Trial court erred in failing to deduct the children’s health insurance premiums from the obligor’s net monthly resources, and because trial court erred in applying Section 154.062(d) to calculate appellant’s net monthly income, the resulting monthly child support obligation was erroneous
Stringfellow v. Stringfellow
Family, Juvenile
Texas 8th Court of Appeals
October 06, 2017
08-15-00071-CV
Yvonne T. Rodriguez
Published
     Appellant challenged the monthly child support set by the trial court. The appellate court found that TEX.FAM.CODE ANN. Section 154.062 required the trial court to deduct children’s health insurance premiums from the obligor’s net resources. The trial court should have taken the appellee’s presumptive net monthly income of $8,550 and deducted his $500 in monthly health insurance premiums from that number, to arrive at a net monthly income of $8,050. Because appellee had two children entitled to support, the statute required that the court multiply his net monthly income of $8,050 by 25 percent, giving the court the proper monthly child support obligation of $2,012.50. Once the oldest child turned 18 or graduated from high school, the amount would be reduced to $1,610 a month by multiplying $8,050 by 20 percent, which was the appropriate percentage for one child under the guidelines. Thus, appellant’s issue was sustained insofar as the trial court erred in calculating the correct monthly child support obligation. Accordingly, the judgment was reversed and remanded.


Appellant failed to answer appellee’s requests for admissions, the requests were deemed judicial admissions and conclusive proof appellant was barred from disputing that termination of appellant’s parental rights was in child’s best interest, supporting a motion for summary judgment
In re N.L.W.
Discovery, Family, Juvenile, Procedure
Texas 6th Court of Appeals
October 06, 2017
06-17-00050-CV
Ralph K. Burgess
Published
     Based on nine deemed requests for admissions, the trial court granted summary judgment terminating the appellant’s parental rights to his daughter, the child. In his sole issue, the appellant challenged the legal and factual sufficiency of the evidence supporting the trial court’s finding that termination of the appellant’s parental rights was in the child’s best interest. The appellate court found that because the appellant failed to answer the appellee’s requests for admission that termination of his parental rights was in the child’s best interest, the requests were deemed admitted. Further, because deemed admissions constituted judicial admissions, the appellant’s admissions were conclusive and it relieved the appellee's burden of proving that termination of the appellant’s parental rights was in the child’s best interest, and barred the appellant from disputing it. Lastly, because admissions of fact on file at the time of a summary judgment hearing were proper summary judgment proof and would, therefore, support a motion for summary judgment and because a judicially admitted fact was no longer subject to a legal or factual sufficiency attack on appeal, the trial court did not err in granting summary judgment. Accordingly, the judgment was affirmed. 


Appellants did not raise a fact issue on actual knowledge requirement of Section 95.003(2), where dangerous condition resulting in decedent's death was specific use of cat-head and cat-line to lift cellar jet line for repair, and there was no evidence appellee had actual knowledge of those uses
Cuevas v. Endeavor Energy Resources, L.P.
Appellate: Civil, Employment, Litigation: Personal Injury, Oil, Gas, & Mineral, Procedure, Torts
Texas 11th Court of Appeals
October 05, 2017
11-15-00157-CV
John Bailey
Published
     The appellate court withdrew its opinion filed on July 27, 2017 and substituted with the instant opinion, and the motion for rehearing was granted in part and denied in part. The appellants filed suit against the appellee, the limited partnership and the decedent's employer alleging claims of negligence and premises liability. The trial court granted the appellee's motion for summary judgment based upon its determination that the appellants did not have evidence to establish a claim against the appellee under Tex. Civ. Prac. & Rem. Code Ann. Section 95.003. The appellate court found that the trial court in Ineos rejected the contention that general knowledge of a potentially dangerous condition constituted actual knowledge of the dangerous condition that resulted in the claimant’s injury. In that context, the dangerous condition that resulted in the decedent's death was the specific use of the cat-head and cat-line to lift the cellar jet line for repair, and there was no evidence that the appellee had actual knowledge that the cat-head and cat-line were being used in that manner. Thus, the trial court did not err in concluding that the appellants did not raise a fact issue on the actual knowledge requirement of Section 95.003(2). Further, the trial court stated in G & H Towing that, although a trial court erred in granting a summary judgment on a cause of action not expressly presented by written motion, the court agreed that the error was harmless when the omitted cause of action was precluded as a matter of law by other grounds. However, the Texas Supreme Court subsequently clarified its holding in G & H Towing in Ineos where it stated summary judgments may only be granted upon grounds expressly asserted in the summary judgment motion. Thus, the court could not uphold a summary judgment on a basis that was not related to a ground asserted in the summary judgment motion. Accordingly, the court affirmed in part and reversed and remanded in part. 


Petitioner’s false arrest charge by information arose out of, and was from the same date as, the arrest for delivery of a controlled substance and official oppression and petitioner was disqualified from obtaining expunction under Article 55.01(a)(2)(A) of the Texas Code of Criminal Procedure
Ex Parte Barham
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
October 06, 2017
06-17-00006-CV
Ralph Burgess
Published
     The ex parte individual petitioner was indicted by a Madison County grand jury for the state-jail-felony-offense of delivery of a controlled substance (methamphetamine) and for official oppression, a class A misdemeanor. The Madison County District Attorney filed an information charging the petitioner with making a false statement to a peace officer, a class B misdemeanor (the False Statement Charge). The appellate court found that the actual finding that the trial court did make compelled the conclusion that the petitioner was not entitled to expunction. The petitioner’s False Statement Charge was a class B misdemeanor, and subsection (a)(2)(A)(ii) said that an intervening indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest that had not be dismissed or quashed disqualified a petitioner from obtaining expunction of the original charge. Further, in its amended findings, the trial court found that the petitioner was arrested on April 5, 2013, and charged by indictment with delivery of a controlled substance and official oppression and that he was not arrested on a separate date for the False Statement Charge; that charge arose out of his arrest on April 5, 2013. To the extent the trial court’s amended findings conflict with its original findings, the amended findings control. Therefore, the trial court’s finding that the False Statement Charge arose out of the individual’s April 5, 2013, arrest was controlling. Finally, not only did the trial court fail to find that he, the petitioner, did not have any disqualifying charges under subsection (a)(2)(A), the trial court specifically found that the false arrest charge arose out of the arrest for the delivery of a controlled substance and official oppression. On the basis of this finding, the petitioner was disqualified from obtaining expunction under Article 55.01(a)(2)(A). Consequently, and for the reasons herein, the court reversed the trial court’s expunction order and rendered an order denying the petitioner’s petition for expunction.


There was no indication that the appellant's claim’s deposition was relevant to any asserted defense and insurers had a substantial right not to undergo the expense of conducting discovery on issues that ultimately may be unnecessary because of the result in the underlying tort case
In re Liberty County Mutual Insurance Co.
Damages, Discovery, Insurance, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
October 05, 2017
01-17-00363-CV
Jane Bland
Published
     The individual was injured when her vehicle was struck by a vehicle driven by the tort-feasor. The individual was insured under an automobile insurance policy underwritten by the relator. The individual sued the tort-feasor and the relator, asserting that the tort-feasor’s negligence caused the accident and that the tort-feasor was not insured for it. The trial court granted the motion in part, and it severed and abated all pending causes of action against the relator except for the individual’s claims for breach of contract and declaratory judgment. After exhausting the administrative remedies, the trial court denied the relator’s motion to quash and directed it to produce the appellant's claims adjuster for deposition within sixty days. The appellate court found that the information the individual sought to discover may become relevant, but not unless the individual obtained a judgment establishing the tort-feasor’s liability for the underlying car accident, the tort-feasor’s uninsured/underinsured status, and the existence and amount of the individual’s damages. Further, there was no indication at the instant stage of the individual’s case that the appellant's claim’s deposition was relevant to any asserted defense, as questions about uninsured motorist coverage await determination of primary liability and damages. Lastly, insurers had a substantial right not to undergo the expense of conducting discovery on issues that ultimately may be unnecessary because of the result in the underlying tort case. Insurers similarly have been held to lack an adequate remedy by appeal when required to respond to discovery for extra-contractual claims that may be rendered moot by the determination of the breach of contract claims. Accordingly, the court conditionally granted the petition for writ of mandamus and directed the trial court to vacate its order compelling the deposition and granted the relator’s motion to quash.


Jury necessarily found appellant guilty of aggravated sexual assault, a lesser included offense of continuous sexual abuse of a child as charged, and the Court reformed the judgment to reflect a conviction for aggravated sexual assault of a child and remanded for a new punishment hearing
Lee v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 04, 2017
PD-0880-16
Mary Lou Keel
Published
     The jury convicted the appellant of continuous sexual abuse of a child. It assessed a life sentence. The court reformed the judgment to reflect a conviction for the lesser-included offense of aggravated sexual assault of a child and remanded for a new punishment hearing. The Texas Court of Criminal Appeals found that Texas had territorial jurisdiction of continuous sexual abuse of a child, but the evidence was insufficient to sustain a conviction because only one violation of Texas law was proven, and that was the aggravated sexual assault committed in Texas. Further, when an appellate court found the evidence insufficient to establish an element of the charged offense, but the jury necessarily found the defendant guilty of a lesser offense for which the evidence was sufficient, the appellate court must reform the judgment to reflect the lesser-included offense and remand for a new punishment hearing. Thornton v. State. The jury necessarily found the appellant guilty of aggravated sexual assault, which was a lesser included offense of continuous sexual abuse of a child as charged in the instant case. Accordingly, the court reformed the judgment to reflect a conviction for aggravated sexual assault of a child and remanded for a new punishment hearing.


Pursuant to the officer’s observation of the marihuana pipe while lawfully searching for an open container of alcohol and the appellant’s admission that there was marihuana in his vehicle, probable cause existed for the officer to continue his search for the marihuana
Elrod v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
October 04, 2017
06-17-00081-CR
Ralph K. Burgess
Published
     After the trial court denied his motion to suppress, the appellant pleaded guilty to having possessed less than two ounces of marihuana. The trial court found the evidence supported the appellant’s guilt, but deferred a finding of guilt and placed him on community supervision for a period of twelve months. The appellate court found that when the officer detected the odor of alcohol emanating from the vehicle, he asked the appellant if there was an open container in the vehicle, to which the appellant replied that there was probably one in a trash bag. Based on the odor of alcohol and the appellant’s admission that there was an open container in his vehicle, there existed probable cause to search the appellant’s vehicle for the open container. Moreover, while lawfully searching for the open container, the officer observed a marihuana pipe and then asked the appellant if there was any marihuana in his vehicle, to which the appellant responded affirmatively. Pursuant to the officer’s observation of the marihuana pipe and the appellant’s admission that there was marihuana in his vehicle, probable cause existed for the officer to continue his search for the marihuana. Accordingly, the court affirmed the trial court’s judgment.


Summary judgment on appellee’s arguments that appellant alleged only intrinsic fraud and that he was not entitled to a bill of review on litigated issues was erroneous; appellees did not show unclean hands, and issues of fact remained whether appellant could show he relied on any alleged perjury
Cantu v. Guerra & Moore, LLP
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 4th Court of Appeals
October 04, 2017
04-17-00013-CV
Sandee Bryan Marion
Published
     The instant was the third appeal in a dispute among attorneys over attorney’s fees, which began with a product liability/wrongful death suit filed in 2005 and culminated in a 2008 directed verdict against the appellant on the dispute over attorney’s fees. Once again, the parties were before the instant court on a summary judgment rendered against the appellant and in favor of appellees. The appellate court found that the evidence did not change the basis of the ruling in prior opinion II's, which was that the appellant’s allegations regarding the appellees’ alleged conspiracy, bribery, perjury, and coercion, if proven, amounted to allegations of extrinsic fraud as a matter of law. Therefore, the court concluded the prior opinion II’s ruling was law of the case and summary judgment on the ground that the appellant’s allegations amounted to intrinsic fraud was improper. Because the court concluded the appellant was entitled to pursue his bill of review, the court could not say the appellees’ attorney’s fees incurred in preventing the appellant from seeking relief amounted to serious harm. Therefore, summary judgment on that ground was improper. Because the holding in prior opinion II that the appellant’s allegations, if proven, constituted extrinsic fraud was law of the case, the trial court erred in rendering summary judgment in appellees’ favor based on appellees’ arguments that the appellant alleged only intrinsic fraud and that he was not entitled to a bill of review on issues already litigated and appealed. The court concluded the appellees did not conclusively establish their defense of unclean hands as a matter of law. Finally, the court concluded genuine issues of material fact preclude summary judgment in the appellees’ favor based on their argument that the appellant could not show he relied on any alleged perjury. For those reasons, the court reversed the trial court’s summary judgment in the appellees’ favor and remanded the cause to the trial court for further proceedings.


Questions of fact remained to determine nature of the agreement between appellant and appellees for the oil and gas leases, if any contract had been formed as alleged, and court could not determine under the facts of the case whether such a contract was illusory
Le Norman Operating LLC v. Chalker Energy Partners III, LLC
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Torts
Texas 1st Court of Appeals
October 03, 2017
01-15-01099-CV
Evelyn V. Keyes
Published
     The appellant company filed a breach of contract suit against the appellee companies, who counter-claimed, asserting their own breach of contract claim and also asserting claims for declaratory judgment, attorney’s fees, and sanctions. After considering numerous summary judgment motions filed by the parties, the trial court granted partial summary judgment in favor of the appellees and dismissed the appellant's breach of contract claim against them. The trial court also granted the appellant's summary judgment motion seeking dismissal of all of the appellees’ counter-claims. The appellate court found that because there were questions of fact that must be resolved in order to determine the nature of the agreement between the appellant and the appellees, if any, the court could not determine as a matter of law, under the particular facts of the case, whether such a contract was illusory. Thus, the trial court likewise erred in reaching such a conclusion as a matter of law. Further, the appellees failed to present evidence raising a genuine issue of material fact in response to the appellant's no-evidence summary judgment. Thus, the trial court did not err in granting summary judgment. Furthermore, no real or substantial controversy existed between the appellant and the third party because at the time the appellees asserted their claim and the appellant moved for summary judgment, the appellant had nonsuited any claims against the third party and those two parties had reached a settlement. Lastly, in the remaining declaratory judgment claims, the appellees sought declarations relating to the appellant's breach of contract claims. They sought declarations that the bid procedures were in full force and effect at the time the parties wrote the November 19–20 e-mails, that no binding purchase agreement existed between them and the appellant, that the appellees did not breach any such agreement, that they had the right to negotiate with and sell the Assets to the third party, and that they were not liable to the appellant for breach of any sale agreement. Thus, summary judgment on that ground was improper. Accordingly, the court affirmed in part and reversed and remanded in part.


Rational juror could find beyond a reasonable doubt appellant consciously created a substantial and unjustifiable risk of danger to others by ingesting drugs and driving, and appellant’s custodial statement was given after knowing and voluntary waiver of his Miranda rights
Williams v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 03, 2017
14-16-00458-CR
John Donovan
Published
     A jury found the appellant guilty of manslaughter with an affirmative finding of use of a deadly weapon and accident involving personal injury or death. Punishment was enhanced with two prior felony convictions and the jury sentenced the appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for sixty years for each offense; the sentences were ordered to run concurrently. The appellate court found that a rational juror could find beyond a reasonable doubt that the appellant consciously created a substantial and unjustifiable risk of danger to others. Thus, the evidence was sufficient to support the appellant’s conviction for manslaughter. Further, the jury could have found beyond a reasonable doubt that the appellant was guilty of accident involving personal injury or death. Next, the record supported the trial court’s finding that the appellant’s statement was voluntarily, freely, and intelligently given, making the waiver of his right to counsel valid. Thus, the trial court did not abuse its discretion in denying the appellant’s motion to suppress his custodial statement. Further, by failing to timely file a written objection to the Certificate of Analysis, the appellant failed to preserve the issue for the court's review. Furthermore, the probative value of the extraneous-offense evidence was not substantially outweighed by unfair prejudice. The evidence was probative in assessing whether the appellant was driving recklessly and the State needed the evidence to counteract the defensive theory that he was not. Thus, under Tex. R. Evid. 403, the trial court did not abuse its discretion in admitting the evidence. Lastly, any error in admitting the witness’s opinion that the appellant was reckless did not affect the appellant’s substantial rights. Accordingly, the judgment was affirmed.


Appellants did not prove appellee intended to sell property on terms in the email, or that email modified the lease or showed appellee breached the lease, and appellants take nothing on their promissory-estoppel claims; on jury’s findings, remittitur suggested on appellee’s attorneys’ fees award
Range v. Calvary Christian Fellowship
Contracts, Damages, Landlord and Tenant, Torts
Texas 14th Court of Appeals
October 03, 2017
14-15-00672-CV
Tracy Christopher
Published
     In the instant dispute between a commercial tenant and its landlord, both sides appeal from the judgment rendered after a jury trial. The appellant and a related party maintain that the appellee breached an agreement to sell the property to one or both of them and additionally breached a lease provision giving the appellant the right to lease additional space. The appellant and the related party sued the appellee for breach of contract, common-law fraud, statutory fraud, and promissory estoppel, prevailing only on the promissory-estoppel claim. The appellee unsuccessfully counterclaimed for breach of the lease, but received some of the declaratory relief it sought. The trial court refused each side’s requests for a contractual award of attorneys’ fees. The appellate court found that because its opponents presented no evidence that they sustained damages recoverable for a promissory-estoppel claim, the court modified that portion of the judgment to eliminate the damages awarded. Further, the court agreed that the appellee was entitled to recover its attorneys’ fees; however, the court initially remanded the question of whether the fees were recoverable only from the appellant or from both the appellant and the related party. After considering the parties’ cross-motions for rehearing, however, the court agreed with the appellee that the related party was jointly and severally liable with the appellant for the appellee’s attorneys’ fees, and agreed with the appellant and the related party that the evidence was insufficient to support all of the appellee’s attorneys’ fees assessed by the jury. Therefore, the court granted in part both of the cross-motions for rehearing. Further, because the appellee had stated that it preferred to accept a suggestion of remittitur rather than to relitigate the amount of its attorneys’ fees, the court suggested remittitur, and subject to the appellee’s acceptance of remittitur, the court modified the judgment to eliminate the damages awarded to the appellant and the related party, and the court held them jointly and severally liable to the appellee for a reduced amount of attorneys’ fees. Accordingly, the judgment was affirmed as modified.


Evidence supported trial court’s denial of appellant’s claim of a superior right to money as earned legal fees from his client, who was charged with theft of money; money was taken under article 18.02 warrant, and appellant could not assert his client’s Sixth Amendment rights for his own benefit
In re Approximately $80,600.00
Constitution, Ethics, Gov't/Administrative, Professional Responsibility, Torts
Texas 1st Court of Appeals
October 03, 2017
01-14-00424-CV
Laura Carter Higley
Published
     The client retained the appellant to defend him against a criminal indictment for theft (the First Theft Cause). Under the retention agreement for that cause, the client agreed to pay the appellant in installments for a fixed-fee, non-refundable retainer for the appellant’s representation. The total amount owed depended on whether the second payment was made promptly and whether the cause went to trial. Around November 3, 2008, the client wrote a check to the appellant for $80,600. The appellant deposited the money into an IOLTA account held by his law practice. The client was later indicted with another offense of theft (the Second Theft Cause), and the client retained the appellant to represent him in that cause as well. In two separate actions, the appellant sought to recover money taken from him based on the State’s claim that the money had been stolen. The trial court denied, in both actions, the appellant’s request to have the money returned to him. The appellate court found that the record contained an affidavit from an investigator in the Consumer Protection Section of the Harris County District Attorney’s Office. In the affidavit, the investigator averred that the money withdrawn from the appellant’s IOLTA account during the second withdrawal was moved into a new account opened in the appellant’s name. Thus, the court held that the evidence was legally and factually sufficient to support the trial court’s denial of the appellant’s claim that he had a superior right to possession of the money. Further, the State correctly pointed out that it did not obtain the warrant pursuant to article 47.02 of the Code of Criminal Procedure. Instead, it obtained the warrant pursuant to article 18.02 of the Code of Criminal Procedure. Finally, Personal rights could only be asserted by the person possessing them, a third party could not assert them for the third party’s benefit. Thus, the appellant could not assert his client’s Sixth Amendment rights for the appellant’s benefit. Accordingly, the court affirmed the trial court’s judgment in both causes.


Any objection to State’s failure to obtain a warrant for call logs and cell site information would have lacked merit, and appellant’s counsel was not ineffective; officers’ failure to advise appellant of his right to contact his consulate did not establish appellant’s Miranda waiver was invalid
Cervantes-Guervara v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 03, 2017
14-16-00104-CR
Martha Hill Jamison
Published
     In three issues, the appellant challenged his conviction for capital murder alleging he received ineffective assistance of counsel. The appellate court found that the appellant did not suggest any other grounds for excluding the cell phone records. Because any objection at trial to the State’s failure to obtain a warrant for call logs and cell site location information under the Fourth Amendment or Article I, section 9 would have lacked merit, the appellant’s counsel's representation did not fall below an objective standard of reasonableness. Further, after considering the totality of the circumstances, the officers’ failure to advise the appellant of his right to contact his consulate did not establish that the appellant’s waiver was not voluntary, knowing, or intelligent. Furthermore, the appellant’s waiver of his rights was voluntarily made with full awareness of the nature of those rights and the consequences of waiving them. Accordingly, the trial court did not err in denying appellant’s motion to suppress. Because trial counsel did not provide ineffective assistance in failing to object to cell phone records obtained without a warrant and because under the totality of the circumstances, the evidence supported the trial court’s conclusion that the appellant knowingly, intelligently, and voluntarily waived his Miranda rights, the court affirmed the judgment of the trial court.


The community estate was sufficient to pay the family allowance awarded to the applicant, decedent’s surviving spouse, and the trial court properly ordered that the allowance be paid out of the full community estate, which was consistent with the Pace and Miller decisions
In re Estate of Nielsen
Procedure, Wills/Trusts/Probate
Texas 6th Court of Appeals
October 03, 2017
06-17-00055-CV
Ralph Burgess
Published
     After the temporary administrator of the estate of the decedent’s first amended inventory, appraisement, and list of claims was approved in the Probate Court No. 2 of Tarrant County, the decedent’s surviving spouse (the applicant), filed her second amended application for a family allowance. The primary beneficiary under the will (the beneficiary) opposed the applicant’s application. The probate court granted the applicant a family allowance of $137,100.00 and provided that the allowance was to be charged against the entire community property estate. The appellate court found that in Pace v. Eoff, 48 S.W.2d 956, 963, the Texas Commission of Appeals held that, under the then-existing probate statutes, the surviving spouse’s family allowance was to be paid from the entire community estate. The Texas Supreme Court adopted that holding and reiterated it almost twenty years later in Miller v. Miller, 235 S.W.2d 624, 628–29 (Tex. 1951). The statutes regarding the family allowance have been repeatedly re-enacted without substantive changes since the Pace and Miller decisions. Therefore, the Legislature is presumed to have intended that the courts construe the Estates Code regarding the family allowance consistently with those decisions. In this case, the community estate was sufficient to pay the family allowance awarded to the applicant, and the trial court ordered that the allowance be paid out of the full community estate. Since the order was consistent with Pace and Miller, the trial court did not misinterpret or misapply the law. Consequently, the court held that the trial court did not abuse its discretion and the court overruled the applicant’s sole point of error. Accordingly, the court affirmed.


The court dismissed the case for lack of jurisdiction because trial court’s declaratory judgment order only dictated ownership of the company, land and appellee’s duties, and was not a final judgment, and could not be appealed because the order did not fully dispose of all the parties and claims
In re Estate of Lindsay
Procedure, Torts, Wills/Trusts/Probate
Texas 8th Court of Appeals
September 29, 2017
08-14-00232-CV
Yvonne T. Rodriguez
Published
     The appellee, in her capacity of Dependent Administrator of the Estate of the decedent, filed an original petition for a Declaratory Judgment pursuant to the Texas Uniform Declaratory Judgment Act. That action arose from the dependent administration in the estate of the decedent, in the County Court of Reeves County, Texas. The original petition named eighteen defendants; nine individuals, five corporations, one bank, and three trusts. The appellant challenged a declaratory judgment regarding the ownership of the company and awarding a disputed tract of land to the company. The appellate court observed that the trial court’s order of April 29, 2014, was not a final judgment, and consequently, could not be appealed because the order did not fully dispose of all the parties and claims. The order only ruled that the decedent was the sole and only owner of the company, that the company was the sole owner of the 2.5 acre tract of land in dispute, that the deed in which the decedent granted the appellant the 2.5 acre tract of land was void, and that the appellee shall act as the duly sole officer and director of another corporation. Nothing in the order nor in the record supported the contention that the instant was a final judgment, and thus appealable. Hence, the court dismissed for lack of jurisdiction.


Sufficient evidence supported jury’s finding that the neonatologist’s negligence, more likely than not, caused victim's poor visual outcome, but appellate court erred in not applying the substantial-factor test because jury heard ample evidence supporting the combined negligence of the MDs
Bustamante v. Ponte
Appellate: Civil, Health Care, Litigation: Personal Injury, Torts
The Supreme Court of Texas
September 29, 2017
15-0509
Paul W. Green
Published
     The victim child’s parents, the petitioners, as next friends of the child, sued the respondents, a Medical Center, M.D. (the neuroneonatologist, attending physician, and medical director of the NICU at the center), and M.D. (the ophthalmologist), claiming that their negligence and gross negligence caused the victim's vision loss. The center settled with the petitioners before trial, and the remaining claims were tried to a jury. The jury found that the defendants’ negligence caused the victim's injuries, concluding that the neuroneonatologist was 45% responsible, the ophthalmologist was 45% responsible, and the center was 10% responsible. The appellate court reversed and rendered judgment. The Texas Supreme Court held that the appellate court erred in not applying the substantial-factor test because the jury heard ample evidence supporting the combined negligence of the MDs. Further, the appellate court erred in rejecting the petitioners' statistical evidence premised on the Revised Indications for Treatment of Retinopathy of Prematurity study as no evidence of causation and in holding that the two petitioners' experts' opinions were conclusory and thus no evidence of causation. Finally, legally sufficient evidence supported the jury’s conclusion that the neuroneonatologist's negligence more likely than not caused the victim’s impaired vision. Accordingly, the court reversed the judgment of the appellate court as to the neuroneonatologist and his professional association and remanded the case to that court so that it can consider the remaining issues not previously addressed.


In legal malpractice case, expert witness’ affidavit of causation was not conclusory, because it only asserted that had first respondent attorney challenged the seizure by complying with the notice requirements, government likely would have yielded from its seizure of some aircraft, but not all
Starwood Management, LLC v. Swaim
Evidence, Procedure, Professional Responsibility, Torts
The Supreme Court of Texas
September 29, 2017
16-0431
Per Curiam
Published
     The question in the instant legal malpractice case was whether an expert witness affidavit was conclusory regarding causation. The trial court concluded that it was. The court of appeals affirmed. The Supreme Court of Texas found that attorney noted in his affidavit that his comparison to the other six cases was proper because the other seizures arose from “the same set of facts.” In that instance, the attorney’s references to and attachment of documentation concerning the comparators was sufficient. Further, it was unnecessary for an expert in a case such as the instant to provide a legal analysis of every possible exigency, no matter how remote. Indeed, in Ford Motor Co. v. Ledesma, the court held that a party’s complaints that an opposing expert’s testimony did not consider all the relevant facts “go to its weight, not its admissibility.” Had the summary judgment evidence shown that the attorney was successful in recovering some of the airplanes but not others, then a more detailed analysis of the merits might have been necessary. But the affidavit, on those facts, only asserted that had the first respondent challenged the seizure by complying with the notice requirements, the Drug Enforcement Administration (DEA) likely would have yielded as it did in the other cases. Accordingly, the court reversed the court of appeals’ judgment and remanded the case to the court of appeals for it to consider the issues that it did not reach.


In a trespass to try title suit against appellees, trial court did not abuse its discretion in determining that appellant failed to join necessary parties under Rule 39(a), in dismissing the case with prejudice under Texas Rules of Civil Procedure, or in denying appellant's motion for severance
Pierce v. Blalack
Appellate: Civil, Oil, Gas, & Mineral, Procedure, Real Property
Texas 6th Court of Appeals
September 29, 2017
06-17-00013-CV
Bailey C. Moseley
Published
     The appellant’s trespass to try title suit against the appellees was dismissed with prejudice for her failure to comply with court orders requiring her to amend her pleadings to join necessary parties. The appellate court observed that in light of the appellant’s claims, and Longoria v. Exxon Mobil Corp. (Longoria I), 255 S.W.3d 174, 180, the trial court’s decision that settling title as requested by the appellant in the absence of the enjoined parties could, as a practical matter, impair or impede the ability of those parties to protect their interests. Therefore, there was no abuse of discretion in the trial court’s ruling that the absent parties should be joined under TEX. R. CIV. P 39(a). Further, the trial court did not abuse its discretion in denying the appellant’s request to sever her claims against the surface estate owners from the same claims raised against the mineral estate owners. Finally, the court could not conclude that the trial court erred in dismissing the appellant’s claims with prejudice. Accordingly, the court affirmed the trial court’s judgment.


Petitioner had established that its providing the individual a loaner vehicle when he was visibly intoxicated was not a proximate cause of his injuring the respondent in the drunk-driving accident eighteen days later, as any negligent entrustment at the time of the bailment had attenuated
Allways Auto Group, Ltd. v. Walters
Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
September 29, 2017
16-0134
Per Curiam
Published
     Petitioner auto dealer, provided an individual (the individual) a loaner vehicle. The individual had been drinking at the time. Eighteen days later, the individual drove the loaner into a truck driven by the respondent. The individual was legally intoxicated. The respondent sued the petitioner for negligent entrustment. The petitioner moved for summary judgment on the ground that “an accident that occurs eighteen days after entrustment is too attenuated to constitute legal cause”. The trial court granted the motion, and the respondent appealed. The court of appeals reversed and remanded, concluding that fact issues regarding proximate cause remained. The Supreme Court of Texas found that if the individual were visibly intoxicated when he got the loaner, the petitioner could reasonably have anticipated he might have a wreck before he sobered up. But the petitioner could not have foreseen that the individual would get drunk eighteen days later (after repairs were delayed and he lost his job) and drive his vehicle into respondent's vehicle. Therefore, the petitioner had established that its providing the individual a loaner was not a proximate cause of his injuring the respondent eighteen days later. Even if the individual were visibly intoxicated when he obtained the loaner, driving into the respondent eighteen days later was not a natural and probable result of that intoxication. The court have repeatedly explained that “the connection between the defendant and the plaintiff’s injuries simply may be too attenuated to constitute legal cause,” which “is not established if the defendant’s conduct or product does no more than furnish the condition that makes the plaintiff’s injury possible.” Accordingly, the judgment of the court of appeals was reversed.


Appellant's girlfriend—not that the appellant—was the victim of the theft of the phone he gave her, and thus, appellant lacked standing to complain about the admission at trial of the contents of the phone and the video images on the storage card of the appellant committing the offenses
Grant v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 28, 2017
14-16-00158-CR
Martha Hill Jamison
Published
     After he was indicted for aggravated sexual assault of a child, the appellant moved to suppress data recovered from a stolen cell phone, including video images of the appellant committing the offense contained on a San Disk Micro storage card (SD card). At the hearing on the motion to suppress, the appellant testified that he purchased the phone as a back-up for his girlfriend to play games. The trial court denied the motion to suppress and signed findings of fact and conclusions of law. The appellate court found that although the appellant purchased the phone, the trial court reasonably could have concluded that the appellant did not own it at the time it was stolen because he had given it to the appellant's girlfriend and thus had relinquished any property or possessory right in the phone. The legal right invaded as a result of the theft, if any, was not the appellant’s, the victim, if any, was the appellant's girlfriend. Thus, the trial court reasonably could have found based on those facts that the appellant's girlfriend—not that the appellant was the victim of the theft. Those findings supported the conclusion that the appellant lacked standing to complain about the admission at trial of the contents of the phone. Accordingly, the court affirmed the judgment of the trial court.


The length of delay, over nine times the delay considered sufficient to trigger judicial review, presumptively compromised both reliability of any trial and appellee’s ability to defend herself, thus trial court correctly found a speedy trial violation and dismissed the indictment with prejudice
State v. Ritter
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
September 28, 2017
06-17-00069-CR
Bailey C. Moseley
Published
     The appellee was indicted by a Panola County grand jury for securing execution of a document by deception. The appellee was arrested and posted bond on July 20, 2005. Over the ensuing eleven and one-half years, there was scant activity in the case until the appellee’s third appointed attorney filed a motion to dismiss the indictment asserting a violation of her right to a speedy trial. After a hearing, the trial court granted the appellee’s motion and dismissed the indictment with prejudice. The appellate court found that the length of the delay caused by the State was well over nine years. The excessive delay was caused by the State’s lack of interest in prosecuting the instant matter. Further, the appellee promptly asserted her right to a speedy trial once she was represented by capable counsel. The length of the delay, which was over nine times the delay considered sufficient to trigger judicial review, presumptively compromised both the reliability of any trial and the appellee’s ability to defend herself. This presumption was not rebutted by the State. Each of those factors weighed in favor of finding speedy trial violation. Further, “even if the appellee’s actual prejudice was minimal, ‘condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the State’s fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority.’” Therefore, the court found that the trial court did not err in finding a speedy trial violation and dismissing the indictment. Accordingly, the judgment was affirmed.


Magistrate had a basis that probable cause existed to issue search warrant of appellant’s home from officer’s facts of appellant’s online chats with persons posing as minors, and unconstitutionality of statute criminalizing online speech with minors did not affect probable cause determination
Jennings v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 28, 2017
14-16-00062-CR
Martha Hill Jamison
Published
     The appellant challenged his convictions on three counts of possession of child pornography. After the trial court denied the appellant’s motions to suppress evidence obtained as a result of the execution of a search warrant, the appellant pleaded guilty. The trial court deferred adjudication and placed the appellant on community supervision for ten years. The appellate court found that due to the constitutional preference for conducting searches pursuant to warrants over warrantless searches, it applied a highly deferential standard when reviewing a magistrate’s decision to issue a warrant. As long as the magistrate had a substantial basis for concluding that probable cause existed, the court would uphold the magistrate’s probable-cause determination. Further, the warrant sought more than mere evidence. Thus, the court found that additional findings under Tex. Code Crim. Proc. Ann. art. 18.02(a)(10) were not required. Next, under the high level of deference the court were to give the issuing magistrate’s determinations and based on the totality of the circumstances as presented in the officer’s affidavit, the court found that the magistrate had a substantial basis for determining that probable cause existed for the search of the appellant’s home. The trial court therefore did not err in denying the appellant’s motions to suppress. Finally, the appellant did not cite any other authority or make any other argument in support of his position, and research had not revealed any such authority. Accordingly, the court affirmed the trial court’s judgment.


The arbitration award was treated as a prior final judgment and had preclusive effect, all the appellants’ claims arose out of their landload-tenant relationship with the appellee under the lease with a valid arbitration clause, and thus appellee was entitled to res judicata defense
Premium Plastics Supply, Inc. v. Howell
ADR, Appellate: Civil, Contracts, Landlord and Tenant, Procedure
Texas 1st Court of Appeals
September 28, 2017
01-16-00481-CV
Evelyn Keyes
Published
     The instant case involved a trial court proceeding to confirm an arbitration award in a commercial landlord-tenant dispute. The appellee landlords, filed suit in the trial court to confirm an arbitration award in their favor against their former tenants, the appellants, the company and the individuals. After the appellees moved for summary judgment, the appellants filed counterclaims for an improper lockout under the Property Code, unauthorized access, and breach of oral agreements. The trial court granted partial summary judgment confirming the arbitration award. The appellees subsequently moved for summary judgment on the appellants’ counterclaims. The trial court granted summary judgment on the appellants' counterclaims. The appellate court found that the appellees’ summary-judgment evidence demonstrated the existence of a prior final judgment on the merits. Their summary-judgment evidence included a copy of the arbitration award. An arbitration award was treated as a prior final judgment and had preclusive effect for purposed of res judicata. The appellees therefore proved the existence of a prior final judgment on the merits. Further, it was undisputed that all of the appellants’ claims arose out of their landlord-tenant relationship with the appellees. That relationship was created by the lease, which contained the arbitration provision. Thus, the appellants’ counterclaims were subject to the arbitration provision in the lease and the appellees conclusively proved the existence of their res judicata defense. Lastly, because the appellees conclusively proved their res judicata defense and the appellants did not raise a fact issue about the applicability of res judicata, the court held that the trial court did not err in granting summary judgment on the appellants’ counterclaims. Accordingly, the judgment was affirmed.


The court rejected the appellee and the cooperative member’s argument that their attempt to achieve class certification nullified an otherwise enforceable arbitration agreement, and the putative class claims were within the scope of the agreement, and class certification was up to the arbitrator
Sam Houston Electric Cooperative, Inc. v. Berry
ADR, Contracts, Corporations, Procedure
Texas 9th Court of Appeals
September 28, 2017
09-16-00346-CV
Charles A. Kreger
Published
     In the instant accelerated, interlocutory appeal the appellants challenged the trial court’s order denying their motion to compel arbitration of purported class action claims and request to stay those proceedings pending arbitration. After the appellants filed its motion to compel arbitration, but before the motion was decided, the individual appellee amended his pleadings again to add a member of the cooperative, to the suit as an additional representative of the putative class. The appellate court found that the argument ignored the fact that the arbitration provision was but one part of a larger, comprehensive contract, and it was the very principle of the doctrine of direct benefits estoppel that prevented a party from enforcing the parts of a contract that benefit him while seeking to invalidate the parts that did not. Viewing the appellee and member's factual allegations and resolving any doubts regarding the provision’s scope in favor of arbitration, the court found that the putative class claims were within the scope of the agreement. Thus, where a claimant sought to bring claims on behalf of a class, an otherwise valid arbitration provision must be enforced and the issue of class certification becomes one of contract construction appropriately left to the arbitrator. The court therefore rejected the appellee and the member’s argument that their attempt to achieve class certification nullified an otherwise enforceable arbitration agreement. Finally, the court reversed the trial court’s order denying the appellants motion to compel arbitration and remanded for entry of an order compelling arbitration and staying further proceedings as to the appellee and member’s class action claims pending arbitration. Accordingly, the district court's judgment was reversed and the case was remanded.


Discovery of drugs on appellee's person, after an arrest on outstanding traffic warrants but before the search of the suspect's vehicle, could supply a new basis for arrest that would justify search of the vehicle as a search incident to arrest
State v. Sanchez
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 27, 2017
PD-1037-16
Sharon Keller
Published
     During a traffic stop, the appellee was arrested for outstanding warrants. During that arrest, the officer searched the appellee’s person and discovered illegal drugs. The officer then searched the appellee’s Jeep and discovered more illegal drugs. The appellee filed a motion to suppress. The trial court denied the motion as to the evidence found on the appellee’s person but granted the motion as to the evidence found in the Jeep. After exhausting the administrative remedies, the appellate court also held that the trial court’s findings and conclusions were adequate for the purpose of evaluating the trial court’s ruling. Having rejected the State’s two complaints, the appellate court affirmed the trial court’s suppression order. The Texas Court of Criminal Appeals found that the appellate court erred in holding that a search incident to arrest could not be justified by discovery of a different offense after arrest. As long as there was probable cause to arrest for the newly-discovered offense, and the search occurs close in time to the appellee's formal arrest, an officer may conduct a search incident to arrest on the basis of an offense discovered after formal arrest for a different crime. Accordingly, the court reversed the judgment of the appellate court and remanded the case to that court for further proceedings.


If plea counsel had kept abreast of developments in criminal law in the case and explained to the applicant that allegations in the indictment, alleging use of a fraudulent prescription form, could not have been proven, he would not have pleaded guilty, but would have insisted on a jury trial
Ex Parte Lewis
Constitution, Criminal, Evidence, Procedure, Professional Responsibility
Texas Court of Criminal Appeals
September 27, 2017
WR-83,458-01
Michael E. Keasler
Published
     The applicant pleaded guilty to obtaining a controlled substance through the use of a fraudulent prescription form and was sentenced to five years’ imprisonment. The Texas Court of Criminal Appeals found that because plea counsel failed to keep sufficiently abreast of developments in criminal law aspects implicated in the case at hand, and because that failure kept her from accurately advising the applicant as to the strength of any putative defense to the charge, her performance was constitutionally deficient. Further, the habeas judge found that if it had been explained to the applicant that the allegations in the indictment against him, alleging use of a fraudulent prescription form, could not have been proven, he would not have pleaded guilty, but would instead have insisted on a jury trial. The applicant’s affidavit in support of the supplement to his habeas application supports this finding. The court adopted the habeas judge’s finding and concluded that the applicant had demonstrated prejudice. Accordingly, the relief was granted. The judgment of conviction in the trial court was set aside. The applicant, if he was otherwise in custody, was remanded to the custody of the county to answer the charges.


A person is justified in using force against another if the force was immediately necessary to protect himself against another person’s use or attempted use of unlawful force; thus, trial court erred by refusing appellant’s request for a jury charge on self defense
Gamino v State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 27, 2017
PD-0227-16
Bert Richardson
Published
     The appellant was convicted of the offense of aggravated assault with a deadly weapon. The Second Court of Appeals reversed appellant’s conviction and remanded his case for a new trial, holding that the trial court erred by refusing the appellant’s request for a jury charge on self defense. The Texas Court of Criminal Appeals found that appellant’s testimony presented evidence that he produced his gun for the limited purpose of creating an apprehension that he would use deadly force if necessary. There was evidence presented that the appellant reasonably believed his use of force was immediately necessary to protect himself and his girlfriend against the individual’s use or attempted use of unlawful force. The court agreed with the court of appeals that “it was the jury’s call whom to believe and what to believe. It was not the trial court’s prerogative to preempt the issue because it thought appellant’s version was weak, contradicted, or not credible.” Viewing the evidence in the light most favorable to the defendant’s requested submission, the court held that the jury should have been given the opportunity to assess whether appellant’s conduct was justified as self defense. Accordingly, the court affirmed the judgment of the Second Court of Appeals.


Though court agreed with appellants that probate court was bound by stare decisis to recognize a cause of action for tortious interference with inheritance, any error was harmless as the Supreme Court had not yet recognized that cause of action, and appellants had an adequate remedy
Rice v. Rice
Courts, Procedure, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
September 26, 2017
14-16-00630-CV
Tracy Christopher
Published
     The appellee applied to probate the will of her late husband the deceased in the statutory probate court of Galveston County, the deceased’s daughters the appellants contested the will. The appellants presumably alleged that the appellee tortiously interfered with their inheritance rights, because the appellee specially excepted on the ground that the Texas Supreme Court and the Texas Legislature have not accepted that tortious interference with inheritance rights was a viable cause of action under Texas law. The appellants responded to the appellee’s special exceptions and amended their pleading, but continued to plead that Contestants sue the appellee for tortious interference with their inheritance rights. The trial court sustained the appellee’s special exceptions and dismissed the claim. The appellants proceeding to trial on their will contest, and the jury found that the deceased lacked testamentary capacity when the will was executed and had signed the document as a result of undue influence. The trial court rendered final judgment incorporating the jury’s findings. Because the deceased’s purported will was invalid, he was considered to have died intestate. The appellate court agreed with the appellants that the Galveston County probate court was bound by the principle of vertical stare decisis to follow binding precedent recognizing a cause of action for tortious interference with inheritance, and that the trial court erred in failing to do so, however, in light of the Texas Supreme Court’s decision in Kinsel and the court's own refusal to recognize such a cause of action on the record and the briefs before the court, the trial court’s error was harmless. Accordingly, the court affirmed the trial court’s judgment.


By preemptively introducing evidence of a prior conviction on direct examination, the appellant waived any error regarding the trial court’s ruling, outside the presence of the jury, that the appellant’s prior conviction for aggravated assault was admissible as impeachment evidence
Bryant v. State
Criminal, Evidence, Procedure
Texas 13th Court of Appeals
August 29, 2017
13-16-00540-CR
Leticia Hinojosa
Published
     The appellant challenged his conviction for aggravated assault with a deadly weapon, enhanced to a first-degree felony due to the appellant’s prior felony conviction. A jury found the appellant guilty and assessed punishment of life imprisonment in the Texas Department of Criminal Justice–Institutional Division. The appellate court found that the trial court decided, outside the presence of the jury, that the appellant’s prior conviction for aggravated assault was admissible. The appellant then elected to introduce his prior conviction to the jury himself when he testified on direct examination. Thus, by preemptively introducing evidence of a prior conviction on direct examination, the appellant had waived any error regarding the trial court’s ruling. Accordingly, the judgment was affirmed. 


Because the dispute over the parties’ wholesale water-services contract did not concern a contract subject to the sovereign immunity waiver under the Texas Local Government Contract Claims Act, the trial court improperly denied the appellant’s plea to the jurisdiction
West Travis County Public Utility Agency v. Travis County Municipal Utility District No. 12
Contracts, Gov't/Administrative, Oil, Gas, & Mineral, Procedure, Torts
Texas 3rd Court of Appeals
August 29, 2017
03-16-00880-CV
David Puryear
Published
     The Lower Colorado River Authority (LCRA) and the appellee district entered into a Water Sale Contract in which the LCRA agreed to provide the appellee with raw water from the Colorado River in exchange for specified payments. About a year later, the LCRA and the appellee entered into a second contract, the Wholesale Water Services Agreement under which the appellee sued the appellant agency and that allegedly waived the appellant’s sovereign immunity. The Wholesale Water Services Agreement (the Services Contract) called for the appellee’s payment. The appellee filed the lawsuit against the appellant, contending that the appellant breached the Services Contract by charging the appellee excessive fees and setting excessive rates that were not authorized and/or were prohibited by the Services Contract. The appellee pleaded that the appellant’s sovereign immunity was waived by the Act. The appellant filed a plea to the jurisdiction, which the trial court denied after an evidentiary hearing. The appellate court found that under the Act, the Legislature had waived immunity for certain contract actions against local governmental entities. However, the dispute did not concern a contract subject to the Act, and the court held that the trial court improperly denied the appellant’s plea to the jurisdiction. Thus, the court reversed the trial court’s order, granted the appellant’s plea, and rendered judgment dismissing the appellee’s claims for lack of jurisdiction. Accordingly, the judgment was reversed and rendered.


It was error for trial court to refuse appellant juvenile delinquent’s withdrawal of unknowing true plea and stipulation of evidence and to order a new trial, where new trial would enable parties to address directly whether holding of In re B.W. extended to offense of aggravated sexual assault
In re R.R.S.
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 8th Court of Appeals
August 25, 2017
08-16-00042-CV
Gina M. Palafox
Published
     The appellant, the juvenile delinquent stipulated to evidence of guilt and pled “true” to the State’s petition of delinquent conduct alleging he committed aggravated sexual assault against his two younger siblings who were under fourteen years old. At the time of the charged offense, the appellant was also under the age of fourteen. After retaining new counsel, the appellant requested withdrawal of his stipulation and a new trial, which the trial court denied. The appellate court found that the withdrawal of the appellant’s plea of true and stipulation of evidence, and a new trial, would enable the parties to address directly, in the first instance, the question of whether the holding of In re B.W. extends to the offense of aggravated sexual assault. Trial presentation would yield a developed record of the appellant’s circumstances and evidence of his and his siblings’ need for services. Thus, it was error for the trial court to refuse to withdraw the plea of true and stipulation of evidence and to order a new trial. Accordingly, the court reversed the trial court’s judgment and remanded for a new trial.


Appellee was not a first-party claimant entitled to bring a direct cause of action under either of appellants’ liability insurance policies, and the judgments were not sufficient to permit appellee to bring a direct action as a judgment creditor against appellants
Landmark American Insurance Co. v. Eagle Supply & Manufacturing L.P.
Bankruptcy, Contracts, Creditor/Debtor, Damages, Insurance, Procedure, Torts
Texas 11th Court of Appeals
August 25, 2017
11-14-00262-CV
John M. Bailey
Published
     The instant appeal arose from the first appellee’s contention that the second appellee damaged its property while performing services under the contracts and that the appellants were contractually liable for the property damages under the liability insurance policies. The second appellee filed a Chapter 11 bankruptcy proceeding. The first appellee filed the underlying suit in the state court. The first appellee subsequently asserted claims for property damage and breach of contract against the second appellee in the bankruptcy court by filing a proof of claim in the second appellee’s bankruptcy proceeding. The appellants each filed a plea to the jurisdiction in their initial pleadings. The second appellee also filed a Fourth Joint Plan of Reorganization in the bankruptcy proceeding. The bankruptcy court entered an order confirming the plan of reorganization. The first appellee subsequently filed a motion for summary judgment against the second appellee in the underlying action. The trial court ultimately granted the first appellee’s motion for summary judgment against the second appellee. The trial court denied the appellants’ motions for summary judgment. The appellate court found that it was well-established under Texas law that when a certificate of insurance contained language stating that the certificate did not amend, extend, or alter the terms of any insurance policy mentioned in the certificate, the terms of the certificate were subordinate to the terms of the insurance policy. Thus, the court agreed with the first appellant that the first appellee was not an insured under the first appellant's policy and that it could not sue the first appellant for breach of contract under the policy as a first-party claimant. Further, Tex. Ins. Code Ann. Section 541.060(b) provided that a third-party claimant asserting a claim against an insured covered under a liability insurance policy did not have a cause of action for unfair claim settlement practices. Lastly, a third-party claimant lacked standing to sue an insurer for breach of the duty of good faith and fair dealing. Accordingly, the judgment was reversed and remanded.


Because appellant failed to file a timely response to the no-evidence motion, and the record did not show the trial court considered the late-filed response, the trial court properly granted summary judgment in favor of appellee employer on appellant employee’s common law assault claim
B.C. v. Steak N Shake Operations, Inc.
Employment, Procedure, Torts
Texas 5th Court of Appeals
August 30, 2017
05-14-00649-CV
Molly Francis
Published
     The appellant challenged the trial court’s take-nothing summary judgment on her common-law assault claim against her former employer, the appellee company. On original submission, the appellate court concluded the appellant’s claim was barred as a matter of law by the Texas Commission on Human Rights Act. The Texas Supreme Court reversed the decision, concluding the claim was not preempted by the TCHRA, and remanded the case. The appellate court found that as other courts have, the apparent injustice in allowing a no-evidence summary judgment to stand when the record disclosed not only that evidence existed to support the challenged element, but that the evidence was before the trial court. But both the language of the summary judgment rule, and the impropriety of asking the trial court to take on the nonmovant’s burden of identifying fact issues, dictated the result. Thus, the trial court did not err in granting a no-evidence summary judgment in favor of the appellee. Accordingly, the court affirmed the trial court’s judgment.


Appellate court did not have mandamus jurisdiction over mandamus proceeding against a judge and court reporters outside of its appellate district, where petitioner’s allegations were that only parts of the record were missing, which did not implicate that the court’s jurisdiction was impaired
In Re Carolyn Barnes
Courts, Gov't/Administrative, Procedure
Texas 6th Court of Appeals
August 29, 2017
06-17-00086-CV
Josh R. Morriss III
Published
     The petitioner, an attorney acting pro se, had filed her third petition for writ of mandamus with the instant court asking for mandamus relief against the Honorable judge of the 220th Judicial District Court in Hamilton County, Texas, and the court reporters serving that court. Twice before, the appellate court had dismissed the petitioner’s mandamus petitions for want of jurisdiction after explaining that there was no statutory or other authority which would permit the court to exercise mandamus jurisdiction over a mandamus proceeding brought against a judge and court reporters outside of its appellate district. In a conclusory statement of jurisdiction in connection with her latest petition, the petitioner stated that the court had jurisdiction to issue a writ of mandamus because it substantially impacts the jurisdiction of the court. The appellate court determined that the petitioner’s allegations were that only parts of the record were missing, a claim that did not implicate or threaten the court’s jurisdiction in the underlying appeal. Thus, there had been nothing to show that the court’s jurisdiction was impaired. Therefore, the court concluded, again, that it did not have jurisdiction in the instant mandamus action.


Regardless of form of the action, appellee brought suit to recover judgment and obtain possession of the real property under the five-year statute of limitations, and appellant’s “unclean hands” defense to the action was not available under the statute, which was a legal remedy
Roberson v. Odom
Damages, Procedure, Real Property
Texas 6th Court of Appeals
August 29, 2017
06-17-00021-CV
Bailey C. Moseley
Published
     The appellees brought suit against the appellants asking the trial court to vest legal and equitable title to the Property in the appellees rather than the appellants. At the conclusion of the trial before the court, a judgment was entered granting fee simple title of the lands and premises to the appellees as against the defendants. The appellate court found that the appellees sought to recover judgment pursuant to the five-year statute of limitations, which had no requirement that the claimant be in good faith. The appellees asked the trial court to strike the portion of the appellants second amended answer and counterclaim that he believed to be inapplicable to an action in law. Further, contrary to the appellants contention that the appellees were pursuing an equitable remedy via a suit to quiet title, the appellee individual's petition reflected that he was proceeding with a trespass to try title action, which, as discussed, was a legal remedy. That was so regardless of whether the parties or the trial court made reference to quieting title. Lastly, because the doctrine of unclean hands did not apply in a suit such as this one, the appellants defense was not applicable in the instant case and, thus, the trial court acted within its discretion when it struck that portion of the appellants pleading. Accordingly, the court affirmed the trial court’s judgment.


Prisoner mailbox rule did not apply, where prisoner addressed envelope with notice of appeal to the trial judge, instead of the proper clerk, and mailed it to an office other than the district clerk's office, despite fact that notice sat on trial judge’s desk and was received only one day late
Turner v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
August 29, 2017
06-17-00025-CR
Bailey C. Moseley
Published
     The bench trial resulted in the appellant's, conviction for burglary of a habitation. During the punishment phase of the trial, the appellant pleaded true to the State’s enhancement allegation and he was sentenced to twenty years’ imprisonment. The appellate court found that the appellate record established that the envelope containing the notice of appeal was sent to the trial judge, not the district clerk, and that the envelope in which the notice of appeal was placed for mailing was addressed to 100 North Stateline Avenue, referred to as the Bi-State Justice Building in Texarkana, Texas, instead of the proper destination in New Boston, Texas. Taylor v. State and Moore v. State involved unique circumstances not present here, as neither case stands for the proposition that an envelope addressed to a trial judge, in a city different from the one in which the proper clerk’s office was located, constitutes a properly addressed envelope sent to the proper clerk. Further, the court must turn to the plain, unambiguous language of Tex. Crim. App. 2010 Rule 9.2(b), which required the notice to be sent to the proper clerk in a properly addressed envelope. The appellant delivered an envelope to prison authorities for forwarding to the trial judge. Once delivered, the notice sat on the trial judge’s desk for a period of time, and it was not forwarded to the clerk for filing until January 20, 2017. Because the appellant did not deliver the notice of appeal to prison authorities for forwarding to the court clerk, the court found that the prisoner mailbox rule did not apply. After carefully reviewing the appellate record, the court concluded that the appellant’s notice of appeal was untimely. Accordingly, the court were left with no choice but to dismiss the instant appeal for want of jurisdiction.


The appellants had not presented any record citations, argument, or authority in support of their claim that the domain name was exempt personal property under the Bankruptcy Code
Restrepo v. Alliance Riggers & Constructors, Ltd.
Bankruptcy, Contracts, Creditor/Debtor, Damages
Texas 8th Court of Appeals
September 22, 2017
08-16-00032-CV
Yvonne T. Rodriguez
Published
     Following a jury trial, the trial court entered judgment against the appellants in the total amount of $125,775.00. The appellants filed notice of appeal, but they did not supersede the judgment. The trial court entered a turnover order. The appellants challenged the turnover order. The appellate court found that the appellants’ arguments challenging the merits of the judgment awarding damages to the appellee were an improper collateral attack. Only void judgments were subject to collateral attack. A judgment was void only if the trial court rendering a judgment lacked jurisdiction over the parties or property, lacked jurisdiction of the subject matter, had no jurisdiction to enter the specific judgment, or had no capacity to act. Further, the appellants’ asserted that the turnover order varies with the judgment because the judgment refers to the name the appellee rather than the appellee. The appellants’ argument did not take into account that the trial court entered a judgment nunc pro tunc which expressly prohibited the appellants from using the name, the appellee. Finally, the appellants had not presented any record citations, argument, or authority in support of their claim that the domain name was exempt personal property under the Bankruptcy Code. Accordingly, the court affirmed the turnover order.


Evidence was factually sufficient to support jury’s finding that appellants breached the contract for marketing video and webpage production for appellee, a business consumer, and the evidence was both legally and factually sufficient to support jury’s award of damages
Restrepo v. Alliance Riggers & Constructors, Ltd.
Business, Contracts, Damages, Torts
Texas 8th Court of Appeals
September 22, 2017
08-15-00348-CV
Yvonne T. Rodriguez
Published
     The appellee company had been in operation since 1978, and its business includes crane service as well as pre-cast and steel erection. The appellee’s president met with the appellant individuals to discuss the production of a corporate marketing video and creation of a webpage for the appellee. The appellant individuals operated a company known as the appellant company. The appellants challenged from a judgment awarding damages in the amount of $125,775 to the appellee. The appellate court found that there was ample evidence that the appellee was a business consumer and it sought to purchase services from the appellants. Further, the evidence was legally and factually sufficient to support the jury’s finding that the appellants engaged in a false, misleading, or deceptive act or practice that the appellee relied on to its detriment. Next, the jury’s determination that the appellants’ deceptive conduct was a substantial factor in bringing about the injury was not against the great weight and preponderance of the evidence. Further, the appellant individuals judicially admitted that they entered into the contract with the appellee. Next, the appellee paid the appellants an additional $18,271.49 for expenses and work related to video production. Thus, the evidence was both legally and factually sufficient to prove that the appellee tendered performance under the contract. Also, the appellee's president believed the association video served only a limited role in the appellee winning the competition. Thus, the evidence was factually sufficient to support the jury’s finding that the appellants breached the contract. Furthermore, the jury’s award of damages in the amount of $34,000 fell within the sum of money the appellee paid to the appellants for creation of the webpage and corporate marketing video. Thus, the evidence was both legally and factually sufficient to support the jury’s award of damages. Finally, the remaining issues were rejected by the court. Accordingly, the court affirmed the judgment of the trial court.


Even if not an errant typographical error in the foreclosure specialist affidavit, her characterization of the loan could not overcome its express language because the Deed of Trust disclaimed that the loan was a home equity loan, and article Article XVI, section 50(a)(6)(N) did not apply
Edwards v. Federal National Mortgage Association
Banking and Finance, Contracts, Creditor/Debtor, Real Property, Wills/Trusts/Probate
Texas 8th Court of Appeals
September 20, 2017
08-16-00136-CV
Ann Crawford McClure
Published
     The appellant inherited a house in Texas, from his mother. Sometime after her death, the successor of corporation filed suit to foreclose on the property. The appellant claimed that if the Note was indeed a home equity loan, it was not enforceable because it was not signed in the office of a lender, attorney, or title company, as required by the Texas Constitution. The appellate court found that the statement in the affidavit was a superfluous descriptor of the Note, which was otherwise clearly identified as a specifically numbered exhibit. The affiant attached the Note as “Exhibit A-1,” correctly stating it was dated March 15, 2007, in the amount of $156,500.00, and payable to the corporation. The affiant then stated in conjunction with the Note Ruth executed a Deed of Trust, similarly attached as a specified exhibit. The erroneous descriptive term used by the affiant would not in the context lead to any confusion over which Note was in default, and to which note the Deed of Trust referred. Further, the Will was not attached to the summary judgment motion or response, but to another pleading in the file. No witness, expert or lay, offered any opinion as to those signatures. The appellant advanced no authority that a trial or appellate court could situate itself as a lay witness to compare signatures. The court disagreed that the single statement in the foreclosure specialist affidavit was some evidence that the Note was a home equity loan. The Deed of Trust expressly stated the loan was not a home equity loan. A witness could not by parol evidence add to, vary, or contradict the terms of an unambiguous contract. Even if not an errant typographical error in the foreclosure specialist affidavit, her characterization of the loan could not overcome its express language because the Deed of Trust disclaimed that the loan was a home equity loan, article Article XVI, section 50(a)(6)(N) did not apply. Thus, all issues were overruled. Accordingly, the trial court's judgment was affirmed.


Evidence supported trial court’s family violence finding, and protective order appropriately proscribed activity of the appellant; though the order had expired, it was reformed to exclude the children as subjects of the order, to prevent any error from perpetuating a stigma against appellant
Martin v. Martin
Family, Juvenile, Procedure
Texas 8th Court of Appeals
September 20, 2017
08-16-00208-CV
Ann Crawford McClure
Published
     The instant issue was a protective order prohibiting the appellant from, among other things, directly communicating or being within 350 feet of a protected person for eight months. The order defined the appellant’s soon to be ex-wife and her children as the protected persons. The appellant claimed that the evidence failed to support the necessary findings to support the order. The appellate court found that the protective order had already expired and nothing in record suggested it was the basis of any other proceeding. The subject-matter jurisdiction was fundamental to our authority to dispose of cases. Juarez v. Tex. Ass’n of Sporting Officials El Paso Chapter. And mootness generally defeated the trial court’s subject-matter jurisdiction over a particular controversy. The order was based on the allegations of abuse directed towards a spouse and children, allegations that carry a stigma in society. Further, the order thus appropriately prohibited the appellant from engaging in those described acts. By defining the both daughters as protected persons, the order suggested that family violence was committed against them, and the record was directly to the contrary. The court reformed the order to delete the both daughters as defined protected persons, but left intact the specific prohibitions stated in the order that might apply to them as family or household members of a protected person. Finally, considering the appellee’s and the appellant’s conflicting accounts of the incident and the trial court’s role in weighing the credibility of witnesses, the family violence finding was not so contrary to the overwhelming weight and preponderance of the evidence that it was clearly wrong and manifestly unjust. Accordingly, the trail court's the judgment was affirmed as modified.


By purchasing and using heat steam recovery generators that increase efficiency at its two power plants, the appellant was not entitled to an ad valorem tax break reserved for devices that were installed to comply with state and federal regulations aimed at abating air pollution
Brazos Electric Power Cooperative, Inc. v. Texas Commission On Environmental Quality
Environmental, Gov't/Administrative, Tax
Texas 8th Court of Appeals
September 15, 2017
08-16-00069-CV
Yvonne T. Rodriguez
Published
     The appellant company and the appellee commission did not agree on much in the instant administrative tax appeal, but when it came to the science underlying the instant dispute, both parties mostly sing from the same hymnal. In a single-cycle power plant, a generator uses a single turbine powered by a natural gas combustion engine to generate electricity. The trial court affirmed the appellee's denial of the tax break. The issue in the instant case was whether by purchasing and using a heat steam recovery generators at its two power plants, the appellant was entitled to an ad valorem tax break reserved for devices that were installed to comply with state and federal regulations aimed at abating air pollution. The appellate court disagreed with the appellant’s reading of Tex.Tax Code Ann. Subsection (m), and instead agreed with the appellee’s position that Subsection (m) did not require the agency to issue a tax break to k-list properties. Rather, Subsection (m) only required the appellee to give k-list applicants certain administrative preferences during the appellee’s decisional process, the agency still retains the discretion to decide whether and on what terms a k-list applicant received a tax break. Also, the court disagreed with the appellant’s other two alternative appellate contentions namely, that the appellee had engaged in informal rulemaking in violation of the Administrative Procedure Act’s formality requirement; and that no reasonable person could reject the three alternative proposed cost analysis procedure formulations the appellant submitted in its tax applications to the appellee. Accordingly, the judgment of the trial court was affirmed.


Appellant widow failed to show deceased was not in default in failing to probate his deceased wife’s will within four-year limitations period, and showed only that she found the will in the deceased’s home, and that she offered the will for probate as a muniment of title about one month later
Ferreira v. Butler
Procedure, Wills/Trusts/Probate
Texas 14th Court of Appeals
September 19, 2017
14-16-00648-CV
J Brett Busby
Published
     The individual, in her capacity as the executrix of the deceased’s estate, applied to probate the will of the deceased’s deceased wife, nine years after the deceased’s death. The Texas Estates Code provided that a will may not be probated more than four years after the death of a testator unless it was shown by proof that the applicant for the probate of the will was not in default in failing to present the will. The appellate court found that the default inquiry must include the deceased’s conduct for two reasons. First, the appellant applied to probate the will in her capacity as executrix of the deceased’s estate. Further, second, even if the appellant had applied in her individual capacity, the court would still consider the deceased’s conduct because the appellant could claim no greater interest in the deceased wife’s will than the deceased had when he died and the appellant was not a purchaser. Because the appellant’s right to probate the deceased wife’s will was dependent on the existence of that right in the deceased, the court must consider the deceased’s conduct in determining whether a default occurred. Furthermore, in the trial court, the appellant failed to present any summary judgment evidence raising a genuine issue of material fact that the deceased was not in default in failing to probate deceased wife’s will within the four-year limitations period. Finally, the appellant showed only that she found deceased wife's will when she was reviewing documents in the deceased’s home, and that she offered the will for probate as a muniment of title about one month later. Therefore, the court overruled the appellant’s first issue and affirmed the trial court’s order granting the appellee’s motion for summary judgment. Accordingly, the trial court’s judgment was affirmed.


Relator presented evidence of an attorney-client relationship between itself and the individual attorney, and appellate court conditionally granted relator’s mandamus petition and directed trial court to vacate its order compelling relator to produce documents the trial court reviewed in camera
In re Rescue Concepts, Inc.
Contracts, Discovery, Procedure, Real Property
Texas 1st Court of Appeals
September 19, 2017
01-16-00564-CV
Evelyn V. Keyes
Published
     The instant case arises from a discovery dispute following a failed land sale. The trial court ordered relator corporation to produce to real party in interest the corporation communications between the relator’s representatives and the individual a licensed attorney who negotiated the sale on the relator’s behalf. The relator decided to retain the services of the individual, an attorney who had previously represented the relator in other matters, to help it negotiate a sale of the Property and to provide advice regarding various legal concerns relevant to such a transaction. The appellate court found that the relator presented evidence of the existence of an attorney-client relationship between itself and the individual attorney. Specifically, it presented its letter of engagement in which it retained the attorney for legal representation related to the negotiation and sale of the Property in exchange for a contingency fee of 3% of the gross sales price. Looking to the nature of the relationship between the attorney and the relator as set out in their engagement contract, the parties’ explicit statements, and objective standards of what the parties said and did, the court concluded that the evidence established, as a matter of law, that an attorney-client relationship existed between the individual and the relator. Finally, the court conditionally granted the relator’s mandamus petition and directed the trial court to vacate its June 30, 2016 order compelling the relator to produce the documents the trial court reviewed in camera. The court was confident that the trial court would promptly comply, and writ would issue only if it did not comply within thirty days of the date of that opinion.


There could be no strategic basis for appellant’s counsel stipulating to additional inadmissible convictions beyond the statutorily required number, and the jury may have convicted appellant because he was a bad man, not because it believed him to be guilty of his fifth family violence offense
Donald v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 19, 2017
14-16-00232-CR
Ken Wise
Published
     A jury convicted the appellant of assaulting a family member, elevated to a felony by a prior conviction for another family-violence assault. The jury assessed punishment at seven years’ confinement. The appellate court found that counsel may strategically decide to put the State to its burden of proof, or to stipulate and thereby prevent the admission of prejudicial evidence. But once the decision was made to stipulate in the instant case, there could be no strategic basis for stipulating to additional inadmissible convictions beyond the statutorily required number, allowing the State to read more than one of the allegations in the indictment, and failing to object to extrinsic evidence of the convictions. Based on the record, the strong presumption of reasonable professional assistance had been rebutted. Trial counsel performed deficiently as a matter of law. Further, as a result of trial counsel’s errors, the jury heard not only that the appellant assaulted a family member yesterday, but also that he assaulted a family member the day before, and the day before, and the day before. He was on trial for the fifth family-violence assault, which would lead to the rational, yet impermissible, conclusion that he did it again. When faced with the appellant’s apparently unflagging character as a woman beater, the jury may have convicted him because he was a bad man, not because it believed him to be guilty of the instant offense. As a result of counsel’s deficient performance, the result of the proceeding was rendered unreliable and fundamentally unfair. The record reflected the appellant suffered prejudice. Accordingly, the judgment was reversed and remanded.


Trial court did not err in denying appellant’s Batson v. Kentucky challenges and any error in failing to charge the jury on spoliation was harmless; and trial court did not abuse its discretion in admitting the photograph of appellant holding money into evidence for purposes of identification
Jones v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 07, 2017
14-16-00469-CR
Kem Thompson Frost
Published
     The appellant challenged his conviction for capital murder. The jury found appellant guilty as charged and appellant received an automatic sentence of life imprisonment. The appellate court found that the appellant had not met his burden on appeal to provide a record showing the trial court clearly erred in determining appellant did not prove racial discrimination and the trial court’s denial of the appellant’s Batson v. Kentucky challenged afforded no basis for appellate relief. Based on the jury charge, evidence, and arguments of counsel, the appellant did not suffer any harm from the trial court not giving a spoliation instruction. Because the court concluded that any error would be harmless, the court overruled the appellant’s second issue. The presentation of the photograph for the purposes of identification of the appellant would not consume an inordinate amount of time or needlessly duplicate evidence already admitted. The State introduced the photograph to explain how the detectives identified the appellant. It was not a complicated piece of evidence and the State used it only one other time as an example of the appellant’s untruthfulness with police. The trial court reasonably could have concluded the photograph was not unfairly prejudicial or misleading. The evidence was sufficient to support the appellant’s conviction. The trial court did not err in denying appellant’s Batson v. Kentucky challenges and any error in failing to charge the jury on spoliation was harmless. And, the trial court did not abuse its discretion in admitting the photograph of appellant holding money into evidence. Accordingly, the trial court’s judgment was affirmed.


Evidence showed the City had reason to know and was on notice that the stop sign was obscured by a tree on adjacent homeowners’ property, and the City, and adjacent homeowners, had a duty to avoid endangering the safety of motorists; jury had discretion to deny damages for past disfigurement
Mcknight v. Calvert
Damages, Gov't/Administrative, Litigation: Personal Injury, Real Property, Torts, Transportation
Texas 1st Court of Appeals
September 07, 2017
01-16-00429-CV
Michael C. Massengale
Published
     The instant was an appeal from a personal-injury lawsuit filed after a car wreck. The appellee ran a stop sign in a residential neighborhood, injuring appellant. The appellee admitted his failure to stop, but he claimed he couldn’t see the sign because it was covered by trees. The appellants sued the appellee to recover damages caused by the accident. The appellate court found that sufficient evidence was admitted at trial to permit a rational factfinder to conclude that the city had reason to know, that was notice, of the obscured condition of the stop sign. Thus, the evidence supported a finding that the city had a duty to correct or warn of the condition of the stop sign, and the trial court did not err by denying the motion for directed verdict regarding the city’s negligence. Further, the evidence established that the Coffindaffers owned property where a tree was located, and the tree could endanger the safety of persons using a public road by obscuring a stop sign and the sufficient evidence was introduced to support the conclusion that the Coffindaffers owed the duty, as owners or occupiers of premises in close proximity to a public road, to exercise reasonable care to avoid endangering the safety of persons using the road for travel. Thus, the trial court correctly denied the appellants motion for directed verdict with respect to the Coffindaffers. The jury also had discretion to determine that only part of the injuries at issue were caused by the defendant’s conduct, and it may award damages accordingly. Thus, the jury resolved the conflicts in the evidence by awarding no damages for past disfigurement. The court concluded that verdict was not against the great weight and preponderance of the evidence. Accordingly, the trial court's judgment was affirmed.


Trial court's judgment in garnishment was no longer valid because debtor’s discharge in bankruptcy voided appellant’s underlying judgment against the debtor, and appellant did not preserve any claim against appellee credit union for improperly releasing funds in violation of the writ
Leslie WM. Adams & Associates v. Amoco Federal Credit Union
Bankruptcy, Creditor/Debtor, Procedure
Texas 1st Court of Appeals
September 07, 2017
01-15-00879-CV
Michael C. Massengale
Published
     The instant was an appeal from an order for disbursement of garnished funds. Judgment creditor and the appellant associates obtained a postjudgment writ of garnishment against the appellee union, based on an underlying judgment against judgment debtor and the individual appellee. Following the garnishment proceedings and prior to execution on the judgment in garnishment, the individual appellee filed for bankruptcy under Chapter 7 of the Bankruptcy Code. The appellate court found that the deficient docketing statement filed in the instant court was struck, and the appellant associates was ordered to file a new docketing statement including the individual appellee. The clerk of the court provided the appellee with a complete copy of the appellate record, and deadlines were extended to permit him to file a brief, which he did not do. Further, the appellee’s discharge in bankruptcy precluded any further actions taken to enforce its judgment in garnishment against the appellee union. The trial court’s judgment in garnishment was no longer valid because the discharge in bankruptcy had the effect of setting aside the underlying judgment against the appellee in favor of the appellant. Finally, the appellate record indicated that the only claim the appellant asserted in the trial court was for garnishment of the appellee’s assets held by the appellee union. The appellant never asserted any claims against the appellee union, independent of the writ of garnishment, seeking to hold the credit union liable for improperly disbursing funds in violation of the writ. To the extent that a claim could have been asserted against the appellee union for improperly releasing funds in violation of the writ, it had not been properly raised in that appeal because it was not preserved in the trial court. Accordingly, the trial court's judgment was affirmed.


Plaintiff failed to show a causal connection between her discrimination complaints and defendant’s acts as retaliation, and plaintiff failed to show disparate treatment in failing to provide promoted employee’s education; professional experience plaintiff referenced was not self-explanatory
Metropolitan Transit Authority of Harris County v. Ridley
Civil Rights, Employment, Gov't/Administrative
Texas 1st Court of Appeals
September 07, 2017
01-17-00081-CV
Sherry Radack
Published
     Plaintiff was an employee of defendant authority. Plaintiff sued the defendant, alleging disparate-treatment discrimination and retaliatory conduct leading to constructive discharge. The trial court denied the defendant’s Plea to the Jurisdiction. The appellate court found that the plaintiff satisfied the first prong of her prima facie case because these complaints constituted protected activity. Further, in the instant case, the plaintiff asserted that was exactly what happened, i.e., that the defendant’s allegedly adverse employment actions escalated after her protected reporting. But, on that record, it was clear that the measures taken with regard to the plaintiff coincided with a change in her supervisor, not with her reporting discrimination. Given that disposition, the court need not reach the defendant’s first issue (no adverse employment action) or second issue (no constructive discharge). Furthermore, the plaintiff made conclusory allegations about her being more educated and experienced than the first individual, all the while admitting that she was ineligible to be promoted to the Interim Senior Director position because the second individual placed her on a PIP before the third individual was fired to sabotage the plaintiff’s eligibility for third individual’s position. The allegations fell short of a prima facie claim. The plaintiff provided information about her education, but included no information about the first individual’s education, and then declared hers to be superior. The professional experience of hers and the first individual’s that she referred to was not self-explanatory, nor was it susceptible to comparison, other than perhaps supporting the inference that they were not similarly situated at the time the first individual was appointed to replace the third individual. Accordingly, the court vacated the trial court’s order and dismissed the appeal for lack of jurisdiction.


Trial court did not err in denying appellant’s request for a jury instruction on spoliation of the evidence and the appellant’s trial counsel was not ineffective in not objecting to appellant’s sentence, as a juvenile offender, as unconstitutional under the Eighth Amendment
Guzman v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 07, 2017
01-16-00262-CR
Terry Jennings
Published
     A jury found appellant guilty of the offense of capital murder. Because the State did not seek the death penalty and appellant was a juvenile when he committed the offense, the trial court, as statutorily required, assessed his punishment at confinement for life. The appellate court observed that the trial court did not err in denying the appellant’s request for a jury instruction on spoliation of the evidence. Also, the court rejected the appellant’s assertion that the shorter mandatory time-served requirement regarding deadly-weapon findings was unconstitutional. Further, the appellant’s trial counsel was not ineffective for not requesting a jury instruction pursuant to article 37.071, section 2(e)(2)(B) trial counsel was not ineffective for conceding the appellant’s guilt during closing argument to the jury. Finally, the mandatory sentencing scheme of Texas Penal Code section 12.31(a)(1) and TGC sections 508.145(b) and (d)(1) did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Thus, any objection to appellant’s sentence on that ground would have been futile. It did not constitute ineffective assistance for trial counsel to forego making a frivolous objection. Thus, the appellant’s trial counsel was not ineffective in not objecting to appellant’s sentence as unconstitutional under the Eighth Amendment. Hence, the court affirmed the judgment of the trial court.


Appellant’s refund policy, which demanded unpaid and unused tuition from a student who withdrew early from its beauty school, did not comply with the requirements of the Occupations Code, and appellee appropriately assessed appellant an administrative penalty
Beauty Basics Inc. v. Texas Department of Licensing and Regulation
Business, Damages, Gov't/Administrative
Texas 3rd Court of Appeals
September 07, 2017
03-17-00118-CV
David Puryear
Published
     In the instant administrative appeal, the appellant company, a private beauty school, contested a decision of the appellee commission assessing a $1,500 administrative penalty against the school. The appellee assessed the penalty based on its determination that the appellant’s tuition refund policy violated the Occupations Code by requiring students who withdraw prior to completing a cosmetology program to pay the remaining unpaid tuition. The trial court affirmed the appellee’s decision. The appellate court found that the appellee and the trial court correctly interpreted sections 1602.458 and 1602.459 of the Occupations Code as not permitting a beauty school to demand or collect unpaid and unused tuition from a student who withdraws early from a program. To the extent that the appellant’s refund policy required such payments from early-withdrawing students, the court held that the policy violated the Occupations Code, and the appellee properly exercised its authority to assess an administrative penalty against the appellant for such violation. Accordingly, the court affirmed the trial court’s judgment.


Appellant had not established that direct-benefits estoppel applied in the case to allow it, as a non-signatory to appellee’s contracts with the company, to enforce the arbitration provision contained in those contracts
Steer Wealth Management, LLC v. Denson
Contracts, Torts
Texas 1st Court of Appeals
September 07, 2017
01-17-00066-CV
Evelyn V. Keyes
Published
     In the instant interlocutory appeal, the appellee, in her individual capacity and as executor of the estate of her late husband sued the appellant for causes of action including breach of contract and fraud arising out of the alleged improper transfer of assets from several of the appellee and her late husband’s brokerage accounts. The appellant moved to compel arbitration and stay all trial court proceedings, and the trial court denied the motion. The appellate court found that although the appellee’s claims against the appellant may relate to the appellee’s contracts with the company, her breach of contract and other claims against the appellant arise out of and directly sought the benefits of a separate and independent alleged contract between the appellee and the appellant for the provision of financial services to the appellee by the appellant. The appellee’s claims against the appellant did not, on their face, seek a direct benefit under her contracts with the company, instead, the record at the stage indicated that the appellee sought direct benefits under other alleged contracts. Therefore, the court found that the appellant had not established that direct-benefits estoppel applied in the instant case to allow it, as a non-signatory to the appellee’s contracts with the company, to enforce the arbitration provision contained in those contracts. Thus, the court held that the trial court did not err in denying the appellant’s motion to compel arbitration. Accordingly, the court affirmed the order of the trial court.


While appellant could challenge trial court’s termination of parental rights on ineffective assistance of appellant’s appointed counsel, appellant had not established that but for the alleged deficient performance of her retained counsel, the outcome of the trial would have been different
In re E.R.W.
Constitution, Family, Juvenile
Texas 14th Court of Appeals
September 05, 2017
14-17-00178-CV
Kem Thompson Frost
Published
     The appellant mother challenged the trial court’s final decree terminating her parental rights and appointing the Department of Family and Protective Services (Department) as sole managing conservator of her child. The appellate court found that the trial court issued temporary orders appointing the Department as the child’s temporary managing conservator. The appellant could have challenged the removal and temporary orders under section 262 of the Family Code through a mandamus proceeding. Because the trial court since had rendered a final judgment, the appellant’s complaints about the temporary orders authorizing emergency removal were moot. Further, because the Supreme Court of Texas already had determined that the legal standard from Strickland v. Washington applied to ineffective-assistance-of-counsel claims by an indigent parent against the parent’s court-appointed attorney in a Termination Suit, the court applied the Strickland standard to the appellant’s claims against her retained counsel. Next, the appellant had not shown that she was denied counsel at a critical stage of her trial or one in which her counsel failed to subject the Department’s case to meaningful adversarial testing. Further, at trial, the appellant’s appointed trial counsel actively engaged in the proceeding on the appellant’s behalf, making objections and vigorously cross-examining the Department’s witnesses. The appellant made no complaint about her appointed trial counsel. Also, the disputed evidence was not so significant as to prevent the trial court form forming a firm belief or conviction that termination was warranted under Family Code section 161.001(1)(E). Further, the evidence established the appellant used synthetic urine to conceal her drug activity on at least one drug test and did not take other requested drug tests. That factor weighs in favor of the trial court’s best interest finding. Finally, the appellant had not established that but for the alleged deficient performance of her retained counsel during pretrial proceedings, the outcome of the trial would have been different. Thus, the appellant had not met the second prong of Strickland. Accordingly, the court affirmed the judgment of the trial court.


Appellant had not established entitlement to immediate release from confinement if he prevailed on his constitutional and statutory claims concerning the deputation of Securities Board attorneys to prosecute him for theft, and thus, his claims were not cognizable for pretrial habeas relief
Ex parte Walsh
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
August 31, 2017
02-17-00136-CR
Terrie Livingston
Published
     The instant was an interlocutory appeal from the trial court’s denial of relief on a pretrial application for writ of habeas corpus. The appellant filed the application based on the State’s alleged violations of constitutional and statutory provisions by appointing attorneys from the Texas State Securities Board (TSSB) to prosecute him for theft, for securing the execution of documents by deception, and for money laundering. The appellate court found that the appellant had not established that he was entitled to immediate release from confinement if he prevailed on the merits of his constitutional and statutory claims concerning the deputation of TSSB’s attorneys and their participation in his investigation or prosecution, nor have the court found such authority. Instead, the authority cited above supported the opposite conclusion. Thus, because a ruling on the merits in appellants’ favor would not result in his immediate release from confinement, the court held that his claims were not cognizable for pretrial habeas relief, and the trial court did not err by denying relief. Accordingly, the court affirmed the trial court’s order.


Appellant acted with conscious indifference by failing to timely monitor and sample its employees’ exposure to asbestos, which proximately caused employee’s death; however, evidence was legally insufficient to support more than $200,000 in economic damages to be included in the cap calculation
The Goodyear Tire & Rubber Co. v. Rogers
Damages, Employment, Litigation: Personal Injury, Torts
Texas 5th Court of Appeals
August 31, 2017
05-15-00001-CV
Bill Whitehill
Published
     Following the deceased's death from mesothelioma, the appellees, the deceased's wife and daughters sued the appellant company, the deceased's long time employer. A jury found that asbestos fibers in the workplace were a proximate cause of the deceased's mesothelioma and that his death resulted from the appellant's gross negligence. The jury assessed exemplary damages against the appellant. After the trial court applied the statutory cap, it awarded the appellees a total of $2,890,000, plus postjudgment interest and court costs. The appellate court found that based on the preceding three paragraphs, the jury could have found by clear and convincing evidence that the appellant acted with conscious indifference by failing to timely monitor and sample the level of its employees’ exposure, warn employees or protect them from the danger of exposure, and comply with the Occupational Safety and Health Administration (OSHA) regulations. Further, the court could not conclude the evidence of causation was legally insufficient for reasons put forth by the appellant. Furthermore, because there was legally insufficient evidence supporting more than $200,000 in economic damages to be included in the cap calculation, the court need not reach the appellant's factual insufficiency argument. Applying the civil practice and remedies code Section 41.008(b) cap yields a maximum exemplary damages recovery of $1,150,000, that being the sum of two times the appellees’ economic damages and $750,000. Thus, the court suggested remittitur of $1,740,000 of the $2,890,000 exemplary damages awarded in the trial court’s judgment. Accordingly, the court suggested remittitur and affirmed as modified.


Appellants failed to plead jurisdictional facts showing waiver of appellee town's immunity for failure to enforce its zoning ordinance against appellee church’s property, intended as a rodeo arena, but appellant had shown standing for declaratory judgment claims against appellee church
Schmitz v. Denton County Cowboy Church
Appellate: Civil, Civil Rights, Constitution, Gov't/Administrative, Procedure, Real Property, Zoning
Texas 2nd Court of Appeals
August 31, 2017
02-16-00114-CV
Terrie Livingston
Published
     The appellants sued the appellees, the church and the town seeking a temporary restraining order and temporary and permanent injunctions prohibiting the appellee church from continuing construction of the New Arena and requiring the appellee town to suspend the issued building permit and any future building permits until they were able to show that the New Property was zoned for the use as a rodeo arena or until such time as the appellate court orders otherwise. The appellants also sought numerous declaratory judgments against both the appellees related to their contention that the construction of the New Arena violated the appellee town's zoning ordinance and was not permitted under the New Property’s zoning classification. The appellants’ counsel filed a protest with the appellee town, contending that the building permit had been wrongfully issued in violation of the appellee's ordinances and should be revoked. That same month, the appellee filed a plea to the jurisdiction in the instant suit, claiming that appellants had not adequately pled facts in their original petition that would waive its immunity from suit and challenging the existence of jurisdictional facts. After exhausting the administrative remedies, the trial court denied appellants’ request for a temporary injunction and granted both pleas to the jurisdiction. The appellate court found that having determined that the appellants failed to plead and bring forward jurisdictional facts showing a waiver of the appellee town's immunity for failure to enforce its zoning ordinance against the appellee church’s property and for actions taken in Town Council meeting, and that the appellants could not replead to establish a waiver of immunity for those claims, thus, the court affirmed the trial court’s dismissal of the appellants’ claims against the appellee town. The court also affirmed the dismissal of the first appellant's and the second appellant's claims against the appellee church. Lastly, because the trial court erred by dismissing the third appellant's claims against the appellee church, the court reversed the dismissal of those claims and remanded that part of the case to the trial court. Accordingly, the judgment was affirmed in pert, reversed in part and remanded to the trial court.


To engage in organized criminal activity, appellant only had to commit an overt act anywhere that furthered the conspiracy in Brown County, and appellant’s Tarrant County conviction was not double jeopardy for being predicate conspiracy offense, and trial court could order consecutive sentences
Burt v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
August 31, 2017
11-15-00125-CR
Mike Willson
Published
     The jury found the appellant guilty of engaging in organized criminal activity because it found that he was part of a conspiracy to distribute illegal drugs in Brown County. The jury assessed his punishment at confinement for life. The appellate court found that the meaning of Penal Sections 71.01 and 71.02 were clear and unambiguous, and although the appellant argued that Article 13.21 was inapplicable, he offered no authority in support of his position. In addition, other courts had rejected his argument that Sections 71.01 and 71.02 were unconstitutionally vague and overbroad. Under Section 71.02, to engage in organized criminal activity did not mean that the appellant must have agreed to the conspiracy while physically in Brown County and that he also must commit an overt act while in Brown County. Rather, he simply must agree to participate in the conspiracy and then commit an overt act anywhere that furthered that conspiracy to engage in criminal activity in Brown County. Further, because the appellant was first sentenced in Tarrant County in a separate conviction for a separate offense from the subsequent conviction for engaging in organized criminal activity in Brown County, the trial court could cumulate that sentence in the instant case and order that it be served consecutively to the Tarrant County conviction. Accordingly, the court affirmed the judgment of the trial court.


Protective order did not infringe on appellant's Second Amendment rights because the protective order supported a substantial government objective to protect victims of stalking and because the restriction imposed on appellant was a reasonable fit to achieve statute’s objective
Webb v. Schlagal
Civil Rights, Constitution, Courts, Criminal, Gov't/Administrative, Procedure
Texas 11th Court of Appeals
August 31, 2017
11-14-00101-CV
Mike Willson
Published
     The appellant challenged the trial court’s lifetime protective order that enjoined him from any contact or communication with his ex-wife, the appellee and her minor daughter. The appellate court declined to hold that the protective order had impermissibly infringed on the appellant's Second Amendment rights because the protective order supported a substantial government objective to protect victims of stalking and because the restriction imposed on the appellant was a reasonable fit to achieve the statute’s objective. Further, with the evidence presented in the instant case, and all that the court had outlined about Chapter 7A, the court held that Articles 7A.03, 7A.05, and 7A.07 of Texas Code of Criminal Procedure, as applied to the appellant, did not infringe on his Second Amendment right to bear arms and were not unconstitutional, as applied to him, under Section 23, Article 1 of the Texas Constitution. Lastly, the trial court had the discretion to refuse to supplement the original findings of fact and conclusions of law because its original findings adequately related the facts and law necessary to the appellant's appeal. However, the appellant did not suffer any injury because he was able to present his arguments on appeal. Accordingly, the court affirmed the order of the trial court.


Search warrant was not stale because of time between officer’s receipt of information and execution; prior observations sufficient to serve as independent origin for in-court identification; and chain of custody was sufficient to admit drug evidence, showing possession with intent to deliver
Kelly v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
August 31, 2017
06-16-00185-CR
Ralph K. Burgess
Published
     The appellant was subsequently convicted of possession with intent to deliver four or more, but less than 200, grams of a Penalty Group 1 controlled substance, possession with intent to deliver four or more, but less than 400, grams of a Penalty Group 2 controlled substance, and one count of possession of a firearm by a felon. The appellate court found that the affidavit established there was a fair probability that contraband or evidence of a crime would be found in a particular place at the time the warrant was issued regardless of the amount of time between the police officer’s receipt of the cooperating individual’s information and the execution of the warrant, considering the totality of the circumstances as reflected in the four corners of the search warrant affidavit. Further, the evidence establishes that the suggestive procedure did not give rise to a very substantial likelihood of irreparable misidentification. Next, there was sufficient evidence to support the trial court’s conclusion that the State proved the drugs offered and admitted at trial were the drugs seized in the appellant’s home. Therefore, the trial court did not abuse its discretion in admitting those drugs into evidence. Finally, the logical force of all the evidence supported a finding that the appellant possessed the narcotics as alleged in the indictment with an intent to deliver the drugs. Accordingly, the court affirmed the trial court’s judgment.


Warning system at rail crossing performed in accordance with federal standard of care, and appellants’ violation claim was preempted, which was dispositive of their gross negligence claims; train crew was not negligent because first tractor crossing the rail was not a specific, individual hazard
Stouffer v. Union Pacific Railroad Company
Litigation: Personal Injury, Procedure, Torts, Transportation
Texas 11th Court of Appeals
August 31, 2017
11-15-00052-CV
John M. Bailey
Published
     The instant challenge arose from a tragic accident where four veterans riding on a flatbed tractor-trailer during the Show of Support Hero Parade 2012 in Midland were killed when a Union Pacific train collided with their parade float. The appellants sued the appellee for wrongful death and personal injuries, alleging violations of various federal regulations pertaining to railroad crossings. The trial court resolved many of the claims asserted by the appellants by granting partial summary judgment in favor of the appellee prior to trial. The case proceeded to trial on the appellants’ remaining claim alleging negligence on the part of the train crew. The trial court subsequently granted summary judgment on the matter, which resulted in a final judgment in favor of the appellee on all claims asserted by the appellants. The appellate court found that excessive warning time may cause a motorist to cross the track despite the operation of the flashing light signals. Thus a longer warning time did not necessarily result in greater safety. Further, they premise the claim on their warning-time claims addressed in their first issue, relying upon their frequency-overlap claim to establish the objective and subjective elements of a gross negligence claim. Thus, the resolution of the appellants’ first issue was dispositive of their gross negligence claims. Lastly, the train crew’s observation of the first tractor-trailer did not indicate that a collision with the second tractor-trailer was imminent. Thus, the first tractor-trailer did not constitute a specific, individual hazard. Accordingly, the judgment was affirmed.


Because appellant was present at and engaged in the final hearing, before his counsel appeared late because of a calendaring error, the judgment entered by the trial court was not a default judgment and trial court did not abuse its discretion in overruling appellant’s motion for a new trial
In re G.B.A.
Appellate: Civil, Family, Procedure, Professional Responsibility
Texas 6th Court of Appeals
August 30, 2017
06-17-00049-CV
Josh R. Morriss III
Published
     In 2016, the appellant petitioned the County Court to end or reduce the child-support wage-withholding order entered in favor of his ex-wife. The hearing on his petition turned out badly for him. First, the attorney he had retained failed to show up at the hearing after explaining that he had erroneously calendared the hearing date. Then, even after the appellant, representing himself at the hearing, had provided evidence and argued his position, the trial court denied his requests and continued the wage-withholding order. The appellate court found that the trial court held a hearing on Armstrong’s motion for new trial, giving counsel an opportunity to explain his failure to appear in time for the hearing. Counsel’s unsworn argument stated that he had mistakenly calendared the 9:00 a.m. hearing for 1:00 p.m. on the same date. Counsel further argued facts supporting the appellant that were introduced at the final hearing. The trial court denied the appellant’s motion for new trial. Because the appellant was present at and engaged in the final hearing, the judgment entered by the trial court was not a default judgment. The appellant was the movant on his petition and argued the merits of his motion at the hearing. Craddock did not apply when a case was tried on the merits, because the judgment entered was not a default judgment. Finally, the trial court did not abuse its discretion in overruling the appellant’s motion for new trial. Accordingly, the court overruled the appellant’s point of error and affirmed the trial court’s judgment.


Trial court properly stayed discovery upon relator, and did not abuse its discretion by failing to stay entire case, including all discovery between and among plaintiff and co-defendants and third parties, where statute only required continuance of those ancillary matters involving an attorney
In re Cook, Relator
Constitution, Discovery, Gov't/Administrative, Procedure
Texas 5th Court of Appeals
August 30, 2017
05-17-00203-CV
David Evans
Published
     Relator was a member of the Texas House of Representatives in the underlying case. He applied for a legislative continuance of the underlying case and “all ancillary matters” pursuant to section 30.003 of the civil practice and remedies code. The trial court granted the motion in part, ordering that no written discovery may be served on or by relator and prohibiting all depositions during the continuance. But the court denied relator’s request that the plaintiff and five other defendants be prohibited from serving written discovery on each other and on non-parties during the continuance. The appellate court applying the plain language of the statute and interpreting subsections (a) and (b) together, the trial court granted all relief required by the statute at the time of the application. Relator’s counsel were not required to respond to discovery propounded on other parties and non-parties and, therefore, those matters were not subject to the statute. The trial court did not abuse its discretion by denying the request to apply the continuance to those matters. Relator complained that the trial court abused its discretion by failing to stay the entire case, including all discovery between and among the plaintiff and co-defendants and third parties. Relator made no specific showing in this record how his attorneys were required to be involved in the written discovery and no argument other than the statute required a stay of entire suits. The court disagreed that the statute required a stay of entire suits, because the statute by its terms only required a continuance of the case and of those ancillary matters that required the involvement of an attorney. Accordingly, the court denied relator’s petition for writ of mandamus.


Money flying out window supported a reasonable suspicion the pursued vehicle was involved in the recent robbery, which justified appellant’s warrantless detention, and because there was no evidence appellant did not use a gun, instruction on lesser-included offense of robbery was inappropriate
Tutson v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 21, 2017
14-16-00514-CR
Kem Thompson Frost
Published
     The jury found the appellant guilty for aggravated robbery. The trial court sentenced the appellant to thirty years’ confinement. The appellate court found that the facts supported a reasonable suspicion that the vehicle was involved in the robbery that had just occurred. The reasonable suspicion justified the warrantless detention. Thus, the trial court did not abuse its discretion in denying the appellant’s motion to suppress. Further, because the record did not contain affirmative evidence that the appellant did not use a gun, the trial court did not err in refusing to charge the jury on the lesser-included offense of robbery. Accordingly, the judgment was affirmed.   


Given manner of appellant’s lethal threat and its gravity, trial court had sufficient evidence to conclude appellee had shown imminent harm, and appellant had not shown trial court abused its discretion when it rendered a permanent injunction for appellant to stay 1000 feet away from appellee
Livingston v. Livingston
Civil Rights, Damages, Procedure, Torts
Texas 1st Court of Appeals
September 21, 2017
01-16-00127-CV
Laura Carter Higley
Published
     The instant suit arose from the acrimonious relationship between the appellee and her step-son, the appellant. The appellee sued the appellant for assault, false imprisonment, and infliction of emotional distress. A jury found that the appellant had not assaulted or falsely imprisoned the appellee, but it did find that the appellant had intentionally inflicted severe emotional distress on the appellee and that the appellant had acted with malice. The appellee recovered no actual damages; however, the trial court rendered a permanent injunction against the appellant, enjoining him from approaching the appellee within 1,000 feet, from knowingly entering any property where the appellee was present, and from contacting her. The appellate court found that the appellant had failed to show that the appellee did not base her claim for intentional infliction of emotional distress on the phone call, and thus he had not shown that the issue should not have been submitted to the jury. Further, the appellee testified that the appellant stated that he would physically harm her, and he would kill her. Given the manner in which the appellant stated the threat and its gravity, the trial court had sufficient evidence to exercise its discretion and concluded that the appellee had shown imminent harm. Thus, the appellant had not demonstrated that the trial court abused its discretion when it rendered the permanent injunction. Finally, the appellant declined, indicating that he generally objected to the rendition of the permanent injunction. Even after the trial court signed the judgment, the appellant did not file a post-judgment motion to complain that the language of the permanent injunction was overly broad. Under the circumstances of the instant case, the court found that the appellant had waived the complaints on appeal. Accordingly, the court affirmed the judgment of the trial court.


Since the Draft Divorce Terms were not an order of the trial court and did not set out the terms of compliance by clear and unambiguous terms, it was not enforceable by contempt, and, thus, the trial court’s judgment of contempt was void
In re Hightower
Appellate: Civil, Constitution, Courts, Family, Procedure
Texas 6th Court of Appeals
September 21, 2017
06-17-00088-CV
Bailey C. Moseley
Published
     Relator had filed a petition for writ of habeas corpus seeking relief from the trial court’s judgment of contempt and its order of commitment, both arising out of the divorce proceedings between his son, and the real party in interest. The appellate court found that the trial court adjudged the relator in contempt for violating its Draft Divorce Terms and sentenced him to confinement for violating the same. However, by its own terms, that document was not an order of the trial court. Rather, it was a “draft” that was “subject to revision” and dependent on the agreement of certain parties to release others and a lienholder to accept the plan to sell certain real estate. Since the Draft Divorce Terms were not an order of the trial court and did not set out the terms of compliance by clear and unambiguous terms, it was not enforceable by contempt. Therefore, the court sustained the relator's third issue, and the court found that the trial court’s judgment of contempt was void. Accordingly, the relator was ordered discharged.


Appellee participated in creating dangerous situation that led to injury: Appellee placed on a trailer, which would traverse highways, material it knew could cause a hazard to other motorists if inadequately secured, and did not meet its summary-judgment burden to negate duty as a matter of law
Bujnoch v. National Oilwell Varco, L.P.
Litigation: Personal Injury, Oil, Gas, & Mineral, Torts, Transportation
Texas 14th Court of Appeals
September 21, 2017
14-16-00286-CV
Ken Wise
Published
     The decedent was a passenger in a vehicle that slid off the roadway and rolled over after the vehicle encountered some oil-based mud cuttings. The decedent was ejected from the vehicle and killed. The appellee partnership had loaded the mud into an open-top dump trailer that was operated by an independent trucking company. The appellants, the decedent's parents, the next friend of the decedent's minor daughter, and the administrator of his estate sued the appellee and others for negligence and other claims. The appellee filed a traditional motion for summary judgment, which was granted by the trial court. The appellate court observed that the appellants had not forfeited their appellate complaints by failing to make more specific arguments to the trial court. The appellee’s duty concerned conduct at the drilling site when the appellee loaded the mud into an open-top dump trailer. Unlike in Naumann, the appellee participated in creating the dangerous situation that led to the injury: The appellee placed on a trailer, which the appellee knew would traverse Texas highways, material that it knew could cause a hazard to other motorists if it was inadequately secured. The appellee did not meet its summary-judgment burden to negate duty as a matter of law. Thus, the trial court erred by granting summary judgment on the appellant's negligence claim. As such, the court reversed that portion of the trial court’s judgment and remanded for further proceedings.


Mother had not established trial court abused its discretion in enforcing Mediated Settlement Agreement as against public policy, she could not withdraw her consent to the irrevocable Agreement, and she was not prevented from presenting evidence on family violence
In re C.C.E.
ADR, Contracts, Family, Procedure
Texas 14th Court of Appeals
September 21, 2017
14-16-00571-CV
Kem Thompson Frost
Published
     In the instant suit affecting the parent-child relationship, the appellant mother challenged the trial court’s agreed order rendered on a mediated settlement agreement pursuant to Texas Family Code section 153.0071(e). The child was of the appellant mother and appellee father, who once were husband and wife. Four years after the appellant and the appellee divorced, the appellant sought changes to the final divorce decree. Specifically, she sought modifications in visitation and child support. The appellate court found that the appellant’s argument based on the Standstill Provision lacked merit because even if the Standstill Provision were illegal and against public policy, that, by itself, would not make the entire agreement void on its face. Further, the appellant did not assert on appeal that the Standstill Provision could not be severed so that the remainder of the Agreement was enforceable even if the Standstill Provision was not. Presuming for the sake of argument the appellant’s assigned error as to that point on appeal, the court concluded that the mother waived the instant argument by failing to adequately brief it. Furthermore, the subject to the Court’s approval language made the agreement no less binding. The agreement expressly stated that it was irrevocable and satisfied all elements of section 153.0071(d). Tex. Fam. Code Ann. section 153.0071(e). As such, the appellant could not revoke her consent to the agreement. Finally, the agreement satisfied all elements of Family Code section 153.0071(d). the subject to the Court’s approval language in the agreement did not allow the appellant to revoke her consent. The appellant failed to preserve error in the trial court as to her complaint that the trial court did not give her the opportunity to present evidence of the family-violence exception to section 153.0071(e). Because the appellant had not shown that the trial court erred, the court affirmed the trial court’s order.


It was impossible to say the defense attorney’s decision to call certain witnesses and suffer their cross examination was so unreasonable that no other attorney would have made the same decision, thus, appellate court erred to hold the trial attorney was ineffective as a matter of law
Prine v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 20, 2017
PD-1180-16
Mary Lou Keel
Published
     A jury found the appellant guilty of sexual assault and sentenced him to 20 years’ confinement and a fine of $8,000. He claimed on appeal that his attorney was ineffective during the punishment phase of trial for calling three witnesses who gave damaging testimony on cross-examination. The appellate court agreed and remanded the case for a new punishment hearing. The Court of Criminal Appeals found that the defense attorney faced a dilemma in the punishment phase of the instant case. The facets of that dilemma were not fully revealed by the record before the court. Therefore, it was impossible to say that his decision to call those witnesses and suffer their cross examination was so unreasonable that no other attorney would have made the same decision. Thus, without a more fully developed record, the appellate court erred to hold that the trial attorney was ineffective as a matter of law. Accordingly, the court reversed the judgment of the appellate court and affirmed the trial court’s judgment and sentence.


Nonunanimous verdict as to liability for defamation was insufficient to support exemplary damages; however, appellant made no objections to trial court’s charge concerning a lack of evidence supporting the award of past or future reputation damages or damages for past or future lost income
Redwine v. Peckinpaugh
Appellate: Civil, Damages, Torts
Texas 12th Court of Appeals
September 20, 2017
12-16-00123-CV
Greg Neeley
Published
     The appellant had been a breeder of livestock guardian dogs in Corsicana, Texas, for twenty years. She operated a website called Working Dogs.com. The appellee sued the appellant for defamation and sought to recover actual and exemplary damages. The appellant challenged the trial court’s judgment and award of damages rendered against her for defamation of the appellee. The appellate court found that the language of the judgment in the instant case was sufficiently certain and definite. Thus, the judgment contained sufficient decretal language. Further, the appellant’s timely written objection properly apprised the trial court of the issue before the court. Next, because TEX. R. CIV. P. 292(b) and PRAC. & REM. CODE ANN. Section 41.003(d) required a unanimous jury finding as to both liability and the amount of exemplary damages, the nonunanimous verdict in the instant case as to liability was insufficient as a matter of law to support an award of exemplary damages. Thus, the trial court erred in entering judgment awarding exemplary damages to the appellee. Furthermore, the appellant made no objections to the trial court’s charge concerning a lack of evidence supporting the award of past or future reputation damages or damages for past or future lost income. Moreover, the appellant filed no post judgment motions, in which she made any argument pertaining to such damages. Lastly, the amount of time upon which interest was calculated was 1,247 days or 3.416 years. Therefore, the amount of prejudgment interest that should have been awarded at 5% per annum was $41,846.00.6. Thus, the court would modify the judgment to reflect an award of $41,846.00 in prejudgment interest. Accordingly, the judgment was affirmed as modified, reversed and rendered.


Applicant’s multiple-punishments double-jeopardy claims, where individual was victim alleged in the murder count and he was second victim alleged in each of the attempted capital murder counts, met neither innocence gateway nor new-legal-basis exception to the subsequent-application bar
Ex parte St. Aubin
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 20, 2017
WR-49,980-12
Sharon Keller
Published
     The applicant was charged with one count of murder and four counts of attempted capital murder. The individual was the victim alleged in the murder count and he was the second victim alleged in each of the attempted capital murder counts. At a single trial, the applicant was found guilty of all five charges and sentenced to life imprisonment in each case, with the sentences to run concurrently. The Texas Court of Criminal Appeals found that the only possible exception would be the unusual type of claim at issue in Ex parte Knipp where a duplicate offense was mistakenly charged. The applicant’s multiple-punishments claim did not fall within the unusual fact situation at issue in Knipp, so his claim failed to meet the at or before a finding of guilt precondition for invoking the innocence-gateway exception. Further, the double-jeopardy claim applicant made could have been, and in Ex parte Milner and Saenz was, reasonably formulated from double-jeopardy decisions from the Supreme Court and the instant Court that existed before the applicant filed his earlier applications. Furthermore, the applicant’s multiple-punishments double-jeopardy claims met neither the innocence gateway nor the new-legal-basis exception to the subsequent-application bar. Finding no other potentially applicable exception, the court held that the subsequent-application bar applied and that the court may not consider the merits of applicant’s claims. Accordingly, the court dismissed the current applications under Tex. Code Crim. Proc section 4.


Applicant failed to plead any statement of good cause in support of his motion to dismiss habeas application at late stage of proceedings; however, the Court would permit him thirty days to refile his motion and would stay any resolution on the merits of his habeas application for thirty days
Ex Parte Speckman
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 20, 2017
WR-81,947-02
Elsa Alcala
Published
     In the instant opinion, the Texas Court Of Criminal Appeals explained the rationale for denying a motion to dismiss filed by the applicant. Applicant’s motion sought dismissal of his Article 11.07 habeas application at a late stage in the proceedings after the habeas court has made findings of fact and conclusions of law recommending that relief be denied, and he sought that dismissal without prejudice so that he may later refile his application. In response to applicant’s motion, the court filed and set the instant case to set forth general guidelines for resolving latestage motions to dismiss without prejudice. The Texas Court Of Criminal Appeals determined that late-stage dismissals without prejudice were generally disfavored. Therefore, habeas applicants seeking to dismiss an application after the habeas court has factually developed the record and made findings of fact and conclusions of law should provide an explanation of good cause regarding why an alternative course of action, such as moving for new evidence to be considered, amending or supplementing their claims, or moving for a stay of the proceedings, would be inadequate to cure the defect in the pleadings or proof. In the instant case, applicant has failed to plead any statement of good cause in support of his motion to dismiss, and thus the court denied his instant motion. The court, however, would permit him thirty days to refile his motion to dismiss to conform with the rule set forth in the instant opinion. The court would stay any resolution on the ultimate merits of his habeas application for thirty days.


Appellee’s statement to the officer that she was not done shopping and was going to pay for the items was not generally required to be credited by the officer when probable cause to arrest appellant for shoplifting was otherwise apparent
State v. Ford
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 20, 2017
PD-1299-16
Sharon Keller
Published
     The appellee was indicted for possession of methamphetamine. The appellee filed a motion to suppress the drugs, and the police report of the incident was admitted at the suppression hearing. The trial court granted the appellee’s motion to suppress. The appellate court held that the trial court was within its discretion to conclude that the State failed to meet its burden of establishing probable cause to arrest. The Texas Court of Criminal Appeal found that a court could not simply discount the information given by an informant without looking at the circumstances that corroborate the information. The appellate court pointed to the appellee’s statement to the officer that she was not done shopping and was going to pay for the items. Although a suspect’s innocent explanation was relevant information to be considered in a probable cause determination, numerous courts have held that a police officer was generally not required to credit an accused’s innocent explanation when probable cause to arrest was otherwise apparent. Thus, the court concluded that the courts erred in concluding that the police officer lacked probable cause to arrest the appellee. Accordingly, the judgment was reversed and remanded.


It was error for the trial court to submit the entire definition of driving while intoxicated with provisions in the abstract about controlled substances because no rational jury could have concluded that the appellant consumed intoxicating drugs based on the evidence, only alcohol
Burnett v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 20, 2017
PD-0576-16
Barbara Parker Hervey
Published
     The appellant was charged with driving while intoxicated after he rear-ended another vehicle. The jury convicted him. He was fined $1,000 and sentenced to 120 days’ confinement in the county jail, which was probated for eighteen months. The appellate court concluded that it was error to submit the entire definition because no rational jury could conclude that the appellant consumed intoxicating drugs based on the evidence. The Texas Court of Criminal Appeals agreed with the appellate court that Ouellette was distinguishable from the facts of the instant case and that, in the instant case the jury charge was erroneous because it did not apply the law to the facts produced at trial. Further, the appellate court held that the appellant was caused some harm by the erroneous jury charge in the instant case. According to it, the appellant was harmed because the pill-related evidence became an integral part of the trial even though there was insufficient evidence to submit that theory of intoxication to the jury. The court did not review its harm analysis, however, because the court did not grant review on that issue. Accordingly, the court affirmed the judgment of the appellate court.


The applicant had shown he would not have pleaded guilty if he had been correctly advised of the relevant immigration consequences, thus, ineffective assistance of counsel rendered his plea involuntary and his plea was vacated
Ex Parte Aguilar
Constitution, Criminal, Evidence, Immigration, Procedure
Texas Court of Criminal Appeals
September 20, 2017
WR-82,014-01
Michael E. Keasler
Published
     The applicant pleaded guilty to the state-jail felony of attempting to evade arrest in a motor vehicle and was sentenced to six months’ imprisonment. In his application for a writ of habeas corpus, the applicant alleged that his plea counsel, who gave incorrect advice regarding the immigration consequences of the guilty plea, was ineffective and his plea was involuntary. The Texas Court of Criminal Appeals found that to gain temporary protected status, an alien must be a national of a designated country, have been continuously present in the United States since the designation, be admissible, not have been convicted of a felony, and register within the registration period. Once an alien had gained temporary protected status, he was required to re-register every year. If the Attorney General finds that an alien was no longer eligible for temporary protected status, he would withdraw the status and its accompanying protections. Further, because the loss of status automatically rendered the applicant removable, the conviction had removal consequences and Padilla was triggered. The court did not decide whether every loss or change in status implicates Padilla, but when a conviction automatically triggers a loss of status which, in turn, rendered a defendant presumptively removable, Padilla applies. Lastly, because the applicant had shown he would not have pleaded guilty if he had been correctly advised of the relevant immigration consequences, the court held that ineffective assistance of counsel rendered his plea involuntary and vacated his plea.  


Appellant was competent to be executed, and it was within trial court’s discretion to evaluate the weight and credibility of conflicting evidence, where appellant knew he was to be executed by the State, he knew he was convicted of killing his daughters, and he knew his execution was imminent
Battaglia v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 20, 2017
AP-77,069
Bert Richardson
Published
     The appellant was convicted and sentenced to death for shooting and killing his two young daughters in his apartment while they were talking to their mother on speaker phone. Shortly before his execution date, the appellant filed a motion claiming that he was incompetent to be executed. After an evidentiary hearing was held the trial court found that the appellant was competent to be executed. The Texas Court of Criminal Appeals held that the record supported the trial court’s determination that the appellant was competent to be executed, recognizing that it was within the trial court’s discretion to evaluate the weight and credibility of the conflicting evidence. The appellant knew he was to be executed by the State, he knew he was convicted of killing his daughters, and he knew his execution was imminent. There was support in the record that the appellant was malingering. Even though he denied being involved in the murders of his daughters, there was evidence in the record supporting the conclusion that he comprehends that there was a causal link between the capital offense and his imminent execution beyond merely identifying the State’s articulated rationale for the execution. Therefore, the trial court’s decision that the appellant failed to establish by a preponderance of the evidence that he was incompetent to be executed was within the zone of reasonable disagreement and not an abuse of the trial court’s discretion. Accordingly, the stay of execution was lifted and the court remanded to the trial court to set the appellant’s execution date.


Appellant engaged in conduct or knowingly placed child with persons who endangered her physical or emotional well-being, and termination of appellant’s parental rights was in child’s best interests; trial court did not err in refusing to strike child's foster parent’s intervention
In re S.L.W.
Family, Juvenile, Procedure
Texas 6th Court of Appeals
September 20, 2017
06-17-00062-CV
Bailey C. Moseley
Published
     In the County Court at Law No. 2 of Gregg County, Texas (CCL2), the appellee department filed a petition to terminate the appellants' parental rights to their daughter, the child. The County Court at Law No. 1 of Gregg County, Texas (CCL1), entered an order terminating the appellants' parental rights to the child and naming the appellee as the child’s permanent managing conservator. The appellate court found that the CCL1 had jurisdiction over the appellee’s petition. Next, a rational fact-finder could readily have reached the necessary firm conviction or belief that the appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered her physical or emotional well-being. Thus, the court found the evidence both legally and factually sufficient to support the trial court’s finding of a statutory ground of termination. Further, the trial court could have reasonably formed a firm belief or conviction that termination of the appellant’s parental rights to the child was in her best interests. Therefore, the court found there was legally and factually sufficient evidence to support the trial court’s best-interest finding. Finally, with the child’s best interests in mind, the court could not say that the trial court abused its discretion by deciding to deny the appellant’s motion to strike the child's foster parent's intervention which was heard right before trial. Accordingly, the court affirmed the trial court’s judgment.


Trial court abused its discretion by granting respondent's application for habeas relief because respondent's retrial was not barred by double jeopardy, where evidence did not support trial court’s conclusion that nondisclosures occurred because prosecutor’s team intended to provoke a mistrial
State v. Rushing
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
September 20, 2017
09-16-00423-CR
Hollis Horton III
Published
     In the instant appeal, the appellate court were asked to decide whether the trial court abused its discretion by granting the respondent's habeas application on the basis that the Double Jeopardy Clause barred the State from retrying him after the trial court granted his request for a mistrial and then ordered that his indictment be dismissed. The appellate court found that after viewing the ruling in the light most favorable to the trial court’s decision granting habeas relief, the evidence and circumstances did not support the trial court’s conclusion that the nondisclosures occurred because anyone on the prosecutor’s team intended to goad or provoke a mistrial. Further, the court held that the trial court abused its discretion by granting the respondent's application for habeas relief. Because the respondent's retrial was not barred by double jeopardy, the court reversed and set aside the trial court’s order granting the respondent's application for habeas relief, and the court remanded the case to the trial court for proceedings consistent with the opinion.


Trial court did not err in denying appellant’s request for jury charge to include instructions for simple assault and for offensive-contact assault, where evidence was sufficient to show that the appellant threatened the wife-victim with gasoline and a lighter, a deadly weapon
Whaley v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
September 15, 2017
07-15-00373-CR
James T. Campbell
Published
     The appellant challenged his conviction by jury of the offense of aggravated assault by threat with a deadly weapon and the resulting sentence of forty years of imprisonment. The appellate court observed that a rational jury could have found beyond a reasonable doubt that the appellant intentionally or knowingly threatened the wife-victim with bodily injury while using or exhibiting a deadly weapon. Thus, the evidence was sufficient to support the appellant’s conviction. Further, the appellant could point to no direct evidence that he was guilty, but only of simple assault. And his wife’s testimony was not susceptible to an interpretation that he intentionally or knowingly threatened her, but without the use or exhibition of the gasoline and the lighter. Thus, the trial court did not err in denying the appellant’s request to include in the charge to the jury an instruction regarding simple assault by threat. Finally, to convict the appellant of the charged aggravated assault, the State was required to prove only that the appellant threatened the victim with imminent bodily injury, and during the assault used or exhibited a deadly weapon, that was, gasoline and a lighter. Therefore, the trial court did not err in denying the appellant’s request to include an instruction to the jury regarding offensive-contact assault. As such, the court affirmed the judgment of the trial court.


Appellant had failed to show medical testimony his counsel should have elicited would have aided his defense; appellant’s sentences were not grossly disproportionate to his offenses, and a comparison of appellant’s sentences with the sentences others received for similar crimes was unnecessary
Renfroe v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
September 15, 2017
11-16-00287-CR
Mike Willson
Published
     The appellant pleaded guilty to the offense of aggravated assault in the first cause, but the trial court deferred a finding of guilt, placed him on deferred adjudication community supervision for six years, and imposed a $1,500 fine. In second cause, the appellant pleaded guilty to the offense of theft of a firearm, and the trial court assessed punishment at confinement for two years, suspended the imposition of the sentence, and placed the appellant on community supervision for five years. The appellate court found that the court had reviewed the records and have found nothing to indicate that the appellant’s sentences were grossly disproportionate to his offenses. In light of that holding, the court need not compare the appellant’s sentences with the sentences others received for similar crimes in that jurisdiction or sentences received in other jurisdictions. The appellant’s sentences did not constitute cruel and unusual punishment. Further, the appellant had failed to show that medical testimony would have aided his defense and the court could not speculate on what a medical expert would have said about the appellant’s medical state and its effect, if any, on punishment. A review of the records in the aggravated assault case and the theft case did not reflect that trial counsel’s representation was so deficient and so lacking as to overcome the presumption that it was within the wide range of reasonable professional assistance. Accordingly, the trial court's judgment was affirmed.


Submission of special issue, victim’s age, was error in trial court’s charge to the jury in the punishment phase of trial, but the error did not egregiously harm appellant requiring reversal, where the age of the victim was not a hotly contested issue in determining if probation was appropriate
Foster v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
September 13, 2017
10-16-00164-CR
Tom Gray
Published
     The appellant was convicted of one count of Burglary of a Habitation (Count I), three counts of Indecency with a Child by Contact (Counts II, III, and IV), and one count of Indecency with a Child by Exposure (Count V). He was sentenced to 30 years in prison in Count I, 15 years in prison in each of Counts II-IV, and 10 years in prison in Count V. Relying on the Court of Criminal Appeals’ opinion in Harris v. State, 790 S.W.2d 568 (1989), the appellate court held that article 37.07(1)(a)'s language regarding general verdicts was mandatory and that if a submitted special issue was not “constitutionally necessary,” the submission was erroneous. But, the court had not been presented with any authority, and it had found none, that a submission of a special issue regarding the age of a victim was “constitutionally necessary” or statutorily authorized in the case. Thus, the submission of the special issue as to Counts II through V was error. Although the court found that the submission of the special issues was erroneous, it did not find the error constituted egregious harm requiring reversal. Accordingly, the appellant's sole issue was overruled, and the trial court’s judgments regarding Counts II through Vwere affirmed.


Appellant was not prejudiced by his counsel’s deficient performance in failing to advise him of the immigration consequences of his plea, where he had not shown he would not have pleaded guilty and would have insisted on going to trial, but for his counsel’s errors impeding his rational decision
Ex Parte Duque
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 14, 2017
01-15-00014-CR
Laura Carter Higley
Published
     The appellant had been convicted of assault of a family member impeding breathing, an offense for which a sentence of one year or more may be imposed. The appellant challenged an order denying relief that he requested in a post-conviction application for writ of habeas corpus. The appellate court found that the record supported the habeas court’s implied finding that the appellant failed to show that a decision to reject the plea bargain would have been rational under the circumstances. Further, an implied finding that the appellant had not demonstrated a reasonable probability that, but for his counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. That was, the record supported a determination that the appellant was not prejudiced by his counsel’s deficient performance. Thus, it was within the habeas court’s discretion to deny the appellant’s requested habeas relief. Accordingly, the judgment was affirmed.


Trial court’s decision to transfer venue for the convenience of the parties was not grounds for appeal and was not reversible error, and plain language of appellant's policy which covered “damages for bodily injury,” did not cover punitive damages
Farmers Texas County Mutual Insurance Company v. Zuniga
Contracts, Damages, Insurance, Litigation: Personal Injury, Torts
Texas 4th Court of Appeals
September 13, 2017
04-16-00773-CV
Patricia O. Alvarez
Published
     The instant appeal presented the novel issue of whether an automobile insurance policy which covered “damages for bodily injury” required appellant insurance company to pay punitive damages awarded in a lawsuit against its insured. The trial court granted summary judgment in favor of the appellees concluding the policy required the appellant to pay the punitive damages. The appellate court found that Section 15.002(c) of the Texas Civil Practice and Remedies Code provided that a decision to transfer venue for the convenience of the parties was not grounds for appeal and was not reversible error. Therefore, the court did not further address the appellant’s second issue. Further, the court found that Ky. Cent. Ins. Co. v. Schneider, 15 S.W.3d 373 (Ky. 2000), contained the broader phrase “because of bodily injury” found in the cases cited by the El Paso court in Manriquez v. Mid-Century Ins. Co. of Tex., 779 S.W.2d 482 (Tex. App.—El Paso 1989, writ denied), the Kentucky Supreme Court noted the definitional difference between “damages for bodily injury” and “punitive damages”. The court agreed with that definitional distinction and held the plain language of the appellant's policy in the instant case, which covered “damages for bodily injury,” did not cover punitive damages. Furthermore, although the holding that the policy did not cover punitive damages became law of the case, the parties did not file competing motions for summary judgment in the trial court. Instead, the first appellee filed the only motion for summary judgment on the ground that the automobile policy covered punitive damages. Although the court held the trial court erred in granting the first appellee’s motion, the court must remand the cause to the trial court for further proceedings. Accordingly, the judgment was partly affirmed, partly reversed and remanded.


Evidence was legally sufficient to support the trial court’s implied findings that a change of circumstances occurred and the appellant posed a physical danger to the children by child abuse and its order that appellant’s visitation with the children be supervised by a third party
In re A.G.
Family, Juvenile
Texas 14th Court of Appeals
September 12, 2017
14-16-00341-CV
Martha Hill Jamison
Published
     The appellant challenged from the trial court’s modification order in a suit affecting the parent-child relationship. The appellate court found that the evidence was legally sufficient to support the trial court’s implied findings that a change of circumstances occurred and the appellant posed a physical danger to the children. Thus, the trial court did not abuse its discretion in ordering the appellant’s visitation with the children be supervised by a third party. Further, because the appellee was not the party seeking reversal in the instant case, Tex. R. Civ. P. 90. could have no application to her complaints regarding the appellant’s enforcement motions. Rule 91 merely required special exceptions be specific and intelligible and therefore had no application under the circumstances. Finding no merit in any of the appellant’s arguments concerning the trial court’s denial of his motions to enforce, the court overruled his motion to enforce issue. Accordingly, the court affirmed the trial court’s judgment.


Trial court did not err in declaring appellee gas station owner excused from future performance because of appellant fuel distributor's material breach of contract by poor performance of delivery of fuel to the station, and attorney's fees and costs were available under the facts of the case
Gulshan Enterprises, Inc. v. Zafar, Inc.
Contracts, Corporations, Damages, Procedure
Texas 14th Court of Appeals
September 12, 2017
14-16-00643-CV
Kevin Jewell
Published
     The appellee company, the owner of a service station sought to end its business relationship with the appellant company, a fuel supplier, because of the appellant’s allegedly poor performance in timely delivering and properly invoicing the appellee for fuel. The appellee’s president agreed that, in mid-2005, he signed a ten-year marketing contract with the appellant, but claimed he had never been provided a copy of the agreement. The appellee filed suit seeking a declaratory judgment to clarify its rights and status under the marketing contract. In the instant appeal from a declaratory judgment in favor of the appellee, the appellant asserted that the trial court erroneously excused the appellee’s future performance under a contract based on the appellant’s breach, and improperly awarded the station owner attorney’s fees and costs. The appellate court found that the appellant’s complaint that the trial court erred as a matter of law in excusing the appellee’s future performance under the contract lacked merit. And the appellant did not otherwise challenge the trial court’s declaratory judgment in favor of the appellee. Further, whether or not the appellee had since entered into a contractual relationship with a new gas distributor did not impact the effectiveness of the trial court’s judgment as to the dispute between the appellee and the appellant based on their contract. Thus, the instant appeal was not moot. Finally, the appellant had failed to demonstrate that the trial court abused its discretion in awarding attorney’s fees and costs to the appellee under the Uniform Declaratory Judgments Act. Accordingly, the court affirmed the trial court’s judgment.


Trial court did not abuse its discretion in setting some amount of security required to be posted by appellant to supersede the judgment pending that declared appellant had no lien on appellee's real property, expunged appellant’s lis pendens and awarded appellee attorneys’ fees
Drake Interiors, Inc. v. Thomas
Creditor/Debtor, Damages, Procedure, Real Property
Texas 14th Court of Appeals
September 07, 2017
14-17-00374-CV
Per Curiam
Published
     The judgment on appeal declared that appellant did not have a lien on certain property (the property) owned by the appellee, expunged the lis pendens filed by the appellant with respect to the property, and awarded the appellee attorney’s fees. The trial court set the amount of the security required to supersede the judgment pending appeal at $70,000. The appellate court found that no Texas case appeared to discuss which party bore the burden to establish the amount of security required for a non-money judgment. However, the court saw no reason that the party seeking to stay enforcement of a judgment for a recovery of a property interest under Tex. R. App. P. 24.2(a)(2) or a judgment for something other than money or property under 24.2(a)(3) would not likewise bear the burden to offer at least some evidence of the amount of security required. Further, underlying the appellant’s request to stay enforcement of the judgment without security was an assumption that continuation of the lis pendens—a continuation of a cloud on her property—would cause no harm to the appellee. The appellant did not provide the trial court or the court with any authority (or evidence) to support that assumption, nor did the court find any. Absent such authority, the court was unwilling to hold that enforcement of a judgment expunging a lis pendens may be stayed without security. Accordingly, the court denied the motion.


Appellate court could not conclude that trial court abused its discretion by preventing appellant’s expert from testifying as to city council’s authority.
Kingsley Properties, LP v. San Jacinto Title Services of Corpus Christi, LLC
Appellate: Civil, Contracts, Torts
Texas 13th Court of Appeals
September 22, 2016
13-15-00128-CV
Nelda V. Rodriguez
Published
Appellant company sued appellees complaining of a letter which the appellee wrote and distributed in pursuit of his bid for city council. The letter concerned the future of the appellant’s chief asset, a Corpus Christi golf course and country club. Appellant filed suit over the letter. Appellant claimed business disparagement, alleging that the letter contained multiple false statements. Appellant also claimed breach of contract. When the appellant rested its case, the trial court granted a directed verdict against the appellant on his breach of fiduciary duty claim. At trial, the jury found against appellant on its business disparagement, tortious interference, and breach of contract claims. Trial court entered a take-nothing judgment on all of appellant’s claims and awarded appellees attorney’s fees for its defense of the breach of contract claim. The appellate court agreed with appellant’s interpretation of the attorney’s fees provision of the agreement. Neither appellees nor appellee were parties, as that term was distinctively used in the prevailing party provision at issue in the instant case. Thus, appellees and appellee were not entitled to attorney’s fees under the agreement. Further, the court found that when the trial court seemed inclined to sustain the appellees’s objection, the appellant did not show either good cause or an absence of surprise and prejudice to the other party, which was its burden under such circumstances. Appellate court could not conclude that trial court abused its discretion by preventing appellant’s expert from testifying as to city council’s authority. Appellate court affirmed, reversed and rendered.


The appellate court found that the record showed that there were not enough evidence to raise a genuine and material fact to defeat the summary judgment.
Highmount Exploration & Production LLC v. Harrison Interests, Ltd.
Appellate: Civil, Contracts, Damages, Real Property, Torts
Texas 14th Court of Appeals
October 06, 2016
14-15-00058-CV
Kem Frost
Published
Appellees filed suit against the appellant for breach of the Agreement, conversion and claims based on violations of the Texas Natural Resources Code. The appellees asserted their entitlement to royalties on all gas used for fuel on the Subject Interests.  Appellant moved for partial summary judgment. Appellees filed two separate summary-judgment motions in which they asserted they were entitled to royalties on gas used for fuel on the Subject Interests and that appellant breached the Agreement by deducting marketing costs in calculating the royalties owed. The trial court granted appellees summary-judgment motions and denied the appellant summary-judgment motion. Appellees moved for rendition of a final judgment. The trial court awarded the appellees damages, prejudgment interest, and reasonable and necessary attorney’s fees. The appellate court found that the record shown that it was not impossible to calculate the economic benefit received by or accruing to the appellant from the use of gas produced from the Subject Interests for fuel, nor was it impossible to calculate the royalty to be paid on the benefit. Also, there was no summary-judgment evidence as to who created the diagram submitted by the appellant, nor was there any evidence explaining the various symbols on the diagram, including symbols that appear after what the diagram indicated was the flow of the rich gas through two compressors. Even if there had not been a complete failure to authenticate the diagram, it would not raise a genuine and material fact sufficient to defeat summary judgment.  Appellate court affirmed.


Appellant forego the administrative determination of its challenge which deprived the district court of jurisdiction.
City of Austin v. Travis Central Appraisal District
Appellate: Civil, Constitution, Real Property, Tax
Texas 3rd Court of Appeals
November 10, 2016
03-16-00038-CV
Scott K. Field
Published
In the instant appeal, the appellant city filed a petition for judicial review of an order from the Travis Appraisal Review Board denying the appellant’s challenge to the level of appraisals for vacant land and commercial real property for the 2015 tax year. The appellant also sought declaratory and injunctive relief, challenging certain provisions of the Texas Tax Code as unconstitutional under Article 8, Section 1, of the Texas Constitution. After the trial court granted a plea to the jurisdiction filed by a group of commercial property owners and a motion for summary judgment filed by another commercial property owner, the court dismissed the suit for lack of jurisdiction. The appellate court found that the appellant’s constitutional challenge was a transparent attempt by a taxing unit to debate an issue of tax policy that was within the prerogative of the Legislature, rather than the Judiciary. The appellant may bring its concerns over tax policy to the attention of the Legislature, but it had no standing to pursue such a debate in the instant court. Although the appellant did have statutory standing to challenge the level of appraisals of any category of property in the appellee district, the appellant decided to effectively forego the administrative determination of its challenge, depriving the district court of jurisdiction. Thus, the trial court did not err in dismissing the appellant’s claims for lack of subject-matter jurisdiction. Accordingly, the court affirmed the judgment of the trial court.


 

Child Protective Services investigator interviewed appellee while in custody awaiting formal charges for the purpose of gathering evidence or statements to be used in a later criminal proceeding against appellee, and appellee’s statements made without Miranda warnings were properly suppressed
State v. Aguilar
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
August 16, 2017
04-16-00689-CR
Marialyn Price Barnard
Published
     The State challenged the trial court’s order granting the appellee's motion to suppress certain oral statements made by the appellee to a special investigator with Child Protective Services. The appellate court found that viewing the evidence in the light most favorable to the trial court’s ruling and deferring to the trial court’s explicit and implicit historical findings of fact, the trial court did not err in concluding the Special Investigator conducted the interview of the appellee, explicitly or implicitly on behalf of law enforcement for the purpose of gathering evidence or statements to be used in a later criminal proceedings against the appellee. The trial court’s ruling was supported by the record and in accordance with the applicable law as set out in Wilkerson. Accordingly, the trial court did not abuse its discretion in granting the appellee's motion to suppress, overruled the State’s appellate issue, and affirmed the trial court’s order.


Victim’s testimony about details of sexual abuse were consistent, and admission of forensic interviewer’s outcry witness testimony, and nurse and doctor’s testimony that victim tested positive for a sexual disease, if error, did not contribute to appellant’s conviction or punishment
Kou v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
August 16, 2017
04-16-00346-CR
Luz Elena D Chapa
Published
     A jury convicted the appellant of continuous sexual abuse of a child. The jury assessed his punishment at sixty years in prison. The appellate court found that the victim provided consistent details about how the appellant usually approached her before the incidents, the appellant’s penis and ejaculate, where the appellant would wash himself afterward, and the usual time and location of the incidents. Thus, the court held a rational trier of fact could have found the sexual abuse element of the offense beyond a reasonable doubt. Further, the forensic interviewer testified about oral-to-genital, genital-to-genital, and hand-to-genital contact, but the same or similar evidence was admitted without objection at other points during the trial. Thus, the court held that even if the trial court erred by allowing the forensic interviewer to testify as an outcry witness, the admission of the forensic interviewer’s testimony did not affect the appellant’s substantial rights and was therefore not reversible error. Next, the nurse and the doctor did not testify about their independent opinions and conclusions that the victim had herpes and acted as surrogates of the analyst to introduce the positive lab results into evidence. Therefore, the court held the trial court’s admission of testimony about the positive lab test results and the herpes diagnosis violated the appellant’s rights under the Confrontation Clause. Finally, there was not a reasonable possibility that the trial court’s admission of testimony about the positive lab test results and the herpes diagnosis moved the jury from a state of non-persuasion to one of persuasion on the issue of the appellant’s guilt or punishment. Thus, the court found beyond a reasonable doubt that the error did not contribute to the appellant’s conviction or punishment. Accordingly, the court affirmed the trial court’s judgment.


Appellant waived his complaints to officer’s deposition testimony, officer’s diagram of the accident and appellant’s prior speeding tickets by introducing that evidence at trial, and any error excluding eye witness’ testimony about fault during brief period of observation was harmless
Merrill v. Sprint Waste Services LP
Evidence, Litigation: Personal Injury, Torts, Transportation
Texas 14th Court of Appeals
August 15, 2017
14-16-00006-CV
Martha H. Jamison
Published
     In three issues in his personal injury lawsuit, the appellant challenged the trial court’s admission and exclusion of certain testimony regarding causation and the trial court’s admission of evidence regarding prior extraneous offenses. The appellate court found that the standards recognized that even though a trial court may rule before trial that evidence was admissible, the opposing party might decide nevertheless not to introduce it. By allowing an opposing party to explain, rebut, or demonstrate the untruthfulness of evidence after it comes in, the opposing party was protected from waiver and still had an opportunity to respond to objectionable evidence and persuade the jury. Having referenced in opening statements and introduced the contested evidence at trial first, the appellant had waived his objections on appeal. Further, the jury was able to take all the evidence into consideration when determining fault. The court concluded that in light of the entire record, including the eyewitness's testimony regarding what she saw during the accident, that the exclusion of her testimony regarding fault probably did not cause the rendition of an improper judgment. Accordingly, the court affirmed the judgment of the trial court.


Since defense counsel did not object to evidence as the fruit of an illegal arrest, appellant waived that issue; appellant did not effectively withdraw his consent to the blood draw, and officer’s testimony of traffic infraction was not challenged to require an instruction to exclude blood test
Doremus v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 15, 2017
14-15-00727-CR
Kem Thompson Frost
Published
     The appellant challenged his conviction for driving while intoxicated. The appellate court found that the record of the pre-trial hearing begins with defense counsel questioning the appellant. After re-cross examination, the trial court asked the appellant a few questions and then denied the appellant’s motion to suppress. It appeared from the record that defense counsel made no arguments at the pre-trial hearing. Further, the appellant stated that he wanted to go to the hospital, and the nurse testified that if the appellant had not consented, the nurse would not have drawn the blood. The trial court reasonably could have concluded that the appellant voluntarily consented to the blood draw. Thus, the trial court did not abuse its discretion in denying the appellant’s motion to suppress the blood-test results. Finally, the officer stood resolute. The appellant did not affirmatively contest the evidence that the appellant drove the wrong way down a one-way street. The trial court did not abuse its discretion in denying the appellant’s request to submit to the jury an instruction under article 38.23 of the Texas Code of Criminal Procedure. Accordingly, the court affirmed the trial court’s judgment.


Trial court failed to instruct jury on all mental state elements of aggravated robbery, but errors were not egregious; there was no evidence appellant was not indigent, requiring reimbursement for his appointed attorney; and judgment corrected to reflect jury’s finding of use of a deadly weapon
Herrera v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 15, 2017
14-16-00169-CR
John Donovan
Published
     A jury convicted the appellant of aggravated robbery. The appellant pleaded true to two enhancement paragraphs and the jury sentenced him to confinement for fifty years in the Institutional Division of the Texas Department of Criminal Justice. The appellate court found that the record did not show that the charge error resulted in harm so egregious that the appellant did not have a fair and impartial trial. Further, there was no evidence before the trial court, nor was there any evidence in the record, that the appellant was not indigent, that a material change in the appellant’s financial circumstances had occurred, or that the appellant had the financial resources to pay the costs of his court-appointed lawyer. Therefore, the trial court erred in requiring the appellant to reimburse the Galveston County Department of Court Services for his court-appointed attorney. The State conceded there was no evidence the appellant’s indigent status had changed, thus he should not be assessed attorney’s fees. Finally, because the judgment failed to reflect the jury’s express finding, the court reformed the judgment to include a deadly-weapon finding. Accordingly, the judgment of the trial court was affirmed as reformed.


Trial court properly found naming Department Family Protective Services as children's managing conservator was in the their best interest, and appellant mother failed to preserve any complaint regarding the trial court’s application of the rules governing the use of a master
In The Interest Of J.J.G., L.K.G., H.A.G., AND A.G.G.
Family, Juvenile
Texas 1st Court of Appeals
August 15, 2017
01-16-00104-CV
Evelyn V. Keyes
Published
     In the instant accelerated appeal, appellant parents, challenged the trial court’s final decree, entered after a bench trial to a master, awarding the Department of Family and Protective Services (“DFPS”) permanent managing conservatorship of their four children. A panel of the appellate reversed the trial court’s decree and DFPS filed a motion for en banc reconsideration. The court granted DFPS’s motion for en banc reconsideration, withdrew the opinion of August 4, 2016, vacated the judgment of the same date, and issued the instant en banc opinion and judgment in their stead. The appellate court found that the trial court had before it sufficient evidence on which to exercise its discretion, including the fact that the appellant mother or a caregiver selected by her subjected the fourth child to severe abuse over a period of several weeks that resulted in two subdural hematomas, two broken legs, injuries to his foot, and an impaction fracture to his arm. Likewise, the evidence indicates that the appellant father effectively abandoned his children for lengthy periods of time to the appellant mother’s care and that he had had minimal involvement in their lives. That evidence and the other evidence constitutes more than a scintilla of evidence of a pattern of behavior to support the judicial findings that placing the children back into either parents care would significantly impair their physical health or emotional development, and it demonstrated that the trial court did not err in the application of its discretion on the first issue. Further, because the appellant mother failed to make a timely complaint regarding the trial court’s failure to hear more evidence upon rejecting the master’s recommended judgment or otherwise raise a concern regarding her due process rights in the trial court, she waived the issue on appeal. Accordingly, the court affirmed the order of the trial court.


Father’s Motion for new trial based upon lost exhibits was denied; reversed and remanded for a proper possession order concerning Father's possession of or access to the children; and paragraph in the Order titled Future Litigation by father was struck
In re S.V
Family, Juvenile
Texas 5th Court of Appeals
August 14, 2017
05-16-00519-CV
Robert M. Fillmore
Published
     The instant was a suit affecting the parent-child relationship (SAPCR). In June 2005, the parties divorced and were named joint managing conservators of the children, with the appellant father having expanded standard visitation. The appellant challenged the trial court’s May 4, 2016 order in Suit affecting the Parent-Child Relationship Nunc Pro Tunc (the 2016 Order) naming the appellee mother sole managing conservator of their two children. The appellate court found that there was conflicting evidence at trial regarding whether the doctor was included in the appellant’s healthcare plan’s provider network. When the testimony of witnesses was conflicting, the court would not disturb the credibility determinations made by the trial court as the factfinder. Further, providing health insurance for the children, obtaining consent before traveling with the children, his limited right to possession, and the appellee mother’s right to choose the children’s school and the appellant Father had not challenged those terms on appeal; he had, in effect, agreed to abide by them. Accordingly, the trial court did not abuse its discretion in incorporating those prohibitions into the 2016 Order. Furthermore, the trial court did not abuse its discretion by ordering the increased level of child support to begin in the month following trial. Finally, the court denied the appellant’s motion for new trial based upon lost exhibits. The court reversed the portion of the trial court’s May 4, 2016 Order in Suit Affecting the Parent-Child Relationship Nunc Pro Tunc concerning the appellant’s possession of or access to the children and remanded for the trial court to sign a possession order consistent with that opinion, and the court struck the paragraph in the Order titled Future Litigation by the appellant. Accordingly, the trial court's judgment was affirmed and reversed in part.


Appellant was not harmed by missing portion of the record, and his counsel did not provide ineffective assistance, and appellant’s life sentence was not grossly disproportionate to the crime of aggravated sexual assault of a six-year-old child, since rehabilitation was not precluded
Foster v. State
Constitution, Criminal, Evidence, Procedure
Texas 5th Court of Appeals
August 11, 2017
05-15-01539-CR
Molly Francis
Published
     A jury convicted the appellant of aggravated sexual assault of six-year-old child and the trial court assessed punishment at life in prison. The appellate court found that the evidence showed the appellant abused the child in an apartment in Grand Prairie where the appellant lived with his mother. Although two witnesses thought the apartment could be located in Tarrant County, neither was certain. On the other hand, a ten-year veteran of the Grand Prairie Police Department, gave unequivocal testimony that the apartment was located in Dallas County. The veteran's testimony was sufficient for a reasonable jury to conclude by a preponderance of the evidence that the offense occurred in Dallas County. Further, the evidence showed the appellant sexually abused another young boy in the same manner and also made “sexual gestures” to other small children. Incarceration would prevent the recurrence of such criminal behavior because the appellant would not have access to children. Incarceration did not, however, mean he would be denied the opportunity for rehabilitation. Given the nature of the offense and its circumstances, the court could not conclude the appellant’s sentence violated the penal code’s objectives. Furthermore, in a cross-issue, the State asked that the court modify the judgment to correct several errors. The court abated the appeal and ordered the trial court to enter a corrected judgment containing all statutorily mandated information. The court had received the supplemental clerk’s record containing the corrected judgment. Consequently, the State’s cross-issue was moot. Accordingly, the court affirmed the trial court’s judgment.  


Appellee was entitled to include all subcontractor payments in its revenue exclusion, but factually insufficient evidence supported trial court's finding appellee was entitled to include all costs as a Cost of Goods Sold deduction and Comptroller's calculation of that deduction was incorrect
Hegar v. Gulf Copper and Manufacturing Corporation
Business, Corporations, Oil, Gas, & Mineral, Tax
Texas 3rd Court of Appeals
August 11, 2017
03-16-00250-CV
Scott K. Field
Published
     The appellee corporation sued the appellants seeking a refund of franchise taxes that the appellee paid under protest. The appellee asserted that the appellants erroneously denied it a revenue exclusion it had claimed for payments made to its subcontractors during the relevant tax year. In the alternative, the appellee asserted it was entitled to deduct the subcontractor payments as cost of goods sold (COGS). The appellee also asserted that the appellants erroneously excluded certain costs the appellee had included in its calculation of its COGS deduction, resulting in a smaller COGS deduction and, correspondingly, the appellee’s owing additional franchise taxes. Following a bench trial, the trial court concluded that the appellee was entitled to a revenue exclusion for the subcontractor payments or, alternatively, was permitted to include the subcontractor payments in its COGS deduction. The trial court also concluded that the appellee was entitled to deduct all of the costs it had included in its original COGS calculation. The court rendered judgment ordering the appellants to pay the appellee $838,117.84, the entire amount it had paid under protest, plus statutory interest and costs allowed by law. The appellate court found that the appellee was entitled to include the entire $79,405,230 of subcontractor payments in its (g)(3) revenue exclusion. Also, the court found that factually insufficient evidence supported the trial court’s finding that the appellee was entitled to include the entire $152,116,964 of its costs in its COGS deduction and the appellant comptroller’s calculation of that deduction was incorrect as a matter of law. Accordingly, the court reversed the trial court's order and remanded.


Appellant no longer had an interest in the property when first appellee received the money pursuant to a valid agreement following the divorce, and first appellee and second appellee conclusively established that the money did not in equity or good conscience belong to the appellant
Spellmann v. Love
Contracts, Family, Oil, Gas, & Mineral, Real Property, Wills/Trusts/Probate
Texas 13th Court of Appeals
August 10, 2017
13-16-00011-CV
Gina M. Benavides
Published
     The individual appellant sued the appellees for unjust enrichment, money had and received, and constructive trust. The appellant asserted that he was equitably entitled to receive certain disputed oil and gas royalty payments. The trial court disagreed and granted an interlocutory summary judgment in favor of the appellees on the appellant’s equitable claims against them. At the time of the divorce, the first appellee obtained a property settlement. In January 2009, as part of the settlement, the first appellee acquired a 50 percent non-executive mineral interest in the Property from the appellee partnership interest. The appellate court found that the first appellee and the second appellee asserted that the appellant’s unjust enrichment claim failed as a matter of law because the first appellee did not engage in any wrongdoing and because unjust enrichment was not an independent cause of action. Further, a cause of action for money had and received was not based on wrongdoing but instead, looks only to the justice of the case and inquires whether the defendant had received money which rightfully belonged to another. It was essentially an equitable doctrine applied to prevent unjust enrichment. Furthermore, the record conclusively showed that the appellant no longer had an ownership interest in the property at the time that the first appellee received the money. Moreover, the first appellee received the money pursuant to a valid agreement following the divorce. Thus, the court would conclude that the first appellee and the second appellee conclusively established that the money received did not in equity or good conscience belong to the appellant. Because the court held that summary judgment was properly granted on the appellant’s claim for money had and received, the court held the same with regard to the appellant’s claims of unjust enrichment, or his attempted to recover under that doctrine.


In five of the six factors used to weight the propriety of changing the child’s surname from the appellant’s to the appellee’s, the appellee presented legally and factually sufficient evidence to support the trial court’s finding that the name change was in the child’s best interest
In re J.N.L.
Evidence, Family, Juvenile
Texas 14th Court of Appeals
August 10, 2017
14-16-00325-CV
Martha H. Jamison
Published
     In the instant appeal from a final judgment in a suit to change the name of a child, the appellant complained that the trial court’s order granting the name change request was not supported by sufficient evidence and the trial court abused its discretion in excluding evidence relevant to its determination that a name change was in child's best interest. The appellate court found that the evidence supported the inference that the child associates with the appellant’s name little, if at all, despite the fact that she has had that name for nine years, and thus that factor weighed in favor of the name change. Further, the court did not agree with the appellant that the instant factor weighed against the name change and the instant factor was at least neutral or weighed slightly in favor of the name change. Further, the appellant wife, as the parent seeking the name change, was required to present some evidence of a substantial and probative character that the change would be in the child’s best interest. Furthermore, she did so with respect to five of six factors first the child could experience feelings of anxiety, embarrassment, inconvenience, confusion or disruption from bearing the appellant’s name; secondly having the wife’s name would help the child identify with the family she lives with; thirdly, the child did not identify with the surname she had for nine years; the child wants her name changed; and lastly, the wife did not request the name change because of personal motives. Weighing the factors and construing the evidence in the light most favorable to the judgment, the court concluded the wife presented legally and factually sufficient evidence to support the trial court’s finding that the name change was in the child’s best interest. Accordingly, the trial court did not abuse its discretion in granting the wife’s name change petition. Accordingly, the court found appellant's appellate issues unconvincing and affirmed the judgment of the trial court.


Trial court did not admit victim’s 911 call in violation of the Confrontation Clause because it was not testimonial in nature, and offense labeled "assault-family member" to show required element, but assessment of $25 "district attorney” fee was not for purposes of legitimate criminal justice
Hernandez v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 10, 2017
01-16-00755-CR
Russell Lloyd
Published
     The appellant was charged by information with assault–family member. After a jury found the appellant guilty of the charged offense, the trial court assessed his punishment at 180 days in county jail. The appellate court found that the victim’s out-of-court statements on the 911 tape, when viewed objectively, were made under circumstances indicating that the primary purpose of the interrogation was to enable the police to meet an ongoing emergency, rather than to establish or prove past events potentially relevant to later criminal prosecution. Because the victim's statements were not testimonial, the trial court did not err in admitting them. Further, since the State agreed to reform the language of the judgment, the case stands more for the proposition that the judgment must contain a separate affirmative finding of family violence to satisfy the requirements of article 42.013 than it does for any requirement that the judgment recite only the exact language of the statute charging the offense. Such a finding was included in the judgment in the case before the court. Furthermore, consistent with Salinas, the court held that Code of Criminal Procedure Article 102.008(a) was unconstitutional to the extent it allocated funds to the county’s general fund because those funds allow spending for purposes other than legitimate criminal justice purposes in violation of the separation of powers provision of the Texas Constitution. Accordingly, the court modified the trial court’s judgment and affirmed as modified.


Because appellant occupant could not raise challenges to the underlying foreclosure proceeding or challenge title in the instant forcible entry and detainer lawsuit, the appellate court affirmed the trial court’s judgment for the appellee property purchaser
Paselk v. Bayview Loan Servicing, LLC
Creditor/Debtor, Landlord and Tenant, Procedure, Real Property
Texas 6th Court of Appeals
August 10, 2017
06-17-00012-CV
Ralph Burgess
Published
     The appellee company purchased a property (the Property) at a public foreclosure sale. After acquiring a substitute trustee’s deed, the appellee sent a notice to the appellant and all other occupants of the Property requesting that they vacate the premises. Because the appellant failed to timely vacate the premises, the appellee filed a suit for forcible entry and detainer. The justice court rendered judgment for the appellee, and a trial de novo following the appellant’s appeal of the justice court’s decision to the County Court of Hopkins County yielded the same result. The appellate court found that the deed of trust specifically provided that the appellant would be considered a tenant at sufferance in the event of a foreclosure sale. Further, foreclosure pursuant to a deed of trust established a landlord and tenant-at-sufferance relationship between the parties, the trial court had an independent basis to determine the issue of immediate possession without resolving the issue of title to the property. Because issues involving title and the propriety of the underlying foreclosure were not before the justice or county courts in the instant forcible detainer action, the court could not address the appellant’s arguments related to those matters. That was because “the validity of a foreclosure sale may not be determined in a suit for forcible detainer but must be brought in a separate suit.” Accordingly, the judgment was affirmed.


Trial court properly rejected appellant’s contention that since appellee’s prior marriage to another man in her homeland of Eritrea was never lawfully dissolved, their marriage was not valid, and awarded appellee primary custody of their minor child
Zewde v. Abadi
Family, Juvenile
Texas 14th Court of Appeals
August 10, 2017
14-16-00536-CV
Martha Hill Jamison
Published
     The appellant appealed from the trial court’s final decree of divorce dissolving his marriage to the appellee. A key focus of the appellant’s case was his contention that because the appellee’s prior marriage to another man in her homeland of the appellant's native was never lawfully dissolved, the appellee’s marriage to the appellant was not a valid marriage. The appellate court found that the parents did not file an agreed parenting plan, the Family Code specified certain factors for the trial court to consider when assessing whether appointing the parents as joint managing conservators was in the best interest of the child. Although the appellant did not offer a record cite, he appeared to be referencing the witness's testimony that once during an exchange of the child, the appellee tried to hit the appellant while the child was in the appellant’s arms. There was nothing in the record, however, to suggest that the trial judge failed to give that testimony due consideration. As factfinder, the judge was free to either disbelieve the testimony or assign it less weight than the evidence regarding the appellant’s conduct discussed above. Finally, there was evidence supporting the trial court’s determination that it was in the child’s best interest to name the appellee sole managing conservator. Having considered all the appellant’s conservatorship issues, the court concluded the trial court did not abuse its discretion in awarding the appellee sole managing conservatorship of the child. Thus, the court overruled the appellant’s issues six through eight. Having overruled all of the appellant’s issues, the court affirmed the trial court’s judgment.


Fact that appellant could establish common-law fraud against the first appellee was immaterial as that claim was barred by economic loss rule, and appellee failed to establish that second appellee materially breached the construction contract, entitling it to indemnity
Levco Construction, Inc. v. Whole Foods Market Rocky Mountain/Southwest L.P.
Contracts, Damages, Torts
Texas 1st Court of Appeals
August 10, 2017
01-15-00620-CV
Evelyn V. Keyes
Published
     The appellant company sued the appellee companies for claims arising out of its role as a subcontractor on a construction project to build a store in Texas (the Project). The appellees also asserted claims against each other and the appellant. Following a bench trial, the trial court determined that the first appellee owed the second appellee, the general contractor, breach of contract damages of $465,809.57 plus interest and attorney’s fees. The trial court further determined that the second appellee owed $190,250.77 plus interest and costs to intervenor company, the issuer of the appellant's surety bond for the project, for work that the appellant performed. The appellate court found that the fact that the trial court found that the appellant could establish the elements of common-law fraud against the first appellee was immaterial in light of the court's conclusion that such a claim was barred by the economic loss rule. Thus, the trial court did not err in failing to award the appellant damages on its fraud claim against the first appellee. Further, the first appellee failed to establish that the second appellee materially breached the Construction Contract. Thus, the trial court’s finding that the first appellee, and not the second appellee, committed a material breach was supported by legally and factually sufficient evidence. Furthermore, the first appellee was not found to have joint, concurrent, or contributory liability in connection with some act of negligence or breach by the second appellee or the appellant. Neither the second appellee nor the appellant was found to have been negligent or to have breached—the first appellee was solely to blame for its own losses. Thus, the court agreed with the trial court that the first appellee failed to establish its right to indemnity under the Construction Contract. Accordingly, the court affirmed the judgment of the trial court.


Record did not show that it was impossible for appellant’s trial counsel to strategically reject filing a motion to quash the indictment for pretrial delay in cold case murder ten years earlier, and appellant’s court costs for summoning a witness did not violate his right to compulsory process
Eugene v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 10, 2017
14-16-00391-CR
Kem Thompson Frost
Published
     The jury found the appellant guilty as charged and assessed punishment at life’s confinement. The appellate court found that neither of the appellant’s issues afforded him appellate relief. He did not prevail on his first issue because the record was insufficient to address the appellant’s claim of ineffective assistance of counsel. The appellant did not prevail on his second issue because he did not meet his burden to prove an article 102.011 deprived him of his constitutional rights. Accordingly, the judgment was affirmed.


Appellants did not establish a question of fact on whether rental obligations in the appellee corporation’s lease violated the City Charter’s reasonable fee requirement, a threshold issue in their claim that City Council acted in an ultra vires manner in approving the lease
EP Hotel Partners, LP v. City of El Paso
Contracts, Gov't/Administrative, Landlord and Tenant, Real Property
Texas 8th Court of Appeals
August 04, 2017
08-16-00031-CV
Gina M. Palafox
Published
     The instant was an appeal from an order granting summary judgment in favor of the appellee City and the appellee corporation, jointly, in which the trial court dismissed the Appellants’ lawsuit seeking a declaration pursuant to the Uniform Declaratory Judgment Act (UDJA), that the City violated the City Charter when it entered the lease with the corporation, and that the City representatives acted in an ultra vires manner by approving it. The appellants asserted that the trial court erred in granting summary judgment in favor of the appellees, arguing that they presented sufficient evidence to raise genuine issues of material fact on the question of whether the lease violated the City Charter, and on the question of whether the representatives acted in an ultra vires manner. The appellate court found that the evidence in question established, at most, that there were differences in the various airport hotel leases, but did not carry the appellant’s burden to raise a question of fact on the issue of whether the rental obligations in the appellee corporation Lease violated the City Charter’s reasonable fee requirement. Further, the Summary Form that was presented to the City Council in support of the Original Lease contained all of the lease terms that were being offered to the appellee corporation, and expressly stated that the lease contained the rental abatements in question. Furthermore, the Appellants’ argument that the City Council members acted in an ultra vires manner in voting on the lease was wholly dependent on a showing that the lease violated the City Charter. Finally, the Appellants did not meet their burden of establishing a question of fact on whether the appellee corporation Lease violated the City Charter, or a question of fact on whether the City Council members acted in an ultra vires manner in their approval of the lease. The court therefore overruled all of the appellants’ issues as set forth in their brief, and affirmed the trial court’s entry of summary judgment in favor of the City and the appellee corporation.


Appellant property owner could not proceed in its declaratory judgment action because its claim that restrictive covenants prevent the sale of its property for fair market value was not a justiciable controversy, since appellees had not enforced any of the covenants against the appellant
High Mountain Ranch Group, LLC v. Niece
Contracts, Procedure, Real Property, Zoning
Texas 6th Court of Appeals
August 04, 2017
06-16-00072-CV
Bailey C. Moseley
Published
     The appellant company filed a petition for declaratory judgment against the appellees among others, seeking a judgment determining that the Declaration of Covenants and Restrictions (DCRs) on Lot 34 in Austin’s Glenbrook Addition was illegal, void, and/or unenforceable, and alternatively, seeking a modification of the DCRs to remove the residential use restrictions and subdivision set back requirements from the lot. The trial court entered a final judgment after having granted various summary judgment motions filed on behalf of certain appellees. Ultimately, the trial court concluded that there was no justiciable case or controversy before it and, therefore, concluded that it did not have jurisdiction to consider the issues set out in the appellant's pleadings. The trial court awarded attorney fees to the appellees and dismissed the appellant's claims and causes of action with prejudice. The appellate court found that at the fee hearing, the first appellee agreed to a delay or continuance so that the appellant could depose the first appellee's attorney, if it wished to do so. The appellant showed no indication that it wished to put the matter off. That chronology of events reflected a lack of unfair surprise or prejudice and falls within the scope of the court's sister court’s ruling in Beard Family Partnership. Thus, the trial court did not abuse its discretion by impliedly finding that the appellant was not unfairly surprised or prejudiced by the late disclosure. Further, in light of the early notice given to the appellant that it would press a claim for attorney fees, and in light of the disclosure provided over two weeks in advance of the hearing, together with the formal response to the appellant's Rule 194.2 request for disclosure on August 2, 2016, it was reasonable to conclude that the appellant was not unfairly surprised or prejudiced by the attorney's testimony at the August 15, 2016, fee hearing. The trial court acted within its discretion to permit the testimony. Accordingly, the court affirmed the trial court’s judgment.


The appellate court determined that mediation is a form of alternative dispute resolution (ADR) procedures.
Yates v. J. McMillan Enterprises, LLC
ADR, Appellate: Civil
Texas 10th Court of Appeals
December 14, 2016
10-16-00363-CV
Per Curiam
Published
The appellant indicated in his docketing statement that the instant appeal should be referred to mediation. The Legislature had provided for the resolution of disputes through alternative dispute resolution (ADR) procedures. The appellate court found that the mediation was a form of ADR. Mediation was a mandatory but non-binding settlement conference, conducted with the assistance of a mediator. Mediation was private, confidential, and privileged. Accordingly, the court found that the instant appeal was appropriate for mediation.


Appellee homeowner failed to present legally sufficient evidence to support his actual damages award, thus, court reversed trial court’s judgment as to appellee's counterclaims and rendered a take-nothing judgment on appellee's counterclaims against appellant contractor
Knight Renovations, LLC v. Thomas
Appellate: Civil, Contracts, Damages, Evidence, Torts
Texas 12th Court of Appeals
August 09, 2017
12-16-00142-CV
Greg Neeley
Published
     The appellee filed a counterclaim for breach of contract, breach of warranty, and deceptive trade practices act violations. In response, the appellant company asserted several affirmative defenses. Trial was to the court, which rendered judgment in the appellee's favor, awarding him $35,000 in actual damages and $70,000 in exemplary damages, as well as attorneys’ fees, interest, and court costs. The appellate court found that the appellee offered no competent evidence of repair costs, the court must conclude that the evidence was legally insufficient to support the $35,000 damages award. Further, the appellant did not provide evidence showing that the value of the work it did was greater than the amount the appellee paid and thus the appellant failed to show that the appellee was unjustly enriched. The court concluded that the appellant was not harmed by the trial court’s failure to file the appellant's requested additional or amended findings and conclusions as doing so would not result in a different judgment. Furthermore, because the appellee failed to present legally sufficient evidence to support his actual damages award, the court reversed the trial court’s judgment as to the appellee's counterclaims and rendered a take-nothing judgment on the appellee's counterclaims against the appellant. Accordingly, the court affirmed in part and reversed and rendered in part.  


Appellee whistleblower’s report to Board of Engineers on unlawful practice of engineering by other City employees survived City’s plea to the jurisdiction, and since appellee’s exhibits were not admitted as evidence, trial court did err by not considering appellant's evidentiary objections
Abilene v. Carter
Appellate: Civil, Employment, Evidence, Gov't/Administrative, Procedure, Torts
Texas 11th Court of Appeals
August 10, 2017
11-15-00121-CV
John Bailey
Published
     In the instant interlocutory appeal, the appellant city challenged the trial court’s denial of its plea to the jurisdiction to the appellee's suit against the appellant. The appellate court found that as correctly noted by the appellant, simply attaching a document to a pleading did not make the document admissible as evidence, dispense with proper foundational evidentiary requirements, or relieve a litigant of complying with other admissibility requirements. However, the exhibits were not admitted as evidence before the trial court. Thus, the trial court did err by not considering the appellant's evidentiary objections to the exhibits. Further, the appellee pleaded the same general information as contained in the two exhibits. As noted previously, the applicable standard of review requires the allegations to be accepted as true. Thus, any error by the trial court concerning those exhibits could not have caused the rendition of an improper verdict. Moreover, the court disagreed with the appellant's contention that the appellee did not sufficiently reference the exhibits in his pleadings in order for them to be considered a part of his pleadings under TEX. R. CIV. P. Rule 59. Accordingly, the court affirmed the order of the trial court denying the appellant's plea to the jurisdiction.


Trial court’s partial summary judgment on multiple, unresolved claims was interlocutory rather than final and appealable, notwithstanding severance of the parties’ deed-construction dispute into a separate cause, therefore, the court lacked jurisdiction over the appeal, and it was dismissed
Davati v. McElya
Contracts, Procedure, Real Property
Texas 1st Court of Appeals
August 10, 2017
01-16-00544-CV
Harvey Brown
Published
     In the instant deed-construction dispute, appellant appealed from a partial summary judgment that the trial court rendered in the appellee’s favor. Though the record showed that the parties asserted several other unresolved claims against one another, the appellant contended that the partial summary judgment was final and appealable because the trial court severed it into a separate cause. The appellate court found that though the trial court severed the parties’ deed-construction dispute into a separate cause and its severance order purported to make the partial summary judgment final and appealable, neither the summary judgment nor the severance order disposed of the parties’ other claims against each other. Thus, the court held that the severed summary judgment was not final and appealable, and dismissed the appellant’s appeal for lack of jurisdiction.


When Appellant requested officers go to her vehicle and collect her things, she waived any expectation of privacy in her vehicle, and any error in failing to suppress prescription drugs found there was harmless given appellant’s admissions to taking prescription drugs and witnesses’ testimony
Daniel v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
August 10, 2017
11-15-00059-CR
Mike Willson
Published
     The jury convicted the appellant of the offense of driving while intoxicated. The trial court assessed the appellant’s punishment at ninety days in the county jail, probated for a term of twelve months, and imposed a $500 fine. The appellate court held that there was sufficient evidence for a rational jury to find beyond a reasonable doubt that appellant committed the offense of driving while intoxicated, and also held that the trial court did not abuse its discretion when it denied the appellant’s motion to suppress because appellant waived or forfeited any legitimate expectation of privacy. In light of the resolution of that issue, the court need not address the appellant’s remaining arguments about the search. And, even if the court was incorrect about the trial court’s denial of the appellant’s motion, any error was harmless. Finally, the court held that the trial court did not abuse its discretion when it allowed the three Deputy's testimony. Accordingly, the judgment was affirmed.


State’s argument under a hypothetically correct jury charge was an impermissible attempt to disown the higher burden of proof of .15 blood alcohol concentration appearing in the actual charge only as a result of its decision to charge appellant with Class A misdemeanor driving while intoxicated
Ramjattansingh v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 10, 2017
01-15-01089-CR
Harvey Brown
Published
     The jury found the appellant guilty of driving while intoxicated with an alcohol concentration of at least .15 at the time of analysis and at or near the time of the offense. He appealed on several grounds, including insufficiency of the evidence. The appellate court found that the court rejected the State’s argument for review under a hypothetically correct jury charge because it was an impermissible attempt to disown the higher burden of proof that appeared in the actual charge only as a result of the State’s charging decision. Further, the court sustained the appellant’s evidentiary insufficiency issue, reversed his conviction for the Class A misdemeanor offense of driving while intoxicated, and rendered a judgment of acquittal on that charge and the court remanded the instant case for a new trial on the lesser-included Class B misdemeanor offense of driving while intoxicated. Because the court reversed the appellant’s conviction for insufficient evidence and he did not seek greater relief than the court afford him on any other basis, the court did not address the additional points of error he raised on appeal. Finally, the court reversed the appellant’s conviction for the Class A misdemeanor of driving while intoxicated, rendered a judgment of acquittal with respect to that offense, and remanded for a new trial on the lesser-included Class B misdemeanor offense.


Officer’s affidavit contained facts showing a fair probability that surveillance equipment revealing evidence of the offenses would be inside the auto shop when the warrant was issued, and trial court properly denied suppression of video found on a computer in the shop
Foreman v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 10, 2017
14-15-01005-CR
Martha Hill Jamison
Published
     The appellant challenged the denial of his motions to suppress surveillance video evidence found on a computer hard drive. A jury found the appellant guilty of aggravated robbery and aggravated kidnapping, and the trial court assessed 50 year sentences to run concurrently. The appellate court found that considering the facts contained in the four corners' of the affidavit and the reasonable inferences therefrom under the totality of the circumstances, the facts submitted to the magistrate demonstrated a fair probability that surveillance equipment revealing evidence of the offenses would be inside the auto shop when the warrant was issued. Thus, the trial judges did not err in denying appellant’s motions to suppress. Accordingly, the judgment was affirmed.


Trial court should have included a jury unanimity instruction, where jury charge violated appellant’s constitutional right to a unanimous verdict with respect to whether he used his sexual organ to contact or penetrate victims’ sexual organ or her rear-end on mixed evidence
French v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
August 10, 2017
11-14-00284-CR
Mike Willson
Published
     The jury convicted the appellant of the offense of aggravated sexual assault of his five-year-old daughter. The trial court assessed punishment at confinement for sixty years and sentenced him. The appellate court found that the State built its case against the appellant based on the victim’s testimony and that of other witnesses', including the victim’s mother; the Child Protective Services investigator, the victim’s grandmother; the SANE nurse; and the forensic interviewer. Although the State primarily presented evidence of a sexual assault of the victim’s anus by the appellant with his penis, the forensic interviewer said that the victim reported that, after the appellant had finished assaulting her, he would clean her pee-pee with wipeys. Further, the forensic interviewer also testified that there were one or two instances where the victim said that it was his private in her pee-pee, but she self-corrected to butt. The jury could have inferred from the victim that the appellant wiped her pee-pee and butt after he had assaulted her sexual organ and anus. Thus, after a review of the record, the court could not say that the appellant suffered no harm. Accordingly, the judgment was reversed and remanded.


Evidence was sufficient for a trier of fact to conclude appellee provided drinks to an intoxicated person in exchange for consideration, a “sale” of alcohol, in violation of Tex. Alco. Bev. Code Ann. Section 101.63(a)
State v. Medina
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
August 09, 2017
04-16-00199-CR
Marialyn Price Barnard
Published
     The State charged the appellee with selling alcohol to an intoxicated person. The trial court found the appellee guilty and sentenced her to one day in jail and assessed a $100.00 fine. However, the trial court subsequently granted the appellee’s motion for new trial. The appellate court found that the evidence was sufficient for a trier of fact to conclude the appellee provided drinks to an intoxicated person in exchange for consideration. Thus, the evidence was sufficient to establish the appellee sold alcohol to an intoxicated person in violation of Tex. Alco. Bev. Code Ann. Section 101.63(a). Thus, the trial court abused its discretion in granting the appellee’s motion for new trial and sustained the State’s appellate issue. Accordingly, the judgment was reversed and rendered.


The appellee had standing and capacity to intervene in the underlying suit; the statute of limitations did not bar appellee’s foreclosure action; and appellee’s lien was valid under the Texas Constitution, therefore trial court's judgment affirmed
Hinton v. Nationstar Mortgage LLC
Banking and Finance, Constitution, Contracts, Creditor/Debtor, Real Property, Torts
Texas 4th Court of Appeals
August 09, 2017
04-16-00494-CV
Luz Elena D Chapa
Published
     In January 2009, the appellants refinanced their home to obtain a $213,000 loan. The terms of the loan were governed by a note and security instrument in which the appellants agreed to make monthly mortgage payments. The lender named on the note and security instrument was a Mortgage Company (the company). The appellants made only six payments in 2009. The appellants filed an amended pleading alleging breach of contract, a violation of the Texas Constitution, and other claims against the appellee. The case proceeded to a bench trial and, after closing arguments, the trial court ruled in the appellee’s favor. The appellate court concluded the appellee had standing to intervene under common-law authority, thus it need not address whether the appellee had statutory standing to intervene. And, the appellee's representative’s uncontroverted testimony established the appellee had the legal right and authority under the note and security instrument to sue for foreclosure as early as September 17, 2013, which was before the appellee intervened. The record therefore established the appellee had the capacity to file its original petition in intervention. Further, because the appellee’s May 1, 2014 filing was not later than four years after the assignee company’s May 2, 2010 acceleration of the debt, the statute of limitations did not bar the appellee’s suit for foreclosure, regardless of whether the appellee’s rescission of the assignee company’s acceleration was effective. Furthermore, the literal text and plain language of TEX. CONST. art. XVI, section 50(a)(6)(M)(ii) did not support the appellants’ position that the company’s misrepresentation of the estimated monthly payments and property taxes due before or after closing barred the appellee’s foreclosure action. The court therefore held the appellants did not establish the lien was invalid under the Texas Constitution. Accordingly, the judgment was affirmed.


Appellees alleged and presented some evidence of the requisite causal nexus between the appellant’s use of tangible personal property and the deceased’s death following the procedure in the clinical trial at appellant cancer center, which triggered a waiver of appellant’s governmental immunity
University of Texas M.D. Anderson Cancer Center v. McKenzie
Gov't/Administrative, Health Care, Procedure, Torts
Texas 14th Court of Appeals
August 03, 2017
14-16-00681-CV
Kevin Jewell
Published
     In the instant medical malpractice case, the appellees, the family of a patient who died after participating in a clinical trial at the appellant center alleged that the patient died because of the appellant’s negligence. The appellant brought the instant interlocutory appeal challenging the trial court’s denial of its plea to the jurisdiction. The appellate court found that the appellees’ pleadings and the evidence trigger a waiver of the appellant’s governmental immunity under section 101.021(2) of the Texas Tort Claims Act. The appellees have alleged and presented evidence that the appellant used tangible personal property during the deceased’s procedure. Further, the appellees’ allegations and evidence show some evidence of the requisite causal nexus between the appellant’s use of tangible personal property and the deceased’s death. Accordingly, the court affirmed the trial court’s order denying the appellant’s plea to the jurisdiction and remanded.


Because appellee pled a facially valid claim that appellant was acting ultra vires by reporting his dismissed 1986 criminal case as a conviction and by seeking to require him to register as a sex offender, the trial court did not err in denying appellant’s plea to the jurisdiction
McCraw v. C.I.
Civil Rights, Constitution, Criminal, Gov't/Administrative, Procedure, Torts
Texas 9th Court of Appeals
August 03, 2017
09-16-00302-CV
Charles A. Kreger
Published
     In the suit underlying this interlocutory appeal, the appellee seeks declaratory and injunctive relief from efforts by state and local officials to require him to register under the Texas sex offender registration program (“SORP”) of Chapter 62 of the Texas Code of Criminal Procedure. Appellant in his official capacity as the Director of the Texas Department of Public Safety, challenged an order of the trial court denying his plea to the jurisdiction. The appellate court found that in finding that the retroactive registration requirements of the SORP did not apply to cases that had been dismissed, the court in Hall v. State, 440 S.W.3d 690, 693 (Tex. App.—Texarkana 2013, pet. ref’d) relied heavily on Cuellar v. State, 70 S.W.3d 815, 819 (Tex. Crim. App. 2002). The court found the reasoning was equally applicable and the result analogous. Further, because the court determined that the appellee’s 1986 case was dismissed without a conviction and that he therefore had no duty to register under the SORP, the court found that DPS’s reporting of the appellee’s case as a conviction and the appellant’s actions seeking to compel the appellee to register were ultra vires acts, for which sovereign immunity did not apply to deprive the trial court of jurisdiction. Therefore, the court found that the appellee had pleaded sufficient facts that, if proven true, would entitle him to prospective injunctive relief in the trial court. Furthermore, suggesting that the appellee’s only remedy at law was to wait until he was arrested and prosecuted for failing to register before he could assert his claims ignored that the appellee’s petition alleged, and the appellant had not disputed, that DPS’s online public records reflect the disposition of the appellee’s dismissed 1986 case as a conviction, and the appellee had sought injunctive relief to compel the appellant to reform the records to reflect the proper disposition of that case. Thus, the appellee had sought relief from the trial court that was wholly unrelated to potential criminal enforcement of the SORP registration requirement. Accordingly, the judgment was affirmed.


Defendant’s failure to anticipate a potential change in the law at the time of her guilty plea did not impugn the truth, reliability or voluntariness of that plea
Stevens v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
August 03, 2017
11-16-00131-CR
Mike Willson
Published
     The grand jury indicted the appellant for possession with intent to deliver a controlled substance, namely methamphetamine in the amount of four grams or more but less than 200 grams, in a drug-free zone. The grand jury also indicted her for the offense of tampering with or fabricating physical evidence. In each case, the appellant waived her right to a jury trial and entered open guilty pleas. The trial court found the appellant guilty of both offenses, assessed punishment at confinement for ten years for the possession offense and at two years for the tampering offense, and ordered that the sentences were to run consecutively. The appellate court found that in both causes, the trial court properly admonished the appellant as to her rights, her understanding of the charges against her, and the consequences of her guilty pleas. The appellant did not claim that her guilty pleas were the product of any threat, misrepresentation, or any improper promise. The open plea to the possession offense was not related in any way to the separate tampering offense for which she also entered an open plea. Further, a defendant’s failure to anticipate a potential change in the law at the time of her guilty plea did not impugn the truth or reliability of that plea. Accordingly, the court affirmed the judgments of the trial court.


Defendant’s voluntary statements to officer where not subject to suppression, where he wanted to explain what happened, and autopsy photographs were not duplicative, but, since defendant’s statement was key issue, trial court erred by not sua sponte including a jury instruction on voluntariness
Paz v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 03, 2017
01-15-00979-CR
Laura Carter Higley
Published
     The State charged the appellant, with capital murder. Appellant pleaded not guilty. The jury found him guilty, and an automatic life sentence was assessed. The appellate court found nothing in the record that indicated the trial court could not have made the credibility determinations that it did. To the contrary, appellant indicated repeatedly throughout his statement to the Officer that he wanted to explain what happened, that he wanted to co-operate, and that he trusted Officer. At the conclusion of their meeting, appellant referred to Officer as “brother,” and told him, “Thank everything, man.” Therefore, the court held the trial court did not abuse its discretion by denying the appellant’s motion to suppress his statement. Further, the court held evidence pertaining to the voluntariness of the appellant’s statement was submitted to the jury. Therefore, the court held the trial court was required to submit a section 6 instruction on voluntariness to the jury. Given the centrality of the appellant’s statement to the key issue of his level of knowledge and given the emphasis placed on the evidence in closing arguments, the court held that the error caused the appellant egregious harm. Furthermore, each of the photographs that appellant argued was duplicative was a close up of the same area depicted in another admitted photograph. In each case, the close up pictures provided pertinent detail while the larger-scale pictures showed the injuries in context with the rest of the baby’s skull. The court held hold that the trial court did not abuse its discretion by admitting the photographs. Accordingly, the judgment was affirmed.


Appellant did not timely protest denial of Interstate or Foreign Commerce tax exemption and failed to exhaust its administrative remedies; trial court properly determined appellant’s requested additional discovery was not material or necessary in determining appellee’s plea to the jurisdiction
Vitol, Inc. v. Harris County Appraisal District
Business, Discovery, Gov't/Administrative, Procedure, Tax
Texas 14th Court of Appeals
August 03, 2017
14-16-00584-CV
Marc W. Brown
Published
     Appellant provided information about its business property for tax year 2014 to the appellee County Appraisal District. The appellant also submitted to the appellee a form requesting an Interstate or Foreign Commerce (“IFC”) tax exemption. The appellant received a 2014 Notice of Appraised Value for Property Tax Purposes (“2014 Notice”) that did not contain any IFC exemption. The appellant did not file a written or online protest with the Appraisal Review Board (“ARB”) by the deadline stated in the 2014 Notice. Months later, the appellant filed a written protest with the ARB, alleging that the appellee failed to provide proper notice of the denial of the IFC exemption and that the appellee improperly denied the exemption. After the ARB denied the appellant’s protest, the appellant appealed to the trial court. The appellee filed a plea to the jurisdiction based on the appellant ’s failure to timely protest and exhaust its administrative remedies. The trial court denied the appellant’s motion for continuance of the hearing on the plea. The trial court granted the appellee’s plea and dismissed the appellant’s claims for lack of jurisdiction. The appellate court found that despite timely receipt of the 2014 Notice, it was undisputed that the appellant did not file any written protest with the ARB until November 5, 2014. Under the circumstances, even based on the record as viewed in the light most favorable to the appellant, the court concluded as a matter of law that the appellant did not file a timely protest under chapter 41 and failed to exhaust its administrative remedies. Further, in the instant case the legal issue for jurisdictional purposes was whether the appellant was required to timely protest the 2014 Notice based on the proper interpretation of the Tax Code. The court had already concluded that the appellant was required to do so, and the undisputed evidence demonstrated that the appellant did not. Additional discovery into the allegedly “gotcha” behavior of the appellee could not confer jurisdiction that did not otherwise exist. Therefore, the court concluded the trial court properly could have determined that the appellant’s requested additional discovery was not material or necessary in determining the appellee’s plea to the jurisdiction. Accordingly, the judgment was affirmed.


Trial court did not err in admitting non-complainant’s testimony of extraneous acts of sexual abuse appellant committed against her, and State proved beyond a reasonable doubt appellant was at least seventeen years old each time he committed an act of sexual abuse against the complainant
Caston v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 03, 2017
01-16-00260-CR
Evelyn V. Keyes
Published
     A jury convicted the appellant of the first-degree felony offense of continuous sexual abuse of a child and assessed his punishment at confinement for life. The appellate court found that a rational jury could have concluded that the State proved, beyond a reasonable doubt, that the appellant was at least seventeen years old each time he committed an act of sexual abuse against the complainant. Thus, the State presented sufficient evidence to support the appellant’s conviction for continuous sexual abuse of a child. Further, as the sister court noted in Harris, section 2(b) did not lessen a defendant’s presumption of innocence, and it did not alter the State’s burden of proof because the State was still required to prove every element of the charged offense beyond a reasonable doubt. Thus, the court’s reaffirmed its holding in Buxton that section 2(b) did not violate the due process clause and was constitutional. Lastly, the trial court reasonably could have determined that the prejudicial effect of the victim, the appellant daughter's, testimony did not substantially outweigh its probative value. Thus, the trial court did not abuse its discretion in admitting the victim’s testimony concerning the extraneous acts of sexual abuse that the appellant committed against her. Accordingly, the judgment was affirmed.


Auto insurance policy unambiguously required appellant insured to notify appellee insurer of the replacement of her financed vehicle with the leased vehicle and trial court properly granted appellee’s motion for summary judgment that the policy did not cover the damaged leased vehicle
Thompson v. Geico Insurance Agency, Inc.
Consumer, Contracts, Insurance, Transportation
Texas 14th Court of Appeals
August 03, 2017
14-16-00154-CV
Kem Frost
Published
     The appellant owned a 2011 Infiniti G37 automobile and secured insurance for it from appellee corporation. The appellant traded in her G37 and leased a 2015 Infiniti Q50 automobile but did not notify the appellee that she had acquired the Q50. A few months later, while driving the Q50, the appellant was involved in an automobile accident. The appellant sued the appellee, alleging breach of contract, breach of the duty of good faith and fair dealing, violations of the Texas Deceptive Trade Practices Act, and violations of the Texas Insurance Code. The appellant also sought a declaratory judgment that the policy covers her Q50. The appellate court found that under the appellant’s proffered interpretation of the policy, the policyholder would not have to identify a leased vehicle for it to be insured. The appellant roots her position in the premise that for the purpose of insuring a vehicle, leasing was substantively different from purchasing. Further, the court found unreasonable the appellant’s proffered interpretation that the policy did not require the insured who leased a vehicle to comply with the policy’s notice requirements to extend coverage to that vehicle. Further, the court discerned no other reasonable interpretation of the operative policy provisions, so the court did not find the policy ambiguous and the appellant further asserted that the appellee could not point to any term of the policy that excluded the Q50 from coverage. But, the absence of an exclusion could not confer coverage. Finally, the policy unambiguously required the appellant to notify the appellee of the replacement of her G37 with the Q50 and the trial court properly granted the appellee’s motion for summary judgment. Therefore, the court overruled the appellant’s only appellate issue and affirmed the trial court’s judgment.


Homeowners’ association did not meet its evidentiary burden of proving the probable validity of its real property claim against the real estate developer in its affidavit, and the trial court abused its discretion in denying relator's motion to expunge the lis pendens filed by the association
In re I-10 Poorman Investments, Inc.
Creditor/Debtor, Damages, Procedure, Real Property, Torts
Texas 1st Court of Appeals
August 03, 2017
01-17-00284-CV
Harvey Brown
Published
     The relator company had filed a petition for writ of mandamus challenging the trial court’s order denying the relator's motion to expunge lis pendens filed by the association. The appellate court found that the attorney's bare statements that the association had a real property claim without presenting any facts establishing the probable validity of that claim rendered the statements conclusory. The affidavit, therefore, did not present any evidence establishing the probable validity of the association’s claims regarding the property. Further, because the association did not meet its evidentiary burden of proving the probable validity of its real property claim, the trial court abused its discretion in denying the relator's motion to expunge the lis pendens. Accordingly, the court conditionally granted the petition and directed the trial court to vacate its order denying the relator's motion to expunge the lis pendens and to grant the motion.


Official-Mistake Doctrine did not apply because county’s Domestic Relations Office was not under direct control or supervision of district courts or acting on its behalf, thus, trial court erred in granting appellee’s petition and vacating in part Challenged Order for child support arrearages
Bialaszewski v. Bialaszewski
Appellate: Civil, Courts, Family, Gov't/Administrative, Juvenile, Procedure
Texas 3rd Court of Appeals
August 03, 2017
03-17-00046-CV
David Puryear
Published
     The appellant appealed the trial court’s order granting the appellee's petition for bill of review seeking to amend the amount of child-support arrearage awarded to the appellee in a previous court order entered a year earlier. The trial court granted the appellee’s petition, vacated in part the previous order, and ordered the appellant to pay a new, increased amount of arrearage. The appellate court found that there was no evidence in the record that the Travis County Domestic Relations Office (DRO) a statutorily created office of Travis County was under the direct control or supervision of the district courts or was acting on the district courts’ behalf, despite the appellee’s contention that the DRO and its employees were akin to court functionaries because the DRO was administered by the Travis County Juvenile Board, on which the Travis County district court judges sit. Further, the applicable statutes applying to DROs, and the evolution and narrowness of the official-mistake doctrine, as traced in detail in the Mowbray opinion, the court refused to extend the doctrine’s coverage to the DRO and its employees and the court concluded that the DRO and its employees were not official court functionaries for the purposes of application of the official-mistake doctrine. Furthermore, the trial court erred in granting the appellee’s petition and vacating in part the Challenged Order. The court need not reach the appellant’s remaining issues because of the court determination with respect to the official mistake doctrine. Because the trial court erred in granting the appellee’s petition for the bill of review, vacating in part the Challenged Order, and finding that the appellant owed $24,749.93 in child support as of April 30, 2016, the court reversed its order and arrearage finding and render judgment denying the appellee’s petition for bill of review.


Appellant consented for officer to retrieve his wallet and altered social security card inside when appellant volunteered information to the officer about domestic violence incident while handcuffed for officer safety; tampering with government document statute was not unconstitutionally vague
Alfaro-Jimenez v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
August 02, 2017
04-16-00188-CR
Patricia O. Alvarez
Published
     A county jury returned a guilty verdict against the appellant on one misdemeanor count of tampering with a government document, a Social Security card. The trial court subsequently sentenced the appellant to one-year confinement in the county jail, suspended and probated for a period of two years, and a $1,500.00 fine. The appellate court found that based on a review of the record, the trial court could reasonably determine that the officer diligently pursued a means to confirm or dispel his suspicions and the detention was not so long as to become constitutionally prohibited. The trial court could also reasonably determine, by clear and convincing evidence, that the appellant provided his consent for the officer to retrieve his wallet and the identification contained within the wallet. Thus, the trial court did not err in denying the appellant's motion to suppress. Further, the testimony at trial focused on the appellant's possession and use of the Social Security card as identification. The appellant testified that he did not obtain any additional benefits or use the card for any purpose other than employment. Thus, the jury could have reasonably concluded that during the commission of the offense, the appellant used or presented the Social Security card, but that he did not intend to defraud or harm another. Lastly, a review of the record did not include, and the appellant had not pointed to any argument before the trial court that the statute was facially vague or vague as applied to him. Thus, the appellant waived his right to appeal any alleged facial challenge to the constitutionality of Texas Penal Code Section 37.10. Accordingly, the court affirmed the trial court’s judgment.


When the defendant was charged by an information with disorderly conduct under section 42.01(a)(8), he was entitled to notice of how the manner in which he displayed a firearm was calculated to alarm because absent such notice the defendant would be unable to prepare a defense
State v. Ross
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
August 02, 2017
04-16-00821-CR
Irene Rios
Published
     The appellee was charged with disorderly conduct for displaying a firearm in a public place in a manner calculated to alarm. The appellant appealed the trial court’s order granting the appellee’s motion to quash. The State contended the trial court erred in granting the motion because the information provided sufficient notice by tracking the language of the statute. The appellate court found that the trial court held specifically alleging that the appellant pointed a shotgun at the complainant was evidentiary in nature and was not required to be included in the information. Furthermore, the court held tracking the language of section 42.01(a)(8) of the Texas Penal Code in an information was not sufficient notice because the statute used an undefined term of indeterminate or variable meaning, thereby requiring more specific pleading in order to notify the defendant of the nature of the charges against him. Because Texas was an open-carry state, an individual was entitled to openly display a firearm in public. Therefore, when the defendant was charged with disorderly conduct under section 42.01(a)(8), he was entitled to notice of how the manner in which he displayed a firearm was calculated to alarm because absent such notice the defendant would be unable to prepare a defense. Accordingly, the trial court’s order granting the appellee’s motion to quash was affirmed.


Since appellant filed no motion to quash or other pretrial motion complaining of the alleged defect that the grand jury that indicted him sat in a different Harris County District Court than the one in which his murder case was heard, he failed to preserve for review any procedural defect
State v. Matthews
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 01, 2017
14-16-00913-CR
Kem Thompson Frost
Published
     The appellant challenged his conviction for attempted capital murder. The trial court assessed punishment at confinement for 45 years in the Institutional Division of the Texas Department of Criminal Justice. The appellate court found that the indictment was properly presented to vest the 182nd District Court with jurisdiction of the appellant’s case. So, to avoid a waiver, the appellant had to raise any objection to proceeding in the 182nd as a procedural irregularity in the trial court. The appellant did not complain to the trial court about the alleged defect or about proceeding in the 182nd District Court. Thus, the appellant filed no motion to quash or other pretrial motion complaining of the alleged defect and he failed to preserve error on his complaint. Accordingly, the judgment was affirmed.


Since the appellee properly terminated the Consultant Agreement with the appellant pursuant to its terms, the Purchase Order issued pursuant to the Consultant Agreement also terminated without constituting a breach of contract between the parties
Castillo Information Technology Services, LLC v. Dyonyx, L.P.
Contracts, Damages, Torts
Texas 1st Court of Appeals
August 01, 2017
01-16-00649-CV
Evelyn V. Keyes
Published
     The appellant corporation sued the appellee for breach of contract and promissory estoppel arising out of an agreement to provide telecommunications connectivity services. The trial court denied the appellant’s motion for summary judgment and granted the appellee’s summary judgment motion, dismissing the appellant’s claims against the appellee with prejudice. The appellant filed a motion for new trial, which was overruled by operation of law. The appellate court found that the undisputed summary judgment evidence established that the appellee entered into a contract with the City of Houston to provide data circuits and connectivity services with respect to data centers in Austin and Bryan. To perform its contractual obligations with the City of Houston, the appellee then entered into the Consultant Agreement with the appellant. Further, if the appellee properly terminated the Consultant Agreement pursuant to its terms, the Purchase Order issued pursuant to the Consultant Agreement also terminated without constituting a breach of the contract between the parties. Because it was undisputed that the appellee, after being informed by the City of Houston that the City was terminating its contract with the appellee, provided thirty days’ written notice to the appellant that the Consultant Agreement would terminate, the court concluded that the appellee conclusively established that it did not breach its contract with the appellant. Finally, the court therefore held that the trial court did not err by granting the appellee’s summary judgment motion and denying the appellant’s motion. Accordingly, the court affirmed the judgment of the trial court.


In dispute between siblings over administration of their mother's testamentary trust, trial court did not err in removing appellant as trustee, appointing a receiver, approving receiver's application for approval of settlement agreement, and denying motion to continue hearing on the application
Lee v. Lee
Appellate: Civil, Contracts, Damages, Procedure, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
August 01, 2017
14-16-00258-CV
Tracy Christopher
Published
     The instant was the dispute between siblings concerning the administration of their deceased mother’s testamentary trust, the appellant challenged trial court rulings removing her as trustee, appointing the appellee company, the receiver, approving the receiver's application for approval of a settlement agreement with the appellant's brother, and denying the appellant's motion to continue the hearing on the appellee's application. The appellate court found that the statutory probate court properly exercised its trust jurisdiction over the instant suit, and thus, none of its challenged orders were void for lack of jurisdiction. Moreover, the record did not show that the trial court abused its discretion in approving the Trust’s receiver’s application for approval of its settlement agreement with the appellee individual or in denying appellant's motion for a continuance. Accordingly, the court affirmed the trial court’s judgment.


There was no summary-judgment evidence to substantiate appellant homesteaders’ claim the non-conforming copy of Texas Home Equity Note came from appellee bank, and appellants did not address specific no evidence challenges made to their breach of contract, DTPA, or Texas Finance Code claims
Worthing v. Deutsche Bank National Trust Co.
Banking and Finance, Constitution, Contracts, Creditor/Debtor, Real Property, Torts, Wills/Trusts/Probate
Texas 8th Court of Appeals
July 31, 2017
08-16-00009-CV
Ann Crawford McClure
Published
     In the instant appeal, the appellate court reviewed a summary judgment in favor of a lender and a loan servicing company following the foreclosure on the appellants homestead. The appellate court found that the no evidence portion of the hybrid motion shifted the burden to the appellants and they simply failed to meet their burden. In Vazquez, the plaintiffs had also alleged the notary's electronic signature was affixed to the assignment by someone else without his knowledge or approval. That was a far cry from merely complaining he did not read the document before signing it. The court therefore rejected the appellants claim that the assignment was forged and thus void, or that if fraudulent and voidable, that they had standing to raise that claim. Further, the appellants attached the non-conforming copy of the Texas Home Equity Note for $652,500 (Note) as a naked exhibit to their summary judgment response there was no affidavit linking the copy to the appellee bank’s discovery responses, nor were the discovery responses included. There was no summary-judgment evidence to substantiate their claim that the non-conforming copy came from the appellee bank, or if so, the context of the discovery response. Furthermore, the appellants did not address the specific no evidence challenges made to their breach of contract, DTPA, or Texas Finance Code claims. Without any responsive evidence, the trial court was required to grant the appellee bank’s no-evidence motion for summary judgment on those claims. Accordingly, the court affirmed the trial court’s judgment.


Trial court did not abuse its discretion in denying appellant’s request under Rule of Optional Completeness to admit videotaped interview between police officer and appellant, where video was not necessary to explain testimony State offered or to enable jury to gain a full understanding of it
Hernandez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 01, 2017
14-16-00346-CR
Kem Thompson Frost
Published
     In the first cause, the appellant was indicted for super aggravated assault of a child under six years of age for penetrating the victim’s anus with his sexual organ. In the second cause, appellant was indicted for super aggravated sexual assault of a child under six years of age for causing the victim’s mouth to touch his sexual organ. Appellant pleaded “not guilty” to both counts. The jury found appellant guilty as charged in the second cause and the jury found appellant guilty of indecency with a child in the first cause. The trial court assessed punishment at thirty years’ confinement in the second cause and eight years’ confinement in the first cause. The trial court ordered the sentences to run concurrently. The appellate court found that the officer’s testimony established that appellant lacked emotion during the videotaped interview. Rather than impeaching the police officer’s testimony, the videotape bolstered the officer’s sworn statements. Appellant did not posit what different conclusion the jury might draw from viewing the videotape. Nor did appellant identify any reason the jury might reach a false impression without viewing the videotape. The record did not demonstrate that the video was necessary to explain the testimony the State offered or to enable the jury to gain a full understanding of it. The court concluded the trial court did not abuse its discretion in denying appellant’s Tex. R. Evid. 107 request to admit the videotape of his interview with the police officer. Accordingly, the judgment was affirmed.


Restoration Agreement was a contract and appellant’s sovereign immunity from suit was waived for purpose of adjudicating the appellee contractor’s counterclaim for breach of the agreement; thus, trial court possessed subject matter jurisdiction to confirm the arbitrator’s award
Clear Creek Independent School District v. Cotton Commercial USA, Inc.
ADR, Contracts, Damages, Education, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
August 01, 2017
14-16-00466-CV
Kevin Jewell
Published
     Hurricane Ike damaged a number of campuses within the appellant. To reopen its campuses, the appellant entered into a Restoration Service Agreement (Restoration Agreement) with the appellee corporation, an independent general contractor. The Restoration Agreement was presented to the appellant as a time and materials contract with an attached rate sheet. The trial court denied the appellant's motion and plea, confirmed the award, and rendered a final judgment in the appellee’s favor. The appellate court found that under the applicable standard and scope of review, the court rejected the appellee’s arguments that the appellant’s failure to present a complete record of the arbitration hearing precluded review of the jurisdictional question, and the court concluded that the instant court could presume evidence was adequate to support the arbitrator’s factual findings. Further, both parties focus their briefing on the question whether the legislature had waived the appellant’s immunity from suit under the circumstances of the instant case based on Local Government Code section 271.152. Furthermore, despite the contract’s lack of detailed specificity, the Restoration Agreement nonetheless met the low threshold of an agreement for services that stated all essential terms and was therefore enforceable. Moreover, the court held that the Restoration Agreement was a contract subject to chapter 271 and the appellant’s immunity from suit was waived for the purpose of adjudicating the appellee’s counterclaim for breach of the agreement, in which the appellee sought all amounts it alleged were due and owing. Thus, the trial court possessed subject-matter jurisdiction to confirm the arbitrator’s award. Finally, the trial court possessed subject-matter jurisdiction to rule on the appellee’s motion to confirm the award, and the court affirmed the trial court’s judgment.


Appellant failed to establish that appellee’s denial of storm damage claim, alone, was a waiver of the right to an appraisal and appellee established its right to summary judgment on the appellant’s claim for breach of contract, where damage was shown to be less than the policy deductible
Pounds v. Liberty Lloyds of Texas Insurance Co.
Appellate: Civil, Contracts, Damages, Insurance, Real Property, Torts
Texas 14th Court of Appeals
August 01, 2017
14-16-00263-CV
J Brett Busby
Published
     The appellant purchased a home insurance policy from the appellee company. The appellant submitted a claim for storm damage, which the appellee denied on the ground that no storm related damages were found. The appellant then sued the appellee. When the parties were unable to resolve their dispute at mediation, the appellee invoked its right to an appraisal under the policy. The appellant resisted appraisal, and the trial court granted the appellee’s motion to compel. The appellee moved for summary judgment on the appellant’s claims, which the trial court granted. The appellate court found that the appellant failed to establish that the appellee’s denial, standing alone, was a knowing waiver of the right to an appraisal; and the appellant failed to establish that he was prejudiced as a result of the appellee’s initial denial of his claim. Further, because the actual cash value of the appraisal award was below the policy’s deductible amount, the appellee did not owe the appellant any payment under the terms of the policy and had not breached the insurance contract. Thus, the appellee established its right to summary judgment on the appellant’s claim for breach of contract. Lastly, the appellant did not produce summary judgment evidence creating a genuine issue of material fact that he had sustained an injury independent of a right to benefits under the insurance policy. Thus, the appellee established its entitlement to summary judgment on the appellant’s extra-contractual claims. Accordingly, the judgment was affirmed.


Parent’s mental health issues may have prevented her from consistently applying what she had learned as to provide a safe and clean environment for her child in her home, but evidence overall supported the finding that termination of her parental rights was in the best interest of the child
In re A.L.
Family, Gov't/Administrative, Juvenile
Texas 8th Court of Appeals
July 31, 2017
08-17-00048-CV
Ann Crawford McClure
Published
     The Texas Department of Family and Protective Services (the Department) first became involved with the individual parent and the minor after receiving an intake report that the home was unclean and the minor often did not wear any clothing. The individual parent denied the investigator access to the kitchen stating that the dogs in the kitchen would bite her. The investigator could look into the kitchen, however, and she saw that the dogs were confined in cages. The instant appeal was from a judgment terminating the parental rights of the parent to her daughter. The appellate court found that at trial, the parent disputed the caseworkers’ testimony that the toilets were typically unflushed, but the photos taken during the conservatorship case worker's November 8, 2016 visit support the caseworkers’ testimony. Further, there was evidence in the record from which the trial court could find that the condition of the home would continue to present a danger to the minor in the future and the second and third factors weighed heavily in support of the best interest finding. Furthermore, there was also evidence that the parent’s mental health issues may have prevented her from consistently applying what she had learned in order to provide and safe and clean environment for her child. That factor was neutral or weighed slightly against the best interest finding. Moreover, having reviewed all of the Holley factors, the court concluded that the evidence was legally sufficient to establish a firm conviction in the mind of the trial court that termination of the individual’s parental rights was in the child’s best interest. Finally, the evidence was factually sufficient to support the trial court’s determination that termination of the individual’s parental rights was in the child’s best interest. Because the court had found the evidence legally and factually sufficient to support one of the statutory termination grounds and the best interest finding, it was unnecessary to address Issues Five, Six, Seven, and Eight. Accordingly, the order terminating the individual’s parental rights to the minor was affirmed.


Trial court abused its discretion by denying appellant his Confrontation Clause right to question complainant's mother about her interest in the outcome of parental rights termination proceedings against him and complainant and therefore her possible bias in testifying against him
Jones v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 01, 2017
01-15-00717-CR
Evelyn Keyes
Published
     A jury convicted appellant of the third-degree felony offense of assault on a family member, second offender. After appellant pleaded true to the allegations in two enhancement paragraphs, the trial court assessed his punishment at twenty-five years’ confinement. The appellate court found that a defendant’s constitutional right to confrontation was violated when appropriate cross-examination was limited. The trial court had no discretion to so drastically curtail the defendant’s cross-examination as to leave him unable to show why the witness might have been biased or otherwise lacked the level of impartiality expected of a witness. However, the proponent of the evidence “must establish some causal connection or logical relationship between the source of bias and the witness’ ‘vulnerable relationship’ or potential bias or prejudice for the State, or testimony at trial.” And, appellant argued that his questioning could have shown that the complainant's mother was biased against him because of her interest as a potential managing conservator of his child and that, therefore, the trial court erred in not allowing him to question her as to ongoing parental rights termination proceedings against himself and the complainant. Further, Texas Family Code section 153.004(c) required that, in custody proceedings, the family court “shall consider the commission of family violence in determining whether to deny, restrict, or limit possession of a child by a parent.” Furthermore, the court held that the trial court abused its discretion by denying appellant his constitutional right under the Confrontation Clause to question the complainant's mother about her interest in the outcome of ongoing parental rights termination proceedings against him and the complainant and therefore her possible bias in testifying against him. Lastly, the trial court’s error in denying appellant the right to cross-examine the complainant's mother about her interest in the termination of parental rights proceedings and the attendant custody dispute was harmful to appellant’s case. Accordingly, the judgment was reversed and remanded.


Appellee electrical utility could not have reasonably foreseen that alleged improper installation of a stirrup clamp decades ago would result in a power outage of traffic signals where one or two drivers would violate their statutory duty to treat an inoperable traffic light as a four-way stop
Rampersad v. Centerpoint Energy Houston Electric, LLC
Litigation: Personal Injury, Torts, Transportation
Texas 1st Court of Appeals
August 01, 2017
01-16-00675-CV
Russell Lloyd
Published
     The appellant was traveling on his motorcycle when he was struck by another driver as he entered the intersection. The appellant’s left leg was severely injured in the accident, which ultimately required amputation of his leg below the knee. Shortly before the collision, at approximately 3:55 p.m., a stirrup clamp connecting the appellee’s primary power line to a utility pole approximately 2.5 miles away failed, causing the line to fall. At the time of the accident, the appellee had not been notified of the inoperative traffic lights at the intersection. The appellant sued the appellee for negligence, alleging, among other things, that the appellee failed to properly install, inspect, and maintain the stirrup clamp. The appellee filed a hybrid no-evidence and traditional motion for summary judgment on the appellant’s claims as well as a motion to exclude the testimony of the appellant’s designated expert. Following a hearing, the trial court granted the appellee’s summary judgment motion and denied the appellee’s motion to exclude the expert’s testimony as moot. The appellant filed a motion for new trial and motion for reconsideration which the trial court denied. The appellate court found that the appellee could not have reasonably foreseen that the alleged improper installation of a stirrup clamp would lead to its failure thirty-three years later and result in a power outage affecting traffic signals at an intersection more than two miles away, in which one or two drivers would violate their statutory duty to treat an inoperable traffic light as a four-way stop. The yield of the right of way, or entering the intersection without stopping, was irrelevant to the question of the appellee’s liability. At least one of the drivers did not comply with the governing traffic laws by failing to stop or yield the right of way, and it was that failure that proximately caused the appellant’s injuries. Because the driver conduct constituted an intervening and superseding cause of the collision, the appellee could not be held liable for the appellant’s injuries. Accordingly, the court affirmed the trial court’s judgment.


Respondent abused his discretion by denying petitioner’s motion to dismiss or transfer and retaining venue in Hidalgo County because Starr County court had already made a venue determination before plaintiffs nonsuited the wrongful death and personal injury action and refiled in Hidalgo County
In re Lowe's Home Centers, L.L.C.
Appellate: Civil, Courts, Discovery, Gov't/Administrative, Procedure, Torts
Texas 13th Court of Appeals
July 28, 2017
13-16-00493-CV
Nelda V. Rodriguez
Published
     By petition for writ of mandamus, the petitioner company's asserted that the plaintiffs in the underlying suit could not fraudulently secure venue in one county and then, once the fraud is discovered, nonsuit and refile the same claims against the same parties in another county. The underlying wrongful death and personal injury case was originally filed against the petitioner and other defendants in Starr County. The petitioner moved to transfer venue to Cameron County; however, the trial court denied the motion to transfer. During subsequent discovery, the petitioner discovered that the plaintiffs’ venue pleadings and affidavit were at best, incorrect, and at worst, fraudulent. The petitioner notified counsel for the plaintiffs and proposed that they agreed to transfer venue to Cameron County. Instead, the plaintiffs nonsuited the case in Starr County and refiled a substantially similar case in Hidalgo County. In Hidalgo County, the petitioner moved to dismiss the lawsuit, or alternatively, to transfer the case back to Starr County. The trial court denied both motions. The appellate court found that the respondent abused his discretion by denying the petitioner motion to dismiss or transfer and retaining venue in Hidalgo County because the Starr County court had already made a venue determination, and that determination could not be overcome by the plaintiffs’ nonsuit and subsequent filing in another county. Further, the court noted that appellate courts look with disfavor on nonsuits that were filed to circumvent legal restrictions or unfavorable rulings. Accordingly, the court conditionally granted the petition for writ of mandamus.


Doctrine of dominant jurisdiction in State’s Texas Clean Air Act enforcement action against auto maker did not preclude later-filed suits by the Counties, but required they be abated until any impediment was removed; thus, trial courts, and multi-district litigation court maintained jurisdiction
In re Volkswagen Clean Diesel Litigation
Courts, Environmental, Gov't/Administrative, Procedure, Torts
Texas 3rd Court of Appeals
July 28, 2017
03-16-00718-CV
Jeff Rose
Published
     The instant appeal presented issues concerning State and local-government enforcement of the Texas Clean Air Act (TCAA). The appellant, the State of Texas, and a number of Texas counties filed the underlying TCAA-enforcement lawsuits in various counties across Texas against the appellee after the appellee admitted that it had installed emissions defeat devices on certain of its diesel vehicles manufactured in the United States between 2009 and 2016. After the Texas Judicial Panel on Multidistrict Litigation transferred the TCAA-enforcement suits to Travis County District Court for consolidated and coordinated pretrial proceedings, the State filed pleas to the jurisdiction challenging the pretrial court’s jurisdiction over the eighteen county suits that had been filed after the State’s suit. The appellate court found that the State contended that the TCAA-enforcement provisions taken together suggest that the Legislature intended to adopt a system similar to the doctrine of dominant jurisdiction, in which the first-filed lawsuit was the proper place to determine all inherently related claims deriving from the same fact pattern. But even if that were the case, the doctrine of dominant jurisdiction did not preclude later-filed suits, it simply required that they be abated until the impediment to the later-filed suit was removed. And particularly relevant in the instant case, the doctrine of dominant jurisdiction presumes the later-filed court’s jurisdiction over the claims filed in its court, although requiring abatement of the later-filed cases until the first-filed case was resolved. Thus, the trial courts, and thus the MDL pretrial court, have jurisdiction over the later-filing counties’ TCAA-enforcement actions. Accordingly, the judgment was affirmed.


Courts in which later-filed Texas Clean Air Act cases against Volkswagen were filed, and MDL pretrial court, should have granted State’s plea in abatement and abated later-filed cases until State’s first-filed case was resolved, and MDL pretrial court abused its discretion in failing to do so
In re Volkswagen Clean Diesel Litigation
Environmental, Gov't/Administrative, Procedure, Torts
Texas 3rd Court of Appeals
July 28, 2017
03-17-00478-CV
Jeff Rose
Published
     The State sought mandamus relief from the MDL pre-trial court’s refusal to abate eighteen later-filed cases involving the State’s and various counties’ enforcement of the Texas Clean Air Act against Volkswagen. The principal issue in the instant mandamus proceeding, one of first impression, was whether, under that unique factual and procedural posture, the common-law doctrine of dominant jurisdiction required that the counties’ later-filed enforcement suits, pending in the MDL, be abated until resolution of the State’s enforcement suit. The appellate court found that the court's decision here was not an assault on the MDL scheme, but rather was limited to the unique nature and procedural posture of the cases before the court. Although fairly characterized as falling within the MDL statute’s broad scope of sharing common questions of fact, the cases here were also inherently interrelated, and thus subject to the dominant-jurisdiction doctrine, because the later-filed suits all seek to recover civil penalties from the same TCAA violators for the same TCAA violations as did the State’s case. Further, the district court acquired dominant jurisdiction over TCAA violations in 252 Texas counties, including the county parties here, when the State filed its enforcement action in that court. Furthermore, the courts in which the later-filed cases were filed and now the MDL pretrial court in their stead should have granted the State’s plea in abatement and abated the later-filed cases until the State’s first-filed case was resolved. The MDL pretrial court abused its discretion in failing to do so. Finally, the court conditionally grant mandamus relief and direct the pretrial court to grant the State’s pleas in abatement as to the later-filing counties. The court were confident the pretrial court will promptly comply, and the court writ would issue only if it did not.


Court conditionally granted mandamus and directed trial court to order wife to remove the divorce decree, which was on appeal, from real property records as a muniment of title and return possession of the real properties to the relators, since the husband filed a supersedeas bond
In re Fuentes
Creditor/Debtor, Family, Procedure, Real Property
Texas 1st Court of Appeals
July 27, 2017
01-16-00952-CV
Jane Bland
Published
     In the instant original proceeding, the relators sought relief from the trial court’s denial of their requests to enforce a supersedeas bond, which was filed to stay execution of a divorce decree while that decree was on appeal. The appellate court found that the trial court’s order denying relief was not a final judgment. Therefore, res judicata did not bar the claims in the proceedings. Further, the individual attempted execution on the decree by filing it as a muniment of title before it had become a final judgment and obtained possession of the properties before enforcement was permitted. The purpose of restoring the status quo that existed prior to the superseded judgment would be defeated if judgment creditors were allowed to persist with execution on judgments begun before the bond was filed. Therefore, the court held that the supersedeas bond required the individual to desist enforcement efforts with respect to the El Paso properties. Although the trial court had discretion in issuing a writ of supersedeas when a writ of execution has not issued, the court need not determine whether refusing to issue the writ was an abuse of discretion in the instant case because the court have conditionally granted relators’ request to compel orders requiring removal of the muniment of title and return of possession. Absent a failure to comply with the orders, enforcement of the supersedeas bond did not require compelling the additional issuance of a writ of supersedeas. Furthermore, although the first relator disavowed ownership of the El Paso properties, he also lacked an adequate remedy by appeal because his posted supersedeas bond stayed enforcement of the decree and a violation of the stay could not be remedied by appeal. Accordingly, the court conditionally granted the petitions for writ of mandamus and direct the trial court to issue orders compelling the individudal to remove the decree from the El Paso real property records as a muniment of title and return possession of the El Paso properties to the second and third relators.


Based on evidence of appellant’s recidivism, violent behavior and drug problems, the trial court did not abuse its discretion when it sentenced the appellant to confinement for forty years for possession of a controlled substance, methamphetamine, with intent to deliver
Alvarez v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
July 27, 2017
11-16-00176-CR
Mike Willson
Published
     The appellant pleaded guilty to the first-degree felony offense of possession of a controlled substance, methamphetamine, with intent to deliver. The trial court assessed punishment at confinement for forty years and sentenced him. The appellate court found that the trial court heard testimony about how the appellant had been granted community supervision for felony possession of a controlled substance, violated the conditions of his community supervision, spent time in state jail and was released, committed additional offenses and was arrested again, and reoffended upon subsequent release on bond. The trial court also heard about the appellant’s belligerent and violent behavior, which had grown increasingly worse, as well as his drug problems and domestic violence. The trial court also heard arguments from counsel and reviewed the presentence investigation report before it made its decision. Thus, the court found nothing in it to indicate that the appellant’s sentence was grossly disproportionate to his offense. Based on the evidence presented, the trial court did not abuse its discretion when it sentenced the appellant to confinement for forty years. Thus, the court held that the appellant’s sentence did not constitute cruel and unusual punishment. Accordingly, the court affirmed the judgment of the trial court.


First cousin picked up the gun and accidentally shot appellant, and that evidence could not support appellant’s negligent activity theory because it did not show any ongoing activity by appellee, and appellee had no duty to appellant as a social host to prevent a guest from injuring appellant
Hernandez v. Gonzalez-Flores
Litigation: Personal Injury, Real Property, Torts
Texas 14th Court of Appeals
July 27, 2017
14-16-00197-CV
J Brett Busby
Published
     The appellant was accidentally shot in the ankle by a guest at a gathering hosted by the appellee. The appellant sued the appellee for negligence, alleging theories of premises liability as well as negligent activity. The appellee filed a traditional and no-evidence motion for summary judgment in his favor, which the trial court granted. The appellate court found that under the objective element, an extreme risk was not a remote possibility of injury or even a high probability of minor harm, but the likelihood of serious injury to the appellant. Under the subjective element, actual awareness means the appellee knew about the risk, but his acts or omissions demonstrated he did not care. Further, it need not decide how much more evidence of risk would be required to raise a fact issue regarding gross negligence because the record there was clear that no one at the party appeared intoxicated, the gun had been used safely by guests that evening, and the appellant herself did not feel unsafe. Furthermore, the distinction between negligent activity and premises liability theories was sometimes unclear because almost every artificial condition could be said to have been created by an activity. To support a negligent activity theory, the appellant’s injury must be a result of an ongoing activity by the premises owner. Leaving a potentially dangerous object unattended was not an ongoing activity. Lastly, leaving the gun on the table during the gathering could not support a negligent activity theory because it was not an ongoing activity by the appellee. The appellant and the appellee's cousins were standing around the table with the gun on it when the first cousin picked it up and accidentally shot the appellant in the ankle. The appellee was not near the table. The evidence could not support the appellant’s negligent activity theory because it did not show any ongoing activity by the appellee. The appellee had no duty to the appellant as a social host to prevent a guest from injuring the appellant. Accordingly, the judgment was affirmed.


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.