership.


Officer identified appellant as driver of vehicle evading arrest, marijuana found in car was admitted for a purpose other than character conformity, and officer’s expert testimony on appellant’s gang membership was sufficiently reliable and relevant to a material issue in the punishment phase
Phillips v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
July 27, 2017
01-16-00653-CR
Evelyn V. Keyes
Published
     The jury convicted the appellant of the third-degree felony offense of evading arrest with a motor vehicle and, after the appellant pleaded true to the allegations in two enhancement paragraphs, assessed his punishment at fifty years’ confinement. The appellate court found that because there was evidence that the State offered, and the trial court admitted, that extraneous offense for a purpose other than character-conformity, the court held that the trial court did not violate Rule 404(b) in allowing the marijuana evidence. Further, the State established that Sergeant had sufficient knowledge, experience, and training concerning street gangs in Houston, including the Bloods and specific Houston-area subsets of the Bloods, such that he could render an expert opinion on this topic. Furthermore, the trial court did not abuse its great discretion in determining that Sergeant was qualified to provide expert opinion testimony on gang membership and the trial court admitted photographs depicting the appellant’s extensive tattoos, tattoos which covered the majority of his body, and Sergeant testified concerning particular tattoos that, in his opinion, were connected specifically to the Bloods, Houston-based subsets of the Bloods, the Dead End Alliance, and general criminal activity. Thus, the fact that Sergeant did not testify concerning documented membership lists or rules and bylaws of the Bloods did not render his expert opinion unreliable. Finally, the Sergeant’s expert testimony concerning the appellant’s membership in the Bloods was sufficiently reliable and relevant to a material issue in the punishment phase, specifically, the appellant’s character, and was therefore helpful to the jury in deciding the appropriate punishment. The court therefore held that the trial court did not err by admitting Sergeant’s expert testimony concerning the Bloods and the appellant’s membership in a Houston-area subset of the Bloods. Accordingly, the trial court's judgment was affirmed.


Evidence was insufficient to support jury’s finding of no commercial bribery, and since jury did not award damages on defendant’s quantum merit claim, those verdicts were reversed and remanded, but appellants’ duties arose only under the contracts, and did not give rise to any independent duty
Cotter & Sons, Inc. v. BJ Corporation
Contracts, Corporations, Damages, Litigation: Commercial, Torts
Texas 4th Court of Appeals
July 26, 2017
04-16-00186-CV
Patricia O. Alvarez
Published
     The appellee corporation sued the appellants for breaching the appellee’s contracts to provide janitorial services to buildings belonging to the appellant entities, quantum meruit, and negligent and fraudulent misrepresentation. With regard to the breach of contract claim, the appellants raised the affirmative defense of commercial bribery. In addition, the appellant company asserted claims against the appellants for breach of fiduciary duty and conspiracy. Based on a jury’s findings, the trial court entered a judgment awarding the appellee damages for its breach of contract and negligent misrepresentation claims. The appellate court found that given the express terms of the Asset Purchase Agreement and the Contracts, which were all executed on the same day, and the appellee’s president's testimony that he knew the appellant individual was a vice president of the appellant company, the evidence was factually insufficient to support the jury’s finding that the Contracts were not procured by bribery based on the definition of bribery included in the jury charge. Further, the evidence established that, for each of the appellee’s complained of injuries, the appellee was injured by the appellant company’s failure to pay the appellee under the terms of the Contracts. Viewing the evidence in the light most favorable to the finding, the court found the appellee did not suffer an independent injury. Further, there was no evidence that the appellant company had a separate, independent duty outside of the Contracts to pay the appellee for equipment the appellee purchased to perform the janitorial services, to make monthly payments to the appellee, or to continue the janitorial contracts for any period of years. Based on the record, the appellant company’s duties to the appellee arose solely from the Contracts, and there was no evidence that the appellant company breached any independent duty to the appellee. Next, because the court reversed the portion of the trial court’s judgment on the appellee’s breach of contract claim upon which the trial court’s judgment was based, the quantum meruit claim must also be remanded to the trial court. Also, the court rejected Appellants’ argument that quantum meruit recovery was barred by an illegal contract. Finally, the appellee was not entitled to attorney’s fees because its breach of contract claim and alter ego theories were not supported by the evidence. Accordingly, the judgment was reversed, rendered and remanded.


Because Texas courts may exercise personal jurisdiction over appellant because appellee’s claims arose from or relate to appellant’s purposeful Texas contacts, the trial court did not err in reconsidering its order granting the appellant’s special appearance and denying the special appearance
Moring v. Inspectorate America Corp.
Business, Employment, Intellectual Property, Procedure, Torts
Texas 14th Court of Appeals
July 25, 2017
14-16-00898-CV
Kem Thompson Frost
Published
     In the instant appeal of a special-appearance denial, the court addressed personal jurisdiction in the context of allegations that a non-resident former employee wrongfully acquired, used, or transmitted alleged confidential information as part of a scheme to solicit and steal a Texas company’s Texas-based customers. The appellant raised two appellate issues first Inspectorate waived its objection to the trial court’s order granting the appellant’s special appearance, and the appellant was not subject to personal jurisdiction in Texas. The appellate court found that the facts surrounding the appellant’s alleged use of Inspectorate’s confidential information to get business in Texas from Texas consumers of Inspectorate’s services comprise the crux of the appellant’s purposeful contacts with Texas and would be the focus of Inspectorate’s claims against the appellant at trial. Further, Inspectorate’s claims arose from or relate to the appellant’s purposeful Texas contacts, and a substantial connection existed between those contacts and the operative facts of the litigation. Exercising personal jurisdiction over the appellant did not offend traditional notions of fair play and substantial justice. Finally, the trial court did not err in denying the appellant’s special appearance. Because Texas courts may exercise personal jurisdiction over the appellant in the instant case, the trial court did not err in reconsidering its order granting the appellant’s special appearance and denying the special appearance. Having found no error, the court affirmed the trial court’s denial of the appellant’s special appearance.


Defendant teacher failed to establish the principal took defendant’s cell phone for any purpose other than to turn it over to law enforcement, thus, the trial court erred in suppressing photographs, evidence, and data obtained from the subsequent search of defendant’s cell phone by police
State v. Ruiz
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 26, 2017
04-16-00226-CR
Patricia O. Alvarez
Published
     The instant case stems from the appellee's ten-count indictment charging the appellee with attempted production of sexual performance by a child. The trial court granted the appellee’s motion to suppress and excluded all photographs, evidence, and data obtained from the search of the appellee’s cell phone. The appellate court found that after taking possession of the photographs, the photographs were turned over to the police and the owners identified. Further, the court explained that if the photographs had not been evidence of a crime, law enforcement would have returned the photographs to Stone and the court concluded that the Texas Code of Criminal Procedure article 38.23 did not require the exclusion of the photographs. Further, the photographs obtained by the babysitter in Stone, the Principal believed the cell phone contained images involving minor, female students, that was evidence of criminal wrongdoing, and took possession of the cell phone with the intent of turning it over to the police. Furthermore, the appellee failed to establish that article 38.23(a) applied to the principal. Because the statute did not apply, the trial court erred in suppressing the photographs, evidence, and data obtained from the subsequent search of the appellee’s cell phone by the Castle Hill Police Department officers. Additionally, because article 38.23 did not apply, the question of exigent circumstances was of no consequence. Accordingly, the trial court erred in concluding that the information taken from the appellee’s cell phone was fruit of the poisonous tree. Finally, the court therefore, reversed the trial court’s order granting the motion to suppress and remanded the instant matter to the trial court for further proceedings.


The appellant’s evidence, demonstrating that the appellee knew of the neighbor’s guard dogs’ aggressive nature was sufficient to withstand the appellee landlord’s no-evidence motion for summary judgment
Bolton v. Fisher
Landlord and Tenant, Litigation: Personal Injury, Torts
Texas 6th Court of Appeals
July 26, 2017
06-16-00082-CV
Ralph K. Burgess
Published
     While walking to her mailbox on July 10, 2014, the appellant was viciously attacked by two dogs owned by her neighbor. After undergoing seven surgeries as a result of the attack, the appellant sued the neighbor and her appellee landlord, and asserted separate causes of action for negligence, strict liability, public nuisance, and private nuisance. Among other things, the appellant’s petition alleged that the appellee knew the neighbor was harboring aggressive dogs on her property, but failed to use reasonable care to prevent the attack. The appellate court found that the appellant’s evidence, demonstrating that the appellee knew of the neighbor’s guard dogs’ aggressive nature was, when viewed in the light most favorable to the appellant, sufficient to withstand the appellee landlord’s no-evidence motion for summary judgment. Further, the appellee established his entitlement to summary judgment on the issue of legal duty as a matter of law and the traditional motion for summary judgment was improper. Furthermore, the court sustained the appellant’s first point of error and overruled the trial court’s summary judgment on the appellant’s negligence claim. Because the appellee could not be held strictly liable for the injuries caused by the neighbor’s dogs, the court overruled the appellant’s second point of error, and concluded that summary judgment was properly granted on her strict liability claim. Finally, the trial court properly granted summary judgment on the appellant’s separate causes of action for public and private nuisance. Accordingly, the court reversed the trial court’s decision to grant summary judgment in the appellee’s favor on the appellant’s negligence claim and remanded the matter to the trial court for further proceedings and the court affirmed the remainder of the trial court’s judgment.


Legally sufficient evidence supported continuous sexual abuse of a child; appellant and his trial counsel viewed the venire panel while making peremptory strikes; and even if jury charge erroneously lacked a necessary instruction, appellant was not egregiously harmed by the omission
Dwyer v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 26, 2017
04-15-00805-CR
Luz Elena D Chapa
Published
     A jury convicted the appellant for continuous sexual abuse of a child and aggravated sexual assault of a child. The appellate court found that the victim’s testimony showed the “touching” incidents started as early as January 2011, continued through June 6, 2012, and occurred on numerous occasions during some weeks. The court therefore held a rational jury could have found the appellant had engaged in an act of sexual abuse with the intent to arouse or gratify his sexual desire on more than one occasion over a period of greater than thirty days. Further, the court found that the appellant argued he should have been afforded an opportunity to observe the venire panel’s reactions to his peremptory strikes, but a venire member’s reaction to the parties’ exercise of peremptory strikes was not a “view on an issue applicable to the case.” The court held the trial court did not abuse its discretion by denying the appellant’s request to require the members of the venire panel to remain in their assigned seats while he made his peremptory strikes. Furthermore, the alleged aggravated sexual assault “occurred outside of the period in which the alleged continuous sexual abuse of a child was committed.” Consequently, a double jeopardy violation was not apparent on the face of the record as required for reversal of the appellant’s conviction. Lastly, the court concluded that even if the jury charge erroneously lacked a necessary instruction, the record as a whole showed the appellant was not egregiously harmed by the omission. Accordingly, the court affirmed the trial court’s judgment.


Appellee homeowners’ association failed to establish that it had authority to compel residents to contract with a single waste collection provider chosen by its board, thus, trial court erred in granting summary judgment in favor of appellee and in denying appellant’s motion
C.A.U.S.E. v. Village Green Homeowners Association, Inc.
Contracts, Corporations, Real Property, Torts
Texas 4th Court of Appeals
July 26, 2017
04-16-00329-CV
Rebeca C. Martinez
Published
     Appellant challenged the trial court’s order granting the motion for summary judgment filed by the appellee Homeowners Association as well as the order denying the partial motion for summary judgment filed by the appellant. The underlying issue was whether the appellee was authorized to compel the owners and residents within the subdivision to use and pay for a particular waste and recycling collection provider to the exclusion of all other service providers. The appellate court reading the appellee’s Declaration of Covenants, Conditions, and Restrictions (“the Declaration”) in its entirety, saw no clearly worded intent expressly allowing the appellee's Board of Directors (Board) to choose one trash collector for the entire neighborhood to the exclusion of all others. The court thus held that the appellee failed to establish as a matter of law that it has the right to compel residents to contract with a single trash collector chosen by the Board. Accordingly, the court reversed the judgments of the trial court, and rendered judgment that, based on the record, the appellee did not have the authority to compel owners or residents within the subdivision to use the services of a service provider chosen by the Board.  


Only assertion of misrepresentation was that appellant employer lied when it claimed arbitration was faster and less costlier, which did not support a procedural unconscionability claim, and record was not sufficiently developed to adjudicate appellee employee’s illusory contract theory
Whataburger Restaurants LLC v. Cardwell
ADR, Contracts, Employment, Procedure, Torts
Texas 8th Court of Appeals
July 26, 2017
08-13-00280-CV
Ann Crawford McClure
Published
     The appellee claimed she was injured while working in the course and scope of her employment with the appellant when an object struck her on the head. She filed suit alleging a common law negligence cause of action against the appellant, which was a non-subscriber under the Texas worker’s compensation system. The appellant answered and then moved to compel arbitration. The instant was an interlocutory appeal from the denial of a motion to compel arbitration. The trial court denied the motion based on extensive findings supporting some of the appellee’s claims that the arbitration agreement was unconscionable. The appellate court found that there was no dispute raised about the appellee’s ability to understand the document. The only assertion of any misrepresentation was that the appellant lied when it claimed arbitration allowed the dispute to be resolved more quickly and at less expense. The record simply did not support a procedural unconscionability claim. Further, the record was undeveloped. The appellee’s illusory contract theory was barely a page of her thirty-page objection to arbitration. It garnered a bit more prominence at the hearing, but it was at best addressed with only a single glancing blow in one of the trial court’s twenty-seven findings of fact. Whether a contract was illusory was often a fact intensive inquiry. Accordingly, the judgment was remanded.


Though children can't live with their father in prison, that fact alone was not sufficient to justify termination; thus, Department failed to carry its burden of proof by clear-and-convincing evidence of Holley factors that termination of parental rights was in the best interest of the children
In re B.D.A.
Civil Rights, Family, Gov't/Administrative, Juvenile
Texas 1st Court of Appeals
July 24, 2017
01-17-00065-CV
Michael C. Massengale
Published
     The instant was an appeal from a decree terminating the parental rights of an incarcerated father, the appellant with respect to his three biological children. The appellant father contended that the evidence was insufficient to support the trial court’s decree. The appellate court found that the children could not live with their appellant father in prison, but that fact alone was not sufficient to justify terminating their last formal legal connection to their natural family. Evaluating the evidence in light of the Holley v. Adams factors used to evaluate whether termination of parental rights was in the best interest of the children, the court found that the appellee department failed to carry its burden of proof by clear-and-convincing evidence. Accordingly, the judgment was reversed and remanded.


Evidence showed a firearm in a closed bag between appellant’s feet on the floorboard of a vehicle, which was driven and owned by someone else, and fact appellant was in an enclosed space with proximity was insufficient to link appellant to the firearm to establish possession
Harris v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 26, 2017
04-16-00681-CR
Marialyn Price Barnard
Published
     A jury convicted the appellant of unlawful possession of a firearm by a felon. The trial court sentenced the appellant to fifteen years’ confinement. The appellate court found that the combined force of the evidence, even when viewed in the light most favorable to the verdict, did not permit a finding of guilt. In essence, the evidence showed a firearm in a closed bag between the appellant’s feet on the floorboard of a vehicle, which was driven and owned by someone else. Thus, other than the fact that the appellant was in an enclosed space a vehicle the other evidence showed only proximity, which was insufficient to link the appellant to the firearm to establish possession. Accordingly, the judgment was reversed and rendered.


Officer was a witness to the child complainant’s outcry, and complainant did not preserve his Confrontation Clause argument; any admission of complainant’s hearsay by forensic examiner was harmless; and assessment in the cost bill of witness and mileage fees was not unconstitutional
Merrit v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 25, 2017
14-16-00426-CR
Ken Wise
Published
     A jury found the appellant guilty of aggravated sexual assault of a child and assessed punishment at 20 years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice. The appellate court found that the appellant did not timely and specifically object when the State offered the officer's testimony concerning the complainant’s outcry, either at the hearing or during trial. Generally, to preserve error for appellate review, a party must made a timely and specific objection in the trial court. Further, a violation of the right to confrontation was an error of constitutional dimension, rather than a structural error, and was subject to a constitutional harm analysis. Furthermore, the appellant preserved error only as to the forensic interviewer's affirmation that the complainant told her she had been sexually abused by an unnamed individual. The officer testimony, while differing in some details, supported the complainant’s testimony that she was sexually abused, and the doctor explained the circumstances that could cause a child to delay or only partly disclose the details of the abuse. It was for the jury to assess the credibility of the witnesses, including the appellant and defense witness, when weighing the evidence. And, the prosecutor mentioned the forensic interviewer’s testimony only briefly in closing arguments. Thus, it concluded that any error did not influence the verdict or had only a slight effect. Lastly, the appellant had not met his burden to show that his constructive notice that if convicted he would be assessed the witness and mileage fees had the actual effect, as applied to him, of denying him compulsory process or confrontation of the witnesses against him. Accordingly, the judgment was affirmed.


Evidence showed appellant possessed child pornography in his home, court’s instructions corrected FBI agent's comments about an extraneous offense, search warrant was particular and showed probable cause, and State's argument regarding parole law during punishment phase was not improper
Ballard v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
July 25, 2017
01-15-00275-CR
Michael C. Massengale
Published
     A jury convicted the appellant of possession of child pornography. The jury assessed punishment at 13 years in prison and a fine of $10,000. The appellate court found that viewing the totality of the evidence and inferences in a light most favorable to the verdict, the jury reasonably could have inferred that the appellant knowingly had care, custody, control, or management of the child pornography found on the digital devices in his home. Further, the trial court, observing the exchange, could have concluded that the testimony was elicited unintentionally by the State and, given the totality of the circumstances, was not calculated to inflame the minds of the jury or of such damning character that it would be impossible to remove the harmful impression from the jury’s mind. Next, the appellant had not shown that he was harmed as a result of the officers’ failure to provide him with a copy of the attachments incorporated into the warrant by reference prior to conducting the search of his home. Finally, the prosecutor did not make any arguments regarding how parole law would operate with respect to the appellant. Thus, the prosecutor’s statements in the instant case were not improper, and the trial court did not err by overruling the appellant’s objection. Accordingly, the court affirmed the judgment of the trial court.


Appellant’s actions in arresting suspect and fatally shooting him while serving as a “courtesy officer” in exchange for free rent at an apartment complex in Harris County were not conducted within the general scope of his employment as a police officer in Grimes County
Garza v. Harrison
Appellate: Civil, Employment, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
July 25, 2017
14-16-00615-CV
William J. Boyce
Published
     The appellant was employed as a peace officer by the City of Navasota Police Department in Grimes County. The appellant entered into an agreement with an apartment complex to serve as a courtesy officer in exchange for free rent. The apartment complex was located in Harris County. The instant was an interlocutory appeal from the trial court’s order denying the appellant's motion to dismiss filed pursuant to Texas Civil Practice and Remedies Code section 101.106(f). The principal issue presented was whether the appellant, a police officer for a city in Grimes County, was acting within the scope of his employment when he fatally shot a suspect in Harris County while attempting to arrest him. The appellate court held that determining whether the officer was immune was a context-specific inquiry that depended on the circumstances of the particular case and whether those circumstances dictate that the officer had a duty to act. Further, having concluded that the appellant’s actions were not conducted within the general scope of the appellant’s employment by the City of Navasota, the court found that the trial court did not err in denying the appellant’s motion to dismiss under section 101.106(f). Accordingly, the trial court’s order denying the appellant’s motion to dismiss was affirmed.  


Trial court did not abuse its discretion by ordering that deceased lawyer’s estate representative was entitled to receive copies of deceased’s correspondence because representative was entitled to gather documents that deceased was entitled to have to pursue claims benefitting the estate
In re Cokinos
Discovery, Evidence, Professional Responsibility, Wills/Trusts/Probate
Texas 5th Court of Appeals
July 25, 2017
05-16-01331-CV
Bill Whitehill
Unpublished
     An estate representative was required to obtain possession of estate records and assets and, where reasonable, pursue estate claims against third parties. The primary question was whether the trial court clearly abused its discretion by ordering the estate representative for a deceased lawyer be given access to correspondence to which the deceased lawyer was a party where that correspondence may be relevant to a fee-sharing dispute between the estate and a law firm. In the instant original proceeding, the relator sought relief from an order compelling the relator to produce, pursuant to a protective order, all e-mails between the decedent and the relator related to the Lawsuit. The relator maintained that the trial court abused its discretion by compelling production of the e-mails because they were privileged attorney–client communications and/or subject to the work product doctrine. The appellate court found that assuming that the correspondence was subject to a privilege, an issue not before the court, that privilege would only prevent discovery by third parties, not discovery by a party to the communication. Additionally, because an executor was a personal representative who stood in the decedent’s shoes, the Estate was entitled to copies of the decedent’s e-mail correspondence just as he would be entitled to the e-mails if he were alive Indeed, where it was reasonable to do so, the estate representative was to exercise ordinary diligence to collect all claims and debts due the estate. The Estate, thus, had a duty to seek out the communications to determine if fees were owed to the Estate and litigate if necessary to recover those fees. The trial court thus did not abuse its discretion by compelling production of the e-mails as it did. Accordingly, the court denied the relator’s petition for writ of mandamus.


Trial court’s pretrial denial of appellant’s motion to suppress evidence was not void for bias from judge’s personal knowledge of officer’s habitual patrol of the road, but some imposed court costs were unconstitutional because they did not relate to administration of the criminal justice system
Casas v. State
Constitution, Courts, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
July 20, 2017
02-16-00122-CR
Lee Gabriel
Published
     Appellant challenged his conviction for driving while intoxicated. The appellate court concluded that the trial judge’s comments did not demonstrate a structural bias or partiality such that the community-supervision order was rendered void as a violation of the appellant’s right to due process. But the cost imposed under Tex. Code Crim. Proc. Ann. article 102.0185 did not direct that the funds be used in the manner that would make it a court cost, rendering it facially unconstitutional. Therefore, the court modified the trial court’s community-supervision order to change the assessed court costs to $295.10, subtracting the $100 emergency-services cost from the $395.10 assessed. Accordingly, the court affirmed as modified the trial court’s community-supervision order.


The court presumed that the omitted evidence from the trial showed that the trial evidence did not conclusively prove that the applicable statute of limitations barred the appellees claims, and the order granting a new trial based on appellees’ attorney’s negligence was not reviewable
Nelson v. Gulf Coast Cancer and Diagnostic Center at Southeast, Inc.
Contracts, Evidence, Health Care, Procedure, Torts
Texas 14th Court of Appeals
July 20, 2017
14-16-00589-CV
Ken Wise
Published
     The appellees sued the appellants for theft, conversion, and fraud by nondisclosure. The appellee M.D. alleged that the appellant individual would use the appellee's agency number to order medications and contrast agents without the appellee's knowledge or permission. Two years later, the appellants filed a no-evidence motion for summary judgment. The trial court granted the appellants summary-judgment motion, dismissing all of the appellees claims for lack of a response. After exhausting the administrative remedies, after a bench trial, the trial court signed a final judgment in favor of the appellees. The appellate court found that when an appellant completely failed to file a statement of points or issues, an appellate court must presume that the omitted portions of the record were relevant to the disposition of the appeal and that they supported the trial court’s judgment. Therefore, the court presumed that the omitted evidence from the trial showed that the trial evidence did not conclusively prove that the applicable statute of limitations barred the appellees claims. Further, when a motion for new trial was granted, it becomes moot as to any effect it may have on a subsequent judgment. Consequently, an order granting a new trial within the trial court’s plenary power was generally not subject to review either by direct appeal from that order, or from a final judgment rendered after further proceedings in the trial court. Two exceptions to the general rule had been recognized: when the trial court’s order was void and when the trial court erroneously concluded that the jury’s answers to special issues were irreconcilably in conflict. Accordingly, the court affirmed the trial court’s judgment.


Appellee employee screening company established that it either did not owe or did not breach duties the appellants alleged it owed to the appellants, surviving family members of the employer’s manager that the employee killed at work three months after being hired
Kuentz v. Cole Systems Group, Inc.
Contracts, Damages, Employment, Litigation: Personal Injury, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
July 20, 2017
14-15-01031-CV
Ken Wise
Published
     Three months after being rehired by a car dealership, a salesman shot and killed his sales manager at work. The appellants, the manager’s family, sued the salesman, several dealership-related entities, and the appellee, an employment screening company that performed a pre-employment background check on the salesman. The trial court granted the appellee's traditional and no-evidence summary judgment motion on the appellants’ negligence claims. The appellate court found that the appellee did not make hiring recommendations, and it was up to the company to determine whether the individual's misstatements concerning his employment history disqualified him from employment at the company based on its own guidelines. Lastly, the appellee established that it either did not owe or did not breach the duties the appellants alleged it owed, and the appellants raised no genuine issue of material fact precluding the trial court’s summary judgment in the appellee's favor. Accordingly, the court affirmed the trial court’s judgment.


Appellant did not have a legitimate expectation of privacy of the location of his cell phone in public place as revealed by tracking it, and affidavit to search Facebook data recited facts from which it was reasonable to conclude evidence of a crime would be discovered on his Facebook account
Sims v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 20, 2017
06-16-00198-CR
Josh R. Morriss III
Published
     Early in the afternoon of December 18, 2014, the body of the appellant's grandmother was discovered on the back porch of her Powderly, Texas, home with a bullet in her head. After the denial of the appellant’s various motions to suppress evidence, he and the State entered into a plea agreement, under which the appellant pled guilty to the appellant's grandmother’s murder and was sentenced to thirty-five years’ imprisonment. The appellate court found that the real-time tracking data appeared to have been used to track the appellant to exclusively public places a public highway between McAlester and Sapulpa, Oklahoma, and a public parking lot of a Sapulpa truck stop, across the highway from the motel in which the appellant and the appellant's girlfriend were ultimately found. Further, the appellant did not have a legitimate expectation of privacy of the location of his cell phone in those locations. Therefore, there was no Fourth Amendment violation in that regard. Further, there was reason to believe that information gained from the appellant’ cell phone would be useful in the investigation. Furthermore, the affidavit seeking a warrant to search the appellant Facebook data, likewise, recited various facts, though its recitations were thinner than the facts set out in the cell phone affidavit. Finally, it was reasonable to conclude, from the four corners of the affidavit that there was a fair probability that evidence of the crime would be found on the appellant’ Facebook account. That supported the trial court’s finding of probable cause for the issuance of the search warrant for the appellant’ Facebook data. Accordingly, the trial court's judgment was affirmed.


Appellant’s right to a speedy trial was not violated because he acquiesced to the delay when he became a fugitive, however, it could not be discerned beyond a reasonable doubt that State’s failure to elect which criminal act it relied upon to pursue a conviction had no effect on jury’s verdict
Garcia v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 20, 2017
14-16-00242-CR
William J. Boyce
Published
     A jury convicted the appellant of aggravated sexual assault of a child, and the trial court sentenced him to 45 years’ confinement and a $10,000 fine. The appellate court found that the appellant’s right to a speedy trial was not violated, largely because he acquiesced to the delay when he became a fugitive. However, the court were not convinced beyond a reasonable doubt that the State’s failure to elect which act it relied upon to pursue a conviction had no or but slight effect on the jury’s verdict. Accordingly, the judgment was reversed and remanded.


Appellant was not harmed by denial of his motion for a continuance to investigate officer on scene who retrieved the hand gun and had a history of misconduct, and appellant failed to show a reasonable probability that victim’s children’s courtroom conduct interfered with the jury’s verdict
Guerrero v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 20, 2017
14-16-00353-CR
Marc W. Brown
Published
     The jury assessed the appellant’s punishment at confinement for 99 years in the Institutional Division of the Texas Department of Criminal Justice. The appellant challenged his murder conviction. The appellate court found that there was no showing what testimony a continuance would have permitted the appellant to discover and produce, or to further develop on cross-examination. The appellant had failed to show what substantive difference the denial of the continuance made. Thus, the appellant had not shown he was harmed by the denial of his motion for continuance such that the trial court abused its discretion. Further, the remainder of the appellant’s videotaped statement was published to the jury without incident. The court could not conclude that the children's behavior during the appellant’s statement was of such a nature that the jury could not ignore it and fairly examined the evidence in arriving at a verdict. The appellant failed to show a reasonable probability that the conduct interfered with the jury’s verdict. Thus, the trial court did not abuse its discretion by denying the appellant’s motion for a mistrial. Accordingly, the judgment was affirmed.


Exclusivity provision in revised operating agreement had expired and appellant was no longer contractually obligated to supply the LLC with hybrid papayas, but, since the LLC was technically still in existence, there was a basis for injunctive relief preventing disclosure of its trade secrets
Super Starr International, LLC v. Fresh Tex Produce, LLC
Agricultural, Business, Contracts, Corporations, Intellectual Property, Litigation: Commercial, Procedure, Torts
Texas 13th Court of Appeals
July 20, 2017
13-16-00663-CV
Nelda V. Rodriguez
Published
     The appellee filed an original petition and application for injunctive relief. The appellee then sought and the trial court signed, a temporary restraining order. The trial court set the matter for a temporary injunction hearing. The trial court granted the appellee a temporary injunction order against the appellants that mandates and prohibits certain commercial conduct and requires the preservation of electronic information. The appellate court found that the appellee presented no evidence that conclusively negates the plain text of the business organizations code and the operating agreements, both of which require the instant court to determine as a matter of law that the LLC was solely a limited liability company, not a partnership. Further, the court agreed with the appellants that Tex. Bus. Orgs. Code Ann. section 15.1 clearly and unambiguously provides that the exclusivity provision expired after two years’ time. Next, the appellee presented legally insufficient evidence to support a probable right to relief against the Importer on its claims for partnership, joint venture, and joint enterprise, on which the exclusivity restrictions (Restrictions 1 and 6) in the temporary injunction order were premised. Further, the appellants correctly reference Glattly for the proposition that the Texas Theft Liability Act did not authorize injunctive relief. Further, there was no evidence that the appellee would have suffered any actual harm of damage because, on the record before the court, the appellee would have no hybrid papayas to sell. Also, the appellee’s reference to the appellant individual’s relationship with the appellant company and the second appellant company did not negate the general rule that where there was no evidence of a breach of fiduciary duty there could be no aiding and abetting of a breach of fiduciary duty. Next, any non-competition restriction could not prohibit the appellant company from advertising, so long as such advertising did not disclose or use confidential information. Further, given that the exclusivity provision of the revised operating agreement has expired and Restrictions 1 and 6 must be dissolved, Restrictions 4 and 5 were overly broad to protect the appellee. Finally, the issuance of Restriction 8, without any evidence or argument supporting it, was a departure from the guidance on spoliation provided by Aldridge. Accordingly, the judgment was reversed, rendered and remanded.


Oral modification of at-will employment agreement was not enforceable, non solicitation provisions were not limited in scope, and although there was evidence of misappropriation, and risk of misappropriation, of appellee's trade secrets, temporary injunction was impermissibly vague and overbroad
Cooper Valves, LLC v. Valvtechnologies, Inc.
Contracts, Corporations, Employment, Intellectual Property, Procedure, Torts
Texas 14th Court of Appeals
July 20, 2017
14-16-00879-CV
J Brett Busby
Published
     Appellee corporation filed the instant suit after appellant individual left its employ and went to work for appellant company. In the instant accelerated interlocutory appeal, the appellants challenged the trial court’s order granting a temporary injunction requested by the appellee. The appellate court found that the 1997 Agreement fell within the statute of frauds because it contained a two-year noncompetition term. As a result, an oral modification of that agreement was not enforceable. According to the appellee, the effect of the reinstatement agreement was to reset the two-year noncompetition period. Because the reinstatement was not in writing, it was unenforceable. Neither nonsolicitation provision in the appellant individual’s 1997 Agreement contained geographic or time limitations. Neither specified the types of customers or employees that were off-limits to the appellant individual. Because the nonsolicitation provisions in the 1997 Agreement did not include reasonable restrictions, they were unenforceable. The trial court therefore abused its discretion when it included section (i) in the temporary injunction. Further, although there was evidence in the record supporting the trial court’s findings of misappropriation and threatened misappropriation of certain the appellee trade secrets, the temporary injunction violated Texas Rule of Civil Procedure 683 because it was impermissibly vague and overbroad. Accordingly, the court reversed the challenged sections of the trial court’s temporary injunction and remanded.


Although the trial court’s severance order severed the appellants’ Construction Trust Funds Act claims into a separate cause, it did not dispose of the appellants’ other claims against the same parties, and thus, it was not a final and appealable judgment
Duke v. American Western Steel, LLC
Contracts, Procedure, Real Property
Texas 1st Court of Appeals
July 20, 2017
01-16-00723-CV
Harvey Brown
Published
     The appellants hired the appellee company to build a house on their property. The house was never completed, and the appellants filed suit against the appellee company, its president, the appellee individual and an subcontractor. The appellants challenged from the trial court’s partial summary judgment dismissing their claims for violations of the Construction Trust Funds Act (CTFA). The appellate court found that although the trial court’s severance order severed the appellants’ CTFA claims into a separate cause, it did not dispose of the appellants’ other claims against the same parties, and it did not contain finality language or any other clear indication that the trial court intended the order to completely dispose of all parties and all claims. Therefore, the court held that the trial court’s severed partial summary judgment was not final and appealable. Accordingly, the court dismissed the appeal for lack of jurisdiction.


Appellant was not effectively informed by his counsel that the Texas Court of Criminal Appeals had found polygraph test results inadmissible, that results could not be used for revocation of community supervision, and that he could refuse to answer and invoke his Fifth Amendment right
Selby v. State
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
July 19, 2017
09-16-00287-CR
Steve McKeithen
Published
     The appellant challenged the trial court’s denial of his motion for new trial, in which he alleged, among other issues, that his pleas of true during a proceeding to revoke his community supervision were involuntary and made as a result of ineffective assistance of counsel. The appellate court found that the appellant's failure to raise a Fifth Amendment objection to the use of his pre-test and post-test admissions obtained during the polygraph process did not result in procedural default of his complaint on appeal. The appellant could not be faulted for failing to object on the basis that his admissions violated his Fifth Amendment constitutional right because he was not placed on notice that he would be required to incriminate himself as part of his conditions of community supervision. In Summary, having concluded that the trial court erred in failing to find that the appellant received ineffective assistance of counsel during his revocation proceeding and abused its discretion by denying the appellant's motion for new trial, the court remanded the cause for a new revocation hearing. Furthermore, the condition expressly stated that one of its purposes was case monitoring. Based on The appellant's testimony, the probation department had ordered the appellant to complete the polygraph as a condition of his probation, and thus, it was used to assist in monitoring the appellant's probation. The court concluded that the condition was not unreasonable as applied to the appellant. Accordingly, the judgment was reversed and remanded.


Because the evidence supported the jury’s failure to find the existence of a contract between the appellee and the appellant, and in the absence of an agreement between the appellee and the appellant, the appellee could not recover on his breach of contract claim
Borain Capital, LLC v. Hashmi
Banking and Finance, Contracts
Texas 4th Court of Appeals
July 19, 2017
04-16-00501-CV
Karen Angelini
Published
     The appellee sued the appellant corporation for breach of contract. Although a jury found that the appellee failed to prove the existence of an agreement between the appellee and the appellant, the trial court granted judgment against the appellant notwithstanding the jury’s verdict. The appellant presented three issues on appeal. In its first two issues, the appellant argued the trial court erred in granting judgment notwithstanding the verdict on the appellee’s breach of contract claim. In its third issue, the appellant argued that, even if the trial court did not err in granting judgment notwithstanding the verdict, it erred in awarding attorney’s fees to the appellee. The appellate court found that the evidence showed that the appellee agreed to sell the note to the corporation and the corporation paid for the note as agreed. Further, the jury could have concluded that the appellant acquired the note by virtue of an agreement with the corporation, and not by virtue of an agreement with the appellee and the court concluded the jury’s failure to find the existence of an agreement between the appellee and the appellant was supported by more than a scintilla of evidence. Because more than a scintilla of evidence existed to support the jury’s adverse finding, the court need not reach the second step of the analysis, that was, whether the evidence conclusively established the existence of a contract between the appellee and the appellant. Because the evidence supported the jury’s failure to find the existence of a contract between the appellee and the appellant, it was error for the trial court to grant the appellee’s motion for judgment notwithstanding the verdict. In the absence of an agreement between the appellee and the appellant,the appellee could not recover on his breach of contract claim against the appellant. The court, therefore, reversed the trial court’s judgment and render judgment that the appellee took nothing.


Unfulfilled conditions precedent in parties’ written agreements precluded forming the alleged, and breached, partnership, and since appellee did not request a jury finding of waiver or otherwise prove as a matter of law that the parties waived the conditions precedent, judgment was reversed
Enterprise Products Partners, L.P. v. Energy Transfer Partners, L.P.
Appellate: Civil, Contracts, Damages, Torts
Texas 5th Court of Appeals
July 18, 2017
05-14-01383-CV
Lana Myers
Published
     The appellee company and the appellant company were builders and operators of oil and gas pipelines. The appellant approached the appellee about potentially working together to build a pipeline transporting crude oil from Cushing to Houston. The appellee sued the appellant for breach of joint agreements with appellant and breach of fiduciary duty. The jury found that the appellee and the appellant created a partnership to market and pursue a pipeline project to transport crude oil from Cushing, Oklahoma to the Gulf Coast, the appellant failed to prove it complied with its duty of loyalty as a partner; the appellant withdrew from the partnership, $319,375,000 would compensate the appellee for its damages proximately caused by the appellant’s breach of its duty of loyalty; and the benefit to the appellant from its breach of its duty of loyalty was $595,257,433. The trial court awarded the appellee the damages of $319,375,000 found by the jury, plus interest. The court also awarded the appellee disgorgement against the appellant of $150 million. The appellate court found that the unfulfilled conditions precedent in the parties’ written agreements precluded forming the alleged partnership unless the appellee obtained a jury finding that the parties waived those conditions precedent. The appellee’s failure to request such a finding meant that it had to establish waiver of the conditions precedent as a matter of law and, finally, the appellee did not prove as a matter of law that the parties waived the conditions precedent. Accordingly, the court reversed the trial court’s judgment as to the appellee’s claims against the appellant and rendered judgment that the appellee take nothing on those claims.


Rational juror could have found elements of theft of property beyond a reasonable doubt, appellant unlawfully appropriated make-up with a value of $50 or more but less than $500 with intent to deprive the owner, and was legally sufficient to support an adjudication of appellant as delinquent
In re I.F.M.
Criminal, Evidence, Juvenile, Procedure
Texas 14th Court of Appeals
July 18, 2017
14-15-00781-CV
John Donovan
Published
     The appellant was adjudicated as a juvenile for engaging in delinquent conduct by committing the offense of theft of property. The appellant challenged the adjudication of the offense, arguing the evidence adduced at trial was legally insufficient. The appellate court found that viewing all of the evidence in the light most favorable to the verdict, the court concluded that a rational juror could have found the essential elements of the offense beyond a reasonable doubt—that was, the appellant unlawfully appropriated the make-up with a value of $50 or more but less than $500, from the prevention officer, the owner, with intent to deprive the owner of the property, and that this was a violation of 31.03 of the Texas Penal Code. Thus, the evidence was legally sufficient to support an adjudication of the appellant as delinquent. Further, because the trial court had no duty to sua sponte instruct the jury regarding all potential defensive issues and evidentiary theories, the appellant could not complain of the omission for the first time on appeal. Accordingly, the court affirmed the trial court’s judgment.


A constitutionally non-compliant home-equity lien remained invalid until it was made compliant and was not subject to any statute of limitations, thus, bank committed trespass and conversion when it foreclosed on its non-compliant deed of trust in a non-judicial foreclosure
Morris v. Deutsche Bank National Trust Co.
Banking and Finance, Constitution, Creditor/Debtor, Gov't/Administrative, Procedure, Real Property, Wills/Trusts/Probate
Texas 14th Court of Appeals
July 18, 2017
14-16-00354-CV
Ken Wise
Published
     The instant case involved a home-equity loan encumbering the appellants’ homestead with a lien created by a constitutionally non-compliant deed of trust. When the appellants defaulted on the loan, the lender sold their home at a non-judicial foreclosure sale and evicted the appellants. The appellants challenged the trial court’s summary judgment dismissing their claims against the lender. The appellate court found that because the Wood decision held that a constitutionally non-compliant home-equity lien remains invalid until it was made compliant and was not subject to any statute of limitations, the trial court erred in granting summary judgment on the appellants claim that their homestead was protected from a forced sale. Further, in summary, to the extent the trial court granted a partial summary judgment on the appellants wrongful foreclosure claim on the grounds that the appellee bank violated Texas Constitution Article XVI, Section 50(a)(6) and a defect existed in the Home Equity Note or Deed of Trust, the trial court erred. Summary judgment was affirmed, however, to the extent the trial court held that the appellee had standing. Furthermore, summary judgment may only be granted on grounds expressly asserted in the summary judgment motion. The appellee did not argue that the appellants trespass claim was barred by the statute of limitations, and neither party argued standing in the context of the claim. To the extent the trial court granted summary judgment on grounds not raised by the Bank, the court reversed the trial court’s judgment as to rulings (1), (2), and (3). Accordingly, the court affirmed in part, reversed in part, and remanded the case to the trial court for further proceedings.


Trial court correctly held appellees’ assault claim was exempted from Texas Citizens Participation Act, however, appellants met their burden as to each of appellees’ other claims in exercising their right to free speech in their extensive communication campaign to control their appellee daughter
Cavin v. Abbott
Constitution, Damages, Torts
Texas 3rd Court of Appeals
July 14, 2017
03-16-00395-CV
Bob Pemberton
Published
     The appellees were married in the fall of 2014. The daughter was the only child of the appellants. As the child's relationship with the appellee progressed toward matrimony, the appellants voiced strong parental disapproval of their daughter’s choice of husband and attempted to intervene to prevent the union. The appellees eventually obtained counsel to help resist what they viewed as a malicious and rather bizarre campaign of harassment and retribution. The appellees filed suit against the appellants and, in connection with the two letters written by the appellee to health-care providers, (collectively, the appellants), seeking money damages and injunctive relief. The appellants timely filed a motion under the Texas Citizens Participation Act (TCPA) seeking to dismiss the appellees’ suit in its entirety. The appellees filed a response. The trial court denied appellees’ motion. The court in its order also determined that the appellants’ motion had been filed frivolously, based on the case law and the plain language of the TCPA, and exercised its discretion to award the appellees reasonable attorney’s fees. The appellate court found that the trial court did not err in holding that the appellees’ assault claim was exempt from the TCPA and correspondingly denying the appellants’ motion as to that claim. Further, the appellants argue that at least some of the appellees’ claims were based on, relate to, or were in response to the appellants’ exercise of the right to petition through their lawsuits and discovery subpoenas. Further, the appellants’ communications made in connection with the subjects qualify, as a matter of law, as the exercise of the right of free speech under the TCPA definition. Next, the appellees do not appear to contest that the appellants’ lawsuits and subpoenas meet the definition. Further, the appellants had demonstrated conclusively, in reliance on the appellees’ pleadings and attachments, that the appellees’ committed defamation, tortious-interference, abuse-of-process. Nor was the record susceptible to any favorable reading that would alter that conclusion. Finally, the court could not conclude that the appellees met their burden to establish by clear and specific evidence a prima facie case for each essential element of each claim in question. Accordingly, the judgment was affirmed, reversed, rendered and remanded.


Incomplete investigation by appellee employer whether appellant had violated code of conduct did not raise a fact issue regarding pretext, appellant could not have reasonably believed supervisor’s conduct to be sexual harassment, and appellant did not show she engaged in a protected activity
McNeel v. Citation Oil & Gas Corp.
Civil Rights, Employment
Texas 14th Court of Appeals
July 11, 2017
14-16-00180-CV
Kevin Jewell
Published
     The appellant was a certified public accountant who worked for appellee corporation in the company’s tax department. The appellant began as a senior tax accountant and was promoted to supervisor. The appellant sued the appellee under the the Texas Commission on Human Rights Act (“TCHRA”), claiming age discrimination, sex discrimination, and retaliation. The appellant alleged that, while she was employed at the appellee, the appellant tax department supervisor displayed abusive behavior toward her and other women and made rude and sexist comments to them and about them to the appellant and to other employees. The appellate court found unavailing appellant’s contentions that she could not have been terminated unless and until the appellee ultimately determined she had violated the Code of Conduct, and that there was a fact question as to whether the appellee actually made such a determination. Evidence of an imperfect or incomplete investigation was not sufficient to raise a fact issue regarding pretext. Further, the appellant did not offer more than a scintilla of probative evidence that Citation’s stated reason for her termination was pretext for discrimination. Accordingly, the trial court did not err in granting summary judgment on the appellant’s sex discrimination claim. Furthermore, taking the appellant’s allegations as true, the appellant could not have reasonably believed that the supervisor’s conduct created a hostile work environment by sexual harassment. Finally, the summary judgment evidence did not raise a genuine fact issue as to whether the appellant engaged in a protected activity. In the absence of a statutorily protected activity, there could be no cognizable retaliation claim under the TCHRA. Thus, the trial court did not err in granting summary judgment on the appellant’s retaliation claim. Accordingly, the trial court’s judgment was affirmed.


Trial court properly denied trustee’s special appearance and motion to compel arbitration, but erred in determining defendant was owner of interpleaded funds on the ground that a constructive trust should be imposed because the Plan obtained legal title to the funds in an unconscientious manner
Kehoe v. Pollack
ADR, Corporations, Employment, Insurance, Tax, Wills/Trusts/Probate
Texas 14th Court of Appeals
July 11, 2017
14-16-00421-CV
Kem Thompson Frost
Published
     The instant appeal arose out of a dispute over ownership of a life insurance policy. A covered employee under an employee welfare benefit plan filed suit against an insurance company and others asserting misrepresentation claims and seeking a declaratory judgment. The insurance company responded by filing an interpleader action, in which the covered employee and the trustee of the benefit plan each asserted ownership of the policy. The trial court denied a special appearance and a motion to compel arbitration filed by the trustee. The appellate court found that the summary-judgment evidence did not conclusively prove that the Doctor was the owner of the interpleaded funds on the ground that a constructive trust should be imposed on the funds because the Plan obtained legal title to the funds in an unconscientious manner. Thus, the trial court erred to the extent the trial court granted summary judgment on that ground. Further, the trial court erred to the extent the court granted summary judgment on the ground that the Trustee erroneously invoked the Plan’s forfeiture provision. Further, the court have reviewed the summary-judgment evidence under the presumption that the trial court did not err in denying the Trustee’s objections. Finally, the court affirmed the trial court’s order denying the Trustee’s special appearance and motion to compel arbitration. Accordingly, the court conclude that the trial court erred by granting summary judgment that the Doctor was the rightful owner of the funds interpleaded into the registry of the court, and the court reversed the summary judgment and the court remanded the case to the trial court for proceedings.


State failed to carry its burden to establish the warrantless search, analysis, of appellant’s blood drawn at the hospital was reasonable by presenting evidence and it neither argued on appeal, nor did it present evidence to the trial court, concerning any justification for a warrantless search
State v. Martinez
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
July 13, 2017
13-15-00592-CR
Leticia Hinojosa
Published
     The appellee was indicted for the offense of intoxication manslaughter, a second-degree felony. The State challenged the trial court’s order granting the appellee’s motion to suppress evidence. The appellate court found that it was the State’s burden to establish that the warrantless search was reasonable by presenting evidence in support of an established exception to the warrant requirement. The State neither argued on appeal, nor did it present evidence to the trial court, concerning any justification for a warrantless search. Thus, conducting a de novo review of the trial court’s application of the law, the court held that the warrantless search of the appellee’s blood sample violated the Fourth Amendment. Accordingly, the judgment was affirmed.


Habeas court did not err in granting relief on the ground that appellee’s counsel was ineffective in misadvising, as opposed to failing to advise, appellee of the immigration consequences of his guilty plea; and trial court did not err in not addressing State’s claim of laches
Ex parte Garcia
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
July 13, 2017
13-16-00427-CR
Leticia Hinojosa
Published
     In 2002, the appellee was indicted on a charge of possession, with intent to deliver, of four grams or more but less than 200 grams of cocaine, a first-degree felony. In 2003, the United States government removed him to Guatemala. He remained in Guatemala for approximately two months before illegally entering the United States in 2004. He was tried in federal court for illegal re-entry, and sentenced to fifteen months’ confinement. The appellee filed an application for post-conviction writ of habeas corpus, alleging that his trial counsel denied him effective assistance of counsel. The State challenged the order granting the appellee a post-conviction writ of habeas corpus. The appellate court found that the State’s preserved arguments did not assail the findings of fact, which evidence the habeas court’s belief in the recollections of the appellee, his sister in-law and his brother over trial counsel’s testimony. Thus, the State was bound by the habeas court’s findings that misadvice regarding immigration consequences was given and that such misadvice was consequential in the appellee’s decision to accept the plea agreement. As for misadvice, Padilla v. Kentucky, 559 U.S. 356, 374 (2010) did not announce a new rule. In 2002, when the appellee pleaded guilty, criminal defense attorneys were expected to not hold themselves out as experts in areas where they were not. Further, the State did not mention laches at the hearing, and it did not seek a continuance. The State’s failure to present any evidence on laches may have been viewed by the habeas court as waiver. Furthermore, given that laches is largely governed by equitable principles, and that habeas courts enjoy sua sponte discretion in considering the issue of laches, the court could not say that the habeas court abused its discretion in rejecting the State’s laches. Accordingly, the judgment was affirmed.


Trial court did not err in granting defendants motion for partial summary judgment on appellant's defamation claim against them, and in finding appellant liable for breach of fiduciary duty, where defendants were appellant’s siblings that took over management of their parents’ affairs from him
Healey v. Healey
Damages, Elder Law, Family, Torts, Wills/Trusts/Probate
Texas 12th Court of Appeals
July 12, 2017
12-16-00007-CV
James T. Worthen
Published
     The appellant challenged from an adverse judgment rendered after a jury trial in the instant family dispute involving duty and money. The appellate court found that the trial court did not err in granting the defendants motion for partial summary judgment to dispose of the appellant's defamation claim against them. Further, the court disagreed that a finding of breach was conditioned on a finding of a benefit to the trustees. In the pleading and the questions, obtaining a benefit could be read as one of the ways the trustees had allegedly breached their fiduciary duty. Because the question reflected issues raised by the pleadings and the evidence, the trial court did not abuse its discretion in submitting Questions 23 and 25 as worded. Furthermore, there was no evidence of a breach of fiduciary duty by the defendants as trustees. Thus, the appellant did not meet his burden to show the jury’s answers to Questions 23 and 25 were not supported by the evidence. Lastly, because the appellant had raised no harmful error, the court affirmed the trial court’s judgment.


Evidence, including appellant's own statement, from which the jury reasonably could have concluded, beyond a reasonable doubt, that the appellant choked the victim and caused bodily injury, and was guilty of first-degree felony aggravated assault with a deadly weapon, his hands, was sufficient
Herrera v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
July 13, 2017
01-16-00403-CR
Harvey Brown
Published
     The appellant was charged with first-degree felony aggravated assault with a deadly weapon (his hands) on an individual with whom he had a dating relationship. A jury convicted the appellant and assessed punishment at 25 years’ confinement. The appellate court found that there was legally sufficient evidence, including the appellant's own statement, from which the jury reasonably could have concluded, beyond a reasonable doubt, that the appellant choked the victim and caused bodily injury. Further, viewing the evidence in the light most favorable to the verdict, the court concluded that a rational jury could have reasonably inferred from the appellant's acts, conduct, and remarks and from the surrounding circumstances that he possessed the requisite culpable mental state to support a conviction for aggravated assault. Lastly, the appellant contended that the evidence was insufficient to support his conviction and that the trial court erred by charging the jury under an erroneous mens rea standard. Accordingly, the court affirmed the judgment. 


Texas Workers’ Compensation Act was injured plaintiff worker’s exclusive remedy for work-related injuries, and appellant was immune from liability from its own negligence, where the injury was non-fatal, and evidence did not support a finding that any employee intentionally caused the injury
Berkel & Company Contractors, Inc. v. Lee
Employment, Gov't/Administrative, Litigation: Personal Injury, Torts, Workers' Compensation
Texas 14th Court of Appeals
July 13, 2017
14-15-00787-CV
Tracy Christopher
Published
     The instant was an appeal from a final judgment rendered after a trial by jury in a personal-injury lawsuit. The injury occurred on a commercial construction site, following the collapse of a crane. The appellee was the general contractor’s superintendent and he sued the subcontractor, the appellant on claims of negligence, gross negligence, and intentional injury. The jury made findings in favor of the appellee, and the trial court rendered judgment based on the jury’s award. The appellate court found that the Texas Workers’ Compensation Act provides that an injured worker’s exclusive remedy for work-related injuries was his receipt of workers’ compensation benefits. The Act applied in the instant case, which means that the appellant was immune from any liabilities arising out of its negligence. The Act had an exception for gross negligence when the worker suffers a fatal injury, but that exception did not apply in the instant case because the appellee’s injury was non-fatal. The Act had another exception for intentional injuries, but that exception did not apply because, the evidence was legally insufficient to support a finding that an employee of the appellant intended to produce the specific consequences of his conduct. Accordingly, the judgment was reversed and rendered.


The contractual language did not clearly and unequivocally disclaim the appellee’s reliance on the appellant’s representations, and the appellee’s claim did not trigger the reliance disclaimer provisions and the disclaimers did not bar the appellee’s fraudulent inducement claim
International Business Machines Corp. v. Lufkin Industries, Inc.
Contracts, Damages, Torts
Texas 12th Court of Appeals
July 12, 2017
12-15-00223-CV
James T. Worthen
Published
     The appellant challenged the trial court’s judgment in favor of the appellee corporation. The appellant raised five issues on appeal, and the appellee raised a conditional cross-issue in its response brief and a separate cross-appeal. The jury found that the appellee had suffered ten million dollars in out-of-pocket damages, which represented the difference in the value of the appellant’s Express Solution and the amount the appellee paid for it. The trial court entered a judgment in favor of the appellee against IBM for $23,776,025.10, which was based on twenty-one million dollars in out-of-pocket and mitigation damages for the appellee's fraudulent inducement claim, and $2,776,025.10 in prejudgment interest. The appellate court found that the contractual language did not clearly and unequivocally disclaim the appellee’s reliance on the appellant’s representations, and in any event, the representations forming the basis of the appellee’s claim did not trigger the reliance disclaimer provisions and the disclaimers did not bar the appellee’s fraudulent inducement claim. Further, the appellant's project manager and the salesperson had full knowledge of the Express Solution and its problems, the appellee’s Chief Financial Officer did not. It was within the jury’s province as factfinder to determine the estoppel question as it did, and the appellant had failed to conclusively establish its quasi-estoppel defense. Further, the appellee could not recover on the separate fraud claim apart from and in addition to the fraudulent inducement claim because all of its allegations were based on the appellant’s representations to induce the appellee’s execution of the Statement of Work” (SOW) and subsequent Project Change Request (PCRs). Moreover, the purported 1991 customer agreement, which was not admitted into evidence, could not be used to cap the appellee’s damages awarded under its fraudulent inducement of contract claim. Accordingly, the judgment of the trial court awarding an alternative judgment of $6,000,000 to the appellee on its fraud claim was reversed and rendered that the appellee take nothing on that claim and the remainder of the judgment of the trial court was affirmed.


Appellant met her burden to prove the courtroom was closed to the public during voir dire, and the record showed that the trial court failed to consider all reasonable alternatives to closure, in violation of the appellant's Sixth Amendment right to a public trial
Cameron v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 12, 2017
04-12-00294-CR
Rebeca C. Martinez
Published
     The appellant was convicted of the murder for hire of her child’s father and sentenced to seventy years in prison. On appeal, the appellant raised several issues, including that she was deprived of her constitutional right to a public trial during voir dire. A majority of the appellate court agreed, and the court reversed her conviction and remanded for a new trial. The Court of Criminal Appeals initially affirmed, but issued a new opinion on rehearing, reversing and remanding. The appellate court found that the appellant met her burden to prove the courtroom was closed to the public during voir dire, and that the record showed that the trial court failed to consider all reasonable alternatives to closure, in violation of the appellant's Sixth Amendment right to a public trial. Because the error was structural, the trial court’s judgment was reversed and the cause was remanded for a new trial.


Trial court erred in reversing City’s approval for historic renovation and development project, where Certificate of Appropriateness was properly issued for the Project as an alteration, restoration, or rehabilitation and new addition under City’s Unified Development Code
Five Aces/SA, Ltd. v. River Road Neighborhood Association
Gov't/Administrative, Real Property, Zoning
Texas 4th Court of Appeals
July 12, 2017
04-16-00781-CV
Rebeca C. Martinez
Published
     The instant appeal arose out of a request by the owners of the residence and property for approval of their proposed project involving renovation of the historic residence and new construction of a six-unit apartment complex on the undeveloped portion of the property. The City of San Antonio’s Historic and Design Review Commission (HDRC) and the appellant board approved the project and issued a Certificate of Appropriateness. The appellees sought judicial review of the approval in district court, and obtained a summary judgment in their favor. The appellants appealed the trial court’s judgment reversing approval for the project and withdrawing the Certificate of Appropriateness. The appellate court held that the Certificate of Appropriateness was properly issued for the Project as an alteration, restoration, or rehabilitation and new addition under sections 35-610 and 35-611 of the City’s Unified Development Code (UDC), without the need for separate applications for demolition and determination of non-contributing status, based on the plain statutory language of the applicable UDC sections, read in context of the statute as a whole, and the summary judgment record showing the substance of the work to be performed and the agency’s findings. Accordingly, the court reversed the trial court’s summary judgment and rendered judgment.


Since appellee’s claim was based on a judgment against the company, and not a tort against her directly, any claim against appellant individual members of Chapter 7 debtor LLC was property of the bankruptcy estate, and federal bankruptcy court had exclusive jurisdiction over her claim
Rich v. Durie
Bankruptcy, Courts, Creditor/Debtor, Damages, Procedure, Torts
Texas 12th Court of Appeals
June 21, 2017
12-17-00022-CV
James T. Worthen
Published
     The individual alleged he received negligent medical treatment at a nursing home operated by a company (the company) while he resided there in 2012. Acting as next friend for the individual, the appellee sued the company and recovered an uncontested judgment in the amount of $31,040,261.30. Approximately thirty million dollars of the award was for punitive damages. Later, the company filed a Chapter Seven bankruptcy proceeding in the United States Bankruptcy Court for the Eastern District of Texas, Tyler Division. Following the distribution of the assets, including a portion to the appellee, the bankruptcy court entered an order discharging the Chapter 7 Trustee and closing the case. But before the bankruptcy case was closed, the appellee filed suit against the appellants in state court and she sought to pierce the corporate veil of the company thereby and to collect the judgment from the appellants individually. The appellants filed a motion to dismiss the appellee’s suit, alleging that only the bankruptcy court had jurisdiction over her cause of action. The trial court denied the appellants’ motion to dismiss. The appellate court found that the appellee’s claim was based on the judgment she obtained against the company, which was based on its tortious conduct. She never has alleged the appellants committed a tort against her directly. Therefore, any claim against the appellants was the property of the bankruptcy estate. Based on the foregoing, the court held that the only court with jurisdiction over the appellee’s alter ego claims against the appellants, including piercing the corporate veil, was the United States Bankruptcy Court for the Eastern District of Texas, Tyler Division. Accordingly, the court reversed and rendered.


Defendant may obtain a dismissal of plaintiffs’ suit for a communication if she denied making it under the Texas Citizens Participation Act; communication alleged was not extreme and outrageous to support an action for intentional infliction of emotional distress
Hersh v. Tatum
Constitution, Torts
The Supreme Court of Texas
June 30, 2017
16-0096
Nathan L. Hecht
Published
     Plaintiffs sued defendant for intentional infliction of emotional distress, alleging that defendant, a suicide-prevention advocate, spoke to a reporter and encouraged him to write about the death of the plaintiffs’ son. Defendant moved to dismiss the claim under the Texas Citizens Participation Act. To prevail on her dismissal motion, defendant had to show by a preponderance of the evidence that plaintiffs’ claim was “based on, relates to, or is in response to” her exercise of the right of free speech, meaning her communication made in connection with a matter of public concern. The appellate court held that defendant may a  obtain dismissal of a suit alleging such a communication if she denies making it under the Texas Citizens Participation Act, and also held that the communication alleged in the case was not extreme and outrageous to support an action for intentional infliction of emotional distress.  In the appellate court’s concurring opinion, Justice Boyd wrote that defendant met that burden by proving that the plaintiffs’ action "relates to" or "is in response to" defendant’s communications with the reporter about suicide awareness and prevention. She did so by submitting as evidence deposition excerpts of her testimony regarding her views on suicide and the reporter's testimony that he spoke to defendant about that "topic" while he was working on an article on the issue.


Plaintiff raised inference City should have known overhead door to leased space could fail and cause injury, and fact question remained on City’s liability for premises defect, but appellee could only seek redress under Tort Claims Act, and plaintiff’s general negligence claims were dismissed
City of El Paso, Texas v. Viel
Gov't/Administrative, Landlord and Tenant, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 8th Court of Appeals
June 30, 2017
08-16-00177-CV
Gina M. Palafox
Published
     The instant was an accelerated interlocutory appeal filed by the appellant City from the trial court’s denial of the City’s plea to the jurisdiction. The appellee filed suit against the City due to injuries he sustained when an overhead rolling service door collapsed on him while he was working for an air cargo business that leased a portion of a cargo warehouse owned by the City. The City argued that it engaged in a governmental function in leasing the cargo warehouse and that it retained immunity from suit and liability for all claims appellee filed against it. The appellate court found that it was undisputed that the City received more than one hundred and twenty-five thousand dollars per year in rental revenue for leasing a portion of its cargo warehouse to the corporation at the time of this incident. In exchange, the corporation operated a cargo business that supported Airport functions and operations. Further, the evidence included testimony about the observations made by technicians describing that the overhead door’s key had sheared off because the keyway was empty and there was no key holding the shaft in place. In viewing the evidence as the court must, an inference may be made that the City should have known that, without proper maintenance, the overhead door could fail and cause injury. Thus, a fact question remained on the issue of the City’s liability for a premises defect claim for which the City’s immunity was waived. Furthermore, the appellee may only seek redress under the Tort Claims Act, the court necessarily concluded that his claim for punitive damages must consequently fail. Finally, the order of the trial court denying the City’s plea to the jurisdiction was reversed regarding the appellee’s negligent use of tangible personal property claim, general negligence claim, negligent undertaking claim, and punitive damages claim, and thus, those claims were hereby dismissed for lack of jurisdiction. Regarding the appellee's premises defect claim, the court affirmed the trial court’s order denying the plea to the jurisdiction, and remanded to the trial court for further proceedings.


There was some evidence appellee publishers received the order of expunction after it became final, and appellant did not have to prove independent damage to recover statutory damages and attorney’s fees for publishing her expunged criminal record under Chapter 109
D.K.W. v. Source for Publicdata.Com, LP
Appellate: Civil, Criminal, Damages, Procedure, Torts
Texas 5th Court of Appeals
June 28, 2017
05-16-00815-CV
Jason E. Boatright
Published
     The appellant sued the appellees alleging that they violated Chapter 109, Texas Business and Commerce Code, by publishing her expunged criminal record. The appellees filed a motion for summary judgment on both traditional and no-evidence grounds. The trial court granted the appellees’ motion for summary judgment without specifying the grounds. The instant appeal followed. In six issues, the appellant challenged each of the grounds raised in appellees’ motion. The appellate court found that under either the statutory or the common law framework, the appellant had standing to assert her claims against the appellees. Summary judgment for appellees was not proper on the instant ground and the court sustained the appellant’s first issue. Further, the appellees did not establish their right to judgment as a matter of law regarding the inapplicability of Chapter 109 to the appellant’s claims against them. Furthermore, the appellees objected to the appellant's attorney authentication of Exhibit M to the appellant’s summary judgment response, but did not obtain a ruling on their objection and Exhibit M was a printout dated November 30, 2014, from the appellee showing the appellant’s criminal record information. Moreover, even if the appellees were correct that they must received a final order, and even if they received the order from the appellant during a period when it could have been appealed, the individual's testimony was some evidence that appellees also received the order after it became final. Summary judgment for appellees was not proper on that ground. Under the plain language of Chapter 109, and consistent with the supreme court’s interpretation of an analogous statutory scheme, the appellant did not have to prove independent damage to recover statutory damages and attorney’s fees. Finally, the appellees were not entitled to judgment as a matter of law on the appellant’s claim under Chapter 109. Accordingly, the court reversed the trial court’s judgment and remanded the cause.


A plot of land owned partly by appellant and partly by appellee could not be partitioned by dividing in-kind in light of testimony that any division that included the turbine in appellant’s share would harm the value of both resulting properties
Carter v. Harvey
Damages, Procedure, Real Property
Texas 2nd Court of Appeals
June 29, 2017
02-16-00153-CV
Terrie Livingston
Published
     Appellee owned seven-eighths of a plot of land. Appellant owned the other one-eighth. Appellee petitioned the court to appoint a receiver to sell the plot. There was a wind turbine located on the central portion of the lot. The turbine was owned by appellant’s son as a fixture of the successor of a defunct company that was once housed on the land and that appellant partially owned. The trail court appointed a receiver. On appeal, appellant argued that the evidence was insufficient to establish that an in-kind partition could not be achieved. The appellate court pointed to an expert’s testimony that any partition that included the turbine in appellant’s share would diminish the value of both resulting properties. Further, appellant stated that would not access a division without the turbine. Therefore, although an in-kind partition was possible in theory, in practice it could not be achieved. Accordingly, the trial court’s judgment was affirmed.  


Because Damage Judgment was not the product of a fully adversarial proceeding the judgment that followed was not enforceable or admissible as evidence in the subsequent Insurance Suit against the petitioners by the respondents
Valero Refining - Texas, L.P. v. Galveston Central Appraisal District
Insurance, Procedure
The Supreme Court of Texas
June 16, 2017
15-0492
Debra Ann H. Lehrman
Published
     Respondent homeowners sued their builder for failing to construct their home in a good and workmanlike manner, and the builder’s commercial general-liability insurer (the petitioners) wrongfully refused to defend the builder in that suit. The case went to trial, resulting in a judgment in the respondents favor. The builder subsequently assigned most of its claims against the petitioners to the respondents, who then sought to recover the judgment from the insurer (the petitioners) under the applicable insurance policy. The Supreme Court of Texas asked whether the judgment against the builder was binding on the builder’s insurer in the instant suit. In the event it was not, court was also asked whether the deficiencies in the underlying trial were effectively remedied by the subsequent insurance litigation. The court of appeals answered yes to the first question and affirmed the trial court’s judgment in the homeowners’ favor. The Supreme Court Of Texas held that the Damage Judgment was not the product of a fully adversarial proceeding because the parties entered into an agreement that eliminated any meaningful incentive for the Builder to contest the respondents’ claims. As a result, the judgment that followed was not enforceable or admissible as evidence in the subsequent Insurance Suit against the petitioners by the respondents as judgment creditors and as the Builder’s assignees. However, court also held that the Insurance Suit gave the parties the opportunity to litigate any disputed underlying issues with the benefit of full adversity. Although the parties did not do so in the instant case, they should be given the opportunity on remand. Accordingly, court reversed the court of appeals’ judgment and remanded the case to the trial court for a new trial.


A contract between appellant corporation and appellee energy company did not permit appellee to terminate the agreement and avoid a licensing fee resulting from the company’s change of control simply by returning the seismic data appellant provided it.
Fairfield Indus., Inc. v. EP Energy E&P Co., L.P.
Contracts, Oil, Gas, & Mineral
Texas 14th Court of Appeals
July 06, 2017
14-15-00586-CV
Kem Thompson Frost
Published
Appellant, a corporation that collects, processes and licenses seismic data to oil and gas companies signed contracts with appellee energy company concerning the provision of seismic data. Appellee agreed to pay a fee if the company changed hands for the data licensed under those agreements “to which the party acquiring control does not already have a license.” Appellee was purchased by another company. Nine days earlier, the energy company notified appellant via letter that it was terminating the agreement and it returned the data and claimed it was no longer using it. Appellant filed a lawsuit seeking to uphold the contract terms and recover its license fee for exchange of control. The trial court granted summary judgment to appellee. The appellate court reversed, holding that the contract required appellee to pay the licensing fee regardless of whether it returned the data. There was no contract provision permitting appellee to terminate the agreement by unilateral action, the court reasoned. Its attempt to do so was ineffective and did not relieve appellee of its obligation to pay the fee. The court thus reversed the trial court's judgment as to appellee’s breach-of-contract claim to recover the fee and remanded for further proceedings.


Appellant failed to identify any witness he would have called but for a state statute imposing a $5 fee for summoning a witness and thus could not establish that the statute violated his constitutional rights to compulsory process and confrontation of witnesses.
London v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
June 27, 2017
01-13-00441-CR
Michael C. Massengale
Published
Appellant pleaded guilty before trial to possession of cocaine and was sentenced to 25 years in prison. On appeal, he challenged the imposition of statutory court costs for witness subpoenas pursuant to article 102.011(a)(3) of the Code of Criminal Procedure, as applied to him in this case, as a violation of his constitutional rights to compulsory process and confrontation of witnesses. The statute required a defendant, upon conviction of a crime, to pay $5 for summoning a witness. The appellate court denied his claim, reasoning that he failed to identify any witness he would have called but for the prospect of post-judgment liability for a $5 per witness fee. He also has failed to demonstrate how he was denied the opportunity to confront witnesses against him. As such, no constitutional harm was shown by the assessment of court costs, as applied in this case. Accordingly, the court affirmed.


Because there was no evidence that the police officers reasonably believed that they could not obtain a warrant because of the imminent destruction of evidence, the trial court erred by declining to suppress the evidence obtained from the warrantless search.
Meane v. State
Criminal, Evidence
Texas 1st Court of Appeals
June 29, 2017
01-16-00291-CR
Sherry Radack
Published
Defendant was charged with possession of a controlled substance. He filed a motion to suppress, which the trial court denied. On appeal, defendant argued the trial court erred by denying his motion, asserting that the evidence was obtained through a warrantless search of his person that was not justified by an exception to the warrant requirement. The appellate court held that the state failed to produce any evidence that the destruction of evidence was imminent. Appellant and the other occupants of the car were placed in handcuffs and seated on the curb, the appellate court stated. One officer watched them, while two others searched the car. There was no evidence that appellant or any of the other occupants of the car made any furtive gestures indicating an attempt to hide or dispose of evidence once they saw the police officers. There was no evidence to support a finding that the officers reasonably believed that they could not obtain a warrant because of the imminent destruction of evidence. As such, the state failed to meet its burden to prove an applicable exception to the warrant requirement. Accordingly, the trial court’s denial of defendant’s motion to supress was reversed.


Because shareholders plead in detail the corporate directors’ conduct and fiduciary duties, their complaint provided adequate notice of their claims against the directors.
Neff v. Brady
Corporations, Securities
Texas 1st Court of Appeals
June 29, 2017
01-15-00544-CV
Terry Jennings
Published
Appellants purchased shares from corporation following an investigation of corporation under the Foreign Corporate Practices Act. The investigation determined that the corporation violated the FPCA, including by authorizing bribery to obtain or retain business. Corporation agreed to pay $252 million in fines and penalties to resolve enforcement actions against it. Appellants sued the directors on behalf of the corporation, alleging the directors breached their fiduciary duties, severely injuring and damaging the corporation. Appellees argued that appellants' petition did not provide fair notice to allow them to prepare a defense because appellants failed to plead particularized facts. The trial court dismissed the case. The appellate court reversed, reasoning that in their 50-page petition, appellants presented in detail their factual allegations against each director. They detailed the fiduciary duties that the directors owed to the corporation post-2009, including supervision of its accounting functions and preparation of its annual report. In regard to the directors' conduct occurring from February 2009 to 2011, the allegations were sufficient to provide fair notice of their claims to the directors. The appellate court reversed the trial court's ruling.


Because plaintiff’s claim was premised on defendant having the right to control the scaffold at the time plaintiff allegedly fell through it, plaintiff’s claim sounded in premises liability, not general negligence.
United Scaffolding, Inc. v. Levine
Litigation: Personal Injury, Torts
The Supreme Court of Texas
June 30, 2017
15-0921
Paul W. Green
Published
Plaintiff filed a negligence lawsuit against defendant, a company that built a scaffold from which defendant fell and injured his neck. Plaintiff claimed that the scaffold was improperly constructed and that defendant failed to warn of a dangerous condition. A jury held in plaintiff’s favor based on negligence and awarded $2 million in damages. On appeal, defendant contended that plaintiff improperly pleaded his claim under a theory of negligence. The appellate court affirmed in plaintiff’s favor. The Supreme Court held that because the claim was premised on defendant having the right to control the scaffold at the time plaintiff allegedly suffered injury, plaintiff’s claim sounded in premises liability, not general negligence. The court pointed out that plaintiff alleged that he was injured when he fell through a hole in the scaffold after a piece of plywood that was not nailed down slipped from under him. He never alleged that any sort of contemporaneous, ongoing activity caused his injury. The Supreme Court reversed and ruled in defendant’s favor.


Because police officers had probable cause to arrest defendant for DWI, the trial court properly declined to suppress evidence obtained as a result of the officers’ ensuing search.
Foster v. State
Criminal
Texas 6th Court of Appeals
June 27, 2017
06-16-00203-CR
Bailey C. Moseley
Published
Defendant was charged with possession of a controlled substance. He filed a motion to suppress , which the trial court denied. Defendant appealed, arguing that the trial court erroneously denied his motion to suppress. He contended that his arrest was made solely on the assumption that he was intoxicated by liquor and that his symptoms of intoxication may have been caused by Parkinson's disease. Because the officer's belief of defendant’s alcohol intoxication was not proven, defendant argued, the arrest itself was erroneous and any fruits obtained from a subsequent search should have been suppressed. The appellate court stated that defendant was demonstrating symptoms of an inability to safely operate a motor vehicle, and many times those symptoms are caused by intoxication by alcohol or some other kind of intoxicant. Moreover, the officers were required to consider the totality of the factual circumstances at the time of the arrest, and not what may or may not have been established at a later date. Considering the totality of the circumstances at the time of the arrest, the trial court did not err when it found that probable cause existed to arrest defendant for DWI. Therefore, the trial court did not err by declining to suppress the evidence obtained as a result of the search. The appellate court affirmed the trial court's judgment.  


Because the state’s exhibits sufficiently linked defendant to three prior DWI convictions, his enhanced sentence of 35 years in prison for DWI was upheld.
Alberty v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 11, 2017
06-16-00204-CR
Ralph K. Burgess
Published
Defendant pled guilty to driving while intoxicated. The trial court found defendant guilty of the offense and sentenced him 35 years' imprisonment with an enhancement based on three prior DWI convictions. On appeal, defendant argued that the trial court erred in admitting and considering evidence of the prior convictions because they were not sufficiently linked to him. The appellate court pointed out that the state’s exhibits contained certified copies of judgments establishing the prior convictions of defendant. The judgments identified defendant by name. In addition, the state’s exhibits included a mug shot of defendant shortly after sentencing showing him holding a placard with his case number on it. The appellate court noted that the state conceded that a state employee inadvertently placed non-corresponding fingerprint cards in the penitentiary packets. However, even without evidence related to the fingerprint cards, the state’s exhibits sufficient linked defendant to the prior judgments. Accordingly, the trial court’s judgment was affirmed.


Because appellant could not recover compensation from a private person under chapter 103 of the civil practice and remedies code, appellant’s lawsuit for appellee’s alleged false statement in appellant’s DWI trial was frivolous.
Read v. Verboski
Criminal, Damages, Procedure, Torts
Texas 2nd Court of Appeals
July 06, 2017
02-16-00399-CV
Mark T. Pittman
Published
Appellant sued appellee, a witness in the criminal trial that resulted in Appellant's conviction for driving while intoxicated. Appellant alleged that he was wrongfully convicted based on appellee’s false statement in a police report that was read at trial. Appellee filed a motion to dismiss, arguing that that any statements made in the due course of a judicial proceeding cannot form the basis of a suit for damages for defamation. As such, he argued, appellant's suit had no legal basis and was therefore frivolous. The trial court granted the motion. Appellant argued on appeal that he could recover compensation under civil practice and remedies code chapter 103. Section 103.001 of that chapter sets out the criteria a person must meet to be entitled to compensation under chapter 103. Even if appellant met the criteria for compensation under that section, the chapter does not provide a remedy to recover compensation from private persons, the court stated. Because, as a matter of law, appellant could not recover compensation from appellee under chapter 103, his claim for such compensation had no arguable basis in law and was therefore frivolous. The court affirmed the trial court’s dismissal of the action.


Health care liability claim filed without proper supporting expert report under Medical Liability Act dismissed on appeal.
Villarreal v. Fowler
Damages
Texas 2nd Court of Appeals
June 29, 2017
02-16-00474-CV
Bill Meier
Published
Appellant filed an interlocutory appeal of trial court's denial of motion to dismiss health care liability claim for failure to file a supporting expert report as required by the Medical Liability Act (MLA).  On appeal, the Court found the the "Clinical Review" filed by the claimant was in no way an expert report prepared to comply with the MLA where it was not prepared by a doctor, only a doctor can opine on causation, and did not provide the correct  standard of care. The Court accordingly remanded for dismissal and determination of attorney's fees.


Economic development corporation was not entitled to governmental immunity in a breach of contract suit; thus, trial court properly denied its plea to the jurisdiction
Rosenberg Development Corporation v. Imperial Performing Arts, Inc.
Business, Contracts
Texas 14th Court of Appeals
July 06, 2017
14-16-00978-CV
Kevin Jewell
Published
Appellant, an economic development corporation organized under the Development Corporation Act by a city, entered into a performance agreement with appellee, a nonprofit organization that promoted and produce performance and visual arts. Under the performance agreement, appellant agreed to pay appellee $500,000. In exchange, appellee purportedly was to lease, renovate, and operate both an “Arts Center” and an historic theater in the downtown area. Subsequently, a dispute arose between the parties over the performing agreement and appellee sued appellant for breach of contract and sought a declaratory judgment. Appellant filed a counterclaim for breach of contract and sought a judgment declaring that appellee had breached the performance agreement. The trial court partially denied appellant’s plea to the jurisdiction. Asserting entitlement to governmental immunity from suit, appellant contended that appellee failed to establish a valid waiver of governmental immunity and the trial court erred in denying its plea. The appeals court found, however, that appellant did not enjoy governmental immunity from suit since the protection of governmental immunity does not extend to economic development corporations, and thus appellee was not required to establish a waiver of immunity. Accordingly, the trial court’s judgment partially denying appellant's plea to the jurisdiction was affirmed.


Trial court erred by awarding attorneys’ fees against a subcontractor in a breach of contract action since the subcontractor was neither an individual nor a corporation
Vast Construction, LLC, v. CTC Contractors LLC,
Contracts, Damages, Procedure
Texas 14th Court of Appeals
June 06, 2017
14-16-00005-CV
Kevin Jewell
Published
A contract dispute arose between appellee general contractor and appellant subcontractor over the construction of a supply store. Appellee sued appellant for breach of contract. The trial court signed a judgment in favor of appellee that was based on a jury finding that appellant failed to comply with the subcontract. The trial court awarded appellee the damages as found by the jury and $190,000 in attorneys’ fees for trial, as well as conditional appellate attorneys’ fees. The trial court denied appellant’s motion for judgment notwithstanding the verdict. The appeals court agreed with appellant that the trial court erred by awarding attorneys' fees against it under Civil Practice and Remedies Code §38.001 because that statute authorizes an award of reasonable attorneys' fees against only individuals and corporations, and appellant, a limited liability company, was neither an individual nor a corporation. The appeals court therefore modified the trial court's judgment to remove all portions awarding attorneys' fees to appellee. Rejecting appellant's other issues that the appeals court found dispositive, the appeals court affirmed the trial court’s judgment as modified.


Plaintiffs must exhaust administrative remedies before bringing red light camera suit against city and city officials
City Of Willis v. Garcia
Gov't/Administrative, Procedure, Transportation
Texas 9th Court of Appeals
July 06, 2017
09-16-00164-CV
Leanne Johnson
Published
Luis Garcia, on behalf of himself and others similarly situated, who had paid a civil penalty for violating the city's Red Light Camera Ordinance that authorized and created a photographic traffic signal enforcement system in the city, brought an action against the city, the mayor in his official capacity, the chief of police in his official capacity, and the city manager in his official capacity. The plaintiffs alleged that the city failed to meet the requirements of the city's Red Light Camera Ordinance and Chapter 707 of the Texas Transportation Code because the city allegedly failed to conduct a traffic engineering study as required before installing the cameras. The defendants filed a joint plea to the jurisdiction arguing that the trial court lacked subject matter jurisdiction over the plaintiffs’ claims. The trial court denied the defendants’ plea, and the defendants filed an interlocutory appeal. The appeals court found the trial court erred in failing to grant the plea to the jurisdiction because the plaintiffs failed to exhaust the administrative remedies set forth in Chapter 7, and as provided for in the city’s Red Light Ordinance. Accordingly, the trial court’s judgment was reversed and judgment was rendered for defendants.


Declaratory judgment against City vacated where governmental immunity and the redundant remedies doctrine deprived trial court of subject matter jurisdiction
New Braunfels v. Carowest Land
Contracts, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
June 29, 2017
03-16-00249-CV
Melissa Goodwin
Published
City appealed a judgment declaring a contract void and awarding attorney's fees, costs, and expenses to the prevailing party.  The City argued that the trial court lacked subject matter jurisdiction becuase governmental immunity barred the claims against it.  The trial court, finding that governmental immunity prevented claims for injunctive and mandamus relief, but not declaratory relief, exercised jurisdiction because the claims were brought under the Uniform Declaratory Judgments Act (UDJA).  However, the appellate court found that the underlying nature of the claims complained of the City's conduct, as opposed to challenging the validity of a law, and accordingly ruled that governmental immunity deprived the trial court of jurisdiction over the claims against the City.  The appellate court further found that the redundant remedies doctrine likewise barred the UDJA claims against the City because the same claims could have been pursued through different channels under different law. Moreover, without subject matter jurisdiction over the UDJA claims against the City, the trial court did not have jurisdiction to proceed solely against the other party concerning the contract's validity or legality.  The appellate court accordingly vacated the judgment in its entirety.  Last, because the prevailing party changed on appeal, the appellate court remanded the issue of attorney's fees and costs to the trial court for reconsideration.


Trial judge abused his discretion in staying execution of a writ of possession of real property where relator failed to file timely supersedeas bond
In re Invum Three, LLC
Procedure, Real Property
Texas 14th Court of Appeals
July 05, 2017
14-17-00449-CV
Kevin Jewell
Published
On June 7, 2017, relator company filed a petition for writ of mandamus, asking the appeals court to compel a trial judge to vacate his May 5, 2017 order staying execution of a writ of possession of real property signed on May 1, 2017. The relator had filed a forcible detainer suit to gain possession of the real property and had obtained a judgment. Consistent with Texas Rule of Civil Procedure 510.13, a writ of possession was issued in accordance with the judgment rendered. Rule 510.13 prohibits a stay of the judgment in a forcible-entry-and-detainer action, absent the filing of a supersedeas bond within 10 days of the judgment. Relator did not file a supersedeas bond within 10 days of the judgment or thereafter. Accordingly, the appeals court found the trial court's order staying the writ of possession, through which relator sought to execute the judgment granting it possession, violated Rule 510.13's unambiguous language, and therefore constituted a clear abuse of discretion. The appeals court therefore conditionally granted the petition for writ of mandamus.


Because there was sufficient evidence of defendant’s sophistication and maturity, the trial court properly found that he could be tried as an adult for his participation in a robbery that resulted in a shooting death.
In re G.B.
Criminal, Juvenile, Procedure
Texas 2nd Court of Appeals
July 06, 2017
02-17-00055-CV
Bonnie Sudderth
Published
Defendant, who was 14 at the time, participated in an aggravated robbery that resulted in a shooting death. The juvenile court transferred defendant to a district court to be tried as an adult in criminal proceedings for capital murder. Defendant argued on appeal that the juvenile court did not cite any facts to support its finding that he had sufficient sophistication and maturity to be tried as an adult. However, the trial court referenced the fact that defendant received his first referral for organized crime, theft of property, and criminal mischief two years earlier, when he was only twelve years old. The trial court likewise considered defendant’s behavior in the commission of the murder in determining whether he was sophisticated and mature enough to stand trial as an adult. Additionally, defendant demonstrated his sophistication and maturity when he explained to the detective the possibility that his charge might be dropped to aggravated robbery because he did not enter the building until after the shot was fired. The appellate court thus concluded that there was sufficient evidence to support the trial court's finding that defendant was sufficiently sophisticated and mature to stand trial as an adult. Accordingly, the trial court’s ruling was affirmed.


Because appellee oil and gas company waited more than two years before asserting a claim for unjust enrichment, the district court erred by failing to grant summary judgment to appellants based on the statute of limitations.
Freeman v. Harleton Oil & Gas, Inc.
Contracts, Oil, Gas, & Mineral, Procedure
Texas 6th Court of Appeals
July 07, 2017
06-16-00034-CV
Bailey C. Moseley
Published
Chesapeake Louisiana, L.P. conducted due diligence with respect to an agreement with appellants to purchase three-year term assignments in all of appellants’ "right, title and interest in and to the lands described" in the agreement, which comprised at least 14,378 acres in four counties. In conducting due diligence, Chesapeake failed to uncover the fact that appellee oil and gas company owned a 50% non-operating working interest to the deep rights in the lands. The appellate court noted that a two-year statute of limitations applies to unjust enrichment claims. The court pointed out that although appellee filed the lawsuit in 2012, it included unjust enrichment as a specific claim for the first time on March 23, 2015, when it amended its petition in the case. Because the unjust enrichment claim was untimely, defendants were entitled to summary judgment. Accordingly, the trial court’s ruling on this issue was reversed.


No prejudicial harm where Defendant challenged the voluntariness of his plea based on incorrect admonishments about the availability of probation.
Mason v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
June 29, 2017
01-16-00980-CR
Sherry Radack
Published
Defendant argued his plea was not valid where the trial court incorrectly stated it could sentence him to probation when admonishing him of the sentencing range for drug-related offenses.  On appeal, the Court found that Defendant had read and signed written admonishments advising him of the correct sentence ranges prior to the trial judge's statement that probation was a possibility.  Moreover, stating incorrectly that he was eligible for probation, instead of deferred adjudication, did not amount to prejudicial harm.
casemaker


Court upheld temporary injunction requiring production of financial records necessary to respond to tax audit.
Fuentes v. Union De Pasteurizadores
Appellate: Civil, Miscellaneous, Tax
Texas 8th Court of Appeals
June 23, 2017
08-16-00155-CV
Yvonne T. Rodriguez
Published
Appellees brought suit for conversion and temporary restraining order, claiming that appellants had taken financial records necessary to respond to tax audit.  The lower court, after finding that appellants had taken and were holding the records, ordered production within 48 hours.  Appellants brought interlocutory appeal.  First, the Court declined to exercise jurisdiction over whether appellees had shown a probable likelihood of recovery on interlocutory appeal, because doing so would require an advisory opinion on a potential merits question prior to trial.  Second, the Court found that the threat of civil and criminal tax penalties constituted irreparable injury, requiring a temporary injunction ordering access to the records as appropriate equitable relief.  Third, the Court found that the potential harm was not speculative absent competent evidence that the tax audit had been suspended.  Fourth, the Court found the list of documents to be produced adeqautely specific.  Fifth, the Court ruled that cash deposited into the court's registry was sufficient under state rule requiring bond to issue injunction; it need not be an instrument payable to appellants.  Injunction accordingly upheld.


Employer not liable for failing to prevent employee fistfight where no special circumstances creating duty to control employee arose.
Pagayon v. Exxon Mobil Corp.
Employment, Torts
The Supreme Court of Texas
June 23, 2017
15-0642
Nathan L. Hecht
Published
Convenience store employee engaged in a fistfight at work with another employee and his father, who later died.  Surviving family members brought suit, claiming employer was negligent in failing to control employee.  The Court ruled that employers have no duty to control employees absent special circumstances, such as when employees consume alcohol during employment.  In determining whether a duty arises, factors considered include risk, foreseeability, and likelihood of injury; weighed against the burden, consequences, and social utility of imposing a duty on the employer.  The Court concluded that no duty to control employees existed under the circumstances.  Accordingly, employer could not be found negligent in failing to prevent fistfight.


Replacement of radio tower permitted as necessary maintenance of easement where the new tower did not exceed original scope or increase the burden on underlying land.
Lindemann Properties v. Campbell
Appellate: Civil, Real Property
Texas 2nd Court of Appeals
June 22, 2017
02-15-00392-CV
Bill Meier
Published
Appellee constructed a radio tower on apellant's land pursuant to a written easement.  Thirty-five years later, appellee replaced it with a new radio tower within the same designated area.  The landowner brought suit claiming that the easement terminated when the old tower was removed.   The Court ruled the easement's express provision permitting maintenance of the radio tower included replacing it when necessary.  Because the original tower was thirty-five years old, in poor condition, and showing structural defects, the Court held that replacement was reasonably necessary.  Furthermore, replacement did not constitute abandonment of the easement.  Installation of a new tower less than twenty feet from the original tower, and within the same 500' X 500' tract originally designated in the easement, did not exceed the scope of the easement because the effect on the burdened property remained the same.  Likewise, operation of both towers during construction of the new tower did not exceed the scope of the easement where the local sherrif and fire departments used it for vital radio transmissions that would otherwise be interrupted.  


Both parties to mineral deed bore non-participating royalty interest where careful examination of entire mineral deed reflected that was the parties' intent
Wenske v. Ealy
Contracts, Oil, Gas, & Mineral
The Supreme Court of Texas
June 23, 2017
16-0353
Jeffery Brown
Published
The Wenskes purchased a mineral estate from sellers who reserved a 1/4th non-participating royalty interest (NPRI) over oil, gas, and minerals.  The Wenskes later sold the property to the Ealys, reserving the mineral estate 3/8ths to the Wenskes and 5/8ths to the Ealys. In the ensuing suit, the trial court ruled that the both estates bore the NPRI in proportion to their share in the minerals.  On appeal, the Texas Supreme Court affirmed, emphasizing that rigid, mechanical rules of deed construction no longer control in Texas' mineral deed construction jurisprudence.  Instead, it limited its prior precedential holding in Bass v. Harper to the specific wording of the deed in that case, and reiterated that the parties' intent, as determined by careful examination of the deed in its entirety, controls.  As a result, both parties bore the NPRI where the deed 1) conveyed the estate "subject to" reservations and exceptions; 2) allocated production and benefits in proportion to ownership in minerals; and 3) unambiguously reflected that was the parties' intent when construed in its entirety.


Noble Energy liable to Conoco for $63M cleanup after inheriting undisclosed indemnity agreement in bankruptcy proceedings
Noble Energy, Inc. v. ConocoPhillips Co.
Bankruptcy, Contracts, Environmental
The Supreme Court of Texas
June 23, 2017
15-0502
Nathan L. Hecht
Published
Conoco and Alma Energy exchanged oil and gas leases with mutual indemnity for related environmental claims. Noble acquired the leases pursuant to an asset protection plan after Alma filed bankruptcy.  Noble indemnified Conoco for the first two environmental claims related to the leases, but not the third, a $63M cleanup settlement.  Noble argued it could not be held liable for an indemnity obligation not disclosed in the bankruptcy proceeding.  The Court found that the exchange agreement was an executory contract assumed by Noble under Section 365 of the Bankruptcy Code because the indemnity obligations are continuing.  The Court further found that Noble had at least constructive knowledge of the indemnity agreement in its chain of title, and had assumed indemnity for the first two environmental claims.  As a result, the Court held Noble must indemnify Conoco for the $63M paid to settle the third suit.


Because the foreign trade zone exemption does not apply appellee corporation's inventory, appellant county was entitled to summary judgment; summary judgment in favor of appellees reversed.
Harris County v. Harris County Appraisal District & Prsi Trading, LLC
Gov't/Administrative, Tax
Texas 1st Court of Appeals
June 22, 2017
01-16-00389-CV
Russell Lloyd
Published
This was an appeal of the trial court’s judgment on a petition for judicial review of an order of the appellee county district Appraisal Review Board (ARB) denying the appellee County’s challenge to the granting of a property tax exemption on certain inventory owned by the appellee corporation. The appellee county filed its original petition for review seeking judicial review of the ARB’s order pursuant to Tax Code section 42.031. The appellee corporation and the appellee county answered respectively. The appellee county timely filed its notice of appeal. The appellate court found that United States Customs and Border Protection (CBP) issued two letter rulings, widely separated in time, which consistently set forth the relevant facts, applicable law, the issue before it, its legal analysis, and its holding. The appellee corporation contended that collateral estoppel was inapplicable  because the appellee County was not a party to CBP’s proceedings. Furthermore, the summary judgment evidence demonstrated, as a matter of law, that the foreign trade zone (FTZ) tax exemption did not apply to the appellee’s inventory during the applicable tax years. Because the FTZ exemption did not apply to the appellee corporation’s inventory, the appellee County was entitled to summary judgment. Accordingly, the appellate court reversed the trial court’s order granting summary judgment to the appellee corporation and the appellee county district and denying the appellee county’s motion for summary judgment, and the appellate court rendered judgment in favor of the appellee county.


In action arising out of an alleged hostile work environment and wrongful discharge, appellee's claims against the appellant county were barred by governmental immunity.
Jefferson County v. Stines
Civil Rights, Contracts, Employment, Gov't/Administrative
Texas 9th Court of Appeals
June 22, 2017
09-16-00058-CV
Charles A. Kreger
Published
The Deputy Constables Association, the appellant county, and the Constables for Precincts 1, 2, 4, 6, 7, and 8 of the appellant entered into a collective bargaining agreement for the period commencing October 1, 2013, and ending September 30, 2014 (the Agreement). The Agreement states that it was made and entered into by the parties in accordance with all applicable state and federal statutes, including the Fire and Police Employee Relations Act of Texas (FPERA) (Chapter 174 of the Texas Local Government Code). The appellee, a former deputy constable in the office of the Constable for county Precinct 1, filed suit against the appellant, alleging that he had been subjected to a hostile work environment while employed by the appellant. The appellant appealed from two orders of the trial court denying its plea to the jurisdiction and granting the appellee’s request for a declaratory judgment and writ of mandamus to compel the appellant to submit to arbitration. The appellate court found that the Uniform Declaratory Judgment Act (DJA)’s limited waiver of immunity did not apply to the appellee’s declaratory judgment claim, even if the trial court properly construed that claim as seeking a declaration regarding the applicability of Chapter 174 to deputy constables. Further, the appellee’s mandamus claim did not itself fall within section 37.006(b)’s waiver of immunity because it was not a claim for a declaratory judgment that challenges the validity of a statute or ordinance. The appellee had not pleaded facts sufficient to show that the DJA waived the appellant’s immunity from suit for the claims asserted in the  case. The waiver of immunity created by sections 174.008 and 174.251 did not apply to the appellee’s claims in the instant case. To the extent section 174.252 could be construed as a limited statutory waiver of immunity from suit for claims brought under section 174.252 against a public employer, the court found that it did not waive the appellant’s immunity from suit in the case. The language in the Agreement did not constitute a valid waiver of the appellant’s immunity from suit. In light of the Texas Supreme Court’s opinion in Sharyland and the specific facts of the case, the court found that the appellant did not waive its immunity from suit by its conduct in the case. Accordingly, the judgment was reversed and rendered.


Individual's mineral estate interest passed by virtue of paragraph II of her will to three grandchildren and their successors in title, which include appellees as one grandchild's heirs.
Boothe v. Green
Appellate: Civil, Oil, Gas, & Mineral, Real Property, Wills/Trusts/Probate
Texas 13th Court of Appeals
June 22, 2017
13-15-00267-CV
Rogelio Valdez
Published
Three individuals owned equal undivided fee interests in 1,448.50 acres of farm and pasture land. One executed her last will and testament. The three individuals sold the property and then received an undivided one half mineral interest in the property. The appellants, heirs of two of the individuals,  filed a petition for a declaration from the trial court that the undivided mineral interest in the 1,448.50 acres owned by the deceased, the third individual, upon her death passed equally to the individuals by virtue of the deceased’s last will and testament paragraph II. The appellees filed a counterclaim for trespass to try title claiming that at all times mentioned, the appellees were and were the owners in fee simple of this severed mineral interest by the devise in the deceased’s will by virtue of the residuary clause. The appellees also asserted a claim for money had and received against the appellants. The appellees and the appellants filed traditional partial motions for summary judgment, each arguing that the deceased’s will gave them an interest in the mineral estate. The trial court granted the appellees’ motion and denied the appellants’ motion. The trial court also granted the appellees’ subsequent traditional partial motion for summary judgment, making the judgment final for purposes of appeal. The appellate court found that because the deceased’s interest in the mineral estate belonged to, or was part of, the respective land, when the deceased made the conveyance to the second individual and he re-conveyed the mineral interest to her, only that portion of the legacy belonging to the second individual was adeemed. And because the deceased possessed an interest in the mineral estate at the time of her death, the alienation operated pro tanto. Having so concluded, the deceased’s undivided mineral interest passed equally to the individuals by virtue of paragraph II of her will. Further, the appellees argued to the trial court that the appellants were improperly paid royalties because the mineral interest passed to the individual alone as part of the residuary estate. There was no evidence that the appellants improperly received royalty payments on the mineral estate. Accordingly, the judgment was reversed and rendered.


Because appellant did not attempt to introduce evidence during trial, she failed to preserve the error in the exclusion of evidence issue; there was evidence of reasonable efforts to keep her in her home and eliminate the need for her removal.
In re v.A.G.
Criminal, Juvenile
Texas 8th Court of Appeals
June 21, 2017
08-15-00169-CV
Yvonne T. Rodriguez
Published
The appellant, a juvenile, challenged a judgment adjudicating her delinquent based on the jury’s determination that she committed the offense of assault on a public servant and committing her to the Texas Juvenile Justice Department (TJJD). Because the appellant did not attempt to introduce the evidence during trial, the appellate court conclude that she failed to preserve the alleged error. It found that there was evidence that reasonable efforts have been made to avoid removing the appellant from her home because she had been provided with intensive in-home counseling services and community-based supervision. Unfortunately, the appellant has made no minimal progress and her probation officer reported that she has continued to disregard the conditions of probation. The evidence showed that the appellant’s home did not provide the level of support needed to successfully complete the conditions of probation. When viewed in the light most favorable to the challenged finding, the evidence was sufficient to show that the department made reasonable efforts to prevent or eliminate the need to remove appellant from her home. The appellate court reached the same conclusion after viewing the evidence in a neutral light as required by the factual sufficiency standard. Accordingly, the trial court was affirmed.


Trial court did not abuse its discretion by allowing complaining witness to use service dog as comfort item while testifying; trial court’s ruling to admit stepdaughter’s testimony about appellant's assaults against her was not abuse of discretion.
Lambeth v. State
Criminal, Evidence
Texas 9th Court of Appeals
June 21, 2017
09-15-00297-CR
Hollis Horton III
Published
The appellant appealed a judgment rendered following a jury trial in which he was found guilty of having engaged in the continuous sexual abuse of a child and of having committed an aggravated sexual assault against a child. The appellant received a thirty-year sentence for his conviction for continuous sexual abuse and a twenty-year sentence for his conviction for aggravated sexual assault. The jury also found that the appellant should pay a $7,500 fine. The appellate court found that because the evidence of the witness’s psychological injury was cumulative of other more direct evidence showing that the appellant's conduct caused the witness to suffer from a psychological injury, the alleged error in allowing the complaining witness to use the service dog was at most harmless error. The trial court did not abuse its discretion by allowing the complaining witness to use the service dog as a comfort item while testifying. Moreover, the evidence relating to the appellant’s assaults against his former stepdaughter were admissible to show that the sexual acts he committed against the complaining witness were acts consistent with the appellant’s character for taking sexual advantage of the minor females who were living with him in his home. The trial court’s determination that the stepdaughter’s testimony was more probative than prejudicial was a decision that fell within the zone of reasonable disagreement. Thus, the trial court’s ruling to admit the stepdaughter’s testimony was not an abuse of discretion. Accordingly, the trial court’s judgment was affirmed.


Trial court granted the temporary injunction to preserve the collateral securing appellee creditor's loans.
Hartwell v. Lone Star, PCA
Banking and Finance, Contracts, Creditor/Debtor, Torts
Texas 6th Court of Appeals
June 21, 2017
06-17-00030-CV
Ralph Burgess
Published
After the appellants defaulted on the payment due on two of their loans from the appellee, they sold cattle securing the loans without paying the proceeds to the appellee. After learning of the cattle sales and that some of the proceeds were used to pay other creditors, the appellee sued the appellants for breach of contract, breach of fiduciary duty, conversion, unlawful misappropriation under the Texas Theft Liability Act, and misapplication of fiduciary property/property of a financial institution. The appellate court found that the appellants objected to the appellee regional president's affidavit in their special exceptions, they failed to obtain a ruling on their objection and the appellants have failed to preserve any complaint related to the president’s affidavit for the court review. Further, the injunction  was generally prohibitive in that it enjoined the appellants from concealing, damaging, or destroying the collateral; forbids any disposition of the collateral without the written consent of the appellee; forbids the destruction or disposal of any records related to the collateral or disposition of the collateral; and enjoined the use of the appellants’ bank accounts, except to pay ordinary living expenses and routine business expenses. The appellants have not asserted a point of error challenging the sufficiency of the reasons stated by the trial court for imposing the other, prohibitive, provisions of the injunction. Neither could the court say that the trial court abused its discretion in setting the bond amount at $10,000.00 and the purpose of the bond was to protect the enjoined party from damages it may incur resulting from an improperly granted injunction. Thus, the appellants offered no evidence of the damages they might incur if the temporary injunction was improperly granted. Without some evidence that would support a higher bond amount, the court could not say that the trial court abused its discretion in setting the bond amount. Accordingly, the trial court's judgment was affirmed.


The trial court did not abuse its discretion by admitting the complaining witness’s testimony about the fact she previously picked the appellant’s image from the images she was shown by the police.
Sanders v. State
Criminal, Evidence
Texas 9th Court of Appeals
June 21, 2017
09-16-00004-CR
Hollis Horton III
Published
The appellant appealed his conviction for assault. The appellate court found that the complaining witness testified during the appellant’s trial, and she could have been cross-examined by the appellant during the trial about her prior out-of-court identification of the appellant from the images in the photo array. Under Tex. R. Evid. Rule 801(e)(1)(C), the complaining witness’s testimony about her prior statement identifying the appellant was admissible.  The trial court did not abuse its discretion by admitting the complaining witness’s testimony about the fact she previously picked the appellant’s image from the images she was shown by the police. Accordingly, the appellantcourt affirmed the trial court’s judgment.


In prosecution for credit-debit card abuse by possessing two incomplete debit cards, lack of the definition of "incomplete" in the jury charge was an error that caused defendant egregious harm.
Omoruyi v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
June 21, 2017
06-17-00020-CR
Josh R. Morriss III
Published
The indictment alleged that the appellant committed credit/debit card abuse by possessing two incomplete debit cards. A jury convicted the appellant and assessed two years’ confinement and a fine of $1,000.00, assessments incorporated into the trial court’s judgment. Because the jury could physically view and handle each of the two cards, the Visa apparently lacked a clear expiration date, and the MasterCard lacked any individual’s name to whom it was issued, and the jury could have rationally found beyond a reasonable doubt that the two cards were lacking something needed to allow their use.  Thus, the evidence was legally sufficient that the two cards were incomplete within the meaning of the statute and the indictment. Because the lack of the definition deprived the appellant of the right to have an informed jury decide his fate on the only real defensive theory, it denied him a fair and impartial trial. Harm was egregious. Accordingly, the appellate court reversed the judgment of the trial court and remanded.


Trial court did not err in granting summary judgment favoring appellees on substantive grounds on each of appellant's claims for tortious interference, conspiracy, and aiding and abetting.
Immobiliere Jeuness Establissement v. Amegy Bank National Association
Appellate: Civil, Torts
Texas 14th Court of Appeals
June 20, 2017
14-16-00457-CV
Martha Jamison Hill
Published
The appellant brought a derivative lawsuit on behalf of two limited partnerships against the appellees for tortious interference with the partnership agreements, as well as aiding and abetting and civil conspiracy to commit fraud and a breach of fiduciary duty. The trial court granted traditional summary judgment for appellees on both statute of limitations and substantive grounds. It was from that ruling that the appellant appealed. The appellate court found that with the appellant’s tortious interference and conspiracy claim, the alleged harm was simply too attenuated from the alleged aiding and abetting conduct and insufficiently foreseeable. Because the appellees conclusively established that their conduct was not the proximate cause of the alleged damages for aiding and abetting, the trial court did not err in granting summary judgment against the cause of action. Moreover, because the trial court did not err in granting summary judgment against the appellant’s claims, the appellate court overruled the appellant's second issue. Because the record did not reflect that the trial court expressly or implicitly ruled on the motion for expenses or that appellees objected to any refusal to rule, the appellees had not preserved the issue of expenses under Texas Business and Organisation Code section 153.404(e) for court review. Accordingly, the trial court's judgment was affirmed.


Conviction of compelling prostitution affirmed; trial court did not abuse its discretion by denying appellant’s motion to suppress Facebook evidence or by admitting Facebook evidence.
Murray v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
June 21, 2017
04-16-00227-CR
Irene Rios
Published
The appellant was convicted by a jury of compelling prostitution. The appellate court found that the victim was the victim of the alleged crime, therefore the Police officer (the officer) did not need to independently verify the information provided or establish the victim’s reliability. As the victim’s credibility and the reliability of the information she provided were inherent. Similarly, the magistrate could have relied on information provided to the officer by other law enforcement officers. Therefore, the failure of the officer to establish the victim’s credibility or to verify information provided by other officers were not valid bases to suppress the Facebook-account evidence obtained through the search warrant. To the extent the appellant contended the officer did not convey sufficient facts to establish probable cause to issue a search warrant, that argument failed as well. Therefore, the trial court did not err by denying the appellant’s motion to suppress the Facebook evidence obtained as a result of the search warrant. The State presented sufficient prima facie evidence to support a finding by a reasonable jury that the exhibits were what they purported to be, that was, Facebook pages created by the appellant. The trial court’s admission of the Facebook evidence was within the “zone of reasonable disagreement” and the trial court did not abuse its discretion by admitting the Facebook evidence. Accordingly, the appellate court affirmed the judgment of conviction.


Plaintiff satisfied the Texas Medical Liability Act's expert-report service requirement when she served defendant with a report concurrent with pre-suit notice.
Ransom v. Eaton
Appellate: Civil, Health Care, Torts
The Supreme Court of Texas
December 02, 2016
16-0079
Per Curiam
Published
The Texas Medical Liability Act required those pursuing a healthcare-liability claim to serve an expert report on each party or their attorney no later than 120 days after each defendant filed an original answer. The petitioner alleged that the respondent, a dentist, extracted two teeth in addition to the nine agreed on in a treatment plan. The petitioner served the respondent with the required pre-suit notice and included an expert report, which the respondent did not dispute receiving. The Texas Supreme Court found that TEX. CIV. PRAC. & REM. CODE section 74.351(a) did not include an express or implicit prohibition on service before the defendant was named as a party. Looking to the stated purpose of the Act, the court concluded that pre-suit service of an expert report could only further the statute’s objective of encouraging and enabling parties to settle healthcare liability claims without resorting to the lengthy and expensive litigation process.  The respondent waived any objection to the sufficiency of the petitioner’s expert report by failing to raise any objection within 21 days after filing her original answer and choosing instead to seek dismissal following the 120-day deadline. The court granted the petition for review and, without hearing oral argument, reversed the appellate court’s judgment and remanded the case to the trial court with instructions.    


When two inherently interrelated suits are brought in different counties, the first-filed suit ordinarily acquires dominant jurisdiction and the second-filed suit should be abated.
In re Red Dot Building System, Inc.
Appellate: Civil, Contracts, Courts
The Supreme Court of Texas
December 02, 2016
15-1007
Per Curiam
Published
The company sued the relator in Hidalgo County county court at law. The Hidalgo County suit concerned the same contract between the parties, and asserted claims of breach of contract, deceptive trade practices, and accord and satisfaction. All of the claims related to the contract with the relator. The company claimed that the relator breached the contract by failing to provide the scope of work per plans and specifications and failing to provide the metal building component in a timely fashion. The company alleged that the relator engaged in deceptive trade practices in failing to supply the pre-engineered building under the contract’s plans and specifications. The company also alleged that it paid the relator the remaining balance due on the contract as a full accord and satisfaction. When two inherently interrelated suits were brought in different counties, the first-filed suit ordinarily acquired dominant jurisdiction and the second-filed suit should be abated. In the pending dispute, the relator sought relief by writ of mandamus from trial court orders in the second-filed suit. The Texas Supreme Court found that the two suits were inherently interrelated in that they involve a dispute between the same two contracting parties over whether the relator performed its contractual obligations and was therefore entitled to recover full payment under the contract. Neither party disputes that the two suits were inherently interrelated under the law governing abatement on grounds of dominant jurisdiction. The Henderson County court acquired dominant jurisdiction, the Hidalgo County court should have granted the relator’s plea in abatement and abused its discretion in failing to do so, and the relator was entitled to mandamus relief. Accordingly, the court conditionally granted the relief.


No impediment to enforcing the petitioner’s obligations under a contract theory even if the pooling designation failed to effect a conveyance of title.
Samson Exploration, LLC v. T.S. Reed Properties, Inc.
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral
The Supreme Court of Texas
June 23, 2017
15-0886
Eva M. Guzman
Published
The petitioner company was the lessee under adjacent East Texas mineral leases unilaterally pooled for natural gas development. The litigation over royalties owed under the mineral leases involves multiple stakeholders, three gas wells, and two pooled units. Some of the unpooling respondents sued the petitioner in 2004, and thereafter other unpooling respondents joined the suit along with the overlapping respondents. Over the span of five years, the trial court rendered judgment on the parties’ claims, counterclaims, and defenses in a series of interlocutory summary-judgment orders. In 2013, the trial court rendered final judgment, awarding nearly $450,000 in breach-of-contract damages to the unpooling respondents and more than $2.5 million in breach-of-contract damages to the overlapping respondents. The appellate court affirmed, reversed and remanded. The Texas Supreme Court found no impediment to enforcing the petitioner’s obligations under a contract theory even if the pooling designation failed to effect a conveyance of title. The record bore no evidence that the overlapping respondents played any role in any of the matters. Therefore, the court agreed with the appellate court that the petitioner’s affirmative defenses failed as a matter of law. It held the petitioner must bear its contractual obligation to pay royalties out of its working interest rather than seeking reimbursement from stakeholders in the Amended Unit. Because it was undisputed that after joining the lawsuit the unpooling claimants continued to accept payments without challenging the Amended Unit, the record conclusively establishes they ratified the amendment. The lease covers a less interest in the oil and gas in all or any part of the leased premises than the entire undivided fee simple estate because the lessor’s 50% undivided mineral interest in the leased premises was less than the entire undivided fee simple estate of the leased premises. Accordingly, the court affirmed the appellate court’s judgment.


In action seeking to have contract awarded to another applicant declared void, the appellants had not cited any authority establishing that a private cause of action existed for claims of that type or that governmental immunity for claims of that type had been waived
Skypark Aviation, LLC v. Lind
Contracts, Gov't/Administrative, Transportation
Texas 11th Court of Appeals
June 22, 2017
11-14-00352-CV
John M. Bailey
Published
The appellee county was the owner of an airport facility. The airport was operated by a fixed base operator who contracts with the appellee county for the airport’s operation and maintenance. The appellants filed the underlying action seeking declaratory and injunctive relief by having the contract awarded to the other applicant declared void. The appellants filed various motions for reconsideration after the trial court entered its order granting the appellees’ pleas to the jurisdiction. However, the record did not reflect that the trial court ruled on any of the motions for reconsideration. The Appellate Court found that the attorney general’s office for the reasons set out in its opinion and the court noted that Chapter 263 did not contain a provision similar to Section 262.033 providing a waiver of immunity to enjoin leases made in violation of the chapter. Further, the record did not reflect that the trial court based its decision to grant the pleas to the jurisdiction on the argument and the court did not reach the issue because of the disposition of the appellants’ first and second issues sustaining the trial court’s determination that it lacked subject-matter jurisdiction of the appellants’ claims based on governmental immunity. Those matters were not germane to the appellees’ pleas to the jurisdiction challenging the causes of action pleaded by the appellants. The appellants had not cited any authority establishing that a private cause of action existed for claims of that type or that governmental immunity for claims of that type had been waived. Accordingly, the trial court's judgment was affirmed.


Appellant had not identified any evidence specific to his necessity defense such that the jury might have rejected appellant's self-defense theory while accepting his necessity theory; the instructions given and the evidence overlapped such that any omission of necessity instruction was harmless
Rodriguez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
June 20, 2017
14-16-00107-CR
Ken Wise
Published
     The jury found appellant guilty of aggravated assault and assessed punishment at twenty-five years’ confinement. The appellate court found that the appellant had not identified, and court could not find, any evidence in the record specific to appellant’s necessity defense such that the jury might have rejected appellant’s self-defense theory while accepting his necessity theory. Appellant’s conduct was the same: shooting the complainant. The harm sought to be avoided was the same: being shot by the complainant. None of the evidence and instructions concerning self-defense set up any barriers that could have led to a finding of necessity without a finding of self-defense. Therefore, the necessity instruction was pure “belt and suspenders.” The instructions and evidence overlapped to such a degree that court was assured appellant suffered no harm. Accordingly, court affirmed the trial court’s judgment.


Without notice and opportunity to inspect the alleged defect, appellee builder was prejudiced in determining whether it might be liable for the damages and whether to offer to repair or make a monetary offer of settlement as permitted under the Residential Construction Liability Act
Vision 20/20, Ltd. v. Cameron Builders, Inc.
Contracts, Damages, Real Property, Torts
Texas 14th Court of Appeals
June 20, 2017
14-15-01011-CV
Martha Jamison Hill
Published
     The instant appeal concerned statutory construction of a provision of the Residential Construction Liability Act (RCLA). The appellant sued the appellee, alleging that a construction defect in a home built by the appellee resulted in significant damages. The trial court granted summary judgment favoring the appellee based on the notice provisions of RCLA section 27.003(a)(2). The appellate court found under the express language of the statute, the complaint against the contractor such as alleged “arises” from a “construction defect” if it merely “concerns” the construction of a new residence. A construction that could exclude physical damage was contrary to the very purpose of the statute. The court concluded that the context in which “may” appeared in Tex. Prop. Code Section 27.001(4) necessarily required a different construction than what appellant proposed. Further, the court found that Hernandez v. Lautensack, 201 S.W.3d 771 could be distinguished from the instant case because in the instant case, the appellee did not receive the required notice and was not provided an opportunity to inspect the residence and make an offer to fix the problem as was the contractor in Hernandez. The appellant conceded it did not provide the required notice. Without the opportunity to inspect and investigate the nature and cause of the defect and the nature and extent of necessary repairs, the appellee was prejudiced in determining whether it might be liable for the damages and whether to offer to repair the damages or make a monetary offer of settlement as permitted under the RCLA. Accordingly, court affirmed the judgment.


Appellant individual was not a party or third-party beneficiary of the escrow agreement, and appellee company owed him no contractual duty, nor did the appellee company and the appellee individual owe appellant individual any fiduciary duty as a third-party beneficiary of the escrow agreement
Muller v. Stewart Title Guaranty Company
Contracts, Corporations, Insurance, Procedure, Real Property
Texas 14th Court of Appeals
June 20, 2017
14-16-00311-CV
Marc W. Brown
Published
     The instant case arose out of a business venture involving property for a golf resort. The appellant individual was one of three individuals who formed the appellant company. The appellant company and the company entered into an escrow agreement with the international division of the appellee company serving as escrow agent. The appellant individual contributed funds for the escrow. After the appellant company and the company cancelled the agreement, the appellee company released the remaining escrow funds to the appellant company account. In pertinent part, the appellant individual brought claims against the appellee company and the appellee company’s employee, the appellee individual, for releasing the funds to the appellant company account instead of releasing the funds to him. The trial court granted the appellee company’s and the appellee individual’s motions for traditional and no-evidence summary judgment; the appellee company’s and the appellee individual’s motion to strike a fifth amended petition naming the appellant company as an additional plaintiff; and the appellee company’s and the appellee individual’s motion to strike the appellant company’s petition in intervention and to enter final judgment. The appellate court found that because the appellant individual was not a party or third-party beneficiary of the escrow agreement as a matter of law, the appellee company owed him no contractual duty, and the trial court properly granted summary judgment on the appellant individual’s contract claims based on such agreement. Further, the court found that as a matter of law the appellee company and the appellee individual owed the appellant individual no fiduciary duties based on any status as a third-party beneficiary of the escrow agreement. Therefore, the trial court properly granted summary judgment on the appellant individual’s fiduciary claims. Finally, the trial court’s broad discretion to consider all the issues related to whether the intervention was proper, the appellant individual and the appellant company have not shown that the trial court acted without any reference to guiding rules or principles. Accordingly, the court affirmed the trial court’s final judgment.


The ship undergoing conversion was not in navigation and incapable of self-transit and the Jones Act did not apply during the course of respondent seaman’s employment during which he was injured
Helix Energy Solutions Group, Inc. v. Gold
Admiralty & Maritime, Employment, Litigation: Personal Injury, Torts
The Supreme Court of Texas
June 16, 2017
16-0075
John P. Devine
Published
     The petitioner corporation purchased the drill ship for $85,000,000. Prior to the purchase, the drill ship was laid up in a shipyard. And upon purchase, another vessel towed the drill ship to the Jurong Shipyard in Singapore. Though the petitioner initially expected the conversion to take five or six months, unanticipated work, labor issues, and trouble procuring certain parts delayed the conversion. The Jones Act provided a compensation scheme designed to mitigate the unique perils faced by seamen maritime workers with a substantial connection to a vessel in navigation. The Texas Supreme Court found that all of the Supreme Court’s indicators of the extensiveness of the overhaul reveal that the drill ship’s conversion warrants out-of-navigation treatment as a matter of law. So too did the drill ship’s conversion warrant out-of-navigation treatment under Stewart’s capability-of-transportation standard. Further, the court did not cherry-pick a point in time that did not adequately characterized the true status of the ship; the drill ship remained stagnant incapable of self-transit throughout the entire time Gold claims Jones Act coverage and the drill ship was practically capable of maritime transportation for no time during which Gold could claim a Jones Act connection to the ship. As the Supreme Court had said time and again, analyzing that issue would often involve fact questions worthy of jury consideration. But here, absent any such disputes about relevant facts, and faced with conclusive proof above and beyond the threshold for summary judgment, the court held as a matter of law that the drill ship was not in navigation and therefore that the Jones Act did not apply during the course of Gold’s employment. Because the appellate court held otherwise, the court reversed, and the court reinstated the trial court’s summary judgment in favor of the petitioner.


Whether both respondents had actual, independent knowledge of issues covered by the lis pendens notice as second appellant alleged was an unresolved fact precluding summary judgment, and thus, respondents had not established bona-fide-purchaser status simply by relying on the expungement order
Sommers v. Sandcastle Homes, Inc.
Bankruptcy, Contracts, Procedure, Real Property
The Supreme Court of Texas
June 16, 2017
15-0847
Jeffery Brown
Published
     The respondents each bought real property involved in a title dispute. The two companies prevailed at the summary-judgment stage, successfully arguing that Property Code Section 12.0071, the lis pendens-expunction statute eliminated any and all actual or constructive notice of the dispute. The first appellant appealed, arguing that the statute did not eliminate the companies’ independent notice of the property dispute. In a split opinion, the appellate court affirmed. The Texas Supreme Court found that the second appellant alleged that both the respondents had actual, independent knowledge of the issues covered by the lis pendens notice. Whether that was true was an unresolved fact issue precluding summary judgment. In light of the second appellant's allegation, the respondents had not established bona-fide-purchaser status simply by relying on the expungement order. Accordingly, the court reversed the appellate court's judgment and remanded to the trial court for further proceedings.


Trial court abused its discretion in holding that the fee agreement for legal services entitled the lawyers to recovery from non-cash benefits, such as the ownership interest in any business recovered as attorney fees
In re Davenport
Contracts, Damages, Professional Responsibility
The Supreme Court of Texas
June 16, 2017
15-0882
Don R. Willet
Published
     The instant dispute arose from a contingency fee agreement for legal services. The trial court granted a new trial, in part, because the pertinent agreement unambiguously permitted the lawyers to recover an ownership interest as attorney fees. Later the appellate court conditionally granted mandamus relief and directed the trial court to state its reasons for the new trial, to comply with In re Toyota Motor Sales, U.S.A., Incorporated. The trial court replaced its original order, stating that the Agreement was unambiguous after all and that the evidence was legally and factually insufficient to support the jury’s findings of estoppel and waiver. The appellate court summarily denied the relator’s second petition for writ of mandamus. The Texas Supreme Court found that the term sums in the contract was the crux of the dispute and the Agreement stated that the lawyers would receive forty percent of the gross amount recovered and then later stated by gross amount was meant the total sums recovered. Further, the trial court abused its discretion in holding that the Agreement entitled the lawyers to recovery from non-cash benefits, such as the ownership interest in any business recovered. Furthermore, the trial court abused its discretion by granting a new trial based on its findings that the agreement unambiguously provided for the recovery of an ownership interest as attorney fees. Finally, the Agreement was unambiguous in favor of the relator on the instant question, the court did not address the relator’s affirmative defenses of waiver and estoppel. Accordingly, the court conditionally granted the relator’s petition for writ of mandamus, and directed the trial court to vacate both of its new trial orders, and to render a final judgment consistent with the instant opinion. The court were confident the trial court would comply, and the writ would issue only if it did not.


Though replica gun was not a “firearm”, it was agreed to be a deadly weapon, however, defendant did not bring the gun to [flashmob] demonstrate at the police traffic stop to “alarm” in disorderly conduct; defendant did interfere with police during execution of the traffic stop of a fugitive
Lovett v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
June 15, 2017
02-16-00094-CR
Elizabeth S. Kerr
Published
     The appellant was charged with and convicted of two relatively mundane offenses disorderly conduct and interfering with the police’s public duties and had not directly attacked either statute’s constitutionality in his points on appeal. Based on the jury’s verdicts convicting him of both offenses, the trial court sentenced the appellant to 90 days in jail on each charge and ordered those sentences to run concurrently. The appellate court found that the State did not prove all elements of disorderly conduct beyond a reasonable doubt. Further, no rational factfinder could have found that the appellant intentionally or knowingly displayed his pistol in a manner calculated to alarm. Further, the court sustained the appellant’s point attacking the sufficiency of the evidence to support his disorderly-conduct conviction, reversed the trial court’s judgment, and rendered judgment of an acquittal. Because the evidence showed that officer was performing security for and in the area of the traffic stop and the evidence sufficed to show that he was performing a duty or exercising authority imposed or granted by law within the meaning of Tex. Penal Code Ann.subsection 38.15(a)(1). Furthermore, the rational factfinder could have found beyond a reasonable doubt that by refusing to disarm, the appellant interrupted, disrupted, impeded, or otherwise interfered with the officer while the officer was performing a duty or exercising authority imposed or granted by law. Finally, the appellant’s point attacked the sufficiency of the evidence for interference with public duties. Accordingly, the court reversed the conviction for disorderly conduct and ordered an acquittal and the court affirmed the conviction for interference with public duties.


Superintendent had express authority to reassign appellant to the position of assistant principal at the high school from that of principal at the intermediate school, where she was certified for the position and it was within the same professional capacity
Jenkins v. Crosby Independent School District
Constitution, Contracts, Education, Employment, Gov't/Administrative
Texas 3rd Court of Appeals
June 15, 2017
03-15-00313-CV
Bob Pemberton
Published
     After the new superintendent of the appellee district reassigned the appellant from the position of principal at an intermediate school within the appellee to that of an assistant principal at High School, the appellant challenged the reassignment pursuant to the appellee's grievance procedure. After the appellee's board of trustees (board) voted to deny her complaint, she appealed the board’s decision to the appellee commissioner of Education. The appellee commissioner affirmed the appellee district’s decision, and the appellant sought judicial review of the appellee commissioner’s decision. The trial court affirmed the appellee commissioner’s decision. The appellate court found that applying the applicable standard of review and assuming without deciding that the appellant's complaint included a challenge based on her particular circumstances, the court concluded that there was a reasonable basis in the local record for concluding that, based on her particular circumstances, the appellant's reassignment from principal at the intermediate school to assistant principal at the high school was within the same professional capacity. Thus, the appellee commissioner’s decision affirming the board’s decision was supported by substantial evidence. Further, under the contract’s terms, the parties agreed that she could be reassigned as the superintendent deemed proper to other duties for which she was professionally certified or otherwise qualified to perform. The appellant did not dispute that she was professionally certified to be an assistant principal. Lastly, having concluded that the appellee commissioner’s decision was supported by substantial evidence, the court affirmed the trial court’s final judgment affirming the appellee commissioner’s decision.


Evidence supported jury’s decision in favor of two townhome duplex owners’ breach of contract, trespass, negligence, and diversion of water claims against their homeowners association and its management company, but did not support award of mental anguish to both appellees
Lakeside Village Homeowners Association, INC., v. Belanger
Contracts, Damages, Gov't/Administrative, Real Property, Torts
Texas 8th Court of Appeals
June 14, 2017
08-15-00214-CV
Ann Crawford McClure
Published
     The instant appeal arose from two townhome duplex owners (the appellees), who brought breach of contract, trespass, negligence, and diversion of water claims against their homeowners association and its management company (the appellants). The appellate court observed that error, if any, from the trial court’s reference to the “Agreement” in Questions One and Two was harmless.  Court overruled the challenges to the charge. Engineer’s testimony established that the cause of the foundation damage was the retaining wall’s deficiencies, including its ineffective drainage system, which allowed the lateral pressure to build and place significant pressure on the foundation, rotating the cripple wall. Expert witness agreed. Because the evidence supported the jury’s finding that a breach occurred, the recovery of attorneys’ fees was permitted. And, because court had determined that referencing the Agreement in the questions, even if error, was harmless, court adopted its analysis above and reached the same conclusion regarding specific performance. Further, while there was no testimony that affirmatively states that the appellants’ diversion of surface water was the only cause of damages, there was evidence to support the finding that their actions were a proximate cause of the damages. Under Texas law, there can be more than one proximate cause. And, the sparse evidence was woefully insufficient to support an award of mental anguish to both the appellees. It did not amount to “a high degree of mental pain and distress” that was more than mere worry, anxiety, vexation, embarrassment, or anger. Because the record contained more than a scintilla of evidence to support the jury’s finding on negligence, court overruled appellants’ evidentiary challenge. Furthermore a jury could reasonably conclude that appellant company was liable in failing to maintain the common areas. All of the appellants’ arguments relating to damages were overruled. Lastly, other than the jury’s mental anguish award to the appellees, the court had found no error. Therefore, it found no cumulative error. Accordingly, the court reversed and rendered on jury’s award of mental anguish to appellees and affirmed in all other respects.


Evidence legally insufficient to establish criminally negligent homicide because it did not show appellant’s failure to maintain safe driving speed and keep proper distance from other vehicles was a gross deviation from standard of care an ordinary driver would exercise in appellant’s position
Queeman v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
June 14, 2017
PD-0215-16
Elsa Alcala
Published
     The appellant was convicted of criminally negligent homicide after failing to prevent his van from colliding with another vehicle, which resulted in the death of a passenger in the other vehicle. The appellate court reversed the jury’s verdict of guilt. The Texas Court of Criminal Appeals agreed with the appellate court’s ultimate conclusion that the evidence in the instant case was legally insufficient to establish criminally negligent homicide because the evidence presented at trial did not show that appellant’s failure to maintain a safe driving speed and keep a proper distance from other vehicles was a gross deviation from the standard of care that an ordinary driver would exercise under all the circumstances as viewed from the appellant’s standpoint at the time of his conduct. Accordingly, the court affirmed the judgment of the appellate court.


Real estate contract showed parties’ awareness of a distinction between two types of interests and, even if not, difference between 1/32 royalty interest and 1/2 mineral interest was unmistakable; thus, appellants were charged with knowledge of deed’s contents, and discovery rule did not apply
Jarzombek v. Ramsey
Contracts, Discovery, Oil, Gas, & Mineral, Procedure, Real Property
Texas 4th Court of Appeals
June 14, 2017
04-16-00571-CV
Patricia O. Alvarez
Published
     The appellants appealed a final judgment incorporating an order granting a partial summary judgment in favor of the appellee. In the order granting the partial summary judgment, the trial court ruled that all of the appellants' claims against the appellee were barred by the applicable statute of limitations. The appellate court found that the court also disagreed with the instant distinction because the mistake as to Tract 2 was plain and conspicuous on the face of the deed. Further, instead of reserving one-half of the mineral estate as to Tract 2, the deed reserved only a 1/32 royalty interest. Knowing that the reservation was different for each tract made the mistake on the face of that deed even more conspicuous. Further, the real estate contract showed the parties’ awareness of a distinction between those two types of interest and in addition, even if the appellants were not aware of that distinction, the difference between 1/32 and 1/2 was unmistakable. Furthermore, because the deed in question was unambiguous, the appellants were charged as a matter of law with knowledge of the deed’s contents from the date of execution, and the conspicuousness of the deed’s mistake shatters any argument that the discovery rule should apply. Accordingly, the trial court’s judgment was affirmed.


Though record was silent as to why counsel did not introduce appellant’s letter into evidence at sentencing at which appellant received maximum sentence after pleading guilty, appellant had not rebutted the strong presumption that her trial counsel’s performance was reasonable
Williams v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
June 13, 2017
01-16-00781-CR
Russell Lloyd
Published
     After a hearing on the State’s motion to adjudicate, the trial court found the appellant, guilty of the third-degree felony offense of assault of a public servant, and assessed her punishment at ten years’ incarceration. The appellate court found that the record was silent as to why counsel decided not to introduce the letter into evidence or address some of the other issues raised in the letter, such as her time in the foster care system. The appellant had not rebutted the strong presumption that her trial counsel’s performance was trial strategy within the range of reasonable professional assistance. Further, the appellant’s conclusory statement was insufficient to demonstrate the second prong of Strickland, i.e., that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Accordingly, the court affirmed the trial court’s judgment.


Appellee County established its officer acted in good faith in taking over pursuit previously initiated by another law-enforcement officer on a motorcycle and during the short pursuit, his actions were justified, even if he struck appellant’s automobile, thus appellee was entitled to immunity
Martinez v. Harris County
Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
June 13, 2017
01-16-00140-CV
Michael C. Massengale
Published
     Appellant sued appellee County for injuries she and her two children sustained when her car was struck by a deputy constable who was pursuing a fleeing motorist. The trial court granted appellee summary judgment on the basis of governmental immunity. The appellate court concluded that the appellee conclusively established that its officer, who was driving a car, acted in good faith when, pursuant to policies established to promote the safety of law-enforcement officers, he took over a pursuit previously initiated by another law-enforcement officer on a motorcycle. Court further concluded that over the course of the short pursuit, no subsequent developments altered the balance of need and risk factors sufficiently to require an end to the chase. Because appellant failed to introduce controverting proof that no reasonable person in the officer’s position could have thought the circumstances justified his actions, court affirmed the judgment.


Appellant owed appellee a duty to provide a safe workplace and proof at trial was legally and factually sufficient that appellant breached that duty and proximately caused appellee’s injuries from appellee inflating a tire too large for the safety equipment provided on the job that exploded
Advance Tire and Wheels, LLC v. Enshikar
Employment, Litigation: Personal Injury, Torts, Workers' Compensation
Texas 1st Court of Appeals
June 13, 2017
01-16-00020-CV
Michael C. Massengale
Published
     Appellee sued his employer (the appellant), for negligence arising out of injuries he suffered due to the explosion of an over-sized tire that he inflated without the benefit of any safety equipment. Trial court entered judgment in the appellee’s favor. The appellate court found that the appellee alleged that the appellant negligently required him to engage in a dangerous activity by directing him to service a tire that could not be inflated safely due to the absence of appropriate safety equipment. Court concluded that the allegation properly invoked the appellant’s nondelegable legal duty as an employer to provide a safe workplace, particularly by providing reasonably safe equipment necessary for the performance of the job. Further, there was legally and factually sufficient proof that requiring the appellee to inflate a tire without providing reasonably safe equipment necessary for the performance of the job was a substantial factor in causing the appellee’s injuries, that but for the omission by the appellant, the appellee would not have been exposed to the tire’s explosion and his resulting injuries would not have occurred, and that a person of ordinary intelligence should have appreciated that inflating a tire too large to secure in the inflator posed the very hazard that injured the appellee. On that record, the trial court sitting as factfinder reasonably could have concluded that there was sufficient proof that the appellant’s breach of its duty to provide the appellee with a safe workplace proximately caused the injuries he suffered when the tire exploded, and that conclusion was not contrary to the overwhelming weight of the evidence. Accordingly, the judgment was affirmed.


Because jury verdict was insufficient to support a finding of abandonment of particular deed restrictions absent findings regarding the nonwaiver provision, reversed and remanded for entry of an injunction against appellees for operating a business out of their residential subdivision property
Vance v. Popkowski
Appellate: Civil, Contracts, Gov't/Administrative, Real Property
Texas 1st Court of Appeals
May 25, 2017
01-15-00897-CV
Michael C. Massengale
Published
     The instant appeal arose from a dispute over the enforcement of deed restrictions. The purchasers of deed-restricted property in a residential subdivision began operating a business from a single-family residence located on the property. Appellants, who also owned property in the subdivision, claimed that the operation of the business violated the deed restrictions. The appellants brought suit seeking a permanent injunction prohibiting operation of the business. The appellees admitted that they were operating a business but asserted as an affirmative defense that the deed restrictions had been abandoned. A jury found that the restrictions had been abandoned, and the trial court rendered judgment in favor of the appellees. The appellate court found that Jury findings that specific deed restrictions have been abandoned, standing alone, were insufficient to overcome a nonwaiver provision and establish the affirmative defense of abandonment. In the instant case, the evidence did not establish conclusively, as a matter of law, that there was a waiver of the nonwaiver provision. Further, the jury did not make any findings with respect to the waiver of the nonwaiver provision. Thus, the appellees did not secure findings sufficient to sustain their affirmative defenses of abandonment and waiver, and accordingly they waived the two defenses. The appellees admitted that they were operating a business from their residential property in Cypress Point Estates. Restriction No. 15 prohibited the operation of a business from any lot in the subdivision. Thus, the evidence conclusively established the appellants claim that the appellees were in violation of the deed restrictions. Because of the disposition of the issue, the court did do not reach the appellants second and third issues regarding the sufficiency of the evidence to support the trial court’s judgment. Accordingly, the court reversed and remanded.


Appellant could not be retried for first-degree burglary without violating Double Jeopardy Clause, but trial court did not err declaring a mistrial after determining jury was deadlocked on whether appellant committed lesser-included offense of second-degree burglary, and he could be retried
Traylor v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
May 25, 2017
13-13-00371-CR
Rogelio Valdez
Published
     The jury found the appellant guilty of first-degree burglary of a habitation, and the trial court sentenced him. The appellate court found that the appellant could not be retried for the offense of first-degree burglary without running afoul of the double jeopardy clause’s prohibition on successive trials; yet that was exactly what happened at his second jury trial, which resulted in a conviction for first-degree burglary. The court therefore sustained the appellant’s second issue to the extent that he argued that his conviction for first-degree burglary violated the double jeopardy clause. Further, according great deference to the trial court as the court must, the court held that the trial court exercised sound discretion in declaring a mistrial after determining that the jury was genuinely deadlocked regarding whether the appellant committed the lesser-included offense of second-degree burglary. Furthermore, the court overruled the appellant’s second issue to the extent that he argued no manifest necessity existed to declare a mistrial. The court’s holding meant that a retrial for second-degree burglary was not barred by double jeopardy. Accordingly, the court reversed the trial court’s judgment and remanded the case for further proceedings.


Trial court erred by failing to offset damages appellee insurer was entitled to recover from underinsured motorist by the amount of the settlement in underlying personal injury case; insurer was entitled to offset for settlement amount, where spouse did not have a community interest therein
Farmers Texas County Mutual Insurance Co. v. Okelberry
Appellate: Civil, Contracts, Damages, Insurance, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
May 25, 2017
14-15-01081-CV
Ken Wise
Published
     The instant was a suit between an insured and his insurance company over the amount due to the insured from his underinsured motorist (UIM) coverage following a settlement in an underlying personal injury lawsuit. The appellate court found that the evidence conclusively showed that all of the money was paid to the appellee as compensation for his damages, regardless of which party had the burden to prove how much of the settlement was paid or payable to the appellee for his damages. Thus, as a matter of law, the appellant was entitled to an offset of $639,988.77 for the entire amount of the payments shown to be paid or payable to the appellee for his damages. Lastly, the court held that the trial court erred by failing to offset the damages the appellee was entitled to recover from the underinsured motorist by the amount of the settlement in the underlying case. Accordingly, the court reversed the trial court’s judgment and remanded to the trial court with instructions to render a judgment awarding the appellant company a credit for the full amount of the settlement of the appellee's claims.


A rational trier of fact could have found that appellant committed indecency by exposure on at least three occasions, thus his multiple convictions did not violate double jeopardy principles and appellant was not seized when he voluntarily accompanied police to the police department
Hawkins v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
May 25, 2017
11-15-00106-CR
John M. Bailey
Published
     The jury convicted the appellant of one count of aggravated sexual assault (Count One), three counts of indecency with a child by contact (Counts Two, Four, and Six), and three counts of indecency with a child by exposure (Counts Three, Five, and Seven). The jury assessed his punishment at confinement for seventy-five years in the Institutional Division of the Texas Department of Criminal Justice on the aggravated sexual assault conviction. The appellate court found that a rational trier of fact could have found that the appellant committed indecency by exposure on at least three occasions, including the two occasions for which he had challenged the sufficiency of the evidence and asserted that his double jeopardy rights were violated. Further, the appellant was not seized within the meaning of the Fourth Amendment. Since the appellant was not arrested, the court need not address whether the circumstances surrounding the appellant’s confession sufficiently broke the causal chain between his arrest and his confession. Accordingly, the court affirmed the judgments of the trial court.


Commercial tenant was not required to give written notice of the landlord's alleged breach and an opportunity to cure, and trial court did not err in rejecting appellant’s two jury-charge complaints regarding requested wording of instructions regarding tenant’s occupancy restrictions
Ho & Huang Properties, L.P. v. Parkway Dental Associates, P.A.
Appellate: Civil, Contracts, Damages, Landlord and Tenant, Real Property
Texas 14th Court of Appeals
May 24, 2017
14-14-00528-CV
Kem Thompson Frost
Published
     The instant appeal, the second in the instant case, arose out of a landlord-tenant dispute under a commercial lease. The appellee sued the appellants, asserting breach of the lease. On remand following the first appeal, the trial court rendered judgment on the jury’s verdict, awarding the appellee actual damages and attorney’s fees. The appellate court found that the appellants had not shown that the trial court erred in failing to render judgment that the appellee take nothing by its claims based solely on the jury’s event-of-default finding in response to Question 3. The trial evidence was legally sufficient to support the jury’s excuse finding in response to Question 4, the jury’s damage finding in response to Question 5, the jury’s material-failure-to-comply finding in response to Question 1, and the jury’s attorney’s-fees findings in response to Question 6. The trial evidence was factually sufficient to support the jury’s material-failure-to-comply finding in response to Question 1. Section 27 of the lease did not require the appellee to give the appellants notice and an opportunity to cure before the appellee may sue the appellants for a breach of the lease. The trial court did not abuse its discretion by refusing the appellants’ request for an instruction on Section 32 of the lease or by refusing the appellants’ request to insert the word competitive into an instruction in Question 1. And, the trial court did not err in calculating prejudgment interest. Accordingly, the court affirmed the trial court’s judgment.


Appellee failed to identify any ground for modification of the retaliatory discharge award under Federal Arbitration Act and trial court erred in rendering judgment for less than the full amount awarded in arbitration; record did not support award of sanctions against appellant or his counsel
Guerra v. L&F Distributors, LLC
ADR, Appellate: Civil, Contracts, Damages, Employment, Torts
Texas 4th Court of Appeals
May 24, 2017
04-16-00233-CV
Luz Elena D Chapa
Published
     After arbitration of the appellant's retaliatory discharge claims against the appellee company, both parties requested the trial court confirm the arbitration award. The trial court rendered judgment against the appellee for the amounts awarded by the arbitrator, less any and all federally required withholdings. The trial court also entered a sanctions award against the appellant. The appellate court found that the final judgment included additional terms that changed the arbitration award. Nothing in the record suggested the trial court’s additional terms were arbitrated or required to effectuate the arbitration award or were necessary to render an enforceable judgment, and no grounds had been shown for vacating or modifying an arbitration award under the Federal Arbitration Act (FAA) . Thus, the trial court impermissibly modified the arbitration award. Further, the trial court’s order stated the sanction was imposed in accordance with the Texas Rules of Civil Procedure, but did not identify a specific rule. The appellant contended that the court was limited to reviewing the sanctions order under Rule 13 because that was the only potentially applicable rule of civil procedure. The appellee disagreed, and argued that because the trial court did not identify or track a specific rule, the court determine whether the award was proper under the trial court’s inherent authority. Thus, the sanction could not be affirmed under either authority. Further, the FAA required the trial court to render a judgment for the amount awarded by the arbitrator and contains no requirement that the appellant consent to anything less. The record did not support findings that the appellant failed to comply with the award or that his conduct was without justification. The court concluded that the record contains no evidence that the appellant or his counsel acted in bad faith or interfered with the trial court’s core functions. Thus, the trial court abused its discretion in awarding sanctions. Accordingly, the judgment was reversed and rendered in part, modified in part and affirmed as modified.


Trial court erred in determining that Oklahoma had exclusive continuing jurisdiction over the child, where Oklahoma paternity and support order was not a child custody determination and Texas was child’s home state before appellee commenced its termination action
In re C.R.-A.A.
Appellate: Civil, Family, Gov't/Administrative, Juvenile
Texas 4th Court of Appeals
May 24, 2017
04-16-00782-CV
Marialyn Price Barnard
Published
     After the appellee department initiated termination proceedings against the parents of the child, but before the final hearing, the associate judge based on a motion filed by Father signed an order in which she determined Oklahoma had exclusive continuing jurisdiction over the child under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the child should be placed with Father in Oklahoma pursuant to the Interstate Compact on the Placement of Children (ICPC); and the appellee should be dismissed as the child’s temporary managing conservator. The trial court adopted the associate judge’s order. The appellate court held the trial court erred in determining that under the UCCJEA, Oklahoma had exclusive continuing jurisdiction over the child. The 2014 Oklahoma paternity and support order was not a child custody determination and the record established Texas was the child’s home state before the appellee commenced its termination action. At the time of the associate judge’s order, the Texas court had jurisdiction over the custody matter involving the child. Further, the court held the ICPC applied only to out-of-state placements of children with foster care or as a preliminary to a possible adoption. The compact does not apply to interstate placements of children with their natural parents. Thus, in the instant case the court held the associate judge and the trial court erred in ruling the ICPC was applicable to the child’s placement with Father. Accordingly, the court reversed the trial court’s order and remanded.


Officer had reasonable suspicion to initiate traffic stop after responding to anonymous call dispatch and observing appellant’s vehicle exhibiting typical movements of driving while intoxicated; two experts’ testimonies of appellant’s blood analysis chemistry were admissible
Ashby v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 23, 2017
01-15-00182-CR
Rebeca Huddle
Published
     The appellant was charged by information with and, during a jury trial, pleaded guilty to the misdemeanor offense of driving while intoxicated. There was no plea bargain or punishment recommendation by the State. The trial judge released the jury and sentenced the appellant to 180 days’ confinement, probated for one year, and a $1,000 fine. The appellate court found that based on the officer's testimony that he observed the appellant's erratic driving—which was supported by his dash cam video, the trial court reasonably determined that the officer had reasonable suspicion to believe that the appellant may have been intoxicated. The first doctor testified about the process of analyzing the appellant's blood, and the second doctor explained the significance of that analysis and its result. Neither Guzman nor the cases relied upon by Guzman foreclose the use of two scientific experts involved in the analysis of a blood sample from testifying concerning their respective parts of the analysis. For the foregoing reasons, the court concluded that the trial court did not err in allowing the State to introduce evidence of Trifluorome thylphenylpiperazine (FMPP) in the appellant's blood. Accordingly, the court affirmed the trial court’s judgment.


First appellant insurer participated in appraisal process and promptly tendered full amount of umpire’s award for appellee insured’s loss; trial court erred in denying appellants’ motion for directed verdict on appellee's extra-contractual claims after he refused to accept the tendered award
National Security Fire & Casualty Company v. Hurst
ADR, Contracts, Damages, Insurance, Torts
Texas 14th Court of Appeals
May 23, 2017
14-15-00714-CV
John Donovan
Published
     The jury found the first appellant corporation breached its duty of good faith and fair dealing and awarded $25,000 as damages. The appellants brought the instant appeal from a judgment entered in accordance with the jury’s verdict in favor of the appellee, the first appellant corporation’s insured. The appellate court found that because the evidence conclusively demonstrated that the first appellant fully and timely paid the appraisal award, the appellee was precluded from maintaining his prompt payment claim as a matter of law. Further, according to the appellee’s own testimony, his only quarrel with the initial payment was that it was too low and the appellee subsequently filed suit and eventually invoked the appraisal clause and the first appellant participated in the appraisal process and, following the umpire’s award, timely tendered the full amount of the loss and the trial court erred in denying the appellants’ motion for directed verdict on the appellee's extra-contractual claims. Furthermore, the binding appraisal process was an extra-judicial means designed to avoid litigation on the issue of damage and an insured couldn't defeat an otherwise valid and binding appraisal award simply by refusing to accept the insurer’s payment of the award or by asserting extra-contractual claims that were derivative of the policy claim and to hold otherwise would obviate the very purpose of the binding appraisal process. Finally, the trial court erred in denying the motion for directed verdict. The court therefore reversed the judgment of the trial court and rendered judgment that the appellee’s take nothing on his claims.


Appellee auto dealer did not engage in alleged violations of the Texas Deceptive Trade Practices Act when it refused to correct mechanical issues appellant experienced on the purchased vehicle after installing a lift kit that restricted repair under the warranty in effect
Washburn v. Ford
Appellate: Civil, Consumer, Contracts, Torts
Texas 14th Court of Appeals
May 23, 2017
14-16-00459-CV
Martha Hill Jamison
Published
     The appellant challenged the trial court’s grant of summary judgment in favor of the appellee as to the appellant’s Texas Deceptive Trade Practices Act (DTPA) claims. The appellate court found that salesperson offered the appellant an extended warranty, which he declined to purchase. The deposition testimony thus established that the appellee did not make any false representation involving a price reduction. In response, the appellant presented no evidence to raise an issue of fact as to the DTPA affirmative misrepresentation claim. Thus, the appellee conclusively established that it did not make false or misleading statements of fact concerning the reasons for, existence of, or amount of any price reduction. Further, the appellant did not present evidence in response to the summary judgment motion raising an issue of fact as to any such knowledge. Moreover, the appellee showed that it did not fail to disclose information regarding possible restrictions on the warranty. Thus, the appellee conclusively established that it did not fail to disclose known material information to the appellant in violation of the DTPA. Finally, the appellee established that did not take advantage of the appellant’s lack of the knowledge to a grossly unfair degree. the appellant did not present evidence in response raising an issue of fact as to his knowledge. Thus, the appellee conclusively established it did not engage in an unconscionable course of action. Accordingly, the court affirmed the judgment of the trial court.


Because the book as a whole and each of the complained-of gists and passages were not defamatory as a matter of law, trial court did not err in granting summary judgment on the family’s libel claim
Johnson v. Phillips
Appellate: Civil, Entertainment, Intellectual Property, Torts
Texas 1st Court of Appeals
May 23, 2017
01-15-00173-CV
Rebeca Huddle
Published
     After siblings, first appellant and the second appellant, sued the individual for the individual’s protracted abuse of their family, a Houston attorney defended the individual against the allegations in a 2008 civil trial. The defendants moved for traditional and no-evidence summary judgment, arguing that the book constituted a fair report of the 2008 trial and that neither the book as a whole nor any of the complained-of passages was defamatory. The trial court granted summary judgment without specifying its reasons, and the family appealed, arguing that the book was defamatory and not protected by the fair report privilege. The appellate court found that the family violence gist and passages 1 through 19, when considered in the context of the book as a whole, were not reasonably capable of defamatory meaning. Further, reasonable readers could determine for themselves whether the individual’s version of those events was believable given that he was a habitual liar and had an incentive to make himself appear more sympathetic and the court concluded that the perjury and dishonesty gist and passages 28 through 32 were not reasonably capable of defamatory meaning. Furthermore, the passages in that gist fairly present competing theories and testimony, permitting the reader to draw his own conclusions and the court concluded that passages 33 through 39 were not reasonably capable of defamatory meaning. Because the book as a whole and each of the complained-of gists and passages were not defamatory as a matter of law, the court held that the trial court did not err in granting summary judgment on the family’s libel claim. Accordingly, the trial court’s judgment was affirmed.


Trial court correctly granted appellee’s special appearance and dismissed the case for want of jurisdiction, where appellant’s tort claims did not demonstrate appellee’s choice to enter Texas and conduct business, but in Switzerland, and any contract claims were governed by German law
Hatzenbuehler v. Essig
Appellate: Civil, Contracts, International, Procedure, Torts
Texas 1st Court of Appeals
May 23, 2017
01-16-00515-CV
Jane Nenninger Bland
Published
     The deceased sued the appellee, alleging that the appellee and others falsely represented the cauldron to be of ancient Celtic origin. With the appellee’s assistance, the deceased purchased the cauldron at a Swiss bankruptcy sale. The deceased alleged that he later discovered that the cauldron was likely created by the Nazis in the 1940’s, making it significantly less valuable. The deceased died during the pendency of the suit and his widow, the appellant, succeeded him as plaintiff. The live pleading alleged that the appellee committed fraud, fraudulent inducement, negligent misrepresentation, and breach of contract in connection with the cauldron transaction. The appellee specially appeared, contending that the trial court lacked personal jurisdiction over him. The trial court agreed, granted the special appearance, and dismissed the suit. The appellate court found that the allegations and evidence supporting the appellant’s tort claims did not demonstrate the appellee’s choice to enter Texas and conduct business, but in Switzerland. Further, any legal injury arising from the appellant’s fraud, negligent misrepresentation, and breach-of-contract causes of action against the appellee occurred when the deceased purchased the cauldron in Switzerland pursuant to a contract with the appellee that was executed in Switzerland and governed by German law. Therefore, the court held that the trial court correctly granted the appellee’s special appearance and dismissed the case for want of jurisdiction. Accordingly, the court affirmed the judgment of the trial court.


Jury was instructed on lesser-included offense of assault; district clerk supplemented clerk’s record with venire list and parties strike lists; and State proved beyond a reasonable doubt appellant was convicted of two prior felony offenses in the enhancement paragraphs of the indictment
Nard v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
May 19, 2017
06-16-00124-CR
Ralph K. Burgess
Published
     The appellant was convicted of the offenses of aggravated assault with a deadly weapon and deadly conduct. He elected to have the trial court assess punishment, and after a punishment hearing, the trial court sentenced the appellant to serve seventy years’ imprisonment on the present charge. On appeal of his aggravated assault with a deadly weapon conviction, the appellate court found that the verdict form provided three options: a finding that the appellant was guilty of aggravated assault with a deadly weapon, a finding that the appellant was guilty of assault, or a finding that the appellant was not guilty of either offense. The district court’s charge accurately stated the law and gave the jury the option of finding the appellant guilty of the lesser-included offense of assault. Further, at the court's request, the district clerk supplemented the clerk’s record with the venire list and the parties’ strike lists. The appellant had presented no supplemental argument or allegation of error after the supplementation was completed. Furthermore, given the totality of the evidence presented, there was sufficient evidence upon which a jury could found that the second enhancement paragraph was true beyond a reasonable doubt. Accordingly, the court affirmed the trial court’s judgment and sentence.


CEO and CFO of the company of which they were shareholders could not enforce the Delaware forum-selection clause against respondents under the transaction-participant doctrine, or at common law, where the shareholders agreement was separate from the financing agreement
Pinto Technology Ventures L.P v. Sheldon
Appellate: Civil, Business, Contracts, Litigation: Commercial, Procedure, Securities
The Supreme Court of Texas
May 19, 2017
16-0007
Eva M. Guzman
Published
     The respondents were shareholders in the corporation, a developer and manufacturer of medical devices. The first respondent founded the corporation in 1999 and served as its Chief Executive Officer (CEO) until 2008. The second respondent, the corporation’s consultant from 2002 to 2012, was the co-inventor of vascular-stent technology the corporation licensed in 2000. Both the respondents initially acquired the corporation common stock through their business relationship with the company. In the appellate court’s analysis regarding the scope of the Delaware forum-selection clause, the Shareholders refute both its application as to the second respondent, because he only signed shareholder agreements designating a Texas forum, and its enforcement by the corporation CEO and CFO as nonsignatories under any of the asserted theories. The Texas Supreme Court found that the CEO and CFO could not rely on the transaction-participant doctrine to enforce the forum-selection clause against the respondents. Furthermore, the shareholders agreement was separate and distinct from the financing agreement and even though disputes arising out of the shareholders agreement may concern other events connected with the transaction, the record bore no evidence that the parties ever agreed in writing on a particular forum for an action arising from the financing transaction. Thus, the instant argument failed. Finally, because the CEO and CFO could not enforce the forum-selection clause against the respondents under the legal theories presented, the trial court erred in granting their motion to dismiss. Accordingly, the court reversed the appellate court's judgment, rendered judgment dismissing the respondents’ claims in part, and remanded the case to the trial court for further proceedings in part.


It was not the statute, but rather the appellees’ failure to comply with the expert-report deadline, that prevented them from pursuing their surgical malpractice claims against the appellant
University of Texas Health Science Center at Houston v. Joplin
Appellate: Civil, Constitution, Gov't/Administrative, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
May 18, 2017
14-16-00538-CV
Marc W. Brown
Published
     In the instant interlocutory appeal, the appellant Health Center challenged the trial court’s denial of the appellant’s motion to dismiss the appellees lawsuit with prejudice for failure to serve an expert report and curriculum vitae (CV) pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. Because the the appellees failed to comply with the service requirement under section 74.351(a), subjecting their claims to mandatory dismissal under section 74.351(b), the court conclude that the trial court abused its discretion and the appellant Health Center timely filed the instant interlocutory appeal. The appellate court found that the appellees did not point to, nor have the court found, any evidence raising a fact issue that they did not have a reasonable opportunity to be heard on their claims against the appellant. Instead, it was the appellees’ failure to timely serve an expert report that prevented them from pursuing their claims against the appellant. Further, it was not the statute, but rather the appellees’ failure to comply with the expert-report deadline, that prevented them from pursuing their claims against the appellant. Furthermore, the Texas courts have rejected as applied due process challenges to section 74.351 under similar circumstances. Furthermore, the court accordingly rejected the appellees’ contention that the court application of section 74.351 to their claims against the appellant violated the Texas Constitution. The appellees’ arguments reurging Scoresby and Hebner in support of their constitutional claims did not convince the court otherwise. Finally, the court reversed the denial of the appellant’s motion to dismiss and render judgment dismissing the appellees’ claims against the appellant with prejudice. Because the appellant was entitled to an award of reasonable attorney’s fees and court costs, the court remand for a determination of the amount of that award.


Appellee directors breached their fiduciary duties to the appellant, when the directors’ son opened a nearly identical restaurant to the appellant’s restaurant after the appellant company lost its lease for the location space, but appellant company failed to mitigate its damages
E.L. & Associates, Inc. v. Pabon
Appellate: Civil, Contracts, Corporations, Damages, Real Property, Torts
Texas 14th Court of Appeals
May 18, 2017
14-15-00631-CV
William J. Boyce
Published
     The appellant company sued the appellees, the directors and their adult son after the appellant lost a lease for a restaurant it operated and the directors’ son opened a nearly identical restaurant in the same location. A jury found that the appellee directors breached their fiduciary duties to the appellant. The jury further found that the appellee son, assisted in the appellees breaches of fiduciary duty. The jury awarded no damages to the appellant. The appellate court found that it was, admittedly, uncommon for a situation to present itself in which a party could mitigate damages before they occur. It was because the injury-causing occurrence typically results in immediate injuries. But the case presented a unique situation because it involved a breach of fiduciary duty, which may not result in immediate damages. Furthermore, based on the evidence, the record before the court could support a jury finding that the appellant failed to reasonably mitigate its damages, its loss of the restaurant location, by having the individual sign and become guarantor of a lease after learning of the appellee directors breaches but before the month-to-month lease was terminated in February 2011, or the appellee son signed the new lease for the same location. Thus, the trial court did not err by including a mitigation instruction in the damages question. Accordingly, having concluded that the inclusion of a mitigation instruction in the damages question was not error, the court affirmed the trial court’s judgment.

Appellant’s rights to confrontation were not violated by limiting cross-examination of complainant, where complainants credibility was not relevant to evidence that appellant misapplied more than $200,000 of fiduciary property; jury’s fine imposed was lawful, even if there was an ambiguity
Ette v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
May 18, 2017
02-16-00173-CR
Mark T. Pittman
Published
     A jury found the appellant guilty of the first-degree offense of misapplying more than $200,000 of fiduciary property. The jury then assessed the appellant’s punishment at ten years’ confinement and a $10,000 fine, recommending the suspension of the confinement but not the fine. The appellate court held that the trial court did not violate the appellant’s rights of confrontation and to present a defense by refusing to let him cross-examine the complainant about possible misrepresentations concerning another property unrelated to the bonds and unrelated to the documents prepared by the appellant regarding his fees for those bonds. Further, the context of the oral pronouncement in the instant case made clear that the appellant, the State, and the trial judge understood the sentence to be what appeared in both the verdict and the judgment ten years’ confinement and a $10,000 fine. Therefore, the court resolved the discrepancy in favor of the jury verdict. Finally, an appellate court’s authority to modify incorrect judgments depends neither on a party’s request nor on whether a party objected in the trial court. Accordingly, the court affirmed the trial court’s judgment as modified.

Oil and gas operator could drill from surface estate through leased subsurface to reach it’s own subsurface mineral rights in the adjacent property without trespass and contractual interference to the subsurface mineral leaseholder
Lightning Oil Company v. Anadarko E&P Onshore, LLC
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Real Property
The Supreme Court of Texas
May 19, 2017
15-0910
Phil Johnson
Published
     The instant case concerns whose permission was necessary for an oil and gas operator to drill through a mineral estate it did not own to reach minerals under an adjacent tract of land. The respondent company, entered into an oil and gas lease that restricted its use of the surface estate and required it to drill from off-site locations when prudent and feasible. As a result, the respondent planned to locate well sites on the surface of adjacent tracts and use horizontal drilling to produce minerals from its lease. The company, owned an adjacent surface estate and agreed that the respondent could drill from the surface of the company. The petitioner, lessee of the minerals underlying the company, was not a party to the agreement. The petitioner sought to enjoin the respondent from drilling on the company, claiming that the petitioner’s consent was necessary before the respondent could drill through the the company’s subsurface covered by its mineral lease. The trial court dismissed the claim. The appellate court affirmed. The Texas Supreme Court found that the number of wells a pass-through driller might drill was not relevant with respect to claims in trespass against that driller. Thus, even though the exact number of wells the respondent planned to drill was disputed, that dispute did not affect the disposition of the trespass issue. Thus, the court affirmed the appellate court’s judgment regarding the trespass issue. Further, the petitioner did not contend that the Agreement failed to grant the respondent consent to drill on the company. the respondent was exercising its rights under the Agreement when it prepared to drill on the company, and so far as the record shows, its drilling plans were within the rights granted in the Agreement and did not tortiously interfere with the petitioner’s contractual lease rights. Thus, the court agreed with the appellate court that the respondent was entitled to summary judgment on the tortious interference with contract claim. Accordingly, the judgment was affirmed.

Trial court lacked authority constitutional, statutory, or inherent, to require petitioner to reinstate a county judicial employee at a specific salary, and lacked authority to bind Commissioners Court, because respondent failed to name anyone but petitioner in request for injunctive relief
Henry v. Cox
Appellate: Civil, Constitution, Courts, Employment, Gov't/Administrative
The Supreme Court of Texas
May 19, 2017
15-0993
Don R. Willett
Published
     The county, like all Texas counties, was governed by a commissioners court. In 2000, the the county Commissioners Court hired the individual as Director of Justice Administration (DJA), a position the Commissioners Court, acting in its policymaking capacity as the county’s governing body, had created a few years earlier. The individual worked as the DJA until 2014, when the petitioner judge fired her. At the time of her termination, the individual’s yearly salary was $113,000. The petitioner maintains he and other commissioners were dissatisfied with various aspects of the individual’s performance. The Commissioners Court later ratified the petitioner’s decision to terminate the individual. After a job posting for a new DJA was advertised, the respondent judge issued a sua sponte order requiring the petitioner to reinstate the individual. The respondent filed suit in his own trial court, but before a visiting judge against the petitioner, arguing the salary range for the new position was unreasonable. The trial court issued a temporary restraining order and a temporary injunction. A divided appellate court affirmed. The Texas Supreme Court found that the trial court lacked the authority constitutional, statutory, inherent, or otherwise to require the petitioner to reinstate a county judicial employee at a specific salary. At most, the trial court should have directed the Commissioners Court to reset the range. As it stands, however, the trial court lacked the authority to bind the Commissioners Court in the first place, because the respondent failed to name anyone but the petitioner in the request for injunctive relief. The trial court thus erred in issuing the temporary injunction. Accordingly, the court reversed the appellate court’s judgment and remanded.

Appellee had no traditional members and individuals it sought to represent have insufficient indicia of membership to confer associational standing upon appellee to bring the suit against city ordinance prohibiting sex offenders against minors from residing in certain places on their behalf
City of Westworth Village v. Texas Voices for Reason and Justice, Inc.
Appellate: Civil, Civil Rights, Constitution, Corporations, Criminal, Gov't/Administrative, Procedure
Texas 2nd Court of Appeals
May 18, 2017
02-16-00106-CV
Lee Gabriel
Published
     In 2007, the appellant city adopted an ordinance prohibiting any person required to register as a sex offender because of an offense involving a victim who was younger than seventeen from establishing a residence within 1,000 feet of any location where children commonly gather. A violation of the ordinance constitutes a misdemeanor and subjects violators to a fine not exceeding $500 for each day a violation occurs. The appellee, a Texas nonprofit corporation, sued the appellant on behalf of its members, claiming the ordinance violates the state constitution. The appellant filed a plea to the jurisdiction, arguing that the appellee lacks standing to sue on behalf of its members. The trial court denied the plea, prompting the appellant to bring this accelerated interlocutory appeal. The appellate court could not conclude that the appellee had members when the law under which it was created and by which it was governed says that it did not. Therefore, the court concluded that the appellee did not qualify as a traditional membership organization for purposes of associational standing. Further, the court found that the appellee had no traditional members and that the individuals it sought to represent in the instant lawsuit have insufficient indicia of membership to confer associational standing upon the appellee to bring the instant suit on their behalf. Finally, in arguing that the appellee had no members for purposes of associational standing, the appellant’s first issue challenged the existence of a jurisdictional fact. The evidence relevant to that issue was undisputed and did not raise a fact question on the jurisdictional issue. Therefore, the court concluded that, having sustained the appellant’s first issue, the appropriate disposition was to reverse the trial court’s order denying the appellant’s plea to the jurisdiction and to render judgment dismissing the appellee’s claims for lack of subject-matter jurisdiction. Accordingly, the judgment was reversed and rendered.

Because two-year statute of limitations barred respondent residents claims for a nuisance and trespass, the court reversed the court of appeals’ judgment and reinstated trial court’s take-nothing judgment
Town Of Dish v Atmos Energy Corporation
Appellate: Civil, Environmental, Procedure, Real Property, Torts
The Supreme Court of Texas
May 19, 2017
15-0613
Jeffery Brown
Published
     The petitioner energy companies owned four natural-gas compressor stations and a metering station just outside the respondent town. Respondent residents began complaining about the noise and odor emanating from those facilities as early as 2006, but did not sue until 2011. The trial court granted a series of summary-judgment motions brought by the energy companies on various grounds, including limitations. The court of appeals reversed the trial court on limitations, holding that the energy companies failed to prove as a matter of law that the residents’ claims accrued before February 28, 2009. The Supreme Court Of Texas found that more than a scintilla of evidence in the respondent residents’ affidavits and the Wolf Eagle report may support their claims generally, but no evidence rebutted fourth petitioner’s contention it was not one of the alleged offenders. As the respondent residents never responded to fourth petitioner’s no-evidence point, the trial court properly granted the fourth petitioner’s summary-judgment motion. Further, the court found that the petitioners have proven that any legal injury the respondent residents suffered commenced, at the latest, in May 2008. There was no objective evidence showing that the complained-of conditions worsened in the summer of 2009. Even if they did, the respondent residents’ claims had already accrued more than two years before they sued. Accordingly, the court reversed the court of appeals’ judgment and reinstated the trial court’s take-nothing judgment.


Individual was driving his personal vehicle to work, and appellant had no control over his driving; thus, trial court erred by failing to grant appellant summary judgment on appellee's claim seeking to hold appellant vicariously liable for individual's allegedly negligent operation of his truck
OCI Beaumont LLC v. Barajas
Appellate: Civil, Employment, Litigation: Personal Injury, Torts
Texas 9th Court of Appeals
May 18, 2017
09-16-00406-CV
Hollis Horton III
Published
     The appellee filed a suit against the individual and the appellant company seeking to recover for the injuries she suffered when the individual struck her with his truck. In the instant permissive appeal, the appellate court addressed whether a trial court or an intermediate appellate court, in the first instance, should expand the doctrine of vicarious liability by utilizing the access doctrine to hold a business vicariously liable for the negligence of its employee, who, while commuting to work, was involved in an autopedestrian collision in a parking lot which was not owned by the employer but was the location where the employer arranged for its employees to park. The appellate court found that the appellant's summary-judgment evidence conclusively established that the individual was driving his personal vehicle while on his way to work and had nothing to do with the risks associated with his job as a mechanical engineer. And, nothing in the summary-judgment record showed that the appellant had the right to control or controlled the manner that the individual drove his truck on the day his truck struck the appellee in the parking lot next to the appellant's plant. The court sustained the appellant's issue, and held that the trial court erred by failing to grant the appellant's motion for summary judgment on the appellee's claim seeking to hold the appellant vicariously liable for the individual's allegedly negligent operation of his truck. Accordingly, the court reversed the trial court’s order denying the appellant's motion as to the appellee's vicarious liability claim, and the court remanded the case to the trial court for further proceedings.


Based on Texas Supreme Court's most recent precedents regarding limitations on civil court jurisdiction to decide challenges to penal laws, district court lacked subject matter jurisdiction over appellees’ claims that Disposable Container and Cooler Ordinances were unconstitutional
City of New Braunfels v. Stop The Ordinances Please
Appellate: Civil, Civil Rights, Constitution, Courts, Criminal, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
May 18, 2017
03-14-00198-CV
Bob Pemberton
Published
     The appellant city appealed a final judgment from the district court striking down, as unconstitutional, the so-called Disposable Container Ordinance (Can Ban) and a portion of the Cooler and Container Ordinance. The appellant City argued chiefly that the district court lacked subject-matter jurisdiction to decide the legal challenges that have been brought against the ordinances. The district court also permanently enjoined the appellant City from enforcing, spending public funds, or collecting fines or any other penalties as to the Disposable Container Ordinance and the cooler-size restriction in the Cooler & Container Ordinance. The appellate court found that the taxpayer standing represents an exception to the general rule of Texas law that the plaintiff show a particularized injury to establish his or her constitutional standing, a jurisdictional requirement that was distinct and independent from the aforementioned jurisdictional limits on civil court’s equity jurisdiction to address penal enactments. Because the court concluded that the summary-judgment evidence conclusively established that the district court did not have subject-matter jurisdiction over the appellees’ claims, the court must sustain the appellant City’s first issue and need not reach other issues it raised. Finally, having concluded that Morales precluded the district court’s subject-matter jurisdiction over the appellees’ claims, the court must reverse the final summary judgment and render judgment dismissing the appellees’ claims for want of subject-matter jurisdiction.


Appellant failed to preserve for appellate review his complaints concerning the evidence of his own gang affiliation, as well as that of cousin, friend and witness as a Rule 404(b) violation
Rawlins v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 18, 2017
01-16-00435-CR
Evelyn Keyes
Published
     The jury convicted the appellant, of the first-degree felony offense of murder and, after finding the allegations in an enhancement paragraph true, assessed his punishment at thirty-eight years’ confinement. The appellate court found that because the appellant did not re-urge his relevancy objection, move to strike the evidence, and request an instruction to disregard on the basis that the State did not connect up that the appellant and the complainant cousin were in rival gangs, he had failed to preserve for appellate review his complaint about the trial court’s conditional admission of evidence of his gang affiliation. Further, the court therefore held that the appellant had not preserved a complaint that admission of evidence of his gang affiliation violated Rule 404(b). Furthermore, to the extent the appellant complained about the admission of evidence that the cousin, individual friend, and the individual witness were all affiliated with gangs, appellant did not object to the instant evidence in the trial court. To preserve a complaint for appellate review, the party must make the complaint to the trial court by timely request, objection, or motion. Because the appellant failed to object to the evidence of cousin’s, friend’s and the witness gang affiliations, he had preserved no complaint about this evidence for appellate review. Finally, the court therefore held that the appellant had failed to preserve for appellate review his complaints concerning the evidence of his own gang affiliation, as well as that of cousin, friend and witness. Accordingly, the court affirmed the judgment of the trial court.


Appellee had not demonstrated that the three admissions conclusively negated an element of the deceased’s negligence cause of action; thus, the trial court erred in rendering summary judgment in favor of appellee
Ramirez v. Noble Energy, Inc.
Appellate: Civil, Discovery, Torts
Texas 1st Court of Appeals
May 18, 2017
01-16-00155-CV
Evelyn V. Keyes
Published
     In the instant personal injury case, the deceased sued the appellee for negligence after he allegedly sustained injuries while unloading a truck on the appellee’s property. After the deceased failed to timely respond to the appellee’s requests for admissions, the appellee moved for summary judgment. While the case was pending in the trial court, the deceased died, and his wife and the personal representative of his estate, the appellant, took over prosecution of his suit. The trial court granted the appellee’s summary judgment motion. The appellate court found that the record did not affirmatively reflect that the other eight requests seek to authenticate or prove the admissibility of documents or involve uncontroverted facts and thus were not merits-preclusive, and, indeed, the evidence was to the contrary. Therefore, the court agreed with the appellant that the deemed admissions had a merits-preclusive effect, implicating due process concerns. Thus, the court turn to whether the appellee demonstrated that, in failing to timely respond to the requests for admissions, the deceased acted with flagrant bad faith or callous disregard. Further, the deceased answered the discovery requests, albeit one day after the new response deadline set by the trial court. That was therefore not a situation in which the deceased or his counsel deliberately refused to participate in discovery. Next, as the appellee acknowledges, the trial court denied its motion for sanctions, and the trial court did not order the deceased to submit further responses to the appellee’s discovery requests. Therefore, the court did not agree that the alleged inadequacy of the deceased’s discovery responses justifies a presumption of callous disregard for the discovery rules. Furthermore, the appellee presented no evidence that withdrawal of the deemed admissions would cause it undue prejudice or that withdrawal would not serve presentation of the merits. Therefore, the trial court erroneously denied the deceased’s motion to withdraw deemed admissions. Finally, to the extent the trial court considered the deceased’s actual admissions, the appellee had not demonstrated that the three admissions conclusively negated an element of the deceased’s negligence cause of action. Thus, the trial court erred in rendering summary judgment in favor of the appellee. Accordingly, the judgment was reversed and remanded.


Given evidence demonstrating appellant’s lack of regular involvement with his children, his inexperience with parenting, and his inadequate living conditions, trial court did not abuse its discretion in limiting his visitation to regular daytime visits
Syed v. Masihuddin
Appellate: Civil, Family, Juvenile
Texas 1st Court of Appeals
May 18, 2017
01-16-00071-CV
Evelyn V. Keyes
Published
     Appellant, appealed the trial court’s final decree of divorce terminating his marriage to the appellee. The appellate court found that in his second issue, the appellant made numerous challenges to the accuracy of the trial court’s fact findings, arguing that many of them were not supported by sufficient evidence. In his third issue, the appellant argued several of the trial court’s fact findings constituted improper consideration in evaluating his rights of possession of or access to U.K. and U.H. However, because the court concluded that the findings were supported by sufficient evidence to allow the trial court to make its determination deviating from the standard possession order and that the trial court’s determination did not constitute an abuse of discretion, the court need not analyze every one of the remaining findings of fact. Further, given the findings and supporting evidence demonstrating the appellant’s lack of regular involvement with his children, his inexperience with parenting, and his inadequate living conditions, the court could not say the trial court abused its discretion in limiting his visitation to regular daytime visits. The visitation schedule set out by the trial court was not more restrictive than necessary to balance the children’s interest in “having frequent and continuing contact with parents who have shown the ability to act in the best interest of the child” and their interest in having a safe, stable environment. Accordingly, the court affirmed the trial court’s final decree.


Evidence was sufficient to support trial court’s finding that termination of appellants’ parental rights to the child was in child’s best interest, where father was incarcerated at time of hearing, and mother was victim of domestic violence, barely able to care for herself
In re R.S.-T.
Appellate: Civil, Family, Juvenile
Texas 4th Court of Appeals
May 17, 2017
04-16-00724-CV
Patricia O. Alvarez
Published
     The instant was an accelerated appeal of the trial court’s order terminating the appellants parental rights to their child. The First appellant contends the evidence did not support the trial court’s termination based on Texas Family Code subsections 161.001(1)(b)(D), (E), and (O). The first appellant also contended the trial court failed to properly conduct the requested de novo hearing pertaining to the parental terminations. The appellate court found that the trial court heard from numerous witnesses and also reviewed several reports filed with the court during the pendency of the case. In making its determination, the trial court was called upon to determine the child’s best interest; above all, the trial court must consider the child’s placement in a safe environment. Further, reviewing the evidence under the two sufficiency standards, and giving due consideration to evidence that the trial court could have reasonably found to be clear and convincing, the court concluded the trial court could have formed a firm belief or conviction that terminating the second appellant's parental rights to the child was in child’s best interest. Furthermore, the trial court found the first appellant committed three statutory grounds supporting termination of his parental rights and that termination of his parental rights was in child’s best interest; he did not appeal the trial court’s best interest determination. Finally, the trial court further found the second appellant committed the statutory grounds supporting termination of her parental rights and that termination of the second appellant’s parental rights was in child’s best interest and the second appellant only appealed the best interest of the child finding. Having reviewed the evidence, the court concluded the evidence was legally and factually sufficient to support the trial court’s finding by clear and convincing evidence that termination of the second appellant’s parental rights to the child was in the child’s best interest. Accordingly, the court overruled the second appellant’s sole issue on appeal and affirmed the trial court’s order terminating the second appellant’s parental rights.


The exchange between the appellant and the officers was a consensual encounter that did not trigger Fourth Amendment protections, where officer only drew his weapon after the pat-down search revealed an item, a syringe, which appellant emptied on the ground and concealed in his palm
Warden v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
May 17, 2017
04-16-00099-CR
Patricia O. Alvarez
Published
     A county jury found the appellant guilty of felony tampering with physical evidence. It also found two enhancement paragraphs true and sentenced the appellant to twenty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate court found that during the pat-down search that the officer felt something in the appellant’s jacket pocket, and the appellant reacted. He drew the syringe from his pocket, expelled the fluid on the ground, held the syringe in his fist, and moved towards the officer. Only then did the officer draw his weapon. As the sole trier of fact and judge of credibility, the trial court was free to believe or disbelieve all or any of the witnesses’ testimony. Thus, the court could not say the trial court abused its discretion in determining that the encounter between the appellant and the officers was a consensual encounter. Therefore, the appellant failed to meet his initial burden to show that there had been a seizure. Finally, the exchange between the appellant and the officers was a consensual encounter that did not trigger Fourth Amendment protections. Accordingly, the court affirmed the trial court’s judgment.


Second individual established superior title to the property by long-term use, and after transferring the property to the appellee, appellee had perfected title by adverse possession and was entitled to immediate title and possession; appellant failed to preserve his joinder claim
Brown v Snider Industries, LLP,
Appellate: Civil, Procedure, Real Property
Texas 6th Court of Appeals
May 17, 2017
06-16-00078-CV
Bailey C. Moseley
Published
     The appellant heir of the deceased individuals, brought a trespass to try title action against the appellee LLP, in 2013, alleging himself to be one of the joint owners of an 8.151-acre tract in Harrison County, Texas. The trial court granted the appellee’s motion, holding that the appellee had perfected title to the realty in question by adverse possession and was entitled to immediate title and possession of it. The appellant had appealed the ruling, contending that the trial court erred in granting the first individual’s motion for summary judgment because first individual had failed to join indispensable parties and that first individual failed to conclusively prove the elements of adverse possession as a matter of law. The appellate court found that the undisputed evidence showed that in 1978, about a year after the 1977 letter, the first individual’s predecessor in interest, the second individual filed the Affidavit of Use and Possession, claiming long-term use of and superior title to the property, and a correction deed to the same property was filed in 1980. Further, several filings in the deed records of Harrison County, Texas, show public declarations that the first individual claimed the property by right. In the Affidavit of Use and Possession, the first individual’s predecessor in interest claimed to own a 94.824-acre tract that included the property at issue, and a correction deed to the same property was filed in 1980. Finally, the second individual executed a deed of the 94-acre tract to the appellee corporation, which, in 1992, conveyed it to the second individual again, who, three years later, conveyed it back to the appellee corporation which, in 2002 was converted into appellee LLP. Thus, the undisputed evidence established through both public declaration and open, visible acts, that the first individual entered, possessed, and used the property under a claim of right. Accordingly, the trial court’s judgment was affirmed.


Appellant, which held the executive rights regarding the appellees’ mineral interest, breached its executive duty by refusing to lease the appellees’ mineral interest
Texas Outfitters Limited, LLC v. Nicholson
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Real Property, Torts
Texas 4th Court of Appeals
May 17, 2017
04-16-00392-CV
Luz Elena D Chapa
Published
     The appellant company appealed a money judgment the trial court rendered in favor of the appellees. The appellant, which held the executive rights regarding the appellees’ mineral interest, argued it did not breach its fiduciary duty of utmost good faith and fair dealing by refusing to lease the appellees’ mineral interest. The appellate court found that taken together, the trial court’s findings disclosed the ground that the trial court found supported a $867,654 damages award: a breach of the executive duty. The court therefore held the trial court’s fact-findings were sufficient to support the judgment. And, viewing all of the evidence in a neutral light, the court could not say the trial court’s finding that the appellant breached its executive duty was so against the great weight and preponderance of the evidence that it was clearly wrong or manifestly unjust. Further, while there were other factual differences between the instant case and Lesley v. Veterans Land Bd. of Tex., 352 S.W.3d 479, 480-81 (Tex. 2011), the material facts were the same. Furthermore, the court could not agree with the appellant’s suggestion that the evidence established that had it accepted the company’s offer, the appellees would have sued and the appellant would have been liable for accepting a sub-market bonus rate. Lastly, the circumstances giving rise to the breach of duty in the instant case were sufficiently similar to the circumstances giving rise to the breach of duty in Lesley. Similarly, the court need not and did not address whether the executive’s mere failure to execute any lease the non-executives desire was a breach of the executive duty. As such, the opinion should not be understood as announcing any rule or principal beyond those the supreme court announced in Lesley or KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 81-82 (Tex. 2015). The court simply concluded that under Lesley and KCM Financial, sufficient evidence supported the trial court’s finding that the appellant breached its executive duty by refusing to lease. Accordingly, the court affirmed the trial court’s judgment.


Evidence was legally and factually sufficient to support jury’s finding that appellant attorney failed to hold funds belonging to the individual or doctors separate from his own funds, on the allegation that he prematurely received the retainer from the escrow account
De Los Santos v. Commission for Lawyer Discipline
Appellate: Civil, Courts, Ethics, Gov't/Administrative, Professional Responsibility
Texas 4th Court of Appeals
May 17, 2017
04-16-00065-CV
Irene Rios
Published
     The instant appeal arose from an attorney disciplinary proceeding in which a jury found the appellant failed to hold funds belonging to a client separate from his own funds, a violation of Texas Disciplinary Rule of Professional Conduct 1.14(a). The appellate court found that upon review of all of the evidence presented, it concluded that the evidence was legally and factually sufficient to support the jury’s finding that the appellant failed to hold funds belonging to the individual or doctors separate from his own funds. Further, a complaint to a jury charge was waived unless it was presented to the trial court by specific objection. Thus, to preserve a jury-charge complaint a party must make the trial court aware of the complaint, timely and plainly, and obtained a ruling. The record did not reflect that the appellant objected to the alleged jury-charge error. Thus, the appellant waived the complaint on appeal. Furthermore, the appellant presented his own evidence and testimony to defend any allegation that he commingled funds belonging to the individual with his own funds. The appellant presented testimony and an adequate defense to the allegation that he prematurely received the $10,000 retainer from the escrow account. Therefore, the trial court did not abuse its discretion by overruling the appellant's special exceptions. Accordingly, the court affirmed the trial court’s judgment. 


Ruling on motion to suppress was not evidence and officer's testimony at the hearing was either cumulative of video evidence appellee had already seen or collateral because it was not material to suppression issue in co-defendant's case; appellee’s ineffective assistance claim was untimely
State v. Arizmendi
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 17, 2017
PD-0623-16
Sharon Keller
Published
     The appellee was ultimately charged with possession with intent to deliver methamphetamine in an amount of more than 400 grams. She entered into an agreement to plead guilty and received a sentence of twenty-five years’ confinement and a $5,000 fine. The Texas Court of Criminal Appeals found that the appellee could have asked to speak to the arresting officer or could have sought a police report. Further, even if neither of those requests could be satisfied, she nevertheless could have filed a motion to suppress and obtained the officer’s testimony at a suppression hearing just as her codefendant did. Consequently, the appellee’s failure to obtain the officer’s testimony at the suppression hearing was due to her lack of diligence. Although the appellate court did not resolve the instant issue, the State argued that the court should reach it for the sake of judicial economy and ordinarily, when the court rejected a appellate court’s disposition of an issue, the court remanded the case to that trial court to address any remaining issues that need to be addressed. Furthermore, that claim was raised for the first time at the hearing on the motion for new trial, and that hearing was conducted outside the thirty-day period. At the hearing, the State objected that the ineffective assistance claim was untimely, and the State was correct. The trial court was barred from considering the ineffective assistance claim. Finally, the court concluded that the appellate court erred in upholding the trial court’s decision to grant the motion for new trial. Accordingly, the court reversed the judgments of the courts below and remanded the case to the trial court.


Appellant had not shown Article 39.15 of Texas Code of Criminal Procedure was unconstitutional because it denied defense attorneys evidence they need to confront juvenile witnesses for their possible bias or motive
Gonzalez v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 16, 2017
01-15-00902-CR
Laura Carter Higley
Published
     A jury found appellant guilty of the offense of aggravated sexual assault of a child on the first offense and indecency with a child on the second. The appellant elected for the jury to assess punishment, and it assessed his punishment at confinement for twenty years on the first offense and five years on the second offense, to run concurrently. The appellate court found that viewing the evidence in the light most favorable to the jury’s verdict, as the court must, the court concluded that a rational trier of fact could have found that the appellant committed the offense of aggravated sexual assault of and indecency with a child, and the court deferred to that finding. The jury could resolve any contradictions between the girls’ live testimony and earlier forensic interviews in favor of the girls’ account. Thus, the court held that the evidence was sufficient to support the appellant’s conviction for aggravated sexual assault of and indecency with a child. Further, the appellant had not shown that Article 39.15 of the Texas Code of Criminal Procedure denied the appellant access to information necessary to allow him to confront the juvenile witnesses. Therefore, he had not shown that Article 39.15 was unconstitutional because it denies defense attorneys the evidence they need to confront juvenile witnesses for their possible bias or motive. Lastly, because the argument did not strike over the shoulders of counsel, the conduct did not rise to a level sufficient to overcome the presumption that the jury followed the curative instruction. As the instruction was curative, the trial court did not abuse its discretion in denying the mistrial. Accordingly, the court affirmed the judgment of the trial court.


The trial court erred by denying the appellant’s motion to dismiss the appellee’s health care liability claims for failure to timely serve an expert report
Hopebridge Hospital Houston, L.L.C. v. Lerma
Appellate: Civil, Health Care, Procedure, Torts
Texas 14th Court of Appeals
May 16, 2017
14-16-00849-CV
Kevin Jewell
Published
     The appellee alleged that, after he was admitted to the appellant for an accidental prescription medication overdose, the appellant’s employees committed assault and battery while forcing him to remain in his bed. Contending the appellee’s claims were health care liability claims governed by Texas Civil Practice and Remedies Code Chapter 74, the appellant filed a motion to dismiss and for attorney’s fees because the appellee did not serve an expert report as the code required. The trial court denied the motion. The appellate court found that in the instant case, the merits of the appellee’s claims would depend on whether the conduct of the appellant’s alleged employees involved permissible or necessary actions to restrain and confine a patient to bed, or whether the alleged employees’ conduct exceeded the bounds of patient care. The appellee’s allegations therefore implicated a breach of health care, medical care, or patient safety—standards that would require expert testimony to prove or refute them. Based on the foregoing, the court concluded that the record did not conclusively establish that the “only possible relationship between the alleged offensive contact” and the rendition of medical care, health care, or safety was the fact that it took place in a hospital. Because the entire record demonstrated that the appellant was a health care provider and the alleged assault and battery occurred while the appellant was providing medical care, or health care, or patient safety, the claims against the appellant were presumptively health care liability claims section 74.351(a)’s expert report requirements. The trial court erred by denying the appellant’s motion to dismiss the appellee’s health care liability claims for failure to timely serve an expert report. Further, because the court concluded that the appellee’s claims were subject to the expert report requirement and no report was served, the trial court erred by failing to dismiss the appellee’s claims and awarded the appellant reasonable attorney’s fees and costs of court. Accordingly, the court reversed and rendered.


45-day deadline for filing judicial review claims under Workers’ Compensation Code was not jurisdictional, and trial court erred in granting appellee insurer’s plea to the jurisdiction
Chicas v. Texas Mutual Insurance Co.
Appellate: Civil, Employment, Gov't/Administrative, Insurance, Procedure
Texas 1st Court of Appeals
May 16, 2017
01-16-00226-CV
Sherry Radack
Published
     The trial court granted the appellee corporation's plea to the jurisdiction and dismissed the appellant's suit for judicial review because it was not filed within 45 days of a final decision by the Division of Workers’ Compensation [DWC]. In so ruling, the trial court necessarily concluded that the 45-day time limit for filing a suit for judicial review was a jurisdictional, statutory prerequisite. The appellate court found that judicial review, by its very nature may delay treatment, but the Legislature nonetheless chose to provide such a review. Further, the deadline for filing the judicial review was jurisdictional or not did not change that. The suit must still be timely, even though the timeliness did not affect jurisdiction, but merely the plaintiff’s right to proceed with the suit. Furthermore, the trial courts that erroneously proceed to judgment without jurisdiction in a suit for judicial review would forever have their judgments open to reconsideration and that was precisely the threat to finality that Kazi sought to end. Moreover, the Texas Mutual’s plea to the jurisdiction was entirely premised on the assumption that the tolling provision found in section 16.064 did not apply to statutory prerequisites that were jurisdictional, and that the 45-day deadline for filing judicial review claims was jurisdictional. However, the court held that the 45-day deadline for filing judicial review claims found in section 410.252(a) of the Labor Code was not jurisdictional. Therefore, the trial court erred in granting Texas Mutual’s plea to the jurisdiction. Accordingly, the court reversed the judgment of the trial court and remanded for further proceedings.


State presented sufficient evidence appellant was criminally responsible for robbery of complainant under the law of parties, where appellant fled in his vehicle with the other individuals, abandoned the vehicle containing complainant’s purse, and hid in a dumpster to avoid capture
Rodriguez v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 16, 2017
01-16-00401-CR
Evelyn V. Keyes
Published
     A jury convicted appellant of first-degree felony offense of aggravated robbery and assessed his punishment at thirty-eight years’ confinement plus a $5,000 fine. The appellate court found that the State’s theory at trial was that appellant aided the two individuals (the individuals) in robbing the complainant by driving the getaway vehicle. On appeal, the appellee State focused solely on arguing that appellant was guilty of aggravated robbery under the law of parties. The court therefore agreed with the appellant that the State presented no evidence that the appellant committed the offense of aggravated robbery of the complainant as a primary actor. Further, the court found that the appellant fled in his vehicle when officers activated their emergency lights, and he, along with the two individuals (the individuals), abandoned the vehicle—which contained complainant’s purse—and hid in a nearby dumpster to avoid capture. Viewing the evidence in the light most favorable to the verdict, as the court must when reviewing the sufficiency of the evidence, a reasonable jury could have concluded beyond a reasonable doubt that the appellant, with the intent to promote or assist the commission of the robbery of complainant, aided the individuals to commit the offense. The court held that the State presented sufficient evidence that the appellant was criminally responsible for the robbery of complainant under the law of parties. Accordingly, the court affirmed the judgment of the trial court.


Trial court abused its discretion in finding that the cattle and calves in gestation or on the ground were the separate property of the appellee and not part of the community estate
In re Marriage of Stegall
Agricultural, Appellate: Civil, Family
Texas 7th Court of Appeals
May 12, 2017
07-15-00392-CV
Mackey K. Hancock
Published
     The appellant appealed the trial court’s Final Decree of Divorce, limited to the court’s property division and, specifically, the classification of cattle as the separate property of the appellee. The appellate court found that nothing in the appellee's motion or the record reflected that the appellant's acceptance of the benefits was a clear intent to acquiesce in the judgment’s validity. Rather, the appellant had consistently challenged the trial court’s characterization of certain property as the appellee's separate property. In the absence of proof of irremediable disadvantage to the appellee and circumstances reflecting the appellant's clear intent to acquiesce in the judgment’s validity, the court were obliged to dispose of the present appeal on the merits. Further, the trial court abused its discretion in finding that 191 head of cattle and calves in gestation or on the ground were the separate property of the appellee and not part of the community estate. Because the cattle constitute a large portion of the community estate, the trial court’s mischaracterization of the property as the appellee's separate property had a profound affect on the just and right division of the community estate and the court must, therefore, remand the entire community estate for a new division. Thus, the court reversed the trial court’s just and right division of the community estate, and remanded for a new division of the community estate. Accordingly, the court reversed the property-division portion of the judgment and remanded that portion for a new trial and in all other respects, the judgment was affirmed. 


Since arbitrator clarified that all the parties’ future income was partitioned as of the mediated settlement agreement date, petitioner's future income partitioned to him encompassed the discretionary bonus paid to him after that date
Loya v. Loya
Appellate: Civil, Family
The Supreme Court of Texas
May 12, 2017
15-0763
Debra Lehrmann
Published
     In the instant divorce proceedings, the parties entered into a mediated settlement agreement (MSA) after nearly two years of litigation. The central issue was whether the MSA partitioned a discretionary employee bonus the petitioner husband received nine months after the decree was entered. The petitioner contended that the bonus constituted future income and earnings that the mediated settlement agreement (MSA) partitioned to him, while the respondent wife contended that part of the bonus was earned during the marriage and constituted undivided community property. The trial court granted summary judgment for the petitioner, but the appellate court reversed. The Texas Supreme Court found that the MSA in the instant case dictated how the parties must resolve disputed interpretations of its terms. To the extent the MSA did not clearly partition future income, the arbitrator clarified that all of the parties’ future income was partitioned as of June 13, 2010. Further, the petitioner's future income encompassed the 2011 discretionary bonus, which was neither owed nor paid to him until nine months after the MSA was signed. Accordingly, the court reversed the appellate court's judgment and rendered judgment for the petitioner.


Trial court abused its discretion by ordering a nonparty to allow petitioners to enter onto his property and submit to a search of his bunker to inspect firearms subject to a security agreement, and relator established that it was entitled to mandamus relief
In re Sun City Gun Exchange, Inc.
Appellate: Civil, Civil Rights, Constitution, Courts, Creditor/Debtor, Discovery, Gov't/Administrative, Real Property
Texas 8th Court of Appeals
May 12, 2017
08-16-00357-CV
Ann Crawford McClure
Published
     Relator filed a mandamus petition against respondent Judge of the 448th District Court of El Paso County, Texas. The relator asked the appellate court to order the respondent to vacate an order compelling a non-party, to allow entry onto his real property and personal residence located in El Paso, Texas, for the purpose of photographing, inspecting, and video-recording all firearms and related property located in a firearms storage facility in the basement of the nonparty’s homestead. The court granted the relator’s motion to stay the discovery order pending resolution of the instant original proceeding. The appellate court found that while the relator offered to allow counsel for the petitioners to view certain guns at a neutral location, it made the offer in an effort to resolve the discovery dispute and to prevent entry onto the nonparty’s property. The offer did not operate as a waiver of the relator’s objections to the motion for entry onto the nonparty’s property. Further, to the extent the trial court granted the order for entry onto the nonparty’s land based on provisions in the security agreement allowing the secured party to inspect the collateral, it abused its discretion. The petitioners failed to establish they could not obtain the information sought through less intrusive means. the nonparty offered to produce the firearms which he identified in his interrogatory response, but the petitioners rejected the offer. The trial court abused its discretion by ordering a nonparty to allow the petitioners to enter onto his property and submit to a search of his bunker when they failed to establish relevance or good cause for the inspection. Furthermore, the petitioners have no right to roam through the nonparty’s property, photograph every item contained within the nonparty’s bunker, and record the serial numbers of firearms which belong to the nonparty or other persons. Once the information was recorded and in the possession of person’s outside of the nonparty’s control, the nonparty and any other owners whose property was stored in the bunker was in danger of permanently losing substantial rights and an appellate court could not correct the trial court’s error. The relator had established that it was entitled to mandamus relief. Accordingly, the court conditionally granted mandamus relief.


While first Judge lacked authority to file findings, trial court erred by failing to direct first Judge to request second Judge to file findings, where though second Judge's term expired during period respondent requested findings, section 30.002(a) authorized him to file after his term expired
Ad Villarai, LLC v. Pak
Appellate: Civil, Courts, Procedure
The Supreme Court of Texas
May 12, 2017
16-0373
Per Curiam
Published
     The issue in the instant case was whether a newly elected trial-court judge or the former judge she replaced may file findings of fact following a bench trial over which the former judge presided before his term expired. The appellate court held that neither judge could file the findings. The court reverse the appellate court judgment and remanded the instant case to that court with instructions that it abate the appeal and direct the trial court to correct the error by requesting that the former judge file findings. The respondent appealed the trial court’s judgment, arguing in part that the first judge’s findings were invalid because she lacked authority to file them. The Texas Supreme Court found that because the second Judge's term of office expired on December 31, 2014, which was within the period for filing the findings the respondent requested, the Texas Civil Practice and Remedies Code section 30.002(a) granted the second Judge authority to file the findings even after his term expired. Further, because the second Judge's term expired during the period prescribed for filing the findings the respondent requested, section 30.002(a) authorized him to file the findings even after his term expired. Furthermore, the respondent conceded that section 30.002(a) applied to the instant factual scenario, but contends that the second Judge only had authority to file findings during the court’s plenary power over the instant case. The respondent offered no authority to support the instant proposition, and the court decisions have recognized a contrary rule. Moreover, the court granted the petition for review and without hearing oral argument and the court reversed the appellate court's judgment. While the court agreed that the first Judge lacked authority to file findings, the trial court erred by failing to direct first Judge to request that second Judge file the findings. Finally, the court remanded to the appellate court with instructions for it to abate the appeal and direct the trial court to request that the second judge file findings in the case. Finally, if the trial court reports that the second judge failed or refused to file findings as and when requested, the appellate court may then remand the case to the trial court for a new trial.


Petitioner university’s campus police station was a governmental unit for purposes of law enforcement and petitioner was entitled to pursue an interlocutory appeal on denial of the plea to the jurisdiction as the defendants to the plaintiff’s unreasonable deadly force suit
University of The Incarnate Word v. Redus
Appellate: Civil, Civil Rights, Constitution, Education, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
May 12, 2017
15-0732
John P. Devine
Published
     The petitioner was a private university that maintains a campus police department. The instant case arose from the petitioner officer's use of deadly force following a traffic stop. The incident resulted in the death of the deceased, the petitioner student the officer pulled over on suspicion of driving while intoxicated. The deceased’s parents, the respondents sued the petitioner and the officer for their son’s death. The petitioner raised governmental immunity as a defense in its answer and later asked the trial court to dismiss the suit in a plea to the jurisdiction. The trial court denied the plea, and the petitioner took an interlocutory appeal under section 51.014(a)(8) of the Civil Practice and Remedies Code. The appellate court dismissed the appeal. The Texas Supreme Court found that the Legislature had authorized the petitioner to enforce state and local law using the same resource municipalities and the State use to enforce law, commissioned peace officers. The petitioner’s officers have the same powers, privileges, and immunities as other peace officers. Because law enforcement was uniquely governmental, the function the Legislature had authorized the petitioner to perform and the way the Legislature had authorized the petitioner to perform it strongly indicate that the petitioner was a governmental unit as to that function. Thus, the court found that the petitioner was a governmental unit for purposes of law enforcement and that the petitioner was therefore entitled to pursue an interlocutory appeal under section 51.014(a)(8) of the Civil Practice and Remedies Code. Accordingly, the court reversed the appellate court’s judgment and remand for it to resolve the petitioner’s interlocutory appeal.


Petitioner lacked statutory (and contractual) authority to cancel policy; 10-day stated-notice precondition to cancellation in section 651.161(b) of Texas Premium Finance Act, unlike other statutes, did not allow for a “substantial compliance” approach to compliance
BankDirect Capital Finance, LLC v. Plasma Fab, LLC
Appellate: Civil, Contracts, Insurance, Torts
The Supreme Court of Texas
May 12, 2017
15-0635
Don R. Willett
Published
     The respondent company obtained a general liability insurance policy from the company and financed the policy through a premium finance agreement with the petitioner. The petitioner paid the annual premium to the company, and the respondent company made monthly payments to the petitioner. The respondent company did not pay the past-due premium by December 4, and the petitioner sent a notice of cancellation to the company that evening. Four days later, a fire destroyed an apartment complex where the respondent company’s employees worked. The next day, the respondent company tendered the overdue amount, and the petitioner requested that the company reinstate the policy. the company refused, citing internal procedures forbidding reinstatement of policies that have been cancelled three times. the respondent company was sued for damages arising out of the fire. The company denied coverage, and judgment for almost $6 million was ultimately rendered against the respondent company. The respondent company and the respondent individual, its sole shareholder, sued the company and the petitioner for breach of contract, breach of fiduciary duty, deceptive trade practices, and negligent misrepresentation. The trial court granted summary judgment to the company and the petitioner on all claims. The appellate court reversed. The Texas Supreme Court found that the respondent company received notice, but it did not receive notice as required by law, meaning the petitioner lacked statutory (and contractual) authority to cancel the policy. The 10-day stated-notice precondition to cancellation in section 651.161(b) of the Texas Premium Finance Act, unlike other statutes, did not allow for substantial compliance. A looser, nontextual construction may temper statutory absoluteness and lead to more congenial policy outcomes, but fair reading now and again yields unfair results. As adjudicators the court must read section 651.161(b) as written—in a manner faithful to what the law actually says despite its imperfections. The petitioner contended the purpose of the statute was satisfied. But the 181 legislators who may have had 181 different motives, reasons, and understandings nowhere codified an agreed purpose. When decoding statutory language, the court were bound by the Legislature’s prescribed means. Accordingly, the court affirmed the appellate court’s judgment and remanded.


Stock sale agreement between petitioner and second corporation was unambiguous and did not unequivocally express the parties’ mutual intent to make respondent a third-party beneficiary trial court erred by submitting that issue to the jury and instructing them to consider extrinsic evidence
First Bank v. Brumitt
Appellate: Civil, Contracts, Corporations, Damages, Evidence, Torts
The Supreme Court of Texas
May 12, 2017
15-0844
Jeffrey S. Boyd
Published
     The instant case arose from the unsuccessful sale of a Houston-area information-technology first corporation. The Respondent who owned the first corporation, agreed to sell his stock to another Houston-area information-technology company, the second Corporation. The second corporation's owner and president, initially wanted to purchase the respondent's stock in two companies, the first corporation and the third corporation. The trial court entered judgment based on the jury’s verdict, awarding the respondent $1,006,000 as breach-of-contract damages, $250,000 as damages for negligent misrepresentation, and $250,000 as exemplary damages for gross negligence. Including attorney’s fees and pre-judgment interest, the respondent’s award totaled $1,815,460 plus court costs, post-judgment interest, and attorney’s fees on appeal. The Texas Supreme Court found that the trial court permitted the jury to consider extrinsic evidence as a basis for adding a term to the parties’ contract, instructing the jury that the parties’ intent to make the respondent a third-party beneficiary could be established using other evidence if the intent to benefit a third party was not expressed in the contract itself. Because the contract’s language was unambiguous, the trial court not a jury should have determined the parties’ intent as a matter of law, and it could not do so by relying on extrinsic evidence to create an intent that the contract itself did not express. Further, the court conclude that the agreement between the petitioner Bank and the second corporation did not clearly and fully express the parties’ intent to make the respondent a third-party beneficiary, and the trial court erred by submitting that issue to the jury and by permitting the jury to consider extrinsic evidence to add to the parties’ agreement. The court thus reversed the appellate court’ judgment upholding the petitioner’s liability to the respondent for breach of contract. Because the petitioner had not addressed the sufficiency-of-the-evidence issue in its briefing to this Court, the court believed it was better to remand for the appellate court to consider and address the issue in the first instance. Furthermore, the agreement between the petitioner and second corporation was unambiguous and did not clearly, wholly, and unequivocally express the parties’ mutual intent to make the respondent a third-party beneficiary. Finally, the trial court erred by submitting that issue to the jury and by instructing the jury to consider extrinsic evidence and the court reversed the appellate court's judgment, render judgment for the petitioner on the respondent’s breach-of-contract claim, and remanded the case to the appellate court for further consideration.


Jury could have found petitioner’s incontinence was itself a disability, and court of appeals erred in holding petitioner had to prove that his congestive heart failure was the disability that caused his urinary incontinence to show respondent improperly terminated him because of a disability
Green v. Dallas County Schools
Appellate: Civil, Civil Rights, Employment, Evidence, Gov't/Administrative
The Supreme Court of Texas
May 12, 2017
16-0214
Per Curiam
Published
     In the instant disability-discrimination case, the trial court entered judgment on the jury’s verdict in favor of the employee (the petitioner). The court of appeals reversed, holding the petitioner offered no evidence he was terminated “because of” his congestive heart failure. The Supreme Court Of Texas found that three physicians defined incontinence as “the inability to control your urine.” the court concluded that the evidence, along with the uncontested evidence that the petitioner suffered from “the involuntary loss of urine” on the occasion for which he was fired, was sufficient to support a finding that his incontinence itself was a disability. Further, in any event, the trial court’s charge instructed the jury that, for purposes of establishing that the respondent “knew of his disability,” the respondent could act “through its officers and employees,” not just through its “decisionmakers.” the respondent did not object to the instruction, so the court must measure the sufficiency of the evidence in light of the jury instruction. Consistent with the jury charge, the record contained legally sufficient evidence that the bus drivers, who were the respondent's employees—and thus the respondent itself—knew of the petitioner’s urinary incontinence. Furthermore, the jury’s task was to decide whether the respondent improperly terminated the petitioner “because of” a disability. No one disputed that the respondent fired the petitioner because of his urinary incontinence, and based on the jury charge and the evidence presented, we conclude the jury could have found the petitioner’s incontinence was itself a disability. The court of appeals thus erred in holding that the petitioner had to prove that his congestive heart failure caused his urinary incontinence. Accordingly, the court reversed the court of appeals’ judgment and remanded.


Board members were employed by petitioner under provisions of the Texas Unemployment Compensation Act such that when their terms of service ended or their workload was reduced, they became eligible for unemployment compensation benefits
Harris County Appraisal District v. Texas Workforce Commission
Appellate: Civil, Employment, Gov't/Administrative, Procedure
The Supreme Court of Texas
May 12, 2017
16-0346
Phil Johnson
Published
     In the instant case the court considered whether several members of the Harris County Appraisal Review Board are, or were, employed by the petitioner under provisions of the Texas Unemployment Compensation Act (TUCA) such that when their terms of service ended or their workload was reduced, they became eligible for unemployment compensation benefits. The respondent Commission (the respondent) determined that they were. The district court disagreed and set the respondent’s decisions aside. The court of appeals reversed. The Texas Supreme Court found that under the Tort Claims Act, “‘Employee’ meant a person, who was in the paid service of a governmental unit, but did not include a person who performed tasks the details of which the governmental unit did not have the legal right to control.” Thus, Board members were not precluded from meeting the definition of “employment” under TUCA simply because they exercise independent judgment, or the content and result of their decisions were not under the direct control of the petitioner. Further, the Tax Code provisions the petitioner relied on did not control the definition of “employment” or “employee” for purposes of TUCA. Thus, the Tax Code did not prohibit or prevent a Board member from being an employee of the petitioner for TUCA purposes. Furthermore, considering all the factors, the court concluded that there is more than a scintilla of evidence to support the respondent’s determination that an employment relationship existed between the petitioner and the claimants. Thus, there was substantial evidence to support the respondent’s determination that they were entitled to unemployment compensation. Lastly, although it was clear that the Legislature was concerned with the independence and neutrality of appraisal review boards, those considerations did not warrant an extension of the members of the judiciary exemption in the instant case. Therefore, the court agreed with the court of appeals’ determination that Board members did not fall within TUCA’s exemption for members of the judiciary. Accordingly, the court affirmed the judgment of the court of appeals.


Commercial landlord had not expressly waived contractual nonwaiver provision by accepting late payments from tenant, and could proceed on its forcible detainer action against tenant, who failed to exercise lease extension option by fulfilling all the contractual terms and conditions
Shields Limited Partnership v. Bradberry
Appellate: Civil, Contracts, Landlord and Tenant, Real Property, Torts
The Supreme Court of Texas
May 12, 2017
15-0803
Eva M. Guzman
Published
     In the instant forcible-detainer action, the petitioner, a commercial landlord sought to oust a long-term tenant, the respondents claiming a superior right of immediate possession under a lease-extension option. Though the the respondents frequently defaulted on the lease’s rental-payment terms, the petitioner regularly accepted the respondents rental payments when tendered and without protest. The parties had agreed, however, that the petitioner's acceptance of late installment of Rent should not be a waiver and should not estop the petitioner from enforcing that provision or any other provision of the lease in the future, all waivers must be in writing and signed by the waiving party, and any forbearance of enforcement should not be construed to constitute a waiver. After exhausting the administrative remedies, the appellate court summarily rejected the petitioner's alternative argument that, even if the respondents had successfully exercised the extension option, he was in default under the lease based on his failure to pay Consumer Price Index (CPI)-adjusted rent starting June 1, 2012. Although the petitioner had asked the trial court to take judicial notice of the CPI, including for April 2012, which produced a new base rental rate of $3,340 per month, the appellate court said the petitioner failed to ask the trial court to take judicial notice of the April 2013 CPI specifically. The Texas Supreme Court found that though it did not hold a nonwaiver provision may never be waived, there must, at a minimum, be some act inconsistent with its terms. Further, the record bears no evidence that the petitioner acted inconsistently with the contract’s express terms. Nor had the respondents identified any false or misleading representation supporting an equitable-estoppel bar to eviction, as the respondents asserts. Thus, the court reversed the appellate court's judgment rejecting the petitioner's forcible-detainer action, rendered judgment in the petitioner's favor, and remanded to the trial court to award attorney’s fees in accordance with the parties’ contract.