The court reversed the judgment against Harris County, materially reduced the damages recoverable from the Deputy appellants, reversed the award of attorney’s fees, and the court remanded the case for reconsideration of attorney’s fees to be awarded against the Deputy appellants.
Harris Cnty., Texas v. Coats
Constitution, Damages, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
February 06, 2020
14-17-00732-CV
Kevin Jewell
Published
In the instant civil rights action, a Texas county and a deputy constable appealed a judgment following a jury verdict awarding wrongful death and survival damages. The appellees asserted a section 1983 claim against Harris County and the Harris County Constable Precinct Four Deputy alleging that the defendants unconstitutional conduct caused the death of the appellees son. The appellees raised a cross-issue challenging the trial court’s decision to reduce their recovery of survival damages by 20% because the jury was not asked to apportion responsibility for the appellee son’s pain and anguish. The appellate court found that the appellees presented legally and factually sufficient evidence that the deputy used excessive force, and that he was not entitled to qualified immunity. The appellees failed to present legally sufficient evidence that the Deputy’s constitutional violations caused the appellee son’s death, so the court reversed that portion of the judgment awarding the appellees $10,000,000 in wrongful death damages. Because the deputy had not challenged the survival damages, and because the court had sustained the appellees cross-issue regarding those damages, the court modified the judgment to award appellee, in her capacity as personal representative of the appellees son’s estate, $1,000,000 in damages from the deputy appellants for the appellee son’s pain and mental anguish, plus applicable pre- and post-judgment interest. Legally and factually sufficient evidence supported the jury’s award of $5,000 in exemplary damages against tge Deputy appellants, and the court affirmed that portion of the judgment. The court reversed the judgment against Harris County, materially reduced the damages recoverable from the Deputy appellants, reversed the award of attorney’s fees, and the court remanded the case for reconsideration of attorney’s fees to be awarded against the Deputy appellants.


The Court’s recitation of the parties’ allegations should not be taken in any way to suggest that the annulment decree was void. That was not for the court to decide. The trial court did not abuse its discretion in denying the appellant’s motion to recuse. Affirmed.
Caballero v. Vig
Appellate: Civil, Family, Procedure
Texas 8th Court of Appeals
February 05, 2020
08-18-00033-CV
Jeff Alley
Published
The instant was an appeal from a final divorce decree. The issue before the Texas Court of Appeals, however, was not the substance of the decree, but instead whether the judge who decided it should have been recused. Specifically, the appellant wife challenged the denial of her post-trial motion to recuse the El Paso District Court Judge who presided over her divorce from the appellee husband. The appellate court found that although the appellee had addressed the issue of whether the appellant had standing to attack the validity of the Judge’s annulment decree, the appellant had not responded by asserting that she had any pre-existing or direct interest in the judge’s annulment proceedings that would give her standing to do so. The court did not find any evidence in the record to support a finding that the appellant had any such interest. Thus, the appellant lacked standing to collaterally attack the validity of Judge’s annulment decree, and that the Court thus lacked jurisdiction to consider the merits of her attack on the decree. Having agreed with the appellee on the standing question, the court needed not address the merits of the claim that the annulment decree was void. The Court’s recitation of the parties’ allegations should not be taken in any way to suggest that the annulment decree was void. That was not for the court to decide. The trial court did not abuse its discretion in denying the appellant’s motion to recuse. Accordingly, the court affirmed the trial court’s judgment.


After examining the record as a whole, the court concluded that any error in the trial court’s admission of the Officer’s testimony of the complainant’s answers during the hospital interview did not have a substantial and injurious effect or influence in determining the jury’s verdict. Affirmed.
Sanchez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
February 06, 2020
14-18-00268-CR
Kem Thompson Frost
Published
The appellant challenged from his conviction for a felony assault offense involving strangulation. The trial court assessed the appellant’s sentence at 25 years’ incarceration. The appellate court noted that even without the presumed hearsay statements from the complainant, the jury had ample evidence to conclude that the appellant strangled the complainant. The court found reasonable assurance that any error in admitting the hearsay did not influence the jury's verdict, or had but a slight effect. The trial court did not abuse its discretion in overruling the appellant's objection and permitting the testimony. After examining the record as a whole, the court concluded that any error in the trial court’s admission of the Officer’s testimony of the complainant’s answers during the hospital interview did not have a substantial and injurious effect or influence in determining the jury’s verdict. Accordingly, the judgment was modified as affirmed.


Because the deceased’s will was neither susceptible to more than one reasonable interpretation nor uncertain, the court rejected the appellants' alternative position that the deceased’s will was ambiguous. The court affirmed the probate court's judgment.
In re Estate of Hunt
Real Property, Wills/Trusts/Probate
Texas 1st Court of Appeals
February 06, 2020
01-19-00216-CV
Gordon Goodman
Published
The appellants challenged from a summary judgment in which the probate court interpreted the deceased’s will as giving a large share of her personal property to her life partner, the appellee. The appellate court observed that the deceased’s bequest of “all of my remaining household and personal property” was unambiguous—it conveyed to the appellee all of the deceased’s personal property other than the family-related items that she gave to the appellant. Contrary to the appellants' contentions, the other provisions of the deceased's will would do not show a different intent. Because the deceased’s will was neither susceptible to more than one reasonable interpretation nor uncertain, the court rejected the appellants' alternative position that the deceased’s will was ambiguous. Accordingly, the court affirmed the probate court’s judgment.


With respect to any applicable settlement credit from the appellee’s daughter's settlement with the hospital pursuant to the common law’s one-satisfaction rule, the court concluded a benefits analysis should be conducted pursuant to Utts v. Short. Reversed in part and remanded.
Virlar v. Puente
Courts, Employment, Evidence, Litigation: Personal Injury, Torts
Texas 4th Court of Appeals
February 05, 2020
04-18-00118-CV
Liza A. Rodriguez
Published
The instant appeal arose from a medical malpractice action filed by the appellee against the appellant doctor and the appellant company. A jury found the appellant doctor liable for the appellee’s injuries, and judgment was rendered in favor of the appellee and against the appellant doctor and his employer, the appellant company. The appellate court held that the trial court did not err in excluding the expert testimony of the doctor, or in admitting evidence of the appellant doctor’s loss of privileges and alleged extraneous bad acts. The court held the evidence was legally and factually sufficient to support the jury’s award of loss of future earning capacity in the amount of $880,429.00, but not in the full amount awarded ($888,429.00). The court therefore suggested a remittitur decreasing the award for loss of future earning capacity by $8,000.00. The court affirmed the judgment in part conditioned on a remittitur of damages in the amount of $8,000.00. The court did not disturb any other damages awarded by the jury. The court found no error by the trial court in failing to award periodic payments for future loss of earning capacity under section 74.503(b). However, because the trial court did not order any part of the amount awarded for future medical care expenses to be paid in periodic payments, it abused its discretion under section 74.503(a). With respect to any applicable settlement credit from the appellee’s daughter's settlement with the hospital pursuant to the common law’s one-satisfaction rule, the court concluded a benefits analysis should be conducted pursuant to Utts v. Short, 81 S.W.3d 822 (Tex. 2002). Therefore, the court reversed the judgment in part and remanded the cause.


The relator asserted the trial court abused its discretion by failing to include a provision in its order requiring the RPI to repay the relator if his appeal was successful. The relator cited no authority for the argument. Petition for writ of mandamus denied.
In Re Corey Michael Mansour
Family, Juvenile, Procedure
Texas 4th Court of Appeals
February 05, 2020
04-19-00899-CV
Patricia O. Alvarez
Published
The trial court awarded the real party in interest (RPI) attorney’s fees pending the relator’s appeal of an underlying final judgment in a suit to modify the parent-child relationship. The relator asserted the trial court abused its discretion by doing so, because the issue of whether the RPI was entitled to fees pending appeal had already been decided and was now barred by res judicata, or alternatively, the trial court did not make the fees contingent on relator’s unsuccessful appeal, and the trial court did not order the fees reimbursed if relator’s appeal was successful. The appellate court found that the relator did not challenge whether the appellate fees awarded to the RPI were necessary to preserve and protect the safety and welfare of his children during the pendency of his appeal. Because an unconditional award provided the defending party with the financial resources to file an appellee’s brief without subjecting the children to any financial hardship, the court concluded the relator had not established the trial court abused its discretion by awarding the RPI immediate unconditional attorney’s fees pending relator’s appeal. The relator asserted the trial court abused its discretion by failing to include a provision in its order requiring the RPI to repay the relator if his appeal was successful. The relator cited to no authority for the argument. Accordingly, the court denied relator’s petition for writ of mandamus.


The trial court’s division of community assets was not so grossly disproportionate as to remove it from the realm of a just and right division. Accordingly the judgment was affirmed.
In re the Marriage of Collinsworth
Family, Juvenile, Procedure
Texas 6th Court of Appeals
February 05, 2020
06-19-00083-CV
Scott E. Stevens
Published
The trial court granted the appellee’s petition for divorce from the appellant and awarded her sole managing conservatorship of their children. On appeal, the appellant argued that the trial court erred in awarding the appellee the marital home after finding it to be community property, and in making an unequal disposition of the parties’ community assets, i.e., their retirement accounts and tax refund. The apellate court found that the appellee proved that the home was purchased several years before the marriage. The trial court properly concluded that the appellee sufficiently traced the funds used to acquire the home to her separate property. While the appellant’s name was included on the mortgage and settlement statement as a “borrower,” there was no deed introduced into evidence showing that the property was in his name. The appellant made no claim for reimbursement. The trial court found that the appellant contributed no funds to the acquisition of the separate property home. The trial court properly considered the appellant’s drug use and fault in the breakup of the marriage in awarding the appellee a disproportionate share of community assets. The trial court heard evidence that the appellant was a nurse, considered the cost of repairing the damage the appellant caused when he vandalized the family home, and the appellee’s continued payment of the cost of his health insurance throughout the separation. For those reasons, the appellant’s withdrawal of $15,000.00 from his retirement account, and the Rule 11 Agreement, the trial court awarded each party their own retirement accounts. The trial court’s division of community assets was not so grossly disproportionate as to remove it from the realm of a just and right division. Accordingly the judgment was affirmed.


Factually sufficient evidence supported the jury’s verdict. The trial court did not err in overruling the appellant’s evidentiary objections, and the appellant was not harmed by the denial of his proposed jury instruction. Therefore, the Court of Appeals affirmed the trial court’s judgment.
In re Commitment of Renshaw
Criminal, Evidence, Gov't/Administrative, Procedure
Texas 6th Court of Appeals
February 05, 2020
06-19-00069-CV
Josh Morriss, III
Published
A Wood County jury found, beyond a reasonable doubt, that the appellant was a sexually violent predator. The trial court ordered the appellant committed to supervision and treatment pursuant to Chapter 841 of the Texas Health and Safety Code, titled “Civil Commitment of Sexually Violent Predators.” The appellate court concluded that a rational jury could have found beyond a reasonable doubt that the appellant was a repeat sexually violent offender who suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence. The court did not find that the jury’s verdict reflected a risk of injustice that would compel ordering a new trial, and factually sufficient evidence supported the jury’s verdict that the appellant was a sexually violent predator. The court could not say that the trial court abused its discretion in refusing to find that the probative value of that evidence was substantially outweighed by the danger of unfair prejudice. The trial court could have reasonably concluded that the facts and details related to the appellant’s unadjudicated offenses would be helpful to the jury in weighing his testimony and the experts’ testimony, and in explaining the basis for the experts’ opinions that the appellant suffered from a behavioral abnormality. The trial court did not abuse its discretion by admitting evidence of uncharged offenses. Assuming without deciding that the trial court’s denial of the proposed instruction was erroneous, it was harmless under Rule 44.1 of the Texas Rules of Appellate Procedure. The trial court’s charge instructed the jury that it was required to have a unanimous verdict, and the jury certified on the record that its verdict was unanimous. Accordingly, the court affirmed.


The judge had jurisdiction to determine the counterclaim, as well as the ministerial duty to fix the amount of security to protect the Real Parties in Interest during the proceedings. The judge abused his discretion when he failed to do so. Accordingly, the court denied the relators' petition.
In re Lone Star NGL Pipeline LP
Contracts, Damages, Procedure, Real Property, Torts
Texas 11th Court of Appeals
February 03, 2020
11-20-00010-CV
John M. Bailey
Published
The real party in interest granted the relator an easement on certain real property to construct a pipeline for the transportation of natural gas and natural gas liquids only. Payments for the easement were made to the RPI and to the deceased. The pipeline that was constructed on the easement was part of a pipeline that extended for fifty miles. The relators had the same corporate parent and the relator conveyed the entire pipeline to the second relator co. The second relator intended to use the pipeline to transfer crude oil rather than natural gas and natural gas liquids. The RPIs sued the relator for breach of contract and the relators for trespass, fraudulent inducement, common law and statutory fraud, conspiracy, unjust enrichment, and quantum meruit. The Judge denied the relators’ motion to set security and to abate the injunctive proceedings. The appellate court found that the relators had failed to show that they were entitled to the requested relief. The court agreed with the Real Parties in Interest that there was little authority that addressed whether Chapter 21 required a condemnor to follow the Standard Procedure before it could file an Alternative Pleading under Section 21.017. Because the second relator filed a counterclaim that fell under Section 21.003, the relators were not required to complete the Standard Procedure for condemnation before they requested that the judge set security. The judge had jurisdiction to determine the counterclaim, and a ministerial duty to fix the amount of security to protect the Real Parties in Interest. The judge abused his discretion when he failed to do so. Accordingly, the court denied the relators’ petition for writ of mandamus.


The trial court’s summary judgment for the plaintiff on the breach of contract claim was proper.
Copano Energy, LLC v. Bujnoch
Appellate: Civil, Contracts, Procedure, Real Property, Torts, Wills/Trusts/Probate
The Supreme Court of Texas
January 31, 2020
18-0044
James D Blacklock
Published
The plaintiffs appealed the judgment of the trial court which granted the defendants’ motion for summary judgment in a suit, claiming the various e-mails, taken together, amounted to an enforceable written contract satisfying the statute of frauds. On appeal, the defendants argued that the statute of frauds barred the claims. The Supreme Court noted that the e-mails containing many of the alleged deal’s principal terms were part of a forward-looking request to negotiate a contract. The Supreme Court found that neither those e-mails nor any other writing evidenced the defendant’s agreement to the particular terms stated in the e-mails. The Supreme Court further determined that as a result, there was no written memorandum which was complete within itself in every material detail, as required by the statute of frauds. The Supreme Court concluded that the trial court’s summary judgment for the plaintiff on the breach of contract claim was proper. Accordingly, the judgment of the trial court was reversed.


Under Texas Rule of Civil Procedure 279, the petitioner was required either to obtain a jury finding on waiver or to prove it conclusively.
Energy Transfer Partners, L.P. v. Enter. Products Partners, L.P.
Appellate: Civil, Business, Contracts, Corporations, Damages, Procedure, Torts
The Supreme Court of Texas
January 31, 2020
17-0862
Nathan L. Hecht
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court’s judgment and rendered it for the respondent. The Supreme Court noted that the parties could contract for conditions precedent to preclude the unintentional formation of a partnership under Chapter 152 and that, as a matter of law, they did so. The Supreme Court found that under Texas Rule of Civil Procedure 279, the petitioner was required either to obtain a jury finding on waiver or to prove it conclusively. The Supreme Court further determined that the only record evidence that the petitioner pointed to the parties held themselves out as partners and worked closely together on the project was not relevant to the issue of waiver of definitive, board-approved agreements. The Supreme Court concluded that there was no evidence that the respondent waived the conditions. Accordingly, the judgment of the appellate court was affirmed.


The Supreme Court concluded that the permissibility of such easements, at least under those facts, was an issue best left to the legislature and local governments.
Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n
Appellate: Civil, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
January 31, 2020
17-0736
Jane N. Bland
Published
The petitioner appealed the judgment of the trial court which enforced the respondent’s easement, ruling that the easement burdened the petitioner's property. On appeal, the petitioner asserted waiver and estoppel affirmative defenses, asserting that the restrictive easements that limited private access were void against public policy. The Supreme Court noted that the respondent had standing to sue to enforce the easement. The Supreme Court found that the evidence supported the trial court’s rejection of the petitioner's affirmative defenses. The Supreme Court concluded that the permissibility of such easements, at least under those facts, was an issue best left to the legislature and local governments. Accordingly, the judgment of the trial court was affirmed.


The plaintiff did not contend he could demonstrate the defendant violated section 143.102’s liability standard.
Pruski v. Garcia
Agricultural, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
January 31, 2020
18-0953
James D Blacklock
Published
The defendant appealed the judgment of the trial court which granted summary judgment for the plaintiff on all claims. On appeal, the defendant challenged the appellate court’s affirmation of summary judgment on all claims related to the petitioner’s alleged violation of section 143.102, the highway statute. The Supreme Court noted that the appellate court applied section 143.074, finding that the plaintiff could recover against the defendant for an accident on a state highway without showing the livestock owner knowingly permitted the bull to roam at large. The Supreme Court found that Section 143.102 required a “knowing” mental state as a prerequisite to livestock-owner liability for highway accidents. The Supreme Court concluded that the plaintiff did not contend he could demonstrate the defendant violated section 143.102’s liability standard. Accordingly, the judgment of the trial court was reversed.


The trial court did not abuse its discretion in transferring the case to the parties’ agreed venue.
In re Fox River Real Estate Holdings, Inc.
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
January 31, 2020
18-0913
Eva M. Guzman
Published
The relators appealed the judgment of the trial court which granted the respondents’ motion without substantive comment and transferred venue. On appeal, the relators filed a petition for mandamus relief. The Supreme Court noted that Section 15.020 of the Texas Civil Practice and Remedies Code required enforcement of the parties’ venue-selection agreement not because it was a super mandatory venue provision that superseded Section 65.023(a). The Supreme Court found that Section 65.023(a) did not apply in suits like that where injunctive relief was not the primary and principal relief requested. The Supreme Court concluded that the trial court did not abuse its discretion in transferring the case to the parties’ agreed venue. Accordingly, the court denied the relators’ petition for mandamus relief.


The Medicaid billing claim should have been dismissed, but that the federal claims were properly before the trial court, and therefore, the trial court’s order on the plea to the jurisdiction was correct.
Permiacare v. L.R.H.
Appellate: Civil, Contracts, Gov't/Administrative, Health Care, Procedure
Texas 8th Court of Appeals
January 31, 2020
08-19-00144-CV
Jeff Alley
Published
The State appealed the judgment of the trial court in the plaintiff’s suit claiming that the State failed to follow several mandated statutory and administrative duties, failed to provide services for which the contracting entity had billed Medicaid, and the contracting entity acted in a discriminatory manner in providing services in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The appellate court noted that several of the plaintiff’s ultra vires claims lacked a properly pleaded factual foundation. The appellate court found that the plaintiff was entitled to an opportunity to re-plead, in the appeal from the denial of the entity’s and the official’s plea to the jurisdiction. The appellate court concluded that the Medicaid billing claim should have been dismissed, but that the federal claims were properly before the trial court, and therefore, the trial court’s order on the plea to the jurisdiction was correct. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.


A pension reform that abandoned a more flexible distribution scheme in favor of a more predictable scheme did not violate the constitutional prohibition.
Degan v. The Bd. of Trustees of the Dallas Police & Fire Pension Sys.
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
The Supreme Court of Texas
January 31, 2020
19-0234
John P. Devine
Published
The appellants appealed the judgment of the trial court, challenging as unconstitutional the statutory amendments, which eliminated their ability to request lump-sum distributions from their respective Deferred Retirement Option Plan (DROP) accounts. On appeal, the appellants contended that the funds in DROP were accrued service retirement benefits and that the change to how those funds may be withdrawn effectively reduced or impaired the accrued benefit in violation of the Texas Constitution, article XVI, section 66(d). The Supreme Court noted that while Section 66 modified Texas’s former “gratuity” approach to pension benefits for non-statewide plans by protecting some benefits, Section 66 did not prohibit prospective pension reforms. The Supreme Court found that it did prohibit the reduction or impairment of an accrued service retirement benefit. The Supreme Court concluded that a pension reform that abandoned a more flexible distribution scheme in favor of a more predictable scheme did not violate the constitutional prohibition. Accordingly, the court answered both certified questions negatively.


The defendant failed to demonstrate by a preponderance of the evidence that the plaintiff’s suit to collect attorney’s fees was based on, related to, or in response to the defendant’s exercise of rights protected by the TCPA.
Wendt v. Weinman & Associates, P.C.
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Torts
Texas 3rd Court of Appeals
January 31, 2020
03-19-00036-CV
Gisela D. Triana
Published
The defendant appealed the judgment of the trial court which denied his motion to dismiss the plaintiff’s suit to recover outstanding attorney’s fees, pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the defendant asserted that the trial court erred in denying his motion to dismiss. The appellate court noted that every communication made by a client to his attorney was not a matter of public concern. The appellate court found that without knowing the nature of the communications that served as the basis for the plaintiff’s motion, the defendant failed to carry his burden of showing by a preponderance of the evidence that the plaintiff’s petition was based on, related to, or in response to a communication made in connection with a matter of public concern. The appellate court concluded that the defendant failed to demonstrate by a preponderance of the evidence that the plaintiff’s suit to collect attorney’s fees was based on, related to, or in response to the defendant’s exercise of rights protected by the TCPA. Accordingly, the judgment of the trial court was affirmed.


The relator had not shown that the only decision the trial court could have made was that the engineer was not the relator’s employee or otherwise under relator’s control, and the trial court did abuse its discretion in compelling the deposition of an engineer without a subpoena issued.
In re Total Petrochemicals & Refining USA, Inc., Relator
Constitution, Corporations, Employment, Evidence, Procedure
Texas 14th Court of Appeals
January 30, 2020
14-19-00585-CV
Charles Spain
Published
The relator corporation filed a petition for writ of mandamus in the court. In the petition, the relator corporation asked the court to compel the Honorable presiding judge of the 215th District Court of Harris County to vacate her June 28, 2019 order to the extent that it compelled the deposition of a non party witness without a subpoena having been served on the witness. The appellate court found that by its order compelling the deposition of an engineer without the defendants serving a subpoena on the engineer, the trial court made an implied finding that an engineer was an employee of the relator, or otherwise subject to the relator’s control. The relator had the burden to bring a record establishing that it was entitled to mandamus relief. The relator had not presented a record to show that evidence conclusively established that the engineer was not its employee, that it otherwise had control over an engineer, nor any evidence supported the trial court’s finding that an engineer was relator’s employee or that he was otherwise under relator’s control. The relator had not shown that the only decision the trial court could have made was that the engineer was not the relator’s employee or otherwise under relator’s control, and the trial court did abuse its discretion in compelling the deposition of an engineer without a subpoena having been issued. The relator had not shown that it was entitled to mandamus relief. Thus, the court denied the relator's petition for writ of mandamus.


The trial court abused its discretion because it did not have sufficient information concerning the appellant’s net resources to exercise its discretion. The judgment was affirmed, reversed, and remanded.
In re L.A.-K.
Family, Juvenile, Procedure
Texas 8th Court of Appeals
January 29, 2020
08-18-00066-CV
Gina M. Palafox
Published
The instant appeal was from an order in a suit to modify the parent-child relationship. The appellant father asserted that the trial court abused its discretion by designating the appellee mother as the person with the exclusive right to designate the primary residence of the child, and by ordering the appellant to pay child support and medical child support. The appellant also asserted that the trial court committed procedural errors both before and after entry of the final order from which he appealed. The appellate court observed that the trial court did not render judgment on July 7, 2017. For that reason, Section 156.102 of the Texas Family Code did not apply. In the context of the temporary restraining order, the trial court granted the appellant the relief he requested by quashing the order. As in the case of an expired temporary restraining order, the issue was moot. The trial court abused its discretion because it did not have sufficient information concerning the appellant’s net resources to exercise its discretion and, insofar as it was entitled to exercise its discretion based on the statutory wage and salary presumption, it erred in its application of that discretion. The court held that the trial court abused its discretion by ordering payment of cash medical support. The trial court’s decision to name the appellee as the person with the exclusive right to designate the child’s primary residence was supported by evidence of a substantive and probative character. Nothing in the record supported the appellant’s assertion that the trial court decided not to impose a geographic restriction because it was influenced by, or gave any consideration to, his race, ethnicity, country of origin, or fluency with Spanish. Accordingly, the judgment was affirmed, reversed, and remanded.


The trial court did not abuse its discretion in awarding attorney’s fees when the appellant filed suit in an attempt to enforce an illegal contract, and then attempted to prolong the litigation by filing a sham affidavit. Appellant did not have standing to assert derivative claims. Affirmed.
Winner v. Jarrah
Appellate: Civil, Contracts, Procedure, Torts
Texas 1st Court of Appeals
January 30, 2020
01-19-00115-CV
Gordon Goodman
Published
The instant was an appeal from the trial court’s summary judgment dismissing claims asserted by the appellant individually and derivatively on behalf of the company (co.). The co. was an entity formed by the appellee to own and operate a bar in Houston, Texas. The suit arose from the appellee’s alleged breach of a stock purchase agreement between he and the appellant. The appellant judicially admitted that, under the agreement, the appellee promised to transfer 10% of the co.’s stock to the appellant in exchange for the appellant’s promise to allow the co. to use his company’s liquor license. However, Texas law prohibited the holder of a liquor license from allowing another person to use the license. The trial court ruled that the agreement was void and unenforceable due to illegal consideration, and accordingly dismissed the appellant’s claims. The appellate court found that because the TEX. ALCO. BEV. CODE (TABC) prohibited the holder of liquor license from allowing another person to use the license, TABC Sections 11.05, 109.53, the appellant’s statements further proved that the Stock Purchase Agreement was supported by illegal consideration. Because the illegal portion of the Stock Purchase Agreement was part of the original consideration the appellant paid for the stock, it was not severable from the remainder of the agreement. Given the appellant’s consistent and repeated statement that he promised to allow the co. to use the second co.’s liquor license, and the appellant’s disavowal of that statement immediately after the appellee observed that the promise violated the TABC, the court could not say that the trial court abused its discretion in disregarding the appellant’s amended affidavit under the sham affidavit rule. The Stock Purchase Agreement was void. The appellant did not have standing to assert derivative claims on behalf of the co., as he never became a co. shareholder. The court affirmed.


The trial court’s error in admitting the testimony of multiple outcry witnesses did not have a substantial and injurious effect on the jury’s verdict. Accordingly, the judgment was affirmed.
Gibson v. State
Criminal, Evidence, Juvenile, Procedure
Texas 3rd Court of Appeals
January 29, 2020
03-18-00655-CR
Gisela D. Triana
Published
A jury convicted the appellant of the offense of aggravated sexual assault of a child. The trial court found that the appellant was a habitual offender and sentenced him to life imprisonment without parole. The appellant argued that the trial court abused its discretion in allowing multiple individuals to testify as outcry witnesses to the child’s statements. The State emphasized the child’s testimony in its closing argument. Also admitted into evidence during the child’s testimony was a drawing made by the child showing a male stick figure, which the child identified as the appellant, standing next to the child with what appeared to be an erect penis. A copy of the recording of the child’s forensic interview was admitted into evidence without objection. Thus, the jury heard for itself the same statements to which Wold had testified. Other evidence considered by the jury included a jail call between the appellant and his wife in which the appellant denied that he was “violent” with the child or that he “forced” her to do anything, which the jury could have reasonably construed as an admission that the appellant had done something with the child, but that he did not view it as non-consensual. The court had fair assurance that the trial court’s error in admitting the testimony of multiple outcry witnesses did not have a substantial and injurious effect on the jury’s verdict. Accordingly, the judgment was affirmed.


The trial court announced that it appointed the attorney because the husband's sister reported concerns over the husband’s health and safety during a time that the individual, his guardian, was out of the country. The court modified the trial court's judgment and affirmed.
In the Guardianship of Alford
Appellate: Civil, Family, Procedure
Texas 6th Court of Appeals
January 29, 2020
06-19-00060-CV
Ralph Burgess
Published
The individual was appointed guardian of the person and estate of her husband, an incapacitated person. The trial court appointed the attorney ad litem and requested that he check on the husband’s welfare. The individual challenged the order authorizing payment of the attorney’s fees. The individual filed an objection to the attorney’s appointment on behalf of husband, who refused to speak with the attorney ad litem appointee as he felt he was disrespectful to him in the past and did not communicate well. The appellate court found that the trial court’s docket listed the individual as the applicant in the case. The trial court’s order unambiguously required her to pay the attorney’s fee. The trial court announced that it appointed the attorney because the husband's sister reported concerns over the husband’s health and safety during a time that the individual, his guardian, was out of the country. The trial court also explained that it believed the individual had animosity toward the attorney, purposefully violated the trial court’s order by failing to allow the attorney to see the husband, and increased the attorney’s legal fees by her actions. The attorney’s itemized billing showed that while his paralegal’s work in revising and preparing discovery responses constituted work traditionally done by an attorney, answering and placing telephone calls and uploading documents did not. The charge of $68.00 for 0.8 hours spent by the attorney’s paralegal performing support services was not recoverable as a fee. Finally, the bill for professional services totaled $3,119.00, and the invoice showed that $6.40 was spent in copying expenses, for a total of $3,125.40. The court modified the trial court’s judgment by deleting $68.00 from the attorney fee award, leaving an award in the amount of $3,057.40. Accordingly, the court modified the trial court’s judgment and affirmed the trial court’s judgment.


The appellant failed to meet its burden of raising a fact issue on any of elements of the appellee’s affirmative defense. Because the appellee conclusively established his affirmative defense of no individual liability, he was entitled to summary judgment in his favor. Affirmed.
Valley Forge Motor Co. v. Sifuentes
Appellate: Civil, Contracts, Corporations, Damages, Procedure, Torts
Texas 8th Court of Appeals
January 28, 2020
08-17-00257-CV
Gina M. Palafox
Published
The appellant challenged the trial court’s finding that the appellee conclusively established an affirmative defense of no individual liability pursuant to Section 21.223 of the Texas Business Organizations Code. The appellate court found that given the appellee’s proof of transacting all business on behalf of the corporate entity, he met his evidentiary burden on summary judgment to establish his affirmative defense of no individual liability. Thus, the appellant’s evidence, at most, could arguably be relevant to the third element required by Section 21.223(a), which addressed whether the liability at issue arose from any contractual obligation of the corporation, or any matter relating to or arising from the obligation. The evidence put forth by the appellant failed to raise a fact issue on whether the appellee could properly rely on the statutory protection afforded by Section 21.223. None of the evidence presented by the appellant was relevant to defeating any of the elements addressing whether the co. was a corporation, whether the appellee was properly affiliated with the corporation, whether the appellant was an obligee of the corporation, or whether the appellee was an alter ego of the corporation. Thus, the appellant failed to meet its burden of raising a fact issue on any of the elements of the appellee’s affirmative defense. Because the appellee conclusively established his affirmative defense of no individual liability, he was entitled to summary judgment in his favor. Thus, the trial court’s order granting the appellee’s motion for summary judgment on his affirmative defense was not error. Accordingly, the trial court’s judgment was affirmed.


After a de novo review, the court concluded that the trial court did not err in granting the appellee's motion to dismiss. Thus, the court affirmed the judgment of the trial court.
Pape Partners, Ltd v. DRR Family Props. LP
Constitution, Gov't/Administrative, Procedure
Texas 10th Court of Appeals
January 29, 2020
10-17-00180-CV
Rex D. Davis
Published
The appellants attempted to record their purchase of the water rights with the Texas Commission on Environmental Quality (“TCEQ”). The TCEQ notified the appellee limited partnership and other potentially interested landowners that they might own an interest in the water rights. The appellee filed a change of ownership form, and the TCEQ eventually concluded that the appellee owned a portion of the water rights. The TCEQ changed its records to reflect the appellee's ownership. The appellants moved to reverse the TCEQ’s decision, and the motion was overruled by operation of law. The appellants did not pursue an administrative appeal, but brought the present suit seeking a declaration that it owned all of the water rights in the tract purchased from the individual and the company. The appellants asserted claims against the appellee for trespass to try title – adverse possession and to quiet title. The appellee moved to dismiss the appellants claims against it for lack of subject matter jurisdiction, asserting that the appellants had failed to exhaust their administrative remedies. The trial court granted the appellee's motion. The appellate court found that because the Legislature had vested the TCEQ with the exclusive jurisdiction to determine water rights, the appellants were required to exhaust their administrative remedies before resorting to the trial courts. The legislative scheme gave jurisdiction to the TCEQ to determine water rights did not violate the separation of powers clause in the Texas Constitution. After a de novo review, the court concluded that the trial court did not err in granting the appellee's motion to dismiss. Thus, the court affirmed the judgment.


The discharge of a criminal sentence did not, by itself, discharge the court costs owed by a defendant. After reviewing the mandamus petitions, the State’s response, and the case and statutory authority cited by the State, the individual’s petitions for writ of mandamus were denied.
In re Cain
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
January 29, 2020
10-19-00407-CR
Tom Gray
Published
The complaint in all three proceedings concerned the withdrawal of court costs from the individual’s inmate account. As the Court understood the individual’s complaints, the individual contended that the trial court could not order withholdings to be made from the individual’s inmate account on judgments that had been discharged. The individual specifically asserted that the judgments in those proceedings had each been discharged. The appellate court observed that because the obligation of a convicted person to pay court costs was established by statute, court costs were not part of a defendant's sentence, and the Code of Criminal Procedure provided the means and reasons to declare court costs uncollectable. The discharge of a criminal sentence did not, by itself, discharge the court costs owed by a defendant. After reviewing the mandamus petitions, the State’s response, and the case and statutory authority cited by the State, the individual’s petitions for writ of mandamus were denied.


Accordingly, the court dismissed those appeals for lack of jurisdiction, and the court denied as moot the State’s motion to dismiss, the appellant’s motion to strike the motion to dismiss, and the State’s motion to extend time to file its brief.
Lopez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 28, 2020
14-19-00380-CR
Margaret Poissant
Published
The appellant pleaded guilty to and was convicted of aggravated assault against a public servant, and aggravated assault with a deadly weapon. The trial court sentenced him to 15 years’ imprisonment for each conviction. Despite the trial court’s certification that the appellant waived his right to appeal, the appellant filed a notice of appeal in each case. The appellate court notified the parties that the court would consider dismissal of the appeals on the court's own motion for lack of jurisdiction due to the appellant’s waiver of his right to appeal. The court invited the parties to file further briefing on the jurisdictional issue. No such briefing was received. The State gave consideration for the waiver in the form of waiving its own right to a jury trial. Ex parte Broadway compelled the court to conclude the appellant’s waiver of his right to appeal was valid. Accordingly, the court dismissed those appeals for lack of jurisdiction, and the court denied as moot the State’s motion to dismiss, the appellant’s motion to strike the motion to dismiss, and the State’s motion to extend time to file its brief.


Having concluded that the TCPA’s commercial-speech exemption applied, the court affirmed the trial court’s order denying the motion to dismiss.
Hawkins v. Fox Corporate Hous., LLC
Appellate: Civil, Business, Contracts, Employment, Gov't/Administrative
Texas 1st Court of Appeals
January 28, 2020
01-19-00394-CV
Sarah Beth Landau
Published
The appellee company sued its former employee, the appellant, for breach of a non-compete and a non-disclosure agreement, injunctive relief, and attorney’s fees. The appellant answered and moved to dismiss under the Texas Citizens Participation Act (the “TCPA”), and the trial court denied her motion. In five issues, the appellant challenged the trial court’s order denying her motion to dismiss. The appellate court found that in reviewing the allegations in the parties’ pleadings and recorded evidence in a light favorable to the appellee, the court concluded that the appellant was primarily engaged in the business of selling or leasing goods or services. Viewing the pleadings and TCPA record evidence in a light favorable to the appellee, the court concluded that the appellee established by a preponderance of the evidence that its lawsuit was exempt from the TCPA under the commercial-speech exemption. Because the trial court’s ruling could be affirmed on that basis, the court needed not address the parties’ remaining arguments. Accordingly, having concluded that the TCPA’s commercial-speech exemption applied, the court affirmed the trial court’s order denying the motion to dismiss.


The trial court lacked subject matter jurisdiction over the appellees constitutional inverse condemnation and due process claims. The appellees were not entitled to amend their pleadings.
San Jacinto River Auth. v. Ogletree
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
January 28, 2020
14-18-00043-CV
Frances Bourliot
Published
The appellee homeowners, whose properties allegedly flooded when water was released from Lake in the aftermath of Hurricane Harvey, sued the appellant authority and the Cross-Appellee development Board in trial court. The appellees asserted inverse condemnation claims under the Texas and United States constitutions, as well as claims for violations of procedural and substantive due process rights. The appellant filed a motion to dismiss pursuant to Texas Rule of Civil Procedure 91a and a plea to the jurisdiction, principally asserting governmental immunity. The trial court denied the motion and the plea. The Texas Water Board filed a Rule 91a motion asserting governmental immunity. The trial court granted that motion. In those interlocutory cross-appeals, the appellant challenged the denial of its plea to the jurisdiction, while the appellees challenged the dismissal of their claims against the Cross-Appellee. The appellate court found that the trial court lacked subject matter jurisdiction over the appellees constitutional inverse condemnation and due process claims, and that the appellees were not entitled to amend their pleadings. Thus, the court affirmed the trial court’s order dismissing the claims against the Cross-Appellee for lack of subject matter jurisdiction, reversed the trial court’s order denying the appellant's plea to the jurisdiction, and rendered judgment dismissing the appellees claims against the appellant for lack of subject matter jurisdiction. 


Because the relators had not demonstrated that their remedy by appeal was inadequate, they were not entitled to mandamus relief. Accordingly, the Court denied the petition.
In re Flores
Appellate: Civil, Constitution, Damages, Procedure, Torts
Texas 1st Court of Appeals
January 28, 2020
01-19-00484-CV
Peter Kelly
Published
The instant case was a suit for damages. The real party in interest (RPI) moved to strike the counter-affidavits on the grounds that they were untimely, the doctor was unqualified to furnish a counter affidavit on medical records under Rule 702, the counter-affidavits did not give proper notice under Tex. Civ. Prac. & Rem. Code Section 18.001(f), and the counter-affidavits were unreliable. The relators challenged the trial court’s order granting RPI’s motion to strike the counter-affidavit of the doctor. The relators also filed a motion to stay proceedings in the trial court. The appellate court observed that there was no indication that the relator established it was in danger of losing substantial rights, and neither had the relators in the case. They ware not denied the opportunity to develop the merits of their case. The counter-affidavit and the ruling excluded it could be made part of the record, and an appellate court could correct any error by reversing the trial court’s ruling excluding the counter-affidavit. Because the relators had not demonstrated that their remedy by appeal was inadequate, they were not entitled to mandamus relief. Nothing in section 18.001 prevented parties whose counter-affidavits had been erroneously stricken from assailing the original affidavits and ultimately prevailing at trial. Because the relators simply faced the non-unique burden of having to adjust their trial strategy to accommodate an adverse evidentiary ruling, the court concluded that the relators had not presented a situation involving a “manifest and urgent necessity,” but rather one involving “grievances that may be addressed by other remedies.” Accordingly, the court denied the petition.


However, because dismissal of those claims under the Family Code was clearly prohibited by Rule 91a.1, and the trial court stated no rationale for dismissing them under Rule 13, the court held that the trial court erred in dismissing them. Judgment reversed and remanded.
Guion v. Guion
Family, Juvenile, Procedure
Texas 1st Court of Appeals
January 28, 2020
01-18-00386-CV
Evelyn V. Keyes
Published
In the suit affecting the parent-child relationship (SAPCR), the appellant father petitioned for modification of the sole managing conservatorship of the appellee mother to impose a geographic restriction on her right to designate their child’s primary residence, as well as additional modifications affecting possession and access to the child and transfer of the child’s passport. the appellee filed a motion to dismiss the appellant’s petition, and the trial court granted her motion. In light of the plain language of Family Code section 153.132 and Texas public policy as expressed in sections 153.001(a) and 153.002, the Court concluded that the trial court was authorized, but not obligated, to impose a geographic restriction on the appellee ’s right as sole managing conservator to designate the child’s primary residence. The court agreed with the appellant that the divorce decree’s sole managing conservatorship decision was subject to modification to the extent of changed circumstances. Thus, the trial court’s legal conclusion that “the Court cannot impose a domicile restriction on a Sole Managing Conservator in a subsequent modification action” was incorrect. The trial court did not specifically rule on the additional modification claims in its order dismissing the suit under Texas Rule of Civil Procedure 13. However, because dismissal of those claims under the Family Code was clearly prohibited by Rule 91a.1, and the trial court stated no rationale for dismissing them under Rule 13, the court held that the trial court erred in dismissing them. The trial court should be given an opportunity to reconsider whether to assess attorney’s fees when it rendered a new judgment. Judgment was reversed and remanded.


The trial court could have reasonably rejected the defense’s claim of disparate treatment because the occupations of the two venirepersons were not exactly the same. Accordingly, the trial court's judgment was affirmed.
Granderson v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 28, 2020
14-19-00025-CR
Tracy Christopher
Published
The instant appeal was from a conviction for evading arrest or detention in a motor vehicle. The sole question presented was whether the trial court erred when it denied a challenge under Batson v. Kentucky. The defense pointed out that the appellant was an African American, and that the prosecution had exercised peremptory strikes against three of the four African Americans in the strike zone. The appellate court found that the trial court could have accepted the prosecution’s race-neutral explanation as genuine because, in a pre-trial hearing conducted outside the presence of the venire panel, the defense indicated that the appellant would plead guilty to the charged offense, and asked for the jury to assess his punishment. Because of the different stages, the venirepersons could reasonably be expected to draw on different professional experiences. That background would have been relevant to the current case, which might explain why the prosecution did not strike Venireperson 6, whereas the defense did. The trial court could have reasonably rejected the defense’s claim of disparate treatment because the occupations of the two venirepersons were not exactly the same. Having viewed the record in the light most favorable to the trial court’s ruling, the court concluded that the denial of the Batson challenge was not clearly erroneous. Accordingly, the trial court's judgment was affirmed.


The record indicated the trial court’s frustration, impatience, and even skepticism regarding the ultimate merit of the appellant’s claims. There was no error regarding the appellant's preserved complaints of bias. Judgment affirmed as modified.
Haynes v. Union Pac. R.R. Co.
Appellate: Civil, Employment, Evidence, Procedure
Texas 1st Court of Appeals
January 28, 2020
01-18-00181-CV
Richard Hightower
Published
The appellant was injured as he attempted to leave the Strang Railyard where he worked for the appellee corporation. The appellant sued the appellee under the Federal Employment Labor Act (FELA), and the jury ultimately concluded that the appellee was negligent, determining that the appellee was 35% responsible and the appellant was 65% contributorily negligent regarding his injuries. The appellate court found that the trial court denied the mistrial, but stated that he would reconsider it at the end of the case. The trial court also offered to instruct the jury that if they overheard anything to disregard it, clarifying that they were the judge of the facts. The record was unclear regarding what comments the judge made during the bench conference and what comments, if any, members of the jury heard. Accounts of the substance of the comments and their audibility were contradictory. The appellant had failed to bring forward a record clearly showing what comments, if any, the jury heard. The trial court indicated the trial court’s frustration, impatience, and even skepticism regarding the ultimate merit of the appellant’s claims. There was no error regarding the appellant’s preserved complaints of bias. Therefore, the court needed not undertake a cumulative-harm analysis. The court sustained the appellee’s request that the court modified the judgment to reduce the lost wages award by $14,648.40 as an offset to account for the taxes paid. The court affirmed the judgment as modified.


The failure of appellant’s appointed attorney to request that the judgment be reformed to correct clerical errors indicated that she did not perform a professional evaluation of the record. The court removed the appeal from the submission docket and abated the appeal.
Crowe v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
January 28, 2020
05-18-01544-CR
Leslie Lester Osborne
Published
The appellant entered a not guilty plea before the trial court to the charge of intentionally and knowingly causing serious bodily injury to a child. The trial court found the appellant guilty of the lesser included offense of recklessly causing serious bodily injury to a child and, following a hearing on punishment, sentenced the appellant to twenty years’ imprisonment. The appellate court observed that the “Terms of Plea Bargain” field stated “Open Plea”; yet it was clear that whether the appellant entered a plea of not guilty and no plea bargain, either as to guilt/innocence or punishment, was operative. The failure of appellant’s appointed attorney to request that the judgment be reformed to correct those clerical errors further indicated that she did not perform a professional evaluation of the record. Accordingly, the court removed the appeal from the submission docket and abated the appeal for the trial court to comply with the dictate of the opinion.


The appellate court observed that the appellant did not argue that she was not required to show prejudice, and relied on McCoy only to show that her counsel’s performance was deficient. The court agreed that it was. The court reversed the judgment of the trial court and remanded.
Harrison v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 28, 2020
14-18-00372-CR
Frances Bourliot
Published
The appellant challenged from her conviction for felony injury to a child by omission and tampering with evidence. As a result of a plea agreement, the appellant pleaded no contest to injury to a child, and guilty to tampering with evidence without an agreed recommendation from the State on punishment. The trial court sentenced appellant to the maximum punishment for injury to a child, 20 years in prison, and two years in prison for tampering with evidence. The appellate court observed that the appellant did not argue that she was not required to show prejudice, and relied on McCoy only to show that her counsel’s performance was deficient. The court agreed that it was. Because appellant contended that she suffered prejudice by her counsel’s deficiency, the court would analyze whether she was correct. The proper remedy was to give the appellant an opportunity to reject her plea agreement and opt for a jury trial. Accordingly, the court reversed the judgment of the trial court and remanded.


There was no issue of material fact concerning the plaintiff’s claim of negligence and summary judgment was properly rendered in favor of the defendant.
Murray v. Nabors Well Serv.
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts, Transportation
Texas 8th Court of Appeals
January 24, 2020
08-18-00187-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which ruled against him in a suit alleging negligence. On appeal, the plaintiff asserted that the defendant was negligent per se for violations of Sections 545.301(a) and 545.303(a) of the Texas Transportation Code. The appellate court noted that there was no legal basis to impute a duty to warn on a bystander who did not create the condition that contributed to the accident, did not exacerbate that condition, did not agree to assume a duty owed by the person who did create the condition, and in no way caused or contributed to causing the accident that forms the basis of the suit. The appellate court found that the defendant did not owe a duty to warn the public about the presence of the driver’s truck or trailer on the shoulder. The appellate court concluded that there was no issue of material fact concerning the plaintiff’s claim of negligence and summary judgment was properly rendered in favor of the defendant. Accordingly, the judgment of the trial court was affirmed.


Since all of the respondent’s claims were premised on an erroneous interpretation of the wife’s will, the petitioners were entitled to judgment as a matter of law.
ConocoPhillips Co. v. Ramirez
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Wills/Trusts/Probate
The Supreme Court of Texas
January 24, 2020
17-0822
Nathan L. Hecht
Published
The petitioners appealed the judgment of the trial court in a suit where the deceased made a will, which made identical dispositions of his limited surface estate and broader mineral estate but in separate paragraphs. On appeal, the Supreme Court was asked to consider whether a devise of all right, title and interest in and to the first individual referred only to a surface estate by that name as understood by the testatrix and beneficiaries at the time the will was made or also included the mineral estate. The Supreme Court noted that based on its rulings on several motions for summary judgment, and following a bench trial on attorney fees, the trial court signed a final judgment in favor of the first children and the second individual, awarding them each damages, prejudgment interest, a per diem for a span of about 80 days preceding the trial court’s signing of the final judgment, and attorney fees. The Supreme Court found that the evidence established that the wife, who shared ownership of the first individual surface with her son, gave him her interest in the surface for life, but gave her interest in the minerals in the family estate equally to her three children, who already had equal interests. The Supreme Court concluded that because all of the respondent’s claims were premised on an erroneous interpretation of the wife’s will, the petitioners were entitled to judgment as a matter of law. Accordingly, the judgment of the trial court was reversed.


The trial court retained jurisdiction to hold the adjudication hearing and acted within its discretion.
Porras v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
January 24, 2020
05-18-01108-CR
Lana Myers
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of aggravated sexual assault of a child under the age of fourteen. On appeal, the defendant challenged the trial court’s sentence to eighteen years’ imprisonment. The appellate court noted that there was nothing in the statutory provisions that deprived a court of jurisdiction to revoke a defendant’s community supervision simply because the revocation hearing was held after the maximum allowable period of community supervision for the offense had expired. The appellate court found that according to other provisions in the Code of Criminal Procedure, a trial court retained jurisdiction to hold a hearing on a State’s motion and to revoke, continue, or modify community supervision regardless of whether the period of community supervision imposed on the defendant had expired if the attorney representing the State filed a motion to revoke community supervision and a capias was issued for the arrest of the defendant before the expiration of the community supervision period. The appellate court concluded that the trial court accepted the defendant’s plea of true to the allegations in the State’s motion to adjudicate, found the allegations in the motion true, found him guilty, and sentenced him to eighteen years’ imprisonment. The appellate court further concluded that the trial court retained jurisdiction to hold the adjudication hearing and acted within its discretion. Accordingly, the judgment of the trial court was affirmed.


The broad-form submission was not feasible, given the parties’ disagreement as to whether the contract required the plaintiff to prove more than one distinct element to establish the defendant’s liability for the loss.
Zurich Am. Ins. Co. v. Coastal Cargo of Tex., Inc.
Appellate: Civil, Contracts, Corporations, Damages, Insurance, Procedure, Torts
Texas 1st Court of Appeals
January 23, 2020
01-18-01107-CV
Gordon Goodman
Published
The plaintiff appealed the judgment of the trial court which ruled in the defendant’s favor. On appeal, the plaintiff alleged that the piping was damaged when it was in the defendant’s custody and that the risk-of-loss provision in the contract between the parties made the defendant liable for the damaged piping and the plaintiff’s payment. The appellate court noted that the plaintiff’s brief was not a model of precision, but it left no doubt that the plaintiff’s complaint concerned the trial court’s jury instruction as to what it had to prove to show a breach of the risk-of-loss provision. The appellate court found that the provisions identified matters that were within the defendant’s control, but they were not exhaustive. The appellate court concluded that the broad-form submission was not feasible, given the parties’ disagreement as to whether the contract required the plaintiff to prove more than one distinct element to establish the defendant’s liability for the loss. Accordingly, the judgment of the trial court was reversed and remanded.


There were multiple record references to several attempts to deal with the thefts and trespassers at the property.
Meyers v. 8007 Burnet Holdings, LLC
Appellate: Civil, Constitution, Damages, Procedure, Real Property, Torts, Wills/Trusts/Probate
Texas 8th Court of Appeals
January 22, 2020
08-19-00108-CV
Jeff Alley
Published
The Trust appealed the judgment of the trial court which entered a judgment that the Trust take nothing. The appellate court noted that the party explicitly objected to the key term in the question as given and then called the trial court’s attention to its requested question that used the correct date. The appellate court found that given the importance of the date to the statute of repose defense, there was little doubt the trial court would have been aware of the significance of the date. The appellate court further found legally sufficient evidence to support the jury’s verdict, and by necessity did not find that the Trust proved the existence of a public nuisance as a matter of law. The appellate court concluded that there were multiple record references to several attempts to deal with the thefts and trespassers at the property. Accordingly, the judgment of the trial court was affirmed.  


Viewing the evidence in the light most favorable to the verdict, the evidence was legally sufficient to support the defendant’s conviction for aggregate theft in the amount of $100,000 or more.
Patterson v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
January 23, 2020
13-18-00030-CR
Gregory T. Perkes
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder, a first-degree felony, aggregate theft of $100,000 or more but less than $200,000 from a non-profit organization, a first-degree felony, misapplication of fiduciary property valued at $20,000 or more but less than $100,000, a third-degree felony, and attempted theft of $200,000 or more, a second-degree felony. On appeal, the defendant challenged the automatic life sentence for her capital murder conviction. The appellate court noted that the jury had sufficient evidence from which to conclude beyond a reasonable doubt that the defendant intentionally and knowingly solicited, encouraged, directed, aided, or attempted to aid co-defendant in the commission of the victim's murder for remuneration. The appellate court found that it presumed the jury followed the trial court’s instruction in the absence of evidence to the contrary. The appellate court concluded that viewing the evidence in the light most favorable to the verdict, the evidence was legally sufficient to support the defendant’s conviction for aggregate theft in the amount of $100,000 or more. Accordingly, the judgment of the trial court was affirmed.


The trial court did not abuse its discretion in finding that the sibling had been afforded a reasonable opportunity to conduct discovery or was not unfairly prejudiced without additional discovery.
In re Estate of Grogan
Appellate: Civil, Discovery, Employment, Procedure, Real Property, Wills/Trusts/Probate
Texas 6th Court of Appeals
January 23, 2020
06-19-00039-CV
Josh Morriss, III
Published
The petitioners appealed the judgment of the trial court, contesting the summary judgment upholding the probate in the respondent’s favor. The appellate court noted that at best, the evidence showed that the deceased had promised land to others, told others that the respondent was only getting a portion of his estate, and told the neighbor that he had made a new will. The appellate court found that there was, in the record, no evidence of personal knowledge of the existence of a will executed after the previous will, or of any statement from which such inference could be drawn. The appellate court concluded that the trial court did not abuse its discretion in finding that the sibling had been afforded a reasonable opportunity to conduct discovery or was not unfairly prejudiced without additional discovery. Accordingly, the judgment of the trial court was affirmed.


The trial court treated the married couple like any other married couple who separated after having a child, and in doing so, the trial court did not abuse its discretion.
Treto v. Treto
Appellate: Civil, Family, Juvenile, Procedure
Texas 13th Court of Appeals
January 23, 2020
13-18-00219-CV
Gina M. Benavides
Published
The appellant appealed the judgment of the trial court which entered a final divorce decree from the appellee that established the appellant as a parental conservator and ordered her to pay child support. On appeal, the appellant argued that the trial court erred by so ruling when she had no biological relationship to the child. The appellate court noted that the former policy that allowed men who fathered children outside of marriage to escape support of their children was held to violate the equal protection clause. The appellate court found that the Texas policy changed to recognize that all children deserved to be supported by their parents. The appellate court further found that the trial court gave effect to the Texas Family Code presumption that a child born of the marriage was the child of the mother’s spouse pursuant to Sections 160.106 and 160.204(a)(1). The appellate court concluded that the trial court treated the married couple like any other married couple who separated after having a child, and in doing so, the trial court did not abuse its discretion. Accordingly, the judgment of the trial court was affirmed.


The petitioners bore the burden of responding with evidence sufficient to create a fact question regarding their standing to contest the will.
In re Estate of Burns
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Torts, Wills/Trusts/Probate
Texas 4th Court of Appeals
January 22, 2020
04-19-00284-CV
Sandee Bryan Marion
Published
The petitioners appealed the judgment of the trial court which granted the respondent letters of administration and appointed her administratrix of the deceased’s estate. On appeal, the petitioners sought declaratory judgment. The respondent asserted that because all gifts to the late sister failed due to her predeceasing the deceased, the petitioners were not persons interested in the estate with standing to assert claims in the probate proceeding. The appellate court noted that because the will did not designate an alternate residuary beneficiary, the specific gifts to the late sister and the residuary estate passed to the deceased’s heirs rather than to the beneficiaries of and successors to the late sister’s estate. The appellate court found that there was no language within the four corners of the will compelling a different result, nor was there any relevant ambiguity in the will. The appellate court concluded that the petitioners bore the burden of responding with evidence sufficient to create a fact question regarding their standing to contest the will. Accordingly, the judgment of the trial court was affirmed.


The appellate court found that the portion of the time payment fee challenged by the defendant was facially unconstitutional.
Ovalle v. State
Constitution, Criminal, Evidence, Procedure
Texas 5th Court of Appeals
January 22, 2020
05-19-00136-CR
Amanda L. Reichek
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault with a deadly weapon. On appeal, the defendant challenged the trial court’s conviction. The appellate court agreed, and the State did not dispute, that the judgment should be reformed to show the defendant did not plead guilty with the benefit of a plea bargain agreement. The appellate court found that the portion of the time payment fee challenged by the defendant was facially unconstitutional. The appellate court concluded that it must modify the trial court’s judgment to reflect that the defendant entered an open plea of guilty and to delete a portion of the trial court costs. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that since the trial court erred in finding that an ORRI was owed to the plaintiff based upon production from the A interval of the formation, the trial court erred in awarding a monetary recovery in favor of the second corporation.
Jones Energy Inc. v. PIMA Oil & Gas L.L.C.
Appellate: Civil, Contracts, Corporations, Gov't/Administrative, Oil, Gas, & Mineral, Procedure, Real Property
Texas 7th Court of Appeals
January 16, 2020
07-17-00456-CV
Patrick A. Pirtle
Published
The defendants appealed the judgment of the trial court which ruled in favor of the plaintiff in a suit, alleging that the defendant, as operator of the well had failed to properly account to the plaintiff for its overriding royalty interest (ORRI) acquired by virtue of that assignment. The appellate court noted that the trial court erred in finding that the plaintiff’s ORRI burdened production from the interval of the formation. The appellate court found that the trial court erred in finding that the “exception language” found in the assignment did not apply to production from the horizontal well, to the extent such production was from the A interval. The appellate court concluded that since the trial court erred in finding that an ORRI was owed to the plaintiff based upon production from the A interval of the formation, the trial court erred in awarding a monetary recovery in favor of the second corporation. Accordingly, the judgment of the trial court was reversed.


The plaintiff’s pleadings and evidence created a fact issue as to whether she paid for use of the walkway where she was injured and whether the City had constructive knowledge of the alleged defect.
The City of Fort Worth v. Posey
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 2nd Court of Appeals
January 16, 2020
02-19-00351-CV
J. Wade Birdwell
Published
The City appealed the judgment of the trial court which denied its plea to the jurisdiction regarding the plaintiff’s premises liability claim. On appeal, the appellate court was asked to consider whether the plaintiff paid for use of the City’s premises. The appellate court noted that taking the evidence as true and indulging every reasonable inference in the plaintiff’s favor, the record showed that the pipe fitting was present for at least a year, that the City must have known about the construction of the pipe fitting and probably contracted for it, that the City’s employees’ regular proximity to the condition gave them ample opportunity to discover any hazard it posed, and that any hazard was a conspicuous one. The appellate court found that the evidence created a fact issue as to whether the City was constructively aware of the tripping hazard. The appellate court concluded that the plaintiff’s pleadings and evidence created a fact issue as to whether she paid for use of the walkway where she was injured and whether the City had constructive knowledge of the alleged defect. Accordingly, the judgment of the trial court was affirmed.


The appellant made no representations in the trial court or otherwise of record that he was the child’s father, that he admitted his paternity, or that he opposed termination of rights he may have to the child, the trial court had legally and factually sufficient evidence to terminate.
In re E.O.
Appellate: Civil, Constitution, Family, Juvenile, Procedure
Texas 8th Court of Appeals
January 17, 2020
08-19-00261-CV
Gina M. Palafox
Published
The appellants appealed the judgment of the trial court which terminated their parental rights to the child. The appellate court noted that given that the appellant made no representations in the trial court or otherwise of record that he was the child’s father, that he admitted his paternity, or that he opposed termination of rights he may have to the child, the trial court had legally and factually sufficient evidence to support its determination under Subsection 161.002(b)(1) that the appellant did not respond by timely filing an admission of paternity or a counterclaim for paternity under Chapter 160 of the Texas Family Code. The appellate court found that, in the event the mother advised appointed counsel that she wished to challenge the court's decision by filing a petition for review, counsel’s obligations could be satisfied by filing a petition for review that satisfied the standards for an Anders brief. Accordingly, the judgment of the trial court was affirmed.


Under the applicable standards of review, the evidence was legally and factually sufficient to support the trial court’s finding that termination of the parents’ parental rights was in the children’s best interest.
In re V.A.
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
January 17, 2020
14-19-00590-CV
Meagan Hassan
Published
The parents appealed the judgment of the trial court which terminated the parental rights of the parents with respect to their five children and appointed the Department to be the children’s permanent managing conservator. On appeal, the parents contended the evidence was legally and factually insufficient to support those statutory findings, as well as the trial court’s finding that termination of their parental rights was in the children’s best interest. The appellate court noted that the trial court found termination of the mother's rights was proper under subsections D and O of Family Code Section 161.001(b)(1), and the father’s, under subsections E, O, and P. The appellate court found that the evidence was legally and factually sufficient to support the trial court’s finding that the father endangered the children. The appellate court concluded that, under the applicable standards of review, the evidence was legally and factually sufficient to support the trial court’s finding that termination of the parents’ parental rights was in the children’s best interest. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.


The appellate court found that there was no statute authorizing an interlocutory appeal from an order granting a TCPA motion to dismiss.
El-Saleh v. Aldirawi
Appellate: Civil, Gov't/Administrative, Procedure
Texas 10th Court of Appeals
January 15, 2020
10-19-00316-CV
Rex D. Davis
Published
The defendants appealed the judgment of the trial court which granted the plaintiff’s motion to dismiss the counterclaim filed by them under the Texas Citizens Participation Act (TCPA). On appeal, the plaintiff filed a motion to dismiss the appeal for lack of jurisdiction, asserting that the order being appealed was a non-appealable interlocutory order. The appellate court noted that Section 51.014(a)(12) of the Civil Practice and Remedies Code authorized an interlocutory appeal from an order denying a motion to dismiss filed under Section 27.003 of the TCPA. The appellate court found that there was no statute authorizing an interlocutory appeal from an order granting a TCPA motion to dismiss. The appellate court concluded that the defendants’ argument regarding the statutory construction of the TCPA was not persuasive. Accordingly, the judgment of the trial court was affirmed.


The defendant suffered some harm from the denial of his request for a jury instruction.
Wade v. State
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
January 16, 2020
03-18-00712-CR
Thomas J. Baker
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault and sentenced him to five years imprisonment and that he be placed on community supervision. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court noted that more than a scintilla of evidence was presented during trial that negated the greater offense of aggravated assault by causing serious bodily injury and raised the lesser offense of assault by causing bodily injury. The appellate court found that the defendant’s sentence was longer than the maximum sentence allowed for simple assault, Tex. Penal Code Section 22.01(b), which was, generally speaking, “confinement in jail for a term not to exceed one year.” The appellate court concluded that the defendant suffered some harm from the denial of his request for a jury instruction. Accordingly, the judgment of the trial court was remanded for a new trial.


The appellate court concluded that by filing their amended petition, the plaintiff dismissed and abandoned their claims against the defendant and waived any error in the trial court’s order granting the defendant’s motion to dismiss.
Cont’l Alloys & Services (Del.) LLC v. Yangzhou Chengde Steel Pipe Co., Ltd.
Appellate: Civil, Contracts, Corporations, Procedure, Torts
Texas 14th Court of Appeals
January 16, 2020
14-18-00127-CV
Kem Thompson Frost
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion to dismiss all claims against the defendant based on an arbitration provision in the contract between the parties that bought the steel pipe. On appeal, the plaintiff challenged the trial court’s grant. The appellate court noted that the plaintiff’s request for findings and conclusions extended the deadline to file a notice of appeal, and the plaintiff timely filed their notice of appeal. The appellate court found that the plaintiff did not show that the trial court erred in concluding that the trial court could not exercise personal jurisdiction over the defendant based on either specific or general jurisdiction. The appellate court concluded that by filing their amended petition, the plaintiff dismissed and abandoned their claims against the defendant and waived any error in the trial court’s order granting the defendant’s motion to dismiss. Accordingly, the judgment of the trial court was affirmed. 


The appellees’ motion to deny modification based on the appellant’s alleged failure to identify a material and substantial change in circumstances was not a proper mechanism for dismissal of his claims
Nellis v. Haynie
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure
Texas 1st Court of Appeals
January 14, 2020
01-18-00736-CV
Evelyn V. Keyes
Published
In the following suit affecting the parent-child relationship, the appellant appealed the trial court’s order dismissing his petition to modify conservatorship, possession and access, and child support. The appellate Court concluded that the appellees’ motion to deny modification based on the appellant’s alleged failure to identify a material and substantial change in circumstances was not a proper mechanism for dismissal of his claims. Further, the record in the case, however, did not indicate that the parties complied with the summary judgment procedures set forth in the Texas Rules of Civil Procedure. The appellees did not attach affidavits or evidence to their motion, the appellant did not file a response, and witnesses were sworn in to testify at the start of the hearing on the motion. Lastly, the trial court was not authorized under the Rules of Civil Procedure or the Family Code to dismiss the appellant’s modification petition on the ground that there had been no material or substantial change in circumstances of a party to the suit without affording the appellant the opportunity to present his evidence through an evidentiary hearing. Accordingly, the judgment was reversed and remanded.


The party chairman had a ministerial duty to declare a potential candidate ineligible for the office of county commissioner, as that potential candidate was not registered to vote in the precinct where the office was held
In re Walker
Constitution, Election, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
January 13, 2020
14-20-00009-CV
Per Curiam
Published
The relator held the office of County Commissioner for Precinct 3 of Grimes County, Texas. She was a candidate for re-election to that office in the March 3, 2020 Democratic Party Primary Election. On January 6, 2020, relator filed a petition for writ of mandamus asked the appellate Court to compel Grimes County Democratic Party Chairman (party chairman) to declare another potential candidate ineligible as a candidate for the office of County Commissioner Precinct 3 for Grimes County, Texas because that individual was not a registered voter in Precinct 3 on the December 9, 2019 deadline for filing his application for a place on the ballot, as required by section 141.001(a)(6) of the Election Code. See Tex. Elec. Code Ann. Section 141.001(a)(6) (Supp.). The appellate Court held that relator presented the party chairman with public records showing that the individual did not give notice of his change of address and register to vote in Precinct 3 until December 9, 2019. The individual’s registration did not become effective until 30 days later, January 8, 2020. The Court agreed with the reasoning and the decision in the In re Perez, 508 S.W.3d 500 (Tex. App.—El Paso 2016, orig. proceeding) opinion. Because the public records showed that the individual was not effectively registered to vote in Precinct 3 on the December 9, 2019 deadline for filing his application for a place on the ballot, the party chairman had a ministerial duty to declare the individual ineligible as a candidate for the office of County Commissioner Precinct 3 for Grimes County, Texas. Accordingly, the Court conditionally granted relief.


Because the State’s information tracked the statutory language and set forth each and every element the State was required to prove at trial, the trial court did not err in overruling the appellant’s motion to quash.
Becker-Ross v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
January 13, 2020
06-19-00108-CR
Ralph Burgess
Published
A jury found the appellant guilty of three counts of abuse of official capacity, all Class A misdemeanors. The trial court imposed jury-recommended community supervision and ordered her to pay a $1,000.00 fine and two $500.00 fines as a term and condition of her community supervision. The appellate court noted that the appellant argued that the information did not provide adequate notice since it did not allege how she intended to benefit from the imposition of a traffic-offense quota. Further, the allegation that the appellant violated Section 720.002 of the Texas Transportation Code was not consistent with innocent conduct. The appellate court found that the State’s information tracked the statutory language and set forth each and every element the State was required to prove at trial. Lastly, the court found that the State’s information was sufficient to allege that the appellant committed the offenses of abuse of official capacity. Thus, because the trial court did not err in overruling the appellant’s motion to quash. Accordingly, the judgment was affirmed.


The appellate court concluded that the father had not sustained his appellate burden of demonstrating reversible error.
In re A.J.P.
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure
Texas 8th Court of Appeals
January 10, 2020
08-17-00247-CV
Gina M. Palafox
Published
The father appealed the judgment of the trial court which entered the enforcement order, contending that it was void because he agreed to it under duress. The appellate court noted that the father did not explain why he did not present and preserve his own testimony, either at the enforcement hearing or on motion for new trial, to establish the existence and effect of those alleged threats, and to request a ruling from the trial court as required to preserve error. The appellate court found that the father had not provided the court with a record establishing he met the appellate prerequisite of preserving error, if any, or which otherwise contained evidence to substantiate his claim of duress, and thus the court were precluded from considering as evidence the unsupported statements contained in his briefs. The appellate court concluded that the father had not sustained his appellate burden of demonstrating reversible error. Accordingly, the judgment of the trial court was affirmed.


The Emergency Services lacked standing to request declaratory relief regarding the County’s actions taken pursuant to Section 26.05(c) of the Texas Tax Code.
El Paso Cnty. v. El Paso Cnty. Emergency Services Dist. No. 1
Appellate: Civil, Constitution, Damages, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
January 08, 2020
08-19-00105-CV
Yvonne T. Rodriguez
Published
The County appealed the judgment of the trial court which denied its plea to the jurisdiction, alleging that the Emergency Services failed to sufficiently plead their request for declaratory judgment against the County under the Uniform Declaratory Judgment Act (UDJA) to waive the County’s immunity from suit. The appellate court noted that the trial court erred in denying the County’s plea to the jurisdiction because the Emergency Services had failed to adequately plead or prove the existence of subject-matter jurisdiction. The appellate court found that the Emergency Services’ request for declaratory relief regarding the construction and/or interpretation of Texas Health and Safety Code 775(K) was insufficient to waive the County’s immunity. The appellate court concluded that the Emergency Services lacked standing to request declaratory relief regarding the County’s actions taken pursuant to Section 26.05(c) of the Texas Tax Code. Accordingly, the judgment of the trial court was reversed.


The trial court had a reasonable evidentiary basis to find that the search warrant permitting a blood draw was void because it was founded on an unsworn affidavit.
State v. Hodges
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
January 08, 2020
07-19-00237-CR
Brian Quinn
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to suppress evidence involuntary obtained upon execution of a warrant permitting a blood draw. On appeal, the State asked the appellate court if an affidavit was an affidavit when no one administered an oath to the affiant who signed it. The appellate court noted that one could question the credibility of the officer’s testimony about believing he was under oath while at the same time believing that an oath was unnecessary. The appellate court found that resolution of those credibility issues fell within the bailiwick of the trial court, and, in the trial court granting the motion to suppress, it would be appropriate to imply that the trial court doubted the veracity of the officers’ testimony. The appellate court concluded that the trial court had a reasonable evidentiary basis to find that the search warrant permitting a blood draw was void because it was founded on an unsworn affidavit. Accordingly, the judgment of the trial court was affirmed.


Since the deed unambiguously reserved the royalty interest, the trial court erroneously granted a partial summary judgment in favor of the heirs and awarded attorney’s fees, among other relief.
WTX Fund, LLC v. Brown
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Procedure, Real Property
Texas 8th Court of Appeals
January 08, 2020
08-17-00104-CV
Gina M. Palafox
Published
The appellant appealed the judgment of the trial court which ruled on cross motions for summary judgment. On appeal, the appellate court was asked to interpret a mineral deed to determine whether the grantors conveyed their entire mineral interest without reservation, or instead, reserved from the conveyance at least one incident of mineral ownership the royalty interest either in whole or in fractional share. The appellate court noted that the trial court erred in granting the heirs’ motion for partial summary judgment, while denying the appellant’s cross motion for partial summary judgment. The appellate court found that the trial court’s discretion was subject to the requirements that any fees awarded be reasonable and necessary, which were matters of fact, and to the additional requirements that fees be equitable and just, which were matters of law. The appellate court concluded that since the deed unambiguously reserved the royalty interest, the trial court erroneously granted a partial summary judgment in favor of the heirs and awarded attorney’s fees, among other relief. Accordingly, the judgment of the trial court was reversed. 


The trial court erred in concluding there was no reasonable suspicion to stop the defendant for a violation of § 545.060(a) of the Texas Transportation Code.
State v. Meras
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
January 08, 2020
10-18-00345-CR
Tom Gray
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to suppress evidence after he was indicted for possession of a controlled substance. On appeal, the State argued that one could violate the statute by failing to stay within a lane, as it contended the defendant did, regardless of whether anything unsafe occurred. The appellate court agreed that it was an independent offense to fail to remain entirely within a marked lane of traffic when it was otherwise practical to do so, regardless of whether the deviation from the marked lane was, under the particular circumstances, unsafe. The appellate court found that the trial court’s conclusion that the defendant’s failure to drive as nearly as practical entirely within a single lane was not unsafe, and thus, there was no reasonable suspicion to stop the defendant for a violation of the statue was not correct under any applicable theory of law. The appellate court concluded that the trial court erred in concluding there was no reasonable suspicion to stop the defendant for a violation of § 545.060(a) of the Texas Transportation Code. 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 when it ruled that the plaintiff’s claim was barred.
W. Tex. LTC Partners, Inc. v. Collier
Appellate: Civil, Contracts, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
January 09, 2020
14-18-00282-CV
Jerry Zimmerer
Published
The plaintiff appealed the judgment of the trial court which rendered a take-nothing judgment in favor of the Estate following a bench trial. On appeal, the plaintiff sought to recover amounts it alleged were owed for nursing home care the deceased received prior to his death. The appellate court noted that because the court must construe statutes to harmonize them with other relevant laws whenever possible, the separation of the guardianship and probate sections into two different titles of the Estates Code did not dictate the court follow the plaintiff’s proffered construction. The plaintiff further argued that Estates Code section 1153.004 did not apply because Estates Code section 355.061(a) did not list this section as an exception to Estates Code section 355.001. The appellate court found that the three exceptions listed, Estates Code sections 355.060, 355.064, and 355.201(b), all addressed the effect of a failure to take an action only after a probate estate had been commenced. The appellate court concluded that the trial court did not err when it ruled that the plaintiff’s claim was barred. Accordingly, the judgment of the trial court was affirmed.


Chapter 38’s judicial notice and presumption provisions applied so that the trial court was not required to receive further evidence, and thus, legally sufficient evidence supported the trial court’s award of attorney’s fees.
Great Am. Lloyds Ins. Co. v. Vines-Herrin Custom Homes, L.L.C.
ADR, Appellate: Civil, Contracts, Corporations, Damages, Insurance, Procedure, Torts
Texas 5th Court of Appeals
January 09, 2020
05-18-00337-CV
Leslie Lester Osborne
Published
The appellants appealed the judgment of the trial court which ruled in the appellees’ favor in the amount of the arbitrator’s award against both of the insurers, jointly and severally. On remand, the trial court rendered its second amended final judgment in favor of the appellees. The appellate court noted that there was legally and factually sufficient evidence to support the trial court’s allocation of damages in its judgment. The appellate court found that the appellees offered evidence that damages occurred during each policy period and evidence of the total awarded by the arbitrator to compensate the appellee for those damages. The appellate court further found that the trial court allocated the total loss on a pro-rata basis, allocating a portion of indemnification for its single policy period. The appellate court concluded that Chapter 38’s judicial notice and presumption provisions applied so that the trial court was not required to receive further evidence, and thus, legally sufficient evidence supported the trial court’s award of attorney’s fees. Accordingly, the judgment of the trial court was affirmed.    


The appellee should have seen the error, which was apparent on the face of the record, and amended the return before moving for default judgment, by allowing the return to stand uncorrected, the appellee failed to meet its burden
Martell v. Texas Concrete Enter. Readymix, Inc.
Procedure
Texas 14th Court of Appeals
January 07, 2020
14-18-00764-CV
Tracy Christopher
Published
The appellee company filed a suit on a sworn account against the appellant on January 2, 2018. The clerk of the court issued the citation the same day. Private process server served the appellant and wrote by hand the underlined portions of the return of service. The appellant did not answer the suit or respond to the requests for disclosures and requests for admission included in the petition. In April 2018, the appellee moved for default judgment based on the deemed admissions. The trial court granted the motion and awarded the appellee its requested damages, attorneys’ fees, interest, and costs. About four months later, the appellant filed the restricted appeal and superseded the judgment. The appellate court observed that the movant for default judgment bears the burden to ensure strict compliance with Texas Rule of Civil Procedure 107 governing the return of service. The appellee should have seen the error, which was apparent on the face of the record, and amended the return before moving for default judgment. By allowing the return to stand uncorrected, the appellee failed to meet its burden. Accordingly, the court reversed the judgment and remanded the case.


The trial court could not have permissibly denied the Texas Citizens Participation Act motion to dismiss on grounds that limitations was tolled.
TV Azteca v. Ruiz
Appellate: Civil, Business, Constitution, Contracts, Procedure, Torts
Texas 13th Court of Appeals
January 09, 2020
13-18-00287-CV
Nora L. Longoria
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss the plaintiffs’ suit for defamation, libel per se, slander, defamation per se, business disparagement, civil conspiracy, and tortious interference with existing and prospective contracts and business relationships. On appeal, the defendants challenged the trial court’s order denying the motion to dismiss under Chapter 27 of the Texas Civil Practice and Remedies Code. The appellate court noted that while a party need not specify exact statements made in a defamation pleading in order to provide adequate notice to the defendant, the law did not stand for the proposition that specific statements alleged to be defamatory in an amended petition were not newly added, separate occurrences with independent injury. The appellate court found no support for such a contention and therefore, it rejected the argument. The appellate court concluded that the trial court could not have permissibly denied the Texas Citizens Participation Act motion to dismiss on grounds that limitations was tolled. Accordingly, the judgment of the trial court was affirmed in part, reversed in part and remanded for further proceedings.


Under the automobile exception, a search warrant was not required to search an automobile when an officer had probable cause to believe the automobile contained contraband.
Borne v. State
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
January 08, 2020
09-19-00094-CR
Leanne Johnson
Published
The defendant appealed the judgment of the trial court which convicted him of the manufacture or possession of a controlled substance—lysergic acid diethylamide (LSD)—with the intent to deliver, in an amount of eighty abuse units or more but less than 4,000 abuse units, a first-degree felony. On appeal, the defendant challenged the trial court’s assessment of a punishment at ten years’ imprisonment, probated for a period of ten years. The appellate court noted that the defendant presented no legal authority that his consent was required for the trial court to have jurisdiction over him in a criminal proceeding, nor did he explain his “proven on the record” complaint. The appellate court found that the Uniform Commercial Code (UCC) applied to commercial transactions and did not apply to criminal proceedings. The appellate court concluded that under the automobile exception, a search warrant was not required to search an automobile when an officer had probable cause to believe the automobile contained contraband. Accordingly, the judgment of the trial court was affirmed.


Based on the limited evidence that was presented, the trial court could have reasonably found that the experiments occurred in the deliberation room and that they produced no new facts that were harmful to the defendant.
Melgar v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 07, 2020
14-17-00932-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which convicted her of murder. On appeal, the defendant argued that she was entitled to an acquittal because the evidence was legally insufficient to support the conviction, and that, even if the evidence were sufficient to support the conviction, she was entitled to a new trial because the jury engaged in misconduct by conducting experiments during deliberations. The appellate court noted that the evidence was legally sufficient to support every essential element of the offense beyond a reasonable doubt. The appellate court found that because the affidavit contained no information about these matters, the trial court was free to determine that the jurors’ experiments, though improper, did not differ in any way from the prosecution’s in-court demonstration. The appellate court concluded that the trial court could have reasonably found that the jury did not discover any new facts in their experiments that was hurtful to defendant. The appellate court further concluded that based on the limited evidence that was presented, the trial court could have reasonably found that the experiments occurred in the deliberation room and that they produced no new facts that were harmful to the defendant. Accordingly, the judgment of the trial court was affirmed.


The defendants did not meet their initial burden of establishing that the TCPA applied to the Estate’s claims, and thus, the trial court properly denied the defendants’ motion to dismiss.
Pacheco v. Rodriguez
Appellate: Civil, Constitution, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
January 06, 2020
08-19-00129-CV
Jeff Alley
Published
The defendants appealed the judgment of the trial court which granted an order of partial non-suit of the Estate’s claims against the defendants. On appeal, the defendants challenged the trial court’s denial of the motion to dismiss the cross-claim under the Texas Citizens Participation Act (TCPA). The appellate court noted that the unique aspect of the TCPA convinced the court that it must, as part of the court's de novo review, be satisfied that the movant had met the initial burden under the statute to show the disputed claim was based on, related to, or was in response to the exercise of free speech, petition, or associational rights. The appellate court found that the defendants’ cross-claim could not properly be categorized as a claim for defamation and was instead more properly characterized as a claim for negligence. The appellate court concluded that the defendants did not meet their initial burden of establishing that the TCPA applied to the Estate’s claims, and thus, the trial court properly denied the defendants’ motion to dismiss. Accordingly, the judgment of the trial court was affirmed.


The appellants presented the issue only to preserve it for en banc or supreme court review, acknowledging that binding precedents constrained the panel to overrule the issue.
Guillory v. Dietrich
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Real Property, Tax, Torts
Texas 5th Court of Appeals
January 06, 2020
05-18-00504-CV
Bill Whitehill
Published
The appellants appealed the judgment of the trial court which ordered the appellants to take nothing on their claims and awarded the appellee actual damages, exemplary damages, attorney’s fees, and declaratory relief on his counterclaims. On appeal, the appellants asserted that the trial court erred by simply adopting the appellee’s voluminous proposed fact findings and legal conclusions without any independent expressed judicial thought evidencing independent judicial findings and conclusions. The appellate court noted that the trial court erred by awarding the appellee actual damages for long-term care insurance payments and for a property tax late fee. The appellate court found that the appellants did not show that the trial court erred by awarding the appellee conversion damages for the savings account and for jewelry insurance proceeds, nor did they show that the trial court erred by awarding the appellee unjust enrichment actual damages. The appellate court concluded that the appellants presented the issue only to preserve it for en banc or supreme court review, acknowledging that binding precedents constrained the panel to overrule the issue. Accordingly, the judgment of the trial court was reversed in part, affirmed in part and remanded.


The judicial admissions were sufficient to support the trial court’s finding and conclusion that the lien documents were invalid and unenforceable.
Texas Tax Solutions, LLC v. City of El Paso
Appellate: Civil, Contracts, Procedure, Tax
Texas 8th Court of Appeals
December 30, 2019
08-18-00126-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which denied the plaintiff’s claim to enforce a transferred tax lien based on the trial court’s finding that the lien was void and invalid because the documents on which the lien was based were fraudulently executed. The appellate court noted that the trial court did not abuse its discretion by concluding that the City was not required to plead fraud as an affirmative defense. The appellate court found that the evidence was legally and factually sufficient to support the trial court’s finding that the lien documents were void and invalid. The appellate court further found that the Texas Tax’s judicial admissions that the lien documents were procured by fraud and, particularly, its judicial admissions that the signatures on the lien documents were forgeries, relieved the City of any burden to plead or produce evidence of fraud. The appellate court concluded that the judicial admissions were sufficient to support the trial court’s finding and conclusion that the lien documents were invalid and unenforceable. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that it must presume that the trial court’s conversation with the Indiana judge supported the decision to decline to exercise jurisdiction because Indiana was a more appropriate forum.
In re C.H.
Appellate: Civil, Family, Procedure
Texas 7th Court of Appeals
December 31, 2019
07-18-00285-CV
Judy C. Parker
Published
The alleged father of the child appealed the judgment of the trial court, filing a petition to adjudicate parentage, whereby the trial court entered temporary orders granting the mother the exclusive right to designate the primary residence of the child. On appeal, the alleged father challenged the trial court’s award of a standard possession schedule and ordered that he pay child support. The alleged father further contended that the trial court abused its discretion in declining to exercise jurisdiction and determining that Indiana was a more appropriate forum. The appellate court noted that approximately eighteen months passed between the date the suit commenced in Texas and the date the trial court entered its order determining that Texas was an inconvenient forum in deference to Indiana. The appellate court found that the trial court did not abuse its discretion in declining to exercise jurisdiction based on its finding that Indiana was a more appropriate forum for the proceeding. The appellate court concluded that it must presume that the trial court’s conversation with the Indiana judge supported the decision to decline to exercise jurisdiction because Indiana was a more appropriate forum. Accordingly, the judgment of the trial court was affirmed. 


The trial court properly entered a default judgment against the appellant mortgage company after it failed to timely answer a lawsuit filed against it by the appellee, where the appellant failed to establish a prima facie meritorious defense to the lawsuit
Reverse Mortg. Funding, LLC v. Blevins Robertson
Banking and Finance, Contracts, Procedure, Real Property
Texas 6th Court of Appeals
January 03, 2020
06-19-00063-CV
Ralph Burgess
Published
The appellee's father executed a will in which he left his real property to his wife to be used, occupied and enjoyed by her for and during her natural life. According to the will, the property was to vest in the father’s daughters on the wife’s death. Following the father’s death, the wife entered into a reverse mortgage loan agreement with the predecessor in interest to the appellant mortgage company. In a suit to quiet title to the property, the appellee alleged that the wife’s life estate in the property terminated when she died. When the appellant did not timely answer the lawsuit, the trial court entered a default judgment in favor of the appellee. The appellant moved for new trial which was overruled by operation of law. On appeal, the appellant contended that it was a bona fide mortgagee. To claim the status of a bona fide mortgagee, the appellant was bound to support its conclusory statements that it had no actual or constructive notice of the appellee’s claim to the property with verified allegations of fact. Because no such allegations appeared in the appellant’s motion for new trial, the appeals court found the appellant failed to establish a prima facie meritorious defense. Accordingly, the judgment of the trial court was affirmed.


The trial court erred in denying the appellants' motion to dismiss the appellee's Rule 202 petition under the Texas Citizens Participation Act, since the appellee failed to establish its prima facie case for its Rule 202 petition by clear and specific evidence
In re Petition of Krause Landscape Contractors, Inc.
Evidence, Procedure
Texas 7th Court of Appeals
January 02, 2020
07-19-00182-CV
Judy C. Parker
Published
After the appellee corporation filed a petition requesting depositions to investigate potential claim or suit under Texas Rules of Civil Procedure 202, the appellants moved to dismiss the petition under the Texas Citizens Participation Act (TCPA). The trial court denied the motion to dismiss and authorized the appellee’s pre-suit depositions. The appellants filed an interlocutory appeal. The appeals court concluded that pre-suit depositions under Rule 202 are legal actions within the scope of the TCPA and that the appellee failed to establish its prima facie case by clear and convincing evidence. Accordingly, the judgment of the trial court was reversed and remanded with direction that the trial court enter an order granting the appellants’ motion to dismiss and conduct further proceedings. 


Since there was a written commission agreement that complied with the statute of frauds, Texas Occupations Code Section 1101.806(c), the plaintiff, as the assignee of the principal broker, was entitled to recover a three percent commission from the defendant on the proceeds at the closing.
NLD, Inc. v. Huang
Appellate: Civil, Contracts, Damages, Real Property, Torts
Texas 1st Court of Appeals
December 31, 2019
01-17-00885-CV
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which determined whether a real estate broker was entitled to receive a commission in connection with the sale of a motel. On appeal, the defendant claimed that the defendant owed him a commission because he had introduced the parties to the sale and brokered an earlier attempt to sell the property that ultimately resulted in the sale of the property from the same seller, the defendant, to the same buyer, the individual. The appellate court noted that the plaintiff established that the defendant, as seller, and the individual, as buyer, signed a written standard form contract governing the sale of the property and obligating the defendant to pay the plaintiff a commission on the sale of the motel. That appellate court found that the agreement was still in effect under its own plain language when negotiations concluded and the sale closed. The appellate court concluded that since there was a written commission agreement that complied with the statute of frauds, Texas Occupations Code Section 1101.806(c), the plaintiff, as the assignee of the principal broker, was entitled to recover a three percent commission from the defendant on the proceeds at the closing of the sale. Accordingly, the judgment of the district court was affirmed.  


The appellate court concluded that it was unable to hold the trial court abused its discretion in setting the defendant’s bond.
Ex parte Temple
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 31, 2019
14-19-00711-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which set bond at $1,000,000 after a jury found him guilty but was unable to reach an agreement on punishment. Thereafter, the trial court declared a mistrial as to the punishment phase of trial. On appeal, the defendant was currently incarcerated awaiting the new punishment phase of trial. The appellate court noted that having considered all the pertinent factors and in light of the jury’s finding the defendant guilty of murder, the trial court did not act arbitrarily or unreasonably in setting the defendant’s bond at $1,000,000. The appellate court concluded that it was unable to hold the trial court abused its discretion in setting the defendant’s bond. Accordingly, the judgment of the trial court was affirmed.  


Any error in admitting the individual’s statements was harmless because the statements were cumulative of properly admitted evidence.
Trejo v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 31, 2019
14-18-00076-CR
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which convicted him of murder. The appellate court noted that the factors weighed in favor of the court's conclusion that the trial court’s error, if any, in admitting the statement was harmless, and the defendant’s interview was not very important to the State’s case, given that the defendant did not make any statements incriminating himself in the murder. The appellate court found that ample evidence contradicted the defendant’s denials regarding his presence on the scene and his acquaintance with the individual, and the State’s case was strong because direct evidence linked the defendant to the murder weapon. The appellate court further found that an accused’s Fifth Amendment right to consult with counsel before speaking was distinct from an accused’s Sixth Amendment right to representation by counsel. The appellate court concluded that any error in admitting the individual’s statements was harmless because the statements were cumulative of properly admitted evidence. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court retained jurisdiction to grant a new trial within the time period allowed by Rule 329b.
State v. $71,404.00 U.S. Currency
Appellate: Civil, Gov't/Administrative, Procedure, Real Property
Texas 3rd Court of Appeals
December 31, 2019
03-19-00310-CV
Gisela D. Triana
Published
The State appealed the judgment of the trial court which granted a motion for new trial in a civil-asset-forfeiture case. On appeal, the State asserted that the trial court erred in granting the motion for new trial because the trial court no longer had jurisdiction over the property that had been forfeited. The appellate court noted that the money was seized illegally, that it was thus proper for the trial court to return the money, and that once the money was returned to its owner, the trial court lost jurisdiction to continue the State’s forfeiture action. The appellate court found that it could not conclude on the record that the useless judgment exception, to the extent that it applied at all to forfeiture proceedings in Texas state courts, would apply to the facts. The appellate court concluded that the trial court retained jurisdiction to grant a new trial within the time period allowed by Rule 329b. Accordingly, the judgment of the trial court was affirmed.


There was no evidence or argument that, before his marriage, the child obtained in either Texas or Missouri a court order removing the disabilities of his minority, and therefore, not married in accordance with the laws of Texas.
Broussard v. Arnel
Appellate: Civil, Family, Procedure
Texas 1st Court of Appeals
December 31, 2019
01-18-00687-CV
Evelyn V. Keyes
Published
The appellant appealed the judgment of the trial court which modified custody in the suit affecting the parent-child relationship (SAPCR). On appeal, the appellant challenged the trial court’s modification order designating the appellee sole managing conservator of their child. The appellant argued that the trial court lacked subject-matter jurisdiction to render its modification order due to the child’s emancipation by marriage during the pendency of the modification suit. The appellate court noted that the trial court began by addressing the appellee’s assertion that the appellant failed to register the Missouri declaratory judgment as a foreign judgment under Texas’s Uniform Enforcement of Foreign Judgments Act (UEFJA), which governed registration and enforcement of out-of-state judgments. The appellate court found that the trial court failed to understand how a valid marriage could have sprung from a subsequent declaratory judgment. The appellate court concluded that there was no evidence or argument that, before his marriage, the child obtained in either Texas or Missouri a court order removing the disabilities of his minority, and therefore, not married in accordance with the laws of Texas. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that there was sufficient evidence to support convictions for both offenses.
Garcia v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
December 31, 2019
11-17-00318-CR
Keith Stretcher
Published
The defendant appealed the judgment of the trial court which convicted him of one count of aggravated sexual assault of a child and one count of indecency with a child by contact. On appeal, the defendant challenged the district court’s sentence to imprisonment for forty years and ten years, respectively. The appellate court noted that due to the nature of the crime, every juror who found penetration would have also found contact, and therefore, the jury charge in the case did not permit the defendant to be convicted by a non-unanimous verdict. The appellate court found that it was erroneous to include an instruction defining the offense as prohibiting contact by any means. The appellate court concluded that there was sufficient evidence to support convictions for both offenses. Accordingly, the judgment of the trial court was affirmed. 


Since the economic loss rule applied to the appellees’ claims, the appellees had not established a prima facie case for damages, and the trial court erred in denying the appellant’s motion to dismiss.
Shopoff Advisors, LP v. Atrium Circle, GP
Appellate: Civil, Corporations, Damages, Procedure, Real Property, Torts
Texas 4th Court of Appeals
December 27, 2019
04-18-00438-CV
Liza A. Rodriguez
Published
The appellant appealed the judgment of the trial court which denied its motion to dismiss the suit pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the appellant contended that the trial court erred in denying its motion because the claims brought by appellees related to the exercise of the appellant’s right to petition. The appellate court noted that the TCPA applied because the appellees’ legal action was related to the appellant’s exercise of its right to petition. The appellate court found that, with respect to the appellees’ claims against the appellant, the burden shifted to the appellees to establish by clear and specific evidence a prima facie case for the element of damages. The appellate court concluded that because the economic loss rule applied to the appellees’ claims, the appellees had not established a prima facie case for damages, and the trial court erred in denying the appellant’s motion to dismiss. Accordingly, the judgment of the trial court was reversed.


The trial court did not abuse its discretion in limiting the defendant’s right to confer with his counsel during an overnight recess to matters other than his ongoing trial testimony.
Villarreal v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
December 27, 2019
04-18-00484-CR
Sandee Bryan Marion
Published
The defendant appealed the judgment of the trial court which convicted him of murder with a repeat offender enhancement and sentenced him to confinement for sixty years. The appellate court noted that although the trial court overruled the defendant’s initial hearsay objection, the defendant’s mutual friend did not immediately testify regarding the contents of the victim’s text message. The appellate court further found that, after answering several additional questions regarding her familiarity with the victim’s telephone number and the frequency of her communications with the victim, the defendant’s friend eventually relayed the contents of the victim’s text message in response to a different question. The appellate court found that the defendant’s attorneys repeatedly confirmed they understood the trial court’s order. The appellate court concluded that the trial court did not abuse its discretion in limiting the defendant’s right to confer with his counsel during an overnight recess to matters other than his ongoing trial testimony. Accordingly, the judgment of the trial court was affirmed.


The record established that, considering the benefits to the mother and, ultimately, to a child, as well as any impairment of the father’s contact with the child, the trial court did not err in its application of discretion.
In re A.C.M.
Appellate: Civil, Family, Juvenile, Procedure
Texas 8th Court of Appeals
December 23, 2019
08-18-00014-CV
Gina M. Palafox
Published
The father appealed the judgment of the trial court which modified the parent-child relationship after a de novo hearing. On appeal, the father challenged the trial court’s order insofar as it permitted the mother to designate the primary residence of the couple’s minor son without any geographic restriction. The appellate court noted that the record established that the trial court had sufficient information concerning the reasons for the mother’s desire to relocate and the impact relocation would have on her, the child, and the father to exercise its discretion. The appellate court found that the record established that, considering the benefits to the mother and, ultimately, to a child, as well as any impairment of the father’s contact with the child, the trial court did not err in its application of discretion. Accordingly, the judgment of the trial court was affirmed.


The appellate court found that the jury charge presented in the case contained an erroneous definition of reckless.
Fraser v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 20, 2019
07-15-00267-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted her of the offense of murder, sentenced her to fifty years confinement, and assessed a $10,000 fine. On appeal, the defendant challenged the trial court’s conviction, sentence, and assessment of a fine. The defendant contended that the trial court’s definition of reckless was overly broad because it did not distinguish between “result-of-conduct” offenses and “nature-of-conduct” offenses and it did not properly tailor the definition of reckless to the facts of the case, and that by failing to do so, the trial court committed error. The appellate court noted that where the prosecution was relying upon multiple theories as to the underlying offense making the death in the case punishable as a felony murder, as well as multiple theories as to the applicable culpable mental state for that underlying offense, it was critical that the charge of the trial court correctly set forth the law applicable to the case. The appellate court found that the jury charge presented in the case contained an erroneous definition of reckless, and having considered the court’s charge as a whole, the arguments of the prosecution, the state of the evidence, and other relevant factors, such error deprived the defendant of her right to a fair trial and vitally affected at least one of her defensive theories. The appellate court concluded that the trial court’s error was egregious. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


The jury was not properly instructed on any of the offenses, rather, it received a hodge-podge of inappropriately defined terms and offenses.
Alcoser v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 20, 2019
07-18-00032-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted him of assault family violence, endangering a child, and interference with emergency request for assistance. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court noted that the instruction on self-defense failed to include a presumption instruction on the reasonableness of the defendant’s belief that force was immediately necessary to protect himself as the law applicable to the case. The appellate court found that the instruction contained multiple errors and the jurors were not only misguided and left without adequate explanation as to the appropriate culpable mental states to apply to either Count II or Count III, they were, in fact, affirmatively misinformed by being given an incorrect explanation. The appellate court concluded that the jury was not properly instructed on any of the offenses, rather, it received a hodge-podge of inappropriately defined terms and offenses. Accordingly, the judgment of the trial court was reversed and remanded.


Since counsel’s error, if any, was not so serious as to deprive the appellant of a trial whose result was reliable, the appellant’s trial counsel did not commit ineffective assistance with regard to the oral motion for continuance.
In re J.P-L.
Appellate: Civil, Family, Juvenile, Procedure
Texas 2nd Court of Appeals
December 19, 2019
02-19-00255-CV
Bonnie Sudderth
Published
The appellant appealed the judgment of the trial court which denied the motion for continuance and terminated the appellant’s parental rights to the child. On appeal, the appellant conceded that the evidence in the case was sufficient to support the termination of her parental rights to the child but contended that she was deprived of due process when the interests of the child appeared to be in direct conflict with the interests of the parent. The appellate court noted that under its current statutory scheme, as between a parent and a child, only one could prevail: the child. The appellate court found that because the appellant did not comply with Tex. R. Civ. P. Rule 251 and two of the parties disagreed with her oral request for a continuance, the trial court did not abuse its discretion by denying the motion. The appellate court concluded that since counsel’s error, if any, was not so serious as to deprive the appellant of a trial whose result was reliable, the appellant’s trial counsel did not commit ineffective assistance with regard to the oral motion for continuance. Accordingly, the judgment of the trial court was affirmed. 


The evidence was insufficient to support the trial court’s legal conclusion that the individual acted as the defendant’s agent and that the plaintiff had not otherwise alleged facts that, if true, brought the defendant within the reach of Texas’s long-arm statute.
Stocksy United v. Morris
Appellate: Civil, Contracts, Procedure, Torts
Texas 1st Court of Appeals
December 19, 2019
01-18-00924-CV
Sherry Radack
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff in her suit against the defendant for misappropriation of likeness. Thereafter, the defendant filed a special appearance. On appeal, the plaintiff argued that the defendant was subject to specific jurisdiction because the individual acted as the defendant’s agent when she took the photographs and uploaded them onto the website. The appellate court found that the evidence was insufficient to support the trial court’s legal conclusion that the individual acted as the defendant’s agent and that the plaintiff had not otherwise alleged facts that, if true, brought the defendant within the reach of Texas’s long-arm statute. The appellate court concluded that the trial court improperly denied the defendant’s special appearance. Accordingly, the judgment of the trial court was reversed.


The trial court did not find that the motion to dismiss was solely intended to delay and there was no statutory basis to support the trial court’s award of attorney’s fees to the plaintiff.
Stallion Oilfield Services Ltd. v. Gravity Oilfield Services, LLC
Appellate: Civil, Contracts, Employment, Procedure, Torts
Texas 11th Court of Appeals
December 19, 2019
11-19-00217-CV
John Bailey
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss the plaintiff’s claims pursuant to the Texas Citizens Participation Act (TCPA). This suit stemmed from the plaintiff’s allegations that the defendant breached a noncompete, nondisclosure, and nonsolicitation agreement and that the defendant tortiously interfered with that agreement when it hired the employee. The appellate court noted that the trial court properly denied the defendant’s motion to dismiss, and therefore, the defendant was not entitled to an award of attorney’s fees, costs, or sanctions. The appellate court found that the plaintiff established a prima facie case that it had the right to enforce those restrictive covenants, the plaintiff was not a party to those agreements, and the evidence as to the plaintiff’s relationship with the first corporation and the second corporation was extensive and disputed. The appellate court concluded that the trial court did not find that the motion to dismiss was solely intended to delay and there was no statutory basis to support the trial court’s award of attorney’s fees to the plaintiff. Accordingly, the judgment of the trial court was affirmed.        


Since the petitioner’s argument on appeal did not comport with the objection asserted at trial, the petitioner’s fourth issue was not preserved.
In re T.B.
Appellate: Civil, Constitution, Gov't/Administrative, Health Care, Procedure
Texas 10th Court of Appeals
December 18, 2019
10-19-00190-CV
Tom Gray
Published
The petitioner appealed the judgment of the trial court which ordered an Extended Mental Health Services, wherein he was directed to receive in-patient mental health treatment for one year. On appeal, the petitioner challenged the trial court’s order based on his indictment for stalking. The appellate court noted that the petitioner’s proposed instruction about which he wished to question the prospective jurors proposed a blanket assertion of his Fifth Amendment not to testify and incorrectly prohibited adverse inferences if the petitioner refused to testify. The appellate court found that the trial court did not abuse its discretion in failing to submit the petitioner’s requested instruction. The appellate court concluded that since the petitioner’s argument on appeal did not comport with the objection asserted at trial, the petitioner’s fourth issue was not preserved. Accordingly, the judgment of the trial court was affirmed.  


In the absence of a clear indication that the Legislature intended to subject children under 14 years of age to prosecution for aggravated sexual assault when they lacked the capacity to consent to sex as a matter of law, that child could not be charged with that offense.
In re T.V.T.
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 19, 2019
14-18-00807-CV
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assault of a child under the age of 14 and denied his pretrial application for writ of habeas corpus, motion for summary judgment, motion to quash the petition, and motion to dismiss the petition. On appeal, the defendant challenged the order of adjudication. The appellate court noted that the fact that a 13-year old could not be tried as an adult and sentenced as an adult did not remove the State’s burden to show that a person knowingly committed the charged offense. The appellate court found that the Legislature passed laws recognizing the vulnerability of children to sexual exploitation, including an absolute prohibition of legal consent for children under 14. The appellate court concluded that in the absence of a clear indication that the Legislature intended to subject children under 14 years of age to prosecution for aggravated sexual assault when they lacked the capacity to consent to sex as a matter of law, that child could not be charged with that offense. Accordingly, the judgment of the trial court was reversed.


The totality of the circumstances showed that the appellants substantial invocation of the judicial process prejudiced the appellee.
Pounds v. Rohe
ADR, Appellate: Civil, Contracts, Procedure, Real Property, Wills/Trusts/Probate
Texas 1st Court of Appeals
December 19, 2019
01-19-00623-CV
Gordon Goodman
Published
The appellants appealed the judgment the trial court which denied their motion to compel arbitration in the underlying suit concerning the Estate. On appeal, the appellants challenged the trial court’s order denying the motion to compel arbitration. The appellate court noted that the totality of the circumstances showed that the appellants substantially invoked the judicial process before trying to compel arbitration. The appellate court found that the record showed the existence of prejudice, as the appellee was not required to submit additional evidence establishing the extent of the prejudice. The appellate court concluded that the totality of the circumstances showed that the appellants substantial invocation of the judicial process prejudiced the appellee. Accordingly, the judgment of the trial court was affirmed.


Since the only exhibit offered by the appellant could not be considered, it did not create a genuine issue of material fact and the trial court did not err when it granted the appellee’s motion for summary judgment on the removal costs.
Consol. Healthcare Services, LLC v. Mainland Shopping Ctr., Ltd.
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 14th Court of Appeals
December 19, 2019
14-18-00189-CV
Jerry Zimmerer
Published
The appellant appealed the judgment of the trial court which granted summary judgment in favor of the appellee on its breach of contract cause of action. On appeal, the appellee argued that the trial court did not err when it granted its motion for summary judgment and the appellate court did not have jurisdiction over the appeal because the appellant filed its notice of appeal too late. The appellate court disagreed with the appellee and noted that it had jurisdiction to consider the appellant’s appeal. The appellate court found that the trial court did not err when it granted the appellee’s motions for summary judgment. The appellate court concluded that since the only exhibit offered by the appellant could not be considered, it did not create a genuine issue of material fact and the trial court did not err when it granted the appellee’s motion for summary judgment on the removal costs. Accordingly, the judgment of the trial court was affirmed.


Since the record showed a plea of “not true” entered on the defendant’s behalf as to all of the State’s allegations in the amended motion to revoke, it would modify the language in the judgments to reflect that the defendant pleaded “not true” to all allegations in the State’s motion to revoke.
Washington v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
December 18, 2019
10-19-00204-CR
John E. Neill
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of retaliation and sentenced him to ten years’ imprisonment with a $250 fine for each count, suspended the sentences, and placed him on community supervision for ten years. On appeal, the defendant challenged the trial court’s revocation of his community supervision. The appellate court noted that because Article 102.011(a)(2) and (a)(6) were reimbursement-based court-costs provisions, and because the court were duty-bound to follow the precedent of the Court of Criminal Appeals, it rejected the defendant’s constitutional claim in the issue. The appellate court found that the record reflected that the defendant represented himself at trial with the assistance of standby counsel. The appellate court concluded that since the record showed a plea of “not true” entered on the defendant’s behalf as to all of the State’s allegations in the amended motion to revoke, it would modify the language in the judgments to reflect that the defendant pleaded “not true” to all allegations in the State’s amended motion to revoke. Accordingly, the judgment of the trial court was affirmed.


The manner in which the trial was conducted significantly impaired the mother’s ability to present the issue on appeal and show its impact on the judgment.
In re J.T.
Appellate: Civil, Evidence, Family, Juvenile, Procedure
Texas 10th Court of Appeals
December 18, 2019
10-19-00298-CV
Tom Gray
Published
The mother appealed the judgment of the trial court which terminated her parental rights to her child. On appeal, the mother challenged the termination of her parental rights. The appellate court noted that from all of the questions tendered by the jurors, there were over 165 of the jurors' questions actually allowed and asked by the trial court to the witnesses, and it was impractical, if not impossible, to isolate in the record the impact of the evidence received in response to those questions and determine what, if any, impact it had on the judgment. The appellate court found that the trial court did not intend to imply that fewer questions would necessarily be harmless, but that on the record, the manner in which the trial was conducted significantly impaired the mother’s ability to present the issue on appeal and show its impact on the judgment. The appellate court concluded that the mother was entitled to a new trial. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


The appellate court concluded that since the trial court’s temporary injunction did not satisfy the requirements of Rule 683 of the Texas Rules of Civil Procedure, it was void.
Caniglio v. Woods
Appellate: Civil, Contracts, Damages, Procedure, Real Property, Torts
Texas 6th Court of Appeals
December 18, 2019
06-19-00080-CV
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which granted a temporary injunction enjoining the defendant from interfering with his rights under the farm lease agreement. On appeal, the plaintiff argued that the defendant’s continued use of the property would result in loss of income to the plaintiff and cause him to spend substantial sums of money for breach of contract. The defendant maintained that the plaintiff failed to demonstrate the element of irreparable harm. The appellate court noted that while the order stated that the plaintiff would be unable to use the property, it contained no explanation as to why any resulting harm from the plaintiff’s inability to use the property was irreparable such that it could not be compensated with money damages against the defendant. The appellate court found that since the order did not show the facts the trial court relied on, the finding of irreparable harm was improperly conclusory. The appellate court concluded that since the trial court’s temporary injunction did not satisfy the requirements of Rule 683 of the Texas Rules of Civil Procedure, it was void. Accordingly, the judgment of the trial court was vacated and remanded.


The appellate court concluded that it was reasonably assured that any error in admitting the mother’s outcry testimony did not influence the jury’s verdict or had but a slight effect.
Waldrep v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
December 17, 2019
08-19-00027-CR
Jeff Alley
Published
The defendant appealed the judgment of the trial court which convicted him of one count of continuous sexual abuse of a child under 14 years of age and sentenced to 99 years in prison. On appeal, the defendant found it significant that the State did not present any corroborating evidence at the Article 38.072 hearing. The appellate court noted that the trial court did not abuse its discretion in concluding that the victim sufficiently described the alleged offense to her mother within the meaning of Article 38.072 of the Texas Code of Criminal Procedure. The appellate court found that the State presented the testimony of several witnesses who testified, without objection, that the victim had made similar outcries to them. The appellate court concluded that it was reasonably assured that any error in admitting the mother’s outcry testimony did not influence the jury’s verdict or had but a slight effect. Accordingly, the judgment of the trial court was affirmed.            


The evidence of the mother’s unlawful conduct in the case rebutted the presumption in favor of joint managing conservatorship and amply supported the trial court’s determination that appointing the father sole managing conservator was in best interest.
Jardon v. Pfister
Appellate: Civil, Family, Juvenile, Procedure
Texas 8th Court of Appeals
December 17, 2019
08-17-00183-CV
Gina M. Palafox
Published
The mother appealed the judgment of the trial court which entered a final decree of divorce between the mother and the father. The appellate court noted that the sanction in the case was limited to prohibiting the mother from offering evidence or documents she failed to produce and that sanction was authorized by both Rule 193.6 and Rule 215. The appellate court found that the mother had not demonstrated that the trial court’s order complying with those rules constituted an abuse of discretion, and the mother did not identify anywhere in the record that she attempted to introduce any evidence that was excluded based on the sanctions order. The appellate court concluded that the evidence of the mother’s unlawful conduct in the case rebutted the presumption in favor of joint managing conservatorship and amply supported the trial court’s determination that appointing the father sole managing conservator was in best interest. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


There was no factual basis in the record to support a determination that the defendant could pay the attorney’s fees.
Kuykendall v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 17, 2019
01-18-00930-CR
Russell Lloyd
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of the third-degree felony offense of failure to appear. On appeal, the defendant challenged the trial court’s sentence to ten years’ confinement on each count, with the sentences to run concurrently. The appellate court noted that because the defendant may be convicted of only one failure-to-appear case for his failure to appear at a single court setting on a two-count indictment for which he had been released from confinement, a double jeopardy violation was apparent on the face of the record. The appellate court found that the defendant was sentenced to the same sentence of ten years’ confinement on each count, with the sentences to run concurrently. The appellate court concluded that there was no factual basis in the record to support a determination that the defendant could pay the attorney’s fees. Accordingly, the judgment of the trial court was vacated and affirmed.    


The undisputed jurisdictional evidence sufficiently established the existence of a special defect for which the Texas Tort Claims Act’s waiver provision was invoked.
City of Elpaso v. Lopez
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
December 16, 2019
08-19-00056-CV
Yvonne T. Rodriguez
Published
The City appealed the judgment of the trial court which denied its plea to the jurisdiction in a suit brought against the City for the wrongful death of the deceased. The appellate court believed the connection was made between the City’s alleged ownership and control of the road and the factors identified as contributing to the deceased’s death. The appellate court found that after the report was issued, the City exercised its control over the road to remediate the hazard identified in the STI report by installing warning signs, barricades, and lighting. The appellate court further found that the fact that the City’s remediating actions mirrored the contributing factors identified in the STI’s report, clearly demonstrated an actual anticipation of a claim as alleged by the plaintiffs, and thus, the City had “actual notice” under Section 101.101(c) of the Texas Tort Claims Act as that phrase was interpreted by the Texas Supreme Court, and that “notice of a claim” under Sections 101.101(a) and (b) were not required. The appellate court concluded that the undisputed jurisdictional evidence sufficiently established the existence of a special defect for which the Act’s waiver provision was invoked. Accordingly, the judgment of the trial court was affirmed.  


The trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against the Texas Department of Transportation
Tex. Dep't of Transp. v. Padron
Damages, Family, Gov't/Administrative, Torts
Texas 6th Court of Appeals
December 13, 2019
06-19-00010-CV
Josh Morriss, III
Published
A Travis County jury awarded $5,232,994 in damages for premises liability claims brought by the three appellees against the Texas Department of Transportation (TxDOT). The appellate Court found that TxDOT's evidence failed to demonstrate that there was an unreasonable risk of harm. The appellate Court noted that the undisputed evidence showed that the friction coefficient was within the safe range for both wet and dry weather, that there was no evidence of an uneven coefficient of friction at the accident site, that the photographs relied on by the experts were miles from the Martinez accident site and only showed “moderate” flushing, and that there was no evidence that the other accidents occurring on the same day were the result of flushing or a low coefficient of friction. Further, TxDOT’s proposed jury instructions sought to narrow the inquiry by asking the jury only if the amount of friction provided by the road surface at the time and place of the accident posed an unreasonable risk of harm. TxDOT also argued that the appellees failed to obtain required jury findings because the jury charge did not define the unreasonably dangerous condition. However, the Court found nothing that required the trial court to limit the jury charge in the manner requested by TxDOT. Pursuant to State v. Williams, the trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against TxDOT. Because the Court found that the appellees secured all required jury findings, the trial court's judgment was affirmed.  


The addition of the claim for shareholder inspection to the appellee’s Fifth Amended Petition was not based on, related to, or made in response to the appellants exercise of the right to petition and, thus, correctly denied
Chandni I, Inc. v. Patel
Corporations, Gov't/Administrative, Securities
Texas 8th Court of Appeals
December 13, 2019
08-18-00107-CV
Yvonne T. Rodriguez
Published
The following case involved an interlocutory appeal from the trial court’s denial of the appellant's motion to dismiss under the Texas Citizens Participation Act (TCPA). The appeal arose out of a shareholder derivative suit brought by the appellee against the managers and directors of the corporation, a corporation that owned and managed a Quality Inn & Suites in El Paso, Texas. The appellants filed a motion to dismiss under the Texas Citizens Participation Act, asserting that the claims for fraud, theft, and shareholder inspection were made in response to their exercise of freedom of speech, association, and petition. The appellate Court found that it was a denial of a demand for shareholder inspection. Accordingly, the addition of the claim for shareholder inspection to the appellee’s Fifth Amended Petition was not based on, related to, or made in response to the appellants exercise of the right to petition. The trial court did not err in denying the appellants motion to dismiss the shareholder inspection claim. Because the Court had concluded that the appellants had not met their burden to show their TCPA motion to dismiss the fraud and theft claims was timely filed, and that the appellants motion to dismiss the shareholder inspection claim was not based on the exercise of the right to petition, the Court did not need to address the appellants contentions regarding whether the appellee had established a prima facie case or whether the appellants met their burden of proof in establishing a valid defense to the appellee’s prima facie case. Because the Court had determined the trial court did not err in denying the appellants motions to dismiss under the TCPA, the appellants were not entitled to costs, attorney’s fees, or expenses. Accordingly, the trial court judgment was affirmed.  


The court of appeals erred in refusing to review the trial court’s denial of the petitioner’s no-evidence motion for summary judgment challenging jurisdiction on the basis of governmental immunity
Town of Shady Shores v. Swanson
Appellate: Civil, Contracts, Damages, Employment, Gov't/Administrative, Torts
The Supreme Court of Texas
December 13, 2019
18-0413
Debra Lehrmann
Published
The following suit stemmed from an employment dispute between the petitioner town and its former town secretary, the respondent. During a February 27, 2014 town-council meeting, the council voted to terminate the respondent’s employment. The respondent sued the petitioner, initially alleging that she was wrongfully terminated in retaliation for refusing to destroy a recording of a petitioner investment-committee meeting, reporting that members of the committee had destroyed the recording after she refused to do so and reported violations of the Texas Open Meetings Act and Texas Public Information Act. The trial court granted the petitioner’s plea to the jurisdiction and dismissed the Whistleblower Act and Sabine Pilot claims. In separate orders, the trial court denied the petitioner’s traditional and no-evidence motions for summary judgment. The petitioner appealed the summary judgment orders. The court of appeals affirmed in part and reversed in part. The Texas Supreme Court held that when a challenge to jurisdiction that implicated the merits was properly made and supported, whether by a plea to the jurisdiction or by a traditional or no-evidence motion for summary judgment, the plaintiff was required to present sufficient evidence on the merits of her claims to create a genuine issue of material fact. Thus, the court of appeals erred in refusing to review the trial court’s denial of the petitioner’s no-evidence motion for summary judgment challenging jurisdiction on the basis of governmental immunity. Further, because the Open Meetings Act did not waive governmental immunity from suit for Uniform Declaratory Judgments Act claims as a matter of law, the petitioner was entitled to summary judgment on all of the respondent’s claims for declaratory relief. Lastly, because of the Court's conclusion about the respondent’s pleadings, the court of appeals did not address the substance of the petitioner’s arguments. Accordingly, the Court reversed and remanded.


The appellants failed to show the motion to dismiss the theft claim under the Texas Citizens Participation Act was timely, as the essential factual allegations as to the claim were present in a prior petition
Chandni, Inc., v. Patel
Corporations, Procedure, Securities, Torts
Texas 8th Court of Appeals
December 13, 2019
08-18-00108-CV
Yvonne T. Rodriguez
Published
The following case involved an interlocutory appeal from the trial court’s denial of the appellants’ motion to dismiss under the Texas Citizens Participation Act (TCPA). The appellate Court observed that because additional factual details in a subsequent petition did not reset the TCPA clock if the essential factual allegations as to the claim were present in the prior petition, the appellants failed to show the motion to dismiss the theft claim under the TCPA was timely. Further, because the same essential factual allegations were asserted regarding the appellants’ alleged conspiracy and aiding and abetting that were previously asserted in the Third Amended Petition, the appellants failed to show the motion to dismiss the civil conspiracy claim under the TCPA was timely. Next, because no new claims were added in the Fourth Amended Petition against the appellants and the claim asserted relied upon the same factual allegations the Third Amended Petition, the 60-day deadline was not reset as to the fraud claim and the appellants’ motion to dismiss was untimely. Finally, the trial court did not err in denying the appellants’ motion to dismiss the shareholder inspection claim. Accordingly, the judgment of the trial court was affirmed.


The appellant’s notice of appeal was timely filed, as the first memorandum order by the trial court modifying possession and child support was not intended to be the final order
In re R.R.K.
Family, Gov't/Administrative, Juvenile, Procedure
The Supreme Court of Texas
December 13, 2019
18-0273
Jane N. Bland
Published
In the following case, the appellate Court decided the trial court's first memorandum order modifying possession and child support was final and appealable, which rendered the trial court’s second later order void, and the appellant mother’s appeal from the second order untimely. Relying on a Mother Hubbard clause, the appellate Court held that the memorandum order was the final order, and it dismissed the appellant’s appeal for lack of jurisdiction. The Texas Supreme Court observed that the memorandum order lacked “clear and unequivocal” indicia of finality, requiring an examination of the record to determine the trial court’s intent. The record in the case demonstrated that neither the trial court nor the parties intended the memorandum to be the final order. Thus, because the trial court’s later “Order in Suit to Modify Parent-Child Relationship” was the appealable order, the appellant’s notice of appeal was timely filed. Accordingly, the Court reversed and remanded to the appellate court for consideration of the merits of the appellant’s appeal.


The State was obligated to perfect its appeal within twenty days of May 14, 2018, as those fact findings and legal conclusions met the criteria for being a written order under the Texas Code of Criminal Procedure
State v. Janssen
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 12, 2019
07-19-00148-CR
Brian Quinn
Published
The following appeal was by the State from an order granting and denying, in part, a motion to suppress evidence filed by the appellee. The evidence in question involved controlled substances and drug paraphernalia. The appellee moved to suppress it because of purported violations of his constitutional rights against unreasonable searches and seizures. The appellate Court observed that that the May 14, 2018, fact findings and legal conclusions met the criteria for being a written order or ruling for purposes of article 44.01(a) and (d) of the Texas Code of Criminal Procedure. Thus, the State was obligated to perfect its appeal within twenty days of May 14th. It did not, thus, the Court lacked jurisdiction to consider its complaint regarding the search of the Hyundai and suppression of evidence found during it. Further, the first drug sale in March provided the initial piece of foundation. Over the ensuing months, additional pieces were laid to form the foundation request for and issuance of the search warrant hours after the appellee’s arrest. In so viewing the events expressed in the affidavit sequentially, the magistrate and the Court could see how the information therein was not stale. Evidence of ongoing criminal activity generally defeats a claim of staleness. Accordingly, the judgment was affirmed, reversed and remanded.


The appellant met its initial burden to evidence an agreement to arbitrate, and the agreement was not procedurally unconscionable
APC Home Health Servs., Inc. v. Martinez
ADR, Appellate: Civil, Contracts, Damages, Employment, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 8th Court of Appeals
December 12, 2019
08-18-00171-CV
Ann Crawford McClure
Published
The appellee filed suit against the appellant company, alleging a common law negligence cause of action. The appellant was a non-subscriber under the Texas worker’s compensation system. The appellant answered and then moved to compel arbitration. The following was an interlocutory appeal from the denial of a motion to compel arbitration. The trial court denied the motion without saying why. The appellate Court observed that the appellant's first issue on appeal generally claimed that the trial court erred in not granting its motion to compel arbitration. The Appellate Court agreed, reasoning the appellant met its initial burden to evidence an agreement to arbitrate in two ways. First, it presented the agreement supported by the affidavit of its records custodian. Second, when the appellee requested the original document as the best evidence of the contract, the appellant was prepared to present at the hearing a witness who would confirm the execution of the agreement by appellee. The Court also rejected the appellee's claim that the arbitration agreement was procedurally unconscionable. The Court noted that the appellee did not allege she failed to understand the document or that she signed it, only that it was misrepresented to her that the arbitration agreement was misrepresented as "routine" paperwork. This would not support a claim of procedural unconscionability. Accordingly, the Court reversed and remanded with instructions.        


The trial court's take-nothing verdict on the appellee lawyer's claim for fees was appropriately entered, as the verdict was not contrary to the greater weight and preponderance of the evidence admitted in the trial
Webb v. Crawley
Contracts, Damages, Employment, Litigation: Personal Injury, Torts
Texas 9th Court of Appeals
December 12, 2019
09-17-00498-CV
Hollis Horton III
Published
The subject appeal arose following a trial that resulted in a take-nothing verdict on a lawyer’s suit to collect a fee and the client’s resulting counterclaims for malpractice and the alleged breaches of their fiduciary duties. Both parties appealed. The lawyer complained the evidence showed he had the right to recover on his claim for unpaid fees. The appellate Court determined that the trial court's take-nothing verdict on the appellee lawyer's claim for fees was appropriately entered, as the verdict was not contrary to the greater weight and preponderance of the evidence admitted in the trial. The Court pointed to several instances where factual issues existed as to whether fees charged were reasonable, including another lawyer’s testimony that she did not perform some of the work the appellee lawyer claimed she did for him on behalf of the appellant client. Moreover, the appellate Court found that the appellant's malpractice counterclaim against the appellee lawyer was time-barred. The Court reasoned that even with the benefit of the Hughes Rule, the appellant could not wait more than two years after February 11, 2015, to sue the appellee and his firm for malpractice. But the appellant waited until February 26, 2017 to file her counterclaim, and by then, limitations barred her claim. Thus, appellant's arguments suggesting the Hughes Rule saved her malpractice claims lacked merit. The appellate Court found that the trial court’s judgment on all claims reflected a reasonable resolution of the dispute based on the evidence admitted in the trial, and neither party established a right to prevail on their claims as a matter of law. Accordingly, the trial court’s judgment was affirmed.


The record evidence did not permit a reasonable fact finder to form a firm belief or conviction that termination of the appellant father’s parental rights would be in the child’s best interest
In re C.V.L.
Appellate: Civil, Family, Gov't/Administrative, Juvenile
Texas 5th Court of Appeals
December 13, 2019
05-19-00506-CV
Robbie Partida-Kipness
Published
The appellant father challenged the trial court’s decree terminating his parental rights to his daughter. The appellant argued the evidence was legally and factually insufficient to support termination of his parental rights under sections 161.001(b)(1)(D) and 161.001(b)(1)(E) of the Texas Family Code and (2) to support the trial court’s finding that termination was in the child’s best interest. The appellate Court found that in light of the constitutional concerns related to parental termination, clear instructions from the trial court to strictly scrutinize termination proceedings, and strictly construed involuntary-termination statutes, the strong presumption that preservation of the parent–child relationship was in the child’s best interest, the absence of evidence that the appellant would not meet his child’s needs, and the Court's obligation under a factual-sufficiency review to consider all evidence, the Court concluded that the record evidence did not permit a reasonable fact finder to form a firm belief or conviction that termination of the appellant father’s parental rights would be in the child’s best interest. The Court therefore sustained the appellant’s issue that the evidence was factually insufficient to support a finding that termination was in his child’s best interest. The Court noted that there was no evidence or suggestion in the record that the appellant engaged in assaultive conduct or ever intentionally placed the child in danger. Moreover, there was no evidence or suggestion in the record that the appellant ever used drugs in the presence of the child or allowed the child to be in a location where drugs were present. Accordingly, the Court reversed the trial court’s decree of termination that terminated the appellant’s parental rights to the daughter, reversed that portion of the decree appointing the Department as the permanent managing conservator of the daughter, and remanded the case to the trial court for a new trial to commence no later than 180 days after the mandate was issued by the Court. 


Nothing in the record suggested the evidence gathered in connection with the unadjudicated cases, even if exculpatory as to those offenses, would have prevented appellant's conviction in the case in which he plead guilty
Holland v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
December 13, 2019
05-19-00272-CR
Cory L Carlyle
Published
The appellant was indicted and charged with aggravated sexual assault in three separate cases, based on offenses committed against separate victims. Faced with the possibility of multiple convictions that could lead to consecutive sentences, the appellant agreed to a plea deal in which he would plead guilty to one of the offenses while admitting his guilt as to the other two, with the understanding that although those unadjudicated offenses would be considered in determining his sentence for the offense to which he pleaded guilty, he would not be prosecuted for the other two offenses. The trial court accepted the appellant’s guilty plea, and after considering the two unadjudicated offenses, sentenced him to 40 years in prison. The charges in the unadjudicated cases were then dismissed. Appellant alleged that, years later, he discovered there was physical evidence collected during the investigations into the unadjudicated offenses. He thus filed motions under Chapter 64 of the Texas Code of Criminal Procedure in both of the unadjudicated cases, asserting there was a substantial likelihood DNA testing would show he did not commit the offenses charged in those cases. He did not, however, file a motion in the case in which he was convicted. The appellate Court reviewed the question of law de novo, and noted it was bound by the language of the statute. Chapter 64 did not provide for DNA testing merely because the evidence at issue might have affected an applicant’s decision to plead guilty, the length of his sentence, or the items included in the judgment of his conviction. A convicting court could order forensic DNA testing only if, among other things, identity was an issue in the case; and the convicted person established by a preponderance of the evidence that the person would not had been convicted if exculpatory results had been obtained through DNA testing. Further, nothing in the record suggested the evidence gathered in connection with the unadjudicated cases, even if exculpatory as to those offenses, would have prevented appellant's conviction in the case in which he entered the guilty plea. Accordingly, the judgment was affirmed.


The trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against the Texas Department of Transportation
Tex. Dep't of Transp. v. Padron
Damages, Family, Gov't/Administrative, Torts
Texas 6th Court of Appeals
December 13, 2019
06-19-00010-CV
Josh Morriss, III
Published
A Travis County jury awarded $5,232,994 in damages for premises liability claims brought by the three appellees against the Texas Department of Transportation (TxDOT). The appellate Court found that TxDOT's evidence failed to demonstrate that there was an unreasonable risk of harm. The appellate Court noted that the undisputed evidence showed that the friction coefficient was within the safe range for both wet and dry weather, that there was no evidence of an uneven coefficient of friction at the accident site, that the photographs relied on by the experts were miles from the Martinez accident site and only showed “moderate” flushing, and that there was no evidence that the other accidents occurring on the same day were the result of flushing or a low coefficient of friction. Further, TxDOT’s proposed jury instructions sought to narrow the inquiry by asking the jury only if the amount of friction provided by the road surface at the time and place of the accident posed an unreasonable risk of harm. TxDOT also argued that the appellees failed to obtain required jury findings because the jury charge did not define the unreasonably dangerous condition. However, the Court found nothing that required the trial court to limit the jury charge in the manner requested by TxDOT. Pursuant to State v. Williams, the trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against TxDOT. Because the Court found that the appellees secured all required jury findings, the trial court's judgment was affirmed.  


The State was obligated to perfect its appeal within twenty days of May 14, 2018, as those fact findings and legal conclusions met the criteria for being a written order under the Texas Code of Criminal Procedure
State v. Janssen
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 12, 2019
07-19-00148-CR
Brian Quinn
Published
The following appeal was by the State from an order granting and denying, in part, a motion to suppress evidence filed by the appellee. The evidence in question involved controlled substances and drug paraphernalia. The appellee moved to suppress it because of purported violations of his constitutional rights against unreasonable searches and seizures. The appellate Court observed that that the May 14, 2018, fact findings and legal conclusions met the criteria for being a written order or ruling for purposes of article 44.01(a) and (d) of the Texas Code of Criminal Procedure. Thus, the State was obligated to perfect its appeal within twenty days of May 14th. It did not, thus, the Court lacked jurisdiction to consider its complaint regarding the search of the Hyundai and suppression of evidence found during it. Further, the first drug sale in March provided the initial piece of foundation. Over the ensuing months, additional pieces were laid to form the foundation request for and issuance of the search warrant hours after the appellee’s arrest. In so viewing the events expressed in the affidavit sequentially, the magistrate and the Court could see how the information therein was not stale. Evidence of ongoing criminal activity generally defeats a claim of staleness. Accordingly, the judgment was affirmed, reversed and remanded.


The appellant was precluded from bringing an ineffective assistance of counsel claim against her attorney in a proceeding involving her child, as she did not accept court-appointed counsel and retained her own counsel
In re D.T.
Appellate: Civil, Family, Gov't/Administrative, Juvenile
Texas 6th Court of Appeals
December 13, 2019
06-19-00064-CV
Ralph Burgess
Published
The Texas Department of Family and Protective Services (Department) filed a petition to terminate the individual's parental rights to her child, on the grounds that she had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered his physical or emotional well-being, engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered his physical or emotional well-being, and failed to comply with the provisions of the trial court order that specifically established the actions necessary for her to obtain child’s return after he had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of his removal for abuse or neglect. The appellate Court found that the appellant failed to preserve her point of error regarding the legal and factual sufficiency. In order to perserve the issue, the appellant had to raise the error in one of the following, which she failed to do: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict (JNOV); (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury's answer to a vital fact question; or (5) a motion for new trial. Further, the appellant was precluded from bringing an ineffective assistance of counsel claim, as she did not accept court-appointed counsel and retained her own counsel. Because the individual’s counsel was retained, the Court overruled her last point of error alleging ineffective assistance. Accordingly, the trial court's judgment was affirmed.


Because the deed restriction amendments contravened the statutory management authority granted to the appellee’s board of directors, they were not authorized by law and, therefore, illegal
Roddy v. Holly Lake Ranch Ass'n, Inc.
Business, Contracts, Real Property
Texas 12th Court of Appeals
December 11, 2019
12-18-00261-CV
Brian Hoyle
Published
The appellee company filed the following suit on August 30, 2017, seeking a declaratory judgment that the amendments done to deed restrictions of a certain subdivision were void. It further alleged breach of contract and sought monetary relief, injunctive relief, and attorney’s fees. Thereafter, it filed a traditional motion for summary judgment, to which the appellants responded. The appellants appealed the trial court’s declaratory summary judgment and award of attorney’s fees rendered in favor of the appellee company. The appellate Court observed that because the amendments contravened the statutory management authority granted to the appellee’s board of directors in accordance with Tex. Bus. Org. Code Ann. Section 22.202(a), they were not authorized by law and, therefore, illegal. Because they were illegal, those amendments were void. Further, even assuming arguendo that a motion to abate filed more than three months after an answer was timely, the appellants’ motion to abate made no reference to the notice provisions of Section 209.006(a). Therefore, the Court concluded that the appellants waived the notice requirement of Section 209.006(a), if applicable. Next, the allegations underlying the appellee’s declaratory judgment action were not part and parcel to its breach of contract cause of action against the appellants; therefore, its recovery of attorney’s fees was not impermissible on the basis. Finally, because the Court's disposition of the case substantially affected the trial court’s judgment, a partial remand was warranted so that the trial court could address whether the reasonable and necessary attorney’s fees it awarded to the appellee still were equitable and just in accordance with the judgment rendered by the Court. Accordingly, the judgment was reversed and rendered in part, remanded in part, and affirmed in part.


Because appellant had at least two prior felonies, and the possession of at least two separate firearms in two separate locations, each felon-in-possession conviction was wholly independent of the other
Dorsey v. Texas
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 12, 2019
01-18-00520-CR
Peter Kelly
Published
A grand jury indicted the appellant for possession of a controlled substance, methadone, with intent to deliver and two violations of the statute barring felons from possessing firearms. After the trial court denied the appellant's motion to suppress certain evidence, the appellant pleaded guilty to all three charges. The appellant contended that the trial court erred in denying his motion to suppress the evidence law enforcement officers found in the search of his home. He argues that the victim's identification of him as the shooter was the sole basis for probable cause underlying the search warrant and that the identification procedure used by the officers was impermissibly suggestive in violation of his right to due process. The appellate Court found that viewing the evidence in the light most favorable to the trial court’s decision and deferring to its implied findings of historical fact, the Court held that the trial court did not err in denying the appellant's motion to suppress the evidence. Further, because the appellant's particular circumstances included at least two separate prior felonies, and the possession of at least two separate firearms in two separate locations, each felon-in-possession conviction was wholly independent of the other. Thus, double jeopardy could not attach. Accordingly, the Court affirmed the trial court’s judgments of conviction.


Because the corporation had the contractual right to terminate the purchase and sales agreement based upon breaches by appellants, any conduct by appellees to induce the termination did not constitute tortious interference
Lance Duncan & Mark IV Energy Holdings, LLC v. Hindy
Banking and Finance, Business, Contracts, Torts
Texas 11th Court of Appeals
December 12, 2019
11-17-00283-CV
John M. Bailey
Published
The following appeal arose from a business dispute concerning a large financial investment in oil and gas properties. The case involved multiple written agreements executed by the parties as well as litigation between the parties in multiple counties over a period of time. The trial court granted summary judgment in favor of the appellees on all of the appellants' claims. The appellants filed the suit asserting numerous causes of action. The appellate Court examined the second element of the appellants' tortious interference claim to determine whether the appellees conclusively established that the appellees did not willfully and intentionally interfere with the purchase and sale agreement between the parties. The Court found that even if it accepted the appellants' alleged inference that the appellees induced the corporation individual appellant's corporate entity to terminate the purchase and sale agreement (PSA), the appellants would not have a cause of action against the appellees for tortious interference with an existing contract if the appellees merely induced the corporation into doing what it had a contractual right to do. The corporation sent a written notification to the appellant company that it was terminating the purchase and sale agreement (PSA) pursuant to Paragraphs 15.1(a)(III) and 9.2 of the PSA. Because the corporation had the contractual right to terminate the PSA based upon the breaches, any conduct by the appellees to induce the termination did not constitute tortious interference with an existing contract. Finally, the trial court did not err when it granted the appellees traditional motion for summary judgment as to the appellants tortious-interference-with-a-contract claim. Accordingly, the trial court's judgment was affirmed.    


Because the full record was not filed in the first case, the Court did not receive the full information it needed to grant appellant's requests for relief on limitations, the discovery rule, and fraudulent concealment
Cody Tex., L.P. v. BPL Exploration, Ltd.
Corporations, Procedure, Torts
Texas 4th Court of Appeals
December 11, 2019
04-17-00810-CV
Beth Watkins
Published
The appellant filed a bill of review petition in the trial court. In that petition, the appellant argued its failure to timely file a notice of appeal after the trial on the merits was the result of official mistake unmixed with its own negligence. It also alleged it had three meritorious grounds to appeal the trial court’s May 31, 2013, final judgment. The appellant appealed a November 15, 2017, final judgment in favor of the appellee company. The trial court signed that judgment on remand after the Court reversed the trial court’s denial of the appellant’s petition for bill of review. The appellate Court found that because the full record was not filed in the first case, the Court did not receive the full information it needed to grant appellant's requests for relief on limitations, the discovery rule, and fraudulent concealment. The Court observed that it could not agree with the appellant’s assertion that its “matter of law” argument relieved it of its duty to present the entire record of the trial in the prior case. The Court noted that its holding was a recognition that the trial court correctly denied appellant's petition for bill of review, and that the subsequent proceedings, including the trial court's post-remand final judgment, never should have occurred. Thus, because the Court had overruled the opinion that led to proceedings, the Court also held that the trial court’s November 15, 2017, final judgment including the portion setting aside the trial court’s previous May 31, 2013, final judgment had to be vacated. Under the extraordinary circumstances of the case, the Court concluded that the result was acceptable in equity. Accordingly, the Court vacated the trial court’s November 15, 2017, final judgment and rendered judgment denying the appellant’s petition for bill of review.