In construing the TCPA to apply to such a motion would open the floodgates to serial motions to dismiss during the pendency of litigation based on conduct ancillary to the substantive claims in the case.
Misko v. Johns
Appellate: Civil, Constitution, Damages, Gov't/Administrative, Procedure
Texas 5th Court of Appeals
May 01, 2019
05-18-00487-CV
Ken Molberg
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss the plaintiff’s claims under the Texas Citizens Participation Act (TCPA). On appeal, the defendant argued that the motion for sanctions was a legal action, as defined by the TCPA, and was filed in response to her exercise of the right to petition. The appellate court noted that the stated purpose of the TCPA was to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury. The appellate court found that the definition of “legal action” in the TCPA did not encompass a motion for sanctions alleging discovery abuse by a party that was filed after, and in this case years after, the commencement of litigation. The appellate court concluded that in construing the TCPA to apply to such a motion would open the floodgates to serial motions to dismiss during the pendency of litigation based on conduct ancillary to the substantive claims in the case. Accordingly, the judgment of the trial court was affirmed.
The relator had an adequate remedy, that was an appeal, however, he failed to timely perfect his appeal, and therefore, the relator was not entitled to mandamus relief.
In re Lujan
Appellate: Civil, Constitution, Courts, Procedure
Texas 8th Court of Appeals
April 30, 2019
08-15-00286-CV
Yvonne T. Rodriguez
Published
The respondent (trial court judge) appealed the judgment of the trial court which granted the relator’s writ of mandamus petition, finding that the respondent failed to set the case for trial or enter a judgment. On appeal, the respondent argued that the trial court lacked jurisdiction to issue a mandamus since the Justice Court lacked jurisdiction because the case was not justiciable and moot after the relator satisfied the fine and pleaded nolo contendere. The respondent further maintained the doctrine of laches barred the relator, and that the justice of the peace did not have a ministerial duty to issue a paper judgment in fine-only misdemeanor cases. The relator counterargued that the present case was justiciable and not moot. The appellate court found that to obtain mandamus relief, the relator must show that he had no adequate remedy at law, such as an appeal. The appellate court concluded that the relator had an adequate remedy, that was an appeal, however, he failed to timely perfect his appeal, and therefore, the relator was not entitled to mandamus relief. Accordingly, the judgment of the trial court was reversed.
The appellate court concluded that the defendants did not attempt to reconcile the release language in the amended partnership agreement with statutory language addressing partners’ right of access to books and records.
Raider Ranch, LP v. Lugano, Ltd.
Appellate: Civil, Business, Procedure
Texas 7th Court of Appeals
April 30, 2019
07-17-00156-CV
James T. Campbell
Published
The defendants appealed the judgment of the trial court which denied the Rule 91a motion to dismiss the plaintiffs’ suit for declaratory relief. On appeal, the defendants argued that the trial court erred in denying their Rule 91a motion to dismiss because the release should have been considered along with the limited partners’ live petition and when so considered the pleading was shown frivolous on its face, lacking a basis in law or fact. The appellate court noted that the defendants’ complaint of the trial court’s denial of their motion to dismiss was rendered moot when the court tried the merits of the limited partners’ case and rendered judgment in their favor. The appellate court found that even if the issue was not moot, there was no merit to the defendants’ “optional completeness” argument, which called on the trial court to base its determination on the affirmative defense of release, contained in their pleadings. The appellate court concluded that the defendants did not attempt to reconcile the release language in the amended partnership agreement with statutory language addressing partners’ right of access to books and records. Accordingly, the judgment of the trial court was affirmed.
Because none of the predicates for dismissal for want of prosecution under TEX.R.CIV.P. 165a, or under a trial court’s inherent power were met on the record, the dismissal of the plaintiff’s suit was error.
Arzate v. Andujo
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
April 30, 2019
08-18-00018-CV
Ann Crawford McClure
Published
The plaintiff appealed the judgment of the trial court which dismissed her lawsuit for want of prosecution. This appeal stemmed from the plaintiff’s petition alleging that a year before, the defendant, while intoxicated, entered the Interstate heading in the wrong direction and caused an accident which injured the plaintiff. On appeal, the plaintiff argued that the dismissal hearing was set under Rule 165a and neither of the two grounds for dismissal under that rule applied here, the dismissal could not be supported as an exercise of the trial court’s inherent authority, and the trial court abused its discretion in failing to grant the motion to reinstate. The appellate court noted that a trial court’s authority to dismiss for want of prosecution was governed by Texas Rule of Civil Procedure 165a as well as the court’s inherent power. The appellate court found that although the trial court had broad discretion to dismiss a case for want of prosecution pursuant to its inherent authority, that discretion was not unfettered. The appellate court concluded that because none of the predicates for dismissal for want of prosecution under TEX.R.CIV.P. 165a, or under a trial court’s inherent power were met on the record, the dismissal of the plaintiff’s suit was error. Accordingly, the judgment of the trial court was reversed and remanded.
Under the unambiguous language of section 171.1012(g), the petitioner was required to reduce its COGS deduction by the amount of depreciation it claimed on its federal taxes.
Rent-A-Center, Inc. v. Hegar
Appellate: Civil, Business, Contracts, Procedure, Tax
Texas 3rd Court of Appeals
April 30, 2019
03-18-00247-CV
Jeff Rose
Published
The petitioner appealed the judgment of the trial court which awarded it only a portion of the franchise taxes it paid under protest. On appeal, the appellate court was asked to consider whether the petitioner must reduce its cost-of-goods-sold (COGS) deduction for the merchandise it sold by depreciation on that merchandise during the time it was rented prior to sale, as reflected on its federal tax return. The appellate court noted that the legislature enacted Texas’s franchise tax statutes purely for revenue purposes, and it must liberally construe the relevant statutes so as to effectuate that purpose. The petitioner further asserted that the fact that it depreciated its capitalized merchandise was irrelevant to the franchise tax calculation. The appellate court found that the petitioner chose to capitalize those costs and thus was required to capitalize each cost allowed under this section that it capitalized on its federal income tax return. The appellate court concluded that under the unambiguous language of section 171.1012(g), the petitioner was required to reduce its COGS deduction by the amount of depreciation it claimed on its federal taxes. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that, on balance, the evidence fully supported the trial court’s ruling, and therefore, the defendant was not denied his right to a speedy trial.
Zamarripa v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 30, 2019
14-17-00267-CR
Margaret Poissant
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child under fourteen years of age and sentenced him to prison for thirty years and assessed a fine. On appeal, the defendant challenged the trial court’s denial of his motion to quash the indictment for violation of his right to a speedy trial. The defendant further asserted that his constitutional right to a speedy trial was violated. The appellate court noted that an accused was guaranteed the right to a speedy trial under both the United States and Texas Constitutions. The appellate court found that Texas courts applied the same standard to enforce the state constitutional right to a speedy trial as federal courts use to enforce the Sixth Amendment right to a speedy trial. The appellate court concluded that, on balance, the evidence fully supported the trial court’s ruling, and therefore, the defendant was not denied his right to a speedy trial. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the relators’ allegedly defamatory statements were inextricably intertwined with matters relating to an internal struggle between a current and former leader of the Church over Church governance.
In re Alief Vietnamese Alliance Church
Appellate: Civil, Constitution, Procedure, Torts
Texas 1st Court of Appeals
April 30, 2019
01-18-00127-CV
Evelyn V. Keyes
Published
The relators appealed the judgment of the trial court, seeking a stay of the underlying trial court proceedings pending disposition of their mandamus petition in a defamation action against the relators. On appeal, the relators contended that the trial court clearly abused its discretion when it denied its plea to the jurisdiction because the ecclesiastical abstention doctrine applied and deprived the court of subject-matter jurisdiction. The appellate court noted that to be entitled to mandamus relief, the relator must demonstrate that the trial court abused its discretion and that it had no adequate remedy by appeal. The appellate court found that several Texas courts have addressed the application of the ecclesiastical abstention doctrine to a plaintiff’s tort claims, including claims for defamation. The appellate court concluded that the relators’ allegedly defamatory statements were inextricably intertwined with matters relating to an internal struggle between a current and former leader of the Church over Church governance. Accordingly, the relators’ motion was granted.
The guarantors lacked standing to assert some of their counterclaims and that the summary judgment evidence did not raise a fact issue as to the remainder of their counterclaims and their contract defenses.
Wyrick v. Business Bank of Tex., N.A.
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Torts
Texas 14th Court of Appeals
April 30, 2019
14-18-00062-CV
Kevin Jewell
Published
The guarantors of a promissory note appealed the judgment of the trial court which granted summary judgment enforcing the guaranty in favor of a bank and dismissing the guarantors’ tort claims. On appeal, the guarantors contended that the trial court erred in granting summary judgment to the bank because legally sufficient evidence supported their contract defenses and affirmative counterclaims. The guarantors further challenged the trial court’s permanent anti-suit injunction, which barred them and others, including a company they owned from initiating or proceeding with any related claims they may have against the Bank in any other forum. The appellate court found that the trial court erred in granting the anti-suit injunction. The appellate court concluded that the guarantors lacked standing to assert some of their counterclaims and that the summary judgment evidence did not raise a fact issue as to the remainder of their counterclaims and their contract defenses. Accordingly, the judgment of the trial court was affirmed and modified in part.
The Supreme Court concluded that no evidence supported the objective component of gross negligence, and it did not need to further consider the subjective component.
Medina v. Zuniga
Appellate: Civil, Damages, Discovery, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
April 26, 2019
17-0498
Jeffery Brown
Published
The defendant appealed the judgment of the appellate court which affirmed the trial court’s grant of sanctions and attorney’s fees following a suit for negligence. On appeal, the Supreme Court was asked to consider when, if ever, a trial court could sanction a party who failed to admit negligence during discovery but conceded it at trial. The Supreme Court noted that under Rule 198, a request for admission was deemed admitted—without the necessity of a court order—if a response was not timely served. The Supreme Court found that no evidence supported the jury’s finding that the defendant was grossly negligent. The Supreme Court concluded that no evidence supported the objective component of gross negligence, and it did not need to further consider the subjective component. Accordingly, the judgment of the appellate court was reversed.
The Supreme Court concluded that a fact issue remained as to whether the accident “arose from” the failure to set the emergency brake, and at this stage of the proceedings, no more was required to satisfy section 101.021(1)(A)’s “arises from” requirement.
PHI, Inc. v. Tex. Juvenile Justice Dep’t
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
April 26, 2019
18-0099
James D Blacklock
Published
The petitioner appealed the judgment of the appellate court which ruled in favor of the respondent. On appeal, the Supreme Court was asked to consider whether sovereign immunity barred the helicopter owner’s claim. The respondent argued that there was evidence that a worn gear-shift mechanism was a cause of the accident. The Supreme Court noted that sovereign immunity protected the State of Texas and its agencies and subdivisions from suit and liability. The Supreme Court found that portions of the claim should have been allowed to proceed. The Supreme Court concluded that a fact issue remained as to whether the accident “arose from” the failure to set the emergency brake, and at this stage of the proceedings, no more was required to satisfy section 101.021(1)(A)’s “arises from” requirement. Accordingly, the judgment of the appellate court was reversed and remanded.
The respondent’s action in filing and prosecuting a suit seeking to enforce the superseded judgment was interfering with the relator’s right to supersede the judgment and pursue its appeal to this Court.
In re Tex. Dep’t of Transp.
Appellate: Civil, Civil Rights, Constitution, Courts, Gov't/Administrative, Procedure, Transportation
Texas 8th Court of Appeals
April 24, 2019
08-18-00132-CV
Yvonne T. Rodriguez
Published
The relator appealed the judgment of the trial court, seeking a writ of prohibition against the trial court judge, asking that it prohibit the judge from exercising jurisdiction over the underlying case because that proceeding was interfering with this Court’s jurisdiction in a pending appeal. On appeal, the relator challenges the respondent’s efforts to enforce the superseded judgment by filing a new suit, arguing that the continued prosecution of the respondent’s suit was an impermissible attempt to enforce the superseded judgment that was the subject of its appeal. The appellate court noted that the appellate court had the power to issue all writs necessary to enforce its jurisdiction. The appellate court found that the respondent’s action in filing and prosecuting a suit seeking to enforce the superseded judgment was interfering with the relator’s right to supersede the judgment and pursue its appeal to this Court. The appellate court concluded that the writ of prohibition would issue only if the trial court failed to act in accordance with this opinion. Accordingly, the relator’s writ was conditionally granted.
The trial court properly concluded that it could not exercise specific jurisdiction over the defendants because it negated jurisdiction on legal basis by showing that even if plaintiff’s alleged facts were true, defendants’ contacts with Texas did not amount to purposeful availment.
11500 Space Ctr., L.L.C. v. Private Capital Group, Inc.
Appellate: Civil, Constitution, Contracts, Creditor/Debtor, Procedure, Torts
Texas 1st Court of Appeals
April 25, 2019
01-17-00896-CV
Evelyn V. Keyes
Published
The plaintiffs appealed the judgment of the trial court which granted the defendant’s special appearance in a suit alleging deceptive trade practices, fraud, negligent misrepresentation, and money had and received. On appeal, the plaintiffs argued that the trial court erred in granting the defendant’s special appearance because the plaintiffs pleaded and proved sufficient jurisdictional facts, which the defendant failed to negate, the exercise of jurisdiction would not offend the traditional notions of fair play and substantial justice, and the trial court relied on the defendant’s legally insufficient affidavit. The appellate court noted that Texas courts could exercise personal jurisdiction over a nonresident if the long-arm statute authorized it, consistent with federal and state constitutional due process guarantees. The appellate court found that the trial court properly concluded that it could not exercise specific jurisdiction over the defendants because it negated jurisdiction on legal basis by showing that even if plaintiff’s alleged facts were true, defendants’ contacts with Texas did not amount to purposeful availment. The appellate court concluded that the defendants lacked Texas connections. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the trial court did not err in granting the Workforce Commission’s motion for summary judgment and denying the School District’s competing motion.
Houston Indep. Sch. Dist. v. Tex. Workforce Comm’n
Appellate: Civil, Damages, Employment, Gov't/Administrative, Procedure, Tax
Texas 3rd Court of Appeals
April 25, 2019
03-18-00123-CV
Edward Smith
Published
The School District appealed the judgment of the trial court which granted final judgment in favor of the Workforce Commission in a suit to recover allegedly overpaid unemployment taxes. On appeal, the School District contended that Section 204.086(a) imposed no liability for any unemployment taxes arising from benefits paid to the former employees because the school was not “indebted” for those sums at the time of annexation. The appellate court noted that the Texas Unemployment Compensation Act provided short-term financial relief for individuals who became unemployed through no fault of their own. The School District further maintained that Section 204.086(a) should not apply because it did not hire the employees who received unemployment benefits, and—unlike in the private sector—this was not a voluntary acquisition of one employer by another. The appellate court found that the Unemployment Compensation Act applied to nearly all employers, including non-profit organizations and governmental entities. The appellate court concluded that the trial court did not err in granting the Workforce Commission’s motion for summary judgment and denying the School District’s competing motion. Accordingly, the judgment of the trial court was affirmed.
Since the evidence was insufficient to prove any culpable mental state, the defendant was entitled to a judgment of acquittal.
Erwin v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 24, 2019
06-18-00058-CR
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which convicted her of exploitation of an elderly individual and sentenced her to ten years’ imprisonment but suspended the sentence in favor of placing her on community supervision for six years. On appeal, the defendant argued that the evidence was legally insufficient to support her conviction. The appellate court noted that legal sufficiency of the evidence was measured by the elements of the offense as defined by a hypothetically correct jury charge. The appellate court found that to obtain a conviction, the State was required to prove beyond a reasonable doubt that the defendant, for monetary or personal benefit, profit, or gain, intentionally, knowingly, or recklessly caused the exploitation of an elderly person, by the illegal or improper use of funds from her bank account. The appellate court concluded that since the evidence was insufficient to prove any culpable mental state, the defendant was entitled to a judgment of acquittal. Accordingly, the judgment of the trial court was reversed.
The charge error was not egregiously harmful because it did not affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.
Servin v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 24, 2019
04-16-00671-CR
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of aggravated robbery. On appeal, the defendant contended that the jury charge failed to link the appropriate mens rea to its respective conduct element resulting in egregious harm. The defendant further asserted that he was egregiously harmed by the charge error. The State conceded that the jury charge was erroneous, however, the State asserted that the record did not establish egregious harm. The appellate court noted that if the jury believed the defendant was guilty of robbery, he necessarily was guilty of aggravated robbery because it was undisputed that the victims were over the age of 65. The appellate court found that the mental states and conduct elements applicable to each element of the offense was not the focus at trial or during closing argument. The appellate court concluded that the charge error was not egregiously harmful because it did not affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Accordingly, the judgment of the trial court was affirmed.
The pilots failed to affirmatively allege facts that invoked the trial court’s jurisdiction, and it was not aware of any way they could cure these jurisdictional defects through repleading.
Gant v. Abbott
Appellate: Civil, Gov't/Administrative, Procedure, Transportation
Texas 3rd Court of Appeals
April 24, 2019
03-18-00360-CV
Gisela D. Triana
Published
The pilots appealed the judgment of the trial court, seeking the ability to apply for Texas deputy branch pilot certification and branch pilot licensure in Galveston County without going through the current process, claiming that the process was unconstitutional in that it granted an impermissible monopoly to the Galveston-Texas City Pilots Association. On appeal, the pilots s sought declaratory and injunctive relief under the Administrative Procedures Act (APA) and the Uniform Declaratory Judgments Act (UDJA) on the grounds that sections 67.033(4), 67.034(3), and 67.035 of the Texas Transportation Code violated the Monopoly Clause of the Texas Constitution and that the Board failed to adopt rules in accordance with the APA. The pilots further challenged the trial court’s order denying their motion for summary judgment and granting the defendants’ motions. The appellate court noted that Section 67.033 of the Galveston Act set out the statutory requirements of eligibility for branch pilots. The appellate court found that the Galveston Act assigned rulemaking authority to the Board, not the Governor, through its general grant of rulemaking authority. The appellate court concluded that the pilots failed to affirmatively allege facts that invoked the trial court’s jurisdiction, and it was not aware of any way they could cure these jurisdictional defects through repleading. Accordingly, the judgment of the trial court was affirmed in part and vacated in part.
The insurer did not owe the decedent a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence.
Kenyon v. Elephant Ins. Co., LLC
Appellate: Civil, Damages, Insurance, Litigation: Personal Injury, Procedure, Torts, Wills/Trusts/Probate
Texas 4th Court of Appeals
April 24, 2019
04-18-00131-CV
Sandee Bryan Marion
Published
The Estate appealed the judgment of the trial court which granted partial summary judgment in favor of insurer. On appeal, the Estate argued that the trial court erred in ruling that the insurer did not owe the decedent a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence. The Estate further maintained that the trial court erred in granting summary judgment on her claims for Texas Insurance Code and Texas Deceptive Trade Practices Act (DTPA) violations based on alleged misrepresentations. The appellate court noted that the trial court granted the insurer’s motion for traditional summary judgment on the Estate’s common law negligence claim based on its conclusion that the insurer did not owe the decedent a duty of care. The appellate court found that the insurer did not owe the decedent a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence. The appellate court concluded that it lacked jurisdiction to consider the Estate’s second issue. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the district court lacked jurisdiction over the remainder of the plaintiff’s claims.
Data Foundry, Inc. v. Austin
Appellate: Civil, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
April 23, 2019
14-18-00071-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which dismissed the suit over its pricing of electricity on the ground that it lacked standing. On appeal, the City argued that the plaintiff was asserting only a generalized injury for which it lacked standing. The plaintiff maintained that the City unbundled wholesale transmission costs from retail transmission costs. The appellate court noted that the trial court had jurisdiction to consider these claims if standing requirements were satisfied, because a court could review a claim that rates were exorbitant or that the amount of its return was so high as to violate the ratepayer’s constitutional rights. The appellate court found that the plaintiff had standing to complain that the City’s retail electricity rates were excessive in that the City’s alleged 12% rate of return and its 2.36 debt-service coverage ratio were claimed to be unreasonably high, and the trial court had jurisdiction to determine whether the resulting rates were unreasonable. The appellate court concluded that the district court lacked jurisdiction over the remainder of the plaintiff’s claims. Accordingly, the judgment of the trial court was reversed in part and remanded for further proceedings.
The appellate court concluded that a genuine fact issue as to waiver precluded summary judgment in the seller’s favor
Rima Group, Inc. v. Janowitz
Appellate: Civil, Contracts, Damages, Procedure, Real Property
Texas 14th Court of Appeals
April 23, 2019
14-17-00466-CV
Kem Thompson Frost
Published
The buyer appealed the judgment of the trial court which granted the seller’s summary-judgment motion as to the buyer’s claims for specific performance of the contracts. On appeal, the buyer challenged the trial court’s ruling that as a matter of law the seller properly terminated the contracts. Specifically, the buyer maintained that the trial court erred in granting summary judgment because the Trust failed to present evidence that the Trust terminated each contract in good faith and there was evidence that the Trust failed to act in good faith in terminating the contracts, and the trial court erred in granting the Trust’s summary-judgment motion as to attorney’s fees. The appellate court noted that as to a traditional motion for summary judgment, if the movant’s motion and summary-judgment evidence facially established its right to judgment as a matter of law, the burden shifted to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. The appellate court found that the Trust did not have a duty to act in good faith in terminating the contracts. The appellate court concluded that a genuine fact issue as to waiver precluded summary judgment in the seller’s favor. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.
The trial court’s reason for ordering a mistrial was both sufficiently specific and legally appropriate, and its reason for granting a mistrial was supported by the record, therefore, the relators did not establish their entitlement to mandamus relief.
In re Hightower
Appellate: Civil, Evidence, Procedure, Real Property
Texas 14th Court of Appeals
April 23, 2019
14-19-00047-CV
Frances Bourliot
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus asking the court to compel the trial court judge to withdraw the court’s order granting a mistrial and enter a take-nothing judgment in the relators’ favor. On appeal, the relators argued that the plaintiffs waived any objection they may have had to their exhibit by failing to make a contemporaneous objection at trial. The appellate court noted that a trial court’s order granting a new trial after a jury trial was subject to mandamus review, and a new trial order initially must satisfy two “facial requirements.” The appellate court found that the trial court’s order satisfied the second requirement of specificity because the order contained the specific facts and circumstances of the case that led the trial court to reach its conclusion. The appellate court concluded that the trial court’s reason for ordering a mistrial was both sufficiently specific and legally appropriate, and its reason for granting a mistrial was supported by the record, therefore, the relators did not establish their entitlement to mandamus relief. Accordingly, the relators’ petition was denied.
The relators have no adequate remedy on appeal and the trial court abused its discretion by issuing the discovery order and by granting the excessive discovery requests.
In re SSCP Mgmt., Inc.
Appellate: Civil, Constitution, Contracts, Damages, Discovery, Gov't/Administrative, Procedure, Real Property
Texas 2nd Court of Appeals
April 22, 2019
02-19-00098-CV
Mark T. Pittman
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus, complaining that the trial court abused its discretion when it ordered them to respond to numerous discovery requests during the pendency of their motions to dismiss. On appeal, the appellate court was asked to explore the amount of discovery allowed once a motion to dismiss under the Texas Citizens Participation Act (TCPA) had been filed but not yet ruled upon by the trial court. The relators contended that “good cause” was not shown justifying such discovery, the permitted discovery was not “specified and limited” or relevant to the motions to dismiss as required by the TCPA, and their appellate remedy was inadequate. The appellate court noted that mandamus relief was proper only to correct a clear abuse of discretion when there was no adequate remedy at law, such as a normal appeal. The appellate court found that the burden of establishing an abuse of discretion and no adequate remedy on appeal was on the party resisting discovery, and this burden was a heavy one. The appellate court concluded that the relators have no adequate remedy on appeal and the trial court abused its discretion by issuing the discovery order and by granting the excessive discovery requests. Accordingly, the relators’ writ was conditionally granted.
The appellate court found legally sufficient evidence supported the jury’s findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint.
Apache Corp. v. Davis
Appellate: Civil, Civil Rights, Damages, Employment, Procedure
Texas 14th Court of Appeals
April 04, 2019
14-17-00306-CV
Ken Wise
Published
The employer appealed the judgment of the trial court which rendered judgment in favor of the employee on her retaliation claim under Chapter 21 of the Texas Labor Code. Thereafter, the jury awarded the employee no back pay and no future compensatory damages, but it did award her past compensatory damages for her emotional pain and suffering and other noneconomic losses related to the retaliation claim. On appeal, the employer challenged the trial court’s judgment, arguing there was legally insufficient evidence that the employer engaged in protected activity, but-for causation was lacking, the jury charge was erroneous based on Casteel error, and the attorneys’ fees awarded by the trial court were unreasonable and unsupported by sufficient evidence. The appellate court found legally sufficient evidence supported the jury’s findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint. The appellate court concluded regarding the attorneys’ fees that there was sufficient evidence to support the award of fees with the exception of a portion of the fees awarded for the time. Accordingly, the judgment of the trial court was affirmed.
The Supreme Court concluded that dismissal of the plaintiff’s lawsuit was required because this falsified-medical-records claim was a health care liability claim subject to the Act’s expert-report requirements.
Scott v. Weems
Appellate: Civil, Gov't/Administrative, Health Care, Procedure, Torts
The Supreme Court of Texas
April 26, 2019
17-0563
Eva M. Guzman
Published
The defendant appealed the judgment of the appellate court which ruled in favor of the plaintiff in his claim asserting that a nurse fraudulently recorded information in a patient’s medical records. On appeal, the defendant claimed that he was injured by a health care provider’s falsification of a patient’s medical records during the course of medical treatment alleging a departure of accepted standards of professional or administrative services directly related to health care. The Supreme Court noted that the Texas Medical Liability Act (Act) required a claimant pursuing a health care liability claim to timely serve an adequate expert report, and failure to do so required dismissal with prejudice. The Supreme Court found that the plaintiff did not serve anything resembling an expert report, either in name or substance, and therefore, his suit must be dismissed with prejudice if he was asserting a health care liability claim. The Supreme Court concluded that dismissal of the plaintiff’s lawsuit was required because this falsified-medical-records claim was a health care liability claim subject to the Act’s expert-report requirements. Accordingly, the judgment of the appellate court was reversed.
When a fee claimant sought to recover attorney’s fees from an opposing party, it must put on evidence of reasonable hours worked multiplied by a reasonable hourly rate, yielding a base figure that could be adjusted by considerations not already accounted.
Rohrmoos Venture v. UTSW DVA Healthcare, LLP
Appellate: Civil, Contracts, Damages, Landlord and Tenant, Procedure
The Supreme Court of Texas
April 26, 2019
16-0006
Paul W. Green
Published
The petitioners appealed the judgment of the appellate court which awarded the respondent attorney’s fees with the conditional appellate awards, and which denied the petitioners’ motion to reform the judgment or for a new trial. On appeal, the Supreme Court was asked to consider whether a tenant could terminate a commercial lease contract for the landlord’s prior material breach, and whether the evidence offered to prove attorney’s fees was sufficient under precedent for fee-shifting awards. The petitioners attacked the jury’s finding that it breached the implied warranty of suitability established under Davidow. The respondent maintained that the Davidow issue was not properly before this Court because the petitioners did not object to the jury charge regarding material breach. The Supreme Court found that under Davidow v. Inwood North Professional Group–Phase I, termination was a justified remedy when the landlord breached the commercial lease. The Supreme Court concluded that when a fee claimant sought to recover attorney’s fees from an opposing party, it must put on evidence of reasonable hours worked multiplied by a reasonable hourly rate, yielding a base figure that could be adjusted by considerations not already accounted for in either the hours worked or the rate. Accordingly, the judgment of the appellate court was affirmed in part, reversed in part and remanded for further proceedings.
The defendant established a violation of his right to a speedy trial because the State did not introduce any evidence in the trial court to detail the reasons why the defendant would suffer no prejudice because of the delay.
Sanchez v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 17, 2019
04-18-00302-CR
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which convicted him of felony assault of a family member. On appeal, the defendant contended that the trial court erred in denying his motion to dismiss based on the violation of his right to a speedy trial due to a six-year delay between indictment and his arrest. The defendant further asserted that the trial court erred in admitting hearsay in violation of his constitutional right to confront the witnesses against him. The appellate court noted that under the Barker test, it must first whether the length of delay between the arrest or formal accusation and trial was so long as to be presumptively prejudicial. The appellate court found that more than six years elapsed between the defendant’s formal accusation by indictment and his arrest and trial, and the State conceded that this delay was presumptively prejudicial. The appellate court concluded that the defendant established a violation of his right to a speedy trial because the State did not introduce any evidence in the trial court to detail the reasons why the defendant would suffer no prejudice because of the delay. Accordingly, the judgment of the trial court was reversed.
The appellate court concluded that the erroneous jury charge did not egregiously harm the defendant and the defendant did not show that counsel rendered ineffective assistance.
Tiller v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 15, 2019
06-18-00153-CR
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child and sentenced him to seventy-five years’ imprisonment on each count. On appeal, the defendant argued that the jury charge was erroneous because it allowed for non-unanimous verdicts and that his counsel rendered ineffective assistance throughout the trial. The appellate court noted that the jury was the exclusive judge of the facts, but it was bound to receive the law from the court and be governed thereby. The appellate court found that the State’s evidence at the defendant’s trial included more than one instance of aggravated sexual assault to support each count for which the defendant was convicted, and thus, the jury could have relied on separate incidents of criminal conduct, which constituted different offenses or separate units of prosecution in finding the defendant’s guilt. The appellate court concluded that the erroneous jury charge did not egregiously harm the defendant and the defendant did not show that counsel rendered ineffective assistance. Accordingly, the judgment of the trial court was affirmed.
Viewing the evidence in the light most favorable to the trial court’s order and indulging every reasonable inference in favor of the ruling, the defendant did not show that the trial court abused its discretion in granting the temporary injunction.
RWI Constr., Inc. v. Comerica Bank
Appellate: Civil, Banking and Finance, Creditor/Debtor, Procedure, Torts
Texas 5th Court of Appeals
April 12, 2019
05-18-00265-CV
David Schenck
Published
The defendant appealed the judgment of the trial court which enjoined it from taking any action with respect to the excess proceeds other than depositing them into the registry of the court to be held in an interest bearing account pending a trial. On appeal, the appellate court was asked to determine whether the trial court erred in granting the bank’s request for a temporary injunction. The defendant claimed that the trial court abused its discretion in entering the injunction because the bank did not establish that it would suffer an irreparable injury for which the remedy at law would be inadequate. The appellate court noted that the purpose of a temporary injunction was to maintain the status quo of the litigation’s subject matter pending a trial on the merits. The appellate court found that viewing the evidence in the light most favorable to the trial court’s order and indulging every reasonable inference in favor of the ruling, the defendant did not show that the trial court abused its discretion in granting the temporary injunction. Accordingly, the judgment of the trial court was reversed in part and affirmed in part and remanded.
The Supreme Court concluded that under Section 256.003(a), when an applicant sought late-probate of a will in her individual capacity, only the applicant’s conduct was relevant to determining whether she was not in default.
Ferreira v. Butler
Appellate: Civil, Procedure, Real Property, Wills/Trusts/Probate
The Supreme Court of Texas
April 12, 2019
17-0901
Nathan L. Hecht
Published
The petitioner appealed the judgment of the appellate court which granted the respondents’ motion for summary judgment and dismissed the petitioner’s application to probate the decedent’s will. On appeal, the respondents argued that the petitioner’s pleadings were determinative. The Supreme Court noted that a devisee’s default was imputed to his own devisee, though the latter was not himself in default, but the statute plainly stated that it was the applicant who must be in default for limitations to run. The Supreme Court found that since the petitioner was standing in the shoes of the administrator of the estate, the default inquiry must focus on the administrator, and it was undisputed that there was no proof that the administrator was not in default in failing to probate the decedent’s will within four years of her death. The Supreme Court concluded that under Section 256.003(a), when an applicant sought late-probate of a will in her individual capacity, only the applicant’s conduct was relevant to determining whether she was not in default. Accordingly, the judgment of the appellate court was vacated and remanded.
Since section 101.056 of the Tort Claims Act, known as the discretionary function exception, applied, governmental immunity barred the petitioners’ claims.
Tarrant Reg’l Water Dist. v. Johnson
Appellate: Civil, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
April 12, 2019
17-0095
James D Blacklock
Published
The Water District appealed the judgment of the appellate court which denied its plea to the jurisdiction. On appeal, the Supreme Court was asked to examine the Tort Claims Act to determine whether the Legislature had authorized this suit against the Water District. The Water District argued that, by operation of section 101.056, immunity barred all the petitioners’ claims, including those based on the scoured area of the riverbed and the alleged boil effect. The Water District also asserted that the petitioners’ premise-defect claim did not support a waiver of immunity because the petitioners’ decedent chose to encounter the open and obvious risk that she might drown. The Supreme Court noted that the Water District was a political subdivision of the State of Texas. The Supreme Court found that the Water District could have maintained the riverbed at a constant eight-foot depth if it chose to do so. The Supreme Court concluded that since section 101.056 of the Tort Claims Act, known as the discretionary function exception, applied, governmental immunity barred the petitioners’ claims. Accordingly, the judgment of the appellate court was reversed in part.
The petitioners had the burden to show that the respondents engaged in acts of self-dealing that unfairly diminished the value of the petitioners’ non-executive interest, and that burden was not me.
Tex. Outfitters Ltd., LLC v. Nicholson
Appellate: Civil, Damages, Oil, Gas, & Mineral, Procedure, Real Property, Torts
The Supreme Court of Texas
April 12, 2019
17-0509
Debra Ann H. Lehrman
Published
The petitioners appealed the judgment of the appellate court which affirmed the trial court’s decision, finding that the executive violated its duty. On appeal, the Supreme Court was asked to apply the duty in the context of an executive’s refusal to lease in contravention of the non-executive’s known wishes. The Supreme Court noted that the petitioners had the burden to show that the respondents engaged in acts of self-dealing that unfairly diminished the value of the petitioners’ non-executive interest, and that burden was not me. The Supreme Court found that the holder of the executive right to lease a mineral estate owed non-participating mineral and royalty-interest owners a duty of utmost good faith and fair dealing. The Supreme Court concluded that, while its parameters were imprecise, at bottom, the executive was prohibited from engaging in acts of self-dealing that unfairly diminished the value of the non-executive interest. Accordingly, the judgment of the appellate court was affirmed.
Based on the evidence in the record, that disclosing the source’s identity would create a substantial threat of physical harm to the source’s employees and others, and therefore need not be disclosed.
Tex. Dep’t of Criminal Justice v. Levin
Constitution, Criminal, Evidence, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 12, 2019
17-0552
Paul W. Green
Published
The Department of Criminal Justice (the Department) appealed the judgment of the appellate court which ruled that the inmates were permitted to the information sought, which was the source of drugs used in Texas executions by lethal injection. On appeal, the Supreme Court was asked to consider whether the public’s right to information under the Texas Public Information Act (PIA) was subject to reasonable limitations when its production could lead to physical harm. The Supreme Court noted that the PIA embodied a powerful policy that each person was entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The Supreme Court found that if the evidence, viewed in a light most favorable to the Department where reasonable jurors could, produced no genuine issue of material fact and established as a matter of law that the Cox physical-safety exception applied, then it must reverse the appellate court’s judgment. The Supreme Court concluded, based on the evidence in the record, that disclosing the source’s identity would create a substantial threat of physical harm to the source’s employees and others, and therefore need not be disclosed. Accordingly, the judgment of the appellate court was reversed.