The appellate court concluded that the motion to transfer venue was not properly before the court because it was not filed prior to entry of the Agreed Final Judgment and thus not considered nor ruled upon by the trial court.
CQuentia Series Holdings, LLC v. Luminex Corp.
Contracts, Procedure
Texas 8th Court of Appeals
April 16, 2021
08-20-00033-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court after the appellee filed suit against it and sought entry of the Agreed Judgment, which it obtained. The appellate court expressed no opinion regarding whether the appellant consented to the entry of the Agreed Judgment at the time it was actually entered because it does not change the unambiguous terms of the supplement indicating the appellant’s consent to waive any right to receive notice or to be heard prior to entry of the Agreed Judgment or to appeal the entry after it occurred. The appellate court must hold the appellant to its agreement, finding the appellant waived its right to appeal the entry of the Agreed Judgment by agreement. The appellate court concluded that the motion to transfer venue was not properly before the court because it was not filed prior to entry of the Agreed Final Judgment and thus not considered nor ruled upon by the trial court. Accordingly, the judgment was affirmed. 

The criminal appellate court concluded that even if the court assumed that the trial court erred in denying the appellant’s challenge for cause to the remaining venire member at issue, another member, the appellant could not show harm.
Love v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 14, 2021
AP-77, 085
Mary Lou Keel
Unpublished
The appellant appealed the judgment of the trial court which convicted the appellant of capital murder for murdering the first victim and the second victim in the same criminal transaction. On appeal, the appellant challenged the trial court's sentence to death. The criminal appellate court found that the trial court did not abuse its discretion in denying the appellant’s challenge for cause to venire members. The criminal appellate court noted that the member did not express the belief that death was the presumptively appropriate sentence for a person convicted of capital murder. The criminal appellate court concluded that even if the court assumed that the trial court erred in denying the appellant’s challenge for cause to the remaining venire member at issue, another member, the appellant could not show harm. Accordingly, the trial court's judgment was affirmed. 

The appellate court concluded that the appellant had not provided any affidavit testimony controverting the appellee’s testimony that he paid the contract in full.
Sanchez v. Barragan
Contracts, Real Property
Texas 8th Court of Appeals
April 14, 2021
08-20-00027-CV
Yvonne T. Rodriguez
Published
The appellant appealed the trial court’s summary judgment against her on the appellee's action for declaratory judgment. The appellate court found that it was unreasonable to infer that a notation on a check stub provided greater evidence of a payment’s purpose than the sworn testimony of the person who signed the check. The appellate court noted that it was especially true considering the three checks in question were for $600, the same amount as each of the previous and subsequent monthly payments under the Agreement. The appellate court concluded that the appellant had not provided any affidavit testimony controverting the appellee’s testimony that he paid the contract in full. Accordingly, the court found no error in the trial court’s determination that the appellee performed fully under the agreement.  

The trial court abused its discretion by denying the relators’ motion for separate trials and abatement, and the relators lacked an adequate remedy by appeal.
In re State Farm Mut. Auto. Ins. Co.
Constitution, Damages, Insurance, Procedure
Texas 5th Court of Appeals
April 15, 2021
05-20-00815-CV
Craig Smith
Published
The relators filed a petition for writ of mandamus contending the trial court abused its discretion by denying their motion for separate trials and abatement of real party in interest (RPI)’s claims concerning underinsured motorist (UIM) insurance. The appellate court noted that the RPI had not alleged an injury independent of a right to policy benefits. The appellate court found that the trial court was required to bifurcate the proceeding and first determine whether the RPI was entitled to UIM policy benefits before determining whether he could recover those amounts as damages for violations of the Insurance Code. The appellate court concluded that the trial court abused its discretion by denying the relators’ motion for separate trials and abatement, and the relators lacked an adequate remedy by appeal. Accordingly, the court conditionally granted the relators’ petition for writ of mandamus.  

The Supreme Court concluded that it was really a merits challenge and that the petitioner had demonstrated standing to bring the singular preemption claim it had pled.
Tex. Propane Gas Ass'n v. Houston
Appellate: Civil, Oil, Gas, & Mineral, Procedure
The Supreme Court of Texas
April 16, 2021
19-0767
Nathan L. Hecht
Published
The respondent appealed the judgment of the trial court, challenging the petitioner's suit for a declaratory judgment that its ordinances regulating the LPG industry, to include imposing criminal fines for violations, were preempted by state law. The Supreme Court found that the petitioner’s claim was not a criminal law matter that must be raised in defense to prosecution. The Supreme Court noted that the respondent argued that the petitioner could not challenge the respondent’s LPG regulations en masse but only those that had injured at least one of its members. The Supreme Court concluded that it was really a merits challenge and that the petitioner had demonstrated standing to bring the singular preemption claim it had pled. Accordingly, the court reversed the judgment of the appellate court and remanded the case to the trial court for further proceedings. 

The Supreme Court agreed with the court of appeals that the allegations constituted claims based on the departure from accepted standards of health care and therefore fell within the TMLA’s scope.
Rogers v. Bagley
Civil Rights, Procedure
The Supreme Court of Texas
April 16, 2021
19-0634
Rebeca Huddle
Published
The appellant appealed the judgment of the trial court, asking the Supreme Court to consider whether claims asserted against a state mental health facility and its employees arising from the death of a patient, pled as claims under 42 U.S.C. Section 1983, were health care liability claims under the Texas Medical Liability Act (TMLA); and if so, whether section 1983 preempted the TMLA’s requirement to timely serve an expert report. The Supreme Court found that the respondent’s section 1983 claims were based on several allegations. The Supreme Court agreed with the court of appeals that the allegations constituted claims based on the departure from accepted standards of health care and therefore fell within the TMLA’s scope. Accordingly, the court reversed the court of appeals’ judgment and remanded.  

The Supreme Court concluded that the trial court granted summary judgment for the defendants, but the appellate court reversed, holding that the boundary stipulation was void and thus might not be ratified.
Concho Res., Inc. v. Ellison
Contracts, Damages, Torts
The Supreme Court of Texas
April 16, 2021
19-0233
Debra Ann H. Lehrman
Published
The plaintiff appealed the judgment of the trial court, alleging that the defendants drilled several wells either on the plaintiff’s leasehold or closer to the lease line than Railroad Commission rules allowed. On appeal, the defendants, relying on a boundary stipulation between the fee owners of the two mineral estates and the plaintiff’s written acceptance of the stipulation, claimed that the plaintiff ratified the agreed boundary line, foreclosing the trespass claims. The Supreme Court found that with respect to the trial court’s judgment for the first defendant on its counterclaims for breach of contract and declaratory judgment, the court of appeals reversed that portion of the judgment because of the court’s erroneous holding regarding the plaintiff’s title. The Supreme Court determined that the appellate court did not address the first defendant’s cross-appeal regarding the portion of the trial court’s judgment that declined to award the first defendant some of the damages and attorney’s fees found by the jury. The Supreme Court concluded that the trial court granted summary judgment for the defendants, but the appellate court reversed, holding that the boundary stipulation was void and thus might not be ratified.   

The Supreme Court held that legally sufficient evidence supported the jury’s design-defect findings and the trial court’s jury instructions did not cause an improper verdict in the case.
Emerson Elec. Co. v. Johnson
Appellate: Civil, Damages, Evidence, Litigation: Personal Injury, Procedure, Technology, Torts
The Supreme Court of Texas
April 16, 2021
18-1181
Jane N. Bland
Published
The petitioner appealed the judgment of the trial court, finding that it failed to provide adequate warnings about the risk of terminal venting. On appeal, the petitioner challenged the finding the respondent partly responsible for his injuries. The Supreme Court observed that the petitioner did not address how the omission of the remaining four American Tobacco Co. v. Grinnell factors caused an improper verdict. The Supreme Court found that the petitioner had not shown that the omission of the Grinnell factors from the charge in the case required a new trial. The Supreme Court held that legally sufficient evidence supported the jury’s design-defect findings and the trial court’s jury instructions did not cause an improper verdict in the case. Accordingly, the judgment was affirmed.

The Supreme Court concluded that the respondent failed to overcome the sovereign immunity of the petitioner and its employees acting in their official capacities.
Tex. S. Univ. v. Villarreal
Constitution, Contracts, Education, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 16, 2021
19-0440
J. Brett Busby
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court's grant of a plea to the jurisdiction invoking sovereign immunity. On appeal, the Supreme Court addressed whether a state university’s dismissal of a student for poor academic performance implicated a liberty or property interest protected by the Texas Constitution’s guarantee of due course of law. The Supreme Court held that an academic dismissal from higher education carried insufficient stigma to implicate a protected liberty interest and assuming without deciding that the respondent had a protected property right in his continuing education, the procedures followed by the petitioner in connection with his dismissal were constitutionally adequate. The Supreme Court found that notification of the reason for dismissal and the ability to respond was sufficient, and it was undisputed that the respondent had those opportunities here. The Supreme Court concluded that the respondent failed to overcome the sovereign immunity of the petitioner and its employees acting in their official capacities. Accordingly, the court reversed the appellate court's judgment. 

Because immunity had been waived, the trial court had jurisdiction over the appellant's suit and, thus, erred in dismissing the suit.
Qatar Found. for Educ., Science & Cmty. Dev. v. Zachor Legal Inst.
Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
April 15, 2021
03-20-00129-CV
Darlene Brown
Published
The appellant appealed the trial court’s order sustaining the Legal Institute’s plea to the jurisdiction in the appellant's suit under the Texas Public Information Act (TPIA). The appellant filed suit against the Attorney General to prevent the disclosure of information in response to a request for public information that Zachor Legal Institute had submitted to Texas University. The appellate court based on the text of the TPIA and the supreme court’s decision in Boeing Co. v. Paxton, held that the TPIA waived sovereign immunity for the appellant's suit against the Attorney General. Because immunity had been waived, the trial court had jurisdiction over the appellant's suit and, thus, erred in dismissing the suit. Accordingly, the judgment was reversed and remanded.  

The criminal appellate court reviewed the defendant's challenge for cause to one of those two potential jurors, first potential juror, and found no trial court error.
Hudson v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 14, 2021
AP-77, 077
Scott Walker
Published
The defendant appealed the judgment of the trial court which convicted the defendant of capital murder for murdering two victims in the same criminal transaction. On appeal, the defendant challenged the sentence to death. The criminal appellate court found that the trial court did not abuse its discretion in denying the challenge for cause to first potential juror. The criminal appellate court noted that the first potential juror’s answers were vacillating or contradictory, and in such circumstances, the court deferred to the trial court’s decision. The criminal appellate court reviewed the defendant's challenge for cause to one of those two potential jurors, first potential juror, and found no trial court error. Accordingly, the court affirmed the trial court’s judgment and sentence of death.  

When there was a close causal connection between the illegal seizure and the confession, not only was exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence was more likely to compromise the integrity of the courts.
Martinez v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 14, 2021
PD-1215-19
Mary Lou Keel
Published
The appellant appealed the judgment of the trial court which denied his motion to suppress his confession after he pled guilty to murder and was sentenced to 30 years in prison. The criminal appellate court held that three of the four Brown factors weighed in the appellant's favor, and like Brown’s statement, the appellant was separated from his illegal arrest by very little time and there was no intervening circumstance. The criminal appellate court found that the defendant's arrest had a quality of purposefulness; it was for investigation, embarked upon in the hopes that something might turn up, and the arrest seemed to have been calculated to cause surprise, fright, and confusion. The criminal appellate court concluded that when there was a close causal connection between the illegal seizure and the confession, not only was exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence was more likely to compromise the integrity of the courts. Accordingly, the judgment was reversed and remanded.  

The criminal appellate court disagreed with the appellate court's determination that the evidence that some of the gates in the fence were not locked was evidence from which a rational jury could infer that the playground was “open to the public.”
Curlee v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 14, 2021
PD-0624-20
Scott Walker
Published
The appellant appealed the judgment of the trial court which convicted him of possession of a controlled substance within 1,000 feet of a drug-free zone, namely, a playground. On appeal, the appellant challenged the sufficiency of the evidence showing a playground, specifically, the requirement that the playground was “open to the public.” The criminal appellate court found that the evidence relating to the fence showed that multiple entrances were effectively locked, and all of the gates could be locked, either directly or indirectly. The criminal appellate court determined that the fact that the church’s attempt to secure the playground area was inadequate did not mean that the church’s playground was therefore “open to the public.” The criminal appellate court disagreed with the appellate court's determination that the evidence that some of the gates in the fence were not locked was evidence from which a rational jury could infer that the playground was “open to the public.” Accordingly, the judgment was reversed and remanded.  

The criminal appellate court concluded that because the appellant’s objection, motion for mistrial, and motion for new trial were timely, the appellate court erred by failing to reach the merits of the appellant’s statutory and constitutional claims.
Becerra v. State
Constitution, Criminal, Procedure
Texas Court of Criminal Appeals
April 14, 2021
PD-0804-19
Jesse McClure
Published
The appellant appealed the judgment of the trial court, asking the criminal appellate court to determine if an alternate juror retired with the jury and was present during deliberations, at what point was an appellant’s objection to the thirteenth juror’s presence timely made: when the jury retired to deliberate, or when an appellant became aware that the alternate was present during deliberations? The criminal appellate court found that the grounds for the appellant’s objection to the alternate juror being sent into the jury room were not apparent until counsel became aware of the error. The criminal appellate court concluded that because the appellant’s objection, motion for mistrial, and motion for new trial were timely, the appellate court erred by failing to reach the merits of the appellant’s statutory and constitutional claims. Accordingly, the judgment was reversed and remanded. 

The appellate court concluded that the dismissal of the appellee’s suit did not affect the grandmother’s affirmative claims for relief and did nothing to affect the grandmother’s possession of the child.
In re Interest of A.W
Family, Juvenile, Procedure
Texas 10th Court of Appeals
April 14, 2021
10-20-00336-CV
Matt Johnson
Published
The appellant appealed the termination of her parental rights to the child, asserting that the trial court’s order of termination was void because the trial on the merits occurred after the trial court lost jurisdiction when it failed to make the mandatory findings in its order granting an extension of the trial and dismissal dates. The appellate court found that the requirements of Section 263.401(b) Texas Family Code were still applicable even if the deadlines were extended as a result of the COVID pandemic, which was the appellee’s only basis for requesting an extension. The appellate court determined that because the court’s order did not meet the requirements of Section263.401(b), the court’s jurisdiction ended. The appellate court concluded that the dismissal of the appellee’s suit did not affect the grandmother’s affirmative claims for relief and did nothing to affect the grandmother’s possession of the child. Accordingly, the judgment was partly affirmed, partly reversed, and remanded. 

The appellate court did not reach the appellants’ remaining issues.
Steven Painter v. Amerimex Drilling I, Ltd.
Employment, Litigation: Personal Injury, Torts, Workers' Compensation
Texas 8th Court of Appeals
April 12, 2021
08-19-00226-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court which determined the Workers’ Compensation Act (the Act) barred the negligence claims brought against the appellee by the appellants who alleged it was vicariously liable for the passengers. The appellate court found that the facts standing alone were insufficient to demonstrate as a matter of law the passengers members were acting in the course and scope of their employment for purposes of the Act at the time of the collision. The appellate court noted that was especially true in light of the CFO’s testimony in the case that the passengers were free to do what they pleased as soon as they left the jobsite. The appellate court did not reach the appellants’ remaining issues. Accordingly, the court reversed the grant of summary judgment and remanded to the trial court for further proceedings.  

The appellate court concluded that the appellant’s attorney must comply with all the requirements of Rule 48.4.
David v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
April 12, 2021
08-18-00059-CR
Yvonne T. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted the defendant of tampering with physical evidence. On appeal, the defendant challenged the jury's assessed punishment at thirty years in prison. The appellate court found that the evidence adduced at trial was legally insufficient to support a finding, first, the defendant was the individual that destroyed or altered the marijuana and second, the marijuana was in fact, altered or destroyed. The appellate court ordered the appellant’s attorney, pursuant to Rule 48.4, to send the appellant a copy of the opinion and the court’s judgment, to notify the appellant of his right to file a pro se petition for discretionary review, and to inform the appellant of the applicable deadlines. The appellate court concluded that the appellant’s attorney must comply with all the requirements of Rule 48.4. Accordingly, the court reversed the judgment. 

Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the court granted the relator's petition for writ of habeas corpus and ordered that the relator was and should remain discharged from custody.
In re Luther
Appellate: Civil, Constitution, Criminal, Evidence, Procedure
The Supreme Court of Texas
April 09, 2021
20-0363
Per Curiam
Published
The relator appealed the judgment of the trial court, seeking relief from the trial court’s Judgment of Contempt and Order of Confinement, holding the relator and her solely owned business—a cosmetology salon—guilty of criminal and civil contempt. On appeal, the relator was jailed and the salon was fined for violating the trial court’s temporary restraining order, which required them to cease and desist from operating the salon for in-person services in violation of State of Texas's emergency regulations related to the COVID-19 pandemic. The Supreme Court noted that the temporary restraining order failed to set forth the conduct required and the legal basis for its issuance in clear, specific, and unambiguous terms. The Supreme Court found that the temporary restraining order’s lack of specificity regarding the conduct to be restrained renders it and the Judgment of Contempt and Order of Confinement void. The Supreme Court concluded that pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the court granted the relator's petition for writ of habeas corpus and ordered that the relator was and should remain discharged from custody.  

The appellate court concluded that the appellant had not demonstrated error concerning the trial court’s findings of fact and conclusions of law.
Gutierrez v. Rios
Appellate: Civil, Contracts, Damages, Evidence, Procedure, Real Property, Torts
Texas 8th Court of Appeals
April 08, 2021
08-19-00085-CV
Gina M. Palafox
Published
The appellant appealed from a take-nothing judgment on his breach of contract suit against the appellee. The appellate court noted that the basis of that suit was an alleged oral agreement for the appellant to purchase a house from Rios. The appellate court found that the evidence was legally and factually sufficient to support the trial court’s finding that there was no contract for the purchase and sale of the house because there was no meeting of the minds concerning such a sale. The appellate court concluded that the appellant had not demonstrated error concerning the trial court’s findings of fact and conclusions of law. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that the trial court did not err by granting the hospitals and the appellees' motions for summary judgment and the assignments were overruled.
Janaki v. C.H. Wilkinson Physician Network
Appellate: Civil, Contracts, Damages, Health Care, Torts
Texas 13th Court of Appeals
April 08, 2021
13-20-00125-CV
Clarissa Silva
Published
The appellant appealed the judgment of the trial court, asserting claims against the appellees for retaliation and for reporting potential Medicare fraud. On appeal, the appellee sought summary judgment on the basis that the Texas Health and Safety Code Section 161.134 only protected against retaliation by “hospitals, mental health facilities, and treatment facilities” none of which described the appellee group. The appellate court was unpersuaded by the appellant’s urged application of the single, integrated enterprise theory to her Section 161.134 retaliation claim. The appellate court found that having considered the unambiguity of the statute, the existence of a separate statute addressing retaliation claims by non-employees, and because the legislature had not expressly guided the court to consider federal law in applying Section 161.134 or to interpret it broadly, the court declined to extend the single, integrated enterprise theory to Section 161.134. The appellate court concluded that the trial court did not err by granting the hospitals and the appellees' motions for summary judgment and the assignments were overruled. Accordingly, the judgment was affirmed.  

The appellate court concluded that the writ would issue only if the trial court failed to act in accordance with the Court's opinion and all other requested relief was denied.
In re Robbins
Constitution, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
April 08, 2021
14-21-00129-CV
Per Curiam
Published
The relator appealed the judgment of the trial court asking the appellate court to compel the presiding judge to: (1) direct the trial court to rule on pending motion(s) to compel discovery and other discovery motions; (2) order the real party in interest, DDRG Physicians, PLLC, to appear for deposition; and (3) have a status conference to discuss a new scheduling order which will account for time lost and place case back on the docket. The appellate court found that the record reflected the relator’s motions were properly filed and have been pending a reasonable time, relator requested rulings on the motions, and the trial court has failed to rule. The appellate court determined that it would conditionally grant the requested relief in part and directed the trial court to rule on the following motions within thirty days of the date of the opinion. The appellate court concluded that the writ would issue only if the trial court failed to act in accordance with the Court's opinion and all other requested relief was denied. Accordingly, the writ was conditionally granted in part and denied in part.  

The trial court’s proper refusal to charge the jury on the even lesser offense of assault did not, and could not, harm the defendant or violate his rights to due process or to a fair trial.
Ybarra v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
April 08, 2021
11-19-00126-CR
W. Stacy Trotter
Published
The defendant appealed the judgment of the trial court which convicted the defendant of the aggravated kidnapping and murder of the victim. On appeal, the defendant challenged the trial court's sentence to run concurrently. The appellate court observed that the trial court was not required to submit, and did not err when it correctly refused to instruct the jury on, the requested lesser included offense of unlawful restraint. The appellate court found that the defendant contended that the “lies between” rule should not foreclose an assault instruction in the case because the evidence that supports an assault submission differs from the evidence that would support an aggravated assault submission. The appellate court concluded that the trial court’s proper refusal to charge the jury on the even lesser offense of assault did not, and could not, harm the defendant or violate his rights to due process or to a fair trial. Accordingly, the judgment was affirmed.

The appellate court concluded that the relator had not met his burden of providing that quantum of evidence on the record.
In re Dominguez
Constitution, Education, Election, Gov't/Administrative, Wills/Trusts/Probate
Texas 8th Court of Appeals
April 06, 2021
08-21-00046-CV
Per Curiam
Published
The relator filed a petition for a writ of mandamus invoking the appellate court's election supervision jurisdiction in connection with the race for El Paso Independent School District (EPISD) School Board Trustee. On appeal, the relator, a candidate for EPISD trustee for District #1, asked the appellate court to compel EPISD Election Official to issue an administrative declaration that the relator's opponent, was ineligible to run for the District #1 school board seat because she did not meet the six-month in-district residency requirements set by the Texas Election Code. The appellate court found that the court could only grant mandamus relief directing an election official to administratively disqualify a candidate based on the existence of conclusively established proof of ineligibility. The appellate court concluded that the relator had not met his burden of providing that quantum of evidence on the record. Accordingly, the petition for a writ of mandamus was denied.  

The appellate court concluded that the defendant's complaints about gaps in the chain of custody were matters that go to the weight of the testimony about the blood tests, not its admissibility.
Dugar v. State
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
April 07, 2021
09-19-00098-CR
Hollis Horton III
Published
The defendant appealed from his conviction for driving while intoxicated (DWI), a Class A misdemeanor. The appellate court observed that because the Fourth Amendment tolerates reasonable mistakes whether the mistake was one of law or of fact the court could not say the trial court erred by denying the defendant's motion to suppress on a record that shows that if the officer was mistaken, the mistake was one that was objectively reasonable. The appellate court concluded that the defendant's complaints about gaps in the chain of custody were matters that go to the weight of the testimony about the blood tests, not its admissibility. Accordingly, the trial court’s judgment was affirmed.  

The appellate court affirmed the trial court’s ruling that the appellee failed to meet its burden on its statute of limitations defense to the appellant’s claims and the court reversed the trial court’s judgment and remanded for further proceedings.
Joe Frank Muzquiz/Para Todos, Inc. v. Para Todos, Inc.
Contracts, Corporations, Real Property, Tax
Texas 8th Court of Appeals
March 31, 2021
08-19-00005-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court, filing a declaratory judgment action and breach of contract claim, seeking a declaration of his rights as lessor under a lease which, as written, contained a perpetual lease term, was terminable only at the will of the appellee except in the event of default, contained no provision for increasing the rent amount, and required the appellant to pay for property taxes, insurance, and common area maintenance. The appellate court found that Cosgrove v. Cade and other cases like it distinguishable and the appellant was not seeking to add a terminable-at-will provision to the Lease, or even correct a mistake in the Lease. The appellate court determined that the declaration sought did not become a live controversy until the appellant attempted to terminate the lease and the lawsuit was filed well within the four-year period from the time a claim accrued under the Declaratory Judgment Act. The appellate court affirmed the trial court’s ruling that the appellee failed to meet its burden on its statute of limitations defense to the appellant’s claims and the court reversed the trial court’s judgment and remanded for further proceedings. Accordingly, the judgment was affirmed, reversed, and remanded.         

The taxing authorities had no actual or constructive notice of the tax lien transfer from the second company to the third company or the subsequent recorded transactions occurring outside the chain of title.
Ovation Services, LLC v. Richard
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Tax
Texas 12th Court of Appeals
March 31, 2021
12-20-00011-CV
James T. Worthen
Published
The appellant appealed the judgment of the trial court which granted the appellee's motion for summary judgment, alleging that the lien was extinguished. The appellate court noted that the appellant admitted in its discovery responses that the second company was a party, the second company was properly served citation in that lawsuit, and that the lien held by the appellant as servicer for the first company was derived from the second company. The appellate court found that the second company failed to exercise those remedies, and the trial court extinguished the lien in its judgment. The appellate court determined that although the taxing units had no obligation to discover the transactions, even those documents evidencing the transactions contained inaccurate information. The appellate court concluded that the taxing authorities had no actual or constructive notice of the tax lien transfer from the second company to the third company or the subsequent recorded transactions occurring outside the chain of title. Accordingly, the judgment of the trial court was affirmed.      

The appellate court noted that the summary judgment evidence showed no genuine issue of material fact and, accordingly, the appellee was entitled to judgment as a matter of law.
Lopez v. Rocky Creek Partners, llc.
Contracts, Corporations, Damages, Torts
Texas 4th Court of Appeals
March 31, 2021
04-19-00722-CV
Patricia O. Alvarez
Published
The appellant appealed the judgment of the trial court which granted the motion for summary judgment. On appeal, the appellant filed a motion for new trial, which was denied by operation of law, arguing that his trial attorney withdrew days before the hearing on the motion for summary judgment without proper notice to him, that the trial court abused its discretion by granting the withdrawal, and that the trial court improperly granted the appellee’s motion for summary judgment and attorney’s fees. The appellate court found that the appellant waived his Rule 10 of the Texas Rules of Civil Procedure complaint by failing to raise it in his motion for new trial. The appellate court noted that the summary judgment evidence showed no genuine issue of material fact and, accordingly, the appellee was entitled to judgment as a matter of law. The appellate court vacated the award of attorney’s fees and remanded for a redetermination consistent with the opinion. Accordingly, the trial court’s judgment was partly affirmed and partly reversed.   

Since the findings regarding the appellant's pre-settlement misrepresentations were immaterial, as was the evidence on which those findings were based, those findings and evidentiary rulings were harmless and were not grounds for reversal.
Wells v. Wells
Contracts, Real Property
Texas 14th Court of Appeals
March 30, 2021
14-19-00824-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, attesting that he had no non-exempt assets that could be used to wholly or partially satisfy a judgment against him, and he agreed that if his attestation included false information or omitted material information, an agreed judgment for $1 million could be rendered against him. On appeal, the appellant challenged the trial court's conclusion that those conditions were satisfied because the appellant owned a share of a corporation that granted him membership in, and access to, a family campground. The appellate court noted that the evidence was legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. The appellate court found that because execution on the appellant's share of the real estate would not require a court to “interfere with the corporation’s internal management,” the trial court did not abuse its discretion in declining to apply the judicial nonintervention doctrine. The appellate court concluded that since the findings regarding the appellant's pre-settlement misrepresentations were immaterial, as was the evidence on which those findings were based, those findings and evidentiary rulings were harmless and were not grounds for reversal. Accordingly, the court affirmed the trial court’s judgment.  

The appellate court concluded that the evidence was neither so weak nor the findings so against the great weight and preponderance of the evidence as to make them clearly wrong or unjust.
Ononiwu v. Eisenbach
Appellate: Civil, Health Care, Litigation: Personal Injury
Texas 1st Court of Appeals
March 30, 2021
01-20-00131-CV
Gordon Goodman
Published
The appellant appealed the judgment of the trial court, contending that the verdict should have been better in a suit for negligence seeking damages for past and future physical pain, physical impairment, and mental anguish. The appellate court found that the largely subjective nature of the evidence and the evidentiary conflicted as to the existence, severity, and cause of the injuries in the case arising from a low-speed collision without contemporaneous indicia of injury, the jury’s findings of no damages for past physical pain and impairment should not be overturned. The appellate court concluded that the evidence was neither so weak nor the findings so against the great weight and preponderance of the evidence as to make them clearly wrong or unjust. Accordingly, the trial court's judgment was affirmed.   

The appellate court concluded that the trial court’s findings of fact did not support the judgment.
Clinton v. Gallup
Appellate: Civil, Contracts
Texas 14th Court of Appeals
March 30, 2021
14-19-00202-CV
Charles Spain
Published
The appellant appealed the judgment of the trial court which ruled in the appellee’s favor and awarded damages against the appellant plus court costs and prejudgment interest. The appellate court found that when the trial court did not make findings that would control the case under a correct legal interpretation, and the proper findings could not be presumed, the proper disposition was to reverse the judgment and remand the case for further proceedings. The appellate court concluded that the trial court’s findings of fact did not support the judgment. Accordingly, the judgment was reversed and remanded for further proceedings.      

The appellate court concluded that the evidence was weak and did no more than create a mere surmise or suspicion of material fact.
Martinez v. Boone
Appellate: Civil, Contracts, Employment, Gov't/Administrative, Litigation: Personal Injury, Torts
Texas 8th Court of Appeals
March 29, 2021
08-19-00086-CV
Yvonne T. Rodriguez
Published
The appellants appealed the judgment of the trial court, alleging that the appellees were both vicariously and directly liable for the first individual's conduct as the court described. The appellate court noted that based on the master service agreement (MSA) and the right to control balancing under the Limestone factors, the court recognized the evidence was sharply conflicting. The appellate court found the appellants have raised a fact issue as to whether the first individual was the first appellee's employee at the time of the accident and the conflicting testimony, coupled with the basic notion that obtaining drinking water and food for the crew could very likely constitute a necessary service in furtherance of the first appellee's business, led the court to conclude a fact issue existed as to whether the first individual was within the course and scope of his employment at the time of the accident. The appellate court concluded that the evidence was weak and did no more than create a mere surmise or suspicion of material fact. Accordingly, the court reversed in part, affirmed in part, and remanded for further proceedings consistent with the opinion.      

In the absence of a complete record, it was impossible to review all the evidence presented to the fact-finder or to apply the appropriate evidentiary sufficiency standard of review.
Coplin v. Mann
Business, Contracts, Torts
Texas 6th Court of Appeals
March 29, 2021
06-20-00076-CV
Ralph Burgess
Published
The appellant appealed the judgment of the trial court which ruled in favor of the appellees on his claim of breach of contract and on the appellees’ counterclaims for violation of the Texas Deceptive Trade Practices Act. The appellate court observed that the appellant could not reasonably be expected to show exactly how much testimony was missing or the precise nature of the missing testimony. The appellate court found that in the absence of a complete record, it was impossible to review all the evidence presented to the fact-finder or to apply the appropriate evidentiary sufficiency standard of review. The appellate court concluded that it was apparent that the lost portion of the record could not be replaced by agreement of the parties and a significant portion of the timely requested record necessary to the appeal’s resolution has been lost through no fault of the appellant and could not be replaced by agreement of the parties. Accordingly, the court reversed the judgment of the trial court and remanded for a new trial.      

The Supreme Court concluded that relying mainly on the absence of “independent, retrospective analyses,” the appellate court erred in rejecting the evidence that supported the first petitioner’s findings.
Pub. Util. Comm'n of Tex. v. Tex. Indus. Energy Consumers
Business, Consumer, Contracts, Corporations, Evidence
The Supreme Court of Texas
March 26, 2021
18-1061
Jane N. Bland
Published
The respondents challenged the first petitioner’s ruling in the trial court, arguing that the first petitioner’s decision to allow part of the construction costs was arbitrary and lacked evidence to support it because the second petitioner did not provide an outside expert’s assessment of the decision to continue construction. On appeal, the respondents challenged the trial court's decision to uphold the first petitioner’s decision in all respects. The Supreme Court observed that the parties also presented an issue that the appellate court did not reach: whether the first petitioner erred in permitting the second petitioner to include financing costs that exceeded the project’s initial cap on capital costs in its rate base. The Supreme Court found that the first petitioner applied the standard it set forth in concluding that completing construction was a prudent decision. The Supreme Court concluded that relying mainly on the absence of “independent, retrospective analyses,” the appellate court erred in rejecting the evidence that supported the first petitioner’s findings. Accordingly, the judgment was reversed and remanded.

The appellate court vacated the trial court’s orders, reinstated the judgments of conviction, and remanded to the trial court to execute the sentences previously assessed.
State v. Temple
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 30, 2021
14-20-00388-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which convicted him of the felony offenses of possession with intent to deliver methamphetamine and cocaine. On appeal, the defendant challenged the trial court's deferment of an adjudication of guilt and placed him on community supervision for nine years. The appellate court agreed with the State that the trial court lacked jurisdiction to place the defendant on shock probation because the court granted that relief more than 180 days after the appellee began serving his sentences. The appellate court vacated the trial court’s orders, reinstated the judgments of conviction, and remanded to the trial court to execute the sentences previously assessed. Accordingly, the judgment of the trial court was affirmed. 

The appellate court concluded that under the binding authority of Porath v. State, the court rejected the defendant's contention that section 43.26 unconstitutionally criminalized simulated sexual conduct.
Ex parte Fusselman
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 30, 2021
14-20-00549-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of three counts of possession of child pornography in violation of section 43.26 of the Texas Penal Code. On appeal, the defendant appealed from the orders denying him the relief he requested in his pretrial applications for writ of habeas corpus. The appellate court rejected the defendant's argument that section 43.26 was overbroad because it prohibited possession of pornography that depicted 17-year-olds. The appellate court noted that the Supreme Court of Texas had not interpreted article I, section 8 of the Texas Constitution more broadly than the First Amendment in any case that did not involve an issue of prior restraint on free speech. The appellate court concluded that under the binding authority of Porath v. State, the court rejected the defendant's contention that section 43.26 unconstitutionally criminalized simulated sexual conduct. Accordingly, the judgment was affirmed.   

The defendant refused to assist in clarifying his identity after he was under arrest and the evidence was sufficient for the trial court to conclude beyond a reasonable doubt that the defendant was lawfully arrested when he refused to provide his correct name to the officer.
Rodgers v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 30, 2021
14-19-00216-CR
Randy Wilson
Published
The defendant appealed the judgment of the trial court which convicted him of the failure-to-identify offense. On appeal, the defendant complained that his misdemeanor failure-to-identify conviction was not supported by legally sufficient evidence at trial. The appellate court noted that a jury could reasonably conclude that when the officer commanded the defendant to sit, after informing of his Miranda rights, this additional act of limiting the appellant’s mobility, constituted a restraint that was more than merely necessary to safeguard his safety, and more than necessary to merely assure the presence during a period of investigation. The appellate court concluded that the defendant refused to assist in clarifying his identity after he was under arrest and the evidence was sufficient for the trial court to conclude beyond a reasonable doubt that the defendant was lawfully arrested when he refused to provide his correct name to the officer. Accordingly, the judgment was affirmed.          

The Supreme Court concluded that although Chapter 95 applied to the respondents’ negligence claims against the petitioner, the court nevertheless concluded that the evidence and jury answers supported the judgment against the petitioner in the case.
Los Compadres Pescadores, L.L.C. v. Valdez
Appellate: Civil, Contracts, Employment, Health Care, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
March 26, 2021
19-0643
Jeffrey S. Boyd
Published
The petitioner challenged the judgment of the trial court on the grounds that the respondent failed to submit legally sufficient evidence and failed to obtain jury findings necessary to establish liability, particularly as required under chapter 95 of the Texas Civil Practice and Remedies Code. The Supreme Court observed that although the presence of the power line was open and obvious as a matter of law, the fact that it was energized (and thus the dangerous condition it presented) was not. The Supreme Court noted that under the evidence, the obvious nature of the danger was not sufficient to make the premises reasonably safe as a matter of law and the evidence established that the power line snapped at the moment the respondents were injured, and as the petitioner’s expert witness agreed, photos entered into evidence showed a discoloration near the tip of the rebar that was consistent with its contact with the power line. The Supreme Court concluded that although Chapter 95 applied to the respondents’ negligence claims against the petitioner, the court nevertheless concluded that the evidence and jury answers supported the judgment against the petitioner in the case. Accordingly, the judgment was affirmed.

The appellate court concluded that the police officers’ activity in the case failed short of that which was necessary to invoke the defense of outrageous government conduct.
Perales v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 25, 2021
14-19-00236-CR
Frances Bourliot
Published
The defendant challenged his conviction for online solicitation of a minor. The appellate court found that the court similarly did not reach the defendant's argument that he was entitled to an entrapment instruction even though he pleaded not guilty. The appellate court noted that the trial court did not abuse its discretion in admitting the evidence and the court had already noted that the online solicitation statute was meant to permit police officers to do just what they did in the case: pose as a minor to intercept a sexual predator before he meets a minor to engage in sexual activity. The appellate court concluded that the police officers’ activity in the case failed short of that which was necessary to invoke the defense of outrageous government conduct. Accordingly, the judgment was affirmed.  

The appellate court concluded that any error in the admission of the officer’s hearsay testimony regarding the victim’s out-of-court statements was rendered harmless and effectively forfeited.
Redmond v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
March 25, 2021
02-19-00381-CR
Mike Wallach
Published
The defendant appealed his convictions for aggravated assault of a family member with a deadly weapon, evidence tampering, and retaliation. The appellate court found that the evidence of the defendant's abusive relationship with another woman constituted evidence that the defendant had on other occasions committed similar offenses to the one he was charged with which served to reduce the possibility that the act in question was done with innocent intent, to reduce the possibility that the injuries were accidental, and to reduce the possibility that the victim was fabricating her claims. The appellate court determined that the admissibility of evidence regarding the defendant's three extraneous bank robberies was thus within the zone of reasonable disagreement. The appellate court concluded that any error in the admission of the officer’s hearsay testimony regarding the victim’s out-of-court statements was rendered harmless and effectively forfeited. Accordingly, the judgment was affirmed.

The appellate court concluded that because the condition set forth in Article 27.18(a)(1) was not met, the trial court was not authorized to accept the defendant's guilty plea.
Huddleston v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
March 25, 2021
11-20-00149-CR
W. Stacy Trotter
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of assault on a public servant. On appeal, the defendant challenged the assessed punishment pursuant to the terms of the plea agreement at imprisonment for eight years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $3,000. The appellate court found that the defendant’s right to appear in person and in open court was not merely a procedural matter but, rather, was a substantive right provided for by statute. The appellate court noted that the Texas Code of Criminal Procedure provided that the defendant in a criminal prosecution (other than one involving the possibility of the death penalty) had the right, upon entering a plea, to waive the right of trial by jury if the waiver was made in person by the defendant in open court with the consent of the prosecutor and the trial court or if the provisions of Article 27.19 have been met. The appellate court concluded that because the condition set forth in Article 27.18(a)(1) was not met, the trial court was not authorized to accept the defendant's guilty plea. Accordingly, the judgment was reversed and the case was remanded to the trial court for further proceedings.          

Since the appellee was immune from suit based on the emergency exception, the court need not address the parties’ disputes about whether the firefighters have official immunity and whether that defeated the appellant's suit against the appellee.
White v. Houston
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
March 25, 2021
01-20-00415-CV
Gordon Goodman
Published
The appellant appealed the judgment of the trial court which granted the appellee's petition for a plea to the jurisdiction. The appellate court noted that the appellant had alleged a claim that was legally sufficient to invoke the statutory waiver of governmental immunity for injuries caused by a condition or use of tangible personal property and that the summary-judgment evidence relevant to that issue did not foreclose the applicability of the waiver as a matter of law. The appellate court held that the emergency exception to the Tort Claims Act’s waiver of governmental immunity applied to the appellant's claim. The appellate court further determined that the trial court did not err in granting the appellee's jurisdictional plea based on governmental immunity. The appellate court concluded that because the appellee was immune from suit based on the emergency exception, the court need not address the parties’ disputes about whether the firefighters have official immunity and whether that defeated the appellant's suit against the appellee. Accordingly, the court affirmed the trial court’s judgment.      

The appellate court agreed with the appellant that the Court’s order clearly granted him the authority to prosecute the claims in his individual capacity.
Ramirez v. Bank of Am.
Appellate: Civil, Banking and Finance, Bankruptcy, Constitution, Contracts, Creditor/Debtor, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 13th Court of Appeals
March 25, 2021
13-19-00548-CV
Gina M. Benavides
Published
The appellant appealed the judgment of the trial court, alleging that the appellee instructed him to ignore the foreclosure warnings he would receive and, relying on the appellee’s representations, the appellant defaulted on the note. On appeal, the appellant challenged the dismissal of the claims without prejudice. The appellate court observed that the appellant’s allegations satisfied constitutional standing and he had alleged concrete injuries to himself and a real controversy between the parties that would be resolved by the trial court. The appellate court determined that the appellant responded that the court’s order, which had become final, cured any defect in his capacity that may have existed at the time he filed his petition. The appellate court agreed with the appellant that the Court’s order clearly granted him the authority to prosecute the claims in his individual capacity. Accordingly, the judgment was reversed and remanded.

The mandamus relief could not be granted as to the bonus incentive item because the trial court’s ruling was conditional and had not been fully consummated, making the dispute unripe for mandamus action.
In re Walmart, Inc.
Appellate: Civil, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
March 26, 2021
08-20-00191-CV
Jeff Alley
Published
The relators appealed the judgment of the trial court, filing a writ of mandamus against the judge contending that the trial court erred by ordering the relators to disclose documents. The appellate court noted that the trial court did not clearly abuse its discretion, or the relators were not denied an adequate remedy by appeal, by the trial court’s order pertaining to the Amarillo Hostage Incident, the security budgets for El Paso and San Antonio stores, the Tax-Free/Black Friday Weekend transaction and security information for the store, and the corporate minutes. The appellate court found that mandamus would be denied as to those items and the trial court did abuse its discretion by ordering the disclosure of crime-driven policy changes made at Texas stores, and third-party information. The appellate court concluded that the mandamus relief could not be granted as to the bonus incentive item because the trial court’s ruling was conditional and had not been fully consummated, making the dispute unripe for mandamus action. Accordingly, the court conditionally granted mandamus relief.

The appellate court concluded that the appellant had not demonstrated that the trial court abused its discretion by sustaining the appellees' objections to her summary judgment affidavit.
Lockhart v. Chisos Minerals, LLC
Appellate: Civil, Family
Texas 8th Court of Appeals
March 24, 2021
08-19-00153-CV
Gina M. Palafox
Published
The appellant, in her capacities as Trustee of the Family Bypass Trust and Independent Executor of the Estate of the deceased, appealed the summary judgment quieting title to certain mineral and royalty interests in favor of the appellees. The appellate court found that the record established that the deceased, as Executor of the Estate, had both capacity and authority to execute the Deeds, the Section 38 Interest fell within her power of sale as Executor, the Deeds affected a sale rather than a gift, and the Correction Deeds were not void for lack of the deceased signatures. The appellate court noted that the record conclusively negated the deceased’s claim to superior title and defeated her trespass to try title action. The appellate court concluded that the appellant had not demonstrated that the trial court abused its discretion by sustaining the appellees' objections to her summary judgment affidavit. Accordingly, the judgment was affirmed. 

The appellate court concluded that because the trial court was not authorized to accept the defendant's guilty plea, that plea was voidable.
Lira v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
March 25, 2021
11-20-00148-CR
John Bailey
Published
The defendant appealed the judgment of the trial court which convicted him of assault on a public servant. On appeal, the defendant challenged the trial court's conviction and finding that the enhancement allegation to be true, and assessed punishment pursuant to the terms of the plea agreement at imprisonment for eight years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. The appellate court found that because the condition set forth in Article 27.18(a)(1) Texas Code of Criminal Procedure was not met, the trial court was not authorized to accept the defendant's guilty plea. The appellate court concluded that because the trial court was not authorized to accept the defendant's guilty plea, that plea was voidable. Accordingly, the court reversed the judgment of the trial court and remanded.

The appellate court concluded that the jury found that the appellant suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence was supported by legally and factually sufficient evidence.
In re the Commitment of K.S.
Appellate: Civil, Criminal, Evidence, Juvenile, Procedure
Texas 10th Court of Appeals
March 24, 2021
10-18-00277-CV
John E. Neill
Published
The appellant appealed the judgment of the trial court which entered an order of civil commitment as a sexually violent predator under the Sexually Violent Predator Act (the Act). The appellate court noted that the record provided support for the expert’s opinions and her opinions could not be characterized as wholly conclusory or without any foundation. The appellate court found that a rational jury could have found, beyond a reasonable doubt, that the appellant was a repeat, sexually violent offender and suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence. The appellate court concluded that the jury found that the appellant suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence was supported by legally and factually sufficient evidence. Accordingly, the judgment was affirmed.

The appellate court concluded that the warrant was not a general warrant and the doctrine of severability was properly applied.
Howard v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 23, 2021
01-19-00083-CR
Sherry Radack
Published
The defendant appealed the judgment of the trial court which convicted him of possession with intent to deliver between four and 400 grams of 3,4-methylenedioxymethamphetamine. On appeal, the defendant challenged the trial court's assessment of punishment at 8 years confinement, which it then suspended, placing the defendant under community supervision for ten years. The appellate court found that the trial court applied the rule of severability to the search warrant and did not suppress the evidence seized pursuant to the warrant that did not fall into the above categories. The appellate court noted that the warrant specifically detailed that it was to search for marijuana and firearms, and there was probable cause for both of those items based on the defendant's statements to police. The appellate court concluded that the warrant was not a general warrant and the doctrine of severability was properly applied. Accordingly, the judgment was affirmed. 

The Supreme Court concluded that because the respondent in the case did not pay the amount that “must be paid” on the claim before the statutory deadline, it was not entitled to summary judgment.
Hinojos v. State Farm Lloyds
Consumer, Insurance, Procedure
The Supreme Court of Texas
March 19, 2021
19-0280
Jane N. Bland
Published
The petitioners appealed the judgment of the trial court after the appraisers awarded the petitioner substantially more than the amount the respondent had paid. On appeal, the petitioners challenged the trial court's grant of summary judgment on the petitioner’s Chapter 542 claim, contending that its payment of the appraisal award precluded liability. The Supreme Court held that payment of an appraisal award did not absolve the respondent of statutory liability when a respondent accepted a claim but paid only part of the amount it owed within the statutory deadline. The Supreme Court concluded that because the respondent in the case did not pay the amount that “must be paid” on the claim before the statutory deadline, it was not entitled to summary judgment. Accordingly, the court reversed the judgment of the appellate court and remanded the case to the trial court.

The Supreme Court concluded that mandamus relief was the only adequate remedy in similar cases.
In re State Farm Mut. Auto. Ins. Co.
Appellate: Civil, Damages, Insurance, Torts
The Supreme Court of Texas
March 19, 2021
19-0791
James D Blacklock
Published
The relator appealed the judgment of the appellate court, filing a petition for writ of mandamus. The Supreme Court found that the insured could not recover for the relator’s alleged Insurance Code violations under an independent injury theory, and because the Insurance Code claims at issue required the individuals to make the very same showings as the many other plaintiffs whose UIM claims were routinely subject to bifurcated trials, the trial courts abused their discretion by denying the relator’s motions to bifurcate Rule 174(b). The Supreme Court determined that when a bifurcated trial was denied in those circumstances, the insurer lacked an adequate appellate remedy for the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. The Supreme Court concluded that mandamus relief was the only adequate remedy in similar cases. Accordingly, the court granted the relator’s petitions for writ of mandamus and directed the trial courts to bifurcate the trials of the Insurance Code claims as described.

The Supreme Court concluded that the trial court’s entry of a final judgment mooted the respondent’s mandamus petition.
Elec. Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure Fund, LLC
Appellate: Civil, Contracts, Corporations
The Supreme Court of Texas
March 19, 2021
18-0781
Jeffrey S. Boyd
Published
The respondent appealed the judgment of the trial court, challenging the appellate court's review of a trial court’s interlocutory order presenting a medley of jurisdictional issues. The Supreme Court found that because the mandamus petition challenged the appellate court's judgment addressing the trial court’s second order, the court disagreed and held that the proceeding was not moot, despite the trial court’s entry of its third order. The Supreme Court determined that because the respondent was fully briefed and argued in the appellate court and had been abated pending only order from the court on the petitions could not say that the parties lacked an adequate appellate remedy here. The Supreme Court concluded that the trial court’s entry of a final judgment mooted the respondent’s mandamus petition. Accordingly, the petition was dismissed.    

The Supreme Court denied the relators request for mandamus relief because Section 22.004(i)’s prohibition on counter-supersedeas referred to a particular procedural process, not an appellate court’s temporary orders under other authority.
In re Tex. Educ. Agency
Constitution, Education
The Supreme Court of Texas
March 19, 2021
20-0404
Eva M. Guzman
Published
The state regulators appealed an adverse temporary injunction after the trial court allowed the school district to counter-supersede the injunction so the regulators could not undertake any unauthorized actions absent success on appeal. The Supreme Court found that the statute only prohibited counter-supersedeas orders, which occurred within a specific procedural context, and did not apply to orders issued by an appellate court under separate and distinct procedural mechanisms. The Supreme Court granted the State’s motion for temporary relief in State, but the court never reached the merits of the mandamus petition because the court opinion on the Election Code issue resolved the merits of the dispute. The Supreme Court denied the relators request for mandamus relief because Section 22.004(i)’s prohibition on counter-supersedeas referred to a particular procedural process, not an appellate court’s temporary orders under other authority. Accordingly, the appellate court was not without power to issue temporary relief. 

The appellate court concluded that the trial court erred by denying the appellant's motion to dismiss the appellee's bill of review.
State v. Navarrette
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Torts, Transportation
Texas 8th Court of Appeals
March 19, 2021
08-18-00017-CV
Gina M. Palafox
Published
The appellants appealed the judgment of the trial court which granted the appellants' plea to the jurisdiction and dismissed the appellee's claims against it under TEX. CIV. PRAC. & REM. CODE ANN. Section 101.101 for failure to provide statutory notice of claim. On appeal, the appellants moved to dismiss the bill of review again on the ground that the trial court lacked jurisdiction, but that time the trial court denied its motion. The appellate court found that the record established that the appellee did not satisfy the notice of claim requirement contained in the Texas Tort Claims Act. The appellate court determined that because that requirement was jurisdictional, failure to satisfy it barred the appellee's claims as a matter of law. The appellate court concluded that the trial court erred by denying the appellant's motion to dismiss the appellee's bill of review. Accordingly, the judgment was reversed. 

The choice to use a present-tense verb in the restrictive clause had no temporal bearing and did not limit the application of section 97.002 to injuries only occurring during ongoing construction or repairs.
A.S. Horner, Inc. v. Navarrette
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
March 19, 2021
08-18-00044-CV
Gina M. Palafox
Published
The appellant appealed the denial of its motion for summary judgment seeking dismissal of claims brought against it by the appellee. On appeal, the appellant sought summary judgment on the ground that it was exempted from liability for the appellee’s injuries pursuant to section 97.002 of the Texas Civil Practice and Remedies Code. The appellate court noted that the choice to use a present-tense verb in the restrictive clause had no temporal bearing and did not limit the application of section 97.002 to injuries only occurring during ongoing construction or repairs. The appellate court found that giving the plain language of the statute its ordinary meaning, and considering the text as a whole, the phrase arising from the performance of the construction did not limit section 97.002’s application only to those cases in which an injury was sustained during ongoing highway construction or repairs. The appellate court disagreed with the appellee’s proposed interpretation of the statute’s text. Accordingly, the court reversed the trial court’s order denying the appellant’s motion for summary judgment and rendered judgment.

The Supreme Court agreed with the trial court's reversal of the summary judgment on the declaration that the respondent did appeal.
Eagle Oil & Gas Co. v. TRO-X, L.P.
Appellate: Civil, Contracts, Damages, Evidence, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
March 19, 2021
18-0983
Debra Lehrmann
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court's grant of summary judgment for the petitioner. The Supreme Court noted that because the petitioner had not conclusively established that the respondent’s claims in that suit either were brought or could have been brought in the Midland suit, the petitioner was not entitled to summary judgment on res judicata grounds. The Supreme Court found that the respondent based its pertinent allegations and claims in the Midland suit on the premise that it had been deprived of the interests entirely, and it sought damages as a remedy, rather than an assignment, based on the value of those interests at the time. The Supreme Court agreed with the trial court's reversal of the summary judgment on the declaration that the respondent did appeal. Accordingly, the judgment was affirmed.

The appellate court concluded that the trial court did not abuse its discretion when it admitted the challenged statements.
Nicholls v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
March 18, 2021
11-19-00120-CR
W. Stacy Trotter
Published
The defendant appealed the judgment of the trial court which convicted the defendant of the third-degree felony offense of possession of a controlled substance: namely, methamphetamine. The appellate court found that because an individual’s affidavit was admitted, the State was entitled to present evidence to clarify and rebut any false impression that an individual’s affidavit might have created. The appellate court noted that the defendant must accept the consequences of the decision to offer the defendant's affidavit, and he could not complain that his confrontation rights were violated because the trial court admitted the State’s rebuttal evidence. The appellate court determined that the Confrontation Clause was not violated if a declarant’s out-of-court statement, even if testimonial, was offered for the purpose of impeaching another out-of-court statement made by the same declarant. The appellate court concluded that the trial court did not abuse its discretion when it admitted the challenged statements. Accordingly, the judgment was affirmed.

The appellate court disagreed with the appellant's claim that the record contained legally insufficient evidence to support the trial court’s judgment.
San Jacinto River Auth. v. Yollick
Damages, Gov't/Administrative
Texas 9th Court of Appeals
March 18, 2021
09-19-00064-CV
Hollis Horton III
Published
The appellant appealed the judgment of the trial court which found the appellant did not handle his request properly and then signed a judgment that required the appellant to disclose most of the information in a document the parties called the appellant's Emergency Action Plan (the Plan). On appeal, the appellant challenged the trial court's finding that a compelling reason existed that allowed the appellant to continue to withhold some of the information in the Plan and to continue to withhold that specific information from the appellee. The appellate court found that to prevent the appellee from accessing that information, the trial court ordered the appellant to redact certain information from its Plan before allowing the appellee to see a copy, listing that information by page and paragraph where the information to be redacted exists in the Plan. The appellate court disagreed with the appellant's claim that the record contained legally insufficient evidence to support the trial court’s judgment. Accordingly, the trial court’s judgment was affirmed.  

The erroneous citation to Tex. Penal Code Ann. Section 43.26(d)(1) in the defendant's judgment for possession with the intent to promote child pornography appeared to have been a typographical clerical error and not the result of erroneous judicial reasoning.
Cain v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
March 18, 2021
02-19-00258-CR
Dana Womack
Published
The defendant appealed the judgment of the trial court which convicted the defendant of continuous sexual abuse of a child and possession with the intent to promote child pornography. The appellate court found that the defendant's authenticity complaint did not comport with the objection he made at trial and the defendant did not preserve the authenticity challenge for review, and even if he had, the trial court did not abuse its discretion by admitting the text messages into evidence. The appellate court determined that the substance of the text messages also contained identifying information specific to the defendant. The appellate court concluded that the erroneous citation to Tex. Penal Code Ann. Section 43.26(d)(1) in the defendant's judgment for possession with the intent to promote child pornography appeared to have been a typographical clerical error and not the result of erroneous judicial reasoning. Accordingly, the judgment was affirmed. 

As those statutes were the linchpin of the appellant’s claim for standing, and his ability to state a claim that avoids governmental immunity, their nullity mandated that the City’s plea to the jurisdiction was properly granted.
Zimmerman v. Austin
Constitution, Gov't/Administrative
Texas 8th Court of Appeals
March 17, 2021
08-20-00039-CV
Jeff Alley
Published
The appellant appealed the judgment of the trial court, seeking a declaration that the proposed expenditure violated state law and for a temporary and permanent injunction to prohibit the appellees from dispersing the funds. On appeal, the appellant alleged that the proposed expenditure violated state law for two distinct reasons: it conflicted with various unrepealed Texas statutes that made it a crime to aid and abet the procurement of an abortion, which he alleged were still viable even after the U.S. Supreme Court found them unconstitutional; and the expenditure of these funds violated the prohibition in the Texas Constitution against providing “gifts” of public money to private individuals or associations. The appellate court observed that the U.S. Supreme Court in Roe v. Wade expressly held that the Texas criminal abortion statutes were unconstitutional. The appellate court found that as those statutes were the linchpin of the appellant’s claim for standing, and his ability to state a claim that avoids governmental immunity, their nullity mandated that the City’s plea to the jurisdiction was properly granted. The appellate court concluded that the appellant’s lawsuit was not ripe for review, as any pronouncement the court could make on the legality of the expenditures which may never be made would be an advisory opinion, which would not only violate the Constitution but would be an unpractical and unwise use of the court's judicial resources. Accordingly, the court affirmed the trial court's judgment.

The appellate court concluded that the appellants failed to establish that the return of service did not strictly comply with the court order on this ground.
Pirate Oilfield Services, Inc. v. Cunningham
Appellate: Civil, Business, Contracts, Damages, Evidence, Procedure, Real Property, Torts
Texas 11th Court of Appeals
March 18, 2021
11-19-00080-CV
W. Bruce Williams
Published
The appellant appealed the judgment of the trial court which granted the appellee’s motion for substituted service on the first appellant and ordered that substituted service be made by posting at the first appellant’s address. The appellate court observed that the appellee conducted reasonable diligence in attempting to locate the first appellant at the registered address and was permitted to serve the secretary of state and the service was not defective against the second appellant, and the trial court did not err in granting default judgment. The appellate court found that the appellants failed to establish that the order was fatally defective and that service did not strictly comply with the trial court’s order on that ground. The appellate court concluded that the appellants failed to establish that the return of service did not strictly comply with the court order on this ground. Accordingly, the judgment was affirmed.

There was simply no reference to the hours worked and the hourly rate charged, and without details about the work done and how much time was spent on each task, the affidavits lacked the substance required to uphold a fee award.
Jurgens v. Martin
Appellate: Civil, Damages, Real Property, Torts
Texas 11th Court of Appeals
March 18, 2021
11-18-00316-CV
John M. Bailey
Published
The appellant appealed the judgment of the trial court, arising from an ancillary civil action related to a probate proceeding. The appellate court observed that the appellant may raise for the first time on appeal the issue of the appellee’s standing to assert a claim on behalf of the deceased’s estate for fraud on the community. The appellate court agreed that the appellee did not have standing to assert the claim. The appellate court determined that there was simply no reference to the hours worked and the hourly rate charged, and without details about the work done and how much time was spent on each task, the affidavits lacked the substance required to uphold a fee award. Accordingly, the judgment was affirmed, reversed, and remanded.

The appellate court concluded that due to the lack of jurisdiction to consider the appeal from the trial court’s order, the Court dismissed that portion of his appeal.
Ex parte Carter
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
March 17, 2021
04-20-00396-CR
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted the defendant of four felonies. The appellate court noted that it had no jurisdiction to address the defendant's complaint that he was denied due process when the trial court order granted the State’s motion and increased his bail to $400,000. The appellate court further found that the defendant failed to meet his burden to show that the trial court abused its discretion when it set his bail in the amount of $200,000 and the trial court could have reasonably concluded that the current bail amount was necessary to reasonably assure the defendant's appearance at trial and to protect the community. The appellate court concluded that due to the lack of jurisdiction to consider the appeal from the trial court’s order, the Court dismissed that portion of his appeal. Accordingly, the defendant's habeas relief was partially granted. 

The appellate court concluded that the appellee’s requested relief would require the court to alter the trial court’s judgment and the court did not have jurisdiction to consider the cross-point.
Benner v. Armstrong
Appellate: Civil, Real Property
Texas 10th Court of Appeals
March 17, 2021
10-19-00279-CV
John E. Neill
Published
The appellant, as Administrator of the Estate, appealed the judgment of the trial court which set aside the two challenged gift deeds but awarded the appellees 9.9 acres after finding that they had pleaded and proved adverse possession. The appellate court found that the appellee’s testimony did not establish that the property was designedly enclosed to graze animals. The appellate court noted that the evidence did not establish adverse possession under the 10-year limitations period and the appellees contended that if they were satisfied with the relief granted by the trial court, but merely wanted to present an additional independent ground for affirming the trial court’s judgment, no notice of appeal was required citing. Rule 25.1 (c) of the Texas Rules of Appellate Procedure provided that a party who sought to alter the trial court’s judgment must file a notice of appeal. The appellate court concluded that the appellee’s requested relief would require the court to alter the trial court’s judgment and the court did not have jurisdiction to consider the cross-point. Accordingly, the trial court's judgment was reversed and remanded.  

The appellate court concluded that a credibility determination at the stage of the proceedings was premature.
In re T.D.L.
Family, Juvenile
Texas 4th Court of Appeals
March 17, 2021
04-20-00274-CV
Beth Watkins
Published
The grandmother appealed the trial court’s order dismissing her original suit affecting the parent-child relationship for lack of standing. The appellate court observed that the grandmother's pleadings were sufficient to assert standing under section 102.003(a)(9) of the Texas Family Code. The appellate court must therefore determine whether the jurisdictional evidence raised a fact question as to the grandmother's standing under that statute, and when viewed in the light most favorable to the grandmother, the evidence raised a fact question about whether the grandmother had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition. The appellate court concluded that a credibility determination at the stage of the proceedings was premature. Accordingly, the court reversed the trial court’s order dismissing the SAPCR for lack of standing and remanded.

The appellate court upheld the arbitrator’s award and concluded that the trial court erred in awarding post-judgment interest.
ETC Intrastate Procurement Co., LLC v. JSW Steel (USA), Inc.
ADR, Contracts, Corporations, Damages, Evidence, Torts
Texas 14th Court of Appeals
March 16, 2021
14-19-00915-CV
Frances Bourliot
Published
The appellant appealed the judgment of the trial court which compelled arbitration and confirmed the arbitrator’s award, but in addition, awarded the appellee post-judgment interest. The appellate court observed that there was evidence to support the trial court’s finding that the terms and conditions were attached to Trane’s bid proposal and thus became part of the contract when Consolidated sent its purchase order. The appellate court found that the arbitrator initially awarded interest but added the language “or a judgment is entered” after the appellant moved to modify the award. The appellate court upheld the arbitrator’s award and concluded that the trial court erred in awarding post-judgment interest. Accordingly, the judgment was affirmed as modified.

The appellate court concluded that the defendant did not point to any evidence contradicting the judgment recitals and therefore had not overcome the presumption of regularity.
Wiggins v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 16, 2021
14-20-00076-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery with a deadly weapon. The appellate court noted that the defendant's as-applied challenge to the constitutionality of Government Code Section 74.056(a) failed and the court agreed that the trial court assessed a higher amount of costs than permitted by the applicable statute. The appellate court determined that the recitals contained in a judgment created a presumption of regularity and truthfulness, absent an affirmative showing to the contrary. The appellate court concluded that the defendant did not point to any evidence contradicting the judgment recitals and therefore had not overcome the presumption of regularity. Accordingly, the court modified the judgment to eliminate the unauthorized costs and affirmed the judgment as modified.  

There were genuine issues of material fact as to the original lessee’s claims of tortious interference, except to the extent those claims were made against individuals or their agents for allegedly interfering with their own lease with the appellant company.
MRC Permian Co. v. Point Energy Partners Permian LLC
Contracts, Corporations
Texas 8th Court of Appeals
March 15, 2021
08-19-00124-CV
Gina M. Palafox
Published
The appellant appealed the judgment of the trial court which ruled on a number of competing motions for summary judgment granting some and denying others and permitted the parties to pursue an interlocutory appeal with respect to what it identified as three controlling questions of law. The appellate court observed that there was a genuine issue of material fact as to whether the original leases were perpetuated in their entirety by the operation of their force majeure clauses, such that the trial court’s summary judgment ruling on the issue in favor of the appellees was an error. The appellate court did not reach the second question because it was not ripe for a decision due to the factual dispute arising in the first question. The appellate court concluded that there were genuine issues of material fact as to the original lessee’s claims of tortious interference, except to the extent those claims were made against individuals or their agents for allegedly interfering with their own lease with the appellant company. Accordingly, the judgment was affirmed in part and reversed and remanded in part.

The Supreme Court concluded that no evidence existed that the plaintiff would suffer undue delay or injury.
In re Sandoval
Appellate: Civil, Family, Juvenile, Procedure
The Supreme Court of Texas
March 12, 2021
19-1032
Per Curiam
Published
The defendant appealed the judgment of the trial court which denied his motion for new trial, arguing equitable grounds under the Craddock standard and legal grounds regarding improper service or notice of suit. The Supreme Court noted that because the defendant was reasonably unaware that his separate property would be affected in the divorce, his failure to respond was not intentional or the result of conscious indifference but the result of an accident or mistake. The Supreme Court found that according to the defendant, the home the plaintiff received was neither community property nor was it developed by community funds. The Supreme Court determined that the plaintiff offered no evidence of harm, and allowing the defendant an opportunity to establish proper ownership of the house would not upset the underlying divorce, custody, support, or division of the community assets. The Supreme Court concluded that no evidence existed that the plaintiff would suffer undue delay or injury. Accordingly, the judgment was reversed and remanded.

The petitioner failed to provide the trial court with a reasonable basis to conclude that it lacked sufficient information to determine whether her claims against the relator were arbitrable.
In re Copart, Inc.
ADR, Constitution, Contracts, Discovery, Employment, Procedure
The Supreme Court of Texas
March 12, 2021
19-1078
Per Curiam
Published
The relator appealed the judgment of the appellate court in a suit where the petitioner claimed discrimination and retaliation in violation of chapter 21 of the Texas Labor Code. On appeal, the relator challenged the trial court's authorization that the petitioner conduct “limited” discovery on issues of arbitrability. The Supreme Court found that the petitioner's motion and affidavit demonstrated no colorable basis or reason to believe that the requested discovery would be material in establishing the agreement’s existence and enforceability. The Supreme Court determined that the petitioner failed to provide the trial court with a reasonable basis to conclude that it lacked sufficient information to determine whether her claims against the relator were arbitrable. The Supreme Court concluded that the trial court clearly abused its discretion by ordering pre-arbitration discovery. Accordingly, the Court conditionally granted mandamus relief.

There was insufficient evidence to constitute a reversibly harmful error and the error probably did not cause the rendition of an improper judgment and was harmless.
In re Commitment of Hill
Criminal, Election, Evidence, Procedure
Texas 5th Court of Appeals
March 11, 2021
05-19-01163-CV
Erin A. Nowell
Published
The defendant appealed the judgment of the trial court which convicted him of five sexually violent offenses and imposed a sentence for each of those offenses. The appellate court found that the jury heard the defendant had stable employment, familial support, and complied with the terms of his parole, and the jury also learned about the defendant's prior sexual assault convictions, gang affiliation, criminal gang activities, and sexual offense while incarcerated. The appellate court noted that the State’s expert witness testified that after examining more than 2,000 pages of the defendant's records, meeting with the defendant twice, considering the results of the actuarial assessments, and analyzing the relevant research, he concluded the defendant had a behavioral abnormality as defined by the Texas Health and Safety Code. The appellate court concluded that there was insufficient evidence to constitute a reversibly harmful error and the error probably did not cause the rendition of an improper judgment and was harmless. Accordingly, the trial court's judgment was affirmed.              

The Supreme Court concluded that the compressor-fuel damages, which were awarded based on each leasehold’s full aliquot share, were not conclusively established as the amount awarded.
BlueStone Natural Res. II, LLC v. Randle
Contracts, Damages, Procedure, Torts
The Supreme Court of Texas
March 12, 2021
19-0459
Eva M. Guzman
Published
The appellant appealed the judgment of the trial court in an oil and gas dispute presenting two contract-construction issues affecting the calculation of gas royalty payments whether the mineral lease permitted deduction of post production costs from sales proceeds before royalties were computed; and whether the lease’s free use clause authorized the lessee to consume leasehold gas in off-lease operations without compensating the lessors. The Supreme Court found that the lower courts correctly concluded that the lessee’s deduction of post production costs was improper because the mineral lease explicitly resolved the conflict in favor of the gross-proceeds calculation. The Supreme Court noted that the second issue was one of first impression that was settled by the mineral-lease’s language, and construed contextually, the lease’s free-use clause was limited to on-lease uses. The Supreme Court determined that the lessee’s on-lease use of gas for compressor fuel did, so use of that gas would be free of the royalty burden except that the lessee commingles gas from the leased premises with gas from other wells and the record was devoid of evidence that each leasehold’s aliquot share was actually or entirely consumed by compressors on those premises. The Supreme Court concluded that the compressor-fuel damages, which were awarded based on each leasehold’s full aliquot share, were not conclusively established as the amount awarded. Accordingly, the judgment was affirmed in part, reversed in part, and remanded.  

The appellate court concluded that the defendant could not show the insufficiency of the evidence to support a finding without a reporter’s record.
Bell v. State
Appellate: Civil, Family, Procedure
Texas 8th Court of Appeals
March 11, 2021
08-20-00149-CV
Yvonne T. Rodriguez
Published
The defendant appealed the judgment of the trial court which ordered the defendant to refrain from committing acts of family violence against the plaintiff or members of her household, and likewise not to communicate with the plaintiff except through counsel. On appeal, the defendant argued that the trial court erred in granting a protective order without making a finding that family violence had occurred. The appellate court found that when a reporter's record was not filed, as in the case, the court must assume that the missing evidence supported the trial court's ruling. The appellate court determined that if there was no reporter’s record or findings of fact, the court must presume the evidence was sufficient. The appellate court concluded that the defendant could not show the insufficiency of the evidence to support a finding without a reporter’s record. Accordingly, the trial court’s judgment was affirmed. 

The appellate court concluded that although the State failed to establish exigency in the case, based on the recent case law from the United States Supreme Court, the circumstances presented by the State did establish exigency.
State v. Ruiz
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
March 11, 2021
13-13-00507-CR
Gina M. Benavides
Published
The State appealed the judgment of the trial court which granted the defendant's motion to suppress. The appellate court noted that although the sergeant testified in a conclusory manner that taking one of the two officers off duty to apply for a blood warrant would have been unreasonable without much further elaboration, the facts showed that the sergeant was dealing with an accident scene caused by the defendant, as well as an unconscious the defendant, with minimal assistance available to her at that time. The appellate court concluded that although the State failed to establish exigency in the case, based on the recent case law from the United States Supreme Court, the circumstances presented by the State did establish exigency. Accordingly, the judgment of the trial court was reversed and remanded.

The district court correctly concluded that, with respect to the appellee, Conn. Gen. Stat. Section 18-10b was an unconstitutional bill of attainder.
United Locating Services, LLC v. Fobbs
Appellate: Civil, Damages, Employment, Procedure
Texas 14th Court of Appeals
March 11, 2021
14-19-00178-CV
Randy Wilson
Published
The appellant appealed the judgment of the trial court which denied a motion to dismiss brought under the Texas Citizens Participation Act (TCPA). On appeal, the appellant challenged the appellees' assertions of claims for defamation and invasion of privacy by appropriation of name or likeness. In response, the appellees alleged that at some point after they stopped working for the appellant, the appellant placed their names on various “work orders” and “damage tickets.” The appellate court found that the appellant established that the TCPA applied to the Former Employees defamation and Name Appropriation Claims. The appellate court sustained the appellant's two issues, reversed the trial court’s order denying the appellant’s motion to dismiss, and remanded the case for the trial court to determine the amount of reasonable attorney’s fees, court costs, and sanctions to award to the appellant, to determine the extent to which justice and equity require an award to the appellant of other expenses incurred in defending against the legal action, and to render a judgment making such awards and dismissing the appellees' claims with prejudice. Accordingly, the judgment was reversed and the case was remanded.  

The appellate court concluded that the trial court did not abuse its discretion by failing to hold a hearing regarding the legal questions.
Schneider v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
March 10, 2021
03-19-00732-CR
Thomas J. Baker
Published
The defendant appealed the judgment of the trial court which convicted the defendant of driving while intoxicated with two or more prior convictions for the same offense and sentenced her to five years’ imprisonment. The appellate court noted that the trial court did not abuse its discretion by failing to hold a hearing, and in her motion for a new trial, the defendant argued that the results of her blood test should have been suppressed because of the recent State v. Martinez decision and because testing of her blood sample did not occur within the three-day deadline found in article 18.07. The appellate court found that the analysis from Martinez did not require that a search warrant authorizing a blood draw in a driving-while-intoxicated case specifically authorized blood-alcohol testing or that a second search warrant expressly authorizing that type of testing to be obtained before a blood sample might be tested, and article 18.07 did not require that a timely collected sample be subjected to testing within three days of the issuance of the warrant. The appellate court concluded that the trial court did not abuse its discretion by failing to hold a hearing regarding the legal questions. Accordingly, the judgment was affirmed. 

The appellate court concluded that the trial court erred when it construed the reservation as a fixed NPRI and awarded attorney’s fees.
Hoffman v. Thomson
Appellate: Civil, Damages, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
March 10, 2021
04-19-00771-CV
Patricia O. Alvarez
Published
The appellant appealed the judgment of the trial court in an oil and gas deed construction case where the parties disputed whether the deed reserved a fixed or floating non-participating royalty interest (NPRI). On appeal, neither party challenged the existence or validity of the deed, but they offered opposing constructions of the interest reserved. The appellate court found that having considered the deed in its entirety, its era, its plain language, the provisions’ structure, and the case law, the only reasonable interpretation of the reservation that harmonized all the words and rendered none meaningless was that the interest reserved was a floating NPRI. The appellate court concluded that the trial court erred when it construed the reservation as a fixed NPRI and awarded attorney’s fees. Accordingly, the judgment of the trial court was reversed and remanded for a determination of any costs and attorney’s fees.

The appellate court concluded that when the appellant was first added as a defendant on a date after the amendments to the Texas Citizens Participation Act became effective, the fraud causes of action against her were exempted from the Act.
Straub v. Pesca Holding LLC
Appellate: Civil, Business, Consumer, Contracts, Corporations, Procedure, Torts
Texas 4th Court of Appeals
March 10, 2021
04-20-00276-CV
Patricia O. Alvarez
Published
The appellant appealed the judgment of the trial court which denied the motion to dismiss the suit under the Texas Citizens Participation Act (TCPA). The appellate court noted that because common law fraud claims were exempted from the amendments to the TCPA, the appellant failed to meet her burden on the applicability of the TCPA. The appellate court found that the amendments to the TCPA, which exempt common law fraud from the Act, applied to a newly added party’s claims when the new party was added to a legal action on or after the effective date of the Act. The appellate court determined that a contrary conclusion would be absurd since it would mean that the appellant would have had to file a motion to dismiss within sixty days after the original petition was filed when she was not yet a party to the suit. The appellate court concluded that when the appellant was first added as a defendant on a date after the amendments to the TCPA became effective, the fraud causes of action against her were exempted from the Act. Accordingly, the judgment was affirmed and remanded.

Since the appellees met their burden to demonstrate the advertisements in the case fall within the TCPA’s commercial-speech exemption, the court need not consider the appellants’ remaining issues.
Buzbee v. Canales
Appellate: Civil, Consumer, Damages, Employment, Evidence, Health Care, Insurance, Juvenile, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
March 09, 2021
08-20-00138-CV
Yvonne T. Rodriguez
Published
The appellants appealed the judgment of the trial court which denied a motion to dismiss filed pursuant to the Texas Citizens’ Participation Act (TCPA). On appeal, the appellants filed a motion seeking expedited dismissal of a suit brought by the appellees against the appellants for defamation and business disparagement in relation to advertisements the appellants published in local newspapers and on social media. The appellate court noted that the advertisements on their face clearly identified the appellants as a seller of legal services, including medical malpractice legal services, to a pool of potential medical malpractice claimants. The appellate court found that the ads suggested to other potential medical malpractice claimants with potential claims against the appellee that the appellants was available for hire for their claims. The appellate court concluded that since the appellees met their burden to demonstrate the advertisements in the case fall within the TCPA’s commercial-speech exemption, the court need not consider the appellants’ remaining issues. Accordingly, the judgment was affirmed.

The City's ordinance’s paid sick and safe leave provision established a minimum wage, which was inconsistent with the TMWA and thus violated the Texas Constitution.
Wash. v. Associated Builders & Contractors of S. Tex. Inc.
Constitution, Employment, Gov't/Administrative
Texas 4th Court of Appeals
March 10, 2021
04-20-00004-CV
Patricia O. Alvarez
Published
The City appealed the judgment of the trial court which granted the plaintiff's request for a temporary injunction after the City passed an ordinance requiring private employers, the plaintiff, to pay employees for sick and safe leave. On appeal, the City challenged the plaintiff's argument that the Texas Minimum Wage Act (TMWA) preempted the ordinance. The appellate court concluded that the City's ordinance’s paid sick and safe leave provision established a minimum wage, which was inconsistent with the TMWA and thus violated the Texas Constitution. Accordingly, the court affirmed the trial court’s order.

The appellate court concluded that the defendant had not shown the trial court abused its discretion in denying his habeas applications to reduce bail.
Ex Parte Holliday
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 09, 2021
14-20-00737-CR
Ken Wise
Published
The defendant appealed the judgment of the trial court which denied his applications for writs of habeas corpus for reduction of bail in charges against him for continuous assault of a family member and murder. The appellate court found that the defendant bore the burden to prove the bail set was excessive. The appellate court determined that even if the defendant's statements could be considered as evidence to support his habeas application for a bail reduction, they would not satisfy his evidentiary burden because they were not relevant to any of the article 17.15 factors or Rubac factors. The appellate court concluded that the defendant had not shown the trial court abused its discretion in denying his habeas applications to reduce bail. Accordingly, the judgment was affirmed.

The appellate court determined that none of the appellee’s cross-points would vitiate the jury’s verdict, and therefore, the court sustained the appellant’s issues and overruled the appellee’s cross-points.
Gator Gone Safety Pilots v. Holt
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
March 09, 2021
14-19-00740-CV
Kevin Jewell
Published
The appellant appealed the judgment notwithstanding the verdict following a jury trial in a dispute arising from injuries the appellee received in an accident during the transportation of an oversized load along Interstate 10. On the appellee’s motion, the trial court granted judgment notwithstanding the verdict, disregarded the jury’s negligence findings against all defendants other than the appellant, and signed a judgment awarding the appellee recovery of all his damages against the appellant. The appellate court found that the trial court erred in granting the appellee’s motion for judgment notwithstanding the verdict because legally sufficient evidence supported the jury’s liability findings against all three defendants. The appellate court determined that none of the appellee’s cross-points would vitiate the jury’s verdict, and therefore, the court sustained the appellant’s issues and overruled the appellee’s cross-points. Accordingly, the judgment of the trial court was reversed.

The appellants failed to present scientifically reliable expert testimony or epidemiological evidence demonstrating that the deceased’s exposure to the appellee corporation asbestos products more than doubled her risk of developing mesothelioma.
Neely v. Union Carbide Corp.
Appellate: Civil, Corporations, Procedure
Texas 14th Court of Appeals
March 02, 2021
14-18-01027-CV
Frances Bourliot
Published
The appellants appealed the judgment of the trial court, alleging that asbestos fibers designed, manufactured, or marketed by the appellee were a substantial factor in causing the deceased's fatal mesothelioma. The appellate court found that although the individual appellant said that the deceased might have had to repeat her clothes-washing process more than once on the days that she washed his work clothes, there was no specific evidence regarding how much time she would spend doing so or how long the dust from the process would remain airborne. The appellate court determined that the opinions expressed in the doctor’s affidavit also depended on unsupported factual assumptions, unrevealed and unexplained calculations and methodologies, studies for which he did not provide necessary information, and other studies that were not demonstrated to be sufficiently similar to the deceased’s exposure to support causation. The appellate court concluded that the appellants failed to present scientifically reliable expert testimony or epidemiological evidence demonstrating that the deceased’s exposure to the appellee corporation asbestos products more than doubled her risk of developing mesothelioma. Accordingly, the trial court did not err in granting summary judgment for the appellee and the judgment was affirmed.                          

The appellate court concluded that because the trial court’s judgment may be upheld on the appellant's joint liability with the appellant firm, the court need not consider his alternative argument regarding an alter-ego theory or a piercing of the corporate veil.
Nevarez v. USAA Fed. Sav. Bank
Appellate: Civil, Banking and Finance, Procedure
Texas 8th Court of Appeals
March 05, 2021
08-19-00120-CV
Gina M. Palafox
Published
The appellants appealed the judgment of the trial court, filing an answer generally denying the allegations and asserting various affirmative defenses, which were not at issue there. On appeal, the appellants appealed the trial court’s summary judgment in favor of the appellee. The appellate court found that the appellee proved there was no genuine issue of material fact on its claim for money had and received against the appellant firm and that the appellants’ asserted defenses did not apply there. The appellate court determined that the trial court did not err in granting summary judgment against the appellant firm on the appellee's claim for money had and received. The appellate court concluded that because the trial court’s judgment may be upheld on the appellant's joint liability with the appellant firm, the court need not consider his alternative argument regarding an alter-ego theory or a piercing of the corporate veil. Accordingly, the court affirmed the trial court’s summary judgment.  

Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the court conditionally granted the petitioner mandamus relief and directed the trial court to vacate its order granting the respondent’s motion to designate an individual as an unknown responsible third party.
In re Gonzales
Appellate: Civil, Procedure, Torts
The Supreme Court of Texas
March 05, 2021
20-0506
Per Curiam
Published
The petitioner appealed the judgment of the trial court, alleging that the respondent negligently caused an automobile accident. On appeal, the petitioner challenged a trial court's order allowing the respondent to designate an unknown person as a responsible third party. The Supreme Court found that because the trial court failed to properly apply section 33.004, it abused its discretion by granting the respondent’s motion for leave to designate an individual as an unknown responsible third party. The Supreme Court determined that the petitioner did not have an adequate remedy at law and rendered mandamus relief appropriate. The Supreme Court concluded that pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the court conditionally granted the petitioner mandamus relief and directed the trial court to vacate its order granting the respondent’s motion to designate an individual as an unknown responsible third party. Accordingly, the court's writ would issue only if the trial court failed to comply.

The appellate court concluded that the appellees were not entitled to attorney’s fees and sustained that issue.
Paxton v. Waller Cnty.
Appellate: Civil, Gov't/Administrative
Texas 7th Court of Appeals
March 04, 2021
07-20-00297-CV
Judy C. Parker
Published
The Attorney General appealed the judgment of the trial court in an action for mandamus and civil penalties against the appellees. On appeal, the Attorney General claimed that the County was unlawfully attempting to prohibit licensed handgun owners carrying handguns from accessing the county courthouse building in its entirety, in violation of Texas Government Code Section 411.209. The appellate court found that because the appellees were seeking a declaration of their rights under the statutes, not challenging their validity, the appellant's immunity was not waived under the Uniform Declaratory Judgments Act (UDJA). The appellate court could not conclude that the appellant acted outside of his authority in making that determination, and therefore, the appellees failed to allege a viable ultra vires claim against the appellant. The appellate court concluded that the appellees were not entitled to attorney’s fees and sustained that issue. Accordingly, the court reversed the order of the trial court. 

The evidence was sufficient to support the defendant's conviction for cargo theft under section 31.18(b)(1) of the Texas Penal Code.
Joe v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
March 03, 2021
10-18-00221-CR
John E. Neill
Published
The defendant appealed the judgment of the trial court, contending that the evidence supported his conviction for theft of cargo was insufficient. The appellate court found that viewing the evidence in the light most favorable to the jury’s verdict, a rational factfinder could have found beyond a reasonable doubt that the defendant engaged in conduct namely, hooking up the trailer to his truck that demonstrated possession of the goods. The appellate court concluded that the evidence was sufficient to support the defendant's conviction for cargo theft under section 31.18(b)(1) of the Texas Penal Code. Accordingly, the court affirmed the judgment of the trial court.

Viewing the evidence in the light most favorable to the jury’s verdict, there was sufficient evidence to support the defendant's conviction in the case for felony assault family violence.
Busby v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
March 03, 2021
10-18-00262-CR
John E. Neill
Published
The defendant appealed the judgment of the trial court which convicted him of assault family violence under section 22.01(a)(1), which was enhanced by his prior conviction for assault family violence under section 22.01(b)(2)(A). On appeal, the defendant challenged his conviction for felony assault family violence. The appellate court observed that the State presented certified copies of the complaint, information, and waiver of rights in the case. The appellate court found that it was sufficient evidence to prove the element of a prior conviction involving assault family violence to enhance the charged offense in this case to a third-degree felony, and the defendant's guilty plea constituted some evidence to support his conviction for misdemeanor assault family violence. The appellate court concluded that viewing the evidence in the light most favorable to the jury’s verdict, there was sufficient evidence to support the defendant's conviction in the case for felony assault family violence. Accordingly, the judgment was affirmed.

The Supreme Court concluded that only a subset of those who engage in the covered behavior—not just anyone—could be penalized under the ordinance.
In re Durnin
Constitution, Election, Gov't/Administrative
The Supreme Court of Texas
March 02, 2021
21-0170
James D Blacklock
Published
The relators appealed the judgment of the trial court, supporting the City's ordinance and filing the mandamus proceeding seeking changes to the Council’s ballot language. On appeal, the relators supported the citizen-initiated ordinance regarding camping in public spaces, sitting and lying down on public sidewalks, and the aggressive solicitation of money. The Supreme Court found that the relators have clearly established their entitlement to mandamus relief in one respect and the Council’s ballot language said the proposed ordinance created a criminal offense and a penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors in or near downtown and for anyone camping in a public area not designated by the Parks and Recreation Department. The Supreme Court determined that the ordinance itself, however, did not apply to anyone who engaged in the listed activities, and to the contrary, the ordinance contained several exceptions covering a variety of common uses of the sidewalk that the ordinance did not criminalize. The Supreme Court concluded that only a subset of those who engage in the covered behavior—not just anyone—could be penalized under the ordinance. Accordingly, the petition for writ of mandamus was conditionally granted in part. 

The appellate court concluded that it was without jurisdiction to consider the issues raised by the State.
State v. Garcia
Constitution, Criminal, Evidence, Immigration, Procedure
Texas 14th Court of Appeals
March 02, 2021
14-20-00548-CR
Jerry Zimmerer
Published
The State appealed the judgment of the trial court which granted the defendant's application for writ of habeas corpus pursuant to Article 11.09 of the Code of Criminal Procedure in which he alleged that his guilty plea was involuntary because he was not advised of the immigration consequences of his plea. The appellate court found that unlike the trial court in Garcia, the trial court did not make specific findings of fact, nor did the trial court’s order granted a new trial. The appellate court determined that the trial court vacated the conviction and discharged the defendant, and the record did not reflect that the trial court ordered a rehearing in the case. The appellate court further found that because the trial court’s grant of relief to an applicant for a writ of habeas corpus under Article 11.09 could not be fairly characterized as an unfavorable ruling on a ruling from which the State would otherwise have the right to appeal the order, Article 44.01 did not authorize the State’s appeal in the cause. The appellate court concluded that it was without jurisdiction to consider the issues raised by the State. Accordingly, the court dismissed the appeal for want of jurisdiction. 

To the extent that the appellant challenged the appellee’s second summary-judgment ground that the appellee could not be sued as a non sui juris entity, the court did not reach that argument as the trial court’s judgment was supportable on the statute-of-limitations ground.
Sorrow v. Harris Cnty. Sheriff
Appellate: Civil, Constitution, Evidence, Gov't/Administrative, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
March 02, 2021
14-18-00901-CV
Charles Spain
Published
The appellant appealed the judgment of the trial court, alleging a variety of tort, statutory, and constitutional violations stemming from the appellant’s medical treatment while in the custody of the Sheriff during his pre-trial detention. On appeal, the appellant challenged the trial court’s grant of the appellee’s second amended motion for summary judgment, which dismissed with prejudice the appellant’s claims that he suffered injuries from medical care he received in pre-trial detention while in the appellee’s custody. The appellate court noted that the appellant had not demonstrated that his injuries were categorically undiscoverable, and the trial court did not err in refusing to apply the discovery rule to toll limitations. The appellate court found that to the extent that the appellant challenged the appellee’s second summary-judgment ground that the appellee could not be sued as a non sui juris entity, the court did not reach that argument as the trial court’s judgment was supportable on the statute-of-limitations ground. The appellate court concluded that the record had been supplemented to the extent of documents in the possession of the district clerk. Accordingly, the judgment was affirmed in part, reversed in part, and remanded.

The appellate court concluded that the State agreed with the defendant, the defendant was incompetent at the time of his trial and his trial was rendered invalid on due-process grounds.
Bautista v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 02, 2021
14-18-00042-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child. The appellate court noted that none of the defendant's arguments established that, when viewed under the appropriate standard of review, the evidence was legally insufficient to support his conviction. The appellate court disagreed that the jury’s decision to not convict the defendant of the greater charge factors into the court's analysis of the sufficiency of the evidence supporting the lesser included offense conviction. The appellate court determined that viewing the evidence in the light most favorable to the prosecution, the evidence provided by the complainant was legally sufficient to support the defendant's conviction. The appellate court concluded that the State agreed with the defendant, the defendant was incompetent at the time of his trial and his trial was rendered invalid on due-process grounds. Accordingly, the court reversed the trial court’s judgment and remanded the case. 

Even if the substance of the plea to the jurisdiction were a motion for summary judgment on the merits, the trial court would have erred in granting summary judgment based on any of the grounds expressly presented in the motion.
Roy v. Alkusari, L.L.C.
Civil Rights, Employment
Texas 14th Court of Appeals
March 02, 2021
14-19-00121-CV
Randy Wilson
Published
The appellant, a former employee, challenged the trial court’s granting of the appellees’ plea to the jurisdiction in the sex-discrimination case. The appellate court observed that a non-governmental defendant’s failure to have enough employees to qualify as an employer under Texas Labor Code section 21.002(8)(A) did not deprive a trial court of subject-matter jurisdiction over claims against the defendant under Chapter 21 of the Texas Labor Code (the Act). The appellate court found that even if the substance of the plea to the jurisdiction were a motion for summary judgment on the merits, the trial court would have erred in granting summary judgment based on any of the grounds expressly presented in the motion. Accordingly, the judgment of the trial court was reversed and remanded.

The appellate court concluded that the appellant failed to show by a preponderance of the evidence the appellee’s suit was based on, related to, or in response to its exercise of free speech or free association.
Teachers Fed. Credit Union v. Esquivel
Civil Rights, Constitution, Torts
Texas 8th Court of Appeals
February 26, 2021
08-18-00200-CV
Yvonne T. Rodriguez
Published
The appellant appealed the trial court’s denial of its Motion to Dismiss Pursuant to the Texas Citizens Participation Act (the Act). On appeal, the appellant filed a motion to dismiss under the Act, asserting the appellee’s claims were based on or related to the appellant’s exercise of free speech and free association as defined under the Act. The appellate court held that the appellant did not meet its burden in proving by a preponderance of the evidence that the appellee’s lawsuit was based on, related to, or in response to its exercise of the right of free speech or its right of association. The appellate court found that the appellant’s motion was properly denied. The appellate court concluded that the appellant failed to show by a preponderance of the evidence the appellee’s suit was based on, related to, or in response to its exercise of free speech or free association. Accordingly, the court affirmed the denial of the appellant’s Motion to Dismiss. 

There was sufficient evidence for a jury to have found beyond a reasonable doubt that the appellant recklessly caused the child serious bodily injury by failing to seek medical treatment.
Cyr v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
February 26, 2021
11-19-00041-CR
W. Bruce Williams
Published
The defendant appealed the judgment of the trial court which convicted the defendant of recklessly, by omission, causing serious bodily injury or serious mental deficiency, impairment, or injury to a child fourteen years of age or younger. On appeal, the defendant challenged the punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of fifteen years. The appellate court found that because the trial court erred in omitting an instruction on concurrent causation and because the error caused at least some harm to the defendant, the court reversed the judgment of conviction and remanded the cause for a new trial consistent with the opinion. The appellate court determined that viewing the evidence in a light most favorable to the verdict, there was sufficient evidence for a jury to have found beyond a reasonable doubt that the appellant recklessly caused the child serious bodily injury by failing to seek medical treatment. The appellate court declined to further address the issue of whether there was sufficient evidence that the defendant caused the child serious bodily injury by failing to protect the child. Accordingly, the court reversed the judgment of the trial court and remanded the cause for a new trial consistent with the opinion.  

The appellate court concluded that the trial court did not err in granting the appellee’s motion to dismiss based on the existence of the forum-selection clause.
Sullivan v. Microsoft Corp.
Contracts, Employment
Texas 8th Court of Appeals
February 26, 2021
08-20-00046-CV
Jeff Alley
Published
The appellant appealed the judgment of the trial court which granted the appellee's motion to dismiss the appellant’s lawsuit based on a forum-selection clause that was contained in an employment agreement signed by both parties. On appeal, the appellant contended that his lawsuit was not based on a breach of that employment agreement, but rather the breach of an offer letter that set forth his compensation schedule, and which did not contain a forum-selection clause. The appellant further alleged that the forum-selection clause did not apply to his breach of contract case, and that the trial court erred in dismissing his lawsuit on that basis. The appellate court noted that the two agreements were not intended to function separately, but were instead intended to function in tandem with each other to accomplish the same purpose, that was, to set forth the terms of the appellant’s employment, to include the nature of his compensation. The appellate court concluded that the trial court did not err in granting the appellee’s motion to dismiss based on the existence of the forum-selection clause. Accordingly, the trial court’s order was affirmed.

The trial court did not violate the appellant's due process right to be heard, including his right to present evidence and to a trial on the merits of his case.
Joseph v. Jack
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
February 25, 2021
01-19-00280-CV
April L. Farris
Published
The appellant appealed the judgment of the trial court, filing a bill of review requesting that the trial court vacate the default protective order, reopen those proceedings, and grant a new trial. On appeal, the appellant challenged the denial of both the appellant's bill of review and summary judgment motion. The appellate court found that Travieso did not support the appellant's argument that the serving officer was required to sign the return in his official capacity. The appellate court determined that the serving officer was not required to sign his name in his official capacity and the trial court did not abuse its discretion in denying the appellant's bill of review. The appellate court disagreed with the appellant that the trial court erred by entering judgment on his bill of review when the appellee did not file a cross-motion for summary judgment. The appellate court concluded that the trial court did not violate the appellant's due process right to be heard, including his right to present evidence and to a trial on the merits of his case. Accordingly, the court affirmed the judgment of the trial court and dismissed any pending motions as moot.  

The appellate court disagreed with the appellant because his claim for intentional infliction of emotional distress was not properly before the court when the appellee filed its motion or when the court ruled.
Chehab v. Edgewood Dev., Ltd.
Appellate: Civil, Contracts, Damages, Employment, Landlord and Tenant, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 14th Court of Appeals
February 25, 2021
14-20-00031-CV
Kevin Jewell
Published
The appellant appealed the judgment of the trial court, alleging that the lockout notice was libelous per se. On appeal, the appellant challenged the trial court's grant of the appellee’s motion, dismissing with prejudice all of the appellant’s claims. The appellate court observed that the appellant’s live pleading at the time of the summary judgment hearing was the appellant’s first amended petition, which asserted claims for defamation and negligence, but not intentional infliction of emotional distress. The appellate court found that as a result, the summary judgment order disposed of all pending claims and parties when it was signed and the trial court did not err in granting summary judgment on the appellant’s defamation claim. The appellate court affirmed the judgment dismissing the negligence claim. The appellate court disagreed with the appellant because his claim for intentional infliction of emotional distress was not properly before the court when the appellee filed its motion or when the court ruled. Accordingly, the judgment was affirmed.

The evidence did not satisfy the appellees' burden of proof, and because the appellees did not conclusively negate the unsound-mind exception to limitations, the trial court erred in granting summary judgment.
Rollins v. Pressler
Appellate: Civil, Criminal, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
February 25, 2021
01-19-00460-CV
Gordon Goodman
Published
The appellant appealed the judgment of the trial court, alleging that the appellee began molesting him after they met at a Bible study group led by the appellee. On appeal, the appellant challenged the trial court's grant of partial summary judgment in favor of the appellee and the other appellees based on their limitations defense, which disposed of all but a handful of the appellant’s claims. The appellate court found that the prior litigation between the appellant and the appellee did not conclusively prove that the appellant was of sound mind when his sexual-assault claim last accrued. The appellate court noted that the evidence did not satisfy the appellees' burden of proof, and because the appellees did not conclusively negate the unsound-mind exception to limitations, the trial court erred in granting summary judgment. The appellate court need not resolve the parties’ dispute about whether the doctrine of fraudulent concealment provided a defense to limitations. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.  

The appellate court concluded that because Section 34.02(a)(4) was susceptible of a construction that provided an actus reus for the phrase “intends to finance or invest,” it was not unconstitutional for punishing mere thoughts and, therefore, it was not facially unconstitutional.
Ex parte Couch
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
February 25, 2021
02-19-00216-CR
Wade J. Birdwell
Published
The defendant appealed the judgment of the trial court which convicted him of money laundering. On appeal, the defendant filed an application for writ of habeas corpus and an amended application for writ of habeas corpus, seeking dismissal of all four indictments. The appellate court noted that the Legislature enacted Penal Code Section Section 34.02(a)(4) with knowledge of the Court of Criminal Appeals’ construction of the phrase “finances or invests” in the illegal investment statute, and thus, the Legislature included the phrase “intends to finance or invest” to foreclose the similar argument made regarding the illegal investment statute. The appellate court found that the construction aligned with the legislative intent and the statute’s context defined an actus reus, and avoided violating the Constitution. The appellate court concluded that because Section 34.02(a)(4) was susceptible of a construction that provided an actus reus for the phrase “intends to finance or invest,” it was not unconstitutional for punishing mere thoughts and, therefore, it was not facially unconstitutional. Accordingly, the judgment of the trial court was affirmed.       

The appellate court concluded that because the appellee did not conclusively negate the appellant’s unsound mind-tolling theory, it was not entitled to summary judgment based on limitations.
Rollins v. S. Baptist Convention
Appellate: Civil, Procedure, Torts
Texas 1st Court of Appeals
February 25, 2021
01-19-00149-CV
Gordon Goodman
Published
The appellant appealed the judgment of the trial court, alleging that he was sexually abused by a member of the appellee’s executive committee. On appeal, the appellant challenged the trial court's grant of summary judgment in favor of the appellee on the basis that the appellant’s claims against it were barred by limitations. The appellate court noted that the trial court ruled for the appellee on a single ground: limitations; and it was undisputed that the appellant raised the unsound mind-tolling exception in the trial court. The appellate court found that the appellant had preserved the issue for appellate review and the appellee bore the burden to prove that the appellant was of sound mind to obtain summary judgment. The appellate court determined that because the appellee did not conclusively negate the unsound-mind exception to limitations, the trial court erred in granting summary judgment. The appellate court concluded that because the appellee did not conclusively negate the appellant’s unsound mind-tolling theory, it was not entitled to summary judgment based on limitations. Accordingly, the judgment was reversed and remanded.

The appellate court concluded that in light of the evidence illustrative of the defendant's violent character, the admission of two witnesses’ opinion testimony was harmless.
Seidule v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
February 25, 2021
14-20-00010-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court, challenging his murder conviction. The appellate court found that the trial court’s exclusion of the two witnesses’ evidence of the victim’s prior violent acts did not substantially injure the defendant's rights, and the error, if any, was harmless. The appellate court noted that the other evidence showed the defendant's violent character, which rendered the complained-of admitted evidence generally cumulative. The appellate court determined that the defendant admitted that he initially shot the victim while the victim stood, unarmed, at the kitchen sink. The appellate court concluded that in light of the evidence illustrative of the defendant's violent character, the admission of two witnesses’ opinion testimony was harmless. Accordingly, the judgment was affirmed.

The appellate court concluded that each side presented a significant amount of evidence on which the county intended to be her residence because the evidence was conflicted, and thus, the court could not substitute the court's judgment for the trial court’s.
Southcross Energy Partners GP, LLC v. Gonzalez
Appellate: Civil, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 4th Court of Appeals
February 24, 2021
04-18-00515-CV
Luz Elena D Chapa
Published
The appellant challenged the money judgment the trial court rendered in the appellees’ favor after a jury trial, seeking reversal and rendition of a take-nothing judgment. In response, the appellee cross-appealed the judgment, seeking reversal and a remand for a new trial. The appellate court found that applying the court's heightened standard of review, accounting for the undisputed facts in the case, and having thoroughly considered all of the evidence arguably relevant to the gross negligence finding, the court could not say the conscious indifference element of the jury’s gross negligence finding regarding the officer was supported by legally sufficient evidence. The appellate court was compelled to reverse the award of punitive damages, and although the cross appellants relied on the juror's testimony, the testimony of her mother and stepfather, and documentary evidence, there was conflicting evidence in the record. The appellate court concluded that each side presented a significant amount of evidence on which the county intended to be her residence because the evidence was conflicted, and thus, the court could not substitute the court's judgment for the trial court’s. Accordingly, the judgment was affirmed in part, reversed, and rendered in part. 

The appellate court concluded that because the Declaratory Judgments Act neither created jurisdiction nor permitted the rendition of advisory opinions, the trial court properly dismissed the appellant's claim for declaratory relief.
Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc.
ADR, Constitution, Health Care, Insurance
Texas 5th Court of Appeals
February 23, 2021
05-19-01447-CV
David Schenck
Published
The appellant appealed the judgment of the trial court, claiming to have provided emergency medical care to more than 3,800 patients enrolled in the appellee's Health Insurance Exchange (HIX) plans. On appeal, the appellant sought judicial resolution of their claim that the appellee's reimbursement regime under Medicare–Medicaid programs, as implemented through the federal Affordable Care Act and corresponding federal and state regulations, was inadequate. The appellee filed a plea to the jurisdiction asserting the appellants lacked standing to assert claims under the emergency care statute, the unfair settlement practices statute and the prompt payment statute. The appellate court found that the trial court did not err in dismissing the appellant's Section 1271.155 of the Texas Insurance Code claim. The appellate court noted that the appellant could not seek penalties under the prompt payment statute and thus the trial court did not err in dismissing the appellant's claim against the appellee for violation of the prompt payment statute. The appellate court concluded that because the Declaratory Judgments Act neither created jurisdiction nor permitted the rendition of advisory opinions, the trial court properly dismissed the appellant's claim for declaratory relief. Accordingly, the court affirmed the trial court’s order granting the appellee's Plea to the Jurisdiction.      

The appellate court concluded that the burden to demonstrate the specific reasons why the extraordinary writ of injunction was required under these circumstances was with the relators.
In re Alamo Defenders Descedants Ass'n
Appellate: Civil, Constitution, Procedure
Texas 8th Court of Appeals
February 23, 2021
08-20-00188-CV
Jeff Alley
Published
The relators appealed the judgment of the trial court, seeking injunctive and declaratory relief to stop construction on the project, contending generally that the defendants were violating provisions of the Texas Health & Safety Code because the grounds contained a historically documented mission cemetery predating the relator as well as the physical remains of the relator's members’ ancestors. The appellate court found that according to a response from the Attorney General, current archaeological activities were taking place at the project site in accordance with a plan that was already approved by the THC, and any human remains found were either being left in situ or are being kept on-site in a sealed vault at the relator. The appellate court determined that there was no indication that there was an active threat to any human remains, and the association had not explained how the current archaeological arrangement was improper or inadequate such that immediate injunctive relief or relief pending the duration of appeal was necessary. The appellate court concluded that the burden to demonstrate the specific reasons why the extraordinary writ of injunction was required under these circumstances was with the relators. Accordingly, the writ was denied.