The appellate court concluded that the Texas Construction Trust Fund Act was a remedial statute that should be given a broad construction, however the court was not free to rewrite the statutory language of the Act, as it must be corrected by the legislature, not the courts.
Dakota Util. Contractors, Inc. v. Sterling Commercial Credit, LLC
Appellate: Civil, Contracts, Corporations, Gov't/Administrative, Procedure, Torts
Texas 13th Court of Appeals
August 30, 2018
13-16-00538-CV
Rogelio Valdez
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s summary judgment motion in an action alleging that the defendant misapplied construction trust funds. On appeal, the plaintiff contended that the defendant was a trustee who was liable for the misapplication of construction funds. The defendant responded that it was exempt from liability under the Texas Construction Trust Fund Act. The plaintiff further maintained that since the legislature did not specifically include factoring companies in the list of people and entities exempted from the Act, the court must find that the legislature intended for the Act to apply to factoring companies. The appellate court found that the defendant did not possess liability as a trustee pursuant to the Act under the circumstances presented. The appellate court concluded that the Act was a remedial statute that should be given a broad construction, however the court was not free to rewrite the statutory language of the Act, as it must be corrected by the legislature, not the courts. Accordingly, the judgment of the trial court was affirmed.
While the contract allowed the defendant to terminate the agreement with or without cause, it also required him to provide forty-eight hours’ notice in writing of his intent to terminate, which he failed to do so.
De Avila v. Espinoza Metal Bldg. & Roofing Contractors
Appellate: Civil, Contracts, Procedure, Torts
Texas 8th Court of Appeals
August 29, 2018
08-15-00283-CV
Yvonne T. Rodriguez
Published
The defendant appealed the judgment of the trial court which rendered judgment against him for breach of contract. On appeal, the defendant claimed that there was legally and factually insufficient evidence to support the trial court’s finding that he was in breach of contract when he evicted the plaintiff from the job site before the contract was fulfilled because he was free to terminate the agreement at his convenience. The defendant asserted that the evidence clearly established the plaintiff breached the contract before the defendant’s alleged breach. The appellate court disagreed with the defendant and found that because more than a scintilla of evidence was provided to show that the defendant wrongfully prevented the plaintiff’s performance under the contract, and that the defendant did not comply with the notice provision, the trial court’s finding that the defendant was in breach of contract was supported by legally sufficient evidence. The appellate court concluded that while the contract allowed the defendant to terminate the agreement with or without cause, it also required him to provide forty-eight hours’ notice in writing of his intent to terminate. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the trial court did not err in admitting the plaintiff’s evidence of the change in the fair market value of the remainder of its acre tracts that resulted from the State’s taking of the parcels.
State v. Gleannloch Commercial Dev., LP
Appellate: Civil, Constitution, Damages, Gov't/Administrative, Procedure, Real Property
Texas 1st Court of Appeals
August 30, 2018
01-16-00427-CV
Terry Jennings
Published
The State appealed the judgment of the trial court which entered judgment in favor of the plaintiff, awarding condemnation damages for real property. On appeal, the State contended that the evidence was legally insufficient to support the jury’s award of remainder damages to two tracts of real property, and the trial court erred in admitting evidence regarding non-comparable sales, admitting evidence of non-comparable remainder damages, and excluding an expert’s opinion that one of the pertinent tracts of land suffered no remainder damages. The appellate court found that the evidence was legally and factually sufficient to support the jury’s award of remainder damages because it was supported by more than a scintilla of evidence. The appellate court concluded that the trial court did not err in admitting the plaintiff’s evidence of the change in the fair market value of the remainder of its acre tracts that resulted from the State’s taking of the parcels. Accordingly, the judgment of the trial court was affirmed.
The defendant’s stipulation of guilt, his judicial confession, and the evidence presented at the sentencing hearing were sufficient evidence to support the trial court’s judgment under article 1.15 of the Code of Criminal Procedure.
Galindo v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-17-00419-CR
Michael C. Massengale
Published
The defendant appealed the judgment of the trial court which convicted him of cruelty to non-livestock animals and a deadly-weapon allegation and sentenced him to five years in prison. On appeal, the defendant contended that the evidence was legally insufficient to support the deadly-weapon finding, and his sentence was therefore void. The appellate court noted that the evidence supported a finding that the defendant threatened human bystanders with the knife that he also used to injure a dog. The State responded that the defendant pled true to the deadly-weapon allegation, and the affirmative finding on that issue was made by a jury. The State also asserted that the facts were distinguishable because in Prichard there was no indication that any human was in danger, or that any human other than Prichard was present when he killed the dog. The defendant further maintained that he was entitled to challenge the sufficiency of the evidence to support the deadly-weapon finding. The appellate court found that the defendant did not offer any argument as to why his use of the knife in either version of events supported by the evidence did not constitute use or exhibition of a deadly weapon against a human. The appellate court concluded that the defendant’s stipulation of guilt, his judicial confession, and the evidence presented at the sentencing hearing were sufficient evidence to support the trial court’s judgment under article 1.15 of the Code of Criminal Procedure. Accordingly, the judgment of the trial court was affirmed.
The plaintiffs presented more than a scintilla of probative evidence to raise a genuine issue of material fact on all four elements of their claim, and thus, the trial court erred in granting a no-evidence motion for summary judgment on their tortious interference claim.
Moore v. Bushman
Appellate: Civil, Contracts, Procedure, Real Property, Torts
Texas 14th Court of Appeals
August 30, 2018
14-16-00986-CV
John Donovan
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the defendants in an action alleging invasion of privacy, tortious interference with a contract, abuse of process, and civil conspiracy. On appeal, the plaintiffs asserted that the defendant instructed the individual to install a video camera pointed directly at the plaintiffs’ residence solely for the purpose to intrude into their personal lives and to spy on their private affairs. The appellate court found that because the plaintiffs did not meet their burden to present more than a scintilla of probative evidence to raise a genuine issue of material fact as to the first element, the trial court properly granted summary judgment on their invasion of privacy claim. The plaintiffs further alleged that the grant of summary judgment on their tortious interference with a contract claim was improper. The appellate court concluded that the plaintiffs presented more than a scintilla of probative evidence to raise a genuine issue of material fact on all four elements of their claim, and thus, the trial court erred in granting a no-evidence motion for summary judgment on their tortious interference claim. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.
The trial court did not err in granting the City’s motion for summary judgment because the employee did not pursue administrative relief for the discrete employment acts for which he sought damages in the underlying action.
Wernert v. Dublin
Appellate: Civil, Civil Rights, Employment, Gov't/Administrative, Procedure
Texas 11th Court of Appeals
August 30, 2018
11-16-00104-CV
Bailey
Published
The employee appealed the judgment of the trial court which granted the City’s motion for summary judgment in an action where the employee alleged that the City discriminated and retaliated against him because of his physical disability. In its motion for summary judgment, the City alleged that the employee failed to pursue requisite administrative remedies prior to filing suit, and the employee failed to establish a prima facie case for his discrimination and retaliation claims. On appeal, the employee asserted that the Equal Employment Opportunity Commission (EEOC) investigation was pending at the time that the City required him to use his accumulated leave and at the time that the City terminated him. The appellate court found that the employee was required to pursue administrative relief for each of the discrete acts even though they were related to the factual basis of his previous charge. The appellate court concluded that the district court did not err in granting the City’s motion for summary judgment because the employee did not pursue administrative relief for the discrete employment acts for which he sought damages in the underlying action. Accordingly, the judgment of the trial court was affirmed.
The trial court erred in excluding the testimony of the billing department employee because it was harmful.
Primoris Energy Serv. Corp. v. Myers
Appellate: Civil, Contracts, Damages, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
August 30, 2018
01-16-00631-CV
Terry Jennings
Published
The defendant appealed the judgment of the trial court which entered judgment in favor of the plaintiff in his suit for negligence. On appeal, the defendant contended that the trial court erred in admitting evidence of medical expenses, the evidence was factually insufficient to support the jury’s proportionate responsibility findings, and the evidence was legally and factually insufficient to support the jury’s negligence finding against the defendant and the damages it awarded to the plaintiff for future physical impairment and future pain. Specifically, the defendant argued that because it was equally plausible that the spotters acted reasonably and cleared the area before the plaintiff drove up, the inference that the spotters acted negligently in performing their duties was rendered no evidence by the equal inference rule. The appellate court disagreed with the defendant and found that the evidence was legally and factually sufficient to support the jury’s negligence finding against the defendant. The defendant further maintained that the trial court erred in admitting and excluding certain evidence regarding the billing practices at the hospital because it was relevant to the reasonableness of the plaintiff’s medical expenses. The appellate court concluded that the trial court erred in excluding the testimony of the billing department employee because it was harmful. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.
The City failed to show that the trial court erred in granting summary judgment because judicial efficiency did not weigh against requiring the City to file a separate petition for writ of mandamus.
Houston v. G.L.
Criminal, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
August 30, 2018
14-16-00982-CV
Kem Thompson Frost
Published
The City appealed the judgment of the trial court which ordered the City’s police department to delete all records concerning the internal-affairs investigation into the conduct that formed the basis of the criminal proceeding. On appeal, the City asserted that it did not have to prove the three ordinary elements for bill-of-review relief because the City was not properly served with notice of the plaintiff’s expunction request, notice of an expunction hearing, or notice of the expunction order. The appellate court found that the City did not show that notice to the City was required, and therefore, even if the City had raised the no-notice line of cases in its summary-judgment response, these cases would not apply because there was no failure to give a required notice that might justify departure from the ordinary three elements for bill-of-review relief. The City further contended that only part of the expunction order was void—the part in which the trial court addressed the internal-affairs-investigation records. The appellate court concluded that the City failed to show that the trial court erred in granting summary judgment because judicial efficiency did not weigh against requiring the City to file a separate petition for writ of mandamus. Accordingly, the judgment of the trial court was affirmed.
Because the expert reports were not required to contain expert opinions on the specific temporal issues, the experts and accompanying CVs were not inadequate for failing to establish a qualification to provide an unnecessary opinion.
Puppala v. Perry
Appellate: Civil, Damages, Evidence, Health Care, Procedure, Torts
Texas 1st Court of Appeals
August 30, 2018
01-17-00898-CV
Harvey Brown
Published
The defendant doctor appealed the judgment of the trial court which denied his motion to dismiss the plaintiff’s health care liability claims for failure to serve adequate expert reports. On appeal, the defendant contended that the trial court abused its discretion in denying his motion to dismiss the plaintiff’s claims because the opinion of the plaintiff’s two experts were not qualified to offer causation opinions. Specifically, the defendant asserted that the expert reports did not contain enough factual assertions, reducing the experts’ opinions to assumption untied to the specific facts of the case, and the reports were deficient because they did not contain facts about stand-alone radiology centers’ ability to perform MRIs under sedation. The appellate court found that the experts adequately tied their causation opinion to the facts and explained how and why the alleged breach of the standard of care proximately caused the plaintiff’s permanent injuries. The appellate court concluded that because the expert reports were not required to contain expert opinions on the specific temporal issues, the experts and accompanying CVs were not inadequate for failing to establish a qualification to provide an unnecessary opinion. Accordingly, the judgment of the trial court was affirmed.
The symbolic or expressive conduct proscribed by section 37.12 was not the type of communication protected by the First Amendment.
Ex parte Sauder
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-17-00467-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which denied his application for a writ of habeas corpus following his conviction of false identification as a peace officer under Penal Code section 37.12. On appeal, the defendant argued that Texas Penal Code section 37.12, prohibiting false identification as a peace officer, was facially unconstitutional. The defendant asserted that the trial court erred in denying him relief because section 37.12 was unconstitutionally overbroad as written and void under the First Amendment to the Constitution, and unconstitutionally vague in violation of the Fourteenth Amendment. The appellate court noted that when the government regulated speech based on its substantive content, the usual presumption of constitutionally afforded legislative enactments was reversed. The defendant further maintained that although section 37.12 did not address actual speech, the conduct outlined in that section was symbolic or expressive conduct that implicated the First Amendment. The appellate court concluded that the symbolic or expressive conduct proscribed by section 37.12 was not the type of communication protected by the First Amendment. Accordingly, the judgment of the trial court was affirmed.
The trial court did not abuse its discretion in awarding the wife’s attorney’s fees pursuant to Family Code section 156.005.
Kelsall v. Haisten
Appellate: Civil, Family, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-17-00389-CV
Evelyn V. Keyes
Published
The husband appealed the judgment of the trial court which awarded statutory attorney’s fees and costs to the wife for defending the husband’s frivolously-filed modification petition. On appeal, the husband argued that the trial court no longer had jurisdiction over the case when it issued the order, and that the trial court abused its discretion in finding that his modification petition was filed frivolously. The husband acknowledged that an affirmative claim for attorney’s fees could be found in an answer but claimed that the language in the wife’s answer failed to sufficiently plead a claim because it did not reference a statute that provided for attorney’s fees and did not explain the basis of her entitlement to relief. The appellate court found that the wife’s answer did identify Family Code section 156.005 as the statutory basis for her claim, both directly and by implication. The appellate court concluded that the trial court did not abuse its discretion in awarding the wife’s attorney’s fees pursuant to Family Code section 156.005. Accordingly, the judgment of the trial court was affirmed.
Because the plaintiff submitted no evidence on these claims in response to their pending motions and the trial court did not err in denying the plaintiff’s motion for continuance, the trial court did not err in granting no-evidence summary judgment on the conspiracy and theft claims.
Dauz v. Valdez
ADR, Appellate: Civil, Family, Procedure, Real Property
Texas 1st Court of Appeals
August 30, 2018
01-15-00831-CV
Harvey Brown
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment to the defendants in an action involving a variety of legal theories related to two real estate transactions. On appeal, the plaintiff argued that the trial court’s summary judgments were improper and that the trial court erred in denying her post-judgment motion to join the plaintiff’s husband as a party. The plaintiff challenged the application of res judicata, asserting that the trial court record did not contain the entire arbitration record, including her demand for arbitration and any exhibits introduced, and that the arbitrator’s award was incomprehensible. The plaintiff asserted that arbitration was not a convenient forum for resolution of those claims. The appellate court found that because the plaintiff submitted no evidence on these claims to the trial court in response to their pending motions and the trial court did not err in denying the plaintiff’s motion for continuance to seek evidence, the trial court did not err in granting no-evidence summary judgment on the conspiracy and theft claims. The appellate court concluded that the trial court erred to the extent that it granted summary judgment to the defendants based on collateral estoppel because the arbitrator made no such findings regarding the defendants. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded for further proceedings.
The plaintiff established taxpayer standing but it was limited to maintaining an action solely to challenge proposed illegal expenditures.
Perez v. Turner
Appellate: Civil, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-16-00985-CV
Evelyn V. Keyes
Published
The plaintiff appealed the judgment of the trial court which granted the plea to the jurisdiction filed by the City dismissing the plaintiff’s claims, seeking a judgment declaring that the drainage fee ordinance invalid. On appeal, the plaintiff argued that she had standing to assert a legal claim for reimbursement for wrongfully collected drainage charges that she paid under duress under the purportedly invalid city ordinance, and the named individual defendants did not have governmental immunity from her claims based on their enforcement of the invalid city ordinance. The plaintiff further alleged that the City’s governmental immunity from her declaratory and injunctive relief claims were waived by the statutory requirement that the City be joined as a necessary party to her claims asserting the unconstitutionality and/or the illegality of specific city ordinances. The appellate court found that the trial court lacked subject-matter jurisdiction over any claims dependent on the Charter Amendment’s having been declared void, and thus, it properly dismissed those claims based on the City’s plea to the jurisdiction. The appellate court concluded that the plaintiff established taxpayer standing but it was limited to maintaining an action solely to challenge proposed illegal expenditures. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.
Any failure of the plaintiff to provide summary judgment evidence that it presented its claim to the defendant did not bar the plaintiff from recovering attorney’s fees in light of the contractual provision in the debt agreement allowing for recovery of such fees.
Fortitude Energy, LLC v. Sooner Pipe LLC
Banking and Finance, Bankruptcy, Contracts, Creditor/Debtor, Damages, Torts
Texas 1st Court of Appeals
August 30, 2018
01-17-00501-CV
Evelyn Keyes
Published
The defendant appealed the judgment of the trial court which granted the plaintiff’s summary judgment motion in an action where the plaintiff sued the defendant for breach of contract. On appeal, the defendant contended that the trial court failed to rule on the parties’ objections to summary judgment evidence, and the trial court, in granting summary judgment, ignored the defendant’s amended answer. The defendant further asserted that because the defendant acquired all of the rights under their contact in the bankruptcy proceedings, this acquisition negated the validity of their contract or, alternatively, created a fact issue regarding whether that contract was valid and enforceable. The appellate court found that the trial court impliedly overruled the parties’ objection to the summary judgment evidence and considered all of the evidence presented to it in making its ultimate summary judgment ruling. The appellate court concluded that any failure of the plaintiff to provide summary judgment evidence that it presented its claim to the defendant did not bar the plaintiff from recovering attorney’s fees in light of the contractual provision in the debt agreement allowing for recovery of such fees. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.
The plaintiffs presented more than a scintilla of evidence raising a fact-issue regarding whether their primary residence and shed violated the covenants.
Ammerman v. The Ranches of Clear Creek Cmty. Ass’n, Inc.
Appellate: Civil, Contracts, Discovery, Procedure, Real Property
Texas 1st Court of Appeals
August 30, 2018
01-17-00015-CV
Evelyn Keyes
Published
The plaintiffs appealed the judgment of the trial court which rendered summary judgment in favor of the homeowners’ association in an action alleging breach of contract and other violations of the applicable restrictive covenants. On appeal, the plaintiffs argued that the trial court erred in granting summary judgment dismissing the plaintiffs’ claims on statute of limitations grounds because the plaintiffs presented some evidence raising a fact issue regarding when their cause of action for breach of the covenants and a declaratory judgment against the association accrued and when they could have discovered their cause of action. The plaintiffs contended that the trial court erred in granting summary judgment dismissing their claims on the ground that the association had conclusively proved that it did not violate the relevant restrictive covenants because it presented some evidence that the association acted arbitrarily and capriciously in approving the building plans. The appellate court found that the association established that it was entitled to summary judgment on limitations grounds with respect to the plaintiffs’ claims that they violated the covenants, as the plaintiffs failed to raise a genuine issue of material fact regarding when their cause of action for breach accrued or on the application of the discovery rule. The appellate court concluded that the plaintiffs presented more than a scintilla of evidence raising a fact-issue regarding whether their primary residence and shed violated the covenants. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.
The appellate court concluded that the trial court properly granted summary judgment to the claimant and that neither the claimant nor the carrier were entitled to judgment as a matter of law.
Zurich Am. Ins. Co. v. Diaz
Appellate: Civil, Gov't/Administrative, Insurance, Torts, Workers' Compensation
Texas 14th Court of Appeals
August 30, 2018
14-17-00295-CV
Tracy Christopher
Published
The insurer appealed the judgment of the trial court which granted the claimant relief after ruling on a set of cross-motions for summary judgment and held that the carrier untimely raised the statutory bar, or in the alternative, that the claimant established good cause for filing her claim after the one-year deadline. The appellate court was asked to determine whether the trial court properly dismissed certain claims against an administrative agency and its commissioner for lack of jurisdiction, and whether the claimant could recover death benefits on behalf of her late husband who died several weeks after suffering an on-the-job injury. On appeal, the claimant claimed that the insurer failed to comply with rule 132.17. The appellate court found that rule 132.17 governed the denial, dispute, and payment of death benefits, and nothing in the rule tolled the deadline to file a claim should the carrier fail to comply. The appellate court concluded that the trial court properly granted summary judgment to the claimant and that neither the claimant nor the carrier were entitled to judgment as a matter of law. Accordingly, the judgment of the trial court was reversed and remanded for additional proceedings.
A limited liability company was subject to general jurisdiction in the state in which its nerve center was located, and therefore, the trial court did not abuse its discretion in granting the company’s special appearance and dismissing the claims against the company.
Ascentium Capital LLC v. Hi-Tech The Sch. of Cosmetology Corp.
Appellate: Civil, Contracts, Corporations, Procedure
Texas 14th Court of Appeals
August 30, 2018
14-17-00880-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s special appearance and dismissed the claims against it due to lack of general jurisdiction. On appeal, the plaintiff argued that the defendant was subject to personal jurisdiction in the state of its principal place of business because documents filed with the Florida Department of State identified Texas as the defendant’s principal address or principal place of business. The appellate court found that there was some evidence to support the trial court’s implied finding that the defendant’s nerve center was not in Texas because it purchased Florida assets and negotiated the purchase in Florida, and thus, the trial court reasonably could find that the defendant’s principal place of business was not in any one of those three states. The appellate court concluded that a limited liability company was subject to general jurisdiction in the state in which its nerve center was located, and therefore, the trial court did not abuse its discretion in granting the company’s special appearance and dismissing the claims against the company. Accordingly, the judgment of the district court was affirmed.
The complainant’s testimony established the elements of the offense and was sufficient to support the defendant’s conviction, and no egregious error had been shown based on the prosecutor’s conduct or the jury charge.
Vernon v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-16-00645-CR
Michael C. Massengale
Published
The defendant appealed the judgment of the trial court which convicted him of indecency with a child and sentenced him to 12 years in prison. On appeal, the defendant challenged the sufficiency of the evidence to support his conviction, claiming that his lawyer rendered ineffective assistance. The defendant further alleged other errors that were not preserved at the trial, such as prosecutorial misconduct that denied him a fair trial and a jury charge that failed to require a unanimous verdict. Specifically, the defendant maintained that no rational factfinder could believe beyond a reasonable doubt that the complainant had been touched illegally on any one occasion because she testified that she was confused about when and in whose presence the offenses occurred. The appellate court concluded that the complainant’s testimony established the elements of the offense and was sufficient to support the defendant’s conviction, and no egregious error had been shown based on the prosecutor’s conduct or the jury charge. Accordingly, the judgment of the trial court was affirmed.
The defendant could not establish that his conviction rested on evidence based on conduct that was introduced during a trial because the defendant pled guilty to the offense before he was tried, and thus, his confession rested on his judicial confession.
Ex Parte Shroff
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
August 29, 2018
09-18-00066-CR
Hollis Horton III
Published
The defendant appealed the judgment of the trial court which denied his article 11.072 application seeking a writ of habeas corpus following his conviction of soliciting a minor with the intent to engage in sexual contact by using electronic mail. On appeal, the defendant contended that, because it was unclear if his conviction rested on an overly broad interpretation of the online solicitation statute, the trial court should have awarded him a new trial. The defendant asserted that because it was not clear that he was not convicted under the later-narrowed represented portion of the online solicitation statute, he was entitled to a new trial. The appellate court found that the defendant could not establish that his conviction rested on evidence based on conduct that was introduced during a trial because the defendant pled guilty to the offense before he was tried, and thus, his confession rested on his judicial confession and not on any evidence that was introduced during a trial. The appellate court concluded that the defendant failed to establish that he was entitled to relief. Accordingly, the judgment of the trial court was affirmed.
The plaintiff produced evidence sufficient to raise a genuine issue of material fact as to all of the challenged, essential elements of his negligence claim based on the defendant’s violation of the stock law provisions of chapter 143 of the Texas Agriculture Code.
Garcia v. Pruski
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 4th Court of Appeals
August 29, 2018
04-17-00632-CV
Patricia O. Alvarez
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s traditional and no-evidence motion for summary judgment in a personal injury case arising out of an automobile accident. On appeal, the plaintiff argued that the trial court erred by granting the defendant’s motion for summary judgment because he produced some evidence raising a genuine issue of material fact as to the challenged elements of his negligence claims against the defendant. The appellate court was asked to determine whether the plaintiff produced evidence sufficient to raise a genuine issue of material fact with regard to the challenged elements of his negligence claims. Specifically, the plaintiff asserted that the defendant was negligent by failing to properly restrain and restrict the bull within a fenced area on his property, by failing to prevent the bull from gaining access to and wandering onto the state highway, and for violating chapter 143 of the Texas Agriculture Code. The appellate court concluded that the plaintiff produced evidence sufficient to raise a genuine issue of material fact as to all of the challenged, essential elements of his negligence claim based on the defendant’s violation of the stock law provisions of chapter 143 of the Texas Agriculture Code. Accordingly, the judgment of the trial court was affirmed in pat and reversed and remanded in part.
The City had sovereign immunity from the claims made in the suit by the plaintiff, however the new position of assistant to the director of the fire department was a “fire fighter” position that must be classified.
San Antonio v. Int’l Ass’n of Fire Fighters
Appellate: Civil, Damages, Employment, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
August 29, 2018
04-17-00450-CV
Luz Elena D Chapa
Published
The City appealed the judgment of the trial court which declared that it violated Chapter 143 of the Texas Government Code by creating a new non-classified position in the fire department and filling it with a non-civil-service employee, enjoining them from maintaining the non-classified position, and awarding the plaintiff attorney’s fees. The appellate court was asked to determine whether the assistant to the director was a “fire fighter” within the meaning of Chapter 143 such that the position must be classified. On appeal, the City argued that the plaintiff failed to meet its summary judgment burden to establish that the position performed any of the functions listed in section 143.003(4)(A). The appellate court concluded that the City had sovereign immunity from the claims made in the suit, however the new position of assistant to the director of the fire department was a “fire fighter” position that must be classified. The appellate court found that the officials were not immune from the award of attorney’s fees in an ultra vires action under the Uniform Declaratory Judgment Act. Accordingly, the judgment of the trial court was affirmed.
The trial court erred in ordering forfeiture of principal and interest under the note because the Texas Constitution did not create an independent cause of action for forfeiture.
Paull & Partners Inv., LLC v. Berry
Appellate: Civil, Constitution, Procedure, Real Property
Texas 14th Court of Appeals
August 28, 2018
14-17-00519-CV
J Brett Busby
Published
The appellants challenged the judgment of the trial court which declared the appellees’ conveyance to the appellants a prohibited “pretended sale” under Article XVI, Section 50(c) of the Texas Constitution. The appellate court was asked to determine whether the trial court properly declared a general warranty deed void under the Texas Constitution’s homestead provisions, and whether it properly ordered forfeiture of all principal and interest owed under a promissory note. On appeal, the appellants contended that the trial court erred in granting summary judgment for the appellees. The appellate court concluded that the appellees did not establish as a matter of law their right to summary judgment because they did not conclusively establish both a lack of intent to vest title and a condition of defeasance, the two requirements for a pretended sale. The appellate court concluded that the trial court erred in ordering forfeiture of principal and interest under the note because the Texas Constitution did not create an independent cause of action for forfeiture. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.
The trial court did not fail to find that a document was intentionally fabricated for purposes of litigation because the plaintiff was caught manufacturing evidence related to damages.
Pressil v. Gibson
Appellate: Civil, Damages, Employment, Health Care, Procedure, Torts
Texas 14th Court of Appeals
August 28, 2018
14-17-00517-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which struck his pleadings and rendered a take-nothing judgement against him after finding that the plaintiff fabricated evidence in support of his economic damages. This appeal stemmed from the breach-of-fiduciary-duty allegations in which the plaintiff sued his former attorney, alleging that the publicity the attorney garnered for the plaintiff’s underlying healthcare liability claim caused the plaintiff to suffer mental anguish and to lose a potentially lucrative employment opportunity. On appeal, the plaintiff argued that the trial court abused its discretion in imposing death-penalty sanctions because there was no evidence or finding that the evidence was intentionally fabricated for the purposes of litigation rather than recreated for a legitimate purpose, the trial court failed to adequately consider lesser sanctions that would have sufficed, and the fabricated document was unrelated to the core elements of the plaintiff’s breach-of-fiduciary-duty claim. The appellate court concluded that the trial court did not fail to find that a document was intentionally fabricated for purposes of litigation because the plaintiff was caught manufacturing evidence related to damages. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the evidence was legally insufficient to support the judgment against the defendants for negligent nuisance and the related injunction.
Gulledge v. Wester
Appellate: Civil, Damages, Procedure, Real Property, Torts
Texas 1st Court of Appeals
August 28, 2018
01-17-00488-CV
Harvey Brown
Published
The defendants appealed the judgment of the trial court which permanently enjoined them from finishing construction of a second story deck on their boathouse after two neighbors complained that the tall structure would block their water views. On appeal, the defendants contended that there was legally and factually insufficient evidence to support the nuisance claim and injunction, and the injunction was broader than the pleadings and evidence permitted. The defendants maintained that a view impairment could not support a nuisance claim. The plaintiffs alleged that Crosstex left the issue of whether a nuisance existed to the jury. The appellate court found that it was unnecessary for it to determine whether Texas law, post-Crosstex, erected a bright-line barrier against all view-impairment nuisance claims because there was legally insufficient evidence of a substantial inference that unreasonably affected the plaintiffs’ use and enjoyment of their land. The appellate court concluded that the evidence was legally insufficient to support the judgment against the defendants for negligent nuisance and the related injunction. Accordingly, the judgment of the trial court was reversed and rendered.
The appellate court concluded that the defendant waived any error in the trial court’s failure to suppress the evidence on the defendant’s identity.
McCoslin v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 28, 2018
14-17-00489-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of indecent exposure. On appeal, the defendant sought to set aside his conviction on the grounds that the trial court should have granted either his motion to quash the charging instrument for insufficient notice or his motion to suppress evidence relating to the defendant’s identity. The defendant contended that the State did not obtain leave to amend the original information, as required by article 28.10 of the Code of Criminal Procedure, so the second information was void. The State responded that the defendant waived any complaint about the charging instrument’s sufficiency by not timely asserting it in the trial court. The appellate court concluded that the defendant waived any error in the trial court’s failure to suppress the evidence on the defendant’s identity. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that there was sufficient evidence from which the jury reasonably could find that the defendant was stopped with cocaine within 1,000 feet of the park.
Graves v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 28, 2018
14-17-00145-CR
Marc W. Brown
Published
The defendant appealed the judgment of the trial court which convicted him of possession of cocaine between one and four grams and found in a special issue that the defendant committed the offense in a drug-free zone. On appeal, the defendant argued that the evidence was legally insufficient to support the finding that he possessed cocaine in a drug-free zone. Specifically, the defendant contended that the State did not present legally sufficient evidence that the park contained at least three pieces of playground equipment, the park was open to the public, and the defendant was within 1,000 feet of the park when he stopped. The appellate court found that the testimony constituted sufficient evidence that the park contained at least three play stations because nothing in the drug-free zone enhancement statute required the State to prove the presence of three or more play stations using any particular kind of evidence. The appellate court concluded that there was sufficient evidence from which the jury reasonably could find that the defendant was stopped with cocaine within 1,000 feet of the park. Accordingly, the judgment of the trial court was affirmed.
The trial court’s denial of the homeowners’ association’s request for money damages under these circumstances was not so contrary to the overwhelming weight of the evidence that was clearly wrong and unjust.
S-G Owners Ass’n, Inc. v. Sifuentes
Appellate: Civil, Damages, Evidence, Procedure, Real Property
Texas 1st Court of Appeals
August 28, 2018
01-17-00258-CV
Michael C. Massengale
Published
The homeowners’ association appealed the judgment of the trial court, seeking to recover past-due maintenance fees and to foreclose on a lien against the home to satisfy the debt. On appeal, the homeowners’ association challenged the factual sufficiency of the evidence to support the take-nothing judgment. The homeowners’ association asserted that because it was undisputed at trial that the defendant owed and failed to pay past-due maintenance assessments, it was entitled to judgment on the debt for the past-due assessments, accrued interest and late charges, and costs incurred in attempts to collect on the debt. The appellate court found that the homeowners’ association had the burden of proof at trial to prove a breach of the applicable deed restriction, as well as the amount it sought to recover, and based on the record, the evidence presented at trial did not compel a finding in the homeowners’ association’s favor. The appellate court concluded that the trial court’s denial of the homeowners’ association’s request for money damages under these circumstances was not so contrary to the overwhelming weight of the evidence that was clearly wrong and unjust. Accordingly, the judgment of the trial court was affirmed.
The evidence supported the trial court’s determination that the petitioner was incapacitated, continued to suffer from multiple physical and mental conditions as a result of the traumatic brain injuries sustained in the accident, and was unable to manage his financial affairs.
In re Guardianship of Mark Scott Croft
Appellate: Civil, Health Care, Litigation: Personal Injury, Procedure
Texas 14th Court of Appeals
August 28, 2018
14-17-00248-CV
William J. Boyce
Published
The petitioner appealed the judgment of the trial court which dismissed his application for restoration of capacity to manage his estate. The trial court determined that the petitioner was not eligible to be restored to full legal capacity because he suffered from multiple mental conditions. On appeal, the petitioner challenged the trial court’s dismissal of his restoration application and asserted that the trial court’s order did not conform with statutory requirements. The petitioner asserted that each witness and the documentary evidence all concluded that he was no longer incapacitated. The appellate court found that the evidence supported the findings of fact and a determination that the petitioner was an incapacitated person as defined by statute because he was an adult who, because of a physical or mental condition, was substantially unable to manage his own financial affairs. The appellate court concluded that the evidence supported the trial court’s determination that the petitioner was incapacitated, continued to suffer from multiple physical and mental conditions, disorders, and challenges as a result of the traumatic brain injuries sustained in the accident, and was unable to manage his financial affairs. Accordingly, the judgment of the trial court was affirmed.
Because the trial court dismissed the defendant’s claim as frivolous under section 14.003 without holding an evidentiary hearing, the appellate court could affirm the trial court’s ruling only if the defendant’s claim had no arguable basis in law.
Dove v. State
Appellate: Civil, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 28, 2018
14-17-00682-CV
John Donovan
Published
The defendant appealed the judgment of the trial court which dismissed his suit under Chapter 14 of the Texas Civil Practice and Remedies Code following his conviction for sexual assault. On appeal, the defendant alleged that the State filed a motion to seal exculpatory evidence in his criminal case, that the State moved to seal the record so that he could not prove his innocence and sought damages. The State moved to dismiss pursuant to Chapter 14, asserting various grounds as to why the trial court should dismiss the defendant’s claim as frivolous under section 14.003(a)(2). The appellate court found that because the trial court dismissed the defendant’s claim as frivolous under section 14.003 without holding an evidentiary hearing, the appellate court could affirm the trial court’s ruling only if the defendant’s claim had no arguable basis in law. The appellate court concluded that under the Heck doctrine, the defendant’s claim was based on an indisputably meritless legal theory, therefore, the trial court did not err in dismissing the defendant’s claim as frivolous. Accordingly, the judgment of the trial court was affirmed.
Even if a party could intervene in a lawsuit at any time, the trial court still could strike the intervention for a proper reason or grant summary judgment dismissing the claims asserted in the intervention because the statute of limitations barred the claims.
Reyes v. Guandique
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
August 23, 2018
14-16-00946-CV
Kem Thompson Frost
Published
The intervenor appealed the judgment of the trial court which granted the defendants’ summary judgment motion against the intervenors based on the statute of limitations in a vehicular-accident case. On appeal, the intervenor asserted that the statute of limitations did not apply to claims asserted by an intervenor and that, even if the statute applied, courts should treat the intervenor’s claims as having been filed when the plaintiff filed suit. The appellate court noted that when two people claim an interest in a single claim, and one of them timely filed suit, the other’s intervention in the suit outside the limitations period to protect that claimant’s interest related back to the timely filed suit and was not barred by limitations. The intervenor further claimed that the statute of limitations did not bar his claims because the intervenor’s intervention was a new suit that was different from the claim originally pled but was not based upon or an outgrowth of a new, distinct, or different transaction or occurrence. The appellate court disagreed with the intervenor and concluded that even if a party could intervene in a lawsuit at any time, the trial court still could strike the intervention for a proper reason or grant summary judgment dismissing the claims asserted in the intervention because the statute of limitations barred the claims. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the parties’ arbitration agreement was enforceable, except for the provision eliminating punitive damages.
Ridge Natural Res., L.L.C. v. Double Eagle Royalty, L.P.
ADR, Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Real Property, Torts
Texas 8th Court of Appeals
August 24, 2018
08-17-00227-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which denied its motion to compel arbitration in an action where the parties fought for title to a disputed royalty interest in minerals, asserting that their respective interest was transferred to them at different times by a non-party. On appeal, the plaintiff contended that the trial court erred by denying its motion to compel arbitration because the parties were subject to an arbitration agreement that dealt with the claims at issues, and the defendant’s unconscionability defenses either should have been resolved by the arbitrator or else failed on the merits even if they were cognizable by the trial court. The appellate court disagreed with the plaintiff and discerned no contract formation challenge on the record, and thus the issue of contract formation was not before the court. The appellate court found that by allowing for the enforcement of an exemplary damages cap in arbitration would contravene the public policy purpose underpinning Section 43.001 and thereby thwart the Legislature’s will. The plaintiff further alleged that the conflict in arbitral rules selection rendered this arbitration agreement substantively unconscionable. The appellate court concluded that the arbitration agreement was enforceable, except for the provision eliminating punitive damages. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.
The appellate court concluded that the plaintiff failed to raise a valid takings claim under the Texas Constitution and the trial court’s grant of the defendants’ plea to the jurisdiction was proper.
Younger v. El Paso Cnty. Emergency Serv. Dist. No. 2
Appellate: Civil, Constitution, Gov't/Administrative, Procedure, Real Property
Texas 8th Court of Appeals
August 24, 2018
08-15-00333-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the trial court’s grant of the defendants’ plea to the jurisdiction in her suit for takings claim under the Texas Constitution and the Private Real Property Rights Preservation Act. On appeal, the plaintiff contended that the trial court should not have granted the defendants’ plea to the jurisdiction because the district made her property unmarketable when it refused to sign her replacement deed, thus constituting a taking under both the Texas Constitution and the Act. The plaintiff asserted that the trial court should not have granted the defendants’ plea to the jurisdiction because the county made her property unmarketable when it lost her original deed, failed to record it, and failed to acquire a replacement deed, thus constituting a taking under both the Texas Constitution and the Act. The appellate court found that the trial court’s grant of the defendants’ plea to the jurisdiction was proper because the district’s decision not to sign the replacement deed could not be the grounds on which a valid takings claim rested. The appellate court concluded that the plaintiff failed to raise a valid takings claim under the Texas Constitution and the trial court’s grant of the defendants’ plea to the jurisdiction was proper. Accordingly, the judgment of the trial court was affirmed.
The nature of the alleged taking was not one that left open the possibility that the property could be developed some other way, thereby precluding a final decision on the type and intensity of the development.
Crowley v. Ray
Appellate: Civil, Constitution, Gov't/Administrative, Real Property, Torts
Texas 2nd Court of Appeals
August 23, 2018
02-17-00409-CV
Bill Meier
Published
The City appealed the judgment of the trial court which awarded attorneys’ fees after summarily disposing of the plaintiff’s claim for declaratory relief in an action stemming from the plaintiff’s efforts to develop a residential subdivision in the City. On appeal, the City argued that the trial court lacked subject-matter jurisdiction over the plaintiff’s inverse-condemnation claim because the claim was unripe, because the plaintiff failed to exhaust administrative remedies, because the City was immune from suit, and because the claim failed as a matter of law. The appellate court disagreed with the City and found that the nature of the alleged taking was not one that left open the possibility that the property could be developed some other way, thereby precluding a final decision on the type and intensity of the development. The appellate court concluded that the plaintiff’s inverse-condemnation claim was not unripe for lacking a final decision by the City because the City’s decision on the minimum finished floor elevation was definitive, sufficiently formal, and one with which the City certainly excepted compliance. Accordingly, the judgment of the trial court was affirmed.
Because the plaintiff established a prima facie case for breach of contract against the defendants, and the defendants failed to establish by a preponderance of the evidence any defense to those claims, the trial court properly ruled as to those contract claims.
Porter-Garcia v. The Travis Law Firm, P.C.
Appellate: Civil, Contracts, Employment, Procedure
Texas 1st Court of Appeals
August 23, 2018
01-17-00203-CV
Jennifer Caughey
Published
The defendants appealed the judgment of the trial court which denied their motions to dismiss claims for breach of contract, fraud, and violations of the Theft Liability Act brought by their former employer, the plaintiff. On appeal, the defendants contended that the trial courts erred by failing to dismiss these claims under the Texas Citizens Participation Act. Specifically, the defendant maintained that the plaintiff’s claims were based on, related to, or were in response to their exercise of their right to petition. The plaintiff counterargued that the Act was inapplicable to its claims and it filed a meritorious lawsuit for a demonstrable injury that in no way impacted or discouraged the defendants’ constitutional rights to petition the government. The appellate court concluded that the Act applied, and because the plaintiff established a prima facie case for breach of contract against the defendants, and the defendants failed to establish by a preponderance of the evidence any defense to those claims, the trial court properly ruled as to those contract claims. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.
The appellate court found that the wife failed to present any evidence regarding the market value of the home and she did not show that anyone was interested in renting the property.
Vara v. Vara
Family, Procedure
Texas 8th Court of Appeals
August 22, 2018
08-17-00101-CV
Gina M. Palafox
Published
The wife appealed the judgment of the trial court which denied her petition to enforce the property division in the decree of divorce. On appeal, the wife contended that the trial court erred by denying her motion for default judgment because her petition to enforce stated a valid claim for liquidated damages under a written instrument. Specifically, the wife alleged that the husband violated the original decree of divorce because she was not allowed to remain in the marital residence until closing, and she did not agree to the sales price for which the home was sold. The wife further maintained that the trial court should have entered a default judgment in her favor because the amount of damages arising from the husband’s alleged non-compliance with the provisions related to the sale of the marital residence could be accurately calculated from the original divorce decree. The appellate court found that the wife failed to present any evidence regarding the market value of the home and she did not show that anyone was interested in renting the property. The appellate court concluded that given the lack of evidence of damages, the trial court did not abuse its discretion by denying the wife’s motion for default judgment. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the Commissioner erred by dismissing the former employee’s petition for review on the ground that he lacked jurisdiction.
Tex. Comm’r of Educ. v. Solis
Appellate: Civil, Contracts, Education, Employment, Procedure
Texas 3rd Court of Appeals
August 22, 2018
03-18-00245-CV
Scott K. Field
Published
The Texas Commissioner of Education (the Commissioner) appealed the judgment of the trial court which reversed the Commissioner’s decision to dismiss for lack of jurisdiction an administrative appeal brought by the former employee, in which she challenged the nonrenewal of her employment contract with the school district. On appeal, the Commissioner asserted that it properly dismissed the former employee’s petition for review for failure to exhaust administrative remedies and the trial court erred by reversing the Commissioner’s decision. The appellate court disagreed with the Commissioner and found that section 7.057(c)’s reference to the record developed at the district level and substantial evidence review meant that section 7.057 appeals were limited to review of school district board of trustees’ decisions that were made in the context of a grievance proceeding. The Commissioner further argued that the former employee failed to properly preserve her argument about the term status of her contract. The appellate court concluded that the Commissioner erred by dismissing the former employee’s petition for review on the ground that he lacked jurisdiction. Accordingly, the judgment of the trial court was affirmed.
The plaintiff was not entitled to summary judgment based on the doctrine of ferae naturae because the plaintiff was bitten by a spider in an artificial structure and knew or should have known of an unreasonable risk of harm posed by the spiders on the property.
McCall v. Hillis
Appellate: Civil, Procedure, Real Property, Torts
Texas 4th Court of Appeals
August 22, 2018
04-17-00410-CV
Marialyn Price Barnard
Published
The defendant appealed the judgment of the trial court which rendered summary judgment in favor of the plaintiff in a premises liability action. On appeal, the defendant contended that the trial court erred in granting summary judgment in favor of the plaintiff, asserting that the plaintiff failed to prove as a matter of law that he owed no duty to the plaintiff based on the doctrine of ferae naturae. Specifically, the defendant maintained that he did not owe the plaintiff a duty to make the property safe or to warn of the existence of spiders on the property. The appellate court noted that under the doctrine of ferae naturae, a property owner was not generally liable for harm caused by indigenous wild animals on his property. The appellate court found that based on the summary judgment evidence produced by the defendant and viewing it in the light most favorable to the defendant, the plaintiff failed to establish as a matter of law an absence of a duty to warn or make safe under the doctrine of ferae naturae. The appellate court concluded that the plaintiff was not entitled to summary judgment based on the doctrine of ferae naturae because the plaintiff was bitten by a spider in an artificial structure and knew or should have known of an unreasonable risk of harm posed by the spiders on the property. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.
Because the plaintiff’s claims arose from the City’s actions in responding to an emergency call or reacting to an emergency situation, they were barred by section 101.055(2) of the Texas Tort Claims Act, and thus, the trial court erred by not granting the City’s plea to the jurisdiction.
San Antonio v. Smith
Appellate: Civil, Gov't/Administrative, Procedure, Torts
Texas 4th Court of Appeals
August 22, 2018
04-17-00572-CV
Karen Angelini
Published
The City appealed the judgment of the trial court which denied its plea to the jurisdiction based on governmental immunity in an action where the plaintiff asserted negligent activity, premises liability, and gross negligence claims. On appeal, the plaintiff claimed that governmental immunity did not apply here because the activities that formed the basis of his claims were proprietary in nature. The appellate court found that because immunity from suit defeated a trial court’s subject-matter jurisdiction, it could be raised in a plea to the jurisdiction. The City contended that the trial court erred in denying its plea to the jurisdiction because even if immunity was waived under the Texas Tort Claims Act, the undisputed evidence established that the “emergency exception” to any waiver of immunity barred the plaintiff’s claims. The appellate court concluded that because the plaintiff’s claims arose from the City’s actions in responding to an emergency call or reacting to an emergency situation, they were barred by section 101.055(2) of the Act, and thus, the trial court erred by not granting the City’s plea to the jurisdiction. Accordingly, the judgment of the trial court was reversed and remanded.
The evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the defendant’s parental rights was in the child’s best interest.
In re A.R.O.
Family, Procedure
Texas 8th Court of Appeals
August 14, 2018
08-18-00025-CV
Ann Crawford McClure
Published
The mother appealed the judgment of the trial court which terminated her parental rights as to her daughter and appointed the Department of Family and Protective Services (the Department) as the permanent managing conservator of the child. On appeal, the mother attacked the legal and factual sufficiency of the evidence supporting the four predicate termination grounds found by the trial court under Section 161.001(b)(1), and the evidence supporting the best interest findings made under Section 161.001(b)(2). The appellate court noted that only one predicate finding under Section 161.001(b)(1) was necessary to support a judgment of termination when there was also a finding that termination was in the child’s best interest. The appellate court found that the trial court properly found by clear and convincing evidence that the mother engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangered the physical or emotional well-being of the child. The appellate court concluded that the evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the defendant’s parental rights was in the child’s best interest. Accordingly, the judgment of the trial court was affirmed.
The trial court evidence was legally sufficient to establish the plaintiff’s interest in the disputed parcel and to establish the correct location of the boundary line between the adjoining properties.
Heredia v. Zimprich
Appellate: Civil, Contracts, Procedure, Real Property
Texas 8th Court of Appeals
August 14, 2018
08-15-00327-CV
Ann Crawford McClure
Published
The defendants appealed the judgment of the trial court which rendered judgment in favor of the plaintiff on his trespass to try title claim and establishing the boundary between the parties’ adjoining properties. On appeal, the defendants challenged the validity of the Correction Deed they signed, asserting that it was invalid because there were no facial imperfections in the original warranty deed or in the defendants’ chain of title, the defendants did not agree to the Correction Deed, there was no mutual mistake which caused a defect or imperfection in the original warranty deed, and a correction deed could not be used to convey an additional, separate parcel of land not conveyed in the original deed. The appellate court disagreed with the defendants and found that the evidence supported the trial court’s determination that the defendants signed the Correction Deed, and they acquiesced to the change in the metes and bounds by signing a subdivision plat and a deed of trust containing the same metes and bounds of their property. The appellate court concluded that the trial court evidence was legally sufficient to establish the plaintiff’s interest in the disputed parcel and to establish the correct location of the boundary line between the adjoining properties. Accordingly, the judgment of the trial court was affirmed.
The trial court did not err in granting summary judgment as to the plaintiff’s Prompt Payment Act Claims because the insurer’s construction of the statute did not undermine the public policy interest in holding an insurer liable for statutory interest.
Marchbanks v. Liberty Ins. Corp.
Appellate: Civil, Contracts, Damages, Insurance, Procedure
Texas 14th Court of Appeals
August 23, 2018
14-17-00004-CV
Kem Thompson Frost
Published
The plaintiff appealed the judgment of the trial court which summarily dismissed its claims under the Prompt Payment of Claims Act. The appellate court was asked to determine whether the trial court erred in granting summary judgment on the ground that the insurer’s full and timely payment based on an appraisal award precluded the insured from recovering on the claims as a matter of law. On appeal, the plaintiff asserted that the insurer committed the alleged violations before invoking the appraisal process and that neither the appraisal award nor the insurer’s payment based on the appraisal award extinguished the insurer’s liability for the pre-appraisal violations. The appellate court noted that under section 542.060(a)’s unambiguous language, to establish a right to recover the eighteen-percent interest and reasonable attorney’s fees under the prompt-pay statute, the claimant must show that a claim was made under an insurance policy, the insurer was liable for the claim, and the insurer failed to follow one or more sections of the prompt-payment statute with respect to the claim. The appellate court concluded that the trial court did not err in granting summary judgment as to the plaintiff’s Prompt Payment Act Claims because the insurer’s construction of the statute did not undermine the public policy interest in holding an insurer liable for statutory interest when it underpaid a claim and later invoked appraisal. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the defendant’s contacts were insufficient as a matter to support the exercise of general personal jurisdiction.
Momentum Eng’g, LLC v. Tabler
Appellate: Civil, Constitution, Contracts, Creditor/Debtor, Procedure, Torts
Texas 14th Court of Appeals
August 23, 2018
14-18-00002-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for special appearance in an action where the plaintiff alleged that the defendant was a Houston resident and used the defendant corporation as a sham to perpetrate fraud or that the corporation was the alter ego. The appellate court was asked to determine whether a foreign limited liability company was subject to general jurisdiction in a Texas court based on the company’s history of purchasing supplies from Texas vendors for shipment overseas and on the Texas residency of a member of the company. On appeal, the plaintiff argued that the two categories of contacts that the defendant had with Texas were sufficient to support the trial court’s exercise of general jurisdiction. The plaintiff contended that the defendant’s history of purchasing goods and freight-shipping services from Texas companies, and the defendant’s meeting in Houston to find out if a Texas company was interested in selling assets abroad, were so continuous and systematic as to render the defendant “at home” in Texas. The appellate court found that these contacts were insufficient to support general jurisdiction and no evidence supported the imputation of the individual co-defendants’ contacts to the company. The appellate court concluded that the defendant’s contacts were insufficient as a matter to support the exercise of general personal jurisdiction. Accordingly, the judgment of the trial court was reversed.
The appellate court concluded that the trial court did not err in admitting the testimony because it was limited by the fact that the jury was informed that the charges had been reduced and little information regarding the underlying facts were adduced.
In re Commitment of Grice
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 23, 2018
14-17-00439-CV
Martha Hill Jamison
Published
The defendant appealed the judgment of the trial court which civilly committed him as a sexually violent predator and directed a partial verdict that the defendant was a repeat sexually violent offender. On appeal, the defendant contended that the trial court erred in overruling his Texas Rule of Evidence 705 objection to certain evidence of past charged crimes and granting a partial directed verdict on the issue of whether the defendant was a repeat sexually violent offender. Specifically, the defendant asserted that the probative value of the evidence in question was outweighed by its prejudicial effect. The appellate court found that the trial court’s decision was within the zone of reasonable disagreement and, even if the trial court had erred, the error would be harmless. The defendant further maintained that the State’s expert testified that he did not rely on the charges in question because he had so little information about them, therefore, the testimony was of limited probative value. The appellate court concluded that the trial court did not err in admitting the testimony because it was limited by the fact that the jury was informed that the charges had been reduced and little information regarding the underlying facts were adduced. Accordingly, the judgment of the trial court was affirmed.
The plaintiffs’ authorization form did not toll the statute of limitations applicable to the defendants’ health care liability because the plaintiffs failed to list two categories of health care providers relevant to their health care liability claims.
Galloway v. Atrium Med. Ctr.
Appellate: Civil, Health Care, Procedure, Torts
Texas 14th Court of Appeals
August 23, 2018
14-17-00265-CV
William J. Boyce
Published
The plaintiffs appealed the judgment of the trial court which granted the defendants’ summary judgment motions and found that the plaintiffs’ claims were barred by the applicable two-year statute of limitations. On appeal, the plaintiffs asserted that the trial court erred in granting the defendants’ motions for summary judgment because the authorization form mailed with the plaintiffs’ pre-suit notice substantially complied with statutory requirements and tolled the applicable statute of limitations. The plaintiffs maintained that the trial court had no basis to retroactively apply the additional cases cited in the defendants’ second joint motion for consideration. The appellate court noted that a plaintiff could toll the two-year limitations period for 75 days by mailing to the defendant written notice of the plaintiff’s health care liability claim and an authorization form for the release of protected health information. The appellate court concluded that the plaintiffs’ authorization form did not toll the statute of limitations applicable to the defendants’ health care liability because the plaintiffs failed to list two categories of health care providers relevant to their health care liability claims. Accordingly, the judgment of the trial court was affirmed.
The ancillary judge misapplied the law by finding that the Firefighters Association showed a substantial likelihood of a violation of Election Code section 255.003.
In re Turner
Appellate: Civil, Constitution, Election, Gov't/Administrative
Texas 14th Court of Appeals
August 23, 2018
14-18-00649-CV
Ken Wise
Published
The relators filed a petition for writ of mandamus asking the appellate court to compel the ancillary judge to vacate his temporary restraining order restraining relators from displaying on municipal websites or other municipally funded media platforms any audio, video, or transcribed versions of the City’s Budget and Fiscal Affairs Committee meeting. On appeal, the Firefighters Association contended that statements opposing the Charter Amendment were allegedly made at the meeting and that those statements constituted “political advertising,” and by making the video available for public viewing on the City’s website violated Election Code section 255.003 because public funds were being used “for political advertising.” The appellate court found that the Ethics Advisory Opinion No. 456 was correct in that section 255.003 was not intended to inhibit discussion of matters pending before a governmental body, when a city council held a meeting to discuss pending matters attendant to whether to place an issue before voters. The appellate court concluded that the ancillary judge misapplied the law by finding that the Firefighters Association showed a substantial likelihood of a violation of Election Code section 255.003. Accordingly, the relators’ petition was conditionally granted.
The rule governing no-evidence motions for summary judgment provided that the movant had no burden to produce evidence, and that burden was borne by the defendants who failed to meet that burden.
Nelson v. Go Green, LLC
Appellate: Civil, Procedure, Real Property
Texas 14th Court of Appeals
August 23, 2018
14-17-00571-CV
Tracy Christopher
Published
The defendants appealed the judgment of the trial court which granted the plaintiff’s no-evidence summary-judgment motion against them in their defense of limitations under the ten-year adverse-possession statute. On appeal, the defendants argued that the trial court excluded critical evidence, that they were denied discovery or that the opposing party or their own counsel spoliated evidence, and that they were given inadequate notice of the summary-judgment hearing. Specifically, the defendants contended that the trial court did not consider a text message and an affidavit, both of which were part of the defendants’ response to the plaintiff’s traditional motion for final summary judgment on their suit to quiet title. The appellate court found that because neither the defendants produced evidence sufficient to raise a genuine issue of material fact as to each challenged element of their limitations defense, the trial court did not err in granting partial summary judgment against them on that issue. The appellate court concluded that the rule governing no-evidence motions for summary judgment provided that the movant had no burden to produce evidence, and that burden was borne by the defendants who failed to meet that burden. Accordingly, the judgment of the trial court was affirmed.
The trial court adequately inquired into the alleged conflict of interest between the defendant and her counsel and was not required to make a further inquiry.
Orgo v State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 23, 2018
14-17-00253-CR
Martha H. Jamison
Published
The defendant appealed the judgment of the trial court which convicted her of sexual assault of a child and sexual performance of a child and assessed her punishment at 20 years’ incarceration for each of the sexual-assault offenses and 12 years’ incarceration for sexual-performance-of-a-child offense. On appeal, the defendant contended that the trial court erred in failing to conduct a hearing or otherwise adequately inquire regarding whether there was a conflict of interest between the defendant and her trial counsel. The defendant further alleged that the trial court coerced her into stating that she was satisfied with defense counsel’s strategy by threatening her with trial on a fourth charged offense if she did not indicate satisfaction with counsel. The appellate court disagreed with the defendant and found that the trial court adequately inquired into the alleged conflict of interest between the defendant and her counsel and was not required to make a further inquiry. Accordingly, the judgment of the trial court was affirmed.
The actual existence of the victim’s daughter was not an element of the offense of attempted sexual assault, and therefore, the fact that the victim’s daughter was fictious did not render the evidence insufficient.
Crawford v. State
Criminal, Evidence, Procedure
Texas 13th Court of Appeals
August 23, 2018
13-17-00383-CR
Leticia Hinojosa
Published
The defendant appealed the judgment of the trial court which convicted him of attempted sexual assault of a child and sentenced him to confinement for six years and placed him on community supervision for five years. On appeal, the defendant sought reversal and rendition of a judgment of acquittal on the grounds that the evidence was legally insufficient to sustain his conviction because the evidence failed to establish beyond a reasonable doubt that he did an act that amounted to more than mere preparation, and the State offered no evidence that a child was the object of the sexual assault that he purportedly attempted. The appellate court found that the jury could have reasonably inferred that the defendant intended to engage in the sexual activity he described and that the defendant’s actions amounted to more than mere preparatory conduct to engage in the offense. The defendant further argued that the penal statutes at issue required the existence of an actual child and because the victim’s daughter was fictitious, the evidence was legally insufficient. The appellate court concluded that the actual existence of the victim’s daughter was not an element of the offense of attempted sexual assault, and therefore, the fact that the victim’s daughter was fictious did not render the evidence insufficient. Accordingly, the judgment of the trial court was affirmed.
The geographical area restricted in the original covenant not to compete was not reasonable and imposed a greater restraint than was necessary to protect the plaintiff’s goodwill and other business interests.
Ortega v. Abel
Appellate: Civil, Business, Contracts, Damages, Evidence, Torts
Texas 1st Court of Appeals
August 23, 2018
01-16-00415-CV
Laura Carter Higley
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion to reform the covenant and awarded the plaintiff only injunctive relief in the final judgment in an action alleging breach of a covenant not to compete, tortious interference with the covenant, and conspiracy to interfere with and conceal the breach of the covenant. On appeal, the plaintiff argued that the trial court erred by reforming the covenant and by failing to include the jury’s damages award in the final judgment. The plaintiff asserted that one of the provisions the trial court modified was not a restraint trade. The appellate court found that prohibiting the defendant from owning or operating a grocery store in a defined area for a defined time unless he offered the plaintiff the right to be a partner in the business was a restraint on that trade. The plaintiff further alleged that the defendant’s testimony did not justify applying the 3-mile radius to only the five stores sold. The appellate court concluded that there was legally and factually sufficient evidence to support the trial court’s determination that the geographical area restricted in the original covenant not to compete was not reasonable and imposed a greater restraint than was necessary to protect the plaintiff’s goodwill and other business interests. Accordingly, the judgment of the trial court was affirmed.
Because the temporary orders and complaints about temporary permanency hearings were superseded and rendered moot by a final termination judgment, the reporter’s record of the lost preliminary hearings were not necessary to the appeal’s resolution.
In the interest of J.G and J.G children
Juvenile, Procedure
Texas 12th Court of Appeals
August 22, 2018
12-18-00111-CV
Per Curiam
Published
The mother appealed the judgment of the trial court which terminated her parental rights to her children. The appellate court was asked to determine whether the mother was entitled to a new trial because portions of the reporter’s record were destroyed during the hurricane. On appeal, the mother argued that the reporter’s record for the preliminary or permanency hearings lost in the hurricane could not be replaced by the parties’ agreement or by the trial court, and that she was entitled to a new trial. The Department of Family and Protective Services (the Department) contended that the preliminary hearings were not necessary to the appeal’s resolution, and that any complaints regarding temporary hearings or orders were rendered moot by a final termination judgment. The appellate court noted that the mother had the burden to demonstrate that the missing portions of the reporter’s record was necessary to the resolution of her appeal. The appellate court concluded that because the temporary orders and complaints about temporary permanency hearings were superseded and rendered moot by a final termination judgment, the reporter’s record of the lost preliminary hearings were not necessary to the appeal’s resolution. Accordingly, the judgment of the trial court was affirmed.