If a party failed to properly object to constitutional errors at trial, those errors could be forfeited and the record established that the appellant failed to raise any Confrontation Clause or due process complaints
Garcia v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
June 22, 2018
06-18-00008-CR
Josh R. Morriss III
Published
The appellant was convicted by a jury of aggravated sexual assault of the victim, a disabled individual, sentenced to sixty years’ imprisonment, and ordered to pay a $10,000.00 fine. The appellate Court found that the evidence at trial established that, as a result of a guardianship proceeding, the victim's mother was appointed as the victim’s permanent legal guardian of the victim’s person and estate. The mother was initially excluded from the courtroom as many of the State’s witnesses testified. When the State asked that she be allowed to remain during the victim’s testimony, the appellant failed to argue or make any showing that the mother’s testimony would be materially affected if she heard the victim’s testimony, presumably because the mother testified before the victim and was not recalled. Additionally, the record also showed that the appellant failed to make an offer of proof justifying the victim mother’s exclusion. As a result, the Court found no error in the trial court’s decision to allow the mother to remain in the courtroom and overrule the appellant’s point of error. Finally, if a party failed to properly object to constitutional errors at trial, those errors could be forfeited. The record established that the appellant failed to raise any Confrontation Clause or due process complaints. Accordingly, the trial court’s judgment was affirmed.


The officer’s comment rose to the level of an “extreme” or incurable error such that a mistrial was warranted
Gomez v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
June 21, 2018
02-17-00002-CR
Bonnie Sudderth
Published
The appellant challenged his conviction for family-violence assault and assessed a nine-year sentence. The appellate Court observed that the appellant’s counsel rejected the trial court’s offer to instruct the jury to disregard the officer’s statement during trial, the jury was nevertheless instructed in the trial court’s charge to disregard any evidence of extraneous offenses. The Court found no indication that the jury ignored such instruction. The Court did not believe that the officer’s comment rose to the level of an “extreme” or incurable error such that a mistrial was warranted. Thus, the trial court did not abuse its discretion by denying the appellant’s motion for a mistrial. Further, the situation would be no different, if a declarant was able to speak and make a statement in English but was unable to read the English language due to illiteracy. The statement as written was accurate and required a level of trust, but there was no evidence in that record that such trust was misplaced. Thus, there was nothing in the record to indicate that the trial court acted arbitrarily in finding that the circumstances of the statement did not cast doubt on its trustworthiness. Accordingly, the trial court's judgment was affirmed.


The agreed scheduling order did not establish the intent of the parties to extend the statutory expert report deadline mandated under section 128.053, as it was generic and did not specifically reference expert report
Alpine Indus., Inc. v. Whitlock
Contracts, Employment
Texas 2nd Court of Appeals
June 21, 2018
02-17-00396-CV
Bonnie Sudderth
Published
The appellants challenged the trial court’s denial of their motion to dismiss based on the failure of the appellees to timely file a threshold expert report as required under civil practice and remedies code section 128.053 of civil practice and remedies code. The parties disputed whether a scheduling order, agreed to by the parties, that purported to extend expert report deadlines but made no explicit reference to the 90-day statutory deadline, would extend the statutory deadline for submitting the threshold expert report. The appellate Court found that the reasoning of the supreme court in the two cases lead the Court to conclude with regard to subissue 1a that because the agreed scheduling order was generic and did not specifically reference the section 128.053 expert report, it did not establish the intent of the parties to extend the statutory expert report deadline mandated under section 128.053. Further, the legislature chose to define the reach of chapter 128 to sport shooting ranges, their “owners or operators,” and the owner of the real property where the range was operated. The Court could not read into the statute that which was not there, and the failure to include the term “employee” within the scope of the statute did not render the statute meaningless. Having analyzed the subissues for which permissive appeal was granted, the Court affirmed the portion of the trial court’s order denying the motion to dismiss as to the individual appellant but reversed that portion of the trial court’s order denying the motion to dismiss as to the appellant corporation and remanded the case to the trial court.


Sovereign immunity barred the petitioners from asserting their counterclaims against the state, as it was neither waived nor abrogated
Nazari v. State
Gov't/Administrative, Torts
The Supreme Court of Texas
June 22, 2018
16-0549
Jeffery Brown
Published
In the instant enforcement action under the Texas Medicaid Fraud Prevention Act (the Act), the State of Texas alleged that several dentists and their professional associations and employees (collectively, the petitioners) fraudulently obtained Medicaid payments for providing dental and orthodontic treatments to children. In response, the petitioners asserted counterclaims and third-party claims alleging that the state and its contractor mismanaged the payment-approval process and misled the petitioners regarding the requirements that the Texas Medicaid Program (the Program) imposed. The state filed a plea to the jurisdiction against the counterclaims and a motion to dismiss the third-party claims. The trial court granted both. The appellate court affirmed. The Texas Supreme Court found penalty could not be offset against the state any more than a prison sentence, as applying the Reata rule to penalties would run counter to Reata itself and would thwart the primary justifications underlying sovereign immunity’s very existence. Thus, the rule never applied to offset a penalty. Further, because it was neither waived nor abrogated, sovereign immunity barred the petitioners from asserting their counterclaims against the state. There were some monetary actions for which no monetary setoff could be available. Penalties were among them. Accordingly, the Court affirmed the appellate court’s judgment.


The trial court’s judgment dismissal of petitioner’s tort claim was affirmed, as a general interference tort was not the appropriate solution to the subject probate issue
Archer v. Anderson
Litigation: Personal Injury, Real Property, Wills/Trusts/Probate
The Supreme Court of Texas
June 22, 2018
16-0256
Nathan L. Hecht
Published
The deceased suffered a stroke and was hospitalized for several weeks. The deceased complained that the attorney deceased was forcing him to sell the ranch against his will, so the attorney deceased dropped the proposal. The petitioners brought the instant action against the attorney deceased’s estate for intentional interference with their inheritance, alleging that the attorney deceased influenced the deceased to disinherit them. The appeals court reversed and rendered judgment for the attorney deceased. The Texas Supreme Court found that the fundamental difficulty with the tort was that it claimed for the judiciary the authority to supplant or augment statutory probate law and settled remedies and principles whenever they were perceived to be unfair. Further, the tort was available only if a probate court, for whatever reason, lacked the power to provide redress. But limits on a probate court’s power were among the “limits and restrictions” of probate law with which the tort was not meant to interfere. Given probate law’s extensive and thorough provisions to protect an owner’s free devise of his property, the lack of further remedies was viewed not as legislative oversight but legislative choice. Furthermore, the factual scenarios posited by the professor were by no means an exhaustive list of cases in which proponents of recognizing the tort argued that it was necessary to fill a gap left open by probate procedures. Still, the Court was unable to imagine a situation in which the lack of a full remedy was not a legislative choice or a matter for targeted legislative amendments to probate law and procedures. A general interference tort was not a solution. Finally, the remaining issues were rejected. Accordingly, the trial court's judgment was affirmed.


When a statute’s more-specific fault-allocation scheme conflicted with Chapter 33, legislative intent suggested declining to apply Chapter 33 even without an explicit exemption in the proportionate-responsibility statute
In re Xerox Corp.
Contracts, Damages, Health Care, Torts
The Supreme Court of Texas
June 22, 2018
16-0671
Eva M. Guzman
Published
In the instant mandamus proceeding, the Court considered whether the proportionate-responsibility scheme in Chapter 33 of the Texas Civil Practice and Remedies Code applied to a civil-remedy action under the Texas Medicaid Fraud Prevention Act (TMFPA). The trial court held Chapter 33 inapplicable, struck the relators’ third-party petition seeking contribution under Chapter 33, and denied the relators’ motion to designate responsible third parties. The appellate court denied mandamus relief, as did the court. The Texas Supreme Court found that Chapter 33 did not apply to the Texas Medicaid Fraud Prevention Act (TMFPA) action because a TMFPA civil-remedy action was not an “action for recovery of damages” subject to apportionment, and the TMFPA’s mitigated-fault provision and other financial incentives for informants conflicted with Chapter 33. Further, the Court was satisfied that construing the Court's statutes according to their plain and ordinary language ultimately lead to alignment with federal and state analogues. Accordingly, the Court denied the relator's petition for writ of mandamus.    


The judgment of the trial court was reversed, as there was no evidence of the circumstances of the ROFR’s creation or the purposes intended, except for the recitals contained in the Settlement Agreement
MJR Oil & Gas 2001 LLC v. Ariesone, LP
Contracts, Real Property
Texas 6th Court of Appeals
June 22, 2018
06-17-00116-CV
Bailey C. Moseley
Published
The instant dispute was about a right of first refusal (ROFR) in certain oil and gas leases on various properties. It was undisputed that a ROFR in favor of the appellant company was contained in an unrecorded Settlement and Release Agreement (the Settlement Agreement) between two groups of owners of an oil company, including the appellant and the company. At issue in the instant case was whether the appellant’s ROFR was a covenant running with the land, and therefore enforceable against the assignees and successors in interest to the company: the appellee companies. The appellate Court found that it was the duty of the second appellee company, the appellee company, and their assigns to investigate the terms of the Settlement Agreement, and they were charged with notice of its contents. An investigation of the Settlement Agreement would have revealed the existence of a ROFR and that it was binding on the assigns and successors of the company. Therefore, to the extent that an unbroken chain of title had been shown from the company to the appellees, appellees were charged with notice of the ROFR. Since the appellant’s ROFR satisfies all of the elements, the Court held that it was a covenant running with the land. Thus, the Court held that the trial court erred in granting summary judgment to the second appellee company, the third appellee company, and the fourth appellee company. Also, the Court held that the appellee company’s argument that the ROFR was not a covenant running with the land did not support the trial court’s summary judgment in its favor. Accordingly, the Court reversed the trial court’s judgment and remanded.


Appellants’ claims were not barred by the doctor’s settlement with his insurers, because Phillips acknowledged a direct claim, and because the Court was bound by the supreme court’s precedent
Hernandez v. Truck Ins. Exchange
Damages, Insurance, Torts
Texas 2nd Court of Appeals
June 21, 2018
02-17-00046-CV
Bonnie Sudderth
Published
The deceased died from massive blood loss following a liver biopsy. Almost two years later, the appellants, the deceased’s parents, filed a wrongful death action against both the doctor and the hospital where their son died. The hospital settled prior to the first trial, which resulted in a hung jury, and on retrial a different jury awarded $2,679,000 to the appellants, which—after the trial court applied the statutory caps on medical negligence damages and accounted for the hospital’s settlement—resulted in a judgment of $1,818,601.63 against the doctor, from which he appealed. The appellate Court affirmed the trial court’s judgment. The appellate Court held that the appellants’ claims were not barred by the doctor’s settlement with his insurers, because Phillips v. Bramlett (Phillips I), 288 S.W.3d 876 (Tex. 2009), acknowledged a direct claim, and because the Court was bound by the supreme court’s precedent. Further, because the appellants’ claims were not time-barred or barred by the September 1, 2003 effective date of the 2003 statute, the appellants could pursue damages amounting to the difference between the capped judgment and the verdict. Accordingly, the Court reversed the trial court’s judgment and remanded.


A rational jury could have found beyond a reasonable doubt that the appellant was intentional or knowing in not providing one or more of the horses in his care enough nutrition
Cadwell v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
June 21, 2018
06-17-00227-CR
Josh R. Morriss III
Published
The appellant and his estranged wife were involved in divorce proceedings. Various horses belonging to them, but having been ordered into the appellant's custody, lost weight, reportedly due to inadequate nutrition according to his wife and other witnesses. That was particularly true of an older horse that customarily had been ridden by the appellant's wife. That resulted in the appellant's conviction for cruelty to livestock animals and a sentence of 180 days in jail, a sentence which was probated to twenty-four months on condition that the appellant serve thirty days in jail. The appellate Court found that given the body condition of the horses, the veterinarian was surprised with the relatively low parasite presence in most of them. Based on her examination, she concluded that the most likely reason for the horses’ thinness was that they were not being fed properly. If a horse had the choice of grass, hay, and goat weed, it would usually eat grass first, then hay, and finally goat weed if it was hungry. Thus, a rational jury could have found beyond a reasonable doubt that the appellant was intentional or knowing in not providing one or more of the horses in his care enough nutrition. Further, because the use of the phrase “by neglect” set out the manner and means of committing the offense and because the information and jury charge clearly set out the required mens rea of intentional or knowing behavior by the appellant, the use of the phrase did not improperly reduce the State’s burden to prove the appellant's willful or knowing mens rea. Accordingly, the Court affirmed the judgment of the trial court.


Counsel missed the pretrial conference due to an accident, mistake, or other reasonable explanation and not intentionally or due to conscious indifference
Gillis v. Harris Cnty.
Appellate: Civil, Constitution, Courts, Procedure
Texas 14th Court of Appeals
June 21, 2018
14-17-00122-CV
Martha Hill Jamison
Published
The appellant challenged the trial court’s dismissal for want of prosecution of his lawsuit against the appellee county, Texas. The appellant sued the appellee for employment discrimination and violations of the Texas Constitution after he was discharged from his employment as a deputy constable. The appellate Court found that the counsel’s signature was clearly of the subsection (A) variety. The key point, though, was that the motion to reinstate was not notarized or sworn. The counsel instead used an “unsworn declaration” under Civil Practice and Remedies Code section 132.001 in lieu of a verification. His electronic signature in the format provided by Rule 21(f)(A) was therefore a valid signature. Because the counsel’s signature was valid and the verification sufficient, the Court had jurisdiction to consider the appellant’s appeal. Further, the counsel explained that he suffered a heart attack 17 days before the conference, spent several days in the hospital, and was placed on restrictions afterwards that prevented him from appearing in trial court until well after the conference date. At the hearing on the motion, the appellant’s other counsel, explained to the trial court the brief history of the case up to that point and reiterated what the counsel had said in the motion. In response, the counsel for the appellee informed the trial court that the appellee was not disputing the facts as presented in the motion but only whether the motion was properly verified. The counsel’s explanation in the motion provided the necessary proof that he missed the pretrial conference due to an accident, mistake, or other reasonable explanation and not intentionally or due to conscious indifference. Thus, the trial court could not have properly denied the appellant’s motion to reinstate pursuant to Rule 165a. 


The appellant failed to adequately brief his contention that the trial court erred by dismissing his claim against the second appellee for money had and received
Ferrara v. Nutt
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Real Property, Torts
Texas 1st Court of Appeals
June 21, 2018
01-17-00084-CV
Evelyn V. Keyes
Published
The instant real property dispute arose out of an attempt to purchase a piece of property through a contract for deed. The appellant sued the appellees for several causes of action including breach of contract, fraud, violations of the Deceptive Trade Practices Act, violations of the Texas Property Code, and a suit to quiet title after the first appellee sold the property at issue to the second appellee despite having previously executed a contract for deed with the appellant. The first appellee did not answer or appear, and, after a bench trial, the trial court rendered a default judgment against the first appellee on the appellant's breach of contract claim and awarded damages. The trial court dismissed all other claims against the first appellee as well as all claims against the second appellee. The appellate Court found that the appellant presented evidence that he made rental payments to the first appellee from execution of the Contract until the second appellee purchased the property from the first appellee. As the trial court found, however, the appellant presented no evidence that he made the $3,000 earnest money deposit required by the Contract. The appellant therefore had not established that he had equitable or legal title to the property superior to that of the second appellee's. Thus, the trial court did not err by dismissing the appellant's suit to quiet title. Accordingly, the Court affirmed the judgment of the trial court.  


The trial court did not abuse its discretion in determining that the probative value of the extraneous-offense evidence was not substantially outweighed by the danger of unfair prejudice
Harty v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
June 21, 2018
06-17-00207-CR
Bailey C. Moseley
Published
The appellant was convicted of indecency with a child by exposure and was sentenced to twenty years’ incarceration. The appellate Court found that the uncontroverted evidence that a two-year-old child was in the vehicle one parking space removed from, and to the left of, the appellant’s truck, conclusively established the presence of a child. Rivera testified that although she did not know the location of the child within the vehicle when she witnessed the appellant engaging in the act of self-gratification, she saw the child when she approached the red SUV to speak with the child’s grandmother after the appellant left the parking lot. After the appellant saw the individual watching him, he left the supermarket parking lot and drove a short distance to a McDonald’s parking lot, where he parked next to the play area. Further, the evidence was sufficient for a reasonable jury to conclude, beyond a reasonable doubt, that the appellant was guilty of indecency with a child by exposure. Furthermore, the trial court was aware of the fact that the appellant was sentenced to serve a term of ten years’ in prison following his 2004 conviction for indecency with a child. The exposure alleged in the current indictment happened in November 2016. The Court did not believe, under those circumstances, that remoteness of the extraneous offenses rendered the probative value of that evidence so weak as to render that evidence inadmissible under Rule 403. Accordingly, the trial court’s judgment was affirmed.


The trial court abused its discretion by ordering certain discovery that RPI neither requested nor proved was within relators’ possession, custody, or control
In re Methodist Primary Care Gp.
Appellate: Civil, Torts
Texas 14th Court of Appeals
June 21, 2018
14-18-00191-CV
William J. Boyce
Published
The instant litigation involved allegations that relators stole trade secrets, tortiously interfered with patient relationships, and committed other actionable conduct when two doctors left real party in interest (RPI) and moved their medical practices to the relator. The discovery fight focuses on the propriety of a discovery order authorizing a third-party expert, paid for by RPI, to search electronic practice management systems used by relators and other entities for certain data stored in the cloud and accessible via the internet. The appellate Court found that relators had a duty to undertake reasonable efforts to produce electronic data responsive to RPI’s requests that was reasonably available to relators in their ordinary course of business and to object if they contended that requested data was not reasonably available. Further, RPI did not request only physical documents; it also requested electronic information in native format. Texas Rule of Civil Procedure Rule 196.4 was clear that when a specific request for electronic data had been made, the responding party was required to produce responsive electronic data that was reasonably available in the ordinary course of business. The trial court abused its discretion by ordering certain discovery that RPI neither requested nor proved was within relators’ possession, custody, or control. Accordingly, the Court conditionally granted the petition for writ of mandamus.


The appellee timely accepted the remittitur and asked the court to modify the trial court’s judgment consistent with the court's opinion and judgment in that matter, while reserving its right to appeal the court remittitur. The court vacated its judgment and affirmed the remainder as modified.
Nelson v. Vernco Constr., Inc.
Appellate: Civil, Courts, Damages, Procedure
Texas 8th Court of Appeals
June 22, 2018
08-10-00222-CV
Yvonne T. Rodriguez
Published
The appellee corporation filed two documents in the instant court: an “Acceptance of the Court’s Suggestion of Remittitur” and an “Advisory to the Court Regarding the Amount of Actual Damages Remaining After Remittitur” alerting the court to a purported arithmetic error in its actual damages calculations. The appellee pointed out that the amount did not include an award of $350,000.00 in damages for the appellant individual’s failure to pursue inefficiency claims. The appellate court found that the judgment eliminated the lost profit damages line-item as to force account work, leaving the non-force account work lost profits and lost business value actual damages being recoverable against the appellant corporation individually for an amount that totaled $1,702,758.00. Per the remaining unaltered terms of the trial court’s judgment, the $350,000 for lost inefficiency claims remained jointly and severally recoverable against both the appellant corporation and the appellant individual. Further, to the extent the trial court erred by granting the appellee less than all the relief, the appellee was required to file a cross-appeal if it sought to increase its recovery beyond what was authorized by the trial court’s judgment. While the instant court retained the ability to grant relief on an appellee’s request for alteration of the trial court’s judgment in the absence of a notice of cross-appeal, the court found no just cause there. Because the appellee had timely accepted the remittitur and asked the court to modify while reserving its right to appeal the court remittitur decision, the court vacated its judgment and affirmed the remainder of the trial court’s judgment as modified.


Without conclusive evidence negating causation, the appellee carried no burden to come forward with affirmative evidence establishing causation. The court reversed the plea in part and rendered judgment dismissing the disability discrimination claim under Tex.Lab.Code Ann Section 21.105.
Texas Dept. of Criminal Justice v. Flores
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
June 22, 2018
08-16-00317-CV
Ann Crawford McClure
Published
The appellee filed a charge of discrimination with the Texas Workforce Commission, and after obtaining a right to sue letter, she filed suit asserting three claims. She alleged that the appellant refused to make reasonable accommodations to her work duties; discriminated against her based on a disability; and retaliated against her for engaging in protected activity. The appellant filed an original and supplemental plea to the jurisdiction challenging each of the claims. The appellate court found that under the step-disciplinary scheme, the appellant would ordinarily present a single disciplinary charge that might include several “instances,” some of which then might be dismissed on ultimate hearing of the matter. Most importantly, she claimed that the individual Major went outside the ordinary disciplinary process by giving her the choice between resignation or termination well before any hearing of the facts. She had raised at least a fact issue for constructive discharge. Disciplinary charges brought by the appellant against its employees were classified by their seriousness. In the most serious offense, the appellant charged the appellee with initiating a relationship with a detainee. The appellant presented no conclusive evidence that it intended to terminate the appellee. Instead, it claimed she resigned before the disciplinary process took its course. The court could not say that the record conclusively showed that the appellee would have been terminated. Without some conclusive evidence negating causation, the appellee carried no burden to come forward with affirmative evidence establishing causation. The court reversed the plea in part and rendered judgment dismissing the disability discrimination claim under Tex.Lab.Code Ann Section 21.105.


The evidence in the record supported the trial court’s finding that the appellant had not conclusively established a contrary position. Therefore, the the court could not sustain her legal sufficiency challenge. The trial court's judgment was affirmed.
Encinas v. Jackson
Contracts, Real Property, Tax, Torts
Texas 8th Court of Appeals
June 22, 2018
08-16-00050-CV
Yvonne T. Rodriguez
Published
The parties entered into a verbal agreement regarding the appellant’s lease of a commercial laundry business and property from the appellee, and the parties understood that the appellant would attempt to purchase the business and property from the appellee. The appellee filed suit against the appellant asserting breach of contract and conversion, and sought recovery of damages including those for unpaid property taxes, unpaid monthly bank installments, and loss of value of personal property. The appellant counterpleaded causes of action for conversion, breach of duties and gross negligence, fraud and fraudulent inducement, breach of contract, and civil theft that sought damages and other relief. Both the appellee and the appellant filed motions for partial summary judgment. The trial court ruled that judgment should be rendered for the appellee on the controverted facts, and awarded judgment for the appellee and against the appellant in the sum of $16,000.00 as reimbursement for unpaid property tax payments that the appellee paid, and $8,000.00 as reimbursement to the appellee for the delinquent note payments he had paid, as well as other relief. The appellate court found that the evidence in the record supported the trial court’s finding, and need not proceed with the no-evidence prong of the analysis. Because the appellant had not conclusively established a contrary position, the court could not sustain her legal sufficiency challenge. Contrary to Rule 38.1(i), the appellant provided no citation to authority, nor applied applicable law to the facts of the case. The trial court’s judgment was affirmed.


The general grants of regulatory authority the petitioner relied on did not authorize the manner the petitioner had chosen and, more to the point, did not supersede the express directive in the Act. The appellate court correctly held that the Act preempted the petitioner’s Ordinance.
Laredo v. Laredo Merch. Ass'n
Constitution, Gov't/Administrative
The Supreme Court of Texas
June 22, 2018
16-0748
Nathan L. Hecht
Published
The petitioner city adopted an ordinance to reduce litter from one-time-use plastic and paper bags. Shortly before the Ordinance’s effective date, the respondent association sued the petitioner to forestall its enforcement. The respondent sought declaratory and injunctive relief, asserting that the Ordinance was preempted by Section 361.0961 of The Texas Solid Waste Disposal Act and thus void under the Texas Constitution. The petitioner moved for summary judgment. The trial court granted the petitioner’s motion for summary judgment and denied the respondent’s motion. The appellate court reversed, rendered judgment declaring that the Act preempted the Ordinance, and remanded. The Texas Supreme Court found that all of the salutary objectives pertained to the ancillary effects of reducing the generation of solid waste, which was a solid waste management purpose. The Ordinance’s solid waste management could not avoid preemption merely because it had other purposes. The court thought it clear that the Ordinance was adopted for solid waste management purposes. The only reasonable construction of the Act that accorded with the statute as a whole was one that afforded the terms container and package their ordinary meanings. The Act’s exemption did not save the Ordinance because the petitioner had not identified a law authorizing the manner in which the petitioner sought to regulate. The general grants of regulatory authority the petitioner relied on did not authorize the manner the petitioner had chosen and did not supersede the express directive in the Act. Accordingly, the court affirmed the judgment of the appellate court.


The trial court did not abuse its discretion in admitting evidence about the petitioners’ alleged displacement, admitting the second appraiser’s displacement valuation testimony, and excluding the city attorney’s and the city engineer’s testimony. The trial court's judgment was reinstated.
Morale v. State
Damages, Gov't/Administrative, Real Property
The Supreme Court of Texas
June 22, 2018
17-0049
Per Curiam
Published
The State planned to take a 3,200 square-foot strip of land, which included a metal canopy used by the business that would have to be demolished as part of the taking. The State’s land planner subsequently developed a second cure plan for reconfiguring the property that would enable the petitioners to continue operating their existing business on the site. The first appraiser revised her appraisal to incorporate the land planner’s cure plan, determining that the petitioners’ property could still be used as a collision repair shop. The issues in the instant appeal was whether the trial court erroneously admitted and excluded various evidence at trial, thereby resulting in an improper judgment. The Texas Supreme Court found that inquiries into the nature of the displacement revocation were probative in an adversarial trial in which the plaintiffs sought damages based on their alleged displacement. The State presented its own evidence to the jury about its proper reasons for the revocation. The State was free to cross-examine the second appraiser on his assumptions, but they did not render his testimony wholly speculative and therefore inadmissible. The court disagreed with the appellate court’s conclusion, and thus found that the trial court did not abuse its discretion by excluding that testimony as irrelevant because it did not address the petitioners’ specific property. The damages the jury awarded conformed exactly to the second appraiser’s non-displacement valuation, in which he assumed a zoning variance would be granted. Accordingly, the court reversed the appellate court’s judgment and reinstated the trial court’s judgment.


Even though mandamus was not an equitable remedy, equitable principles govern its issuance. The relator had presented adequate grounds for relief by mandamus. Accordingly, the court conditionally granted the writ.
In re Dawson
Appellate: Civil, Constitution, Torts
The Supreme Court of Texas
June 22, 2018
17-0122
Per Curiam
Published
In the instant original proceeding, the relator sought a writ of mandamus. The relator was sitting at a table at a bar and restaurant when a television fell from the wall, striking and injuring her. Nineteen months later, the relator sued the bar and restaurant’s owner and operator, the company, for her injuries. Upon serving the company with her original petition, the relator propounded a request for disclosures, interrogatories, and requests for production. The responses to the discovery requests were due December 29, 2015, nearly three months before the running of limitations but the relator agreed to an extension until January 15, 2016. More than two weeks after limitations expired, the company moved for leave to designate the individual as a responsible third party. The relator opposed the motion. The trial court granted leave. The Texas Supreme Court found that the relator sought to protect her right, prescribed in section 33.004(d) of the Texas Civil Practice and Remedies Code, to not have to try her case against an empty chair. The court found that mandamus would lie to protect that right in that circumstance. Even though mandamus was not an equitable remedy, equitable principles largely govern its issuance. It seemed equitable and right under the facts that a plaintiff get the same relief when a trial court erroneously granted a defendant leave to designate. The court found that the relator had presented adequate grounds for relief by mandamus. Accordingly, the court conditionally granted the writ.


The fraudulent-inducement questions incorporated the elements of an enforceable contract, with no findings contradicted or negating the existence of an enforceable promise. The petitioner may therefore recover benefit-of-the-bargain damages on his fraudulent-inducement claim.
Anderson v. Durant
Contracts, Damages, Employment, Torts
The Supreme Court of Texas
June 22, 2018
16-0842
Eva M. Guzman
Published
The petitioner sued his employer and several individuals for defamation, and because a buy-in transaction never came to fruition, he also sued his employer for breach of contract and fraudulent inducement. The Texas Supreme Court found that the jury findings were sufficient to support a finding of fraudulent inducement because the fraud submissions incorporated the necessary elements for recovery, including an enforceable promise, the existence of which was supported by legally sufficient evidence. The prospective employer testified that he discontinued the interview process with Anderson after he heard the kickback rumors, but he also said he chose another candidate who had already been the frontrunner for the position. The employer not pursuing the petitioner’s application in favor of an established candidate was no more than a scintilla of evidence. Evidence of proximate cause needed some proof that without the defamation, the employer or anyone else would have hired the petitioner sooner was lacking. Consistent with the court's discretion to do so, the court remanded to the court of appeals to consider unaddressed issues. The court expressed no intent to limit the scope of remand except as to the issues decided in that opinion. The fraudulent-inducement questions incorporated the elements of an enforceable contract, no findings contradicted or negated the existence of an enforceable promise, and the petitioner may therefore recover benefit-of-the-bargain damages on his fraudulent-inducement claim. The court further held that the petitioner adduced legally sufficient evidence that he suffered reputational harm and mental anguish, but insufficient evidence that he would continue to suffer. The court remanded the case to the appellate court for further proceedings.


The fact that the appellees could be required to pay the ad litem’s fees was not an injury or threatened injury traceable to the method of the ad litem’s appointment
In re K.L.
Constitution, Family, Gov't/Administrative
Texas 14th Court of Appeals
June 21, 2018
14-16-01022-CV
Martha Hill Jamison
Published
In the instant appeal, the appellant state challenged the trial court’s determination that Government Code chapter 37 pertaining to the appointment of attorneys ad litem, guardians ad litem, mediators, and guardians violated the separation of powers doctrine in the Texas Constitution. The trial court made the ruling at the request of the appellees, parties to the litigation. The appellant thereafter intervened to challenge the ruling, arguing, among other grounds, that the appellees lacked standing to seek the relief granted by the trial court. The appellate Court found that the fact that the appellees could be required to pay the ad litem’s fees was not an injury or threatened injury traceable to the method of the ad litem’s appointment. Further, the appellees did not allege a sufficient interest in the representation of an opposing party in the litigation to give them standing to contest how that representation was accomplished. The appellees lacked standing to challenge the constitutionality of Government Code chapter 37 under the circumstances of the instant case. Thus, the trial court lacked subject matter jurisdiction to consider the appellees’ constitutional claim. Accordingly, the Court affirmed the judgment as so modified.


By threatening disclosure of sensitive financial information to taxing and governmental authorities as a price of invoking Section 42.26(a)(2), the tactic tended to deter or punish taxpayers who availed themselves of the remedy.
In re Catherine Tower, LLC
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Tax
Texas 3rd Court of Appeals
June 20, 2018
03-17-00735-CV
Bob Pemberton
Published
The taxpayer appealed the judgment of the trial court, challenging the tax appraisal of its property by comparison to the median appraised value of a reasonable number of comparable properties appropriately adjusted. On appeal, the taxpayer argued that discovery at issue was irrelevant to, and not reasonably calculated to lead to the discovery of admissible evidence regarding, the type of unequal-appraisal remedy it was seeing. The taxpayer asserted that such discovery tended to undermine the Section 42.26(a)(3) remedy altogether. The appellate court agreed with the taxpayer and found that by threatening disclosure of sensitive financial information to taxing and governmental authorities as a price of invoking Section 42.26(a)(2), the tactic tended to deter or punish taxpayers who availed themselves of the remedy. Accordingly, the taxpayer’s writ of mandamus was granted.


The appellate court found that the relators did not carry their heavy burden to show that they had no adequate remedy at law.
In re Maconori Enter., Ltd.
Constitution, Procedure, Torts
Texas 4th Court of Appeals
June 20, 2018
04-18-00086-CV
Rebeca C. Martinez
Published
The relators filed a writ of mandamus with the appellate court asserting that the trial court abused its discretion by allowing the real parties in interest to designate a lawyer and her law firm as responsible third parties after the real parties in interest had named the lawyer as third-party defendants. This appeal stemmed from the third-party claims against the lawyer and her law firm, alleging they committed legal malpractice and breached fiduciary duties. On appeal, the relators asserted that they had no adequate remedy by appeal. The real parties in interest asserted that the relators could argue, at the jury charge conference, that the submission of any question on the responsibility of the lawyer and her law firm was improper due to lack of evidence. The appellate court found that the relators did not carry their heavy burden to show that they had no adequate remedy at law. The appellate court concluded that the relators had an adequate remedy by appeal because an appellate remedy was not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Accordingly, the relators’ petition for writ was denied.


The Texas Labor Code did not cap the trial court’s awards for front pay and for future mental anguish awarded to the former employee.
Bell Helicopter Textron, Inc. v. Burnett
Appellate: Civil, Damages, Employment, Procedure
Texas 2nd Court of Appeals
June 14, 2018
02-16-00489-CV
Charles Bleil
Published
The employer appealed the judgment of the trial court which awarded the former employee damages for age discrimination after he was fired when he was forty years old. On appeal, the employer contended that the evidence was legally and factually insufficient to support several findings on liability and that the trial court abused its discretion by awarding the employee front pay. The employer asserted that the Labor Code capped the employee’s damages for front pay and for future mental anguish. The appellate court found that the evidence, although conflicting, supported the trial court’s findings on liability and on damages. The appellate court concluded that the Texas Labor Code did not cap the trial court’s awards for front pay and for future mental anguish. Accordingly, the judgment of the trial court was affirmed.


Based on a theory of specific jurisdiction, the appellees had sufficient minimum contacts with Texas for the courts to exercise jurisdiction over him with regard to the appellants’ direct claims.
Northwest Cattle Feeders, LLC v. O!Connell
Appellate: Civil, Contracts, Courts, Procedure, Torts
Texas 2nd Court of Appeals
June 14, 2018
02-17-00361-CV
Birdwell
Published
The appellants appealed the judgment of the trial court which granted the appellees’ special appearance and dismissed the claims against the appellees for lack of personal jurisdiction. On appeal, the appellants contended that the trial court’s order was erroneous because the record established that Texas had personal jurisdiction over the appellees on a theory of specific jurisdiction. Specifically, the appellants maintained that the trial court had specific jurisdiction over the appellees because their claims against him arose out of his contacts directed at Texas – the seizure of the cattle from the farms and the misrepresentations to the appellants. The appellate court found that on a theory of specific jurisdiction, the appellees had sufficient minimum contacts with the state for the courts to exercise jurisdiction over him with regard to the appellants’ direct claims. The appellate court concluded that Texas’s jurisdiction over the appellees comported wit notions of fair play and substantial justice. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded for further proceedings.


The County had authority to enter into the applicable collective bargaining agreement, which was valid and enforceable under the Public Employee Relations Act.
Stines v. Jefferson Cnty.
Appellate: Civil, Employment, Gov't/Administrative, Procedure
The Supreme Court of Texas
June 15, 2018
17-0623
Per Curiam
Published
The former employee appealed the judgment of the appellate court which reversed the trial court’s denial of the County’s plea of the jurisdiction and dismissed the employee’s case for want of jurisdiction in a declaratory judgment action. The appellate court found that deputy constables were not “police officers” under the Public Employee Relations Act (the Act) and no right to collectively bargain with their public employers. On appeal, the employee argued that the issue presented was whether a deputy constable was a “police officer” as defined by the Act. The County asserted that because the collective bargaining agreement was outside the authority of the Act, the employee failed to show a valid waiver of immunity. The Supreme Court found that the County had authority to enter into the applicable collective bargaining agreement, which was valid and enforceable under the Act. The Supreme Court concluded that the appellate court erred in reversing the trial court’s denial of the County’s plea to the jurisdiction. Accordingly, the judgment of the appellate court was reversed in part, vacated in part, and remanded for further proceedings.


There was sufficient evidence to support the defendant’s convictions, but the trial court erred when it admitted the video exhibit and determined that his conviction should have been reversed.
Fowler v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
June 15, 2018
06-16-00038-CR
Bailey C. Moseley
Published
The defendant appealed the judgment of the trial court which convicted him of theft of an all-terrain vehicle and sentenced him to two years’ incarceration. On appeal, the defendant challenged the sufficiency of the evidence supporting his conviction, asserting error in the admission of extraneous-offense evidence, and claimed reversible error in the trial court’s admission of an unauthorized video-recorded exhibit into evidence. The appellate court found that there was sufficient evidence to support the defendant’s convictions, but that the trial court erred when it admitted the video exhibit and determined that his conviction should have been reversed. The defendant maintained that the trial court erred by admitting evidence of extraneous offenses from a different county, which he claimed was not linked to him, was not relevant, was unfairly prejudicial, and misled the jury. The State counterargued that this left the false impression with the jury that there had been no crimes committed around the crime scene on that date. The appellate court concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. Accordingly, the judgment of the trial court was affirmed.


The grandparents exercised actual care, control, and possession of the child for the six-month statutory time period, and thus, had standing to file their suit affecting the parent-child relationship petition.
In re H.S.
Family, Procedure
The Supreme Court of Texas
June 15, 2018
16-0715
Debra Ann H. Lehrman
Published
The grandparents appealed the judgment of the appellate court which affirmed the trial court’s decision that they lacked standing to bring a suit affecting the parent-child relationship (SAPCR). The Supreme Court was asked to determine whether the grandparents, havening continuously engaged in the parent-like role on a day-to-day basis, had standing to pursue a SAPCR under the Texas statute conferring such standing on nonparents who had actual care, control, and possession of the child for at least six months. On appeal, the grandparents argued that the appellate court erred in finding that they did not have standing. The mother and father argued that a nonparent’s exercise of actual care and control of a child was conditioned on the nonparent’s permanent power over a child, such that the provision of physical and psychological comfort was more than transient in nature. The Supreme Court disagreed with the appellate court and found that the grandparents exercised actual care, control, and possession of the child for the six-month statutory time period, and thus, had standing to file their SAPCR petition. Accordingly, the judgment of the appellate court was reversed and remanded to the trial court for further proceedings.


The trial court erred in excluding the video deposition testimony of the defendant’s expert witness, however, the error did not probably cause the rendition of an improper judgment.
Gunn v. McCoy
Appellate: Civil, Health Care, Procedure, Torts
The Supreme Court of Texas
June 15, 2018
16-0125
Paul W. Green
Published
The defendants (doctors) appealed the judgment of the appellate court which affirmed the trial court’s grant of judgment in favor of the plaintiff in a medical malpractice action. On appeal, the defendants argued that the appellate court erred in holding that there was legally sufficient evidence of causation and the trial court committed reversible error in excluding deposition testimony of the defendants’ expert witness regarding future medical expenses. The Supreme Court agreed with the appellate court’s holding that the evidence of causation was legally sufficient, that the affidavits submitted by the decedent were proper under section 18.001, and that the trial court did not commit reversible error in refusing the requested instruction on unavoidable accident. The Supreme Court concluded that the trial court erred in excluding the video deposition testimony of the defendant’s expert witness, however, the error did not probably cause the rendition of an improper judgment. Accordingly, the judgment of the appellate court was affirmed.


There was no abuse of discretion in issuing the permanent injunction and in denying the plaintiff’s motion for sanctions in a termination action.
Orbison v. Ma-Tex Rope Company, Inc.
Contracts, Damages, Employment, Litigation: Personal Injury, Procedure
Texas 6th Court of Appeals
June 15, 2018
06-17-00112-CV
Morriss
Published
The plaintiff appealed the judgment of the trial court which granted the employer’s permanent injunction against the plaintiff and awarded the employer actual damages and attorney fees. On appeal, the plaintiff asserted that the trial court erred in admitting evidence of damages, in awarding damages, in enforcing the post-employment restrictions contained in the employment agreement, in issuing the permanent injunction, in denying the plaintiff’s motion for sanctions, and in awarding attorney fees against them. The appellate court found that there was insufficient evidence to support the award of damages for lost profits and lost good will. The appellate court concluded that there was no abuse of discretion in issuing the permanent injunction and in denying the plaintiff’s motion for sanctions. Accordingly, the judgment of the trial court was reversed regarding the award of damages for lost profits and good will and affirmed in part.


The appellate court concluded that the probate court abused its discretion in denying the parents’ guardianship application.
In re Guardianship of A.E.
Procedure, Wills/Trusts/Probate
Texas 2nd Court of Appeals
June 14, 2018
02-17-00189-CV
Mark T. Pittman
Published
The parents appealed the judgment of the probate court’s denial of their application to be appointed guardians of the person of their intellectually-disabled adult daughter in an uncontested guardianship application. The probate court found that the parents failed to show by clear and convincing evidence that supported alternatives to guardianship were not feasible. On appeal, the parents argued that the probate court abused its discretion by not finding that the daughter was totally incapacitated and not finding it was in her best interest to have her parents appointed as her guardians of the person. Specifically, the parents contended that the probate court abused its discretion by failing to find that their daughter was totally incapacitated. The appellate court agreed with the parents and found that despite the absence of any express findings regarding total incapacity, all of the evidence at the hearing proved that the daughter had no capacity to care for herself or her property. The appellate court concluded that the probate court abused its discretion in denying the parents’ guardianship application. Accordingly, the judgment of the probate court was reversed and remanded.


The pathologist’s testimony did not violate the Confrontation Clause and any error regarding the jury’s verdict procedure was not preserved on appeal.
Moore v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
June 14, 2018
06-17-00157-CR
Bailey C. Moseley
Published
The defendant appealed the judgment of the trial court which convicted him of felony murder and sentenced him to life in prison and assessed a $10,000 fine. On appeal, the defendant argued that the trial court violated his Sixth Amendment rights by allowing a pathologist to testify as to the manner and means of the victim’s death, and when the jury returned with a verdict form indicating both guilty and not guilty, the trial court erred by instructing the jury to continue its deliberations without first inquiring of the jury if not guilty was their verdict. The appellate court concluded that the pathologist’s testimony did not violate the Confrontation Clause and any error regarding the jury’s verdict procedure was not preserved on appeal. The appellate court found that because the defendant failed to raise the jury verdict issue at trial through a request, objection, or motion for new trial, nothing was preserved for the court’s review. Accordingly, the judgment of the trial court was affirmed.


The plaintiff’s medical negligence allegations were insufficient to show a waiver of immunity because she failed to allege any facts showing how the physicians were negligent in their use of the tangible personal property.
Tex. Tech Univ. Health Sciences Ctr.-El Paso v. Bustillos
Appellate: Civil, Civil Rights, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
June 13, 2018
08-16-00164-CV
Ann Crawford McClure
Published
The plaintiff appealed the judgment of the trial court which denied her plea to the jurisdiction and dismissed all of her medical negligence claims for lack of jurisdiction. The appellate court was asked to determine whether the plaintiff adequately pled facts demonstrating that the defendant’s sovereign immunity was waived under the Texas Tort Claims Act, and if not, whether the plaintiff should be afforded an opportunity to replead. On appeal, the defendant contended that the trial court erred in denying its plea to the jurisdiction because the plaintiff failed to plead facts sufficient to show a waiver of its sovereign immunity. The plaintiff counterargued that she filed a preliminary expert report as required by the Texas Medical Liability Act, which demonstrated that she was bringing a medical negligence claim. Specifically, the plaintiff asserted that her medical negligence claim could be construed as lack of informed consent based on her allegation that she did not voluntarily or intelligently consent to any of the searches or bodily intrusions. The appellate court found that the plaintiff’s medical negligence allegations were insufficient to show a waiver of immunity because she failed to allege any facts showing how the physicians were negligent in their use of the tangible personal property. Accordingly, the judgment of the trial court was reversed.


The grandmother’s affidavit failed to rebut the presumption that the relator was acting in the children’s best interest because it did not support a conclusion that denial of access or possession would significantly impair the children’s physical health or emotional well-being.
In re J.M.G.
Family, Procedure
Texas 8th Court of Appeals
June 13, 2018
08-18-00024-CV
Gina M. Palafox
Published
The relator filed a mandamus petition against the trial court judge, challenging his order denying her the relator’s plea to the jurisdiction in a suit by a grandparent for possession or access to the grandchild. On appeal, the relator contended that the trial court was required to dismiss the grandmother’s suit for lack of standing because the facts alleged in the grandmother’s affidavit did not demonstrate that a denial of access or possession would significantly impair the children’s physical health or emotional well-being as required by Section 153.432(c) of the Family Code. The relator alleged that even if the trial court was authorized to conduct the hearing on the merits, the evidence presented did not show significant impairment of the children’s physical health or emotional well-being, and therefore, the trial court should have dismissed the suit rather than setting the matter for a conference with the children. The appellate court concluded that the grandmother’s affidavit failed to rebut the presumption that the relator was acting in the children’s best interest because it did not support a conclusion that denial of access or possession would significantly impair the children’s physical health or emotional well-being. Accordingly, the relator’s mandamus relief was conditionally granted.


The appellate court concluded that the trial court did not abuse its discretion in overruling the plaintiffs’ request to reinstate their personal injury case.
Ransom v. Gibson
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 6th Court of Appeals
June 13, 2018
06-17-00123-CV
Ralph Burgess
Published
The plaintiffs appealed the judgment of the trial court which refused to reinstate their personal injury case against the defendant after their counsel failed to appear for trial. On appeal, the plaintiffs challenged the trial court’s determination that the plaintiffs knew they were required to be present to select the jury and failed to appear for trial. The appellate court found that the trial court could have found that the plaintiffs did not meet their burden of production on their motion to reinstate the case. The appellate court concluded that the trial court did not abuse its discretion in overruling the plaintiffs’ request to reinstate their personal injury case. Accordingly, the judgment of the trial court was affirmed.


The school district was entitled to enforce its tax lien on the defendant’s property to collect the amount of taxes, penalties, and interest due on the defendant’s account.
United Indep. Sch. Dist. v. U.S. Trailer Relocators, LLC
Appellate: Civil, Gov't/Administrative, Real Property, Tax
Texas 4th Court of Appeals
June 13, 2018
04-17-00281-CV
Irene Rios
Published
The school district appealed the judgment of the trial court which rendered a taking-nothing judgment in its suit to collect delinquent taxes from the defendant. On appeal, the school district contended that non-ownership of property of the subject tax year was not a defense to in-rem liability in a delinquent tax suit, and the trial court erred by admitting valuation evidence in a delinquent tax suit that was not an appeal from a decision of the county’s appraisal review board. The appellate court found that non-ownership was not a defense in a tax delinquency suit where the taxing entity sought foreclosure of a tax lien on property. The school district contended that the trial court erred by admitting valuation evidence in a delinquent tax suit that was not an appeal from a decision of the county’s appraisal review board. The appellate court concluded that the school district was entitled to enforce its tax lien on the defendant’s property to collect the amount of taxes, penalties, and interest due on the defendant’s account. Accordingly, the judgment of the trial court was reversed and remanded.


The record showed that the relator had been unfairly subjected to undue expense and delay as a result of the trial court judge’s failure to prosecute her lawsuit within a reasonable time period.
In re Crawford
Appellate: Civil, Procedure, Torts
Texas 6th Court of Appeals
June 12, 2018
06-18-00025-CV
Bailey C. Moseley
Published
The relator filed a petition for writ of mandamus seeking to compel the trial court judge to dismiss, for want of prosecution, a suit for damages against her arising out of a motor vehicle collision. On appeal, the relator contended that the trial court abused its discretion when it denied her motion to dismiss, arguing that the delay in the case had the potential to dim witnesses’ memories and cost the parties time and money and that would result in the unnecessary trial of a matter that would have been reversed and dismissed on appeal. The trial court judge counterargued that the language of Rule 165a was discretionary, not mandatory, and that it was within the trial court’s discretion to deny the relator’s motion to dismiss. The appellate court concluded that the record showed that the relator had been unfairly subjected to undue expense and delay as a result of the trial court judge’s failure to prosecute her lawsuit within a reasonable time period. Accordingly, the relator’s petition for writ of mandamus was conditionally granted.


 

The appellee prevailed against the appellant company and the appellant individual on breach of fiduciary duty grounds but not on breach of contract or other grounds
Nelson v. Vernco Constr., Inc.
Contracts, Damages, Torts
Texas 8th Court of Appeals
May 31, 2018
08-10-00222-CV
Yvonne T. Rodriguez
Published
In the instant contract dispute arising out of a highway construction project, the subcontractor appellee company obtained a multimillion-dollar verdict against its former Corporate Vice President, the appellant individual, and against prime contractor, the appellant company, after the appellant company fired the appellee and hired the appellant individual’s own private construction company to finish certain subcontracted sewer work. Appellee essentially accussed the appellant company and the appellant individual of conspiring to sabotage the appellee’s subcontract so that the appellant individual’s personal company could then step in, perform work, and receive money that should have gone to the appellee. The appellate Court found that the appellee prevailed against the appellant company and the appellant individual on breach of fiduciary duty grounds, but not on breach of contract or other grounds. The Court would reform the judgment to reflect that the appellant company was liable for knowing participation in the appellant individual’s breach of fiduciary duty, rather than breach of contract. Further, the Court rendered judgment that the appellee take nothing against the appellant company for attorney’s fees, since attorney’s fees were not recoverable in connection with a claim for breach of fiduciary duty. Accordingly, the judgment of the trial court was affirmed as modified.


The non-accomplice evidence tended to connect the appellant to the attempted burglary, thus fulfilling the requirements of Section 54.03(e) of the Texas Family Code that accomplice-witness testimony be corroborated
In re M.H.
Criminal, Evidence, Juvenile, Procedure
Texas 8th Court of Appeals
May 31, 2018
08-15-00043-CV
Yvonne T. Rodriguez
Published
The appellant, a juvenile, appealed his adjudication of delinquent conduct for attempted burglary of a habitation. The appellate Court found that the appellant and the accomplice were charged with the same offense and the accomplice was therefore an accomplice as a matter of law. The accomplice testified he and the appellant acted in concert in their attempt to burglarize the home and provided details of their plan and their actions in furtherance of that plan. His testimony was corroborated by the witness’s in-court identification of the appellant as the one he witnessed standing in the alley and acting as lookout while the accomplice attempted to break in. His accomplice-witness testimony was further corroborated when the officer testified he found the appellant and the accomplice together less than four blocks from the scene of the attempted burglary within ten to twelve minutes of receiving the call from dispatch. Viewed in the light most favorable to the verdict, the combined weight of the non-accomplice evidence tended to connect the appellant to the attempted burglary, thus fulfilling the requirements of Section 54.03(e) of the Texas Family Code that accomplice-witness testimony be corroborated. Accordingly, the judgment was affirmed. 


The appellee's claim was barred by the intentional-tort exception, as a sufficiently close connection existed between the vehicle and the appellee's son’s person so that a officer’s use of the TDD constituted a battery
Fort Worth v. Deal
Damages, Gov't/Administrative, Litigation: Personal Injury, Real Property, Torts
Texas 2nd Court of Appeals
May 31, 2018
02-17-00413-CV
Bill Meier
Published
The appellee sued the appellant city for negligence, alleging in relevant part in her pro se petition that the deceased's death was proximately caused by an unknown police officer who had negligently deployed a tire-deflation device (TDD). Specifically, the appellee alleged that upon investigation, the right front tire of the deceased's vehicle had sustained damage that was consistent with the use of a TDD. The appellant city answered and filed a plea to the jurisdiction, arguing that its governmental immunity was not waived for the appellee's negligent supervision and negligent training claims, that the appellee's negligent-deployment claim was barred by the Texas Tort Claims Act’s (TTCA) intentional-tort exception, and that it was entitled to derived official immunity. The trial court ultimately granted the appellant's plea on the appellee's negligent entrustment, negligent supervision, and negligent training claims, but it denied the plea insofar as the appellant argued that the appellee's negligent-deployment claim was barred by the TTCA’s intentional-tort exception. The appellate Court found that because, on the facts, a sufficiently close connection existed between the vehicle and the appellee's son’s person so that the unknown officer’s use of the TDD constituted a battery, and because the appellee did not otherwise allege a distinct negligence claim that did not arise out of the battery, the court concluded that the appellee's claim was barred by the intentional-tort exception. Accordingly, the Court reversed and rendered a judgment of dismissal for the appellant.


The Legislature in Subchapter J intended to eliminate any requirement of present member status from the derivative proceeding it codified
In re Lonestar Logo & Signs, LLC
Business, Contracts, Gov't/Administrative
Texas 3rd Court of Appeals
May 31, 2018
03-18-00214-CV
Bob Pemberton
Published
The underlying litigation concerned two successive Texas Department of Transportation contracts to operate TxDOT’s program involving signs on Texas highways that advise motorists of participating businesses accessible from upcoming exits. In 2006, TxDOT awarded the contract jointly to the first relator, and the first corporation for an initial five-year term beginning on January 1, 2007, with optional extension for another five-year term. The pivotal issue presented in the instant mandamus proceeding was whether a former—but not current—member of a Texas limited liability company had standing to assert derivative claims on that entity’s behalf. The appellate Court found that the Legislature in Subchapter J intended to eliminate any requirement of present member status from the “derivative proceeding” it codified. The statutory language did not go that far, nor had the Texas Supreme Court so held. Further, ultimately the sole authority the second corporation could cite in support of its standing as a former member to bring derivative claims on the second relator’s behalf appeared in a memorandum opinion of a Texas federal district court that involved a different type of action—a suit by a former member of a nonprofit corporation alleging ultra vires acts by directors and officers of the corporation. The Court respectfully differed with the assessment of the statutory contemporaneous-ownership requirement. Furthermore, the trial court abused its discretion in holding that the second corporation possessed standing as a former member to prosecute derivative claims on the second relator’s behalf. Both the Texas Supreme Court and the court's sister appellate courts have granted mandamus relief to remedy a plaintiff’s noncompliance with other prerequisites for bringing derivative actions and the court should do likewise in the instant case. Accordingly, the court conditionally granted the petition for writ of mandamus.


The TCPA’s legislative history reinforced the textual indicia of the Legislature’s intent to exempt from the TCPA’s dismissal procedure additional categories of legal actions directly involving the business of insurance
Robert B. James, DDS, Inc. v Elkins, DDS
Courts, Procedure
Texas 4th Court of Appeals
May 30, 2018
04-17-00160-CV
Irene Rios
Published
 The appellant doctor hired the appellee to work at his San Antonio-based pediatric dental practice (the appellant corporation). The second appellant individual prepared a Fraud Examination Report, concluding that the appellee misappropriated over $350,000. The instant was an appeal from a trial court’s order denying two motions to dismiss under the Texas Citizens Participation Act (TCPA). The appellate Court found that the TCPA’s legislative history reinforced the textual indicia of the Legislature’s intent to exempt from the TCPA’s dismissal procedure additional categories of legal actions directly involving the business of insurance. Further, the Court held the insurance policy was a but for and motivating cause of the insurance claim, and that the insurance claim had a nexus to the insurance policy and originated in the contractual relationship between an insurer and an insured for insurance benefits. Thus, the appellee’s causes of action against the second appellant individual involving the insurance claim were legal actions “arising out of an insurance contract.” 


The unambiguous deeds showed that the appellee conveyed all his interest in the real property, including his undivided share of the reversionary royalty interest, to the appellant and the Pension Trust
Gonzalez v. Janssen
Real Property, Wills/Trusts/Probate
Texas 4th Court of Appeals
May 30, 2018
04-17-00347-CV
Karen Angelini
Published
The instant appeal arose from a declaratory judgment suit involving the ownership of a reversionary royalty interest. The appellants argued that the appellees conveyed all their interests in two tracts of land, including the appellee’s undivided share of a reversionary royalty interest, to the appellant and the Pension Trust in two deeds. The appellees argued the appellee’s undivided share of the reversionary royalty interest was excluded from the conveyances. After considering competing summary judgment motions, the trial court rendered judgment in favor of the appellees. The appellate Court found that the unambiguous deeds showed that the appellee conveyed all his interest in the real property, including his undivided share of the reversionary royalty interest, to the appellant and the Pension Trust. Therefore, the Court found the trial court erred in construing the deeds to exclude the appellee’s undivided share of the reversionary royalty interest from the conveyances, and in granting the appellees’ amended summary judgment motion. Further, when properly construed, the deeds establish, as a matter of law, that the appellees conveyed all their interests in the two tracts of land, including the appellee’s undivided share of a reversionary royalty interest, to the appellant and the Pension Trust. Therefore, the Court found the trial court erred in denying the appellants’ amended summary judgment motion. Accordingly, the Court reversed the trial court’s judgment and rendered judgment in favor of the appellants.


The trial court erred in enjoining the appellant from pursuing its forcible detainer suit to evict the appellees
Jelinis, LLC v. Hiran
Procedure, Real Property
Texas 14th Court of Appeals
May 31, 2018
14-17-00220-CV
William J. Boyce
Published
The appellant company appealed a temporary injunction order in favor of the appellees. The appellant argued that the trial court erred by enjoining it from (1) evicting the appellees because they pleaded no cause of action against the appellant; and (2) taking legal action in the justice court to evict the appellees because they failed to show that “the justice court was without jurisdiction to determine possession.” The appellate Court found that the trial court erred in enjoining the appellant from pursuing its forcible detainer suit in justice court to evict appellees. The justice court had jurisdiction in the instant case over the question of possession because the issues of title and possession were not so intertwined that a trial court would be required to determine title before awarding possession, and appellees had an adequate remedy at law if their claims in trial court were meritorious. Further, in light of the disposition of the appellant’s second issue, the Court did not need to reach its first issue.  Therefore, the Court reversed the trial court’s temporary injunction insofar as it enjoined the appellant from pursuing its forcible detainer suit in justice court to evict appellees and rendered judgment denying appellees’ request for a temporary injunction. 


The trial court acted within its discretion in declining to recognize the 1959 Mexican divorce decree as invalidating the New Mexico marriage
Fuentes v. Zaragoza
Family, Procedure
Texas 1st Court of Appeals
May 31, 2018
01-16-00251-CV
Jane Bland
Published
In the instant appeal from a decree of divorce, the appellate Court determined whether the trial court had jurisdiction to divorce a husband and wife who were Mexican citizens, and the procedural effect pending Mexican litigation had on the suit. The appellate Court found that the trial court acted within its discretion in declining to recognize the 1959 Mexican divorce decree as invalidating the New Mexico marriage. Legally sufficient evidence supported its determination that the parties were married at the time the appellee initiated divorce proceedings in Harris County. Therefore, the Court held that the trial court had subject-matter jurisdiction over the divorce proceeding. With no controverting evidence before it, the Court concluded that the trial court did not err in determining that it had subject-matter jurisdiction over the appellee’s petition for divorce. The use of alternative service of process on the first appellant individual did not deprive the trial court of personal jurisdiction over him. The Court held that the trial court properly denied the first appellant individual’s challenges to personal jurisdiction. The Court further concluded that the trial court’s disposition of the community assets, as well as the other amounts and relief awarded, were not supported by legally sufficient evidence. The trial court erred in awarding interests in the assets of third parties based on an alter-ego theory without notice to those parties. Accordingly, the judgment was partly affirmed, partly reversed and remanded. On remand, the trial court must consider whether to defer to pending litigation in the Mexican courts for reasons of comity.


The record contained sufficient evidence to support the appellant’s conviction for deadly conduct, and the trial court did not abuse its discretion in denying the appellant’s motion to continue
Campbell v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 31, 2018
14-17-00001-CR
Kem Thompson Frost
Published
The trial court found the appellant guilty of the lesser-included offense of deadly conduct and sentenced the appellant to one year’s confinement in county jail. The appellate Court observed that the trial court reasonably could have inferred from the eyewitness accounts of the appellant’s driving that appellant was aware of, but consciously disregarded, a substantial and unjustifiable risk that the appellant would cause the complainant serious bodily injury by striking her with his car. The record supported the finding that the appellant’s reckless conduct placed the complainant in imminent danger of serious bodily injury. Thus, the record contained sufficient evidence to support the appellant’s conviction for deadly conduct. Further, the appellant waited until the close of the evidence and then rested subject to a request that the trial court continued the proceedings so that the appellant could file a proper application for writ of attachment. The appellant did not prove that he was diligent in attempting to procure the complainant’s presence at trial. Thus, the trial court did not abuse its discretion in denying the appellant’s motion to continue. Furthermore, to the extent the inconsistency may have undermined the eye-witness’s credibility by suggesting that the eye-witness had faulty memory, two eye-witnesses described the appellant’s erratic and dangerous driving. The first eye-witness was so affected by the appellant’s driving that she called the police. The appellant admitted he was upset and driving erratically. The record evidence strongly supported the appellant’s conviction for deadly conduct. Based on the strength of the record evidence and the limited impact of any impeachment testimony based on the eye-witness’s prior inconsistent statement, any error in excluding the evidence was harmless. Accordingly, the trial court's judgment was affirmed.


The affirmative proof of the source of appellant’s eye condition was established by the doctor's testimony so that summary judgment in favor of appellee was appropriately granted
Chatman v. Fowler
Damages, Health Care, Litigation: Personal Injury, Torts
Texas 12th Court of Appeals
May 31, 2018
12-17-00206-CV
James T. Worthen
Published
The appellant challenged the trial court’s order granting both traditional and no evidence summary judgment in favor of the appellees. In two issues, the appellant argued the trial court erred because the appellees failed to meet his burden to show that no genuine issues of material fact exist and because the appellant presented sufficient evidence of causation to support her medical malpractice claim against the appellees. The appellate Court found that the affirmative proof of the source of appellant’s eye condition was established by the doctor's testimony that, of the four possible sources of the bacteria which brought about the complication, the most likely was the irrigating solutions provided by the hospital. Further, the determination of negligence and resultant injuries in the context of prevention and treatment of an infection was clearly not within the purview of a lay person’s knowledge. The appellant’s statement that the appellee’s failure to curette and irrigate the site caused severe damage to her jaw bone and permanent facial deformity was wholly conclusory and unsupported by any medical expert testimony. Accordingly, the trial court's judgment was affirmed.


A defendant’s truthfulness or mendacity while testifying on his own behalf was deemed probative of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing
Thomas v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 31, 2018
14-17-00240-CR
Kevin Jewell
Published
The grand jury indicted the appellant on three charges of aggravated robbery. The appellant pleaded guilty to the charges. The trial court sentenced appellant to fifty-five years’ confinement in each cause, to be served concurrently. The appellate Court found that the trial court did not err because a defendant’s truthfulness or mendacity while testifying on his own behalf, almost without exception, had been deemed probative of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing. Further, the trial court could permissibly consider the appellant’s untruthfulness as an extraneous “bad act” contemplated by article 37.07, section 3(a) and assessed punishment accordingly. Finally, the trial judge did not err in considering for sentencing purposes whether a appellant who chooses to offer evidence at a punishment hearing testified untruthfully. Accordingly, the trial court's judgment was affirmed.


The affidavit was conclusory and not competent summary judgment evidence, as the attorney did not include any facts to support her conclusion that the appellee’s fees and costs were not reasonable and necessary
Leonard v. Knight
Contracts, Procedure
Texas 14th Court of Appeals
May 31, 2018
14-16-00932-CV
J Brett Busby
Published
The appellee sued the appellant for breach of contract when the appellant failed to pay the full amount owed under an agreement. The appellee filed a traditional motion for summary judgment, which the trial court granted. The appellate Court found that once the appellee proved his entitlement to summary judgment as a matter of law, it became the appellant’s burden as the non-movant to present grounds for avoiding summary judgment. To avoid summary judgment by raising an affirmative defense, the non-movant must do more than merely plead the affirmative defense. Further, there was no indication in the record that, at the time the appellant failed to make his final payment, the appellee could have refiled the claims dismissed in the prior lawsuit. Therefore, the Court held that the appellant did not raise a genuine issue of material fact on his affirmative defense of prior material breach, and the trial court did not err when it granted the appellee’s motion for summary judgment. Next, because the attorney did not include any facts to support her conclusion that the appellee’s fees and costs were not reasonable and necessary, the Court held her affidavit was conclusory and therefore not competent summary judgment evidence. Finally, because the appellant did not obtain a ruling on his objection to the second attorney’s affidavit, he had not preserved any complaint he may have had for appellate review. Accordingly, the Court affirmed the trial court’s judgment.


The relator failed to meet his burden of establishing both prerequisites to mandamus relief, as an ordinary appeal for litigation expenses and legal fees served as a plain, adequate, and complete remedy
In re Cousin
Constitution
Texas 12th Court of Appeals
May 31, 2018
12-18-00104-CV
Brian Hoyle
Published
The relator filed the instant original proceeding to challenge the denial of his second amended motion for court-ordered payment of legal fees and litigation expenses. The appellate Court found that an ordinary appeal of the order denying the relator’s motion for court ordered payment of his legal fees and litigation expenses from the Trust estates served as a plain, adequate, and complete remedy. Thus, the relator failed to meet his burden of establishing both prerequesites to mandamus relief. Having determined that the relator failed to establish his entitlement to mandamus relief, the Court denied the petition for writ of mandamus.


The appellant did not raise a fact issue as to its affirmative defense, as a change in the oil and gas market that caused appellant to be unable to obtain financing was not like the force majeure events listed in the contract
TEC Olmos, LLC v. ConocoPhillips Co.
Contracts, Damages, Torts
Texas 1st Court of Appeals
May 31, 2018
01-16-00579-CV
Sherry Radack
Published
The parties entered into a drilling contract that contained a “force majeure” clause. When one of the parties failed to perform its contractual obligations by the contract deadline, it sought to invoke force majeure protections. Litigation followed, and the trial court held that the force majeure clause was inapplicable as a matter of law. The appellate Court found that because foreseeability of force majeure events was rooted in the common law of the force majeure doctrine, the question presented was whether the trial court properly considered the foreseeability of changes in the oil and gas market when determining the applicability of the force majeure clause in the instant case. Further, because events listed in the “catch-all” provision of the contract required a showing of unforeseeability, which the appellant company did not do, and because a change in the oil and gas market making it impossible for the appellant to obtain financing was not like the other force majeure events listed in the contract, the Court found that the appellant, as a matter of law, did not raise a fact issue as to its affirmative defense. Thus, the trial court properly granted the appellee company's motion for summary judgment on its breach-of-contract claim. Accordingly, the court affirmed the judgment as modified.


The trial court erred in granting the appellee’s motions for partial summary judgment, as the appellee did not establish causation and damages as a matter of law based solely on the Appraisal Award
Texas Windstorm Ins. Ass’n v. Dickinson Indep. Sch.Dist.
Contracts, Damages
Texas 14th Court of Appeals
May 31, 2018
14-16-00474-CV
Kevin Jewell
Published
The appellee sued the appellant corporation in connection with the appellant’s handling of the appellee’s Hurricane Ike claims. The appellee alleged breach of contract and related claims. During the proceedings, the appellant invoked the insurance policy’s appraisal provisions, and the resulting appraisal award totaled $10.8 million in damages. The case proceeded to trial and the sole question put to the jury was whether the appellant breached the policy by failing to pay the appraisal award, which the jury answered affirmatively. The appellate Court found that the appellee’s late-filed evidence was not part of the summary judgment record when the trial court granted the appellee’s motions for partial summary judgment on causation and damages. Thus, on review, the only evidence the Court considered in support of the appellee’s motions was the the appellant policy, the Appraisal Award, the appellant’s live answer, and (4) the appellant’s letter invoking appraisal. Further, the court sustained, in part, the appellant’s first issue to the extent the appellant sought a reversal of the summary judgment orders and a remand for new trial. Finally, the trial court erred in granting the appellee’s motions for partial summary judgment because the appellee did not establish causation and damages as a matter of law based solely on the Appraisal Award. For the reasons expressed, the Court reversed the judgment and remanded the instant cause for proceedings.


The appellate court concluded that the trial court erred by not allowing relators the opportunity to replead because it was their statutory right to do so.
In re Manon
Appellate: Civil, Constitution, Courts, Procedure
Texas 4th Court of Appeals
June 13, 2018
04-18-00311-CV
Patricia O. Alvarez
Published
The relators appealed the judgment of the trial court which denied their motion to designate an individual as a responsible third party. On appeal, the relators contended that the trial court erred by denying them the opportunity to replead their motion to designate. The plaintiffs counterargued that the relators’ motion to designate provided a grossly inaccurate characterization of the lawsuit, and by repeating the same misleading description in their petition for writ of mandamus, relators demonstrated bad faith. The appellate court found that because the relators were required to only provide fair notice and because the trial court was restricted to evaluating the sufficiency of the facts pleaded by relators in determining whether to grant relators’ motion to designate, and thus, the relators were not required to attach evidence to their motion. The appellate court concluded that the trial court erred by not allowing relators the opportunity to replead. Accordingly, the relators’ petition for writ of mandamus was conditionally granted.


The evidence presented by the State was sufficient to establish, by a preponderance of the evidence, that the audio recording was admissible, thus, the trial judge did not abuse her discretion in admitting the recording into evidence.
White v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
June 13, 2018
PD-0442-17
Bert Richardson
Published
The defendant appealed the judgment of the appellate court which convicted him of engaging in organized criminal activity and money laundering and assessed his punishment at ten years imprisonment for each count. On appeal, the defendant challenged the admission of an audio recording of a conversation between his co-defendant and a third party. The defendant contended that the recording was inadmissible under Article 38.23 because the State failed to prove that the recording was legally obtained and not in violation of Texas Penal Code § 16.02. The criminal appellate court found that the trial court did not err in admitting the audio recording. The criminal appellate court concluded that the evidence presented by the State was sufficient to establish, by a preponderance of the evidence, that the audio recording was admissible, thus, the trial judge did not abuse her discretion in admitting the recording into evidence. Accordingly, the judgment of the appellate court was affirmed.


A jury instruction to disregard would have served to obviate any harm in the jury’s having been exposed to the remaining objectionable blood-draw testimony.
Lee v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
June 13, 2018
PD-0736-17
Kevin P. Yeary
Published
The defendant appealed the judgment of the appellate court which convicted him of driving while intoxicated, finding that the trial court abused its discretion in failing to grant his motion for mistrial. On appeal, the defendant argued that the trial court abused its discretion in denying his request for a mistrial after the State disclosed the results of the blood test in opening statements and examined three separate witnesses regarding the blood evidence. The State contended that the appellate court erred to conclude that the defendant preserved any error for appeal because the prosecutor’s opening statement was not erroneous since it was only proper for the parties to state what they expected the evidence to show at that juncture. The criminal appellate court concluded that an instruction to disregard would have served to obviate any harm in the jury’s having been exposed to the remaining objectionable blood-draw testimony. Accordingly, the judgment of the appellate court was affirmed.


The failure to include a jury instruction on an element of an element of an offense included within the charging instrument amounted to jury charge error subject to a harm analysis.
Niles v State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
June 13, 2018
PD-0234-17
David C. Newell
Published
The defendant appealed the judgment of the appellate court which convicted him of threatening his fellow firefighters and sentenced him. The defendant direct appealed to the appellate court, raising an illegal sentence claim. The State conceded that the jury charges only authorized convictions for Class B Terroristic Threat. The criminal appellate court was asked to decide whether the appellate court erred in doing so. On appeal, the defendant argued that there was Apprendi error in the case. The defendant asserted that the sentence was illegal because he was sentenced outside the appropriate range of punishment. The criminal appellate court concluded that the failure to include a jury instruction on an element of an element of an offense included within the charging instrument amounted to jury charge error subject to a harm analysis. Accordingly, the judgment of the appellate court was remanded to determine whether the defendant suffered any harm.


The appellate court concluded that it lacked jurisdiction over the appeal because the motion to compel arbitration was a motion for reconsideration, and the Federal Arbitration Act did not authorize an interlocutory appeal of a motion to reconsider a denial of a motion to compel arbitration.
Mike Hall Chevrolet Hall Inc. v. Deike
ADR, Contracts, Litigation: Personal Injury, Tax, Torts
Texas 14th Court of Appeals
June 12, 2018
14-17-00558-CV
Ken Wise
Published
The automobile dealership appealed the judgment of the trial court which denied its first motion to compel arbitration in a probate action alleging that the automobile accident was caused by a failed tire. On appeal, the automobile dealership challenged the trial court’s denial of their second amended motion to compel arbitration pursuant to the Federal Arbitration Act (FAA). The automobile dealership asserted that the arbitration agreement between the parties was a valid contract, the plaintiffs’ claims fell within the scope of the arbitration agreement, the passengers’ and parents’ claims fell within the scope of the arbitration agreement, and the arbitrable claims took priority over non-arbitrable claims, which should be stayed. The appellate court concluded that it lacked jurisdiction over the appeal because the second motion to compel arbitration was in substance a motion for reconsideration, and the FAA did not authorize an interlocutory appeal of a motion to reconsider a denial of a motion to compel arbitration. Accordingly, the judgment of the trial court was affirmed.


The trial court erred in concluding that the common-law rule of joint and several liability for an indivisible injury did not survive the enactment of Chapter 33, and in granting summary judgment against the homeowners’ association’s common-law tort claims on that basis.
Lakes of Rosehill Homeowners Ass’n Inc. v. Jones
Appellate: Civil, Damages, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
June 12, 2018
14-16-01017-CV
J Brett Busby
Published
The homeowners’ association appealed the judgment of the trial court which granted the defendants’ partial summary judgment motion in an action to recover for property damage caused by flooding. The appellate court was asked to determine whether the rule of joint and several liability in tort among the homeowners’ association whose individual share of responsibility for a plaintiff’s injuries could not be proven survived the State’s adoption of proportionate responsibility pursuant to Chapter 33 of the Texas Civil Practice and Remedies Code. On appeal, the homeowners’ association argued that the amendments to Chapter 33 abrogated the supreme court’s holdings in Landers and Amstadt that the defendants were jointly and severally liable when their tortious acts caused an indivisible injury. Further, the homeowners’ association assert that their position was supported by sections 17 and D18 of the Restatement (Third) of Torts. The appellate court found that the rule of joint and several liability, as recognized in Landers v. East Texas Salt Water Disposal Co., did not survive. The appellate court concluded that the trial court erred in concluding that the common-law rule of joint and several liability for an indivisible injury did not survive the enactment of Chapter 33, and in granting summary judgment against the homeowners’ association’s common-law tort claims on that basis. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


Since the defendant raised a material issue of fact on each of the elements of his duress affirmative defense, the plaintiffs were not entitled to summary judgment.
Weinberg v. Baharav
Appellate: Civil, Business, Contracts, Procedure
Texas 14th Court of Appeals
June 12, 2018
14-17-00023-CV
Martha Hill Jamison
Published
The defendant appealed the judgment of the trial court which granted summary judgment in favor of the plaintiffs in a suit alleging breach of a settlement agreement that was allegedly signed under duress. On appeal, the defendant argued that he presented evidence raising a material issue of fact on each element of his duress affirmative defense, and that the plaintiffs failed to establish the amount of their alleged damages as a matter of law. The defendant contended that all signatories to the agreement were not made parties to the lawsuit, and the evidence was insufficient to support the amount the trial court awarded to the plaintiffs for attorney fees. The appellate court found that the evidence, viewed in the light most favorable to the defendant, was sufficient to raise a material issue of fact on the defendant’s affirmative defense that he was threatened with imminent criminal prosecution if he did not sign the agreement. The appellate court concluded that since the defendant raised a material issue of fact on each of the elements of his duress affirmative defense, the plaintiffs were not entitled to summary judgment. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The Texas-residency exception did apply to some of the plaintiffs’ underlying claims and the trial court did not abuse its discretion when ruling on the relator’s motion to dismiss.
In re Mahindra, USA Inc.
Appellate: Civil, Litigation: Personal Injury, Procedure
The Supreme Court of Texas
June 08, 2018
17-0019
John P. Devine
Published
The relator appealed the judgment of the appellate court which denied mandamus relief following its motion to dismiss the plaintiff’s negligence and products-liability action. On appeal, the relator maintained that the Texas-residency exception to forum non conveniens did not apply to the plaintiffs’ underlying claims. The relator alleged that the trial court abused its discretion in failing to grant its motion to dismiss the underlying Texas litigation on statutory forum non conveniens grounds because it improperly failed to conduct a choice-of-law analysis in determining whether Mississippi law should apply. The Supreme Court concluded that the Texas-residency exception did apply to some of the underlying claims and that the trial court did not abuse its discretion when ruling on the relator’s motion to dismiss. Accordingly, the relator’s petition for writ of mandamus was denied.


The Texas Family Code section 231.211(a) prohibited appellate courts from assessing costs at the conclusion of a Title IV-D case against a party who was provided services by the Title IV-D agency.
In re C.Y.K.S.
Family, Procedure
The Supreme Court of Texas
June 08, 2018
17-0214
Per Curiam
Published
The Office of the Attorney General (OAG) appealed the judgment of the appellate court which denied its motion for rehearing regarding the assessment of costs in an action to enforce a previous child support order. The Supreme Court was asked whether the Texas Family Code section 231.211(a) prohibition on courts from assessing costs at the conclusion of a Title IV-D case applied to appellate courts. On appeal, the OAG argued that the appellate court’s interpretation defied the definition of a Title IV-D case, which was an action in which services were provided by the Title IV-D agency relating to the modification or enforcement of a child support obligation. Specifically, the OAG asserted that each stage of the proceeding was a separate Title IV-D case that concluded with the final judgment from that court. The Supreme Court concluded that the Texas Family Code section 231.211(a) prohibited appellate courts from assessing costs at the conclusion of a Title IV-D case against a party who was provided services by the Title IV-D agency. Accordingly, the judgment of the trial court was reversed.


The insurer did not establish that the trial court’s exclusion of evidence of the demand letter probably resulted in rendition of an improper judgment, much less that the insured was precluded from their statutory right to attorney’s fees as a matter of law.
State Farm Lloyds v. Fuentes
Damages, Insurance, Torts
The Supreme Court of Texas
June 08, 2018
16-0369
Per Curiam
Published
The insurer appealed the judgment of the appellate court which affirmed the trial court’s finding that both parties breached the insurance contract but that the insured breached first, and that the insurer was liable for Insurance Code violations, breach of its duty of good faith and fair dealing, and fraud. On appeal, the insurer argued that the trial court erred in disregarding the jury’s findings and in excluding evidence of the insured’s demand letter. The insurer contended that it did not waive its first issue because extra-contractual findings were not freestanding grounds supporting the judgment, but rather were dependent on contractual liability. It maintained that it had consistently argued that the jury’s findings about the insurer’s breach of the policy precluded the insured’s liability as a matter of law. The Supreme Court concluded that the insurer did not establish that the trial court’s exclusion of evidence of the demand letter probably resulted in rendition of an improper judgment, much less that the insured was precluded from their statutory right to attorney’s fees as a matter of law. Accordingly, the judgment of the appellate court was affirmed in part, vacated in part, and remanded for further proceedings.


The Supreme Court found that the respondent did not have standing to pursue its claim for injunctive relief against the petitioner.
Meyers v. JDC/Firethorne, Ltd.
Appellate: Civil, Gov't/Administrative, Torts
The Supreme Court of Texas
June 08, 2018
17-0105
Paul W. Green
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s decision that the petitioner was a critical part of the entire matter because he was inserting himself in it. The Supreme Court was asked to determine whether the trial court had subject matter jurisdiction over a dispute between a land developer and a county commissioner. On appeal, the petitioner argued that the ultra vires exception to governmental immunity did not apply because the respondent did not allege any illegal acts by him. The Supreme Court found that since an individual county commissioner in Fort Bend County lacked legal authority to receive, process, or present a completed plat application to that county’s commissioners court for approval, the developer did not show a substantial likelihood that the injunction it sought against the county commissioner would remedy its alleged injury. The Supreme Court found that the respondent did not have standing to pursue its claim for injunctive relief against the petitioner. Accordingly, the judgment of the appellate court was reversed and dismissed with prejudice.


The underwriter signed away its right to recover benefits it paid to the employee and received a higher premium in exchange for assuming that risk, and thus, it could not seek to indirectly recover the same proceeds it agreed not to pursue directly.
Wausau Underwriters Ins. Co. v. Wedel
Appellate: Civil, Employment, Insurance, Litigation: Personal Injury, Procedure, Workers' Compensation
The Supreme Court of Texas
June 08, 2018
17-0462
Jeffery Brown
Published
The underwriter appealed the judgment of the appellate court which affirmed the trial court’s grant of summary judgment to the claimant in a workers’ compensation carrier case, where the underwriter sought reimbursement of payments from settlement proceeds. On appeal, the underwriter argued that its waiver foreclosed only its right to pursue reimbursement directly from the employer but left intact its right to pursue reimbursement from an employee’s recovery against the same. The underwriter conceded that it could not recover directly from the third party but insisted it could recover indirectly from any settlement the third party payed to the employee. The Supreme Court disagreed with the underwriter and found that it signed away its right to recover benefits it paid to the employee and received a higher premium in exchange for assuming that risk, and thus, it could not seek to indirectly recover the same proceeds it agreed not to pursue directly. Accordingly, the judgment of the appellate court was affirmed.


The Supreme Court concluded that article 6243h created mandatory duties and defined them with sufficient clarity to support the Pension System’s ultra vires and mandamus claims.
Houston v. Houston Mun. Employees Pension Sys.
Employment, Gov't/Administrative, Procedure
The Supreme Court of Texas
June 08, 2018
17-0242
Phil Johnson
Published
The City appealed the judgment of the appellate court which affirmed the trial court’s denial of the City’s plea to the jurisdiction in an action in which the City maintained that it had governmental immunity from a suit by the Houston Municipal Employees Pension System (the Pension System). On appeal, the City argued that the trial court did not have jurisdiction over the Pension System’s claims against the City. Specifically, the City alleged that the corporations’ personnel were not members of the Pension System, asserting that even if the personnel at issue were members of the Pension System, the Pension System’s ultra vires claims against it were barred by immunity because it sought to enforce contractual duties, and noncompliance with a contract did not give rise to an ultra vires claim. The Supreme Court concluded that article 6243h created mandatory duties and defined them with sufficient clarity to support the Pension System’s ultra vires and mandamus claims. Accordingly, the judgment of the appellate court was affirmed in part and reversed in part.


The appellate court concluded that because the plaintiff did not timely file his notice of appeal, his appeal must be dismissed for lack of jurisdiction.
Sims v. Madisonville
Appellate: Civil, Courts, Procedure
Texas 8th Court of Appeals
June 08, 2018
08-15-00113-CV
Ann Crawford McClure
Published
The plaintiff appealed the judgment of the trial court which granted the City’s plea of the jurisdiction in an action alleging a violation of the Texas Whistleblower Act. In its plea to the jurisdiction, the City asserted that the plaintiff failed to establish a waiver of immunity and his suit was untimely and barred by limitations. On appeal, the City argued that the appellate court lacked jurisdiction because the plaintiff did not timely file his notice of appeal. The appellate court found that since the plaintiff did not file a motion for new trial or other motion which would have extended the trial court’s plenary power beyond thirty days, that period expired. The appellate court concluded that because the plaintiff did not timely file his notice of appeal, his appeal must be dismissed for lack of jurisdiction. Accordingly, the judgment of the trial court was affirmed.


The defamation claims against the grandparents were unsustainable due to lack of pleadings and sufficient causation evidence, and the evidence was legally insufficient to support the grandparents’ liability under Chapter 42 of the Family Code.
Bos v. Smith
Family, Procedure
The Supreme Court of Texas
June 08, 2018
16-0341
Eva M. Guzman
Published
The grandparents appealed the judgment of the appellate court which reversed the trial court’s grant of damages to defamation in an action where the father sued the grandparents for negligence, defamation, and aiding and assisting their daughter’s interference with his possessory rights in violation of Chapter 42 of the Texas Family Code. On appeal, the father alleged that the grandparents violated Section 42.003 by aiding or assisting the mother in violating his right to possession. The grandparents contended Section 42.003 applied only in child-abduction cases and that their actions did not constitute assistance under Chapter 42. The Supreme Court found that the evidence was legally insufficient to establish a violation even if the statute was not limited to abductions, and that the mother’s conduct was unforeseeable as to harming her children, thus no evidence supported a finding of proximate cause. The Supreme Court concluded that the defamation claims against the grandparents were unsustainable due to lack of pleadings and sufficient causation evidence, and the evidence was legally insufficient to support the grandparents’ liability under Chapter 42 of the Family Code. Accordingly, the judgment of the appellate court was affirmed as to the defamation judgment but reversed as to the remaining claims.


The U.S. government was the buyer in the appellant’s aircraft sales for purposes of Former Section 171.1032, and thus, the appellant’s receipts from the Foreign Money Sales transactions were properly sourced to Texas.
Lockheed Martin Corp. v. Hegar
Appellate: Civil, Corporations, Gov't/Administrative, Procedure, Tax
Texas 3rd Court of Appeals
June 08, 2018
03-16-00303-CV
Bob Pemberton
Published
The appellant appealed the judgment of the trial court which affirmed the Comptroller’s ruling that the appellant’s revenue came from “Foreign Military Sales” (FMS) transactions. This appeal stemmed from the Comptroller insisting that the appellant’s revenues from the FMS transactions were Texas receipts because of certain U.S. government actions that occurred here. The appellate court was asked to determine the proper sourcing, for Texas franchise-tax-apportionment purposes, of receipts from the appellant’s sales of fighter aircraft through FMS transactions. On appeal, the appellant argued that the receipts were instead properly sourced to the respective foreign nations of the aircraft’s ultimate users. The Comptroller counterargued that the U.S. government was the relevant buyer in the FMS transactions and that the court should view each FMS transaction as two separate sales for purposes of Former Section 171.1032. The appellate court agreed with the Comptroller and concluded that the U.S. government was the buyer in the appellant’s aircraft sales for purposes of Former Section 171.1032, and thus, the appellant’s receipts from the FMS transactions were properly sourced to Texas. Accordingly, the judgment of the trial court was affirmed.


The defendant’s prior felony conviction did not increase the degree of his current offense but rather increased only the punishment level that applied to the primary state jail felony offense.
Henderson v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
June 01, 2018
07-17-00099-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted him of the state jail felony offense of possession of marihuana and found that he used or exhibited a deadly weapon during the commission of the offense. The trial court assessed the defendant’s punishment at eleven years confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, the defendant contended that the evidence was legally insufficient and factually insufficient to establish that he used or exhibited a deadly weapon during the commission of the offense. The defendant alleged that the trial court’s judgment contained an erroneous recitation concerning the degree of the offense. The State conceded that the weapon was not exhibited in the course of the commission of the offense, however, it argued that a rational fact finder could have inferred that the defendant used the firearm to facilitate the commission of that offense. The appellate court found that a rational fact finder could have found the essential elements of a deadly-weapon finding beyond a reasonable doubt. The appellate court concluded that the defendant’s prior felony conviction did not increase the degree of his current offense but rather increased only the punishment level that applied to the primary state jail felony offense. Accordingly, the judgment of the trial court was reformed to reflect the correct degree of the offense as a state jail felony and affirmed.


Since the record did not conclusively establish that the parties intended an offset well to include a well, which was located approximately 2,000 feet from the triggering well on adjacent premises, summary judgment for the petitioner was improper.
Murphy Exploration & Prod. Co.-USA v. Adams
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Procedure
The Supreme Court of Texas
June 01, 2018
16-0505
Debra Ann H. Lehrman
Published
The petitioner appealed the judgment of the appellate court which held that the lessee did not conclusively demonstrate compliance with the provision and reversed the trial court’s summary judgment in the lessee’s favor, in an action stemming from a contract dispute over an offset provision in an oil and gas lease. On appeal, the petitioner argued that the lease provision, drafted with horizontal shale wells in mind, only required the lessee to counterbalance production from the tight shale formation, recognizing that there was little to no drainage in the shale. The petitioner alleged that an express offset well provision superseded and supplanted the implied covenant to protect against drainage, which included the reasonably prudent operator standard. The Supreme Court concluded that since the record did not conclusively establish that the parties intended an offset well to include a well, which was located approximately 2,000 feet from the triggering well on adjacent premises, summary judgment for the petitioner was improper. Accordingly, the judgment of the appellate court was reversed.


The respondent’s contacts with Texas were insufficient to confer specific or general jurisdiction over her as to the title insurance company’s alleged fraudulent-transfer claim.
Old Republic Nat’l Title Ins. Co. v. Bell
Appellate: Civil, Procedure, Real Property, Torts
The Supreme Court of Texas
June 01, 2018
17-0245
Paul W. Green
Published
The title insurance company appealed the judgment of the appellate court which found that it lacked jurisdiction over the respondent in a personal-jurisdiction dispute arising from a series of money transfers in connection with the sale of Texas property. The Supreme Court was asked to determine whether Texas courts have personal jurisdiction over the respondent based on her contacts with the state. On appeal, the respondent argued that the third-amended petition was erroneously considered by the trial court and that only the pleadings on file at the time of the hearing were properly before the court. The petitioner counterargued that the respondent participated in phone calls with a Texas resident regarding the collection of a federal lien. The Supreme Court concluded that the respondent did not purposefully avail herself of the state of Texas such that Texas courts may exercise personal jurisdiction over her as to the petitioner’s claim. The Supreme Court found that the respondent’s contacts with Texas were insufficient to confer specific or general jurisdiction over her as to the title insurance company’s alleged fraudulent-transfer claim. Accordingly, the judgment of the appellate court was affirmed.


The Supreme Court concluded that the contract claim arose from the municipality’s performance of a proprietary function, so governmental immunity did not apply.
Wasson Interests, Ltd. v. City of Jacksonville
Appellate: Civil, Contracts, Gov't/Administrative, Procedure
The Supreme Court of Texas
June 01, 2018
17-0198
Jeffrey S. Boyd
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s grant of summary judgment to the City in an action alleging that the City breached the lease agreements and seeking declaratory and injunctive relief. The Supreme Court was asked to determine whether the contract claim arose from the municipality’s performance of a governmental or proprietary function. On appeal, the petitioner argued that the only relevant activity was the City’s decision to lease the property, alleging that the appellate court should have focused on the nature of the City’s conduct when it entered into the lease agreements. The Supreme Court agreed with the petitioner and found that to determine whether governmental immunity applied to a breach-of-contract claim against a municipality, the proper inquiry was whether the municipality was engaged in a governmental or proprietary function when it entered the contract. The Supreme Court concluded that the contract claim arose from the municipality’s performance of a proprietary function, so governmental immunity did not apply. Accordingly, the judgment of the appellate court was reversed and remanded.


The respondent failed to rebut the presumption the petitioner was entitled to offset the judgment, and the trial court should have applied the settlement credits in order to prevent the respondent’s double recovery on his single injury.
Sky View at Las Palmas, LLC v. Mendez
Appellate: Civil, Contracts, Damages, Insurance, Litigation: Personal Injury, Procedure
The Supreme Court of Texas
June 01, 2018
17-0140
Paul W. Green
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s denial of settlement credits. The Supreme Court was asked to determine whether the trial court erred in failing to apply the one-satisfaction rule and award a non-settling defendant settlement credits. On appeal, the petitioner argued that the appellate court erred in failing to apply the one-satisfaction rule and denying its settlement credits for the settlements entered into. The petitioner asserted that the respondent consistently pled, proved, and asked the jury to compensate him for a single, indivisible injury from all defendants. The Supreme Court found that the respondent failed to rebut the presumption the petitioner was entitled to offset the judgment, and the trial court should have applied the settlement credits in order to prevent the respondent’s double recovery on his single injury. The Supreme Court concluded that the one-satisfaction rule applied to the case, and the trial court therefore erred in denying the non-settling defendant the settlement credits. Accordingly, the judgment of the appellate court was remanded for further proceedings.


Willacy County Appraisal District (WCAD) acted within its authority to correct an appraisal roll under section 25.25(b) to reflect ownership of taxable property.
Willacy County Appraisal Dist. v. Sebastian Cotton & Grain, Ltd.
Appellate: Civil, Contracts, Gov't/Administrative, Real Property, Tax
The Supreme Court of Texas
April 27, 2018
16-0626
Paul W. Green
Published
The instant appeal arose out of a property tax dispute regarding ownership of tangible personal property.  This court held that Willacy County Appraisal District (WCAD) acted within its authority to correct an appraisal roll under section 25.25(b) to reflect ownership of taxable property. This change did not increase the "amount of tax liability" attached to the property; the owner of the property on January 1, 2009 was liable for the taxes assessed on the property irrespective of who was listed on the appraisal roll or received the tax bill.  With respect to agreements as to section 25.25 corrections, this court held that before a court recognized an agreement as final and unreviewable, the court must confirm that the agreement constituted a section 1.111(e) agreement between a property owner and the chief appraiser.  They further held that an otherwise valid agreement under section 1.111(e) of the Property Tax Code may be voidable if there was factually and legally sufficient evidence to support a finding of fraud.  Accordingly, the judgment of the court of appeals was reversed and this case was remanded to that court for further consideration consistent with this opinion.


Appellant failed to preserve his argument during sentencing that the prosecution breached the terms of his plea agreement.
Joyner v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 10, 2018
01-16-00775-CR
Jennifer Caughey
Published
Appellant, Jamal Joyner, was indicted for capital murder. He pleaded guilty in exchange for the State reducing the charge to the lesser-included offense of aggravated robbery and an agreement from the State that it would recommend 50 years' confinement if Joyner testified truthfully at his codefendants' trials, if he were called as a witness. Joyner never testified at any codefendant's trial. The State contended that Joyner lied to the pre-trial investigator, which prevented the State from calling him as a witness.  At Joyner's sentencing, the State recommended confinement for life, and the trial court sentenced Joyner to 60 years in prison. Appellant appealed, arguing that the State breached the plea agreement or relatedly committed prosecutorial misconduct by not recommending 50 years' confinement.  This court held that appellant failed to preserve the issue for appellate review.  Appellant was required to comply with Rule 33.1 to preserve his appeal.  Because he failed to do so, this court overruled his five issues.  Accordingly, the judgment was affirmed. 


Appellant failed to meet his burden of coming forward with even a scintilla of evidence to support his claims under the DTPA and the Texas Insurance Code.
Ramirez v. Geico
Appellate: Civil, Evidence, Insurance, Procedure
Texas 8th Court of Appeals
April 16, 2018
08-15-00326-CV
Yvonne T. Rodriguez
Published
Appellant, Daniel Ramirez, appealed from an order granting summary judgment in favor of Government Employees Insurance Company (Geico), dismissing two claims that appellant brought against Geico under the Deceptive Trade Practices Act (DTPA) and the Texas Insurance Code, for alleged delays that occurred in paying his claims.  This court found that appellant failed to meet his burden of coming forward with even a scintilla of evidence to support his claim that Geico made an actionable misrepresentation to him under the DTPA.  In addition, appellant failed to come forward with any evidence to suggest that Geico did in fact purposely delay paying his medical bills.  Finally, this court concluded that appellant did not meet his burden of coming forward with more than a scintilla of evidence to support his claim that Geico made an actionable misrepresentation or omission under the Texas Insurance Code.  Accordingly, the judgment was affirmed.   


ERCOT's interlocutory appeal was dismissed for lack of jurisdiction and ERCOT’s petition for writ of mandamus was conditionally granted.
Elec. Reliability Council of Texas Inc. v. Panda Power Generation Infrastructure Fund, LLC
Constitution, Procedure, Torts
Texas 5th Court of Appeals
April 16, 2018
05-17-00872-CV
Douglas S. Lang
Published
In this consolidated interlocutory appeal and mandamus proceeding, this court must decide whether appellees/real parties in interest, a group of limited liability companies (collectively, Panda), were barred from proceeding with claims of fraud, negligent misrepresentation, and breach of fiduciary duty against appellant/relator Electric Reliability Council of Texas, Inc. (ERCOT) based on representations by ERCOT respecting future demand for electric power in Texas.  In this Court, ERCOT asserted in two issues that the trial court erred by denying its pleas to the jurisdiction.  They further argued that this Court had appellate jurisdiction over this case, or, alternatively, mandamus jurisdiction.  This court held that this court lacked jurisdiction as to ERCOT’s interlocutory appeal but had mandamus jurisdiction over this case.  Additionally, this court decided in favor of ERCOT as to the trial court’s denial of its pleas to the jurisdiction based on sovereign immunity.  Accordingly, ERCOT's interlocutory appeal was dismissed for lack of jurisdiction, ERCOT’s petition for writ of mandamus was conditionally granted and the trial court was directed to vacate its order denying ERCOT's plea to the jurisdiction based on sovereign immunity and dismiss this case for lack of jurisdiction.  If the trial court failed to do so, the writ will issue.


The plaintiff’s allegations did not state a claim under the limited exceptions to the at-will employment doctrine because the enacted maritime whistleblower protections did not apply to the plaintiff’s circumstances.
Haag v. Schlumberger Tech. Corp.
Appellate: Civil, Employment, Procedure, Torts
Texas 1st Court of Appeals
June 07, 2018
01-17-00017-CV
Michael C. Massengale
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment to his employer rejecting his wrongful-discharge claims. The plaintiff alleged that he was wrongfully discharged in retaliation for warning his employer that a vessel could not be operated safety with the proposed offshore seismic-surveying equipment. On appeal, the plaintiff contended that he pleaded a recognized cause of action under maritime law and that he raised a genuine issue of material fact that the alleged retaliation was motivated in substantial part by his report about his concerns. Specifically, the plaintiff asserted that the whistleblower protections were designed to encourage seamen to report dangerous conditions through protected channels by ensuring they were safe from the threat of retaliation by their employer. The appellate court concluded that the plaintiff’s allegations did not state a claim under the limited exceptions to the at-will employment doctrine because the enacted maritime whistleblower protections did not apply to the plaintiff’s circumstances. Accordingly, the judgment of the trial court was affirmed.


The trial court failed to analyze the plaintiff’s motion to dismiss the counterclaim on its merits under the framework required by the Texas Citizens’ Participation Act.
Reeves v. Harbor Am. Cent., Inc.
Appellate: Civil, Contracts, Employment, Procedure
Texas 14th Court of Appeals
June 07, 2018
14-17-00518-CV
Martha Hill Jamison
Published
The plaintiff appealed the judgment of the trial court which denied his motion to dismiss the defendant’s counterclaims based on the Texas Citizens’ Participation Act (the Act) in an action alleging breach of contract. On appeal, the plaintiff contended that the trial court improperly denied the motion on the grounds that it was filed to avoid discovery and to avoid contractual obligations. The defendant counterargued that the trial court was entitled to deny the motion because it was solely intended to delay completing discovery ordered by the court and agreed to by the plaintiff’s counsel. The appellate court agreed with the plaintiff and concluded that the trial court failed to analyze the plaintiff’s motion to dismiss the counterclaim on its merits under the framework required by the Act. The appellate court found that the trial court erred to the extent that it granted the motion on the basis that the plaintiff filed the motion to avoid participating in discovery. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The State was not required to present DNA, fingerprint, or video evidence to meet its burden of proof to support the murder conviction.
Arrellano v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
June 07, 2018
01-15-00814-CR
Michael C. Massengale
Published
The defendant appealed the judgment of the trial court which convicted him of murder and assessed punishment at life in prison. Thereafter, the defendant filed a motion for new trial which was overruled by operation of law. On appeal, the defendant argued that the evidence was insufficient to support his conviction, contending that the trial court erred by denying his request for a jury instruction on eyewitness testimony. The defendant asserted that the trial court incorrectly instructed the jury on reasonable doubt and failed to hold a hearing on his motion for new trial. The appellate court disagreed with the defendant and found that the evidence allowed a rational trier of fact to find the defendant guilty beyond a reasonable doubt, and no reversible error by the trial court was shown. The appellate court concluded that the State was not required to present DNA, fingerprint, or video evidence to meet its burden of proof to support the murder conviction. Accordingly, the judgment of the trial court was affirmed.


A rational factfinder could have determined that the defendant participated in the shootings as a member of a criminal street gang, as he was acting in the role, capacity, or function of a gang member in carrying out the offenses.
Zuniga v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
June 06, 2018
PD-0174-17
Alcala
Published
The defendant appealed the judgment of the trial court which convicted him of engaging in organized criminal activity and capital murder based on his participation in a shooting that caused the deaths of two individuals. The appellate court reversed. On appeal, the defendant argued that the evidence was insufficient to support his convictions for engaging in organized criminal activity because the record failed to show that he committed the shootings while possessing the intent to establish, maintain, or participate as a member of a criminal street gang. The Court of Appeals found that a rational factfinder could have determined that the defendant participated in the shootings as a member of a criminal street gang, as he was acting in the role, capacity, or function of a gang member in carrying out the offenses. The Court of Appeals concluded that the evidence was sufficient to support the defendant’s convictions for engaging in organized criminal activity. Accordingly, the judgment of the appellate court was reversed, and the conviction was reinstated.


If a jury instruction included the elements of the charged crime but incorrectly added an extra, made-up element, a sufficiency challenge was still assessed against the elements of the charged crime, regardless of the source of the extra element.
Ramjattansingh v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
June 06, 2018
PD-0972-17
David C. Newell
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated. On appeal, the defendant asserted that the evidence was legally insufficient to sustain the jury’s finding of guilt on the Class A misdemeanor. The court of criminal appeals was asked to determine whether the filing of a charging instrument containing non-statutory language prohibited the appellate court from considering the hypothetically correct jury charge in a sufficiency review. The court of criminal appeals found that the State failed to object to the erroneously heightened jury instruction. The court of criminal appeals concluded that if a jury instruction included the elements of the charged crime but incorrectly added an extra, made-up element, a sufficiency challenge was still assessed against the elements of the charged crime, regardless of the source of the extra element. Accordingly, the judgment of the court of appeals was reversed and remanded for further proceedings.


The applicants were entitled to relief under Article 11.073 based on the discovery of new scientific evidence, but they did not prove they were actually innocent.
Ex Parte Kussmaul
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
June 06, 2018
WR-28,586-09
David C. Newell
Published
The applicants appealed the judgment of the trial court which convicted him of capital murder and gang rape. Thereafter, the applicants recanted their inculpatory statements to the police and their testimony following post-conviction DNA test results. On appeal, the State contended that the applicants’ claims were barred under Article 11.07 and should be denied because they pleaded guilty. The court of criminal appeals concluded that the applicants failed to meet the actual innocence standard. The court of criminal appeals found that the applicants were entitled to relief under Article 11.073 based on the discovery of new scientific evidence, but they did not prove they were actually innocent. Accordingly, the applicants’ request was granted.


The court of criminal appeals concluded that the applicant failed to demonstrate adaptive deficits sufficient to support a diagnosis of intellectual disability.
Ex Parte Moore
Appellate: Civil, Constitution, Criminal, Procedure
Texas Court of Criminal Appeals
June 06, 2018
WR-13,374-05
Sharon Keller
Published
The applicant appealed the judgment of the habeas court, seeking to be exempted from the death penalty on the ground that he was intellectually disabled. On appeal, the applicant contended that he was categorically exempt from the death penalty due to his intellectual disability. The court of criminal appeals disagreed with the habeas court and found that the habeas court failed to follow standards set out in caselaw and failed to consider, or unreasonably disregarded, a vast array of evidence in the record that could not rationally be squared with a finding of intellectual disability. The court of criminal appeals concluded that the applicant failed to demonstrate adaptive deficits sufficient to support a diagnosis of intellectual disability. Accordingly, the applicants petition was denied


The court of criminal appeals found that the two offenses violated double jeopardy, however each offense required proof of a different element.
Bien v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
June 06, 2018
PD-0365-16
David C. Newell
Published
The defendant appealed the judgment of the trial court which convicted him attempted capital murder and criminal solicitation of capital murder. The court of appeals found that the defendant’s convictions violated the Double Jeopardy Clause’s prohibition against multiple punishments for the same offense. On appeal, the defendant argued that the trial court erred when it authorized the jury to return multiple verdicts for the same offense. The court of criminal appeals found that the two offenses violated double jeopardy, however each offense required proof of a different element. The court of criminal appeals concluded that the elements of the offense of attempted capital murder were functionally equivalent to the elements of solicitation of capital murder. Accordingly, the judgment of the court of appeals was affirmed.


The trial court correctly interpreted the expunction statute and that the defendant was entitled to have the records and files relating to his arrest on the dismissed charge expunged.
Ex Parte N.B.J.
Criminal, Evidence, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
June 05, 2018
14-17-00177-CV
Martha Hill Jamison
Published
The Department of Public Safety (the Department) appealed the judgment of the trial court’s order granting expunction relief to the defendant following his arrest. On appeal, the Department argued that, because expunction was not available for both charges, it was not available for the dismissed charge. The Department asserted that since the defendant received court-ordered community supervision for the initial charge, he did not satisfy the statutory requirements for expunction of his arrest records relating to the subsequent charge. The defendant counterargued that he was arrested twice on the same day by different police departments, and so, the Department’s interpretation of the statute was irrelevant. The appellate court concluded that the trial court correctly interpreted the expunction statute, and that the defendant was entitled to have the records and files relating to his arrest on the dismissed charge expunged. Accordingly, the judgment of the trial court was affirmed.


Since the trial court had before it the psychological and drug and alcohol abuse information to use in formulating the defendant’s sentence, there was not a reasonably probability that the result would have been different but for the counsel’s failure to request additional evaluations.
Castello v State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
June 05, 2018
01-16-00742-CR
Jennifer Caughey
Published
The defendant appealed the judgment of the trial court which convicted him of murder and sentenced him to 55-years’ confinement. On appeal, the defendant argued that the trial court erred by sentencing him without a drug and alcohol evaluation and a psychological evaluation. The defendant asserted that his trial counsel was ineffective for failing to preserve the issue for appellate review and the fees imposed on him for summoning witnesses and mileage violated his confrontation rights and his right to compulsory process. Specifically, the defendant contended that the trial court erred in failing to require presentence investigation report to include a drug and alcohol evaluation and a psychological evaluation. The appellate court found that since the trial court had before it the psychological and drug and alcohol abuse information to use in formulating the defendant’s sentence, and because the defendant failed to show what additional evaluations might have offered, there was not a reasonably probability that the result would have been different but for the counsel’s failure to request additional evaluations. The appellate court concluded that the defendant forfeited his first claim, his counsel was not ineffective, and failed to show that any witness fees in the case were unconstitutional as applied to him. Accordingly, the judgment of the trial court was affirmed.


The record showed that the relator had been unfairly subjected to undue expense and delay as a result of the trial judge’s failure to prosecute her lawsuit within a reasonable time period.
In re Crawford
Appellate: Civil, Courts, Procedure, Torts
Texas 6th Court of Appeals
June 05, 2018
06-18-00025-CV
Bailey C. Moseley
Published
The relator filed a petition for writ of mandamus seeking to compel the trial judge to dismiss, for want of prosecution, a suit for damages against her arising out of a motor vehicle collision. In her petition, the relator contended that the trial court abused its discretion when it denied her motion to dismiss, arguing that the delay in the case had the potential to dim witnesses’ memories and cost the parties time and money and that it would result in the unnecessary trial of a matter that will be reversed and dismissed on appeal. The trial judge counterargued that the language of Rule 165a was discretionary, not mandatory, and that it was within the trial court’s discretion to deny the relator’s motion to dismiss. The trial judge also maintained that the relator attached to the appellate record only the documents she wanted the appellate court to review and, therefore, the record was not complete. The appellate court concluded that the record showed that the relator had been unfairly subjected to undue expense and delay as a result of the trial judge’s failure to prosecute her lawsuit within a reasonable time period. Accordingly, the relator’s petition for writ of mandamus was conditionally granted.


Since some evidence supported the trial court’s finding that sanctions were warranted against the plaintiffs, the trial court did not abuse its discretion in imposing sanctions.
Roach v. Ingram
Gov't/Administrative, Procedure
Texas 14th Court of Appeals
June 05, 2018
14-16-00790-CV
Ken Wise
Published
The plaintiffs appealed the judgment of the trial court which dismissed their claims seeking a declaratory and prospective injunctive relief to stop public officials from continuing to engage in allegedly ultra vires acts in connection with the operation of the county’s truancy program. On appeal, the plaintiffs argued that the final judgment was void and the trial judge should have been disqualified. The plaintiffs contended that the trial judge erred in granting a Texas Citizens Participation Act motion to dismiss and deny a countermotion filed by the plaintiffs, granting defendants’ pleas to the jurisdiction and Rule 91a motions, denying class certification, and awarding sanctions and attorney’s fees. The appellate court found that the trial court did not err in awarding the additional sanctions against the plaintiff because the additional sanctions were less than or roughly equal to the attorney’s fees incurred, and thus were no more severe than necessary to satisfy their legitimate purposes. The appellate court concluded that since some evidence supported the trial court’s finding that sanctions were warranted against the plaintiffs, the trial court did not abuse its discretion in imposing sanctions. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the appellant failed to show the inadequacy of a final appeal to sustain a writ of mandamus.
In re Vantage Drilling Int’l
ADR, Appellate: Civil, Contracts, Procedure, Torts
Texas 1st Court of Appeals
June 05, 2018
01-17-00592-CV
Russell Lloyd
Published
The appellant petitioned for a writ of mandamus from the appellate court directing the trial court to vacate its order compelling arbitration of all claims asserted between them and the law firm. On appeal, the appellant asserted that the trial court clearly abused its discretion in compelling arbitration because the law firm waived arbitration and a final appeal would be inadequate to review the alleged waiver. The appellant contended that the case-specific benefits of interrupting or delaying the referral of the case to arbitration demonstrated that it had no adequate remedy by appeal, and that it will spend more time and money to arbitrate the case instead of continuing to litigate. The appellate court concluded that the appellant failed to show the inadequacy of a final appeal to sustain a writ of mandamus. Accordingly, the appellant’s petition was denied.


The defendant was not entitled to an instruction on self-defense, and that no harm resulted from the trial court’s exclusion of testimony regarding the defendant’s reputation for honesty.
Jordan v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
June 05, 2018
06-17-00161-CR
Bailey C. Moseley
Published
The defendant appealed the judgment of the trial court which convicted him of discharging a firearm in a manner that constituted deadly conduct and sentenced him to four years’ imprisonment. On appeal, the defendant argued that the trial court erred in denying his request to instruct the jury that it was required to acquit him if it had reasonable doubt as to whether the State disproved his justification of self-defense and denying his request to include an instruction that his belief that deadly force was immediately necessary was presumed reasonable if he knew or had reason to believe that the victim or others were committing or attempting to commit murder or serious bodily injury. The defendant contended that the trial court erred in excluding multiple assailant language in the jury charge and including a duty to retreat in its instructions on self-defense. The appellate court disagreed with the defendant and concluded that the defendant was not entitled to an instruction on self-defense, and that no harm resulted from the trial court’s exclusion of testimony regarding the defendant’s reputation for honesty. Accordingly, the judgment of the trial court was affirmed.


Since the property owners did not appeal the loss of the property’s grandfather status to the Zoning Appeals Board, they failed to exhaust their administrative remedies, and the trial court did not have subject-matter jurisdiction over their takings claims.
Murphy v. Galveston
Constitution, Gov't/Administrative, Procedure, Real Property, Zoning
Texas 14th Court of Appeals
June 05, 2018
14-17-00063-CV
Marc W. Brown
Published
The property owners appealed the judgment of the trial court which granted the City’s plea to the jurisdiction on the basis that the trial court lacked subject-matter jurisdiction since the property owners failed to exhaust their administrative remedies. On appeal, the property owners argued that they raised a fact issue to defeat the City’s entitlement to dismissal of the inverse-condemnation suit brought. Specifically, the property owners contended that the trial court erred in granting the City’s plea to the jurisdiction based on exhaustion because they raised a fact issue that the doctrines of equitable estoppel and business compulsion applied to their claims. The appellate court disagreed with the property owners and found that the City presented evidence that the property owners could have filed an administrative appeal to the Zoning Board of Appeals (the Board) pursuant to the zoning standards and chapter 211 within a reasonable time after the City informed them that the property was in violation of section 29-111(a)(4) and had lost its non-conforming status. The appellate court concluded that since the property owners did not appeal the loss of the property’s grandfather status to the Board, they failed to exhaust their administrative remedies, and the trial court did not have subject-matter jurisdiction over their takings claims. Accordingly, the judgment of the trial court was affirmed.


The defendant did not conclusively establish that the defendant’s liability for the alter ego’s obligations under section 21.223(b), and any ruling finding the supplier liable for the alter ego’s obligation was premature.
U.S. Kingking, LLC v. Precision Energy Serv., Inc.
Appellate: Civil, Business, Contracts, Corporations, Procedure, Real Property, Torts
Texas 1st Court of Appeals
June 05, 2018
01-17-00215-CV
Evelyn V. Keyes
Published
The suppliers appealed the judgment of the trial court which granted summary judgment in favor of the defendant, ruling that a breach of contract had occurred by the alter ego of the suppliers, and that they were jointly and severally liable to the defendant in an action arising out of a dispute between a well operator and suppliers of goods and services. On appeal, the suppliers argued that the trial court erred in rendering summary judgment because the defendant did not conclusively establish that the company was the suppliers’ alter ego, and the trial court properly dismissed the defendant’s fraud claims and therefore those claims could not serve as the basis for the judgment. The suppliers maintained that the trial court erred in awarding declaratory relief against the suppliers and it erred in granting foreclosure against the suppliers because they did not own the property subject to the defendant’s mineral lien. The appellate court concluded that the defendant did not conclusively establish that the defendant’s liability for the alter ego’s obligations under section 21.223(b), and any ruling finding the supplier liable for the alter ego’s obligation was premature. Accordingly, the judgment of the trial court was reversed and remanded.


The Parents’ speculative and unsupported argument that Judge might in some future scenario face liability in an action that had not yet occurred failed to allege a disqualifying pecuniary interest
Roach v. Ingram
Education
Texas 14th Court of Appeals
June 05, 2018
14-16-00790-CV
Ken Wise
Published
The instant lawsuit arose out of a challenge to the enforcement of truancy violations in the Fort Bend Independent School District and the implementation of an allegedly unauthorized criminal truancy court in Fort Bend County. The plaintiffs sought declaratory and prospective injunctive relief to stop numerous public officials named as the defendants from continuing to engage in allegedly ultra vires acts in connection with the operation of the county’s truancy program. The appellate court found that the Parents filed post-judgment requests for relief after the judgment was signed. Assuming for purposes of argument that the August 26 notice of appeal initiated a stay, the Parents’ failure to complain about the trial court’s action in rendering a final judgment during the stay waived any error related to the stay. Further, the Parents’ speculative and unsupported argument that Judge might in some future scenario face liability in an action that had not yet occurred failed to allege a disqualifying pecuniary interest. Moreover, that Judge was involved in related litigation with the appellants in the severed case did not require his disqualification. Because the Parents had failed to allege or present any evidence that Judge must be disqualified. Furthermore, the court agreed with the Paulsen v. Yarrell court’s reasoning and similarly held that a Texas Citizens’ Protection Act (TCPA) motion to dismiss was not a “legal action” under section 27.001(6) and, accordingly, the TCPA did not authorize the Parents’ counter-TCPA motion in response to the Judicial Defendants’ TCPA motion to dismiss. Finally, the Parents’ request for declaratory and prospective injunctive relief concerning alleged ultra vires acts and violations of due process were moot and the trial court did not err by granting the the Fort Bend Independent School District (FBISD) defendants’ and the Fort Bend County defendants’ pleas to the jurisdiction and the remaining assignments was overruled. Accordingly, the trial court's judgment was affirmed.


A church suing an engineering firm over leaks and mold failed to establish it was entitled to the thirty-day statutory extension to file certificates of merit; accordingly, the trial court erred by not dismissing the complaint.
Barron, Stark & Swift Consulting Eng'rs v. First Baptist Church
Contracts, Courts, Procedure, Torts
Texas 9th Court of Appeals
May 17, 2018
09-17-00470-CV
Charles A. Kreger
Published
The appellee church contracted with appellant engineering firm to oversee a multimillion dollar construction and renovation project. Subsequently, the church allegedly had problems with water intrusion and leaks in various rooms throughout the church campus. The leaks were never repaired to the satisfaction of the church, and the church ultimately had problems with mold, it said. It asserted claims against the firm for breach of contract, violations of the DTPA, breach of express warranties, breach of implied warranties, negligence, and fraud. With its original petition, it did not provide the certificates of merit required by section 150.002 of the Texas Civil Practice and Remedies Code. The trial court denied the firm’s motion to dismiss the complaint of the appellee pursuant to Civil Practice and Remedies Code section 150.002. The appellate court found that the appellants were entitled to dismissal of the appellee’s complaint, but it was within the trial court’s discretion as to whether the dismissal would be with or without prejudice. The appellate court reasoned that the church failed to establish it was entitled to the thirty-day statutory extension to file certificates of merit because it did not allege in its first-filed petition alleging claims against Appellants that filing suit within ten days of the statute of limitations expiring prevented it from obtaining certificates of merit. Therefore, the trial court abused its discretion in denying the appellants’ motion to dismiss. Accordingly, the court reversed the trial court’s order denying the appellants’ motion to dismiss pursuant to section 150.002 and remanded to the trial court.


A bridal store’s health care liability claim arising from an incident in which a store visitor contracted ebola failed because the store neglected to timely serve an expert report on appellant Texas Health Resources.
Texas Health Res. v. Coming Attractions Bridal and Formal, Inc.
Gov't/Administrative, Procedure, Torts
Texas 5th Court of Appeals
May 16, 2018
05-17-00773-CV
Stoddart
Published
The appellee company, a bridal store closed down after someone visiting its store contracted ebola and the store had to close because of the stigma arising from the incident. It sued appellant Texas Health Resources for negligence. It alleged that during the summer of 2014, the Centers, the Association, and the Department warned the appellant, the owner and operator of the Hospital, there was an imminent threat of a domestic outbreak of the Ebola virus and the Hospital needed to implement measures to care for infected patients to prevent the disease from spreading. The Hospital negligently failed to heed the warnings and did not provide its nurses with the necessary training, instruction, and protective equipment to prevent the spread of the disease. The trial court denied appellant’s motion to dismiss based on chapter 74 of the civil practice and remedies code. The appellate court held that based on the statutory definition of health care liability claim and the Texas Supreme Court’s application of chapter 74, including the Ross factors, the appellee asserted an action against a health care provider for a claimed departure from accepted standards of safety which proximately resulted in injury to a claimant. Thus, the appellee was required to timely serve an expert report on the appellant and it failed to do so. Accordingly, the court vacated the trial court’s order, dismissed the appellee’s claims with prejudice, and remanded the case to the trial court.



The ethics commission was not entitled to attorney’s fees based on appellant’s filing of a Texas Citizens Participation Act (TCPA) motion to dismiss because there was insufficient evidence that the motion was frivolous or solely intended to delay the proceedings.
Sullivan v. Texas Ethics Comm'n
Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
May 17, 2018
03-17-00392-CV
David Puryear
Published
The appellee state ethics commission received two sworn complaints filed by Texas legislators alleging the appellant’s failure to register as a lobbyist in 2010 and 2011. The appellant appealed to the trial court a final order of the appellee determining that he failed to register as a lobbyist and assessing a civil penalty against him. Pursuant to the appellant's own motion, the trial court realigned the parties, naming the appellee as plaintiff and the appellant as defendant, due to the appellee carrying the burden of proof in the “trial de novo” of the appellee order. The appellee amended its pleadings accordingly, and the appellant responded by filing a Texas Citizens Participation Act (TCPA) motion to dismiss the appellee's amended pleading, which the trial court denied. The appellate court found that because application of the TCPA could not be harmonized with the more specific statutory procedures for judicial review of the appellee orders, the court held that the TCPA did not apply and affirmed the trial court’s denial of the appellant's TCPA motion. The court reversed, however, the trial court’s award of attorney’s fees and costs to the appellee because the record did not support the trial court’s findings that the appellant's motion was frivolous or solely intended to delay the proceedings. Accordingly, the court affirmed the trial court’s order denying the appellant's TCPA Tex. Civ. Prac. & Rem. Code Section 27.003 motion to dismiss and reversed the trial court’s award to the appellee of its attorney’s fees and costs and rendered judgment denying the appellee's request for attorney’s fees and costs.


Because the TCPA's dismissal mechanisms operate against "legal actions" at the trial-court level and not against appeals, the court denied the appellees’ TCPA motion to dismiss the appellant’s appeal.
Amini v. Spicewood Springs Animal Hosp., LLC
Procedure
Texas 3rd Court of Appeals
May 16, 2018
03-18-00272-CV
Bob Pemberton
Published
The appellant appealed the denial of his Texas Citizens Participation Act (TCPA) motion to dismiss claims asserted against him by an animal hospital and veterinarian. Appellees filed an appellate-level motion to dismiss appellant’s appeal. The appellate court concluded that the Legislature intended the TCPA's dismissal mechanisms to operate against "legal actions" at the trial-court level and not against appeals. Concluding that the TCPA does not authorize that motion or relief, the court denied appellees’ motion to dismiss.


Because the auto repair shop, the individual, or an unknown party could have been responsible for the wheel detachment, res ipsa loquitur did not apply to provide evidence that the shop breached its duty of care.
Discount Tire Co. of Texas, Inc. v. Cabanas
Damages, Litigation: Personal Injury, Torts
Texas 4th Court of Appeals
May 16, 2018
04-17-00276-CV
Patricia O. Alvarez
Published
After the appellant corporation rotated the tires on a pickup truck, a tire detached and struck the individual appellee's vehicle. The appellee sued the corporation for his injuries. The jury found the appellant negligent, and it awarded damages to the appellee. The appellate court found insufficient evidence to support a finding that the appellant breached its duty of care. Further, there was conclusive evidence that the appellant had exclusive control over the wheel when it rotated the individual's pickup truck’s tires, but that control reverted to the individual when he took back his truck. During the fifty-five hours after the appellant rotated the tires and before the accident, the individual had control over his truck, drove it, and parked it in places accessible to the public. Because the appellant, the individual, or an unknown party could be responsible for the wheel detachment, res ipsa loquitur did not apply. Because res ipsa did not apply, the doctrine did not supply some evidence of breach, and the jury’s negligence finding was susceptible to the appellant’s no-evidence challenge. Thus, the evidence was not legally sufficient to support the jury’s negligence finding, and the trial court erred by awarding damages. The court reversed the portion of the trial court’s judgment awarding the appellee damages and rendered judgment that the appellee take nothing on his claims against the appellant.


No party may be compelled to arbitrate unless they have agreed to arbitrate or were bound by principles of agency or contract law to do so, and the petitioner and the respondents did not agree to arbitrate any matter.
Farms v. The Altman Grp., Inc.
ADR, Contracts, Insurance, Procedure, Torts
The Supreme Court of Texas
May 11, 2018
17-0062
Eva M. Guzman
Published
The petitioner purchased an insurance policy from an insurance company through the respondent company, an independent insurance agency. The insurance company denied the petitioner’s claim, and the parties arbitrated the dispute as required by the insurance policy. The arbitrator agreed with the company that the petitioner did not timely present notice of its claim in accordance with the provisions of the insurance policy. The petitioner then sued the respondent for breach of fiduciary duty and deceptive-trade practices in which it alleged that the respondent failed to timely submit its loss claim which resulted in denial of coverage.  The respondent moved to compel arbitration under the insurance policy, which the petitioner opposed and the trial court granted. The case proceeded to arbitration, and the arbitrator resolved that issue and the merits of the dispute in the respondent’s favor. The trial court confirmed the award. The appellate court affirmed. The Supreme Court held that the contract between the petitioner and the company did not express an intent to make the insurance agency a direct beneficiary. No party may be compelled to arbitrate unless they have agreed to arbitrate or were bound by principles of agency or contract law to do so. The petitioner and the respondents did not agree to arbitrate any. Accordingly, the court reversed the appellate court’s judgment, vacated the arbitration award, and remanded.


County had governmental immunity with respect to a deputy constable shooting of the respondent in a fit of road rage when he was off duty, from his personal vehicle, striking and injuring the respondent.
Harris Co. v. Annab
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Torts
The Supreme Court of Texas
May 11, 2018
17-0329
Per Curiam
Published
The deputy constable shot the respondent in a fit of road rage when he was off duty, from his personal vehicle, striking and injuring the respondent. Although the deputy constable was off duty and used his personal firearm in the assault, the respondent sued the petitioner county, the deputy constable’s employer. Invoking the Texas Tort Claims Act, the respondent attempted to overcome the petitioner’s governmental immunity by claiming that the petitioner used tangible personal property when the deputy constable shot the respondent. The trial court granted the petitioner’s plea to the jurisdiction and dismissed the case. The appellate court concluded that the respondent had not established a waiver of governmental immunity, but remanded the case to allow the respondent to replead and conduct more discovery. The Supreme Court agreed with the appellate court that the respondent had not established a waiver of governmental immunity because her allegations, taken as true, did not demonstrate that the petitioner’s use of tangible personal property caused her injuries. However, the court disagreed with the appellate court’s decision to remand the case. Despite multiple opportunities to do so, the respondent had identified no viable factual or legal theory under which she could overcome the petitioner’s immunity on remand, and the court could conceive of none. Remand was therefore improper. Accordingly, the court affirmed the judgment of the appellate court in part, reversed in part, and rendered judgment for the petitioner.  


Although a newspaper’s column accused the respondents of deception which was reasonably capable of injuring the respondents standing in the community, an action in libel was not actionable because the statements in the column were true.
The Dallas Morning News, Inc. v. Tatum
Appellate: Civil, Constitution, Evidence, Torts
The Supreme Court of Texas
May 11, 2018
16-0098
Jeffery Brown
Published
The respondents (individuals) filed suit against the petitioners (newspaper and reporter) for libel and libel per se.  The respondents alleged that the petitioners defamed them by suggesting that the respondents had been deceptive when they wrote their son’s obituary in the petitioner’s newspaper.  The petitioners filed a motion for traditional and no evidence summary judgment. Without specifying why, the trial court granted the petitioners motion. The appellate court reversed and remanded the respondents claimed libel and libel per se claim. It held that a reasonable reader could conclude that the respondents, as authors of their son’s obituary, wrote a deceptive obituary to keep their son's suicide a secret. It further held that the column was not an opinion because the column's gist that the respondents were deceptive when they wrote their son's obituary was sufficiently verifiable to be actionable in defamation.  The Supreme Court held that implicit defamatory meanings-like explicit defamatory statements-are not actionable if they are either true or substantially true.  Therefore, although the column’s accusation of deception was “reasonably capable” of injuring the respondents standing in the community, the statements in the column were true.  Accordingly, the court reversed the judgment of the appellate court and reinstated the trial court’s summary judgment in favor of the petitioners.


TEX. CODE CRIM. PROC. Article 55.01(a)(1)(A) entitled the respondent to expungement of all records and files relating to her arrest for the assault charge for which she was tried and acquitted even though she was found guilty of a different charge from her arrest.
State v. T.S.N.
Criminal, Evidence, Procedure
The Supreme Court of Texas
May 11, 2018
17-0323
Phil Johnson
Published
The respondent was charged by information for the misdemeanor offense of theft by check, and a warrant for her arrest issued. She was not arrested.  Three years later she was arrested for the felony offense of aggravated assault with a deadly weapon. During the arrest process, the officer also executed the warrant and arrested the respondent on the theft by check charge. The theft and assault charges were filed in different courts with different cause numbers. The respondent pleaded guilty to the theft charge but not guilty to the assault charge. The respondent was acquitted of the assault charge, and t filed a petition pursuant to article 55.01 of the Texas Code of Criminal Procedure, seeking expungement of the records and files relating to the assault charge. The State argued that the overriding structure of article 55.01 uses "arrest" as the unit of measurement, and that unit of measurement is that acquittal of all of those offenses charged from each arrest is required for expungement.  The trial court disagreed with the State and granted the respondent’s petition.  The Supreme Court held that Article 55.01 was neither entirely arrest-based nor offense-based.  The legislature demonstrated acceptance of selective redaction and expunction of records as valid remedial actions. Accordingly, the judgment was affirmed.


The trial court did not err in granting summary judgment in the appellee’s favor on the issue of liability where the appellant did not challenge the argument advanced by the appellee, and there was consideration for an amendment/supplemental agreement between the parties.
1320/1390 Don Haskins, Ltd. v. Xerox Commercial Solutions, LLC
Business, Contracts, Courts, Damages, Landlord and Tenant
Texas 8th Court of Appeals
May 09, 2018
08-16-00027-CV
Gina M. Palafox
Published
The appellant leased space to the appellee corporation which obligated the appellant to create a common area to include a minimum of 350 parking spaces for the general use in common of tenants. The appellant could modify or make changes deemed reasonably necessary provided such modifications did not unreasonably interfere with tenant's use of, access to, or parking for the premises. The parties entered into amendment agreements, including  a "Temporary Parking Agreement (TPA), in which the appellant agreed to provide no less than 358 parking spaces to the appellee, and then terminated the TPA.  The appellant filed suit seeking a declaration that it had not breached the lease or TPA because it retained the exclusive right to allocate parking spaces in its reasonable discretion, and that the TPA was unenforceable due to its lack of mutuality of obligation and consideration.  The trial court granted the appellee’s motion on the issue of liability, and the jury awarded damages.  The appellate court held that the appellee sought, and the trial court granted, partial judgment on the narrow basis of the TPA as a separate contract.  The appellant did not challenge that ruling, but asserted that the appellee did not prove that the TPA amended the Lease as a matter of law. The trial court therefore did not commit error.  Also, there was consideration for the TPA because the appellee gave up its rights under the lease constituted as a bargained-for exchange, to support the TPA.  Accordingly, the judgment was affirmed.


A defendant’s claim that he is entitled to relief because his attorney gave him affirmative misadvice regarding his possible deportation is cognizable and not barred as a non-retroactive Padilla claim.
Ex parte Garcia
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 09, 2018
PD-0804-17
Barbara Parker Hervey
Published
The applicant was charged with possession of cocaine of at least four grams but less than 200 grams of cocaine with intent to deliver, a first-degree felony. The State offered the applicant a plea bargain of 10 years’ confinement probated for 10 years and a $500 fine. The applicant asked his attorney whether there would be adverse immigration consequences if he took the plea offer because he was a lawful permanent resident, and counsel responded that he “would probably be okay” and that “the charge would probably not result in deportation.” He was eventually deported before returning to the United States and filed an application for a writ of habeas corpus. The habeas court granted relief, and the State appealed. The appellate court affirmed the judgment of the habeas court. The issue in the instant case was whether the applicant's claim that he was entitled to relief because his attorney gave him affirmative misadvice regarding his possible deportation was cognizable or whether it was barred as a non-retroactive Padilla claim. The Texas Court of Criminal Appeals saw no reason for the instant court to treat the applicant's claim regarding deportation consequences different than other similarly situated ineffective-assistance-of counsel claims. Thus, the court affirmed the judgment of the appellate court. 


Any legitimate state basis will suffice to uphold the constitutionality of the challenged application-even if the State's proffered basis is not specifically mentioned within the relevant legislative history-so long as the challenged application is rationally related to that basis.
Estes v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 09, 2018
PD-0429-16
Michael E. Keasler
Published
The appellant was found guilty of all five counts of sexual assault of a child. Within the first-degree-felony punishment range, the appellant was sentenced to 12 years’ confinement on each count of sexual assault of a child. The appellate court affirmed various other aspects of his convictions for sexual assault of a child as second-degree felonies and remanded those charges to the trial court for a new trial on punishment. The appellate court faulted the State for advocating a reading of the statute that, in the appellate court’s judgment, would result in an extraordinarily broad number of potential applications. The Texas Court of Criminal Appeals held that it's job was simply to determine whether, assuming the legislature intended to pass precisely the law before it, the State’s use of that law in the appellant’s case was rationally related to the compelling interest the State had in protecting children from sexual abuse. The legislature could rationally conclude that those who were inclined to make sexual advances upon children, and whose marital status would make the commission of a crime in satisfaction of those urges incrementally easier to consummate, may need an additional deterrent to further dissuade them from committing such a crime. In the absence of evidence to the contrary, it could reasonably conclude that increasing the range of punishment in those circumstances was appropriately suited to that task. Accordingly, the judgment was reversed and remanded.


The contingency fee agreement in the probate case was neither procedural nor and substantively unconscionable, and the discovery sanction was sufficiently tied to the offensive conduct and was no more severe than necessary to satisfy its legitimate purposes.
Hogg v. Lynch, Chappell & Alsup, P.C.
Contracts, Ethics, Procedure, Professional Responsibility, Wills/Trusts/Probate
Texas 8th Court of Appeals
May 04, 2018
08-16-00305-CV
Yvonne T. Rodriguez
Published
The appellant (client) retained the appellee (attorney) to represent her in a probate matter.  The fee agreement set fees on an hourly basis.  The appellee had limited access to funds and anticipated a  lengthy legal fight with her brother-in-law.  The appellant asked for a contingency fee arrangement .  The appellee recommended that the appellant consult with independent counsel.  The appellant did not consult independent counsel, and entered into a contingency fee agreement to pay the appellee 25% of any recovery.  The appellant settled the case in mediation for more than the amount offered when she  retained the appellee.  The appellant argued that the contingency fee arrangement was unconscionable.  The appellant filed suit for breach of contract.  During the case, the trial court ordered that the appellant was prohibited offering evidence regarding her conversations with the appellee for her failure to comply with an order directing her to provide the appellee with audio recordings between the parties.  The trial court granted the appellant’s motion for summary judgment.  The appellate court held that the discovery sanction was sufficiently tied to the offensive conduct and was no more severe than necessary to satisfy its legitimate purposes.  A contingency fee agreement in a probate case such as this one is not presumptively substantively unconscionable.  Under the facts in the case, the contingency fee agreement was neither procedural nor and substantively unconscionable, and the appellant did not presented a fact issue on unconscionability sufficient to defeat summary judgment.  Accordingly, the judgment was affirmed.


The jury does not have to unanimously agree on the specific predicate crime committed by the defendant for the crime of engaging in organized criminal activity; the legislature intended the underlying predicate offenses be treated as alternative manner and means of committing a single offense.
O'Brien v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 02, 2018
PD-0061-16
David C. Newell
Published
The appellant was tried on one count of engaging in organized criminal activity. That count alleged that appellant, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, committed second degree theft or second degree money laundering.  At trial, the application portion of the jury charge, to which appellant did not object, presented the two predicate offenses-theft and money laundering-in the disjunctive.  Without objection, the prosecution explained at closing, that the jury did not have to agree on whether Appellant committed the predicate offense of theft, or that of money laundering.  The appellant argued on appeal that the jury instructions permitted a non-unanimous verdict. He argued the instruction did not require the jury to be unanimous regarding which predicate offense had been committed by the appellant and his criminal combination. The appellate affirmed the conviction. The Court of Criminal Appeals held that the gravamen of the offense of engaging in organized criminal activity is a circumstance surrounding the conduct, namely the existence or creation of a combination that collaborates in carrying on criminal activities. The legislature intended that the underlying predicate offenses be treated as alternative manner and means of committing a single offense and the trial court properly instructed the jury in the disjunctive, and the jury was not required to agree on which predicate offense was committed as a matter of due process. Accordingly, the court affirmed the appellate court decision.


The appellee City lacked authority to enforce its building codes and related building inspection requirements within its extraterritorial jurisdiction because there was no legislative authorization for same, but it had authority to require a landowner to plat its property.
Collin Co, Tx v. The City of McKinney, Tx
Evidence, Gov't/Administrative, Procedure
Texas 5th Court of Appeals
May 10, 2018
05-17-00546-CV
Stoddart
Published
The appellee (city) entered into an agreement with the appellant (county), which stated that H.B. 1445 required them to identify which governmental entity was authorized to regulate subdivision plats and approve related permits in the appellee's extraterritorial jurisdiction ("ETJ"). The appellee was given exclusive jurisdiction to regulate subdivision plats and approve related permits for property in the ETJ, to accept plat applications, collect plat application fees, and respond to applicants with the approval or denial of the plat application for tracts of land in the ETJ.  A company developed property, that was not subdivided or platted, and acquired building permits from the appellant. The appellee filed suit seeking a declaration that the company was required to obtain plat approval and building permits from it.  The trial court held that in the 1445 Agreement, the appellant ceded all platting, inspection, and building code authority in the ETJ to the appellee as to properties that are subdivided, but did not do so as to properties that are not subdivided; and that the company was not required to obtain plat approval or building permits from the appellee.  The appellate court held that the appellee city lacked authority to require a landowner developing property in its ETJ to obtain appellee building permits, inspections and approvals because there was no legislative authorization for same. The trial court erred by declaring that the company was not required to obtain plat approval from the appellee.  Accordingly, the judgment was affirmed in part; and reversed in part.


The picking-off exception (when the defendant satisfies the named plaintiff's individual claim as a part of its litigation strategy) to the mootness doctrine applied and therefore the trial court erred in dismissing the appellant's class-action claims.
Growden v. Good Shepherd Health Sys.
Appellate: Civil, Contracts, Courts, Creditor/Debtor, Evidence, Health Care, Procedure
Texas 6th Court of Appeals
May 09, 2018
06-17-00093-CV
Josh R. Morriss III
Published
The appellant took her minor daughter to the emergency room of the appellees, and signed a form contract that included a clause in which she acknowledged that she was responsible for the total charges for services rendered. The appellant received a statement from the appellees charging her for  the emergency room visit.  The appellant filed suit on behalf of herself, and others similarly situated, seeking a declaratory judgment that the appellee's contract permits it to bill for, and to collect, only the reasonable value of the treatment it provided, and that she and others similarly situated are liable for only the reasonable value of the services provided by the appellees. After the appellees unconditionally waived and wrote off all of the appellant's bill, and before a class was certified, the trial court dismissed the suit for lack of subject-matter jurisdiction.  The appellate court held that the picking-off exception (when the defendant satisfies the named plaintiff's individual claim as a part of its litigation strategy) to the mootness doctrine applied and that the trial court erred in dismissing the appellant's class-action claims. Since the appellant could still be awarded attorney fees if the trial court found it would be equitable and just, her claim for attorney fees could not be dismissed. Therefore, the court found that the appellant's individual claim for attorney fees under the DJA should not have been dismissed. Accordingly, the judgment reversed and remanded for further proceedings.  


A writ of mandamus was issued because the relators did not have an adequate remedy by appeal if the mandamus was not issued and the relators stood to lose substantial rights by being required to prepare for claims that may be rendered moot and may have not even yet accrued.
In re State Farm Mut. Auto. Ins. Co.
Contracts, Courts, Insurance, Procedure
Texas 4th Court of Appeals
May 09, 2018
04-18-00018-CV
Sandee Bryan Marion
Published
In the underlying under-insured motorist lawsuit, the real parties in interest sued the relators on contractual and extra-contractual causes of action. The trial court severed the plaintiffs’ contractual claim from their extra-contractual claims, but did not abate the extra-contractual claims pending resolution of the contract claim. In that mandamus proceeding, the relators asserted that the trial court erred when it refused to abate the extra-contractual claims. The appellate court held that the trial court erred by not granting the abatement. The relators did not have an adequate remedy by appeal because if mandamus was not granted, the relators stand to lose substantial rights by being required to prepare for claims that may be rendered moot and may have not even yet accrued. Accordingly, the court conditionally granted the petition for writ of mandamus and directed the trial court to vacate that portion of its order on the defendant’s Motion to Sever and Abate denying State Farm’s motion to abate and issue an order granting the motion, and abating the severed cause.  


The trial court did not err in submitting a combined multiple affirmative defenses in a broad-form question because the broad-form question did not commingle valid and invalid affirmative defenses.
Med. Imaging Sol. Group, Inc. of Tx. v. Westlake Surgical, LP
Business, Contracts, Evidence, Procedure
Texas 4th Court of Appeals
May 09, 2018
04-17-00285-CV
Karen Angelini
Published
The appellant corporation sued the appellee company for breach of contract. A jury answered Question 3 of the jury charge affirmatively, finding that the appellee was excused from performance under the contract. The trial court then rendered a take-nothing judgment on the appellant’s claims. On appeal, the appellant argued that the trial court erred in submitting Question 3, which combined multiple defective instructions on the affirmative defenses of repudiation, modification, and waiver, in a broad-form. The appellate court held that the defenses in the single broad-form question were supported by evidence presented at trial.  Therefore, the broad-form question in this case did not commingle valid and invalid affirmative defenses.  Accordingly, the judgment was affirmed.


The trial court did not err in failing to inform the jury that it had to unanimously agree upon the two instances that constitute an offense under § 25.072(b) of the Penal Code.
Diaz v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
May 04, 2018
07-17-00376-CR
Brian Quinn
Published
The appellant was convicted of violating Section 25.072(a) of the Penal Code.  It provides that a person commits an offense if "during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 25.07." The ensuing subparagraph of the statute provides that "[i]f the jury is the trier of fact, members of the jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 25.07." The appellant argued on appeal that the trial court err in failing to inform the jury that it had to unanimously agree upon the two instances that constitute an offense under § 25.072(b) of the Penal Code.  The appellate court held that while unanimity is required as to the finding that the accused committed two or more acts which violated a protective order, it is not with regard to the specific acts he committed. Accordingly, the judgment was affirmed.


Although entitled, the defendant was not egregiously harmed by the failure to include an accomplice-witness instruction, and the trial court did not abuse its discretion in allowing evidence of an extraneous offense because the evidence fell within the zone of reasonable disagreement.
Reed v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
May 02, 2018
06-17-00163-CR
Bailey C. Moseley
Published
The appellant and the codefendant were both implicated in the murder of the victim. A County jury convicted the appellant of one count of murder and one count of aggravated robbery. The appellant argued on appeal that the trial court erred in failing to include an accomplice-witness instruction in the jury charge and did in failing to not suppress extraneous-offense evidence of another shooting allegedly caused by him.  The appellate court held that that although entitled to an accomplice-witness instruction, the appellant was not egregiously harmed by the failure to include an accomplice-witness instruction, and that the trial court did not abuse its discretion in allowing evidence of an extraneous offense because the evidence fell within the zone of reasonable disagreement  Accordingly, the court affirmed the trial court’s judgment.


Two suits involving overlapping parties did not arise out of the same transaction or occurrence as they relied on distinct factual allegations, there was no dispute common to both suits, and a judgment in one suit would not foreclose the issues in the other.
In Re William
Appellate: Civil, Business, Contracts, Courts, Employment, Procedure, Torts
Texas 4th Court of Appeals
May 02, 2018
04-18-00075-CV
Irene Rios
Published
The relators (individuals)  sued a corporation in a Harris County district court. The corporation sued the realtors and three business entities, in a Bexar County district court. The relators filed motions to transfer venue of the Bexar County case to Harris County. Alternatively, relators also filed pleas in abatement asking the Bexar County court to abate that suit in favor of the Harris County court's dominant jurisdiction. The Bexar County court denied the motions to transfer venue and pleas in abatement.  The Relators argued that the trial court abused its discretion by denying their pleas in abatement as both suits are inherently interrelated because they arise out of the long-term employment relationship of the parties.  The appellate court held that the Harris County suit involved a dispute regarding the Relators’ right to compensation under agreements between the parties, whereas the Bexar County suit involved a dispute regarding the relators’ creation of a competing business and usurpation of a business opportunity. Although both suits involved overlapping parties and arise out of the prior employment relationship between relators and the corporation, the subject matter of the two suits was not inherently interrelated. The allegations in the two lawsuits rely on distinct factual allegations, there is no dispute common to both suits, and a judgment in one suit would not foreclose the issues in the other.  Therefore, the two suits do not arise out of the same transaction or occurrence.  Accordingly, the court denied the petition for writ of mandamus.


The request for a writ of mandamus seeking an order requiring the trial court to hold an initial hearing was moot because by the time the realtor sought mandamus relief, the adversary hearing had already occurred and the purposes of the initial hearing were satisfied by the adversary hearing
In re Justin M.
Courts, Evidence, Family, Gov't/Administrative
Texas 6th Court of Appeals
May 01, 2018
06-18-00014-CV
Bailey C. Moseley
Published
The Department of Family and Protective Services (the Department) removed four children from the home of the relator (father). The County Court at Law of Lamar County appointed the Department as the temporary managing conservator of the four children. The relator has petitioned the court for a writ of mandamus in which he alleged that the trial court abused its discretion by failing to hold an initial hearing, and by failing to hold a timely adversary hearing.  The appellate court held that despite having had weeks of notice regarding the possible issues rising at the initial hearing and the date set for the adversary hearing, the realtor failed to seek mandamus relief until three weeks after he lost at the adversary hearing and six weeks after the children's removal. The sole mandamus relief that could be granted under the circumstances was to order the trial court to promptly hold the required hearing. However, by the time the realtor sought mandamus relief, the adversary hearing had already occurred. Because the purposes of the initial hearing were satisfied by the full adversary hearing and the realtor failed to seek relief in the interim, the realtor's petition denied because it was moot.


An individual on unpaid medical leave, even if protected under the FMLA, satisfied the Act’s definition of unemployed and could qualify for unemployment benefits if she mets the Act’s eligibility requirements
Texas Workforce Comm’n v. Wichita Cnty.
Appellate: Civil, Employment, Gov't/Administrative, Insurance
The Supreme Court of Texas
May 25, 2018
17-0130
Debra Ann H. Lehrman
Published
The individual worked for the respondent county as an assistant emergency management coordinator. She went on Family Medical Leave Act (FMLA) leave for severe anxiety and depression. Her accrued paid leave ran out, after which she switched to unpaid leave. The respondent continued paying her health insurance premiums in accordance with the FMLA. The individual filed an initial claim for unemployment benefits with the petitioner commission. The petitioner issued a decision in which it determined that the individual was unemployed while on an unpaid leave of absence for a medically verifiable illness and that it could pay the individual benefits if she met all other requirements. The respondent challenged and the Commission Appeal Tribunal affirmed the decision. The tribunal held that the respondent was required to reimburse the petitioner for any benefits paid to the individual. The respondent challenged that decision, and the petitioner affirmed. The respondent filed a petition for judicial review in the trial court, alleging that the evidence presented clearly indicated that the individual did not separate from her employment with the respondent and was therefore disqualified from benefits. The parties filed cross-motions for summary judgment. The trial court granted the respondent’s motion, denied the petitioner’s. The appellate court affirmed. The Texas Supreme Court held that the Unemployment Act expressly and unambiguously defined unemployed in a manner that did not require severance of the employer–employee relationship. Further, an individual on unpaid medical leave, even if protected under the FMLA, satisfied the Act’s definition of unemployed and may qualify for unemployment benefits if she met the Act’s eligibility requirements. Thus, the substantial evidence supported the petitioner’s decision. Accordingly, the Court reversed the appellate court’s judgment and rendered judgment for the petitioner.


In considering only the subject leases themselves, the Court determined that the four Leases were not top leases subject to the petitioner’s back-in interest
Tro-X, L.P. v. Anadarko Petroleum Corp.
Contracts, Real Property
The Supreme Court of Texas
May 25, 2018
16-0412
Phil Johnson
Published
The instant case involved a claim by the petitioner company that it was entitled to a back-in percentage of the working interest in five mineral leases under which the respondent company was lessee. The trial court agreed with the petitioner, but the appellate court did not, and reversed. The Texas Supreme Court found that because the Leases were not ambiguous, when interpreting them the Court did not go outside their four corners and consider evidence like the Release the respondent later executed or the correspondence the respondent referenced. In considering only the leases themselves, the Court then determined that the four Leases were not top leases subject to the petitioner’s back-in interest. Accordingly, the Court affirmed the appellate court’s judgment.


No construction, no matter how liberal, could construe a property restriction into existence when the covenant was silent as to that limitation
Tarr v. Timberwood Park Owners Assoc., Inc.
Appellate: Civil, Business, Contracts, Procedure, Real Property
The Supreme Court of Texas
May 25, 2018
16-1005
Jeffery Brown
Published
The instant case required the court to decide whether short-term vacation rentals violated certain restrictive covenants that limited tracts to residential purposes and single-family residences. The trial court concluded that a homeowner violated the restrictions by operating a business on a residential tract and engaging in multi-family, short-term rentals. The appellate court affirmed, agreeing with the trial court that the rental agreements contradicted the residential-purpose limitation because the renters’ stays were merely temporary. The Texas Supreme Court observed that the petitioner and the association filed cross-motions for summary judgment. When competing summary-judgment motions were filed, each party bore the burden of establishing that it was entitled to judgment as a matter of law. Further, the covenants at issue unambiguously failed to address the property use complained of in that case. The Court then ruled that no construction, no matter how liberal, could construe a property restriction into existence when the covenant was silent as to that limitation. Furthermore, the parties did not dispute that the petitioner’s tract contained a single-family residence, so petitioner did not violate the single-family-residence restriction. The petitioner’s use did not qualify as a commercial use. Thus, as the association failed to adduce any evidence that the petitioner’s tenants used the property in any manner inconsistent with a residential purpose, summary judgment for the association was improper. Accordingly, the Court reversed the appellate court's judgment and remanded to the trial court for further proceedings.


The appellee’s breach of contract claim for engaging in certain communications with the appellee’s customer was dismissed under the Texas Citizens Participation Act because the communications with at issue were in connection with flooring products or services in the marketplace.
Toth v. Sears Home Improvement Products, Inc.
Business, Contracts, Evidence, Litigation: Commercial
Texas 14th Court of Appeals
May 10, 2018
14-17-00615-CV
Kevin Jewell
Published
The appellant brought the an interlocutory appeal of the trial court’s order denying his motion to dismiss under the Texas Citizens Participation Act (“TCPA”). The appellant was a former independent contractor for the appellee. The appellee sued the appellant for breached of contract  for engaging in certain communications with the appellee’s customer. The appellant argued that the appellee’s claims are based on or relate to the appellant’s free speech rights, and filed a motion to dismiss under the TCPA. The appellee opposed the motion. The appellate court held that the TCPA required the appellant to establish that the appellee’s legal action is based on, relates to, or is in response to" the appellant's exercise of the right of free speech. Under the TCPA, a communication made in connection with a matter of public concern constitutes an exercise of the right of free speech. The act defines a matter of public concern includes an issue related to, inter alia, a good, product, or service in the marketplace.  The appellant’s communications with the appellee’s customer were in connection with flooring products or services in the marketplace, and the TCPA’s commercial speech exemption did not apply to the appellant’s statements.  Accordingly, the trial court’s order denying the appellant’s motion to dismiss under the TCPA was reversed.


The granting of the State's motion for new trial, to comply with the federal habeas court's order granting the Sixth Amendment Faretta self-representation claim, did not bar the retrial of the defendant by double jeopardy because he was returned to the pretrial phase before his first trial.
Ex parte Leachman
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 10, 2018
01-16-00787-CR
Laura Carter Higley
Published
The appellant was charged with aggravated sexual assault of a child. Following a jury trial, in which the trial court had denied the appellant’s motion to represent himself, he was convicted and sentenced to forty years’ confinement. The appellant filed a federal habeas corpus petition based on the denial of his Sixth Amendment right to represent himself.  The federal court granted the petition and ordered the appellant’s release unless the State moved to grant him a new trial within 90 days.  The State moved for a new trial and the motion was granted.  The appellant then filed a pro se pretrial habeas corpus application in the trial court, in which he claimed that double jeopardy bars his retrial.  The trial court denied the motion.  The appellate court held that the double jeopardy prohibition protects against, inter alia, multiple punishments for the same offense.  Once the trial court granted the State's motion for new trial, to comply with the federal habeas court's order granting the Sixth Amendment Faretta self-representation claim, the appellant was returned to the pretrial phase before his first trial, and initial jeopardy continues.  Therefore, Article 11.07 did not apply because there was no longer a final felony conviction once the trial court granted the motion for new trial, which was required under the Supremacy Clause. Thus, the appellant is still under "initial jeopardy" for the first charge, and has not been exposed to double jeopardy.  Accordingly, the judgment was affirmed.


A corporation cannot recover in tort for invasion of privacy, by appropriation of name or likeness, because Texas courts do not recognize a corporation's right to privacy.
Doggett v. The Travis Law Firm, P.C.
Corporations, Damages, Torts
Texas 1st Court of Appeals
May 10, 2018
01-17-00098-CV
Russell Lloyd
Published
The appellee, a corporate law firm, sued the appellant (individual) for invasion of privacy, and by appropriation of name or likeness.  After a trial, the jury found in favor of the appellee and awarded damages to the appellee.  The appellant filed a motion for judgment notwithstanding the verdict upon the ground that Texas law does not recognize a right of privacy for a corporation.  The trial court denied the motion.  The appellate court held that Texas courts have not recognized a corporation's right to privacy, and it declined to recognize it in the present case.  The appellee therefore could not recover for invasion of privacy by appropriation of name or likeness. Accordingly, the court reversed the judgment of the trial court and rendered judgment that the appellee took nothing against the appellant on its invasion of privacy claim.


There was sufficient evidence to support the conviction for failure to stop and render aid and even if the defendant was mistaken in his belief that he had not struck a person, a mistake-of-fact defense instruction was not is required it would negate the culpable mental state required by offense
Curry v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 08, 2018
01-17-00421-CR
Jane Bland
Published
A jury found the appellant guilty of the felony offense of failure to stop and render aid, and it assessed his punishment at six years’ confinement.   At trial, the appellant admitted that he knew that something had collided with his truck and broken his headlight, but did not realize he had struck anyone.  The appellant therefore argued that there was insufficient evidence to support his conviction, and that the trial court erred in refusing to instruct the jury as to his mistake-of-fact defense. The appellate court held that there was sufficient evidence to support the appellant’s conviction because he was aware that a collision of some kind had occurred, and was therefore obliged to stop and determine whether a person was involved.  Also, the current version of the offense does not require proof that the defendant  know that his accident involved a person, and even if the jury had determined that the appellant was simply mistaken in his belief that he had not struck a person, the mistake did not negate his knowledge that he had been in a collision that damaged his truck.  Accordingly, the judgment was affirmed.


The trial court abused its discretion in denying the motion to dismiss a motion to set aside the default judgment because the motion to set aside default judgment was filed after the trial court lost plenary power and the filing of the motion did not confer jurisdiction on the trial court
In re Thompson
Procedure, Real Property, Tax
Texas 1st Court of Appeals
May 08, 2018
01-17-00703-CV
Harvey Brown
Published
Petitioners purchased real property at a tax sale based on a default tax judgment.  Ten years later the heir of one of the defendants in the default judgment for unpaid taxes, filed a "Motion to Set Aside Default Judgment", claiming that neither the defendants nor their heirs or assigns received notice of the tax suit. Because the petitioners were not parties to the underlying tax suit, they intervened to protect their title to the property obtained by the sale. The petitioners filed a motion to dismiss for want of jurisdiction, arguing that (1) the trial court lacked plenary power to alter its final default judgment issued over ten years earlier and (2) the heir's motion to set aside the default judgment does not confer jurisdiction.  After conducting an evidentiary hearing, the trial court denied the petitioners’ motion to dismiss, concluding that it had authority to decide the motion to set aside the default judgment. In denying the motion to dismiss, the trial court found that "the default judgment was void and subject to collateral attack." The petitioners filed a petition for writ of mandamus challenging the denial of their motion.  The appellate court held that the trial court abused its discretion in denying the motion to dismiss because the heir’s s motion to set aside the default judgment was filed after the trial court lost plenary power and did not confer jurisdiction on the trial court.   Accordingly, the petition for writ of mandamus was granted.


Although the name of the owner of stolen property is not an element of theft, state law requires the name of the owner of the property in the charging instrument, and the naming of a special owner, i.e., an individual who has a greater right to the property than the defendant, is sufficient.
McCurdy v. State
Criminal, Evidence
Texas 14th Court of Appeals
May 08, 2018
14-16-00322-CR
Kem Frost
Published
The appellant returned rugs she purchased to a store and obtained a refund.  The appellant then used the same receipt of purchase to allegedly return rugs that she did not purchase from the store to and obtained a second refund.  The appellant was charged and convicted of theft.  The appellant challenged her conviction on the ground that the there was a material variance between the information charging regarding the name of the owner of the refund (the loss prevention officer) and the evidence at trial did not show the loss prevention officer owned the property in question.  The appellate court held that a variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. The name of the owner of stolen property is not a substantive element of theft, but state law requires the name of the owner of the property in the charging instrument.  The State may allege either the actual owner or a special owner. A special owner is an individual who is in custody or control of property belonging to another.  An owner is anyone with a rational connection to the property through title, possession, whether lawful or not, or a greater right to possession of the property than the defendant.  "Possession" means actual care, custody, control, or management. The loss prevention officer had a greater right to the refund proceeds than the appellant.  Accordingly, there was no material variance and the judgment was affirmed.


The trial court's statement that reasonable doubt "is what you determine after hearing all of the evidence" was not an incorrect statement of the law.
Scott v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 08, 2018
01-16-00933-CR
Evelyn V. Keyes
Published
A jury convicted the appellant of the first-degree felony offense of aggravated robbery and, after finding the allegations in two enhancement paragraphs true, assessed his punishment at sixty-five years’ confinement. During voir dire, the trial court stated that “[t]he State has to prove guilt beyond a reasonable doubt. The law does not define reasonable doubt anymore. It is what you determine after hearing all of the evidence. “  The appellant contended that the trial court erroneously gave an unconstitutional explanation of "beyond a reasonable doubt" during voir dire. The appellate court held that the trial court's statement that reasonable doubt "is what you determine after hearing all of the evidence" was not an incorrect statement of the law. The instructions to the jury, taken as a whole, instructed the jury on the necessity that appellant's guilt be proved beyond a reasonable doubt and correctly conveyed the concept of reasonable doubt.  Accordingly, the court affirmed the judgment of the trial court.


Under the Texas Workers Compensation Act, when employers maintain workers' compensation insurance coverage for their employees, the employees are prohibited from seeking common-law remedies from their employers by making workers' compensation benefits their exclusive remedy.
Austin Bridge & Road, LP v. Suarez
Contracts, Damages, Employment, Insurance, Torts, Workers' Compensation
Texas 1st Court of Appeals
May 03, 2018
01-16-00682-CV
Evelyn V. Keyes
Published
The owner of property, purchased an owner-controlled insurance program (OCIP).  The owner executed a contract with the appellant (general contractor for the Project), which required all contractors and subcontractors to enroll in the OCIP, and incorporate same in all subcontractor contracts.  An employee of a subcontractor died while working on the project, and his  family (appellees) applied for workers' compensation benefits against the insurance policy issued to his employer through the OCIP.  The appellees also filed this suit against the appellant for negligence and gross negligence.  The appellant filed an answer in which it asserted an "exclusive remedy" affirmative defense, alleging that it was "a member of an OCIP under Texas Labor Code 406.123, and as such was considered employers of the deceased whose exclusive remedy was a claim under the Texas Workers Compensation Act, (TWCA). The trial court denied the appellant’s motion for summary judgment on the issue, and a jury awarded damages to the appellees.  The appellate court held that under the TWCA,  when employers maintain workers' compensation insurance coverage for their employees, the injured employees are guaranteed prompt payment of their medical bills and lost wages without the time, expense, and uncertainty of proving liability under common-law theories in exchange for prohibiting them from seeking common-law remedies from their employers by making workers' compensation benefits their exclusive remedy. The  insurance policy proceeds received by the appellees’ were their exclusive remedy.  Accordingly, the judgment was reversed.


Evidence raised a genuine fact issue as to whether the District Clerk committed an official mistake by sending the dismiss for want of prosecution Notice to the wrong address, and if that prevented the appellant from pursuing its indemnity claim unmixed with any fault or negligence on its part.
Marathon Petroleum Co. LP v. Cherry Moving Co., Inc.
Appellate: Civil, Contracts, Insurance, Litigation: Commercial, Torts
Texas 14th Court of Appeals
May 01, 2018
14-16-00634-CV
Kem Thompson Frost
Published
The trial court dismissed the appellant’s (oil company)indemnity claims for want of prosecution.  The appellant sought an equitable bill of review asserting that the trial court clerk sent the notice for the dismissal hearing under Texas Rule of Civil Procedure 165a to the wrong address. The trial court granted the appellee’s motion for summary-judgment motion on the grounds that there was no evidence of official mistake unmixed with any fault or negligence on the appellant’s part. The appellate court held that the summary judgment evidence raised a genuine fact issue as to whether the District Clerk committed an official mistake by sending the dismiss for want of prosecution Notice and the Rule 306a Notice to the appellant’s counsel at one address rather than another address; and whether the alleged official mistake prevented the appellant from pursuing its indemnity claim unmixed with any fault or negligence on the appellant’s part. Thus, the trial court erred in granting the appellee’s summary-judgment motion. Accordingly, the court reversed the trial court’s judgment and remanded for further proceedings.


Grant of summary judgment was reversed because the appellee failed to present evidence that the decedent understood that she was making a will or grasped the general nature and extent of her property, and the appellants produced evidence that raised a presumption of undue influence.
In re Estate of Danford
Evidence, Procedure, Wills/Trusts/Probate
Texas 14th Court of Appeals
May 01, 2018
14-16-00972-CV
Kevin Jewell
Published
The appellee applied to probate a will.  The deceased executed a will and power of attorney, which named the appellee the executor and sole beneficiary of her estate, and a general power of attorney in favor of the appellee, on the same day.  Both were witnessed and notarized. The appellants filed an opposition to probate and contested to the will, and asserted that the will was not valid because the decedent lacked testamentary capacity on the date she signed it, and that the appellee who was in a fiduciary relationship with the decedent by virtue of the general power of attorney, exerted undue influence over the decedent. The appellee filed a motion for summary judgment on the ground that the appellants had not submitted sufficient evidence to oppose his claim, and that the documents supported his claim.  The appellants argued that the granting of the general power of attorney is evidence that the decedent lacked testamentary capacity.  The trial court granted the appellee’s motion.  The appellate court held that the appellee failed to present evidence that the decedent  understood that she was making a will or grasped the general nature and extent of her property. The appellee presented little evidence of the decedent’s mental condition on the day she executed the will. Also, the appellants produced evidence that raised a presumption of undue influence. Accordingly, the trial court's grant of summary judgment was reversed.


A mandatory sentence of life with a chance of parole in 40 years for a juvenile convicted of capital murder is not cruel and unusual punishment, and the failure to conduct a full sentencing hearing did not violate due process, and the defendant did not receive ex post facto punishment.
McCardle v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 01, 2018
14-17-00230-CR
Marc W. Brown
Published
The appellant was convicted of capital murder and sentenced to life in prison without the possibility of parole. The appellant was seventeen years old at the time of the offense. In light of the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), the appellant's sentence was vacated and his case was remanded for resentencing. The trial court sentenced the appellant to life in prison with the possibility of parole in forty years. The appellant asserted that his sentence violated the United States Constitution's prohibitions on (1) cruel and unusual punishment, and (2) ex post facto punishment. He also contends that (3) the trial court's refusal to hold a full sentencing hearing violated his federal right to due process.  A mandatory sentence of life with a chance of parole in forty years for a juvenile convicted of capital murder is not cruel and unusual punishment, and the failure to conduct a full sentencing hearing did not violate due process. Also, the appellant did not receive ex post facto punishment because the trial court did not inflict greater punishment than the law attached to capital murder when appellant committed the offense.  Accordingly, the judgment was affirmed.


Civil tort actions are inappropriate vehicles for challenging criminal judgments, and until the defendant has proved her conviction has been reversed, overturned, or invalidated in some manner, her claims in tort for allegedly being falsely convicted have no basis in law.
Cooper v. Trent
Courts, Criminal, Evidence, Litigation: Personal Injury, Procedure
Texas 14th Court of Appeals
May 01, 2018
14-17-00017-CV
Kevin Jewell
Published
The appellant was convicted of murdering her father. While serving a sixty-year sentence for the murder, the appellant filed a civil lawsuit against appellee, the assistant district attorney, who prosecuted her. The appellant alleged that the appellee induced a witness to testify falsely during the criminal trial that the appellant had solicited the witness to kill her father. The appellant asserted various tort claims and sought money damages from the appellee. The trial court dismissed the appellant’s lawsuit under Texas Rule of Civil Procedure 91a, which permits summary dismissal if the claims pleaded have no basis in law or fact.  The appellate court held that civil tort actions are inappropriate vehicles for challenging criminal judgments.  The appellant’s factual allegations, if true, and her claims, if successful, would necessarily imply the invalidity of her conviction. Until the appellant  has proved her conviction has been reversed, overturned, or invalidated in some manner, her claims have no basis in law For that reason, and because the appellant's conviction had not been overturned or otherwise invalidated by a court, her allegations and claims are not cognizable and do not entitle her to the relief. Accordingly, the judgment was affirmed.


The appeal was dismissed for lack of jurisdiction, as the appellant’s motion for new trial was untimely
In re E.D.
Family, Procedure
Texas 2nd Court of Appeals
May 24, 2018
02-16-00448-CV
Bonnie Sudderth
Published
The appellant mother and the appellee father had a child. In August 2014, finding that it was not in the child’s best interest to appoint the appellant and the appellee as joint managing conservators, the trial court entered an order that named the appellant as the managing conservator with the right to designate the child’s primary residence, and ordered the appellee to pay child support. The trial court also found that the appellee had a history or pattern of family violence and that, as a result, awarding him access to the child would endanger the child’s physical health or emotional welfare. Less than two years later, the provisions for conservatorship and visitation took a 180-degree turn. The trial court not only appointed the appellee as sole managing conservator but also restricted the appellant’s access to the child to six supervised hours of visitation each month. The appellate Court found that because the order of substituted service was not authorized by Tex. R. Civ. P. 109 and did not comply with rule 109a, the the two-year period for filing a motion for new trial under rule 329 was never triggered. As such, the appellant’s motion for new trial—which was not filed within the 30-day deadline—was untimely, and the trial court did not have jurisdiction to consider it. Accordingly, the Court dismissed the appeal for lack of jurisdiction.


The Court could not determine whether a certain jury instruction was the basis for the jury’s finding, as the trial court refused the instruction
Benge v. Williams
Evidence, Health Care, Torts
The Supreme Court of Texas
May 25, 2018
14-1057
Nathan L. Hecht
Published
At the trial of the instant healthcare-liability case, the patient argued and offered evidence that her physician was negligent both in using an inexperienced resident to assist with performing her surgery and in not disclosing the resident’s level of involvement, although she did not claim a right to recover for the nondisclosure. A divided appellate court concluded that the trial court’s refusal to instruct the jury as requested was harmful error, and the court agreed. The Texas Supreme Court found that because the trial court refused the instruction, the Court could not determine whether it was the basis for the jury’s finding and, accordingly, the Court need not decide whether the trial court erred by admitting evidence of the petitioner surgeon’s failure to disclose associate doctor’s involvement to the respondent, or whether the petitioner surgeon preserved his objection. Further, the issues of whether the surgeon was negligent in involving the associate doctor and supervising her in the surgery, and whether the surgeon was negligent in failing to disclose to the respondent what was required to obtain her informed consent, were completely different. The respondent’ evidence and argument at trial confused them. Accordingly, the appellate court's judgment was affirmed.


The record did not reflect, any concrete disadvantages or disabilities that would persist should their claim be dismissed as moot
Anderton v. Cedar Hill
Appellate: Civil, Procedure
Texas 5th Court of Appeals
May 25, 2018
05-17-00138-CV
David Schenck
Published
The City adopted a Comprehensive Plan to implement changes along its major corridors to rely heavily on local retail. The appellant challenged the trial court’s decisions regarding their Chapter 245 counterclaim, their inverse condemnation counterclaim, the non-conforming use status of Lot 5, and the award of the City’s attorney’s fees. The appellate Court found that the appellant’s issues were moot, and neither exception to the mootness doctrine applied in the instant case. The record did not reflect, any concrete disadvantages or disabilities that would persist should their claim be dismissed as moot. Accordingly, the Court affirmed the summary judgment dismissal


Different aspects of real property could be taxed separately, and that the rule did not depend on whether each aspect was separately owned
Bosque Disposal Sys., LLC v. Parker Cnty. Appraisal Dist.
Gov't/Administrative, Real Property, Tax
The Supreme Court of Texas
May 25, 2018
17-0146
James D Blacklock
Published
The petitioners were taxpayers who owned land in county. Each tract at issue contained a saltwater disposal well, in which wastewater from oil and gas operations could be injected and permanently stored underground. When valuing those tracts for property tax purposes, the respondent district assigned one appraised value to the wells and another appraised value to the land itself. The petitioners contended that separate appraisal of the wells and the land amounted to illegal double taxation of the wells as a matter of law. The trial court rendered summary judgment for the petitioners, but the appellate court reversed and remanded in favor of the respondent. The Texas Supreme Court held that different aspects of real property could be taxed separately and that the rule did not depend on whether each aspect was separately owned. The Tax Code expressly contemplated the separate appraisal of different estates or interests in the same piece of property. Further, the economic use of the land was very closely tied to the land itself, and the Court could not conclude on the record that use of the income method to value the petitioners’ disposal wells was improper as a matter of law. Accordingly, the Court affirmed the appellate court’s judgment and remanded the case to the trial court.


The petitioner only had a potential right or claim against the decedent’s Estate, as he was not an “interested party”
In re Estate of Lee
Procedure, Real Property, Wills/Trusts/Probate
Texas 6th Court of Appeals
May 25, 2018
06-17-00066-CV
Ralph Burgess
Published
The petitioner, the decedent’ step-grandson, filed a petition contesting the probate of the second codicil to the will of the. The trial court dismissed the petitioner’s petition based on lack of standing. The appellate Court found that because the petitioner only had a potential right or claim against the decedent’s Estate, he was not an “interested party” under the statutory definition of that term. Therefore, the petitioner’s standing to contest the Second Codicil was dependent on the validity of the written agreement (the Agreement) between the petitioner and the decedent's niece. Because the decedent's niece attempted to assign her beneficial interest in the spendthrift trust to the petitioner via the Agreement, the Agreement was invalid for violating the spendthrift clause. Consequently, the Agreement could not serve as a basis for the petitioner’s standing to contest the Second Codicil. The trial court correctly dismissed the petitioner’s petition. Accordingly, the judgment was affirmed.


The appellants’ claims were not covered under the insurers’ policies and the trial court did not err by granting summary judgment on the appellants’ statutory claims
Loncar v. Progressive Cnty. Mut. Ins. Co.
Contracts, Damages, Insurance, Litigation: Personal Injury
Texas 5th Court of Appeals
May 24, 2018
05-16-00530-CV
Bill Whitehill
Published
The appellants sued the appellees for uninsured motorist benefits after the first appellant was injured in a traffic accident with a City of Dallas fire truck. The trial court granted summary judgment for the appellees, finding that appellants were not covered entitled to recover uninsured motorist benefits under the policy. The appellate Court found that the proper remedy for the situation, if needed, was for the policy writers to make any necessary changes to the policy language, not for the court to abandon the traditional contract interpretation rules that furnished the predictability essential to the modern economy. Specifically, the trial court's statement "legally entitled to recover" simply meant that the uninsured motorist was at fault and caused the insured's damages. Accordingly, the trial court's judgment was affirmed.


The appellant could not be held liable individually as the appellant’s alter ego, as the evidence did not support that the individual appellant used the appellant to perpetrate an actual fraud primarily for her benefit
Hong v. Havey
Real Property, Tax
Texas 14th Court of Appeals
May 24, 2018
14-16-00949-CV
William J. Boyce
Published
The appellant corporation faced financial difficulties on two fronts. The appellant was behind on its property tax payments and owed approximately $45,000 to the appellant's Commercial Association. The appellant entered into a listing agreement under which United Texas Realtors would exclusively represent the appellant in the sale of the 6.24-acre tract. The listing agreement provided that United Texas Realtors would earn a four percent commission contingent on the tract’s sale. The appellate Court found that under section 21.223 of Tex. Bus. Orgs. Code Ann., an alter ego theory could be used to pierce the corporate veil and establish individual liability in connection with a claim arising from a corporate contractual obligation only if actual fraud was perpetrated primarily for the direct personal benefit of the individual. Because legally sufficient evidence did not support the finding that the individual appellant used the appellant to perpetrate an actual fraud primarily for her direct personal benefit, the individual appellant could not be held liable individually as the appellant’s alter ego. Because the evidence was legally insufficient to support the jury’s “yes” answer in response to Question No. 9, the court did not address the individual appellant’s factual sufficiency challenge to that finding. 


The trial court was within its discretion in finding that the appellant’s failure to file an answer to the appellee’s original petition was intentional or the result of conscious indifference
XL Ins. Co. of New York, Inc. v. Lucio
Damages, Insurance, Procedure, Torts
Texas 13th Court of Appeals
May 24, 2018
13-16-00652-CV
Leticia Hinojosa
Published
According to the appellee’s original petition, a hail storm severely damaged his Cameron County home, and he filed a claim for damages on a homeowner’s insurance policy issued by the appellant. After the appellant allegedly underpaid his claim, the appellee sued it within two years of the storm’s occurrence. The appellant appealed from a no-answer default judgment. The appellate Court held that, based on the evidence presented to the trial court, the trial court was within its discretion in finding that the appellant’s failure to file an answer to the appellee’s original petition was intentional or the result of conscious indifference. The appellant had failed to show that the trial court, in denying its motion to set aside the default judgment, acted arbitrarily or without reference to any guiding legal principles under Craddock. Accordingly, the judgment was affirmed as to its liability pronouncements.


Unlike the existence of two prior convictions for felony DWI, which was an element of the offense of felony DWI, the existence of a single prior conviction for misdemeanor DWI was a punishment issue
Oliva v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 23, 2018
PD-0398-17
Sharon Keller
Published
The appellant was charged by information with DWI (Driving While Intoxicated). The appellant was found guilty. The jury assessed punishment at 180 days’ confinement. The appellate court reversed and remanded the case to the trial court. The Texas Court of Criminal Appeals found that although the statutory language was ambiguous, various factors suggested that the legislature intended that Under Penal Code section 49.09(a) prescribed a punishment issue. Thus, the Court held that the litigation of the prior-conviction allegation at the punishment stage of trial was proper. Further, the Court held that, unlike the existence of two prior convictions for felony DWI, which was an element of the offense of felony DWI, the existence of a single prior conviction for misdemeanor DWI was a punishment issue. Accordingly, the Court reversed the judgment of the appellate court and affirmed the judgment of the trial court.


The victim’s testimony that appellant attacked her in a public restroom and pulled down her pants as well as his own was sufficient evidence to support appellant’s conviction of attempted sexual assault.
Loge v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 22, 2018
14-16-00799-CR
William J. Boyce
Published
The appellant appealed his conviction for attempted sexual assault. He alleged that the evidence was insufficient to support the charge. The court stated that a person commits the offense of attempted sexual assault if, with the specific intent to commit sexual assault, he commits an act amounting to more than mere preparation that tends, but fails, to effect the commission of sexual assault. The appellate court held that there was sufficient evidence to support the jury’s findings, including the victim’s description of how the appellant physically attacked her in the restroom, pulled down her pants as well as his own and forced her onto the ground. Accordingly, the court affirmed the trial court’s judgment.


There was no evidence that oil pipeline company turned routing decisions over to individuals with a conflict of interest to decide which property to condemn; therefore, there was no evidence that it engaged in impermissible delegation of its power of eminent domain.
Morello v. Seaway Crude Pipeline Co., LLC
Corporations, Procedure
Texas 1st Court of Appeals
May 22, 2018
01-16-00765-CV
Harvey Brown
Published
In a statutory condemnation case, the appellee company sought to construct a common-carrier crude-oil pipeline that would travel the length of the State of Texas and would include in its path a 115-acre tract of land owned by the appellant individual. After the parties failed to agree on terms for the pipeline installation, the appellee began condemnation proceedings. The trial court entered a final judgment in the appellee’s favor, holding that the appellee could condemn easements across the land and ordering an award of approximately $88,000 to the appellants for the taking, which was the amount the appellants’ expert had opined was the market value of the property actually taken, without any compensation for loss of market value of the remainder of the land. On appeal, appellant argued that  the trial court erred in ruling against him on his arbitrariness and bad faith affirmative defenses. The appellate court found no evidence of arbitrariness through an impermissible delegation of appellee’s power of eminent domain.  There was no evidence that appellee turned routing decisions over to individuals with a conflict of interest to decide which property to condemn. It also found no evidence of arbitrariness through lack of supervision of land choices. Accordingly, the judgment was affirmed.


The trial court erred by failing to award the appellant borrower damages for the 10 usurious loans that he did not repay
Leteff v. Roberts
Contracts, Creditor/Debtor, Damages, Torts
Texas 1st Court of Appeals
May 22, 2018
01-17-00398-CV
Russell Lloyd
Published
The appellee creditor made numerous cash loans to the appellant for his business. The appellant failed to repay many of the loans, and the appellee sued. After a bench trial, the trial court found the appellant liable in contract and the appellee liable for usury. The court awarded the appellant an offset equal to the usury damages he was owed on the four loans that he repaid but refused to award any usury damages on the 10 loans that he failed to repay. In part because of that, the appellant’s contract liability exceeded the appellee’s usury liability. The parties agreed to a reduced judgment of $1,094,047.04 in the appellee’s favor, but the trial court noted that the appellant did not waive his right to appeal. The appellant challenged the trial court’s refusal to award him usury damages on the 10 loans that he failed to repay. He also challenged the trial court’s refusal to award him attorneys’ fees under the usury statutes. The appellate court found that a default maximum allowable interest rate of 10 percent per annum generally applies unless a statutory optional rate ceiling applies. If an optional rate ceiling applies but was less than 18 percent per annum, then the maximum allowable interest rate was 18 percent per annum. Further, the law awarded an appellant usury damages as a boon or a windfall which he was allowed to receive as a punishment to the usurious lender. A successful claim of usury may allow the borrower to avoid a debt he might otherwise owe. The usury law therefore punished the appellee for contracting for usurious loans, even if the result was a windfall for the appellant. The trial court erred by failing to award the appellant borrower damages for the 10 usurious loans that he did not repay and by failing to award the appellant $19,000.00 for attorneys’ fees. Accordingly, the judgment was reversed and remanded.


The trial court erred by rendering a default judgment given that it lacked personal jurisdiction over the defendant because the plaintiff failed to properly serve her.
Creaven v. Creaven
Procedure
Texas 14th Court of Appeals
May 22, 2018
14-17-00128-CV
Martha Hill Jamison
Published
The appellee sued her appellant mother for allegedly improperly withdrawing funds from the appellee's college fund. The trial court granted the appellee's motion for substituted service of process and ordered substituted service. The affidavit in support of the motion, the substituted service order, and the return of service referenced addresses for the appellant with three different but similar street names. After the appellee purportedly served the appellant, the appellee moved for a no-answer default judgment, which the trial court granted. The appellate court found that in failing to submit a return of service that showed the appellant was served at the address referenced in the substituted service order, the appellee failed to show she strictly complied with the order. Because of that, the record did not reflect that the appellee properly served the appellant, there was no showing that the trial court had personal jurisdiction over the appellant, and the judgment was void. Thus, the court concluded that the trial court erred in rendering default judgment against the appellant. Accordingly, the court reversed the judgment of the trial court and remanded for proceedings consistent with the instant opinion.


While an informal fiduciary duty may arise from a moral, social, domestic or personal relationship of trust and confidence, there was no evidence that appellee and his former spouse had that sort of relationship after their divorce.
Robbins v. Robbins
Family
Texas 2nd Court of Appeals
May 17, 2018
02-16-00285-CV
Mark T. Pittman
Published
The appellant appealed from the trial court’s judgment finding that he breached a fiduciary duty to his former wife, the appellee, awarding her all the net proceeds from the sale of what remained of the former marital residential property, and ordering him to pay her attorney’s fees. The appellate court found that despite his delivery of the deed to the appellee, the appellant expressed an intent to continue his appeal. Those actions, as well as the delivery of the deed, occurred after the trial court’s rendition. Therefore, the court held that the appellant expressed an intent to continue the instant appeal. Further, while it was true that an informal fiduciary duty may arise from a moral, social, domestic or purely personal relationship of trust and confidence, no evidence in the record before the instant court indicated that the appellee and the appellant had that sort of relationship after their divorce; the appellant therefore also had no informal fiduciary duty to the appellee. Finally, even if the court had upheld the trial court’s finding that the appellant breached a fiduciary duty to the appellee, she would not be entitled to recover attorney’s fees. Accordingly, the court reversed the trial court’s judgment as to the appellee’s breach-of-fiduciary-duty claim and request for attorney’s fees and rendered judgment that the appellee take nothing.


No reasonable fact-finder could have found appellant and his biological daughter's relationship was bigamy when he sexually assaulted her; thus, there was insufficient evidence to trigger the statutory enhancement for sexual assault under Texas Penal Code Section 22.011(f).
Senn v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
May 17, 2018
02-15-00201-CR
Sue S. Walker
Published
The appellant sexually assaulted and impregnated his biological daughter while he was married to her step-mother. A jury convicted the appellant of prohibited sexual conduct, for which he was sentenced to twenty years’ imprisonment, and of sexual assault, for which he was sentenced to life imprisonment after the jury affirmatively answered a special issue statutorily enhancing his sexual assault conviction from a second-degree felony to a first-degree felony. The appellate court affirmed both of his convictions. The court of criminal appeals vacated the appellate court's judgment and remanded the case. The appellate court found that as conceded by the State, based on the evidence presented, no reasonable fact-finder could have found beyond a reasonable doubt that the appellant and his biological daughter's relationship was or would be bigamy when he sexually assaulted her. Thus, the court held the evidence insufficient to trigger the statutory enhancement for sexual assault under Texas Penal Code Section 22.011(f). Further, because the appellant did not challenge the sufficiency of the evidence to support the elements of sexual assault as a second-degree felony, it would be an “‘unjust’ windfall” for the appellate court to order an acquittal on the sexual assault charge based on insufficient evidence relating solely to the statutory enhancement that raised the offense to the level of a first-degree felony. Moreover, in the course of convicting the appellant of sexual assault as a first-degree felony, the jury must have found every element necessary to convict him of the charged sexual assault as a second-degree felony; therefore, there was sufficient evidence to support a second-degree felony conviction for sexual assault. Accordingly, the court affirmed the appellant's unchallenged conviction for prohibited sexual conduct, modified the trial court’s judgment on the sexual assault to reflect a conviction for a second-degree felony, reversed the judgment on the sexual assault as to punishment, and remanded the sexual assault case for a new trial on punishment.  


Homeowners’ negligence claim arising out of water damage failed because appellants didn’t provide reliable evidence of its value and therefore failed to establish that they suffered harm because it was sold for less than it was worth.
Duren v. Chife
Damages, Real Property, Torts
Texas 1st Court of Appeals
May 17, 2018
01-17-00607-CV
Jane Nenninger Bland
Published
The instant case arose out of water penetration that damaged a residential home. Seeking to recover their losses associated with the water damage, the appellant home owners sued the sellers, as well as the sellers' real estate broker and his company for negligence, negligent misrepresentation, and breach of fiduciary duty. The trial court granted summary judgment to the appellees. The appellate court pointed out that damages are a necessary element of claims for negligence, negligent misrepresentation, and breach of fiduciary duty. But the appellant’s affidavit was no evidence of the market value of the appellants’ home at the time it was sold. Without evidence of the market value of the home, the appellants could not establish that it was sold for less than it was worth. As they did not come forward with more than a scintilla of evidence as to their alleged damages, the trial court properly granted summary judgment in favor of the appellee and his company. Accordingly, the judgment was affirmed.   


Trial court properly dismissed a deceptive trade practices lawsuit against appellee lawyers based on attorney immunity where all the challenged conduct involved acts taken and communications made to facilitate the rendition of legal services.
Sheller v. Corral Tran Singh, LLP
Procedure, Professional Responsibility, Torts
Texas 14th Court of Appeals
May 17, 2018
14-17-00215-CV
Marc W. Brown
Published
The appellant appealed from the trial court’s ruling granting summary judgment in favor of appellee attorneys on the appellant’s claims for violations of the Texas Deceptive Trade Practices Act (DTPA) and negligent misrepresentation. The appellate court concluded that the appellees conclusively established that their conduct was protected by the doctrine of attorney immunity. The court pointed out that all of the challenged conduct involved acts taken and communications made to facilitate the rendition of legal services in the context of a bankruptcy proceeding. Therefore, the trial court did not err by granting summary judgment in favor of the appellees on all the appellant’s claims. Accordingly, the judgment was affirmed.  


Because the tenant, in appealing an eviction case, did not pay the filing fee before expiration of the twenty-day period, his appeal was not perfected and was properly dismissed.
Pichini v. Fed. Nat'l Mort'g Ass'n
Real Property
Texas 1st Court of Appeals
May 17, 2018
01-17-00519-CV
Russell Lloyd
Published
The appellee association filed a petition for forcible detainer seeking to evict the appellant from the property. The justice court rendered judgment in favor of the appellee. The appellant posted an appeal bond in the county court. After the appellant did not pay the fee as directed, the county court found that he had failed to perfect his appeal and dismissed the appeal. The appellant filed a motion to reinstate his appeal. The county court denied the motion. The appellate court found that the appellant did not dispute that he failed to timely pay the filing fee in the county court. Rather, he argued that he perfected his appeal when he filed an appeal bond with the justice court and deposited funds into the registry of the court, and that his failure to pay the filing fee before the expiration of twenty days did not affect the jurisdiction of the court. His argument was without merit. Because the appellant did not pay the filing fee before expiration of the twenty-day period, the county court did not err in deeming the appellant’s appeal not perfected and dismissing his appeal. Accordingly, the court affirmed the county court’s order dismissing the appellant’s appeal.


Forum selection clause in employment contract did not apply to appellee companies but was limited to each party and/or their successors or assigns, dependents, executors or administrators; accordingly, appellees could not enforce the clause against appellant in a personal injury case.
Black v. Diamond Offshore Drilling Inc.
Contracts, Employment, Torts
Texas 14th Court of Appeals
May 15, 2018
14-17-00011-CV
John Donovan
Published
Appellant signed an employment contract with and later sued an off-shore drilling company and two related companies for personal injuries. The employment contract ("Agreement") contained a forum-selection clause wherein both parties consented to the jurisdiction of the courts of Bermuda to hear and determine any lawsuits. The trial court dismissed the case. Plaintiff appealed, claiming the trial court erred in determining that non-signatory appellees could enforce the forum-selection clause contained in his employment contract. The appellate court reversed. The appellate court found that to the extent the trial court relied on the language in the Agreement to allow the non-signatories to enforce the forum-selection clause, the trial court abused its discretion. Also, the court rejected the non-signatories’ concerted-misconduct argument and would confine the court's analysis to direct-benefits estoppel the only form of equitable estoppel recognized in Texas. To the extent the trial court relied on concerted-misconduct estoppel to enforce the forum-selection clause, the trial court abused its discretion. Further, to the extent the trial court relied on the intertwined-claims estoppel theory to enforce the forum-selection clause, the trial court abused its discretion. Finally, by its express terms, forum-selection clause was limited to each party and/or their successors or assigns, dependents, executors or administrators. The appellees neither argued nor demonstrated that they were parties to the agreement or otherwise explained how they fell within the term transaction participants. Thus, enforcement of the forum-selection clause by appellees against the appellant would not have been reasonably foreseeable and was impermissible. Accordingly, the court reversed the trial court’s judgment and remanded.


 

The appellant’s conduct was inconsistent with the assertion of its appraisal right and constituted a waiver of its appraisal right under the terms of its policy.
In re Allstate Vehicle And Prop. Ins. Co.
ADR, Appellate: Civil, Contracts, Damages, Insurance, Real Property
Texas 2nd Court of Appeals
May 03, 2018
02-17-00319-CV
Sue S. Walker
Published
The Real Party in Interest (RPI) made a claim under her homeowner’s policy with the appellant) for roof damage. The appellant refused to pay monies on either claim.  The RPI therefore filed suit pursuant to the expedited action provisions of Texas Rule of Civil Procedure 169.  The appellant conducted at least six inspections of the RPI's roof; had removed the case to federal court––the federal court remanded it to state court three months later. The trial court granted the appellant’s motion to compel a seventh inspection and granted the appellant’s motion to extend the deadline to designate its expert, and the appellant agreed to a trial date. After the seventh inspection, the appellant filed a motion for appraisal under the terms of its policy and to abate the case because an appraisal was a condition precedent to suit.  The trial court held that the appellant waived the right to invoke the appraisal provision and denied the request for the appraisal and to abate the case.  The appellant then sought a writ of mandamus.  The appellate court held that the appellant’s conduct was inconsistent with the assertion of its appraisal right and constituted a waiver of its appraisal right under the terms of its policy and that the RPI was or would be prejudiced by the appellant’ invocation of the appraisal clause.  Accordingly, the appellant’s petition for a writ of mandamus was denied.


The trial court erred in denying the appellants’ Texas Citizens Participation Act (TCPA) motion as to the claim for common law civil conspiracy, and the appellants’ TCPA motion challenging the declaratory claims did not implicate any independent legal action and was thereby waived.
Craig v. Tejas Promotions, LLC
Appellate: Civil, Business, Constitution, Contracts, Litigation: Commercial, Procedure, Torts
Texas 3rd Court of Appeals
May 03, 2018
03-16-00611-CV
Bob Pemberton
Published
The appellee company alleged that the appellants formed a deceptively named company, and divulged the appellee’s trade secrets obtained in discussions regarding the potential purchase of the appellee by the appellants.  The appellees sued the appellants for civil conspiracy, declaratory judgment claims, and other claims for damages.  The appellants filed a motion under the Texas Citizens Participation Act (TCPA) seeking dismissal of the only the common-law conspiracy and the declaratory claims. The appellee then amended its petition to nonsuit by omission its common-law conspiracy claim. The trial court denied the appellants’ TCPA motion. The appellate court held that because the appellants met their initial burden as to the appellee’s conspiracy claim, unless the appellee presented a “prima facie case” as to each essential element of that theory of liability, the motion should have been granted.  The appellee made no such attempt, but instead, urged that the claim was no longer part of the case. The trial court therefore had no discretion but to grant appellees’ TCPA motion as to the appellee’s conspiracy claim. Further, because the appellee’s declaratory claims merely concern issues that were subsumed within the causes of action, the appellants’ TCPA motion challenging the declaratory claims did not implicate any independent legal action and was thereby waived by appellants’ failure to challenge the broader claims and causes of action in their motion. Thus, the trial court did not err in denying the TCPA motion as to the declaratory claims. Accordingly, the judgment was affirmed, reversed and remanded.


Plaintiff’s claim for breach of the standard of care for the gastric bypass surgery was dismissed because the expert reports failed to state the applicable standard of care for gastric bypass surgery and did not establish the standard of care for a gastric bypass surgical procedure.
Schwartz v. Fipps
Evidence, Health Care, Torts
Texas 4th Court of Appeals
May 02, 2018
04-17-00337-CV
Patricia O. Alvarez
Published
The appellee sued the appellant, the bariatric surgeon, alleging that the “surgical procedure failed.” The appellant challenged appellee’s initial and supplemental expert reports, and the trial court dismissed the suit for an inadequate report. The appellee filed a motion for new trial, in which he argued that the supplemental report showed that his their theory changed to a postoperative-care complaint, and that the expert was qualified to opine. The appellant moved to dismiss.  The trial court granted the motion for new trial, and denied the motion to dismiss. The appellate court held that the appellee’s pleading did not allege a breach of the standard of pre- or postoperative care; it stated that “the surgical procedure failed.” Construing appellees’ pleading liberally, the court concluded that the appellee’s claim was that the appellant breached the standard of care for the gastric bypass surgery. Assuming that the expert was qualified to opine on the appellee’s case, the expert’s reports were inadequate as a matter of law because the reports failed to state the applicable standard of care for gastric bypass surgery and the reports’ opinions on postoperative care did not establish the standard of care for a gastric bypass surgical procedure. Given that the expert reports were inadequate as a matter of law, the trial court was required to grant the appellant’s motion to dismiss. Accordingly, the court reversed the trial court’s order denying the appellant’s motion to dismiss, and rendered judgment for the appellant.


The appellant failed to conclusively demonstrate lack of intent to be bound to an oral agreement absent a written agreement, and did not conclusively establish that the appellee, through his words or conduct, unequivocally intended to renounce his rights to enforce the oral agreement.
Yazdani-Beioky v. Sharifan
Appellate: Civil, Business, Contracts, Damages, Evidence
Texas 14th Court of Appeals
May 03, 2018
14-15-00702-CV
Marc W. Brown
Published
A management company, the appellant and the appellee entered into a written partnership agreement to create the hospitality partners company.   The appellant entered into an oral agreement with the appellee to purchase the appellee’s interest in the partnership.  After reaching the oral agreement, the appellant issued a capital call and the appellee did not respond to same.  Also, the parties later engaged in discussions to buy out the interests of the other.  The filed suit in which it sought a declaratory judgment that either the appellee forfeited his interest or had a reduced interest because the appellee missed the capital call, and that there was no agreement because the parties intended to put the oral agreement in writing.  The trial court found that the appellee fully tendered his partnership share in  pursuant to the oral agreement and that the appellant breached by not paying the appellee.  The appellate court held that the appellant failed to conclusively demonstrate lack of intent to be bound absent a written agreement.  Also, the evidence did not conclusively establish that the appellee  through his words or conduct unequivocally intended to renounce his rights to enforce the oral agreement.   Accordingly, the court affirmed the trial court’s judgment.


The trial court erred in admitting hearsay evidence of drug identity based upon drugs.com and the Drug Bible, that error obligated the court to render an acquittal; and even if such evidence was admissible, the evidence of drug identity was legally insufficient to support the jury’s verdict.
Amberson v. State
Criminal, Evidence, Procedure
Texas 13th Court of Appeals
May 03, 2018
13-16-00306-CR
Leticia Hinojosa
Published
The appellant was charged with one count of driving while intoxicated and one count of intentionally or knowingly possessing a controlled substance, specifically clonazepam, in an amount of less than 28 grams.  At trial, the patrol officer testified regarding the identity of alleged drugs based upon drugs.com and the Drug Identification Bible 2014 to 2015 (Drug Bible).  The appellant was convicted and appealed.  The appellate court held that the information relied on by the patrol officer constituted hearsay. Therefore, its admissibility depends on whether the officer’s testimony was either properly lay or expert opinion testimony. And, “helpful testimony by a witness who does not possess personal knowledge of the events about which he or she is testifying” was expert testimony. Therefore, the court must determine whether the officer was indeed an expert. And, concluded that because the officer was not an expert, he could not sponsor excerpts from either drugs.com or the Drug Bible. The State failed to present any persuasive evidence on why it was necessary for the officer to reference drugs.com. The State also failed to present any persuasive evidence on the reliability of drugs.com. Lastly, the only evidence identifying the clonazepam came from the officer and his reliance on drugs.com and the Drug Bible. On that record, the court could not say that the court had a fair assurance that the error did not influence the jury, or influenced the jury only slightly. Therefore, the court found the error harmful. Accordingly, the judgment was reversed and remanded.


The defendant failed to demonstrate when seeking a writ of a habeas corpus, that the undisclosed evidence was material-that is, there was a reasonable probability that, had the favorable evidence been disclosed, the outcome of the trial would have been different.
Diamond v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 03, 2018
14-17-00005-CR
Martha Hill Jamison
Published
The appellant was convicted of driving while intoxicated. The officer that stopped the appellant testified that the appellant staggered, appeared intoxicated, smelled of alcohol, had red, glassy eyes and incoherent, slurred speech, appeared confused, had an empty can of beer and two cold, unopened cans of beer in her car. An analyst from the crime lab testified that her analysis of appellant's blood sample revealed a blood alcohol concentration (BAC) of 0.193, which is above the legal limit of 0.08. The prosecutor argued during closing argument that the blood analysis was "really important" because 0.193 is "multiple times" the legal limit.  The analyst later self-reported that the crime lab had violated quality control and documentation protocols.  The appellant filed for a writ of habeas corpus, in which she alleged that the State suppressed favorable evidence in violation of her due process rights. After a hearing, the habeas court denied the application. The appellate court held that to demonstrate reversible error under Brady, a habeas applicant must show that the evidence is material-that is, there is a reasonable probability that, had the favorable evidence been disclosed, the outcome of the trial would have been different.  Given the strength of the evidence indicating appellant was intoxicated, there was no reasonable probability that the jury would have reached a different result if analyst’s  testimony had been excluded. There similarly is not a reasonable probability that the jury would have reached a different result. Accordingly, the court affirmed the judgment of the habeas court.


A criminal defendant can collaterally attack his original conviction in an appeal from the revocation of community supervision under the "void judgment" exception, which requires that the claimed defect be one that renders the original judgment of conviction void.
Garcia v. State
Courts, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
April 30, 2018
11-16-00314-CR
Mike Willson
Published
The appellant pleaded guilty to the third-degree felony offense of possession of a controlled substance in a drug-free zone. The trial court accepted the appellant’s plea and found him guilty. The trial court sentenced the appellant to confinement for ten years, suspended the sentence, and placed the appellant on community supervision for ten years The State later moved to revoke the appellant’s community supervision. The trial court revoked the appellant’s community supervision and sentenced the appellant to confinement for six years. The appellant appealed and argued that he originally received an illegal sentence. The State argued that the appellant cannot challenge his original plea of guilty from an appeal of a revocation of community supervision.  The appellate court held that a criminal defendant can collaterally attack his original conviction in an appeal from the revocation of community supervision under the "void judgment" exception. The void judgment exception recognizes that there are some rare situations in which a trial court's judgment is accorded no respect due to a complete lack of power to render the judgment in question.  The void judgment' exception requires that the claimed defect be one that renders the original judgment of conviction void.  The appellant received an illegal sentence, and because his sentence was illegal, it is void, as is the judgment in which the trial court revoked his community supervision.  Accordingly, the judgment was vacated and the case was remanded.


The appellant’s attempt to invoke the appraisal process in an insurance contract was not an impermissible attempt to obtain specific performance under the contract, and was not prohibited by the doctrine of governmental immunity.
Texas Mun.League Intergovernmental Risk Pool v. City of Abilene
Contracts, Damages, Gov't/Administrative, Insurance, Real Property
Texas 11th Court of Appeals
May 10, 2018
11-17-00253-CV
John M. Bailey
Published
The appellant, a self-insurance pool of local governments, sold the appellee city real and personal property insurance. The appellee reported damage to the appellant, the appellant promptly evaluated the claim, and paid the claim. The appellee submitted an additional Proof of Loss and demanded an appraisal of the damage pursuant to the procedures set out in the contract.  The appellant declined to participate in an appraisal.  The appellee filed suit against the appellee for breach of contract, and a motion to compel appraisal and abate the case pending completion of the appraisal. The appellant argued that the appellee’s attempt to invoke the appraisal process constitutes an impermissible attempt to obtain specific performance under the contract, a remedy for which the appellant's governmental immunity would not be waived. The trial court denied the appellant’s plea to the jurisdiction and granted the appellee's motion to compel appraisal and abate the case.  The appellate court held that the appellee’s request to invoke the appraisal provision did not constitute a request for the equitable remedy of specific performance, but rather it was a procedural vehicle provided by the contract to determine the amount of loss.  Section 271.154 is not a limitation on the Act’s waiver of immunity. Section 271.154 is a “preservation of procedures” that provided for enforcement of contractual adjudication procedures. Thus, the trial court did not err in denying the appellant’s plea to the jurisdiction with respect to the appellee’s request to enforce the appraisal provision. Accordingly, the judgment was affirmed.


The trial court did not err by granting summary judgment in both cases on the ground that the appellant’s negligent misrepresentation claim was barred by the statute of limitations
Gutierrez v. Stewart Title Co.
Real Property, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
May 03, 2018
14-17-00244-CV
Kevin Jewell
Published
A beneficiary, the appellant, under her deceased mother’s will, challenged the probate court’s summary judgments in favor of the appellee company for two contested conveyances of the decedent’s properties.  She contended that the decedent had no authority to sell the properties under the "no-sale clause" in a will that granted the testator the property.   The appellant sued the appellee for negligent misrepresentation alleging that it negligently misrepresented to the decedent that she could sell her interest in the property.  The appellee moved for summary judgment on the ground that the beneficiary’s claims were barred by the statute of limitations. The trial court granted the motion.  The appellate court held that the trial court did not err by granting summary judgment on the ground that the appellant’s negligent misrepresentation claim was barred by the statute of limitations. Accordingly, the court affirmed the trial court’s judgment. 


The appellee was not statutory liable under the Texas Natural Resources Code for royalties to the Lessor Plaintiffs pursuant to leases between the Lessor Plainitffs and the appellant because the appellee did not undertake to make payments to the Lessor Plaintiffs.
Devon Energy Prod. Co., L.P. v. Apache Corp.
Contracts, Landlord and Tenant, Real Property
Texas 11th Court of Appeals
April 30, 2018
11-16-00105-CV
John M. Bailey
Published
An individual leased her undivided one-third mineral interest in land to the appellee. The remaining mineral interest owners (Lessor Plaintiffs) leased their two-thirds mineral interest to the appellant and reserved a 25% royalty interest.  The appellee drilled seven producing oil and gas wells on the subject land, and paid the appellant its two-thirds share of the net revenue. The Lessor Plaintiffs filed suit against both the appellant and appellee. The Lessor Plaintiffs alleged that the appellant and appellee failed to pay them "all royalties due" under their leases.  The appellant denied liability to the Lessor Plaintiffs' and filed a cross-claim against the appellee in which it asserted that the appellee owed royalty payments directly to the Lessor Plaintiffs under Section 91.402 of the Natural Resources Code. The trial court granted the appellee's motion for summary judgment against the appellant on the issue of royalty payments. The appellant argued that the trial court erred when it granted the appellee's motion for summary judgment, and entered a final judgment in the appellee's favor on the issue of which party owed royalty payments to the Lessor Plaintiffs.  The appellant court held that the appellee and the Lessor Plaintiffs did not have a payor-payee relationship under the Texas Natural Resources Code because the appellee did not undertake to make payments to the Lessor Plaintiffs.  The appellee was not statutory liable for royalties to the Lessor Plaintiffs pursuant to the Lessor Plaintiffs’ leases with the appellant.  Accordingly, the judgment was affirmed.  


The trial court granted a second summary judgment motion that disposed of the entire case and the merits of the second motion were briefed to the appellate court but were not reached by that trial court. Appellate court's judgment was partly affirmed and partly reversed and the case remanded.
Lujan v. Navistar, Inc.
Appellate: Civil, Courts, Procedure
The Supreme Court of Texas
April 27, 2018
16-0588
James D Blacklock
Published
Most Texas appellate court recognized the sham affidavit rule as a legitimate component of a trial judge’s authority under Rule 166a of TEX. R. CIV. P. to grant summary judgment when no genuine issue as to any material fact existed. The appellate court declined to reach the individual petitioner's appeal of the summary judgment granted on the merits of his claims. The Texas Supreme Court found that the circumstances included the admitted falsity of the affidavit and the inconsistent statements of the petitioner’s attorney, both of which buttressed the trial court’s conclusion that the late-filed and contradictory affidavit did not raise genuine fact issues sufficient to survive summary judgment. Further, the sham affidavit rule was a valid component of a trial court’s authority under Rule 166a to distinguish genuine fact issues from non-genuine fact issues. The trial court did not abuse its discretion by concluding that the affidavit in question did not raise a genuine fact issue sufficient to survive summary judgment. Therefore, the court affirmed the appellate court’s decision as to the partial summary judgment grant. Although the appellate court found that the grant of partial summary judgment disposed of the entire case, the petitioner contended that his claims may remain partly unresolved. The record was not clear on whether the appellate court’s decision affirming the grant of partial summary judgment disposed of claims for damages that arose prior to June 12, 2006. The trial court granted a second summary judgment motion that disposed of the entire case and the merits of the second motion were briefed to the appellate court but were not reached by that trial court. Accordingly, the appellate court's judgment was partly affirmed and partly reversed and the case was remanded.


The reimbursement rates sought, taken together, reflected the amounts the hospital was willing to accept from the vast majority of its patients as payment in full for such services. While not dispositive, such amounts were at least relevant to what constituted a reasonable charge.
In re N. Cypress Med. Ctr. Operating Co., Ltd.
Appellate: Civil, Contracts, Insurance
The Supreme Court of Texas
April 27, 2018
16-0851
Debra Ann H. Lehrman
Published
The respondent was involved in an automobile accident and was taken by ambulance to the emergency room at the relator center. The relator released the respondent after performing a series of emergency services. Because the respondent was uninsured, the relator billed her for the services at its full “chargemaster” prices, which totaled $11,037.35. The relator also filed a hospital lien for that amount. The respondent sued, seeking a declaratory judgment that the relator’s charges were unreasonable and its lien invalid to the extent it exceeds a reasonable and regular rate for services rendered. After exhausting the administrative remedies, the trial court denied the motion, prompting the relator to file a petition for writ of mandamus in the appellate court. The appellate court denied the petition. The Texas Supreme Court held that the trial court did not abuse its discretion in concluding that the amounts the relator was willing to accept as payment for services rendered to the vast majority of its patients was relevant to the reasonableness of its charges. The relator did not elaborate in its briefing on its relevance objection to the information contained in its Medicare cost reports. In any event, surely for discovery purposed a hospital’s costs had some bearing on the reasonableness of its patient charges. The trial court did not order the production of irrelevant information. Nothing in the record indicated that the trial court was unwilling to issue a protective order in the event the relator requested and demonstrated its entitlement. Accordingly, the court declined to grant mandamus relief on the ground that the contracts contain confidential and proprietary information.


The respondent complained that negotiating and entering a settlement agreement, preparing transfer documents, and filing a lawsuit fell within the scope of the petitioner’s representation of the individuals, and the client of the petitioner and was not foreign to the duties of a lawyer.
Youngkin v. Hines
Contracts, Real Property
The Supreme Court of Texas
April 27, 2018
16-0935
Debra Lehrmann
Published
The instant case involved tort claims brought by a non client against an attorney based on statements the attorney made in open court on behalf of his clients. The instant suit stemmed from a legal dispute over title to 45 acres of a 285-acre tract of land in Brazos County (the Property Suit). The individual filed the Property Suit seeking a declaratory judgment that they were the rightful owners because they had paid all taxes on it. The appellate court held that the Act applied to the claims against the attorney but denied his motion to dismiss. He argued that he was immune because he undertook the cited actions in the course of representing his clients. Though it would have been better practice for the petitioner to have submitted an affidavit attesting to those necessary facts, it did not prevent him from proving his defense under the circumstances of the instant case. The court declined to render judgment in any amount. Rather, the court remanded the case to the trial court for reconsideration of an award under section 27.009(a) in light of court's determination that the claims against the petitioner must be dismissed. Further, the pTexas Citizens Participation Act (TCPA). Under its plain meaning, the Act applied to protect an attorney’s in-court statements on behalf of his client during a judicial proceeding. And, assuming without deciding that the respondent carried his burden to make a prima facie case as to the elements of his claims against the petitioner, The petitioner was nevertheless entitled to dismissal under the affirmative defense of attorney immunity.


The independent contractors were entitled to the same limitation on liability as the governmental unit would be since it performed that same function, and the petitioner authority were operating its own bus transportation system. Liability would be limited to a maximum of $100,000.
Fort Worth Transportation Authority v. Rodriguez
Contracts, Damages, Gov't/Administrative, Torts
The Supreme Court of Texas
April 27, 2018
16-0542
Paul W. Green
Published
In the instant statutory-construction case, the court must interpret the damages-cap and election-of remedies provisions of the Texas Tort Claims Act (TTCA) with respect to independent contractors performing essential governmental functions. After a pedestrian was struck and killed by a public bus in Fort Worth, her daughter sued the petitioner authority, its two independent contractors, and the bus driver under the TTCA. The individual respondent filed her claim against the petitioners corporations on July 11, 2012. At that time, a separate lawsuit brought by New Hampshire Insurance Company against the petitioner authority and the individual petitioner arose out of the same incident. The Texas Supreme Court found that the the Texas Tort Claims Act (TTCA's) damages cap applied cumulatively when independent contractors perform essential governmental functions under Transportation Code chapter 452. The plain language of section 452.056 was clear that an independent contractor operating a public transportation system on behalf of a regional authority should be treated as the government for liability purposes. Therefore, that contractor could be liable only to the extent that the authority would be liable if it were performing the same function. The independent contractors thus were entitled to the same limitation on liability as the governmental unit would be if it performed that function. Section 452.056 of the Transportation Code brought the individual petitioner under the protection of the TTCA’s election-of-remedies provision. The court reversed the judgment of the appellate court in part and reinstated the judgment of the trial court as to the damages-cap and election-of-remedies issues.


Neither the petitioners nor his business stood to profit from the statements at issue. Although he might have been personally gratified by the damage the statements might make to the respondents’ business, the statements did not fall within the TCPA’s commercial-speech exemption.
Castleman v. Internet Money Ltd.
Appellate: Civil, Consumer, Torts
The Supreme Court of Texas
April 27, 2018
17-0437
Per Curiam
Published
The petitioners ran an online platform that served as a middleman between consumers and various product suppliers. The petitioners hired the respondents to receive and fulfill the customer orders placed through the petitioners’ website and provided the respondents with written instructions on how to fill those orders. The petitioners accused the respondents of failing to follow the instructions and over-ordering products. The petitioners demanded compensation for his lost profits (estimated around $8,000) from the respondents. When the respondents refused to pay, the petitioners published statements about the dispute on various online platforms including a personal blog, YouTube, and social media. The respondents sent the petitioners a cease-and-desist letter demanding that the petitioners erase and retract all statements about the respondents, publish apologies that the respondents found satisfactory and pay the respondents $315,000. When the petitioners refused, the respondents sued for defamation. The petitioners moved to dismiss the suit under the Texas Citizens Participation Act (TCPA) for defamation. The trial court denied the petitioners’ motion. The court of appeals affirmed the trial court’s denial of the petitioners’ TCPA-dismissal motion. The Texas Supreme Court found that the commercial-speech exemption applied only to certain communications related to a good, product, or service in the marketplace. Neither the petitioners nor his business stood to profit from the statements at issue. Although he might have been personally gratified by the damage the statements might make to the respondents’ business, the statements did not fall within the TCPA’s commercial-speech exemption. Thus, the TCPA’s commercial-speech exemption did not apply in the instant case. Accordingly, the judgment was reversed and remanded.


The trial court did not abuse its discretion in denying the individual’s request for appointed counsel on the State’s motion to modify his civil commitment order. Thus, the appellate court abused its discretion in granting the individual mandamus relief.
In re State
Constitution
The Supreme Court of Texas
April 27, 2018
16-0829
Debra Ann H. Lehrman
Published
The overarching issue was whether the relator, designated a sexually violent predator and civilly committed pursuant to the Civil Commitment of Sexually Violent Predators Act, was entitled to appointed counsel in proceedings on the State’s motion to amend his civil commitment order to conform to the Act’s 2015 amendments. The trial court denied the relator’s request for counsel and, after a hearing, entered an amended commitment order. The appellate court granted mandamus relief to the relator, ordering the trial court to vacate its orders and appoint counsel to represent the relator in further proceedings on the State’s motion. The Texas Supreme Court held that the trial court was not statutorily required to appoint an attorney to represent the individual with respect to the State’s motion to amend. The court held that the appellate court abused its discretion in ordering the trial court to appoint counsel on statutory grounds. Taking all the factors into account, the risk of erroneous deprivation, and the State’s interest, the court held that the minimum process to which the individual was entitled in connection with the State’s motion to amend did not include appointed counsel. State law afforded the individual notice and a hearing, which was sufficient process. Therefore, the trial court did not abuse its discretion in denying the individual’s request for appointed counsel on the State’s motion to modify his civil commitment. The appellate court abused its discretion in granting the individual mandamus relief. Accordingly, the court conditionally granted the State’s petition for writ of mandamus and ordered the appellate court to vacate its own order.


The heart of the instant case was a simple contract dispute. It necessarily involved questions of rules and regulations squarely within the PUC purview. The PURA therefore required that parties first take their disputes to the administrative agency to make the preliminary determinations.
Oncor Elec. Delivery Co. LLC v. Chaparral Energy, LLC
Constitution, Contracts, Damages, Gov't/Administrative, Torts
The Supreme Court of Texas
April 27, 2018
16-0301
Jeffrey S. Boyd
Published
The respondent company sued for breach of contract, seeking actual damages, additional damages, interest, attorney’s fees, expenses, taxable costs, and any further legal or equitable relief to which the respondent may be entitled. The respondent alleged that the petitioner did not cooperate in good faith to fulfill its duties and obligations under the Service Agreement, that petitioner did not use reasonable diligence, nor act in a manner consistent with good business practices, reliability, safety, and expedition, and that the petitioner intentionally was grossly negligent. A jury found that the petitioner failed to comply with the Service Agreement. Based on the jury’s findings, the trial court awarded the respondent $186,000 in actual damages, nearly $30,000 in prejudgment interest, $200,000 for attorney’s fees, and taxable court costs. The petitioner then moved to dismiss the respondent's claim for want of jurisdiction. The appellate court denied the petitioner's jurisdictional challenge and affirmed the trial court’s judgment. The Texas Supreme Court granted the petitioner's petition for review. The Texas Supreme Court found that when the Legislature created a pervasive regulatory scheme, it intended for the agency with the appropriate expertise to make important determinations before the parties take their claim to the judicial system. The Legislature enacted such a scheme in Public Utility Regulatory Act (PURA). Although the heart of the instant case was a simple contract dispute, it necessarily involved questions of rules and regulations squarely within the Public Utility Commission (PUC) purview. PURA therefore required that parties first take their disputes to the administrative agency to make the preliminary determinations. Accordingly, the court reversed the appellate court's judgment and dismissed the case for want of jurisdiction.


Because the charter schools had no vested property right in public education or their respective charters, and further had failed to demonstrate the existence of any ultra vires act in the revocation of their charters, the court of appeals’s judgment was affirmed.
Honors Academy, Inc. v. Texas Educ. Agency
Education, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 27, 2018
16-0519
John P. Devine
Published
Section 12.115 of the Texas Education Code required the Commissioner of Education (the respondent) to revoke an open-enrollment charter school’s charter after three consecutive years of “an unacceptable performance rating,” an unsatisfactory “financial accountability performance rating,” or any combination of the two. The respondent’s revocation decision is subject to an administrative review, but the decision may not be appealed beyond that. Two open-enrollment charter schools nevertheless sought judicial review of the respondent’s decision raising both constitutional and ultra vires complaints. A district court forestalled the respondent ’s revocation by granting temporary injunctive relief. After an interlocutory appeal, the court of appeals vacated the temporary injunctions and dismissed the suit, concluding that sovereign immunity barred the schools’s claims. The Texas Supreme Court found that The Texas Education Code empowered the respondent to create open enrollment charter schools, regulate them, and make decisions that effect their existence through reviews, renewals, and revocations. Many of the respondent’s executive decisions, including those at issue, were made final or permit only limited administrative review. Because the enabling statutes precluded judicial review of those executive decisions and no basis existed otherwise to invoke the district court’s inherent authority, the court of appeals concluded that sovereign immunity barred the district court proceedings. The appellate court accordingly vacated the district court’s temporary injunctions and dismissed the underlying proceedings for want of jurisdiction. Because the court agreed that the charter schools had no vested property right in public education or their respective charters and failed to demonstrate the existence of any ultra vires act, the court affirmed the judgment.


The appellate court’s judgment was modified to reflect that the respondent individual and the petitioner individuals each owned a 1/4 royalty interest in the 28-Acre Tract, as modified the judgment was affirmed
Perryman v. Spartan Texas Six Capital Partners, Ltd.
Contracts, Procedure, Real Property
The Supreme Court of Texas
April 27, 2018
16-0804
Jeffrey S. Boyd
Published
Buried in a mound of real-property deeds lied a single contract-interpretation question: What was the function of a clause that “saves and excepts” 1/2 of “all royalties from the production of oil, gas and/or other minerals that may be produced from the premises now owned by Grantor,” when the deed did not disclose that the grantor did not own all of the royalty interests and did not except any other royalty interests from the conveyance? The trial court construed the clause to reserve for the grantor 1/2 of all of the “royalties which were then owned by Grantor,” and thus the deeds did not create a so-called Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d 878, 880– 81 (Tex. 1940) problem, where the grantor owned less than he purported to convey. The appellate court disagreed and held that the clause reserved for the grantor 1/2 of all royalties produced from the “above described premises which were then owned by Grantor,” and thus created a Duhig problem. The Texas Supreme Court agreed with the appellate court’s ultimate conclusions about the parties’ respective ownership of the royalty interests as to the larger tract at issue. The court based it's conclusions on the deeds’ language, rather than on the Duhig-estoppel theory. Applying it's conclusions to the chain of deeds in the instant case, the court held that each party with an interest in the tracts owned a 1/4 interest in the royalties produced. The court also held that judicial estoppel did not bar the petitioners from claiming their royalty interests, and that the trial court did not err in denying the petitioners’ motion to transfer venue. Accordingly, the court modified the trial court’s judgment in part and affirmed the judgment as modified.


Because the challenged communications did relate to a “matter of public concern” as defined by the TCPA, the court of appeals judgment was reversed and remanded for determining whether the respondent established a prima facie case for defamation.
Adams v. Starside Custom Builders, LLC
Procedure, Torts
The Supreme Court of Texas
April 20, 2018
16-0786
James D Blacklock
Published
The instant was an appeal from the denial of a motion to dismiss under the Texas Citizens Participation Act (TCPA). The petitioner moved to dismiss the defamation claim filed against him. The court of appeals affirmed the denial of the motion to dismiss, holding that the petitioner’s allegedly defamatory communications did not relate to a “matter of public concern.” The appellate court found that, if the allegations had appeared in the local community newspaper instead of in an e-mail and blog post by a lone resident, few would question whether they raised a “matter of public concern.” The TCPA made no distinctions based on the identity of the speaker who claimed its protections. Quite to the contrary, its stated purpose was “to encourage and safeguard the constitutional rights of persons to speak freely.” The petitioner indeed spoke very freely. It remained to be seen whether his statements would subject him to liability for defamation. The court held that the petitioner should have been allowed to test the respondent’s defamation claim with a motion to dismiss because his allegedly defamatory statements related to a “matter of public concern” as defined by the TCPA. Because the court of appeals concluded that the petitioner did not satisfy his initial burden to establish the applicability of the TCPA under section 27.005(b), it did not proceed to decide whether the respondent established a prima facie case for each essential element of its defamation claim under section 27.005(c) or whether the petitioner established a valid defense under section 27.005(d). The court therefore remanded the case to the court of appeals to make the determinations.


The appellate court found that an individual could not rely upon the Fifth Amendment privilege to avoid producing the records of a collective entity which were in his possession in a representative capacity, even if those records might incriminate him personally.
In re Russo
Appellate: Civil, Constitution
Texas 14th Court of Appeals
April 27, 2018
14-18-00228-CV
Tracy Christopher
Published
The relator filed a petition for writ of mandamus in the instant court, his second relating to the instant discovery dispute. In the petition, the relator asked the instant court to compel the Honorable presiding judge of the 295th district court, to vacate her March 20, 2018 order which compelled the relator to produce certain documents for which the relator had asserted an act-of-production privilege under the Fifth Amendment of the United States Constitution. The appellate court found that an individual could not rely upon the Fifth Amendment privilege to avoid producing the records of a collective entity which were in his possession in a representative capacity, even if those records might incriminate him personally. The relator had not shown that the documents he withheld were not records of a corporate entity within his possession or that the Fifth Amendment act-of-production privilege applies to those documents. Accordingly, the court denied the relator's petition for writ of mandamus and lift the appellate court's partial stay of the March 20, 2018 order.


The trial court did not error by denying the appellant’s request for counsel and the court dismissed the appellant’s other issues for want of jurisdiction.
Weems v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 26, 2018
14-17-00443-CR
John Donovan
Published
A jury found appellant guilty of the offense of murder, and assessed punishment at life imprisonment. Pro se appellant challenged the trial court’s order denying his post-conviction motion for DNA testing. The appellate court observed that the trial court had evidence that the fireplace tool had been previously tested for DNA but no biological material existed and that identity was not an issue in that case. The evidence of record supported the trial court’s determination that the appellant had failed to show, by a preponderance of the evidence, that he would not have been convicted if exculpatory results had been obtained through DNA testing. The trial court did not err in denying the appellant’s motion for DNA testing. The appellant’s issue challenging the trial court’s denial for DNA testing was overruled. Further, the evidence of record supported the trial court’s determination that the appellant has failed to show reasonable grounds for the appointment of counsel under Article 64.01(c) of the Code of Criminal Procedure. The appellant failed to demonstrate two of the statutory preconditions to obtaining DNA testing under Chapter 64, specifically that biological material still existed and that identity was or was an issue in the case. The appellant’s issues related to the indictment and jury charge were beyond the scope of Chapter 64. Thus, the court did not have jurisdiction under Chapter 64 to consider. Moreover, the time for presenting those claims in a direct appeal has long since expired. Thus, the court dismissed the appellant’s other issues for want of jurisdiction.


The trial court reasonably found that the appellant did not establish deficient performance by his plea and Presentence Investigation-hearing attorneys. Thus, the trial court did not abuse its discretion when it denied the appellant’s motion for new trial.
Johnson v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 26, 2018
14-16-00487-CR
J Brett Busby
Published
The appellant was charged with engaging in organized criminal activity by fraudulently using and possessing at least ten but less than fifty items of identifying information, including information belonging to elderly persons at least 65 years of age. The appellant pleaded guilty without an agreed punishment recommendation and the trial court subsequently sentenced him to sixteen years in prison. The appellate court concluded that the record established that the instant was not a plea-bargain case, nor was there an agreed sentencing recommendation when the appellant pleaded guilty. The record did not otherwise show that the appellant had waived his right to appeal. The trial court reasonably could have found that the appellant did not establish deficient performance by his plea and Presentence Investigation-hearing attorneys. Thus, the trial court did not abuse its discretion when it denied the appellant’s motion for new trial. Further, because the appellant’s arguments challenging the trial court’s assessment of the summoning witness/mileage fee were identical to the arguments raised and rejected in Merrit, and the relevant facts did not differ materially from those in Merrit, the court rejected the appellant’s arguments for the same reasons stated in Merrit. Accordingly, the judgment was affirmed as modified.


Because the appellant failed to make the required showing of either deficient performance or prejudice, his claim of ineffective assistance of counsel failed.
Jackson v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 26, 2018
14-16-00050-CR
Martha Hill Jamison
Published
The instant appeal concerned allegations of ineffective assistance of counsel at both the trial and appellate levels. The appellant pleaded guilty to aggravated robbery and sentenced appellant to 20 years in prison. The appellate court concluded the appellant had failed to rebut the strong presumption that trial counsel’s actions were reasonably professional and motivated by sound trial strategy. He had therefore failed to meet the first prong of Strickland v. Washington, 466 U.S. 668, 686 (1984) by showing counsel’s performance was deficient because he failed to object to the evidence of extraneous offenses at the PSI hearing. Appellant had not established on appeal that deferred adjudication probation was not an option at the time of appellant’s guilty plea and sentencing. Because any prejudice from appellate counsel’s failure to obtain a hearing and a ruling on the motion for new trial was dependent on the merits of the motion, the court further concluded that appellant had failed to show actual prejudice from appellate counsel’s failure. The appellant did not complain that he was not appointed appellate counsel during the period for filing a motion for new trial. Instead, he complained that he received ineffective assistance from his appointed appellate counsel after the motion for new trial was filed. His claim was therefore subject to an analysis for prejudice under Strickland, not a harmless error analysis as under Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007) and its progeny. The court concluded that appellant failed to show actual prejudice from appellate counsel’s failure to obtain a hearing and a ruling on the motion for new trial. Judgment affirmed.


The trial court properly designated the complainant’s mother and the forensic interviewer as outcry witnesses because each was the first person to whom the child complained about one of the charged offenses in a discernible manner.
Rosales v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 19, 2018
14-16-00764-CR
J Brett Busby
Published
The appellant challenged his conviction for two counts of super-aggravated sexual assault of a child. The appellate court found that the trial court acted within its discretion in holding the jury for deliberations for seven and a half hours until it reached its verdict, and in denying the request for an Allen charge. The trial court properly designated the complainant’s mother and the forensic interviewer as outcry witnesses because each was the first person to whom the child complained about one of the charged offenses in a discernible manner. Even if the designations were error, however, those errors were harmless because the testimony was cumulative of other evidence admitted without objection. Accordingly, the court affirmed the trial court’s judgment.


The court rejected the appellant’s argument that the evidence established as a matter of law all vital facts in support of attributing some percentage of causation for the appellant’s injuries to the appellee’s negligence.
Burnett v. Rios
Appellate: Civil, Courts, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
April 17, 2018
14-17-00438-CV
Marc W. Brown
Published
The appellant was driving to the same school where she worked as a teacher’s assistant, when she collided with appellee's vehicle. Both vehicles were drivable. The appellant had surgery to fuse a degenerative herniated cervical disc. The appellant, in a personal-injury car-accident case, challenged a take-nothing final judgment in favor of appellee. The appellate court observed that a favorable answer could have supplied the requisite missing causal connection between the occurrence and the appellant’s injuries. Because the jury was instructed not to reach question number 3 based on its prior answers, the appellant was left without any other finding that would require entry of judgment in her favor on her negligence claim. The record did not reveal that the appellant objected to the trial court’s allegedly defective conduct either verbally or in her written motion for new trial, nor that the trial court expressly or implicitly ruled on her complaint. Thus, the issue was not properly preserved. The evidence was legally insufficient to support the finding if there was a complete absence of evidence of a vital fact. The trial court was barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact. However, the evidence offered to prove a vital fact was no more than a mere scintilla, or the evidence conclusively established the opposite of the vital fact. The reasonable, fair-minded people could reasonably have found that zero percent of the responsibility for causing or contributing to cause the appellant’s injuries was attributable to the appellee. Thus, the court could not conclude that the finding was so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, the trial court's judgment was affirmed.


Neither side had conclusively proved its case with regard to the exclusive-remedy defense. Therefore, the defense remained a question of fact to be decided by the jury.
Berry Contracting, L.P. v. Mann
Employment, Litigation: Personal Injury, Torts
Texas 13th Court of Appeals
April 26, 2018
13-17-00063-CV
Nelda V. Rodriguez
Published
The appellee was injured crossing a road near the refinery, and the appellees filed suit against the appellants. The appellants asserted that the appellees’ suit was barred by the exclusive-remedy defense or comp bar. The trial court granted partial summary judgment in favor of the appellees, disposing of the appellants’ exclusive-remedy defense. The appellate court found that because the instant suit was not based on the appellee’s entitlement to worker’s compensation benefits, and because the instant appeal concerned the exclusive-remedy defense, it was not subject to the Division’s exclusive jurisdiction. The appellants had failed to carry their burden to conclusively prove all elements of its affirmative defense, as the appellants would be required to prove in order to be entitled to summary judgment disposing of the appellees’ claims. Rather, the appellants had simply proved that neither party was entitled to summary judgment on the basis of the employer element. The trial court was within its discretion to deny the appellees’ motion to strike the witness’ affidavit. Because none of the scenarios referred to in Section 408.001(d) of the Labor Code were present there, that section neither applied to the instant case nor provided a basis to affirm summary judgment. Thus, neither side had conclusively proved its case with regard to the exclusive-remedy defense. The defense remained a question of fact to be decided by the jury. Accordingly, the judgment was reversed and remanded.


The offenses alleged in the indictment, proved at trial, and found by the jury, were the practice of medicine in violation of the Act as set forth in Section 165.152 of the occupations code. Thus, the court modified the judgments.
DiRuzzo v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
April 26, 2018
13-16-00638-CR
Dori Contreras
Published
The appellant was convicted on sixteen counts of the illegal practice of medicine, each a third degree felony. Punishment was assessed at four years’ imprisonment and a $1,500 fine for each count, and the trial court ordered the prison terms to run concurrently. The appellate court found that the judgments on appeal each recited that the “statute for offense” was Section 155.001 & 165.153(a)(2)(b) Occupations Code. However, as noted, a third degree felony offense under Section 165.153 required a showing of physical or psychological harm, and no such finding was made by the jury in the instant case. The offenses alleged in the indictment, proved at trial, and found by the jury were the practice of medicine in violation of the Act as set forth in Section 165.152 of the occupations code. Thus, the court modified the judgments to reflect that the statutes for offense were Sections 155.001 and 165.152 of the occupations code. Accordingly, the trial court’s judgments were affirmed as modified therein.


Texas Penal Code, Section 21.16(b), to the extent it proscribed the disclosure of visual material, was unconstitutional on its face in violation of the Free Speech clause of the First Amendment.
Ex parte Jones
Civil Rights, Constitution
Texas 12th Court of Appeals
April 18, 2018
12-17-00346-CR
James T. Worthen
Published
The individual appellant was charged with unlawful disclosure of intimate visual material in violation of Texas Penal Code, Section 21.16(b), commonly known as the “revenge pornography” statute. The instant was an appeal from the trial court’s denial of the appellant’s pretrial Application for Writ of Habeas Corpus, in which he alleged that Section 21.16(b) was unconstitutional on its face because it violated the First Amendment to the United States Constitution. Because the instant appeal presented a facial challenge to a statute, a detailed rendition of the facts was unnecessary for its disposition. The appellate court found that because Section 21.16(b) did not use the least restrictive means of achieving what the court assumed to be the compelling government interest of preventing the intolerable invasion of a substantial privacy interest, it was an invalid content-based restriction in violation of the First Amendment. Its application was not attenuated by the fact that the disclosing person had no intent to harm the depicted person or may have been unaware of the depicted person’s identity. Accordingly, the court concluded that the criminal prohibition Section 21.16(b) created was of “alarming breadth” that was “real” and “substantial.” Furthermore, Section 21.16(b) was an invalid content-based restriction and overbroad in the sense that it violated rights of too many third parties by restricting more speech than the Constitution permits. Accordingly, the court held that Texas Penal Code, Section 21.16(b), to the extent it proscribed the disclosure of visual material, was unconstitutional on its face in violation of the Free Speech clause of the First Amendment. Accordingly, the court reversed the trial court’s order denying the appellant’s Application for Writ of Habeas Corpus.


The trial court erred when it denied the appellants’s motion to compel arbitration. Considering the broad scope of the language in the parties' arbitration agreements, the dispute over whether the appraiser flowed the appraisal method established was an arbitable issue.
Sinclair Grp., Ltd. v. Haggblom
Employment
Texas 9th Court of Appeals
April 12, 2018
09-17-00248-CV
Hollis Horton III
Published
The instant was an the appeal from an order denying a joint motion to compel arbitration of claim related to the dispute with the appellee, an individual who was employed as the manager of the appellant company. The appellant asked the trial court to refer to arbitration concerned primarily with whether the appraiser, who was employed by the parties to evaluate the fair market value of the appellee’s membership interest in the appellant company, followed the method of appraisal set out in the written agreements that he had with the appellant company. The appellate court found that the trial court erred when it denied the appellants’s motion to compel arbitration. Considering the broad scope of the language in the parties’ arbitration agreements, the court concluded that the dispute over whether the appraiser failed to follow the appraisal method established by the parties in their written agreements was an arbitable issue. Accordingly, the court reversed the trial court’s order denying the appellant’s motion to compel arbitration, and remanded the cause to the trial court with instructions to render an order compelling the appellants and the appellees to arbitration to resolve their dispute.


The appellees had no obligation under the Property Code to file a new FED action, to file a new notice to vacate, or to provide any other notice to the appellants prior to execution of the writ of possession.
Hernandez v. Hernandez
Contracts, Damages, Real Property, Torts
Texas 8th Court of Appeals
March 29, 2018
08-17-00141-CV
Gina M. Palafox
Published
The appellant, a tenant pursuant to an alleged oral lease, previously appealed from a judgment granting possession of the subject property to Bank Trust. The Bank Trust executed a writ of possession and took possession. The appellate court dismissed appellant’s appeal as moot. During the pendency of that appeal, the appellees, placed a winning bid via an online auction to purchase the subject property, and they executed a real estate Purchase Agreement for the property the following day. The appellants filed an application for writ of reentry in the Justice Court, Precinct 7, of El Paso County, Texas, alleging that the appellees had unlawfully evicted them and locked them out of the property. The Justice Court denied the application, and the appellants pursued an appeal to the County Court at Law No. 3. They found that title to the property did not convey until the closing. Therefore, the County Court at Law denied the application for writ of reentry and dismissed the cause with prejudice. The appellate court found that the undisputed evidence showed that the closing took place on March 16, 2017, and the appellees satisfied the closing requirements. It was only upon the satisfaction of the closing requirements that the title company released the executed Special Warranty Deed for recording and delivery to appellees. Thus, the appellees had no obligation under the Property Code to file a new FED action, to file a new notice to vacate, or to provide any other notice to the appellants prior to execution of the writ of possession on March 13, 2017. Accordingly, the court affirmed the judgment of the trial court.


The offenses alleged in the indictment, proved at trial, and found by the jury, were the practice of medicine in violation of the Act as set forth in Section 165.152 of the occupations code. Thus, the court modified the judgments.
DiRuzzo v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
April 26, 2018
13-16-00638-CR
Dori Contreras
Published
The appellant was convicted on sixteen counts of the illegal practice of medicine, each a third degree felony. Punishment was assessed at four years’ imprisonment and a $1,500 fine for each count, and the trial court ordered the prison terms to run concurrently. The appellate court found that the judgments on appeal each recited that the “statute for offense” was Section 155.001 & 165.153(a)(2)(b) Occupations Code. However, as noted, a third degree felony offense under Section 165.153 required a showing of physical or psychological harm, and no such finding was made by the jury in the instant case. The offenses alleged in the indictment, proved at trial, and found by the jury were the practice of medicine in violation of the Act as set forth in Section 165.152 of the occupations code. Thus, the court modified the judgments to reflect that the statutes for offense were Sections 155.001 and 165.152 of the occupations code. Accordingly, the trial court’s judgments were affirmed as modified therein.


Texas Penal Code, Section 21.16(b), to the extent it proscribed the disclosure of visual material, was unconstitutional on its face in violation of the Free Speech clause of the First Amendment.
Ex parte Jones
Civil Rights, Constitution
Texas 12th Court of Appeals
April 18, 2018
12-17-00346-CR
James T. Worthen
Published
The individual appellant was charged with unlawful disclosure of intimate visual material in violation of Texas Penal Code, Section 21.16(b), commonly known as the “revenge pornography” statute. The instant was an appeal from the trial court’s denial of the appellant’s pretrial Application for Writ of Habeas Corpus, in which he alleged that Section 21.16(b) was unconstitutional on its face because it violated the First Amendment to the United States Constitution. Because the instant appeal presented a facial challenge to a statute, a detailed rendition of the facts was unnecessary for its disposition. The appellate court found that because Section 21.16(b) did not use the least restrictive means of achieving what the court assumed to be the compelling government interest of preventing the intolerable invasion of a substantial privacy interest, it was an invalid content-based restriction in violation of the First Amendment. Its application was not attenuated by the fact that the disclosing person had no intent to harm the depicted person or may have been unaware of the depicted person’s identity. Accordingly, the court concluded that the criminal prohibition Section 21.16(b) created was of “alarming breadth” that was “real” and “substantial.” Furthermore, Section 21.16(b) was an invalid content-based restriction and overbroad in the sense that it violated rights of too many third parties by restricting more speech than the Constitution permits. Accordingly, the court held that Texas Penal Code, Section 21.16(b), to the extent it proscribed the disclosure of visual material, was unconstitutional on its face in violation of the Free Speech clause of the First Amendment. Accordingly, the court reversed the trial court’s order denying the appellant’s Application for Writ of Habeas Corpus.


The trial court erred when it denied the appellants’s motion to compel arbitration. Considering the broad scope of the language in the parites' arbitration agreements, the dispute over whether the appraiser flowed the appraisal method established was an arbitable issue.
Sinclair Grp., Ltd. v. Haggblom
Employment
Texas 9th Court of Appeals
April 12, 2018
09-17-00248-CV
Hollis Horton III
Published
The instant was an the appeal from an order denying a joint motion to compel arbitration of claim related to the dispute with the appellee, an individual who was employed as the manager of the appellant company. The appellant asked the trial court to refer to arbitration concerned primarily with whether the appraiser, who was employed by the parties to evaluate the fair market value of the appellee’s membership interest in the appellant company, followed the method of appraisal set out in the written agreements that he had with the appellant company. The appellate court found that the trial court erred when it denied the appellants’s motion to compel arbitration. Considering the broad scope of the language in the parties’ arbitration agreements, the court concluded that the dispute over whether the appraiser failed to follow the appraisal method established by the parties in their written agreements was an arbitable issue. Accordingly, the court reversed the trial court’s order denying the appellant’s motion to compel arbitration, and remanded the cause to the trial court with instructions to render an order compelling the appellants and the appellees to arbitration to resolve their dispute.


The appellees had no obligation under the Property Code to file a new FED action, to file a new notice to vacate, or to provide any other notice to the appellants prior to execution of the writ of possession.
Hernandez v. Hernandez
Contracts, Damages, Real Property, Torts
Texas 8th Court of Appeals
March 29, 2018
08-17-00141-CV
Gina M. Palafox
Published
The appellant, a tenant pursuant to an alleged oral lease, previously appealed from a judgment granting possession of the subject property to Bank Trust. The Bank Trust executed a writ of possession and took possession. The appellate court dismissed appellant’s appeal as moot. During the pendency of that appeal, the appellees, placed a winning bid via an online auction to purchase the subject property, and they executed a real estate Purchase Agreement for the property the following day. The appellants filed an application for writ of reentry in the Justice Court, Precinct 7, of El Paso County, Texas, alleging that the appellees had unlawfully evicted them and locked them out of the property. The Justice Court denied the application, and the appellants pursued an appeal to the County Court at Law No. 3. They found that title to the property did not convey until the closing. Therefore, the County Court at Law denied the application for writ of reentry and dismissed the cause with prejudice. The appellate court found that the undisputed evidence showed that the closing took place on March 16, 2017, and the appellees satisfied the closing requirements. It was only upon the satisfaction of the closing requirements that the title company released the executed Special Warranty Deed for recording and delivery to appellees. Thus, the appellees had no obligation under the Property Code to file a new FED action, to file a new notice to vacate, or to provide any other notice to the appellants prior to execution of the writ of possession on March 13, 2017. Accordingly, the court affirmed the judgment of the trial court.


The court found the Texas Tort Claims Act’s definition of governmental unit, which determined the right of interlocutory appeal, was applicable to open-enrollment charter schools under the CSA and immunity was not waived
Neighborhood Ctr. Inc. v. Walker
Contracts, Employment, Gov't/Administrative
The Supreme Court of Texas
April 13, 2018
16-0897
Nathan L. Hecht
Published
Respondent was an employee of the school and previously complained that something was making her, and the children in her classroom, sick. She filed a worker's compensation claim and was later terminated on the grounds of issues with her teaching. The respondent brought an action for wrongful termination based on the whistleblower act and the school argued immunity barred the action. The court denied it and the school appealed. The court concluded that the whistleblower act's waiver of immunity for local governmental entities, including public school districts, covered open-enrollment charter schools and also that the Charter School Act (CSA) waived immunity from suit for Whistle Blower Act (WBA) violations.  Further, that was the state of the case law when the case came before the appellate court in 2015. However, where the WBA did not apply to open-enrollment charter schools, the result in controlling precedent remained unchanged because the Texas Tort Claims Act’s definition of “governmental unit”, which determined the right of interlocutory appeal, was applicable to open-enrollment charter schools under the CSA. The same was true for the result in LTTS III case because the Local Government Contract Claims Act was listed in the CSA. Only the appellate court’s decision in Pegasus was inconsistent with hearing courts determination. Accordingly, the judgment of the appellate court was reversed and judgment was rendered that the respondent take nothing.


The court found that the trial court erred in making some declarations but not all, therefore, the court remanded and reversed for a new judgment that then contained the declarations consistent with the courts opinion
Abdullatif v. Choudhri
Business, Contracts
Texas 14th Court of Appeals
March 30, 2018
14-16-00116-CV
Kem Thompson Frost
Published
Appellant appealed the trial courts determination that found the jury answered positively on an issue for the appellee, that the appellee was the general manager of the partnership, and the courts refusal to clarify ownership rights. A dispute arose when the plaintiff sued the defendant to stop any modification or destruction of a rental property that the plaintiff claimed an interest in, and sought the court to determine the amount of interest if any the parties had in a limited partnership and in the partnerships general partner. Following a jury trial, the trial court disregarded the jury’s finding in response to a question regarding the appellants would return a sum certain to the appellee, signed a judgment making various declarations as to the purported assignee’s interests in the two entities at issue, and awarded trial and appellee attorney’s fees to the purported assignee. Additionally, the appellate court found that the trial court did not err in disregarding the jury finding. However, as for the declarations that were at issue on appeal, the trial court erred in making some and did not err in making others. Therefore, the court reversed the trial court’s judgment and remanded for a new judgment containing declarations consistent with the court's opinion. Because the court's disposition on appeal substantially affected the trial court’s judgment, the court also reversed and remanded the attorney's fees awards. Accordingly, the court affirmed the judgment in part and reversed in part.


The court found that the respondent was unable to rebut the constitutionality presumption of the statute where there was no support for the respondents argument in the constitutional language or case precedent
EXLP Leasing, LLC v Galveston Cent. Appraisal Dist.
Gov't/Administrative, Procedure, Tax
The Supreme Court of Texas
March 02, 2018
15-0683
Jeffery Brown
Published
Both parties sought review of the court's determination where both parties were denied their motions for summary judgment and the court reaffirmed the prior court's order of proper situs of the property in issue. The legislation at issue stated that taxation was to be equal and uniform and that the property taxed was to be taxed in proportion to its value. The respondent argued that the formula used to determine the taxable value of the property at issue was located within its jurisdiction and that the formula used to determine the value valued the property at a fraction of the market value was unconstitutional. The court found that the respondent did not carry its burden to rebut the presumed constitutionality with the argument that the legislature must have employed methodology that approximated actual market value where there was no support in either the plain text of the constitution or in precedent. The trial court erred in holding the valuation statutes unconstitutional, and the appellate court erred in not reversing the trial court’s judgment. Further, the respondent did not argue the opposing county should not be the petitioners’ taxable situs if the statutory framework described was accepted, it did not present controverting evidence that the petitioners’ yard was not where the leased compressors were located and maintained. But the petitioners offered summary judgment evidence that the earlier determined business location was the facility where the compressors at issue were assigned to.The court concluded the petitioners met its summary judgment burden. Accordingly, the judgment was reversed.


The court found the Texas Tort Claims Act’s definition of governmental unit, which determined the right of interlocutory appeal, was applicable to open-enrollment charter schools under the CSA and immunity was not waived
Neighborhood Ctr. Inc. v. Walker
Contracts, Employment, Gov't/Administrative
The Supreme Court of Texas
April 13, 2018
16-0897
Nathan L. Hecht
Published
Respondent was an employee of the school and previously complained that something was making the children and her, in her classroom sick she filed a workers compensation claim and was later terminated on the grounds of issues with the respondents teaching. The respondent brought an action for wrongful termination based on the whistleblower act and the school argued immunity barred the action, the court denied and the school appealed. The court concluded that the whistleblower act's waiver of immunity for local governmental entities, including public school districts, covered open-enrollment charter schools and also that the CSA waived immunity from suit for WBA violations.  Further, that was the state of the case law when the case came before the appellate court in 2015. However, the WBA did not apply to open-enrollment charter schools, the result in controlling precedent remained unchanged because the Texas Tort Claims Act’s definition of “governmental unit”, which determined the right of interlocutory appeal, was applicable to open-enrollment charter schools under the CSA. The same was true for the result in LTTS III because the Local Government Contract Claims Act was listed in the CSA. Only the appellate court’s decision in Pegasus was inconsistent with hearing courts determination. Accordingly, the judgment of the appellate court was reversed and judgment was rendered that the respondent take nothing.


The court found the challenged testimony that concerned photos of the counterfeit bills rather than the bills themselves was moot as the court had already upheld the admission of the actual bills by overruling the appellant’s sixth issue
Qualls v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
April 12, 2018
02-16-00214-CR
Mark T. Pittman
Published
Defendant was convicted of forgery by possession with intent to pass a forged writing and sentenced to thirty-three years as a habitual offender. The defendant appealed and argued the evidence was insufficient to corroborate the convictions and testimony. The court found that the evidence in the record sufficiently supported a finding that State’s Exhibit 18  and 20 contained the counterfeit bills collected from different store. The evidence also sufficiently traced the exhibits from their respective stores to the hands of the investigating officer, and finally to the prosecutor at trial. Error in the admission of the photographs of the items included in State’s Exhibit 18, if any, was therefore harmless. Furthermore, the trial court’s erroneous admission of evidence would not require reversal when other such evidence was received without objection before or after the complained-of ruling. Moreover, to the extent the appellant’s issue focused on the challenged testimony, concerning photos of the counterfeit bills rather than the bills themselves, the court had already upheld the admission of the actual bills by overruling the appellant’s sixth issue.  Accordingly, the trial court’s judgment was affirmed.


The court found that summary judgment was improper based on jurisdiction and immunity, the immunity barred suit as without jurisdiction unless the legislature expressly waived that immunity
West Odessa Volunteer Fire Dep't, Inc. v. Contreras
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Torts
Texas 11th Court of Appeals
April 12, 2018
11-16-00304-CV
John M. Bailey
Published
Appellant appealed the court's denial of a motion for summary judgment. Appellees brought a wrongful death and survival action against the appellant and alleged that the appellant negligently caused the death of two deceased when two people collided with a parked brush truck owned by the appellant department. The appellant moved for summary judgment and asserted the appellants were protected from the claims by immunity, the court denied the motion, appellants appealed. The court found that the summary judgment evidence conclusively established that the appellant's immunity claim was for an all-volunteer fire department and was not waived under the Texas Tort Claims Act. Thus, the trial court erred when it denied the appellant's motion for summary judgment and plea to the jurisdiction. Further, the court sustained the appellant's sole issue on appeal. With respect to the correct disposition, the appellees asserted that the court should remand the matter in order to allow them the opportunity to amend their pleadings. However, the court determined that the appellant had conclusively negated the existence of a jurisdictional fact. Thus, a remand would not be proper. Accordingly, the court reversed the trial court’s order, and the court rendered judgment that the case against the appellant was dismissed for lack of jurisdiction.  


The summary judgment record contained a valid guaranty agreement signed by the appellant and the Guaranty recited the terms of the agreement, and the terms of the underlying agreement, on the face of the instrument
Norris v. Texas Dev. Co.
Contracts
Texas 14th Court of Appeals
April 12, 2018
14-16-00802-CV
Kem Thompson Frost
Published
The appellant signed a guaranty agreement, guaranteeing corporation's deferred rental payments to appellee corporation in the amount of $337,944, to be paid in twelve monthly instalments (the “Guaranty”). The appellee filed a traditional motion for summary judgment against both the appellants. The trial court awarded attorney’s fees to the appellee corporation against both the appellants, in different amounts. The individual appellant challenged the trial court’s judgment. The appellate court found that the Guaranty provided that in the event that the actual amount of deferred base rent was less than $337,944.00, then the agreement would be adjusted accordingly. Further, the Guaranty identified the amount guaranteed and the terms of payment. The Guaranty was not conditioned upon the parties’ acceptance of the specifics of the Deferred Base Rent Agreement, and under the instrument’s plain terms, the individual appellant guaranteed $337,944.00 or the amount of the deferred base rent if that amount was less than $337,944.00. Furthermore, the summary-judgment record contained a valid guaranty agreement signed by the appellant. The Guaranty recited the terms of the agreement, and the terms of the underlying agreement, on the face of the instrument. Thus, by its motion for summary judgment, Texas Development Company conclusively proved each element of its claim and the existence and ownership of the Guaranty, the terms of the underlying contract, the occurrence of the condition on which liability was based, and the guarantor’s failure or refusal to perform the promise. Accordingly, the trial court's judgment was affirmed.


The trial court erred in granting the motion to quash, where it should have directed the State to amend Counts II and III, the State lacked statutory authority to appeal the granting of the motion to suppress because that ruling was never reduced to writing
State v. Martinez
Criminal, Evidence, Procedure
Texas 13th Court of Appeals
April 12, 2018
13-16-00659-CR
Dori Contreras Garza
Published
  The appellee was indicted by a grand jury on one count of theft and two counts of abuse of official capacity. The trial court granted the appellee’s motion to suppress certain evidence and a motion to quash all three counts of the indictment. Appellant appealed. The appellate court found that the prosecutor argued that the value of the marijuana could not have been reasonably ascertained, defense counsel argued that it could, but that there was no evidence the value was $500 or more. The trial court agreed with defense counsel, but as noted, the court lacked the authority to quash Count I on the basis of lack of evidence. For the same reason, the trial court lacked authority to quash Counts II and III on that basis, as alleged in the appellee’s written motion to quash, that there was legally and factually insufficient evidence. Further, an indictment alleging an offense under TEX. PENAL CODE ANN. section 39.02(a)(1) must have specified which law or laws relating to the public servant’s office or employment were allegedly violated. The trial court must have ordered the State to amend Count III on remand. Further, the court found that, though the trial court orally granted the appellee’s motion to suppress at the hearing, no written ruling thereon appeared in the record. Therefore, the State lacked statutory authority to appeal that ruling, and the court lacked jurisdiction over that part of the State’s appeal. Accordingly, the court dismissed for want of jurisdiction that portion of the State’s appeal seeking to challenge the trial court’s granting of the appellee’s motion to suppress, reversed the trial court’s judgment granting the appellee’s motion to quash all three counts of the indictment and remanded.


The court found that the Bank’s evidence proved that it was entitled to judicial foreclosure because of the appellants’ default, and the appellants’ evidence regarding the forbearance agreement did not disprove their default as a matter of law
McKeehan v. Wilmington Sav. Fund Soc'y
Contracts, Real Property
Texas 1st Court of Appeals
April 12, 2018
01-16-00534-CV
Sherry Radack
Published
 Appellant executed an equity note in favor of the company in order to refinance his homestead and levied the homestead as a non-recourse security for the note, subsequently, the appellant fell behind on the mortgage payments. The appellee company sought an expedited, non-judicial foreclosure of the loan pursuant to Texas Rule of Civil Procedure 736. The court granted judicial foreclosure on the real property belonging to the appellants. Both parties appealed, the appellant appealed the directed verdict and the appellee appealed and argued the reduction in damages was improper.  The court found that the Bank’s evidence proved that it was entitled to judicial foreclosure because of the appellants’ default, and the appellants’ evidence regarding the forbearance agreement did not disprove their default as a matter of law, the court found that there was legally sufficient evidence of default. Next, because the appellants did not prove their affirmative defense of prior material breach as a matter of law, the evidence legally supported the trial court’s finding against them on the affirmative defense of prior material breach. Also, the appellee had cited no authority, and the court found none reasoning for use of the doctrine of res judicata. Finally, because the amount of damages the trial court awarded fell within the range supported by the evidence, the court held that it was legally sufficient. Accordingly, the court affirmed the trial court’s judgment.


The court found all of the appellants except for appellant church had the standing to bring the claims that were not barred by ecclesiastical abstention, and on remand, the appellant church may have had standing with regard to some of the severed claims
The Episcopal Church v. Salazar
Real Property
Texas 2nd Court of Appeals
April 05, 2018
02-15-00220-CV
Bonnie Sudderth
Published
Appellants appealed the order of summary judgment in favor of the appellees on a cause of action over real property and who had the right to control the property, the corporation that owned legal title or the corporation that held the property in trust for the church. Appellees moved for and were granted summary judgment, appellants appealed. The appellate court found that the appellees’ actions, as corporate trustees, were invalid under Texas law after disaffiliation in 2008. Further, Under Texas Corporations Law, the articles of incorporation and bylaws at issue were amenable to amendments but the plain language used in 2006 known prior to disaffiliation in 2008 meant that the appellant church-affiliated EDFW controlled appointment to the Corporation’s board. To the extent that the Canon could be construed as attempting to create a trust, it did not impose one on EDFW’s property in favor of the appellant church. Next, Equitable title to the property in the 1947 deed was held for the appellant church-affiliated EDFW; the Corporation held legal and equitable title to the property in the 1950 deed. Finally, all of the appellants except for appellant church had the standing to bring the claims that were not barred by ecclesiastical abstention, and on remand, the appellant church may have had standing with regard to some of the severed claims. Accordingly, the court affirmed in part and reversed in part the trial court’s judgment and remanded.


The court found that the appellant received notice of the dismissal less than twenty days after entry and failed to timely file a motion, therefore the motion was denied
Hanash v. Walter Antiques, Inc. And Walter
Appellate: Civil, Courts, Procedure
Texas 8th Court of Appeals
March 09, 2018
08-16-00054-CV
Gina M. Palafox
Published
The appellant filed a claim for breach of contract, fraud, conversion, theft of property, and attorneys’ fees, and then failed to file any further pleadings. The court notified both parties a dismissal hearing, and the appellant attorney failed to show, the court then entered the dismissal. The appellant’s attorney filed a verified motion to reinstate. The appellant challenged the trial court’s order that jurisdiction had expired as of January 14, 2016. The court found that the date the party received notice or acquired actual knowledge must be more than twenty days after the dismissal order was signed, unless a party established that notice was not received or that it had no knowledge of the dismissal order, the beginning of the period of the trial court’s plenary jurisdiction was not extended and the plenary jurisdiction expired thirty days after the trial court signed its dismissal order. The court found that the trial court did not abuse its discretion in determining that the appellant had notice of the dismissal on December 21, 2015, less than twenty days after the entry of the dismissal order, under Rule 165a(3) the appellant had thirty days to file a motion to reinstate. Because the appellant did not file a motion until sixteen days after the thirty-day filing deadline expired, the motion was not timely filed. Accordingly, the trial court's judgment was affirmed.


The trial court determined that when the admissibility of a video was at issue, the proper exercise of discretion required the trial court to actually view video evidence before ruling on its admissibility
Diamond Offshore Serv. Ltd. v Williams
Damages, Evidence, Litigation: Personal Injury
The Supreme Court of Texas
March 02, 2018
16-0434
Eva M. Guzman
Published
Appellant appealed the trial courts order in a personal injury case resulting from a workplace accident that granted the appellee damages as well as pain and suffering. The appellant appealed and argued the suppression of videotape evidence was in error. The appellee was injured while by himself at work and sued for damages and claimed that he was unable to conduct certain tasks, the appellant offered and was denied the opportunity to present evidence of the appellee participating in those activities. The court found that except in rare circumstances not present in the case, when the admissibility of a video was at issue, the proper exercise of discretion required the trial court to actually view video evidence before ruling on its admissibility. While trial courts had discretion in making evidentiary rulings, the court could not defer to discretion that was not actually exercised. The video should not have been excluded, and its exclusion was harmful because it went to the heart of the case. Accordingly, the court reversed the trial court judgment and remanded for a new trial.