The appellate court concluded that since the trial court’s temporary injunction did not satisfy the requirements of Rule 683 of the Texas Rules of Civil Procedure, it was void.
Caniglio v. Woods
Appellate: Civil, Contracts, Damages, Procedure, Real Property, Torts
Texas 6th Court of Appeals
December 18, 2019
06-19-00080-CV
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which granted a temporary injunction enjoining the defendant from interfering with his rights under the farm lease agreement. On appeal, the plaintiff argued that the defendant’s continued use of the property would result in loss of income to the plaintiff and cause him to spend substantial sums of money for breach of contract. The defendant maintained that the plaintiff failed to demonstrate the element of irreparable harm. The appellate court noted that while the order stated that the plaintiff would be unable to use the property, it contained no explanation as to why any resulting harm from the plaintiff’s inability to use the property was irreparable such that it could not be compensated with money damages against the defendant. The appellate court found that since the order did not show the facts the trial court relied on, the finding of irreparable harm was improperly conclusory. The appellate court concluded that since the trial court’s temporary injunction did not satisfy the requirements of Rule 683 of the Texas Rules of Civil Procedure, it was void. Accordingly, the judgment of the trial court was vacated and remanded.
The appellate court concluded that it was reasonably assured that any error in admitting the mother’s outcry testimony did not influence the jury’s verdict or had but a slight effect.
Waldrep v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
December 17, 2019
08-19-00027-CR
Jeff Alley
Published
The defendant appealed the judgment of the trial court which convicted him of one count of continuous sexual abuse of a child under 14 years of age and sentenced to 99 years in prison. On appeal, the defendant found it significant that the State did not present any corroborating evidence at the Article 38.072 hearing. The appellate court noted that the trial court did not abuse its discretion in concluding that the victim sufficiently described the alleged offense to her mother within the meaning of Article 38.072 of the Texas Code of Criminal Procedure. The appellate court found that the State presented the testimony of several witnesses who testified, without objection, that the victim had made similar outcries to them. The appellate court concluded that it was reasonably assured that any error in admitting the mother’s outcry testimony did not influence the jury’s verdict or had but a slight effect. Accordingly, the judgment of the trial court was affirmed.
The evidence of the mother’s unlawful conduct in the case rebutted the presumption in favor of joint managing conservatorship and amply supported the trial court’s determination that appointing the father sole managing conservator was in best interest.
Jardon v. Pfister
Appellate: Civil, Family, Juvenile, Procedure
Texas 8th Court of Appeals
December 17, 2019
08-17-00183-CV
Gina M. Palafox
Published
The mother appealed the judgment of the trial court which entered a final decree of divorce between the mother and the father. The appellate court noted that the sanction in the case was limited to prohibiting the mother from offering evidence or documents she failed to produce and that sanction was authorized by both Rule 193.6 and Rule 215. The appellate court found that the mother had not demonstrated that the trial court’s order complying with those rules constituted an abuse of discretion, and the mother did not identify anywhere in the record that she attempted to introduce any evidence that was excluded based on the sanctions order. The appellate court concluded that the evidence of the mother’s unlawful conduct in the case rebutted the presumption in favor of joint managing conservatorship and amply supported the trial court’s determination that appointing the father sole managing conservator was in best interest. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.
There was no factual basis in the record to support a determination that the defendant could pay the attorney’s fees.
Kuykendall v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 17, 2019
01-18-00930-CR
Russell Lloyd
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of the third-degree felony offense of failure to appear. On appeal, the defendant challenged the trial court’s sentence to ten years’ confinement on each count, with the sentences to run concurrently. The appellate court noted that because the defendant may be convicted of only one failure-to-appear case for his failure to appear at a single court setting on a two-count indictment for which he had been released from confinement, a double jeopardy violation was apparent on the face of the record. The appellate court found that the defendant was sentenced to the same sentence of ten years’ confinement on each count, with the sentences to run concurrently. The appellate court concluded that there was no factual basis in the record to support a determination that the defendant could pay the attorney’s fees. Accordingly, the judgment of the trial court was vacated and affirmed.
The undisputed jurisdictional evidence sufficiently established the existence of a special defect for which the Texas Tort Claims Act’s waiver provision was invoked.
City of Elpaso v. Lopez
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
December 16, 2019
08-19-00056-CV
Yvonne T. Rodriguez
Published
The City appealed the judgment of the trial court which denied its plea to the jurisdiction in a suit brought against the City for the wrongful death of the deceased. The appellate court believed the connection was made between the City’s alleged ownership and control of the road and the factors identified as contributing to the deceased’s death. The appellate court found that after the report was issued, the City exercised its control over the road to remediate the hazard identified in the STI report by installing warning signs, barricades, and lighting. The appellate court further found that the fact that the City’s remediating actions mirrored the contributing factors identified in the STI’s report, clearly demonstrated an actual anticipation of a claim as alleged by the plaintiffs, and thus, the City had “actual notice” under Section 101.101(c) of the Texas Tort Claims Act as that phrase was interpreted by the Texas Supreme Court, and that “notice of a claim” under Sections 101.101(a) and (b) were not required. The appellate court concluded that the undisputed jurisdictional evidence sufficiently established the existence of a special defect for which the Act’s waiver provision was invoked. Accordingly, the judgment of the trial court was affirmed.
The trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against the Texas Department of Transportation
Tex. Dep't of Transp. v. Padron
Damages, Family, Gov't/Administrative, Torts
Texas 6th Court of Appeals
December 13, 2019
06-19-00010-CV
Josh Morriss, III
Published
A Travis County jury awarded $5,232,994 in damages for premises liability claims brought by the three appellees against the Texas Department of Transportation (TxDOT). The appellate Court found that TxDOT's evidence failed to demonstrate that there was an unreasonable risk of harm. The appellate Court noted that the undisputed evidence showed that the friction coefficient was within the safe range for both wet and dry weather, that there was no evidence of an uneven coefficient of friction at the accident site, that the photographs relied on by the experts were miles from the Martinez accident site and only showed “moderate” flushing, and that there was no evidence that the other accidents occurring on the same day were the result of flushing or a low coefficient of friction. Further, TxDOT’s proposed jury instructions sought to narrow the inquiry by asking the jury only if the amount of friction provided by the road surface at the time and place of the accident posed an unreasonable risk of harm. TxDOT also argued that the appellees failed to obtain required jury findings because the jury charge did not define the unreasonably dangerous condition. However, the Court found nothing that required the trial court to limit the jury charge in the manner requested by TxDOT. Pursuant to State v. Williams, the trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against TxDOT. Because the Court found that the appellees secured all required jury findings, the trial court's judgment was affirmed.
The addition of the claim for shareholder inspection to the appellee’s Fifth Amended Petition was not based on, related to, or made in response to the appellants exercise of the right to petition and, thus, correctly denied
Chandni I, Inc. v. Patel
Corporations, Gov't/Administrative, Securities
Texas 8th Court of Appeals
December 13, 2019
08-18-00107-CV
Yvonne T. Rodriguez
Published
The following case involved an interlocutory appeal from the trial court’s denial of the appellant's motion to dismiss under the Texas Citizens Participation Act (TCPA). The appeal arose out of a shareholder derivative suit brought by the appellee against the managers and directors of the corporation, a corporation that owned and managed a Quality Inn & Suites in El Paso, Texas. The appellants filed a motion to dismiss under the Texas Citizens Participation Act, asserting that the claims for fraud, theft, and shareholder inspection were made in response to their exercise of freedom of speech, association, and petition. The appellate Court found that it was a denial of a demand for shareholder inspection. Accordingly, the addition of the claim for shareholder inspection to the appellee’s Fifth Amended Petition was not based on, related to, or made in response to the appellants exercise of the right to petition. The trial court did not err in denying the appellants motion to dismiss the shareholder inspection claim. Because the Court had concluded that the appellants had not met their burden to show their TCPA motion to dismiss the fraud and theft claims was timely filed, and that the appellants motion to dismiss the shareholder inspection claim was not based on the exercise of the right to petition, the Court did not need to address the appellants contentions regarding whether the appellee had established a prima facie case or whether the appellants met their burden of proof in establishing a valid defense to the appellee’s prima facie case. Because the Court had determined the trial court did not err in denying the appellants motions to dismiss under the TCPA, the appellants were not entitled to costs, attorney’s fees, or expenses. Accordingly, the trial court judgment was affirmed.
The court of appeals erred in refusing to review the trial court’s denial of the petitioner’s no-evidence motion for summary judgment challenging jurisdiction on the basis of governmental immunity
Town of Shady Shores v. Swanson
Appellate: Civil, Contracts, Damages, Employment, Gov't/Administrative, Torts
The Supreme Court of Texas
December 13, 2019
18-0413
Debra Lehrmann
Published
The following suit stemmed from an employment dispute between the petitioner town and its former town secretary, the respondent. During a February 27, 2014 town-council meeting, the council voted to terminate the respondent’s employment. The respondent sued the petitioner, initially alleging that she was wrongfully terminated in retaliation for refusing to destroy a recording of a petitioner investment-committee meeting, reporting that members of the committee had destroyed the recording after she refused to do so and reported violations of the Texas Open Meetings Act and Texas Public Information Act. The trial court granted the petitioner’s plea to the jurisdiction and dismissed the Whistleblower Act and Sabine Pilot claims. In separate orders, the trial court denied the petitioner’s traditional and no-evidence motions for summary judgment. The petitioner appealed the summary judgment orders. The court of appeals affirmed in part and reversed in part. The Texas Supreme Court held that when a challenge to jurisdiction that implicated the merits was properly made and supported, whether by a plea to the jurisdiction or by a traditional or no-evidence motion for summary judgment, the plaintiff was required to present sufficient evidence on the merits of her claims to create a genuine issue of material fact. Thus, the court of appeals erred in refusing to review the trial court’s denial of the petitioner’s no-evidence motion for summary judgment challenging jurisdiction on the basis of governmental immunity. Further, because the Open Meetings Act did not waive governmental immunity from suit for Uniform Declaratory Judgments Act claims as a matter of law, the petitioner was entitled to summary judgment on all of the respondent’s claims for declaratory relief. Lastly, because of the Court's conclusion about the respondent’s pleadings, the court of appeals did not address the substance of the petitioner’s arguments. Accordingly, the Court reversed and remanded.
The appellants failed to show the motion to dismiss the theft claim under the Texas Citizens Participation Act was timely, as the essential factual allegations as to the claim were present in a prior petition
Chandni, Inc., v. Patel
Corporations, Procedure, Securities, Torts
Texas 8th Court of Appeals
December 13, 2019
08-18-00108-CV
Yvonne T. Rodriguez
Published
The following case involved an interlocutory appeal from the trial court’s denial of the appellants’ motion to dismiss under the Texas Citizens Participation Act (TCPA). The appellate Court observed that because additional factual details in a subsequent petition did not reset the TCPA clock if the essential factual allegations as to the claim were present in the prior petition, the appellants failed to show the motion to dismiss the theft claim under the TCPA was timely. Further, because the same essential factual allegations were asserted regarding the appellants’ alleged conspiracy and aiding and abetting that were previously asserted in the Third Amended Petition, the appellants failed to show the motion to dismiss the civil conspiracy claim under the TCPA was timely. Next, because no new claims were added in the Fourth Amended Petition against the appellants and the claim asserted relied upon the same factual allegations the Third Amended Petition, the 60-day deadline was not reset as to the fraud claim and the appellants’ motion to dismiss was untimely. Finally, the trial court did not err in denying the appellants’ motion to dismiss the shareholder inspection claim. Accordingly, the judgment of the trial court was affirmed.
The appellant’s notice of appeal was timely filed, as the first memorandum order by the trial court modifying possession and child support was not intended to be the final order
In re R.R.K.
Family, Gov't/Administrative, Juvenile, Procedure
The Supreme Court of Texas
December 13, 2019
18-0273
Jane N. Bland
Published
In the following case, the appellate Court decided the trial court's first memorandum order modifying possession and child support was final and appealable, which rendered the trial court’s second later order void, and the appellant mother’s appeal from the second order untimely. Relying on a Mother Hubbard clause, the appellate Court held that the memorandum order was the final order, and it dismissed the appellant’s appeal for lack of jurisdiction. The Texas Supreme Court observed that the memorandum order lacked “clear and unequivocal” indicia of finality, requiring an examination of the record to determine the trial court’s intent. The record in the case demonstrated that neither the trial court nor the parties intended the memorandum to be the final order. Thus, because the trial court’s later “Order in Suit to Modify Parent-Child Relationship” was the appealable order, the appellant’s notice of appeal was timely filed. Accordingly, the Court reversed and remanded to the appellate court for consideration of the merits of the appellant’s appeal.
The State was obligated to perfect its appeal within twenty days of May 14, 2018, as those fact findings and legal conclusions met the criteria for being a written order under the Texas Code of Criminal Procedure
State v. Janssen
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 12, 2019
07-19-00148-CR
Brian Quinn
Published
The following appeal was by the State from an order granting and denying, in part, a motion to suppress evidence filed by the appellee. The evidence in question involved controlled substances and drug paraphernalia. The appellee moved to suppress it because of purported violations of his constitutional rights against unreasonable searches and seizures. The appellate Court observed that that the May 14, 2018, fact findings and legal conclusions met the criteria for being a written order or ruling for purposes of article 44.01(a) and (d) of the Texas Code of Criminal Procedure. Thus, the State was obligated to perfect its appeal within twenty days of May 14th. It did not, thus, the Court lacked jurisdiction to consider its complaint regarding the search of the Hyundai and suppression of evidence found during it. Further, the first drug sale in March provided the initial piece of foundation. Over the ensuing months, additional pieces were laid to form the foundation request for and issuance of the search warrant hours after the appellee’s arrest. In so viewing the events expressed in the affidavit sequentially, the magistrate and the Court could see how the information therein was not stale. Evidence of ongoing criminal activity generally defeats a claim of staleness. Accordingly, the judgment was affirmed, reversed and remanded.
The appellant met its initial burden to evidence an agreement to arbitrate, and the agreement was not procedurally unconscionable
APC Home Health Servs., Inc. v. Martinez
ADR, Appellate: Civil, Contracts, Damages, Employment, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 8th Court of Appeals
December 12, 2019
08-18-00171-CV
Ann Crawford McClure
Published
The appellee filed suit against the appellant company, alleging a common law negligence cause of action. The appellant was a non-subscriber under the Texas worker’s compensation system. The appellant answered and then moved to compel arbitration. The following was an interlocutory appeal from the denial of a motion to compel arbitration. The trial court denied the motion without saying why. The appellate Court observed that the appellant's first issue on appeal generally claimed that the trial court erred in not granting its motion to compel arbitration. The Appellate Court agreed, reasoning the appellant met its initial burden to evidence an agreement to arbitrate in two ways. First, it presented the agreement supported by the affidavit of its records custodian. Second, when the appellee requested the original document as the best evidence of the contract, the appellant was prepared to present at the hearing a witness who would confirm the execution of the agreement by appellee. The Court also rejected the appellee's claim that the arbitration agreement was procedurally unconscionable. The Court noted that the appellee did not allege she failed to understand the document or that she signed it, only that it was misrepresented to her that the arbitration agreement was misrepresented as "routine" paperwork. This would not support a claim of procedural unconscionability. Accordingly, the Court reversed and remanded with instructions.
The trial court's take-nothing verdict on the appellee lawyer's claim for fees was appropriately entered, as the verdict was not contrary to the greater weight and preponderance of the evidence admitted in the trial
Webb v. Crawley
Contracts, Damages, Employment, Litigation: Personal Injury, Torts
Texas 9th Court of Appeals
December 12, 2019
09-17-00498-CV
Hollis Horton III
Published
The subject appeal arose following a trial that resulted in a take-nothing verdict on a lawyer’s suit to collect a fee and the client’s resulting counterclaims for malpractice and the alleged breaches of their fiduciary duties. Both parties appealed. The lawyer complained the evidence showed he had the right to recover on his claim for unpaid fees. The appellate Court determined that the trial court's take-nothing verdict on the appellee lawyer's claim for fees was appropriately entered, as the verdict was not contrary to the greater weight and preponderance of the evidence admitted in the trial. The Court pointed to several instances where factual issues existed as to whether fees charged were reasonable, including another lawyer’s testimony that she did not perform some of the work the appellee lawyer claimed she did for him on behalf of the appellant client. Moreover, the appellate Court found that the appellant's malpractice counterclaim against the appellee lawyer was time-barred. The Court reasoned that even with the benefit of the Hughes Rule, the appellant could not wait more than two years after February 11, 2015, to sue the appellee and his firm for malpractice. But the appellant waited until February 26, 2017 to file her counterclaim, and by then, limitations barred her claim. Thus, appellant's arguments suggesting the Hughes Rule saved her malpractice claims lacked merit. The appellate Court found that the trial court’s judgment on all claims reflected a reasonable resolution of the dispute based on the evidence admitted in the trial, and neither party established a right to prevail on their claims as a matter of law. Accordingly, the trial court’s judgment was affirmed.
The record evidence did not permit a reasonable fact finder to form a firm belief or conviction that termination of the appellant father’s parental rights would be in the child’s best interest
In re C.V.L.
Appellate: Civil, Family, Gov't/Administrative, Juvenile
Texas 5th Court of Appeals
December 13, 2019
05-19-00506-CV
Robbie Partida-Kipness
Published
The appellant father challenged the trial court’s decree terminating his parental rights to his daughter. The appellant argued the evidence was legally and factually insufficient to support termination of his parental rights under sections 161.001(b)(1)(D) and 161.001(b)(1)(E) of the Texas Family Code and (2) to support the trial court’s finding that termination was in the child’s best interest. The appellate Court found that in light of the constitutional concerns related to parental termination, clear instructions from the trial court to strictly scrutinize termination proceedings, and strictly construed involuntary-termination statutes, the strong presumption that preservation of the parent–child relationship was in the child’s best interest, the absence of evidence that the appellant would not meet his child’s needs, and the Court's obligation under a factual-sufficiency review to consider all evidence, the Court concluded that the record evidence did not permit a reasonable fact finder to form a firm belief or conviction that termination of the appellant father’s parental rights would be in the child’s best interest. The Court therefore sustained the appellant’s issue that the evidence was factually insufficient to support a finding that termination was in his child’s best interest. The Court noted that there was no evidence or suggestion in the record that the appellant engaged in assaultive conduct or ever intentionally placed the child in danger. Moreover, there was no evidence or suggestion in the record that the appellant ever used drugs in the presence of the child or allowed the child to be in a location where drugs were present. Accordingly, the Court reversed the trial court’s decree of termination that terminated the appellant’s parental rights to the daughter, reversed that portion of the decree appointing the Department as the permanent managing conservator of the daughter, and remanded the case to the trial court for a new trial to commence no later than 180 days after the mandate was issued by the Court.
Nothing in the record suggested the evidence gathered in connection with the unadjudicated cases, even if exculpatory as to those offenses, would have prevented appellant's conviction in the case in which he plead guilty
Holland v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
December 13, 2019
05-19-00272-CR
Cory L Carlyle
Published
The appellant was indicted and charged with aggravated sexual assault in three separate cases, based on offenses committed against separate victims. Faced with the possibility of multiple convictions that could lead to consecutive sentences, the appellant agreed to a plea deal in which he would plead guilty to one of the offenses while admitting his guilt as to the other two, with the understanding that although those unadjudicated offenses would be considered in determining his sentence for the offense to which he pleaded guilty, he would not be prosecuted for the other two offenses. The trial court accepted the appellant’s guilty plea, and after considering the two unadjudicated offenses, sentenced him to 40 years in prison. The charges in the unadjudicated cases were then dismissed. Appellant alleged that, years later, he discovered there was physical evidence collected during the investigations into the unadjudicated offenses. He thus filed motions under Chapter 64 of the Texas Code of Criminal Procedure in both of the unadjudicated cases, asserting there was a substantial likelihood DNA testing would show he did not commit the offenses charged in those cases. He did not, however, file a motion in the case in which he was convicted. The appellate Court reviewed the question of law de novo, and noted it was bound by the language of the statute. Chapter 64 did not provide for DNA testing merely because the evidence at issue might have affected an applicant’s decision to plead guilty, the length of his sentence, or the items included in the judgment of his conviction. A convicting court could order forensic DNA testing only if, among other things, identity was an issue in the case; and the convicted person established by a preponderance of the evidence that the person would not had been convicted if exculpatory results had been obtained through DNA testing. Further, nothing in the record suggested the evidence gathered in connection with the unadjudicated cases, even if exculpatory as to those offenses, would have prevented appellant's conviction in the case in which he entered the guilty plea. Accordingly, the judgment was affirmed.
The trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against the Texas Department of Transportation
Tex. Dep't of Transp. v. Padron
Damages, Family, Gov't/Administrative, Torts
Texas 6th Court of Appeals
December 13, 2019
06-19-00010-CV
Josh Morriss, III
Published
A Travis County jury awarded $5,232,994 in damages for premises liability claims brought by the three appellees against the Texas Department of Transportation (TxDOT). The appellate Court found that TxDOT's evidence failed to demonstrate that there was an unreasonable risk of harm. The appellate Court noted that the undisputed evidence showed that the friction coefficient was within the safe range for both wet and dry weather, that there was no evidence of an uneven coefficient of friction at the accident site, that the photographs relied on by the experts were miles from the Martinez accident site and only showed “moderate” flushing, and that there was no evidence that the other accidents occurring on the same day were the result of flushing or a low coefficient of friction. Further, TxDOT’s proposed jury instructions sought to narrow the inquiry by asking the jury only if the amount of friction provided by the road surface at the time and place of the accident posed an unreasonable risk of harm. TxDOT also argued that the appellees failed to obtain required jury findings because the jury charge did not define the unreasonably dangerous condition. However, the Court found nothing that required the trial court to limit the jury charge in the manner requested by TxDOT. Pursuant to State v. Williams, the trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against TxDOT. Because the Court found that the appellees secured all required jury findings, the trial court's judgment was affirmed.
The State was obligated to perfect its appeal within twenty days of May 14, 2018, as those fact findings and legal conclusions met the criteria for being a written order under the Texas Code of Criminal Procedure
State v. Janssen
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 12, 2019
07-19-00148-CR
Brian Quinn
Published
The following appeal was by the State from an order granting and denying, in part, a motion to suppress evidence filed by the appellee. The evidence in question involved controlled substances and drug paraphernalia. The appellee moved to suppress it because of purported violations of his constitutional rights against unreasonable searches and seizures. The appellate Court observed that that the May 14, 2018, fact findings and legal conclusions met the criteria for being a written order or ruling for purposes of article 44.01(a) and (d) of the Texas Code of Criminal Procedure. Thus, the State was obligated to perfect its appeal within twenty days of May 14th. It did not, thus, the Court lacked jurisdiction to consider its complaint regarding the search of the Hyundai and suppression of evidence found during it. Further, the first drug sale in March provided the initial piece of foundation. Over the ensuing months, additional pieces were laid to form the foundation request for and issuance of the search warrant hours after the appellee’s arrest. In so viewing the events expressed in the affidavit sequentially, the magistrate and the Court could see how the information therein was not stale. Evidence of ongoing criminal activity generally defeats a claim of staleness. Accordingly, the judgment was affirmed, reversed and remanded.
The appellant was precluded from bringing an ineffective assistance of counsel claim against her attorney in a proceeding involving her child, as she did not accept court-appointed counsel and retained her own counsel
In re D.T.
Appellate: Civil, Family, Gov't/Administrative, Juvenile
Texas 6th Court of Appeals
December 13, 2019
06-19-00064-CV
Ralph Burgess
Published
The Texas Department of Family and Protective Services (Department) filed a petition to terminate the individual's parental rights to her child, on the grounds that she had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered his physical or emotional well-being, engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered his physical or emotional well-being, and failed to comply with the provisions of the trial court order that specifically established the actions necessary for her to obtain child’s return after he had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of his removal for abuse or neglect. The appellate Court found that the appellant failed to preserve her point of error regarding the legal and factual sufficiency. In order to perserve the issue, the appellant had to raise the error in one of the following, which she failed to do: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict (JNOV); (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury's answer to a vital fact question; or (5) a motion for new trial. Further, the appellant was precluded from bringing an ineffective assistance of counsel claim, as she did not accept court-appointed counsel and retained her own counsel. Because the individual’s counsel was retained, the Court overruled her last point of error alleging ineffective assistance. Accordingly, the trial court's judgment was affirmed.
Because the deed restriction amendments contravened the statutory management authority granted to the appellee’s board of directors, they were not authorized by law and, therefore, illegal
Roddy v. Holly Lake Ranch Ass'n, Inc.
Business, Contracts, Real Property
Texas 12th Court of Appeals
December 11, 2019
12-18-00261-CV
Brian Hoyle
Published
The appellee company filed the following suit on August 30, 2017, seeking a declaratory judgment that the amendments done to deed restrictions of a certain subdivision were void. It further alleged breach of contract and sought monetary relief, injunctive relief, and attorney’s fees. Thereafter, it filed a traditional motion for summary judgment, to which the appellants responded. The appellants appealed the trial court’s declaratory summary judgment and award of attorney’s fees rendered in favor of the appellee company. The appellate Court observed that because the amendments contravened the statutory management authority granted to the appellee’s board of directors in accordance with Tex. Bus. Org. Code Ann. Section 22.202(a), they were not authorized by law and, therefore, illegal. Because they were illegal, those amendments were void. Further, even assuming arguendo that a motion to abate filed more than three months after an answer was timely, the appellants’ motion to abate made no reference to the notice provisions of Section 209.006(a). Therefore, the Court concluded that the appellants waived the notice requirement of Section 209.006(a), if applicable. Next, the allegations underlying the appellee’s declaratory judgment action were not part and parcel to its breach of contract cause of action against the appellants; therefore, its recovery of attorney’s fees was not impermissible on the basis. Finally, because the Court's disposition of the case substantially affected the trial court’s judgment, a partial remand was warranted so that the trial court could address whether the reasonable and necessary attorney’s fees it awarded to the appellee still were equitable and just in accordance with the judgment rendered by the Court. Accordingly, the judgment was reversed and rendered in part, remanded in part, and affirmed in part.
Because appellant had at least two prior felonies, and the possession of at least two separate firearms in two separate locations, each felon-in-possession conviction was wholly independent of the other
Dorsey v. Texas
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 12, 2019
01-18-00520-CR
Peter Kelly
Published
A grand jury indicted the appellant for possession of a controlled substance, methadone, with intent to deliver and two violations of the statute barring felons from possessing firearms. After the trial court denied the appellant's motion to suppress certain evidence, the appellant pleaded guilty to all three charges. The appellant contended that the trial court erred in denying his motion to suppress the evidence law enforcement officers found in the search of his home. He argues that the victim's identification of him as the shooter was the sole basis for probable cause underlying the search warrant and that the identification procedure used by the officers was impermissibly suggestive in violation of his right to due process. The appellate Court found that viewing the evidence in the light most favorable to the trial court’s decision and deferring to its implied findings of historical fact, the Court held that the trial court did not err in denying the appellant's motion to suppress the evidence. Further, because the appellant's particular circumstances included at least two separate prior felonies, and the possession of at least two separate firearms in two separate locations, each felon-in-possession conviction was wholly independent of the other. Thus, double jeopardy could not attach. Accordingly, the Court affirmed the trial court’s judgments of conviction.
Because the corporation had the contractual right to terminate the purchase and sales agreement based upon breaches by appellants, any conduct by appellees to induce the termination did not constitute tortious interference
Lance Duncan & Mark IV Energy Holdings, LLC v. Hindy
Banking and Finance, Business, Contracts, Torts
Texas 11th Court of Appeals
December 12, 2019
11-17-00283-CV
John M. Bailey
Published
The following appeal arose from a business dispute concerning a large financial investment in oil and gas properties. The case involved multiple written agreements executed by the parties as well as litigation between the parties in multiple counties over a period of time. The trial court granted summary judgment in favor of the appellees on all of the appellants' claims. The appellants filed the suit asserting numerous causes of action. The appellate Court examined the second element of the appellants' tortious interference claim to determine whether the appellees conclusively established that the appellees did not willfully and intentionally interfere with the purchase and sale agreement between the parties. The Court found that even if it accepted the appellants' alleged inference that the appellees induced the corporation individual appellant's corporate entity to terminate the purchase and sale agreement (PSA), the appellants would not have a cause of action against the appellees for tortious interference with an existing contract if the appellees merely induced the corporation into doing what it had a contractual right to do. The corporation sent a written notification to the appellant company that it was terminating the purchase and sale agreement (PSA) pursuant to Paragraphs 15.1(a)(III) and 9.2 of the PSA. Because the corporation had the contractual right to terminate the PSA based upon the breaches, any conduct by the appellees to induce the termination did not constitute tortious interference with an existing contract. Finally, the trial court did not err when it granted the appellees traditional motion for summary judgment as to the appellants tortious-interference-with-a-contract claim. Accordingly, the trial court's judgment was affirmed.
Because the full record was not filed in the first case, the Court did not receive the full information it needed to grant appellant's requests for relief on limitations, the discovery rule, and fraudulent concealment
Cody Tex., L.P. v. BPL Exploration, Ltd.
Corporations, Procedure, Torts
Texas 4th Court of Appeals
December 11, 2019
04-17-00810-CV
Beth Watkins
Published
The appellant filed a bill of review petition in the trial court. In that petition, the appellant argued its failure to timely file a notice of appeal after the trial on the merits was the result of official mistake unmixed with its own negligence. It also alleged it had three meritorious grounds to appeal the trial court’s May 31, 2013, final judgment. The appellant appealed a November 15, 2017, final judgment in favor of the appellee company. The trial court signed that judgment on remand after the Court reversed the trial court’s denial of the appellant’s petition for bill of review. The appellate Court found that because the full record was not filed in the first case, the Court did not receive the full information it needed to grant appellant's requests for relief on limitations, the discovery rule, and fraudulent concealment. The Court observed that it could not agree with the appellant’s assertion that its “matter of law” argument relieved it of its duty to present the entire record of the trial in the prior case. The Court noted that its holding was a recognition that the trial court correctly denied appellant's petition for bill of review, and that the subsequent proceedings, including the trial court's post-remand final judgment, never should have occurred. Thus, because the Court had overruled the opinion that led to proceedings, the Court also held that the trial court’s November 15, 2017, final judgment including the portion setting aside the trial court’s previous May 31, 2013, final judgment had to be vacated. Under the extraordinary circumstances of the case, the Court concluded that the result was acceptable in equity. Accordingly, the Court vacated the trial court’s November 15, 2017, final judgment and rendered judgment denying the appellant’s petition for bill of review.