The court reversed the judgment against Harris County, materially reduced the damages recoverable from the Deputy appellants, reversed the award of attorney’s fees, and the court remanded the case for reconsideration of attorney’s fees to be awarded against the Deputy appellants.
Harris Cnty., Texas v. Coats
Constitution, Damages, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
February 06, 2020
14-17-00732-CV
Kevin Jewell
Published
In the instant civil rights action, a Texas county and a deputy constable appealed a judgment following a jury verdict awarding wrongful death and survival damages. The appellees asserted a section 1983 claim against Harris County and the Harris County Constable Precinct Four Deputy alleging that the defendants unconstitutional conduct caused the death of the appellees son. The appellees raised a cross-issue challenging the trial court’s decision to reduce their recovery of survival damages by 20% because the jury was not asked to apportion responsibility for the appellee son’s pain and anguish. The appellate court found that the appellees presented legally and factually sufficient evidence that the deputy used excessive force, and that he was not entitled to qualified immunity. The appellees failed to present legally sufficient evidence that the Deputy’s constitutional violations caused the appellee son’s death, so the court reversed that portion of the judgment awarding the appellees $10,000,000 in wrongful death damages. Because the deputy had not challenged the survival damages, and because the court had sustained the appellees cross-issue regarding those damages, the court modified the judgment to award appellee, in her capacity as personal representative of the appellees son’s estate, $1,000,000 in damages from the deputy appellants for the appellee son’s pain and mental anguish, plus applicable pre- and post-judgment interest. Legally and factually sufficient evidence supported the jury’s award of $5,000 in exemplary damages against tge Deputy appellants, and the court affirmed that portion of the judgment. The court reversed the judgment against Harris County, materially reduced the damages recoverable from the Deputy appellants, reversed the award of attorney’s fees, and the court remanded the case for reconsideration of attorney’s fees to be awarded against the Deputy appellants.
The Court’s recitation of the parties’ allegations should not be taken in any way to suggest that the annulment decree was void. That was not for the court to decide. The trial court did not abuse its discretion in denying the appellant’s motion to recuse. Affirmed.
Caballero v. Vig
Appellate: Civil, Family, Procedure
Texas 8th Court of Appeals
February 05, 2020
08-18-00033-CV
Jeff Alley
Published
The instant was an appeal from a final divorce decree. The issue before the Texas Court of Appeals, however, was not the substance of the decree, but instead whether the judge who decided it should have been recused. Specifically, the appellant wife challenged the denial of her post-trial motion to recuse the El Paso District Court Judge who presided over her divorce from the appellee husband. The appellate court found that although the appellee had addressed the issue of whether the appellant had standing to attack the validity of the Judge’s annulment decree, the appellant had not responded by asserting that she had any pre-existing or direct interest in the judge’s annulment proceedings that would give her standing to do so. The court did not find any evidence in the record to support a finding that the appellant had any such interest. Thus, the appellant lacked standing to collaterally attack the validity of Judge’s annulment decree, and that the Court thus lacked jurisdiction to consider the merits of her attack on the decree. Having agreed with the appellee on the standing question, the court needed not address the merits of the claim that the annulment decree was void. The Court’s recitation of the parties’ allegations should not be taken in any way to suggest that the annulment decree was void. That was not for the court to decide. The trial court did not abuse its discretion in denying the appellant’s motion to recuse. Accordingly, the court affirmed the trial court’s judgment.
After examining the record as a whole, the court concluded that any error in the trial court’s admission of the Officer’s testimony of the complainant’s answers during the hospital interview did not have a substantial and injurious effect or influence in determining the jury’s verdict. Affirmed.
Sanchez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
February 06, 2020
14-18-00268-CR
Kem Thompson Frost
Published
The appellant challenged from his conviction for a felony assault offense involving strangulation. The trial court assessed the appellant’s sentence at 25 years’ incarceration. The appellate court noted that even without the presumed hearsay statements from the complainant, the jury had ample evidence to conclude that the appellant strangled the complainant. The court found reasonable assurance that any error in admitting the hearsay did not influence the jury's verdict, or had but a slight effect. The trial court did not abuse its discretion in overruling the appellant's objection and permitting the testimony. After examining the record as a whole, the court concluded that any error in the trial court’s admission of the Officer’s testimony of the complainant’s answers during the hospital interview did not have a substantial and injurious effect or influence in determining the jury’s verdict. Accordingly, the judgment was modified as affirmed.
Because the deceased’s will was neither susceptible to more than one reasonable interpretation nor uncertain, the court rejected the appellants' alternative position that the deceased’s will was ambiguous. The court affirmed the probate court's judgment.
In re Estate of Hunt
Real Property, Wills/Trusts/Probate
Texas 1st Court of Appeals
February 06, 2020
01-19-00216-CV
Gordon Goodman
Published
The appellants challenged from a summary judgment in which the probate court interpreted the deceased’s will as giving a large share of her personal property to her life partner, the appellee. The appellate court observed that the deceased’s bequest of “all of my remaining household and personal property” was unambiguous—it conveyed to the appellee all of the deceased’s personal property other than the family-related items that she gave to the appellant. Contrary to the appellants' contentions, the other provisions of the deceased's will would do not show a different intent. Because the deceased’s will was neither susceptible to more than one reasonable interpretation nor uncertain, the court rejected the appellants' alternative position that the deceased’s will was ambiguous. Accordingly, the court affirmed the probate court’s judgment.
With respect to any applicable settlement credit from the appellee’s daughter's settlement with the hospital pursuant to the common law’s one-satisfaction rule, the court concluded a benefits analysis should be conducted pursuant to Utts v. Short. Reversed in part and remanded.
Virlar v. Puente
Courts, Employment, Evidence, Litigation: Personal Injury, Torts
Texas 4th Court of Appeals
February 05, 2020
04-18-00118-CV
Liza A. Rodriguez
Published
The instant appeal arose from a medical malpractice action filed by the appellee against the appellant doctor and the appellant company. A jury found the appellant doctor liable for the appellee’s injuries, and judgment was rendered in favor of the appellee and against the appellant doctor and his employer, the appellant company. The appellate court held that the trial court did not err in excluding the expert testimony of the doctor, or in admitting evidence of the appellant doctor’s loss of privileges and alleged extraneous bad acts. The court held the evidence was legally and factually sufficient to support the jury’s award of loss of future earning capacity in the amount of $880,429.00, but not in the full amount awarded ($888,429.00). The court therefore suggested a remittitur decreasing the award for loss of future earning capacity by $8,000.00. The court affirmed the judgment in part conditioned on a remittitur of damages in the amount of $8,000.00. The court did not disturb any other damages awarded by the jury. The court found no error by the trial court in failing to award periodic payments for future loss of earning capacity under section 74.503(b). However, because the trial court did not order any part of the amount awarded for future medical care expenses to be paid in periodic payments, it abused its discretion under section 74.503(a). With respect to any applicable settlement credit from the appellee’s daughter's settlement with the hospital pursuant to the common law’s one-satisfaction rule, the court concluded a benefits analysis should be conducted pursuant to Utts v. Short, 81 S.W.3d 822 (Tex. 2002). Therefore, the court reversed the judgment in part and remanded the cause.
The relator asserted the trial court abused its discretion by failing to include a provision in its order requiring the RPI to repay the relator if his appeal was successful. The relator cited no authority for the argument. Petition for writ of mandamus denied.
In Re Corey Michael Mansour
Family, Juvenile, Procedure
Texas 4th Court of Appeals
February 05, 2020
04-19-00899-CV
Patricia O. Alvarez
Published
The trial court awarded the real party in interest (RPI) attorney’s fees pending the relator’s appeal of an underlying final judgment in a suit to modify the parent-child relationship. The relator asserted the trial court abused its discretion by doing so, because the issue of whether the RPI was entitled to fees pending appeal had already been decided and was now barred by res judicata, or alternatively, the trial court did not make the fees contingent on relator’s unsuccessful appeal, and the trial court did not order the fees reimbursed if relator’s appeal was successful. The appellate court found that the relator did not challenge whether the appellate fees awarded to the RPI were necessary to preserve and protect the safety and welfare of his children during the pendency of his appeal. Because an unconditional award provided the defending party with the financial resources to file an appellee’s brief without subjecting the children to any financial hardship, the court concluded the relator had not established the trial court abused its discretion by awarding the RPI immediate unconditional attorney’s fees pending relator’s appeal. The relator asserted the trial court abused its discretion by failing to include a provision in its order requiring the RPI to repay the relator if his appeal was successful. The relator cited to no authority for the argument. Accordingly, the court denied relator’s petition for writ of mandamus.
The trial court’s division of community assets was not so grossly disproportionate as to remove it from the realm of a just and right division. Accordingly the judgment was affirmed.
In re the Marriage of Collinsworth
Family, Juvenile, Procedure
Texas 6th Court of Appeals
February 05, 2020
06-19-00083-CV
Scott E. Stevens
Published
The trial court granted the appellee’s petition for divorce from the appellant and awarded her sole managing conservatorship of their children. On appeal, the appellant argued that the trial court erred in awarding the appellee the marital home after finding it to be community property, and in making an unequal disposition of the parties’ community assets, i.e., their retirement accounts and tax refund. The apellate court found that the appellee proved that the home was purchased several years before the marriage. The trial court properly concluded that the appellee sufficiently traced the funds used to acquire the home to her separate property. While the appellant’s name was included on the mortgage and settlement statement as a “borrower,” there was no deed introduced into evidence showing that the property was in his name. The appellant made no claim for reimbursement. The trial court found that the appellant contributed no funds to the acquisition of the separate property home. The trial court properly considered the appellant’s drug use and fault in the breakup of the marriage in awarding the appellee a disproportionate share of community assets. The trial court heard evidence that the appellant was a nurse, considered the cost of repairing the damage the appellant caused when he vandalized the family home, and the appellee’s continued payment of the cost of his health insurance throughout the separation. For those reasons, the appellant’s withdrawal of $15,000.00 from his retirement account, and the Rule 11 Agreement, the trial court awarded each party their own retirement accounts. The trial court’s division of community assets was not so grossly disproportionate as to remove it from the realm of a just and right division. Accordingly the judgment was affirmed.
Factually sufficient evidence supported the jury’s verdict. The trial court did not err in overruling the appellant’s evidentiary objections, and the appellant was not harmed by the denial of his proposed jury instruction. Therefore, the Court of Appeals affirmed the trial court’s judgment.
In re Commitment of Renshaw
Criminal, Evidence, Gov't/Administrative, Procedure
Texas 6th Court of Appeals
February 05, 2020
06-19-00069-CV
Josh Morriss, III
Published
A Wood County jury found, beyond a reasonable doubt, that the appellant was a sexually violent predator. The trial court ordered the appellant committed to supervision and treatment pursuant to Chapter 841 of the Texas Health and Safety Code, titled “Civil Commitment of Sexually Violent Predators.” The appellate court concluded that a rational jury could have found beyond a reasonable doubt that the appellant was a repeat sexually violent offender who suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence. The court did not find that the jury’s verdict reflected a risk of injustice that would compel ordering a new trial, and factually sufficient evidence supported the jury’s verdict that the appellant was a sexually violent predator. The court could not say that the trial court abused its discretion in refusing to find that the probative value of that evidence was substantially outweighed by the danger of unfair prejudice. The trial court could have reasonably concluded that the facts and details related to the appellant’s unadjudicated offenses would be helpful to the jury in weighing his testimony and the experts’ testimony, and in explaining the basis for the experts’ opinions that the appellant suffered from a behavioral abnormality. The trial court did not abuse its discretion by admitting evidence of uncharged offenses. Assuming without deciding that the trial court’s denial of the proposed instruction was erroneous, it was harmless under Rule 44.1 of the Texas Rules of Appellate Procedure. The trial court’s charge instructed the jury that it was required to have a unanimous verdict, and the jury certified on the record that its verdict was unanimous. Accordingly, the court affirmed.
The judge had jurisdiction to determine the counterclaim, as well as the ministerial duty to fix the amount of security to protect the Real Parties in Interest during the proceedings. The judge abused his discretion when he failed to do so. Accordingly, the court denied the relators' petition.
In re Lone Star NGL Pipeline LP
Contracts, Damages, Procedure, Real Property, Torts
Texas 11th Court of Appeals
February 03, 2020
11-20-00010-CV
John M. Bailey
Published
The real party in interest granted the relator an easement on certain real property to construct a pipeline for the transportation of natural gas and natural gas liquids only. Payments for the easement were made to the RPI and to the deceased. The pipeline that was constructed on the easement was part of a pipeline that extended for fifty miles. The relators had the same corporate parent and the relator conveyed the entire pipeline to the second relator co. The second relator intended to use the pipeline to transfer crude oil rather than natural gas and natural gas liquids. The RPIs sued the relator for breach of contract and the relators for trespass, fraudulent inducement, common law and statutory fraud, conspiracy, unjust enrichment, and quantum meruit. The Judge denied the relators’ motion to set security and to abate the injunctive proceedings. The appellate court found that the relators had failed to show that they were entitled to the requested relief. The court agreed with the Real Parties in Interest that there was little authority that addressed whether Chapter 21 required a condemnor to follow the Standard Procedure before it could file an Alternative Pleading under Section 21.017. Because the second relator filed a counterclaim that fell under Section 21.003, the relators were not required to complete the Standard Procedure for condemnation before they requested that the judge set security. The judge had jurisdiction to determine the counterclaim, and a ministerial duty to fix the amount of security to protect the Real Parties in Interest. The judge abused his discretion when he failed to do so. Accordingly, the court denied the relators’ petition for writ of mandamus.
The trial court’s summary judgment for the plaintiff on the breach of contract claim was proper.
Copano Energy, LLC v. Bujnoch
Appellate: Civil, Contracts, Procedure, Real Property, Torts, Wills/Trusts/Probate
The Supreme Court of Texas
January 31, 2020
18-0044
James D Blacklock
Published
The plaintiffs appealed the judgment of the trial court which granted the defendants’ motion for summary judgment in a suit, claiming the various e-mails, taken together, amounted to an enforceable written contract satisfying the statute of frauds. On appeal, the defendants argued that the statute of frauds barred the claims. The Supreme Court noted that the e-mails containing many of the alleged deal’s principal terms were part of a forward-looking request to negotiate a contract. The Supreme Court found that neither those e-mails nor any other writing evidenced the defendant’s agreement to the particular terms stated in the e-mails. The Supreme Court further determined that as a result, there was no written memorandum which was complete within itself in every material detail, as required by the statute of frauds. The Supreme Court concluded that the trial court’s summary judgment for the plaintiff on the breach of contract claim was proper. Accordingly, the judgment of the trial court was reversed.
Under Texas Rule of Civil Procedure 279, the petitioner was required either to obtain a jury finding on waiver or to prove it conclusively.
Energy Transfer Partners, L.P. v. Enter. Products Partners, L.P.
Appellate: Civil, Business, Contracts, Corporations, Damages, Procedure, Torts
The Supreme Court of Texas
January 31, 2020
17-0862
Nathan L. Hecht
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court’s judgment and rendered it for the respondent. The Supreme Court noted that the parties could contract for conditions precedent to preclude the unintentional formation of a partnership under Chapter 152 and that, as a matter of law, they did so. The Supreme Court found that under Texas Rule of Civil Procedure 279, the petitioner was required either to obtain a jury finding on waiver or to prove it conclusively. The Supreme Court further determined that the only record evidence that the petitioner pointed to the parties held themselves out as partners and worked closely together on the project was not relevant to the issue of waiver of definitive, board-approved agreements. The Supreme Court concluded that there was no evidence that the respondent waived the conditions. Accordingly, the judgment of the appellate court was affirmed.
The Supreme Court concluded that the permissibility of such easements, at least under those facts, was an issue best left to the legislature and local governments.
Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n
Appellate: Civil, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
January 31, 2020
17-0736
Jane N. Bland
Published
The petitioner appealed the judgment of the trial court which enforced the respondent’s easement, ruling that the easement burdened the petitioner's property. On appeal, the petitioner asserted waiver and estoppel affirmative defenses, asserting that the restrictive easements that limited private access were void against public policy. The Supreme Court noted that the respondent had standing to sue to enforce the easement. The Supreme Court found that the evidence supported the trial court’s rejection of the petitioner's affirmative defenses. The Supreme Court concluded that the permissibility of such easements, at least under those facts, was an issue best left to the legislature and local governments. Accordingly, the judgment of the trial court was affirmed.
The plaintiff did not contend he could demonstrate the defendant violated section 143.102’s liability standard.
Pruski v. Garcia
Agricultural, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
January 31, 2020
18-0953
James D Blacklock
Published
The defendant appealed the judgment of the trial court which granted summary judgment for the plaintiff on all claims. On appeal, the defendant challenged the appellate court’s affirmation of summary judgment on all claims related to the petitioner’s alleged violation of section 143.102, the highway statute. The Supreme Court noted that the appellate court applied section 143.074, finding that the plaintiff could recover against the defendant for an accident on a state highway without showing the livestock owner knowingly permitted the bull to roam at large. The Supreme Court found that Section 143.102 required a “knowing” mental state as a prerequisite to livestock-owner liability for highway accidents. The Supreme Court concluded that the plaintiff did not contend he could demonstrate the defendant violated section 143.102’s liability standard. Accordingly, the judgment of the trial court was reversed.
The trial court did not abuse its discretion in transferring the case to the parties’ agreed venue.
In re Fox River Real Estate Holdings, Inc.
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
January 31, 2020
18-0913
Eva M. Guzman
Published
The relators appealed the judgment of the trial court which granted the respondents’ motion without substantive comment and transferred venue. On appeal, the relators filed a petition for mandamus relief. The Supreme Court noted that Section 15.020 of the Texas Civil Practice and Remedies Code required enforcement of the parties’ venue-selection agreement not because it was a super mandatory venue provision that superseded Section 65.023(a). The Supreme Court found that Section 65.023(a) did not apply in suits like that where injunctive relief was not the primary and principal relief requested. The Supreme Court concluded that the trial court did not abuse its discretion in transferring the case to the parties’ agreed venue. Accordingly, the court denied the relators’ petition for mandamus relief.
The Medicaid billing claim should have been dismissed, but that the federal claims were properly before the trial court, and therefore, the trial court’s order on the plea to the jurisdiction was correct.
Permiacare v. L.R.H.
Appellate: Civil, Contracts, Gov't/Administrative, Health Care, Procedure
Texas 8th Court of Appeals
January 31, 2020
08-19-00144-CV
Jeff Alley
Published
The State appealed the judgment of the trial court in the plaintiff’s suit claiming that the State failed to follow several mandated statutory and administrative duties, failed to provide services for which the contracting entity had billed Medicaid, and the contracting entity acted in a discriminatory manner in providing services in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The appellate court noted that several of the plaintiff’s ultra vires claims lacked a properly pleaded factual foundation. The appellate court found that the plaintiff was entitled to an opportunity to re-plead, in the appeal from the denial of the entity’s and the official’s plea to the jurisdiction. The appellate court concluded that the Medicaid billing claim should have been dismissed, but that the federal claims were properly before the trial court, and therefore, the trial court’s order on the plea to the jurisdiction was correct. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.
A pension reform that abandoned a more flexible distribution scheme in favor of a more predictable scheme did not violate the constitutional prohibition.
Degan v. The Bd. of Trustees of the Dallas Police & Fire Pension Sys.
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
The Supreme Court of Texas
January 31, 2020
19-0234
John P. Devine
Published
The appellants appealed the judgment of the trial court, challenging as unconstitutional the statutory amendments, which eliminated their ability to request lump-sum distributions from their respective Deferred Retirement Option Plan (DROP) accounts. On appeal, the appellants contended that the funds in DROP were accrued service retirement benefits and that the change to how those funds may be withdrawn effectively reduced or impaired the accrued benefit in violation of the Texas Constitution, article XVI, section 66(d). The Supreme Court noted that while Section 66 modified Texas’s former “gratuity” approach to pension benefits for non-statewide plans by protecting some benefits, Section 66 did not prohibit prospective pension reforms. The Supreme Court found that it did prohibit the reduction or impairment of an accrued service retirement benefit. The Supreme Court concluded that a pension reform that abandoned a more flexible distribution scheme in favor of a more predictable scheme did not violate the constitutional prohibition. Accordingly, the court answered both certified questions negatively.
The defendant failed to demonstrate by a preponderance of the evidence that the plaintiff’s suit to collect attorney’s fees was based on, related to, or in response to the defendant’s exercise of rights protected by the TCPA.
Wendt v. Weinman & Associates, P.C.
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Torts
Texas 3rd Court of Appeals
January 31, 2020
03-19-00036-CV
Gisela D. Triana
Published
The defendant appealed the judgment of the trial court which denied his motion to dismiss the plaintiff’s suit to recover outstanding attorney’s fees, pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the defendant asserted that the trial court erred in denying his motion to dismiss. The appellate court noted that every communication made by a client to his attorney was not a matter of public concern. The appellate court found that without knowing the nature of the communications that served as the basis for the plaintiff’s motion, the defendant failed to carry his burden of showing by a preponderance of the evidence that the plaintiff’s petition was based on, related to, or in response to a communication made in connection with a matter of public concern. The appellate court concluded that the defendant failed to demonstrate by a preponderance of the evidence that the plaintiff’s suit to collect attorney’s fees was based on, related to, or in response to the defendant’s exercise of rights protected by the TCPA. Accordingly, the judgment of the trial court was affirmed.
The relator had not shown that the only decision the trial court could have made was that the engineer was not the relator’s employee or otherwise under relator’s control, and the trial court did abuse its discretion in compelling the deposition of an engineer without a subpoena issued.
In re Total Petrochemicals & Refining USA, Inc., Relator
Constitution, Corporations, Employment, Evidence, Procedure
Texas 14th Court of Appeals
January 30, 2020
14-19-00585-CV
Charles Spain
Published
The relator corporation filed a petition for writ of mandamus in the court. In the petition, the relator corporation asked the court to compel the Honorable presiding judge of the 215th District Court of Harris County to vacate her June 28, 2019 order to the extent that it compelled the deposition of a non party witness without a subpoena having been served on the witness. The appellate court found that by its order compelling the deposition of an engineer without the defendants serving a subpoena on the engineer, the trial court made an implied finding that an engineer was an employee of the relator, or otherwise subject to the relator’s control. The relator had the burden to bring a record establishing that it was entitled to mandamus relief. The relator had not presented a record to show that evidence conclusively established that the engineer was not its employee, that it otherwise had control over an engineer, nor any evidence supported the trial court’s finding that an engineer was relator’s employee or that he was otherwise under relator’s control. The relator had not shown that the only decision the trial court could have made was that the engineer was not the relator’s employee or otherwise under relator’s control, and the trial court did abuse its discretion in compelling the deposition of an engineer without a subpoena having been issued. The relator had not shown that it was entitled to mandamus relief. Thus, the court denied the relator's petition for writ of mandamus.
The trial court abused its discretion because it did not have sufficient information concerning the appellant’s net resources to exercise its discretion. The judgment was affirmed, reversed, and remanded.
In re L.A.-K.
Family, Juvenile, Procedure
Texas 8th Court of Appeals
January 29, 2020
08-18-00066-CV
Gina M. Palafox
Published
The instant appeal was from an order in a suit to modify the parent-child relationship. The appellant father asserted that the trial court abused its discretion by designating the appellee mother as the person with the exclusive right to designate the primary residence of the child, and by ordering the appellant to pay child support and medical child support. The appellant also asserted that the trial court committed procedural errors both before and after entry of the final order from which he appealed. The appellate court observed that the trial court did not render judgment on July 7, 2017. For that reason, Section 156.102 of the Texas Family Code did not apply. In the context of the temporary restraining order, the trial court granted the appellant the relief he requested by quashing the order. As in the case of an expired temporary restraining order, the issue was moot. The trial court abused its discretion because it did not have sufficient information concerning the appellant’s net resources to exercise its discretion and, insofar as it was entitled to exercise its discretion based on the statutory wage and salary presumption, it erred in its application of that discretion. The court held that the trial court abused its discretion by ordering payment of cash medical support. The trial court’s decision to name the appellee as the person with the exclusive right to designate the child’s primary residence was supported by evidence of a substantive and probative character. Nothing in the record supported the appellant’s assertion that the trial court decided not to impose a geographic restriction because it was influenced by, or gave any consideration to, his race, ethnicity, country of origin, or fluency with Spanish. Accordingly, the judgment was affirmed, reversed, and remanded.
The trial court did not abuse its discretion in awarding attorney’s fees when the appellant filed suit in an attempt to enforce an illegal contract, and then attempted to prolong the litigation by filing a sham affidavit. Appellant did not have standing to assert derivative claims. Affirmed.
Winner v. Jarrah
Appellate: Civil, Contracts, Procedure, Torts
Texas 1st Court of Appeals
January 30, 2020
01-19-00115-CV
Gordon Goodman
Published
The instant was an appeal from the trial court’s summary judgment dismissing claims asserted by the appellant individually and derivatively on behalf of the company (co.). The co. was an entity formed by the appellee to own and operate a bar in Houston, Texas. The suit arose from the appellee’s alleged breach of a stock purchase agreement between he and the appellant. The appellant judicially admitted that, under the agreement, the appellee promised to transfer 10% of the co.’s stock to the appellant in exchange for the appellant’s promise to allow the co. to use his company’s liquor license. However, Texas law prohibited the holder of a liquor license from allowing another person to use the license. The trial court ruled that the agreement was void and unenforceable due to illegal consideration, and accordingly dismissed the appellant’s claims. The appellate court found that because the TEX. ALCO. BEV. CODE (TABC) prohibited the holder of liquor license from allowing another person to use the license, TABC Sections 11.05, 109.53, the appellant’s statements further proved that the Stock Purchase Agreement was supported by illegal consideration. Because the illegal portion of the Stock Purchase Agreement was part of the original consideration the appellant paid for the stock, it was not severable from the remainder of the agreement. Given the appellant’s consistent and repeated statement that he promised to allow the co. to use the second co.’s liquor license, and the appellant’s disavowal of that statement immediately after the appellee observed that the promise violated the TABC, the court could not say that the trial court abused its discretion in disregarding the appellant’s amended affidavit under the sham affidavit rule. The Stock Purchase Agreement was void. The appellant did not have standing to assert derivative claims on behalf of the co., as he never became a co. shareholder. The court affirmed.
The trial court’s error in admitting the testimony of multiple outcry witnesses did not have a substantial and injurious effect on the jury’s verdict. Accordingly, the judgment was affirmed.
Gibson v. State
Criminal, Evidence, Juvenile, Procedure
Texas 3rd Court of Appeals
January 29, 2020
03-18-00655-CR
Gisela D. Triana
Published
A jury convicted the appellant of the offense of aggravated sexual assault of a child. The trial court found that the appellant was a habitual offender and sentenced him to life imprisonment without parole. The appellant argued that the trial court abused its discretion in allowing multiple individuals to testify as outcry witnesses to the child’s statements. The State emphasized the child’s testimony in its closing argument. Also admitted into evidence during the child’s testimony was a drawing made by the child showing a male stick figure, which the child identified as the appellant, standing next to the child with what appeared to be an erect penis. A copy of the recording of the child’s forensic interview was admitted into evidence without objection. Thus, the jury heard for itself the same statements to which Wold had testified. Other evidence considered by the jury included a jail call between the appellant and his wife in which the appellant denied that he was “violent” with the child or that he “forced” her to do anything, which the jury could have reasonably construed as an admission that the appellant had done something with the child, but that he did not view it as non-consensual. The court had fair assurance that the trial court’s error in admitting the testimony of multiple outcry witnesses did not have a substantial and injurious effect on the jury’s verdict. Accordingly, the judgment was affirmed.
The trial court announced that it appointed the attorney because the husband's sister reported concerns over the husband’s health and safety during a time that the individual, his guardian, was out of the country. The court modified the trial court's judgment and affirmed.
In the Guardianship of Alford
Appellate: Civil, Family, Procedure
Texas 6th Court of Appeals
January 29, 2020
06-19-00060-CV
Ralph Burgess
Published
The individual was appointed guardian of the person and estate of her husband, an incapacitated person. The trial court appointed the attorney ad litem and requested that he check on the husband’s welfare. The individual challenged the order authorizing payment of the attorney’s fees. The individual filed an objection to the attorney’s appointment on behalf of husband, who refused to speak with the attorney ad litem appointee as he felt he was disrespectful to him in the past and did not communicate well. The appellate court found that the trial court’s docket listed the individual as the applicant in the case. The trial court’s order unambiguously required her to pay the attorney’s fee. The trial court announced that it appointed the attorney because the husband's sister reported concerns over the husband’s health and safety during a time that the individual, his guardian, was out of the country. The trial court also explained that it believed the individual had animosity toward the attorney, purposefully violated the trial court’s order by failing to allow the attorney to see the husband, and increased the attorney’s legal fees by her actions. The attorney’s itemized billing showed that while his paralegal’s work in revising and preparing discovery responses constituted work traditionally done by an attorney, answering and placing telephone calls and uploading documents did not. The charge of $68.00 for 0.8 hours spent by the attorney’s paralegal performing support services was not recoverable as a fee. Finally, the bill for professional services totaled $3,119.00, and the invoice showed that $6.40 was spent in copying expenses, for a total of $3,125.40. The court modified the trial court’s judgment by deleting $68.00 from the attorney fee award, leaving an award in the amount of $3,057.40. Accordingly, the court modified the trial court’s judgment and affirmed the trial court’s judgment.
The appellant failed to meet its burden of raising a fact issue on any of elements of the appellee’s affirmative defense. Because the appellee conclusively established his affirmative defense of no individual liability, he was entitled to summary judgment in his favor. Affirmed.
Valley Forge Motor Co. v. Sifuentes
Appellate: Civil, Contracts, Corporations, Damages, Procedure, Torts
Texas 8th Court of Appeals
January 28, 2020
08-17-00257-CV
Gina M. Palafox
Published
The appellant challenged the trial court’s finding that the appellee conclusively established an affirmative defense of no individual liability pursuant to Section 21.223 of the Texas Business Organizations Code. The appellate court found that given the appellee’s proof of transacting all business on behalf of the corporate entity, he met his evidentiary burden on summary judgment to establish his affirmative defense of no individual liability. Thus, the appellant’s evidence, at most, could arguably be relevant to the third element required by Section 21.223(a), which addressed whether the liability at issue arose from any contractual obligation of the corporation, or any matter relating to or arising from the obligation. The evidence put forth by the appellant failed to raise a fact issue on whether the appellee could properly rely on the statutory protection afforded by Section 21.223. None of the evidence presented by the appellant was relevant to defeating any of the elements addressing whether the co. was a corporation, whether the appellee was properly affiliated with the corporation, whether the appellant was an obligee of the corporation, or whether the appellee was an alter ego of the corporation. Thus, the appellant failed to meet its burden of raising a fact issue on any of the elements of the appellee’s affirmative defense. Because the appellee conclusively established his affirmative defense of no individual liability, he was entitled to summary judgment in his favor. Thus, the trial court’s order granting the appellee’s motion for summary judgment on his affirmative defense was not error. Accordingly, the trial court’s judgment was affirmed.