The trial court did not err in granting summary judgment on the petitioner’s claims because he received the benefits he was entitled to under the policy via the appraisal award and did not allege any act so extreme as to cause independent injury.
Hinojos v. State Farm Lloyds
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Real Property, Torts
Texas 8th Court of Appeals
January 18, 2019
08-16-00121-CV
Yvonne T. Rodriguez
Published
The petitioner appealed the judgment of the trial court which granted summary judgment in favor of the respondent. On appeal, the petitioner contended that the trial court erred in granting summary judgment on his breach of contract claim because he had raised a genuine issue of material fact with regard to whether the appraisal was timely paid and to whether the respondent proved that the petitioner accepted the appraisal payment. The petitioner further claimed that the trial court improperly granted summary judgment on his extra-contractual claims because his entitlement to recovery did not depend on his entitlement to damages under his breach of contract claims, and the trial court erred in granting summary judgment on his claim under the Texas Prompt Pay Act because the respondent did not establish that it paid the petitioner his appraisal award. The appellate court found that in filing a written answer or response, the non-movant must expressly present to the trial court any issues defeating the movant's entitlement to summary judgment, and issues not expressly presented to the trial court could not be considered on appeal as a grounds for reversal, which was the case here. The appellate court concluded that the trial court did not err in granting summary judgment on the petitioner’s claims because he received the benefits he was entitled to under the policy via the appraisal award and did not allege any act so extreme as to cause independent injury. Accordingly, the judgment of the trial court was affirmed.


Since the El Paso court was authorized to issue a temporary injunction to protect its dominant jurisdiction, the El Paso court's issuance of the anti-suit temporary injunction did not constitute an abuse of the El Paso court's discretion.
Encore Enter., Inc. v. Borderplex Realty Trust
Appellate: Civil, Damages, Procedure, Torts, Wills/Trusts/Probate
Texas 8th Court of Appeals
January 16, 2019
08-17-00153-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court by filing a motion for rehearing of its earlier decision. On appeal, the appellant argued that an anti-suit injunction was available only in limited circumstances and upon certain showings, and that procedurally, the appellee should have first filed and obtained a ruling on a plea in abatement. The appellant also contended that dominant jurisdiction only existed where suits were against adverse parties in the same capacity, which was missing. The appellate court found that the subject matter of the two lawsuits were inherently interrelated, and because suit was first filed in El Paso County, the El Paso court was the court of dominant jurisdiction in these matters. The appellate court concluded that since the El Paso court was authorized to issue a temporary injunction to protect its dominant jurisdiction, the El Paso court's issuance of the anti-suit temporary injunction did not constitute an abuse of the El Paso court's discretion. Accordingly, the appellant’s motion was denied.


Under Rule of Appellate Procedure 44.2(b), the appellate court disregarded a trial court's error unless it affected the defendant’s substantial rights, and thus, the error in this case did not deprive the defendant of a substantial right.
Chasco v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
January 15, 2019
07-17-00243-CR
James T. Campbell
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of indecency with a child and sentenced him to thirty years of confinement. On appeal, the defendant contended that the State failed to prove beyond a reasonable doubt that he inappropriately touched the victim because the victim’s testimony was unclear, she did not inform an adult until many years after the incidents, and the adults did not inform the police immediately. The appellate court disagreed with the defendant and found sufficient evidence to establish the elements of indecency with a child by contact. The defendant further maintained that the trial court abused its discretion when it refused to give the jury a contemporaneous limiting instruction regarding the testimony to the extraneous sexual offenses the defendant committed against the victims. The appellate court concluded that under Rule of Appellate Procedure 44.2(b), it disregarded a trial court's error unless it affected the defendant’s substantial rights, and thus, the error in this case did not deprive the defendant of a substantial right. Accordingly, the judgment of the trial court was affirmed.


Rule 193.3(d) applied with respect to the Due-Diligence Report notwithstanding that the report was first disclosed as a motion for summary judgment exhibit rather than in response to a written discovery request.
In re Fedd Wireless LLC
Appellate: Civil, Constitution, Discovery, Procedure, Professional Responsibility
Texas 14th Court of Appeals
January 15, 2019
14-18-00892-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court, seeking a writ of mandamus asking the appellate court to compel the trial court to vacate its order. On appeal, the appellate court was asked to consider whether a party waived attorney-client privilege as to a document the party relied on, but later abandoned, in seeking traditional summary judgment relief. The plaintiffs argued that the trial court abused its discretion in granting "snap-back" relief and that they lacked adequate remedy by ordinary appeal. Specifically, the plaintiffs contended that rule 193.3(d) did not justify the trial court's orders because the rule applied only to a privileged document that was produced in response to "written discovery." The appellate court found that rule 193.3(d) applied with respect to the Due-Diligence Report notwithstanding that the report was first disclosed as a motion for summary judgment exhibit rather than in response to a written discovery request. The appellate court concluded that the visiting judge abused his discretion by granting snap-back relief because the record showed that the relators did not, within ten days after it discovered that the Due-Diligence Report had been produced inadvertently as part of its motion for summary judgment, amend the motion to omit the document and assert the attorney-client privilege, as required by Rule 193(d). Accordingly, the plaintiffs’ writ was conditionally granted.


The Texas Civil Practice and Remedies Code section 11.101(c) authorized an interlocutory appeal of the part of the trial court's order finding the petitioner to be a vexatious litigant and requiring him to obtain a prefiling order before instituting new litigation against his siblings.
Nunu v. Risk
Appellate: Civil, Damages, Procedure, Real Property, Wills/Trusts/Probate
Texas 14th Court of Appeals
January 15, 2019
14-18-00109-CV
Tracy Christopher
Published
The petitioner appealed the judgment of the trial court which found him to be a vexatious litigant, ordering him to obtain a permission from the local administrative judge before filing new litigation against his siblings, and requiring him to post security to maintain his most recent litigation. On appeal, the petitioner argued that the trial court abused its discretion in finding him to be a vexatious litigant, because no evidence was offered or admitted to support the finding, the statutory prerequisites for such a finding were not satisfied, and the trial court did not correctly apply the law of the case. The appellate court found that the trial court's vexatious-litigant finding was supported by the petitioner’s repeated attempts to relitigate matters that he voluntarily dismissed with prejudice. The appellate court concluded that the Texas Civil Practice and Remedies Code section 11.101(c) authorized an interlocutory appeal of the part of the trial court's order finding the petitioner to be a vexatious litigant and requiring him to obtain a prefiling order before instituting new litigation against his siblings. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that since the record contained no such discovery order, it could not reach the merits of the plaintiffs’ issue.
Harpst v. Fleming
Appellate: Civil, Contracts, Damages, Ethics, Professional Responsibility, Torts
Texas 14th Court of Appeals
December 21, 2018
14-17-00209-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court which rendered a take-nothing judgment in an action where the plaintiffs asserted breach of fiduciary duty and contract claims based on their attorneys' alleged failure to disclose certain information related to the settlement and the deduction of allegedly unreasonable expenses from the clients' recovery. On appeal, the plaintiff argued that the trial court erroneously dismissed one of their claims by granting a pre-trial sua sponte summary judgment in the defendants' favor. The appellate court found that the complained-of ruling was a limine ruling, which preserved nothing for review. The plaintiffs further asserted that the trial court erroneously excluded evidence that they were falsely promised free echocardiograms by law firms that referred them to the defendants. The plaintiffs claimed that the trial court abused its discretion by refusing certain discovery unless they paid the defendants' attorney's fees. The appellate court concluded that since the record contained no such discovery order, it could not reach the merits of the plaintiffs’ issue. Accordingly, the judgment of the trial court was affirmed.


The workers’ compensation carrier was not entitled to reimbursement from the jury award, but was entitled to apply a credit as an advance against future benefits, and to resume payment of workers' compensation benefits that would otherwise be payable once the credit had been applied.
N.H. Ins. Co. v. Rodriguez
Appellate: Civil, Damages, Employment, Procedure, Torts, Workers' Compensation
Texas 8th Court of Appeals
January 11, 2019
08-15-00173-CV
Yvonne T. Rodriguez
Published
The workers' compensation carrier appealed the judgment of the trial court which sought reimbursement of its expenses from the claimant’s jury award in an action seeking workers’ compensation benefits for injuries he sustained at a construction site. On appeal, the appellate court was asked to consider whether the statutory amendment cabining the carriers' subrogation interest in light of the subscribing employer's negligence changes that "well-settled" law on the carrier's reimbursement rights as well. The claimant contended that Section 417.001(b)'s subrogation reduction provision applied to the third-party claim suit and cabined the carrier’s ability to claim reimbursement based on the fact that the insured employer had its negligence assessed by a jury as a designated responsible third party. The appellate court found that Section 417.001(b)'s subrogation off-set applied when a jury passes on the question of the employer's liability in a given case, even if the employer appeared in the jury's verdict simply as a responsible third party. The appellate court concluded that the workers’ compensation carrier was not entitled to reimbursement from the jury award, but was entitled to apply a credit as an advance against future benefits, and to resume payment of workers' compensation benefits that would otherwise be payable once the credit had been applied. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.


The trial court did not abuse its discretion by denying the defendant’s motion to dismiss because the plea-bargain he agreed to capped his maximum sentence at five years less than what his minimum sentence would have been without the plea bargain if he had gone to trial and been convicted. 
Harper v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
January 10, 2019
02-17-00016-CR
Elizabeth S. Kerr
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault with a deadly weapon and sentenced him to the maximum 20 years in prison. On appeal, the defendant contended that that his constitutional right to a speedy trial was violated, trial counsel rendered ineffective assistance, and trial counsel's ineffective assistance rendered his guilty plea involuntary. The appellate court noted that the delay was about a year and eight months, which was presumptively unreasonable. The defendant further maintained that the State deliberately delayed his trial by re-indicting him and adding only enhancement allegations, which could have been accomplished with a notice and that did not require a re-indictment. The appellate court noted that the delays were attributable to the defendant. The appellate court concluded that the trial court neither abused its discretion factually nor erred legally by denying the defendant’s motion to dismiss because the plea-bargain he agreed to capped his maximum sentence at five years less than what his minimum sentence would have been without the plea bargain if he had gone to trial and been convicted. Accordingly, the judgment of the trial court was affirmed.


The Election Code did not require that an application accompanied by a filing fee be treated only as an application under the filing-fee method, and therefore the party chair was obliged to submit the relator’s name as a candidate unless prohibited by some other legal requirement.
In re Stalder
Appellate: Civil, Contracts, Election, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
January 09, 2018
01-17-00957-CV
Michael C. Massengale
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus to order the chair of the Harris County Democratic Party to place her on the Democratic Party primary ballot for the office of judge. The appellate court was asked to consider whether the relator was ineligible to seek that office because her check to pay the filing fee was returned for insufficient funds. On appeal, the relator contended that the Chair had a statutory duty to certify her name for the primary ballot because she submitted an application that complied with the Election Code. The appellate court noted that the Election Code permitted a candidate to apply for a place on the ballot by paying a filing fee and filing a petition with the required number of signatures, or by filing a petition in lieu of the filing fee, or both. The appellate court found that the party Chair was not required to reject an application due to a bounced filing-fee check when the application otherwise satisfied the statutory requirement for a petition in lieu of the filing fee. The appellate court concluded that the Election Code did not require that an application accompanied by a filing fee be treated only as an application under the filing-fee method, and therefore the party chair was obliged to submit the relator’s name as a candidate unless prohibited by some other legal requirement. Accordingly, the relator’s petition was conditionally granted.


There was legally and factually sufficient evidence supporting the trial court's finding that the defendant waived enforcement of the anti-assignment clauses in the individual plaintiffs’ insurance policies. 
Safeco Ins. Co. of Am. v. Clear Vision Windshield Repair, LLC
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Torts
Texas 14th Court of Appeals
November 27, 2018
14-17-00103-CV
J Brett Busby
Published
The defendant appealed the judgment of the trial court which granted judgment in favor of the plaintiff in their breach of contract action, where the defendant failed to pay invoices to the plaintiff. On appeal, the defendant argued that the evidence was legally and factually insufficient to support the trial court's finding that it waived enforcement of the anti-assignment clauses in the insurance policies. The appellate court noted that although evidence alone was legally and factually sufficient to support the trial court's waiver finding, there was additional evidence indicating that the defendant’s delay in invoking the anti-assignment clause was unreasonable. The appellate court found that the defendant’s six-month delay in raising the anti-assignment clause was atypical because the record included evidence that the defendant’s policy was to issue payment within 30 days of determining coverage and receiving all necessary information. The appellate court concluded that there was legally and factually sufficient evidence supporting the trial court's finding that the defendant waived enforcement of the anti-assignment clauses in the individual plaintiffs’ insurance policies. Accordingly, the judgment of the trial court was affirmed.


The purpose of the equitable remedy of disgorgement was to protect relationships of trust, and in the absence of proof of such a relationship, and a breach of the duties arising from it, the trial court erred when it awarded the appellee damages in the form of disgorgement.
Stephens v. Three Finger Black Shale P’ship
Appellate: Civil, Contracts, Damages, Torts
Texas 11th Court of Appeals
December 31, 2018
11-16-00177-CV
Jim R. Wright
Published
The appellants challenged the judgment of the trial court which found against them on discrete theories and in various amounts in most of the questions that the trial court submitted to the jury, and which entered a judgment in the approximate amount of $50 million. On appeal, the appellants maintained that, if the appellee was not a partnership, then it could not recover as such and that the court should render a take-nothing judgment against the appellee. The appellants further claimed that the evidence was factually insufficient to prove that the appellee was a partnership and that the court should remand the case to the trial court. The appellate court concluded that the purpose of the equitable remedy of disgorgement was to protect relationships of trust, and in the absence of proof of such a relationship, and a breach of the duties arising from it, the trial court erred when it awarded the appellee damages in the form of disgorgement. Accordingly, the judgment of the trial court was reversed in part, affirmed in part, and remanded for further proceedings.


The defendant’s alleged Insurance Code violations did not cause the plaintiffs to lose the benefits under the policy, and therefore the plaintiffs could not recover the damages awarded by the jury under the Insurance-Code violations claim.
Wall v. Lloyds
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Torts
Texas 1st Court of Appeals
December 31, 2018
01-17-00681-CV
Laura Carter Higley
Published
The plaintiffs appealed the judgment of the trial court which rendered a take-nothing judgment despite the jury awarding them damages for their Insurance Code claim in their breach of contract action. On appeal, the plaintiffs contended that the trial court erred by denying their motion for judgment notwithstanding the verdict on the jury's response to the breach-of-contract liability question, that they were entitled to judgment on their Insurance-Code violations claim, and that they were entitled to a new trial. Specifically, the plaintiffs argued that they proved their claim because the evidence showed that, while the defendant paid on the insurance policy, they paid late, and that a subsequent, late payment did not cure the defendant’s breach. The appellate court disagreed with the plaintiffs and found that since they did not object to the definition of failure to comply with the policy, the late payment did not establish failure to comply with the policy. The appellate court concluded that the defendant’s alleged Insurance Code violations did not cause the plaintiffs to lose the benefits under the policy, and therefore the plaintiffs could not recover the damages awarded by the jury under the Insurance-Code violations claim. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the senior security interest holder was entitled to later trace and recapture its collateral.
Legacy Bank v. Fab Tech Drilling Equip., Inc.
Banking and Finance, Contracts, Creditor/Debtor, Procedure, Securities
Texas 11th Court of Appeals
December 31, 2018
11-16-00356-CV
John M. Bailey
Published
The bank appealed the judgment of the trial court which awarded garnished funds to the defendant and ordered the bank to pay the defendant’s attorney’s fees. The appellate court was asked to determine whether the holder of a prior perfected security interest waived its priority right to collateral by failing to declare default or otherwise take an affirmative action to foreclose on the collateral prior to a judgment lien creditor exercising foreclosure rights on the same collateral through garnishment. On appeal, the bank contended that the trial court erred in ordering that the funds be released to the defendant since it, by virtue of being a prior perfected security interest holder, was entitled to priority over the funds as a matter of law. The defendant counterargued that, although the bank was a prior perfected security interest holder, bank waived its security interest by choosing to continue lending to a financially insolvent company instead of declaring default and foreclosing on its collateral. The appellate court found that a prior perfected security interest holder did not waive its senior security interest by failing to exercise its elective remedies prior to a junior judgment creditor exercising foreclosure rights through garnishment. The appellate court concluded that the senior security interest holder was entitled to later trace and recapture its collateral. Accordingly, the judgment of the trial court was reversed and remanded in part.


The plaintiff alleged viable constitutional claims because the University did not conclusively demonstrate that the decision to implement the "class-wide remedy" was an exercise of professional judgment entitled to judicial deference in the context of a constitutional challenge.
Villareal v. Tex. S. Univ.
Appellate: Civil, Civil Rights, Constitution, Contracts, Education, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 31, 2018
01-17-00867-CV
Per Curiam
Published
The plaintiff appealed the judgment of the trial court which dismissed with prejudice his claims against the University on his constitutional claims, breach-of-contract claim, and claims directed at the University employees in their official and personal capacities. On appeal, the plaintiff contended that the trial court erred by dismissing his case and improperly granting the University’s plea to the jurisdiction because he stated viable due-course-of-law claims that defeated the University’s claim to sovereign immunity. The University counterargued that they were immune from suit. The appellate court found that the plaintiff adequately alleged a procedural due-course-of-law claim based on his allegation of the University's bad-faith mismanagement of an exam-grading controversy, which allegedly caused him to miss the GPA cut-off and thereby jeopardized his reputation and intended career path. The appellate court concluded that the plaintiff alleged viable constitutional claims because the University did not conclusively demonstrate that the decision to implement the "class-wide remedy" was an exercise of professional judgment entitled to judicial deference in the context of a constitutional challenge. Accordingly, the judgment of the trial court was reversed in part and remanded for further proceedings.


The indictment against the defendant failed to allege an essential element of theft of a firearm, and thus theft of a firearm was not a lesser-included offense of burglary of a habitation as alleged in the indictment.
DeLeon v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
December 28, 2018
03-18-00268-CR
Scott K. Field
Published
The defendant appealed the judgment of the trial court which convicted him of theft of a firearm. On appeal, the appellate court was asked to consider whether theft of a firearm was a lesser-included offense of burglary of a habitation as alleged in the indictment. The defendant contended that the trial court reversibly erred in charging the jury that it could find him guilty of the lesser-included offense of theft of a firearm. The appellate court noted that Texas courts have specifically held that theft was not a lesser-included offense of burglary when the indictment did not allege all the elements of theft, including a description of the stolen property. The State maintained that, even if the indictment did not allege all the elements of theft, the defendant waived his complaint because he did not move to quash the indictment. The appellate court found that the indictment failed to allege an essential element of theft of a firearm, and thus theft of a firearm was not a lesser-included offense of burglary of a habitation as alleged in the indictment. The appellate court concluded theft of a firearm was not a lesser-included offense. Accordingly, the judgment of the trial court was reversed.


Since no evidence was admitted to support that the officer had reasonable suspicion based on specific, articulable facts to conduct a lawful temporary detention of the defendant, the trial court did not err by granting the defendant’s motion to suppress.
State v. Opare
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
December 27, 2018
02-18-00247-CR
Bonnie Sudderth
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to suppress, finding that there was insufficient evidence to justify that reasonable suspicion existed for the traffic stop. On appeal, the State argued that the stop was justified because the video showed that the defendant committed an offense of failing to signal a lane change in the officer’s presence. The State further asserted that the appellate court erred by not considering the dashcam video, or the officer’s offense report, because they were not formally admitted as evidence. The appellate court disagreed with the State and concluded that since no evidence was admitted to support that the officer had reasonable suspicion based on specific, articulable facts to conduct a lawful temporary detention of the defendant, the trial court did not err by granting the defendant’s motion to suppress. Accordingly, the judgment of the trial court was affirmed.


The School failed to establish the viability of any of its constitutional claims, its ultra vires claim failed as a matter of law, and its suit was barred by sovereign immunity.
Transformative Learning Sys., v. Tex. Educ. Agency
Appellate: Civil, Constitution, Contracts, Education, Gov't/Administrative, Procedure, Real Property
Texas 3rd Court of Appeals
December 28, 2018
03-17-00093-CV
Michael Toth
Published
The School appealed the judgment of the trial court which sustained the Texas Education Agency’s (the Agency) plea to the jurisdiction in the school’s suit, seeking declaratory and injunctive relief from their allegedly erroneous interpretation of Section 12.128 and from the alleged taking of the school’s property. On appeal, the School argued that Section 12.128 of the Education Code did not authorize the Commissioner's ongoing attempts to assume control of the disputed property. The appellate court noted that the disputed statutory provisions allowed the State to take possession of charter school property purchased with state funds, and since the School used state funds to make mortgage payments on the properties, the Agency properly invoked Section 12.128 in this case. The School further alleged that the Agency’s actions, through the orders of the conservator, equated to both a physical taking and a regulatory taking. The appellate court disagreed with the School and concluded that the School failed to establish the viability of any of its constitutional claims, its ultra vires claim failed as a matter of law, and its suit was barred by sovereign immunity. Accordingly, the judgment of the trial court was affirmed.


Because of the plaintiffs’ failure to elect between fraud damages for construction costs and for misapplication of initial investment, the trial court should have rendered judgment awarding the plaintiffs recovery of actual damages only on the award for misapplication of initial investment.
Cho v. Kim
Appellate: Civil, Contracts, Procedure, Real Property, Torts
Texas 14th Court of Appeals
December 28, 2018
14-16-00962-CV
William J. Boyce
Published
The defendant appealed the judgment of the trial court which ruled against him and in favor of the plaintiffs in connection with claims for breach of fiduciary duty and fraud arising from an unsuccessful real estate project. On appeal, the plaintiffs contended that the defendant abused their trust and confidence by secretly gaining personal benefits at their expense and driving the business off of a financial cliff. The plaintiffs maintained that both a formal and an informal fiduciary relationship were because they were partners with the defendant. The plaintiffs asserted that the defendant’s counsel conceded the existence of a relationship of trust and confidence in an exchange with the trial court during the hearing on motions for directed verdict at the close of the evidence. The appellate court found that there was no basis for a formal fiduciary duty as between the parties. The appellate court concluded that because of the plaintiffs’ failure to elect between fraud damages for construction costs and fraud damages for misapplication of initial investment, the trial court should have rendered judgment awarding the plaintiffs recovery of actual damages only on the award of fraud damages for misapplication of initial investment. Accordingly, the judgment of the trial court was reversed and remanded for recalculation of prejudgment interest.


The trial court was required to give the nonmovant an opportunity to plead a viable cause of action before granting summary judgment, and thus the trial court erred in entering summary judgment in favor of the defendant.
Gober v. Bulkley Prop., LLC
Appellate: Civil, Contracts, Procedure, Real Property
Texas 6th Court of Appeals
December 28, 2018
06-18-00039-CV
Bailey C. Moseley
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment against her and in favor of the defendant in her suit for declaratory judgment. On appeal, the plaintiff asserted that the trial court abused its discretion by refusing to allow her to file her signed affidavit, and it erred in entering summary judgment based on the statute of frauds. The appellate court noted that absent some exception to the enforcement of the statute, the enforcement of the oral agreement alleged by the plaintiff would be barred; however, Texas had long recognized that some situations existed wherein the nonenforcement of the contract would, itself, amount to a fraud. The appellate court found that the trial court erred in entering summary judgment without first having allowed the plaintiff the opportunity to amend her pleadings. The appellate court concluded that the trial court was required to give the nonmovant an opportunity to plead a viable cause of action before granting summary judgment, and thus the trial court erred in entering summary judgment in favor of the defendant. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


An expert report was not required to identify a standard of care breached by a hospital if the theory of liability against the hospital was vicarious and based on the actions of the hospital's physicians.
McAllen Hosp., L.P. v. Gonzalez
Appellate: Civil, Health Care, Procedure, Torts, Wills/Trusts/Probate
Texas 13th Court of Appeals
December 28, 2018
13-18-00077-CV
Dori Contreras
Published
The hospital appealed the judgment of the trial court which denied its motion to dismiss the health care liability claims of Estate on behalf of the wrongful-death beneficiary. On appeal, the hospital argued that the trial court abused its discretion when it denied its motion to dismiss. Specifically, the hospital pointed to the decedent’s claims regarding the hospital's alleged nondelegable duty, and the hospital's own negligence and gross negligence. The appellate court disagreed with the hospital’s claim that the trial court erred in denying its motion to dismiss the direct liability claims. The hospital further challenged the denial of its motion to dismiss the direct liability claims on the basis that the expert report did not include the standard of care, breach, and causation for the direct liability claims. The appellate court concluded that an expert report was not required to identify a standard of care breached by a hospital if the theory of liability against the hospital was vicarious and based on the actions of the hospital's physicians. Accordingly, the judgment of the trial court was affirmed.


The Chapter 89 presentment requirement, under the Local Government Code, was not a statutory prerequisite, and thus the trial court did not err by denying the County’s plea to the jurisdiction.
Jefferson Cnty. v. Farris
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 1st Court of Appeals
December 28, 2018
01-17-00493-CV
Per Curiam
Published
The County appealed the judgment of the trial court which denied its plea to the jurisdiction in the plaintiff’s action, asserting negligence related to her husband's lifetime exposure to asbestos. On appeal, the County argues that the trial court erred because the plaintiff failed to plead a cause of action under the Texas Tort Claims Act, was barred by the exclusive-remedy provision of the Texas Workers' Compensation Act, failed to exhaust her administrative remedies under the Texas Workers' Compensation Act, and failed to present her claim to the commissioners court before filing suit under section 89.004 of the Local Government Code. The County further asserted that the trial court erred by failing to dismiss the claims for exemplary damages, misuse of personal property, failure to create an asbestos-safety policy, and negligent implementation of policy. Lastly, the County maintained that  its governmental immunity had not been waived because it did not receive notice of the claim against it within six months of the incident giving rise to the claim occurred, as required by the Act. The appellate court disagreed with the County and found that the statutory prerequisites for suit were found in the Tort Claims Act, not in Local Government Code section 89.004. The appellate court concluded that the Chapter 89 presentment requirement was not a statutory prerequisite, and thus the trial court did not err by denying the County’s plea to the jurisdiction. Accordingly, the judgment of the trial court was reversed as to the exemplary-damages award and affirmed.


Since there was no substantive and probative evidence supporting the exercise of its discretion, the trial court abused its discretion in awarding the wife spousal maintenance.
In re Marriage of McCoy
Family, Procedure
Texas 6th Court of Appeals
December 28, 2018
06-18-00064-CV
Bailey C. Moseley
Published
The husband appealed the judgment of the trial court which awarded the wife the family home, all sums in any retirement, all retirement accounts in her name, vehicles, and ordered the husband to pay spousal maintenance in the underlying divorce action. On appeal, the husband challenged the award of spousal maintenance, asserting that the trial court abused its discretion in its award because there was no, or insufficient, evidence that the wife lacked the ability to earn sufficient income to provide for her minimum reasonable needs, and there was no evidence rebutting the presumption against an award of spousal maintenance. The husband further asserted that the award was improperly made in perpetuity, and it exceeded the statutory maximum. The wife counterargued that her testimony that she worked when her employer needed her and that she drew Social Security income was sufficient evidence to overcome the presumption that spousal maintenance was not warranted. The appellate court agreed with the husband that the wife presented no evidence rebutting the presumption against an award of spousal maintenance. The appellate court concluded that since there was no substantive and probative evidence supporting the exercise of its discretion, the trial court abused its discretion in awarding the wife spousal maintenance. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.


The appellate court concluded that the relator did not show that the trial court abused its discretion in denying the motion to dismiss.
In re Union Pac. R.R. Co.
Appellate: Civil, Constitution, Damages, Procedure, Torts
Texas 14th Court of Appeals
December 28, 2018
14-18-01046-CV
Per Curiam
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus seeking to compel the trial court judge to grant relator's motion to dismiss and award relator its attorneys' fees and costs. The appellate court noted that, as a matter of law, the plaintiffs’ claims would not have the effect of managing or governing "the operations of rail transportation." The appellate court found that the principles of Texas law that the plaintiffs contended, required the relator to restore and manage debris in the bayou under its bridge did not require reconstruction of the bridge or govern the operation of trains moving passengers or property across the bridge. The appellate court concluded that the relator did not show that the trial court abused its discretion in denying the motion to dismiss. Accordingly, the relator’s writ was denied.


The Texas Education Agency did not preserve any challenge to the form or scope of the expunction order as entered, nor to any question of whether any particular document must be expunged.
Tex. Educ. Agency v. S.E.H.
Constitution, Criminal, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 28, 2018
01-16-00420-CV
Michael C. Massengale
Published
The Texas Education Agency (the Agency) appealed the judgment of the trial court which entered an expunction in favor of the petitioner. The appellate court was asked to determine whether the historical fact of the petitioner’s community supervision disqualified him from obtaining an expunction remedy available to people who were released without any resulting final conviction, but that excluded people who avoided final conviction by successfully completing community supervision. On appeal, the Agency argued that the petitioner could not escape the historical facts that he pleaded guilty and received court-ordered community supervision, thus rendering him ineligible for expunction. The petitioner counterargued that, as a legal matter, he was never placed on community supervision because the prosecution was void from the outset. The appellate court found that the trial court correctly found that the petitioner was entitled to the expunction remedy. The appellate court concluded that the Agency did not preserve any challenge to the form or scope of the expunction order as entered, nor to any question of whether any particular document must be expunged. Accordingly, the judgment of the trial court was affirmed.


The defendants provided a fair summary of the applicable standards of care, how the experts contended the standards of care were breached, and the causal relationship between the alleged breach and the injury, harm, or damages claimed.
Peabody v. Manchac
Appellate: Civil, Health Care, Procedure, Torts
Texas 14th Court of Appeals
December 27, 2018
14-17-00646-CV
Martha Hill Jamison
Published
The defendant appealed the judgment of the trial court which denied its motions to dismiss the medical malpractice claims against the hospital. On appeal, the defendant asserted that the trial court abused its discretion in denying its objections to the expert reports and the motion to dismiss because the reports of both were insufficient as to the standard of care and the doctor’s reports were insufficient also as to his qualifications and causation. The appellate court found that the defendants provided a fair summary of the applicable standards of care, how the experts contended the standards of care were breached, and the causal relationship between the alleged breach and the injury, harm, or damages claimed. The appellate court concluded that the defendants’ statements in reports went beyond mere speculation regarding the ability and authority of the nurses to prevent the discharge. Accordingly, the judgment of the trial court was affirmed.


The plaintiffs failed to establish their entitlement to a thirty-day extension to supplement the pleadings with the necessary affidavit, and thus, trial court abused its discretion in denying the defendant’s motion to dismiss.
SSOE, Inc. v. Tokio Marine Am. Ins. Co.
Appellate: Civil, Damages, Insurance, Procedure
Texas 4th Court of Appeals
December 27, 2018
04-18-00526-CV
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss pursuant to Chapter 150 of the Civil Practice and Remedies Code. On appeal, the defendant contended that subsection 150.002(c) required the plaintiffs to allege, in their original petition, an inability to prepare the required affidavit due to time constraints associated with the statute of limitations. The defendants further alleged that subsection 150.002(c) did not allow for an exception to the contemporaneous filing requirement when an excuse was raised in response to its motion to dismiss, and not when the excuse was based on alleged clerical errors. The plaintiffs counterargued that section 150.002 and the legislative intent was to bring balance to the civil justice system and to prevent frivolous lawsuits, and a clerical error should not prevent the trial court from acting within its discretion to deny the motion to dismiss. The appellate court found that subsection 150.002(c) was triggered when the original petition was filed within ten days of the expiration of the statute of limitations. The appellate court concluded that the plaintiffs failed to establish their entitlement to a thirty-day extension to supplement the pleadings with the necessary affidavit, and thus, trial court abused its discretion in denying the defendant’s motion to dismiss. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


Based the totality of the circumstances, the trial court correctly concluded that the officer did not exceed the scope of the defendant’s consent.
Villarreal v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
December 27, 2018
13-17-00323-CR
Nelda V. Rodriguez
Published
The defendant appealed the judgment of the trial court which denied his motion to suppress evidence seized stemming from a traffic stop. On appeal, the defendant argued that the Transportation Code required the stop line to be clearly marked in order for a traffic violation to occur. The defendant further contended that because the remnants of a stop line were barely visible, the officer could not have reasonably believed that a traffic offense had occurred. The appellate court noted that the defendant committed a traffic offense by crossing it before stopping, and that this traffic violation justified the officer’s decision to initiate a traffic stop under the first prong of Terry. The defendant also alleged that his protracted detention violated the second prong of Terry, and before he gave consent, the detention had already been unlawfully prolonged beyond the conclusion of its legitimate purposes. The appellate court disagreed with the defendant and concluded that based the totality of the circumstances, the trial court correctly concluded that the officer did not exceed the scope of the defendant’s consent. Accordingly, the judgment of the trial court was affirmed.  


The trial court did not abuse its discretion by admitting the complained-of extraneous offense evidence respecting other surgeries by the defendant.
Duntsch v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
December 10, 2018
05-17-00235-CR
Douglas S. Lang
Published
The defendant appealed the judgment of the trial court which convicted him of intentionally or knowingly causing serious bodily injury to an elderly individual while using or exhibiting a deadly weapon and sentenced him to life imprisonment. On appeal, the defendant contended that the trial court abused its discretion by admitting certain evidence of extraneous conduct of the defendant, and the evidence presented at trial was insufficient to support the defendant’s conviction because the State failed to prove the culpable mental state beyond a reasonable doubt. The State counterargued that the jury could reasonably infer that because the defendant was a neurosurgeon, he knew what any neurosurgeon would know, and because the evidence showed that the defendant had caused serious bodily harm in multiple cases during the preceding months and knew it, rational jurors could have inferred that the defendant was aware that his conduct in the surgery was reasonably certain to cause the same result. The appellate court disagreed with the defendant and found that the trial court did not abuse its discretion by admitting the complained-of extraneous offense evidence respecting other surgeries by the defendant. The appellate court concluded that the defendant was not harmed by the admission of the email in question since the jury was presented with evidence of the defendant’s alleged mental state. Accordingly, the judgment of the trial court was affirmed.


The statute requiring collection of jury's fees passed constitutional muster because it was created to reimburse the prosecutor for costs incurred in trying the case as a “recoupment of costs” under Peraza.
Jackson v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 20, 2018
14-17-00511-CR
Martha Hill Jamison
Published
The appellant was convicted of a Class B misdemeanor for failing to stop and give information and was sentenced to two days in Harris County Jail. He appealed his conviction and the assessment of certain court costs. The appellate court observed that the evidence was legally sufficient to show that appellant was knowingly involved in a traffic accident. Further, appellant did not meet his burden of showing egregious harm. Next, the statute requiring collection of jury's fees passed constitutional muster because it was created to reimburse the prosecutor for costs incurred in trying the case as a “recoupment of costs” under Peraza. Furthermore, appellant had not met his burden to show that the jury’s fees collected under the statute could not be used for legitimate criminal justice purposes in all possible circumstances. Finally, because the sheriff’s fee was an actual recoupment of the out of pocket expenses incurred for summoning witnesses and for associated mileage, the court concluded that appellant had not met his burden to show that the sheriff’s fees collected under the statute could not be used for legitimate criminal justice purposes in all possible circumstances. Accordingly, the judgment was affirmed


Because it was possible that the appellee might be able to correct the deficiencies in her expert reports, and the trial court never considered whether an extension was necessary, the court declined to dismiss the appellee’s claims against the individual appellee doctor.
The Methodist Hosp, Methodist Health Ctrs. v. Addison
Health Care, Litigation: Personal Injury
Texas 14th Court of Appeals
December 21, 2018
14-17-00917-CV
J Brett Busby
Published
In an interlocutory appeal, the appellants challenged the trial court’s order denying their respective motions to dismiss the medical malpractice claim filed by the appellee. The appellants asserted the trial court abused its discretion because the appellee’s two expert report lacked elements required by section 74.351 of the Texas Civil Practice and Remedies Code. The appellate court stated that a plaintiff need not actually prove the claim with the expert report; the report must show that the expert was of the opinion that the plaintiff could do so, including as to both foreseeability and cause-in-fact. Further, the expert must explain the basis of his or her conclusions, showing how and why a breach of the standard of care caused the injury. Furthermore, whether an expert opinion is sufficient must be decided in the context of the entire report, rather than taking statements in isolation. Here, the doctor’s report adequately addressed the required elements of standard of care, breach, and causation based on the student nurse’s actions. Because it was possible that the appellee might be able to correct the deficiencies in her expert reports, and the trial court never considered whether an extension was necessary, the court declined to dismiss the appellee’s claims against the individual appellee doctor. The court instead reversed the trial court’s denial of the individual appellee doctor’s motion to dismiss and remanded for the trial court to consider whether to grant the appellee a thirty-day extension. Accordingly, the trial court's judgment was partly affirmed, partly reversed and the case was remanded.


Because the appellants had not challenged all possible grounds for the trial court’s exclusion of the evidence, the court would be justified in concluding that the appellants waived any challenge to the trial court’s exclusionary ruling.
Harpst v. Fleming
Contracts, Damages, Torts
Texas 14th Court of Appeals
December 21, 2018
14-17-00209-CV
Kevin Jewell
Published
After a law firm settled tort claims against a drug manufacturer on behalf of approximately 8,000 clients. About half the settling clients sued the appellees, the firm, and one of the firm’s lawyers. The clients did not seek to set aside the settlement, but asserted breach of fiduciary duty and contract claims based on their attorneys’ alleged failure to disclose certain information related to the settlement and the deduction of allegedly unreasonable expenses from the clients’ recovery. The trial court severed six clients’ claims, which proceeded to trial. A jury returned a verdict in the appellees’ favor on two dispositive questions, finding that the appellees complied with their fiduciary duty and did not breach the clients’ fee agreements. The trial judge signed a take-nothing judgment consistent with the jury’s verdict. The appellate court found that the appellants did not plead the joint venture doctrine in connection with their free echocardiogram allegations nor did they request leave to file a pleading amendment to assert joint venture. Thus, the court could not say that the trial court abused it was discretion in excluding evidence relating to the referring law firms’ alleged statements or conduct. Further, because the appellants had not challenged all possible grounds for the trial court’s exclusion of the evidence, the court would be justified in concluding that the appellants waived any challenge to the trial court’s exclusionary ruling. Furthermore, the trial court granted the appellees motion in limine on the free echocardiogram issue, which preserved nothing for review. Accordingly, the judgment was affirmed.  


There was sufficient evidence to support the trial court’s finding that appellant, while on probation, committed a new offense by recklessly, and unjustifiably, causing bodily injury to his girlfriend.
Bell v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 21, 2018
14-18-00048-CR
Ken Wise
Published
The appellant was on deferred adjudication community supervision for aggravated assault with a deadly weapon and aggravated promotion of prostitution. The appellate court observed that there was more than a scintilla of evidence to support the trial court’s finding that appellant committed a new offense by recklessly, and unjustifiably, causing bodily injury to his girlfriend. Further, appellant was required to lodge another objection to preserve error, but he failed to do so. Next, the State’s arguments were outside the record. Thus, the court assumed that the trial court erred by overruling appellant’s objection to those facts outside the evidence. Furthermore, appellant was not harmed by the improper argument to which he objected. Finally, because the trial court’s judgments erroneously reflected that appellant pleaded “true” to the allegations in the State’s motion to adjudicate, the court reformed the trial court’s judgments to add the word “not” before the word “true” under the heading “plea to the motion to adjudicate.” Accordingly, the court affirmed the trial court’s judgments as modified.


The trial court erred in denying the appellant employee's motion to compel arbitration where she signed an arbitration agreement before being hired, then resigned, and then was rehired without signing a separate arbitration agreement.
Longoria v. CKR Prop. Mgmt., LLC
ADR, Contracts, Employment
Texas 14th Court of Appeals
December 21, 2018
14-18-00100-CV
William J. Boyce
Published
The appellant signed an arbitration agreement before beginning her employment with the appellee company. The parties’ arbitration agreement stated that the appellant and the appellee agreed to arbitrate any claim or dispute between them or against the other whether related to the employment relationship or otherwise. The appellant resigned from the appellee and was rehired by the appellee approximately ten months later. The appellant did not sign a separate arbitration agreement before beginning her second period of employment. The appellee fired the appellant six months after she was rehired and sued her for claims arising from her second employment period. The appellant moved to compel arbitration and the trial court denied the appellant's motion. The appellate court found that the parties executed a valid arbitration agreement and that the appellee's claims in the proceeding fell within the scope of that agreement. The appellant did not waive her arbitration rights. The trial court therefore erred in denying the appellant's motion to compel arbitration. Accordingly, the trial court’s January 30, 2018 order was reversed and the cause was remanded to the trial court for proceedings consistent with the opinion.


The appellants’ objection to the visiting judge was not timely, and the appellants made no objection to the judge continuing to sit after she mistakenly signed an order granting the untimely objection.
Collins v. D.R. Horton-Texas Ltd.
Damages, Torts
Texas 14th Court of Appeals
December 20, 2018
14-17-00764-CV
Martha H. Jamison
Published
The appellee sued the appellants to quiet title, for trespassing on its property and for a declaration concerning the boundaries of the respective properties. The appellants counterclaimed for adverse possession. A year later, the appellants added claims for trespass, conversion, and malicious prosecution. The appelllee filed a motion for partial summary judgment. The trial court granted the motion. Before trial, the appellant amended their pleadings and added new counterclaims emanating from incidents in 2016. The appellee filed a motion to sever the new claims, which the trial court granted. The appellants’ claims for trespass, conversion, and malicious prosecution were severed, and the appellee’s trespass and to quiet title claims and the appellants’ adverse possession claim proceeded to trial. The jury found for the appellee on all claims presented but was not asked to and did not award any damages. The appellants challenged the judgment. The appellate court found that the partial motion for summary judgment could have been based on an unchallenged ground. Further, the appellants’ objection to the visiting judge was not timely, and the appellants made no objection to the judge continuing to sit after she mistakenly signed an order granting the untimely objection. Lastly, the appellants failed to demonstrate prejudice resulting from the denial of their motion for a continuance. Accordingly, the court affirmed the judgment.


Because there was no landlord-tenant relationship between the appellees and the appellants, the trial court did not err in granting summary judgment on the appellant’s unlawful lockout and constructive eviction claims.
St. Anthony's Minor Emergency Ctr., L.L.C. v. Ross Nicholson 2000 Separate Prop. Trust
Landlord and Tenant, Litigation: Personal Injury, Real Property
Texas 14th Court of Appeals
December 20, 2018
14-16-01005-CV
Martha Hill Jamison
Published
The landlord bank entered into a commercial lease of office space with tenant corporation. The lease prevented the tenant from subletting any of the space without the prior written consent of the landlord. The landlord assigned the lease with the tenant to the appellee trust. The tenant defaulted on the lease. The appellant clinics had been paying rent to the tenant, but the tenant failed to fulfill its own rental obligations. The appellee trust subsequently locked the appellant’s out of its offices. The appellant’s sued the appellee trust and appellee individual. The appellees filed a motion for summary judgment. The trial court granted the motion and rendered a final take nothing summary judgment. The appellate court found that because there was no landlord-tenant relationship between the appellees and the appellants, the trial court did not err in granting summary judgment on the appellant’s unlawful lockout and constructive eviction claims. The trial court did not err in granting summary judgment on the nuisance claim because the appellees did not owe a legal duty to the appellant’s to refrain from conducting the lockout. Furthermore, the lease was assigned to the appellee trust, the tenant failed to pay rent under the lease, and the appellee trust was entitled to assert its contractual right of lockout under the lease. The appellee trust exercised its contractual rights under the lease in conducting the lockout and was legally justified in doing so. Accordingly, the court affirmed the judgment of the trial court.


Coupled with the evidence establishing the appellant’s location six days before the murder and on the day of the murder, evidence of the appellant’s targeted deletion of cell phone data tended to connect the appellant to the murder.
Lopez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 20, 2018
14-17-00205-CR
Martha Hill Jamison
Published
The appellant challenged his capital murder conviction. The appellate court found that the state presented witnesses to demonstrate that the appellant had deleted cell phone data from the relevant time frame. Coupled with the evidence establishing the appellant’s location six days before the murder and on the day of the murder, evidence of the appellant’s targeted deletion of cell phone data tended to connect the appellant to the murder. Further, non-accomplice evidence showed the appellant acted with the armed men in preparing for the robbery and then took steps to conceal from investigators his communications with the armed men and others. After eliminating the accomplice testimony from consideration and examining the remaining evidence, the court concluded that the record contained evidence linking the appellant to the murder and rational jurors could conclude that the evidence sufficiently tended to connect the appellant to the offense. Further, the appellant had not shown that his trial counsel’s failure to object to the prosecutor’s statements during closing arguments constituted ineffective assistance of counsel, and the trial court costs assessed against the appellant were constitutional, the judgment was affirmed.


Republican candidate's defamation case against appellants for social media posts should have been dismissed; the appellants established the TCPA applied, thereby shifting the burden to the appellee to establish a prima facie case.
Rodriguez v. Gonzales
Election, Torts
Texas 14th Court of Appeals
December 18, 2018
14-17-00667-CV
Tracy Christopher
Published
While Republican, the appellee, and the democrat were opposing candidates in the general election for the position of Harris County Constable, Precinct 6, the appellants published negative statements about the appellee on social media. The appellee sued them for defamation, and pursuant to the Texas Citizens Participation Act (the TCPA), the appellants moved to dismiss the appellee’s claims. The appellate court observed that the appellants established that the TCPA applied to the appellee’s claims, thereby shifting the burden to the appellee to establish a prima facie case for each essential element of his claims. Further, the court held that the appellee was a limited-purpose public figure, and thus, he was required to establish a prima facie case of actual malice for the challenged publications. Finally, the court observed that he failed to do so, and in some instances, additionally failed to show that the statement at issue was false. Accordingly, the court reversed the judgment and remanded.


The officers’ invalid inventory search did not require a suppression of the heroin because the officers did not discover the heroin during their invalid inventory search - the drug-sniffing dog, an independent source, discovered it.
Medina v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 18, 2018
14-17-00611-CR
Tracy Christopher
Published
The appellant challenged a conviction for possession of a controlled substance, asserting the evidence was insufficient to support the conviction, and that the trial court abused its discretion by denying a motion to suppress. The appellate court found that the court could assume without deciding that the officers’ inventory search was invalid, as appellant contended. Nevertheless, the officers’ invalid inventory search did not require a suppression of the heroin because the officers did not discover the heroin during their invalid inventory search. Rather, a drug-sniffing dog discovered the heroin, and the dog was an independent source. Further, the only evidence of inculpatory value that was discovered in the invalid inventory search was the bag of syringes. Even if the court assumed that the admission of those syringes was erroneous, the court could not conclude that the appellant suffered any harm. Furthermore, the evidence was legally sufficient to support the conviction. The trial court acted within the bounds of its discretion by denying the motion to suppress because the officers were authorized to call for the assistance of a drug-sniffing dog after lawfully arresting the appellant for a traffic violation; the drug-sniffing dog discovered the heroin after an exterior sweep of the appellant’s vehicle, which did not require a warrant or probable cause; the dog sniff was independent of any illegality that occurred during the officers’ inventory search, which did not produce any harmful evidence in any event; and there was evidence from which the trial court could have reasonably found that the automobile exception did apply. Accordingly, the trial court's judgment was affirmed.


Because the trial court’s conclusion of law showed that it failed to conduct a full equitable subrogation analysis as directed in the court's prior opinion, the trial court’s error was harmful.
Lyda Swinerton Builders, Inc. v. Cathay Bank
Contracts, Real Property, Tax
Texas 14th Court of Appeals
December 18, 2018
14-17-00030-CV
J Brett Busby
Published
Appellant entered into a contract to improve real property owned by Corporation. Shortly after Appellant filed its first mechanic’s lien affidavit, Appellee bank lent Corporation money for the project, and part of the loan proceeds were used to satisfy outstanding tax liens against the property. Appellant continued incurring the cost of the crane and tunnel forms from October 2007 until they were finally removed in July 2008. Appellant sent Corporation a notice of intent to terminate the contract. But Appellant kept the trailer and other items on the site after it filed suit against Corporation in October 2008. The trial court declined to award either side attorney’s fees. Appellant asked the trial court to file additional and amended findings of fact and conclusions of law, but it declined to do so. The appellate court found that the fact that the Corporation contract was constructively terminated was the sole ground supporting the judgment excluding the amounts stated in Appellant’s second, third, and fourth amended lien affidavits from Appellant’s mechanic’s lien. The trial court’s erroneous conclusion of law regarding the date when Corporation’s indebtedness accrued was therefore harmful to Appellant. Further, Appellant’s knowledge of the foreclosure sale did not establish, as a matter of law, that Appellant suffered no prejudice from the foreclosure sale. The court therefore declined to revisit the determination made in its original opinion that Appellant was prejudiced by Appellee’s foreclosure of the tax liens on the Corporation property. Furthermore, the trial court erred by basing its equity conclusion solely on the prejudice to Appellant that would result from the non-judicial foreclosure of a tax lien. Because the trial court’s conclusion of law showed that it failed to conduct a full equitable subrogation analysis as directed in the court's prior opinion, the trial court’s error was harmful.  Accordingly, the court reversed the trial court’s judgment and remanded the case to the trial court for further proceedings.


There was legally sufficient evidence to support the defendant’s conviction as a principal actor in the capital murder of the child, and any error in charging the jury on the law of parties was harmless.
Washington v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 20, 2018
14-17-00595-CR
Marc W. Brown
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder. On appeal, the defendant argued that the evidence was legally insufficient to support that he intentionally or knowingly caused the death of the child, and the trial court abused its discretion by permitting the introduction of statements that the defendant’s girlfriend made to police. The defendant further asserted that the admission of such evidence violated his rights under the Confrontation Clause, and the trial court erred by instructing the jury on the law of parties because there was insufficient evidence that the defendant was guilty as the principal or as a party. The appellate court disagreed with the defendant and found that the evidence, viewed in the light most favorable to the verdict, was legally sufficient to permit a rational jury to convict the defendant of the capital murder, and that the State presented substantial evidence of the defendant’s guilt, which tended to corroborate the statements made to the police. The appellate court concluded that there was legally sufficient evidence to support the defendant’s conviction as a principal actor in the capital murder of the child, and any error in charging the jury on the law of parties was harmless. Accordingly, the judgment of the trial court was affirmed.


The trial court erred by excluding the evidence of the decedent’s mental illness and drug use, and there was no evidence to support the finding that the alleged negligence of the employer in training the driver proximately caused the collision.
JBS Carriers, Inc. v. Washington
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
December 21, 2018
17-0151
Phil Johnson
Published
The defendant appealed the judgment of the appellate court which affirmed the trial court’s decision, finding the defendant’s negligence as the proximate cause and death of the decedent’s collision. On appeal, the Supreme Court was asked to consider whether the trial court abused its discretion by excluding evidence of the pedestrian's mental illness and the fact that she had alcohol and drugs in her system at the time of the collision, and whether the defendant-employer could be held directly liable for the death based on a negligent training theory. The defendant argued that the evidence of the decedent’s mental health, prescription medication use, and drug and alcohol use was relevant to the issue of her negligence. The plaintiff-family counterargued that the trial court did not abuse its discretion in excluding the evidence because its probative value was low and the danger of unfair prejudice was high. The Supreme Court concluded that the trial court erred by excluding the evidence of the decedent’s mental illness and drug use, and there was no evidence to support the finding that the alleged negligence of the employer in training the driver proximately caused the collision. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.


Texas Business and Commerce Code section 4.406 precluded the petitioner’s attempt to hold his bank liable for the losses because the deposit agreements between the parties did not alter this outcome.
Compass Bank v. Calleja-Ahedo
Banking and Finance, Business, Contracts, Procedure
The Supreme Court of Texas
December 21, 2018
17-0065
James D Blacklock
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s decision in favor of the respondent-bank in an action where the petitioner sought to recover the stolen funds from his bank account as the result of the petitioner’s identity being stolen. On appeal, the Supreme Court was asked to consider whether the petitioner or his bank must suffer the financial consequences of the theft. The respondent argued that the exceptions in section 4.406 required the petitioner to bear the loss under the circumstances. The Supreme Court noted that the petitioner failed for over a year to look for missing bank statements or inquire about the status of his account, rather than monitor his account as contemplated by section 4.406 of the Texas Business and Commerce Code. The Supreme Court concluded that section 4.406 precluded the petitioner’s attempt to hold his bank liable for the losses because the deposit agreements between the parties did not alter this outcome. Accordingly, the judgment of the appellate court was reversed.


Because the parties agreed to have the arbitrator decide issues of arbitrability, the appellate court erred in determining that the dispute was one that could not be arbitrated.
RSL Funding, LLC v. Newsome
ADR, Appellate: Civil, Contracts, Gov't/Administrative, Insurance, Litigation: Personal Injury, Procedure
The Supreme Court of Texas
December 21, 2018
16-0998
John P. Devine
Published
The petitioners appealed the judgment of the appellate court which affirmed the trial court’s decision to deny their motion to compel arbitration in a dispute over the transfer of a payee’s structured-settlement-payment rights to another. On appeal, the petitioners contended that the appellate court impermissibly decided arbitrability itself in the face of a valid arbitration clause that explicitly assigned arbitrability disputes to the arbitrator. The respondent maintained that the arbitration clause was inapplicable because this dispute must be decided by a court due to the bill of review and Structured Settlement Protection Act context. The Supreme Court concluded that because the parties agreed to have the arbitrator decide issues of arbitrability, the appellate court erred in determining that the dispute was one that could not be arbitrated. Accordingly, the judgment of the appellate court was reversed and remanded with instructions to grant the motion to compel arbitration.


The Texas Medical Liability Act’s emergency-medical-care provision applied to claims arising from emergency medical care provided in a hospital's obstetrical unit regardless of whether the patient was first evaluated or treated in a hospital emergency department.
Tex. Health Presbyterian Hosp. of Denton v. D.A.
Appellate: Civil, Health Care, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
December 21, 2018
17-0256
Jeffrey S. Boyd
Published
The defendant-doctor appealed the judgment of the appellate court which held that the Texas Medical Liability Act did not require the plaintiffs to prove willful and wanton negligence in its medical negligence action. On appeal, the defendant asserted that the plaintiffs could not recover based on claims asserting ordinary negligence, rather the claims arose from the provision of emergency medical care in a hospital obstetrical unit, they could only recover by proving that the doctor acted with willful and wanton negligence. The Supreme Court disagreed with the appellate court’s conclusion that the plaintiffs’ proposed construction was reasonable, and based on section 74.153's text and context, the doctor offered the only reasonable construction. The Supreme Court concluded that the Texas Medical Liability Act’s emergency-medical-care provision applied to claims arising from emergency medical care provided in a hospital's obstetrical unit regardless of whether the patient was first evaluated or treated in a hospital emergency department. Accordingly, the judgment of the appellate court was reversed.


The Supreme Court concluded that only one of the several allegations against the county official constituted an enforcement action, and the State's sovereign immunity did not protect it from the county official's claim for appellate costs.
State ex rel. Best v. Harper
Appellate: Civil, Election, Gov't/Administrative, Procedure, Tax
The Supreme Court of Texas
December 21, 2018
16-0647
Jeffery Brown
Published
The State appealed the judgment of the appellate court which reversed the trial court’s decision to deny the respondent’s motion to dismiss, finding that the Texas Citizens Participation Act (TCPA) applied to the State’s removal action and that the State failed to establish a prima facie case for removal. On appeal, the State conceded that the candidate’s failed reelection bid rendered its removal petition moot, however, it asserted that the issue whether the appellate court properly ordered the trial court to award the candidate’s costs, attorney's fees, and sanctions under the TCPA was not moot. The Supreme Court agreed with the candidate that the request for an award of attorney's fees and sanctions under the TCPA presented an issue that was separate from the request for removal, and that this separate issue survived the mootness that would otherwise prevent it from addressing the underlying claim. The Supreme Court found that this suit to remove a county official from elected office under chapter 87 of the Texas Local Government Code was a legal action under the TCPA, however, the TCPA did not apply when a government attorney brought an enforcement action in the State's name. The Supreme Court concluded that only one of the several allegations against the county official constituted an enforcement action, and the State's sovereign immunity did not protect it from the county official's claim for appellate costs. Accordingly, the judgment of the appellate court was affirmed.


The law firm failed to establish conclusively its right to judgment as a matter of law on each affirmative defense of collateral estoppel, waiver, and release.
Wilson v. Fleming
Appellate: Civil, Contracts, Ethics, Procedure, Professional Responsibility, Torts
Texas 14th Court of Appeals
December 21, 2018
14-17-00223-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the law firm in an action claiming that the law firm breached contractual and fiduciary duties. On appeal, the plaintiffs argued that the law firm submitted no competent summary judgment evidence, and that the trial court's consideration of objectionable evidence was an abuse of discretion. The plaintiffs further contended that the law firm failed to prove conclusively its entitlement to judgment on the merits of each asserted affirmative defense of collateral estoppel, waiver, and release. The appellate court found that the law firm made no attempt in its motion for summary judgment to rebut the presumption of invalidity or unfairness by demonstrating that the plaintiffs’ releases were fair and reasonable, it did not raise its arguments in the trial court, and a motion for traditional summary judgment must stand or fall on its own merit. The appellate court concluded that the law firm failed to establish conclusively its right to judgment as a matter of law on each affirmative defense of collateral estoppel, waiver, and release. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


There was no requirement in the Family Code that the Department make an additional request at the bench trial for termination of the mother’s parental rights on the specific grounds alleged in its petition.
In re D.A.Z.
Family, Procedure
Texas 8th Court of Appeals
December 21, 2018
08-18-00124-CV
Ann Crawford McClure
Published
The mother appealed the judgment of the trial court which terminated the parental rights to her child after the Department received a report that the mother was pregnant and using methamphetamine. On appeal, the mother challenged the legal and factual sufficiency of the evidence supporting the best interest finding. The appellate court noted that parental rights could be involuntarily terminated through proceedings brought under Section 161.001 of the Texas Family Code, and under this provision, the petitioner must establish one or more of the statutory acts or omissions enumerated as grounds for termination, and prove that termination was in the best interest of the children. The appellate court found that pursuant to the Holley factors, the evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the mother’s parental rights was in the child’s best interest. The mother further asserted that there was a variance between the trial court's oral pronouncement at trial and the final termination order. The appellate court concluded that there was no requirement in the Family Code that the Department make an additional request at the bench trial for termination on the specific grounds alleged in its petition. Accordingly, the judgment of the trial court was affirmed.


The jurisdictional evidence did not establish that the guarantor was the corporation’s alter ego or that he purposefully availed himself of the privilege of conducting activities within Texas.
Wilmington Trust, N.A. v. Su
Appellate: Civil, Contracts, Corporations, Creditor/Debtor, Litigation: Commercial, Procedure, Wills/Trusts/Probate
Texas 14th Court of Appeals
December 21, 2018
14-17-00382-CV
J Brett Busby
Published
The bank appealed the judgment of the trial court which granted the special appearance and dismissed the bank’s lawsuit against the guarantor in an action seeking to collect on a guaranty. On appeal, the bank challenged the trial court’s dismissal, arguing that the guarantor had substantial purposeful contacts with Texas because he was the alter ego of the debtor-corporation, and that the guarantor personally had numerous purposeful contacts with Texas that were connected with the operative facts of the guaranty litigation. The guarantor counterargued that the appellate court should affirm the trial court's dismissal because he did not purposefully avail himself of the protections offered by Texas law and courts. The appellate court disagreed with the bank and found that beyond the evidence of stock ownership, the bank did not point to any other evidence in the record demonstrating that the guarantor actually exercised atypical control over the day-to-day internal operations of the corporation. The appellate court concluded that the jurisdictional evidence did not establish that the guarantor was the corporation’s alter ego or that he purposefully availed himself of the privilege of conducting activities within Texas, thereby invoking the benefits and protections of Texas laws. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the employees correctly asserted that they were entitled to attorneys' fees, costs, sanctions, and possibly expenses, related to the dismissal of the employer’s claims.
Gaskamp v. WSP USA, Inc.
Appellate: Civil, Damages, Employment, Torts
Texas 1st Court of Appeals
December 20, 2018
01-18-00079-CV
Laura Carter Higley
Published
The employees appealed the judgment of the trial court which denied their motion to dismiss the employer’s lawsuit alleging misappropriation of its trade secrets and confidential information. On appeal, the employees argued that the two-sentence verification to the employer’s amended petition did not satisfy their evidentiary burden in response to the employees’ motion to dismiss. The employees further asserted that they met their burden to show that the Texas Citizens’ Participation Act (TCPA)  applied to the employer’s claims, and that the trial court erred in not awarding attorneys' fees against the employer after it failed to file a response to their motion to dismiss. The employees also maintained that the employer did not present clear and specific evidence sufficient to state a prima facie case as to each of its claims. The appellate court noted that a party that relied only on its pleadings did so at its own risk of being found not to have satisfied its TCPA burden under the circumstances of the case, but the Act did not require parties to always offer evidence in addition to the pleadings. The appellate court concluded that the employees correctly asserted that they were entitled to attorneys' fees, costs, sanctions, and possibly expenses, related to the dismissal of the employer’s claims. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded.


Because the plaintiffs established by clear and specific evidence a prima facie case for each essential element of each of their claims, the trial court correctly denied the defendants’ motion to dismiss.
Universal Plant Serv., Inc. v. Dresser-Rand Group, Inc.
Appellate: Civil, Constitution, Contracts, Damages, Employment, Evidence, Procedure, Torts
Texas 1st Court of Appeals
December 20, 2018
01-17-00555-CV
Evelyn V. Keyes
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss the plaintiffs’ suit alleging causes of action for misappropriation of trade secrets, unlawful computer access, conversion, theft, and breach of contract. On appeal, the defendants argued that the trial court erred in holding that the Texas Citizens Participation Act (TCPA) did not apply to the plaintiffs’ claims against it, and that the trial court erred in denying the defendants’ motion to dismiss because the plaintiff failed to establish by clear and specific evidence a prima facie case for each element of each claim. The defendants further maintained that trial court abused its discretion in imposing a spoliation presumption against the defendants because the plaintiff failed to establish the essential elements of spoliation. The plaintiffs counterargued that the defendants’ motions to dismiss were properly denied because the record demonstrated that the plaintiff showed by clear and specific evidence a prima facie case for each essential element of each of its claims. The appellate court agreed with the plaintiffs and found that they met their burden of making a prima facie case on the breach-of-contract and state and federal misappropriation-of-trade-secrets claims. The appellate court concluded that because the plaintiffs established by clear and specific evidence a prima facie case for each essential element of each of their claims, the trial court correctly denied the defendants’ TCPA motion to dismiss. Accordingly, the judgment of the trial court was affirmed.


The property owner presented no contradictory evidence, and that the trial court awarded these amounts to the predecessor in interest in the final judgment, therefore, legally and factually sufficient evidence supported the amounts awarded to the predecessor in interest in the final judgment.
Fenlon v. Harris Cnty.
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Tax
Texas 1st Court of Appeals
December 20, 2018
01-17-00877-CV
Evelyn V. Keyes
Published
The property owner appealed the judgment of the trial court which entered judgment in favor of the County, ordering foreclosure of their tax liens on the property owner’s subject property. On appeal, the property owner contended that legally and factually insufficient evidence supported the trial court's finding of the base tax to which the predecessor in interest was entitled, and that legally and factually insufficient evidence supported the finding that the predecessor in interest had a valid tax lien. The property owner further asserted that legally and factually insufficient evidence supported the award of penalties and interest, that the award of attorney's fees to the predecessor in interest was unreasonable and excessive, and that legally and factually insufficient evidence supported the finding that the property owner was personally liable for the amounts awarded in the judgment. The appellate court noted that the predecessor in interest submitted evidence demonstrating the outstanding principal balance under the note, that the penalties and interest that had accrued on the principal balance, and that the attorney's fees had incurred. The appellate court concluded that the property owner presented no contradictory evidence, and that the trial court awarded these amounts to the predecessor in interest in the final judgment, therefore, legally and factually sufficient evidence supported the amounts awarded to the predecessor in interest in the final judgment. Accordingly, the judgment of the trial court was affirmed.


The trial court correctly granted summary judgment in the administrator’s favor on limitations grounds regarding the claims for breach of fiduciary duty and fraud by nondisclosure because the beneficiaries were on inquiry notice of their potential claims.
Brown v. Arenson
Appellate: Civil, Consumer, Discovery, Torts, Wills/Trusts/Probate
Texas 1st Court of Appeals
December 20, 2018
01-17-00515-CV
Michael C. Massengale
Published
The beneficiaries appealed the judgment of the trial court which granted the independent administrator of their father’s estate, in an action seeking an accounting and alleging causes of action for fraud by nondisclosure, negligent misrepresentation, breach of fiduciary duty, professional negligence, and violation of the Deceptive Trade Practices Act. On appeal, the beneficiaries contended that the trial court erred by granting summary judgment in the administrator’s favor because genuine issues of material fact precluded summary judgment, in that their claims did not accrue when they received their inheritance checks because the administrator breached his fiduciary duties by failing to make a full disclosure of all material facts. The beneficiaries further claimed that the discovery rule and the doctrine of fraudulent concealment deferred accrual of their causes of action. The appellate court noted that the beneficiaries made no arguments in the appeal to explain why a movant's affidavit would be entirely inadmissible because it conflicted in some particulars with a prior deposition. The appellate court found that the injury alleged by the beneficiaries was not inherently undiscoverable, and the discovery rule did not apply. The appellate court concluded that the trial court correctly granted summary judgment in the administrator’s favor on limitations grounds regarding the claims for breach of fiduciary duty and fraud by nondisclosure because the beneficiaries were on inquiry notice of their potential claims at the time they reached the age of majority and received their inheritance checks. Accordingly, the judgment of the trial court was affirmed.


Section 13.2475 of the Texas Water Code violated the general constitutional prohibition against local laws that regulate the affairs of a city.
Tyler v. Liberty Utilities (Tall Timbers Sewer) Corp.
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 20, 2018
01-17-00745-CV
Michael C. Massengale
Published
The City appealed the judgment of the trial court which ordered a declaratory judgment that Section 13.2475 of the Texas Water Code was unconstitutional. On appeal, the City contended that Section 13.2475 was authorized by Article I, Sections 17(d) and 26 as exceptions to the constitutional prohibition of local laws. The City asserted that Section 13.2475 was not prohibited under Article III, Section 56(a) because the statute's subject matter was not included among the specific topics for which local or special laws were prohibited, and even if the statute was a local law for purposes of Article III, Section 56, it was not unconstitutional because it was otherwise authorized by Article I, Section 17(d), which authorized the Legislature to control privileges and franchises, and Section 26, which prohibited monopolies. The appellate court found that Section 13.2475 of the Texas Water Code violated the general constitutional prohibition against local laws that regulate the affairs of a city. The appellate court concluded that the constitutional provisions that generally authorized legislative control over privileges and franchises and that generally prohibited perpetuities and monopolies did not authorize this local law. Accordingly, the judgment of the trial court was affirmed.


Article 62.0551(a) did not burden substantially more speech than was necessary to further the State's legitimate interests, and thus, the defendant failed to establish that the statute was facially unconstitutional as substantially overbroad in violation of the First Amendment.
Ex Parte Dennis Lee Odom
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 20, 2018
01-18-00169-CR
Harvey Brown
Published
The defendant appealed the trial court’s denial of his pretrial application for writ of habeas corpus challenging Article 62.0551(a)'s reporting requirements as a facially unconstitutional violation of the First Amendment right to freedom of speech. This appeal stemmed from the defendant’s conviction as a sex offender and charge of failing to report online identifiers. The appellate court was asked to consider the defendant’s constitutional challenge to the Texas Sex Offender Registration Program's requirement that convicted sex offenders register internet identifiers, whereby the defendant asserted that Article 62.0551 was unconstitutional on its face because it resulted in an impermissible prior restraint on speech and was overbroad when considering the State's interest in preventing crime. The appellate court noted that since Article 62.0551(a)'s reporting requirement burdened constitutionally protected speech, it was required to pass First Amendment scrutiny. The appellate court concluded that Article 62.0551(a) did not burden substantially more speech than was necessary to further the State's legitimate interests, and thus, the defendant failed to establish that the statute was facially unconstitutional as substantially overbroad in violation of the First Amendment. Accordingly, the judgment of the trial court was affirmed.


Since the plaintiffs sufficiently segregated their attorney's fees, the trial court did not err in awarding them attorney's fees as it did pursuant to Article 581-33(D)(7) of the Texas Securities Act.
Kubbernus v. Ecal Partners, Ltd.
Appellate: Civil, Contracts, Procedure, Securities, Torts
Texas 1st Court of Appeals
December 20, 2018
01-16-00174-CV
Terry Jennings
Published
The defendants appealed the judgment of the trial court which rendered judgment in favor of the plaintiffs in their suit alleging securities violations under the Texas Securities Act, breach of contract, breach of fiduciary duty, and fraud. On appeal, the defendants contended that the evidence was insufficient to support the jury's findings in favor of the plaintiffs on their claims for securities violations and attorney's fees under the Act, certain plaintiffs could not bring suit under the Act, and certain plaintiffs’ securities-violations claims were barred by the Act’s statute of repose. The appellate court found that the plaintiffs were not required to prove causation as an element of their claims for securities violations under the Act. The appellate court concluded that since the plaintiffs sufficiently segregated their attorney's fees, the trial court did not err in awarding them attorney's fees as it did pursuant to Article 581-33(D)(7). Accordingly, the judgment of the trial court was affirmed. 


The homeowner did not show that the improper refusal of a single payment to the lender excused all the subsequent payments not made under the loan.
Mulvey v. U.S. Bank N.A.
Appellate: Civil, Banking and Finance, Creditor/Debtor, Procedure, Real Property
Texas 8th Court of Appeals
December 19, 2018
08-17-00186-CV
Ann Crawford McClure
Published
The homeowner appealed the judgment of the trial court which granted summary judgment in favor of the lender, which foreclose on property securing a home equity loan. On appeal, the appellate court was asked to consider whether the homeowner presented some evidence supporting one or more of his asserted affirmative defenses. The homeowner contended that he raised some evidence in support of several affirmative defenses to any default under the note, and the lender did not conclusively disprove those defenses. The appellate court noted that the trial court could have properly concluded that the homeowner did not raise a material fact issue on a statute of limitations defense. The appellate court found that the homeowner failed to raise a genuine issue of material fact on his illegality defense because his summary judgment proofs did not raise an illegality defense under the Texas Constitution. The appellate court concluded that the homeowner did not show that the improper refusal of a single payment to the lender excused all the subsequent payments not made under the loan. Accordingly, the judgment of the trial court was affirmed.


The trial court was within its discretion to admit the detective’s testimony under Rule 403 because there was no clear disparity between the degree of prejudice of the offered evidence and its probative value.
Beham v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
December 19, 2018
06-16-00094-CR
Jack Carter
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery and sentenced him to twenty-five years’ imprisonment. On appeal, the defendant contended that the detective’s testimony that he was holding himself out to be a gang member should have been excluded pursuant to Rule 403 of the Texas Rules of Evidence, which allowed relevant evidence to be excluded if its probative value was substantially outweighed by the danger of unfair prejudice. The appellate court noted that while character and reputation evidence may be prejudicial, it was not unfairly prejudicial because it was unlikely to irrationally impact the jury. The appellate court found that the State's need for this evidence at punishment was minimal because the photographs, showing the defendant with guns, large amounts of cash, and illegal drugs, had already been admitted, and they allowed the State to argue and the jury to infer that the defendant was a gun-toting drug dealer who deserved a longer sentence. The appellate court concluded that the trial court was within its discretion to admit the detective’s testimony under Rule 403 because there was no clear disparity between the degree of prejudice of the offered evidence and its probative value. Accordingly, the judgment of the trial court was affirmed.


The criminal appellate court concluded that assuming it was error to deny the jury instruction on felony deadly conduct, the defendant was not harmed by any such error in the trial court's charge.
Braughton v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 19, 2018
PD-0907-17
Elsa Alcala
Published
The defendant appealed the judgment of the appellate court which found that the evidence was legally sufficient to uphold the defendant’s murder conviction and that there was no harmful error in the jury charge due to the omission of a lesser-included offense instruction on felony deadly conduct. On appeal, the defendant claimed that he shot the victim because he reasonably believed the use of such force was immediately necessary to protect himself and his father against the victim’s attempted use of deadly force. The criminal appellate court found that, viewing the evidence in the light most favorable to the verdict and deferring to the jury's credibility determinations, the evidence supported a rational jury's rejection of the defendant’s self-defense and defense of third person claims, and thus the evidence was legally sufficient to uphold his conviction for murder. The criminal appellate court concluded that assuming it was error to deny the jury instruction on felony deadly conduct, the defendant was not harmed by any such error in the trial court's charge. Accordingly, the judgment of the appellate court was affirmed.


The trial court abused its discretion by granting the real parties in interests’ motion for leave to designate the "unknown gunman" as a responsible third party, and that the relator had no adequate remedy by appeal.
In re Echols
Appellate: Civil, Constitution, Litigation: Personal Injury, Procedure
Texas 5th Court of Appeals
December 19, 2018
05-18-01226-CV
Elizabeth Ann Lang-Miers
Published
The relator filed a petition for writ of mandamus with the appellate court, seeking that it direct the trial court to vacate its order allowing the designation as untimely. On appeal, the relator contended that the trial court clearly abused its discretion by permitting real parties in interest to designate an unknown criminal as a responsible third party without complying with the requirements of section 33.004(j), Texas Civil Practice and Remedies Code. The real parties in interest responded, arguing that the trial court correctly interpreted section 33.004(j). The relator further maintained that 60 days after answering a lawsuit was insufficient time for a defendant to conduct discovery to determine if a criminal met the definition of a responsible third party. The appellate court found that the trial court abused its discretion by granting the real parties in interests’ motion for leave to designate the "unknown gunman" as a responsible third party, and that the relator had no adequate remedy by appeal. The appellate court concluded that the relator’s writ would issue only if the trial court failed to comply with the appellate court’s order. Accordingly, the relator’s writ was conditionally granted.


The record failed to support the appellate court’s conclusion that the defendant suffered "some" harm from the trial court's failure to instruct the jury that it must be unanimous with respect to which of the victim’s orifices was penetrated.
French v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 19, 2018
PD-0038-18
Kevin Patrick Yeary
Published
The State appealed the judgment of the appellate court which reversed the defendant’s conviction for aggravated sexual assault of a child, finding that the trial court erred in not giving a unanimity instruction to the jury as to which orifice the defendant penetrated with his sexual organ. On appeal, the State argued that the defendant failed to preserve error by not leveling an appropriate objection to the jury charge at trial, and the defendant did not suffer any level of harm as a result of the trial court's jury charge. The defendant counterargued that the jury charge ran afoul of the juror unanimity requirement because it did not require the jury to agree as to which orifice the defendant contacted and/or penetrated. The criminal appellate court concluded that the record failed to support the appellate court’s conclusion that the defendant suffered "some" harm from the trial court's failure to instruct the jury that it must be unanimous with respect to which of the victim’s orifices was penetrated. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.


The record did not support the defendant’s affirmative defenses of fraud/equitable estoppel and the record contained no evidence supporting the trial court's finding that the law firm made any false representations to the defendant in the breach of contract action.
Wyde v. Francesconi
Appellate: Civil, Contracts, Damages, Procedure, Professional Responsibility, Torts
Texas 5th Court of Appeals
December 19, 2018
05-17-01333-CV
David L. Bridges
Published
The law firm appealed the judgment of the trial court which awarded it damages based on the defendant’s breach of contract for legal services. On appeal, the law firm challenged the trial court’s award because the evidence did not support the trial court's findings of fact and conclusions of law regarding the defendant’s affirmative defenses of failure to mitigate damages and fraud/equitable estoppel, the damages award was unreasonable, arbitrary, and capricious in light of evidence establishing damages, and to the extent the trial court awarded attorney's fees to the law firm as the prevailing party in the underlying family lawsuit, such award was not supported by the record and was not the proper basis for calculating damages in this case. The appellate court found that the trial court erroneously concluded as a matter of law that the law firm had a duty to mitigate its damages. The appellate court concluded that the record did not support the defendant’s affirmative defenses of fraud/equitable estoppel and the record contained no evidence supporting the trial court's finding that the law firm made any false representations to the defendant in the breach of contract action. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded for a new trial on damages.


The magistrate failed to maintain the requisite neutrality required by section 51.095 of the Texas Family Code when it engaged in the actual questioning of the juvenile.
In re B.B.
Criminal, Evidence, Juvenile, Procedure
Texas 4th Court of Appeals
December 19, 2018
04-18-00108-CV
Sandee Bryan Marion
Published
The State appealed the judgment of the trial court which granted the juvenile’s motion to suppress, asserting the trial court erred in concluding the magistrate's actions violated section 51.095. The appellate court was asked to consider whether section 51.095 of the Texas Family Code, which set forth the requirements for obtaining written statements from juveniles, was violated when the magistrate who administered the statutory warnings and determined the voluntariness of the juvenile's statement engaged in the actual questioning of the juvenile. On appeal, the juvenile argued that the trial court properly concluded section 51.095 was violated because the magistrate assumed the role of agent for the police rather than that of a neutral and disinterested magistrate. The appellate court agreed with the juvenile and found that given the magistrate's role under section 51.095 and the need to strictly comply with the detailed and explicit procedures set forth in section 51.095, the questioning by the magistrate violated section 51.095. The appellate court noted that Section 51.095 only provided for questioning by peace officers or attorneys representing the state for purposes of obtaining the juvenile's statement and only after the juvenile was warned about the right to have an attorney appointed to counsel with the juvenile before and during questioning. The appellate court concluded that the magistrate failed to maintain the requisite neutrality required by the statute. Accordingly, the judgment of the trial court was affirmed.


The defendant’s counsel's brief contained bare, conclusory statements and failed to satisfy the uniform requirements for Anders’ briefs.
In re N.F.M.
Constitution, Evidence, Family, Procedure
Texas 4th Court of Appeals
December 19, 2018
04-18-00475-CV
Luz Elena D Chapa
Published
The defendant appealed the judgment of the trial court which sought to strike the brief he filed pursuant to Anders v. California. The appellate court noted that the defendant was  present at trial and was presumptively aware of what transpired, and therefore the Anders’ brief did not assist the defendant in determining whether to file a pro se brief. The appellate court found that the defendant’s counsel's brief contained bare, conclusory statements and failed to satisfy the uniform requirements for Anders’ briefs. The appellate court concluded that the Anders’ briefing requirements that applied uniformly in criminal and juvenile appeals also applied in termination appeals, and since the defendant’s counsel's Anders’ brief did not satisfy the uniform Anders’ briefing requirements, counsel’s requested relief from the order striking his Anders’ brief must be denied. Accordingly, the defense counsel’s request for relief was denied.


There was no conflict between a statute providing the topics about which a licensed professional was qualified to testify as an expert and the certificate of merit statute including an additional requirement to provide expert testimony in that instance.
Kayne Anderson Capital Advisors, L.P. v. Hill & Frank, Inc.
Appellate: Civil, Contracts, Procedure
Texas 1st Court of Appeals
December 18, 2018
01-18-00544-CV
Laura Carter Higley
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion to dismiss the action alleging faulty design and construction of a pool at the top of a parking garage. On appeal, the plaintiff argued that the trial court erred by granting the defendant’s motion to dismiss. Specifically, the plaintiff asserted that the defendant’s license as an engineer satisfied the requirement of having the same professional license due to recent changes in the Texas Occupations Code concerning work that could be performed either by a licensed engineer or licensed architect. The plaintiff further reasoned that, because the Legislature allowed either an engineer or an architect to provide expert opinion concerning their overlapping zones of work and because the work at issue in this suit fell within that zone, the Legislature intended to allow either engineers or architects to prepare certificates of merit in this situation. The appellate court disagreed with the plaintiff and found that regardless of what other qualifications he had to testify on the subject forming the basis of the suit, the plaintiff did not have the same professional license or registration as the defendant. The appellate court concluded that there was no conflict between a statute providing the topics about which a licensed professional was qualified to testify as an expert and the certificate of merit statute including an additional requirement to provide expert testimony in that instance. Accordingly, the judgment of the trial court was affirmed.


The plaintiff’s parol-evidence and legal-conclusion objections failed because, even if the trial court erred in not striking the challenged statement as hearsay, such error was harmless.
Holland v. Mem’l Hermann Health Sys.
Appellate: Civil, Constitution, Contracts, Damages, Evidence, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
December 18, 2018
01-17-00107-CV
Terry Jennings
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendant in her suit against it for premises liability. On appeal, the plaintiff contended that the trial court erred in granting the defendant summary judgment. Specifically, the plaintiff asserted that the defendant’s representative lacked personal knowledge to testify about the purpose of the sixth amendment to the lease because it was based solely on his use of the word "belief,” which the plaintiff argued that the belief alone was insufficient. The plaintiff further maintained that the defendant’s representative’s testimony was inadmissible because it constituted a legal conclusion and parol evidence. The appellate court disagreed with the plaintiff and found that the representative did not testify as to whether the defendant owed a duty to the plaintiff, rather he only testified, within his personal knowledge as Senior Vice-President and Chief Facility Services Officer for Memorial Hermann, as to which entity was responsible for maintaining the roadway at issue. The appellate court concluded that the plaintiff’s parol-evidence and legal-conclusion objections failed because, even if the trial court erred in not striking this challenged statement as hearsay, such error was harmless as it was cumulative in light of the lease agreements and the other admissible testimony regarding the roadway at issue. Accordingly, the judgment of the trial court was affirmed.


The evidence was insufficient to support the trial court's division of the community estate and confirmation of the petitioner’s separate property.
Cohen v. Bar
Constitution, Family, Procedure
Texas 1st Court of Appeals
December 18, 2018
01-18-00082-CV
Evelyn V. Keyes
Published
The respondent appealed the judgment of the trial court which awarded the petitioner a default divorce, divided the community estate, and confirmed separate property rendered in favor of the petitioner. On appeal, the respondent argued that the trial court erred in rendering a default divorce decree because it did not have personal jurisdiction over him as a nonresident defendant, he did not receive service of process in violation of his due process rights, and it abused its discretion in dividing the community estate and confirming certain property as the petitioner’s separate property. The appellate court noted that since the respondent could not point to any error in the service or return of citation that was apparent on the face of the record, the trial court's default judgment did not deprive him of due process on this basis. The appellate court concluded that the evidence was insufficient to support the trial court's division of the community estate and confirmation of the petitioner’s separate property. Accordingly, the judgment of the trial court was reversed and remanded.


The appellate court concluded that the defendant was not egregiously harmed by the absence of a unanimity jury instruction.
Torres v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 18, 2018
01-17-00499-CR
Russell Lloyd
Published
The defendant appealed the judgment of the trial court which convicted him of continuous sexual abuse of a young child, aggravated sexual assault of a child, and indecency with a child, and sentenced him to imprisonment. On appeal, the defendant argued that the child victim's underwear and DNA analysis of it should not have been admitted into evidence because the State failed to reliably authenticate the underwear since the first two links in the chain of custody were not established by the victim and her mother. The defendant further asserted that the jury charge erroneously allowed for a non-unanimous verdict on the aggravated-sexual-assault-of-a-child count, and the jury charge erroneously allowed for a non-unanimous verdict on the indecency-with-a-child count. The appellate court noted that the factfinder evaluated the credibility of testimony and believed the mother’s testimony when she identified that underwear as that given to her by the victim on the day after the defendant’s last act of abuse. The appellate court found that the defendant offered no evidence of tampering or of a breach in the chain other than attacks on witness credibility, and therefore, the trial court did not abuse its discretion in admitting the victim’s underwear into evidence. The appellate court concluded that the defendant was not egregiously harmed by the absence of a unanimity jury instruction. Accordingly, the judgment of the trial court was affirmed.


The trial court abused its discretion by signing a default judgment in direct contradiction of the Texas Election Code.
In re Bishop
Appellate: Civil, Election, Gov't/Administrative, Procedure, Torts
Texas 5th Court of Appeals
December 17, 2018
05-18-01333-CV
David L. Bridges
Published
The relators appealed the decision of the trial court, seeking a writ of mandamus directing the trial court to vacate the default judgment which declared the candidate for justice of the peace ineligible for the office because she was purportedly not a resident of the district, that the trial court's jurisdiction over the matter was moot due to the election schedule. This appeal stemmed from the underlying lawsuit originated by another candidate for justice of the peace challenged the eligibility of her opponent, seeking a declaratory judgment and injunctive relief. The appellate court noted that by granting a default judgment, the trial court failed to comply with the mandatory statutory provision prohibiting a default judgment in an election contest. The appellate court found that the trial court abused its discretion by signing a default judgment in direct contradiction of the Texas Election Code. The appellate court concluded that the default judgment was void and the relator need not show there was no adequate remedy by appeal. Accordingly, the relators’ petition was conditionally granted.


The alleged defects in the trial court’s temporary orders did not invalidate the final termination order, as it was supported by expert witness testimony and it included the necessary Indian Child Welfare Act findings.
In re A.M.
Family, Procedure, Tribal
Texas 8th Court of Appeals
December 14, 2018
08-18-00105-CV
Ann Crawford McClure
Published
The biological mother appealed the judgment of the trial court which terminated the parental rights to her child. This appeal arose out of the Texas Department of Family and Protective Services (the Department) involvement based on allegations of neglectful supervision, drug use, and mental health issues. On appeal, the mother argued that the termination order must be reversed and the case dismissed based on violations of the Indian Child Welfare Act (ICWA). The mother alleged that the Department violated ICWA because it failed to provide formal notice to the Tribe of the emergency ex parte hearing conducted by the trial court, and that the emergency order entered on that date did not include the findings required by Section 1912(d) and (e). The appellate court found that the requirements of Section 1912(a), (d), and (e) did not apply to the emergency removal of the child because of Section 1922's directive that nothing in ICWA should prevent the emergency removal of an Indian child when necessary to prevent imminent physical damage or harm to the child. The appellate court concluded that the alleged defects in the temporary orders did not invalidate the final termination order, as it was supported by expert witness testimony and it included the necessary ICWA findings. Accordingly, the judgment of the trial court was affirmed.


The evidence admitted at the disposition hearing, viewed in the light most favorable to the challenged finding, was legally sufficient to show that the Department made reasonable efforts to prevent or eliminate the need to remove the juvenile from his home.
In re V.L.T.
Criminal, Gov't/Administrative, Juvenile, Procedure
Texas 8th Court of Appeals
December 14, 2018
08-17-00209-CV
Ann Crawford McClure
Published
The juvenile appealed the judgment of the trial court which committed him to the custody of the Texas Juvenile Justice Department for failing to attend trauma counseling sessions and for assault causing bodily injury while under intensive supervision probation. On appeal, the juvenile argued that the evidence was insufficient to support the trial court's finding that reasonable efforts had been made to prevent or eliminate the need for his removal from home and to make it possible for him to return home. Specifically, the juvenile asserted that there was no evidence of any reasonable efforts to keep him in his home and eliminate the need for his removal. The appellate court found the evidence admitted at the disposition hearing, viewed in the light most favorable to the challenged finding, was legally sufficient to show that the Department made reasonable efforts to prevent or eliminate the need to remove the juvenile from his home. The appellate court concluded that the trial court did not abuse its discretion in modifying the disposition because the evidence was both legally and factually sufficient to support the challenged finding. Accordingly, the judgment of the trial court was affirmed.


The relator had the right to withhold these communications from disclosure and assert its claim that the documents were protected by the attorney-client and work product privileges.
In re: WHC, LLC
Appellate: Civil, Constitution, Discovery, Employment, Procedure, Workers' Compensation
Texas 8th Court of Appeals
December 14, 2018
08-18-00088-CV
Ann Crawford McClure
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus against the trial court judge, challenging his order requiring the relator to disclose documents which were protected by the attorney-client privilege. On appeal, the relator contended that the trial court clearly abused its discretion by concluding that the withheld documents were not privileged and ordering the relator to disclose the documents to the moving party. The moving party responded that the relator did not specifically plead the privileges it claimed were applicable to the in camera documents. The appellate court noted that in these communications, the relator’s attorneys were providing status reports about the progress of the case and presenting their evaluation and analysis of the pending litigation. The appellate court found that it could be readily determined from the documents that the attorney-client and work product privileges were applicable and protected the documents from compelled disclosure. The appellate court concluded that the relator had the right to withhold these communications from disclosure and assert its claim that the documents were protected by the attorney-client and work product privileges. Accordingly, the relator’s petition was conditionally granted.


The defendants did not conclusively establish the exclusive remedy defense afforded by Section 408.001(a) of the Texas Workers' Compensation Act.
Reveles v. OEP Holdings, LLC
Appellate: Civil, Litigation: Personal Injury, Torts, Workers' Compensation
Texas 8th Court of Appeals
December 14, 2018
08-16-00073-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendants in a suit alleging negligence based on injuries sustained. On appeal, the plaintiff challenged the order granting summary judgment in favor of the defendants based on the exclusive remedy defense, arguing that they failed to establish each element of the affirmative defense as a matter of law. Specifically, the plaintiff maintained that the defendants failed to conclusively prove that they were his co-employers because they offered no evidence that the defendant was a license holder. The appellate court found that the defendants offered evidence conclusively proving that the defendant was a license holder under the Staff Leasing Services Act. The appellate court concluded that the defendants did not conclusively establish the exclusive remedy defense afforded by Section 408.001(a) of the Texas Workers' Compensation Act. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The clerk's failure to send notice of judgment in a timely manner deprived the employer of the opportunity to attack the judgment by filing a motion for new trial or other post-judgment motions, and his failure constituted an error on the face of the record.
Camoco, LLC v. Terrazas
Appellate: Civil, Employment, Procedure, Workers' Compensation
Texas 8th Court of Appeals
December 13, 2018
08-17-00029-CV
Yvonne T. Rodriguez
Published
The employer appealed the judgment of the trial court which granted a default judgment against it for a retaliatory firing. On appeal, the employer argued that default judgment was improper because the return of citation did not strictly comply with Texas Rules of Civil Procedure 107(b)(8) in that the return failed to identify the manner of delivery of service. The employer further asserted that the default judgment should be reversed due to the clerk's failure to immediately notify it of the rendition of judgment, as required by Texas Rules of Civil Procedure 306a(3), and the vague testimony of the employee was legally and factually insufficient to prove causation and damages. The appellate court found that authority held that the manner of delivery of service or attempted service was not satisfied by merely stating that a person "was served" or that citation was delivered "by serving" a particular person. The appellate court concluded that the clerk's failure to send notice of judgment in a timely manner deprived the employer of the opportunity to attack the judgment by filing a motion for new trial or other post-judgment motions, and his failure constituted an error on the face of the record. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The defendant was not entitled to a lesser-offense instruction on manslaughter because there was no reasonable interpretation of the evidence that would allow a jury to rationally find that the defendant acted only recklessly when she stabbed the victim.
Ritcherson v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 12, 2018
PD-0021-17
Barbara Parker Hervey
Published
The defendant appealed the judgment of the trial court which convicted her of murder and sentenced her to 25 years’ confinement. The criminal appellate court was asked to determine whether the defendant was entitled to a lesser-included offense instruction on manslaughter during her second murder trial. On appeal, the defendant argued that the trial court erred when it did not instruct the jury on manslaughter. The State counterargued that the criminal appellate court should overrule Saunders v. State because it was poorly reasoned. The criminal appellate court noted that if the jury took the witness’s use of the word "reflex" literally, its only option was to acquit the defendant because a jury could not infer intent from a reflexive reaction, and a reflexive reaction did not constitute a voluntary act as contemplated by Section 6.01(a). The defendant further contended that the evidence was susceptible to different interpretations because the defendant stabbed the victim only once, with a knife of indeterminate size, under circumstances which would support a reasonable conclusion that she acted without deliberation, and in response to provocation. The criminal appellate court concluded that the defendant was not entitled to a lesser-offense instruction on manslaughter because there was no reasonable interpretation of the evidence that would allow a jury to rationally find that the defendant acted only recklessly when she stabbed the victim. Accordingly, the judgment of the trial court was affirmed.


If an officer held an objectively reasonable belief that an evidence-destroying medical treatment was about to take place, the Fourth Amendment did not command him to wait until the treatment was mere moments away before he could act.
State v. Garcia
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 12, 2018
PD-0344-17
Michael E. Keasler
Published

The defendant caused a severe car crash. On the scene of the crash, the defendant appeared to be intoxicated. The defendant was transported to a nearby hospital to have his injuries evaluated, and some police officers went with him.  At the hospital, the police saw a nurse about to give the defendant an I.V. But a doctor came into the defendant’s room and, at the defendant’s insistence, canceled the I.V.  Thereafter, the police took the defendant’s blood without a warrant. The defendant moved to suppress the blood evidence, and the State claimed “exigent circumstances” in response—the argument being that, if the defendant had received an I.V., evidence of his intoxication would have been effectively destroyed. So, the State argued, the police simply had no time to obtain a warrant in light of the hazard posed by the I.V. The trial judge disagreed, suppressing the blood evidence. The trial judge found that, at the time of the search, the officers were aware that the defendant was not at risk of receiving an I.V. The court of appeals reversed the trial judge, but the Court of Criminal Appeals reversed the court of appeals and affirmed the trial judge. The Court of Criminal Appeals held that the trial judge did not abuse his discretion in resolving a matter of disputed fact—whether the officers were aware that the defendant was not going to receive I.V. The Court of Criminal appeals held that the trial court’s finding in this regard, if “inscrutable,” had at least some support in the record. As such, there was no abuse of discretion.


A discharge for "untruthfulness" within the meaning of Section 1701.452(b)(3) included a discharge for material omissions, therefore, the trial court did not err in affirming the order that the petitioner was not entitled to have the termination report changed.
Stacks v. Burnet Cnty. Sheriff’s Office
Appellate: Civil, Employment, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
December 12, 2018
03-17-00752-CV
Cindy Olson Bourland
Published
The petitioner appealed the judgment of the trial court which affirmed the administrative law judge’s order denying his petition to correct the sheriff’s office report to reflect an honorable or general discharge from his position as a deputy sheriff. On appeal, the petitioner argued that the omissions from the report and affidavit did not amount to "untruthfulness." The sheriff’s office counterargued that omitting facts could render an otherwise-true representation misleading. The appellate court noted that in applying its common meaning, a discharge for untruthfulness included a discharge for omitting material information or facts that rendered a statement misleading or deceptive. The petitioner further raised a practical objection, that including material omissions within the definition of untruthfulness would endanger confidential informants, and alleging that such a holding would result in police officers erring on the side of disclosing confidential informants in their reports, thus increasing the risk that defendants would learn their identity in discovery. The appellate court concluded that a discharge for "untruthfulness" within the meaning of Section 1701.452(b)(3) included a discharge for material omissions, therefore, the trial court did not err in affirming the order that the petitioner was not entitled to have the termination report changed. Accordingly, the judgment of the trial court was affirmed.


The criminal appellate court concluded that, pursuant to Moore v. Texas and Ex parte Moore, no further record development or fact findings were needed and that the applicant was not entitled to relief.
Ex parte Wood
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 12, 2018
WR-45,746-02
Sharon Keller
Published
The applicant appealed the judgment of the trial court, filing a subsequent application claiming that he was exempt from the death penalty due to intellectual disability and that due process required that he be given tools and a hearing to more fully establish his intellectual-disability claim. Thereafter, the applicant filed a suggestion that the criminal appellate court reconsider his application on its own initiative. The criminal appellate court noted that sometimes it allows an applicant to put on new evidence on remand when there was no reason or opportunity to put on the relevant evidence earlier, however, there was no reason to allow the applicant to put on new evidence. The criminal appellate court found that a remand to allow the opportunity to further develop the evidence was simply unwarranted. The criminal appellate court concluded that, pursuant to Moore v. Texas and Ex parte Moore, no further record development or fact findings were needed and that the applicant was not entitled to relief. Accordingly, the applicant’s request for relief was denied.


Because section 22.011(f) was rationally related to a legitimate governmental interest, its application to the defendant’s punishment for sexual assault did not violate his rights to equal protection or substantive due process.
Estes v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
December 13, 2018
02-14-00460-CR
Lee Gabriel
Published
The defendant appealed the judgment of the criminal appellate court which remanded the appeal for consideration of the following questions: whether strict scrutiny applied to the defendant’s claim that the punishment enhancement for sexual-assault convictions involving bigamy violated equal protection as applied to him, and whether the sexual-assault punishment enhancement as applied to him violated his substantive due-process rights. The defendant argued that section 22.011(f) impinged on his fundamental right to marry, mandating application of the strict-scrutiny test. The State conceded that marriage was a fundamental personal right, but maintained that section 22011(f) was not subject to strict scrutiny because it did not place a direct limit on entering marriage versus creating different consequences due to being married. The appellate court found that strict scrutiny did not apply to an equal-protection review of section 22.011(f) as applied to the defendant. The appellate court concluded that because section 22.011(f) was rationally related to a legitimate governmental interest, its application to the defendant’s punishment for sexual assault did not violate his rights to equal protection or substantive due process. Accordingly, the judgment of the criminal appellate court was affirmed.


The relators' requested mandamus relief must be denied solely on the basis that this was not the sort of exceptional case that warranted the extraordinary remedy of mandamus.
In re Double Diamond, Inc.
Appellate: Civil, Constitution, Gov't/Administrative, Real Property
Texas 11th Court of Appeals
December 13, 2018
11-18-00318-CV
John Bailey
Published
The relators appealed the judgment of the trial court, seeking mandamus relief from a suit filed by the property owners association concerning the governance of the association. On appeal, the relators sought to vacate various interlocutory orders by the trial court concerning the annual election of the board of directors of the property owners association, a "special meeting" of the members of the property owners association, the tabulation of members' votes, and the removal of directors and election of new directors. Specifically, the relators asserted that these orders by the trial court violated the governing documents of the property owners association. The appellate court noted that the relators did not assert they did not have an adequate remedy by appeal, and thus, the relators did not have an adequate remedy by appeal. The appellate court concluded that the relators' requested mandamus relief must be denied solely on the basis that this was not the sort of exceptional case that warranted the extraordinary remedy of mandamus. Accordingly, the relators’ request for mandamus relief was denied.


The appellate court was required to deny the relators' requested mandamus relief solely on the basis that this was not the sort of exceptional case that warranted the extraordinary remedy of mandamus.
In re Dipprey
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 11th Court of Appeals
December 13, 2018
11-18-00091-CV
John Bailey
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus to vacate the trial court’s order concerning the tabulation of votes for owners of timeshare estates at a meeting of the members of the property owners association. On appeal, the relators contended that the trial court erred in its construction of the articles of incorporation of the bylaws and of the property owners association with respect to the tabulation of votes. The appellate court noted that it could not reach the relators' contention that the trial court clearly abused its discretion because the relators failed to establish that they did not have an adequate remedy by appeal. The relators argued that they did not have an adequate remedy by appeal because the trial court's order could determine the governance of the property owners association. The appellate court disagreed with the relators and concluded that it must deny the relators' requested mandamus relief solely on the basis that this was not the sort of exceptional case that warranted the extraordinary remedy of mandamus. Accordingly, the relators’ request for mandamus relief was denied.


The plaintiff failed to preserve his complaints in the trial court and, even if he had preserved the issue, the trial court did not abuse its discretion by imposing time limits under the circumstances.
Johnson v. Nat’l Oilwell Varco, LP
Appellate: Civil, Civil Rights, Employment, Evidence, Procedure
Texas 14th Court of Appeals
December 11, 2018
14-16-00440-CV
Martha Hill Jamison
Published
The plaintiff appealed the judgment of the trial court which ruled in favor of the defendant in his race-discrimination, employment-termination case. On appeal, the plaintiff contended that the trial court abused its discretion in denying his motion for new trial, in imposing time limits in the middle of trial, in refusing to charge the jury in keeping with a federal pattern jury instruction, finding that the defendant only negligently, as opposed to intentionally, destroyed video evidence, failing to order a remedy for destruction of the evidence that would have restored the plaintiff’s ability to prove his case, refusing to sanction the defendant, and admitting certain evidence while excluding other evidence. The appellate court disagreed with the plaintiff and found that the plaintiff failed to preserve his complaints in the trial court and, even if he had preserved the issue, the trial court did not abuse its discretion by imposing time limits under the circumstances. The appellate court concluded that the judge reasonably could have found that sanctions were not warranted because no progressive discipline policy was uncovered after the defendant spent a reported $500,000 or more searching for one, and thus, these conclusions were not arbitrary, unreasonable, or undertaken without reference to guiding rules or principles. Accordingly, the judgment of the trial court was affirmed.


A court-cost statute need only fall within one category to be constitutional, and the district attorney and clerk fees within the first category.
Moliere v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 11, 2018
14-17-00594-CR
J Brett Busby
Published
The defendant appealed the judgment of the trial court which convicted him of misdemeanor assault involving family violence in violation of section 22.01(a)(1) of the Texas Penal Code. On appeal, the defendant contended that Article 42.013 of the Code of Criminal Procedure, which required the trial court to make an affirmative finding of family violence in the judgment, was unconstitutional under Apprendi v. New Jersey. Specifically, the defendant asserted that a finding under Article 42.013 increased his penalty beyond the prescribed statutory maximum by depriving him of his right to possess a firearm without a finding by the jury. The defendant further challenged, as facially unconstitutional, two court costs, including the district attorney fee and the clerk's fee, maintaining that the fees violated the separation of powers clause because the statutes did not direct the fees to be spent for a legitimate criminal justice purpose, thereby turning the courts into tax gatherers. The appellate court concluded that a court-cost statute need only fall within one category to be constitutional, and the district attorney and clerk fees within the first category. Accordingly, the judgment of the trial court was affirmed.


Sufficient evidence supported the trial court's predicate finding under Subsection (E), best-interest finding, and order termination of the mother’s parental rights.
In re J.D.G.
Family, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 11, 2018
01-18-00578-CV
Harvey Brown
Published
The mother appealed the judgment of the trial court which terminated her parental rights due to the child’s hospitalization from injuries caused by the father's shaking of him. On appeal, the mother challenged the sufficiency of the evidence to support the trial court's three predicate findings for termination of her parental rights, the best-interest determinations, and appointment of the Department of Family and Protective Services (the Department) as the children's managing conservator. The mother further challenged the applicability and sufficiency of the evidence on an affirmative defense relevant to one of the predicate findings against her and an evidentiary ruling. The appellate court found that sufficient evidence supported the trial court's predicate finding under Subsection (E), best-interest finding, and order termination of the mother’s parental rights. The appellate court concluded that because the termination of the mother’s parental rights was upheld, she did not have standing to challenge the designation of the Department as the children's managing conservator. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court acted within its discretion in overruling the doctor’s objection and denying his motion.
Richter v. Downey
Appellate: Civil, Damages, Gov't/Administrative, Health Care, Torts
Texas 3rd Court of Appeals
December 07, 2018
03-17-00740-CV
Michael Toth
Published
The doctor appealed the judgment of the trial court which denied his motion to dismiss a health care liability claim under the Texas Medical Liability Act, and overruling his objection to the expert report filed in support of the claim. This appeal stemmed from the plaintiff’s allegations that the doctor was negligent and breached his duty of care by failing to test for, diagnose, and treat acute appendicitis, and that the delay in diagnosis caused the plaintiff’s appendix to perforate, resulting in complications. On appeal, the doctor argued that the amended report was inadequate with respect to causation because it failed to address cause in fact and foreseeability. The plaintiff counterargued that the report adequately addressed causation by identifying facts in the medical record and medical studies which support the conclusion that the doctor’s failure to perform a CT scan was a direct and proximate cause of damages sustained. The appellate court found that the amended report linked conclusions to specific facts, tracing the decision to discharge the plaintiff without performing diagnostic testing to the ensuing delay that occasioned the plaintiff’s injuries. The appellate court concluded that the trial court acted within its discretion in overruling the doctor’s objection and denying his motion. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court had the inherent authority to sanction the attorney for his conduct in making repeated, and unexcused, misrepresentations.
Darnell v. Broberg
Appellate: Civil, Courts, Ethics, Procedure, Professional Responsibility
Texas 8th Court of Appeals
December 07, 2018
08-16-00282-CV
Gina M. Palafox
Published
The attorney appealed the judgment of the trial court which imposed sanctions on him for making misrepresentations to the court and for disobeying a court order. This appeal stemmed from the plaintiff’s underlying suit alleging implied warranty of good and workmanlike services, deceptive trade practices, breach of contract, and negligence against the defendant, whom the attorney represented. On appeal, the attorney asserted that the trial court abused its discretion in awarding monetary sanctions against him, arguing that the award of sanctions lacked an evidentiary basis, that it covered conduct that fell outside the scope of sanctionable conduct, and no nexus existed between the award of attorney's fees and the sanctionable conduct. The appellate court disagreed with the attorney and found that the record supported the imposition of sanctions by the trial court because there was sufficient evidence for the trial court to hold that the factual statements made in the third-party petition were patently false, and without any evidentiary basis. The appellate court concluded that the trial court had the inherent authority to sanction the attorney for his conduct in making repeated, and unexcused, misrepresentations. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the arguments in the defendant’s motion for rehearing and the arguments in the plaintiffs’ motion for rehearing lacked merit.
Abdullatif v. Choudhri
Appellate: Civil, Business, Contracts, Procedure, Real Property
Texas 14th Court of Appeals
December 06, 2018
14-16-00116-CV
Kem Thompson Frost
Published
The plaintiffs appealed the judgment of the trial court which denied their motion for rehearing. On appeal, the plaintiffs relied on the court’s holding in The Atrium v. Kenwin Shops of Crockett, Inc., for a holding that parties to a lease could ratify by their conduct a lease even after the lease had become "null and void" under a lease provision. The appellate court noted that the Atrium court's holding did not bind it because the holding conflicted with Supreme Court of Texas precedent under which the plain, ordinary, and generally accepted meaning of the term "void" was entirely null, not binding on any party, and not susceptible of ratification or confirmation. The plaintiffs further cited Humble Oil & Refining Company v. Clark for the proposition that a void instrument could be made valid by adoption, ratification, or confirmation. The appellate court found that the Clark court did not state that a void instrument could be made valid by adoption, ratification, or confirmation. The appellate court concluded that the arguments in the defendant’s motion for rehearing and the arguments in the plaintiffs’ motion for rehearing lacked merit. Accordingly, the judgment of the trial court was affirmed.


The trial court acted within its discretion awarding summary judgment on appellee's claims and in striking the appellant's amended answer and counterclaims, but the trial court erred in its award of attorney’s fees to the appellee, as well as in its awards for costs and prejudgment interest.
Texas Black Iron, Inc. v. Arawak Energy Int'l Ltd.
Contracts, Damages, Torts
Texas 14th Court of Appeals
December 06, 2018
14-17-00748-CV
Marc W. Brown
Published
The appellant incorporation and the appellee company entered into a purchase order agreement for oil and gas drilling equipment. The appellee prepaid for the entire purchase order. The appellant failed to deliver certain equipment and refunded a portion of the prepaid amount to the appellee. The appellee returned some of the equipment and sought a refund under the buy-back provision of the purchase order. The appellant refused to pay. The appellee filed claims against the appellant and applied for a temporary injunction. The appellant filed counterclaims against the appellee. The appellee moved for traditional and no-evidence summary judgment. The trial court granted the appellee's motion on its contract claim and on the appellant's contract and fraud counterclaims. The trial court awarded the appellee damages, attorney’s fees, costs, and pre- and postjudgment interest. The trial court also granted the appellee's motion to strike the appellant's amended answer and counterclaims. The appellate court found that the trial court properly granted summary judgment in the appellee's favor on its contract claim and the appellant's contract and fraud counterclaims. Further, the trial court acted within its discretion in striking the appellant's amended answer and counterclaims. Lastly, the trial court erred in its award of attorney’s fees to the appellee, as well as in its awards for costs and prejudgment interest. Accordingly, the court affirmed the trial court’s final judgment in part and reversed it in part and remanded for additional proceedings.


The appellant did not meet the 90-day residency requirement of Family Code Section 6.301, the court affirmed the vacatur of the default divorce decree and dismissal of the suit, however, the court modified the sanctions award to conform to the court's holding.
Alwazzan v. Alwazzan
Appellate: Civil, Family
Texas 1st Court of Appeals
December 06, 2018
01-16-00589-CV
Laura Carter Higley
Published
The appellant wife petitioned the Galveston trial court for a divorce from her appellee husband. However, that was not the first divorce suit the appellant had initiated against the appellee. She had previously filed divorce actions in Montgomery County and Harris County, which she had nonsuited at varying stages. The Galveston petition also named the appellee corporation in which the appellant alleged that the appellee husband had an ownership interest—as a party to the suit. The appellant claimed that the appellee husband had fraudulently transferred community funds to the appellee corporation. The trial court granted the appellant's request to serve the appellee husband by publication. The appellant claimed that the appellee corporation, a company formed under the laws of the Kingdom of Bahrain, could be served through the Texas Secretary of State. Neither the appellee husband nor the appellee corporation responded to the suit. The Galveston trial court rendered a divorce decree, dissolving the marriage between the appellant and the appellee husband. Among its provisions, the decree also awarded the appellant a money judgment against the appellees, jointly and severally, for $416,532,514.56. The trial court also granted a motion for sanctions against the appellant, ordering that she pay the appellee corporation and the appellee husband's trial and appellate attorneys’ fees. The appellate court found that because the appellant did not meet the 90-day residency requirement of Family Code Section 6.301, the court affirmed the vacatur of the default divorce decree and dismissal of the suit. Further, the court affirmed the sanctions awarded but modified it to reflect that the award of appellate attorneys’ fees as sanctions was contingent on the outcome of the appeals process. Accordingly, the judgment was affirmed as modified.  


Texas rather than New Mexico law applied and the appellee therefore had the obligation to defend and indemnify the appellant against the individual’s claims
Banta Oilfield Servs., Inc v. Mewbourne Oil Co.
Appellate: Civil, Contracts, Damages, Litigation: Personal Injury, Torts
Texas 6th Court of Appeals
December 04, 2018
06-17-00107-CV
Bailey C. Moseley
Published
The appellee company as operating in New Mexico, drilling for and producing oil and/or natural gas. The appellee decided to install a 300-gallon battery tank at a well site there and retained the appellant company to assist in its installation. The parties entered into a Master Services Agreement (MSA) drafted by the appellee. The appellee also contracted with the company to be a contractor at the well site in New Mexico. It also entered into an agreement with the second company wherein it would provided services at the site. An individual worked for the companies as either a direct employee, an agent, or a contractor. The individual was injured at the New Mexico site when a chain slipped off a tank that was being moved by a appellant-owned-and-operated pole truck. The individual’s wife brought suit against the appellant in New Mexico for the individual’s personal injuries. The appellant sent a demand letter to the appellee seeking defense and indemnity from the appellee. The appellee refused the appellant’s demand, informing the appellant that the appellee was only a pass-through for defense and indemnification and that the appellant should demand a defense and indemnity from the company. The appellant brought suit against the appellee seeking a judicial declaration. After the parties filed cross-motions for summary judgment, the trial court denied the appellant’s motion and entered judgment in favor of the appellee. The appellate court found that Texas law applied to the terms of the parties’ MSA; that under Texas law, the appellee had the obligation to defend and indemnify the appellant against the individual’s claims; that it breached its contractual obligation to the appellant by refusing to do so; and that the appellant was entitled to recover damages and its attorney fees. Accordingly, the judgment was reversed and remanded.


The trial court did not abuse its discretion in determining that exceptional circumstances warranted the use of concealed physical restraints on defendant during this trial
Alcozer v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 04, 2018
01-17-00970-CR
Harvey Brown
Published
The appellant pleaded guilty to the narcotic-possession and evidence-tampering charges. The trial court declared a mistrial on the evading arrest charge, and it sentenced the appellant to 50- and 25-year periods of confinement on the two convictions. The appellant appealed the ruling that he be restrained during the jury trial. The appellate court found that there was ample evidence in the record from which the trial court reasonably could have concluded that the appellant attempted to injure himself to delay his trial and continued to have thoughts of injuring himself as trial progressed. It was not a situation in which a trial court merely expressed generalized security concerns untied to the unique circumstances of a particular criminal defendant or had shown a propensity to restrain criminal defendants as a matter of course. The court concluded that the trial court did not abuse its discretion in determining that the history of harmful ideation and injury supported the use of restraints during the appellant’s jury trial. Thus the trial court did not reach a harm analysis. But noted that there was no clear evidence in the record, including the photograph of the appellant restrained, that the wrist, leg, or torso restraints were visible to the jury. Accordingly, the judgment was affirmed.


State proved enhancement by showing that the victim was a person appellant was prohibited by the bigamy statute from marrying because, at the time of the offenses, appellant was already married to someone else
Rodriguez v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 04, 2018
01-17-00906-CR
Sherry Radack
Published
A jury convicted Appellant of three charges of sexual assault of a child, a person he was prohibited from marrying, and assessed punishment at confinement for life and a $10,000 fine on each charge, which the trial court ordered to run consecutively. The appellate court observed that Penal Code section 22.011(f) required the State merely to prove that, if the actor were to actually marry or purport to marry his victim, or if he were to live with his victim under the appearance of being married, then he would commit the offense of bigamy. The State introduced a Declaration of Informal Marriage, signed by appellant and his wife, and stated that appellant and his wife agreed to be married, lived together as husband and wife, and represented to others that they were married. The appellant’s daughter testified that appellant and his wife were still married at the time of trial. The State met its burden of showing that the victim was a person appellant was prohibited by the bigamy statute from marrying because, at the time of the offenses, appellant was already married to someone else. Because the State was not required to show actual bigamy, but merely facts showing that the bigamy statute would prohibit appellant from marrying his victim, which the State proved by showing that appellant was already married, the evidence was legally sufficient to sentence appellant as a first-degree felon under section 22.011(f) of the Texas Penal Code. Accordingly, the court affirmed the trial court’s judgments.


Appellant satisfied its burden under the Texas Citizen Participation Act to show that appellees claims were based on the exercise of free speech rights
McDonald Oilfield Operations, LLC v. 3B Inspection, LLC
Business, Constitution, Contracts, Damages, Torts
Texas 1st Court of Appeals
December 06, 2018
01-18-00118-CV
Evelyn V. Keyes
Published
The appellees, the company and its principal and the individual employees filed suit against the appellant company. The appellant moved to dismiss the suit pursuant to the Texas Citizen Participation Act (TCPA), and the trial court denied the motion. The appellate court found that the appellees failed to provide clear and specific proof regarding essential elements of its tortious interference claim, and, the trial court abused its discretion in denying the appellant’s motion to dismiss the claim pursuant to the Texas Citizen Participation Act (TCPA). Further, the appellant satisfied its burden under the TCPA to showed that the appellees and the individual employees’ claims against it were based on, relate to, or were in response to, the exercise of its free speech rights. Furthermore, the court held that the appellees and the individual employees had failed to sustain their burden to show, by clear and specific evidence, a prima facie case for each essential element of their claims. Accordingly, the court reversed the trial court’s denial of the motion to dismiss and remanded the case to the trial court for further proceedings.


Indictment was not fatally defective where the charging instrument gave adequate notice that the indictment intended to charge defendant with a felony
Jenkins v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 05, 2018
PD-0086-18
Bert Richardson
Published
On the second day of his trial for continuous trafficking of persons, the appellant moved to dismiss his case. The trial court denied the appellant’s motion to dismiss. He was found guilty by the jury and was sentenced to twenty-five years in prison. The appellant raised the same claim on direct appeal. The appellate court reversed the judgment of the trial court and remanded the case with instructions to dismiss the indictment. The Texas Court of Criminal Appeals granted the State’s petition for discretionary review. The Texas Court of Criminal Appeals concluded that the court's decision in Cook no longer controlled in light of Teal and Kirkpatrick. Even though the indictment in the case was defective because it did not identify the appellant as the defendant by his name, the charging instrument’s caption contained the appellant’s name and address. Therefore, the charging instrument, as a whole, gave the appellant adequate notice that the indictment intended to charge him with a felony, and thus the indictment met the jurisdictional requirements under article V, Section 12(b) of the Texas Constitution. Since the appellant did not object to the defective indictment until the second day of his trial, he also waived and forfeited the right to raise the objection on appeal. Accordingly, the court reversed the judgment of the appellate court and affirmed the judgment of the trial court.      


The trial court had jurisdiction to render its judgment upholding the enforceability of the California judgment
Int'l Armament Corp. v. Stocker & Lancaster LLP
Appellate: Civil, Creditor/Debtor
Texas 14th Court of Appeals
December 04, 2018
14-17-00947-CV
Tracy Christopher
Published
The appellants were represented in California litigation by the appellee law firm. The appellee subsequently sued the the appellants in California for non-payment of fees. The individual attorney answered the appellee law firm’s suit on behalf of the appellants. After recovering a judgment that was entered by the California court as a sanction, appellee moved to enforce the judgment in Texas. Appellant claimed that the appellee law firm was not authorized to represent it in the underlying suit. The appellate court found that attorney stated that he received the fee for filing the answer from one of the corporate appellants, and that he would not have filed the answer if he had not received the fee. Because the appellants failed to show by clear and convincing evidence that the California court lacked jurisdiction over them, the court overruled the appellant’s second issue. Further, the appellee law firm served the notice of entry of judgment on the attorney, as the appellants counsel. Because the appellants had failed to show by clear and convincing evidence that the appellee law firm procured the California judgment through extrinsic fraud, the court overruled their third issue. Finally, the trial court had jurisdiction to render its judgment upholding the enforceability of the California judgment, and the appellants failed to prove by clear and convincing evidence that the foreign judgment was not entitled to full faith and credit. Accordingly, the trial court's judgment was affirmed.


Because the Legislature had given the county civil courts at law exclusive jurisdiction over inverse-condemnation claims, the trial court lacked subject-matter jurisdiction over those claims
San Jacinto River Auth. v. Burney
Appellate: Civil, Gov't/Administrative, Real Property
Texas 1st Court of Appeals
December 04, 2018
01-18-00365-CV
Michael C. Massengale
Published
During Hurricane Harvey, the appellant authority released water from Lake Conroe into the San Jacinto River. The appellees (Owners of homes that flooded) sued the appellant in the trial court, seeking compensation for their inverse-condemnation and statutory takings claims. The appellant filed Tex. R. Civ. P. 91a. motions to dismiss those three substantively identical lawsuits, which were denied. The appellant sought interlocutory review. The appellate court observed that because the Legislature had given the county civil courts at law exclusive jurisdiction over inverse-condemnation claims, the trial courts lacked subject-matter jurisdiction over those claims. The trial court did, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims, and the court affirmed the denials of the motions to dismiss on grounds of governmental immunity, because the appellees pleaded sufficient facts to demonstrate that the takings claims had a basis in law and fact.


The appellate court concluded that the trial court did not err by overruling the defendant’s motion to suppress on the basis of an unreasonably prolonged detention.
Martin v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 29, 2018
14-17-00963-CR
Ken Wise
Published
The defendant appealed the judgment of the trial court which denied her motion to suppress evidence discovered as a result of the traffic stop and sentenced her to seven days’ confinement and a $600 fine for her conviction of possessing marijuana and a controlled substance in penalty group three. On appeal, the defendant challenged the trial court's denial of the motion to suppress. Specifically, the defendant contended that the initial stop of the vehicle was illegal, the stop was improperly prolonged, and the subsequent search of the defendant’s purse was illegal. The appellate court found that under the totality of the circumstances, the State met its burden to show that the deputy developed reasonable suspicion to prolong the traffic stop and investigate the suspected narcotics activity. The appellate court concluded that the trial court did not err by overruling the defendant’s motion to suppress on the basis of an unreasonably prolonged detention. Accordingly, the judgment of the trial court was affirmed.


The appellate court found that the plaintiffs’ cause of action for declaratory relief had a legal and factual basis sufficient to defeat dismissal under Rule 91a.
HMT Tank Serv. LLC v. Am. Tank & Vessel, Inc.
Contracts, Corporations, Procedure
Texas 14th Court of Appeals
November 29, 2018
14-17-00846-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court which dismissed their declaratory judgment claims against the defendant, seeking a declaration that they did not owe defense or indemnity to the defendant’s potential liability to a third party. On appeal, the plaintiffs argued that dismissal under Rule 91a was improper because their claim for declaratory relief had a sufficient basis in law and fact. Specifically, the plaintiffs asserted that a justiciable controversy empowered the trial court to declare the parties' rights because the defendant sought defense and indemnity and a declaration would resolve the dispute. The appellate court found that the plaintiffs’ cause of action for declaratory relief had a legal and factual basis sufficient to defeat dismissal under Rule 91a. The appellate court concluded that the plaintiffs did not show reversible error as to the order dismissing their declaratory judgment claims. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded for a redetermination of attorney’s fees and costs.


The plaintiffs lacked standing as beneficial owners of the stock under section 10.361(g) because the shares were not held "in a voting trust" or "by a nominee."
Am. Bank, N.A. v. Moorehead Oil & Gas, Inc.
Appellate: Civil, Business, Corporations, Procedure, Securities
Texas 13th Court of Appeals
November 29, 2018
13-17-00641-CV
Dori Contreras
Published
The plaintiffs appealed the judgment of the trial court which denied their petition for valuation of their ownership interest in the defendant company in a proceeding to determine the fair value of ownership interests in corporate stock under section 10.361 of the Texas Business Organizations Code. On appeal, the plaintiffs argued that the bank was not the only entity legally capable of requesting a valuation under the statute, and the limitations period was tolled due to the misnomer doctrine and therefore did not expire before suit was filed. The bank argued that the misnomer doctrine applied, and therefore, the first amended petition related to the timely filing of the original petition. The appellate court agreed with the plaintiffs and found that the first amended petition related back to the date of the timely-filed original petition for limitations purposes. The appellate court concluded that the plaintiffs lacked standing as beneficial owners of the stock under section 10.361(g) because the shares were not held "in a voting trust" or "by a nominee." Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded for further proceedings.


The trial court abused its discretion in issuing the order because when the trial court signed the order, there was no evidence before the trial court showing that the judgment debtor owned property that could not readily be attached or levied on by ordinary legal process.
Hamilton Metals, Inc. v. Global Metal Svs., Ltd.
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Real Property
Texas 14th Court of Appeals
November 27, 2018
14-17-00670-CV
Kem Thompson Frost
Published
The judgment debtor appealed the judgment of the trial court which appointed a receiver under section 31.002(b) of the Civil Practice and Remedies Code. On appeal, the debtor asserted that the creditor did not submit any evidence to the trial court that the debtor owned any assets that could not readily be attached or levied on by ordinary legal process. The appellate court noted that a judgment creditor may pursue turnover relief against a judgment debtor if the debtor owned property that could not readily be attached or levied on by ordinary legal process, and was not exempt from attachment, execution, or seizure for the satisfaction of liabilities. The appellate court concluded that the trial court abused its discretion in issuing the order because when the trial court signed the order, there was no evidence before the trial court showing that the judgment debtor owned property that could not readily be attached or levied on by ordinary legal process. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


 

The appellate court concluded that the trial court did not err by overruling the defendant’s motion to suppress on the basis of an unreasonably prolonged detention.
Martin v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 29, 2018
14-17-00963-CR
Ken Wise
Published
The defendant appealed the judgment of the trial court which denied her motion to suppress evidence discovered as a result of the traffic stop and sentenced her to seven days’ confinement and a $600 fine for her conviction of possessing marijuana and a controlled substance in penalty group three. On appeal, the defendant challenged the trial court's denial of the motion to suppress. Specifically, the defendant contended that the initial stop of the vehicle was illegal, the stop was improperly prolonged, and the subsequent search of the defendant’s purse was illegal. The appellate court found that under the totality of the circumstances, the State met its burden to show that the deputy developed reasonable suspicion to prolong the traffic stop and investigate the suspected narcotics activity. The appellate court concluded that the trial court did not err by overruling the defendant’s motion to suppress on the basis of an unreasonably prolonged detention. Accordingly, the judgment of the trial court was affirmed.


The appellate court found that the plaintiffs’ cause of action for declaratory relief had a legal and factual basis sufficient to defeat dismissal under Rule 91a.
HMT Tank Serv. LLC v. Am. Tank & Vessel, Inc.
Contracts, Corporations, Procedure
Texas 14th Court of Appeals
November 29, 2018
14-17-00846-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court which dismissed their declaratory judgment claims against the defendant, seeking a declaration that they did not owe defense or indemnity to the defendant’s potential liability to a third party. On appeal, the plaintiffs argued that dismissal under Rule 91a was improper because their claim for declaratory relief had a sufficient basis in law and fact. Specifically, the plaintiffs asserted that a justiciable controversy empowered the trial court to declare the parties' rights because the defendant sought defense and indemnity and a declaration would resolve the dispute. The appellate court found that the plaintiffs’ cause of action for declaratory relief had a legal and factual basis sufficient to defeat dismissal under Rule 91a. The appellate court concluded that the plaintiffs did not show reversible error as to the order dismissing their declaratory judgment claims. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded for a redetermination of attorney’s fees and costs.


The plaintiffs lacked standing as beneficial owners of the stock under section 10.361(g) because the shares were not held "in a voting trust" or "by a nominee."
Am. Bank, N.A. v. Moorehead Oil & Gas, Inc.
Appellate: Civil, Business, Corporations, Procedure, Securities
Texas 13th Court of Appeals
November 29, 2018
13-17-00641-CV
Dori Contreras
Published
The plaintiffs appealed the judgment of the trial court which denied their petition for valuation of their ownership interest in the defendant company in a proceeding to determine the fair value of ownership interests in corporate stock under section 10.361 of the Texas Business Organizations Code. On appeal, the plaintiffs argued that the bank was not the only entity legally capable of requesting a valuation under the statute, and the limitations period was tolled due to the misnomer doctrine and therefore did not expire before suit was filed. The bank argued that the misnomer doctrine applied, and therefore, the first amended petition related to the timely filing of the original petition. The appellate court agreed with the plaintiffs and found that the first amended petition related back to the date of the timely-filed original petition for limitations purposes. The appellate court concluded that the plaintiffs lacked standing as beneficial owners of the stock under section 10.361(g) because the shares were not held "in a voting trust" or "by a nominee." Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded for further proceedings.


The trial court abused its discretion in issuing the order because when the trial court signed the order, there was no evidence before the trial court showing that the judgment debtor owned property that could not readily be attached or levied on by ordinary legal process.
Hamilton Metals, Inc. v. Global Metal Svs., Ltd.
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Real Property
Texas 14th Court of Appeals
November 27, 2018
14-17-00670-CV
Kem Thompson Frost
Published
The judgment debtor appealed the judgment of the trial court which appointed a receiver under section 31.002(b) of the Civil Practice and Remedies Code. On appeal, the debtor asserted that the creditor did not submit any evidence to the trial court that the debtor owned any assets that could not readily be attached or levied on by ordinary legal process. The appellate court noted that a judgment creditor may pursue turnover relief against a judgment debtor if the debtor owned property that could not readily be attached or levied on by ordinary legal process, and was not exempt from attachment, execution, or seizure for the satisfaction of liabilities. The appellate court concluded that the trial court abused its discretion in issuing the order because when the trial court signed the order, there was no evidence before the trial court showing that the judgment debtor owned property that could not readily be attached or levied on by ordinary legal process. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


Parties agreement for purchase of bulldozer unambiguously disclaimed all warranties and trial court did not err in granting summary judgment against purchaser
Clark v. Mustang Mach. Co., Ltd.
Contracts, Torts
Texas 1st Court of Appeals
December 06, 2018
01-16-00767-CV
Per Curiam
Published
The dispute was over a defective bulldozer purchased by the appellant. He challenged a summary judgment rendered in favor of the seller, the appellee company. The appellate court observed that the appellee disclaimed all warranties, express or implied. The disclaimer language acknowledged the possibility that manufacturer’s warranties may exist, so the mere reference on the purchasers order to “1 year / 1000 Hour Powertrain + Hydraulics Warranty,” without more, did not indicate that any such warranty was being extended by the appellee as the seller. To the extent the appellant argued for the first time on appeal that the appellee “ratified, substantiated and partly performed the warranty agreement,” the arguments were not included in the summary-judgment response and, accordingly, have been waived. Accordingly, the court affirmed the judgment of the trial court.


Because the appellant agreed to comply with conditions of community supervision barring him from possessing a firearm and made no timely objection, the appellant affirmatively waived any second amendment challenge
Roman v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 06, 2018
01-17-00379-CR
Jane Bland
Published
The appellant pleaded guilty to a reduced charge of assault of a family member, a class A misdemeanor, and received two years of deferred-adjudication community supervision. The trial court revoked the community supervision, adjudicated the appellant’s guilt, and assessed his punishment at 120 days in jail. He appealed from the trial court’s denial of his motion to quash the State’s motion to adjudicate guilt, contending that a condition of his deferred adjudication community supervision violated the Second Amendment of the United States Constitution. The appellate court found that the appellant did not dispute that he was aware of and accepted the firearm ban, among other conditions, in exchange for a two-year term of deferred-adjudication community supervision instead of incarceration. The appellant did not suggest that any perceived coercion precluded him from making a timely objection before accepting the condition. Because he agreed to comply with the conditions of community supervision and made no timely objection, the appellant affirmatively waived any complaint to the limitations they imposed. The court therefore held the trial court did not err in denying the appellant’s motion to quash. The court further held that the record demonstrated a sufficient factual basis for the trial court’s order revoking his community supervision. Accordingly, the judgment was affirmed.


Administrative Law Judge improperly shifted the burden of proof from Provider to Carrier
Facility Ins. Corp. v. Patients Med. Ctr.
Gov't/Administrative, Insurance, Workers' Compensation
Texas 3rd Court of Appeals
December 05, 2018
03-17-00666-CV
David Puryear
Published
The dispute concerned the amount of reimbursement owed by a workers’ compensation insurance carrier, the appellant corporation, to a hospital, the appellee center, for providing medical services to an injured worker. The appellant appealed the trial court’s final judgment affirming a State Office of Administrative Hearings (SOAH) Decision and Order determining that the appellant shall pay the appellee $20,495.78, plus any applicable interest. The appellate court observed that the Administrative Law Judge (ALJ)’s improper burden-shifting rendered the Legislature’s grant of a contested-case hearing to the appellant useless; if an ALJ can simply uphold the decision of the medical dispute resolution officer (MDRO) on the basis of the MDRO’s decision itself, there was a lack of any meaningful review, despite the Legislature’s express provision for a SOAH hearing. A dissatisfied party’s subsequent filing of a petition for judicial review—after the lack of any meaningful review at SOAH—would only magnify the error and constitute yet another layer of meaningless review. Accordingly, the court reversed the judgment of the trial court affirming the SOAH Order and remanded.


The appellate court concluded that any error in admitting evidence of the defendant’s Louisiana conviction was harmless, however the trial court erred in using the Louisiana conviction to impose an automatic life sentence.
Jacobs v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
November 30, 2018
06-16-00008-CR
Bailey C. Moseley
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child and imposed a mandatory sentence of imprisonment for life pursuant to his prior felony conviction in Louisiana. The defendant initially appealed to the appellate court, which reversed the judgment of the trial court and remanded for a new trial. The criminal appellate court granted the State’s petition for discretionary review, which conceded error, but challenged the appellate court’s finding that the error was of constitutional dimension. On appeal, the defendant complained that the trial court erred in admitting evidence of the Louisiana conviction, arguing that since Article 38.37 of the Texas Code of Criminal Procedure did not specifically allow the use of out-of-state convictions, out-of-state convictions were not admissible during the guilt/innocence phase of the trial. The appellate court concluded that any error in admitting evidence of the defendant’s Louisiana conviction was harmless, however the trial court erred in using the Louisiana conviction to impose an automatic life sentence. Accordingly, the judgment of the trial court was affirmed as to the conviction and reversed as to the punishment.


The defendant failed to show by a preponderance of the evidence that the plaintiff’s pleaded claim against him alleged a communication, rendering the Texas Citizens Participation Act’s procedural protections inapplicable.
Smith v. Crestview NuV, LLC
Appellate: Civil, Business, Procedure, Securities, Torts
Texas 2nd Court of Appeals
November 29, 2018
02-18-00220-CV
Lee Gabriel
Published
The defendant appealed the judgment of the trial court which denied his motion to dismiss the plaintiff’s claim against him for “aider” liability under the Texas Securities Act. The appellate court was asked to apply the Texas anti-SLAPP statute in the context of a claim for violations of the Texas Securities Act. On appeal, the defendant asserted that because the plaintiff’s claim was based on the exercise of his rights to freely associate and to speak freely on a matter of public concern, the trial court was required to dismiss the plaintiff’s claim against him. The defendant further alleged that after he established the applicability of the anti-SLAPP statute to the plaintiff’s claim, the plaintiff failed to carry its burden to produce clear and specific prima-facie evidence of each element of its aider-liability claim. The appellate court found that the defendant failed to show by a preponderance of the evidence that the plaintiff’s pleaded claim against him alleged a communication, rendering the Texas Citizens Participation Act’s procedural protections inapplicable. The appellate court concluded that the plaintiff’s pleaded claim against the defendant did not allege a communication as that term was defined in the Texas Citizens Participation Act. Accordingly, the judgment of the trial court was affirmed.


The trial court implicitly and correctly denied the City’s assertion of governmental immunity because the City performed a proprietary function in entering into its contract with the plaintiff.
TRI-STEM, Ltd. v. Houston
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Torts
Texas 14th Court of Appeals
November 29, 2018
14-17-00545-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the City in a breach of contract action. On appeal, the plaintiff contended that the trial court erred in granting summary judgment before addressing the City’s assertion of governmental immunity, denying the plaintiff’s motion for a continuance, sustaining all of the City’s objections to the plaintiff’s summary-judgment evidence, and granting the City’s summary-judgment motion. The appellate court found that the trial court abused its discretion in denying the plaintiff’s motion for a continuance to allow it to obtain necessary discovery and deposition testimony. The appellate court concluded that the trial court implicitly and correctly denied the City’s assertion of governmental immunity because the City performed a proprietary function in entering into its contract with the plaintiff. Accordingly, the judgment of the trial court was reversed and remanded.


The summary-judgment evidence established that there was no Tax Code Section 21.09(b) good-cause extension of time for the taxpayer’s late-filed allocation application.
Harris Cnty. Appraisal Dist. v. PXP Aircraft, LLC
Appellate: Civil, Gov't/Administrative, Procedure, Tax
Texas 1st Court of Appeals
November 29, 2018
01-17-00793-CV
Michael C. Massengale
Published
The Appraisal District appealed the judgment of the trial court which rendered summary judgment in favor of the taxpayer in a protest action regarding an ad valorem tax penalty imposed pursuant to Tax Code section 21.10. On appeal, the Appraisal District challenged jurisdiction over the petition for judicial review, arguing that the trial court erred by granting summary judgment in favor of the taxpayer and by failing to grant its cross-motion for summary judgment. Specifically, the Appraisal District maintained that the taxpayer failed to exhaust administrative remedies, was not excused from the exhaustion requirement, and sought relief not authorized by the Tax Code. The appellate court found that the Appraisal District did not identify any exhaustion requirement that the taxpayer failed to satisfy. The appellate court concluded that the summary-judgment evidence established that there was no Tax Code Section 21.09(b) good-cause extension of time for the taxpayer’s late-filed allocation application. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The submission of bills under an earlier-represented claim of a legal right to recover facility-fee payments did not create separate fraud claims and had no effect on the accrual of the plaintiffs’ fraud cause of action.
United Healthcare Serv., Inc. v. First St. Hosp. LP
Appellate: Civil, Health Care, Insurance, Procedure, Torts
Texas 1st Court of Appeals
November 29, 2018
01-17-00237-CV
Harvey Brown
Published
The plaintiffs (insuring entities) appealed the judgment of the trial court which granted summary judgment to the defendants in a suit alleging that they were defrauded into paying facility fees to entities not entitled to receive them. On appeal, the plaintiffs contended that the trial court erred by granting summary judgment, including on limitations and federal preemption grounds. The defendant maintained that the fraud claim accrued when it told the plaintiffs that it would be billing as the service provider at the off-site emergency rooms. The appellate court noted that the defendant did not explain why this information caused the plaintiff’s fraud claim to accrue. The appellate court found that the submission of bills under an earlier-represented claim of a legal right to recover facility-fee payments did not create separate fraud claims and had no effect on the accrual of the plaintiffs’ fraud cause of action. The appellate court concluded that the trial court did not err in granting summary judgment on the statute of limitations grounds. Accordingly, the judgment of the trial court was affirmed.


The trial court erred in granting the plaintiff’s default judgment because the process server was qualified under Rule 103 to execute process on the defendant.
Goss v. Sillmon
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure
Texas 1st Court of Appeals
November 29, 2018
01-18-00387-CV
Harvey Brown
Published
The defendant appealed the judgment of the trial court which rendered default judgment in favor of the plaintiff in a personal injury action. On appeal, the defendant contended that the default judgment must be set aside because the record did not show strict compliance with the rules for service of process, the evidence was legally and factually insufficient to support the damages awarded to the plaintiff, and the plaintiff’s pleading did not allege any claim on behalf of her children. The plaintiff responded that the appellate court could affirm the default judgment because the return of service reflected that the process server was qualified under Rule 103. The appellate court disagreed with the plaintiff and found that a record that did not include a citation did not show strict compliance with the service-of-process rules. The appellate court concluded that the trial court erred in granting the plaintiff’s default judgment because the process server was qualified under Rule 103 to execute process on the defendant. Accordingly, the judgment of the trial court was reversed and remanded.


The trial court properly granted the directed verdict against the plaintiff, and it did not abuse its discretion in finding good cause to assign costs to the party who incurred them.
Heinrich v. Calderazzo
Appellate: Civil, Employment, Gov't/Administrative, Procedure
Texas 8th Court of Appeals
November 28, 2018
08-15-00328-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which granted a directed verdict against her in an action alleging that the defendants (Board Members) violated the statute governing the Firemen and Policemen’s Pension Fund by reducing her benefits retroactively. On appeal, the plaintiff contended that she raised a fact issue as to whether the pension she had been receiving for seventeen years had been unilaterally reduced by the Board in violation of a state law prohibiting retroactive reductions to pension benefits. The defendants counterargued that the trial court abused its discretion in refusing to award them taxable court costs as the prevailing parties at trial. The defendants maintained that the plaintiff did not show “good cause” why she should be exempted from Texas Rule of Civil Procedure 131, which entitled the successful party in a lawsuit to recover taxable costs. The appellate court disagreed with the plaintiff and found that because the plaintiff produced no evidence from which a reasonable jury could conclude that she had originally been awarded her husband’s full pension in her own right, she could not show that the defendants acted without legal authority in terminating the portion of her monthly payment attributable to her son’s one-third benefit. The appellate court concluded that the trial court properly granted the directed verdict against the plaintiff, and it did not abuse its discretion in finding good cause to assign costs to the party who incurred them. Accordingly, the judgment of the trial court was affirmed.


The search warrant authorized the officers to search the defendant’s purse because the record did not support an implied finding that the purse was in her possession.
State v Merritt
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
November 28, 2018
04-17-00405-CR
Karen Angelini
Published
The State appealed the judgment of the trial court which granted a motion to suppress filed by the defendant following the magistrate issuing a search warrant to search a residential apartment for marijuana. On appeal, the State contended that the trial court erred in granting the defendant’s motion because the defendant’s purse, in which the controlled substance was located, was subject to search under a search warrant. The appellate court noted that the evidence presented to the trial court regarding the location of the defendant’s purse was conflicting, and although the trial court could choose to disbelieve the detective’s testimony, the only implied finding supported by the record was that the defendant was detained in the living room. The appellate court agreed with the State and found that the record did not support an implied finding that the defendant was in possession of her purse because the offense report stated that the defendant did not have custody of her purse. The appellate court concluded that the search warrant authorized the officers to search the defendant’s purse because the record did not support an implied finding that the purse was in her possession. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The defendant could not have reasonably held an expectation of privacy in the contents of his contraband phone by knowingly possessing it in violation of his residency rules in the halfway house.
Howard v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 27, 2018
01-18-00076-CR
Harvey Brown
Published
The defendant appealed the judgment of the trial court which convicted him of sexual contact with a minor, child pornography, and wrongfully impeding an investigation and sentenced him to fifteen years’ confinement. On appeal, the defendant argued that the trial court erred in denying his motion to suppress evidence obtained from his phone, asserting that the search of his phone’s contents violated his Fourth Amendment protections since it was performed before a warrant issued and he did not otherwise consent to the search. The appellate court was asked to determine whether the defendant, as a sex-offender parolee in possession of a contraband mobile phone at a half-way house that prohibited its possession, had a subjective expectation of privacy in his phone’s contents, and whether society would regard that expectation as objectively reasonable or justifiable under the circumstances. The appellate court noted that the defendant’s diminished expectation of privacy must be balanced against the State’s legitimate interest in supervising parolees and guarding against their possession of layered contraband hidden within a contraband mobile phone. The appellate court concluded that the defendant could not have reasonably held an expectation of privacy in the contents of his contraband phone by knowingly possessing it in violation of his residency rules in the halfway house. Accordingly, the judgment of the trial court was affirmed.


Since the trial court’s decision rested on legally sufficient evidence, the employer was not entitled to an order compelling arbitration with the employee.
Alorica v. Tovar
ADR, Appellate: Civil, Civil Rights, Contracts, Employment, Workers' Compensation
Texas 8th Court of Appeals
November 26, 2018
08-18-00008-CV
Yvonne T. Rodriguez
Published
The employer appealed the judgment of the trial court which denied its motion to compel arbitration in an action where the employee sued the employer following her termination, alleging disability discrimination and workers’ compensation retaliation claims. On appeal, the employer contended that the trial court erred by refusing to compel arbitration. The appellate court noted that since the trial court was presented with conflicting evidence regarding contract formation, its judgment resolving the formation dispute rested on legally sufficient evidence, and thus, the appellate court could not disturb its prior decision in Kmart Stores of Texas, L.L.C. v. Ramirez. The appellate court disagreed with the employer and found that Kmart specifically dealt with the issue of appellate resolution, and under stare decisis, it bound the appellate court. The appellate court concluded that since the trial court’s decision rested on legally sufficient evidence, the employer was not entitled to an order compelling arbitration with the employee. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the defendant’s motion for en banc reconsideration from the underlying conviction must be denied.
Bell v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 27, 2018
01-15-00510-CR
Jennifer Caughey
Published
The defendant appealed the judgment of the trial court by filing a motion for en banc reconsideration from his underlying conviction. The appellate court concluded that the defendant’s motion for en banc reconsideration must be denied. Accordingly, the judgment of the trial court was affirmed.


The record did not show by a preponderance of the evidence that the appellee was ineligible for his requested license because the fact that the appellee was once charged with assaulting his wife could not support the conclusion that he was “convicted” of assaulting her.
Tex. Dep’t of Pub. Safety v. Marshall
Criminal, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
November 27, 2018
01-17-00603-CV
Jennifer Caughey
Published
The Texas Department of Public Safety (the Department) appealed the judgment of the trial court which concluded that the appellee was entitled to a handgun license because the record did not show that the appellee had been convicted of a misdemeanor crime of domestic violence. The appellate court was asked to determine whether the record showed that the appellee was ineligible for a handgun license under the Texas and federal statutes. On appeal, the Department argued that the appellee was ineligible for a license because his assault by contact conviction was a misdemeanor crime of domestic violence. The appellate court found that the record did not show a prior conviction that was in fact, for an offense committed by the appellee against a spouse or other domestic victim. The appellate court concluded that the record did not show by a preponderance of the evidence that the appellee was ineligible for his requested license because the fact that the appellee was once charged with assaulting his wife could not support the conclusion that he was “convicted” of assaulting her. Accordingly, the judgment of the trial court was affirmed.


The taxable situs of the respondent company's compressors located in the petitioner counties was controlled by Tax Code Sections 23.1241 and 23.1242.
Reeves Cnty. Appraisal Dist. v. MidCon Compression, L.L.C.
Gov't/Administrative, Oil, Gas, & Mineral, Tax
The Supreme Court of Texas
November 16, 2018
15-0969
Per Curiam
Published
The respondent company owned and leased out compressor stations used to deliver natural gas into pipelines. Some of those compressors were in use in the petitioner counties. The petitioners continued to place the compressors on their appraisal rolls at full market value, arguing that their presence within the petitioners fixed taxable situs there. The respective appraisal-review boards sided with the petitioners and the respondent sought judicial review. Both parties appealed. The appellate court reversed the trial court’s determination that Sections 23.1241 and 23.1242 were unconstitutional but affirmed its conclusion that the compressors’ taxable situses were the petitioners rather than the other two counties. The Texas Supreme Court found that the appellate court's holding that the appraisal districts failed to establish Sections 23.1241 and 23.1242 were unconstitutional on the basis that property must be taxed in proportion to its market value was consistent with the court's opinion in EXLP Leasing. Similarly, its conclusion that the counties failed to establish that those provisions violate the constitution’s equal-and-uniform provision was consistent with the court's rejection of that argument in EXLP Leasing. Further, the court found that the taxable situs of the respondent's compressors located in the petitioner counties was controlled by Tax Code Sections 23.1241 and 23.1242. Accordingly, the court affirmed the appellate court's judgment in part and reversed in part and remanded for further proceedings.


Compressors at issue, which were physically located in Galveston County, were properly taxable in Washington County because they were assigned to a storage yard there.
Reeves Cnty. Appraisal Dist. v. Valerus Compression Srvs.
Gov't/Administrative, Oil, Gas, & Mineral, Tax
The Supreme Court of Texas
November 16, 2018
15-0970
Per Curiam
Published
The respondent company owned and leased out compressor stations used to deliver natural gas into pipelines. Some of these compressors were in use in Reeves and Loving counties. The appellate court reversed the trial court’s determination that Tax Code sections 23.1241 and 23.1242 are unconstitutional but affirmed its conclusion that the compressors’ taxable situses were Reeves and Loving counties rather than Harris County. The Texas Supreme Court found that the compressors at issue, which were physically located in Galveston County, were properly taxable in Washington County because they were part of EXLP Leasing, LLC v. Galveston Central Appraisal District, “Gulf Coast Region fleet” and, as such, were “assigned” to EXLP’s “business location and storage yard in Washington County,” which EXLP used to “manage the inventory of compressors in the Gulf Coast region.” Further, the respondent paid taxes in Harris County, where the respondent said it maintained its principal place of business. The court holding in EXLP Leasing, however, clarified that taxable situs was tethered to the location where the dealer maintained its inventory. The respondent did not argue that the compressors at issue in the case were part of an inventory maintained in Harris County, though that may be so. But if it was, that fact was not established simply because Harris County was the respondent’s principal place of business. Finally, the court affirmed the appellate court’s judgment in part and reversed in part, rendering judgment that the sections 23.1241 and 23.1242 control the taxable situs of the compressors at issue in the case.


It was not necessary to re-open the record to determine post-judgment interest because the court had set the accrual date and the interest rate was set by statute.
In re Castle Texas Prod. Ltd. P’ship
Appellate: Civil, Procedure
The Supreme Court of Texas
November 16, 2018
17-0863
Per Curiam
Published
Four years ago, the court clarified how to determine the accrual date for post judgment interest when a remand for further proceedings required new evidence. On remand, however, the trial court issued a letter ruling stating that the record must be reopened to “determine post judgment interest including the accrual period.” The relator petitioned the appellate court for mandamus relief from the trial court’s ruling, arguing that the trial court exceeded the scope of the court’s mandate by indicating its intent to re-open the record. The Texas Supreme Court found that the trial court had a ministerial duty to render judgment for the relator, with post judgment interest to accrue in accordance with the opinion. In the immediately preceding sentence, the court stated that post judgment interest must accrue from the trial court’s final judgment in 2009. There was no need to re-open the record to comply with the directive. The court had set the accrual date. The interest rate was set by statute. All that remained was for the trial court to render judgment as directed. The court directed the trial court to render judgment for the relator with post judgment interest accruing from the trial court’s final judgment issued in 2009, and further directed the trial court not to re-open the record in doing so. The writ would issue only if the trial court did not comply.


The taxable situs of compressors was controlled by Tax Code sections 23.1241 and 23.1242 and the respondent company properly paid taxes on the compressors at issue in another county.
Loving Cnty. Appraisal Dist. v. EXLP Leasing, LLC
Gov't/Administrative, Oil, Gas, & Mineral, Tax
The Supreme Court of Texas
November 16, 2018
15-0971
Per Curiam
Published
The respondent company owned and leased out compressor stations used to deliver natural gas into pipelines. Some of those compressors were in use in the petitioner county. In response to a 2012 amendment to the Tax Code that included leased heavy equipment in a statutory formula used to value heavy equipment held by dealers for sale, the respondent began paying taxes on the compressors located in the petitioner to the County. But the petitioner continued to place the compressors on its appraisal roll at full market value. An appraisal review board sided with the petitioner and the respondent sought judicial review. The trial court sided with the petitioner on the first two issues but with the respondent on the third. Both parties appealed. The appellate court reversed in part and affirmed in part. The Texas Supreme Court found that the taxable situs of the compressors was controlled by Tax Code sections 23.1241 and 23.1242. As such, the court held that the respondent properly paid taxes on the compressors at issue in another county. Accordingly, the judgment was affirmed in part and reversed in part.


The appellant failed to meet his burden to establish that a remedy was not available to him under the laws of Qatar or India.
Nazareth v. McDermott Int'l, Inc.
Admiralty & Maritime, Employment, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
November 15, 2018
01-18-00339-CV
Harvey Brown
Published
The appellate court found that if the country’s substantive law provided a cause of action to injured seamen, but the country’s courts did not have jurisdiction over the seaman’s suit, then a remedy was not available under the laws of that country. Thus, the appellant concluded, by presenting uncontroverted evidence that the trial courts of Qatar and India would not exercise jurisdiction over his suit, he met his burden to establish that a remedy was not available to him under the laws of those two countries. Further, because a remedy was available under the laws of Trinidad, the employee could not assert a claim under federal maritime law or state law, but he could assert a claim under Trinidad law. Thus, under Stier v. Reading & Bates Corp., Section 30105(c) operated as a choice-of-law provision that determined the type of claim a foreign seaman could assert in state court. If no remedy existed under the laws of either specified country, then the seaman could assert a claim against a U.S. defendant under U.S. maritime law. The court recognized that trial courts in other jurisdictions have construed the statute differently and have adopted a construction similar to that advanced by the appellant. Thus, the appellant failed to meet his burden to establish that a remedy was not available to him under the laws of Qatar or India. Accordingly, the judgment was affirmed.


The defendants established by clear and specific evidence that it owned a trade secret as defined by the civil practice and remedies code.
Morgan v. Clements Fluids S. Tex., Ltd
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 12th Court of Appeals
November 05, 2018
12-18-00055-CV
James T. Worthen
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss the plaintiffs’ misappropriation of trade secrets claim and the trial court’s order granting the defendants’ temporary injunction. On appeal, the defendants argued that the trial court erred in denying their motion to dismiss pursuant to the Texas Citizens’ Participation Act (TCPA). Specifically, the defendants contended that the plaintiffs’ submitted affidavits denying they disclosed or misappropriated the plaintiffs’ confidential information. The plaintiffs counterargued that the motion to dismiss should be denied because the defendants intentionally waived their right to freely associate and freely speak about the plaintiffs’ confidential information by voluntarily signing the non-disclosure agreements. The appellate court concluded that the defendants met their burden under step one of the TCPA analysis. The appellate court found that the defendants established by clear and specific evidence that it owned a trade secret as defined by the civil practice and remedies code. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and modified and affirmed in part.


The trial court must issue a new order for payment of fees in accordance with a fee schedule that complied with Article 26.05(c) because the amount that they should be paid must be in compliance with a statutorily authorized fee schedule.
In re State ex rel. Wice
Constitution, Criminal, Evidence, Procedure, Professional Responsibility
Texas Court of Criminal Appeals
November 21, 2018
WR-86, 920-02
David C. Newell
Published
The relator appealed the judgment of the commissioner’s court which found that the local rule authorized the trial court to “opt out” of its own fee schedule conflicted with a statute that required payment according to that fee schedule. The criminal appellate court was asked to determine whether a trial counsel could pay an appointed prosecutor at an hourly rate even though the fee schedule approved by the judges of the county only allowed for payment of a fixed fee. On appeal, the relators argued that upholding the trial court’s order for payment was appropriate because the trial court’s determination of a reasonable fee for their services was a discretionary call, not a ministerial one. the real-party-in-interest responded that vacating the trial court’s order for payment was appropriate because the trial court lacked authority to set a fee outside of the fixed rate in the fee schedule. The criminal appellate court concluded that the trial court must issue a new order for payment of fees in accordance with a fee schedule that complied with Article 26.05(c) because the amount that they should be paid must be in compliance with a statutorily authorized fee schedule. Accordingly, the judgment of the commissioner’s court was vacated and remanded.


The criminal appellate court concluded that the defendant did not engage in any conduct beyond committing ordinary shoplifting by herself.
Lang v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 21, 2018
PD-0563-17
Elsa Alcala
Published
The criminal appellate court was asked to consider whether the statue defining the offense of organized retail theft permitted a conviction for ordinary shoplifting by a single actor. On appeal, the defendant challenged the sufficiency of the evidence to support her conviction for that offense after she was caught attempting to steal items. The defendant contended that her conduct in engaging in ordinary shoplifting, by herself and without the cooperation of others, could not properly give rise to a conviction for organized retail theft. The criminal appellate court found that based on an analysis of the ambiguous statutory language, viewed in light of the statute’s extensive legislative history, that the statute did not apply to the conduct of an ordinary shoplifter acting alone. The criminal appellate court concluded that the defendant did not engage in any conduct beyond committing ordinary shoplifting by herself. Accordingly, the judgment of the appellate court was reversed and remanded.


The appellate concluded found that the trial court erred in determining that the Rule’s use of the word “diagnosis” was improper.
Tex. Bd. of Chiropractic Exam’r v. Tex. Medical Ass’n
Appellate: Civil, Gov't/Administrative, Health Care, Procedure
Texas 3rd Court of Appeals
November 21, 2018
03-17-00037-CV
Cindy Olson Bourland
Published
The Board of Chiropractic Examiners (the Board) appealed the judgment of the trial court which declared void certain portions of the Board’s rule that defined the chiropractic “scope of practice.” On appeal, the Board argued that the practice of chiropractic had always involved nerves because chiropractic treated subluxations, which were dysfunctions in the joints that caused nerve interference. The Texas Medical Association (the Association) counterargued that the Legislature specified that chiropractors could analyze and treat the biomechanical condition of the spine and musculoskeletal system, which impliedly excluded the nervous system. The appellate court concluded that the trial court erred in determining that the Rule’s use of the word “diagnosis” was improper. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.


The trial court did not abuse its discretion in denying the defendant’s motion to dismiss because the trial court denied the defendant’s motion to dismiss and it must infer that it resolved the conflicting evidence in the plaintiff’s favor.
Frezza v. Flores
Appellate: Civil, Health Care, Procedure
Texas 4th Court of Appeals
November 21, 2018
04-18-00040-CV
Rebeca C. Martinez
Published
The defendant appealed the judgment of the trial court which denied his motion to dismiss pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code. On appeal, the defendant contended that the trial court erred in denying his motion to dismiss because he was not timely served with an expert report. The appellate court noted that under section 74.351, a health care liability claimant must “serve” an expert report within 120 days of filing suit, and the term “serve” carried the same meaning in Rule of Civil Procedure 21a. The appellate court concluded that the trial court did not abuse its discretion in denying the defendant’s motion to dismiss because the trial court denied the defendant’s motion to dismiss and it must infer that it resolved the conflicting evidence in the plaintiff’s favor by determining that the expert report was timely served on the defendant’s counsel. Accordingly, the judgment of the trial court was affirmed.


Pursuant to the binding precedent of the United States Supreme Court, the Texas Department of Public Safety’s sovereign immunity to private claims in state court had not been validly abrogated by the Unformed Services Employment and Reemployment Rights Act.
Tex. Dep’t of Pub. Safety v. Torres
Constitution, Damages, Employment, Gov't/Administrative, Torts
Texas 13th Court of Appeals
November 20, 2018
13-17-00659-CV
Dori Contreras
Published
The Texas Department of Public Safety (the Department) appealed the judgment of the trial court which denied its plea to the jurisdiction in a suit brought by the plaintiff. The appellate court was asked to determine whether sovereign immunity barred claims by private individuals against units of state government under the federal Unformed Services Employment and Reemployment Rights Act (USERRA). On appeal, the Department contended that the trial court erred in denying its plea because sovereign immunity applied and had not been validly abrogated by Congress or waived by the legislature. The Department maintained that Congress had the constitutional power to abrogate a State’s sovereign immunity to suit in its own courts only when exercising its power under section 5 of the Fourteenth Amendment. The appellate court found that  The appellate court concluded that the plaintiff did not allege facts showing that the trial court had jurisdiction over his claims in particular. Accordingly, the judgment of the trial court was reversed.


No appellate remedy would be adequate to redress the ward’s lost procedural opportunity to present evidence and argument that there was no necessity for the guardianship proceeding to continue by compelling her to involuntarily submit to an independent medical examination.
In re Kelm
Family
Texas 1st Court of Appeals
November 20, 2018
01-18-00688-CV
Michael C. Massengale
Published
The relator appealed the judgment of the trial court which vacated orders in a guardianship proceeding, which compelled the relator to submit to an involuntary medical examination without allowing her to present evidence or argument at the hearing mandated by Estates Code § 1101.101(c). On appeal, the relator contended that the trial court clearly abused its discretion by failing to comply with the statute and violating her right to due process. The defendant counterargued that she bore the legal burden of showing that the physical examination was necessary. The appellate court found that it was a clear abuse of discretion for the trial judge to receive testimony only from two witnesses for the applicant, then to cancel the remainder of the hearing and appoint a physician to examine the proposed ward without giving her a similar opportunity to be heard. The appellate court concluded that no appellate remedy would be adequate to redress the ward’s lost procedural opportunity to present evidence and argument that there was no necessity for the guardianship proceeding to continue by compelling her to involuntarily submit to an independent medical examination. Accordingly, the relator’s petitions were conditionally granted.


Because the owner based his negligent-misrepresentation claim on a failure to perform a promise of future conduct or on a representation that certain conduct would occur in the future, the claim sounded in contract.
First Bank v. Brumitt
Appellate: Civil, Contracts, Damages, Torts
Texas 14th Court of Appeals
November 20, 2018
14-13-00694-CV
Kem Thompson Frost
Published
The lender appealed the judgment of the trial court which rendered judgment in favor of the owner on claims for breach of contract and negligent misrepresentation when the owner sought to sell its stock to another company. On appeal, the lender asserted that the owner’s negligent-misrepresentation claim was subsumed by his breach-of-contract claim. The appellate court found that in proffering evidence regarding the damages he allegedly sustained, the owner did not differentiate between economic losses suffered as a result of the lender’s failure to comply with its alleged contractual obligations to close and fund the loan and economic losses caused by the lender’s alleged negligent misrepresentations. The appellate court concluded that the because the owner based his negligent-misrepresentation claim on a failure to perform a promise of future conduct or on a representation that certain conduct would occur in the future, the claim sounded in contract. Accordingly, the judgment of the trial court was reversed.


The plaintiff’s claims must be remanded for a new trial because the trial court’s charge instruction was erroneous and the jury should have been allowed to hear and consider evidence of the victim’s conduct.
Solis v. S.V.Z.
Appellate: Civil, Criminal, Damages, Evidence, Litigation: Personal Injury, Procedure
Texas 14th Court of Appeals
November 20, 2018
14-17-00162-CV
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which returned a verdict in favor of the plaintiff on common law claims for sexual assault. On appeal, the defendant argued that the trial court reversibly erred by submitting the predicate question with the criminal elements of a sexual assault. The defendant contended that the criminal elements were inappropriate because criminal offenses did not give rise to private rights of action. The appellate court concluded that the trial court’s charge instruction was erroneous and that the jury should have been allowed to hear and consider evidence of the victim’s conduct, as the evidence was relevant to the determination of actual damages. The appellate court found that the plaintiff’s claims must be remanded for a new trial because the trial court’s charge instruction was erroneous and the jury should have been allowed to hear and consider evidence of the victim’s conduct. Accordingly, the judgment of the trial court was remanded for a new trial.


The trial court did not abuse its discretion in concluding that the property was susceptible to partition in kind without materially impairing its value.
Tibaut v. Stephens
Appellate: Civil, Procedure, Real Property
Texas 1st Court of Appeals
November 20, 2018
01-17-00522-CV
Harvey Brown
Published
The sellers of property appealed the judgment of the trial court which found the property was susceptible to partition in kind and appointed commissioners to allot portions of the property to each seller. On appeal, the sellers contended that the trial court erred by finding the property could be partitioned in kind without materially impairing its value, the trial court exceeded its authority by entering certain findings of fact and conclusions of law that went beyond the statutorily prescribed issues to be determined, and the trial court’s findings were not supported by legally and factually sufficient evidence. The appellate court found that the trial court did not abuse its discretion in concluding that the property was susceptible to partition in kind without materially impairing its value. The appellate court concluded that there was legally and factually sufficient evidence to support the trial court’s equitable determinations. Accordingly, the judgment of the trial court was affirmed.


The claimant’s expert report adequately addressed both causation and the standard of care and were sufficient warranting the reinstatement of her claims against the provider.
Abshire v. Christus Health S.E. Tex.
Appellate: Civil, Health Care, Litigation: Personal Injury, Torts
The Supreme Court of Texas
November 16, 2018
17-0386
Per Curiam
Published
The claimant appealed the judgment of the appellate court which held that the claimant’s expert report was insufficient as to causation with respect to one of her providers and dismissed her claims against that provider. On appeal, the defendant argued that even if the expert’s report was sufficient as to causation, the trial court nevertheless erred in denying the defendant’s motion to dismiss because the reports failed to articulate the applicable standard of care. The Supreme Court found that to adequately identify the standard of care, an expert report must set forth "specific information about what the defendant should have done differently.” The Supreme Court concluded that the claimant’s expert report adequately addressed both causation and the standard of care and were sufficient warranting the reinstatement of her claims against the provider. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.


The trial court did not abuse its discretion in sustaining the appellee’s special exceptions and striking those portions of the first appellant corporation’s pleading seeking declaratory relief and attorney’s fees.
M & M Resources, Inc. v. DSTJ, LLP, DSTJ Corp.
Appellate: Civil, Courts, Procedure, Real Property
Texas 9th Court of Appeals
November 15, 2018
09-18-00083-CV
Charles A. Kreger
Published
The appellate court found that the first appellant corporation and the second appellant corporation’s claims, in that case, sought a determination of superior title to the mineral estates at issue and as such, must be pursued as a trespass to try title action, which did not allow for the recovery of attorney’s fees. Thus, the first appellant corporation and the second appellant corporation may not seek recovery of attorney’s fees by alternatively pleading a cause of action under the Declaratory Judgments Act or for a fraudulently filed lien. The trial court did not abuse its discretion in sustaining the appellee’s special exceptions and striking those portions of the first appellant corporation’s pleading seeking declaratory relief and attorney’s fees. Accordingly, the trial court's judgment was affirmed.


The appellate court erred in reversing the trial court’s judgment granting the Trustees specific performance of the right of first refusal respect to the conveyed mineral interest.
Carl M. Archer Trust No. Three v. Tregellas
Contracts, Damages, Oil, Gas, & Mineral, Procedure
The Supreme Court of Texas
November 16, 2018
17-0093
Debra Lehrmann
Published
The mineral holders appealed the judgment of the appellate court which reversed the trial court’s judgment for the holders in a dispute over the rights conveyed to the mineral interest. The Supreme Court was asked to determine whether the statute of limitations barred a claim for breach of a recorded right of first refusal to purchase a mineral interest. The Supreme Court found that the appellate court erred in reversing the trial court’s judgment granting the Trustees specific performance of the right of first refusal respect to the conveyed mineral interest. The Supreme Court agreed with the appellate court and concluded that the holders’ cause of action accrued when the grantors conveyed the property without notice and that the discovery rule did not apply to defer accrual. Accordingly, the judgment of the appellate court was reversed in part.


The Supreme Court concluded that the compressors at issue here were just as 'self-powered' as any piece of heavy equipment that relied on an integrated combustion engine.
Ward Cnty. Appraisal Dist. v. EES Leasing LLC
Appellate: Civil, Procedure, Tax
The Supreme Court of Texas
November 16, 2018
15-0965
Per Curiam
Published
The appraisal district appealed the judgment of the appellate court which reversed the trial court’s determination that section 23.1241 was unconstitutional but affirmed its conclusion that the compressors’ taxable situs was the county. On appeal, the appraisal district argued that the compressors did not contain integrated fuel-systems and must be stationary, affixed to a foundation and natural gas fuel source in order to operate. The Supreme Court found that the compressors met the statutory definition since there was no indication that the Legislature intended to define the term in a narrower and more technical sense. The Supreme Court concluded that the compressors at issue here were just as 'self-powered' as any piece of heavy equipment that relied on an integrated combustion engine. Accordingly, the judgment of the appellate court was affirmed in part and reversed in part.


The appellant failed to meet his burden to establish that a remedy was not available to him under the laws of Qatar or India.
Nazareth v. Mcdermott International, Inc.
Admiralty & Maritime, Employment, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
November 15, 2018
01-18-00339-CV
Harvey Brown
Published
The appellate court found that if the country’s substantive law provided a cause of action to injured seamen, but the country’s courts did not have jurisdiction over the seaman’s suit, then a remedy was not available under the laws of that country. Thus, the appellant concluded, by presenting uncontroverted evidence that the trial courts of Qatar and India would not exercise jurisdiction over his suit, he met his burden to establish that a remedy was not available to him under the laws of those two countries. Further, because a remedy was available under the laws of Trinidad, the employee could not assert a claim under federal maritime law or state law, but he could assert a claim under Trinidad law. Thus, under Stier v. Reading & Bates Corp., Section 30105(c) operated as a choice-of-law provision that determined the type of claim a foreign seaman could assert in state court. If no remedy existed under the laws of either specified country, then the seaman could assert a claim against a U.S. defendant under U.S. maritime law. The court recognized that trial courts in other jurisdictions have construed the statute differently and have adopted a construction similar to that advanced by the appellant. Thus, the appellant failed to meet his burden to establish that a remedy was not available to him under the laws of Qatar or India. Accordingly, the judgment was affirmed.


Since the total amount of litigation costs that could be shifted equals zero, the trial court did not err by refusing to award the appellant any amount for litigation costs.
Mahaffey v. Seth Washburne and Thirsty 13th, LLC
Appellate: Civil, Courts, Damages, Procedure
Texas 2nd Court of Appeals
November 15, 2018
02-18-00012-CV
Bonnie Sudderth
Published
The appellate court found that there was no dispute that the declaration and offer of settlement complied with the requisites of the rule, that the appellant offered the appellees $15,100 to settle the claim, that the appellees rejected his offer, and that their subsequent nonsuit resulted in a judgment significantly less favorable than the $15,100 the appellant offered. Thus, the litigation cost-shifting mechanism of the rule was triggered. Further, both rule 167 and chapter 42 provided limits on the amount of litigation costs that could be shifted due to an imprudent rejection of a settlement offer. Both provided that the litigation costs that may be awarded to any party under that rule may not exceed the total amount that the claimant recovers or would recover before subtracting as an offset an award of litigation costs under that rule in favor of the defendant. Furthermore, because the appellees nonsuited their action against the appellant, they took nothing by way of judgment against him. Thus, under rule 167.4(d)(2) and section 42.004(d), any litigation costs awarded could not exceed the total amount of zero. Because there the total amount of litigation costs that could be shifted equals zero, the trial court did not err by refusing to award the appellant any amount for litigation costs. Accordingly, the trial court's judgment was affirmed.


The trial court erred in denying the appellant’s motion to disregard the jury’s finding that the appellee did not breach that obligation.
Junior v. Broussard
Appellate: Civil, Contracts
Texas 14th Court of Appeals
November 15, 2018
14-17-00836-CV
Tracy Christopher
Published
The appellate court agreed with the appellant that, given the uncontroverted evidence, the appellee breached his co-guarantor obligation as a matter of law, and thus, the trial court erred in denying the appellant’s motion to disregard the jury’s finding that the appellee did not breach that obligation. Further, the court similarly held that the trial court erred in failing to ignore the jury’s finding under the Uniform Commercial Code that the appellant did not dispose of a trademark securing the debt in a commercially reasonable manner. Finally, the trial court must refuse the appellant’s request to recover his attorney’s fees under Chapter 38 of the Texas Civil Practice and Remedies Code because the statute did not authorize fee-recovery for an equitable-contribution claim. Accordingly, the trial court reversed the trial court’s judgment and instead render judgment in the appellant’s favor for $30,685.12.


The appellants eliminated the controversy between it and the appellee. Therefore, the case was moot.
Bass v. Whalen's Furniture, Inc.
Gov't/Administrative, Transportation
Texas 13th Court of Appeals
November 15, 2018
13-17-00030-CV
Leticia Hinojosa
Published
The appellate court agreed with the Commission in OAD Outdoor Advertising that the appellants’ renewal of a billboard permit that had been previously canceled without excepting that renewal was the pending resolution of the cancellation decision renders the administrative appeal of the appellants’ cancellation notice moot. By renewing the appellee’s billboard permit on September 17, 2013, without excepting that renewal was the pending resolution of the appellants’ August 27, 2013 cancellation notice, the appellants eliminated the controversy between it and the appellee. If a case was or becomes moot, the court must vacate any order or judgment previously issued and dismiss the case for want of jurisdiction. Accordingly, the court vacated the trial court’s judgment and the orders of the Commission and ALJ and dismissed the appellants’ appeal for want of jurisdiction.


The record showed that the appellant adequately preserved his McCoy claim and that defense counsel violated McCoy at the appellant’s trial.
Turner v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 14, 2018
AP-76,580
Sharon Keller
Published
The appellant was convicted of capital murder for killing his wife and mother-in-law during the same criminal transaction. The jury answered the special issues in such a manner that the appellant was sentenced to death. Direct appeal to the Court of Criminal Appeals was automatic. On original submission, the court remanded the case for a retrospective competency hearing. The court later ordered supplemental briefing on the effect, if any, of the Supreme Court’s recent decision in McCoy v. Louisiana. The Texas Court of Criminal Appeals found that the record showed that the appellant adequately preserved his McCoy claim and that defense counsel violated McCoy at the appellant’s trial. Further, because the error was structural, the court conducted a no harm analysis, and a reversal and remand for a new trial was required. Furthermore, because the appellant’s remaining points of error, even if meritorious, would not result in greater relief, the court need not address them. Accordingly, the court reversed the judgment of the trial court and remanded the case for a new trial.


The only evidence supporting the appellants’ assertion that the oil and gas interests were the deceased’s separate property was the language in the deeds themselves.
Weed v. Frost Bank
Real Property, Wills/Trusts/Probate
Texas 4th Court of Appeals
November 14, 2018
04-17-00811-CV
Karen Angelini
Published
The appellate court found that the court evaluated the summary judgment evidence as the court would in any other case. And, in any other case on the issue, the community property presumption was applicable. The property possessed by either spouse during or on the dissolution of marriage was presumed to be community property, and the degree of proof necessary to establish that property was separate property was clear and convincing evidence. Further, to rebut the community property presumption and created a fact issue in the summary judgment proceeding, the appellants must have produced evidence from which a reasonable fact finder could conclude they had met their burden, by clear and convincing evidence, of proving that the oil and gas interests were separate property. Since the court had determined that the appellee bank rebutted the separate property presumption created by the deed recitals, the separate property presumption disappeared, and the court evaluated the summary judgment record as the court would in any other case. Since of the now applicable community property presumption, the appellants would have the burden to show by clear and convincing evidence that the oil and gas interests at issue were the deceased’s separate property. It was undisputed in the case, however, that no financial records exist to trace the funds used by the deceased to purchase the oil and gas interests. Thus, the only evidence supporting the appellants’ assertion that the oil and gas interests were the deceased’s separate property was the language in the deeds themselves. These deed recitals, however, by themselves, were not sufficient evidence to overcome the community property presumption as a matter of law. Summary judgment was therefore correctly granted in favor of Bank. Accordingly, the trial court's judgment was affirmed.


The trial court abused its discretion by ordering petitioners to produce materials protected as trade secrets when the respondents did not meet their burden of proving that the discovery of the trade secrets at issue was material and necessary to the litigation
In re Kongsberg Inc.
Intellectual Property, Procedure
Texas 9th Court of Appeals
November 08, 2018
09-18-00337-CV
Per Curiam
Published
Petitioners, the manufacturer and seller, of a three-wheel motorcycle that injured the respondents’ decedent, filed a mandamus proceeding challenging a discovery order compelling the petitioners to produce copies of software programs and other material protected under their respective trade-secret privileges in the underlying negligence and products liability suit. The appellate court found that the trial court abused its discretion by finding that the respondents established that access to the trade-secret discovery that was the subject of the discovery order was necessary to allow the respondents’ consulting expert to fully evaluate all aspects of the design of a power steering unit on the motorcycle that was the subject of the suit. Because the evidence before the trial court established that the possibility of an unjust result was merely a possible threat, the court concluded the trial court erred by finding that the respondents met their burden to prove that the discovery of the trade secrets at issue was material and necessary to the litigation. Thus, the court conditionally granted the petitioners’ joint petition and direct the trial court to vacate the discovery order that it issued granting the respondents’ motion to compel. Accordingly, the petition was conditionally granted.


Absent trial court jurisdiction to review the arbitration panel’s interlocutory decision, the court vacated the trial court’s order denying a motion to vacate the arbitration panel's order as void and dismiss the appeal for want of jurisdiction.
SM Architects, PLLC v. AMX Veteran Specialty Servs., LLC
ADR, Appellate: Civil, Torts
Texas 5th Court of Appeals
November 08, 2018
05-17-01064-CV
Molly Francis
Published
Appellee arbitrated a claim against the appellants, an architectural firm and one of its architects, for professional negligence and breach of contract. The appellants filed a motion with the arbitration panel to dismiss the appellee’s claims for failure to comply with the certificate of merit requirement required by Tex. Civ. Prac. & Rem. Code Ann. § 150.002 in professional negligence actions. The panel denied the motion, and the appellants filed an interlocutory appeal. On appeal, the trial court denied the motion to vacate the arbitration panel's order. The appellate court found that the scope of the trial court’s jurisdiction over arbitration proceedings was specifically and narrowly defined by sections 171.081 and 171.086 of the Texas Arbitration Act (TAA). If the legislature intended to expand judicial review of arbitration decisions beyond the court’s limited review of arbitration awards, it could have done so by amending these sections. Because neither section 150.002(f) nor the TAA provided the trial courts with the jurisdiction to review an arbitration panel’s denial of a motion to dismiss, the trial court’s order on the appellants’ motion to vacate the panel’s decision was void for lack of jurisdiction. Accordingly, the court vacated the trial court’s order as void and dismiss the appeal for want of jurisdiction.


A state employee did not comply with sections 658.010 and 659.018 of the Government Code before working from home, so she was not acting within the scope of her employment when she was injured and her injury was not compensable.
Martinez v. State Office of Risk Mgmt.
Employment, Gov't/Administrative, Workers' Compensation
Texas 4th Court of Appeals
November 07, 2018
04-14-00558-CV
Karen Angelini
Published
The appellant state employee was injured while working from home on the weekend and submitted a claim for workers’ compensation benefits. The hearing officer found that the appellant had not sustained a compensable injury. The Texas Workers' Compensation Commission's Appeals Panel reversed the hearing officer's decision and rendered a decision that the appellant had sustained a compensable injury. The State appealed to the district court, which granted the State’s motion for summary judgment and denied the appellant’s motion. The appellant appealed. The appellate court concluded that, under the facts presented in this case, the appellant’s home is not a location that can give rise to a workers' compensation claim. The court found that sections 658.010 and 659.018 of the Government Code limited a state employee's scope of employment by mandating that the state employee obtain prior written authorization before working at home. Since the appellant failed to obtain prior written approval from her supervisor before working at home, she was not acting within the scope of her employment when she was injured, and her injury was not compensable. Accordingly, the trial court's judgment was affirmed. 


The evidence was legally sufficient to support the appellant’s two theft convictions; thus, the court reversed the judgment of the appellate court.
Johnson v. State
Criminal, Evidence
Texas Court of Criminal Appeals
November 07, 2018
PD-0197-17
Mary Lou Keel
Published
A jury convicted the appellant of two counts of theft of money between $1,500 and $20,000 and assessed his punishment in each case at the maximum of two years in the state jail and a fine of $10,000. In a split opinion, the appellate court reversed both convictions for insufficient evidence. The Court of Criminal Appeals granted the State’s petition for discretionary review. The Texas Court of Criminal Appeals found that, viewing the evidence in the light most favorable to the convictions, a rational jury could conclude that the appellant accepted payment for cremations that he knew he would not perform in both counts of the indictment. The lower court erred in its evaluation of the sufficiency of the evidence by disregarding or re-weighing incriminating evidence. Further, the appellate court rejected the State’s argument that the appellant was guilty as a party with his wife because it found no evidence that the appellant's wife intended not to cremate the deceased or knew that the deceased would not be cremated when the individual paid for the service. The trial court erred to acquit the appellant for lack of evidence about the appellant's wife intent or knowledge. Accordingly, the court reversed the judgment of the appellate court and remanded.


A jury note was not an informal verdict of acquittal under Texas law because it lacked the “finality necessary to amount to an acquittal” required under Blueford v. Arkansas
Traylor v. State
Criminal, Procedure
Texas Court of Criminal Appeals
November 07, 2018
PP-0967-17
David C. Newell
Published
The appellant’s initial trial on charges of first-degree burglary was declared a mistrial. The appellant was re-tried, and the jury found him guilty. The trial court sentenced the appellant to 20 years’ imprisonment. The appellant appealed, arguing that the second trial violated double jeopardy because a jury note during the first trial was a final verdict of acquittal on the charged offense. The court of appeals agreed. The Texas Court of Criminal Appeals held that the appellant’s subsequent trial for first-degree burglary did not violate the Double Jeopardy Clause. The jury note was not an informal verdict of acquittal under Texas law because it lacked the “finality necessary to amount to an acquittal” required under Blueford v. Arkansas. Accordingly, the court reversed the appellate court and affirmed the trial court’s judgment.


Judgment in favor of a patient in a medical negligence action was upheld because the evidence supported a finding that the skilled nursing facility’s negligence was a proximate cause of the patient’s injury
Regent Care Ctr. of San Antonio, L.P. v. Detrick
Damages, Health Care, Litigation: Personal Injury, Torts
Texas 4th Court of Appeals
November 07, 2018
04-17-00596-CV
Irene Rios
Published
Appellant skilled nursing facility appealed a judgment in favor of the appellees, a patient and wife, in a healthcare negligence case. The jury found that the appellant's nurses were negligent in failing to promptly notify the patient’s treating physicians of a significant change in his condition, resulting in delay in diagnosing and treating a spinal tumor that ultimately caused the patient to suffer permanent paralysis and incontinence. The appellate court found that the evidence supported a finding that the appellant’s negligence was a proximate cause of the patient’s injury. Since the appellant did not demonstrate that the doctor's testimony was conclusory or speculative, the trial court did not abuse its discretion by refusing to exclude the testimony on the said grounds. Further, the jury’s award of $3,000,000 for future medical expenses was within the range of figures provided by the doctor. In any event, the doctor's expert testimony was not critical to affirming the jury’s award. The jury was entitled to consider that the patient was rendered permanently paralyzed and incontinent, had undergone extensive medical treatment in the past, and, at the time of trial, was not only still paralyzed and incontinent, but destined to spend the rest of his life in that condition. However, there was no evidence to support awards of $45,000 in the past and $200,000 in the future for loss of the household services. Thus, the court reversed the judgment of the trial court insofar as it awarded damages to the wife for loss of household services. Accordingly, that portion of the trial court's judgment awarding damages to the wife for loss of household services was reversed, and the remainder of the judgment was affirmed.


Although the Ordinance described twenty discrete projects for which bond proceeds may be used, nothing in the text of the Ordinance required the City to build every named project, nor was there any language that prioritized the listed projects
Ex Parte City of El Paso
Election, Gov't/Administrative
Texas 3rd Court of Appeals
November 07, 2018
03-17-00566-CV
Jeff Rose
Published
The appellant city brought a bond-validation proceeding under Chapter 1205 of the Government Code, seeking a declaration that a sports facility could be built with bonds that wer approved by taxpayers to finance various “quality of life” projects. The trial court validated the bond election, the bonds, and the appellant’s authority to use bond proceeds to finance the design and construction of the various projects, but limited the scope of the “multipurpose performing arts and entertainment facility” by prohibiting the appellant from making that facility “suitable for a sports arena.” The appellate court found that the trial court’s judgment provided that it was a permanent injunction against “any matter adjudicated by the Final Judgment,” but it omitted the statutory phrase “that could have been raised in the action.” On appeal, the appellant argued that the constituted error. Because the Texas Government Code section 1205.151 specified the injunctive parameters of an EDJA judgment, the trial court’s judgment should have ordered injunctive relief that complied with those parameters. Because the first appellee's appellant suit was a proceeding that “contested the validity of an action or expenditure of money relating to the public securities, a proposed action or expenditure, or both,” the trial court was authorized to enjoin the prosecution or maintenance of the suit. The trial court’s failure to do so was an abuse of discretion because the appellee’s appellant suit prevented final resolution of all matters subject to the appellant’s EDJA lawsuit. Further, the trial court declined to modify its judgment, and on cross-appeal the second appellee asked the court to reform the judgment to enjoin the appellant from “advancing construction of a new Facility prior to committing sufficient bond proceeded to ensure completion of” the Hispanic Cultural Center and other specified projects. Furthermore, although the Ordinance described twenty discrete projects for which bond proceeds may be used, nothing in the text of the Ordinance required the appellant to build every named project, nor was there any language that prioritized the listed projects. In fact, the only Ordinance-based limitation on the appellant’s discretion was that it may not spend bond proceeds on unlisted projects until after it proceeds with listed improvements. Accordingly, the trial court’s judgment was reversed and rendered in part and affirmed in part.


The trial court erred in granting an Arizona corporation’s plea to the jurisdiction on the basis of governmental immunity under the Charter Schools Act because the Act did not confer governmental status or immunity on open-enrollment charter schools for claims brought under the Water Act
Konark Ltd. P’ship v. BTX Schs, Inc.
Gov't/Administrative, Real Property
Texas 4th Court of Appeals
November 07, 2018
04-17-00558-CV
Sandee Bryan Marion
Published
The appellant property owner challenged a trial court’s order granting a joint plea to jurisdiction based on governmental immunity filed by the appellees, a Texas corporation and an Arizona corporation, in an action against both appellees for property damage. The appellees operated a charter school. The Texas corporation was the charter holder and the Arizona corporation was the sole member of the Texas corporation.  On appeal, the appellant conceded the plea to the jurisdiction was correctly granted as to the Texas corporation but argued that the trial court erred in granting the plea as to the Arizona corporation. The appellate court found that the trial court erred in granting the plea to the jurisdiction on the basis of governmental immunity under the Charter Schools Act. The Charter Schools Act, section 12.1056(a) did not confer governmental status or immunity on open-enrollment charter schools for claims brought under the Water Act. The Arizona corporation was a nonprofit corporation conducting business in Texas. Accordingly, the court reversed the trial court’s order as it pertained to the Arizona corporation and remanded the cause to the trial court for further proceedings.


Since the trial court never acquired personal jurisdiction over the father, its order terminating the father’s parental rights to his three children was void
In re T.M.E.
Family, Juvenile, Procedure
Texas 6th Court of Appeals
November 07, 2018
06-18-00046-CV
Ralph Burgess
Published
The Department of Family and Protective Services (the Department) filed a petition to terminate the father’s parental rights to his three children. The trial court granted the Department’s petition and terminated the father’s parental rights following a bench trial establishing that the father was a Mexican national living in Mexico. On appeal, the father argued that he was never served with notice of the Department’s suit against him. The appellate court held that the father’s pro se letter did not constitute an answer because there was no evidence that the father sent the letter to or filed it with the trial court. The actions of court-appointed counsel could not constitute valid voluntary, knowing, and intelligent waiver of the father’s Hague Convention rights. Failure to affirmatively show strict compliance with the rules rendered the attempted service invalid and of no effect. Thus, the court had previously determined that, even if a father had admitted that he received notice of a Department’s lawsuit by way of defective citation, a default judgment was improper against a father who had not been served in strict compliance with the law, even if he had actual knowledge of the lawsuit. Because the trial court never acquired personal jurisdiction over the father, its order terminating the father’s parental rights to his three children was void. Accordingly, the court reversed the trial court’s judgment and remanded the matter for further proceedings consistent with the opinion.


The State’s petition for a writ of mandamus was conditionally granted because the trial court plainly lacked the authority to defer adjudication of guilt following a jury verdict on a plea of guilty
In re State of Texas ex rel. Mau
Criminal, Procedure
Texas Court of Criminal Appeals
October 31, 2018
WR-87,818-01
Kevin Patrick Yeary
Published
The State brought a mandamus proceeding, seeking to compel the trial court to withdraw its order deferring adjudication of a defendant charged with family-violence assault, enter judgment on the jury’s verdict of guilty in the minutes of the court, and empanel a jury to determine the defendant’s punishment. The defendant had originally pled guilty, but changed his plea to guilty in the middle of his jury trial. The trial court instructed the jury to return a guilty verdict and then dismissed the jury. Rather than assess punishment, the trial court placed the defendant on deferred adjudication community supervision. The Texas Court of Criminal Appeals found that the trial court was without authority to enter an order of deferred adjudication community supervision in the case. The court also found that the State had a clear right to compel the trial court to rescind that order and that the State had no adequate remedy at law to challenge that order. Accordingly, the court conditionally granted the writ of mandamus.


The judgment of the court of appeals that had relied on Tarver to reach its decision upholding the dismissal of the information filed against the appellee for the offense of DWI was reversed
State v. Waters
Criminal, Procedure
Texas Court of Criminal Appeals
October 31, 2018
PD-0792-17
Elsa Alcala
Published
In the case, the Court of Criminal Appeals of Texas was asked to revisit it's precedent in Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986), to determine whether that decision remained good law. In Tarver, the court held that the doctrine of collateral estoppel barred the State from prosecuting an offense following a trial judge’s finding of “not true” as to the commission of that same offense at an earlier probation revocation hearing. The State contended in its petition for discretionary review that Tarver had been abrogated and should now be expressly abandoned. The Court of Criminal Appeals of Texas concluded that Tarver met the narrow criteria for overruling it's prior precedent, and the court abandoned the rule of that decision. The court noted that, in the approximately thirty years since Tarver was decided, the overwhelming weight of authority from other jurisdictions supported the court's current view that that decision misapplied double jeopardy principles to probation revocation proceedings. The court, therefore, reversed the judgment of the court of appeals that had applied Tarver to uphold the trial court’s dismissal of the information filed against the appellee, for the offense of Driving While Intoxicated, and remanded.


The parent’s voluntary and affirmative statements that termination of parental rights was in the child’s best interest in a mediated settlement agreement was binding on the parties under Section 153.0071(d) of the Family Code.
In re A.C.
Family, Gov't/Administrative, Juvenile
The Supreme Court of Texas
October 26, 2018
17-0477
Eva M. Guzman
Published
The appellee department took custody of four children after receiving reports that two of them were living with the appellant mother in a squalid, structurally unsound, and drug-infested habitation. A fifth child was later removed from the appellant's custody at birth based on allegations that the baby’s meconium tested positive for methamphetamines/amphetamines. The appellee sued to terminate the appellant's parental rights to all five children, alleging myriad statutory grounds including abandonment, neglect, endangerment, and noncompliance with the provisions of a court order establishing the actions necessary to reclaim custody. The appellee also sought to terminate parental rights of three men alleged to be the children’s fathers. The trial court denied the motion, noting the agreement provided for the appellee's consent to adoption and did not preclude the appellee from looking for substitute placements. At the close of evidence, the trial court found grounds to terminate the parent–child relationship as to each child and that termination of each parent–child relationship was in that child’s best interest. The court approved the mediated settlement agreement (MSA) and incorporated it into the final order, both orally and in the termination decree. Rejecting legal-and factual-sufficiency challenged to the termination decree, the appellate court affirmed, holding such evidence, in the form of statements in a mediated settlement agreement signed by the parents, counsel, and others, was sufficient to support termination. The Texas Supreme Court found that the parent’s voluntary and affirmative statements that termination of parental rights was in the child’s best interest in a mediated settlement agreement binding on the parties under Section 153.0071(d) of the Family Code could satisfy the requirement that a best-interest finding be supported by clear and convincing evidence. The appellant did not argue, and the record did not show, that the case presented any extraordinary circumstances. Accordingly, the court affirmed the appellate court's judgment.


A seller's failure to object to a question to the jury in an action on a written agreement did not forfeit his right to later challenge submission of the question and the jury’s answer to it.
Musallam v. Ali
Business, Contracts, Procedure
The Supreme Court of Texas
October 26, 2018
17-0762
Phil Johnson
Published
The petitioner seller and the respondent buyer entered into a written agreement relating to the sale of the petitioner’s business to the respondent. The petitioner refused to close, maintaining that the agreement lacked essential elements of a binding contract and was thus only an agreement to agree. The case was tried to a jury. The petitioner requested a jury question asking whether he and the respondent had agreed to the sale of the business, and, naturally, did not object to the trial court’s including the question in the jury charge. The trial court denied the petitioner’s motion and rendered judgment for the respondent. The petitioner appealed, in part, challenging the jury’s finding that he agreed to sell the business to the respondent. The appellate court did not address the issue, concluding that the petitioner waived it. The Texas Supreme Court found that the petitioner’s failure to object to Question 1 did not forfeit his right to later challenge submission of the question and the jury’s answer to it. The court reversed the appellant court’s judgment and remanded to that court for further proceedings.