No negligence or DTPA violation where staffing agency did not perform complete criminal background check when placing accounting professional with prior conviction who allegedly embezzled from employers
Ryan Constr. Serv., LLC v. Robert Half Int'l, Inc.
Consumer, Contracts, Employment, Torts
Texas 14th Court of Appeals
November 16, 2017
14-16-00181-CV
Kem Thompson Frost
Published
Staffing Agency provided Employers with a temp-to-hire accounting professional, who allegedly embezzled $160,000 from Employers.  Employers asserted claims against Agency for negligence and violation of the Deceptive Trade Practices Act (DTPA) based on its failure to conduct a complete criminal background check, which would have revealed the employee's thirteen-year-old conviction for securing execution of a document by deception. The trial court granted summary judgment for Agency; Employers appealed.  The appellate court affirmed, finding no breach of any duty establishing negligence or any misrepresentations violative of the DTPA.  First, because Agency's contract with Employers specifically stated it had not conducted a criminal background check, at most Agency held an assumed duty to run a limited seven-year criminal background check for its own purposes when the employee converted from temp to permanent status.  That limited check did not reveal the prior conviction.  Second, Agency's statements that it "screened" applicants and ran "background checks" were not false, misleading, or deceptive where Agency 1) performed an initial "background check" that entailed calling the employee’s references and asking select questions about prior employment; 2) provided a document with its contract explaining it did not perform criminal background checks due to legal limitations on sharing the results; and 3) did not report the results of its own limited check to Employer.  Third, Employers submitted no evidence Agency made misrepresentations; failed to disclose known criminal history; or acted unconscionably by not revealing its internal criminal check went back only seven years.  Fourth, the court rendered any improper exclusion of exhibits harmless by considering those exhibits itself on appeal.  The appellate court accordingly affirmed summary judgment for Agency.  


No error admitting Defendant's prior conviction for assaulting his girlfriend to explain her recantation, rebut defensive theory of fabrication, and establish nature of their relationship, where court included limiting instruction in jury charge shortly thereafter
Gonzalez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 21, 2017
14-16-00739-CR
Kevin Jewell
Published
Defendant appealed his second conviction for assaulting his girlfriend, arguing the court 1) improperly admitted his prior conviction as evidence of guilt; 2) failed to issue a contemporaneous limiting instruction; and 3) overruled objections to prosecutorial statements during closing.  First, the appellate court found no abuse of discretion admitting Defendant’s prior conviction to explain the victim’s recantation and rebut the defensive theory that she fabricated her initial allegations.  Second, the appellate court found failure to give a contemporaneous instruction harmless, where the court issued a limiting instruction in the jury charge almost immediately after admission of the evidence; and where the prosecution made no attempt to rely on the prior conviction for improper purposes in the interim.   Third, when viewed in context, prosecutorial statements during closing that jurors could use Defendant's prior “to consider the nature and type of relationship” between Defendant and the victim fell within the bounds of permissible jury argument.  The court accordingly affirmed Defendant’s conviction. 


No summary judgment for Buyer seeking specific performance of purchase option without sufficient cash to close
Hogan v. Goldsmith
Contracts, Procedure, Real Property
Texas 11th Court of Appeals
November 16, 2017
11-15-00330-CV
Jim R. Wright
Published
Buyer sued Seller for specific performance pursuant to a lease-purchase agreement and moved for partial summary judgment, claiming he met all conditions precedent to exercise his purchase option.  Seller responded with evidence that Buyer lacked funds to close.  The trial court granted summary judgment for Buyer; Seller appealed.  The appellate court found that once Seller produced evidence that Buyer lacked sufficient cash to close, Buyer had to plead and prove he tendered payment to Seller; or at the very least, that he had the full amount owed Seller in cash.  Absent such proof Buyer did not show that he either complied with the purchase option or was ready, willing, and able to perform its terms.  The appellate court accordingly reversed summary judgment for Buyer and remanded for further proceedings.


Blood-alchohol extrapolation evidence admissible where expert knew when Defendant last drank; when and how much he last ate; and time of breathalyzers
Corley v. State
Criminal, Evidence
Texas 14th Court of Appeals
November 14, 2017
14-16-00691-CR
Kem Thompson Frost
Published
Defendant appealed his conviction for driving while intoxicated, arguing the court erred in admitting unreliable expert testimony on retrograde-extrapolation to compute Defendant’s blood alcohol level at the time of driving from two breathalyzers taken an hour later.  The appellate court found the expert had sufficient information to compute Defendant’s blood-alcohol level while driving where she knew 1) how much and when Defendant last ate; 2) the time of his last drink; and 3) the time and results of his breath tests.  Based on that information, the trial court reasonably could have concluded the extrapolation testimony was reliable and helpful.  The appellate court accordingly affirmed Defendant's conviction.


Error claiming lack of neutrality due to consideration of outside evidence must be preserved below; nonetheless, the record showed Defendant orchestrated robbery without considering outside evidence
Elizondo v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 14, 2017
14-16-00871-CR
Kem Thompson Frost
Published
Defendant appealed his forty-year sentence for three counts of aggravated robbery, arguing lack of neutrality based on consideration of outside evidence where he left the crime scene before co-conspirators shot two of the victims.  As a matter of first impression, the appellate court ruled such error must be preserved below.  Though Defendant failed to do so, the court nonetheless reviewed the issue arguendo.  The court found the trial judge reasonably could have inferred that Defendant orchestrated the robbery from record evidence that he 1) had essential knowledge of the victims and their home; 2) gathered co-conspirators; 3) drove them to get tools and to the crime scene; 4) gave commands during the robbery (which included duct-taping plastic bags over the victims' heads); and 5) left to get gasoline, purportedly to kill the victims.  The court accordingly affirmed Defendant's sentence.


Homeowners' second garage stands on appeal despite neighbors' efforts to enforce deed restrictions
Garden Oaks Maint. Org. v. Chang
Contracts, Gov't/Administrative, Procedure, Real Property
Texas 14th Court of Appeals
November 14, 2017
14-16-00537-CV
Marc W. Brown
Published
Maintenance Organization formed by three neighbors to enforce a single-garage deed restriction sued Homeowners who built their house following approved plans, but later installed a second garage door in the wall of a former "studio."  Homeowners counterclaimed for a declaration that Organization lacked authority to enforce deed restrictions as a property owners' association under the Texas Property Code.  The trial court entered four declarations in Homeowners' favor, but declined to award attorney fees.  Both sides appealed.  The appellate court affirmed declaratory judgment for Homeowners as to the second garage; but reversed two broader declarations and affirmed denial of fees.  First, Homeowners’ counterclaims did not merely duplicate deed restriction issues raised in Organization’s complaint because Homeowners requested additional relief preventing future enforcement attempts by Organization.  Second, no error arose invalidating Organization’s attempt to form a petition committee and amend restrictive covenants just months after dissolution of a previous petition committee, as Texas Property Code § 201.005 requires a five-year waiting period.  Third, the trial court erred in declaring bylaws invalid absent proof those bylaws were not filed in county records.  Fourth, the trial court erred in declaring Organization lacked authority to enforce deed restrictions in general where the jury expressly limited its findings to the single-garage restriction and Homeowners did not prove otherwise.  Fifth, no error arose in refusing to award attorney fees on claims presenting issues of apparent first impression and requiring statutory interpretation; and where one side committed a breach, but the other side's behavior excused that breach.  The appellate court accordingly affirmed denial of attorney fees and the judgment allowing Homeowners' second garage to stand; but deleted the broader declarations.


Summary foreclosure judgment for Lender on original loans affirmed where voluntary dismissal of bankruptcy prior to plan confirmation rendered bankruptcy refinance agreement unenforceable, despite Borrower's reliance
Badalich v. First Nat'l Bank of Winnsboro
Banking and Finance, Bankruptcy, Creditor/Debtor
Texas 12th Court of Appeals
November 15, 2017
12-16-00258-CV
James T. Worthen
Published
Borrowers appealed summary judgment awarding over $2M in favor of Lender and ordering judicial foreclosure, arguing they raised material issues of fact whether Lender failed to comply with a bankruptcy refinance agreement.  The appellate court found the refinance agreement unenforceable because one of the Borrowers voluntarily dismissed his bankruptcy prior to confirmation of a Chapter 11 plan, returning Borrowers to their prebankruptcy positions.  Without an enforceable refinance agreement, Borrowers conceded Lender could enforce the original loans.  Moreover, equitable estoppel did not apply where Borrowers presented no evidence that Lender represented it would honor the refinance agreement after dismissal of the bankruptcy.  Instead, Borrower’s affidavit claiming he dismissed the bankruptcy in reliance reflected only his subjective belief and did not establish Lender made promises equitably precluding collection on the original loans.  The appellate court accordingly affirmed summary foreclosure judgment for Lender.    


 

Appellant had not shown ineffective assistance by counsel in failing to object to expert opinion on credibility of child complainant, or that visiting judge did not take oath of office, or summoning witness fee prevented him from process on them or his constitutional right to confront them
Macias v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 07, 2017
01-16-00664-CR
Evelyn V. Keyes
Published
     The jury found the appellant guilty of indecency with a child by exposure, but it was unable to reach a verdict on the charge of indecency with a child by contact, and the trial court declared a mistrial as to that charge. The appellate court found that the appellant had not established by a preponderance of the evidence that a reasonable probability existed that, but for counsel’s failure to object to the individual's testimony concerning the complainant’s credibility, the result of the proceeding would have been different. The court held that appellant had not established that his trial counsel rendered constitutionally ineffective assistance. Because the appellant had not made a showing that material and favorable witnesses were available to be called by him, the court could not conclude that the $5 fee for summoning witnesses, as applied in that case, operated to deny appellant his right to have compulsory process for obtaining witnesses in his favor. Furthermore, the State called four witnesses to physically appear and testify at trial against the appellant, and the appellant had the opportunity to, and did, cross-examine each witness. The appellant had not established how constructive notice of the $5 fee for summoning witnesses prevented him from exercising his constitutional right to be confronted with the witnesses against him. Finally, the court therefore concluded, pursuant to London v. State, that the appellant had not demonstrated that article 102.011(a)(3), as applied to him, operated to deny him his constitutional rights to confront the witnesses against him or to have compulsory process for obtaining witnesses in his favor. Accordingly, the trial court's judgment was affirmed.


Public policies underlying Peeler doctrine did not support extending it to restitution of monies paid for post-conviction legal services that were never performed, but appellee’s theft claim accrued more than two years before it was asserted and appellee failed show the discovery rule applied
Gonyea v. Scott
Contracts, Damages, Ethics, Procedure, Professional Responsibility, Torts
Texas 1st Court of Appeals
November 02, 2017
01-16-00292-CV
Harvey Brown
Published
     The appellee who had been convicted of several criminal offenses hired attorney to file an application for writ of habeas corpus on his behalf. The appellee sued him, asserting two causes of action. His first cause of action was for breach of contract. He sought $25,000 in restitution damages, which was the full amount of the fee paid under the terms of the contract. His second cause of action was for theft and sought $15,000 in damages, which was the amount of over payment that the appellant never returned. After answering the lawsuit, the appellant moved for summary judgment, the trial court entered judgment in the appellee’s favor on both claims for the damages sought, plus reasonable and necessary attorney’s fees. The appellate court affirmed the judgment as to the breach-of-contract claim, holding that the public policies underlying the Peeler doctrine did not support extending the doctrine to restitution of monies paid for post-conviction legal services that were never performed. However, the court reversed and rendered judgment in the appellant’s favor on the theft claim, holding that the claim accrued more than two years before it was asserted and that the appellee failed to meet his burden to prove that the discovery rule applied.


Beneficiary lacked standing to pursue a fee-forfeiture claim based on alleged deficiencies in opposing counsel’s legal advice to estate’s independent executor, appellant, however, trial court failed to rule the appellant's legal fees and expenses could be paid from the estate by statute
In Estate of Nunu
Contracts, Courts, Damages, Procedure, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
November 02, 2017
14-16-00394-CV
Tracy Christopher
Published
     The appellant sisters were each beneficiaries of one-third of the estate of their mother, the decedent, (the Estate). The first appellant was the independent executor of the Estate, and she previously was represented in that capacity by the second appellant, who was an attorney. The probate case originally had been assigned to statutory county Probate Court No. 4 in Harris County. In that court, the second appellant allegedly accused the first appellant's attorney of misconduct and moved to recuse the Judge on the ground that the attorney's father previously was the presiding judge of Probate Court No. 4. After Judge voluntarily recused herself, the case was transferred to statutory county Probate Court No. 1. In the instant appeal, an estate’s beneficiary, the appellants, sought reversal of (a) the trial court’s ruling that the beneficiary had no claim for forfeiture of opposing counsel’s attorneys’ fees, (b) the trial court’s assumed denial of the beneficiary’s challenge to the independent executor’s entitlement to use estate funds to pay her attorneys’ fees and expenses in the case, (c) the denial of the beneficiary’s application to compel distribution of the estate, and (d) the denial of the beneficiary’s motion to recuse the trial judge. The appellate court affirmed the portion of the judgment in which the trial court denied the second appellant's “Application for Attorney Fee Forfeiture and any claims or causes of action relating thereto.” The court agreed with the trial court that the beneficiary lacked standing to pursue a fee-forfeiture claim based on alleged deficiencies in opposing counsel’s legal advice to the estate’s independent executor. The court also found no error in the denial of the motion to recuse. However, the court found error in the trial court’s failure to rule on the extent to which the first appellant's legal fees and expenses could be paid from the estate, and on its failure to order distribution of the estate as statutorily required. The court accordingly affirmed and reversed in part, and remanded the cause to the trial court.


By creating a non-designated bus stop and activating bus's flashing lights, defendant’s bus driver proximately caused deceased’s death by wrongful acts and omissions, and the District was vicariously liable because the district’s school bus, a motor vehicle, was involved in the accident
La Joya Independent School District v. Gonzalez
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts, Transportation
Texas 13th Court of Appeals
November 02, 2017
13-16-00426-CV
Dori Contreras
Published
     The appellee individually and as next friend of a deceased minor, sued the appellant after an accident that resulted in the deceased's death. The instant was an appeal from the trial court’s denial of a plea to the jurisdiction filed by the appellant. The appellate court found that the evidence merely showing that the governmental entity investigated an accident was insufficient to show actual notice. But here, there was also evidence indicating that the individual reported the accident, and the specific details of how he might have been responsible for the accident, to a supervisor. Thus, the court concluded that there was a fact issue as to whether the appellant had actual notice of its alleged fault producing or contributing to the deceased's death. The trial court did not err in denying the appellant's plea to the jurisdiction on those grounds. Further, the appellee's pleadings were sufficient to show that the deceased's death arose from the operation or use of a motor-driven vehicle. Therefore, the trial court did not err by denying the plea to the jurisdiction on those grounds. Accordingly, the court affirmed the trial court’s judgment denying the appellant's plea to the jurisdiction.


Trial court did not have jurisdiction to conduct criminal trial because the appellate mandate on State’s appeal of trial court’s grant of appellant’s motion to suppress had not yet issued, and thus, State could retry defendant without violating constitutional protections against double jeopardy
Ex parte Macias
Constitution, Courts, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 01, 2017
PD-0480-17
Sharon Keller
Published
     The appellant was charged with committing family-violence assault. He filed a motion to suppress, which the trial court granted. The State appealed and filed a motion to stay further trial court proceedings, which the appellate court granted. The appellate court handed down an opinion reversing the trial court. The opinion made no explicit statement about the stay that the appellate court had earlier granted. Concluding that trial proceedings were a nullity and that it could not even declare a mistrial, the trial court dismissed the jury. The appellant subsequently filed a pretrial habeas application, alleging that any future trial on the charged offense would violate double jeopardy. The trial court denied the application, and the appellant appealed. After exhausting the administrative remedies, the trial court granted a motion to suppress evidence. The Texas Court of Criminal Appeals found that the trial court was correct in concluding that it lacked jurisdiction over the case because the appellate mandate had not yet issued. The appellate court was incorrect in concluding otherwise. Accordingly, the court reversed the judgment of the appellate court and affirmed the judgment of the trial court.


Trial court committed constitutional error by failing to require State to make an election of the sexual assault incident upon which it relied for conviction, but error was harmless, and appellate court’s reversal was reversed, and remanded to address appellant’s remaining point of error
Owings v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 01, 2017
PD-1184-16
Bert Richardson
Published
     The appellant was convicted by a jury of aggravated sexual assault of a child and sentenced to thirty years in prison. The appellate court reversed the appellant’s conviction, holding that the trial court committed harmful constitutional error in failing to require the State to make an election of the incident upon which it relied for conviction. The Texas Court of Criminal Appeals agreed that the trial court committed constitutional error by failing to require the State to make an election of the incident upon which it relied for conviction. However, the court disagreed with the appellate court’s harm analysis. Thus, the trial court’s erroneous failure to require the State to make an election was harmless. As such, the court reversed and remanded the case to the appellate court to address the appellant’s remaining point of error.


Statutory forum non conveniens did not govern appellant’s claims and was inapplicable; motions to dismiss were improvidently granted, either because there was no hearing or the ruling was not timely; however, trial judge did not violate Supremacy Clause in granting dismissals and was not biased
Daniels v. State of New Mexico
Courts, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
October 31, 2017
08-14-00060-CV
Yvonne T. Rodriguez
Published
     The instant appeal involved a pro se appellant, who was appealing two trial courts’ orders dismissing the appellees. Appellant’s lawsuit alleged various causes of action: fraud, breach of fiduciary duty, defamation, malicious prosecution, false imprisonment, deprivation of first amendment rights, deprivation of equal protection and due process, conspiracy to defraud, and conspiracy to obstruct justice. Appellees were dismissed based on forum non conveniens or lack of personal jurisdiction, except for three media appellees who were dismissed under the Texas Citizens Participation Act (TCPA). The appellate court found that, given that the appellant’s claims did not sound in personal injury, the court found the appellant’s claim that TEX.CIV.PRAC.&REM.CODE ANN. Section 71.051 governed his case unpersuasive. Statutory forum non conveniens did not govern appellant’s claims and so was inapplicable. Further, the statute required a hearing on the Media appellees’ dismissal motions, and without such a hearing the motions to dismiss could not be granted. On the other hand, if the hearing on February 20 was, in fact, the motion hearing, then the dismissal motion was overruled by operation of law when a ruling was not made within 30 days of February 20. The trial court’s April 18 order granting the motions was invalid. In either case, the motions to dismiss were improvidently granted. Furthermore, the appellant’s contention that the dismissal orders were void due to the lack of a hearing was meritless, which rendered his issue regarding the 243rd trial court’s plenary power moot. And, the appellant’s claims were dismissed based on forum non conveniens—not because the trial court refused to hear the supposed federal claims. Lastly, the repeated remonstrations by the trial Judge did not show a deep-seated favoritism or antagonism; at worst, they showed annoyance which was insufficient to demonstrate judicial bias rendering fair judgment impossible. Accordingly, the court vacated in part and affirmed in part.


The extraneous-offense evidence of the appellant’s physical assaults of the victim’s sisters was substantially more prejudicial than probative and, thus, harmful when erroneously admitted and reversible error
Aguillen v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
October 31, 2017
06-17-00004-CR
Josh R. Morriss III
Published
     The jury found the appellant guilty of the two counts of indecency and he was sentenced to twenty years’ imprisonment for each count, to run consecutively. The appellate court found that evidence of the appellant’s physical abuse of the victim’s sisters had no relevant bearing on whether the appellant inappropriately touched the victim on the two occasions he was alleged to have done so. Contrary to the State’s contention, the extraneous-offense evidence involving the victim’s sisters was not admissible pursuant to Article 38.37 of the Texas Code of Criminal Procedure. Further, to include the extraneous-offense evidence involving the victim’s sisters showed merely that it was a part of the appellant’s bad character to physically assault the other children living in the home; but it had little, if any, relevance to the matter of whether the appellant committed the offense of indecency with a child by contact against the victim on the two occasions he was alleged to have done so. That was the precise purpose of Rule 404(b)’s prohibition against the use of character evidence. Furthermore, the fact that the victim’s testimony appeared consistent with the victim’s sister's testimony regarding the physical abuse of the sisters did not rebut the appellant’s defense that the victim was being dishonest about the charged-offenses. It showed only that the girls were most likely telling the truth about the appellant physically assaulting them. Lastly, the extraneous-offense evidence of the appellant’s physical assaults of the victim’s sisters was substantially more prejudicial than probative and, thus, harmful when erroneously admitted. Accordingly, the court reversed the trial court’s judgment and remanded the case to the trial court for a new trial.


Trial court erred in determining that the appellee unambiguously and unequivocally invoked his right to counsel, and the court sustained the State’s sole issue and reversed the trial court’s order striking the portions of the videotaped statement occurring after the alleged invocation of counsel
State v. Norris
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 31, 2017
14-16-00455-CR
Martha H. Jamison
Published
     The instant was an interlocutory challenge from the grant of a motion to suppress a confession. The appellee was charged with capital murder in the course of a robbery. The trial court granted the appellee’s motion to suppress his confession based on a finding that the appellee had unequivocally and unambiguously invoked his right to counsel during questioning. The appellate court found that viewed in conjunction with the first part of the appellee’s statement, which the individual detective interrupted, the statement reflected in the transcript again appeared to be forward-looking. The appellee had indicated that he was okay talking to the detective. Viewed from the standpoint of a reasonable officer and under the totality of the circumstances, the statement in the transcript was not an unambiguous and unequivocal invocation of the right to counsel. Further, the trial court erred in determining that the appellee unambiguously and unequivocally invoked his right to counsel, the court sustained the State’s sole issue and reversed the trial court’s order striking the portions of the videotaped statement occurring after the alleged invocation of counsel. The court remanded for further proceedings consistent with the instant opinion.


Appellant’s broad waiver of all defenses available to guarantors under the anti-deficiency statute necessarily included a defense based on Property Code 51.003(a)’s two-year statute of limitations
Godoy v. Wells Fargo Bank, N.A.
Banking and Finance, Contracts, Creditor/Debtor, Procedure, Real Property
Texas 14th Court of Appeals
October 31, 2017
14-16-00599-CV
William J. Boyce
Published
     The appellee bank sued the appellant to collect a deficiency on a debt that the appellant guaranteed. The appellant moved for summary judgment on grounds that the appellee’s claims were barred by a two-year statute of limitations applying to deficiency claims, the appellee moved for partial summary judgment on grounds that the appellant contractually waived any limitations defense. The trial court denied the appellant’s motion for summary judgment, granted the appellee’s motion as well as a subsequent motion for summary judgment on the deficiency claim, and signed a final judgment in favor of the appellee. The appellate court found that the appellant’s broad waiver of all defenses available to guarantors under the anti-deficiency statute necessarily included a defense based on Property Code 51.003(a)’s two-year statute of limitations. Further, the appellee raised the pleading defect in its response to the appellant’s motion for new trial, in which he again asserted the same public policy arguments with respect to limitations; and the trial court affirmatively recited that it heard and considered Defendant’s Motion for New Trial and the appellee’s response in its order denying the motion. Accordingly, the court affirmed the trial court’s judgment.


Twenty-day period to bring an interlocutory appeal ran separately from each motion, and petitioners timely filed their appeal, where the City’s motion for summary judgment was easily distinguishable from their original plea to the jurisdiction
City of Magnolia 4A Economic Development Corp. v. Smedley
Appellate: Civil, Constitution, Damages, Environmental, Gov't/Administrative, Procedure, Real Property, Torts
The Supreme Court of Texas
October 27, 2017
16-0718
Per Curiam
Published
     In the instant case, the court must determine whether the twenty-day period to bring an interlocutory appeal ran from the petitioners’ initial plea to the jurisdiction or from their later motion for summary judgment, both of which challenged the respondent’s claims on similar jurisdictional grounds. The court held that the twenty-day period ran separately from each motion, and that the petitioners timely filed their interlocutory appeal. The dispute arose from the alleged impoundment of surface water on respondent's property, which he claims was caused by construction of the Magnolia Stroll, a municipal hiking and walking path. The Texas Supreme Court found that the municipal development corporations (MDCs), argued in their original plea to the jurisdiction that the respondent had not alleged any facts that, if proven true, would constitute a claim against them and that the respondent had not alleged facts showing that the MDCs could provide the requested injunctive relief. The MDCs made immunity-based arguments, but the plea’s primary emphasis was the respondent’s failure to allege facts. Included with that motion were the bylaws and articles of incorporation of both MDCs. Further, the MDCs’ motion for summary judgment was easily distinguishable from their original plea to the jurisdiction based on the extensive evidence that the trial court considered for the first time, including the declaration of the City Administrator, which the MDCs argue affirmatively negates the redressability of the respondent’s claims. Finally, in City of Houston v. Estate of Jones, the motions in the instant case were sufficiently different based on both their substance and procedural nature. Finally, the court held that the MDCs’ hybrid motion for summary judgment was not a mere motion for reconsideration, but rather a distinct motion that merits an independent twenty-day interlocutory appeal period. Accordingly, without hearing oral argument, the court reversed the appellate court judgment dismissing the MDCs’ appeal for lack of jurisdiction and remanded the case to that court for further proceedings.


Trial court properly declared appellant individual a vexatious litigant and dismissed pro se lawsuit filed as trustee for appellant trust, where he had a history of filing frivolous lawsuits to prevent foreclosures, and appellee tax lien creditor likely would succeed on enforcement of the lien
1901 N.W. 28th Street Trust v. Lillian Wilson, LLC
Appellate: Civil, Contracts, Courts, Creditor/Debtor, Damages, Procedure, Real Property, Wills/Trusts/Probate
Texas 2nd Court of Appeals
October 26, 2017
02-16-00452-CV
Bill Meier
Published
     The trial court declared the individual a vexatious litigant and dismissed a pro se lawsuit that he had filed as the trustee for the appellant trust. In addition to several complaints directed at the trial court and at opposing counsel, the individual argued that the appellee company failed to meet its burden under chapter 11 of the civil practice and remedies code to deem him a vexatious litigant. The appellate court found that because the individual commenced the litigation pro se, he was a plaintiff as the legislature defined that term in chapter 11. Further, although the appellee recorded the deed of trust several days after the special warranty deed conveying the Property from the individual to his brother was recorded, the deed of trust did not create a new lien against the Property; rather, it merely preserved and extended the existing tax lien and prescribed new terms and conditions for foreclosure. Thus, the individual’s argument was premised on something other than the law. Next, each suit was a Tex. Civ. Prac. & Rem. Code Ann. Section 11.054(1)(A) qualifying litigation. The appellee met its burden under Section 11.054(1)(A). Further, the appellee did not file a motion seeking to declare the appellant a vexatious litigant. Thus, the trial court did not abuse its discretion by determining that the individual was a vexatious litigant. Lastly, the individual failed to preserve that issue for appellate review because he did not cite even one supporting authority. Accordingly, the court affirmed the trial court’s judgment.


Appellee partners in lender’s management did not waive special appearance, and record did not show appellees were the alter ego of appellee limited liability company, or that any of appellants’ claims substantially relate to forum contacts of the appellee individuals
Wormald v. Villarina
Appellate: Civil, Banking and Finance, Contracts, Corporations, Creditor/Debtor, Procedure, Torts
Texas 14th Court of Appeals
October 26, 2017
14-16-00553-CV
Kem Thompson Frost
Published
     The appellee liability company brought a collection suit against the appellee borrowers and the appellant guarantors, and the appellants filed a counterclaim against the lender and filed various claims against others. The appellants challenged the trial court’s granting of the special appearances of three California residents whom the appellants alleged were partners involved in the lender’s management. The appellate court found that neither the first appellee individual nor the second appellee individual, nor the third appellee individual waived his special appearance. The record did not contain sufficient evidence to prove that the appellee individuals were the alter ego of the appellee liability company, or that any of the appellants’ claims substantially relate to forum contacts of the first and second appellee individual, or the third appellee individual. The record contained evidence supporting the trial court’s conclusion that it lacked personal jurisdiction over those defendants, and the trial court did not err in granting their special appearances. Accordingly, the court affirmed the trial court’s order.


No evidence supported two of the three predicate findings, and evidence was legally insufficient to support termination of parental rights under the best-interest finding; appellant had not challenged trial court's appointment of the father as children's sole managing conservator
In re J.E.M.M
Family, Gov't/Administrative, Juvenile
Texas 14th Court of Appeals
October 25, 2017
14-17-00355-CV
Kem Thompson Frost
Published
     In the instant accelerated appeal, the appellant mother sought reversal of the trial court’s judgment terminating her parental rights to two children. She challenged the legal and factual sufficiency of the evidence to support the trial court’s findings on two predicate grounds and its finding that termination was in the best interest of the children. The appellate court found that the minors had a natural and lifelong connection to the appellant. Before the State of Texas could sever their relationship with her, they were entitled to a trial where the State was held to its burden of proof. Though the court recognized the inherent limits of the appellate process and the possibility that additional facts, if proved at trial, might have led to a different result, the court must hold the Department to the heightened standards. Termination of parental rights was serious business. The law required clear and convincing evidence to sever the relationship between a parent and child and due process demanded that the State document a sufficient measure of evidence in the record to support that outcome. The court reversed the judgment of the trial court to the extent that the trial court terminated the appellant’s parental rights as to the minors, and the court rendered judgment denying the Department’s requests to terminate the appellant’s parental rights as to the minors. Finally, the trial court did not make that appointment under Family Code section 161.207; rather, the trial court made the required best-interest findings to support the appointment of Father as sole managing conservator of the child. In that context, a challenge to the appointment of Father as sole managing conservator was not subsumed within the appellant’s challenge to the termination-of-parental-rights decision. Accordingly, the court affirmed the remainder of the trial court’s judgment.


Affidavit contained enough particularized facts given by a named informant to allow the magistrate to correctly determine that there was probable cause to issue a search warrant of appellee’s hotel room, based on arrestee’s information about counterfeit check production at the hotel
State v. Elrod
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 25, 2017
PD-0704-16
Bert Richardson
Published
     The appellee was charged with fraudulent use or possession of identifying information and with two offenses of tampering with a governmental record. The appellee filed a motion to suppress evidence seized by Mesquite police officers after they executed a search warrant at his hotel room. The trial court granted the appellee’s motion to suppress, finding that the affidavit in support of the search warrant did not establish probable cause. The Texas Court of Criminal Appeals found that the affidavit contained enough particularized facts given by a named informant to allow the magistrate to correctly determine that there was probable cause to issue a search warrant. Further, the appellate court erred by affirming the trial court’s order granting appellee’s pretrial motion to suppress and the court reversed the judgment of the fifth appellate court, vacated the trial court’s order granting the motion to suppress, and remanded the case to the trial court for proceedings consistent with the instant opinion.


The jury’s finding of no commercial bribery according to the charge’s definition was against the great weight and preponderance of the evidence and the appellants’ duty to the appellee arose only under the contracts and the appellee’s injuries were not independent of the contracts
Cotter & Sons, Inc. v. BJ Corp.
Contracts, Damages, Evidence, Procedure, Torts
Texas 4th Court of Appeals
October 25, 2017
04-16-00186-CV
Patricia O. Alvarez
Published
     The appellee company sued the appellants for breaching the appellee’s contracts to provide janitorial services to buildings belonging to the appellants, 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 appellant individuals for breach of fiduciary duty and conspiracy. Based on a jury’s findings, the trial court rendered judgment awarding the appellee damages for its breach of contract and negligent misrepresentation claims. The appellate court found that the jury’s finding of no commercial bribery according to the charge’s definition was against the great weight and preponderance of the evidence. Therefore, the court reversed the portion of the trial court’s judgment awarding the appellee damages on its breach of contract claim. Further, because the appellants’ duty to the appellee arose only under the contracts, and the appellee’s injuries were not independent of the contracts, the court reversed the portion of the trial court’s judgment awarding damages to the appellee on its negligent misrepresentation claim and render judgment for the appellants that the appellee take nothing on its negligent misrepresentation claim. The court also reversed the portions of the trial court’s judgment awarding all other sums to the appellee including attorney’s fees, interest on past due debt, prejudgment interest, postjudgment interest, and costs of court. The court remanded the cause to the trial court for a new trial.


The evidence was factually sufficient to support jury’s finding of damages for breach of contract for the parties’ medical practice and bylaws and fraud by material misrepresentation, but the trial court erred by failing to apply the statutory cap on exemplary damages
Lowry v. Tarbox
Appellate: Civil, Contracts, Corporations, Damages, Torts
Texas 4th Court of Appeals
October 25, 2017
04-16-00416-CV
Irene Rios
Published
     The appellee brought suit against the appellants alleging several causes of action. The jury found in favor of the appellee and awarded both damages and exemplary damages. The appellate court found that upon considering and weighing all of the evidence in the record, including the first appellant's testimony directly contradicting that of the appellee, the court concluded that the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Therefore, the evidence was both legally and factually sufficient to support the jury’s answer to Question No. 1 that the parties agreed to the payment of revenues as described by the appellee. Further, despite the first appellant's testimony disputing the theory under which the damages were awarded, the evidence presented by the appellee through the bookkeeper's testimony was not so weak as to render the jury’s verdict clearly wrong and manifestly unjust. Thus, the evidence was factually sufficient to support the jury’s finding of damages for breach of contract. Furthermore, for the fraud claim, the jury assessed economic damages of $216,486, but did not assess noneconomic damages. As a result, under Section 41.008(b), the exemplary damages cap for the fraud claim was two times the economic damages or $432,972. The jury, however, assessed exemplary damages of $937,500, which exceeded the statutory cap by $504,528. Thus, the trial court erred by failing to apply the statutory cap on exemplary damages. Lastly, the court reformed the trial court’s judgment to cap the exemplary damage award at $498,564 for the breach of fiduciary claim and $432,972 for the fraud claim. Accordingly, the court affirmed the trial court’s judgment as reformed.


Trial court exercised its authority under Rule 165a and declined to dismiss respondent’s cause of action for failure to timely serve process, and because exercise of authority was discretionary, it did not involve a ministerial duty, and was not exceptional so as to require mandamus relief
In re Gibson
Appellate: Civil, Courts, Gov't/Administrative, Procedure, Torts
Texas 6th Court of Appeals
October 24, 2017
06-17-00085-CV
Jack Carter
Published
     The day before the statute of limitations ran, the respondent sued the petitioner for alleged damages sustained in a motor vehicle accident. She did not, however, properly serve the petitioner until April 11, 2017. The petitioner filed a motion to dismiss, alleging that the respondent had not exercised due diligence in serving the petitioner with citation. The trial court denied the petitioner’s motion. The appellate court found that the Texas Supreme Court had tried to give more concrete direction for determining the availability of mandamus review; rigid rules were necessarily inconsistent with the flexibility that was the remedy’s principal virtue. The Texas Supreme Court reaffirmed the rule that an appellate remedy was not inadequate merely because it may involved more expense or delay than obtaining an extraneous writ. Further, the petitioner offered a general statement that where there was such a delay after filing suit, there’s inherent prejudice to the defendant because memories fade, and the longer it takes to try something, the more likely there was that there would be problems remembering what happened, the evidence would be stale, that sort of thing. The trial court denied the petitioner’s motion to dismiss and told the parties to confer and set a trial date. The trial court had previously exercised its authority under Rule 165a and declined to dismiss the respondent’s cause of action. Because the exercise of authority was discretionary, it did not involve a ministerial duty. Furthermore, in judging the benefits versus the detriments of granting a mandamus request, the court believed there was merit in utilizing the traditional and well-established method of resolving that issue by the established procedure outlined in Rule 166a. Finally, the act the petitioner sought to compel was ministerial in neither nature nor that the situation at bar presented such a significant or exceptional circumstance as to require the extraordinary relief of mandamus. Accordingly, the petition for writ of mandamus was denied.


Appellee lacked sufficient minimum contacts with Texas to permit the exercise of personal jurisdiction over it by Texas courts, and the appellee did not purposefully avail itself of the privileges, nor did it allegedly cause any injury to the appellant in Texas
Vinmar Overseas Singapore PTE Ltd. v. PTT International Trading PTE Ltd.
Contracts, Employment, Procedure, Torts
Texas 14th Court of Appeals
October 24, 2017
14-16-00934-CV
John Donovan
Published
     The appellant company challenged the trial court’s interlocutory order granting the special appearance of the appellee company. The appellant sued the appellee, a business competitor, and the appellant’s former employee, after the appellant’s former employee left the appellant to work for the appellee. The appellant asserted claims against the appellee for misappropriation of trade secrets and confidential information, tortious interference with an employment agreement signed by the appellant’s former employee, business disparagement, and conspiracy. The appellate court found that the appellee lacked sufficient minimum contacts with Texas to permit the exercise of personal jurisdiction over it by Texas courts, and that the appellee did not purposefully avail itself of the privileges and benefits of conducting activities within the forum. It did no business in Texas, committed no tort in Texas, nor allegedly cause any injury to the appellant in Texas. All of the acts of which the appellant complains occurred in Singapore or overseas, and the few contacts to which the appellant points were insufficient. Thus, the court affirmed the trial court’s order granting the appellee’s special appearance and dismissing for want of jurisdiction the appellant’s claims against the appellee. Accordingly, the judgment was affirmed.


Appellee failed to offer any proof that constituted a valid contract subject to tortious interference, however, appellee met his burden of producing clear and specific evidence of a prima facie case for defamation/defamation per se claim for appellant’s Facebook Message under Anti-SLAPP statute
Van Der Linden v. Khan
Appellate: Civil, Constitution, Damages, Torts
Texas 2nd Court of Appeals
November 09, 2017
02-16-00374-CV
Bonnie Sudderth
Published
     The appellee was a board-certified family practice physician. The appellant was a retired colonel in the United States Air Force. The appellee sued the appellant for tortious interference with contract and with prospective advantage/business relations and for defamation/defamation per se and sought damages and injunctive relief. The appellant sought dismissal of all of his claims under Chapter 27. The trial court denied the appellant’s motion to dismiss. The appellate court found that the appellee failed to offer any proof clear, specific, or otherwise that constituted a valid contract. Further, the statements fell short of demonstrating, by clear and specific evidence, that the appellee’s business associate's action or inaction constituted a breach of any contractual obligation. Next, because the appellee failed to meet his burden of producing clear and specific evidence of a prima facie case for each of the essential elements of his tortious-interference-with-contract claim, the trial court erred by denying the appellant’s Chapter 27 motion to dismiss as to that claim. Further, the appellee met his burden of producing clear and specific evidence of a prima facie case for each essential element of his defamation/defamation per se claim. Furthermore, because when a legal action was dismissed pursuant to the Texas Citizens Participation Act, all remedies available under that legal theory disappear with the dismissal of the action itself, a Chapter 27 challenge to a request for injunctive relief should be directed at the underlying legal action, not at the requested remedy. Lastly, the trial court had not yet had the opportunity to determine the amount of court costs, attorney’s fees, and other expenses that justice and equity require and that should be awarded to the appellant. Accordingly, the judgment was affirmed in part, reversed in part and remanded.  


Provision of specialized knowledge by a medical expert would not be necessary to prove appellant’s claims against appellee doctor of a sexual assault upon her during a medical examination of her children; production of an expert report would amount to a needless exercise
T. C. v. Kayass
Damages, Health Care, Procedure, Torts
Texas 2nd Court of Appeals
November 09, 2017
02-16-00248-CV
Mark T. Pittman
Published
     The instant appeal involved the alleged sexual assault by a physician of a nonpatient who went to an urgent care clinic to obtain medical treatment for her children. The appellant challenged the trial court’s granting of a motion to dismiss filed by the appellee for failure to serve an expert report as mandated by section 74.351 of the Texas Medical Liability Act (the Act). The appellate court found that the appellant’s allegations of sexual assault implicate the appellee’s actions during the medical exam of her minor children. Thus, the appellant’s claims against the appellee are presumed to be health care liability claims. Further, the appellant’s children were the appellee’s patients, the appellant did not consent to an examination of herself, the alleged assault of the appellant was not done in the scope of examining her, and the record negated any relationship between the appellee’s alleged acts and his rendition of medical services to the appellant’s children. Finally, the allegations and the record reflected that the appellant’s claims against the appellee were that without her consent, the appellee kissed, licked, and groped her and forced her hand onto his genitalia and that she suffered injury and damages as a result. Those actions were of the assault nature and did not stem from the provision of medical care or the treatment of the appellant’s children. Moreover, the provision of specialized knowledge by a medical expert in the instant case would not be necessary to prove the appellant’s claims against the appellee and would amount to a needless exercise. Accordingly, the court reversed the trial court’s judgment and remanded.


More than eight months was a reasonable period of time in which to rule on the parties’ post-verdict motions and render judgment in the case, therefore, the respondent Judge was directed to render judgment within thirty days from the date of the instant opinion
In re Mesa Petroleum Partners, LP
Appellate: Civil, Constitution, Courts, Gov't/Administrative, Oil, Gas, & Mineral, Procedure
Texas 8th Court of Appeals
November 09, 2017
08-17-00195-CV
Yvonne T. Rodriguez
Published
     The relator filed a mandamus petition against the Honorable Judge of the 143rd District Court of Reeves County, Texas. The relator requested that the appellate court direct the respondent to render a final judgment in the case, styled Mesa Petroleum Partners, LP v. Baytech LLP, J. Cleo Thompson and James Cleo Thompson, Jr., LP, and Delaware Basin Resources LLC. The appellate court found that the statistics showed that the respondent was conscientious in the management of his docket and a portion of his time has been devoted to disposing of criminal cases pending in the 143rd District Court of Loving, Reeves, and Ward Counties. The fact that the respondent had been conscientious with respect to his court’s docket did not preclude a determination that he had failed to render judgment within a reasonable time in the instant case. Having considered all of the facts and circumstances, the court concluded that more than eight months was a reasonable period of time in which to rule on the parties’ post-verdict motions and render judgment in the instant case. Therefore, the court sustained the sole issue presented by the relator and directed the respondent to render judgment within thirty days from the date of the instant opinion. The court was confident the respondent would comply with the directive and the writ of mandamus would only issue if he failed to do so.


Appellant did not designate any expert witness to testify about any alleged connection between the first appellee’s prior personal injury claims and the injuries sustained, and trial court did not abuse its discretion in allowing testimony confirming prior back injury but limiting it beyond that
Hernandez v. Moss
Damages, Health Care, Insurance, Litigation: Personal Injury
Texas 8th Court of Appeals
November 09, 2017
08-13-00315-CV
Yvonne T. Rodriguez
Published
     The appellant challenged an award of damages against him. The damage award was for injuries sustained by the appellee when the appellant struck their vehicle. In eight points of error, the appellant argued that the trial court improperly excluded evidence, improperly allowed certain expert testimony, failed to make findings of fact and conclusions of law, and he challenges the factual sufficiency of the award. The appellate court found that the ground for recovery at issue here was negligence, and the past and future medical expenses were the damages awarded for that single ground of recovery. As a result, the appellant was not placed in the position of speculating as to the basis of the trial court’s judgment of negligence. Further, the trial judge asked when the first appellee had last sought treatment, and he responded that it had been at least nine years, at which point the trial judge stated let’s move along. The appellant did not make an offer of proof and continued on to a different line of questioning regarding payment of medical treatment in the instant case. Again, the court was not allowed to speculate and could not conduct a harm analysis absent an offer of proof. Furthermore, it was notable the appellant did not designate any expert witness to testify about any alleged connection between the first appellee’s prior personal injury claims and the injuries sustained in that case. The doctor had already completed his testimony at that juncture. It was difficult to assess how further questioning would have aided the trial court. The court found no indication the trial court abused its discretion in allowing testimony confirming the prior back injury but limiting it beyond that. Finally, the record did not show the trial court’s decision was against the great weight and preponderance of the evidence or manifestly unjust. As to the appellant’s purported list of evidence he hoped to prove if the trial court had not ruled against him, it was not part of the record and no offer of proof was made. The court declined to engage in speculation as to what evidence the appellant could have elicited had the trial court ruled in his favor. Accordingly, the trial court's judgment was affirmed.


Appellant knowingly and voluntarily pleaded guilty, she was not misled or harmed by trial court’s admonishments, trial court did not err in failing to order a competency evaluation or hearing, and appellant had not shown jury misapplied the good-conduct time instruction
Dominguez v. State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
November 08, 2017
08-14-00225-CR
Yvonne T. Rodriguez
Published
     The appellant challenged her conviction for intoxication manslaughter. The appellate court found that the record adequately showed that the appellant freely, knowingly, and voluntarily pleaded guilty. Further, because the appellant had failed to show that she was misled or harmed by the trial court’s admonishments, the appellant had failed to show Tex. Code Crim. Proc. Ann. article 26.13 error necessitating reversal. Next, because the trial court was not required to make an informal inquiry regarding the appellant’s competency to stand trial, the court were unable to conclude that it abused its discretion in failing to order a competency evaluation or hold a competency hearing. Finally, the appellant had not demonstrated the existence of a reasonable likelihood that the jury in the instant case misapplied the good-conduct time instruction, and as a result assessed a higher sentence in violation of due process or due course of law. Accordingly, the trial court’s judgment was affirmed.


Appellant waived her right to object to trial court's failure to dismiss the suit and failed to comply with a court-ordered service plan to obtain child’s return under Termination Ground O; and there was factually sufficient evidence that termination was in the child’s best interest
In re B.H.R.
Family, Gov't/Administrative, Juvenile, Procedure
Texas 6th Court of Appeals
November 07, 2017
06-17-00081-CV
Bailey C. Moseley
Published
     The appellee department brought suit in Wood County to terminate the appellant mother’s parental rights to her daughter. Following a jury trial, the appellant’s parental rights were terminated. The appellate court affirmed the trial court’s judgment because the appellant waived her right to object to the trial court’s failure to dismiss the suit. Further, termination under Ground O was supported by factually sufficient evidence. Lastly, there was factually sufficient evidence that termination was in the child’s best interest. Accordingly, the judgment was affirmed.


Counsel relied on video of victim’s recantation as leverage in his plea negotiations with the State, that led to a favorable plea arrangement for the appellant and counsel’s argument against DNA testing had an objective strategy; all “new” evidence was available prior to appellant’s plea
Stubbs v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
November 09, 2017
13-16-00352-CR
Nelda V. Rodriguez
Published
     The appellant challenged from the denial of his motion for new trial following his conviction for three counts of sexual assault of a child. By two issues, the appellant asserted that the trial court erred in denying a new trial on grounds of ineffective assistance of counsel and newly discovered evidence. The appellate court found that the record permitted the view that Counsel relied on the video as leverage in his plea negotiations with the State a process that led to a favorable plea arrangement for the appellant. The court could not say that the trial court abused its discretion in determining that the appellant had not demonstrated ineffective assistance. Further, it was thought that samples collected from the child contained sperm that would be subject to forensic testing. That thinking later turned out to be incorrect. But the appellant eschewed the possible outcomes of such testing and accepted the promise of immediate release from confinement in exchange for community supervision which the appellant did not dispute that he violated and the court therefore could not say that the appellant demonstrated diligence in securing the instant evidence. Finally, the court had determined that each of the forms of evidence advanced by the appellant failed to satisfy at least one prong of the controlling test for newly discovered evidence. Accordingly, the trial court's judgment was affirmed.


Appellant presented sufficient evidence from which jury could conclude appellee knew or should have known appellant was relying on him for legal representation, but appellee’s no-evidence motion for summary judgment did not challenge causation element of the legal malpractice claim
Border Demolition & Environmental, Inc. v. Pineda
Appellate: Civil, Contracts, Procedure, Professional Responsibility, Torts
Texas 8th Court of Appeals
November 08, 2017
08-16-00094-CV
Gina M. Palafox
Published
     The instant was an appeal from a judgment granting a hybrid motion for summary judgment. The appellant company filed tort and contract claims against the appellee, a licensed Texas attorney, based on alleged duties flowing from a continuing relationship and implied agreement of representation. The appellate court found that the appellant presented sufficient evidence from which a jury could reasonably conclude that the appellee knew or should have known that the appellant was relying on him for representation. Further, the evidence showed that the appellee told the president he would keep an eye on the construction worker suit, or convince construction worker to drop it. While a jury may decide not to believe the testimony, the court were not free to do so on review. Furthermore, the appellee’s no-evidence motion did not conform to the specificity requirement of Rule 166a(i) to give fair notice to the appellant to address the causation element of the legal malpractice claim. Thus, the appellee’s no-evidence motion for summary judgment did not challenge the causation element of the legal malpractice claim. Lastly, because the court concluded that the appellant’s claim sounds solely in professional negligence, the trial court did not err by granting the appellee’s motion for summary judgment on the breach of fiduciary duty claim or the breach of contract claim. Accordingly, the judgment was affirmed in part, reversed in part and remanded. 


Grounds in Judgment Notwithstanding the Verdict Motion did not address fraud claim against appellee for failure to disclose Commission Information or for Failure to Disclose Termination Information, and did not provide a proper basis for trial court to have disregarded jury’s findings
Bryan v. Papalia
Contracts, Damages, Procedure, Securities, Torts
Texas 14th Court of Appeals
November 09, 2017
14-15-00802-CV
Kem Thompson Frost
Published
     In the instant case involving fraud claims by two plaintiffs against their alleged financial advisor, the trial court granted judgment notwithstanding the jury’s verdict. The trial court disregarded the jury’s findings in answer to questions as to liability and actual damages for fraud and negligent misrepresentation, the discovery rule, and exemplary damages. The appellee testified that he recommended the instant plan to the individual appellant and that the appellee believed that the appellant could invest $132,000 per year for ten years. The appellee denied telling the appellant that the plan would work if the appellant made only three annual payments. The appellate court found that the grounds which did not address the fraud claim against the appellee based on a failure to disclose the Commission Information or based on the Failure to Disclose Termination Information. Therefore, none of the grounds in the JNOV Motion provided a proper basis for the trial court to have disregarded the jury’s finding in response to Question 2, and the trial court erred in granting the JNOV Motion as to that finding and the court sustained the second issue to the extent it addresses that finding. Further, the court sustained the third issue as to the jury’s finding in response to Question 9. Because the appellant Parties sought rendition of judgment only on their fraud claim, the court need not and did not address the first issue to the extent the appellant Parties assert that the trial court erred in disregarding the jury’s negligent-misrepresentation finding in response to Question 3. Furthermore, the court sustained the remainder of the first issue as well as the second issue. Because the trial court erred in granting the JNOV Motion as to Questions 1, 2, 6, 9, and 10 and in rendering judgment that the appellant parties take nothing, the court reversed the trial court’s judgment and remand for further proceedings.


Appellee had presented facts supporting a violation of Texas Open Meetings Act and Texas Whistleblower Act; appellant sued only in his individual capacity could not assert governmental unit’s sovereign immunity, and appellants’ interlocutory appeal was not authorized by Code Section 51.014(a)(8)
City of Donna v. Ramirez
Appellate: Civil, Constitution, Employment, Gov't/Administrative, Procedure, Torts
Texas 13th Court of Appeals
November 09, 2017
13-16-00619-CV
Leticia Hinojosa
Published
     The appellee, the city manager, brought causes of action against the appellant city under the Texas Whistleblower Act. The appellee alleged that he was terminated after he reported to the Donna Chief of Police and a municipal judge that the appellant's city officials ordered him to waive or discount certain municipal fees or charges for city services. The appellants, the city, and the five individuals brought the instant interlocutory appeal from the trial court’s denial of their plea to the jurisdiction seeking to dismiss claims brought by the appellee. The appellate court found that no matter the contents of the other postings, a person viewing the “Cancelled” agenda notice inside the appellant's hall would not be informed of the date and time of the meeting. The appellee had presented facts supporting a violation of Texas Open Meetings Act (TOMA). Further, recognizing that the appellee's burden of proof did not involve a significant inquiry into the substance of his Whistleblower claim, the court concluded that the appellee had presented evidence that he reported a violation of law in good faith. Furthermore, a person sued only in his individual capacity may not assert the governmental unit’s sovereign immunity. Therefore, the appellants’ interlocutory appeal was not authorized by Civil Practice and Remedies Code Section 51.014(a)(8), which was the sole basis for the court’s jurisdiction over the instant appeal. Thus, any ruling by the trial court regarding claims against the appellants in their individual capacities did not constitute a ruling that granted or denied a plea to the jurisdiction by a governmental unit. Accordingly, the court affirmed the trial court’s order denying the appellants’ plea to the jurisdiction.


Appellant raised fact questions regarding existence and enforceability of a contract between himself and appellees, and trial court’s judgment granting a declaration that there was no agreement between the parties was reversed, but denial of appellant’s motion to transfer venue was affirmed
Smith v. Smith
Contracts, Damages, Employment, Procedure
Texas 14th Court of Appeals
November 09, 2017
14-16-00467-CV
Martha Hill Jamison
Published
     In two issues in the instant contractual dispute, the appellant challenged the trial court’s denial of his motion to transfer venue and grant of final summary judgment in favor of the appellees. The trial court rendered summary judgment against the appellant on his breach of contract claim and in favor of the appellees on their declaratory judgment claims. In a cross appeal, the appellees challenge the trial court’s denial of their motion for costs and attorney’s fees under the Texas Declaratory Judgment Act. The appellate court found that the trial court reasonably could have determined that the appellant waived his venue objection, and thus, the trial court did not abuse its discretion in denying the appellant’s motion to transfer venue. Further, the court found that the appellant failed to challenge every basis for summary judgment as to his breach of contract claim, but presented evidence raising fact questions regarding the existence and enforceability of a contract between himself and the appellees. Accordingly, the court reversed and remanded that portion of the trial court’s judgment granting a declaration that there was no agreement between the parties. The court affirmed the trial court’s judgment in all other respects.


Appellant did not consent to jurisdiction in Texas but parties’ consent to New York jurisdiction did not preclude Texas court from asserting jurisdiction over appellant; however, appellants structured their transactions so as neither to profit nor subject themselves to jurisdiction in Texas
Jutalia Recycling, Inc. v. CNA Metals Limited
Contracts, Procedure, Torts
Texas 14th Court of Appeals
November 09, 2017
14-16-01007-CV
Martha Hill Jamison
Published
     The instant interlocutory appeal involved breach of contract and fraud claims. The appellants, the company and the individual, challenged the trial court’s denial of their special appearance, contending that they did not consent to jurisdiction in Texas and they lacked sufficient minimum contacts such that they would reasonably anticipate being haled into a Texas court. The appellate court found that the appellant did not consent to jurisdiction in Texas but the parties’ consent to New York jurisdiction did not preclude the Texas court from asserting jurisdiction over the appellant, the court sustained the appellants’ first issue in part and overruled it in part. Further, by never meeting in Texas and also signing Sales Orders with New York jurisdictional clauses for the sale of products that were never sent to Texas, it appeared that the appellants intended to avoid Texas by structuring their transactions in such a way as neither to profit from Texas law nor to subject themselves to jurisdiction there. Thus, the trial court could not exercise specific jurisdiction over the appellants. Concluding that the appellants lacked sufficient minimum contacts with Texas to confer specific jurisdiction, the court sustained their second issue. Accordingly, having concluded that the trial court lacked jurisdiction over that appellants, the court rendered judgment dismissing the appellee's claims against the appellant's for want of jurisdiction.


Trial court did not abuse its discretion in admitting extraneous offense evidence, and Section 21.02 of Texas Penal Code was not facially unconstitutional in regards to jury unanimity that individual acts of two or more acts of sexual abuse were not elements in and of themselves of the offense
Navarro v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
November 08, 2017
10-16-00173-CR
Tom Gray
Published
     The appellant was convicted of the offenses of Continuous Sexual Assault of a Young Child (Count I) and Indecency with a Child by Contact (Count II). He was sentenced to life in prison on Count I and 20 years in prison on Count II. The appellate court after reviewing cases cited, joined those coordinate courts in Texas which have determined that the individual acts of sexual abuse were the manner and means by which the element of "two or more acts of sexual abuse" was committed, and not elements in and of themselves. Therefore, TEX. PENAL CODE Ann. Section 21.01 did not violate a defendant’s constitutional right to jury unanimity. Further, the court concluded that the State’s evidence of the volatile relationship directly rebutted the appellant’s defensive theory and the expressed reasons for the admission of the incidents when the child's mother dropped off the child. Therefore the trial court did not abuse its discretion in admitting the extraneous-offense evidence under Texas Rules of Evidence 404(b). The trial court, after balancing the various Rule 403 factors, could have reasonably concluded that the probative value of the extraneous offense testimony was not substantially outweighed by the danger of unfair prejudice or by misleading the jury. Therefore, the trial court did not abuse its discretion in admitting the State’s extraneous offense evidence. Accordingly, the judgment was affirmed.


Extensive history of child sexual assault legally sufficient to prove behavioral abnormality with likely recurrence and commit Defendant to a treatment program, despite excluded expert opinion that parole would adequately prevent recidivism
In re Commitment of Colantuono
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
November 08, 2017
04-16-00801-CV
Karen Angelini
Published
Defendant imprisoned since 1995 for child sexual assault appealed civil commitment as a sexually violent predator.  First, Defendant claimed the evidence legally insufficient to prove he suffered from a "behavioral abnormality" with a likelihood of recidivism.  The appellate court disagreed where Defendant 1) had five similar prior convictions; 2) admitted assaulting 15 children not related to him (including while married); 3) exhibited extreme grooming activities, (including leading Campfire Adventure groups, driving an ice-cream cart pulled by a  pony, and working at hot dog stands and carnivals); 4) gave contorted explanations that he was actually the victim of children he assaulted; and 5) experts opined that he had pedophilic and antisocial personality disorders with a very high risk to reoffend as a "true recidivist."  Moreover, the court ruled that intent to victimize is implicit in finding a behavioral abnormality, rejecting Defendant’s argument that his assaults were "loving" and "consensual" and therefore lacked the requisite victimizing intent.  Mitigating evidence that Defendant’s crimes occurred 22 years ago (before his incarceration) and of his advanced age and health issues did not render the verdict unjust.  Second, the court found no prejudicial error in excluding arguably relevant expert testimony that parole conditions would prevent recurrence; as the jury had already heard about the conditions of parole, as well as Defendant’s expert opinion that he was unlikely to recidivate.  The court accordingly affirmed finding Defendant a sexually violent predator subject to civil commitment instead of parole.  

Trial court did not err in its division of the community estate, but evidence did not show that appellee would lack sufficient property on dissolution of the marriage to provide for her “minimum reasonable needs,” and the trial court abused its discretion in making a spousal-maintenance award
Willis v. Willis
Family
Texas 14th Court of Appeals
October 24, 2017
14-15-00913-CV
Kem Thompson Frost
Published
     The appellant, an ex-husband, challenged a final divorce decree arguing (1) the trial court abused its discretion in dividing the community estate and (2) the evidence conclusively established that spousal maintenance should not be awarded to his ex-wife (the appellee). The appellate court found that the trial court had sufficient information upon which to exercise its discretion. Because the trial court did not divide the community estate in a manner that was manifestly unjust and unfair, the trial court did not abuse its discretion. Because the evidence was legally insufficient to support a finding that the appellee would lack sufficient property on dissolution of the marriage to provide for her “minimum reasonable needs,” the trial court abused its discretion in making a spousal-maintenance award. Accordingly, the court modified the trial court’s final divorce decree to delete all awards of spousal maintenance, and affirmed the decree as modified.


Appellees did not show conspiracy, fraud, interference with business relations, business disparagement, defamation, intentional infliction of emotional distress, and breach of settlement agreement by appellants’ commercial speech during allegedly fraudulent debt collection under the TCPA
MVS International Corporation v. International Advertising Solutions, LLC
Business, Constitution, Contracts, Creditor/Debtor, Damages, Procedure, Torts
Texas 8th Court of Appeals
October 11, 2017
08-16-00173-CV
Ann Crawford McClure
Published
     The instant case began as a routine collections suit: the appellants sued the appellees for non-payment of a debt, as evidenced by unpaid invoices. The appellees counterclaimed, asserting that the appellants conspired to falsify the invoices, and then communicated the fact of their subsequent non-payment to third-parties. The counterclaim triggered the appellants’ use of the TCPA seeking to dismiss various counts of the counterclaim. While denying they improperly conspired or made the specific derogatory communications complained of, the appellants contended that the communications as alleged would implicate their rights to free speech, right of petition, and right of association as those terms were uniquely defined by the TCPA. After it dismissed some, but not all, of the counterclaims for other reasons, the trial court decided the TCPA motion was moot. The appellate court noted the logical implausibility of a scheme built around falsifying invoices for advertising that was never aired, when the appellees claim documentary proof of what was aired resides on tapes maintained by the appellants, and on documents provided to the FCC. Thus, the court found that the trial court should have granted the TCPA motion as it relates to the civil conspiracy claim (other than as to Televisa) and remand that claim for entry of an order dismissing that claim. Further, the commercial speech exemption would apply because any statements were made in direct furtherance of the appellant company’s business of selling advertising time (and services) to its own end customer. The appellants have failed to carry their burden that the TCPA applied to the breach of contract claim. Next, the appellee individual’s affidavit failed to establish a prima facie case for an essential element of the appellees’ claim and on remand, the trial court should dismiss the interference with business relationship claim. Further, the trial court found the statement conclusory; bare, baseless opinions did not create fact questions, and neither were they a sufficient substitute for the clear and specific evidence required to establish a prima facie case under the TCPA. Also, the appellees did not meet their burden of meeting the first element of a defamation claim and on remand, the trial court should dismiss the defamation claim as it related to any entity other than Televisa. Furthermore, the plaintiff in Loa, like the appellee individual, presented no evidence of seeking counseling or medical treatment. On remand, the trial court should dismiss the intentional infliction of emotional distress claim. Finally, the agreement that the supplemental petition alleges was no more than conspiracy dressed up in breach of contract language. The court had already concluded that the appellees failed to present any clear and specific evidence of the existence of that agreement. Accordingly, the judgment was reversed and remanded.


Appellee was not required to file “Suit for Possession or Access by Grandparent,” because she had general standing by virtue of her actual care, control, and possession of the child for two years; trial court could grant appellee possessory conservatorship without her bringing a separate action
In re J.H.
Appellate: Civil, Family, Juvenile, Procedure
Texas 8th Court of Appeals
October 11, 2017
08-15-00001-CV
Yvonne T. Rodriguez
Published
     The appellant father challenged an order granting the appellee, the child’s maternal grandmother, possessory conservatorship of his son. The appellate court found that because the appellee sought to be appointed sole managing conservator, not merely the right to visit, the appellant’s argument that she failed to provide the proof required by Section 153.433 of the Texas Family Code was inapplicable. Further, the issue of child custody was properly before the trial court based on the appellee’s petition seeking sole managing conservatorship and the trial court’s finding of jurisdiction. The appellant’s assertion that the trial court could not grant possessory conservatorship to the appellee unless she specifically requested it in her pleadings was against the great weight of Texas caselaw, and while the cases he cited discuss the general interpretation of Rule 301, they did not involve child custody and consequently did not support his proposition. Furthermore, the appellee was not required to comply with Section 153.432, “Suit for Possession or Access by Grandparent,” because she had general standing under Section 102.004 by virtue of her actual care, control, and possession of the child from March 2011 to March 2013. However, the appellant’s contention that the trial court could not grant the appellee possessory conservatorship without her bringing a separate action specifically requesting it had no support in the case law, and the appellant had pointed the court to none. Accordingly, the court affirmed the judgment of the trial court.


The school was faith-based and the ecclesiastical abstention doctrine deprived the court of subject matter jurisdiction over plaintiffs’ claims arising from school’s decision to request a student’s withdrawal for disciplinary reasons; relators were entitled to mandamus relief
In re Episcopal School of Dallas, Inc.
Constitution, Courts, Education, Gov't/Administrative, Procedure
Texas 5th Court of Appeals
October 11, 2017
05-17-00493-CV
Bill Whitehill
Published
     The School sought a writ of mandamus compelling the trial court to vacate an order denying its plea to the jurisdiction. In two issues, the school maintained that it was a faith-based school and therefore the ecclesiastical abstention doctrine deprived the court of subject matter jurisdiction over the plaintiffs’ claims arising from the school’s decision to request a student’s withdrawal for disciplinary reasons and there was no adequate remedy by appeal. The appellate court found that it was undisputed that the school was not a church. But the record established that it was nonetheless a faith-based institution enjoying First Amendment protection for the free exercise of religion. Thus, contrary to the plaintiff’s assertion, the court could not conclude that the instant case lacked an ecclesiastical component. Further, the school was a faith-based school and having examined the substance and nature of the plaintiffs’ claims, the court further concluded that resolving those claims would require a court to pass judgment on the school’s internal affairs and governance matters exclusively within the province of an ecclesiastical institution. Accordingly, the ecclesiastical abstention doctrine applied, the trial court lacked subject-matter jurisdiction, and it abused its discretion by denying relators’ plea to the jurisdiction and motion to dismiss. Having concluded that the ecclesiastical abstention doctrine applied, the court next considered whether Relators were entitled to mandamus relief. Furthermore, the trial court lacked subject matter jurisdiction and therefore, mandamus relief was appropriate unless the plaintiffs established a bar that would defeat the doctrine’s application in the instant case. Finally, the realtors filed the mandamus petition two weeks after the plea to the jurisdiction was denied and that did not constitute unreasonable delay. Therefore, laches did not bar the requested relief. Accordingly, the mandamus relief was proper.


Parties’ indentures that were allegedly in default did not require the capital contribution to have a “profit motive” as they used the term “investments”, and the capital contribution of stock by defendant to one of its subsidiaries did not violate the indentures’ restrictions on use of assets
Franklin Advisers, Inc. v. iHeart Communications Inc.
Banking and Finance, Business, Contracts, Corporations, Litigation: Commercial, Securities
Texas 4th Court of Appeals
October 11, 2017
04-16-00532-CV
Karen Angelini
Published
     Some of the noteholders issued formal notices of default. The appellee company filed the suit in which it sought declarations that it had not violated the indentures and was not in default on the notes. The appellee sought injunctive relief. After a bench trial, the trial court rendered judgment in favor of the appellee. The appellants challenged from a final judgment granting declaratory and injunctive relief against them. The appellate court found that the term “profit motive” never appeared in the definition of “Investments” in the indentures. If the parties had intended to require a capital contribution like the one in the instant case to have a profit motive, they could have used the term “profit motive” in the definition of “Investments.” The parties did not do so. Further, the appellee argued that the indentures permitted capital contributions to affiliates without regard to profit motive based on the plain language of the definition of “Investments” as “all investments in the form of” “capital contributions.” The court concluded that it was the only reasonable interpretation of the language in question. Lastly, the court held that the trial court properly concluded that the indentures did not require the capital contribution at issue in the instant case to have a profit motive and that the capital contribution did not violate the indentures. Accordingly, the judgment of the trial court was affirmed.


The order appellant sought to appeal was entitled “Recommendation”, with the express designation of “temporary”, and executed by the associate judge in the family court; thus, further action must occur before it became final and appealable
In re A.G.D.M.
Courts, Family, Juvenile, Procedure
Texas 7th Court of Appeals
October 23, 2017
07-17-00326-CV
Brian Quinn
Published
     The appellant sought to appeal from an order issued by an associate judge in a family matter. The order was entitled “Recommendation,” it pertained to a “modification” concerning visitation, and carried the expressed designation of “temporary,” as opposed to “final.” Questioning whether the appellate court had jurisdiction over the appeal, the court afforded the appellant the opportunity to address the matter. The appellant timely responded and contended that the “recommendation” designated as “temporary” was final and appealable. The appellate court's appellate jurisdiction was generally limited to appeals from final judgments and orders disposing of all claims and parties. Though there were exceptions to that general rule, they did not include appeals from a temporary order rendered in a family law case. Because the order from which the appellant appealed was “temporary,” it did and did not vest the court with jurisdiction over the appeal. That the order was a “recommendation” posed a further obstacle to the court's jurisdiction. That was, the powers vested in an associate judge were prescribed by Section 201.007 of the Texas Family Code. And, to the extent said statute permitted an associate judge to render “a final” order or decree, the instances in which it could were limited. The “recommendation” before the court fell within none of those categories. It was just that, a “recommendation” executed by the associate judge per Section 201.007(a)(10). Being a “recommendation,” further action must occur before it became final and appealable. It may be adopted, modified, rejected or sent back by the referring court. Because the “recommendation” had yet to be signed by the judge of the referring court (or any other judge authorized to sign on behalf of the referring court), it was not appealable. Accordingly, the appeal was dismissed.


Once petitioner filed its motion to modify conservatorship and child-support obligations, it became a Title IV-D case and Title IV-D associate judge was authorized to render or recommend any order to complete the case under the prior version of the Family Code
The Office of Attorney General of Texas v. C.W.H.
Courts, Family, Gov't/Administrative, Juvenile, Procedure
The Supreme Court of Texas
October 20, 2017
15-0944
Jeffrey S. Boyd
Published
     The instant challenge from a Title IV-D associate judge’s order modifying conservatorship and child support for three children. The primary issue was whether the Title IV-D associate judge had authority to enter an order modifying conservatorship. The Legislature recently amended the Family Code to expressly grant Title IV-D associate judges such authority. The appellate court held that Title IV-D judges had no such authority before the recent amendments. The Texas Supreme Court held that the former version of the Texas Family Code authorized the petitioner to seek to modify the conservatorship provisions of the 2010 order because that service related to the establishment, modification, or enforcement of a child-support obligation. Once the petitioner filed its motion to modify conservatorship and the child-support obligations, that became a Title IV-D case and the Title IV-D associate judge was authorized to render or recommend any order to complete the case. Thus, the court disagreed with the appellate court’s holding that the Title IV-D associate judge lacked authority to enter the order modifying conservatorship and child support in the instant case. The court affirmed the appellate court’s judgment reversing the associate judge’s order and remanding the case, however, solely on the independent ground that the associate judge failed to consider the respondent’s request to participate in the hearing by alternative means. Accordingly, the judgment was affirmed in part and reversed in part.


Trial court did not abuse its discretion by denying State’s motion to exclude owner’s valuation opinion as unsupported, where jury could have utilized the entire-property valuation opinion but still adopted the appraisal expert’s opinion devaluing the property after the condemnation
State v. Speedway Grapevine I, LLC
Constitution, Damages, Gov't/Administrative, Real Property
Texas 2nd Court of Appeals
October 19, 2017
02-16-00144-CV
Bill Meier
Published
     The State of Texas challenged from a judgment rendered on a jury verdict in that cause to statutorily condemn a strip of land owned by the appellee corporation. In addition to challenging the jury’s finding of damages to the remainder property, the State contested the trial court’s rulings admitting the valuation opinion of the property owner’s representative and the damage opinions of the property owner’s appraisal expert. The appellate court found that the trial court could have reasonably concluded that in light of all of the above, the representative met his burden to establish a valid factual basis to support his opinion that the market value of the appellee corporation’s property before the condemnation was just over [$]5.4 million. The trial court did not abuse its discretion by denying the State’s motion to exclude the representative’s valuation opinion. Further, after the condemnation, and with a change in the property’s highest and best use from a car wash to an office or a veterinary clinic, he opined that the four land sales were not valid comparables and instead utilized the three after condemnation land sales, which had a lower after-adjustment median, accounting for the reduction in land value. The appraisal expert plainly devalued the land in connection with a change in the property’s highest and best use, not to compensate the appellee corporation for noncompensable impairment of access. Furthermore, the State argued that if the court did not sustain its second issue arguing that the appraisal expert’s damage opinion should have been excluded, then there was no evidence of a difference in before- and after-condemnation values caused by the condemnation over $2,609,420.00—the appraisal expert’s opinion of damage to the remainder. The jury could have utilized the representative’s entire-property valuation opinion but still adopted the appraisal expert’s opinion devaluing the property after the condemnation as a result of a change in its highest and best use. The resulting figure necessarily would have been more than $2,609,420.00. Accordingly, the trial court’s judgment was affirmed.


Freedom of speech did not extend to appellant’s speech used in online solicitation of a minor charge, and freestanding anti-defensive issues were not law applicable until trial evidence raised them and, a constitutional challenge involving them could not be presented before trial
Ex parte Cornwall
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
October 19, 2017
07-17-00158-CR
Judy C. Parker
Published
     The appellant was indicted for the offense of online solicitation of a minor. The appellant filed a pretrial writ of habeas corpus challenging the facial constitutionality of the pre-2015 version of section 33.021(c) of the Texas Penal Code. The trial court denied the appellant’s application. The appellate court found that the anti-defensive issues were not cognizable because they could not be law applicable to the case unless and until some evidence at trial raises the anti-defensive issue and, in a pretrial habeas proceeding challenging the facial constitutionality of a statute, no evidence had been presented. Further, the court held that freedom of speech did not extend to speech used as an integral part of conduct that violated a valid criminal statute, such as the online solicitation of a minor statute involved in the instant case. Finally, the freestanding anti-defensive issues were not law applicable to the case until trial evidence raises them and, as such, a constitutional challenge involving them could not be presented before trial. Accordingly, the court affirmed the trial court’s denial of the appellant’s application for writ of habeas corpus.


The trial court abused its discretion in ordering the relator to appear for his deposition and provide the documents requested in the subpoena duces tecum without having been served with the individual’s Tex. Civ. Prac. & Rem. Code Ann. section 74.351(a) expert report and curriculum vitae
In re Sandate
Appellate: Civil, Discovery, Health Care, Procedure, Torts
Texas 5th Court of Appeals
October 19, 2017
05-17-00871-CV
David Evans
Published
     In the instant mandamus proceeding, the relator sought relief from the trial court’s order which, pursuant to Tex. R. Civ. P. 205, required that he appear for his deposition and provide the documents requested in the subpoena duces tecum without first having been served with a Tex. Civ. Prac. & Rem. Code Ann. section 74.351(a) expert report and curriculum vitae. The appellate court found that the individual was seeking the relator’s deposition to determine whether the individual should join the relator as a defendant in the existing lawsuit for the alleged negligent medical care that she received during the labor and delivery of her son. As the individual was seeking to investigate a health care liability claim against a health care provider even though he had not yet been named in the lawsuit, the court found, under that particular set of facts, that the relator’s deposition would fall within the protection of section 74.351(s) as explained in Jorden. Thus, the trial court abused its discretion in ordering the relator to appear for his deposition and provide the documents requested in the subpoena duces tecum without having been served with the individual’s section 74.351(a) expert report and curriculum vitae. Accordingly, the court conditionally granted the petition.


Appellant did not present to the trial court his argument that the State’s prosecution of him for misapplication of fiduciary property would be an impermissible second prosecution after acquittal; appellant was no longer subject to punishment for State’s prosecution of theft of same property
Ex parte Perez
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
October 19, 2017
01-17-00196-CR
Michael C. Massengale
Published
     A grand jury indicted the appellant for the offense of theft of property of a value over $1,500 but less than $20,000. The appellant challenged from the trial court’s denial of his pretrial application for a writ of habeas corpus. The appellate court observed that the pretrial habeas, followed by an interlocutory appeal, was an extraordinary remedy, which was reserved for situations in which the protection of the applicant’s substantive rights or the conservation of judicial resources would be better served by interlocutory review. Further, the trial court and the prosecution should have an opportunity to remove the basis for the objection and it was an inappropriate waste of scarce resources for the instant court to unnecessarily address issues raised for the first time in an interlocutory appeal, when the issue still could be raised and addressed for the first time by the trial court. Thus, because the appellant did not present to the trial court his argument that the State’s prosecution of him for misapplication of fiduciary property would be an impermissible second prosecution after acquittal, he may not raise the argument for the first time on appeal from a pretrial habeas-corpus application that was based on a different argument, and it was no basis for reversing the trial court’s order at that stage of proceedings. Finally, the appellant was no longer subject to punishment in the State’s previous prosecution of him for theft. As a result, he would not be subject to multiple punishments for the same offense if the State prosecutes him for misapplication of fiduciary property, and his argument that he would be subject to multiple punishments for the same offense had become moot. Accordingly, the appeal was dismissed.


Commercial tenant’s challenge to trial courts' jurisdiction to enter a judgment for possession was not mooted by lack of possession, trail court did not lack subject-matter jurisdiction, appeal to county court was perfected, and there was no appellate jurisdiction of forcible-detainer judgment
Church v. Jelinis, LLC
Landlord and Tenant, Litigation: Commercial, Procedure, Real Property
Texas 1st Court of Appeals
October 19, 2017
01-16-00890-CV
Michael C. Massengale
Published
     The appellees brought a forcible detainer action in justice court against the appellant. The justice court issued a judgment in favor of the appellant. The appellees challenged to the county court at law. On de novo review, the county court at law awarded possession of the property to the appellees. A writ of possession was executed and possession of the property was delivered to the appellees. The appellate court found that the appellees filed a bond within five days of the justice court’s judgment. As a result, an appeal to the county court at law was perfected properly at that time. Further, the order purporting to authorize the appeal was superfluous and the court overruled the appellant’s jurisdictional and due-process challenges to the justice court’s order authorizing the appellees’ appeal. Furthermore, the appellant's issue contesting the award of possession of property it alleged was not identified in the appellees’ petition directly challenged the court’s determination of the issue of possession. The appellant’s other two issues regarding the county court at law’s limitations on the examination of witnesses and the sufficiency of the evidence both relate to the correctness of the trial court’s judgment awarding possession, and therefore those issues were essential to the issue of possession. The court concluded that those issues were primarily concerned with the issue of possession. Accordingly, the court did not have jurisdiction to consider those issues. Finally, to the extent the appellant challenged the subject-matter jurisdiction of the trial courts, the court affirmed the county court at law’s judgment for possession. The court dismissed the remainder of the appeal for want of appellate jurisdiction.


Evidence appellant was liable for encouraging production of animal crush videos was legally sufficient to support felony cruelty to a nonlivestock animal; the court reformed the judgment to reflect that conviction for a state jail felony, deleted the deadly weapon finding, and remanded
Justice v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 19, 2017
14-16-00153-CR
Tracy Christopher
Published
     The judge entered a judgment of conviction for a third degree felony. Based on two prior felony convictions for aggravated assault of a peace officer, the judge enhanced the appellant’s punishment and sentenced him to fifty years’ imprisonment. The appellate court found that the evidence supported a finding that his participation was intentional. The co-defendant testified that a client requested a puppy crush video and that the appellant encouraged her make it. The appellant stood to profit from the video. He peddled in the crush industry, selling all sorts of crush videos in the black markets of the Internet. He also ran an escort business, and he penned an employee handbook for his escorts saying that they may have to crush animals. Based on the collective force of that evidence, a reasonable fact finder would have no difficulty in determining that the appellant was liable as a party. Therefore, the court found that the evidence was legally sufficient to support a state jail felony conviction for cruelty to a nonlivestock animal. Accordingly, the court reformed the judgment to reflect a conviction for a state jail felony, delete the deadly weapon finding, and remanded.


Appellants cited no authority that receipt of governmental benefits, or that appellees did not contest the affidavit within ten days, barred trial court’s dismissal for an intentional violation of filing a fraudulent Paupers Affidavit, one that did not match up with their bankruptcy schedules
Poff v. Guzman
Bankruptcy, Contracts, Creditor/Debtor, Landlord and Tenant, Procedure, Torts
Texas 14th Court of Appeals
October 19, 2017
14-16-00824-CV
Ken Wise
Published
     The appellants were residential tenants of the appellees. The appellants sued the appellees for breach of contract, various torts, and statutory violations after the appellees initiated a forcible detainer action against the appellants in a justice court. Although the appellants initially obtained a default judgment, the trial court granted a new trial and vacated the default judgment. Then, the trial court dismissed the appellants’ suit because the appellants, proceeding in forma pauperis, filed a fraudulent affidavit of indigence and because the suit was barred by res judicata. The appellate court found that an order granting a new trial within the trial court’s plenary power was not subject to review either by direct appeal from that order or from a final judgment rendered after further proceedings in the trial court. The appellants did not contend that any recognized exception applied. Further, no evidence in the record supported the appellants’ contention that the appellant lost his job. The appellants cited no authority for the contention that their receipt of governmental benefits, or the fact that the appellees did not contest the affidavit within ten days, barred the trial court’s dismissal. To the extent the Texas procedural rules concerning contests to affidavits of indigence might govern the exercise of a trial court’s discretion under Tex. Civ. Prac. & Rem. Code Section 13.001, nothing in the applicable versions of the rules supports the appellants’ contentions. Accordingly, the court affirmed the trial court’s judgment.


The evidence was sufficient to support appellant’s conviction for possession of child pornography because the zoomed-in, cropped image depicting a child’s genitals constituted child pornography as that term was defined in Sections 43.26 and 43.25(a)(2)
State v. Bolles
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 18, 2017
PD-0791-16
Bert Richardson
Published
     The appellant was found guilty of the offense of possession of child pornography and sentenced to two years in prison. The appellate court reversed the appellant’s conviction and rendered a judgment of acquittal, holding that the evidence, which consisted of two images taken by the appellant’s cell phone—was insufficient to support his conviction. The Texas Court of Criminal Appeals found that the child pornography could result from image editing and manipulation. In the instant case, the act of zooming in, magnifying, and retaking the image as cropped was a form of image editing. The act of image manipulation combined with the particular composition of the edited image—that was, a close-up of the child’s genital area—resulted in the creation of a different image that constituted the “lewd exhibition” of a child’s genitals. Thus, the evidence was sufficient to support the appellant’s conviction on Count 1 because the zoomed-in cropped image depicting a child’s genitals constituted child pornography as that term was defined in Texas Penal Code Sections 43.26 and 43.25(a)(2). Accordingly, the court reversed the judgment of the appellate court and remanded the case to the trial court with instructions to reinstate the judgment of conviction and the sentence.


Appellee could not show prejudice from his counsel’s failure to request a mistrial, because he did not prove the trial court would have erred if it had denied a request for a mistrial because record did not show the only reasonable interpretation of evidence was that the juror was biased
State v. Gutierrez
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 18, 2017
PD-0197-16
Barbara Parker Hervey
Published
     A grand jury indicted the appellee with three counts of aggravated assault, one count of assault on a public servant, and one count of harassment of a public servant. The eleven-member jury acquitted the appellee of assault on a public servant and one count of aggravated assault. He was convicted of harassment of a public servant and the two other counts of aggravated assault. Based on an enhancement to which the appellee pled true, the trial court sentenced him to 20 years’ imprisonment on each count to run concurrently. The appellee filed a timely motion for new trial, which was granted by the trial court. The Texas Court of Criminal Appeals found that because the record could not support an implied finding that the trial court likely would have granted a mistrial had one been requested at the time of trial, even when viewing the evidence in the light most favorable to the granting of a new trial, the appellate court erred when it concluded otherwise. Also, to the extent that the trial court granted the new-trial motion on that basis, it abused its discretion. Further, the record was subject to conflicting, but reasonable, interpretations. While one judge may have found that the juror was not actually biased, another may have found that the juror was biased. For that reason, the appellee could not prove that the trial court would have erred if it had denied a request for a mistrial because the record did not show that the only reasonable interpretation of the evidence was that the juror was biased. Accordingly, because the appellate court misapplied the prejudice prong of the Strickland test for ineffective assistance of counsel, the court reversed the judgment of the appellate court, vacated the trial court’s order granting a new trial, and ordered the judgments of convictions and associated sentences reinstated.


Evidence presented was not legally insufficient to support conviction for aggravated assault with a deadly weapon, where what was pled and proved was that appellant committed aggravated assault by causing the victim bodily injury and that he used water as a deadly weapon while doing so
Hernandez v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 18, 2017
PD-1049-16
Kevin P. Yeary
Published
     The appellant was convicted of aggravated assault with a deadly weapon. The jury assessed a seven year sentence for the aggravated assault with a deadly weapon conviction and a ten year sentence, suspended to community supervision, for the sexual assault conviction. The Texas Court of Criminal Appeals found that the exact sequence in which the water was used would make no difference because the deadly weapon water was used or exhibited during the commission of the same assault in which the appellant struck the individual with his hands. Therefore, the evidence presented at trial would be legally sufficient to support a conviction for aggravated assault with a deadly weapon. What was pled and proved was that the appellant committed aggravated assault against the individual by causing her bodily injury and that he used water as a deadly weapon while doing so. The indictment did not specify the precise injury that would be shown by the evidence, and exactly how the appellant used his hands to cause the bodily injury was inconsequential to the legal sufficiency analysis. Furthermore, the court held that the appellate court erred by failing to consider all of the evidence presented at trial that might have supported the aggravated assault offense alleged in the indictment when conducting its legal sufficiency analysis. Finally, the evidence presented in the instant case was not legally insufficient to support a conviction for aggravated assault with a deadly weapon. Accordingly, the court reversed the judgment of the appellate court to the extent that it reformed the trial court’s judgment, and the court reinstated the judgment of the trial court.


Because the “represents” definition of “minor” was constitutional as construed in Ingram, and record was insufficiently developed to determine whether any anti-defensive provisions would have been invoked, the court affirmed online solicitation of a minor convictions under pre-2015 statute
Leax v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 18, 2017
PD-0517-16
Barbara Parker Hervey
Published
     The appellant was charged with two counts of online solicitation of a minor under the pre-2015 version of the statute. He filed a motion to quash the indictment (which he later amended), arguing that the statute under which he was convicted was facially unconstitutional when read together with other portions of the statute. The trial court denied the motion, and the appellant entered guilty pleas as to both counts. He was sentenced to 13 years’ confinement on each count to be served concurrently. The appellate court affirmed the appellant's convictions. The Texas Court of Criminal Appeals granted review to determine whether the statute under which the appellant was convicted and its corresponding provisions restricted speech on the basis of its content. The Texas Court of Criminal Appeals found that because the “represents” definition of “minor” was constitutional as the court construed it in Ingram, and the record was insufficiently developed to determine on appeal whether any of the anti-defensive provisions would have been invoked against the appellant, thus, the court affirmed the judgment of the appellate court.


The court reversed judgment in part and rendered a take nothing judgment for appellant on appellee's recovery for trespass, bad faith trespass, bad faith pooling, and conversion and affirmed appellee’s take nothing judgment as to appellant's royalty reimbursement claim for oil and gas lease
XTO Energy Inc. v. Goodwin
Contracts, Damages, Oil, Gas, & Mineral, Real Property
Texas 12th Court of Appeals
October 18, 2017
12-16-00068-CV
Greg Neely
Published
     The appellant corporation challenged the trial court’s judgment and award of damages rendered in favor of the appellee. The appellant presented seven issues on appeal. The appellee obtained a partial summary judgment which voided the Lease because the appellee had not been timely paid the full amount of lease bonuses due under the letter agreement. The appellate court found that because of the court's previous finding that the appellee’s expert offered unreliable testimony that constituted no evidence to support the trespass damages award, the court need not address whether the appellee was entitled to additional damages, absent a finding of malice, or whether the court improperly instructed the jury that it could consider the reasonable value of the appellant’s use of the appellee’s property. Further, the court rejected the appellee’s theory that bad faith pooling could be premised on a lessee attempting to pool leases or lands that were not under lease or that the landowner had not authorized by separate agreement. Accordingly, the appellant’s fourth issue as to the jury’s conversion finding and award of damages was sustained. Furthermore, there was no evidence any accounting errors and incorrect determination as to the validity of the Lease was precipitated through the appellee’s fraudulent or deceptive conduct. Money voluntarily paid on a claim of right, with full knowledge of all the facts, in the absence of fraud, deception, duress, or compulsion, could not be recovered merely because the party at the time of the payment was ignorant of or mistook the law as to his liability. Accordingly, the court reversed the judgment in part and rendered a take nothing judgment in favor of the appellant as to the appellee's recovery for trespass, bad faith trespass, bad faith pooling, and conversion and affirmed that portion of the judgment awarding the appellee a take nothing judgment as to the appellant’s royalty reimbursement claim.


Applicant had not proven that he received ineffective assistance of counsel at punishment phase, where counsel could not be faulted for failing to call character witnesses that refused to appear, for refusing to put applicant on the stand, or for objecting to proper sentence-stacking
Ex parte Scott
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 18, 2017
WR-83,185-07
Barbara Parker Hervey
Published
     The applicant was charged with three counts of inducing a sexual performance by a child, three counts of producing or promoting a sexual performance by a child, and three counts of possession of child pornography. Each indictment referred to a different victim. the applicant pled guilty to the child-pornography charges but went to trial on the other counts. The jury found him guilty of all six of the remaining charges. the applicant was sentenced to 100 years’ confinement. The Texas Court of Criminal Appeals could not say that trial counsel employed an unreasonable strategy and was ineffective for not calling the doctor to testify. Because the habeas court’s conclusion was supported by the record, the court adopted its conclusion. Further, Counsel could not be faulted for failing to call family members to testify about the applicant’s good character when they refused to appear. Next, the applicant had failed to rebut the presumption that his attorney employed a reasonable trial strategy because the impact of the applicant’s testimony would have been difficult to gauge. The court could not say that any competent attorney would have called the applicant to testify under those circumstances. Further, to prevail on an improper-stacking claim, the applicant would have to show that the trial court abused its discretion, but he could not do so on that record because the judge’s ruling was authorized by law. Next, because the court did not agree with the applicant’s interpretation of the record, and based on the court's own interpretation, the court found that trial counsel was not deficient. Finally, the remaining issues were rejected. Accordingly, the court denied the relief.


Appellant did not dispute appellee held a broker’s license on the day she signed the Listing Agreements, as well as on the day that the lease agreement was signed which was the date the appellee actually earned his commission for brokering a real estate transaction for appellant
Zarate v. Rodriguez
Business, Contracts, Damages, Employment, Real Property
Texas 14th Court of Appeals
October 17, 2017
14-16-00038-CV
J Brett Busby
Published
     The appellee sued the appellant to collect the unpaid portion of the commission he earned for brokering a real estate transaction for the appellant. The jury found in favor of the appellee, and the trial court signed a judgment awarding the appellee $23,375.00 in damages based on the jury’s findings. The judgment also awarded the appellee his attorneys’ fees. The appellate court found that the undisputed evidence, summarized above, established that the appellee held a real estate license either as a sponsored sales agent or a broker at all times relevant to his breach of contract claim. Further, the appellant did not dispute that the appellee held a broker’s license on the day that she signed the Listing Agreement and the Amended Listing Agreement, as well as on the day that the lease agreement was signed which was the date the appellee actually earned his commission. Further, the trial court’s error in granting the motion was not harmless because the substance of the waiver defense was not submitted to the jury in any other question. The court therefore sustained the appellant’s fourth issue in part and reversed the trial court’s no-evidence summary judgment on the appellant’s affirmative defense of waiver. Furthermore, the appellant’s failure to respond to the appellee’s motion was fatal to her ability to successfully assert on appeal that the trial court erred in granting the no-evidence motion for summary judgment because the appellant did not file a response, the trial court was required to grant the appellee’s motion. Finally, the appellee recovered attorney’s fees pursuant to chapter 38 of the Civil Practice and Remedies Code. Resolution of the new trial may impact the appellee’s entitlement to and amount of attorney’s fees. Accordingly, the trial court's judgment was reversed and remanded.


Appellee established causation in her retaliatory discharge claim under the Whistleblower Act and Office of Attorney General presented no evidence of availability of positions either before or after appellee took a college position, failing to establish appellee did not mitigate her damages
Office of the Attorney General of Texas v. Rodriguez
Civil Rights, Damages, Education, Employment, Gov't/Administrative
Texas 8th Court of Appeals
October 16, 2017
08-14-00054-CV
Yvonne T. Rodriguez
Published
     The appellee sued her former employer, the Office of the Attorney General of Texas (OAG), for retaliatory discharge under the Texas Whistleblower Act. The trial court rendered judgment on the jury’s verdict and awarded the appellee actual damages and attorney’s fees. The Appellate court found that the Attorney General of Texas (OAG) did not challenge the jury instruction, but contended that there was no evidence to support the conclusion that she used reasonable efforts to seek comparable work after she took the position at Texas Tech, or in other words, she failed to mitigate her damages after taking that position. Further, the only evidence presented on the issue of damages came from the appellee’s testimony that she engaged in an 18-month long search for a comparable job that proved to be futile, after which she took the lower-paying job at Texas Tech, in order to get back on track with her State pension and to begin paying back the debts she and her family had accrued during the time she was unemployed. If the OAG had wished to prove that the appellee was not acting in good faith in taking this position, or that it would not have been futile for her to continue her job search, the OAG could have presented evidence that there were in fact comparable jobs available to the appellee for which she failed to apply during the relevant time period. However, the OAG presented no evidence of the availability of positions either before or after she took the Texas Tech position, and the court therefore concluded that the OAG failed to meet its burden of establishing that the appellee did not mitigate her damages. Accordingly, the trial court’s judgment in its entirety was affirmed.


There was legally and factually sufficient evidence that there had been a material change of circumstances to support jury’s determination that it would be in best interest of the child to designate appellee as conservator, who had exclusive right to designate the primary residence of the child
Epps v. Deboise
Family, Juvenile
Texas 1st Court of Appeals
October 17, 2017
01-16-00285-CV
Laura Carter Higley
Published
     The appellant filed a petition to modify the parent-child relationship, requesting a change in child support and visitation requirements. The appellee filed a counter-petition, requesting a change in the rights of possession. After a trial, the jury modified the parent-child relationship by designating the appellee as the conservator who had the exclusive right to designate the primary residence of the parties’ child. The appellate court held that the evidence was legally and factually sufficient to support the jury’s determination that there had been a material and substantial change warranting the modification since the date of the agreed order. Further, there was legally and factually sufficient evidence to support the jury’s determination that it would be in the best interest of the child to designate the appellee as the conservator who had the exclusive right to designate the primary residence of the child. Furthermore, the trial court did not abuse its discretion by denying the appellant’s motion for mistrial or her motion for new trial. Lastly, the court would have to conclude that the instruction for the jury to disregard sex in fact compelled them to consider it as part of their determination. The court found no evidence for that in the record. Accordingly, the judgment was affirmed.


Allegation emergency personnel’s failure to use a lifting device and caused victim’s bed to fall on her or improperly wrapped bleeding from the bed was not a sufficient allegation of the “use” of tangible personal property to bring appellees’ claims within Tort Claims Act’s waiver of immunity
City of Houston v. Gutkowski
Gov't/Administrative, Health Care, Procedure, Torts
Texas 14th Court of Appeals
October 17, 2017
14-17-00234-CV
Ken Wise
Published
     In the instant interlocutory appeal from the trial court’s denial of the appellant City’s plea to the jurisdiction, the appellate court was asked to consider whether allegations that the appellant’s emergency services vehicle was not supplied with integral safety components to perform a “lift and assist” of a patient, or if supplied were not used by emergency services personnel, could waive the appellant’s governmental immunity under the Texas Tort Claims Act. The appellate court found that, the appellees alleged that the cause of the decedent’s injury and death was the HFD responder’s failure to place her legs in a safe position before lifting her leg and the failure to use some type of portable lifting device, which resulted in the L-shaped laceration of her right leg. There is no allegation that the wrapping material caused the decedent’s injury. The mere allegation that emergency personnel also improperly wrapped the wound is not a sufficient allegation of the “use” of tangible personal property to bring the appellees’ claims within the Tort Claims Act’s waiver of immunity. The court held that the appellees failed to allege facts sufficient to waive the appellant’s governmental immunity under section 102.021(2) of the Tort Claims Act. The court therefore reversed the trial court’s order denying the appellant’s plea to the jurisdiction and motion to dismiss, and rendered judgment dismissing the appellees’ claims. The court did not reach the appellant’s issue concerning the emergency and 9-1-1 emergency services exceptions to the waiver of immunity.


The Additional Compensation and Retention Pay provisions of the parties’ employment agreement were unenforceable restraints of trade, and Tex. Bus. & Com. Code Ann. Section 15.52 preempted the appellee employer’s request for fees based on other statutes or the agreement
Rieves v. Buc-Ee's Ltd.
Contracts, Damages, Employment, Torts
Texas 14th Court of Appeals
October 12, 2017
14-15-01061-CV
J Brett Busby
Published
     The appellee company operated a well-known chain of convenience stores in Texas. The appellant, the appellee’s assistant manager, signed an employment agreement (the 2009 Agreement). The appellant received Additional Compensation under the 2009 Agreement and later Retention Pay under the 2010 Agreement, and she paid federal income taxes on those amounts. The appellee’s sent the appellant a demand for payment of $66,720.29, plus interest and attorneys’ fees. The appellant responded by filing the lawsuit seeking a declaration that those provisions of the agreements function as unreasonable restraints of trade and were therefore unenforceable. The trial court granted the appellee’s second motion for summary judgment, denied the appellant’s motion, and then signed a final judgment awarding the appellee $48,687.46 in damages plus prejudgment and post-judgment interest and attorneys’ fees. The appellate court found that having determined that the Additional Compensation and Retention Pay provisions were unenforceable restraints of trade, the court sustained the appellant’s third consolidated issue. Further, the court held that the trial court erred when it granted the appellee’s partial motion for summary judgment; granted the appellee’s second motion for summary judgment; and denied the appellant’s motion for summary judgment on her request for a declaration that the Additional Compensation and Retention Pay provisions were unenforceable restraints of trade and on the appellee’s counterclaim for breach of contract. Lastly, Tex. Bus. & Com. Code Ann. Section 15.52 preempted the appellee’s request for fees based on other statutes or the 2010 Agreement. Thus, the court sustained the appellant’s issue challenging the award of attorneys’ fees to the appellee’s. Accordingly, the judgment was reversed, remanded and rendered.


Trustees' and appellant superintendent’s acts were not ultra vires, as they were within their authority, but appellant school district was not immune from appellee’s suit that challenged the constitutionality of district's repeal of local option homestead exemption under which it collected taxes
Kilgore Independent School District v. Axberg
Appellate: Civil, Constitution, Education, Gov't/Administrative, Procedure, Tax
Texas 6th Court of Appeals
October 12, 2017
06-17-00060-CV
Josh R. Morriss III
Published
     The appellee individuals sued the appellants, the district, the trustees and the school superintendent, in her official capacity, alleging that the appellant district's repeal of the local option homestead exemption (LOHE) was invalid because it violated state law, that taxes subject to the LOHE had been illegally collected, and that the appellant superintendent and each of the appellant trustees committed various ultra vires actions. The appellees petition sought a declaratory judgment, a permanent injunction, a tax refund, attorney fees, and costs. The appellants filed a plea to the jurisdiction and motion to dismiss, which the trial court denied. The appellate court found that the appellees had failed to plead and support an ultra vires claim against the appellant superintendent. The appellees allegations against the appellant superintendent could not be remedied by amending the petition, because, however pled, the appellant's alleged actions were within her authority, even if it was determined that the appellant district acted improperly. Further, the election of remedies doctrine under Tex. Civ. Prac. & Rem. Code Ann. Section 101.106(b) was inapplicable there. The appellees brought declaratory judgment claims against the appellant district and ultra vires claims against the appellant superintendent. The respective claims against the district and the superintendent were distinguishable. Furthermore, the appellants’ reliance on Franka and Garcia was misplaced because, unlike the issue in the present case, the issues in Franka and Mission were whether the provisions of Section 101.106 applied to all common law tort claims or only those tort claims for which the Tort Claims Act waived immunity, and moreover, neither of the cases applied the election of remedies to claims made under the declaratory judgment act. Accordingly, the court reversed the trial court’s order in part, to the extent that it refused to dismiss the ultra vires claims, and rendered judgment dismissing those claims; but the court otherwise affirmed the trial court’s actions and remanded the remainder of the instant lawsuit for further proceedings consistent with the instant opinion.


The evidence was sufficient under a law-of-parties theory to show that the appellant committed aggravated assault, thus, the trial court properly found that the appellant was delinquent and in need of supervision
In re D.A.K.
Criminal, Evidence, Juvenile, Procedure
Texas 1st Court of Appeals
October 12, 2017
01-17-00211-CV
Michael C. Massengale
Published
     The appellant was charged with aggravated assault, as a juvenile. The trial court adjudicated the appellant as delinquent and in need of rehabilitation, placing him on probation until his eighteenth birthday. The appellate court found that the evidence supported a conclusion that the appellant and the individual aided and assisted each other in the commission of aggravated assault. Therefore, the evidence was sufficient under a law-of-parties theory to show that the appellant committed aggravated assault. The trial court thus properly found that the appellant was delinquent and in need of supervision. Accordingly, the judgment was affirmed.


Texas Citizens Participation Act did not authorize a counter-motion to dismiss as substitute for a response in opposition, and a reasonable person would perceive the letter to be appellee’s opinion coupled with some statements of true fact, and not actionable in defamation
Paulsen v. Yarrell
Civil Rights, Constitution, Procedure, Torts
Texas 1st Court of Appeals
October 12, 2017
01-16-00061-CV
Michael C. Massengale
Published
     The instant was an appeal from a take-nothing final summary judgment rendered in favor of the appellee on the appellant’s defamation claims. The appellant challenged the trial court’s denial of a motion to dismiss, in which attempted to invoke the Texas Citizens Participation Act. The appellate court held that the TCPA’s dismissal mechanism did not authorize a counter-motion to dismiss as a substitute for a standard response in opposition. Thus, the trial court correctly denied the appellant’s motion to dismiss the appellee’s TCPA motion to dismiss. Further, having considered the entirety of the letter to the individual, the court found that a reasonable person would perceive the letter to be the appellee’s opinion coupled with some statements of fact, which had been shown to be true, and therefore not actionable in defamation. Thus, the court held that the trial court correctly granted summary judgment on that basis. Finally, because the trial court granted the third motion for summary judgment without specifying a reason, and that interlocutory order merged into the final judgment, the court may affirm the trial court’s entry of final judgment based on the court's conclusion that a reasonable person would have perceived the letter to the individual to be the appellee’s opinion coupled with factual statements that had been shown to be true. Accordingly, the court affirmed the judgment of the trial court.


Barker factors balanced together weighed against a determination appellee was denied his right to a speedy trial, where appellee acquiesced to the delay from prolonged wait for results of the DNA testing he initiated, notwithstanding prejudice from the delay showing his anxiety and concern
State v. Davis
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
October 12, 2017
03-15-00620-CR
Jeff Rose
Published
     The State in the instant appeal contended that the trial court abused its discretion by setting aside the indictment against the appellee for violation of his Sixth Amendment right to a speedy trial. The jury convicted the appellee in 2011 for the victim's murder, and the trial court sentenced him to thirty-six years’ imprisonment. The appellate court found that the weight assigned to the delay from State’s motion for continuance for completion of DNA testing was balanced out by the appellee’s initiation of the request for DNA testing, the benefit of having DNA testing, and the trial court’s decision as to the necessity of having everything tested for DNA before the retrial. Further, the appellee did not assert his right to speedy trial during the periods from indictment to issuance of the appellate mandate. During the time following the issuance of the instant court’s mandate and leading up to the district court’s order setting aside the indictment, the appellee acquiesced to the delay from the prolonged wait for results of DNA testing that he initiated. As such, the assertion-of-right-to-speedy-trial factor weighed against the appellee. Based on the unchallenged evidence, the trial court could have reasonably found that the appellee met his burden of making some showing of prejudice from the delay showing his anxiety and concern under the Barker v. Wingo test and the court concluded that the prejudice factor weighed in favor of the appellee. Finally, the Barker factors balanced together weighed against a determination that the appellee was denied his right to a speedy trial. Accordingly, the court sustained the State’s issues contending that the trial court abused its discretion by dismissing the appellee’s indictment for violation of his right to a speedy trial. Accordingly, the court reversed the trial court’s order setting aside the appellee’s indictment and remanded the instant cause for further proceedings.


Trial court abused its discretion by granting real parties’ in interest request for new trial on attorneys’ fees after jury awarded less than entire amount sought, erroneously basing decision on cumulative errors, where evidence sufficiently supported a range of fees encompassing jury’s award
In re BCH Development, LLC
Appellate: Civil, Damages, Procedure, Real Property
Texas 5th Court of Appeals
August 15, 2017
05-16-01481-CV
David Schenck
Published
     The instant case arose from the relator’s attempt to construct a home with a habitable attic. The real parties in interest (RPI) brought suit against the relator and the company asserting they were breaching and violating deed restrictions and seeking to enjoin them from constructing a dwelling that had more than one above-ground level or floor of living space, and from constructing a dwelling that had a habitable attic. After the trial court granted the RPI’s motion for summary judgment and permanently enjoined the relator from building a dwelling in the neighborhood in excess of one story and with a habitable attic, the RPI nonsuited its claims against the company. At trial, the only remaining issue was an award of attorney’s fees under the property code. The jury returned a verdict awarding the RPI $290,000. The RPI moved for judgment notwithstanding the verdict or for a new trial. The trial court granted the RPI’s motion for new trial. The appellate court found that the relator’s counsel’s comments about the $25,000 segregation and the claim upon which the RPI could not recover were comments on the facts and reasonable inferences therefrom. The relator’s counsel referred the jury to the fee statements, which were in evidence, to decide the issue of segregation itself and the comment about hundreds of thousands of dollars was hyperbole. The arguments were, thus, not improper. Further, to the extent the trial court granted a new trial based on factual insufficiency of the evidence to support the jury’s award of $290,000 in attorney’s fees, that reason was not correct or legally appropriate, and the trial court abused its discretion in granting a new trial for that reason. To the extent the trial court granted a new trial on the basis of cumulative error, that basis was not a reason that was legally appropriate. When there were no errors, the court rejected cumulative error arguments. The trial court abused its discretion by granting a new trial based on grounds that were not legally appropriate. Accordingly, the court conditionally granted the relator’s petition for writ of mandamus.


Appellant physician who provided emergency services in a hospital owned by local government, but who was not employed by it, was a "public servant" whose personal liability under certain circumstances is capped under section 108.003 of Texas Civil Practice and Remedies Code
Anderson v. Stiniker
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Health Care, Torts
Texas 7th Court of Appeals
July 26, 2017
07-16-00214-CV
Patrick A. Pirtle
Published
     The deceased underwent surgery for rectal bleeding and hemorrhoid disease at University Medical Center (UMC), a local government hospital. At UMC, he was evaluated by a nurse and the appellant doctor, an emergency room physician who did not perform the original surgery. The appellees filed a wrongful death and survival health care liability claim against the appellant and others, seeking compensation for damages arising from the deceased’s death. The appellees sought recovery of compensatory and exemplary damages based on allegations of negligent medical care and treatment rendered to the deceased by the appellant during his time at the UMC emergency department. The appellant subsequently filed his Motion for Partial Summary Judgment. The appellant then sought to invoke the jurisdiction of the appellate court. The trial court signed an order permitting an interlocutory appeal and staying all further proceedings pending a resolution of that issue via an interlocutory appeal, if granted. The appellate court found that although the exclusive language of Section 108.001(2) of the Texas Civil Practice appeared to conflict with the inclusive provisions of Section 108.001(3), the two sections could be reconciled by simply recognizing that they were not mutually exclusive. In that context, the later enacted, specific provisions of 108.001(3) trump the earlier enacted, general provisions of 108.001(2). Thus, the appellant’s issue was sustained. Accordingly, the order of the trial court denying the appellant’s motion for partial summary judgment was reversed and as the instant was a permissive interlocutory appeal, the court remanded the cause to the trial court for further proceedings consistent with the opinion.


Appellee disproved appellant initiated an appropriate grievance procedure prerequisite to her whistleblower claim, and disproved her termination was caused by any report that she may have made to Texas Education Agency or Superintendent, but rather for her extra-curricular discussion in class
Whitney v. El Paso Independent School District
Appellate: Civil, Civil Rights, Education, Employment, Gov't/Administrative
Texas 8th Court of Appeals
August 23, 2017
08-16-00007-CV
Ann Crawford McClure
Published
     The appellant filed the suit, alleging a violation of the Texas Whistleblower Act. The suit claimed that she reported to the Texas Education Agency that a counselor in charge of handling the Texas standardized tests at her school was not certified. She also alleged that she had complained to the Superintendent about the bilingual program at her school, and the mishandling of a grant. The appellant complained that her termination was in retaliation for those reports. The appellee district answered, asserting a plea to the jurisdiction as a part of its answer. After some discovery, the appellee moved for summary judgment. The trial court granted the appellee’s motion for summary judgment. The appellate court concluded that the appellant did not initiate the applicable grievance procedure that was a prerequisite for bringing her Whistleblower claim. Even had she initiated a proper administrative challenge, the court also concluded that the appellee disproved at least one essential element of her claim. Thus, the trial did not err in granting summary judgment because the appellee failed to disprove an essential element of her whistleblower case as appellant argued. Further, the court concluded that the appellee disproved that the appellant initiated an appropriate grievance, and disproved that the termination was caused by any report that she may have made. Accordingly, the judgment was affirmed.


Appearance of summoned venire panel member’s daughter by mistake, instead of the summoned mother, who submitted to the jurisdiction of the trial court, took the oath and properly followed orders of the trial court during trial, did not violate appellant's Sixth Amendment right to a trial by jury
Almanza v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
July 12, 2017
10-16-00224-CR
Tom Gray
Published
     The appellant challenged from a conviction for the offense of driving while intoxicated. The appellate court held that the witness’ appearance and presentation of herself for jury duty effectively placed herself within and under the jurisdiction of the trial court for the purpose of participating in the appellant’s trial and there was no error in her participation as a juror. Thus, the appellant was convicted by a panel of six jurors as required by the Sixth Amendment. Accordingly, the judgment was affirmed. 


While it was to be hoped the mother’s lifestyle had changed, trial court would not risk a return to her former lifestyle of drug use and violent conduct, and fairly measured her future conduct by her past when it determined that termination of her parental rights was in the child’s best interest
In re C.V.
Family, Juvenile
Texas 7th Court of Appeals
August 25, 2017
07-17-00072-CV
James T. Campbell
Published
     The appellee department sought termination of the parental rights of the mother and the father to their child. After a bench trial, the trial court signed an order terminating the mother’s parental rights but not those of the father. It appointed the appellee the child’s permanent managing conservator and the father possessory conservator. The appellate court found that the evidence permitted the trial court to conclude the mother’s admitted conduct during the years preceding the child’s removal was in many respects contrary to her small child’s emotional and physical needs, her emotional and physical safety, and the stability of the mother’s home. While it was to be hoped that the mother’s assertions that her lifestyle had changed were true, the trial court was not required to impose on the child the risks that the mother would return to her former lifestyle of drug use and violent conduct. A court may fairly measure a parent’s future conduct by her past when determining whether termination was in a child’s best interest. Accordingly, the court affirmed the trial court’s order of termination.


Because appellant did not clearly and unequivocally waive his right to have a non-disqualified judge preside over his community supervision revocation and adjudication hearing, he could raise the issue on appeal, which was a category two right under Marin v. State, and trial court was reversed
Metts v. State
Constitution, Courts, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
August 25, 2017
11-13-00203-CR
Mike Willson
Published
     The trial court found that the appellant had violated the terms and conditions of his deferred adjudication community supervision, it revoked his community supervision in both cases, adjudicated his guilt for two counts of sexual assault of a child, assessed his punishment at confinement for ten years in each case, and sentenced him. The appellate court found that in Ex parte Richardson , the defendant was aware that the trial judge was the prosecutor in his case, and the defendant declared that he wished to proceed with the trial judge on his plea agreement. Further, the Texas Court of Criminal Appeals held that the defendant could not raise his challenge to the trial judge for the first time in a habeas corpus proceeding where he had not previously raised the issue with the trial court or on direct appeal. Unlike Richardson, the appellant had raised the issue on appeal, and the court found nothing in the record where the appellant clearly and unequivocally waived his right to have a non-disqualified judge hear his revocation and adjudication hearing. Therefore, because the appellant did not clearly and unequivocally waive his right to have a non-disqualified judge preside over his revocation and adjudication hearing, he could raise the instant issue on appeal. Accordingly, the court sustained the appellant’s issue. Accordingly, the court reversed the judgments of the trial court, and remanded the causes to the trial court for further proceedings.


Trial court’s grant of bill of review, of default judgment in underlying suit to quiet title, was not a final appealable order, and appeal dismissed for lack of jurisdiction; bona fide attempt exemption could not provide jurisdiction to appellate court, which preferred dismissal over abatement
Alaimo v. U.S. Bank Trust National Association
Appellate: Civil, Creditor/Debtor, Procedure, Real Property
Texas 2nd Court of Appeals
August 24, 2017
02-16-00123-CV
Bonnie Sudderth
Published
     The appellant purchased the property at issue from Land Trust, which had obtained title to the property after a foreclosure sale. Later that year, in the trial court in the first cause (hereafter, the underlying action), the appellant sued the appellee to quiet title to the property. The appellee failed to answer, and the appellant obtained a default judgment against it. In the trial court in the second cause (hereafter, the bill of review proceeding), the appellee filed a petition for bill of review seeking to set aside the default judgment, claiming that the appellant had failed to properly serve it in the underlying action. The trial court granted the bill of review, and the trial court set aside the default judgment in the underlying action. The appellant challenged the trial court’s summary judgment for the appellee in trial court’s first cause and the trial court’s order granting a bill of review involving the same parties in trial court’s second cause. The appellate court found that the parties may agree to and, within the bounds of discretion, the trial court may order, relief similar to that which the appellant asked the appellate court to impose upon the district clerk with regard to the filing or use of documents erroneously filed in the underlying action. Further, the appellant’s proposal for abatement ignored the possibility that other errors, procedural or substantive, may occur during the abatement process, which would require the raising of additional points and briefing in the reinstated appeal. Even if the court accepted the appellant’s premise that there was virtually no prospect of a different outcome, it would still be necessary for the parties to expend time and resources to provide up-to-date citations to authority and briefing thereon relevant to whatever issues they might have assumed that the court would have determined to remain. Because the court believed that the identifying and framing of issues on appeal was an endeavor best left to the advocates, not the trial court, the court declined the appellant’s invitation to abate, rather than dismiss, the appeal. Accordingly, the court vacated the judgment, and dismissed the instant appeal.


Appellant limited partnership’s amended restrictive covenant requiring club membership was invalid as to appellee condominium owners due to appellant's failure to renew the covenant after the ninth anniversary under the original covenant; non-condominium homeowners were not necessary parties
Twin Creeks Golf Group, L.P. v. Sunset Ridge Owners Association, Inc.
Contracts, Corporations, Gov't/Administrative, Real Property
Texas 3rd Court of Appeals
August 25, 2017
03-16-00653-CV
Melissa Goodwin
Published
     In the instant case of first impression, the appellate court construed Section 82.0675 of the Uniform Condominium Act. Section 82.0675 dictating that a provision of a declaration or recorded contract that required condominium owners to maintain a membership in a private club was not valid after the tenth anniversary of the date the provision was recorded or renewed unless it was renewed after the ninth anniversary of that date in the manner provided by the declaration or recorded contract. The appellee company sued the appellant, the limited partnership seeking a declaration that an amended restrictive covenant filed by the appellant that required club membership was invalid as to the appellee condominium owners under Section 82.0675(a) due to the appellant's failure to renew the covenant after the ninth anniversary. The appellee filed a motion for summary judgment, and the appellant challenged the trial court’s order granting summary judgment in favor of the appellee. The appellate court found that Section 82.0675 applied to the Amendment, and because it was undisputed that the appellant did not renew the Amended Restrictive Covenant after the ninth anniversary of the date it was recorded as required by Section 82.0675(a), the court further concluded that the trial court did not err in granting the appellee's motion for partial summary judgment. Further, the appellant's intention to increase membership dues for non-condominium homeowners did not make them necessary parties under Rule 39(a). Applying the plain language of Tex. R. Civ. P. Rule 39(a), the court concluded that the non-condominium homeowners were not necessary parties and overruled the appellant's third issue. Thus, the trial court did not err in denying the appellant's plea in abatement. Accordingly, the court affirmed the trial court’s judgment.


Appellant minority shareholders failed to show they were damaged to support their claim appellee company and its directors breached the Certificate of Incorporation, and their fiduciary duty, in an effort to divest them of their shares through an attempted restructuring of the company
Gonazlez v. Universalpegasus International, Inc.
Contracts, Corporations, Procedure, Securities, Torts
Texas 14th Court of Appeals
August 24, 2017
14-16-00009-CV
Ken Wise
Published
     The instant case involved minority shareholders in a Delaware corporation who claimed that the corporation and its board of directors sought to divest them of their shares through an attempted restructuring of the company. The minority shareholders challenged a summary judgment against them on their claims of breach of contract, breach of fiduciary duty, and violations of the Texas Securities Act. The appellate court found that the appellants had failed to present evidence raising a genuine issue of material fact that they were damaged by the alleged violations to support their claim that the appellees, the company and its directors breached the Certificate of Incorporation. Consequently, the appellants were not entitled to either dividends and liquidation payments or recognition that they remain as shareholders in the appellee company. Further, the trial court did not err by concluding that the appellants failed to raise a fact issue precluding summary judgment in favor of the appellees on the appellants’ breach of fiduciary duty claims. Furthermore, assuming that the right to receive the merger consideration and the alternative right to seek an appraisal constituted an offer for purposes of the Texas Securities Act, the court had already determined that the appellants presented no evidence of material misstatements or omissions. However, the appellants had no admissible evidence of damages. On that record, the court concluded that the trial court did not err by granting summary judgment on the appellants’ Texas Securities Act claim. Accordingly, the court affirmed the trial court’s judgment.


Appellees did not assert appellant city was negligent in forming policy for police protection, but, rather officer was negligent in carrying out appellant's policy requiring passengers in patrol cars be secured with seat belts; thus, trial court properly denied city’s plea to the jurisdiction
City of Houston v. Nicolai
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
August 24, 2017
01-16-00184-CV
Terry Jennings
Published
     In the instant interlocutory appeal, the appellant city challenged the trial court’s order denying its plea to the jurisdiction in the suit by the appellees, as parents of the deceased, against the appellant for negligence and wrongful death. The appellate court found that the appellees did not assert that the appellant was negligent in the formulation of a policy related to police protection. Rather, the appellees asserted that the officer was negligent in carrying out the appellant's policy requiring that passengers in patrol cars be secured with seat belts. Thus, Tex. Civ. Prac. & Rem. Code Ann. Section 101.055(3) was inapplicable. The court held that the appellant did not retain its immunity based on the exception in Section 101.055(3). Thus, the trial court did not err in denying the appellant's plea to the jurisdiction. Accordingly, the court affirmed the trial court’s order denying the appellant's plea to the jurisdiction.


Trial court erred in its construction of mineral lease, where express language provided for determination of retained acreage on a date certain, and appellant retained acreage by virtue of then operating wells, but only to a certain depth, where appellant had already released the section below
Apache Deepwater, LLC v. Double Eagle Development, LLC
Contracts, Oil, Gas, & Mineral, Real Property
Texas 8th Court of Appeals
August 23, 2017
08-16-00038-CV
Ann Crawford McClure
Published
     The lease bonus paid at the outset of a mineral lease was nice, but a stream of royalty payments was better. On the other hand, mineral lessees must measure the cost to gather and bring the minerals to market against the expected return. They must prioritize where best to invest the substantial costs of hiring a drilling rig. At the intersection of those sometimes competing interests were three clauses in a typical oil and gas lease. The dispute arose out of a 640-acre leasehold that contained four equal proration units of 160 acres. The appellate court found that the appellee corporation placed greater emphasis on the retained acreage clause because it was typewritten, while other provisions were on a pre-printed form. But the court noted that the habendum clause itself had a typewritten change made to it. The original parties must have specifically considered, and then modified that clause. The court could accord it no less dignity than other typewritten provisions. Further, the court sustained the appellant's corporation two issues which urge that the trial court erred in its construction of the lease and the court granted judgment in the appellant’s favor in one regard, but denied it in another. The appellant’s motion for summary judgment sought a declaration that the express language of the 1975 Lease provided for the determination of retained acreage on a date certain, July 11, 1978 and as of that date, the appellant retained the acreage in each quarter section by virtue of the then operating wells. It also sought a declaration that it held record title and ownership to the entire mineral leasehold interest, thus, the appellee’s claims for partial termination of the 1975 Lease failed as a matter of law. Finally, the court sustained that relief, but only to the depth of 10,004 feet because as the appellee alleged in its petition, and the appellant had not challenged otherwise, that a predecessor in interest to the appellant had already released the entire section below 10,004 feet. Accordingly, the entire leasehold was extended and the court reversed the trial court’s judgment to the contrary.


Unavailability of prior assault victim’s affidavit to defense for use at punishment phase was not material, where victim witness acknowledged “impeaching facts” in her testimony; appellant’s objection was not valid, as State could introduce facts of extraneous offense during punishment phase
Morris v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 24, 2017
01-16-00330-CR
Michael C. Massengale
Published
     A jury convicted the appellant of assault on a family member as a second offense. The jury found enhancement allegations to be true and assessed a 50-year prison term as punishment. The appellate court found that there was not a reasonable probability that the outcome of the punishment phase would have been different had the affidavit been available to the defense for use at trial. When suppressed Brady material had no reasonable probability of affecting the outcome of the trial, it was not material in the sense relevant to Brady. Thus, the unavailability of the appellant’s 2008 affidavit to the defense did not undermine the fairness of the trial or confidence in the outcome. Further, the sole premise of his objection was that a witness may not be called solely for the purpose of impeaching her credibility. In the absence of any other objection suggesting the inadmissibility of the appellant’s prior inconsistent statement, that premise was not a valid objection to the State calling her as a witness. Indeed, the State was authorized to introduce the underlying facts of an extraneous offense during the punishment phase of a trial. Accordingly, the judgment was affirmed.


Given dispute over amount of relocation assistance appellee city agreed to pay appellants, appellants were entitled to prejudgment interest, and trial court abused its discretion by denying it, and erred in awarding attorneys’ fees and costs to appellee when appellants were the prevailing party
Trevino v. The City of Pearland
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Real Property
Texas 14th Court of Appeals
August 24, 2017
14-16-00298-CV
Kem Thompson Frost
Published
     The instant appeal arose out of a dispute between the appellee city and property owners, the appellants, in connection with the appellee’s land acquisition. The appellant owners of one piece of property conveyed a portion of their property to the appellee for an agreed-upon price. When the appellee and the appellants clashed over the amount the appellee would pay the appellants for expenses related to the relocation of their business, litigation ensued. Both sides sought a declaratory judgment. After a jury trial on the amount the appellee agreed to pay the appellants, and a bench trial on the attorney’s fees, the trial court rendered judgment ordering the appellee to pay the appellants the amount of relocation assistance to which the jury found that the appellee had agreed to pay, and the trial court awarded attorney’s fees to the appellee. The appellate court found that the $84,235 award to the appellants could be interpreted as an award only for its breach-of-contract claim, and that the appellants were the prevailing parties on their breach-of-contract claim. Further, an award of attorney’s fees must be supported by evidence that the fees were reasonable and necessary. The appellants presented evidence of reasonable and necessary attorney’s fees at the bench trial. Next, given the dispute over the amount of relocation assistance the appellee agreed to pay the appellants, the court found that the appellants were entitled to prejudgment interest, and the trial court abused its discretion by denying it. Further, because the trial court neither awarded the appellants costs nor stated any good cause that would justify not awarding costs, the trial court abused its discretion by failing to award costs. Furthermore, because the disposition on appeal substantially affected the trial court’s judgment, reversal of the trial court’s attorney’s-fees awards in the appellee’s favor was warranted so that on remand the trial court can address what reasonable and necessary attorney’s fees, if any, should be awarded against the appellants and in favor of the appellee under the Declaratory Judgments Act in light of all the circumstances, including the relief granted in the trial court’s judgment on remand. Accordingly, the judgment was affirmed, reversed and remanded.


Appellant city failed to establish Collective Bargaining Agreement, as extended by the evergreen clause, was unconstitutional, void or violated public policy, where CBA was consistent with public policy under Local Government Code, and did not create a debt to be funded from future revenues
City of San Antonio v. San Antonio Firefighters! Association, Local 624
Constitution, Contracts, Employment, Gov't/Administrative
Texas 4th Court of Appeals
August 23, 2017
04-15-00819-CV
Luz Elena D Chapa
Published
     The appellant city had adopted Chapter 174 of the Local Government Code, the Fire and Police Employee Relations Act. The collective bargaining agreement (CBA) required the appellant to provide specified health benefits to the appellee fire fighter and their eligible dependents. The appellant filed its original petition, seeking a declaratory judgment that the evergreen clause was void. The appellant filed a motion for partial summary judgment. The trial court denied the motion for summary judgment, ruling that the Evergreen Clause in the CBA was not void or illegal. The appellate court found that the appellant failed to establish as a matter of law that the evergreen clause or the CBA as a whole was void or violated public policy. The evergreen clause merely extended the duration of the CBA, but standing alone did not create a debt. The CBA as a whole was not unconstitutional on the ground asserted by the appellant because it contained significant provisions that, even as extended by the evergreen clause, did not create unconstitutional debt. Moreover, the CBA included a savings' clause that stated no portion of the CBA or provision therein should become inoperative or fail by reason of the invalidity of any other portion or provision. Further, the CBA did not cede or improperly restrict the appellant’s governmental or legislative powers and did not violate public policy. To the contrary, the CBA was consistent with public policy as expressed in Chapter 174 of the Texas Local Government Code, which authorized collective bargaining between cities and the appellee regarding compensation and conditions of employment and provided such agreements were binding and enforceable against a public employer. Thus, the trial court did not err in denying the appellant’s motion for summary judgment. Accordingly, the judgment was affirmed. 


Because trial court struck from trespass suit appellant’s last-amended pleading asserting claims concerning enforcement of parties’ Rule 11 settlement agreement, the cause in a separate suit, when pleading amendments on such claims were to be freely allowed, judgments in both suits reversed
Tony's Barbeque and Steakhouse, Inc. v. Three Points Investments, Ltd
Appellate: Civil, Contracts, Procedure, Real Property
Texas 14th Court of Appeals
August 22, 2017
14-16-00207-CV
Tracy Christopher
Published
     The Texas legislature had declared that, as a matter of state policy, settlement of pending litigation was to be encouraged. But, just as with other contracts, disputes arose about the meaning and enforceability of settlement agreements. If the cause that the agreement was intended to resolve was still pending in the trial court, then disputes about the settlement agreement were to be pleaded and addressed in that cause, if it was possible to do so. The appellate court found that when a dispute over the enforceability of a settlement agreement was pleaded before judgment was rendered, the parties were entitled to have the settlement dispute resolved before proceeding further on the merits of the underlying claims. Pleading amendments raising such claims were to be freely allowed when, as in the present case, the new claims arising from the settlement agreement satisfied the rules governing late-filed pleading amendments. Because the trial court instead struck from the Trespass Suit the Restaurant’s last-amended pleading asserting claims concerning the enforcement of the parties’ Rule 11 settlement agreement, the court reversed the trial court’s judgment in the first cause and remanded the cause to the trial court for retrial. The court therefore reversed the judgment in second cause, and the court remanded that cause to the trial court for further proceedings.


Trial court’s summary judgment orders did not dispose of every pending claim in the case because parties’ competing motions for summary judgment did not address all theories and procedures involved in homeowners’ default and foreclosure sale conducted in the face of a temporary restraining order
Silver Gryphon, LLC v. The Bank of New York Mellon
Banking and Finance, Contracts, Procedure, Real Property, Torts
Texas 14th Court of Appeals
August 22, 2017
14-16-00476-CV
Martha H. Jamison
Published
     The appellant company acquired real property that was the subject of the lawsuit at a foreclosure sale resulting from the former homeowners’ default in payment of homeowners’ association fees. After the appellant purchased the property, the appellee bank initiated foreclosure proceedings resulting from the former homeowners’ default under the note. The appellant filed suit and obtained a temporary restraining order to stop the sale. The appellee company purchased the property at the sale. The appellant amended its petition (First Amended Petition) to add the appellee company as a defendant and brought a wrongful foreclosure cause of action against the appellee bank and tortious interference and abuse of process causes of action against both the appellees. The appellees each moved for summary judgment as to all causes of action. While the motions were pending, the appellant filed another amended petition denominated as the Second Amended Petition. The trial court granted both motions for summary judgment. The appellate court found that the fraudulent filing claim had a common element with the claim that the foreclosure sale and the substitute trustee’s deed were void; that the foreclosure sale was improper because of the TRO. But, the appellee bank’s motion for summary judgment neither addressed nor conclusively negated the element. Further, the summary judgment orders did not finally dispose of every pending claim in the case, and thus they were not final and appealable. Furthermore, neither motion addressed the limitations theory, and the motions were not broad enough to encompass that theory because they focus specifically on whether the appellee bank had authority to foreclose, there was a defect in the foreclosure sale process, and there was a grossly inadequate selling price. The motions did not address the date the former homeowners defaulted on the note and thus the timeliness of the foreclosure sale. Thus, the trial court’s orders granting summary judgment did not dispose of every pending claim in the instant case or state with unmistakable clarity that they constitute a final judgment. Accordingly, the court dismissed the appeal for want of jurisdiction.


Rule 91a was not a docket management tool and not a basis to punish appellant for incorrect docketing by requiring attorney's fees, where trial court was authorized to hear appellant intervenor’s causes of action related to probate proceeding, and adverse possession action was not baseless
In the Estate of Savana
Appellate: Civil, Courts, Damages, Procedure, Real Property, Wills/Trusts/Probate
Texas 14th Court of Appeals
August 22, 2017
14-16-00439-CV
J Brett Busby
Published
     The instant case concerned the scope of a trial court’s power to dismiss causes of action under Texas Rule of Civil Procedure 91a. Appellant filed a plea in intervention and third-party petition in the independent administration of the estate of her late husband (“the deceased”), asserting causes of action relating to the ownership of a house within the deceased’s estate. Those causes of action included a request for partition and claims of adverse possession and fraud. Appellee, independent executor of the deceased’s estate, filed a Rule 91a motion to dismiss. The trial court granted the Rule 91a motion and awarded attorney’s fees to the appellee as the prevailing party. The appellate court held that Rule 91a was not a docket management tool, nor could it be used to punish parties who incorrectly docket their claims by requiring them to pay attorney’s fees. In addition, the court concluded that (1) the trial court was authorized to hear the appellant’s causes of action because they related to the probate proceeding, and (2) the cause of action for adverse possession was not baseless on the grounds asserted in appellee’s motion. Accordingly, the court reversed the trial court’s order granting the Rule 91a motion and awarding attorney’s fees.


Writ of mandamus granted to county commissioners that compelled the trial court to vacate an order for payment of attorney’s fee for attorneys pro tem, where the Judge did not adhere to statutory schedule of fees that prescribed all payments made to appointed attorneys in criminal cases
In re Collin County
Constitution, Courts, Gov't/Administrative, Procedure
Texas 5th Court of Appeals
August 21, 2017
05-17-00634-CV
Molly Francis
Published
     In the instant original proceeding, the Collin County Commissioners Court sought a writ of mandamus compelling the trial court to vacate an order for payment of attorney’s fee. The appellate court after examining the language of TEX. CODE CRIM. PROC. ANN. article 26.05 and considering the clear objectives of that statute, concluded the criminal district court judges exceeded the authority delegated to them under 26.05 by adopting local rule 4.01B. Article 26.05 mandating that attorney’s fees be paid according to a schedule. Both rule 4.01B and the Judge (Judge)’s second order of payment contradicted that mandate. The judges exceeded their authority in adopting rule 4.01B. Consequently, Judge’s second order of payment, which relied on rule 4.01B and deviated from the mandated fee schedule, was void. Further, the law at issue in the instant case plainly prescribed that all payments made to appointed attorneys in criminal cases be “paid in accordance with a schedule of fees” that included fixed rates or minimum and maximum hourly rates. Judge had no authority to order payment of fees in violation of article 26.05. Where a trial judge lacked authority to take a particular action, he has a ministerial duty to refrain from taking that action, to reject or overrule requests that he take such action, and to undo the action if he has already taken it. The court concluded mandamus relief was appropriate in the instant case. Accordingly, the court conditionally granted relators’ petition for writ of mandamus, ordered the Judge to vacate the Second Order on Payment of Attorney’s Fees to Attorneys Pro Tem.


Where valid Governor’s warrant rendered appellant’s habeas claims under fugitive warrant moot, he had not shown a reasonable expectation he would commit a future crime in a sister state, be arrested and held on a fugitive warrant awaiting a Governor’s warrant and extradition for that offense
Ex Parte Parra
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
August 18, 2017
08-16-00039-CR
Yvonne T. Rodriguez
Published
     The State charged the appellant with arson, a third-degree felony offense, and thereafter, the Curry County issued a warrant for the appellant’s arrest. A Texas magistrate re-committed the appellant to the El Paso County Jail for 60 days. After he was initially arrested and confined on a fugitive warrant, and subsequently re-arrested and confined on a Texas Governor’s warrant, the appellant applied for writ of habeas corpus challenging his extradition to the State to face criminal charges for arson. The appellant challenged the trial court’s denial of his writ application on the basis that his delay in receiving appointed counsel and bail contravened Texas law and violated his fundamental due process rights. The appellate court found that the appellant could have satisfied the first prong of the exception, he had not shown that there was a reasonable expectation that he would at a future time commit a crime in a sister state, and be arrested and held on a fugitive warrant while awaiting issuance of a Governor’s warrant and extradition to the other state for the new charged offense. The Governor’s warrant was not deficient, and the appellant had not demonstrated entitlement to the requested habeas corpus relief. Accordingly, the judgment was affirmed.


Tex. R. Civ. P. 268 did not conflict with health and safety code section 841.062(a) and a directed verdict was available in appellant’s civil-commitment trial on the repeat-sexually-violent-offender element when it was conclusively established and was not a contested issue for jury to decide
In re Commitment of Perdue
Civil Rights, Criminal, Gov't/Administrative, Health Care, Procedure
Texas 2nd Court of Appeals
August 17, 2017
02-17-00017-CV
Elizabeth Kerr
Published
     The appellant admitted to having four sexual-offense convictions consisting of two convictions for indecency with a child by contact in 1985, a 1987 conviction for indecency with a child by contact, and a 1994 conviction for aggravated sexual assault of a child under 14 years of age. The appellant pleaded guilty to each of the four offenses. He was sentenced to five years in prison for each of the 1985 convictions and for the 1987 conviction, with the three sentences to run concurrently. Following his 1994 conviction, he was sentenced to 30 years in prison and was currently incarcerated. The State filed a petition to commit the appellant as a sexually violent predator (SVP). A jury found that the appellant was an SVP, and the trial court rendered a final judgment and a civil-commitment order. The appellate court agreed with the sister courts that Tex. R. Civ. P. 268 did not conflict with health and safety code section 841.062(a) and that a directed verdict was available in a civil-commitment trial on the repeat-sexually-violent-offender element when it was conclusively established and was not a contested issue for the jury to decide. Thus, the court concluded the trial court did not err by granting the State’s motion for partial directed verdict. Accordingly, the judgment was affirmed.


Officer’s personnel file was irrelevant and did not contain exculpatory or impeachment evidence; allowing officer to testify as to appellant’s speeding was proper; and pro se appellant had not provided evidence to support her waived arguments the prosecutor and jury were biased
Canada v. State
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
August 17, 2017
03-17-00091-CR
David Puryear
Published
     After a jury trial in the municipal court, the jury found the appellant guilty in car accident and assessed a fine of $200, and the court rendered its judgment in accordance with the jury’s verdict. The appellant filed a motion for new trial. After considering the motion for new trial, the municipal court denied it, and subsequently, the appellant appealed the municipal court’s judgment to the county court at law. The appellant appealed the county court at law’s judgment. The appellate court found that similar to the court's prior determination that the municipal court did not abuse its discretion by determining that the information in the file regarding prior complaints was not subject to disclosure because it would not effectively impeach the officer's testimony, the court must conclude that the municipal court did not abuse its discretion by determining that the questions regarding the officer's prior complaints in which no disciplinary action was taken were not relevant to establishing any bias or interest on behalf of the officer or to the issues presented in the case. Further, the court agreed with the county court at law that the statements made by the State in its closing were either proper jury argument or, alternatively, that if the bias comment exceeded the permissible scope, the appellant was not harmed by that error. Furthermore, nothing in the record demonstrated the racial or ethnic makeup of the jury panel. Perhaps more importantly, the appellant made no objection regarding the jury panel to the municipal court and did not present the arguments summarized in her motion for new trial. Thus, the court agreed with the county court at law that the appellant failed to preserve the claims for appellate review. Accordingly, the court affirmed the county court at law’s judgment.


Even though appellee had cast her causes of action in contract terms, she had satisfactorily asserted a health care liability claim, but since appellee did not serve on appellant doctor an expert report as required under Chapter 74, trial court erred in denying appellant’s motion to dismiss
Ahmadi v. Moss
Appellate: Civil, Contracts, Damages, Health Care, Procedure, Torts
Texas 14th Court of Appeals
August 17, 2017
14-16-00942-CV
Tracy Christopher
Published
     The appellee filed an original petition against the appellant doctor, asserting causes of action that she labeled as breach of contract, breach of implied contract, and unjust enrichment. The factual basis for each of the claims arose out of an agreement to perform cosmetic surgery. The appellee had sought and prepaid for a breast reduction and a liposuction of the axilla, which was the area around the armpit. The appellee alleged in her petition that the appellant scheduled a surgery but did not perform all of the surgery services promised. After exhausting administrative remedies, the trial court denied the appellant’s motion. The appellate court found that the parties agreed that the appellant was a health care provider or physician. Further, even though the appellee had cast her causes of action in contract terms, the court concluded that they actually complained about the lacked of treatment, or other claimed departure from accepted standards of health care. Lastly, the appellee had alleged an injury, economic damages for services paid for and never performed and that the injury was the proximate result of the appellant’s alleged departure from the standard of care. Thus, having determined that all three elements were satisfied, the court concluded that the appellee asserted a health care liability claim against the appellant. The appellee did not serve the appellant an expert report as required by Chapter 74 and also the trial court erred by denying the appellant’s motion to dismiss. Accordingly, the judgment was reversed and remanded.


Appellees had standing as taxpayers and appellant city had not proved trial court lacked subject matter jurisdiction over appellees’ allegations appellant mayor acted without legal authority and their pursuit of declaratory judgment and injunctive relief regarding validity of ballot proposition
Turner v. Robinson
Constitution, Election, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
August 17, 2017
14-16-00393-CV
John Donovan
Published
     The appellants approved an ordinance placing two propositions for amendments to the city charter on the ballot in an election: Prop. 1 and Prop. 2. After the election, for two independent reasons, the appellants determined Prop. 1 was legally binding and Prop. 2 would not be enforced. In a prior case, the appellees sued the appellants, seeking a declaratory judgment that Prop. 1 and Prop. 2 must both be added to the City Charter. The appellants filed a plea to the jurisdiction, followed by a supplemental plea, contending, inter alia, that the appellees lacked standing. The appellants also filed a motion for summary judgment and a supplemental motion. The trial court denied the appellants’ plea to the jurisdiction and motion for summary judgment. The trial court denied the appellants’ request for reconsideration of its motion for summary judgment. The appellees also filed a motion for summary judgment which the trial court granted. After exhausting administrative remedies, the appellees filed suit against the appellants, seeking declaratory and injunctive relief. The appellants subsequently filed a plea to the jurisdiction and, subject to the plea, a motion for summary judgment. Both were denied by the trial court in an order signed. From the denial of its plea, the appellants brought the instant appeal. The appellate court found that the appellees sought injunctive and declaratory relief to prevent the future collection and expenditure of funds in excess of the caps imposed by the passage of Prop. 1 and Prop. 2. In accordance with Terrell and Calvert, the court found the appellees have standing as taxpayers. Further, the appellees’ pleadings allege the appellant mayor acted without legal authority. The appellants had not presented conclusive proof negating those allegations. Thus, the record before the appellate court did not demonstrate the trial court erred in denying the plea to the jurisdiction as to the appellant mayor. Finally, there was a provision of the Act that expressly waives a municipality’s immunity for a declaratory-judgment action involving the validity of a municipal ordinance. And while the appellees were challenging actions taken under the ordinances, they also sought a declaration as to their validity. Therefore, the appellant city’s sovereign immunity as to the appellees’ declaratory judgment action was waived. Accordingly, the court affirmed the trial court’s order.


Having concluded appellee’s breach of contract claim pleadings supported waiver, the appellate court affirmed trial court’s denial of appellant’s plea to the jurisdiction, but reversed that portion of trial court’s order granting appellant city immunity for appellee’s claim for attorney’s fees
City of Pearsall v. Tobias
Contracts, Damages, Gov't/Administrative, Procedure, Torts
Texas 4th Court of Appeals
August 16, 2017
04-16-00815-CV
Patricia O. Alvarez
Published
     The instant appeal stemmed from the December 5, 2016 trial court order denying the appellant City’s plea to the jurisdiction seeking to dismiss the appellee’s breach of contract claim and granting the appellant city’s plea to the jurisdiction contending it was immune from the appellee’s claim for attorney’s fees. The appellee filed suit alleging the appellant City breached the contract by failing to pay him the one-year’s salary, plus interest and attorney’s fees, as severance pay. The appellate court found that the contract provided for the city manager to work forty hours per week; the contract further compensated any additional time necessary for the full and proper performance through twelve personal days per calendar year and the contract between the appellee and the appellant City required the appellee to provide his services to the appellant city as an employee; therefore, the requirement that the contract provide for goods or services was satisfied. Further, the appellee’s claim that the appellant city acted within its legal authority to negotiate a period of time to comply with the residency requirement was sufficient to survive a plea to the jurisdiction. Accordingly, the court overruled the appellant city’s contention the acts were ultra vires. Accordingly, the court reversed the portion of the trial court’s order granting the appellant City’s plea to the jurisdiction as to the appellant’s liability for the appellee’s attorney’s fees claim. Because the appellant City waived its immunity with regard to the appellee’s breach of contract claim, the court affirmed the portion of the trial court order denying the appellant city’s plea to the jurisdiction as to the appellee’s breach of contract claim. Having concluded the appellee’s pleadings support a waiver under chapter 271, the court reversed the portion of the trial court’s order granting the appellant city immunity for the appellee’s claim for attorney’s fees. The court remanded the instant cause to the trial court for further proceedings.


Appellant’s pleadings sufficiently indicated waiver of immunity: Alleging that appellee was authorized to enter the contract and duly executed it for goods or services; thus, trial court erred in granting appellee’s plea to the jurisdiction on appellant’s breach of contract claim
NBL 300 Group Ltd. v. Authority
Contracts, Gov't/Administrative, Procedure, Torts
Texas 4th Court of Appeals
August 16, 2017
04-17-00264-CV
Patricia O. Alvarez
Published
     The instant case stemmed from the trial court’s grant of Appellee Authority’s plea to the jurisdiction regarding the appellant corporation's breach of contract claim. On appeal, the appellant contended the appellee waived immunity under Texas Local Government Code sections 271.151–160. The appellant filed suit against the appellee alleging breach of contract and fraud, and in the alternative, sought recovery under the doctrines of quantum meruit, promissory estoppel, negligent misrepresentation, fraud, and gross negligence. The trial court entered a final judgment in favor of the appellee, granting the appellee’s plea to the jurisdiction and dismissing the appellant’s case in its entirety. The appellate court found that because the court may not weigh the merits of either the appellant’s or the appellee’s claims, the only question before the instant court was whether the pleadings supported jurisdiction. Thus, whether the appellant’s claims could be substantiated and whether the appellant could actually prove its entitlement to monies owed was of no concern at that junction. The court review was limited to determining whether the trial court erred in concluding the appellant failed to state sufficient facts to allege a waiver of immunity. The appellant’s pleadings alleged a written contract was negotiated and executed, that the appellee was authorized to enter into the contract and duly executed the contract, and that the contract set forth goods or services. The court concluded the trial court erred in granting the appellee’s plea to the jurisdiction. Accordingly, the court reversed the trial court’s grant of the appellee’s plea to the jurisdiction in relation to appellant’s breach of contract claim and remanded the instant matter to the trial court for further proceedings.


Evidence appellant was only person with victim in locked home allowed rational inference appellant was with victim when she was stabbed; appellant had not proven State acted with purposeful discrimination in striking venire member, and did not challenge prosecutor’s race-neutral explanation
Finley v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 15, 2017
14-16-00411-CR
Kevin Jewell
Published
     The jury found the appellant guilty as charged in the indictment, and the trial court sentenced the appellant to life in prison. The appellate court found that the evidence indicating that no one other than the appellant was with the victim in the locked home during the final minutes of her life, it was rational to infer that the appellant and only the appellant was with the victim when she was stabbed. Further, the court afforded great deference to the trial court’s ruling on the issue of discriminatory intent because a finding regarding intentional discrimination largely turned on the trial court’s evaluation of the demeanor and credibility of the attorney who exercised the peremptory challenge. Additionally, race-neutral reasoned for peremptory challenged often invoked a juror’s demeanor, making the trial court’s firsthand observations of even greater importance. Furthermore, the record did not indicate whether venire member four was a member of a cognizable minority, or whether the State used peremptory strikes only on minority venire members. Nonetheless, the court need not determine whether the appellant made a prima facie case of racial discrimination because the State offered a race-neutral explanation for its strike of venire member four. Lastly, the appellant offered no evidence that would support his burden of proving that the State acted with purposeful discrimination in striking venire member four. The appellant did not challenge the genuineness of the prosecutor’s race-neutral explanation, other than to prove that it was not in fact supported by the record. Thus, the trial court was in the best position to evaluate the prosecutor’s demeanor, and the court would not substitute the judgment for that of the trial court. Accordingly, the judgment was affirmed.


By failing to raise any jury charge error in a timely manner, appellant had failed to preserve his claim that the jury had to find damages before awarding attorney’s fees, and evidence was legally sufficient to support $18,193.19 in legal fees on prosecuting a $2,000.00 contract claim
Daily v. McMillan
Appellate: Civil, Contracts, Damages
Texas 6th Court of Appeals
August 15, 2017
06-17-00038-CV
Ralph K. Burgess
Published
     In the instant case, a county jury determined that the appellant had agreed to pay the appellee $2,000.00 to remove trees and grind stumps on his property. The jury further found that the appellant breached the oral contract by refusing to pay the appellee after he completed the work. In accordance with the jury’s verdict, the trial court awarded the appellee $2,000.00 in damages, along with attorney’s fees in the amount of $18,193.19. The appellate court found that at trial, the appellant affirmatively stated that he had no objections to the trial court’s jury charge. By failing to raise any jury charge error in a timely manner, the appellant had failed to preserve his first appellate point for the review. Further, the court found that the uncontroverted evidence at trial was legally sufficient to enable reasonable and fair-minded people to find that $18,193.19 was the amount of reasonable fees for necessary services, viewing the evidence in a light most favorable to the jury’s verdict. Accordingly, the court affirmed the trial court’s judgment.


Trial court did not abuse its discretion in denying appellant’s request to withdraw his jury waiver because appellant did not meet his burden to show an absence of adverse consequences from granting his request, which would have interfered with the orderly administration of the court’s business
Talbert v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 15, 2017
14-16-00529-CR
J Brett Busby
Published
     After a bench trial, the court found appellant guilty of capital murder and sentenced him to confinement for life in the Texas Department of Criminal Justice Institutional Division. The appellate court concluded the trial court did not abuse its discretion in denying appellant’s request to withdraw his jury waiver. Appellant did not support his motion to withdraw with evidence that granting the request would not (1) interfere with the orderly administration of the court’s business, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the State. Further, the record supported the trial court’s finding that withdrawal would have interfered with the orderly administration of the court’s business. Accordingly, the judgment was affirmed.

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.