The appellee presented factually sufficient evidence that the appellant breached the contract by failing to properly supervise the dismantling, leading to the damage of the metal components of the building
AKIB Constr. Inc. v. Shipwash
Appellate: Civil, Contracts, Damages, Procedure, Real Property, Torts
Texas 1st Court of Appeals
August 01, 2019
01-18-00135-CV
Evelyn V. Keyes
Published
The appellee sued the appellant company for breach of contract, arising out of an agreement for the appellant to facilitate the dismantling, moving, and reassembly of a steel building. The appellant filed a counterclaim for breach of contract. After a bench trial, the trial court rendered judgment in favor of the appellee, finding that the appellant breached the parties’ contract and awarded the appellee $30,424.50 in damages, plus pre and post judgment interest, attorney’s fees, and court costs. The appellate Court found that the appellee was not required to present expert testimony to establish that the appellant breached the contract by failing to properly supervise the dismantling of the building. Further, the evidence in the record supporting the fact findings was not so weak or contrary to the overwhelming weight of the evidence as to make the findings and the trial court’s judgment based on those findings, clearly wrong and manifestly unjust. The Court therefore held that the appellee presented factually sufficient evidence that the appellant breached the contract by failing to properly supervise the dismantling, leading to the damage of the metal components of the building. Furthermore, all of the damages that the appellee sought at trial, and was awarded by the trial court in its final judgment, were out-of-pocket expenditures that he made in reliance on the contract that he signed with the appellant. Out-of-pocket damages were general or direct damages that were not required to be specially pleaded. Nevertheless, the appellee pleaded for “actual or economic damages for out of pocket damages.” The trial court did not err by awarding the appellee those damages. Accordingly, the Court affirmed the judgment of the trial court.

The appellee’s premises-liability claim fell within the scope of the CBA, as the claim involved the interpretation and application of the appellant rules pertaining to the terms and conditions of employment of the appellants
Houston NFL Holding L.P. v. Ryans
ADR, Contracts, Employment, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
August 01, 2019
01-18-00811-CV
Laura Carter Higley
Published
The following was an accelerated interlocutory appeal from an order denying a motion to compel arbitration under the Federal Arbitration Act. The appellee, a former professional football player for the Philadelphia Eagles, suffered a career-ending injury while playing an away game against the Houston Texans. The appellee sued the appellants in the state court, asserting a claim for premises liability as an invitee. The appellants filed a motion to compel arbitration under the Collective Bargaining Agreement (CBA) between the National Football League’s club owners and players’ union, and the trial court denied the motion. The appellate Court held that the appellee’s premises-liability claim fell within the scope of Article 43 of the CBA because the claim involved the interpretation and application of the appellant rules pertaining to the terms and conditions of employment of the appellant players. Further, because the premises-liability claim was within the scope of the CBA, the arbitration provision of the CBA applied and arbitration was required. The trial court therefore abused its discretion in denying the appellants’ motion to compel arbitration. Accordingly, the Court reversed and remanded.

An attorney was not allowed to withdraw representation from a juvenile client after filing an Anders brief in the trial court
In re T.M.
Criminal, Gov't/Administrative, Juvenile, Procedure
Texas 5th Court of Appeals
August 01, 2019
05-18-00644-CV
David L. Bridges
Published
The appellant juvenile appealed the trial court’s order modifying disposition with the Texas Youth Commission (TYC) commitment for a period of one year. The appellant’s appointed counsel had filed a motion to withdraw, along with an Anders brief, asserting the appeal was without merit and there were no arguable grounds for reversal. The appellate Court affirmed the trial court’s judgment. However, the Court had not yet considered whether counsel was permitted to withdraw in a juvenile case after filing an Anders brief. The appellate Court agreed with the majority of appellate Courts that had addressed the issue, concluding that the counsel’s obligations to the appellant had not yet been discharged. If the appellant, after consulting with counsel, desired to file a petition for review, counsel should timely file with the Texas Supreme Court a petition for review that satisfied the standards for an Anders brief. Thus, the Court denied the counsel’s motion to withdraw. Accordingly, the Court affirmed the trial court’s judgment.  

The appellant individuals and the appellant patient presented more than a scintilla of evidence raising a genuine issue of material fact on their gross negligence claims
Mason v. Amed-Health, Inc.
Health Care, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
August 01, 2019
01-18-00045-CV
Evelyn V. Keyes
Published
The following was a medical liability claim filed against a hospice-care company and its medical director (the appellee company and the appellee doctor) by the appellants (the appellant patient and the appellant individuals). The appellant individuals and the appellant patient sued the appellee company and the appellee doctor for negligence arising out of a fire that occurred when the appellant patient smoked a cigar while using oxygen prescribed by the appellee doctor and provided by the appellee company. The trial court granted summary judgment in favor of the appellee company and the appellee doctor and dismissed the appellant individuals’ and the appellant patient’s claims. The appellate Court observed that the summary judgment evidence demonstrated a duty on the part of the appellee company and the appellee doctor to warn the appellant individuals of the hazard posed by the oxygen delivered to their home and used to treat the appellant patient and a duty to take reasonable measures to lessen foreseeable risks to the appellant patient’s caretaker under the circumstances known to his health-care providers. Further, the appellant individuals and the appellant patient presented more than a scintilla of evidence raising a genuine issue of material fact on the element of breach. Next, there was at least some evidence that the appellee doctor’s and the appellee company’s treatment of the appellant individual resulted in his having a diminished mental capacity on the night of the fire and that his cognitive impairment was a substantial factor in causing the fire. Finally, summary judgment on the appellant individuals’ and the appellant patient’s negligence claims was improper because there were material questions of fact on all essential elements of that claim. Thus, there were material issues of fact remaining on their gross negligence claim. Accordingly, the Court reversed the judgment of the trial court and remanded.

The appellant police officers were acting within the scope of their employment when investigating the appellees' report of a stolen vehicle and providing an interview to the media
Rivera v. Garcia
Appellate: Civil, Procedure, Torts
Texas 4th Court of Appeals
July 31, 2019
04-18-00842-CV
Patricia O. Alvarez
Published
Appellees filed suit for defamation, malicious prosecution, and intentional infliction of emotional distress against appellants, both deputies with the Sheriff’s Office, related to the appellees' report of a stolen vehicle and for providing a media interview regarding the appellees' claims. Appellants appealed alleging their actions were within the scope of their employment and the trial court lacked subject matter jurisdiction. The appellate Court found that when the first appellant prepared the affidavits, he was acting in his capacity as a deputy of the Sheriff’s office and he was discharging the duties assigned to him by the Assistant Chief Deputy. Both officers were acting in the scope of their employment regarding the investigation of the appellees. Finally, an officer’s scope of employment included the activities performed in his role as officer, including investigating, arresting, and answering media inquiries. Therefore, when the second appellant was interviewed by the media, he was acting in his capacity as a deputy of the Sheriff’s Office. As Sheriff testified, the second appellant was discharging the duties assigned to him even without the sheriff directly authorizing him to do so. Thus, the second appellant was acting in the scope of his employment regarding his contact with the media. Accordingly, the Court reversed the trial court’s October 31, 2018 order denying the motion to dismiss the appellees suit for lack of subject matter jurisdiction.

Case law established that the legislature's elevation of section 308.04(b)(2)(A) for punishment for first-time offenders convicted of committing evading arrest with a mother vehicle was appropriate
Fulton v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 31, 2019
04-18-00529-CR
Patricia O. Alvarez
Published
Appellant was convicted of evading arrest with a vehicle and pled true to two enhancement paragraphs. The trial court assessed punishment at twenty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate Court found that In Ex parte Jones, the Texas Court of Criminal Appeals addressed the 2011 Legislature’s elevation of section 308.04(b)(2)(A)’s punishment for first-time offenders convicted of committing evading arrest with a motor vehicle to a third-degree felony. Jones, indicted for evading arrest with a motor vehicle, challenged the validity of a provision within that amendment that elevated the range of punishment for offenders committing the offense of evading arrest with a motor vehicle without having committed a prior evading arrest. The Court explained the provisions’ purpose was to increase criminal penalties for offenses related to motor vehicles to better protect law enforcement and the public from actors who evaded arrest. Although the appellant contended the different versions were irreconcilable, the amendment could be harmonized because each amendment made a substantive change the other did not. The appellant in the case at bar did not contest the jury’s finding that he was intentionally fleeing from a person he knew was a peace officer attempting to lawfully arrest or detain him. The appellant also did not challenge the jury’s finding that he used a vehicle while committing the offense of evading arrest. The Court previously had held that the use of a vehicle elevated evading arrest to a third-degree felony, without the added requirement of proof of a prior conviction. Accordingly, the judgment was affirmed.

The revocation of the appellant's probation after the trial court determined the appellant had committed assault, and consequently violated a condition of his probation, was not a violation of due process
Smith v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 31, 2019
04-18-00604-CR
Patricia O. Alvarez
Published
The appellant was found guilty of failing to register as a sex offender, repeat offender, and sentenced to two years’ confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of two years. The appellee subsequently filed a motion to revoke appellant's probation based on an alleged assault appellant had committed. The appellate Court found that the trial court could have reasonably determined that, especially in light of the victim’s responses to the questions asked by the trial court, the appellant’s pulling of the victim by the hair and her falling on the rocks caused physical pain to the victim. Further, the Court could not conclude the trial court abused its discretion in finding the evidence supported, by a preponderance of the evidence, that the appellant violated Condition No. 1 of the terms of his probation by assaulting the victim. The evidence was thus sufficient to support the trial court’s judgment. The Court also determined that the appellant's revocation satisfied due process. The trial court orally stated the sole basis for the revocation was that the assault on the victim violated Condition No. 1 of his probation, which was also the sole ground on which the State moved for revocation; the judgment corresponded to the trial court’s oral pronouncement on the same basis. Thus, because the information necessary to determine the basis of the appellant’s revocation was apparent from the record, the court concluded due process was satisfied. Accordingly, the trial court’s judgment was affirmed.

The trial court had subject matter jurisdiction over the forfeiture proceeding, as the trial court reasonably determined that the State’s case commenced within thirty days of the seizure
One Thousand Four Hundred Thirty-Seven Dollars ($1, 437.00) v. State
Appellate: Civil, Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 31, 2019
04-18-00601-CV
Patricia O. Alvarez
Published
The State filed an Original Notice of Seizure and Intention to Forfeit alleging $1437.00 in cash and a vehicle identification number 2T1BURHE0GC627119, was seized from the appellant. The State’s Notice of Seizure was filed pursuant to Chapter 59 of the Texas Code of Criminal Procedure. The State’s notice alleged the cash and the vehicle were used or intended to be used in the commission of a felony under Chapter 481 of the Health and Safety Code or were the proceeds gained from the commission of a felony under the same chapter. The State filed a motion for default judgment averring the appellant failed to timely file an answer. After exhausting the administrative remedies, the appellant appealed the trial court’s order denying his motion for new trial to overturn a default judgment entered against him in a civil forfeiture proceeding. The appellate Court found that the longest time-period between the date of arrest and the filing of the notice of forfeiture was twelve days. Thus, the Court could not say the trial court abused it discretion in finding the appellant could reasonably ascertain the nature and basic issues of the State’s claim, including that the amount of time that elapsed from the seizure to the filing of the notice was within the thirty days. Further, having concluded that the trial court could reasonably determine the State’s case commenced within thirty days of the seizure, the Court further concluded that the trial court had subject matter jurisdiction over the forfeiture proceeding. Furthermore, because the appellant failed to establish all three elements under Craddock, the Court could not conclude that the trial court erred in denying his motion for new trial. Accordingly, the Court affirmed the trial court’s judgment.

Because the record did not support the appellant’s assertion that he was entitled to an expunction on the driving while intoxicated charge, the trial court’s judgment was affirmed
Ex Parte Petitto
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 31, 2019
04-18-00539-CV
Patricia O. Alvarez
Published
The appellant entered a plea of nolo contendere to a possession of marijuana offense. The trial court deferred a finding of guilt and placed the appellant on deferred adjudication probation for a period of nine months. Having successfully completed his deferred adjudication probation, the State dismissed the possession of marijuana charge. The State also dismissed the driving while intoxicated charge based on the appellant having successfully completed a pretrial intervention program. The appellant appealed the trial court’s order denying his petition for expunction. The appellate Court observed that the expunction statute necessarily required an inquiry into any and all offenses or charges stemming from the same transaction from which an individual sought an expunction, because the statutory scheme of an expunction required the trial court to review the entire criminal transaction surrounding the arrest. Thus, because the appellant filed the petition for expunction, the State could properly ask questions pertaining to all related offenses that arose from the same transaction for which the individual was arrested. Next, the possession of marijuana and driving while intoxicated charges were related offenses arising out of the same transaction. By excluding driving while intoxicated from the deferred adjudication statute, but allowing a dismissal under the pretrial intervention program, the Court presumed the legislature intended a just and reasonable result. Finally, because the record did not support the appellant’s assertion that he was entitled to an expunction on the driving while intoxicated charge, the Court affirmed the trial court’s judgment.

The non-accomplice evidence showed more than the appellant's mere presence at the scene of the attack on the victim and tended to connect the appellant with the commission of the offense of felony murder
Hernandez v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 31, 2019
04-18-00036-CR
Liza A. Rodriguez
Published
The appellant was found guilty of felony murder and sentenced to forty-five years of imprisonment. Appellant challenged the judgment of conviction, arguing that the accomplice witness rule barred his conviction. The appellate Court disagreed, finding that the non-accomplice evidence showed more than the appellant's mere presence at the scene of the attack on the victim. There existed testimony that the appellant and other assailants had been present at the establishment where the victim was attacked and were the ones responsible for the murder. Further, photos and text messages also corroborated that the appellant and the other assailants were at the location of the murder when it occurred. The Court then noted that some of the witness testimony was inadmissible hearsay and could not be considered as corroboration evidence. However, like in Jackson v. Virginia, the Court noted that when determining whether there was sufficient evidence to corroborate accomplice-witness testimony, the Court was not required to consider whether the evidence was properly admitted. The Court thus held the non-accomplice witness evidence tended to connect the appellant with the commission of the offense of felony murder.

It was undisputed that the amount of fees awarded by trial court included fees for preparing for the first appeal to the Court, where appellees were not the prevailing party
Melton v. CU Members Mortg.
Constitution, Contracts, Creditor/Debtor, Damages, Real Property
Texas 3rd Court of Appeals
July 31, 2019
03-18-00363-CV
Gisela D. Triana
Published
In the following dispute concerning the constitutionality of a loan on real property, the appellant challenged the trial court’s grant of summary judgment in favor of the appellees. The appellate Court observed that although the appellant’s declaration may have reflected his changing beliefs, the fact that it did so without offering an explanation rendered it susceptible to the trial court’s conclusion that it was a sham affidavit executed to create a fact issue regarding the property’s value. Further, having confirmed the property’s value by signing the loan agreement, the appellant was estopped from taking a contrary position. Next, the $70,000 did not count toward the constitution’s 80% cap, and the loan complied with section 50(a)(6)(B) of the Texas Constitution. Further, the Court could not agree that reporting delinquent payments to a credit agency was equivalent to averring that a person was exposed to personal liability. Also, the note refered to “accrued and unpaid interest”—interest that was already owed but not yet paid, as the amount to which a prepayment could be applied before applying the remainder to principal. Finally, it was undisputed that the amount of fees awarded by the trial court included fees for preparing for the first appeal to the Court, where the appellees were not the prevailing party. Thus, there was a genuine issue of material fact as to whether the amount of attorney’s fees awarded was reasonable. Accordingly, the judgment was affirmed, reversed and remanded.

The relators did not have an adequate remedy by appeal because the error in ordering the production of privileged documents could not be cured on appeal, therefore, conditional issuance of the writ of mandamus was appropriate
In re Alexander
Business, Constitution, Discovery, Procedure
Texas 14th Court of Appeals
July 30, 2019
14-18-00466-CV
Frances Bourliot
Published
The relators, individually and as co-trustees, filed a petition for writ of mandamus. By a separate filing, the relator joined in the petition. In the petition, the relators asked the court to compel the Honorable, presiding judge of Probate Court No. 4 of Harris County, to vacate his May 2, 2019 order granting the motion to compel production filed by real party in interest (RPI). The appellate Court observed that because the company simultaneously represented all relators on the same matter, the joint client doctrine applied. Further, accepting the RPI’s view of the discoverability of the subject documents would strip the attorney-client privilege and joint-client doctrine of their core purpose and meaning. Therefore, relators had no duty under Huie to disclose the draft documents to the RPI. Furthermore, the second relator’s equivocal testimony did not disclose details of the purported agreement or rise to the level of the disclosure of the report in Ashworth. The privilege was not waived by the second relator’s testimony. Finally, the Court held that relators did not have an adequate remedy by appeal because the error in ordering the production of privileged documents could not be cured on appeal. Therefore, conditional issuance of the writ of mandamus was appropriate. Accordingly, the Court conditionally granted the petition.

Because the record contained no evidence that the appraisal award was a result of fraud or was made without authority, the trial court clearly abused its discretion by setting the appraisal award aside
In re Auto Club Indem. Co.
Appellate: Civil, Contracts, Insurance, Real Property
Texas 14th Court of Appeals
July 30, 2019
14-19-00490-CV
Jerry Zimmerer
Published
The relator in the original proceeding was the corporation, an insurer that issued a home insurance policy to the insured. The corporation filed a petition for writ of mandamus asking the trial court to compel the Honorable presiding judge of the County Civil Court at Law No. 1 of Harris County, to vacate his order, which set aside an appraisal award of $0 as the amount of loss to the indured’s property. The appellate Court found that the Texas Supreme Court had held in State Farm Lloyds v. Johnson, that appraisers had authority to determine, as was the cas here, whether the damages found were pre-existing or caused by a pre-existing condition. The appraisal award did not show that the appraisers acted outside of the scope of their authority. Because the record contained no evidence that the appraisal award was a result of fraud or was made without authority, the Court concluded that the trial court failed to correctly apply the law to the facts and clearly abused its discretion by setting the appraisal award aside. Further, the Court saw no material difference between a trial court’s improper refusal to enforce an appraisal clause and a trial court’s improper setting aside an appraisal award; they both may vitiate or severely comprise the defendant’s ability to defend against the plaintiff’s breach of contract claim. Finally, the Court conditionally granted the petition for writ of mandamus, and directed the trial court to vacate its March 26, 2019 order setting aside the appraisal award.

The jury could reasonably determine, based on the common meaning of "dating relationship", that the appellant and the victim were in a "dating relationship" as defined by Texas Family Code section 71.0021(b)
Granger v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 24, 2019
04-18-00707-CR
Patricia O. Alvarez
Published
The county jury found the appellant guilty of felony assault family violence. The trial court subsequently sentenced the appellant to forty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate Court found that the State had presented sufficient evidence to support the existence of a dating relationship between the appellant and the victim. The Court then turned to whether the trial court erred in failing to include a definition of "dating relationship" in the charge of the court. The Court presumed error and turned to whether the appellant was egregiously harmed by the trial court’s failure to include the statutory definition of "dating relationship." The jury could reasonably determine, based on the common meaning of "dating relationship", that the appellant and the victim were in a "dating relationship" as defined by Texas Family Code section 71.0021(b). Also, the jury could reasonably determined that based on the appellant previously staying at the victim’s mother’s house and referring to the victim as his girlfriend, testifying they had previously been dating, and both neighbors thinking the appellant and the victim were in a dating relationship, the jury could reasonably infer the dating relationship about which the State and defense counsel were referring was a continuing relationship of a romantic or intimate nature. Lastly, based on a review of the entire jury charge, the weight of the evidence, the arguments of counsel made during opening arguments and throughout trial, the statements of both the appellant and the victim, and the common meaning of "dating relationship", the Court concluded the record did not support a showing of egregious harm. Accordingly, the Court affirmed the trial court’s judgment.  

The Court believed there was enough evidence for the appellee to establish her prima facie case under a true replacement theory sufficient to survive appellant's motion for summary judgment
Tex. Tech Univ. Health Sci.-El Paso v. Flores
Civil Rights, Employment, Evidence, Procedure
Texas 8th Court of Appeals
July 26, 2019
08-18-00151-CV
Yvonne T. Rodriguez
Published
The appellant University appealed the trial court’s denial of a plea to the jurisdiction seeking dismissal of an age discrimination suit brought by the appellee. The appellate Court found that, bearing in mind that the standard for establishing a prima facie case was fairly lenient and that the Court had to employ a summary judgment-type analysis in reviewing the trial court’s decision, there was enough evidence for the appellee to establish her prima facie case under a true replacement theory. The Court reasoned that appellee's former boss, a doctor, had informed her that she would be demoted near the same time that he placed another individual into the assistant to the president position that the appellee had held. The Court agreed with the appellant that the appellant had met its burden to offer an ostensibly nondiscriminatory reason for the employment action, as the doctor's stated reasons for the demotion were not bald assertions or vague, but went to the quality of work and skill, which was a nondiscriminatory reason. However, while the appellant's arguments were well-taken, the standard to proceed to trial only required the appellee to raise genuine issues of material fact. The appellee's countervailing testimony as to her ability, her positive performance evaluations, the lack of documentation of her negative traits, the conflicting evidence as to who made the ultimate decision on her reclassification, and the doctor's remarks as to age, taken cumulatively, were enough to meet the standard. Accordingly, the judgment of the trial court was affirmed.

There was no basis, either in fact or in law, to support the appellant's position that release from commitment in Texas could be done with a less-than-unanimous verdict
In re Commitment of Gipson
Appellate: Civil, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
July 26, 2019
03-18-00332-CV
Melissa Goodwin
Published
The State filed a sexually violent predator (SVP) civil commitment petition against the appellant, who was close to completing eighteen years of sentence time for his convictions for aggravated sexual assault of a child, sexual assault, and failure to comply with sex offender registration. The State of Texas appealed from the trial court’s final judgment based on a non-unanimous jury verdict determining that the appellant was not a SVP. The appellate Court found that the fact that commitment required a unanimous verdict would make it absurd to conclude the legislature intended to permit a less-than-unanimous verdict to release the respondent. Such a result found no support in the legislative scheme. The Court found that reasoning inadequate, lacking both textual analysis and any substantive argument regarding absurdity. But even were the Court to agree with that reasoning, the Texas legislative scheme, in contrast to the Iowa legislative scheme, provided support for such a result by expressly stating the rules of civil procedure applied. Further, there was no conflict between Health & Safety Code Section 841.062(b)’s requirement for unanimous jury verdict as to an affirmative SVP determination and Rule 292(a)’s allowance for the concurrence of ten or more jury members to suffice for a negative SVP determination. The Court neither agreed with the reasoning in Williams nor found it applicable to the interpretation of Section 841.146(b). Lastly, even if the trial court had abused its discretion in excluding the evidence, which the court did not decide there, the excluded “evidence” did not rise “beyond mere suspicion” and was unlikely to have caused the rendition of an improper judgment. Accordingly, the Court affirmed the trial court’s final judgment.

The summary-judgment evidence did not conclusively establish a condition that amounted to an unreasonable interference with a right common to the general public
Tex. Cent. Partners, LLC v. Grimes Cnty.
Contracts, Damages, Gov't/Administrative, Procedure, Torts
Texas 14th Court of Appeals
July 25, 2019
14-17-00619-CV
Kem Thompson Frost
Published
After contractors doing surveying work for a project of the appellant company placed pins and markings in various county roadways, the appellee county sued the appellant and defendant company, asserting a single claim for common-law public nuisance. The appellant sought only injunctive relief. The trial court granted the appellant’s motion for a traditional summary judgment on that claim and granted a final summary judgment, permanently enjoining the appellant and the defendant and their agents from performing survey(s) or other studies which damaged, altered, or impaired county-maintained rights of way. The trial court also overruled all of the appellant’s objections to the appellant’s summary-judgment evidence. In the appeal, the appellant asserted that the trial court erred in granting summary judgment in the appellant’s favor, and the trial court erred in overruling the appellant’s objections to two affidavits. The appellate Court found that because statements made in affidavits were conclusory, they could not support a summary judgment in the appellant’s favor, and the trial court abused its discretion in overruling the appellant’s objections. Further, the summary-judgment evidence did not conclusively establish a condition that amounted to an unreasonable interference with a right common to the general public. Because the summary-judgment evidence did not establish as a matter of law that the appellant was liable under the common-law public-nuisance claim, the trial court erred in granting summary judgment and in granting a permanent injunction. Thus, the trial court abused its discretion in overruling the objections to the summary-judgment evidence. Finally, because the summary-judgment evidence did not conclusively establish a common-law public nuisance, the trial court erred in granting the appellant’s summary-judgment motion. Accordingly, the Court reversed and remanded.    

Based on the exchange between the parties, the appellee and the appellant entered into a legally enforceable settlement agreement
Tauch v. Angel
Banking and Finance, Contracts, Damages
Texas 14th Court of Appeals
July 25, 2019
14-17-00976-CV
Kevin Jewell
Published
The dispositive issue presented in the appeal was whether the appellant entered into a valid and enforceable settlement agreement with the appellee bank. The appellant appealed a summary judgment against him declaring that he and the appellee did not have a settlement agreement. The trial court concluded that the appellee impliedly revoked its settlement offer before the appellant attempted to accept it. The appellate Court observed that, as a matter of law, the appellee made a settlement offer to the appellant, the appellee did not impliedly revoke its offer before the appellant accepted, and consequently the appellant and the appellee had a valid settlement agreement. The Court reasoned that the appellant accepted the settlement offer by indicating the party was “ok” with the offer and dollar value. The material portions of the settlement offer had been accepted at that time and asking for paperwork to review was not a conditional acceptance. Further, the elements of the implied revocation doctrine were not met, as the appellee did not take any definite action inconsistent with the intent of entering the settlement agreement and no manifestation of an intent not to enter into the proposed settlement agreement was made. Thus, the Court held that the appellee and the appellant entered into a legally enforceable settlement agreement. Accordingly, the Court reversed the trial court’s judgment and remanded.

The trial court did not abuse its discretion in determining the appellee did not nonsuit his claims to avoid an unfavorable ruling, as there could be legitimate and strategic reasons why appellee might nonsuit and refile
Lacy v. Castillo
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Torts
Texas 14th Court of Appeals
July 25, 2019
14-17-00766-CV
Meagan Hassan
Published
The appellee bought a mobile home from the appellants. The appellee filed suit against the appellants and its general partner and representative. The appellee asserted claims against the appellants for breach of contract, Deceptive Trade Practices Act violations, common law fraud, fraud in a real estate transaction, and negligent misrepresentation. The appellants appealed the trial court’s order denying their Motion to Declare the plaintiff’s Nonsuit a Dismissal with Prejudice. The appellate Court found that the appellee timely responded to the appellants’ requests for admissions and other discovery. The record did not reveal, and the appellants did not point to any procedural obstacles that could defeat the appellee’s claims, such as an inability to join necessary parties. Further, the Court rejected the appellants’ contention that the appellee’s stated intent to refile his case at a later time showed he filed a nonsuit to avoid an unfavorable ruling. The appellants cited no authority for their contention; and there could be legitimate and strategic reasons for why a plaintiff might nonsuit and then refile his case that were unrelated to wanting to avoid an unfavorable result. Based on the record before the Court and considering the trial court was free to believe the appellee’s testimony, the Court could not conclude that the trial court abused its discretion in determining the appellee did not nonsuit his claims to avoid an unfavorable ruling and in denying the appellants’ motion. Accordingly, the Court affirmed the trial court’s order denying the appellants’ Motion to Declare the plaintiff’s Nonsuit a Dismissal with Prejudice.  

In the relator's petition for writ of mandamus to compel the trial court judge to vacate court costs and fees, the relator did not satisfy his burden to show a demand for performance by the judge and a refusal to act
In re Hart
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
July 24, 2019
07-19-00217-CV
Per Curiam
Published
Five charges were brought against the relator in the trial court resulting in five convictions for sexually-related offenses. The relator was convicted and sentenced in each cause. Those convictions were affirmed by the previous court in prior opinion. The relator filed a petition for writ of mandamus seeking to compel the presiding judge of the 31st District Court to vacate all court costs and fees assessed in trial court in each cause. The relator sought to compel the judge to amend a supplemental Bill of Cost in the trial court in the sixth cause, generated in 2019, that added a $2,000 fine to the original Bill of Cost generated in 2014. The appellate Court found that the relator never presented a request to the judge to vacate some or all of the trial court costs and fees assessed; nor did he file a motion to modify, correct, or amend any of the bills of cost or withdrawal orders. Although the relator presented a well-reasoned petition with meritorious arguments, mandamus would not lie when the judge sought to be compelled to vacate fees and costs had not been given an opportunity to consider the relator’s complaints and arguments. Thus, the relator did not satisfy his burden to show a demand for performance by the judge and a refusal to act on that demand. As such, he failed to show any abuse of discretion. Further, relief from any costs and fees that may have been inappropriately assessed in the five causes was not warranted under the documents provided to the Court or under the tenets of a mandamus proceeding. Similarly, in the sixth cause, the relator did not provide the Court with sufficient documentation to substantiate his claim that a $2,000 fine was improperly added. Without the necessary documentation pertaining to the sixth cause, the Court was unable to grant any relief. Accordingly, the relator’s petition for writ of mandamus was denied.

The appellee established an express written contract with the appellants as required to recover on its breach of contract claim
Sameera Arshad & Almorfa, LLC v. Am. Express Bank, FSB
Appellate: Civil, Banking and Finance, Contracts, Creditor/Debtor, Damages, Procedure, Torts
Texas 14th Court of Appeals
July 25, 2019
14-17-00676-CV
Kem Thompson Frost
Published
The appellants challenged the final judgment in favor of the appellee bank on its breach of contract claim based on the appellants’ failure to pay their credit card debt. The appellee filed a notice of business records affidavit of an assistant custodian of records for the appellee. The appellate Court rejected the appellants’ contention that the trial court rendered judgment on a claim for account stated. The trial court concluded that the the appellants breached the contract by failing to pay the appellee in accordance with the terms of the contract. The appellee established an express written contract with the appellants as required to recover on its breach-of-contract claim. Further, the review of the account statements, which were also in evidence, reflected that the appellee did not charge interest on the overdue balance. The appellants did not otherwise assert that the appellee could not calculate and prove its damages. The trial court expressly found that the damages were $316,007.97, an amount reflected in the last account statement showing the outstanding balance. Finally, the trial court did not abuse its discretion in failing to exclude the assistant custodian from testifying under Texas Rule of Civil Procedure Rule 193.6(a). Finally, the Court did not address the appellants’ arguments that the appellee did not provide custodian’s phone number and that the appellee’s failure to identify the custodian as a fact witness unfairly surprised and unfairly prejudiced the the appellants. Accordingly, the trial court's judgment was affirmed.

The appellants could not recategorize the same arguments as breach of contract or tort claims in an attempt to get the appellee company to pay to the appellants as damages in the present suit
Shawn Ibrahim, Inc. v. Houston-Galveston Area Local Dev. Corp.
Banking and Finance, Contracts, Corporations, Torts
Texas 1st Court of Appeals
July 25, 2019
01-18-00195-CV
Evelyn V. Keyes
Published
The appellees (the appellee corporation and the appellee company) were both involved in financing a construction project undertaken by the appellant company, the appellant individual, the appellant company’s president, and the second appellant individual, another individual associated with the appellant company (collectively, the appellants). The appellants sued both the appellee corporation and the appellee company for breach of contract, fraud, and other causes of action, and the trial court granted summary judgment dismissing all of the appellants’ claims. The appellate Court observed that the appellants could not recategorize the same arguments as breach of contract or tort claims in an attempt to get the appellee company to pay to the appellants as damages in the present suit, the very judgment that the trial court awarded to the appellee company in the first suit. Further, the appellee corporation established, as a matter of law, that nothing in the loan documents obligated it to enforce the Standby Creditor’s Agreement with the appellee company, Finally, nothing in the Loan Documents could be construed as such a representation. The appellants did not provide any other summary judgment evidence identifying any promise or representation made outside of the memorialized in the Loan Documents. Thus, the trial court correctly granted summary judgment dismissing the causes of action. Accordingly, the Court affirmed the judgment of the trial court.

Because the trial court’s decision to admit the three extraneous sexual assault offenses was within the zone of reasonable disagreement, there was no abuse of discretion in their admission
Davis v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
July 24, 2019
05-18-00272-CR
David Schenck
Published
A jury found appellant guilty of sexual assault. The trial court assessed appellant’s punishment, enhanced by a prior felony conviction, at confinement in the Institutional Division of the Texas Department of Criminal Justice for life. The appellate Court found that the jury could have inferred from the testimony of the witnesses that appellant administered a large dose of GHB to the first victim, without her knowledge, precisely so he could have sex with her when she could not resist. The Court concluded the evidence was sufficient to support the jury’s verdict. Further, the Court concluded the trial court’s decision to admit the three extraneous offenses was within the zone of reasonable disagreement. The Court generally presume that the jury followed the trial court’s instructions in the manner presented. An appellant could refute that presumption, but he must do so by pointing to evidence that the jury failed to follow the instruction. Appellant had not identified any such evidence in the case. Thus the admission of evidence of the extraneous allegations of sexual assault did not affect appellant’s substantial rights. Lastly, given all the evidence of appellant’s guilt, the Court was convinced, beyond a reasonable doubt, that the erroneous admission of the second victim’s testimonial statements would probably not have had a significant impact on the mind of an average juror. Accordingly, the judgment was affirmed.

The appellate court concluded that the petitioner’s ability to present a viable defense at trial was vitiated or severely compromised by the trial court’s discovery error.
In re Soc’y of Our Lady of Most Holy Trinity
Appellate: Civil, Constitution, Discovery, Evidence, Procedure
Texas 13th Court of Appeals
July 23, 2019
13-19-00064-CV
Leticia Hinojosa
Published
The petitioner appealed the judgment of the trial court, seeking to compel it to vacate its order allowing for the real party in interest’s examination to be recorded by video and denying reconsideration of that order. On appeal, the petitioner contended that the trial court abused its discretion by allowing the real party in interest to videotape the psychological examination ordered for her pursuant to Texas Rule of Civil Procedure 204.1. The real party in interest argued that mandamus relief was inappropriate and that the court should reject any argument that the trial court abused its discretion when making a discovery ruling on an issue that had not been clearly resolved by the relevant case law. The appellate court noted that to obtain relief by writ of mandamus, a relator must establish that an underlying order was void or a clear abuse of discretion and that no adequate appellate remedy existed. The appellate court found that the real party in interest did not meet her burden to show good cause for the examination to be videotaped. The appellate court concluded that the petitioner’s ability to present a viable defense at trial was vitiated or severely compromised by the trial court’s discovery error. Accordingly, the petitioner’s petition for a writ of mandamus was conditionally granted.

The appellate court concluded that it was confident that the trial judge will take all necessary steps to identify any person who paid the fines and court costs in violation of applicable laws and return those funds.
In re State ex rel. Durden
Constitution, Criminal, Procedure
Texas 4th Court of Appeals
July 24, 2019
04-19-00376-CR
Rebeca C. Martinez
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus in which it raised two complaints. On appeal, the relator asserted that the trial judge abused his discretion by denying an indigent criminal defendant's motion to withdraw from the court registry all of the fines and court costs she paid after the criminal charges against her had been dismissed. The relator asserted that the trial court allowed the defendant to withdraw only $500.00 of the total $897.00 she paid, and the judge abused his discretion by imposing fines and court costs on criminal defendants prior to conducting a hearing on whether to accept a plea bargain and formally pronouncing sentence. The appellate court found that any policy requiring a defendant to fully pay any fines and courts costs before being allowed to enter a plea and begin community supervision was no longer in practice in the county. The appellate court concluded that it was confident that the trial judge will take all necessary steps to identify any person who paid the fines and court costs in violation of applicable laws and return those funds. Accordingly, the relator’s writ was conditionally granted.

Since the petitioner’s appeal was not frivolous and a statement of facts and the clerk's transcript were needed to decide the issues presented by the appeal, the petitioner was entitled to a free record.
In re Commitment of Metcalf
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 24, 2019
06-19-00045-CV
Josh Morriss, III
Published
The petitioner appealed the judgment of the trial court which denied his request for a free reporter’s record in his involuntary commitment as a sexually violent predator. On appeal, the appellate court was asked to consider whether the petitioner, in his subsequent appeal, would be presenting an arguable basis in law or in fact that he was not such a predator. The petitioner argued that the trial court committed reversible error by admitting improper hearsay evidence and the evidence was legally and factually insufficient to support a finding that the petitioner was a sexually violent predator. The appellate court noted that a free appellate record was provided only if the trial court found that the appeal was not frivolous and the statement of facts and the clerk's transcript was needed to decide the issue presented by the appeal. The appellate court found that because the petitioner’s appeal was not frivolous and a statement of facts and the clerk's transcript were needed to decide the issues presented by the appeal, the petitioner was entitled to a free record. The appellate court concluded that since the evidence demonstrated an arguable basis in fact, the indigent petitioner was entitled to a free record for that subsequent appeal. Accordingly, the judgment of the trial court was reversed and remanded with instructions.

The appellate court concluded that the taxes imposed under Section 11.201(a) and subject to Paragraph 13(B) must be mutually exclusive of taxes subject to Paragraph 13(A) because the two paragraphs conflicted in how they assigned responsibility among the parties.
Title Res. Guaranty Co. v. The Lighthouse Church & Ministries
Appellate: Civil, Contracts, Damages, Procedure, Tax, Torts
Texas 1st Court of Appeals
July 23, 2019
01-18-00015-CV
Richard Hightower
Published
The subrogee appealed the judgment of the trial court which partially granted summary judgment finding that it would take nothing by its contract cause of action. On appeal, the subrogee contended that subrogor’s contract for the sale of land unambiguously obligated it to pay taxes that were imposed on the land post-sale under Tax Code Section 11.201(a). The appellate court noted that the parties' competing contract interpretations played out against the backdrop of Tax Code Sections 11.20 and 11.201, and a qualified religious organization was entitled to an exemption from taxation. The appellate court found that the contract gave rise to an ambiguity, even after interpreting the plain language of the competing contract provisions and applying the interpretive canons advanced by the parties. The appellate court concluded that the taxes imposed under Section 11.201(a) and subject to Paragraph 13(B) must be mutually exclusive of taxes subject to Paragraph 13(A) because the two paragraphs conflicted in how they assigned responsibility among the parties. Accordingly, the judgment of the trial court was affirmed in part and remanded for further proceedings.

The officer’s authority to act placed him within the scope of his employment with the police department and the City’s sovereign immunity had been waived.
CKJ Trucking, L.P. v. Honey Grove
Appellate: Civil, Employment, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 5th Court of Appeals
July 23, 2019
05-18-00205-CV
Robbie Partida-Kipness
Published
The plaintiffs appealed the judgment of the trial court which granted the City’s plea to the jurisdiction in the plaintiffs’ suit asserting various claims for negligence. On appeal, the plaintiffs asserted that the trial court erred in granting the plea to the jurisdiction and motion to dismiss filed by the City. The City maintained that the officer was not in the scope of his employment because he was not acting under the direction of the police department, was not on duty at the time of the accident, was not being paid by the City, and had not received an assignment from the City. The plaintiffs counterargued that Texas law imposed a duty on peace officers to prevent crimes against persons committed in their presence outside their employer’s geographical limits. The appellate court noted that under the doctrine of sovereign immunity, governmental entities were not liable for the negligence of their employees absent a constitutional or statutory waiver of immunity. The appellate court concluded that the officer’s authority to act placed him within the scope of his employment with the police department and the City’s sovereign immunity had been waived. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

Since the assessment of the cost of electronic monitoring was authorized by statute, and there was a basis in the record for the assessment of this cost, the trial court did not err in assessing this cost.
Wolfenbarger v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 23, 2019
06-18-00209-CR
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child under six years of age and assessed a punishment of life imprisonment, court costs, and the cost of electronic monitoring. On appeal, the defendant contended that legally insufficient evidence supported the jury’s finding that his victim was under six years of age at the time of the offense and that the trial court erred by assessing the cost of electronic monitoring against him. The defendant further alleged that the assessment of this cost was not authorized by statute and that there was no basis for the assessment of the cost. The appellate court noted that it would review all the evidence in the light most favorable to the trial court’s judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. The appellate court found that since the assessment of the cost of electronic monitoring was authorized by statute, and there was a basis in the record for the assessment of this cost, the trial court did not err in assessing this cost. The appellate court concluded that sufficient evidence supported the jury’s finding and the trial court did not err in its assessment of the cost of electronic monitoring. Accordingly, the judgment of the trial court was affirmed.

There was no factual issue regarding past damages left for the jury’s consideration, only the legal issue of the employer’s equitable right of offset, which was rightly left to the trial court for its post-verdict determination.
McMillan v. Hearne
Appellate: Civil, Damages, Employment, Evidence, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 6th Court of Appeals
July 22, 2019
06-18-00040-CV
Ralph Burgess
Published
The employer appealed the judgment of the trial court which found that he was liable for the employee’s injuries, and it awarded him past and future damages in the underlying workers’ compensation action. On appeal, the employer argued that the evidence was legally and factually insufficient to support the jury’s finding of negligence and the trial court committed reversible error by failing to offset the jury’s award of past medical damages in the appropriate amount. The employee alleged the trial court erred in failing to render judgment on the jury verdict for all the past damages awarded by the jury, and even if the trial court had authority to award an offset, it erred in doing so because the offset violated the collateral source rule and the employer failed to obtain findings on which he had the burden of proof. The appellate court disagreed and found that the collateral source rule was inapplicable, and the employer was entitled to a post-verdict offset of the jury’s award of past damages. The appellate court concluded that there was no factual issue regarding past damages left for the jury’s consideration, only the legal issue of the employer’s equitable right of offset, which was rightly left to the trial court for its post-verdict determination. Accordingly, the judgment of the trial court was affirmed.

The plaintiff’s suit to enforce the judgment did not offend res judicata, and the plaintiff conclusively established the defendant’s liability as a successor to the judgment debt.
Peterson, Goldman & Villani, Inc. v. Ancor Holdings, LP
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Torts
Texas 2nd Court of Appeals
July 18, 2019
02-18-00102-CV
J. Wade Birdwell
Published
The plaintiff appealed the judgment of the trial court which rendered a take-nothing summary judgment in favor of the defendants on grounds of res judicata, reasoning that the plaintiff should have pressed all of its claims in the earlier suit. On appeal, the plaintiff argued that regardless of whether its own liability should have been raised in the initial proceeding, that claim was indeed raised in the initial proceeding. The appellate court noted that it would consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. The appellate court found that the trial court erred in concluding otherwise, and in dismissing the plaintiff’s claims for contractual and successor liability, principal-agent liability, unjust enrichment, and multiple forms of estoppel. The appellate court concluded that the plaintiff’s suit to enforce the judgment did not offend res judicata, and the plaintiff conclusively established the defendant’s liability as a successor to the judgment debt. Accordingly, the judgment of the trial court was affirmed in part, reversed and remanded in part.

In balancing all of the Rule 403 factors, the trial court acted within the zone of reasonable disagreement when it determined that the probative value of the extraneous offense evidence was not substantially outweighed by its prejudicial effect.
Ryder v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 18, 2019
14-18-00148-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of four counts of aggravated sexual assault of a child and sentenced him to four life sentences. On appeal, the defendant asserted that the evidence was insufficient to support the convictions, the trial court erred by admitting evidence of certain extraneous offenses, and the trial court erred by admitting Facebook messages that were not properly authenticated.  The appellate court noted that to assess the legal sufficiency of the evidence to support a criminal conviction, it would consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. The appellate court found that it would defer to the jury’s responsibility to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences, and it did not disturb these determinations on appeal. The appellate court concluded that in balancing all of the Rule 403 factors, the trial court acted within the zone of reasonable disagreement when it determined that the probative value of the extraneous offense evidence was not substantially outweighed by its prejudicial effect. Accordingly, the judgment of the trial court was affirmed.

Since the City retained its governmental immunity, the trial court should have dismissed the plaintiffs’ claims against the City for want of jurisdiction.
Nguyen v. SXSW Holdings, Inc.
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 14th Court of Appeals
July 18, 2019
14-17-00575-CV
Tracy Christopher
Published
The plaintiffs appealed the judgment of the trial court which disposed of the plaintiffs’ claims through summary judgment in their civil action, asserting various claims against the defendants to recover on various claims of negligence, premises liability, and public nuisance. On appeal, the plaintiffs argued that the City was actually engaged in a proprietary function because it was funding, maintaining, and operating the festival alongside the remaining defendants. The appellate court noted that governmental functions were generally defined as those actions performed by a municipality that were “public in nature” and “in furtherance of general law for the interest of the public at large.” The appellate court found that because the City demonstrated that it was performing a governmental function, and thus, that it was shielded by governmental immunity, the plaintiffs were required to plead a valid waiver of that immunity. The appellate court concluded that the City retained its governmental immunity, which meant that the trial court should have dismissed the plaintiffs’ claims against the City for want of jurisdiction. Accordingly, the judgment of the trial court was vacated in part and affirmed in part.

The appellate court concluded that the trial court did consider the defendant’s requests for the appointment of counsel in a civil lawsuit and did not err in denying the requests.
Erazo v. Sanchez
Appellate: Civil, Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 18, 2019
14-17-00929-CV
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which denied appointing counsel in a civil lawsuit, where the defendant requested the trial court to order the performance of a new autopsy related to a criminal case. On appeal, the defendant asserted that the trial court erred in failing to consider his requests for appointment of counsel, and the trial court erred by refusing or failing to appoint counsel. The defendant contended that the trial court abused its discretion in refusing or failing to appoint counsel pursuant to Government Code section 24.016. The appellate court noted that there was no general right to counsel in Texas in civil cases; however, under Government Code section 24.016, a district judge had the discretion to appoint counsel for an indigent party in a civil case. The appellate court found that a convicted person seeking another chance to discover exonerating evidence did not appear exceptional. The appellate court concluded that the trial court did consider the defendant’s requests and did not err in denying the requests. Accordingly, the judgment of the trial court was affirmed.

The trial court did not err in granting summary judgment as to the plaintiff’s negligence claim on the no-evidence-of-proximate-cause ground.
Shultz v. Lone Star Rd. Constr., Ltd.
Appellate: Civil, Damages, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
July 18, 2019
14-17-00550-CV
Kem Thompson Frost
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s summary-judgment motion, asserting a negligence claim against the defendant that was performing road construction work at the time of the accident. On appeal, the plaintiff argued that the testimony of the expert witness and fact witness, together with other circumstantial evidence raised a fact issue as to causation. The plaintiff further alleged gross negligence as a potential basis for recovering exemplary damages in addition to actual damages based on the negligence claim. The appellate court noted that to raise a genuine fact issue on causation, the summary-judgment evidence must raise a genuine fact issue as to whether the tow hook originated from the highway’s left shoulder, in the defendant’s work area. The appellate court found that the summary-judgment evidence did not raise a genuine fact issue as to whether the tow hook’s launch point fell within the left shoulder or as to whether the defendant’s act or omission served as a substantial factor in causing the plaintiff’s injuries, without which the harm would not have occurred. The appellate court concluded that the trial court did not err in granting summary judgment as to the plaintiff’s negligence claim on the no-evidence-of-proximate-cause ground. Accordingly, the judgment of the trial court was affirmed.

The trial court’s admission of the officer’s testimony regarding the defendant’s credibility did not have a substantial and injurious effect or influence in determining the jury’s verdict.
Brown v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 18, 2019
14-17-00622-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assault and sentenced him to ten years’ confinement with the sentence suspended for ten years. On appeal, the defendant challenged his conviction based on alleged jury-charge error and the trial court’s admission of improper opinion testimony. The defendant alleged that this error caused him harm and required reversal and a new trial. Specifically, the defendant asserted that including the instruction on non-consent by threat was harmful because the instruction was equally prominent with the alternative theory of non-consent by use of physical force or violence. The appellate court noted that the requirement of jury unanimity was not violated by a jury charge that presented the jury with the option of choosing among various alternative manner and means of committing the same statutorily defined offense. The appellate court found that evidence showing that an accused was deceptive during an investigation was relevant and admissible. The appellate court concluded that the trial court’s admission of the officer’s testimony regarding the defendant’s credibility did not have a substantial and injurious effect or influence in determining the jury’s verdict. Accordingly, the judgment of the trial court was affirmed.

The evidence established that the plaintiff could not establish a violation of the Act to show its standing or a waiver of the defendant’s governmental immunity from suit.
Tex. Ass’n of Cnty. Employees v. Wolff
Appellate: Civil, Employment, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
July 17, 2019
04-19-00003-CV
Luz Elena D Chapa
Published
The plaintiff appealed the judgment of the trial court, seeking a money judgment and a court order requiring the defendant immediately begin to engage in collective bargaining. On appeal, the appellate court was asked to consider whether, under chapter 174 of the Texas Local Government Code, a county’s deputy constables and deputy sheriffs were officers of the same “police department” or different “police departments.” The appellate court noted that the evidence established that, even if the plaintiff was correct that under the Act, deputy constables and deputy sheriffs were separate “police departments” and were entitled to collectively bargain with the county independently, the plaintiff failed to follow procedures set out in the Act to be recognized as the exclusive bargaining agent for the county’s deputy constables’ “police department.” The appellate court found that the plaintiff failed to follow the procedures, and the dispute about whether a county’s deputy constables and deputy sheriffs were in separate “police departments” was immaterial. The appellate court concluded that the evidence established that the plaintiff could not establish a violation of the Act to show its standing or a waiver of the defendant’s governmental immunity from suit. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court clerk was instructed to forward to the appellate court the supplemental clerk’s record containing the new certification.
Young v. State
Criminal, Procedure
Texas 3rd Court of Appeals
July 17, 2019
03-18-00080-CR
Thomas J. Baker
Published
The defendant appealed the judgment of the trial court which convicted him forgery, theft, and money laundering. Thereafter, the trial court issued certification of the defendant’s right of appeal with checks and other marks next to the boxes certifying that the defendant waived the right of appeal. The appellate court noted that it appeared that the trial court’s certification was incorrect. The appellate court found that it needed to abate the appeal and remand the case to the trial court to issue a new certification. The appellate court concluded that the trial court clerk was instructed to forward to the appellate court the supplemental clerk’s record containing the new certification. Accordingly, the judgment of the trial court was abated and remanded.

The appellate court concluded that the dispute was moot and if the ground that the relief sought had become moot and, therefore, there was nothing to mandamus, petition to mandamus was proper.
In re Evans
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 17, 2019
06-19-00110-CR
Scott E. Stevens
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus compelling the trial judge to comply with the appellate court’s mandate requiring the trial court to provide the relator with a new punishment hearing. On appeal, the relator maintained that the trial court failed to conduct the punishment proceeding as required by the court’s mandate. The appellate court noted that the State could dismiss a criminal action at any time, subject to approval by the trial court. The appellate court found that the third trafficking conviction, due to insufficient evidence, was modified to a conviction for compelling prostitution and remanded to the trial court for a punishment proceeding. The appellate court noted that the State decided to forego the new punishment hearing and filed a waiver of the charge, which was approved by the trial court, and thus, the charge was effectively dismissed. The appellate court concluded that the dispute was moot and if the ground that the relief sought had become moot and, therefore, there was nothing to mandamus, petition to mandamus was proper. Accordingly, the judgment of the trial court was affirmed.

The trial court did not abuse its discretion in admitting the accident report, however, since the testimony regarding the white van was not hearsay, the trial court erred in excluding the officer’s testimony.
Mora v. Valdivia
Appellate: Civil, Damages, Employment, Evidence, Litigation: Personal Injury, Procedure, Torts, Wills/Trusts/Probate
Texas 4th Court of Appeals
July 17, 2019
04-17-00565-CV
Patricia O. Alvarez
Published
The defendants appealed the judgment of the trial court which found that they were grossly negligent and awarded actual and exemplary damages in the plaintiffs’ suit asserting claims for negligence and gross negligence. On appeal, the defendants contended that the evidence was legally and factually insufficient to support the jury’s findings that the defendants were not in the course and scope of their employment at the time of the accident, the driver of the third vehicle was neither negligent nor partially responsible for the accident based on the defense of sudden emergency, and the defendants were grossly negligent based on an act or omission. The appellate court noted that if the conduct fell within an exception to one of the elements, the employee’s actions were not in the course and scope of his employment. The appellate court found that because commuting to and from work were the type of risks shared by the traveling public and did not generally arise from a specific trade or profession, an injury sustained while commuting was generally not a compensable injury arising out of an individual’s course and scope of employment. The appellate court concluded that the trial court did not abuse its discretion in admitting the accident report, however, since the testimony regarding the white van was not hearsay, the trial court erred in excluding the officer’s testimony. Accordingly, the judgment of the trial court was affirmed.

The evidence was sufficient for any rational trier of fact to find that the essential elements of criminal trespass were proved beyond a reasonable doubt, and the evidence was legally sufficient to support the defendant’s conviction.
Tatro v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 16, 2019
14-18-00073-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of criminal trespass and assessed punishment at confinement in jail for thirty days and a fine of $100. On appeal, the defendant contended that the evidence was legally insufficient to support his conviction because the defendant was a tenant, not a guest, in the home and thus the victim had no right to ask him to leave. The State maintained that the defendant intentionally and knowingly entered and remained on and in the property of the victim, the owner, without the owner’s effective consent, and that the defendant entered with notice that entry was forbidden and failed and refused to depart after being told to leave. The appellate court found that the evidence showed that the defendant entered and remained on the victim’s property, that the defendant had notice that entry was forbidden whenever he was in an intoxicated state, and that the defendant received notice to depart from the victim’s property but failed to do so. The appellate court concluded that the evidence was sufficient for any rational trier of fact to find that the essential elements of criminal trespass were proved beyond a reasonable doubt, and the evidence was legally sufficient to support the defendant’s conviction. Accordingly, the judgment of the trial court was affirmed.

The trial court properly convicted the defendant of possession of a controlled substance because he conceded possession, however, it erred on the tampering-with-physical-evidence conviction.
Ransier v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 16, 2019
14-17-00580-CR
Charles Spain
Published
The defendant appealed the judgment of the trial court which convicted and assessed punishment at life in prison for tampering with a syringe. On appeal, the defendant argued that the trial court erred by admitting evidence that the defendant was an “ex-con” in the guilt/innocence phase of trial and by denying his request for a jury instruction on a lesser-included offense. The defendant further alleged that the trial court erred in refusing to submit his requested instruction regarding the lesser-included offense of attempted tampering with evidence. The State counterargued that the defendant waived this point of error because, when the trial court asked if there were any objections to the charge, the defendant responded, “No objection.” The appellate court noted that if, after applying the test, it remained ambiguous whether abandonment was intended, then it must resolve the ambiguity in favor of finding waiver. The appellate court correctly found that the trial court ruled on the possession-of-a-controlled-substance charge because the defendant conceded possession of a controlled substance at trial. The appellate court concluded that the trial court properly convicted the defendant of possession of a controlled substance because he conceded possession, however, it erred on the tampering-with-physical-evidence conviction. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.

The evidence presented to the trial court supported the damages award in the order granting summary judgment, and the plaintiff did not produce any proof of credits that may have offset that award.
Transamerica Corp. v. Braes Woods Condo Ass’n, Inc.
Appellate: Civil, Business, Contracts, Corporations, Damages, Landlord and Tenant, Procedure, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
July 16, 2019
14-16-00880-CV
Meagan Hassan
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment and motion to show authority in the plaintiff’s suit alleging conversion of rental payments, fraud, injury to business reputation, breach of duty good faith and fair dealing, and seeking an accounting as well as both injunctive and declaratory relief. On appeal, the plaintiff argued that the trial court’s orders granting the defendant’s motion for summary judgment and motion to show authority were void because the trial court lacked subject matter jurisdiction. The plaintiff further asserted that the defendant judicially admitted the plaintiff lacked capacity to sue or be sued in this case because it forfeited its corporate charter. The appellate court noted that as a general rule, corporations whose charters have been forfeited and not reinstated could neither sue nor defend themselves in Texas courts. The appellate court found that the plaintiff could have entered into a valid contract because the law did not expressly declare that contracts made by a corporation whose right to do business had been forfeited were void. The appellate court concluded that the evidence presented to the trial court supported the damages award in the order granting summary judgment, and the plaintiff did not produce any proof of credits that may have offset that award. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court did not err in granting the plaintiffs’ summary judgment and denying the defendants’ cross-motion for summary judgment.
Cook v. Nissimov
Appellate: Civil, Consumer, Contracts, Procedure, Real Property, Torts
Texas 14th Court of Appeals
July 16, 2019
14-18-00055-CV
Margaret Poissant
Published
The defendants appealed the judgment of the trial court which denied their motion for summary judgment and granted summary judgment in favor of the plaintiffs in a suit, alleging violations of portions of the Property Code and the Deceptive Trade Practices Act. On appeal, the defendants argued that the trial court should have granted their motion for summary judgment and denied the plaintiffs’ motion. Specifically, the defendants asserted that the exception clauses in the deeds used to convey the tracts retained the Access Easement running through the 130 acres. The appellate court noted that in determining whether an easement had been granted expressly, it would look to the same rules of construction applicable to deeds. The appellate court found that the conveyance from the defendants to the plaintiffs included the Access Easement and did not reserve a right in the defendants to grant access to the easement to others. The appellate court concluded that the trial court did not err in granting the plaintiffs’ summary judgment and denying the defendants’ cross-motion for summary judgment. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the record clearly established the complainants were public servants, and thus, it could not find the defendant was egregiously harmed by the charge error.
Niles v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 16, 2019
14-15-00498-CR
Margaret Poissant
Published
The defendant appealed the judgment of the trial court which convicted him of two offenses of terroristic threat against a public servant and assessed punishment at concurrent terms of one year in county jail, probated for two years. On appeal, the defendant claimed that the trial court abused its discretion in denying a mistrial, the evidence was insufficient to support the defendant’s conviction, and there was error in both judgments that entitled him to a reformation of the judgment in both cases to reflect that he was convicted of a Class B misdemeanor rather than a Class A. The appellate court noted that because such error was subject to a harm analysis, it erred to reform the judgments without first analyzing whether the jury charge error resulted in harm. The appellate court found that the jury charge weighed in favor of concluding the defendant had suffered egregious harm. The appellate court concluded that the record clearly established the complainants were public servants, and thus, it could not find the defendant was egregiously harmed by the charge error. Accordingly, the judgment of the trial court was affirmed.

The County established conclusively that the defendant was liable for the tolls and fees under Section 284.0701 of the Texas Transportation Code.
Harris Cnty. v. Ramirez
Appellate: Civil, Damages, Evidence, Gov't/Administrative, Procedure, Transportation
Texas 14th Court of Appeals
July 16, 2019
14-17-00718-CV
Jerry Zimmerer
Published
The County appealed the judgment of the trial court which rendered a take-nothing judgment in favor of the defendant in the County’s suit to collect unpaid tolls and fees incurred on two vehicles for which the defendant remained the registered owner, but that she previously had sold. On appeal, the County contended that the trial court erred in rendering judgment against it because the trial court failed to issue findings of fact and conclusions of law, the evidence was legally and factually insufficient to support the trial court’s judgment, and the trial court abused its discretion by acting arbitrarily and without regard to guiding rules and principles. The appellate court noted that by statute, the County was authorized to collect tolls from vehicles operated on certain roadways. The appellate court found that the County failed to provide substantive legal analysis, with citation to relevant authority and the record, regarding the basis of its claim for attorney’s fees. The appellate court agreed with the County and concluded that the County established conclusively that the defendant was liable for the tolls and fees under Section 284.0701 of the Texas Transportation Code. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.

Since the defendant failed to raise his Confrontation-Clause objection at the time the lab report was offered into evidence, the defendant this complaint on appeal.
Craven v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
June 20, 2019
14-18-00037-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which adjudicated guilt based on violations of the terms and conditions of his deferred adjudication community supervision. On appeal, the defendant asserted that the trial court abused its discretion in adjudicating guilt following a hearing at which the court permitted evidence that violated his right under the Sixth Amendment to be confronted with the witnesses against him. The appellate court was asked to determine whether the defendant preserved this error in the trial court. The appellate court noted that for an accused to preserve error as to an alleged violation of his right under the Confrontation Clause to be confronted with the witnesses against him, the accused must make a timely objection with enough specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. The appellate court found that in his closing remarks, the defendant’s trial counsel even acknowledged the moments during the defendant’s cross-examination when it became apparent that the witness was unable to answer for certain aspects of the validity and accuracy of the drug testing. The appellate court concluded that because the defendant failed to raise his Confrontation-Clause objection at the time the lab report was offered into evidence, the defendant this complaint on appeal. Accordingly, the judgment of the trial court was affirmed.

Because the Court found that the trial court judgment was not void for lack of jurisdiction, the appellate Court lacked jurisdiction to review the issue on appeal of the revocation of community supervision
Rogers v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
July 31, 2019
10-18-00368-CR
John E. Neill
Published
The appellant was charged by indictment with the offense of attempted sexual assault. He entered a plea of guilty to the offense of unlawful restraint, and the trial court deferred adjudication of guilt and placed the appellant on community supervision for ten years. The State filed a motion to adjudicate the appellant's guilt on the underlying offense and revoke his community supervision. The appellant entered pleas of true to five of the allegations in the State’s motion. The trial court found the allegations to be true, adjudicated the appellant guilty of unlawful restraint, revoked his community supervision, and sentenced the appellant to five years confinement. The appellate Court agreed with the Court in Crume v. State, 342 S.W.3d 241, 243, and found that the trial court had both personal and subject matter jurisdiction to accept the appellant’s plea. The Court reasoned that subject matter jurisdiction existed as both crimes, attempted sexual assault and unlawful restraint were felony offenses. Further, the Court had personal jurisdiction, as there was a valid indictment charging the defendant with attempted sexual assault and personal jurisdiction was "person specific" and not "offense specific.  Thus, the Court found that the judgment was not void. Because the Court found that the judgment in the case was not void, it lacked jurisdiction to review the issue on appeal of the revocation of community supervision. Accordingly, the judgment was affirmed.

The trial court erred in concluding that, as a matter of law, the 1999 deed was valid, effective, and enforceable to convey the appellants interests when not all of the deceased children executed and delivered the 1999 deed
In re Estate of Tatum
Appellate: Civil, Contracts, Family, Wills/Trusts/Probate
Texas 11th Court of Appeals
August 01, 2019
11-18-00009-CV
Keith Stretcher
Published
The appeal involved a dispute among family members regarding the validity of a warranty deed. The parties disputed whether certain executing grantors of the 1999 deed conveyed their individual interests in the property at issue even though the 1999 deed was not executed and delivered by all of the proposed grantors who owned an interest in the property being conveyed. The appellants and the appellee owned an equal, undivided future interest in the property and executed the 1999 Deed. The appellate Court found that the appellants presented summary judgment evidence which showed that the parties orally agreed on a condition precedent to the enforcement of the 1999 Deed, the condition precedent being the execution and delivery of the 1999 deed by all of the deceased children. Specifically, the appellants produced personal affidavits in which they explained the events surrounding their signing of the 1999 deed. The appellate Court specifically noted that such a provision or agreement was absent in the contract and that there was no testimony or evidence that any such agreement existed either among the tenants who signed the deed or between them and the grantee. Furthermore, summary judgment evidence showed that the appellants and the deceased did have an agreement and understanding that the 1999 Deed would not be effective unless and until it was signed by all of the deceased children. Thus, although the appellants signed the 1999 deed, a genuine issue of material fact remained regarding the enforceability of the 1999 deed. Finally, the trial court erred in concluding that, as a matter of law, the 1999 deed was valid, effective, and enforceable to convey the appellants interests when not all of the deceased children executed and delivered the 1999 deed. Accordingly, the Court sustained the appellants sole issue on appeal, and the Court reversed the trial court’s judgment and remanded for further proceedings.

The record was devoid of any evidence establishing the existence of a confidential relationship between the parties that would otherwise give the defendants a duty to disclose the information.
CLC Roofing, Inc. v. Helzer
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 2nd Court of Appeals
July 11, 2019
02-17-00229-CV
Mark T. Pittman
Published
The plaintiff appealed the judgment of the trial court which found that the defendants committed fraud against the plaintiff but granted the defendants’ motion for judgment notwithstanding the verdict (JNOV). On appeal, the plaintiff complained of both the JNOV for the defendants and the reduction in damages in the final judgment, asserting that the trial court erred in setting aside the jury’s finding that the defendants committed fraud by omission. The defendants challenged the evidence supporting the jury’s fraud findings against him. Specifically, the defendant maintained that the law did not support the duty to disclose relied on by the plaintiff and that there was no evidence that he engaged in any actionable nondisclosure. The appellate court found that the evidence did not support a fraud finding against either the defendants. The appellate court concluded that the record was devoid of any evidence establishing the existence of a confidential relationship between the parties that would otherwise give the defendants a duty to disclose the information. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.

Since the Texas Medical Liability Act required that the plaintiff file an expert report, the trial court improperly denied the defendant’s motion to dismiss.
Southeast Tex. Cardiology Assoc. v. Smith
Appellate: Civil, Evidence, Health Care, Procedure, Torts
Texas 9th Court of Appeals
July 11, 2019
09-18-00438-CV
Hollis Horton III
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff in the underlying medical malpractice action. On appeal, the appellate court was asked to decide whether the trial court erred by denying a health care provider’s motion to dismiss the wrongful death and survival claims of the Estate. The defendant argued that the plaintiff failed to file an expert report to support her claims as required by the Texas Medical Liability Act. The plaintiff maintained that her claims were premises liability claims, not health care liability claims, and thus not subject to the Act. The appellate court noted that Section 74.351 of the Act required a plaintiff pursuing health care liability claims to serve a timely report from an expert on each of the health care providers the plaintiff sued. The appellate court found that the plaintiff’s claims were health care liability claims, and as such, they were subject to the expert report requirements of the Act. The appellate court concluded that since the Act required that the plaintiff file an expert report, the trial court improperly denied the defendant’s motion to dismiss. Accordingly, the judgment of the trial court was remanded.

The defendant owed a duty to the plaintiff to either rectify or warn about known, concealed defects on its premises, and the plaintiff provided sufficient summary judgment evidence to raise a question of material fact for the jury to decide whether the defendant breached that duty.
Rodriguez v. Cemex, Inc.
Appellate: Civil, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 8th Court of Appeals
July 10, 2019
08-17-00113-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment based on the reasoning that the plaintiff lacked evidence establishing that the defendant owed him a duty of care given that he was injured while performing his work as an employee of an independent contractor. On appeal, the plaintiff asserted that the trial court erred in granting the defendant’s motion for summary judgment based on a no-duty defense that was abolished in Parker v. Highland Park, and that summary judgment evidence demonstrated the existence of a pre-existing, concealed defect on the premises. The appellate court noted that a defendant moving for traditional summary judgment pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure must state the specific grounds for the motion and must negate at least one essential element of the plaintiff's cause of action. The appellate court concluded that the defendant owed a duty to the plaintiff to either rectify or warn about known, concealed defects on its premises, and the plaintiff provided sufficient summary judgment evidence to raise a question of material fact for the jury to decide whether the defendant breached that duty. Accordingly, the judgment of the trial court was reversed.

The appellate court concluded that whether the psychiatric examination could be recorded was an unsettled legal question and the State did not show that the trial court’s order was clearly contrary to well-settled principles. Accordingly, the State’s writ was denied.
In re State
Constitution, Criminal, Evidence
Texas 8th Court of Appeals
July 10, 2019
08-18-00102-CR
Yvonne T. Rodriguez
Published
The State appealed the judgment of the trial court, seeking a writ of mandamus which requested that the appellate court order the trial judge to vacate his order placing restrictions on the State’s choice of expert witness and the manner of the expert’s examination of the defendant in the underlying criminal complaint. On appeal, the State argued that there was no legal authority for recording the examination, the State’s chosen expert had professional and ethical objections to the examination being recorded, and Texas courts had prohibited the presence of third-party observers in psychiatric examinations. The defendant responded that the State had not cited any legal authority prohibiting the recording of the psychiatric examination and he noted that another jurisdiction expressly permitted recording. The appellate court noted that the trial court granted the State’s motion for a psychiatric examination of the defendant by its own expert. The appellate court found that the presence of a third party in a legal and non-medical capacity would severely limit the efficacy of the psychiatric examination. The appellate court concluded that whether the psychiatric examination could be recorded was an unsettled legal question and the State did not show that the trial court’s order was clearly contrary to well-settled principles. Accordingly, the State’s writ was denied.   

The appellate court found that the sheriff’s return reflected that he posted the citation on the door of the county courthouse rather than on the front door of the defendant’s residence as ordered by the trial court.
Gonzalez v. Perez
Appellate: Civil, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
July 10, 2019
08-18-00206-CV
Yvonne T. Rodriguez
Published
The defendant appealed the judgment of the trial court which granted the plaintiff’s motion for substituted service and ordered that service on the defendant be effected by affixing a copy of the application for protective order, order to show cause, and order extending temporary ex parte order to the front door of her residence. On appeal, the defendant contended that the default protective order was void due to defective service and should be vacated. The defendant argued that the trial court erred by failing to grant her motion to vacate. The appellate court noted that the sheriff’s return reflected that he posted the citation on the door of the county courthouse rather than on the front door of the defendant’s residence as ordered by the trial court. The appellate court found that the recitations in the return of citation were prima facie evidence of the facts recited therein. The appellate court concluded that error was shown on the face of the record. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

The appellate court concluded that whether the administrator’s motion for reconsideration was a motion for new trial or not, it certainly sought either to vacate, modify, correct, or reform the final and appealable order.
In re Estate of Brazda
Appellate: Civil, Procedure, Wills/Trusts/Probate
Texas 1st Court of Appeals
July 11, 2019
01-18-00324-CV
Richard Hightower
Published
The dependent administrator of an estate administration appealed the judgment of the trial court which denied the motion for reconsideration and entered written orders reconsidering and removing the personal liability against the administrator. On appeal, the dependent administrator contended that the trial court lacked jurisdiction to enter the orders reconsidering and removing the damages against the administrator because the original order awarding the damages was final and appealable in its own right and because the trial court lost plenary power over that order before the time that it entered the written reconsideration orders. The appellate court noted that the plain-language reading of the statute disposed of the administrator’s first statutory-text counterargument. The appellate court found that Section 360.301 allowed the administrator to call upon “any court of competent jurisdiction” to assist him in the recovery of his Section 360.301 damages. The appellate court concluded that whether the administrator’s motion for reconsideration was a motion for new trial or not, it certainly sought either to vacate, modify, correct, or reform the final and appealable order. Accordingly, the judgment of the trial court was vacated and remanded.

The appellate court found that the Water District entered into a properly executed contract with the plaintiff and the trial court had jurisdiction over claims arising out of that contract.
Lower Valley Water Dist. v. Danny Sander Constr., Inc.
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
July 10, 2019
08-17-00261-CV
Yvonne T. Rodriguez
Published
The Water District appealed the judgment of the trial court which denied its plea to the jurisdiction. On appeal, the Water District contended that the trial court lacked subject matter jurisdiction over the plaintiff’s breach of contract claim to the extent the claim was based on an amendment to the contract that was never incorporated into the contract. The Water District asserted that it did not waive immunity regarding delays or expenses caused by denial of funding for the change order because the change order was never incorporated into the contract. The appellate court noted that if the pleadings did not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but did not affirmatively demonstrate incurable defects in jurisdiction, the issue was one of pleading sufficiency and the plaintiffs should be given the opportunity to amend. The appellate court found that the Water District entered into a properly executed contract with the plaintiff and the trial court had jurisdiction over claims arising out of that contract. Accordingly, the judgment of the trial court was affirmed.

If it was within the jury’s purview to apportion responsibility between the University and the plaintiffs, any reduction in the University’s liability recovery was barred by parental immunity as a matter of law.
Ruff v. The Univ. of St. Thomas
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
July 11, 2019
01-17-00875-CV
Russell Lloyd
Published
The plaintiffs appealed the judgment of the trial court which reduced the damage award made by the jury for injuries that the plaintiffs’ daughter sustained on the premises of the University. On appeal, the plaintiffs contended that the common-law doctrine of parental immunity prohibited the trial court from reducing the award under the apportionment-of-responsibility provisions of Chapter 33 of the Civil Practice & Remedies Code. The plaintiffs also asserted that the trial court abused its discretion by declining to adjudge costs entirely in their favor as the “successful parties” in the suit. The appellate court noted that parental immunity prevented Chapter 33 apportionment of responsibility on the record. The appellate court found that the doctrine was subject to certain exceptions not relevant, and the trial courts could properly refuse to apply parental immunity if no evidence supported its application or if its proponent failed to bring it to the court’s attention. The appellate court concluded that if it was within the jury’s purview to apportion responsibility between the University and the plaintiffs, any reduction in the University’s liability recovery was barred by parental immunity as a matter of law. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

The appellate court concluded that the offenses contained elements that were substantially similar and that the defendant had a reportable conviction or adjudication for purposes of the Sex Offender Registration Act.
Tex. Dep’t of Pub. Safety v. Fowle
Appellate: Civil, Criminal, Procedure
Texas 14th Court of Appeals
July 11, 2019
14-18-00263-CV
Tracy Christopher
Published
The Department of Public Safety (the Department) appealed the judgment of the trial court which granted the respondent’s appeal and signed an order stating that his conviction in Arizona was not a reportable conviction or adjudication for purposes of the Sex Offender Registration Act. On appeal, the appellate court was asked to consider whether a person must register as a sex offender in Texas if he was convicted under an Arizona statute for sexual abuse. The appellate court noted that the Arizona offense required affirmative proof that the minor was not the spouse of the accused, and the Texas offense did not share this requirement, but the Texas statute provided an affirmative defense in the event that the accused was the minor’s spouse. The appellate court found that there was no indication that the Arizona statute was ever applied in the manner suggested by the respondent not even when there was no statutory defense for lack of sexual interest. The appellate court concluded that the offenses contained elements that were substantially similar and that the defendant had a reportable conviction or adjudication for purposes of the Act. Accordingly, the judgment of the trial court was reversed.

The appellate court concluded that any of the defendant’s claims based on the defendant’s failure to release the lis pendens did not implicate the Texas Citizens Participation Act.
Shopoff Advisors, LP v. Atrium Circle, GP
ADR, Appellate: Civil, Contracts, Damages, Procedure, Real Property
Texas 4th Court of Appeals
July 10, 2019
04-18-00438-CV
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which issued an interlocutory order denying its motion to dismiss filed pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the defendant contended that the trial court erred in denying its motion because the claims brought by the plaintiff related to the exercise of the defendant’s right to petition. The parties disputed whether the TPCA applied to the underlying claims brought by the plaintiff against the defendant, and the defendant emphasized that pursuant to the TPCA, the legal action need merely to relate to a party’s exercise of the right to petition. The appellate court noted that the defendant’s alleged failure to release the lis pendens did not relate to the exercise of its right to petition. The appellate court found that the defendant Atrium did not meet its burden of establishing by clear and specific evidence a prima facie case for the element of damages with respect to its claims based on the email sent by the defendant’s attorney. The appellate court concluded that any of the defendant’s claims based on the defendant’s failure to release the lis pendens did not implicate the TCPA. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.

The trial court abused its discretion in finding it had jurisdiction over the case, and the petitioner had no adequate remedy on appeal.
In re Swart
Appellate: Civil, Constitution, Family, Procedure
Texas 5th Court of Appeals
July 09, 2019
05-19-00015-CV
David Schenck
Published
The petitioner appealed the judgment of the trial court, seeking relief from the trial court’s denial of his special appearance in a divorce proceeding brought against him by the respondent. On appeal, the petitioner contended that the respondent did not meet the statutory requirements for filing a petition for divorce in this state and that her unilateral decision to travel did not subject him or his assets to the court’s territorial jurisdiction. The appellate court noted that the Texas Family Code did not attempt to define the term “domicile” or “domiciliary.” The appellate court found that notwithstanding the petitioner’s allegation that she intended to reside in Texas permanently, she did not meet the subjective intent requirement based on the fact that the respondent was precluded by law from relocating permanently to the United States. The appellate court concluded that the trial court abused its discretion in finding it had jurisdiction over the case, and the petitioner had no adequate remedy on appeal. Accordingly, the petitioner’s petition was conditionally granted.

The trial counsel's decision not to object to the punishment recommendations was not so deficient or lacking in tactical or strategical decision-making as to overcome the presumption that counsel's performance was reasonable and professional.
Fernandez v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 09, 2019
14-18-00353-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery with a deadly weapon and sentenced him to 40 years' confinement. On appeal, the defendant asserted that he received ineffective assistance of counsel because his trial counsel failed to object to the State's witnesses' and prosecutor's statements that the trial court should sentence the defendant to life imprisonment. The appellate court noted that to prevail on a claim for ineffective assistance of counsel, an appellant must show that the trial counsel's performance fell below the objective standard of reasonableness; and the deficient performance prejudiced the defense. The appellate court found that although the defendant raised through direct appeal his claim that trial counsel was ineffective for failing to object to the State's witnesses' and prosecutor's sentencing recommendations, the record did not support the conclusion that these failures to object fell below an objective standard of reasonableness. The appellate court concluded that the trial counsel's decision not to object to the punishment recommendations was not so deficient or lacking in tactical or strategical decision-making as to overcome the presumption that counsel's performance was reasonable and professional. Accordingly, the judgment of the trial court was affirmed.

The trial court did not make any findings of fact or conclusions of law, nor did it specify which factual or legal ground or agreement it was relying on when it compelled arbitration.
Rodriguez v. Tex. Leaguer Brewing Co. L.L.C
ADR, Appellate: Civil, Contracts, Damages, Procedure
Texas 14th Court of Appeals
July 09, 2019
14-17-00872-CV
Meagan Hassan
Published
The plaintiffs appealed the judgment of the trial court which granted the defendant’s application to compel arbitration and dismissed the suit for breach of contract. On appeal, the plaintiffs argued that, although the parties section 9.4 was not an agreement to arbitrate, they did not agree to arbitrate following mediation. The plaintiffs contended that this was because section 9.4.a referred to arbitration as an election, such as the party “electing” arbitration gave notice to the other parties and appointed an arbitrator. The appellate court noted that section 9.4 reflected a clear intent that if the parties were unable to settle their dispute through mediation, to submit to binding arbitration at the election of either party, and section 9.4 did not require consent of the other party when one party elected binding arbitration. The appellate court found that since the plaintiffs filed suit without first seeking mediation, they waived their right under section 9.4 to insist on mediation before arbitration and could not rely on their own failure to request mediation as a condition precedent to arbitration. The appellate court concluded that the trial court did not make any findings of fact or conclusions of law, nor did it specify which factual or legal ground or agreement it was relying on when it compelled arbitration. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.

The evidence was sufficient for the jury rationally to find that the defendant’s actions prevented or interfered with the victim’s ability to request assistance.
Williams v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
July 09, 2019
01-18-00332-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of interference with an emergency request for assistance and sentenced him to one year in jail, probated for 18 months. On appeal, the defendant contended that the trial court erred by denying her motion for an instructed verdict at the close of the State’s evidence and that the evidence was insufficient to support her conviction. The defendant maintained that a telecommunicator could not knowingly prevent or interfere with a caller’s ability to request assistance, as required to sustain a conviction under Section 42.062(a), then consider whether sufficient evidence supported her conviction. The appellate court noted that a challenge to a trial court’s ruling on a motion for a directed verdict was a challenge to the sufficiency of the evidence to support the conviction. The appellate court found that Section 42.062(a) did not require the State to prove a complete and indefinite foreclosure of the victim’s ability to request assistance. The appellate court concluded that the evidence was sufficient for the jury rationally to find that the defendant’s actions prevented or interfered with the victim’s ability to request assistance. Accordingly, the judgment of the trial court was affirmed.

The plaintiffs failed to present evidence sufficient to raise a genuine issue of material fact that the defendant was actually aware of the presence of any water or liquid on the floor, and the knowledge of the presence of the floor cleaning machine foreclosed the premises liability claim.
Wilson v. N.W. Tex. Healthcare Sys., Inc.
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 7th Court of Appeals
May 29, 2019
07-18-00073-CV
Judy C. Parker
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the defendant in a suit arising from a slip and fall. On appeal, the plaintiffs contended reversible error arose from improper venue. The appellate court noted that a hearing on a motion to compel was a preliminary matter in which a jury could not be demanded, and thus, the trial court could hold a hearing on the motion to compel in one county, even though the case was filed in another county. The plaintiffs maintained that a reasonable jury could view the evidence and decide in favor of the plaintiffs. The appellate court found that the plaintiffs’ negligence and negligent activity claims were based on an unsafe or dangerous condition on the property – the placement of the machine and the presence of liquid on the floor. The appellate court concluded that the plaintiffs failed to present evidence sufficient to raise a genuine issue of material fact that the defendant was actually aware of the presence of any water or liquid on the floor, and the knowledge of the presence of the floor cleaning machine foreclosed the premises liability claim. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the defendants were entitled to an award of reasonable and necessary attorney’s fees incurred with respect to the dismissed claims.
Darnell v. Rogers
Appellate: Civil, Constitution, Damages, Ethics, Procedure, Professional Responsibility, Torts
Texas 8th Court of Appeals
July 05, 2019
08-17-00067-CV
Yvonne T. Rodriguez
Published
The plaintiffs appealed the judgment of the trial court which dismissed their claims against the defendants pursuant to the Texas Citizen’s Participation Act (TCPA). On appeal, the plaintiffs contended that the trial court erred in granting the motion to dismiss under the TCPA, so the award of attorney’s fees based on TCPA could not stand, in granting the motion to dismiss pursuant to Rule 91a, and erred in awarding attorney’s fees. The appellate court noted that the merits of a Rule 91a motion to dismiss were reviewed de novo because the availability of a remedy under the facts alleged was a question of law and the rule’s factual-plausibility standard was akin to a legal-sufficiency review. The appellate court found that the trial court erred by granting the Rule 91a motion to dismiss as to the plaintiffs’ claims for defamation and business disparagement. The appellate court concluded that the defendants were entitled to an award of reasonable and necessary attorney’s fees incurred with respect to the dismissed claims. Accordingly, the judgment of the trial court was affirmed in part and reversed in part and remanded.

Based on due deference to the trial court’s credibility determinations, the trial court did not clearly abuse its discretion in failing to find a material and substantial change in circumstances sufficient to modify the parties’ child-support obligations.
In re N.H.N.
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
June 27, 2019
14-17-00725-CV
Tracy Christopher
Published
The father appealed the judgment of the trial court which denied his motion to modify an agreed order respecting child support. On appeal, the father contended that the trial court erred in failing to order the mother to pay him child support based on a material and substantial change in circumstances. The father also challenged the trial court’s failure to award him child support in pre- and post-judgment temporary orders. Specifically, the father asserted that by filing a counter-petition requesting child support and the right to establish the child’s primary residence, the mother judicially admitted that there had been a material and substantial change in circumstances, and thus, he was not required to prove such a change. The appellate court noted that after a trial court rendered a final judgment, any pre-judgment temporary orders became moot and were not subject to appellate review. The appellate court found that because the father’s attempted appeal of the prejudgment temporary order was rendered moot by the trial court’s final judgment, it must dismiss that part of the father’s appeal. The appellate court concluded that based on due deference to the trial court’s credibility determinations, the trial court did not clearly abuse its discretion in failing to find a material and substantial change in circumstances sufficient to modify the parties’ child-support obligations. Accordingly, the judgment of the trial court was affirmed.

The trial court abused its discretion in conditioning a new trial on the payment of attorney’s fees in spite of an uncontested affidavit of indigence.
Abrigo v. Ginez
Appellate: Civil, Damages, Family, Procedure
Texas 14th Court of Appeals
June 25, 2019
14-18-00280-CV
Kevin Jewell
Published
The wife appealed the judgment of the trial court which granted her motion for new trial conditioned on payment of the husband’s attorney’s fees in the underlying divorce. On appeal, the wife contended that the trial court abused its discretion in conditioning the grant of a new trial on paying the opposing side’s attorney’s fees because the wife was indigent and filed a statement of inability to pay costs under Texas Rule of Civil Procedure 145. The wife maintained that since she filed an affidavit of inability to pay costs, which qualified as a rule 145 statement, and it was not overruled by the trial court, it was an abuse of discretion to condition a new trial on payment of attorney’s fees. The husband counterargued that the wife’s affidavit was deficient in form, and the timing of her statement did not afford him sufficient time to assert a contest before the hearing. The appellate court found that the trial court’s order was an abuse of discretion. The appellate court concluded that the trial court abused its discretion in conditioning a new trial on the payment of attorney’s fees in spite of an uncontested affidavit of indigence. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

Since the adjoining neighbors had no duty under the doctrine of lateral support to support their own land, that doctrine imposed no absolute duty on them to repair the retaining wall.
Scott v. West
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 2nd Court of Appeals
July 03, 2019
02-18-00211-CV
Mark T. Pittman
Published
The plaintiffs appealed the judgment of the trial court, seeking damages and injunctive relief related to a failing retaining wall installed decades ago by the original developer of the parties’ properties, that separated the plaintiffs’ residential property from the neighbors’ elevated residential properties. On appeal, the appellate court was asked to determine whether the plaintiffs and neighbors had the legal duty to repair or replace the retaining wall. The appellate court noted that the duty was not specifically to build a retaining wall, rather the duty, as expressed through various causes of action, was for landowners to avoid using their property so as to injure another’s property. The appellate court found that liability under the doctrine arose only if the removal of lateral support caused the soil to subside. The appellate court concluded that since the adjoining neighbors had no duty under the doctrine of lateral support to support their own land, that doctrine imposed no absolute duty on them to repair the retaining wall. Accordingly, the judgment of the trial court was affirmed and remanded for further proceedings.

The appellate court concluded that the trial court appropriately exercised its discretion in refusing to dismiss the respondent’s lawsuit and in granting a new trial.
In re Coats
Appellate: Civil, Constitution, Litigation: Personal Injury, Procedure, Torts, Wills/Trusts/Probate
Texas 6th Court of Appeals
June 27, 2019
06-19-00040-CV
Ralph Burgess
Published
The petitioner appealed the judgment of the trial court which denied its motion to dismiss to personal injury suit based on a death and granted the respondent’s motion for new trial. On appeal, the petitioner claimed that the trial court lacked jurisdiction over the case after the decedent died and no estate representative was substituted in his stead. The petitioner further alleged that the trial court had no choice but to dismiss the lawsuit and that she had no adequate remedy by appeal because the new trial order and the writ of scire facias were issued by a court without jurisdiction to proceed. The appellate court noted that a suggestion of death of a defendant notified a trial court of the fact that a defendant died. The appellate court found that when a defendant died, the trial court only lost personal jurisdiction over the deceased defendant, not subject-matter jurisdiction over the case. The appellate court concluded that the trial court appropriately exercised its discretion in refusing to dismiss the respondent’s lawsuit and in granting a new trial. Accordingly, the judgment of the trial court was affirmed.

The trial court did not abuse its discretion when it denied the defendant’s request to instruct the jury on assault as a lesser-included offense.
Palacio v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
June 27, 2019
14-17-00512-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of burglary of a habitation and sentenced him to forty-five years imprisonment. On appeal, the defendant argued that the trial court allowed the State to define and discuss “deadly weapon” during voir dire, failed to grant a mistrial, and failed to instruct the jury on an alleged lesser-included offense of assault. The State counterargued that the defendant did not preserve error on his complaint that the trial court overruled his objection to the State’s discussion of the legal definition for “deadly weapon” because he did not first object when the trial court read the deadly-weapon paragraph to the panel. The appellate court noted that the trial court had broad discretion over the jury-selection process. The appellate court found that because the defendant failed to secure an adverse ruling on his first motion for mistrial, he failed to preserve the complaint for appellate review. The appellate court concluded that the trial court did not abuse its discretion when it denied the defendant’s request to instruct the jury on assault as a lesser-included offense. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that when a trial court's void judgment was appealed, it had jurisdiction to declare the judgment void and dismiss the underlying case.
In re G.X.H.
Appellate: Civil, Constitution, Family, Juvenile, Procedure
Texas 14th Court of Appeals
June 27, 2019
14-19-00053-CV
Ken Wise
Published
The parents appealed the judgment of the trial court which terminated their parental rights with respect to their sons and appointed the Texas Department of Family and Protective Services (the Department) to be the boys' managing conservator. On appeal, the parents contended that the decree was void because the trial on the merits did not commence before a statutory deadline. The parents further asserted that the evidence was legally and factually insufficient to support termination. The Department counterargued that the trial on the merits did commence before the deadline, and even if it did not, the decree was not void for various reasons. The appellate court found that the Department did not demonstrate section 263.401(a) violate the constitutional protections of equal protection, due process, or separation of powers, and therefore, it did not satisfy its burden to overcome the presumption that section 263.401(a) was constitutional. The appellate court noted that it lacked jurisdiction to address the merits of an appeal from a void judgment. The appellate court concluded that when a trial court's void judgment was appealed, it had jurisdiction to declare the judgment void and dismiss the underlying case. Accordingly, the judgment of the trial court was vacated.

The marital residence was community property at the time the payments were made, and thus, the wife was not entitled to an offset because community property funds were used to pay community property expenses.
In re Marriage of Rangel
Appellate: Civil, Family, Procedure, Real Property
Texas 14th Court of Appeals
June 27, 2019
14-17-00672-CV
Kevin Jewell
Published
The wife appealed the judgment of the trial court which entered a final decree of divorce dissolving her marriage to the husband. On appeal, the wife claimed that the trial court abused its discretion by excluding certain evidence, the cumulative effect of which denied her a fair trial and probably caused an improper judgment. The wife further asserted that the trial court’s equal disposition of the marital residence was manifestly unjust because it was unsupported by factually sufficient evidence. The appellate court noted that to show that the trial court abused its discretion in excluding evidence, a complaining party must preserve error by actually offering the evidence and obtaining an adverse ruling from the court. The appellate court found that since the wife failed make a timely offer of proof, it would not reach the issue of whether the trial court abused its discretion in excluding evidence that she used separate property to purchase the marital residence. The wife further alleged that the exclusion probably caused the rendition of an improper judgment because her testimony probably would have had a substantial impact on the division of the marital residence. The appellate court concluded that the marital residence was community property at the time the payments were made, and thus, the wife was not entitled to an offset because community property funds were used to pay community property expenses. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that no reasonable factfinder could form the firm belief or conviction that termination of the mother’s parental rights was in the best interest of the children.
In re K.N.J.
Family, Procedure
Texas 4th Court of Appeals
July 03, 2019
04-18-00826-CV
Luz Elena D Chapa
Published
The mother appealed the judgment of the trial court which terminated her parental rights. On appeal, the mother argued that there was legally and factually insufficient evidence that termination of her parental rights was in the children’s best interest. The Department maintained that the factor supported terminating Shari’s parental rights, pointing to evidence of a pattern of relationships with abusers and asserting Shari has not acknowledged the harm her former partners have caused the children. The Department further asserted that if and when the children achieved stability and reached a point in their therapy where they were ready for a permanent placement, the pool of potential foster-to-adopt homes would be smaller if the mother maintained her parental rights. The appellate court noted that the testimony at trial disclosed that the children were removed from the mother’s custody in as a result of allegations the mother’s boyfriend had sexually abused them. The appellate court found that the evidence was insufficient to prove that termination of the mother’s rights was in the children’s best interest. The appellate court concluded that no reasonable factfinder could form the firm belief or conviction that termination of the mother’s parental rights was in the best interest of the children. Accordingly, the judgment of the trial court was reversed in part.

The trial court was within its discretion to find that the defendant was manipulating his right to counsel by being intentionally uncooperative with counsel to get him to withdraw and trigger a continuance just days before trial.
Temple v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 03, 2019
06-19-00015-CR
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which convicted him of evading arrest or detention with a motor vehicle and sentenced him to forty years in prison. On appeal, the defendant argued that he received ineffective assistance of counsel, the trial court erred by denying his counsel’s motion to withdraw, and the trial court erred by denying his motion for continuance. The defendant further asserted that counsel was ineffective because he held a personal animus toward him. The appellate court noted that counsel admitted to having personal animus toward the defendant and voluntarily asked to be relieved from his appointed representation; however, counsel’s dislike of his client did not constitute deficient performance for purposes of ineffective assistance. The appellate court found that the defendant failed to show his counsel’s performance was deficient, the trial court was within its discretion to deny the motion to withdraw, and there was no error regarding the motion for continuance was preserved. The appellate court concluded that the trial court was within its discretion to find that the defendant was manipulating his right to counsel by being intentionally uncooperative with counsel to get him to withdraw and trigger a continuance just days before trial. Accordingly, the judgment of the trial court was affirmed.

The Department of Motor Vehicles’ explanation of its changes to the finding of fact and corresponding conclusions of law were insufficient to meet section 2001.058(e)’s requirements to state the specific reason and legal basis for the changes.
Hyundai Motor Am. v. New World Car Nissan, Inc.
Appellate: Civil, Gov't/Administrative, Procedure, Transportation
Texas 3rd Court of Appeals
July 03, 2019
03-17-00761-CV
THOMAS J. BAKER
Published
The petitioner appealed the decision of the Board of the Texas Department of Motor Vehicles (the Board) which determined that it violated the Texas Occupations Code in its transactions with its franchised dealers. On appeal, the Board contended that because the petitioner sought only judicial review of an order of the Board and asserted no other claim against any of the State defendants, those other defendants should be dismissed from the case with prejudice. The appellate court noted that the Occupations Code authorized judicial review of final actions of the Board in matters arising under Chapter 2301. The appellate court found that the Board did not explain how its opposite ultimate findings and conclusion were reasonably supported by the administrative law judge’s numerous basic findings that the Board adopted, and it did not articulate any rational connection between any underlying agency policy and the altered findings and conclusion. The appellate court concluded that the Board’s explanation of its changes to the finding of fact and corresponding conclusions of law were insufficient to meet section 2001.058(e)’s requirements to state the specific reason and legal basis for the changes. Accordingly, the decision of the Board was reversed and remanded for further proceedings.

The appellant did not meet its burden to show its entitlement to immunity from suit and the trial court erred in rendering summary judgment in favor of the appellee.
Houston Cmty. Coll. Sys. v. HV BTW, LP
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Real Property
Texas 14th Court of Appeals
July 02, 2019
14-18-00467-CV
Frances Bourliot
Published
The appellant appealed the judgment of the trial court which declared that the appellee had an easement on the property and awarded the appellee’s attorney’s fees. On appeal, the appellant challenged the trial court’s grant of summary judgment in favor of the appellee on the grounds that the appellant was entitled to immunity from suit and the appellee did not conclusively establish the easement agreement was properly executed. The appellant alleged that it was entitled to immunity from suit as a political subdivision for which immunity had not been waived. The appellee counterargued that immunity had been waived under chapter 271 of the Local Government Code, which waived governmental immunity from suit for a governmental entity that entered into a contract for services. The appellate court noted that the appellant was a public community college, was a political subdivision of the state and, thus, protected by governmental immunity. The appellate court concluded that the appellant did not meet its burden to show its entitlement to immunity from suit and the trial court erred in rendering summary judgment in favor of the appellee. Accordingly, the judgment of the trial court was reversed and remanded.

Though the trial court did not defer payment of the sanctions, the Pest Control Parties did not make the necessary allegations and showing to trigger that exception to the general rule that an appeal from an order awarding sanctions provided an adequate remedy.
In re Preventative Pest Control Houston, LLC
Appellate: Civil, Constitution, Damages, Discovery, Procedure
Texas 14th Court of Appeals
July 02, 2019
14-19-00274-CV
Kem Thompson Frost
Published
The relators appealed the judgment of the trial court, filing a petition for writ of mandamus, asking the appellate court to compel the trial judge to vacate the orders and compelling the Pest Control Parties to create lists to satisfy requests for production. On appeal, the relators claimed that the trial court abused its discretion by awarding attorney’s fees to the real party in interest as a discovery sanction. The appellate court noted that under Texas procedure, litigants were not required to produce documents or tangible things unless those items were within their possession, custody, or control. The appellate court found that the trial court exceeded the proper scope of discovery by going beyond what the rules of civil procedure permitted, and the trial court abused its discretion by directing the Pest Control Parties to create a Medications List an Employers List solely for purpose of responding to discovery. The appellate court concluded that though the trial court did not defer payment of the sanctions, the Pest Control Parties did not make the necessary allegations and showing to trigger that exception to the general rule that an appeal from an order awarding sanctions provided an adequate remedy. Accordingly, the relators’ petition was conditionally granted and denied in part.

The State carried its burden to justify the defendant’s warrantless arrest and the trial court did not abuse its discretion by denying the defendant’s motion to suppress
Arrington v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
July 02, 2019
01-17-00859-CR
Peter Kelly
Published
The defendant appealed the judgment of the trial court which denied his motion to suppress following his guilty plea to driving while intoxicated (DWI) and suspended his sentence and placed him on community supervision for eighteen months. On appeal, the defendant contended that the trial court erred by denying his motion to suppress because the deputy did not have probable cause or exigent circumstances for a warrantless arrest. The defendant further asserted that when the deputy approached him, he was standing behind a fence on his property, and therefore, he was within the curtilage of his home. The State responded that the deputy had probable cause to arrest the defendant for DWI and did not need a warrant because DWI was a breach of the peace and the defendant was in a suspicious place. The appellate court found that after giving due deference to the trial court’s determination of the historical facts and reviewing de novo the trial court’s application of the law to facts not based on an evaluation of credibility and demeanor, the State carried its burden to justify the defendant’s warrantless arrest. The appellate court concluded that the trial court did not abuse its discretion by denying the defendant’s motion to suppress. Accordingly, the judgment of the trial court was affirmed.

The deadline for filing a verified motion to reinstate was not extended by application of rule 306a(4), and thus, the plaintiffs’ notice of appeal was untimely.
Jarrell v. Bergdorf
Appellate: Civil, Procedure
Texas 14th Court of Appeals
July 02, 2019
14-18-00349-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court which dismissed their suit for want of prosecution. On appeal, the plaintiffs asked the appellate court to vacate the dismissal, reinstate their lawsuit, and remand the case for further proceedings. The defendant maintained that the appellate court lacked jurisdiction over the appeal. The appellate court noted that when a plaintiff’s lawsuit was dismissed for want of prosecution, the only available remedy was a motion for reinstatement. The appellate court was asked to determine whether the plaintiffs filed a motion to reinstate that satisfied the verification requirement within thirty days of the dismissal order, or if not, whether they established the right to an extended period under rule 306a and filed such a motion within the extended period. The appellate court found that the plaintiffs did not file a motion to reinstate that satisfied the verification requirement within thirty days of the date the dismissal order was signed. The appellate court concluded that the deadline for filing a verified motion to reinstate was not extended by application of rule 306a(4), and thus, the plaintiffs’ notice of appeal was untimely. Accordingly, the judgment of the trial court was affirmed.

The Supreme Court concluded that after considering the evidence in the light most favorable to the plaintiffs, a fact issue existed on foreseeability, and thus, the hospital’s plea to the jurisdiction was properly denied.
The Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie
Appellate: Civil, Constitution, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
June 28, 2019
17-0730
Debra Ann H. Lehrman
Published
The hospital appealed the judgment of the appellate court which affirmed the trial court’s finding that the plaintiffs sufficiently demonstrated both use and proximate cause and denied the hospital’s plea to the jurisdiction. On appeal, the Supreme Court was asked to determine whether the hospital’s use of an allegedly improper carrier agent during surgery constituted negligent “use” of tangible personal property and, if so, whether sufficient evidence was presented that this use proximately caused the patient’s death. The hospital argued that because the carrier agent was administered properly during surgery, the plaintiffs complained only of negligent medical judgment for which immunity was not waived. The Supreme Court noted that the Texas Tort Claims Act waived governmental immunity for personal injury and death proximately caused by a condition or use of tangible personal property. The Supreme Court found that the plaintiffs’ claim was premised on the hospital’s use of property that was improper under the circumstances and caused harm, and this was sufficient to establish negligent “use” under the Act, regardless of the manner in which the property was administered. The Supreme Court concluded that after considering the evidence in the light most favorable to the plaintiffs, a fact issue existed on foreseeability, and thus, the hospital’s plea to the jurisdiction was properly denied. Accordingly, the judgment of the appellate court was affirmed.

A plasma collection center could reject a person with a disability—eliminating their opportunity to donate plasma and receive compensation—without committing impermissible discrimination under section 121.003(a).
Silguero v. CSL Plasma, Inc.
Appellate: Civil, Civil Rights, Damages, Gov't/Administrative, Health Care, Procedure
The Supreme Court of Texas
June 28, 2019
18-1022
Paul W. Green
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendant where the plaintiff alleged discrimination under the Americans with Disabilities Act (ADA). On appeal, the Supreme Court was asked to answer two questions certified by the appellate courts: (1) whether a plasma collection center was a “public facility” under Texas Human Resources Code (THRC) section 121.002(5), and if so, (2) what standard applied for determining whether a public facility’s rejection of a person with a disability constituted impermissible discrimination under the THRC. The Supreme Court noted that the Legislature intended the THRC to encompass exceptions to the requirement that persons with disabilities be afforded full use and enjoyment of a public facility to the same extent as the general public. The Supreme Court found that a plasma collection center was a “public facility” under section 121.002(5). The Supreme Court concluded that a plasma collection center could reject a person with a disability—eliminating their opportunity to donate plasma and receive compensation—without committing impermissible discrimination under section 121.003(a). Accordingly, the judgment of the trial court was affirmed.

The insured did not establish that it was entitled to TPPCA prompt pay damages as a matter of law and the insurer did not establish that it could owe no TPPCA damages.
Barbara Technologies Corp. v. Lloyds
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Insurance, Procedure, Torts
The Supreme Court of Texas
June 28, 2019
17-0640
Paul W. Green
Published
The insured appealed the judgment of the appellate court which affirmed the trial court’s denial of its motion for summary judgment. On appeal, the Supreme Court was asked to consider whether an insured party could prevail on its claim for damages for delayed payment pursuant to the Texas Prompt Payment of Claims Act (TPPCA) when it was undisputed that the insurer investigated the claim, rejected it, invoked the policy’s provision for an appraisal process, and ultimately paid the insured in full in accordance with the appraisal. The Supreme Court found that the insurer’s payment based on the appraisal was neither an acknowledgment of liability under the policy nor an award of actual damages. The Supreme Court concluded that the insured did not establish that it was entitled to TPPCA prompt pay damages as a matter of law and the insurer did not establish that it could owe no TPPCA damages. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.   

The payment barred the insured’s common law and statutory bad faith claims to the extent the only actual damages sought by the insured were lost policy benefits and the insured could proceed on his claim under the Prompt Payment Act.
Ortiz v. State Farm Lloyds
Appellate: Civil, Contracts, Damages, Insurance, Procedure
The Supreme Court of Texas
June 28, 2019
17-1048
Debra Ann H. Lehrman
Published
The insured appealed the judgment of the appellate court which granted the insurer’s motion for summary judgment and motion to compel appraisal in the underlying action. On appeal, the Supreme Court was asked to determine the effect of an insurer’s payment of an appraisal award on an insured’s claims for breach of contract, bad faith insurance practices, and violations of the Texas Prompt Payment of Claims Act. The insured asserted that, by paying him the proper amount only after the appraisal award was issued, the insurer used the appraisal provision to excuse its failure to comply with its other contractual duties to timely pay its policyholders what they were entitled to under the policy. The Supreme Court noted that appraisal clauses in Texas insurance policies have long provided a mechanism to resolve disputes between policy holders and insurers about the amount of loss for a covered claim. The Supreme Court found that the insurer’s payment of the award barred the insured’s breach of contract claim premised on failure to pay the amount of the covered loss. The Supreme Court concluded that the payment barred the insured’s common law and statutory bad faith claims to the extent the only actual damages sought by the insured were lost policy benefits and the insured could proceed on his claim under the Prompt Payment Act. Accordingly, the judgment of the appellate court was affirmed in part and reversed in part.

The plain language of the contract unambiguously entitled the defendant to withhold its consent to a proposed assignment, and therefore the defendant could not have breached the contract as a matter of law.
Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc.
Appellate: Civil, Contracts, Procedure, Torts
The Supreme Court of Texas
June 28, 2019
17-0332
Paul W. Green
Published
The plaintiff appealed the judgment of the appellate court which reversed the trial court’s decision granting judgment in favor of the plaintiff in the breach-of-contract case. On appeal, the Supreme Court was asked to determine whether the appellate court erred in holding that the plaintiff could not prevail on its breach of contract claim as a matter of law because the contract’s consent-to-assignment provision unambiguously gave the defendant an unqualified right to refuse to consent, and holding that the plaintiff could not prevail on its fraud claim as a matter of law because it could not justifiably rely on an oral promise to do something that was addressed in the written contract. The Supreme Court noted that the consent-to-assign provision plainly stated that the plaintiff could not assign its rights unless it obtained the defendant’s consent, which must be express and in writing. The Supreme Court concluded that the plain language of the contract unambiguously entitled the defendant to withhold its consent to a proposed assignment, and therefore the defendant could not have breached the contract as a matter of law. The Supreme Court further found that the plaintiff could not justifiably rely on an oral statement where the written terms of the contract controlled. Accordingly, the judgment of the appellate court was affirmed.

The trial court lacked jurisdiction over the permitholders’ requested ownership declaration and were not entitled to an opportunity to amend. 
Bailey v. Smith
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Real Property
Texas 3rd Court of Appeals
June 28, 2019
03-17-00703-CV
Edward Smith
Published
The permitholders appealed the judgment of the trial court which granted the Parks and Wildlife Department’s (the Department) partial plea to the jurisdiction and motion for summary judgment and awarded the Department its attorneys' fees. This appeal stemmed from the permitholders’ suit against the Department to establish that breeder deer were or became private property and to invalidate Department rules requiring breeders to test for chronic wasting disease. On appeal, the appellate court was asked to determine whether the trial court correctly concluded that sovereign immunity barred it from deciding the permitholders’ claim for a declaration of ownership and his ultra vires claims. The permitholders asserted that the Department's immunity did not apply because it requested attorney's fees. The appellate court noted that the Texas Supreme Court held that when a governmental entity asserted affirmative claims for monetary recovery, immunity did not apply to counterclaims for monetary relief that were germane to, connected with, and properly defensive to those asserted by the governmental entity. The appellate court found that the trial court lacked jurisdiction over the permitholders’ requested ownership declaration and were not entitled to an opportunity to amend. Accordingly, the judgment of the trial court was affirmed.

The plaintiff failed to meet his burden to establish clear and specific evidence of a prima facie case for each essential element of his defamation claim.
Baumgart v. Archer
Appellate: Civil, Constitution, Damages, Discovery, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
June 27, 2019
01-18-00298-CV
Sarah Beth Landau
Published
The plaintiff appealed the judgment of the trial court which dismissed his suit for defamation and for an award of attorney’s fees under the Texas Citizens Participation Act (TCPA). On appeal, the plaintiff contended that the TCPA did not protect the defendant’s defamatory speech, he made a prima facie showing of defamation, and the trial court’s refusal to allow discovery before dismissing his claims violated Texas’s due-process guarantee of open courts. The plaintiff further maintained that a jury trial on the reasonableness of the defendant’s attorney’s fees was constitutionally required and the TCPA operated, on its face and as-applied, as an unconstitutional restraint on a plaintiff’s speech. The appellate court noted that the TCPA was a bulwark against retaliatory lawsuits meant to intimidate or silence citizens on matters of public concern. The appellate court found that the defendant met its initial burden to establish by a preponderance of the evidence that the plaintiff’s legal action was based on, related to, or was in response to its exercise of the right of free speech, as defined in the TCPA. The appellate court concluded that the plaintiff failed to meet his burden to establish clear and specific evidence of a prima facie case for each essential element of his defamation claim. Accordingly, the judgment of the trial court was affirmed.

The trial court lacked subject-matter jurisdiction over the portion of the petitioner’s declaratory-judgment claim. The appellate court concluded that the trial court did not err in granting the City a directed verdict on the petitioner’s declaratory-judgment claim.
Schrock v. Baytown
Appellate: Civil, Constitution, Gov't/Administrative, Procedure, Real Property
Texas 1st Court of Appeals
June 27, 2019
01-17-00442-CV
Julie Countiss
Published
The petitioner appealed the judgment of the trial court which rendered judgment in favor of the City in the petitioner’s suit against the City for taking his property and for a declaratory judgment. On appeal, the petitioner contended that the trial court erred in granting the City a directed verdict on his claims because there were material fact issues to be determined by the jury. The appellate court noted that to determine whether a regulatory taking resulted from the government’s unreasonable interference with a property owner’s right to use and enjoy his property, courts must consider three factors: (1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interfered with the property owner’s distinct investment-backed expectations; and (3) the character of the governmental action. The appellate court found that the trial court lacked subject-matter jurisdiction over the portion of the petitioner’s declaratory-judgment claim. The appellate court concluded that the trial court did not err in granting the City a directed verdict on the petitioner’s declaratory-judgment claim. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.

The appellate court concluded beyond a reasonable doubt that the erroneous admission of the written autopsy report did not contribute to the defendant’s conviction.
Henriquez v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
June 27, 2019
01-18-00528-CR
Evelyn Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of first-degree felony offense of murder and assessed his punishment at eighty years’ confinement. On appeal, the defendant contended that the trial court erred when it admitted the complainant’s written autopsy report, completed by a medical examiner who did not testify at trial, in violation of the Confrontation Clause. The appellate court noted that an autopsy report was considered testimonial when an objective medical examiner would reasonably believe that the report would be used in a later prosecution. The appellate court found that, considering the circumstances surrounding the death, an objective medical examiner would reasonably believe that the autopsy report prepared by the doctor would be used in a later prosecution. The appellate court concluded beyond a reasonable doubt that the erroneous admission of the written autopsy report did not contribute to the defendant’s conviction. Accordingly, the judgment of the trial court was affirmed.

The criminal appellate court concluded that the evidence was sufficient to show that the complainant was discharging an official duty when the defendant assaulted him.
Cuevas v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
June 26, 2019
PD-0314-18
Mary Lou Keel
Published
The State appealed the judgment of the appellate court which reversed the defendant’s conviction for assault on a peace officer, finding that the evidence was insufficient to show that the complainant was discharging an official duty when he was assaulted. On appeal, the criminal appellate court was asked to consider whether a peace officer working as private security was discharging an official duty when he was acting under Texas Alcoholic Beverage Code Section 101.07. The State maintained that Section 101.07 required peace officers to enforce the provisions of the Texas Alcoholic Beverage Code, and a peace officer working private security who enforced Section 28.10(b) was lawfully discharging an official duty. The criminal appellate court noted that by enforcing Section 28.10(b) as required by Section 101.07, the complainant was discharging an official duty. The criminal appellate court found that the evidence was legally sufficient to show that the complainant was discharging an official duty when the defendant assaulted him. The criminal appellate court concluded that the evidence was sufficient to show that the complainant was discharging an official duty when the defendant assaulted him. Accordingly, the judgment of the appellate court was reversed.

The testimony of the three witnesses constituted more than a scintilla of evidence supporting the Health and Human Services Commission's final order determining that the Commission met its burden. 
Pers. Care Products, Inc. v. Smith
Appellate: Civil, Constitution, Gov't/Administrative, Health Care, Procedure
Texas 3rd Court of Appeals
June 26, 2019
03-18-00344-CV
Gisela D. Triana
Published
The petitioner appealed the judgment of the trial court which affirmed a final administrative order requiring it to repay overpayments that the Texas Health and Human Services Commission (the Commission) made to the petitioner. On appeal, the petitioner asserted that the trial court erred in declining to issue findings of fact and conclusions of law, the adjustment to the amount of the administrative overpayment announced during the administrative hearing on the merits did not provide proper notice of the overpayment, the administrative law judge violated the administrative code and the due process clause of the Constitution by issuing the second PFD too late, and the Commissioner's final order was entitled to recover the extrapolated overpayment was error as a matter of law. The appellate court found that the trial court was not required to issue findings of fact and conclusions of law under Rule 296 after conducting a substantial-evidence review of an agency's final order. The appellate court concluded that the testimony of the three witnesses constituted more than a scintilla of evidence supporting the Commission's final order determining that the Commission met its burden. Accordingly, the judgment of the trial court was affirmed.

The relator was not entitled to mandamus relief challenging the trial court’s denial of the relator’s Rule 91a motion to dismiss the negligent-failure-to-settle claim.
In re Farmers Tex. Cnty. Mut. Ins. Co.
Appellate: Civil, Constitution, Contracts, Insurance, Torts
Texas 4th Court of Appeals
June 26, 2019
04-19-00180-CV
Patricia O. Alvarez
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus in a breach-of-contract and negligent-failure-to-settle claim. On appeal, the relator asserted that the trial courts abused their discretion by denying the motions to dismiss. The relator argued that the trial court abused its discretion by denying its motion to dismiss her breach of contract claim because she never became “legally responsible” to pay damages, the insurance policy contained a “no action” clause, and it could not be held liable for defending or settling claims against her as it deemed appropriate. The appellate court noted that Texas Rule of Civil Procedure 91a provided that a party may move to dismiss a cause of action on the grounds that it had no basis in law or fact. The appellate court found that mandamus would not issue when the law provided another plain, adequate, and complete remedy. The appellate court concluded that the relator was not entitled to mandamus relief challenging the trial court’s denial of the relator’s Rule 91a motion to dismiss the negligent-failure-to-settle claim. Accordingly, the relator’s mandamus was granted.

The evidence was legally sufficient to support the jury’s verdict of guilty for the offense of murder under a party theory of liability.
Garcia v. State
Criminal, Evidence, Procedure
Texas 9th Court of Appeals
June 26, 2019
09-17-00305-CR
Charles A. Kreger
Published
The defendant appealed the judgment of the trial court which convicted him of murder and sentenced him to seventy years’ confinement in the Institutional Division of the Texas Department of Corrections. On appeal, the defendant challenged the sufficiency of the evidence and asserted that the evidence was not legally sufficient to sustain the conviction because the evidence was insufficient to prove the defendant caused the death of the complainant. The defendant further alleged that the evidence was insufficient to prove the alleged offense was committed intentionally, the evidence was insufficient to prove the alleged offense was committed knowingly, and the trial court erred in denying the defendant’s motion for instructed verdict of not guilty for insufficient evidence. The appellate court found that it would look to the non-accomplice testimony and evidence together, instead of as isolated incidents, to determine if it to tended to connect the defendant to the offense of murder. The appellate court noted that Texas Penal Code section 6.03 defined culpable mental states. The appellate court concluded that the evidence was legally sufficient to support the jury’s verdict of guilty for the offense of murder under a party theory of liability. Accordingly, the judgment of the trial court was affirmed.

Since the trial court considered affidavits and billing records in awarding attorney's fees, the record contained some evidence to support the trial court's award of attorney's fees.
Day v. Fed’n of State Med. Boards of the U.S., Inc.
Appellate: Civil, Business, Constitution, Damages, Procedure, Torts
Texas 4th Court of Appeals
June 26, 2019
04-18-00605-CV
Irene Rios
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion to dismiss the suit for defamation and tortious interference with prospective business relations and awarded attorney’s fees. On appeal, the plaintiff argued that the trial court erred by denying his motion to strike an affidavit, dismissing his suit because the Texas Citizens Participation Act (TCPA) did not apply, dismissing his suit because he established a prima facie case for both defamation and tortious interference, and awarding the defendant attorney's fees. The appellate court noted that if the defendant met its initial burden, then the burden shifted to the plaintiff to establish by clear and specific evidence a prima facie case for each essential element of the claim in question. The appellate court found that the trial court did not abuse its discretion in denying the plaintiff’s motion to strike the affidavit. The appellate court concluded that since the trial court considered affidavits and billing records in awarding attorney's fees, the record contained some evidence to support the trial court's award of attorney's fees. Accordingly, the judgment of the trial court was affirmed.

The City’s Historic Preservation Ordinance did not constitute a zoning measure and did not violate the City Charter's limitations on the City's zoning power or the provisions of chapter 211.
Powell v. Houston
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Zoning
Texas 1st Court of Appeals
June 25, 2019
01-18-00237-CV
Evelyn V. Keyes
Published
The homeowners appealed the judgment of the trial court which rendered a take-noting judgment in favor of the City in the homeowners’ suit asserting that the City's Historic Preservation Ordinance (the Ordinance) violated the City Charter's prohibition against zoning regulations. On appeal, the homeowners argued that the City's Ordinance and regulations for geographic historic district and land use constituted zoning, the City's historic district zoning laws violated the City Charter, and the City's historic district zoning laws violated the Texas Legislature's Zoning Enabling Act. The appellate court noted that in construing statutes or ordinances, it would ascertain and give effect to the legislative body's intent as expressed by the language of the statute. The homeowners further alleged that, because of the type of regulation it permitted, the Ordinance constituted de facto zoning. The appellate court found that there was no evidence that the Ordinance applied to the City in a comprehensive manner. The appellate court concluded that the Ordinance did not constitute a zoning measure and did not violate the City Charter's limitations on the City's zoning power or the provisions of chapter 211. Accordingly, the judgment of the trial court was affirmed.

The appellate court found that the City established that it was entitled to judgment as a matter of law in the contestants election-contest action of the proposed charter amendment.
Bryant v. Parker
Appellate: Civil, Election, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
June 25, 2019
01-18-00400-CV
Evelyn V. Keyes
Published
The contestants appealed the judgment of the trial court which denied their motions in an election contest action. On appeal, the contestants argued that the trial court erred in granting the City’s motion for summary judgment and in denying their own motions for summary judgment because the ballot language “affirmatively misrepresented” and “omitted” the true character, purpose, and chief feature of the Charter Amendment. The appellate court noted that the Texas Election Code granted discretion to the authority ordering the election to prescribe the wording of a proposition unless otherwise provided by law. The appellate court found that the City established that it was entitled to judgment as a matter of law. The contestants also alleged that the trial court erred in granting the City’s motion and denying their own motions because the language of Proposition 2 was misleading and deceptive. The appellate court concluded that the ballot language did mention, albeit in a generalized manner, that the measure provided for “transition.” Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court did not err by granting the defendant’s motion for summary judgment on the ground of limitations.
Acosta v. Falvey
Appellate: Civil, Procedure, Torts, Wills/Trusts/Probate
Texas 8th Court of Appeals
June 21, 2019
08-16-00295-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment and ordered the plaintiff’s take nothing on their claims against him arising out of the defendant’s legal representation of concerning the estate of her husband. On appeal, the plaintiff asserted that the trial court erroneously, and unintentionally, denied his counterclaim for sanctions by ordering that all relief not expressly granted was denied. The appellate court noted that a party asserting fraudulent concealment to avoid the defense of limitations must prove that the defendant actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong. The appellate court found that the summary judgment record conclusively established that the claims accrued and that the lawsuit filed was time-barred. The appellate court concluded that the trial court did not err by granting the defendant’s motion for summary judgment on the ground of limitations. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that it was within the trial court's discretion to find that the defendants’ motion to dismiss was frivolous.
Lei v. Natural Polymer Int’l Corp.
Appellate: Civil, Constitution, Damages, Procedure
Texas 5th Court of Appeals
June 21, 2019
05-18-01041-CV
Leslie Lester Osborne
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss under the Texas Citizens Participation Act. (TCPA) and which granted attorney's fees and court costs to the plaintiffs based on a finding that the motion to dismiss was frivolous. On appeal, the defendants argued that the plaintiffs’ claims were based on or related to their exercise of the right of free speech, the right of association, and the right to petition. The defendant contended that the plaintiffs’ claims were based on their right of free speech because the communications were made in connection with a matter of public concern, specifically a good, product, or service in the marketplace. The appellate court found that the TCPA's protection of the right of association did not apply to claims for the misappropriation of trade secrets, conversion, and tortious interference based on communications between the alleged tortfeasors and the common interest of a competing business enterprise that was allegedly using the misappropriated confidential information. The appellate court concluded that it was within the trial court's discretion to find that the defendants’ motion to dismiss was frivolous. Accordingly, the judgment of the trial court was affirmed.

The trial court used its authority under Chapter 10 to shift responsibility for the defendant’s reasonable attorney’s fees to the plaintiff as a penalty for his pursuit of groundless claims.
Nath v. Tex. Children’s Hosp.
Appellate: Civil, Damages, Procedure
The Supreme Court of Texas
June 21, 2019
17-0110
Per Curiam
Published
The plaintiff appealed the judgment of the trial court which awarded the defendants a monetary sanction and attorney’s fees in defending against a frivolous suit brought by the plaintiff. On appeal, the plaintiff argued that the defendants’ affidavits were insufficient to prove that the sanction was a reasonable and necessary attorney’s fee. The defendants maintained that a different standard of proof applied for attorney’s fees awarded as sanctions because the purpose of sanctions was to punish violators and deter misconduct. The Supreme Court noted that before a court could exercise its discretion to shift attorney’s fees as a sanction, there must be some evidence of reasonableness because without such proof a trial court could not determine that the sanction was no more severe than necessary to fairly compensate the prevailing party. The Supreme Court found that the trial court used its authority under Chapter 10 to shift responsibility for the defendant’s reasonable attorney’s fees to the plaintiff as a penalty for his pursuit of groundless claims. The Supreme Court concluded that the standard for fee-shifting awards applied to fee-shifting sanctions. Accordingly, the judgment of the trial court was affirmed and remanded for further proceedings.

The appellate court erroneously awarded the respondents’ title to the property as a remedy for their breach of warranty claim, when a proper remedy would be monetary damages.
Trial v. Dragon
Appellate: Civil, Contracts, Damages, Procedure, Real Property, Wills/Trusts/Probate
The Supreme Court of Texas
June 21, 2019
18-0203
Paul W. Green
Published
The respondents appealed the judgment of the appellate court which affirmed the trial court’s holding that the petitioners were entitled to retain the interest inherited from their mother. On appeal, the Supreme Court was asked to consider whether the estoppel by deed doctrine applied to prevent the petitioners from asserting title to an interest they inherited from their mother, when their father previously purported to sell that interest to the respondents. The respondents asserted that the trial court erred in denying their motion for summary judgment because the deed conveyed the entire interest in the property, and estoppel by deed divested the petitioners of any interest. The Supreme Court noted that in the broadest sense, estoppel by deed stood for the proposition that all parties to a deed were bound by the recitals in it, which operated as an estoppel. The Supreme Court found that the appellate court erroneously awarded the respondents’ title to the property as a remedy for their breach of warranty claim, when a proper remedy would be monetary damages. The Supreme Court concluded that neither the estoppel by deed doctrine nor its opinion in Duhig v. Peavy-Moore Lumber Co., applied in this case. Accordingly, the judgment of the appellate court was reversed and remanded.

Sovereign immunity barred the petitioner’s ultra vires claim, and thus, the trial court did not err in granting the Commission’s plea to the jurisdiction.
Grossman v. Wolfe
Appellate: Civil, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
June 21, 2019
03-19-00002-CV
Jeff Rose
Published
The petitioner appealed the judgment of the trial court which sustained the Texas Historical Commission’s (the Commission) plea to the jurisdiction. This appeal stemmed from the petitioner’s suit for declaratory and injunctive relief related to the allegedly unlawful issuance of an archeological permit for an area of downtown El Paso designated as the site for a proposed construction project. On appeal, the petitioner asserted that the trial court erred in concluding that it lacked subject-matter jurisdiction because sovereign immunity did not bar his ultra vires claims against the Commission, and the Antiquities Code waived sovereign immunity for claims that a government body or government official violated or threatened to violate the Antiquities Code. The petitioner further alleged that the Antiquities Code conferred standing to sue because he was a citizen of the State. The appellate court found that the jurisdictional defect would remain because the Antiquities Code did not waive the Commission’s sovereign immunity. The appellate court concluded that sovereign immunity barred the petitioner’s ultra vires claim, and thus, the trial court did not err in granting the Commission’s plea to the jurisdiction. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the evidence was legally sufficient to support the damages award, regardless of whether the valuation testimony was considered probative.
Subsea 7 Port Isabel, LLC v. Port Isabel Logistical Offshore Terminal, Inc.
Appellate: Civil, Contracts, Damages, Evidence, Landlord and Tenant, Procedure
Texas 13th Court of Appeals
June 20, 2019
13-17-00144-CV
Dori Contreras
Published
The tenant appealed the judgment of the trial court which found that the parties’ sublease was not renewed. On appeal, the appellate court was asked to consider whether a sublease agreement was effectively renewed. The tenant contended that the trial court erred in awarding damages and prejudgment interest to the landlord. The landlord challenged the trial court’s failure to award attorney’s fees and a provision in the final judgment allowing it to remove improvements from the subject premises. The tenant further contended that the trial evidence conclusively established its affirmative defenses of equitable estoppel, quasi-estoppel, and waiver. The appellate court noted that the tenant had the burden to prove estoppel and waiver at trial. The appellate court found that the tenant’s quasi-estoppel defense was not established as a matter of law. The appellate court concluded that the evidence was legally sufficient to support the damages award, regardless of whether the valuation testimony was considered probative. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.

The trial court did not err in dismissing the Fund’s claims against the City and the City Officials for lack of subject-matter jurisdiction.
Houston Firefighters’ Relief & Ret. Fund v. Houston
Appellate: Civil, Constitution, Damages, Gov't/Administrative, Procedure, Torts
Texas 14th Court of Appeals
June 20, 2019
14-17-00533-CV
Kem Thompson Frost
Published
The Houston Firefighters’ Relief and Retirement Fund (the Fund) appealed the judgment of the trial court which granted the City’s jurisdictional pleas in a suit where the Fund challenged the constitutionality of amendments to the Fund’s governing statute. On appeal, the Fund asserted that the amendments facially violated article XVI, section 67(f) of the Texas Constitution and sought declaratory, injunctive, and mandamus relief, as well as a money judgment and attorney’s fees. The Fund further maintained that the trial court abuse its discretion in its alternative ruling denying the Fund’s request for a temporary injunction. The appellate court noted that the City was a governmental entity that generally enjoyed governmental immunity from suit and from liability as to claims based on its performance of a governmental function unless its governmental immunity had been waived. The appellate court found that the City’s governmental immunity was not waived as to each of the constitutional challenges the Fund raised on appeal because the Fund did not plead a viable or valid constitutional claim. The appellate court concluded that the trial court did not err in dismissing the Fund’s claims against the City and the City Officials for lack of subject-matter jurisdiction. Accordingly, the judgment of the trial court was affirmed.

The reporting duties of Section 550.025 were not limited to public structures but apply when the operator of a vehicle was involved in an accident resulting only in damage to a privately-owned structure adjacent to a highway.
Mitchell v. State
Constitution, Criminal, Damages, Evidence, Procedure
Texas 1st Court of Appeals
June 20, 2019
01-18-00609-CR
Laura Carter Higley
Published
The defendant appealed the judgment of the trial court which convicted him of violating Section 550.025(a) of the Transportation Code by failing to report an accident resulting only in damage to a structure adjacent to a highway. On appeal, the defendant argued that the trial court erred in denying his motion for directed verdict because Section 550.025(a) did not require a motorist to report an accident when the damage occurred to private residential property. The defendant asserted that the facts did not constitute an offense under Section 550.025 because the statute did not create an affirmative duty to report and provide information upon striking private structures located on private property, such as the house at issue in this case. The appellate court noted that to determine whether the term “structure” included private residential property, it would begin with the term itself. The appellate court found that in construing the statute according to its plain meaning, the reporting duties of Section 550.025 were not limited to public structures but apply when the operator of a vehicle was involved in an accident resulting only in damage to a privately-owned structure adjacent to a highway. Accordingly, the judgment of the trial court was affirmed.

A rational trier of fact could have found beyond a reasonable doubt that the defendant knew he had a duty to register as a sex offender and knew he had a duty to verify his registration.
Cloud v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
June 20, 2019
14-18-00097-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of failure to comply with a sex-offender registration requirement. On appeal, the defendant challenged the sufficiency of the evidence to support his conviction. The appellate court noted that the uncontested evidence showed that the defendant was a person required to register, and specifically that he was required either to verify that the Registered Address remained correct or provide his correct address before signing the form to verify his registration. The appellate court found that a rational trier of fact could have found beyond a reasonable doubt that the defendant failed to verify an accurate address and failed to comply with the requirement that he provide his correct address before signing the form to verify his registration. The appellate court concluded that a rational trier of fact could have found beyond a reasonable doubt that the defendant knew he had a duty to register as a sex offender and knew he had a duty to verify his registration. Accordingly, the judgment of the trial court was affirmed.

The Supreme Court concluded that the statutes applied to the inmate’s claims and the inmate failed to raise a material fact issue under the statutes’ heightened liability standard.
Tarrant Cnty. v. Bonner
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
May 24, 2019
18-0431
Jeffrey S. Boyd
Published
The inmate appealed the judgment of the appellate court which reversed its grant of the inmate’s motion for summary judgment. On appeal, the Supreme Court was asked to consider the liability standard that applied to an inmate’s suit for personal injury allegedly sustained during his incarceration in the county jail. The inmate maintained that there must be some limit to the breadth of the acts or omissions encompassed by the phrase “in connection with.” The County argued that a legitimate connection existed between its alleged acts and omissions and the inmate’s medical treatment because the inmate would not have a claim for damages but for that connection. The Supreme Court noted that article 42.20 stated that certain individuals and governmental entities were not liable for damages arising from action or inaction in connection with an inmate activity, including treatment activities, if the action or inaction was performed in an official capacity and was not performed with conscious indifference. The Supreme Court found that because the inmate’s damages claim rested on the County’s alleged negligent acts and omissions intersecting with his medical treatment, and therefore, they were “in connection with” each other. The Supreme Court concluded that the statutes applied to the inmate’s claims and the inmate failed to raise a material fact issue under the statutes’ heightened liability standard. Accordingly, the judgment of the appellate court was reversed.

A connection existed between the defendant law enforcement officer’s job responsibilities and the alleged tort because he was exercising a statutory grant of authority to make a warrantless arrest for a crime committed in his presence.
Garza v. Harrison
Appellate: Civil, Employment, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
May 24, 2019
17-0724
Eva M. Guzman
Published
The petitioner appealed the judgment of the appellate court which affirmed the officer’s dismissal motion, citing a fact issue as to whether the officer was acting as a peace officer or as a security guard for his landlord at the time of the shooting. This appeal stemmed from the decedent’s parents suing the officer in his individual capacity for wrongful death under the Texas Tort Claims Act. On appeal, the petitioner argued that section 101.106(f) was inapplicable because the officer was acting in the scope of his employment as a courtesy patrol officer for the apartment complex, not as a peace officer under his commission with the Police Department. The Supreme Court noted that the election-of-remedies provision in section 101.106(f) of the Act required courts to grant a motion to dismiss a lawsuit against a governmental employee sued in an “official capacity” but allowed the governmental unit to be substituted for the employee. The Supreme Court found that even if work was performed wrongly or negligently, the inquiry was satisfied if, when viewed objectively, a connection existed between the employee’s job duties and the alleged tortious conduct. The Supreme Court concluded that a connection existed between the defendant law enforcement officer’s job responsibilities and the alleged tort because he was exercising a statutory grant of authority to make a warrantless arrest for a crime committed in his presence. Accordingly, the judgment of the appellate court was reversed.

By agreeing to limit the jury submissions to contract formation, breach, and specific affirmative defenses, the respondent waived the right to insist on any other fact findings that might otherwise have been required to entitle the petitioner to specific performance.
Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd.
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Procedure, Torts
The Supreme Court of Texas
May 24, 2019
18-0186
Eva M. Guzman
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court’s decision rendering judgment awarding specific performance as provided by the parties’ agreement in an action where the petitioner claims a 25% working interest in mineral leases under a letter agreement. On appeal, the respondent argued that the Letter Agreement was not an enforceable contract, the trial court’s specific-performance order was improper because the petitioner failed to establish that it was ready, willing, and able to fulfill its contractual obligations, and the trial court improperly awarded damages and prejudgment interest contrary to the parties’ stipulations and without supporting evidence. The Supreme Court noted that its primary objective in construing contracts is to give effect to the written expression of the parties’ intent. The Supreme Court found that because the seller did not concede or stipulate in the trial court that the purchaser was ready, willing, and able to perform, the purchaser still had to prove it. The Supreme Court concluded that by agreeing to limit the jury submissions to contract formation, breach, and specific affirmative defenses, the respondent waived the right to insist on any other fact findings that might otherwise have been required to entitle the petitioner to specific performance. Accordingly, the judgment of the appellate court was reversed and remanded.

The student worker adjustment provision did require upward adjustment of the student’s calculated average weekly wages, but that his benefit recovery was capped at 60 percent of the adjusted average weekly wage amount.
Ferrell v. The Univ. of Tex. Sys.
Appellate: Civil, Education, Employment, Gov't/Administrative, Procedure, Torts, Workers' Compensation
Texas 8th Court of Appeals
May 17, 2019
08-17-00065-CV
Yvonne T. Rodriguez
Published
The university appealed the decision of the Texas Department of Insurance Division of Workers’ Compensation (the Division) which awarded the student workers’ compensation benefits totaling 75 percent of the weekly wage he earned during his undergraduate student. On appeal, the appellate court was asked to consider, when a student-employee was injured on the job, was the student eligible for workers’ compensation from a public university. The university contended that the student did not qualify for a Section 408.044 student worker wage adjustment, and that even if he did, the Section 503.021(b) provision applicable to part-time employees capped any benefits recovery at 60 percent and prevented upward wage adjustment. The student asserted that he established the factual predicate for a Section 408.044 student worker wage adjustment, and that the student worker adjustment was available because the adjustment could be reconciled with the Labor Code provisions generally applicable to the university. The appellate court concluded that the student worker adjustment provision did require upward adjustment of the student’s calculated average weekly wages, but that his benefit recovery was capped at 60 percent of the adjusted average weekly wage amount. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

By failing to transfer the funds from a verified collected balance, the bank subsequently breached the parties’ wire transfer agreement, thereby causing the overdraft and entitling the defendant to offset the chargeback by the amount of overdrawn funds.
Cadence Bank v. Elizondo
Appellate: Civil, Banking and Finance, Consumer, Contracts, Procedure, Professional Responsibility, Torts
Texas 1st Court of Appeals
May 16, 2019
01-17-00886-CV
Laura Carter Higley
Published
The bank appealed the judgment of the trial court which granted judgment in favor of the defendant, asserting claims for breach of the parties’ underlying deposit agreement and breach of warranty under the Texas Uniform Commercial Code. On appeal, the appellate court was asked to consider who was liable for funds that were wire transferred from an attorney’s IOLTA account to a third-party account overseas: the attorney or the bank. The bank contended that it proved as a matter of law that the defendant was liable for breach of UCC transfer warranties and that the bank was entitled to reverse the provisional settlement funds credited to the defendant’s account and to recover as damages the amount of the resulting overdraft under both the UCC and the Deposit Agreement. The appellate court found that, by depositing the counterfeit check, the defendant breached the parties’ deposit agreement and UCC transfer warranties, thereby entitling the bank to charge back the provisional settlement funds. The appellate court concluded that, by failing to transfer the funds from a verified collected balance, the bank subsequently breached the parties’ wire transfer agreement, thereby causing the overdraft and entitling the defendant to offset the chargeback by the amount of overdrawn funds. Accordingly, the judgment of the trial court was affirmed.

The Supreme Court concluded that governmental immunity applied and chapter 271 did not waive the entity’s immunity.
Dallas/Fort Worth Int’l Airport Bd. v. Vizant Technologies, LLC
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure
The Supreme Court of Texas
May 17, 2019
18-0059
Jeffrey S. Boyd
Published
The plaintiff appealed the judgment of the appellate court, claiming that a governmental entity breached a contractual promise to make a good-faith effort to obtain authorization for a higher payment than the parties’ written contract required the entity to make. On appeal, the Supreme Court was asked to consider whether governmental immunity applied and, if so, whether chapter 271 of the Texas Local Government Code waived that immunity. The Supreme Court noted that a governmental entity waived its immunity from liability by entering into a contract, voluntarily binding itself like any other party to the agreement. The plaintiff asserted that chapter 271 of the Local Government Code waived the Board’s immunity against the plaintiff’s contract claim. The Supreme Court was also asked to determine whether the plaintiff could recover damages for the Board’s breach of its promise to make a good-faith effort and, if so, the proper measure of those damages. The Supreme Court found that a contractual breach may give rise to either direct or consequential damages. The Supreme Court concluded that governmental immunity applied and chapter 271 did not waive the entity’s immunity. Accordingly, the judgment of the appellate court was reversed.

The defendant failed to establish by a preponderance of the evidence that the plaintiff’s claims were subject to the Texas Citizens Participation Act.
Krasnicki v. Tactical Ent., LLC
Appellate: Civil, Constitution, Consumer, Procedure, Torts
Texas 5th Court of Appeals
May 16, 2019
05-18-00463-CV
Robbie Partida-Kipness
Published
The defendant appealed the judgment of the trial court which denied his motion to dismiss the plaintiff’s suit alleging claims for fraudulent inducement, deceptive trade practices, and negligent misrepresentation under the Texas Citizens Participation Act (TCPA). On appeal, the defendant asserted that the trial court erred in denying the motion to dismiss because the lawsuit against him was based on or related to his exercise of free speech or association. The defendant further alleged that the commercial speech exception did not apply and that the plaintiff did not show by clear and specific evidence a prima facie case for each essential element of its claims against him. The appellate court found that the TCPA was not meant to take the place of a no-evidence summary judgment motion and it declined to extend its reach beyond its statutory grasp. The appellate court concluded that the defendant failed to establish by a preponderance of the evidence that the plaintiff’s claims were subject to the TCPA. Accordingly, the judgment of the trial court was affirmed.

The trial court’s reason for granting the relators’ motion for a new trial was not supported by the record, and therefore, the trial court clearly abused its discretion by granting a new trial.
In re Pantalion
Appellate: Civil, Constitution, Litigation: Personal Injury, Procedure, Torts
Texas 9th Court of Appeals
May 16, 2019
09-19-00073-CV
Per Curiam
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus ordering the trial court to vacate its orders granting the motion for new trial filed by the plaintiff, finding that negligence proximately caused the motor vehicle accident made the basis of the underlying lawsuit and found the relators not negligent. On appeal, the relators argued that the trial court abused its discretion when it granted the motion for new trial despite there being factually and legally sufficient evidence to support the jury’s verdict. The appellate court noted that when the trial court granted a new trial because the jury’s finding was against the great weight and preponderance of the evidence, the entire trial record to determine, using a factual sufficiency standard, whether the record supported the trial court’s reasoning. The appellate court found that the new-trial order omitted evidence the jury reasonably could have credited in support of its determination of negligence. The appellate court concluded that the trial court’s reason for granting the relators’ motion for a new trial was not supported by the record, and therefore, the trial court clearly abused its discretion by granting a new trial. Accordingly, the judgment of the trial court was vacated and the relators’ writ was granted.

The trial court’s failure to find that the victim was entitled to a protective order was not so against the great weight and preponderance of the evidence that it was clearly wrong and unjust.
State v. V.T
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
May 16, 2019
03-18-00472-CV
Gisela D. Triana
Published
The State appealed the judgment of the trial court which denied the State’s application for a permanent protective order against the victim’s ex-boyfriend. On appeal, the State asserted that the trial court abused its discretion in failing to make adverse inferences against the ex-boyfriend following his invocation of the Fifth Amendment privilege against self-incrimination and that there was insufficient evidence to support the trial court’s denial of the protective order. The appellate court noted that Chapter 7A of the Code of Criminal Procedure allowed victims of certain crimes to obtain permanent protective orders against the offenders who committed those crimes, but that it only applied to crimes that were specifically listed in the statute. The appellate court found that the application for a protective order in this case did not specify the crime that the ex-boyfriend allegedly committed, but instead alleged generally that victim was “a victim of sexual assault or abuse, stalking, or trafficking.” The State further argued that the trial court was required to infer from the above that the State’s allegations against the ex-boyfriend were true. The appellate court concluded that the trial court’s failure to find that the victim was entitled to a protective order was not so against the great weight and preponderance of the evidence that it was clearly wrong and unjust. Accordingly, the judgment of the trial court was affirmed.

The trial court did not violate the defendant’s right to confront the witnesses against him when it admitted the witness’s testimony from the aggravated assault trial.
Moon v State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
May 15, 2019
06-18-00128-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted him of bail jumping and failure to appear and was sentenced to six years and six months’ imprisonment. On appeal, the defendant complained that the trial court violated his right to confront witnesses against him when it admitted testimony from another proceeding to be read in this proceeding. The defendant further asserted that, to satisfy the Confrontation Clause, the prior testimony could not be used unless the testimony was from the same case. The appellate court found that it was undisputed that the witness was unavailable and that the defendant had the opportunity to cross-examine her at the aggravated assault trial. The appellate court concluded that the trial court did not violate the defendant’s right to confront the witnesses against him when it admitted the witness’s testimony from the aggravated assault trial. The appellate court noted that since requirements of the Confrontation Clause were met, the trial court did not abuse its discretion in admitting the testimony. Accordingly, the judgment of the trial court was affirmed.

The trial court judgment erroneously provided for the right of execution against the Department of Transportation, which was a recognized entity of the state.
Tex. Dep’t of Transp. v. Flores
Appellate: Civil, Civil Rights, Damages, Employment, Procedure
Texas 8th Court of Appeals
May 15, 2019
08-17-00047-CV
Gina M. Palafox
Published
The Texas Department of Transportation (the Department) appealed the judgment of the trial court which found in favor of the plaintiff in an action alleging age discrimination under Chapter 21 of the Texas Labor Code. On appeal, the Department challenged the judgment based on whether the trial court had subject matter jurisdiction over this discrimination claim asserted against a governmental employer, and whether the evidence was legally and factually sufficient to support the jury’s verdict. The appellate court noted that the Texas Commission on Human Rights Act (TCHRA) prohibited an employer from terminating or discriminating against an employee because of the employee’s age. The Department maintained that there was no evidence that the plaintiff’s age was a motivating factor in his termination, and that the case should therefore be dismissed for want of jurisdiction based on the Department’s sovereign immunity. The appellate court found that the trial court judgment erroneously provided for the right of execution against the Department, which was a recognized entity of the state. The appellate court concluded that the record supported the jury’s award of compensatory damages. Accordingly, the judgment of the trial court was affirmed.  

The defendant’s confession was due to official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.
Medrano v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
May 15, 2019
04-18-00400-CR
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which convicted him of continuous sexual abuse of a child, indecency with a child—sexual contact, and indecency with a child by exposure. On appeal, the defendant argued that the trial court erred by denying his motion to suppress because his confession was involuntary. The defendant further asserted that after discovering his religious nature, the detectives made several attempts to force his confession by speaking about religion. The State counterargued that there was no promise of a positive benefit to the defendant in return for his confession. The appellate court noted that the police misconduct must be causally related to the defendant’s statements, and absent such, there was no due process deprivation by a state actor, and no due process violation. The appellate court found that the detectives’ statements did not promise any positive benefit in return for the defendant’s confession. The appellate court concluded that the defendant’s confession was due to official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker. Accordingly, the judgment of the trial court was affirmed.

Because the option contained within the lease violated the rule against perpetuities, it was void at its inception and the trial court properly granted summary judgment in the property owner’s favor.
Caruso v. Young
Appellate: Civil, Contracts, Procedure, Real Property
Texas 6th Court of Appeals
May 10, 2019
06-18-00081-CV
Scott E. Stevens
Published
The property owner appealed the judgment of the trial court which granted summary judgment declaring void an option to purchase property within a lease agreement because it violated the rule against perpetuities. On appeal, the property owner argued that the lease's option, which was an executory interest subject to the Rule, violated the Rule because the lease created a covenant running with the land to be honored by both parties' heirs and, for that reason, could be exercised by their yet unborn heirs after all lives in being had ended plus twenty-one years. The appellate court found that the respondents’ interest was void at the outset because it could potentially vest outside the time period specified by the Rule. The appellate court concluded that because the option contained within the lease violated the rule against perpetuities, it was void at its inception and the trial court properly granted summary judgment in the property owner’s favor. Accordingly, the judgment of the trial court was affirmed.

The petitioner waived the argument that his contractual waiver of the statute of limitations was void as against public policy, and the appellate court erred by declining to reach the petitioner’s argument.
Godoy v. Wells Fargo Bank, N.A.
Appellate: Civil, Consumer, Creditor/Debtor, Procedure
The Supreme Court of Texas
May 10, 2019
18-0071
James D Blacklock
Published
The petitioner appealed the judgment of the appellate court which ruled in favor of the respondent. On appeal, the petitioner argued that the appellate court’s decision applying Simpson v. McDonald, a statute-of-limitations defense could only be waived if the language in the waiver was specific and for a defined period of time. The Supreme Court noted that when the enforceable portions of the petitioner’s contractual waiver were applied, limitations did not bar the respondent’s suit against him. The Supreme Court found that the correct interpretation of Simpson allowed a contractual waiver of the statute of limitations if the waiver was “specific and for a reasonable time.” The Supreme Court concluded that the petitioner waived the argument that his contractual waiver of the statute of limitations was void as against public policy, and the appellate court erred by declining to reach the petitioner’s argument. Accordingly, the judgment of the appellate court was affirmed.

The plaintiffs could not establish the defendant’s negligence as a matter of law given these ostensible contradictions, inconsistencies, and credibility issues with the plaintiff’s testimony.
Cartwright v. Armendariz
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
May 08, 2019
08-16-00129-CV
Yvonne T. Rodriguez
Published
The plaintiffs appealed the judgment of the trial court which rendered a take-nothing verdict against them in an automobile accident case. On appeal, the plaintiffs contended that the trial court’s conclusion was improper both because the verdict rested on legally and factually insufficient evidence, and because the trial court erred by preventing the jury from hearing evidence that the defendant driver received a traffic ticket for failing to stop at a stop sign immediately before the crash. The plaintiffs further maintained that the trial court improperly excluded certain medical records. The appellate court noted that a jury verdict that rested on legally sufficiency evidence could be defective on factual sufficiency grounds. The appellate court found that the plaintiffs could not establish the defendant’s negligence as a matter of law given these ostensible contradictions, inconsistencies, and credibility issues with the plaintiff’s testimony. The appellate court concluded that the jury’s verdict was contrary to the great weight and preponderance of the evidence. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.

Because a trier of fact could resolve any doubts in the plaintiff’s favor and find the request reasonable accommodation under the circumstances, the plaintiff satisfied his burden to generate a genuine question of fact on the issue.
Tex. Dep’t of Transp. v. Lara
Appellate: Civil, Civil Rights, Employment, Gov't/Administrative, Procedure, Transportation
Texas 3rd Court of Appeals
May 09, 2019
03-18-00153-CV
Edward Smith
Published
The Texas Department of Transportation (the Department) appealed the judgment of the trial court which denied its motion for summary judgment and plea to the jurisdiction in the plaintiff’s suit, alleging that the Department failed to provide the reasonable accommodation required by the Texas Commission on Human Rights Act (TCHRA) and retaliated against him for exercising his rights under that Act, id. § 21.055. On appeal, the Department contended that the trial court erred by overruling its plea to the jurisdiction and failing to dismiss the plaintiff’s claims of discrimination and retaliation. The appellate court noted that the TCHRA prohibited workplace discrimination that occurred because of or on the basis of a physical or mental condition that did not impair an individual’s ability to reasonably perform a job. The appellate court found that this was not a case in which the employer was unaware of the desired accommodation or the statements made by the employee were too indefinite and ambiguous to constitute a formal request. The appellate court concluded that because a trier of fact could resolve any doubts in the plaintiff’s favor and find the request reasonable accommodation under the circumstances, the plaintiff satisfied his burden to generate a genuine question of fact on the issue. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.

The appellate court concluded that the evidence was factually insufficient to support the jury's award of past medical expenses.
Villarreal v. Timms
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 4th Court of Appeals
May 08, 2019
04-18-00444-CV
Beth Watkins
Published
The defendant appealed the judgment of the trial court which rendered judgment in favor of the plaintiff in an automobile accident case. On appeal, the defendant contended that the jury's findings as to certain measures of damages were against the great weight and preponderance of the evidence. The defendant further asserted that the evidence was factually insufficient to support the jury's award for past medical expenses. The appellate court noted that because its decision with regard to the award of past medical expenses was dispositive under Rule 44.1(b) of the Texas Rules of Appellate Procedure, it did not need to review the sufficiency of the future damage awards. The appellate court found that the lone "high, sir" statement, when considered in context, did not lower the "basement" amount the jury could award, and thus, the jury's past medical damage award was against the great weight and preponderance of the evidence. The appellate court concluded that the evidence was factually insufficient to support the jury's award of past medical expenses. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.

The Supreme Court concluded that the plaintiff was required to exhaust administrative remedies before bringing his constitutional-takings claim in the trial court.
Garcia v. Willis
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
The Supreme Court of Texas
May 03, 2019
17-0713
Jeffery Brown
Published
The plaintiff appealed the judgment of the appellate court which rendered judgment that the trial court had no jurisdiction over the plaintiff’s claims because he had failed to seek administrative relief. This appeal stemmed from the plaintiff representing a putative class of citizens that asked a trial court to strike down both the state statutes authorizing use of red-light cameras and the City’s ordinance providing for the use of red-light cameras within its jurisdiction. On appeal, the Supreme Court was asked to consider the plaintiff was required to seek an administrative remedy before filing his case in the trial court. The Supreme Court noted that standing consisted of some interest peculiar to the person individually and not just as a member of the public. The Supreme Court found that the plaintiff lacked standing to bring his prospective claims for declaratory and injunctive relief and that governmental immunity barred his reimbursement claim. The Supreme Court concluded that the plaintiff was required to exhaust administrative remedies before bringing his constitutional-takings claim in the trial court. Accordingly, the judgment of the appellate court was affirmed.

The Commission abused its discretion in issuing negative use determinations on the petitioner’s applications for tax exemptions for the heat recovery steam generators used in its facilities in the counties.
Brazos Elec. Power Coop., Inc. v. Tex. Comm’n on Envtl. Quality
Appellate: Civil, Constitution, Environmental, Gov't/Administrative, Procedure, Tax
The Supreme Court of Texas
May 03, 2019
17-1003
Justice Lehrmann
Published
The petitioner appealed the judgment of the appellate court which held that the Texas Commission on Environmental Quality (the Commission) did have discretion to deny ad valorem exemption. On appeal, the Supreme Court was asked to consider whether Texas Tax Code Section 11.31 gave the Commission discretion to deny an ad valorem tax exemption for heat recovery steam generators, devices the Legislature deemed “pollution control property.” The Supreme Court noted that a proceeding under Section 11.31 was not considered a “contested case” for purposes of the Administrative Procedure Act and its corresponding substantial evidence standard of review. The Supreme Court found that Subsection (a) exempted from taxation “all or part” of real or personal property “used wholly or partly as a facility, device, or method for the control of air, water, or land pollution” The Commission maintained that this holding rendered portions of Section 11.31 meaningless, namely Subsections (c), (g)(3), (g-1), and (h). The Supreme Court concluded that the Commission abused its discretion in issuing negative use determinations on the petitioner’s applications for tax exemptions for the heat recovery steam generators used in its facilities in the counties. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.

The appellate court concluded that the trial court did not err in admitting the summary of the defendant’s probation file over the defendant’s Confrontation Clause objection.
Olabode v. State
Constitution, Criminal, Evidence, Procedure
Texas 5th Court of Appeals
May 02, 2019
05-18-00524-CR
Ada Brown
Published
The defendant appealed the judgment of the trial court which adjudicated him guilty of aggravated robbery and evading arrest and sentencing him to imprisonment for twenty-five and ten years, respectively. On appeal, the defendant contended that the trial court erred in denying his motion to quash the State’s amended motions to revoke probation or proceed with an adjudication of guilt, finding he violated probation condition in the aggravated robbery case, and admitting his probation file into evidence. The appellate court noted that proof of a single violation of community supervision was sufficient to support a trial court’s decision to revoke community supervision. The defendant further asserted that the error was harmful because there was “little chance” the trial court did not consider the file in either finding appellant violated conditions of his community supervision or assessing his punishment. The appellate court found that the court’s ruling that the right to confrontation under the Sixth Amendment did not apply during revocation proceedings. The appellate court concluded that the trial court did not err in admitting the summary of the defendant’s probation file over the defendant’s Confrontation Clause objection. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court’s error in submitting an incorrect parole instruction was harmless.
Murrieta v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
May 03, 2019
06-18-00163-CR
Ralph Burgess
Published
The defendant appealed the judgment of trial court which convicted him of aggravated sexual assault of his wife’s six-year-old daughter and was sentenced to forty years’ imprisonment. On appeal, the defendant argued that, during punishment, the trial court erred in submitting the wrong instruction to the jury on the effect of parole law. The appellate court noted that the defendant was correct that the trial court erred in instructing the jury that the defendant’s good conduct time could expedite his eligibility for parole, and thus, the trial court erred in instructing the jury under Section 4(c). The appellate court found that the jury was erroneously instructed that good conduct time could be considered in determining when the defendant would be eligible for parole. The State maintained that the defendant deserved life in prison, but it did not mention parole or good time conduct in its arguments. The appellate court found that the jury did not send any notes to the trial court regarding parole or its effect on the defendant’s length of incarceration. The appellate court concluded that the trial court’s error in submitting an incorrect parole instruction was harmless. Accordingly, the judgment of the trial court was affirmed.

The respondents’ negligent-hiring claim depended on proof that the petitioner’s contemporaneous use of an improvement caused the injury, and the claim therefore arose from the use of the improvement, and chapter 95 applied.
Endeavor Energy Res., L.P. v. Cuevas
Appellate: Civil, Employment, Procedure, Real Property, Torts
The Supreme Court of Texas
May 03, 2019
17-0925
Jeffrey S. Boyd
Published
The petitioner appealed the judgment of the appellate court which granted summary judgment for the respondents’ claims that the petitioner negligently hired, retained, and supervised the individual. On appeal, the Supreme Court was asked to determine whether chapter 95 of the Texas Civil Practice and Remedies Code applied to a contractor’s employee’s negligent-hiring claim against a property owner. The petitioner argued that the respondents reasonably should have known of the danger or condition, and its constructive knowledge was sufficient to support the negligent-hiring claim because chapter 95 did not apply to that claim. The Supreme Court noted that under the common law, a property owner could be liable for premises liability or negligence that harmed an independent contractor or its employee if the owner controlled the work and either knew or reasonably should have known of the risk or danger. The Supreme Court found that a negligent-hiring claim required negligence by two separate parties: the employer’s negligence in hiring the employee and the employee’s subsequent negligent act or omission. The Supreme Court concluded that the respondents’ negligent-hiring claim depended on proof that the petitioner’s contemporaneous use of an improvement caused the injury, and the claim therefore arose from the use of the improvement, and chapter 95 applied. Accordingly, the judgment of the appellate court was reversed.

The defendant failed to demonstrate his entitlement to bring an interlocutory appeal under section 51.014(a)(6) of the Texas Civil Practice and Remedies Code.
Phillips v. Clark
Appellate: Civil, Torts
Texas 5th Court of Appeals
May 03, 2019
05-18-00556-CV
Amanda L. Reichek
Published
The defendant appealed the judgment of the trial court which denied his motion for traditional and no-evidence partial summary judgment in a suit for libel and defamation. On appeal, the plaintiff argued that the appellate court did not have jurisdiction because the defendant was not a media defendant and did not assert any defenses based on free speech, freedom of the press, or Chapter 73. The appellate court noted that appellate courts did not have jurisdiction to consider immediate appeals from interlocutory orders only if a statute explicitly provided such jurisdiction. The appellate court found that the defendant was a candidate for public office who allegedly provided information that was published in mailers and on a website and nothing in the record showed that he ever engaged in professional news reporting or any other form of journalism or professional investigation and commentary about matters of public concern. The appellate court concluded that the defendant failed to demonstrate his entitlement to bring an interlocutory appeal under section 51.014(a)(6) of the Texas Civil Practice and Remedies Code. Accordingly, the judgment of the trial court was affirmed.

Since the trial court lacked subject-matter jurisdiction over the election contest, the trial court did not err in refusing to rule on the petitioner’s motion for summary judgment.
Noteware v. Turner
Appellate: Civil, Election, Gov't/Administrative, Procedure, Tax
Texas 1st Court of Appeals
May 21, 2019
01-18-00663-CV
Evelyn V. Keyes
Published
The petitioner appealed the judgment of the trial court which granted the City’s plea to the jurisdiction and dismissed the election contest case, where the petitioner challenged the sufficiency of the ballot language setting out a bond measure in the City’s November election. On appeal, the petitioner argued that the trial court erred in ruling that the case was no longer justiciable and in failing to grant his motion for summary judgment seeking a ruling that the ballot language was insufficient as a matter of law. The appellate court noted that the mootness doctrine implicated a court’s subject-matter jurisdiction, which was essential to a court’s power to decide a case. The petitioner further asserted that Proposition A authorized the City to levy a tax in excess of the revenue cap in order to pay off the bonds and that the ballot measure presented in the election did not inform voters of this provision, which was a chief feature of Proposition A. The appellate court found that the City presented evidence that it followed the statutory procedure for issuing the bonds and that the bonds have issued. The appellate court concluded that since the trial court lacked subject-matter jurisdiction over the election contest, the trial court did not err in refusing to rule on the petitioner’s motion for summary judgment. Accordingly, the judgment of the trial court was affirmed.

The trial court had the discretion to determine that the officer’s violation of Miranda was merely inadvertent and that the officer did not intend to employ a two-strap strategy.
Foster v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 21, 2019
14-17-00893-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which denied his motion to suppress both of his statements, claiming that the interrogators had circumvented Miranda by subjecting him to the two-step technique that was sometimes known as “question first, warn later.” On appeal, the defendant argued that there was coordination between the officer and the detective because they were both involved in the defendant’s arrest, they both spoke to each other after the arrest and before the defendant’s transport, and they both interrogated the defendant close in time. The appellate court noted that the trial court did not explicitly address the officer’s intent in its findings of fact, rather, the trial court determined that the officer had not engaged in a “true interrogation” and that it would be a “stretch” to label his questioning as an actual interview. The appellate court found that there was no evidence that the officer and the detective spoke to each other at the police station following the officer’s initial interrogation. The defendant further asserted that the officer’s intent to employ a two-step strategy was apparent on the face of the record because the officer knew that the defendant was under arrest but the officer interrogated him anyways. The appellate court concluded that the trial court had the discretion to determine that the officer’s violation of Miranda was merely inadvertent and that the officer did not intend to employ a two-strap strategy. Accordingly, the judgment of the trial court was affirmed.

There was no evidence that it violated the Fourth Amendment, rather, the record demonstrated that the entity acted as a private entity in conducting its search of the defendant’s account and that its search did not implicate the defendant’s Fourth Amendment rights.
Burwell v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 21, 2019
01-18-00300-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of four counts of possession of child pornography and assessed his punishment at imprisonment for two years in two of the offenses and probation for ten years in the other two offenses. On appeal, the defendant argued that the trial court improperly denied his motion to suppress evidence obtained from the entity with which defendant had electronically stored some photographs. Specifically, the defendant asserted that the entity acted as an agent, which was a governmental entity, and invoked the protections of the Fourth, Fifth and Fourteenth Amendments to the Constitution. The appellate court noted that the only warrantless search of the contents of the defendant’s account was done by the entity, which actually viewed the contents of the defendant’s files. The appellate court concluded that there was no evidence that it violated the Fourth Amendment, rather, the record demonstrated that the entity acted as a private entity in conducting its search of the defendant’s account and that its search did not implicate the defendant’s Fourth Amendment rights. Accordingly, the judgment of the trial court was affirmed.

The TCPA applied to the portion of the plaintiff’s claim for breach of fiduciary duty against the defendants that was based on alleged damages other than the special assessment cost.
O'Hern v. Mughrabi
Appellate: Civil, Damages, Gov't/Administrative, Procedure, Real Property, Torts
Texas 14th Court of Appeals
May 21, 2019
14-18-00128-CV
Kevin Jewell
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss under the Texas Citizens Protection Act (TCPA) in an action where the plaintiff breach of fiduciary duty and requested injunctive, declaratory, and monetary relief. On appeal, the defendants contended that the trial court erred because the plaintiff failed to present prima facie evidence supporting his claims, and the plaintiffs established an affirmative defense. The plaintiff counterargued that the appeal was moot because a new association board of directors cancelled the special assessment while the case was pending in the trial court. The appellate court agreed with the plaintiff that this case was moot as to the portion of the plaintiff’s claim that was based on alleged damages resulting from the now-cancelled special assessment. The appellate court noted that the TCPA was intended to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury. The appellate court concluded that the TCPA applied to the portion of the plaintiff’s claim for breach of fiduciary duty against the defendants that was based on alleged damages other than the special assessment cost. Accordingly, the judgment of the trial court was reversed in part and remanded with instructions to determine appropriate attorney's fees and sanctions.

A reasonable factfinder could have formed a firm belief or conviction as to the truth of the finding that the father endangered his children through his conduct.
In re T.L.E.
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
May 21, 2019
14-18-01057-CV
Charles Spain
Published
The father appealed the judgment of the trial court which terminated the parental rights of the parents with respect to their children and appointed the Department of Family and Protective Services (the Department) to be the children’s sole managing conservator. On appeal, the appellate court was asked to consider whether the trial court’s findings to terminate a father’s parental rights were supported by legally- and factually-sufficient evidence. The father challenged the legal and factual sufficiency of the evidence to support the trial court’s findings on the predicate ground of endangerment and that termination was in the children’s best interest. The father further asserted that the record should be limited to the reporter’s record because the trial court did not take judicial notice of its file. The appellate court noted that no factual statements or allegations contained in the clerk’s record, which were not admitted during the final hearing, could be considered evidence when reviewing the sufficiency of the evidence. The appellate court found that the evidence of the father’s prior conviction for indecency with a child by contact was sufficient to support the trial court’s endangerment finding under section 161.001(b)(1)(E). The appellate court concluded that a reasonable factfinder could have formed a firm belief or conviction as to the truth of the finding that the father endangered his children through his conduct. Accordingly, the judgment of the trial court was affirmed.

The defendant’s petition for a writ of habeas corpus, filed while a criminal complaint was pending, remained a criminal proceeding over which the court did not have jurisdiction.
Ex Parte Bhardwaj
Appellate: Civil, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
May 15, 2019
10-19-00032-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which granted the State’s motion to dismiss. On appeal, the appellate court was asked to consider whether the proceeding was properly characterized as a pretrial habeas corpus proceeding from a pending criminal case or whether it was a habeas corpus proceeding challenging a confinement for some reason other than due to a pending criminal proceeding. The defendant argued that because this was a pretrial petition for a writ of habeas corpus in a pending criminal proceeding, this intermediate appellate court had no jurisdiction. The appellate court noted that if this was a pretrial petition for a writ of habeas corpus from detention for a criminal proceeding, it did not have jurisdiction of it. The appellate court found that the defendant’s detention clearly started as a criminal proceeding and his competency to stand trial was raised, thus, it was determined that he was not, at that time, competent to stand trial. The appellate court concluded that the defendant’s petition for a writ of habeas corpus, filed while a criminal complaint was pending, remained a criminal proceeding over which the court did not have jurisdiction. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that there was a substantial chance that a claim would be filed or that the defendants needed to preserve the fire scene.
In re Xterra Constr., LLC
Appellate: Civil, Constitution, Contracts, Evidence, Procedure
Texas 10th Court of Appeals
May 15, 2019
10-16-00420-CV
Rex D. Davis
Published
The petitioner appealed the judgment of the trial court, seeking mandamus relief to vacate the order on motion for sanctions for spoliation of evidence in an action asserting negligence and breach-of-contract causes of action. On appeal, the appellate court was asked to consider whether the defendants have shown that the trial court clearly abused its discretion in imposing sanctions against them for the spoliation of evidence. The appellate court noted that the defendants reasonably should have known that there was a substantial chance that a claim would be filed. The appellate court found that the evidence indicated that the damage was confined to one room of the warehouse, not the entire warehouse, and the evidence did not support that a reasonable person would conclude from the severity of the fire or extent of the damages that a substantial chance of litigation would ensue. The petitioner further alleged that from the moment that the fire occurred, the defendants should have been aware of their duty to preserve the fire scene because they were the sole tenants and occupiers of the warehouse. The appellate court concluded that there was a substantial chance that a claim would be filed or that the defendants needed to preserve the fire scene. Accordingly, the petitioner’s petition for mandamus relief was granted.

The appellate court concluded that, as a matter of law, the plaintiffs failed to raise a genuine issue of material fact on their wrongful death claims.
Douglas v. Hardy
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 12th Court of Appeals
May 15, 2019
12-18-00035-CV
Greg Neeley
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the defendant in their wrongful death suit. On appeal, the plaintiffs argued that the trial court erred in granting summary judgment in the defendant’s favor. The appellate court noted that it was well settled that a trial court could not grant a motion for summary judgment on grounds not presented in the motion, and a no-evidence motion for summary judgment must identify the essential elements as to which there was no evidence. The plaintiffs further maintained that the defendant failed to sufficiently identify the essential element he challenged in his no evidence motion for summary judgment. The appellate court found that the defendant properly raised a no-evidence motion for summary judgment on the legal duty, proximate cause, and foreseeability elements on all of the plaintiffs’ claims. The appellate court concluded that, as a matter of law, the plaintiffs failed to raise a genuine issue of material fact on their claims. Accordingly, the judgment of the trial court was affirmed.

By failing to transfer the funds from a verified collected balance, the bank subsequently breached the parties’ wire transfer agreement, thereby causing the overdraft and entitling the defendant to offset the chargeback by the amount of overdrawn funds.
Cadence Bank v. Elizondo
Appellate: Civil, Banking and Finance, Consumer, Contracts, Procedure, Professional Responsibility, Torts
Texas 1st Court of Appeals
May 16, 2019
01-17-00886-CV
Laura Carter Higley
Published
The bank appealed the judgment of the trial court which granted judgment in favor of the defendant, asserting claims for breach of the parties’ underlying deposit agreement and breach of warranty under the Texas Uniform Commercial Code. On appeal, the appellate court was asked to consider who was liable for funds that were wire transferred from an attorney’s IOLTA account to a third-party account overseas: the attorney or the bank. The bank contended that it proved as a matter of law that the defendant was liable for breach of UCC transfer warranties and that the bank was entitled to reverse the provisional settlement funds credited to the defendant’s account and to recover as damages the amount of the resulting overdraft under both the UCC and the Deposit Agreement. The appellate court found that, by depositing the counterfeit check, the defendant breached the parties’ deposit agreement and UCC transfer warranties, thereby entitling the bank to charge back the provisional settlement funds. The appellate court concluded that, by failing to transfer the funds from a verified collected balance, the bank subsequently breached the parties’ wire transfer agreement, thereby causing the overdraft and entitling the defendant to offset the chargeback by the amount of overdrawn funds. Accordingly, the judgment of the trial court was affirmed.

The defendant’s failure to object to the trial court’s limiting instruction given immediately before the victim’s testimony did not preserve error in this issue.
Webb v. State
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 10th Court of Appeals
May 15, 2019
10-17-00149-CR
John E. Neill
Published
The defendant appealed the judgment of the trial court, challenging his conviction for indecency with a child by contact. On appeal, the defendant argued that the trial court abused its discretion by admitting extraneous-offense evidence of other sexual offenses in violation of Texas Rules of Evidence 403 and 404(b) and that the trial court’s limiting instruction regarding the extraneous-offense evidence was erroneous. The State maintained that the defendant’s complaint was not preserved, and when it moved to introduce extraneous-offense evidence pertaining to sexual-assault offenses allegedly committed by the defendant against two victims, the defendant did not object under Rule 404(b). The appellate court noted that evidence of other crimes, wrongs, or acts was not admissible to prove the character of a person in order to show action in conformity. The appellate court found that rebuttal of a defensive theory was one of the permissible purposes for which extraneous-offense evidence could be admitted. The appellate court concluded that the defendant’s failure to object to the trial court’s limiting instruction given immediately before the victim’s testimony did not preserve error in this issue. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the parties to the easement could have intended a definition of oil or gas the legislature did not adopt until later and only then for reasons unrelated to pipeline transportation of oil or gas.
Texan Land & Cattle II, Ltd. v. Exxonmobil Pipeline Co.
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Procedure, Real Property, Torts
Texas 14th Court of Appeals
May 16, 2019
14-18-00038-CV
Kevin Jewell
Published
The landowner appealed the judgment of the trial court which granted summary judgment in the easement holder’s favor on the landowner’s claims for breach of contract, trespass, and declaratory judgment. On appeal, the appellate court was asked to consider whether a pipeline easement’s right-of-way to transport oil or gas was limited to crude petroleum, or alternatively whether the easement also permitted transportation of the refined petroleum products gasoline and diesel. The landowner argued that the easement’s terms oil or gas meant only crude oil. The appellate court noted that an easement was a nonpossessory interest that allowed its holder to use another’s property for a stated purpose such as the right to lay, operate, and remove a pipeline for the transportation of oil or gas. The appellate court found that Texas courts have addressed the terms “natural gas” or “gas” in a deed or lease and found that they included “all constituent elements,” including refined products such as gasoline. The appellate court concluded that the parties to the easement could have intended a definition of oil or gas the legislature did not adopt until later and only then for reasons unrelated to pipeline transportation of oil or gas. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that when imposing rule 13 sanctions, the trial court was required to make particularized findings of “good cause” justifying the sanctions.
In re D.Z.
Appellate: Civil, Damages, Family, Procedure
Texas 14th Court of Appeals
May 16, 2019
14-17-00938-CV
Charles Spain
Published
The father appealed the judgment of the trial court in a suit to modify a parent-child relationship. On appeal, the father maintained that the trial court abused its discretion in awarding the mother attorney’s fees of $10,000, and the trial court erred in characterizing amicus attorney’s fees as additional child support subject to income withholding. The mother alleged that the appellate court should not consider the new issues and arguments to the father’s reply brief because the father did not raise them in his opening brief and they prejudiced her. The appellate court noted that an appellant could file a reply brief addressing any matter in the appellee’s brief, such as waiver, and the father raised the lack of evidence to support the attorney’s-fee award in his opening brief. The father further asserted that the mother failed to segregate attorney’s fees between claims for which attorney’s fees were recoverable and claims for which they were not. The appellate court found that the record did not reflect that the father ever raised any objection in the trial court based on lack of segregation of the mother’s attorney’s fees, and he likewise did not preserve this complaint. The appellate court concluded that when imposing rule 13 sanctions, the trial court was required to make particularized findings of “good cause” justifying the sanctions. Accordingly, the judgment of the trial court was affirmed.

There was no statutory basis for the jury’s answer to the jury question serving as a bar to the plaintiff’s recovery on a breach of warranty claim.
Equistar Chemicals, LP v. ClydeUnion DB, Ltd.
Appellate: Civil, Contracts, Procedure
Texas 14th Court of Appeals
May 16, 2019
14-17-00791-CV
Ken Wise
Published
The plaintiff appealed the judgment of the trial court which found that the defendant breached its warranties, but that the plaintiff breached the contract. On appeal, the plaintiff contended that the trial court erred by admitting, and rendering judgment on, unreliable and conclusory expert testimony, and in excluding evidence of a letter written by the defendant’s attorney. The plaintiff further asserted that the trial court erred by not disregarding the jury’s answer concerning the “opportunity to cure” question and rendering a judgment for the defendant on its counterclaim after applying the offer-of-settlement statute and rule. The appellate court noted that the plaintiff proposed specific redactions to the letter to omit a reference to settlement, although the plaintiff did not redact the defendant’s demand that the plaintiff released its damage claims. The appellate court found that exclusion of evidence related to the opportunity-to-cure issue did not probably cause the rendition of an improper judgment. The plaintiff further maintained that the trial court’s judgment could not be affirmed based on the jury’s answer to the opportunity-to-cure question. The appellate court concluded that there was no statutory basis for the jury’s answer to the jury question serving as a bar to the plaintiff’s recovery on a breach of warranty claim. Accordingly, the judgment of the trial court was reversed.

Since the homeowners failed to prove a cause of action allowing the recovery of attorney and expert fees, the trial court did not err in ruling that they were not entitled to recover either type of fee.
Mitchell v. D.R. Horton-Emerald, Ltd.
ADR, Appellate: Civil, Contracts, Damages, Procedure, Real Property
Texas 1st Court of Appeals
May 16, 2019
01-18-00755-CV
Laura Carter Higley
Published
The homeowners appealed the judgment of the trial court which held that they were not entitled to recover attorney and expert fees against the contractor. On appeal, the homeowners argued that their fees were recoverable as damages under the Residential Construction Liability Act. The contractor counterargued that Section 27.004(g) was not an independent basis for the recovery of attorney and expert fees. The appellate court noted that the Act did not create a cause of action for damages, but it limited the types of damages recoverable under causes of action that already existed. The appellate court found that the homeowners failed to assert a cause of action allowing for the recovery of attorney or expert fees. The appellate court concluded that since the homeowners failed to prove a cause of action allowing the recovery of attorney and expert fees, the trial court did not err in ruling that they were not entitled to recover either type of fee. Accordingly, the judgment of the trial court was affirmed.

The City’s immunity was not waived and that the plaintiff did not demonstrate that it was a governmental unit entitled to an interlocutory appeal of a ruling on a plea to the jurisdiction.
City of New Braunfels v. Carowest Land, Ltd.
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Real Property
Texas 3rd Court of Appeals
May 16, 2019
03-17-00696-CV
Gisela D. Triana
Published
The City and defendants appealed the judgment of the trial court which denied each of their pleas to the jurisdiction asserted in a suit brought against them by the plaintiff. On appeal, the appellate court was asked to consider whether the City violated the Texas Open Meetings Act (TOMA) in meetings relating to the project, whether the City’s contract awarding the project was void under Local Government Code chapter 252, and (3) whether the delay claims related to the project were valid. The appellate court noted that because the plaintiff did not show that it was a governmental entity under section 101.001, the plaintiff could not pursue an interlocutory appeal. The appellate court found that in submitting the delay claim to the City and maintaining the claim even after the City opined that the claim had been released, it did not appear that the plaintiff was carrying out the City’s directives with no independent discretion. The appellate court concluded that the City’s immunity was not waived and that the plaintiff did not demonstrate that it was a governmental unit entitled to an interlocutory appeal of a ruling on a plea to the jurisdiction. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.   

The trial court could not grant summary judgment on the plaintiff’s contractual or extra-contractual claims as they were no longer pending in trial court.
Franks v. Liberty Cnty. Mut. Ins. Co.
Appellate: Civil, Contracts, Insurance, Procedure, Torts
Texas 14th Court of Appeals
May 14, 2019
14-18-00341-CV
Margaret Poissant
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment in the plaintiff’s suit seeking benefits under his car insurance policy. This appeal stemmed from the plaintiff bringing claims for breach of insurance contract, breach of the duty of good faith and fair dealing, deceptive trade practices, and violations of the Texas Insurance Code. On appeal, the plaintiff contended that the trial court erred in entering summary judgment on his contractual and extra-contractual claims when those claims had been severed and abated. The defendant counterargued that because the uninsured/underinsured motorist (UIM) claim was a necessary predicate to the severed claims, the trial court did not err. The appellate court noted that the trial court’s judgment did not, and could not have, disposed of the plaintiff’s contractual or extracontractual claims. The appellate court found that before this court was only the plaintiff’s suit to determine contractual liability. The appellate court concluded that the trial court could not grant summary judgment on the plaintiff’s contractual or extra-contractual claims as they were no longer pending in trial court. Accordingly, the judgment of the trial court was affirmed.

The State's punishment evidence did not demonstrate that the defendant would receive such a lengthy sentence, and therefore, the trial court should have sustained the defendant’s objections.
Coleman v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
May 09, 2019
02-17-00123-CR
Mark T. Pittman
Published
The defendant appealed the judgment of the trial court which convicted him of possession of a controlled substance, methamphetamine, and sentenced him to 99 years in prison. On appeal, the defendant argued that the State violated the Michael Morton Act, his due process rights, and his rights under Brady v. Maryland, by failing to learn the identity of the informant whose tip led police to arrest him and by not disclosing the informant's criminal history, and the trial court erred by denying his motion for disclosure of the informant's identity. The defendant further asserted that the trial court abused its discretion by not allowing him to "timely" use a prior statement of the arresting officer for impeachment purposes, and the trial court abused its discretion by overruling his objection to the prosecutor's jury argument during the punishment phase of trial. The appellate court noted that under the current version of Article 39.14 of the Texas Code of Criminal Procedure, once the State charged the defendant with a crime, it had a duty to disclose to the defendant any exculpatory information that tended to negate the defendant's guilt. The appellate court concluded that the State's punishment evidence did not demonstrate that the defendant would receive such a lengthy sentence, and therefore, the trial court should have sustained the defendant’s objections. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded for a new trial on punishment.

The absence of a right to hybrid representation meant that a relator’s pro se mandamus petition should be treated as presenting nothing for review, and thus, the relator did not provide a record showing that he was no longer represented by counsel.
In re Flanigan
Appellate: Civil, Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 09, 2019
14-18-01116-CR
Ken Wise
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus asking the appellate court to compel the trial court judge to examine the results of alleged D.N.A. testing, hold a hearing, make a finding as to whether, and have the results been available during the trial of the offense. On appeal, the relator challenged the trial court’s judgment regarding the D.N.A. testing. The appellate court noted that be entitled to mandamus relief, a relator must show that the relator had no adequate remedy at law for obtaining the relief sought, and what the relator sought to compel involved a ministerial act rather than a discretionary act. The appellate court found that the trial court had a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus could issue to compel the trial court to act. The appellate court concluded that the absence of a right to hybrid representation meant that a relator’s pro se mandamus petition should be treated as presenting nothing for review, and thus, the relator did not provide a record showing that he was no longer represented by counsel. Accordingly, the judgment of the trial court was affirmed.

The expert’s opinions were not conclusory and the expert was qualified to opine on the standards of care applicable to nonphysician healthcare providers.
Harvey v. Kindred Healthcare Operating, Inc.
Appellate: Civil, Evidence, Health Care, Procedure, Torts
Texas 14th Court of Appeals
May 09, 2019
14-17-00479-CV
Frances Bourliot
Published
The plaintiffs appealed the judgment of the trial court which dismissed their medical malpractice claims in favor of the defendants. On appeal, the appellate court was asked to address the adequacy of an expert report under the Texas Medical Liability Act when the only defendants were the hospital and affiliated entities and the expert report did not separately address standard of care, breach of the standard of care, and causation as to each healthcare provider involved in caring for the patient. The appellate court noted that the Act entitled a defendant to dismissal of a healthcare liability claim if it was not timely served with an expert report showing that the claim has merit. The appellate court found that the expert report was adequate since it represented an objective good faith effort to comply with the Act because the expert opined that the same standard of care was applicable to all involved healthcare providers, none of the healthcare providers complied with that standard, and such failure resulted in the patient’s injuries. The appellate court concluded that the expert’s opinions were not conclusory and the expert was qualified to opine on the standards of care applicable to nonphysician healthcare providers. Accordingly, the judgment of the trial court was reversed and remanded.

The plaintiff did not raise an issue or argument challenging the independent, alternative ferae naturae basis for the trial court’s decision.
Gonzales v. Thorndale Coop. Gin & Grain Co.
Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
May 09, 2019
14-18-00267-CV
Charles Spain
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment on the plaintiff’s negligence claim. On appeal, the plaintiff contended that the trial court erred in granting the defendant’s motion for summary judgment where evidence was presented to the trial court that the subject danger was concealed and unknown to the plaintiff. The plaintiff further alleged that the defendant mischaracterized the subject danger too generally as rats in the bathroom, and that the plaintiff did not have full knowledge of the specific danger of rats falling on him from the ceiling above. The appellate court disagreed and found that the plaintiff did not raise an issue or argument challenging the independent, alternative ferae naturae basis for the trial court’s decision. The appellate court found that longstanding case law only permitted the appellate court to look to the trial court’s formal summary-judgment order to determine the trial court’s grounds, if any, for its ruling. The appellate court concluded that the rule gave litigants and appellate courts a single place to look to determine why the trial court granted summary judgment. Accordingly, the judgment of the trial court was affirmed.

The Texas Citizens Participation Act did not apply to the plaintiff’s Rule 202 proceeding and his appeal must be dismissed for lack of jurisdiction.
Caress v. Fortier
Appellate: Civil, Constitution, Discovery, Procedure, Torts
Texas 1st Court of Appeals
May 09, 2019
01-18-00071-CV
Gordon Goodman
Published
The plaintiff appealed the judgment of the trial court which dismissed, pursuant to the defendant’s motion under the Texas Citizens Participation Act (TCPA), of his petition seeking to depose the defendant before filing suit. On appeal, the plaintiff contended that the trial court erred in dismissing his Rule 202 petition because the defendant did not show that the communication underlying the plaintiff’s potential defamation claim was made in connection with a matter of public concern and thus related to the plaintiff’s exercise of his free speech rights. The appellate court noted that the parties attempted to agree that section 27.008 of the Civil Practice and Remedies Code, the TCPA's interlocutory appeal provision, gave the court jurisdiction to review the trial court's order. The plaintiff acknowledged that his Rule 202 petition was simply a request for pre-litigation discovery, and that a decision on the merits of his defamation claim would ultimately be up to a jury. The appellate court found that a trial court's order denying a Rule 202 petition could not dispose of those unfiled claims on the merits, even if the denial purported to rest on a ruling under the TCPA. The appellate court concluded that the TCPA did not apply to the plaintiff’s Rule 202 proceeding and his appeal must be dismissed for lack of jurisdiction. Accordingly, the judgment of the trial court was affirmed.

The trial court did not err in declaring as a matter of law that the petitioner could not force the respondent to arbitrate the dispute.
Carter v. ZB, Nat’l Ass’n
ADR, Appellate: Civil, Procedure
Texas 14th Court of Appeals
May 07, 2019
14-17-00900-CV
Kem Thompson Frost
Published
The petitioner appealed the judgment of the trial court which granted the respondent’s motion for summary judgment on its claim for declaratory relief that the petitioner could not force the respondent to arbitrate the dispute in an arbitration that the petitioner had commenced. On appeal, the respondent argued that construing the instruments as not requiring an Arbitration Order before a dispute could be arbitrated would render superfluous the requirement that a party seek an order compelling arbitration within thirty days of the trial court's order determining that the jury-trial waiver was not enforceable. The respondent asserted that there would be no need for a thirty-day deadline to seek an order compelling arbitration if the parties could proceed to arbitrate a dispute after the thirty-day deadline expired. The appellate court noted that a party seeking to force another party to arbitrate certain claims must establish that a valid arbitration agreement existed and the claims at issue were within the scope of the agreement. The appellate court found that under the unambiguous wording of each instrument, the parties agreed to arbitrate any dispute, but only if a jury trial waiver was not permitted by applicable law or ruling by a court. The appellate court concluded that the trial court did not err in declaring as a matter of law that the petitioner could not force the respondent to arbitrate the dispute. Accordingly, the judgment of the trial court was affirmed.

Sufficient evidence supported the trial court’s findings that the mother had a parent-child relationship terminated with respect to another child based on a finding that the mother’s conduct endangered that child, and termination of the mother’s parental rights was in the child’s best interest.
In re J.J.L.
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
May 07, 2019
14-18-01055-CV
Jerry Zimmerer
Published
The mother appealed the judgment of the trial court which terminated both parents’ parental rights and appointed the Texas Department of Family and Protective Services (the Department) to be the child’s managing conservator. On appeal, the mother challenged the sufficiency of the evidence to support termination. On appeal, the mother challenged the sufficiency of the evidence to support the trial court’s findings under subsections D, E, and O of section 161.001(b)(1) of the Family Code. The appellate court noted that parental rights could be terminated if clear and convincing evidence showed the parent committed an act described in section 161.001(b)(1) of the Family Code, and termination was in the best interest of the child. The mother further challenged the legal and factual sufficiency of the evidence to support the trial court’s finding that termination of parental rights was in the child’s best interest. The appellate court concluded that legally and factually sufficient evidence supported the trial court’s findings that the mother had a parent-child relationship terminated with respect to another child based on a finding that the mother’s conduct endangered that child, and termination of the mother’s parental rights was in the child’s best interest. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the arbitrator exhibited evident partiality by failing to disclose the extent of his personal and professional connections with the attorney.
In re marriage of Piske
ADR, Appellate: Civil, Family, Procedure, Torts
Texas 14th Court of Appeals
May 07, 2019
14-17-00869-CV
Meagan Hassan
Published
The wife appealed the judgment of the trial court which confirmed an arbitration award entered in favor of the husband. On appeal, the wife asserted that the arbitrator exhibited evident partiality in the husband’s favor by failing to disclose his personal and professional connections with one of the husband’s attorneys. Specifically, the wife maintained that under section 171.088 of the Texas Arbitration Act, the arbitrator’s failure to disclose his personal and professional connections with the attorney established evident partiality that warranted vacatur of the arbitration award. The appellate court noted that under the Act, a trial court shall vacate an award if the rights of a party were prejudiced by the evident partiality of an arbitrator appointed as a neutral arbitrator. The appellate court found that evidence partiality was established from the nondisclosure itself, regardless of whether the nondisclosed information showed actual partiality or bias. The appellate court concluded that the arbitrator exhibited evident partiality by failing to disclose the extent of his personal and professional connections with the attorney. Accordingly, the judgment of the trial court was reversed, vacated, and remanded for further proceedings.

The trial court did not abuse its discretion in refusing to instruct the jury on the materiality factors outlined in Mustang Pipeline in addition to the definition of material noncompliance in the lease.
Sloane v. Goldberg B'nai B'rith Towers
Appellate: Civil, Contracts, Landlord and Tenant, Procedure
Texas 14th Court of Appeals
May 07, 2019
14-17-00557-CV
Jerry Zimmerer
Published
The tenant appealed the judgment of the trial court in an action seeking the tenant’s eviction based on several alleged non-rent breaches of the lease agreement. On appeal, the tenant asserted the jury charge error, lack of sufficient evidence to support the award of attorney's fees, and lack of sufficient evidence to support the award of back rent. The tenant contended that the trial court should have submitted his requested affirmative defenses of prior material breach by the landlord and immateriality of his own breach. The appellate court noted that the trial court discussed the requested question with the affirmative defenses and instruction on materiality at the charge conference and refused to give them, and thus, the tenant preserved his jury charge issue for review. The appellate court found that the trial court did not abuse its discretion by refusing to submit the affirmative defense of prior material breach because the evidence was undisputed that the defense did not apply. The appellate court concluded that the trial court did not abuse its discretion in refusing to instruct the jury on the materiality factors outlined in Mustang Pipeline in addition to the definition of material noncompliance in the lease. Accordingly, the judgment of the trial court which affirmed in part, reversed in part, and remand in part.

Because the State failed to bring the defendant to trial before the 180-day period expired, the trial court erred in denying the defendant’s motion to dismiss for violation of Article III of the Interstate Agreement on Detainers Act.
Lasker v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 07, 2019
01-18-00046-CR
Russell Lloyd
Published
The defendant appealed the judgment of the trial court which convicted him of murder. On appeal, the defendant contended that the trial court erred in denying his motion to dismiss his cases because the State failed to bring him to trial within 180 days after he triggered Article III of the Interstate Agreement on Detainers Act and 120 days after he was received required by Article IV of the Act. The appellate court noted that the Act’s purpose was to encourage the expeditious and orderly disposition of outstanding charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints, based on the rationale that such charges and detainers produced uncertainties which obstructed programs of prisoner treatment and rehabilitation. The defendant further asserted that while his first Article III request was possibly ineffective, his second request to invoke its provisions was successful. The State counterargued that both of the defendant’s requests failed to strictly comply with Article III. The appellate court found that the defendant’s second request properly included all relevant documentation, including a certificate from the appropriate custodial official, and that it was sent by registered mail, return receipt requested. The appellate court concluded that because the State failed to bring the defendant to trial before the 180-day period expired, the trial court erred in denying the defendant’s motion to dismiss for violation of Article III of the Act. Accordingly, the judgment of the trial court was reversed and remanded.

The plaintiffs did not show that the trial court erred in granting summary judgment based on the no-evidence ground challenging the third equitable-bill-of-review element — lack of fault or negligence on the plaintiffs’ part.
Maree v. Zuniga
Appellate: Civil, Procedure
Texas 14th Court of Appeals
May 07, 2019
14-17-00210-CV
Kem Thompson Frost
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment dismissing the petition in which they sought an equitable bill of review against a judgment rendered after they failed to appear at trial. On appeal, the plaintiffs asserted that the trial court erred in granting summary judgment because the summary-judgment evidence raised a genuine fact issue and the plaintiffs were not served with notice of the underlying judgment. The appellate court noted that a bill of review was an independent, equitable proceeding brought by a party to a prior action seeking to set aside a judgment in that action that was no longer subject to challenge by a motion for new trial or a direct appeal. The appellate court found that the plaintiffs did not show that the summary-judgment evidence raised a genuine fact issue as to whether no proper service of process was effected on them or as to whether they diligently pursued all available and adequate legal remedies, such as a new trial. The appellate court concluded that the plaintiffs did not show that the trial court erred in granting summary judgment based on the no-evidence ground challenging the third equitable-bill-of-review element — lack of fault or negligence on the plaintiffs’ part. Accordingly, the judgment of the trial court was affirmed.

The hospital did not waive its sovereign immunity under the circumstances of the case, and the trial court erred in denying the hospital’s jurisdictional plea.
The Univ. of Tex. MD Anderson Cancer Ctr. v. Contreras
Appellate: Civil, Gov't/Administrative, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
May 07, 2019
01-18-01046-CV
Gordon Goodman
Published
The hospital appealed the judgment of the trial court which denied its plea to the jurisdiction based on the doctrine of sovereign immunity. This appeal stemmed from the plaintiff’s allegations that he was injured in a fall after undergoing knee-replacement surgery at the hospital, asserting negligence against the hospital. The appellate court noted that the hospital was a state entity shielded from suit by sovereign immunity unless its immunity was waived by the Tort Claims Act. The plaintiff maintained that the hospital’s negligent use of a rolling IV pole as a mobility-assistance device caused his injuries and that this brought him within the Act’s waiver of immunity for injuries caused by the state’s use of tangible personal property. The hospital counterargued that the plaintiff’s negligence claim did not satisfy section 101.021(2)’s use requirement. The appellate court found that whether the hospital was entitled to dismissal based on sovereign immunity turned on the jurisdictional allegations in the plaintiff’s petition and the relevant evidence in the record. The appellate court concluded that the hospital did not waive its sovereign immunity under the circumstances of the case, and the trial court erred in denying the hospital’s jurisdictional plea. Accordingly, the judgment of the trial court was reversed.

A rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt based on the trial evidence and any error in admitting the challenged evidence was harmless.
Hernandez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 02, 2019
14-17-00643-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of tampering with a governmental record and assessed punishment at two years’ confinement, suspended the sentence, and placed him on community supervision for two years. On appeal, the defendant challenged the sufficiency of the evidence and the trial court’s admission of extraneous bad-acts evidence. Specifically, the defendant maintained that the evidence was legally insufficient to support the jury’s finding that the offense report in which he allegedly made a false entry did not amount to a “governmental record” at the time the defendant made the entries. The appellate court noted that in evaluating a challenge to the sufficiency of the evidence supporting a criminal conviction, it would view the evidence in the light most favorable to the verdict. The appellate court found that the plain, unambiguous text of section 37.01(2)(A) included anything belonging to, received by, or kept by government for information. The appellate court concluded that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt based on the trial evidence and any error in admitting the challenged evidence was harmless. Accordingly, the judgment of the trial court was affirmed.

The trial court erred in reversing the Public Utility Commission’s order dismissing the Hospital District's complaint because the Hospital District was bound by the disputed settlement decree.
Harris Cnty. Hosp. Dist. v. Pub. Util. Comm’n of Tex
ADR, Appellate: Civil, Consumer, Gov't/Administrative, Procedure, Torts
Texas 3rd Court of Appeals
May 03, 2019
03-17-00811-CV
Per Curiam
Published
The Public Utility Commission (the Commission) appealed the judgment of the trial court which reversed its decision to dismiss the Hospital District’s complaint, holding the Hospital District's claims were barred by res judicata due to the class-action settlement. On appeal, the Hospital District contended that the trial court should have held the 20-year-old Settlement void because the released claims arose from a fee dispute that fell within the exclusive jurisdiction of the Commission. The Commission maintained that the trial court erred by reversing the Commission’s order and holding the Hospital District not bound by the Settlement's release. The appellate court noted that this was not a jurisdictional challenge raised on direct appeal. The appellate court found that the trial court erred in reversing the Commission’s order dismissing the Hospital District's complaint. The appellate court concluded that the Hospital District was bound by the disputed settlement decree. Accordingly, the judgment of the trial court was reversed.

In construing the TCPA to apply to such a motion would open the floodgates to serial motions to dismiss during the pendency of litigation based on conduct ancillary to the substantive claims in the case.
Misko v. Johns
Appellate: Civil, Constitution, Damages, Gov't/Administrative, Procedure
Texas 5th Court of Appeals
May 01, 2019
05-18-00487-CV
Ken Molberg
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss the plaintiff’s claims under the Texas Citizens Participation Act (TCPA). On appeal, the defendant argued that the motion for sanctions was a legal action, as defined by the TCPA, and was filed in response to her exercise of the right to petition. The appellate court noted that the stated purpose of the TCPA was to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury. The appellate court found that the definition of “legal action” in the TCPA did not encompass a motion for sanctions alleging discovery abuse by a party that was filed after, and in this case years after, the commencement of litigation. The appellate court concluded that in construing the TCPA to apply to such a motion would open the floodgates to serial motions to dismiss during the pendency of litigation based on conduct ancillary to the substantive claims in the case. Accordingly, the judgment of the trial court was affirmed.

The relator had an adequate remedy, that was an appeal, however, he failed to timely perfect his appeal, and therefore, the relator was not entitled to mandamus relief.
In re Lujan
Appellate: Civil, Constitution, Courts, Procedure
Texas 8th Court of Appeals
April 30, 2019
08-15-00286-CV
Yvonne T. Rodriguez
Published
The respondent (trial court judge) appealed the judgment of the trial court which granted the relator’s writ of mandamus petition, finding that the respondent failed to set the case for trial or enter a judgment. On appeal, the respondent argued that the trial court lacked jurisdiction to issue a mandamus since the Justice Court lacked jurisdiction because the case was not justiciable and moot after the relator satisfied the fine and pleaded nolo contendere. The respondent further maintained the doctrine of laches barred the relator, and that the justice of the peace did not have a ministerial duty to issue a paper judgment in fine-only misdemeanor cases. The relator counterargued that the present case was justiciable and not moot. The appellate court found that to obtain mandamus relief, the relator must show that he had no adequate remedy at law, such as an appeal. The appellate court concluded that the relator had an adequate remedy, that was an appeal, however, he failed to timely perfect his appeal, and therefore, the relator was not entitled to mandamus relief. Accordingly, the judgment of the trial court was reversed.

The appellate court concluded that the defendants did not attempt to reconcile the release language in the amended partnership agreement with statutory language addressing partners’ right of access to books and records.
Raider Ranch, LP v. Lugano, Ltd.
Appellate: Civil, Business, Procedure
Texas 7th Court of Appeals
April 30, 2019
07-17-00156-CV
James T. Campbell
Published
The defendants appealed the judgment of the trial court which denied the Rule 91a motion to dismiss the plaintiffs’ suit for declaratory relief. On appeal, the defendants argued that the trial court erred in denying their Rule 91a motion to dismiss because the release should have been considered along with the limited partners’ live petition and when so considered the pleading was shown frivolous on its face, lacking a basis in law or fact. The appellate court noted that the defendants’ complaint of the trial court’s denial of their motion to dismiss was rendered moot when the court tried the merits of the limited partners’ case and rendered judgment in their favor. The appellate court found that even if the issue was not moot, there was no merit to the defendants’ “optional completeness” argument, which called on the trial court to base its determination on the affirmative defense of release, contained in their pleadings. The appellate court concluded that the defendants did not attempt to reconcile the release language in the amended partnership agreement with statutory language addressing partners’ right of access to books and records. Accordingly, the judgment of the trial court was affirmed.

Because none of the predicates for dismissal for want of prosecution under TEX.R.CIV.P. 165a, or under a trial court’s inherent power were met on the record, the dismissal of the plaintiff’s suit was error.
Arzate v. Andujo
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
April 30, 2019
08-18-00018-CV
Ann Crawford McClure
Published
The plaintiff appealed the judgment of the trial court which dismissed her lawsuit for want of prosecution. This appeal stemmed from the plaintiff’s petition alleging that a year before, the defendant, while intoxicated, entered the Interstate heading in the wrong direction and caused an accident which injured the plaintiff. On appeal, the plaintiff argued that the dismissal hearing was set under Rule 165a and neither of the two grounds for dismissal under that rule applied here, the dismissal could not be supported as an exercise of the trial court’s inherent authority, and the trial court abused its discretion in failing to grant the motion to reinstate. The appellate court noted that a trial court’s authority to dismiss for want of prosecution was governed by Texas Rule of Civil Procedure 165a as well as the court’s inherent power. The appellate court found that although the trial court had broad discretion to dismiss a case for want of prosecution pursuant to its inherent authority, that discretion was not unfettered. The appellate court concluded that because none of the predicates for dismissal for want of prosecution under TEX.R.CIV.P. 165a, or under a trial court’s inherent power were met on the record, the dismissal of the plaintiff’s suit was error. Accordingly, the judgment of the trial court was reversed and remanded.

Under the unambiguous language of section 171.1012(g), the petitioner was required to reduce its COGS deduction by the amount of depreciation it claimed on its federal taxes.
Rent-A-Center, Inc. v. Hegar
Appellate: Civil, Business, Contracts, Procedure, Tax
Texas 3rd Court of Appeals
April 30, 2019
03-18-00247-CV
Jeff Rose
Published
The petitioner appealed the judgment of the trial court which awarded it only a portion of the franchise taxes it paid under protest. On appeal, the appellate court was asked to consider whether the petitioner must reduce its cost-of-goods-sold (COGS) deduction for the merchandise it sold by depreciation on that merchandise during the time it was rented prior to sale, as reflected on its federal tax return. The appellate court noted that the legislature enacted Texas’s franchise tax statutes purely for revenue purposes, and it must liberally construe the relevant statutes so as to effectuate that purpose. The petitioner further asserted that the fact that it depreciated its capitalized merchandise was irrelevant to the franchise tax calculation. The appellate court found that the petitioner chose to capitalize those costs and thus was required to capitalize each cost allowed under this section that it capitalized on its federal income tax return. The appellate court concluded that under the unambiguous language of section 171.1012(g), the petitioner was required to reduce its COGS deduction by the amount of depreciation it claimed on its federal taxes. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that, on balance, the evidence fully supported the trial court’s ruling, and therefore, the defendant was not denied his right to a speedy trial.
Zamarripa v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 30, 2019
14-17-00267-CR
Margaret Poissant
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child under fourteen years of age and sentenced him to prison for thirty years and assessed a fine. On appeal, the defendant challenged the trial court’s denial of his motion to quash the indictment for violation of his right to a speedy trial. The defendant further asserted that his constitutional right to a speedy trial was violated. The appellate court noted that an accused was guaranteed the right to a speedy trial under both the United States and Texas Constitutions. The appellate court found that Texas courts applied the same standard to enforce the state constitutional right to a speedy trial as federal courts use to enforce the Sixth Amendment right to a speedy trial. The appellate court concluded that, on balance, the evidence fully supported the trial court’s ruling, and therefore, the defendant was not denied his right to a speedy trial. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the relators’ allegedly defamatory statements were inextricably intertwined with matters relating to an internal struggle between a current and former leader of the Church over Church governance.
In re Alief Vietnamese Alliance Church
Appellate: Civil, Constitution, Procedure, Torts
Texas 1st Court of Appeals
April 30, 2019
01-18-00127-CV
Evelyn V. Keyes
Published
The relators appealed the judgment of the trial court, seeking a stay of the underlying trial court proceedings pending disposition of their mandamus petition in a defamation action against the relators. On appeal, the relators contended that the trial court clearly abused its discretion when it denied its plea to the jurisdiction because the ecclesiastical abstention doctrine applied and deprived the court of subject-matter jurisdiction. The appellate court noted that to be entitled to mandamus relief, the relator must demonstrate that the trial court abused its discretion and that it had no adequate remedy by appeal. The appellate court found that several Texas courts have addressed the application of the ecclesiastical abstention doctrine to a plaintiff’s tort claims, including claims for defamation. The appellate court concluded that the relators’ allegedly defamatory statements were inextricably intertwined with matters relating to an internal struggle between a current and former leader of the Church over Church governance. Accordingly, the relators’ motion was granted.

The guarantors lacked standing to assert some of their counterclaims and that the summary judgment evidence did not raise a fact issue as to the remainder of their counterclaims and their contract defenses.
Wyrick v. Business Bank of Tex., N.A.
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Torts
Texas 14th Court of Appeals
April 30, 2019
14-18-00062-CV
Kevin Jewell
Published
The guarantors of a promissory note appealed the judgment of the trial court which granted summary judgment enforcing the guaranty in favor of a bank and dismissing the guarantors’ tort claims. On appeal, the guarantors contended that the trial court erred in granting summary judgment to the bank because legally sufficient evidence supported their contract defenses and affirmative counterclaims. The guarantors further challenged the trial court’s permanent anti-suit injunction, which barred them and others, including a company they owned from initiating or proceeding with any related claims they may have against the Bank in any other forum. The appellate court found that the trial court erred in granting the anti-suit injunction. The appellate court concluded that the guarantors lacked standing to assert some of their counterclaims and that the summary judgment evidence did not raise a fact issue as to the remainder of their counterclaims and their contract defenses. Accordingly, the judgment of the trial court was affirmed and modified in part.

The Supreme Court concluded that no evidence supported the objective component of gross negligence, and it did not need to further consider the subjective component.
Medina v. Zuniga
Appellate: Civil, Damages, Discovery, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
April 26, 2019
17-0498
Jeffery Brown
Published
The defendant appealed the judgment of the appellate court which affirmed the trial court’s grant of sanctions and attorney’s fees following a suit for negligence. On appeal, the Supreme Court was asked to consider when, if ever, a trial court could sanction a party who failed to admit negligence during discovery but conceded it at trial. The Supreme Court noted that under Rule 198, a request for admission was deemed admitted—without the necessity of a court order—if a response was not timely served. The Supreme Court found that no evidence supported the jury’s finding that the defendant was grossly negligent. The Supreme Court concluded that no evidence supported the objective component of gross negligence, and it did not need to further consider the subjective component. Accordingly, the judgment of the appellate court was reversed.

The Supreme Court concluded that a fact issue remained as to whether the accident “arose from” the failure to set the emergency brake, and at this stage of the proceedings, no more was required to satisfy section 101.021(1)(A)’s “arises from” requirement.
PHI, Inc. v. Tex. Juvenile Justice Dep’t
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
April 26, 2019
18-0099
James D Blacklock
Published
The petitioner appealed the judgment of the appellate court which ruled in favor of the respondent. On appeal, the Supreme Court was asked to consider whether sovereign immunity barred the helicopter owner’s claim. The respondent argued that there was evidence that a worn gear-shift mechanism was a cause of the accident. The Supreme Court noted that sovereign immunity protected the State of Texas and its agencies and subdivisions from suit and liability. The Supreme Court found that portions of the claim should have been allowed to proceed. The Supreme Court concluded that a fact issue remained as to whether the accident “arose from” the failure to set the emergency brake, and at this stage of the proceedings, no more was required to satisfy section 101.021(1)(A)’s “arises from” requirement. Accordingly, the judgment of the appellate court was reversed and remanded.

The respondent’s action in filing and prosecuting a suit seeking to enforce the superseded judgment was interfering with the relator’s right to supersede the judgment and pursue its appeal to this Court.
In re Tex. Dep’t of Transp.
Appellate: Civil, Civil Rights, Constitution, Courts, Gov't/Administrative, Procedure, Transportation
Texas 8th Court of Appeals
April 24, 2019
08-18-00132-CV
Yvonne T. Rodriguez
Published
The relator appealed the judgment of the trial court, seeking a writ of prohibition against the trial court judge, asking that it prohibit the judge from exercising jurisdiction over the underlying case because that proceeding was interfering with this Court’s jurisdiction in a pending appeal. On appeal, the relator challenges the respondent’s efforts to enforce the superseded judgment by filing a new suit, arguing that the continued prosecution of the respondent’s suit was an impermissible attempt to enforce the superseded judgment that was the subject of its appeal. The appellate court noted that the appellate court had the power to issue all writs necessary to enforce its jurisdiction. The appellate court found that the respondent’s action in filing and prosecuting a suit seeking to enforce the superseded judgment was interfering with the relator’s right to supersede the judgment and pursue its appeal to this Court. The appellate court concluded that the writ of prohibition would issue only if the trial court failed to act in accordance with this opinion. Accordingly, the relator’s writ was conditionally granted.

The trial court properly concluded that it could not exercise specific jurisdiction over the defendants because it negated jurisdiction on legal basis by showing that even if plaintiff’s alleged facts were true, defendants’ contacts with Texas did not amount to purposeful availment.
11500 Space Ctr., L.L.C. v. Private Capital Group, Inc.
Appellate: Civil, Constitution, Contracts, Creditor/Debtor, Procedure, Torts
Texas 1st Court of Appeals
April 25, 2019
01-17-00896-CV
Evelyn V. Keyes
Published
The plaintiffs appealed the judgment of the trial court which granted the defendant’s special appearance in a suit alleging deceptive trade practices, fraud, negligent misrepresentation, and money had and received. On appeal, the plaintiffs argued that the trial court erred in granting the defendant’s special appearance because the plaintiffs pleaded and proved sufficient jurisdictional facts, which the defendant failed to negate, the exercise of jurisdiction would not offend the traditional notions of fair play and substantial justice, and the trial court relied on the defendant’s legally insufficient affidavit. The appellate court noted that Texas courts could exercise personal jurisdiction over a nonresident if the long-arm statute authorized it, consistent with federal and state constitutional due process guarantees. The appellate court found that the trial court properly concluded that it could not exercise specific jurisdiction over the defendants because it negated jurisdiction on legal basis by showing that even if plaintiff’s alleged facts were true, defendants’ contacts with Texas did not amount to purposeful availment. The appellate court concluded that the defendants lacked Texas connections. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court did not err in granting the Workforce Commission’s motion for summary judgment and denying the School District’s competing motion.
Houston Indep. Sch. Dist. v. Tex. Workforce Comm’n
Appellate: Civil, Damages, Employment, Gov't/Administrative, Procedure, Tax
Texas 3rd Court of Appeals
April 25, 2019
03-18-00123-CV
Edward Smith
Published
The School District appealed the judgment of the trial court which granted final judgment in favor of the Workforce Commission in a suit to recover allegedly overpaid unemployment taxes. On appeal, the School District contended that Section 204.086(a) imposed no liability for any unemployment taxes arising from benefits paid to the former employees because the school was not “indebted” for those sums at the time of annexation. The appellate court noted that the Texas Unemployment Compensation Act provided short-term financial relief for individuals who became unemployed through no fault of their own. The School District further maintained that Section 204.086(a) should not apply because it did not hire the employees who received unemployment benefits, and—unlike in the private sector—this was not a voluntary acquisition of one employer by another. The appellate court found that the Unemployment Compensation Act applied to nearly all employers, including non-profit organizations and governmental entities. The appellate court concluded that the trial court did not err in granting the Workforce Commission’s motion for summary judgment and denying the School District’s competing motion. Accordingly, the judgment of the trial court was affirmed.

Since the evidence was insufficient to prove any culpable mental state, the defendant was entitled to a judgment of acquittal.
Erwin v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 24, 2019
06-18-00058-CR
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which convicted her of exploitation of an elderly individual and sentenced her to ten years’ imprisonment but suspended the sentence in favor of placing her on community supervision for six years. On appeal, the defendant argued that the evidence was legally insufficient to support her conviction. The appellate court noted that legal sufficiency of the evidence was measured by the elements of the offense as defined by a hypothetically correct jury charge.   The appellate court found that to obtain a conviction, the State was required to prove beyond a reasonable doubt that the defendant, for monetary or personal benefit, profit, or gain, intentionally, knowingly, or recklessly caused the exploitation of an elderly person, by the illegal or improper use of funds from her bank account. The appellate court concluded that since the evidence was insufficient to prove any culpable mental state, the defendant was entitled to a judgment of acquittal. Accordingly, the judgment of the trial court was reversed.

The charge error was not egregiously harmful because it did not affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.
Servin v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 24, 2019
04-16-00671-CR
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of aggravated robbery. On appeal, the defendant contended that the jury charge failed to link the appropriate mens rea to its respective conduct element resulting in egregious harm. The defendant further asserted that he was egregiously harmed by the charge error. The State conceded that the jury charge was erroneous, however, the State asserted that the record did not establish egregious harm. The appellate court noted that if the jury believed the defendant was guilty of robbery, he necessarily was guilty of aggravated robbery because it was undisputed that the victims were over the age of 65. The appellate court found that the mental states and conduct elements applicable to each element of the offense was not the focus at trial or during closing argument. The appellate court concluded that the charge error was not egregiously harmful because it did not affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Accordingly, the judgment of the trial court was affirmed.

The pilots failed to affirmatively allege facts that invoked the trial court’s jurisdiction, and it was not aware of any way they could cure these jurisdictional defects through repleading.
Gant v. Abbott
Appellate: Civil, Gov't/Administrative, Procedure, Transportation
Texas 3rd Court of Appeals
April 24, 2019
03-18-00360-CV
Gisela D. Triana
Published
The pilots appealed the judgment of the trial court, seeking the ability to apply for Texas deputy branch pilot certification and branch pilot licensure in Galveston County without going through the current process, claiming that the process was unconstitutional in that it granted an impermissible monopoly to the Galveston-Texas City Pilots Association. On appeal, the pilots s sought declaratory and injunctive relief under the Administrative Procedures Act (APA) and the Uniform Declaratory Judgments Act (UDJA) on the grounds that sections 67.033(4), 67.034(3), and 67.035 of the Texas Transportation Code violated the Monopoly Clause of the Texas Constitution and that the Board failed to adopt rules in accordance with the APA. The pilots further challenged the trial court’s order denying their motion for summary judgment and granting the defendants’ motions. The appellate court noted that Section 67.033 of the Galveston Act set out the statutory requirements of eligibility for branch pilots. The appellate court found that the Galveston Act assigned rulemaking authority to the Board, not the Governor, through its general grant of rulemaking authority. The appellate court concluded that the pilots failed to affirmatively allege facts that invoked the trial court’s jurisdiction, and it was not aware of any way they could cure these jurisdictional defects through repleading. Accordingly, the judgment of the trial court was affirmed in part and vacated in part.

The insurer did not owe the decedent a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence.
Kenyon v. Elephant Ins. Co., LLC
Appellate: Civil, Damages, Insurance, Litigation: Personal Injury, Procedure, Torts, Wills/Trusts/Probate
Texas 4th Court of Appeals
April 24, 2019
04-18-00131-CV
Sandee Bryan Marion
Published
The Estate appealed the judgment of the trial court which granted partial summary judgment in favor of insurer. On appeal, the Estate argued that the trial court erred in ruling that the insurer did not owe the decedent a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence. The Estate further maintained that the trial court erred in granting summary judgment on her claims for Texas Insurance Code and Texas Deceptive Trade Practices Act (DTPA) violations based on alleged misrepresentations. The appellate court noted that the trial court granted the insurer’s motion for traditional summary judgment on the Estate’s common law negligence claim based on its conclusion that the insurer did not owe the decedent a duty of care. The appellate court found that the insurer did not owe the decedent a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence. The appellate court concluded that it lacked jurisdiction to consider the Estate’s second issue. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the district court lacked jurisdiction over the remainder of the plaintiff’s claims.
Data Foundry, Inc. v. Austin
Appellate: Civil, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
April 23, 2019
14-18-00071-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which dismissed the suit over its pricing of electricity on the ground that it lacked standing. On appeal, the City argued that the plaintiff was asserting only a generalized injury for which it lacked standing. The plaintiff maintained that the City unbundled wholesale transmission costs from retail transmission costs. The appellate court noted that the trial court had jurisdiction to consider these claims if standing requirements were satisfied, because a court could review a claim that rates were exorbitant or that the amount of its return was so high as to violate the ratepayer’s constitutional rights. The appellate court found that the plaintiff had standing to complain that the City’s retail electricity rates were excessive in that the City’s alleged 12% rate of return and its 2.36 debt-service coverage ratio were claimed to be unreasonably high, and the trial court had jurisdiction to determine whether the resulting rates were unreasonable. The appellate court concluded that the district court lacked jurisdiction over the remainder of the plaintiff’s claims. Accordingly, the judgment of the trial court was reversed in part and remanded for further proceedings.

The appellate court concluded that a genuine fact issue as to waiver precluded summary judgment in the seller’s favor
Rima Group, Inc. v. Janowitz
Appellate: Civil, Contracts, Damages, Procedure, Real Property
Texas 14th Court of Appeals
April 23, 2019
14-17-00466-CV
Kem Thompson Frost
Published
The buyer appealed the judgment of the trial court which granted the seller’s summary-judgment motion as to the buyer’s claims for specific performance of the contracts. On appeal, the buyer challenged the trial court’s ruling that as a matter of law the seller properly terminated the contracts. Specifically, the buyer maintained that the trial court erred in granting summary judgment because the Trust failed to present evidence that the Trust terminated each contract in good faith and there was evidence that the Trust failed to act in good faith in terminating the contracts, and the trial court erred in granting the Trust’s summary-judgment motion as to attorney’s fees. The appellate court noted that as to a traditional motion for summary judgment, if the movant’s motion and summary-judgment evidence facially established its right to judgment as a matter of law, the burden shifted to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. The appellate court found that the Trust did not have a duty to act in good faith in terminating the contracts. The appellate court concluded that a genuine fact issue as to waiver precluded summary judgment in the seller’s favor. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

The trial court’s reason for ordering a mistrial was both sufficiently specific and legally appropriate, and its reason for granting a mistrial was supported by the record, therefore, the relators did not establish their entitlement to mandamus relief.
In re Hightower
Appellate: Civil, Evidence, Procedure, Real Property
Texas 14th Court of Appeals
April 23, 2019
14-19-00047-CV
Frances Bourliot
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus asking the court to compel the trial court judge to withdraw the court’s order granting a mistrial and enter a take-nothing judgment in the relators’ favor. On appeal, the relators argued that the plaintiffs waived any objection they may have had to their exhibit by failing to make a contemporaneous objection at trial. The appellate court noted that a trial court’s order granting a new trial after a jury trial was subject to mandamus review, and a new trial order initially must satisfy two “facial requirements.” The appellate court found that the trial court’s order satisfied the second requirement of specificity because the order contained the specific facts and circumstances of the case that led the trial court to reach its conclusion. The appellate court concluded that the trial court’s reason for ordering a mistrial was both sufficiently specific and legally appropriate, and its reason for granting a mistrial was supported by the record, therefore, the relators did not establish their entitlement to mandamus relief. Accordingly, the relators’ petition was denied.

The relators have no adequate remedy on appeal and the trial court abused its discretion by issuing the discovery order and by granting the excessive discovery requests.
In re SSCP Mgmt., Inc.
Appellate: Civil, Constitution, Contracts, Damages, Discovery, Gov't/Administrative, Procedure, Real Property
Texas 2nd Court of Appeals
April 22, 2019
02-19-00098-CV
Mark T. Pittman
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus, complaining that the trial court abused its discretion when it ordered them to respond to numerous discovery requests during the pendency of their motions to dismiss. On appeal, the appellate court was asked to explore the amount of discovery allowed once a motion to dismiss under the Texas Citizens Participation Act (TCPA) had been filed but not yet ruled upon by the trial court. The relators contended that “good cause” was not shown justifying such discovery, the permitted discovery was not “specified and limited” or relevant to the motions to dismiss as required by the TCPA, and their appellate remedy was inadequate. The appellate court noted that mandamus relief was proper only to correct a clear abuse of discretion when there was no adequate remedy at law, such as a normal appeal. The appellate court found that the burden of establishing an abuse of discretion and no adequate remedy on appeal was on the party resisting discovery, and this burden was a heavy one. The appellate court concluded that the relators have no adequate remedy on appeal and the trial court abused its discretion by issuing the discovery order and by granting the excessive discovery requests. Accordingly, the relators’ writ was conditionally granted.

The appellate court found legally sufficient evidence supported the jury’s findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint.
Apache Corp. v. Davis
Appellate: Civil, Civil Rights, Damages, Employment, Procedure
Texas 14th Court of Appeals
April 04, 2019
14-17-00306-CV
Ken Wise
Published
The employer appealed the judgment of the trial court which rendered judgment in favor of the employee on her retaliation claim under Chapter 21 of the Texas Labor Code. Thereafter, the jury awarded the employee no back pay and no future compensatory damages, but it did award her past compensatory damages for her emotional pain and suffering and other noneconomic losses related to the retaliation claim. On appeal, the employer challenged the trial court’s judgment, arguing there was legally insufficient evidence that the employer engaged in protected activity, but-for causation was lacking, the jury charge was erroneous based on Casteel error, and the attorneys’ fees awarded by the trial court were unreasonable and unsupported by sufficient evidence. The appellate court found legally sufficient evidence supported the jury’s findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint. The appellate court concluded regarding the attorneys’ fees that there was sufficient evidence to support the award of fees with the exception of a portion of the fees awarded for the time. Accordingly, the judgment of the trial court was affirmed.

The Supreme Court concluded that dismissal of the plaintiff’s lawsuit was required because this falsified-medical-records claim was a health care liability claim subject to the Act’s expert-report requirements.
Scott v. Weems
Appellate: Civil, Gov't/Administrative, Health Care, Procedure, Torts
The Supreme Court of Texas
April 26, 2019
17-0563
Eva M. Guzman
Published
The defendant appealed the judgment of the appellate court which ruled in favor of the plaintiff in his claim asserting that a nurse fraudulently recorded information in a patient’s medical records. On appeal, the defendant claimed that he was injured by a health care provider’s falsification of a patient’s medical records during the course of medical treatment alleging a departure of accepted standards of professional or administrative services directly related to health care. The Supreme Court noted that the Texas Medical Liability Act (Act) required a claimant pursuing a health care liability claim to timely serve an adequate expert report, and failure to do so required dismissal with prejudice. The Supreme Court found that the plaintiff did not serve anything resembling an expert report, either in name or substance, and therefore, his suit must be dismissed with prejudice if he was asserting a health care liability claim. The Supreme Court concluded that dismissal of the plaintiff’s lawsuit was required because this falsified-medical-records claim was a health care liability claim subject to the Act’s expert-report requirements. Accordingly, the judgment of the appellate court was reversed.

When a fee claimant sought to recover attorney’s fees from an opposing party, it must put on evidence of reasonable hours worked multiplied by a reasonable hourly rate, yielding a base figure that could be adjusted by considerations not already accounted.
Rohrmoos Venture v. UTSW DVA Healthcare, LLP
Appellate: Civil, Contracts, Damages, Landlord and Tenant, Procedure
The Supreme Court of Texas
April 26, 2019
16-0006
Paul W. Green
Published
The petitioners appealed the judgment of the appellate court which awarded the respondent attorney’s fees with the conditional appellate awards, and which denied the petitioners’ motion to reform the judgment or for a new trial. On appeal, the Supreme Court was asked to consider whether a tenant could terminate a commercial lease contract for the landlord’s prior material breach, and whether the evidence offered to prove attorney’s fees was sufficient under precedent for fee-shifting awards. The petitioners attacked the jury’s finding that it breached the implied warranty of suitability established under Davidow. The respondent maintained that the Davidow issue was not properly before this Court because the petitioners did not object to the jury charge regarding material breach. The Supreme Court found that under Davidow v. Inwood North Professional Group–Phase I, termination was a justified remedy when the landlord breached the commercial lease. The Supreme Court concluded that when a fee claimant sought to recover attorney’s fees from an opposing party, it must put on evidence of reasonable hours worked multiplied by a reasonable hourly rate, yielding a base figure that could be adjusted by considerations not already accounted for in either the hours worked or the rate. Accordingly, the judgment of the appellate court was affirmed in part, reversed in part and remanded for further proceedings.

The defendant established a violation of his right to a speedy trial because the State did not introduce any evidence in the trial court to detail the reasons why the defendant would suffer no prejudice because of the delay.
Sanchez v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 17, 2019
04-18-00302-CR
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which convicted him of felony assault of a family member. On appeal, the defendant contended that the trial court erred in denying his motion to dismiss based on the violation of his right to a speedy trial due to a six-year delay between indictment and his arrest. The defendant further asserted that the trial court erred in admitting hearsay in violation of his constitutional right to confront the witnesses against him. The appellate court noted that under the Barker test, it must first whether the length of delay between the arrest or formal accusation and trial was so long as to be presumptively prejudicial. The appellate court found that more than six years elapsed between the defendant’s formal accusation by indictment and his arrest and trial, and the State conceded that this delay was presumptively prejudicial. The appellate court concluded that the defendant established a violation of his right to a speedy trial because the State did not introduce any evidence in the trial court to detail the reasons why the defendant would suffer no prejudice because of the delay. Accordingly, the judgment of the trial court was reversed.

The appellate court concluded that the erroneous jury charge did not egregiously harm the defendant and the defendant did not show that counsel rendered ineffective assistance.
Tiller v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 15, 2019
06-18-00153-CR
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child and sentenced him to seventy-five years’ imprisonment on each count. On appeal, the defendant argued that the jury charge was erroneous because it allowed for non-unanimous verdicts and that his counsel rendered ineffective assistance throughout the trial. The appellate court noted that the jury was the exclusive judge of the facts, but it was bound to receive the law from the court and be governed thereby. The appellate court found that the State’s evidence at the defendant’s trial included more than one instance of aggravated sexual assault to support each count for which the defendant was convicted, and thus, the jury could have relied on separate incidents of criminal conduct, which constituted different offenses or separate units of prosecution in finding the defendant’s guilt. The appellate court concluded that the erroneous jury charge did not egregiously harm the defendant and the defendant did not show that counsel rendered ineffective assistance. Accordingly, the judgment of the trial court was affirmed.

Viewing the evidence in the light most favorable to the trial court’s order and indulging every reasonable inference in favor of the ruling, the defendant did not show that the trial court abused its discretion in granting the temporary injunction.
RWI Constr., Inc. v. Comerica Bank
Appellate: Civil, Banking and Finance, Creditor/Debtor, Procedure, Torts
Texas 5th Court of Appeals
April 12, 2019
05-18-00265-CV
David Schenck
Published
The defendant appealed the judgment of the trial court which enjoined it from taking any action with respect to the excess proceeds other than depositing them into the registry of the court to be held in an interest bearing account pending a trial. On appeal, the appellate court was asked to determine whether the trial court erred in granting the bank’s request for a temporary injunction. The defendant claimed that the trial court abused its discretion in entering the injunction because the bank did not establish that it would suffer an irreparable injury for which the remedy at law would be inadequate. The appellate court noted that the purpose of a temporary injunction was to maintain the status quo of the litigation’s subject matter pending a trial on the merits. The appellate court found that viewing the evidence in the light most favorable to the trial court’s order and indulging every reasonable inference in favor of the ruling, the defendant did not show that the trial court abused its discretion in granting the temporary injunction. Accordingly, the judgment of the trial court was reversed in part and affirmed in part and remanded.

The Supreme Court concluded that under Section 256.003(a), when an applicant sought late-probate of a will in her individual capacity, only the applicant’s conduct was relevant to determining whether she was not in default.
Ferreira v. Butler
Appellate: Civil, Procedure, Real Property, Wills/Trusts/Probate
The Supreme Court of Texas
April 12, 2019
17-0901
Nathan L. Hecht
Published
The petitioner appealed the judgment of the appellate court which granted the respondents’ motion for summary judgment and dismissed the petitioner’s application to probate the decedent’s will. On appeal, the respondents argued that the petitioner’s pleadings were determinative. The Supreme Court noted that a devisee’s default was imputed to his own devisee, though the latter was not himself in default, but the statute plainly stated that it was the applicant who must be in default for limitations to run. The Supreme Court found that since the petitioner was standing in the shoes of the administrator of the estate, the default inquiry must focus on the administrator, and it was undisputed that there was no proof that the administrator was not in default in failing to probate the decedent’s will within four years of her death. The Supreme Court concluded that under Section 256.003(a), when an applicant sought late-probate of a will in her individual capacity, only the applicant’s conduct was relevant to determining whether she was not in default. Accordingly, the judgment of the appellate court was vacated and remanded.

Since section 101.056 of the Tort Claims Act, known as the discretionary function exception, applied, governmental immunity barred the petitioners’ claims.
Tarrant Reg’l Water Dist. v. Johnson
Appellate: Civil, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
April 12, 2019
17-0095
James D Blacklock
Published
The Water District appealed the judgment of the appellate court which denied its plea to the jurisdiction. On appeal, the Supreme Court was asked to examine the Tort Claims Act to determine whether the Legislature had authorized this suit against the Water District. The Water District argued that, by operation of section 101.056, immunity barred all the petitioners’ claims, including those based on the scoured area of the riverbed and the alleged boil effect. The Water District also asserted that the petitioners’ premise-defect claim did not support a waiver of immunity because the petitioners’ decedent chose to encounter the open and obvious risk that she might drown. The Supreme Court noted that the Water District was a political subdivision of the State of Texas. The Supreme Court found that the Water District could have maintained the riverbed at a constant eight-foot depth if it chose to do so. The Supreme Court concluded that since section 101.056 of the Tort Claims Act, known as the discretionary function exception, applied, governmental immunity barred the petitioners’ claims. Accordingly, the judgment of the appellate court was reversed in part.

The petitioners had the burden to show that the respondents engaged in acts of self-dealing that unfairly diminished the value of the petitioners’ non-executive interest, and that burden was not me.
Tex. Outfitters Ltd., LLC v. Nicholson
Appellate: Civil, Damages, Oil, Gas, & Mineral, Procedure, Real Property, Torts
The Supreme Court of Texas
April 12, 2019
17-0509
Debra Ann H. Lehrman
Published
The petitioners appealed the judgment of the appellate court which affirmed the trial court’s decision, finding that the executive violated its duty. On appeal, the Supreme Court was asked to apply the duty in the context of an executive’s refusal to lease in contravention of the non-executive’s known wishes. The Supreme Court noted that the petitioners had the burden to show that the respondents engaged in acts of self-dealing that unfairly diminished the value of the petitioners’ non-executive interest, and that burden was not me. The Supreme Court found that the holder of the executive right to lease a mineral estate owed non-participating mineral and royalty-interest owners a duty of utmost good faith and fair dealing. The Supreme Court concluded that, while its parameters were imprecise, at bottom, the executive was prohibited from engaging in acts of self-dealing that unfairly diminished the value of the non-executive interest. Accordingly, the judgment of the appellate court was affirmed.

Based on the evidence in the record, that disclosing the source’s identity would create a substantial threat of physical harm to the source’s employees and others, and therefore need not be disclosed.
Tex. Dep’t of Criminal Justice v. Levin
Constitution, Criminal, Evidence, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 12, 2019
17-0552
Paul W. Green
Published
The Department of Criminal Justice (the Department) appealed the judgment of the appellate court which ruled that the inmates were permitted to the information sought, which was the source of drugs used in Texas executions by lethal injection. On appeal, the Supreme Court was asked to consider whether the public’s right to information under the Texas Public Information Act (PIA) was subject to reasonable limitations when its production could lead to physical harm. The Supreme Court noted that the PIA embodied a powerful policy that each person was entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The Supreme Court found that if the evidence, viewed in a light most favorable to the Department where reasonable jurors could, produced no genuine issue of material fact and established as a matter of law that the Cox physical-safety exception applied, then it must reverse the appellate court’s judgment. The Supreme Court concluded, based on the evidence in the record, that disclosing the source’s identity would create a substantial threat of physical harm to the source’s employees and others, and therefore need not be disclosed. Accordingly, the judgment of the appellate court was reversed.