Appellant was not entitled to credit for time served since he was not in custody while his appeal was pending
Ex parte Alvarez
Criminal,Evidence,Procedure
Texas 3rd Court of Appeals
March 07, 2019
03-18-00775-CR
Gisela D. Triana
Published
  Appellant was convicted of driving while intoxicated and sentenced to 120 days’ confinement in county jail. He appealed his conviction and was never in custody while his appeal was pending. After his conviction was affirmed on appeal, he was ordered to begin serving his sentence. The appellant subsequently filed an application for writ of habeas corpus, asserting that he should have been in custody while his appeal was pending and thus entitled to credit for time served. The trial court denied relief. The appellate court observed that prior precedent differed in many respects from the case, including that the appellant was never in custody, he was not out on an appeal bond and thus could not be credited with complying with any bond conditions, and the State’s failure to take the appellant into custody occurred while his appeal was pending rather than after his conviction had become final. Under those circumstances, the appellant was not entitled to the same relief that the Court of Criminal Appeals granted to the applicants in the other cited cases. Because the appellant was never in custody while his appeal was pending, he should not be entitled to credit for time served. The appellant should not be allowed to avoid his sentence simply because a deputy clerk erroneously recalled the trial court’s commitment order. Accordingly, the court affirmed the trial court’s order.


The appellant’s conviction of first-degree injury to a child-serious bodily injury was upheld because the cumulative force of the evidence, both direct and circumstantial, was sufficient to support the jury’s finding that the appellant assumed care, custody, or control of the deceased
Proo v. State
Criminal,Evidence,Procedure
Texas 4th Court of Appeals
March 06, 2019
04-17-00645-CR
Rebeca C. Martinez
Published
The State indicted the appellant with one count of first-degree injury to a child-serious bodily injury, alleging two alternate manner and means: by failing to provide adequate nourishment (Paragraph A), or by failing to obtain and provide proper medical care (Paragraph B). The appellant pleaded not guilty, proceeded to a jury trial, and was convicted. The jury recommended a sentence of 88 years in prison, which was imposed by the trial court along with a $10,000 fine. The appellate court observed that the cumulative force of the evidence, both direct and circumstantial, was sufficient to support the jury’s finding that the appellant assumed care, custody, or control of the deceased under TEX. PENAL CODE ANN. section 22.04(d). Further, there was sufficient evidence in the record from which the jury could have reasonably inferred that the appellant either intentionally or knowingly caused serious bodily injury to the deceased by failing to provide him with sufficient nutrition or medical care. In view of the probative value of the landlords’ testimony on the disputed fact issue of whether the appellant lived or stayed at the house with the deceased, the trial court did not abuse its discretion by admitting the evidence. Furthermore, the attorney’s testimony was not admissible under Rule 702, and the trial court did not abuse its discretion in excluding the evidence. Accordingly, the trial court's judgment was affirmed.


Trial court abused its discretion when it scheduled a hearing on appellee’s motion for partial summary judgment after hearing & ruling on appellant’s amended motion to transfer venue, thus, mandamus was an appropriate avenue in which to correct trial court’s failure to observe Rule 87(1)
In re The Good Shepherd Hosp., Inc.
Appellate: Civil,Procedure
Texas 6th Court of Appeals
March 06, 2019
06-18-00115-CV
Jack Carter
Published
The appellant company and the appellee company entered into a lease agreement wherein the appellant agreed to lease to the appellee hospital space for a long-term acute care hospital. Also, the parties entered into ancillary and support services agreements. The appellee filed an original petition, application for temporary restraining order, and request for temporary and permanent injunctions maintaining that the appellant had breached the lease and ancillary agreements with the appellee by failing to provide the agreed-upon services. The appellant filed a motion to transfer venue. The trial court entered a temporary injunction against the appellant. Following an interlocutory appeal of the original temporary injunction, the entry of a second temporary injunction, and the filing of an amended petition by the appellee, the appellant filed an amended motion to transfer venue. The appellee filed a motion for partial summary judgment. The appellant filed a motion for continuance of the hearing on the appellee’s motion for partial summary judgment. The trial court entered an order granting the appellant’s motion for continuance, continuing the hearing on the appellee’s motion for partial summary judgment after the Court had held a hearing on and signed an order deciding the appellant’s motion to Transfer venue and the appellee had made its witnesses available for deposition. The appellant filed a petition for mandamus. The appellate court conditionally granted the appellant’s petition for writ of mandamus and directed the trial court to set the amended motion to transfer venue for a hearing and rule on its motion within a reasonable time prior to hearing the appellee’s motion for partial summary judgment. When a trial court began or started the process of ruling on substantive matters in a case, such as was required in deciding a dispositive issue in a partial summary judgment motion, it had commenced with the trial on the merits for purposes of Rule 87(1) of the Texas Rules of Civil Procedure. Thus, the trial court abused its discretion when it scheduled a hearing on the appellee’s motion for partial summary judgment immediately after hearing and ruling on the appellant’s amended motion to transfer venue. Accordingly, the court conditionally granted the appellant’s petition for writ of mandamus.


The trial court did not err by determining that the appellant had abandoned the laptop and denying the appellant’s motion to suppress; the appellant did not demonstrate that he had a legitimate expectation of privacy in the laptop
Akins v. State
Criminal,Evidence,Procedure
Texas 9th Court of Appeals
March 06, 2019
09-18-00057-CR
Steve McKeithen
Published
A jury convicted appellant of four charges of aggravated sexual assault of a child, and the trial judge assessed punishment at confinement for life in each case and ordered that the sentences would run consecutively. The appellate court concluded that, viewing the evidence in the light most favorable to the trial court's ruling, the trial court did not err by denying the appellant’s motion to suppress. The court observed that the trial judge heard the individual testify that the appellant said he was “working on” returning to the trailer, but the appellant had not returned to the trailer when the individual helped the second individual clean the trailer. The trial judge heard evidence that the individual took the laptop to the police after discovering the photographs. Thus, viewing the evidence in the light most favorable to the trial court’s ruling, the trial court did not err by determining that the appellant had abandoned the laptop and denying the appellant’s motion to suppress. The appellant did not demonstrate that he had a legitimate expectation of privacy in the laptop. Accordingly, the court affirmed the trial court’s judgments.


Entry of summary judgment as to the child's best interests was not appropriate
In re C. M. J.
Family,Gov't/Administrative,Juvenile,Procedure
Texas 1st Court of Appeals
March 05, 2019
01-18-00885-CV
Richard Hightower
Published
This was an appeal from a decree terminating the appellant mother’s parental rights and appointing the respondent department as sole managing conservator of her child. The appellate court found that because the trial court properly extended the finalization deadline and because there existed no genuine issue of material fact as to whether a factfinder could form a firm belief or conviction on the statutory-predicate ground, the court overruled the appellant's first issue and overruled her second issue in part. Further, because the appellant's summary-judgment evidence required the trial court to weigh the parties’ competing evidence on the child’s best interest, the court sustained in part the appellant's second issue. Accordingly, the judgment was affirmed in part, reversed in part and remanded for further proceedings.


The court had reviewed the record and found nothing to indicate that the appellant’s life sentence was grossly disproportionate to his offense
Guerrero v. State
Criminal,Evidence,Procedure
Texas 6th Court of Appeals
February 20, 2019
06-18-00076-CR
Josh Morriss, III
Published
The appellant inmate was prosecuted for harassment by a person in a correctional facility, a third-degree felony, was afforded a jury trial, was convicted, had his sentence enhanced by prior convictions and informed by an extensive disciplinary record, and was sentenced to life in prison. The appellate court found that the imposition of a life sentence was not cruel and unusual punishment in violation of the Eighth Amendment. The victim was required to submit to multiple blood tests over a period of months for the sole purpose of determining whether the appellant’s actions caused the victim to have any number of health issues. In addition to the pain and inconvenience of submitting to the blood tests, the victim was also subjected to emotional and mental distress each time she awaited her blood-test results. Further, the appellant did not simply assault the victim; he exposed her to the long-term possibility of contracting a debilitating or even fatal disease. The appellant’s enhanced sentence was within the statutory range of punishment, and evidence included his prior criminal history as a repeat offender and his extensive prison disciplinary history. Furthermore, the court had reviewed the record and found nothing to indicate that the appellant’s sentence was grossly disproportionate to his offense. Accordingly, the court affirmed the trial court's judgment.


The trial court did not err in concluding the client’s lack of standing deprived it of jurisdiction since the claims were property of the bankruptcy estate and the Trustee had exclusive standing to bring the claims.
Bustamante v. Miranda & Maldonado, P.C.
Bankruptcy,Procedure
Texas 8th Court of Appeals
February 28, 2019
08-17-00174-CV
Yvonne T. Rodriguez
Published
The appellant client challenged the trial court’s granting of the appellee lawyers’ motion for summary judgment upon their plea to the jurisdiction and traditional motion for summary judgment in a legal malpractice action. The appellate court found that because the claims accrued pre-conversion, the claims were property of the bankruptcy estate and the Trustee had exclusive standing to bring the claims. Because standing was a component of subject matter jurisdiction, the trial court did not err in concluding the appellant’s lack of standing deprived it of jurisdiction. Accordingly, the trial court's judgment was affirmed.


The evidence was both legally and factually sufficient to support the trial court’s finding that termination of the mother’s parental rights was in the best interest of both children
In re A.F.J.
Family
Texas 8th Court of Appeals
March 01, 2019
08-18-00155-CV
Ann Crawford McClure
Published
The appeal was from a judgment terminating the parental rights of the appellant mother to her children. The appellate court observed that the evidence was factually sufficient to support the trial court’s determination that the appellant engaged in course of conduct which endangered the children’s physical and emotional well-being. Further, the evidence was both legally and factually sufficient to support the trial court’s finding that termination of the appellant’s parental rights was in the best interest of both children. Accordingly, the order terminating the appellant’s parental rights to the children was affirmed.


Construing the overlapping contractual provisions based on the language the parties chose, the court held that the petitioner may deduct post-production costs when calculating royalty payments
Burlington Res. Oil & Gas Co. LP v. Texas Crude Energy, LLC
Contracts,OilGas, & Mineral
The Supreme Court of Texas
March 01, 2019
17-0266
James D Blacklock
Published
The respondent company, an affiliate of the second respondent company, owned overriding royalty interests in oil and gas leases operated by the petitioner company. For several years, the petitioner made royalty payments only after charging the royalty holder its proportionate share of the post-production costs expended to bring the products from the wells to the point of sale. The second respondent company sued the petitioner, alleging that the parties’ contracts prohibit the petitioner from charging post-production costs to the royalty holder. Recognizing the existence of “substantial grounds for difference of opinion regarding whether post-production costs were deductible by the petitioner when calculating overriding royalty payments to the respondent company,” the trial court authorized an interlocutory appeal under Tex. Civ. Prac. & Rem. Code section 51.014(d). The appellate court accepted the appeal, and affirmed the trial court’s judgment. The Texas Supreme Court ruled that the petitioner’s construction of the royalty assignments was correct. The assignments permitted the petitioner to charge the second respondent company its proportionate share of post-production expenses when calculating royalty payments. Accordingly, the judgment of the appellate court was reversed and the case was remanded.


The evidence supported the rational inference that the appellants could not pay damages and thus, the court could not say that the trial court abused its discretion in issuing the temporary injunction
Flamingo Permian Oil & Gas, L.L.C. v. Star Exploration, L.L.C
Contracts,Damages,Litigation: Personal Injury,OilGas, & Mineral
Texas 8th Court of Appeals
February 28, 2019
08-18-00027-CV
Yvonne T. Rodriguez
Published
The appellee corporation and appellants were part of a joint operating agreement (JOA) with respect to certain oil and gas leases located in Pecos County. Under the JOA, the appellants served as operator and the appellee was the majority non-operating interest holder. The JOA gave the appellee as the majority non-operating interest holder the ability to call a vote to remove an operator for violating the JOA. The appellee called a meeting to vote on the removal of the appellants as operator. The members voted to remove the appellants as operator and to install the appellee as operator. The appellants sued the appellee and others. The appellee countersued the appellants, then filed an application for injunctive relief. The trial court issued an order granting the appellee’s request for temporary injunctive relief. The appellants filed its notice of appeal of that order. The appellate court found that the appellate record showed that the order had been superseded by a subsequent order. The subsequent order, which appeared in the appellate record and which was issued while the appeal was pending, set a date for trial on the merits and fixed the amount of security to be paid by the appellee. All complained of formal defects have been corrected. Further, the appellee presented evidence at the hearing that the appellants repeatedly failed to pay debts, allowed liens to accrue against the property in violation of the JOA, and did not participate in legal proceedings such that several default judgments had been taken against the appellants. The appellants did not offer any evidence to the contrary, nor did the appellants challenge the trial court’s fact-findings related to those issues. The evidence supported the rational inference that the appellants could not pay damages. Thus, the court could not say that the trial court abused its discretion in issuing the temporary injunction. Accordingly, the trial court's judgment was affirmed.


The appellant had not met his burden to show that article 102.004 could not be used for a legitimate criminal justice purpose in all circumstances, thus, article 102.004(a) was not facially unconstitutional
Alvarez v. State
Criminal,Evidence,Procedure
Texas 2nd Court of Appeals
February 28, 2019
02-18-00193-CR
J. Wade Birdwell
Published
The appellant challenged the trial court’s admission of evidence and imposition of two types of statutory conviction fees in the appeal from his second misdemeanor driving while intoxicated (DWI) conviction. The appellate court found that the evidence did not show that it was impossible for the breath-test operator to have observed the appellant for fifteen minutes before the test; thus, the trial judge did not abuse his discretion by admitting exhibit 6. Further, the court had rejected the appellant’s constitutional challenge to article 102.008(a). Because local government code Section 113.004 provided for the jury fees collected under article 102.004 to be used “for some legitimate criminal justice purposes,” the appellant had not met his burden to show that article 102.004 could not be used for a legitimate criminal justice purpose in all circumstances. Thus, article 102.004(a) was not facially unconstitutional. Accordingly, the court affirmed the trial court’s judgment.


Appellant was improperly punished twice for the same offense and second conviction was reversed
Lozano v. State
Criminal,Evidence,Procedure
Texas 14th Court of Appeals
February 28, 2019
14-17-00026-CR
Tracy Christopher
Published
Appellant pleaded guilty to aggravated assault, discharging a firearm at or in the direction of a vehicle, aggravated assault and unlawful possession of a firearm. The trial court assessed his punishment at eight years’ imprisonment for each of the five offenses, and ordered all of the sentences to run concurrently. The appellate court overruled the first issue without addressing the merits because appellant did not lodge any complaint in the trial court regarding his punishments. Further, based on the Tex. Penal Code Section 22.05(b) as written, the court concluded that the allowable unit of prosecution for the offense of engaging in deadly conduct is each discharge of a firearm that occurs under the proscribed surrounding circumstances. In the case, the State conceded that the evidence showed that appellant discharged his firearm only once in the direction of a vehicle. After reviewing the evidence, the court agreed with the State. The State further conceded that if the legislature only intended for each discharge of the firearm to be the allowable unit of prosecution (rather than each victim), then the court must vacate the second conviction for deadly conduct because only a single discharge was shown. The court agreed. The court modified the judgment by vacating the conviction for deadly conduct. Accordingly, the court affirmed the judgment as modified.


Appointment of counsel to represent relator on a motion for DNA testing is no longer a ministerial act and relator did not make a substantive legal argument in support of his writ
In re Marshall
Constitution,Criminal,Evidence,Procedure
Texas 14th Court of Appeals
February 26, 2019
14-19-00131-CR
Per Curiam
Published
The relator filed a petition for writ of mandamus in the court. In the petition, the relator asked the court to compel the presiding judge of the district court either to grant his motion to appoint counsel to represent relator on a motion for DNA testing or to otherwise rule on his motion. The appellate court found that even if the convicting court determined that a convicted person was indigent, the trial court was not required to appoint counsel if it found there were no reasonable grounds for the motion to be filed. Such a finding was reviewed under an abuse-of-discretion standard, either in a mandamus or as part of the appeal of the denial of DNA testing. Therefore, the appointment of the counsel was no longer a ministerial act. Further, the court could not compel the appointment of counsel for relator with respect to his motion for DNA testing. In addition the relator had not made a substantive legal argument in his petition for a writ of mandamus for his alternative request, which was to order the judge to rule on the relator’s motion to appoint counsel. The relator failed to establish that he was entitled to mandamus relief. Accordingly, the court denied the relator’s petition for writ of mandamus.


The evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the father's parental rights was in the child’s best interest.
In re U.G.G.
Family, Gov't/Administrative, Juvenile, Procedure
Texas 8th Court of Appeals
February 26, 2019
08-18-00163-CV
Ann Crawford McClure
Published
The mother and father appealed the judgment of the trial court which terminated the parental rights of their son based on a report of negligent supervision. On appeal, the father challenged the legal and factual sufficiency of the evidence supporting the trial court's findings. Specifically, the father argued that the evidence was legally and factually insufficient to support the predicate termination grounds found by the trial court under Section 161.001(b)(1)(D), (E), and (O). The father further challenged the legal and factual sufficiency of the evidence supporting the best interest finding made under Section 161.001(b)(2). The trial court noted that the evidence of illegal drug use by a parent and its effect on a parent's life and his ability to parent could establish an endangering course of conduct under Section 161.001(b)(1)(E). The appellate court found that a reasonable fact finder could have formed a firm belief or conviction that the father engaged in a course of conduct endangering to the son’s physical and emotional well-being under Section 161.001(b)(1)(E). The appellate court concluded that the evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the father's parental rights was in the child’s best interest. Accordingly, the judgment of the trial court was affirmed.


Since the conduct and actions of the petitioner on which the respondent relied to establish its fraudulent-inducement claim were directly contrary to the unambiguous terms of the contract it signed, the respondent’s reliance was unjustified as a matter of law.
Mercedes-Benz USA, LLC v. Carduco, Inc.
Appellate: Civil, Business, Contracts, Damages, Procedure, Torts
The Supreme Court of Texas
February 22, 2019
16-0644
John P. Devine
Published
The petitioners appealed the judgment of the appellate court which affirmed the award of actual and punitive damages. On appeal, the Supreme Court was asked to consider whether the respondent’s belief that the petitioner had promised the area to it was justified in light of the parties' written agreement. The Supreme Court noted that to prevail on a fraud claim, the plaintiff must prove that it actually and justifiably relied on a factual misrepresentation to its detriment. The Supreme Court found that because that agreement approved and identified only one geographical area as the respondent’s dealership location, provided that the respondent could not move, relocate, or change any dealership facilities without the petitioner’s prior written consent, provided that the respondent’s right to sell cars in any specific geographic area was nonexclusive, the parties' written agreement directly contradicted the respondent’s alleged belief. The Supreme Court concluded that since the conduct and actions of the petitioner on which the respondent relied to establish its fraudulent-inducement claim were directly contrary to the unambiguous terms of the contract it signed, the respondent’s reliance was unjustified as a matter of law. Accordingly, the judgment of the appellate court was affirmed in part and reversed in part.


 

Even if there was error in the jury charge by the inclusion of the instruction on the law of parties, the error was harmless because the evidence supported the defendant’s guilt of murder as the primary actor.
Martin v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
February 28, 2019
11-17-00040-CR
John M. Bailey
Published
The defendant appealed the judgment of the trial court which convicted him of murder and assessed his punishment at confinement for life. On appeal, the defendant challenged the sufficiency of the evidence supporting his conviction, contending that the trial court erred by instructing the jury on the law of parties, admitting a photograph of the defendant’s tattoo, and sustaining the State's objections to the defendant’s closing arguments. The appellate court found that viewing the evidence in the light most favorable to the jury's verdict, a rational trier of fact could have found the elements of murder beyond a reasonable doubt. The defendant further alleged that the jury instruction was improper because the evidence was legally insufficient to support a jury verdict that the defendant was criminally responsible for another person's conduct. The appellate court concluded that even if there was error in the jury charge by the inclusion of the instruction on the law of parties, the error was harmless because the evidence supported the defendant’s guilt of murder as the primary actor. Accordingly, the judgment of the trial court was affirmed.


The defendants lacked the minimum contacts requisite for a Texas court to exercise specific personal jurisdiction because the purposeful-availment requirement was not satisfied.
Epicous Adventure Travel, LLC v. Tateossian, Inc.
Appellate: Civil, Procedure, Technology
Texas 8th Court of Appeals
February 26, 2019
08-18-00057-CV
Ann Crawford McClure
Published
The plaintiff appealed the judgment of the trial court which ruled in favor of the defendants. On appeal, the plaintiff claimed that the defendants waived their special appearance by urging merits arguments, purposely availed themselves of the privilege of conducting activities within Texas through the collaborative use of an internet file-sharing platform, relied on a defective affidavit in their special appearance, and that the trial court erred when it denied the plaintiff’s jurisdictional discovery. The plaintiff further alleged that it established longarm jurisdiction over the defendants based on the parties' collaborative communications that were exchanged as the project progressed. The appellate court noted that a Texas court could exercise jurisdiction over a nonresident defendant doing business in Texas as set out in its long-arm statute. The appellate court found that the defendant adequately explained the basis for her personal knowledge. The appellate court concluded that the defendants lacked the minimum contacts requisite for a Texas court to exercise specific personal jurisdiction because the purposeful-availment requirement was not satisfied. Accordingly, the judgment of the trial court was affirmed.


The conveyance of knowingly false information about the cause of real injuries was not a violation of section 37.09(a)(2), and thus, the defendant’s challenge to the sufficiency of the evidence was correct.
Welsh v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
February 26, 2019
07-18-00227-CR
James T. Campbell
Published
The defendant appealed the judgment of the trial court which convicted him of tampering with or fabricating physical evidence with the intent to affect the course or outcome of an investigation or official proceeding and imposed an eleven-year sentence. On appeal, the defendant argued that the evidence was insufficient to support his conviction. The State counterargued that the evidence was sufficient because it showed that the defendant created the injuries in an effort to accuse the facility's staff of assault falsely and to use the self-inflicted injuries as evidence of that assault. The appellate court noted that the two Penal Code provisions preceding section 37.09 prohibited conveyance of false information. The appellate court concluded that the conveyance of knowingly false information about the cause of real injuries was not a violation of section 37.09(a)(2), and thus, the defendant’s challenge to the sufficiency of the evidence was correct. Accordingly, the judgment of the trial court was reversed.


The defendant did not meet his burden to rebut the presumption that defense counsel's actions were motivated by sound trial strategy by presenting evidence that counsel did not object when the defendant claimed that counsel should have.
Nicholson v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
February 26, 2019
14-17-00610-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of murder of his wife. On appeal, the defendant asserted that the trial court abused its discretion by denying a challenge for cause to a venireperson and that the defendant received ineffective assistance of counsel. Specifically, the defendant maintained that the venireperson could be challenged for cause on the basis of her history as a domestic-violence victim; and inability to stand against other jurors. The appellate court found that the trial court did not abuse its discretion by deciding that the venireperson could abide by the oath, which resulted in the ultimate denial of the defendant’s request for an additional peremptory strike. The appellate court concluded that the defendant did not meet his burden to rebut the presumption that defense counsel's actions were motivated by sound trial strategy by presenting evidence that counsel did not object when the defendant claimed that counsel should have. Accordingly, the judgment of the trial court was affirmed.


The trial court's decision to dismiss with prejudice was neither unreasonable nor arbitrary, nor did the trial court fail to apply the law correctly, and therefore, the trial court did not abuse its discretion in dismissing the plaintiff’s claims with prejudice.
Tex. S. Univ. v. Kirksey Architects, Inc.
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 14th Court of Appeals
February 26, 2019
14-18-00146-CV
Kevin Jewell
Published
The plaintiff appealed the judgment of the trial court which dismissed with prejudice its claims against the defendants on the plaintiff’s claims arising from allegedly defective design and construction of a building on its college campus. On appeal, the plaintiff contended that the trial court abused its discretion by failing to provide an extension of time to file the required certificates of merit and by dismissing its claims with prejudice instead of without prejudice. The plaintiff further asserted that it was entitled to an extension of time to do so under section 150.002(c). The appellate court noted that the trial court did not abuse its discretion by refusing to grant the plaintiff an extension of time to file its certificates of merit and dismissing its claims against the defendant. The appellate court noted that the plaintiff did not direct the court to any cases holding that a dismissal with prejudice under section 150.002(e) was an abuse of discretion. The appellate court concluded that the trial court's decision to dismiss with prejudice was neither unreasonable nor arbitrary, nor did the trial court fail to apply the law correctly, and therefore, the trial court did not abuse its discretion in dismissing the plaintiff’s claims with prejudice. Accordingly, the judgment of the trial court was affirmed.


Because the appellant’s debt was extinguished through the stipulation, the trial court did not err in concluding that the appellant could not foreclose on its putative lien against the appellee’s interest.
ACME Energy Serv., Inc. v. Staley
Appellate: Civil, Bankruptcy, Contracts, Creditor/Debtor, Oil, Gas, & Mineral, Wills/Trusts/Probate
Texas 8th Court of Appeals
February 22, 2019
08-17-00148-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court which found its lien on an oil-and-gas lease had been extinguished by a prior agreement. On appeal, the appellant contended that the trial court erred by holding there was no debt owed for the invoices, erred in finding that no debt was owed, and erred in finding the lien claimed had been extinguished. The appellate court noted that the purpose of Section 56 of the Property Code was not only to give a lien to a party who furnished materials, supplies, or labor, but also to put third parties who may want to acquire an interest in the properties at issue on notice of a claim for debt and a lien to secure that debt. The appellate court found that because the appellant’s debt was extinguished through the stipulation, the trial court did not err in concluding that the appellant could not foreclose on its putative lien against the appellee’s interest. The appellate court concluded that the trial court did not err in denying the appellant’s attorney's fees. Accordingly, the judgment of the trial court was affirmed.


Because the appellant’s debt was extinguished through the stipulation, the trial court did not err in concluding the appellant could not foreclose on its putative lien against the appellee’s interest.
Endeavor Energy Res., L.P. v. Staley
Appellate: Civil, Bankruptcy, Contracts, Creditor/Debtor, Oil, Gas, & Mineral, Wills/Trusts/Probate
Texas 8th Court of Appeals
February 22, 2019
08-17-00146-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court which held its lien on an oil-and-gas lease had been extinguished by a prior agreement. On appeal, the appellant contended that the trial court erred by holding there was no debt owed to the appellant for the invoices, erred in finding that no debt was owed, and erred in finding the lien claimed by the appellant had been extinguished. The appellate court noted that the purpose of Section 56 of the Property Code was not only to give a lien to a party who furnished materials, supplies, or labor, but also to put third parties who may want to acquire an interest in the properties at issue on notice of a claim for debt and a lien to secure that debt. The appellate court found that an accord and satisfaction was a new contract, express or implied, in which the parties agreed to the complete discharge of an existing obligation in a manner other than originally agreed upon. The appellate court concluded that because the appellant’s debt was extinguished through the stipulation, the trial court did not err in concluding the appellant could not foreclose on its putative lien against the appellee’s interest. Accordingly, the judgment of the trial court was affirmed.


The stipulation was an accord and satisfaction because it was the mutual intent of the parties that payment of the new amount would amount to full satisfaction of the existing claim.
ACME Energy Serv., Inc. v. Staley
Appellate: Civil, Bankruptcy, Contracts, Creditor/Debtor, Real Property
Texas 8th Court of Appeals
February 22, 2019
08-17-00145-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court which found that its lien on an oil-and-gas lease had been extinguished by a prior agreement. On appeal, the appellant contended that the trial court erred by holding there was no debt owed to the appellant for the invoices, erred in finding that no debt was owed, and erred in finding the lien claimed had been extinguished. The appellate court noted that the purpose of Section 56 of the Property Code was not only to give a lien to a party who furnished materials, supplies, or labor, but also to put third parties who may want to acquire an interest in the properties at issue on notice of a claim for debt and a lien to secure that debt. The appellate court found that the stipulation was an accord and satisfaction because it was the mutual intent of the parties that payment of the new amount would amount to full satisfaction of the existing claim. The appellate court concluded that the trial court did not err in denying the appellant’s attorney's fees. Accordingly, the judgment of the trial court was affirmed.


The plain meaning of the word "common" in TCPA section 27.001(2)'s definition of "the right of association" required more than two tortfeasors conspiring to act tortiously for their own selfish benefit.
Kawcak v. Antero Res. Corp.
Appellate: Civil, Constitution, Procedure, Torts
Texas 2nd Court of Appeals
February 21, 2019
02-18-00301-CV
Dabney Bassel
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss the plaintiff’s complaint. On appeal, the defendant argued that the Texas Citizens Participation Act (TCPA) was so all-encompassing a protection that any party making a conspiracy claim must face the potential of these consequences. The appellate court found that the TCPA contained a check on the interpretation that the defendant advocated: its plain language. The appellate court noted that the TCPA defined “the right of association" as requiring the expression, promotion, pursuit, or defense of "common interests." The appellate court concluded that the plain meaning of the word "common" in TCPA section 27.001(2)'s definition of "the right of association" required more than two tortfeasors conspiring to act tortiously for their own selfish benefit. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the jury had sufficient evidence upon which to determine that the defendant was the perpetrator of the sexual-related offenses.
Espinoza v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
February 21, 2019
02-18-00324-CR
Bonnie Sudderth
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child and indecency with a child by contact. On appeal, the defendant argued that the trial court erred by overruling his objection to improper outcry testimony and by overruling his motion for a directed verdict because the State failed to prove his identity. The State responded that the witness was a proper outcry witness because nothing in the record indicated that the victim told the defendant’s girlfriend any of the details of the various acts of sexual abuse inflicted upon her. The appellate court found that the trial court did not abuse its discretion when it allowed the witness to testify as the victim’s outcry witness when neither party developed any testimony about what the victim told her sister, leaving the record void as to any specific details of her statement to her sister. The defendant further contended that none of the witnesses identified him at trial as the individual who committed the charged offenses. The appellate court concluded that the jury had sufficient evidence upon which to determine that the defendant was the perpetrator of the sexual-related offenses. Accordingly, the judgment of the trial court was affirmed.


The trial court did not err in applying the exclusionary rule because the "good faith exception" required a facially valid warrant.
State v. Arellano
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
February 21, 2019
13-17-00268-CR
Nora L. Longoria
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to suppress evidence following the charge of driving while intoxicated. On appeal, the State contended that the trial court erred in concluding the warrant was "facially invalid,” the State was barred from invoking the good faith exception, in refusing to consider documentary evidence presented by the State, and failing to provide adequate findings of fact and conclusions of law. The appellate court found that because article 18.04(5) required that the magistrate's name appear in clearly legible handwriting or in typewritten form with the magistrate's signature, and the search warrant did not meet this requirement, the warrant did not comply with the requirements of 18.04 and was therefore facially invalid. The State further claimed that the trial court erred by concluding that the State was prevented from invoking the good faith exception of article 38.28 of the Code of Criminal Procedure. The appellate court concluded that the trial court did not err in applying the exclusionary rule because the "good faith exception" required a facially valid warrant. Accordingly, the judgment of the trial court was affirmed.


The trial court's decision to not include an accomplice-witness instruction in the jury charge was not in error, and the trial court did not abuse its discretion in denying the defendant’s motions for mistrial.
Griffin v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
February 21, 2019
01-17-00604-CR
Laura Carter Higley
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder and assessed his punishment at life imprisonment. On appeal, the defendant contended that the trial court erred in refusing to instruct the jury to consider whether a certain witness was an accomplice-witness and denying his motions for mistrial for improper jury argument. Specifically, the defendant alleged that he suffered some harm because it was possible that the jury convicted him based solely on uncorroborated testimony. The appellate court disagreed with the defendant and noted that the evidence did not raise a fact issue regarding whether the defendant engaged in an affirmative act promoting the commission of the murder. The appellate court concluded that the trial court's decision to not include an accomplice-witness instruction in the jury charge was not in error, and the trial court did not abuse its discretion in denying the defendant’s motions for mistrial. Accordingly, the judgment of the trial court was affirmed.


The summary-judgment evidence raised a genuine issue of material fact as to whether the claimant served as the client's "employee" under this statute.
Stevenson v. Waste Mgmt. of Tex., Inc.
Appellate: Civil, Employment, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 14th Court of Appeals
February 21, 2019
14-17-00433-CV
Kem Thompson Frost
Published
The claimant appealed the judgment of the trial court which granted summary judgment dismissing the claimant’s negligence claim against the client on the ground that the Workers' Compensation Act's exclusive-remedy provision barred the negligence claims. On appeal, the claimant asserted that the trial court erred in granting the client’s summary-judgment motion and determining as a matter of law that the claimant was an employee of the client at the time of the accident. Specifically, the claimant maintained that the trial court erred in disregarding the Master Agreement and determining as a matter of law that the client was his employer. The appellate court found that under the Love Legal Standard, the summary-judgment evidence raised a genuine fact issue that the trial court improperly granted summary judgment to the client. The appellate court concluded that the summary-judgment evidence raised a genuine issue of material fact as to whether the claimant served as the client's "employee" under this statute. Accordingly, the judgment of the trial court was reversed and remanded.


The trial court abused its discretion in granting the nominal defendants' motion to disqualify because they had the burden of establishing that disqualification of the attorney, a severe remedy, was proper under the circumstances.
In re Luecke
Constitution, Ethics, Procedure
Texas 3rd Court of Appeals
February 20, 2019
03-18-00553-CV
Gisela D. Triana
Published
The relator appealed the judgment of the trial court, seeking mandamus relief from a trial-court order that disqualified his attorney from representing him in a derivative action against his father. On appeal, the relator argued that the motion to disqualify was untimely and that no evidence was presented that supported disqualification. The defendants asserted that the issue of untimeliness of the motion to disqualify was not raised in the trial court and was waived, and that the trial court correctly determined that there was a conflict of interest that had not been waived under Rule 1.06 of the Texas Disciplinary Rules of Professional Conduct. The appellate court was asked to consider whether the nominal defendant met their burden of establishing the propriety of disqualification when the record showed that the defendants were each suing to recover proceeds from mineral rights on the tract, and the nominal defendants agreed that the parties waived this conflict of interest. The appellate court found that the right to bring an action and choose an attorney included the right to waive a conflict of interest for purposes of the derivative action. The appellate court concluded that the trial court abused its discretion in granting the nominal defendants' motion to disqualify because they had the burden of establishing that disqualification of the attorney, a severe remedy, was proper under the circumstances. Accordingly, the relator’s motion was granted.


The trial court's finding that the defendant’s confession was voluntary was reasonably supported by the record and there was no error in admitting the confession during trial.
Estrada v. State
Constitution, Criminal, Evidence
Texas 7th Court of Appeals
February 19, 2019
07-17-00245-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted him of engaging in organized criminal activity and sentenced him to seventeen years confinement. On appeal, the defendant contended that the evidence was insufficient to establish that he committed the offense of engaging in organized criminal activity as alleged in the indictment, and the trial court erred in admitting his written statement and an audio recording of his interrogation, over objection, because he did not knowingly, intelligently, and voluntarily waive his rights before making the oral and written statements. The appellate court found that because the jury charge allowed for a conviction based upon facts that did not constitute the offense of engaging in organized criminal activity, the defendant’s conviction could not stand. The appellate court concluded that the trial court's finding that the defendant’s confession was voluntary was reasonably supported by the record and there was no error in admitting the confession during trial. Accordingly, the judgment of the trial court was reversed and remanded for a new trial. 


The relator was entitled to a conditional grant of the petition for writ of mandamus to direct the appellate court to vacate its order and reinstate the trial court's order denying the motion to reconsider disqualification under Meador.
In re RSR Corp.
Appellate: Civil, Business, Intellectual Property, Procedure
The Supreme Court of Texas
February 15, 2019
18-0189
Per Curiam
Published
The relator appealed the judgment of the appellate court, seeking a petition for writ of mandamus to order the trial court to reconsider the merits of disqualification using the Meador factors. The Supreme Court noted that the trial court did not reach the issue and did not resolve all fact issues relevant to a Meador analysis, but that circumstance was not surprising given the purposeful opposition to doing so. The Supreme Court found that the trial court did not clearly abuse its discretion in concluding that the relator was not entitled to a do-over under these circumstances. The Supreme Court concluded that the relator was entitled to a conditional grant of the petition for writ of mandamus to direct the appellate court to vacate its order and reinstate the trial court's order denying the motion to reconsider disqualification under Meador. Accordingly, the relator’s petition was granted.


The endorsement waiving the carrier's recovery rights was effective as to the bodily injury claim because the endorsement.
Exxon Mobil Corp. v. The Ins. Co of State of Pa.
Appellate: Civil, Contracts, Employment, Insurance, Procedure, Workers' Compensation
The Supreme Court of Texas
February 15, 2019
17-0200
Eva M. Guzman
Published
The petitioner appealed the judgment of the appellate court which rendered judgment in favor of the defendant. On appeal, the Supreme Court was asked to determine whether the subrogation-waiver endorsement incorporated the extrinsic contract's to the extent liabilities were assumed limitation and, if so, what that phrase meant. The Supreme Court noted that Texas's no-fault workers' compensation system permitted the insurance carrier to recoup all benefits paid to an injured worker out of the "first money" the worker recovered from a liable third party. The Supreme Court found that the endorsement's plain language invoked the subrogation waiver only when some other contract required the insured to procure it from the carrier as to a third party and for the operations giving rise to the injury. The Supreme Court concluded that the endorsement waiving the carrier's recovery rights was effective as to the bodily injury claim because the endorsement referred to another contract only to identify who could claim the waiver and at what operations. Accordingly, the judgment of the appellate court was reversed and remanded.


Since the emails were privileged communications and the insurer complied with Rule 193.3(d), the appellate court did not abuse its discretion when it failed to sustain the insurer’s snap-back motion.
In re City of Dickinson
Appellate: Civil, Discovery, Insurance, Procedure
The Supreme Court of Texas
February 15, 2019
17-0020
John P. Devine
Published
The City appealed the judgment of the appellate court which affirmed the trial court’s order, mandating that the insurer produce the subject-emails. On appeal, the Supreme Court was asked to consider whether a client, who testified as an expert witness in the client's own case, waived the attorney-client privilege with respect to the client's expert testimony. The City contended that email communications in the underlying litigation between attorney and the client about the client's expert testimony were discoverable because the City, as the client's opposing party, was entitled to discover all documents provided to, reviewed by, or prepared by or for an expert in anticipation of a testifying expert's testimony. The Supreme Court found that because the discovery rules did not operate to waive the attorney-client privilege whenever a client or its representative offered expert testimony, the appellate court did not abuse its discretion in overruling the trial court's order compelling disclosure. The Supreme Court concluded that since the emails were privileged communications and the insurer complied with Rule 193.3(d), the appellate court did not abuse its discretion when it failed to sustain the insurer’s snap-back motion. Accordingly, the judgment of the appellate court was affirmed.


The State sufficiently corroborated the accomplice-witness testimony and the evidence was sufficient to support the defendant’s conviction.
Turner v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
February 15, 2019
06-18-00099-CR
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery with a deadly weapon and sentenced him to thirty years’ incarceration. On appeal, the defendant argued that the evidence was legally insufficient because the State did not adequately corroborate the testimony of his co-defendants as required by Article 38.14 of the Texas Code of Criminal Procedure. The defendant further maintained that the accomplice-witness testimony was not sufficiently corroborated to satisfy the “accomplice-witness rule” found in Article 38.14 of the Texas Code of Criminal Procedure. The appellate court noted that, based on the totality of the non-accomplice testimony, a rational juror could find that this evidence tended to connect the defendant to the offense. The appellate court concluded that the State sufficiently corroborated the accomplice-witness testimony and the evidence was sufficient to support the defendant’s conviction. Accordingly, the judgment of the trial court was affirmed.


Because wife and deceased did not hold themselves out as husband and wife until less than three years before deceased's death, the trial court correctly granted a directed verdict
Estate of Durrill
Family, Real Property, Wills/Trusts/Probate
Texas 13th Court of Appeals
February 07, 2019
13-17-00431-CV
Gina M. Benavides
Published
The appellant appealed from a judgment that voided her alleged marriage to the deceased. The trial court’s judgment resulted from a partial directed verdict and jury verdict in favor of appellees, the deceased’s children. After the deceased’s death, his children sued to void the marriage pursuant to chapter 123 of the estates code. The appellate court observed that because the appellant admitted that she and the deceased did not hold themselves out as married to the community, there was no valid informal marriage before November 2, 2015, and thus, no presumption of validity of a marriage before that date. Thus, the trial court correctly granted a directed verdict that there was no informal marriage before November 2, 2015. Further, the appellant and the deceased’s filed Declaration asserted an informal marriage beginning on January 22, 2010. However, the trial court found the evidence conclusively established that they did not represent themselves as married to others before that date. Thus, the court overruled the appellant’s challenge to the directed verdict in her second issue. Any marriage between the deceased and the appellant could only have occurred on or after November 2, 2015, less than three years before the deceased died in April 2016. Accordingly, the court affirmed the judgment of the trial court.


Trial commenced within time period required by statute and court's decision terminating parental rights was supported by sufficient evidence
In The Interest Of R.J, Jr.
Family, Gov't/Administrative
Texas 1st Court of Appeals
February 05, 2019
01-18-00729-CV
Laura Carter Higley
Published
Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between the appellant mother and the appellant father and their three-year-old son. The trial court also appointed the appellee department to be child’s permanent managing conservator. The appellants challenged, filing separate briefs. The appellate court found that because the record adequately demonstrated that trial commenced before the one-year deadline found in Former Section 263.401(a) Family Code, the trial court did not err by impliedly denying the appellant father’s motion to dismiss. Further, any disputed evidence could have been reconciled in favor of the trial court’s findings that termination of the parent-child relationship between the appellant mother and child and between the appellant father and child was in child’s best interest or was not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination was in child’s best interest. The evidence was legally and factually sufficient to support the trial court’s finding that termination of the parent-child relationship between appellant mother and child and between the appellant father and child was in child’s best interest. Accordingly, the trial court's judgment was affirmed.


The limitation-of-liability clauses in the parties’ agreements barred the punitive damages award, but, the appellate court did not err in holding that the evidence was legally sufficient to support the award of actual damages to all respondents
Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC
Contracts, Damages, Torts
The Supreme Court of Texas
February 01, 2019
17-0578
Paul W. Green
Published
The respondent companies filed suit against the petitioner corporation and tendered a certified aircraft appraiser, as their expert at trial to testify to the diminution in value of the aircraft. The petitioner retained the individual as its own expert to provide an appraisal of the aircraft at the time of purchase, assuming the aircraft was new when purchased. The jury found in favor of the respondents on both the breach of contract and fraud claims. Under the doctrine of election of remedies, the respondents elected to recover on the fraud claim. Therefore, the respondents were able to recover exemplary damages. The jury awarded $2,694,160 in actual damages for fraud and $5,388,320 in exemplary damages. The appellate court affirmed the trial court’s judgment. The Texas Supreme Court held that a certified aircraft appraiser’s testimony concerning the valuation of the aircraft was not conclusory, and therefore the appellate court did not err in finding it legally sufficient to support the actual damages award. However, the court held that the parties’ limitation-of-liability clauses in their agreements barred the punitive damages award under the circumstances. The court affirmed the appellate court’s judgment in part, upholding the actual damages award. The court reversed the appellate court’s judgment to the extent that it affirmed the exemplary damages award, and rendered judgment that the respondents take nothing on their exemplary damages claim.


The trial court abused its discretion by reducing the amount of the appellants’ recovery against the first general partner by $266,400 based on the representative’s contempt of court in violating the trial court’s temporary injunction
ASR 2620-2630 Fountainview, LP v. ASR 2620-2630 Fountainview GP, LLC
Business, Contracts, Damages
Texas 14th Court of Appeals
February 07, 2019
14-17-00271-CV
Kem Thompson Frost
Published
The general partner and three limited partners executed a limited partnership agreement in which they formed a Delaware limited partnership named the first appellant. The appellants filed the lawsuit, asserting claims for breach of the Agreement and breach of fiduciary duty against the first appellee. The first appellee filed a motion asking the trial court to hold the representative in contempt. The jury found that the first appellant failed to comply with the Agreement by not paying distributions under section 6.2 of the Agreement and that $1,197,866 fairly and reasonably would compensate the appellees for its damages that resulted from the partnership’s failure to comply. The appellate court found that under 6 Del. C. section 17-606 of the Act, when the appellees became entitled to receive the Distribution, the appellees became a creditor of the first appellant with respect to the Distribution and was entitled to assert a claim against the first appellant for breach of the Agreement by failing to pay the Distribution owed under section 6.2 of the Agreement. Thus, the trial court did not err in rejecting the complaint asserted under the first appellant’s first issue. The trial court abused its discretion by reducing the amount of the appellants’ recovery against the first general partner by $266,400 based on the representative’s contempt of court in violating the trial court’s temporary injunction. Accordingly, the court therefore modified the trial court’s judgment by deleting the offset so that the principal amount of the appellants’ recovery against the First General Partner was $371,147, and affirmed the judgment as modified.


With respect to the collection and allocation of funds under those sections which were allocated to general revenue without limitation or restriction the statute was facially unconstitutional in violation of article II, section 1 of the Texas Constitution
Johnson v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
February 05, 2019
14-18-00273-CR
Kevin Jewell
Published
The appellant challenged the facial constitutionality of several court costs assessed following his guilty plea to a charge of drug possession and resulting conviction and sentence. The appellant asserted that the trial court erred by failing to include a finding in the judgment regarding the appellant’s eligibility for diligent participation credit. The Fourteenth Court of Appeals sustained in part the appellant’s first issue to the extent he challenged the facial constitutionality of the time payment fee authorized by Texas Local Government Code section 133.103(a), (b), and (d). Further, with respect to the collection and allocation of funds under those sections which were allocated to general revenue without limitation or restriction the statute was facially unconstitutional in violation of article II, section 1 of the Texas Constitution. Lastly, the court overruled the appellant’s first issue in all other respects. Concluding the appellant’s second issue was moot, the court did not reach it. Accordingly, the trial court's judgment was modified as affirmed.


The limitation-of-liability clauses in the parties’ agreements barred the punitive damages award, but, the appellate court did not err in holding that the evidence was legally sufficient to support the award of actual damages to all respondents
Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC
Contracts, Damages, Torts
The Supreme Court of Texas
February 01, 2019
17-0578
Paul W. Green
Published
The respondent companies filed suit against the petitioner corporation and tendered a certified aircraft appraiser, as their expert at trial to testify to the diminution in value of the aircraft. The petitioner retained the individual as its own expert to provide an appraisal of the aircraft at the time of purchase, assuming the aircraft was new when purchased. The jury found in favor of the respondents on both the breach of contract and fraud claims. Under the doctrine of election of remedies, the respondents elected to recover on the fraud claim. Therefore, the respondents were able to recover exemplary damages. The jury awarded $2,694,160 in actual damages for fraud and $5,388,320 in exemplary damages. The appellate court affirmed the trial court’s judgment. The Texas Supreme Court held that a certified aircraft appraiser’s testimony concerning the valuation of the aircraft was not conclusory, and therefore the appellate court did not err in finding it legally sufficient to support the actual damages award. However, the court held that the parties’ limitation-of-liability clauses in their agreements barred the punitive damages award under the circumstances. The court affirmed the appellate court’s judgment in part, upholding the actual damages award. The court reversed the appellate court’s judgment to the extent that it affirmed the exemplary damages award, and rendered judgment that the respondents take nothing on their exemplary damages claim.


No preemption occurred because the tortious interference claim did not relate to the airline's prices, routes, or services, within the Airline Deregulation Act’s preemptive reach.
Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG
Appellate: Civil, Contracts, Gov't/Administrative, International, Procedure, Torts
The Supreme Court of Texas
February 01, 2019
17-0538
Paul W. Green
Published
The petitioner appealed the judgment of the appellate court which denied its permissive interlocutory appeal. On appeal, the Supreme Court was asked to consider whether an appellate court's denial of a permissive interlocutory appeal prevented it from reviewing the merits of the underlying interlocutory order. The petitioner asserted that the appellate court abused its discretion in denying the permissive interlocutory appeal and that the Airline Deregulation Act’s preempted the respondent’s tortious interference claim. The responder counterargued that there was no preemption under the Act, and even if there was, the Supreme Court had no jurisdiction to hear the case because the appellate court denied the permissive interlocutory appeal. The Supreme Court found that under the plain language of former Texas Government Code section 22.225(d), the appellate court's denial of a permissive interlocutory appeal prevented it from reviewing the merits of the underlying interlocutory order. The Supreme Court concluded that no preemption occurred because the tortious interference claim did not relate to the airline's prices, routes, or services, nor did the claim amount to the enforcement of a state law, rule, regulation, standard, or other provision having the force and effect of law that was within the Airline Deregulation Act’s preemptive reach. Accordingly, the judgment of the appellate court was affirmed.


The petitioner’s claim for breach of implied warranty was not brought under the Deceptive Trade Practices Act and thus was not covered by that statute's two-year limitations period.
Nghiem v. Sajib
Appellate: Civil, Consumer, Contracts, Damages, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
February 01, 2019
17-0636
Nathan L. Hecht
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s decision to strike the petitioner’s petition seeking damages for injury to his plane and for his personal injuries. On appeal, the petitioner argued that his action sounded in contract and should be governed by the generally applicable, residual statute of limitations, which was four years. The respondent counterargued that the petitioner’s breach of implied warranty claim was rooted in tort. The Supreme Court noted that the respondent never cited the generally applicable two-year statute of limitations for torts or argued for its application to the petitioner’ implied warranty. The Supreme Court found that the trial court abused its discretion in striking the petitioner’s plea in intervention. The Supreme Court concluded that the petitioner’s claim for breach of implied warranty was not brought under the Deceptive Trade Practices Act and thus was not covered by that statute's two-year limitations period. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.


The trial court did not err in refusing the defendant’s request for a 38.23 jury instruction because no fact issue was raised about the officer’s ability to see the defendant’s failure to signal.
Totten v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
January 29, 2019
01-14-00189-CR
Sherry Radack
Published
The defendant appealed the judgment of the trial court which convicted him of possession of between one and four grams of a controlled substance, found two enhancements true, and assessed his punishment at 25 years' confinement. On appeal, the defendant contended that the trial court erred by refusing his requested Article 38.23 jury charge. The appellate court noted that the defendant was required to meet three requirements for the trial court to submit an instruction pursuant to Article 38.23: the evidence heard by the jury must raise an issue of fact; the evidence on that fact must be affirmatively contested; and the contested factual issue must be material to the lawfulness of the challenged conduct. The defendant further asserted that the photographs and maps admitted at trial challenged the officer’s ability to observe the traffic violation he claimed to have witnessed, and that there was a question as to whether the officer could have seen what he testified to. The appellate court found that because the testimony and photographs did not raise an issue as to whether the officer’s view of the intersection was obstructed, there was no equivocation regarding obstructions in the officer's testimony. The appellate court concluded that the trial court did not err in refusing the defendant’s request for a 38.23 jury instruction because no fact issue was raised about the officer’s ability to see the defendant’s failure to signal. Accordingly, the judgment of the trial court was affirmed.


The father was not brought to trial in accordance with the bench warrant, and as such, he was precluded from meaningful participation in the trial that resulted in the termination of his parental rights. 
In re L.N.C.
Constitution, Gov't/Administrative, Juvenile, Procedure
Texas 14th Court of Appeals
January 31, 2019
14-18-00691-CV
Margaret Poissant
Published
The father appealed the judgment of the trial court which terminated the parental rights of the father to his child. On appeal, the father argued that he was denied due process of law by the trial court's denial of his request for a continuance, when he was timely bench-warranted to appear at trial, and the evidence was factually insufficient to support the predicate finding under Tex. Fam. Code § 161.001(b)(1)(E). The father further asserted that the evidence was legally and factually insufficient to support the predicate finding under subsection Tex. Fam. Code § 161.001(b)(1)(N), and the evidence was legally and factually insufficient to support the finding that termination was in the child’s best interest. The appellate court found that the father's due process rights were violated. The appellate court concluded that the father was not brought to trial in accordance with the bench warrant, and as such, he was precluded from meaningful participation in the trial that resulted in the termination of his parental rights. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


The trial court had jurisdiction to hear and decide the wife’s motion to enforce because the legislature did not include provisions in Chapter 9 of the Family Code that limited the time within which a party must seek to enforce the division of real property. 
Moore v. Moore
Appellate: Civil, Family, Procedure, Real Property
Texas 11th Court of Appeals
January 31, 2019
11-16-00282-CV
Jim R. Wright
Published
The husband appealed the judgment of the trial court which denied his petition to clarify a prior divorce decree, and granted the wife’s motion to enforce that decree. On appeal, the husband argued that the trial court erred when it granted the wife’s requested relief because her claims were barred by statutes of limitations, and that the statute of limitations to foreclose a lien on real property and for fraud was four years. The wife counterargued that this was not an action to enforce a lien, but an action to enforce a final judgment. The appellate court agreed with the wife and found that the appeal was from the order granting the wife’s motion to enforce, not from an order to foreclose on a lien on real property. The appellate court noted that the parties’ decree did not contain a listing of any specific oil and gas interests, nor did it contain an award of any specific oil and gas interests to the husband as his separate property. The appellate court concluded that the trial court had jurisdiction to hear and decide the wife’s motion to enforce because the legislature did not include provisions in Chapter 9 of the Family Code that limited the time within which a party must seek to enforce the division of real property. Accordingly, the judgment of the trial court was affirmed.


The trial court did not err although the Department did not specifically designate the witness as an expert and that the trial court did not explicitly state that the witness was certified or qualified to be an expert witness.
In re D.E.D.L.
Evidence, Family, Gov't/Administrative, Juvenile, Procedure, Tribal
Texas 11th Court of Appeals
January 31, 2019
11-18-00188-CV
Jim R. Wright
Published
The father appealed the judgment of the trial court which terminated the parental rights of the child’s parents. On appeal, the father contended that reversal was required pursuant to the Indian Child Welfare Act (ICWA) because no qualified expert witness testified at the termination hearing. The father argued that no witness was designated, certified, or qualified as an expert at trial. The appellate court noted that in order to terminate the father’s parental rights to the child, compliance with the ICWA was mandatory. The appellate court found that the trial court could have determined that the witness met the requirements set out in the guidelines and was qualified as an expert witness with specific knowledge of the culture and customs of the child’s tribe. The appellate court concluded that the trial court did not err although the Department did not specifically designate the witness as an expert and that the trial court did not explicitly state that the witness was certified or qualified to be an expert witness. Accordingly, the judgment of the trial court was affirmed.


The trial court had jurisdiction to hear and decide the wife’s motion to enforce because the legislature did not include provisions in Chapter 9 of the Family Code that limited the time within which a party must seek to enforce the division of real property. 
Moore v. Moore
Appellate: Civil, Family, Procedure, Real Property
Texas 11th Court of Appeals
January 31, 2019
11-16-00282-CV
Jim R. Wright
Published
The husband appealed the judgment of the trial court which denied his petition to clarify a prior divorce decree, and granted the wife’s motion to enforce that decree. On appeal, the husband argued that the trial court erred when it granted the wife’s requested relief because her claims were barred by statutes of limitations, and that the statute of limitations to foreclose a lien on real property and for fraud was four years. The wife counterargued that this was not an action to enforce a lien, but an action to enforce a final judgment. The appellate court agreed with the wife and found that the appeal was from the order granting the wife’s motion to enforce, not from an order to foreclose on a lien on real property. The appellate court noted that the parties’ decree did not contain a listing of any specific oil and gas interests, nor did it contain an award of any specific oil and gas interests to the husband as his separate property. The appellate court concluded that the trial court had jurisdiction to hear and decide the wife’s motion to enforce because the legislature did not include provisions in Chapter 9 of the Family Code that limited the time within which a party must seek to enforce the division of real property. Accordingly, the judgment of the trial court was affirmed.


The provision did not limit the excess coverage for defense expenses, and the Joint Venture Provision did not limit the underwriters' liability for the petitioners’ defense expenses insured under section III. 
Anadarko Petroleum Corp. v. Houston Cas. Co.
Appellate: Civil, Contracts, Insurance, Oil, Gas, & Mineral, Procedure
The Supreme Court of Texas
January 25, 2019
16-1013
Jeffrey S. Boyd
Published
The petitioners appealed the judgment of the appellate court which affirmed the trial court’s denial of their motion for partial summary judgment in an insurance dispute. On appeal, the petitioners argued that the policy covered all of its defense expenses, up to the policy's $150 million excess-coverage limit. The policy's underwriters counterargued that a negotiated policy provision capped the excess coverage, including coverage for defense costs, at twenty-five percent of that limit. The Supreme Court was asked to consider whether the Joint Venture Provision's first clause limited section III's excess-liability coverage only for amounts the petitioners were required to pay in response to third-party claims or also for amounts the petitioners paid as defense expenses. The Supreme Court concluded that the provision did not limit the excess coverage for defense expenses, and the Joint Venture Provision did not limit the underwriters' liability for the petitioners’ defense expenses insured under section III. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.


The appellate court concluded that although the defendant did not preserve his issue for review, it would modify the trial court's judgment to reflect that there was no plea of true and no finding regarding any enhancement paragraph.
Minter v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
January 30, 2019
06-18-00160-CR
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child and assessed a punishment of life imprisonment. On appeal, the defendant challenged the constitutional validity of Article 38.07 of the Texas Code of Criminal Procedure. Specifically, the defendant asserted that Article 38.07 required that the uncorroborated testimony be accepted as true based solely on the age of the victim at the time of the offense, thus impermissibly lowering the State's burden of proof. The defendant further maintained that the admission of the testimony of the victims violated his right to due process and denied him a fair trial. The appellate court noted that it found no instance, whether by objection to the testimony of the victims, by pretrial or post-trial motion, or by argument to the trial court, in which the defendant asserted that the admission of the testimony of the witnesses under Article 38.07 would violate due process and deny him a fair trial. The appellate court concluded that although the defendant did not preserve his issue for review, it would modify the trial court's judgment to reflect that there was no plea of true and no finding regarding any enhancement paragraph. Accordingly, the judgment of the trial court was affirmed.


The Supreme Court concluded that the appeal was moot to the extent it challenged the election results but that the award of sanctions was an abuse of discretion.
Pressley v. Casar
Appellate: Civil, Constitution, Courts, Election, Gov't/Administrative, Procedure
The Supreme Court of Texas
January 25, 2019
17-0052
Per Curiam
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s grant of summary judgment, declaring the contestee (the candidate who received the most votes) the winner of the election and sanctioned the contestor (the losing candidate) and her attorney for bringing several frivolous claims. On appeal, the Supreme Court was asked to consider whether the sanctions awarded were an abuse of discretion, and whether the completion of the contested office's term during this appeal rendered the appeal of the underlying election contest moot. The respondent argued that this election contest was moot because no remedy existed to contest an expired term of office. The Supreme Court found that the election contest was moot now that the term in question had expired and no exception to the mootness doctrine applied. The Supreme Court concluded that the appeal was moot to the extent it challenged the election results but that the award of sanctions was an abuse of discretion. Accordingly, the judgment of the appellate court was reversed in part and affirmed in part.


The expert testimony was not conclusory, the defendant's negligence was not too remote to be a proximate cause of the plaintiff's death, and the appellate court erred in deciding factual sufficiency without explaining its application of the standard.
Windrum v. Kareh
Appellate: Civil, Damages, Health Care, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
January 25, 2019
17-0328
Paul W. Green
Published
The petitioner appealed the judgment of the appellate court which denied his motion for judgment notwithstanding the verdict and motion or a new trial in a  wrongful death action. On appeal, the Supreme Court was asked to consider whether the expert testimony was conclusory such that the jury could not rely on it to conclude that a neurosurgeon was negligent in breaching his standard of care by failing to treat his patient properly, and whether the defendant's negligence was too remote to be a proximate cause of the plaintiff's death. The petitioner argued that the appellate court erred in applying the factual sufficiency review standard. The Supreme Court found that the expert testimony was not conclusory, the defendant's negligence was not too remote to be a proximate cause of the plaintiff's death, and the appellate court erred in deciding factual sufficiency without explaining its application of the standard. Accordingly, the judgment of the appellate court was reversed.


Pursuant to Texas Rule of Appellate Procedure 52.8(c), the relator was entitled to a conditional grant of mandamus relief directing the trial court to grant the relator’s Rule 91a motion to dismiss the plaintiff’s legal-malpractice claims.
In re Houston Specialty Ins. Co.
Appellate: Civil, Constitution, Contracts, Insurance, Procedure, Real Property, Torts
The Supreme Court of Texas
January 25, 2019
17-1060
Per Curiam
Published
The relator sought a writ of mandamus, arguing that the trial court erred by denying its Rule 91a motion to dismiss a declaratory judgment action because the declarations sought were of nonliability for legal malpractice. The Supreme Court was asked to consider whether a potential defendant in a negligence action could choose the time and forum for trial by beating the potential plaintiff to the courthouse and filing suit seeking a declaration of non-liability. The Supreme Court noted that the relator was required to establish that the trial court abused its discretion by denying his Rule 91a motion to dismiss, and the relator had no adequate remedy by appeal. The Supreme Court found that each of the requested declarations were aimed at establishing a defense to a potential legal malpractice claim by the relator. The Supreme Court was further asked to determine whether a traditional appeal after final judgment provided the relator an adequate remedy. The Supreme Court concluded that pursuant to Texas Rule of Appellate Procedure 52.8(c), the relator was entitled to a conditional grant of mandamus relief directing the trial court to grant the relator’s Rule 91a motion to dismiss the plaintiff’s legal-malpractice claims. Accordingly, the relator’s writ was conditionally granted.


The Supreme Court concluded that the Rule 202 proceeding had been rendered moot by the fact that the petitioner's potential claims against the anonymous speakers were now time-barred as a matter of law.
Glassdoor, Inc. v. Andra Group, LP
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
January 25, 2019
17-0463
Debra Ann H. Lehrman
Published
The petitioner appealed the judgment of the appellate court, seeking to investigate potential defamation and business disparagement claims against several anonymous individuals who posted negative statements about the petitioner on the site. On appeal, the Supreme Court was asked to determine whether the Texas Citizen Participation Act's dismissal procedures applied to a Rule 202 proceeding, and if so, whether the operator was entitled to dismissal and attorney's fees under the Act. The petitioner argued that the appellate court erred in denying the TCPA motion and abused its discretion in ordering pre-suit discovery under Rule 202. The Supreme Court found that a case became moot during the pendency of the litigation if, since the time of filing, there ceased to exist a justiciable controversy between the parties, such that, if the issues presented were no longer live, or if the parties lacked a legally cognizable interest in the outcome. The Supreme Court concluded that the Rule 202 proceeding had been rendered moot by the fact that the petitioner's potential claims against the anonymous speakers were now time-barred as a matter of law. Accordingly, the judgment of the appellate court was vacated and dismissed for lack of jurisdiction.


The appellant’s representative’s testimony did not substantively impact any of the potential factual issues, and the exclusion of his testimony did not probably result in an improper judgment.
Trujillo Enter., Ltd. v. Davies
Appellate: Civil, Procedure, Real Property
Texas 8th Court of Appeals
January 23, 2019
08-17-00208-CV
Ann Crawford McClure
Published
The appellant challenged the judgment of the trial court which declined to allow its representative from testifying at trial pursuant to Rule 193.6 in an action over the existence of a necessity easement. On appeal, the appellate court was asked to consider whether if a party, who was a legal entity must list its entity representative as a witness in discovery responses, or otherwise risk exclusion from testifying. The appellant contended that the trial court erred in excluding its representative’s testimony. The appellate court noted that in order to obtain reversal of a judgment based upon error in the exclusion of evidence, an appellant must show that the trial court did in fact commit error, and the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. The appellate court found that the trial court made no express provision in Rule 193.6 to address that issue, and the appellant did not cite to any case that has expressly decided if the "other than named a party" language Rule 193.6 included entity parties. The appellant further alleged that its representative could testify as a rebuttal witness to the testimony that was offered in the case-in-chief. The appellate court concluded that the appellant’s representative’s testimony did not substantively impact any of the potential factual issues, and the exclusion of his testimony did not probably result in an improper judgment. Accordingly, the judgment of the trial court was affirmed.


The only reference to "service" was in the email from the registered agent to the three employees that listed a "date served" and noted a "method of service," an neither of those form statements equated to an unequivocal admission of proper service of process under the Texas rules. 
Asset Prot. & Sec. Serv., L.P. v. Armijo
Appellate: Civil, Employment, Procedure
Texas 8th Court of Appeals
January 23, 2019
08-17-00250-CV
Ann Crawford McClure
Published
The employer appealed the judgment of the trial court which entered a default judgment in an employment discrimination lawsuit. On appeal, the appellate court was asked to consider whether there was error on the face of the record because of typographical errors in the verification on the return of service, a private process server handled the certified mailing of process, and the signature on the "green card" was from an unidentified person. The appellate court noted that a meritorious restricted appeal must be filed within six months after the judgment was signed, by a movant who was a party to the underlying lawsuit, but who did not participate in the hearing that resulted in the judgment, who did not timely file any post-judgment motions, and error was apparent on the face of the record. The appellate court found that the employer properly assigned error for each of the three arguments that it raised. The employer further maintained that the "green card" did not show on its face that the registered agent received the certified mailing. The appellate court concluded that the only reference to "service" was in the email from the registered agent to the three employees that listed a "date served" and noted a "method of service," an neither of those form statements equated to an unequivocal admission of proper service of process under the Texas rules. Accordingly, the judgment of the trial court was reversed.


The trial court did not err in granting summary judgment on the petitioner’s claims because he received the benefits he was entitled to under the policy via the appraisal award and did not allege any act so extreme as to cause independent injury.
Hinojos v. State Farm Lloyds
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Real Property, Torts
Texas 8th Court of Appeals
January 18, 2019
08-16-00121-CV
Yvonne T. Rodriguez
Published
The petitioner appealed the judgment of the trial court which granted summary judgment in favor of the respondent. On appeal, the petitioner contended that the trial court erred in granting summary judgment on his breach of contract claim because he had raised a genuine issue of material fact with regard to whether the appraisal was timely paid and to whether the respondent proved that the petitioner accepted the appraisal payment. The petitioner further claimed that the trial court improperly granted summary judgment on his extra-contractual claims because his entitlement to recovery did not depend on his entitlement to damages under his breach of contract claims, and the trial court erred in granting summary judgment on his claim under the Texas Prompt Pay Act because the respondent did not establish that it paid the petitioner his appraisal award. The appellate court found that in filing a written answer or response, the non-movant must expressly present to the trial court any issues defeating the movant's entitlement to summary judgment, and issues not expressly presented to the trial court could not be considered on appeal as a grounds for reversal, which was the case here. The appellate court concluded that the trial court did not err in granting summary judgment on the petitioner’s claims because he received the benefits he was entitled to under the policy via the appraisal award and did not allege any act so extreme as to cause independent injury. Accordingly, the judgment of the trial court was affirmed.


Since the El Paso court was authorized to issue a temporary injunction to protect its dominant jurisdiction, the El Paso court's issuance of the anti-suit temporary injunction did not constitute an abuse of the El Paso court's discretion.
Encore Enter., Inc. v. Borderplex Realty Trust
Appellate: Civil, Damages, Procedure, Torts, Wills/Trusts/Probate
Texas 8th Court of Appeals
January 16, 2019
08-17-00153-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court by filing a motion for rehearing of its earlier decision. On appeal, the appellant argued that an anti-suit injunction was available only in limited circumstances and upon certain showings, and that procedurally, the appellee should have first filed and obtained a ruling on a plea in abatement. The appellant also contended that dominant jurisdiction only existed where suits were against adverse parties in the same capacity, which was missing. The appellate court found that the subject matter of the two lawsuits were inherently interrelated, and because suit was first filed in El Paso County, the El Paso court was the court of dominant jurisdiction in these matters. The appellate court concluded that since the El Paso court was authorized to issue a temporary injunction to protect its dominant jurisdiction, the El Paso court's issuance of the anti-suit temporary injunction did not constitute an abuse of the El Paso court's discretion. Accordingly, the appellant’s motion was denied.


Under Rule of Appellate Procedure 44.2(b), the appellate court disregarded a trial court's error unless it affected the defendant’s substantial rights, and thus, the error in this case did not deprive the defendant of a substantial right.
Chasco v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
January 15, 2019
07-17-00243-CR
James T. Campbell
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of indecency with a child and sentenced him to thirty years of confinement. On appeal, the defendant contended that the State failed to prove beyond a reasonable doubt that he inappropriately touched the victim because the victim’s testimony was unclear, she did not inform an adult until many years after the incidents, and the adults did not inform the police immediately. The appellate court disagreed with the defendant and found sufficient evidence to establish the elements of indecency with a child by contact. The defendant further maintained that the trial court abused its discretion when it refused to give the jury a contemporaneous limiting instruction regarding the testimony to the extraneous sexual offenses the defendant committed against the victims. The appellate court concluded that under Rule of Appellate Procedure 44.2(b), it disregarded a trial court's error unless it affected the defendant’s substantial rights, and thus, the error in this case did not deprive the defendant of a substantial right. Accordingly, the judgment of the trial court was affirmed.


Rule 193.3(d) applied with respect to the Due-Diligence Report notwithstanding that the report was first disclosed as a motion for summary judgment exhibit rather than in response to a written discovery request.
In re Fedd Wireless LLC
Appellate: Civil, Constitution, Discovery, Procedure, Professional Responsibility
Texas 14th Court of Appeals
January 15, 2019
14-18-00892-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court, seeking a writ of mandamus asking the appellate court to compel the trial court to vacate its order. On appeal, the appellate court was asked to consider whether a party waived attorney-client privilege as to a document the party relied on, but later abandoned, in seeking traditional summary judgment relief. The plaintiffs argued that the trial court abused its discretion in granting "snap-back" relief and that they lacked adequate remedy by ordinary appeal. Specifically, the plaintiffs contended that rule 193.3(d) did not justify the trial court's orders because the rule applied only to a privileged document that was produced in response to "written discovery." The appellate court found that rule 193.3(d) applied with respect to the Due-Diligence Report notwithstanding that the report was first disclosed as a motion for summary judgment exhibit rather than in response to a written discovery request. The appellate court concluded that the visiting judge abused his discretion by granting snap-back relief because the record showed that the relators did not, within ten days after it discovered that the Due-Diligence Report had been produced inadvertently as part of its motion for summary judgment, amend the motion to omit the document and assert the attorney-client privilege, as required by Rule 193(d). Accordingly, the plaintiffs’ writ was conditionally granted.


The Texas Civil Practice and Remedies Code section 11.101(c) authorized an interlocutory appeal of the part of the trial court's order finding the petitioner to be a vexatious litigant and requiring him to obtain a prefiling order before instituting new litigation against his siblings.
Nunu v. Risk
Appellate: Civil, Damages, Procedure, Real Property, Wills/Trusts/Probate
Texas 14th Court of Appeals
January 15, 2019
14-18-00109-CV
Tracy Christopher
Published
The petitioner appealed the judgment of the trial court which found him to be a vexatious litigant, ordering him to obtain a permission from the local administrative judge before filing new litigation against his siblings, and requiring him to post security to maintain his most recent litigation. On appeal, the petitioner argued that the trial court abused its discretion in finding him to be a vexatious litigant, because no evidence was offered or admitted to support the finding, the statutory prerequisites for such a finding were not satisfied, and the trial court did not correctly apply the law of the case. The appellate court found that the trial court's vexatious-litigant finding was supported by the petitioner’s repeated attempts to relitigate matters that he voluntarily dismissed with prejudice. The appellate court concluded that the Texas Civil Practice and Remedies Code section 11.101(c) authorized an interlocutory appeal of the part of the trial court's order finding the petitioner to be a vexatious litigant and requiring him to obtain a prefiling order before instituting new litigation against his siblings. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that since the record contained no such discovery order, it could not reach the merits of the plaintiffs’ issue.
Harpst v. Fleming
Appellate: Civil, Contracts, Damages, Ethics, Professional Responsibility, Torts
Texas 14th Court of Appeals
December 21, 2018
14-17-00209-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court which rendered a take-nothing judgment in an action where the plaintiffs asserted breach of fiduciary duty and contract claims based on their attorneys' alleged failure to disclose certain information related to the settlement and the deduction of allegedly unreasonable expenses from the clients' recovery. On appeal, the plaintiff argued that the trial court erroneously dismissed one of their claims by granting a pre-trial sua sponte summary judgment in the defendants' favor. The appellate court found that the complained-of ruling was a limine ruling, which preserved nothing for review. The plaintiffs further asserted that the trial court erroneously excluded evidence that they were falsely promised free echocardiograms by law firms that referred them to the defendants. The plaintiffs claimed that the trial court abused its discretion by refusing certain discovery unless they paid the defendants' attorney's fees. The appellate court concluded that since the record contained no such discovery order, it could not reach the merits of the plaintiffs’ issue. Accordingly, the judgment of the trial court was affirmed.


The workers’ compensation carrier was not entitled to reimbursement from the jury award, but was entitled to apply a credit as an advance against future benefits, and to resume payment of workers' compensation benefits that would otherwise be payable once the credit had been applied.
N.H. Ins. Co. v. Rodriguez
Appellate: Civil, Damages, Employment, Procedure, Torts, Workers' Compensation
Texas 8th Court of Appeals
January 11, 2019
08-15-00173-CV
Yvonne T. Rodriguez
Published
The workers' compensation carrier appealed the judgment of the trial court which sought reimbursement of its expenses from the claimant’s jury award in an action seeking workers’ compensation benefits for injuries he sustained at a construction site. On appeal, the appellate court was asked to consider whether the statutory amendment cabining the carriers' subrogation interest in light of the subscribing employer's negligence changes that "well-settled" law on the carrier's reimbursement rights as well. The claimant contended that Section 417.001(b)'s subrogation reduction provision applied to the third-party claim suit and cabined the carrier’s ability to claim reimbursement based on the fact that the insured employer had its negligence assessed by a jury as a designated responsible third party. The appellate court found that Section 417.001(b)'s subrogation off-set applied when a jury passes on the question of the employer's liability in a given case, even if the employer appeared in the jury's verdict simply as a responsible third party. The appellate court concluded that the workers’ compensation carrier was not entitled to reimbursement from the jury award, but was entitled to apply a credit as an advance against future benefits, and to resume payment of workers' compensation benefits that would otherwise be payable once the credit had been applied. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.


The trial court did not abuse its discretion by denying the defendant’s motion to dismiss because the plea-bargain he agreed to capped his maximum sentence at five years less than what his minimum sentence would have been without the plea bargain if he had gone to trial and been convicted. 
Harper v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
January 10, 2019
02-17-00016-CR
Elizabeth S. Kerr
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault with a deadly weapon and sentenced him to the maximum 20 years in prison. On appeal, the defendant contended that that his constitutional right to a speedy trial was violated, trial counsel rendered ineffective assistance, and trial counsel's ineffective assistance rendered his guilty plea involuntary. The appellate court noted that the delay was about a year and eight months, which was presumptively unreasonable. The defendant further maintained that the State deliberately delayed his trial by re-indicting him and adding only enhancement allegations, which could have been accomplished with a notice and that did not require a re-indictment. The appellate court noted that the delays were attributable to the defendant. The appellate court concluded that the trial court neither abused its discretion factually nor erred legally by denying the defendant’s motion to dismiss because the plea-bargain he agreed to capped his maximum sentence at five years less than what his minimum sentence would have been without the plea bargain if he had gone to trial and been convicted. Accordingly, the judgment of the trial court was affirmed.


The Election Code did not require that an application accompanied by a filing fee be treated only as an application under the filing-fee method, and therefore the party chair was obliged to submit the relator’s name as a candidate unless prohibited by some other legal requirement.
In re Stalder
Appellate: Civil, Contracts, Election, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
January 09, 2018
01-17-00957-CV
Michael C. Massengale
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus to order the chair of the Harris County Democratic Party to place her on the Democratic Party primary ballot for the office of judge. The appellate court was asked to consider whether the relator was ineligible to seek that office because her check to pay the filing fee was returned for insufficient funds. On appeal, the relator contended that the Chair had a statutory duty to certify her name for the primary ballot because she submitted an application that complied with the Election Code. The appellate court noted that the Election Code permitted a candidate to apply for a place on the ballot by paying a filing fee and filing a petition with the required number of signatures, or by filing a petition in lieu of the filing fee, or both. The appellate court found that the party Chair was not required to reject an application due to a bounced filing-fee check when the application otherwise satisfied the statutory requirement for a petition in lieu of the filing fee. The appellate court concluded that the Election Code did not require that an application accompanied by a filing fee be treated only as an application under the filing-fee method, and therefore the party chair was obliged to submit the relator’s name as a candidate unless prohibited by some other legal requirement. Accordingly, the relator’s petition was conditionally granted.


There was legally and factually sufficient evidence supporting the trial court's finding that the defendant waived enforcement of the anti-assignment clauses in the individual plaintiffs’ insurance policies. 
Safeco Ins. Co. of Am. v. Clear Vision Windshield Repair, LLC
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Torts
Texas 14th Court of Appeals
November 27, 2018
14-17-00103-CV
J Brett Busby
Published
The defendant appealed the judgment of the trial court which granted judgment in favor of the plaintiff in their breach of contract action, where the defendant failed to pay invoices to the plaintiff. On appeal, the defendant argued that the evidence was legally and factually insufficient to support the trial court's finding that it waived enforcement of the anti-assignment clauses in the insurance policies. The appellate court noted that although evidence alone was legally and factually sufficient to support the trial court's waiver finding, there was additional evidence indicating that the defendant’s delay in invoking the anti-assignment clause was unreasonable. The appellate court found that the defendant’s six-month delay in raising the anti-assignment clause was atypical because the record included evidence that the defendant’s policy was to issue payment within 30 days of determining coverage and receiving all necessary information. The appellate court concluded that there was legally and factually sufficient evidence supporting the trial court's finding that the defendant waived enforcement of the anti-assignment clauses in the individual plaintiffs’ insurance policies. Accordingly, the judgment of the trial court was affirmed.


The purpose of the equitable remedy of disgorgement was to protect relationships of trust, and in the absence of proof of such a relationship, and a breach of the duties arising from it, the trial court erred when it awarded the appellee damages in the form of disgorgement.
Stephens v. Three Finger Black Shale P’ship
Appellate: Civil, Contracts, Damages, Torts
Texas 11th Court of Appeals
December 31, 2018
11-16-00177-CV
Jim R. Wright
Published
The appellants challenged the judgment of the trial court which found against them on discrete theories and in various amounts in most of the questions that the trial court submitted to the jury, and which entered a judgment in the approximate amount of $50 million. On appeal, the appellants maintained that, if the appellee was not a partnership, then it could not recover as such and that the court should render a take-nothing judgment against the appellee. The appellants further claimed that the evidence was factually insufficient to prove that the appellee was a partnership and that the court should remand the case to the trial court. The appellate court concluded that the purpose of the equitable remedy of disgorgement was to protect relationships of trust, and in the absence of proof of such a relationship, and a breach of the duties arising from it, the trial court erred when it awarded the appellee damages in the form of disgorgement. Accordingly, the judgment of the trial court was reversed in part, affirmed in part, and remanded for further proceedings.


The defendant’s alleged Insurance Code violations did not cause the plaintiffs to lose the benefits under the policy, and therefore the plaintiffs could not recover the damages awarded by the jury under the Insurance-Code violations claim.
Wall v. Lloyds
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Torts
Texas 1st Court of Appeals
December 31, 2018
01-17-00681-CV
Laura Carter Higley
Published
The plaintiffs appealed the judgment of the trial court which rendered a take-nothing judgment despite the jury awarding them damages for their Insurance Code claim in their breach of contract action. On appeal, the plaintiffs contended that the trial court erred by denying their motion for judgment notwithstanding the verdict on the jury's response to the breach-of-contract liability question, that they were entitled to judgment on their Insurance-Code violations claim, and that they were entitled to a new trial. Specifically, the plaintiffs argued that they proved their claim because the evidence showed that, while the defendant paid on the insurance policy, they paid late, and that a subsequent, late payment did not cure the defendant’s breach. The appellate court disagreed with the plaintiffs and found that since they did not object to the definition of failure to comply with the policy, the late payment did not establish failure to comply with the policy. The appellate court concluded that the defendant’s alleged Insurance Code violations did not cause the plaintiffs to lose the benefits under the policy, and therefore the plaintiffs could not recover the damages awarded by the jury under the Insurance-Code violations claim. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the senior security interest holder was entitled to later trace and recapture its collateral.
Legacy Bank v. Fab Tech Drilling Equip., Inc.
Banking and Finance, Contracts, Creditor/Debtor, Procedure, Securities
Texas 11th Court of Appeals
December 31, 2018
11-16-00356-CV
John M. Bailey
Published
The bank appealed the judgment of the trial court which awarded garnished funds to the defendant and ordered the bank to pay the defendant’s attorney’s fees. The appellate court was asked to determine whether the holder of a prior perfected security interest waived its priority right to collateral by failing to declare default or otherwise take an affirmative action to foreclose on the collateral prior to a judgment lien creditor exercising foreclosure rights on the same collateral through garnishment. On appeal, the bank contended that the trial court erred in ordering that the funds be released to the defendant since it, by virtue of being a prior perfected security interest holder, was entitled to priority over the funds as a matter of law. The defendant counterargued that, although the bank was a prior perfected security interest holder, bank waived its security interest by choosing to continue lending to a financially insolvent company instead of declaring default and foreclosing on its collateral. The appellate court found that a prior perfected security interest holder did not waive its senior security interest by failing to exercise its elective remedies prior to a junior judgment creditor exercising foreclosure rights through garnishment. The appellate court concluded that the senior security interest holder was entitled to later trace and recapture its collateral. Accordingly, the judgment of the trial court was reversed and remanded in part.


The plaintiff alleged viable constitutional claims because the University did not conclusively demonstrate that the decision to implement the "class-wide remedy" was an exercise of professional judgment entitled to judicial deference in the context of a constitutional challenge.
Villareal v. Tex. S. Univ.
Appellate: Civil, Civil Rights, Constitution, Contracts, Education, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 31, 2018
01-17-00867-CV
Per Curiam
Published
The plaintiff appealed the judgment of the trial court which dismissed with prejudice his claims against the University on his constitutional claims, breach-of-contract claim, and claims directed at the University employees in their official and personal capacities. On appeal, the plaintiff contended that the trial court erred by dismissing his case and improperly granting the University’s plea to the jurisdiction because he stated viable due-course-of-law claims that defeated the University’s claim to sovereign immunity. The University counterargued that they were immune from suit. The appellate court found that the plaintiff adequately alleged a procedural due-course-of-law claim based on his allegation of the University's bad-faith mismanagement of an exam-grading controversy, which allegedly caused him to miss the GPA cut-off and thereby jeopardized his reputation and intended career path. The appellate court concluded that the plaintiff alleged viable constitutional claims because the University did not conclusively demonstrate that the decision to implement the "class-wide remedy" was an exercise of professional judgment entitled to judicial deference in the context of a constitutional challenge. Accordingly, the judgment of the trial court was reversed in part and remanded for further proceedings.


The indictment against the defendant failed to allege an essential element of theft of a firearm, and thus theft of a firearm was not a lesser-included offense of burglary of a habitation as alleged in the indictment.
DeLeon v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
December 28, 2018
03-18-00268-CR
Scott K. Field
Published
The defendant appealed the judgment of the trial court which convicted him of theft of a firearm. On appeal, the appellate court was asked to consider whether theft of a firearm was a lesser-included offense of burglary of a habitation as alleged in the indictment. The defendant contended that the trial court reversibly erred in charging the jury that it could find him guilty of the lesser-included offense of theft of a firearm. The appellate court noted that Texas courts have specifically held that theft was not a lesser-included offense of burglary when the indictment did not allege all the elements of theft, including a description of the stolen property. The State maintained that, even if the indictment did not allege all the elements of theft, the defendant waived his complaint because he did not move to quash the indictment. The appellate court found that the indictment failed to allege an essential element of theft of a firearm, and thus theft of a firearm was not a lesser-included offense of burglary of a habitation as alleged in the indictment. The appellate court concluded theft of a firearm was not a lesser-included offense. Accordingly, the judgment of the trial court was reversed.


Since no evidence was admitted to support that the officer had reasonable suspicion based on specific, articulable facts to conduct a lawful temporary detention of the defendant, the trial court did not err by granting the defendant’s motion to suppress.
State v. Opare
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
December 27, 2018
02-18-00247-CR
Bonnie Sudderth
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to suppress, finding that there was insufficient evidence to justify that reasonable suspicion existed for the traffic stop. On appeal, the State argued that the stop was justified because the video showed that the defendant committed an offense of failing to signal a lane change in the officer’s presence. The State further asserted that the appellate court erred by not considering the dashcam video, or the officer’s offense report, because they were not formally admitted as evidence. The appellate court disagreed with the State and concluded that since no evidence was admitted to support that the officer had reasonable suspicion based on specific, articulable facts to conduct a lawful temporary detention of the defendant, the trial court did not err by granting the defendant’s motion to suppress. Accordingly, the judgment of the trial court was affirmed.


The School failed to establish the viability of any of its constitutional claims, its ultra vires claim failed as a matter of law, and its suit was barred by sovereign immunity.
Transformative Learning Sys., v. Tex. Educ. Agency
Appellate: Civil, Constitution, Contracts, Education, Gov't/Administrative, Procedure, Real Property
Texas 3rd Court of Appeals
December 28, 2018
03-17-00093-CV
Michael Toth
Published
The School appealed the judgment of the trial court which sustained the Texas Education Agency’s (the Agency) plea to the jurisdiction in the school’s suit, seeking declaratory and injunctive relief from their allegedly erroneous interpretation of Section 12.128 and from the alleged taking of the school’s property. On appeal, the School argued that Section 12.128 of the Education Code did not authorize the Commissioner's ongoing attempts to assume control of the disputed property. The appellate court noted that the disputed statutory provisions allowed the State to take possession of charter school property purchased with state funds, and since the School used state funds to make mortgage payments on the properties, the Agency properly invoked Section 12.128 in this case. The School further alleged that the Agency’s actions, through the orders of the conservator, equated to both a physical taking and a regulatory taking. The appellate court disagreed with the School and concluded that the School failed to establish the viability of any of its constitutional claims, its ultra vires claim failed as a matter of law, and its suit was barred by sovereign immunity. Accordingly, the judgment of the trial court was affirmed.


Because of the plaintiffs’ failure to elect between fraud damages for construction costs and for misapplication of initial investment, the trial court should have rendered judgment awarding the plaintiffs recovery of actual damages only on the award for misapplication of initial investment.
Cho v. Kim
Appellate: Civil, Contracts, Procedure, Real Property, Torts
Texas 14th Court of Appeals
December 28, 2018
14-16-00962-CV
William J. Boyce
Published
The defendant appealed the judgment of the trial court which ruled against him and in favor of the plaintiffs in connection with claims for breach of fiduciary duty and fraud arising from an unsuccessful real estate project. On appeal, the plaintiffs contended that the defendant abused their trust and confidence by secretly gaining personal benefits at their expense and driving the business off of a financial cliff. The plaintiffs maintained that both a formal and an informal fiduciary relationship were because they were partners with the defendant. The plaintiffs asserted that the defendant’s counsel conceded the existence of a relationship of trust and confidence in an exchange with the trial court during the hearing on motions for directed verdict at the close of the evidence. The appellate court found that there was no basis for a formal fiduciary duty as between the parties. The appellate court concluded that because of the plaintiffs’ failure to elect between fraud damages for construction costs and fraud damages for misapplication of initial investment, the trial court should have rendered judgment awarding the plaintiffs recovery of actual damages only on the award of fraud damages for misapplication of initial investment. Accordingly, the judgment of the trial court was reversed and remanded for recalculation of prejudgment interest.


The trial court was required to give the nonmovant an opportunity to plead a viable cause of action before granting summary judgment, and thus the trial court erred in entering summary judgment in favor of the defendant.
Gober v. Bulkley Prop., LLC
Appellate: Civil, Contracts, Procedure, Real Property
Texas 6th Court of Appeals
December 28, 2018
06-18-00039-CV
Bailey C. Moseley
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment against her and in favor of the defendant in her suit for declaratory judgment. On appeal, the plaintiff asserted that the trial court abused its discretion by refusing to allow her to file her signed affidavit, and it erred in entering summary judgment based on the statute of frauds. The appellate court noted that absent some exception to the enforcement of the statute, the enforcement of the oral agreement alleged by the plaintiff would be barred; however, Texas had long recognized that some situations existed wherein the nonenforcement of the contract would, itself, amount to a fraud. The appellate court found that the trial court erred in entering summary judgment without first having allowed the plaintiff the opportunity to amend her pleadings. The appellate court concluded that the trial court was required to give the nonmovant an opportunity to plead a viable cause of action before granting summary judgment, and thus the trial court erred in entering summary judgment in favor of the defendant. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


An expert report was not required to identify a standard of care breached by a hospital if the theory of liability against the hospital was vicarious and based on the actions of the hospital's physicians.
McAllen Hosp., L.P. v. Gonzalez
Appellate: Civil, Health Care, Procedure, Torts, Wills/Trusts/Probate
Texas 13th Court of Appeals
December 28, 2018
13-18-00077-CV
Dori Contreras
Published
The hospital appealed the judgment of the trial court which denied its motion to dismiss the health care liability claims of Estate on behalf of the wrongful-death beneficiary. On appeal, the hospital argued that the trial court abused its discretion when it denied its motion to dismiss. Specifically, the hospital pointed to the decedent’s claims regarding the hospital's alleged nondelegable duty, and the hospital's own negligence and gross negligence. The appellate court disagreed with the hospital’s claim that the trial court erred in denying its motion to dismiss the direct liability claims. The hospital further challenged the denial of its motion to dismiss the direct liability claims on the basis that the expert report did not include the standard of care, breach, and causation for the direct liability claims. The appellate court concluded that an expert report was not required to identify a standard of care breached by a hospital if the theory of liability against the hospital was vicarious and based on the actions of the hospital's physicians. Accordingly, the judgment of the trial court was affirmed.


The Chapter 89 presentment requirement, under the Local Government Code, was not a statutory prerequisite, and thus the trial court did not err by denying the County’s plea to the jurisdiction.
Jefferson Cnty. v. Farris
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 1st Court of Appeals
December 28, 2018
01-17-00493-CV
Per Curiam
Published
The County appealed the judgment of the trial court which denied its plea to the jurisdiction in the plaintiff’s action, asserting negligence related to her husband's lifetime exposure to asbestos. On appeal, the County argues that the trial court erred because the plaintiff failed to plead a cause of action under the Texas Tort Claims Act, was barred by the exclusive-remedy provision of the Texas Workers' Compensation Act, failed to exhaust her administrative remedies under the Texas Workers' Compensation Act, and failed to present her claim to the commissioners court before filing suit under section 89.004 of the Local Government Code. The County further asserted that the trial court erred by failing to dismiss the claims for exemplary damages, misuse of personal property, failure to create an asbestos-safety policy, and negligent implementation of policy. Lastly, the County maintained that  its governmental immunity had not been waived because it did not receive notice of the claim against it within six months of the incident giving rise to the claim occurred, as required by the Act. The appellate court disagreed with the County and found that the statutory prerequisites for suit were found in the Tort Claims Act, not in Local Government Code section 89.004. The appellate court concluded that the Chapter 89 presentment requirement was not a statutory prerequisite, and thus the trial court did not err by denying the County’s plea to the jurisdiction. Accordingly, the judgment of the trial court was reversed as to the exemplary-damages award and affirmed.


Since there was no substantive and probative evidence supporting the exercise of its discretion, the trial court abused its discretion in awarding the wife spousal maintenance.
In re Marriage of McCoy
Family, Procedure
Texas 6th Court of Appeals
December 28, 2018
06-18-00064-CV
Bailey C. Moseley
Published
The husband appealed the judgment of the trial court which awarded the wife the family home, all sums in any retirement, all retirement accounts in her name, vehicles, and ordered the husband to pay spousal maintenance in the underlying divorce action. On appeal, the husband challenged the award of spousal maintenance, asserting that the trial court abused its discretion in its award because there was no, or insufficient, evidence that the wife lacked the ability to earn sufficient income to provide for her minimum reasonable needs, and there was no evidence rebutting the presumption against an award of spousal maintenance. The husband further asserted that the award was improperly made in perpetuity, and it exceeded the statutory maximum. The wife counterargued that her testimony that she worked when her employer needed her and that she drew Social Security income was sufficient evidence to overcome the presumption that spousal maintenance was not warranted. The appellate court agreed with the husband that the wife presented no evidence rebutting the presumption against an award of spousal maintenance. The appellate court concluded that since there was no substantive and probative evidence supporting the exercise of its discretion, the trial court abused its discretion in awarding the wife spousal maintenance. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.


The appellate court concluded that the relator did not show that the trial court abused its discretion in denying the motion to dismiss.
In re Union Pac. R.R. Co.
Appellate: Civil, Constitution, Damages, Procedure, Torts
Texas 14th Court of Appeals
December 28, 2018
14-18-01046-CV
Per Curiam
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus seeking to compel the trial court judge to grant relator's motion to dismiss and award relator its attorneys' fees and costs. The appellate court noted that, as a matter of law, the plaintiffs’ claims would not have the effect of managing or governing "the operations of rail transportation." The appellate court found that the principles of Texas law that the plaintiffs contended, required the relator to restore and manage debris in the bayou under its bridge did not require reconstruction of the bridge or govern the operation of trains moving passengers or property across the bridge. The appellate court concluded that the relator did not show that the trial court abused its discretion in denying the motion to dismiss. Accordingly, the relator’s writ was denied.


The Texas Education Agency did not preserve any challenge to the form or scope of the expunction order as entered, nor to any question of whether any particular document must be expunged.
Tex. Educ. Agency v. S.E.H.
Constitution, Criminal, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 28, 2018
01-16-00420-CV
Michael C. Massengale
Published
The Texas Education Agency (the Agency) appealed the judgment of the trial court which entered an expunction in favor of the petitioner. The appellate court was asked to determine whether the historical fact of the petitioner’s community supervision disqualified him from obtaining an expunction remedy available to people who were released without any resulting final conviction, but that excluded people who avoided final conviction by successfully completing community supervision. On appeal, the Agency argued that the petitioner could not escape the historical facts that he pleaded guilty and received court-ordered community supervision, thus rendering him ineligible for expunction. The petitioner counterargued that, as a legal matter, he was never placed on community supervision because the prosecution was void from the outset. The appellate court found that the trial court correctly found that the petitioner was entitled to the expunction remedy. The appellate court concluded that the Agency did not preserve any challenge to the form or scope of the expunction order as entered, nor to any question of whether any particular document must be expunged. Accordingly, the judgment of the trial court was affirmed.


The defendants provided a fair summary of the applicable standards of care, how the experts contended the standards of care were breached, and the causal relationship between the alleged breach and the injury, harm, or damages claimed.
Peabody v. Manchac
Appellate: Civil, Health Care, Procedure, Torts
Texas 14th Court of Appeals
December 27, 2018
14-17-00646-CV
Martha Hill Jamison
Published
The defendant appealed the judgment of the trial court which denied its motions to dismiss the medical malpractice claims against the hospital. On appeal, the defendant asserted that the trial court abused its discretion in denying its objections to the expert reports and the motion to dismiss because the reports of both were insufficient as to the standard of care and the doctor’s reports were insufficient also as to his qualifications and causation. The appellate court found that the defendants provided a fair summary of the applicable standards of care, how the experts contended the standards of care were breached, and the causal relationship between the alleged breach and the injury, harm, or damages claimed. The appellate court concluded that the defendants’ statements in reports went beyond mere speculation regarding the ability and authority of the nurses to prevent the discharge. Accordingly, the judgment of the trial court was affirmed.


The plaintiffs failed to establish their entitlement to a thirty-day extension to supplement the pleadings with the necessary affidavit, and thus, trial court abused its discretion in denying the defendant’s motion to dismiss.
SSOE, Inc. v. Tokio Marine Am. Ins. Co.
Appellate: Civil, Damages, Insurance, Procedure
Texas 4th Court of Appeals
December 27, 2018
04-18-00526-CV
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss pursuant to Chapter 150 of the Civil Practice and Remedies Code. On appeal, the defendant contended that subsection 150.002(c) required the plaintiffs to allege, in their original petition, an inability to prepare the required affidavit due to time constraints associated with the statute of limitations. The defendants further alleged that subsection 150.002(c) did not allow for an exception to the contemporaneous filing requirement when an excuse was raised in response to its motion to dismiss, and not when the excuse was based on alleged clerical errors. The plaintiffs counterargued that section 150.002 and the legislative intent was to bring balance to the civil justice system and to prevent frivolous lawsuits, and a clerical error should not prevent the trial court from acting within its discretion to deny the motion to dismiss. The appellate court found that subsection 150.002(c) was triggered when the original petition was filed within ten days of the expiration of the statute of limitations. The appellate court concluded that the plaintiffs failed to establish their entitlement to a thirty-day extension to supplement the pleadings with the necessary affidavit, and thus, trial court abused its discretion in denying the defendant’s motion to dismiss. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


Based the totality of the circumstances, the trial court correctly concluded that the officer did not exceed the scope of the defendant’s consent.
Villarreal v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
December 27, 2018
13-17-00323-CR
Nelda V. Rodriguez
Published
The defendant appealed the judgment of the trial court which denied his motion to suppress evidence seized stemming from a traffic stop. On appeal, the defendant argued that the Transportation Code required the stop line to be clearly marked in order for a traffic violation to occur. The defendant further contended that because the remnants of a stop line were barely visible, the officer could not have reasonably believed that a traffic offense had occurred. The appellate court noted that the defendant committed a traffic offense by crossing it before stopping, and that this traffic violation justified the officer’s decision to initiate a traffic stop under the first prong of Terry. The defendant also alleged that his protracted detention violated the second prong of Terry, and before he gave consent, the detention had already been unlawfully prolonged beyond the conclusion of its legitimate purposes. The appellate court disagreed with the defendant and concluded that based the totality of the circumstances, the trial court correctly concluded that the officer did not exceed the scope of the defendant’s consent. Accordingly, the judgment of the trial court was affirmed.  


The trial court did not abuse its discretion by admitting the complained-of extraneous offense evidence respecting other surgeries by the defendant.
Duntsch v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
December 10, 2018
05-17-00235-CR
Douglas S. Lang
Published
The defendant appealed the judgment of the trial court which convicted him of intentionally or knowingly causing serious bodily injury to an elderly individual while using or exhibiting a deadly weapon and sentenced him to life imprisonment. On appeal, the defendant contended that the trial court abused its discretion by admitting certain evidence of extraneous conduct of the defendant, and the evidence presented at trial was insufficient to support the defendant’s conviction because the State failed to prove the culpable mental state beyond a reasonable doubt. The State counterargued that the jury could reasonably infer that because the defendant was a neurosurgeon, he knew what any neurosurgeon would know, and because the evidence showed that the defendant had caused serious bodily harm in multiple cases during the preceding months and knew it, rational jurors could have inferred that the defendant was aware that his conduct in the surgery was reasonably certain to cause the same result. The appellate court disagreed with the defendant and found that the trial court did not abuse its discretion by admitting the complained-of extraneous offense evidence respecting other surgeries by the defendant. The appellate court concluded that the defendant was not harmed by the admission of the email in question since the jury was presented with evidence of the defendant’s alleged mental state. Accordingly, the judgment of the trial court was affirmed.


The statute requiring collection of jury's fees passed constitutional muster because it was created to reimburse the prosecutor for costs incurred in trying the case as a “recoupment of costs” under Peraza.
Jackson v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 20, 2018
14-17-00511-CR
Martha Hill Jamison
Published
The appellant was convicted of a Class B misdemeanor for failing to stop and give information and was sentenced to two days in Harris County Jail. He appealed his conviction and the assessment of certain court costs. The appellate court observed that the evidence was legally sufficient to show that appellant was knowingly involved in a traffic accident. Further, appellant did not meet his burden of showing egregious harm. Next, the statute requiring collection of jury's fees passed constitutional muster because it was created to reimburse the prosecutor for costs incurred in trying the case as a “recoupment of costs” under Peraza. Furthermore, appellant had not met his burden to show that the jury’s fees collected under the statute could not be used for legitimate criminal justice purposes in all possible circumstances. Finally, because the sheriff’s fee was an actual recoupment of the out of pocket expenses incurred for summoning witnesses and for associated mileage, the court concluded that appellant had not met his burden to show that the sheriff’s fees collected under the statute could not be used for legitimate criminal justice purposes in all possible circumstances. Accordingly, the judgment was affirmed


Because it was possible that the appellee might be able to correct the deficiencies in her expert reports, and the trial court never considered whether an extension was necessary, the court declined to dismiss the appellee’s claims against the individual appellee doctor.
The Methodist Hosp, Methodist Health Ctrs. v. Addison
Health Care, Litigation: Personal Injury
Texas 14th Court of Appeals
December 21, 2018
14-17-00917-CV
J Brett Busby
Published
In an interlocutory appeal, the appellants challenged the trial court’s order denying their respective motions to dismiss the medical malpractice claim filed by the appellee. The appellants asserted the trial court abused its discretion because the appellee’s two expert report lacked elements required by section 74.351 of the Texas Civil Practice and Remedies Code. The appellate court stated that a plaintiff need not actually prove the claim with the expert report; the report must show that the expert was of the opinion that the plaintiff could do so, including as to both foreseeability and cause-in-fact. Further, the expert must explain the basis of his or her conclusions, showing how and why a breach of the standard of care caused the injury. Furthermore, whether an expert opinion is sufficient must be decided in the context of the entire report, rather than taking statements in isolation. Here, the doctor’s report adequately addressed the required elements of standard of care, breach, and causation based on the student nurse’s actions. Because it was possible that the appellee might be able to correct the deficiencies in her expert reports, and the trial court never considered whether an extension was necessary, the court declined to dismiss the appellee’s claims against the individual appellee doctor. The court instead reversed the trial court’s denial of the individual appellee doctor’s motion to dismiss and remanded for the trial court to consider whether to grant the appellee a thirty-day extension. Accordingly, the trial court's judgment was partly affirmed, partly reversed and the case was remanded.


Because the appellants had not challenged all possible grounds for the trial court’s exclusion of the evidence, the court would be justified in concluding that the appellants waived any challenge to the trial court’s exclusionary ruling.
Harpst v. Fleming
Contracts, Damages, Torts
Texas 14th Court of Appeals
December 21, 2018
14-17-00209-CV
Kevin Jewell
Published
After a law firm settled tort claims against a drug manufacturer on behalf of approximately 8,000 clients. About half the settling clients sued the appellees, the firm, and one of the firm’s lawyers. The clients did not seek to set aside the settlement, but asserted breach of fiduciary duty and contract claims based on their attorneys’ alleged failure to disclose certain information related to the settlement and the deduction of allegedly unreasonable expenses from the clients’ recovery. The trial court severed six clients’ claims, which proceeded to trial. A jury returned a verdict in the appellees’ favor on two dispositive questions, finding that the appellees complied with their fiduciary duty and did not breach the clients’ fee agreements. The trial judge signed a take-nothing judgment consistent with the jury’s verdict. The appellate court found that the appellants did not plead the joint venture doctrine in connection with their free echocardiogram allegations nor did they request leave to file a pleading amendment to assert joint venture. Thus, the court could not say that the trial court abused it was discretion in excluding evidence relating to the referring law firms’ alleged statements or conduct. Further, because the appellants had not challenged all possible grounds for the trial court’s exclusion of the evidence, the court would be justified in concluding that the appellants waived any challenge to the trial court’s exclusionary ruling. Furthermore, the trial court granted the appellees motion in limine on the free echocardiogram issue, which preserved nothing for review. Accordingly, the judgment was affirmed.  


There was sufficient evidence to support the trial court’s finding that appellant, while on probation, committed a new offense by recklessly, and unjustifiably, causing bodily injury to his girlfriend.
Bell v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 21, 2018
14-18-00048-CR
Ken Wise
Published
The appellant was on deferred adjudication community supervision for aggravated assault with a deadly weapon and aggravated promotion of prostitution. The appellate court observed that there was more than a scintilla of evidence to support the trial court’s finding that appellant committed a new offense by recklessly, and unjustifiably, causing bodily injury to his girlfriend. Further, appellant was required to lodge another objection to preserve error, but he failed to do so. Next, the State’s arguments were outside the record. Thus, the court assumed that the trial court erred by overruling appellant’s objection to those facts outside the evidence. Furthermore, appellant was not harmed by the improper argument to which he objected. Finally, because the trial court’s judgments erroneously reflected that appellant pleaded “true” to the allegations in the State’s motion to adjudicate, the court reformed the trial court’s judgments to add the word “not” before the word “true” under the heading “plea to the motion to adjudicate.” Accordingly, the court affirmed the trial court’s judgments as modified.


The trial court erred in denying the appellant employee's motion to compel arbitration where she signed an arbitration agreement before being hired, then resigned, and then was rehired without signing a separate arbitration agreement.
Longoria v. CKR Prop. Mgmt., LLC
ADR, Contracts, Employment
Texas 14th Court of Appeals
December 21, 2018
14-18-00100-CV
William J. Boyce
Published
The appellant signed an arbitration agreement before beginning her employment with the appellee company. The parties’ arbitration agreement stated that the appellant and the appellee agreed to arbitrate any claim or dispute between them or against the other whether related to the employment relationship or otherwise. The appellant resigned from the appellee and was rehired by the appellee approximately ten months later. The appellant did not sign a separate arbitration agreement before beginning her second period of employment. The appellee fired the appellant six months after she was rehired and sued her for claims arising from her second employment period. The appellant moved to compel arbitration and the trial court denied the appellant's motion. The appellate court found that the parties executed a valid arbitration agreement and that the appellee's claims in the proceeding fell within the scope of that agreement. The appellant did not waive her arbitration rights. The trial court therefore erred in denying the appellant's motion to compel arbitration. Accordingly, the trial court’s January 30, 2018 order was reversed and the cause was remanded to the trial court for proceedings consistent with the opinion.


The appellants’ objection to the visiting judge was not timely, and the appellants made no objection to the judge continuing to sit after she mistakenly signed an order granting the untimely objection.
Collins v. D.R. Horton-Texas Ltd.
Damages, Torts
Texas 14th Court of Appeals
December 20, 2018
14-17-00764-CV
Martha H. Jamison
Published
The appellee sued the appellants to quiet title, for trespassing on its property and for a declaration concerning the boundaries of the respective properties. The appellants counterclaimed for adverse possession. A year later, the appellants added claims for trespass, conversion, and malicious prosecution. The appelllee filed a motion for partial summary judgment. The trial court granted the motion. Before trial, the appellant amended their pleadings and added new counterclaims emanating from incidents in 2016. The appellee filed a motion to sever the new claims, which the trial court granted. The appellants’ claims for trespass, conversion, and malicious prosecution were severed, and the appellee’s trespass and to quiet title claims and the appellants’ adverse possession claim proceeded to trial. The jury found for the appellee on all claims presented but was not asked to and did not award any damages. The appellants challenged the judgment. The appellate court found that the partial motion for summary judgment could have been based on an unchallenged ground. Further, the appellants’ objection to the visiting judge was not timely, and the appellants made no objection to the judge continuing to sit after she mistakenly signed an order granting the untimely objection. Lastly, the appellants failed to demonstrate prejudice resulting from the denial of their motion for a continuance. Accordingly, the court affirmed the judgment.


Because there was no landlord-tenant relationship between the appellees and the appellants, the trial court did not err in granting summary judgment on the appellant’s unlawful lockout and constructive eviction claims.
St. Anthony's Minor Emergency Ctr., L.L.C. v. Ross Nicholson 2000 Separate Prop. Trust
Landlord and Tenant, Litigation: Personal Injury, Real Property
Texas 14th Court of Appeals
December 20, 2018
14-16-01005-CV
Martha Hill Jamison
Published
The landlord bank entered into a commercial lease of office space with tenant corporation. The lease prevented the tenant from subletting any of the space without the prior written consent of the landlord. The landlord assigned the lease with the tenant to the appellee trust. The tenant defaulted on the lease. The appellant clinics had been paying rent to the tenant, but the tenant failed to fulfill its own rental obligations. The appellee trust subsequently locked the appellant’s out of its offices. The appellant’s sued the appellee trust and appellee individual. The appellees filed a motion for summary judgment. The trial court granted the motion and rendered a final take nothing summary judgment. The appellate court found that because there was no landlord-tenant relationship between the appellees and the appellants, the trial court did not err in granting summary judgment on the appellant’s unlawful lockout and constructive eviction claims. The trial court did not err in granting summary judgment on the nuisance claim because the appellees did not owe a legal duty to the appellant’s to refrain from conducting the lockout. Furthermore, the lease was assigned to the appellee trust, the tenant failed to pay rent under the lease, and the appellee trust was entitled to assert its contractual right of lockout under the lease. The appellee trust exercised its contractual rights under the lease in conducting the lockout and was legally justified in doing so. Accordingly, the court affirmed the judgment of the trial court.


Coupled with the evidence establishing the appellant’s location six days before the murder and on the day of the murder, evidence of the appellant’s targeted deletion of cell phone data tended to connect the appellant to the murder.
Lopez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 20, 2018
14-17-00205-CR
Martha Hill Jamison
Published
The appellant challenged his capital murder conviction. The appellate court found that the state presented witnesses to demonstrate that the appellant had deleted cell phone data from the relevant time frame. Coupled with the evidence establishing the appellant’s location six days before the murder and on the day of the murder, evidence of the appellant’s targeted deletion of cell phone data tended to connect the appellant to the murder. Further, non-accomplice evidence showed the appellant acted with the armed men in preparing for the robbery and then took steps to conceal from investigators his communications with the armed men and others. After eliminating the accomplice testimony from consideration and examining the remaining evidence, the court concluded that the record contained evidence linking the appellant to the murder and rational jurors could conclude that the evidence sufficiently tended to connect the appellant to the offense. Further, the appellant had not shown that his trial counsel’s failure to object to the prosecutor’s statements during closing arguments constituted ineffective assistance of counsel, and the trial court costs assessed against the appellant were constitutional, the judgment was affirmed.


Republican candidate's defamation case against appellants for social media posts should have been dismissed; the appellants established the TCPA applied, thereby shifting the burden to the appellee to establish a prima facie case.
Rodriguez v. Gonzales
Election, Torts
Texas 14th Court of Appeals
December 18, 2018
14-17-00667-CV
Tracy Christopher
Published
While Republican, the appellee, and the democrat were opposing candidates in the general election for the position of Harris County Constable, Precinct 6, the appellants published negative statements about the appellee on social media. The appellee sued them for defamation, and pursuant to the Texas Citizens Participation Act (the TCPA), the appellants moved to dismiss the appellee’s claims. The appellate court observed that the appellants established that the TCPA applied to the appellee’s claims, thereby shifting the burden to the appellee to establish a prima facie case for each essential element of his claims. Further, the court held that the appellee was a limited-purpose public figure, and thus, he was required to establish a prima facie case of actual malice for the challenged publications. Finally, the court observed that he failed to do so, and in some instances, additionally failed to show that the statement at issue was false. Accordingly, the court reversed the judgment and remanded.


The officers’ invalid inventory search did not require a suppression of the heroin because the officers did not discover the heroin during their invalid inventory search - the drug-sniffing dog, an independent source, discovered it.
Medina v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 18, 2018
14-17-00611-CR
Tracy Christopher
Published
The appellant challenged a conviction for possession of a controlled substance, asserting the evidence was insufficient to support the conviction, and that the trial court abused its discretion by denying a motion to suppress. The appellate court found that the court could assume without deciding that the officers’ inventory search was invalid, as appellant contended. Nevertheless, the officers’ invalid inventory search did not require a suppression of the heroin because the officers did not discover the heroin during their invalid inventory search. Rather, a drug-sniffing dog discovered the heroin, and the dog was an independent source. Further, the only evidence of inculpatory value that was discovered in the invalid inventory search was the bag of syringes. Even if the court assumed that the admission of those syringes was erroneous, the court could not conclude that the appellant suffered any harm. Furthermore, the evidence was legally sufficient to support the conviction. The trial court acted within the bounds of its discretion by denying the motion to suppress because the officers were authorized to call for the assistance of a drug-sniffing dog after lawfully arresting the appellant for a traffic violation; the drug-sniffing dog discovered the heroin after an exterior sweep of the appellant’s vehicle, which did not require a warrant or probable cause; the dog sniff was independent of any illegality that occurred during the officers’ inventory search, which did not produce any harmful evidence in any event; and there was evidence from which the trial court could have reasonably found that the automobile exception did apply. Accordingly, the trial court's judgment was affirmed.


Because the trial court’s conclusion of law showed that it failed to conduct a full equitable subrogation analysis as directed in the court's prior opinion, the trial court’s error was harmful.
Lyda Swinerton Builders, Inc. v. Cathay Bank
Contracts, Real Property, Tax
Texas 14th Court of Appeals
December 18, 2018
14-17-00030-CV
J Brett Busby
Published
Appellant entered into a contract to improve real property owned by Corporation. Shortly after Appellant filed its first mechanic’s lien affidavit, Appellee bank lent Corporation money for the project, and part of the loan proceeds were used to satisfy outstanding tax liens against the property. Appellant continued incurring the cost of the crane and tunnel forms from October 2007 until they were finally removed in July 2008. Appellant sent Corporation a notice of intent to terminate the contract. But Appellant kept the trailer and other items on the site after it filed suit against Corporation in October 2008. The trial court declined to award either side attorney’s fees. Appellant asked the trial court to file additional and amended findings of fact and conclusions of law, but it declined to do so. The appellate court found that the fact that the Corporation contract was constructively terminated was the sole ground supporting the judgment excluding the amounts stated in Appellant’s second, third, and fourth amended lien affidavits from Appellant’s mechanic’s lien. The trial court’s erroneous conclusion of law regarding the date when Corporation’s indebtedness accrued was therefore harmful to Appellant. Further, Appellant’s knowledge of the foreclosure sale did not establish, as a matter of law, that Appellant suffered no prejudice from the foreclosure sale. The court therefore declined to revisit the determination made in its original opinion that Appellant was prejudiced by Appellee’s foreclosure of the tax liens on the Corporation property. Furthermore, the trial court erred by basing its equity conclusion solely on the prejudice to Appellant that would result from the non-judicial foreclosure of a tax lien. Because the trial court’s conclusion of law showed that it failed to conduct a full equitable subrogation analysis as directed in the court's prior opinion, the trial court’s error was harmful.  Accordingly, the court reversed the trial court’s judgment and remanded the case to the trial court for further proceedings.


There was legally sufficient evidence to support the defendant’s conviction as a principal actor in the capital murder of the child, and any error in charging the jury on the law of parties was harmless.
Washington v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 20, 2018
14-17-00595-CR
Marc W. Brown
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder. On appeal, the defendant argued that the evidence was legally insufficient to support that he intentionally or knowingly caused the death of the child, and the trial court abused its discretion by permitting the introduction of statements that the defendant’s girlfriend made to police. The defendant further asserted that the admission of such evidence violated his rights under the Confrontation Clause, and the trial court erred by instructing the jury on the law of parties because there was insufficient evidence that the defendant was guilty as the principal or as a party. The appellate court disagreed with the defendant and found that the evidence, viewed in the light most favorable to the verdict, was legally sufficient to permit a rational jury to convict the defendant of the capital murder, and that the State presented substantial evidence of the defendant’s guilt, which tended to corroborate the statements made to the police. The appellate court concluded that there was legally sufficient evidence to support the defendant’s conviction as a principal actor in the capital murder of the child, and any error in charging the jury on the law of parties was harmless. Accordingly, the judgment of the trial court was affirmed.


The trial court erred by excluding the evidence of the decedent’s mental illness and drug use, and there was no evidence to support the finding that the alleged negligence of the employer in training the driver proximately caused the collision.
JBS Carriers, Inc. v. Washington
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
December 21, 2018
17-0151
Phil Johnson
Published
The defendant appealed the judgment of the appellate court which affirmed the trial court’s decision, finding the defendant’s negligence as the proximate cause and death of the decedent’s collision. On appeal, the Supreme Court was asked to consider whether the trial court abused its discretion by excluding evidence of the pedestrian's mental illness and the fact that she had alcohol and drugs in her system at the time of the collision, and whether the defendant-employer could be held directly liable for the death based on a negligent training theory. The defendant argued that the evidence of the decedent’s mental health, prescription medication use, and drug and alcohol use was relevant to the issue of her negligence. The plaintiff-family counterargued that the trial court did not abuse its discretion in excluding the evidence because its probative value was low and the danger of unfair prejudice was high. The Supreme Court concluded that the trial court erred by excluding the evidence of the decedent’s mental illness and drug use, and there was no evidence to support the finding that the alleged negligence of the employer in training the driver proximately caused the collision. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.


Texas Business and Commerce Code section 4.406 precluded the petitioner’s attempt to hold his bank liable for the losses because the deposit agreements between the parties did not alter this outcome.
Compass Bank v. Calleja-Ahedo
Banking and Finance, Business, Contracts, Procedure
The Supreme Court of Texas
December 21, 2018
17-0065
James D Blacklock
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s decision in favor of the respondent-bank in an action where the petitioner sought to recover the stolen funds from his bank account as the result of the petitioner’s identity being stolen. On appeal, the Supreme Court was asked to consider whether the petitioner or his bank must suffer the financial consequences of the theft. The respondent argued that the exceptions in section 4.406 required the petitioner to bear the loss under the circumstances. The Supreme Court noted that the petitioner failed for over a year to look for missing bank statements or inquire about the status of his account, rather than monitor his account as contemplated by section 4.406 of the Texas Business and Commerce Code. The Supreme Court concluded that section 4.406 precluded the petitioner’s attempt to hold his bank liable for the losses because the deposit agreements between the parties did not alter this outcome. Accordingly, the judgment of the appellate court was reversed.


Because the parties agreed to have the arbitrator decide issues of arbitrability, the appellate court erred in determining that the dispute was one that could not be arbitrated.
RSL Funding, LLC v. Newsome
ADR, Appellate: Civil, Contracts, Gov't/Administrative, Insurance, Litigation: Personal Injury, Procedure
The Supreme Court of Texas
December 21, 2018
16-0998
John P. Devine
Published
The petitioners appealed the judgment of the appellate court which affirmed the trial court’s decision to deny their motion to compel arbitration in a dispute over the transfer of a payee’s structured-settlement-payment rights to another. On appeal, the petitioners contended that the appellate court impermissibly decided arbitrability itself in the face of a valid arbitration clause that explicitly assigned arbitrability disputes to the arbitrator. The respondent maintained that the arbitration clause was inapplicable because this dispute must be decided by a court due to the bill of review and Structured Settlement Protection Act context. The Supreme Court concluded that because the parties agreed to have the arbitrator decide issues of arbitrability, the appellate court erred in determining that the dispute was one that could not be arbitrated. Accordingly, the judgment of the appellate court was reversed and remanded with instructions to grant the motion to compel arbitration.


The Texas Medical Liability Act’s emergency-medical-care provision applied to claims arising from emergency medical care provided in a hospital's obstetrical unit regardless of whether the patient was first evaluated or treated in a hospital emergency department.
Tex. Health Presbyterian Hosp. of Denton v. D.A.
Appellate: Civil, Health Care, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
December 21, 2018
17-0256
Jeffrey S. Boyd
Published
The defendant-doctor appealed the judgment of the appellate court which held that the Texas Medical Liability Act did not require the plaintiffs to prove willful and wanton negligence in its medical negligence action. On appeal, the defendant asserted that the plaintiffs could not recover based on claims asserting ordinary negligence, rather the claims arose from the provision of emergency medical care in a hospital obstetrical unit, they could only recover by proving that the doctor acted with willful and wanton negligence. The Supreme Court disagreed with the appellate court’s conclusion that the plaintiffs’ proposed construction was reasonable, and based on section 74.153's text and context, the doctor offered the only reasonable construction. The Supreme Court concluded that the Texas Medical Liability Act’s emergency-medical-care provision applied to claims arising from emergency medical care provided in a hospital's obstetrical unit regardless of whether the patient was first evaluated or treated in a hospital emergency department. Accordingly, the judgment of the appellate court was reversed.


The Supreme Court concluded that only one of the several allegations against the county official constituted an enforcement action, and the State's sovereign immunity did not protect it from the county official's claim for appellate costs.
State ex rel. Best v. Harper
Appellate: Civil, Election, Gov't/Administrative, Procedure, Tax
The Supreme Court of Texas
December 21, 2018
16-0647
Jeffery Brown
Published
The State appealed the judgment of the appellate court which reversed the trial court’s decision to deny the respondent’s motion to dismiss, finding that the Texas Citizens Participation Act (TCPA) applied to the State’s removal action and that the State failed to establish a prima facie case for removal. On appeal, the State conceded that the candidate’s failed reelection bid rendered its removal petition moot, however, it asserted that the issue whether the appellate court properly ordered the trial court to award the candidate’s costs, attorney's fees, and sanctions under the TCPA was not moot. The Supreme Court agreed with the candidate that the request for an award of attorney's fees and sanctions under the TCPA presented an issue that was separate from the request for removal, and that this separate issue survived the mootness that would otherwise prevent it from addressing the underlying claim. The Supreme Court found that this suit to remove a county official from elected office under chapter 87 of the Texas Local Government Code was a legal action under the TCPA, however, the TCPA did not apply when a government attorney brought an enforcement action in the State's name. The Supreme Court concluded that only one of the several allegations against the county official constituted an enforcement action, and the State's sovereign immunity did not protect it from the county official's claim for appellate costs. Accordingly, the judgment of the appellate court was affirmed.


The law firm failed to establish conclusively its right to judgment as a matter of law on each affirmative defense of collateral estoppel, waiver, and release.
Wilson v. Fleming
Appellate: Civil, Contracts, Ethics, Procedure, Professional Responsibility, Torts
Texas 14th Court of Appeals
December 21, 2018
14-17-00223-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the law firm in an action claiming that the law firm breached contractual and fiduciary duties. On appeal, the plaintiffs argued that the law firm submitted no competent summary judgment evidence, and that the trial court's consideration of objectionable evidence was an abuse of discretion. The plaintiffs further contended that the law firm failed to prove conclusively its entitlement to judgment on the merits of each asserted affirmative defense of collateral estoppel, waiver, and release. The appellate court found that the law firm made no attempt in its motion for summary judgment to rebut the presumption of invalidity or unfairness by demonstrating that the plaintiffs’ releases were fair and reasonable, it did not raise its arguments in the trial court, and a motion for traditional summary judgment must stand or fall on its own merit. The appellate court concluded that the law firm failed to establish conclusively its right to judgment as a matter of law on each affirmative defense of collateral estoppel, waiver, and release. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


There was no requirement in the Family Code that the Department make an additional request at the bench trial for termination of the mother’s parental rights on the specific grounds alleged in its petition.
In re D.A.Z.
Family, Procedure
Texas 8th Court of Appeals
December 21, 2018
08-18-00124-CV
Ann Crawford McClure
Published
The mother appealed the judgment of the trial court which terminated the parental rights to her child after the Department received a report that the mother was pregnant and using methamphetamine. On appeal, the mother challenged the legal and factual sufficiency of the evidence supporting the best interest finding. The appellate court noted that parental rights could be involuntarily terminated through proceedings brought under Section 161.001 of the Texas Family Code, and under this provision, the petitioner must establish one or more of the statutory acts or omissions enumerated as grounds for termination, and prove that termination was in the best interest of the children. The appellate court found that pursuant to the Holley factors, the evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the mother’s parental rights was in the child’s best interest. The mother further asserted that there was a variance between the trial court's oral pronouncement at trial and the final termination order. The appellate court concluded that there was no requirement in the Family Code that the Department make an additional request at the bench trial for termination on the specific grounds alleged in its petition. Accordingly, the judgment of the trial court was affirmed.


The jurisdictional evidence did not establish that the guarantor was the corporation’s alter ego or that he purposefully availed himself of the privilege of conducting activities within Texas.
Wilmington Trust, N.A. v. Su
Appellate: Civil, Contracts, Corporations, Creditor/Debtor, Litigation: Commercial, Procedure, Wills/Trusts/Probate
Texas 14th Court of Appeals
December 21, 2018
14-17-00382-CV
J Brett Busby
Published
The bank appealed the judgment of the trial court which granted the special appearance and dismissed the bank’s lawsuit against the guarantor in an action seeking to collect on a guaranty. On appeal, the bank challenged the trial court’s dismissal, arguing that the guarantor had substantial purposeful contacts with Texas because he was the alter ego of the debtor-corporation, and that the guarantor personally had numerous purposeful contacts with Texas that were connected with the operative facts of the guaranty litigation. The guarantor counterargued that the appellate court should affirm the trial court's dismissal because he did not purposefully avail himself of the protections offered by Texas law and courts. The appellate court disagreed with the bank and found that beyond the evidence of stock ownership, the bank did not point to any other evidence in the record demonstrating that the guarantor actually exercised atypical control over the day-to-day internal operations of the corporation. The appellate court concluded that the jurisdictional evidence did not establish that the guarantor was the corporation’s alter ego or that he purposefully availed himself of the privilege of conducting activities within Texas, thereby invoking the benefits and protections of Texas laws. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the employees correctly asserted that they were entitled to attorneys' fees, costs, sanctions, and possibly expenses, related to the dismissal of the employer’s claims.
Gaskamp v. WSP USA, Inc.
Appellate: Civil, Damages, Employment, Torts
Texas 1st Court of Appeals
December 20, 2018
01-18-00079-CV
Laura Carter Higley
Published
The employees appealed the judgment of the trial court which denied their motion to dismiss the employer’s lawsuit alleging misappropriation of its trade secrets and confidential information. On appeal, the employees argued that the two-sentence verification to the employer’s amended petition did not satisfy their evidentiary burden in response to the employees’ motion to dismiss. The employees further asserted that they met their burden to show that the Texas Citizens’ Participation Act (TCPA)  applied to the employer’s claims, and that the trial court erred in not awarding attorneys' fees against the employer after it failed to file a response to their motion to dismiss. The employees also maintained that the employer did not present clear and specific evidence sufficient to state a prima facie case as to each of its claims. The appellate court noted that a party that relied only on its pleadings did so at its own risk of being found not to have satisfied its TCPA burden under the circumstances of the case, but the Act did not require parties to always offer evidence in addition to the pleadings. The appellate court concluded that the employees correctly asserted that they were entitled to attorneys' fees, costs, sanctions, and possibly expenses, related to the dismissal of the employer’s claims. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded.


Because the plaintiffs established by clear and specific evidence a prima facie case for each essential element of each of their claims, the trial court correctly denied the defendants’ motion to dismiss.
Universal Plant Serv., Inc. v. Dresser-Rand Group, Inc.
Appellate: Civil, Constitution, Contracts, Damages, Employment, Evidence, Procedure, Torts
Texas 1st Court of Appeals
December 20, 2018
01-17-00555-CV
Evelyn V. Keyes
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss the plaintiffs’ suit alleging causes of action for misappropriation of trade secrets, unlawful computer access, conversion, theft, and breach of contract. On appeal, the defendants argued that the trial court erred in holding that the Texas Citizens Participation Act (TCPA) did not apply to the plaintiffs’ claims against it, and that the trial court erred in denying the defendants’ motion to dismiss because the plaintiff failed to establish by clear and specific evidence a prima facie case for each element of each claim. The defendants further maintained that trial court abused its discretion in imposing a spoliation presumption against the defendants because the plaintiff failed to establish the essential elements of spoliation. The plaintiffs counterargued that the defendants’ motions to dismiss were properly denied because the record demonstrated that the plaintiff showed by clear and specific evidence a prima facie case for each essential element of each of its claims. The appellate court agreed with the plaintiffs and found that they met their burden of making a prima facie case on the breach-of-contract and state and federal misappropriation-of-trade-secrets claims. The appellate court concluded that because the plaintiffs established by clear and specific evidence a prima facie case for each essential element of each of their claims, the trial court correctly denied the defendants’ TCPA motion to dismiss. Accordingly, the judgment of the trial court was affirmed.


The property owner presented no contradictory evidence, and that the trial court awarded these amounts to the predecessor in interest in the final judgment, therefore, legally and factually sufficient evidence supported the amounts awarded to the predecessor in interest in the final judgment.
Fenlon v. Harris Cnty.
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Tax
Texas 1st Court of Appeals
December 20, 2018
01-17-00877-CV
Evelyn V. Keyes
Published
The property owner appealed the judgment of the trial court which entered judgment in favor of the County, ordering foreclosure of their tax liens on the property owner’s subject property. On appeal, the property owner contended that legally and factually insufficient evidence supported the trial court's finding of the base tax to which the predecessor in interest was entitled, and that legally and factually insufficient evidence supported the finding that the predecessor in interest had a valid tax lien. The property owner further asserted that legally and factually insufficient evidence supported the award of penalties and interest, that the award of attorney's fees to the predecessor in interest was unreasonable and excessive, and that legally and factually insufficient evidence supported the finding that the property owner was personally liable for the amounts awarded in the judgment. The appellate court noted that the predecessor in interest submitted evidence demonstrating the outstanding principal balance under the note, that the penalties and interest that had accrued on the principal balance, and that the attorney's fees had incurred. The appellate court concluded that the property owner presented no contradictory evidence, and that the trial court awarded these amounts to the predecessor in interest in the final judgment, therefore, legally and factually sufficient evidence supported the amounts awarded to the predecessor in interest in the final judgment. Accordingly, the judgment of the trial court was affirmed.


The trial court correctly granted summary judgment in the administrator’s favor on limitations grounds regarding the claims for breach of fiduciary duty and fraud by nondisclosure because the beneficiaries were on inquiry notice of their potential claims.
Brown v. Arenson
Appellate: Civil, Consumer, Discovery, Torts, Wills/Trusts/Probate
Texas 1st Court of Appeals
December 20, 2018
01-17-00515-CV
Michael C. Massengale
Published
The beneficiaries appealed the judgment of the trial court which granted the independent administrator of their father’s estate, in an action seeking an accounting and alleging causes of action for fraud by nondisclosure, negligent misrepresentation, breach of fiduciary duty, professional negligence, and violation of the Deceptive Trade Practices Act. On appeal, the beneficiaries contended that the trial court erred by granting summary judgment in the administrator’s favor because genuine issues of material fact precluded summary judgment, in that their claims did not accrue when they received their inheritance checks because the administrator breached his fiduciary duties by failing to make a full disclosure of all material facts. The beneficiaries further claimed that the discovery rule and the doctrine of fraudulent concealment deferred accrual of their causes of action. The appellate court noted that the beneficiaries made no arguments in the appeal to explain why a movant's affidavit would be entirely inadmissible because it conflicted in some particulars with a prior deposition. The appellate court found that the injury alleged by the beneficiaries was not inherently undiscoverable, and the discovery rule did not apply. The appellate court concluded that the trial court correctly granted summary judgment in the administrator’s favor on limitations grounds regarding the claims for breach of fiduciary duty and fraud by nondisclosure because the beneficiaries were on inquiry notice of their potential claims at the time they reached the age of majority and received their inheritance checks. Accordingly, the judgment of the trial court was affirmed.


Section 13.2475 of the Texas Water Code violated the general constitutional prohibition against local laws that regulate the affairs of a city.
Tyler v. Liberty Utilities (Tall Timbers Sewer) Corp.
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 20, 2018
01-17-00745-CV
Michael C. Massengale
Published
The City appealed the judgment of the trial court which ordered a declaratory judgment that Section 13.2475 of the Texas Water Code was unconstitutional. On appeal, the City contended that Section 13.2475 was authorized by Article I, Sections 17(d) and 26 as exceptions to the constitutional prohibition of local laws. The City asserted that Section 13.2475 was not prohibited under Article III, Section 56(a) because the statute's subject matter was not included among the specific topics for which local or special laws were prohibited, and even if the statute was a local law for purposes of Article III, Section 56, it was not unconstitutional because it was otherwise authorized by Article I, Section 17(d), which authorized the Legislature to control privileges and franchises, and Section 26, which prohibited monopolies. The appellate court found that Section 13.2475 of the Texas Water Code violated the general constitutional prohibition against local laws that regulate the affairs of a city. The appellate court concluded that the constitutional provisions that generally authorized legislative control over privileges and franchises and that generally prohibited perpetuities and monopolies did not authorize this local law. Accordingly, the judgment of the trial court was affirmed.


Article 62.0551(a) did not burden substantially more speech than was necessary to further the State's legitimate interests, and thus, the defendant failed to establish that the statute was facially unconstitutional as substantially overbroad in violation of the First Amendment.
Ex Parte Dennis Lee Odom
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 20, 2018
01-18-00169-CR
Harvey Brown
Published
The defendant appealed the trial court’s denial of his pretrial application for writ of habeas corpus challenging Article 62.0551(a)'s reporting requirements as a facially unconstitutional violation of the First Amendment right to freedom of speech. This appeal stemmed from the defendant’s conviction as a sex offender and charge of failing to report online identifiers. The appellate court was asked to consider the defendant’s constitutional challenge to the Texas Sex Offender Registration Program's requirement that convicted sex offenders register internet identifiers, whereby the defendant asserted that Article 62.0551 was unconstitutional on its face because it resulted in an impermissible prior restraint on speech and was overbroad when considering the State's interest in preventing crime. The appellate court noted that since Article 62.0551(a)'s reporting requirement burdened constitutionally protected speech, it was required to pass First Amendment scrutiny. The appellate court concluded that Article 62.0551(a) did not burden substantially more speech than was necessary to further the State's legitimate interests, and thus, the defendant failed to establish that the statute was facially unconstitutional as substantially overbroad in violation of the First Amendment. Accordingly, the judgment of the trial court was affirmed.


Since the plaintiffs sufficiently segregated their attorney's fees, the trial court did not err in awarding them attorney's fees as it did pursuant to Article 581-33(D)(7) of the Texas Securities Act.
Kubbernus v. Ecal Partners, Ltd.
Appellate: Civil, Contracts, Procedure, Securities, Torts
Texas 1st Court of Appeals
December 20, 2018
01-16-00174-CV
Terry Jennings
Published
The defendants appealed the judgment of the trial court which rendered judgment in favor of the plaintiffs in their suit alleging securities violations under the Texas Securities Act, breach of contract, breach of fiduciary duty, and fraud. On appeal, the defendants contended that the evidence was insufficient to support the jury's findings in favor of the plaintiffs on their claims for securities violations and attorney's fees under the Act, certain plaintiffs could not bring suit under the Act, and certain plaintiffs’ securities-violations claims were barred by the Act’s statute of repose. The appellate court found that the plaintiffs were not required to prove causation as an element of their claims for securities violations under the Act. The appellate court concluded that since the plaintiffs sufficiently segregated their attorney's fees, the trial court did not err in awarding them attorney's fees as it did pursuant to Article 581-33(D)(7). Accordingly, the judgment of the trial court was affirmed. 


The homeowner did not show that the improper refusal of a single payment to the lender excused all the subsequent payments not made under the loan.
Mulvey v. U.S. Bank N.A.
Appellate: Civil, Banking and Finance, Creditor/Debtor, Procedure, Real Property
Texas 8th Court of Appeals
December 19, 2018
08-17-00186-CV
Ann Crawford McClure
Published
The homeowner appealed the judgment of the trial court which granted summary judgment in favor of the lender, which foreclose on property securing a home equity loan. On appeal, the appellate court was asked to consider whether the homeowner presented some evidence supporting one or more of his asserted affirmative defenses. The homeowner contended that he raised some evidence in support of several affirmative defenses to any default under the note, and the lender did not conclusively disprove those defenses. The appellate court noted that the trial court could have properly concluded that the homeowner did not raise a material fact issue on a statute of limitations defense. The appellate court found that the homeowner failed to raise a genuine issue of material fact on his illegality defense because his summary judgment proofs did not raise an illegality defense under the Texas Constitution. The appellate court concluded that the homeowner did not show that the improper refusal of a single payment to the lender excused all the subsequent payments not made under the loan. Accordingly, the judgment of the trial court was affirmed.


The trial court was within its discretion to admit the detective’s testimony under Rule 403 because there was no clear disparity between the degree of prejudice of the offered evidence and its probative value.
Beham v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
December 19, 2018
06-16-00094-CR
Jack Carter
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery and sentenced him to twenty-five years’ imprisonment. On appeal, the defendant contended that the detective’s testimony that he was holding himself out to be a gang member should have been excluded pursuant to Rule 403 of the Texas Rules of Evidence, which allowed relevant evidence to be excluded if its probative value was substantially outweighed by the danger of unfair prejudice. The appellate court noted that while character and reputation evidence may be prejudicial, it was not unfairly prejudicial because it was unlikely to irrationally impact the jury. The appellate court found that the State's need for this evidence at punishment was minimal because the photographs, showing the defendant with guns, large amounts of cash, and illegal drugs, had already been admitted, and they allowed the State to argue and the jury to infer that the defendant was a gun-toting drug dealer who deserved a longer sentence. The appellate court concluded that the trial court was within its discretion to admit the detective’s testimony under Rule 403 because there was no clear disparity between the degree of prejudice of the offered evidence and its probative value. Accordingly, the judgment of the trial court was affirmed.


The criminal appellate court concluded that assuming it was error to deny the jury instruction on felony deadly conduct, the defendant was not harmed by any such error in the trial court's charge.
Braughton v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 19, 2018
PD-0907-17
Elsa Alcala
Published
The defendant appealed the judgment of the appellate court which found that the evidence was legally sufficient to uphold the defendant’s murder conviction and that there was no harmful error in the jury charge due to the omission of a lesser-included offense instruction on felony deadly conduct. On appeal, the defendant claimed that he shot the victim because he reasonably believed the use of such force was immediately necessary to protect himself and his father against the victim’s attempted use of deadly force. The criminal appellate court found that, viewing the evidence in the light most favorable to the verdict and deferring to the jury's credibility determinations, the evidence supported a rational jury's rejection of the defendant’s self-defense and defense of third person claims, and thus the evidence was legally sufficient to uphold his conviction for murder. The criminal appellate court concluded that assuming it was error to deny the jury instruction on felony deadly conduct, the defendant was not harmed by any such error in the trial court's charge. Accordingly, the judgment of the appellate court was affirmed.


The trial court abused its discretion by granting the real parties in interests’ motion for leave to designate the "unknown gunman" as a responsible third party, and that the relator had no adequate remedy by appeal.
In re Echols
Appellate: Civil, Constitution, Litigation: Personal Injury, Procedure
Texas 5th Court of Appeals
December 19, 2018
05-18-01226-CV
Elizabeth Ann Lang-Miers
Published
The relator filed a petition for writ of mandamus with the appellate court, seeking that it direct the trial court to vacate its order allowing the designation as untimely. On appeal, the relator contended that the trial court clearly abused its discretion by permitting real parties in interest to designate an unknown criminal as a responsible third party without complying with the requirements of section 33.004(j), Texas Civil Practice and Remedies Code. The real parties in interest responded, arguing that the trial court correctly interpreted section 33.004(j). The relator further maintained that 60 days after answering a lawsuit was insufficient time for a defendant to conduct discovery to determine if a criminal met the definition of a responsible third party. The appellate court found that the trial court abused its discretion by granting the real parties in interests’ motion for leave to designate the "unknown gunman" as a responsible third party, and that the relator had no adequate remedy by appeal. The appellate court concluded that the relator’s writ would issue only if the trial court failed to comply with the appellate court’s order. Accordingly, the relator’s writ was conditionally granted.


The record failed to support the appellate court’s conclusion that the defendant suffered "some" harm from the trial court's failure to instruct the jury that it must be unanimous with respect to which of the victim’s orifices was penetrated.
French v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 19, 2018
PD-0038-18
Kevin Patrick Yeary
Published
The State appealed the judgment of the appellate court which reversed the defendant’s conviction for aggravated sexual assault of a child, finding that the trial court erred in not giving a unanimity instruction to the jury as to which orifice the defendant penetrated with his sexual organ. On appeal, the State argued that the defendant failed to preserve error by not leveling an appropriate objection to the jury charge at trial, and the defendant did not suffer any level of harm as a result of the trial court's jury charge. The defendant counterargued that the jury charge ran afoul of the juror unanimity requirement because it did not require the jury to agree as to which orifice the defendant contacted and/or penetrated. The criminal appellate court concluded that the record failed to support the appellate court’s conclusion that the defendant suffered "some" harm from the trial court's failure to instruct the jury that it must be unanimous with respect to which of the victim’s orifices was penetrated. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.


The record did not support the defendant’s affirmative defenses of fraud/equitable estoppel and the record contained no evidence supporting the trial court's finding that the law firm made any false representations to the defendant in the breach of contract action.
Wyde v. Francesconi
Appellate: Civil, Contracts, Damages, Procedure, Professional Responsibility, Torts
Texas 5th Court of Appeals
December 19, 2018
05-17-01333-CV
David L. Bridges
Published
The law firm appealed the judgment of the trial court which awarded it damages based on the defendant’s breach of contract for legal services. On appeal, the law firm challenged the trial court’s award because the evidence did not support the trial court's findings of fact and conclusions of law regarding the defendant’s affirmative defenses of failure to mitigate damages and fraud/equitable estoppel, the damages award was unreasonable, arbitrary, and capricious in light of evidence establishing damages, and to the extent the trial court awarded attorney's fees to the law firm as the prevailing party in the underlying family lawsuit, such award was not supported by the record and was not the proper basis for calculating damages in this case. The appellate court found that the trial court erroneously concluded as a matter of law that the law firm had a duty to mitigate its damages. The appellate court concluded that the record did not support the defendant’s affirmative defenses of fraud/equitable estoppel and the record contained no evidence supporting the trial court's finding that the law firm made any false representations to the defendant in the breach of contract action. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded for a new trial on damages.


The magistrate failed to maintain the requisite neutrality required by section 51.095 of the Texas Family Code when it engaged in the actual questioning of the juvenile.
In re B.B.
Criminal, Evidence, Juvenile, Procedure
Texas 4th Court of Appeals
December 19, 2018
04-18-00108-CV
Sandee Bryan Marion
Published
The State appealed the judgment of the trial court which granted the juvenile’s motion to suppress, asserting the trial court erred in concluding the magistrate's actions violated section 51.095. The appellate court was asked to consider whether section 51.095 of the Texas Family Code, which set forth the requirements for obtaining written statements from juveniles, was violated when the magistrate who administered the statutory warnings and determined the voluntariness of the juvenile's statement engaged in the actual questioning of the juvenile. On appeal, the juvenile argued that the trial court properly concluded section 51.095 was violated because the magistrate assumed the role of agent for the police rather than that of a neutral and disinterested magistrate. The appellate court agreed with the juvenile and found that given the magistrate's role under section 51.095 and the need to strictly comply with the detailed and explicit procedures set forth in section 51.095, the questioning by the magistrate violated section 51.095. The appellate court noted that Section 51.095 only provided for questioning by peace officers or attorneys representing the state for purposes of obtaining the juvenile's statement and only after the juvenile was warned about the right to have an attorney appointed to counsel with the juvenile before and during questioning. The appellate court concluded that the magistrate failed to maintain the requisite neutrality required by the statute. Accordingly, the judgment of the trial court was affirmed.


The defendant’s counsel's brief contained bare, conclusory statements and failed to satisfy the uniform requirements for Anders’ briefs.
In re N.F.M.
Constitution, Evidence, Family, Procedure
Texas 4th Court of Appeals
December 19, 2018
04-18-00475-CV
Luz Elena D Chapa
Published
The defendant appealed the judgment of the trial court which sought to strike the brief he filed pursuant to Anders v. California. The appellate court noted that the defendant was  present at trial and was presumptively aware of what transpired, and therefore the Anders’ brief did not assist the defendant in determining whether to file a pro se brief. The appellate court found that the defendant’s counsel's brief contained bare, conclusory statements and failed to satisfy the uniform requirements for Anders’ briefs. The appellate court concluded that the Anders’ briefing requirements that applied uniformly in criminal and juvenile appeals also applied in termination appeals, and since the defendant’s counsel's Anders’ brief did not satisfy the uniform Anders’ briefing requirements, counsel’s requested relief from the order striking his Anders’ brief must be denied. Accordingly, the defense counsel’s request for relief was denied.


There was no conflict between a statute providing the topics about which a licensed professional was qualified to testify as an expert and the certificate of merit statute including an additional requirement to provide expert testimony in that instance.
Kayne Anderson Capital Advisors, L.P. v. Hill & Frank, Inc.
Appellate: Civil, Contracts, Procedure
Texas 1st Court of Appeals
December 18, 2018
01-18-00544-CV
Laura Carter Higley
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion to dismiss the action alleging faulty design and construction of a pool at the top of a parking garage. On appeal, the plaintiff argued that the trial court erred by granting the defendant’s motion to dismiss. Specifically, the plaintiff asserted that the defendant’s license as an engineer satisfied the requirement of having the same professional license due to recent changes in the Texas Occupations Code concerning work that could be performed either by a licensed engineer or licensed architect. The plaintiff further reasoned that, because the Legislature allowed either an engineer or an architect to provide expert opinion concerning their overlapping zones of work and because the work at issue in this suit fell within that zone, the Legislature intended to allow either engineers or architects to prepare certificates of merit in this situation. The appellate court disagreed with the plaintiff and found that regardless of what other qualifications he had to testify on the subject forming the basis of the suit, the plaintiff did not have the same professional license or registration as the defendant. The appellate court concluded that there was no conflict between a statute providing the topics about which a licensed professional was qualified to testify as an expert and the certificate of merit statute including an additional requirement to provide expert testimony in that instance. Accordingly, the judgment of the trial court was affirmed.


The plaintiff’s parol-evidence and legal-conclusion objections failed because, even if the trial court erred in not striking the challenged statement as hearsay, such error was harmless.
Holland v. Mem’l Hermann Health Sys.
Appellate: Civil, Constitution, Contracts, Damages, Evidence, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
December 18, 2018
01-17-00107-CV
Terry Jennings
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendant in her suit against it for premises liability. On appeal, the plaintiff contended that the trial court erred in granting the defendant summary judgment. Specifically, the plaintiff asserted that the defendant’s representative lacked personal knowledge to testify about the purpose of the sixth amendment to the lease because it was based solely on his use of the word "belief,” which the plaintiff argued that the belief alone was insufficient. The plaintiff further maintained that the defendant’s representative’s testimony was inadmissible because it constituted a legal conclusion and parol evidence. The appellate court disagreed with the plaintiff and found that the representative did not testify as to whether the defendant owed a duty to the plaintiff, rather he only testified, within his personal knowledge as Senior Vice-President and Chief Facility Services Officer for Memorial Hermann, as to which entity was responsible for maintaining the roadway at issue. The appellate court concluded that the plaintiff’s parol-evidence and legal-conclusion objections failed because, even if the trial court erred in not striking this challenged statement as hearsay, such error was harmless as it was cumulative in light of the lease agreements and the other admissible testimony regarding the roadway at issue. Accordingly, the judgment of the trial court was affirmed.


The evidence was insufficient to support the trial court's division of the community estate and confirmation of the petitioner’s separate property.
Cohen v. Bar
Constitution, Family, Procedure
Texas 1st Court of Appeals
December 18, 2018
01-18-00082-CV
Evelyn V. Keyes
Published
The respondent appealed the judgment of the trial court which awarded the petitioner a default divorce, divided the community estate, and confirmed separate property rendered in favor of the petitioner. On appeal, the respondent argued that the trial court erred in rendering a default divorce decree because it did not have personal jurisdiction over him as a nonresident defendant, he did not receive service of process in violation of his due process rights, and it abused its discretion in dividing the community estate and confirming certain property as the petitioner’s separate property. The appellate court noted that since the respondent could not point to any error in the service or return of citation that was apparent on the face of the record, the trial court's default judgment did not deprive him of due process on this basis. The appellate court concluded that the evidence was insufficient to support the trial court's division of the community estate and confirmation of the petitioner’s separate property. Accordingly, the judgment of the trial court was reversed and remanded.


The appellate court concluded that the defendant was not egregiously harmed by the absence of a unanimity jury instruction.
Torres v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 18, 2018
01-17-00499-CR
Russell Lloyd
Published
The defendant appealed the judgment of the trial court which convicted him of continuous sexual abuse of a young child, aggravated sexual assault of a child, and indecency with a child, and sentenced him to imprisonment. On appeal, the defendant argued that the child victim's underwear and DNA analysis of it should not have been admitted into evidence because the State failed to reliably authenticate the underwear since the first two links in the chain of custody were not established by the victim and her mother. The defendant further asserted that the jury charge erroneously allowed for a non-unanimous verdict on the aggravated-sexual-assault-of-a-child count, and the jury charge erroneously allowed for a non-unanimous verdict on the indecency-with-a-child count. The appellate court noted that the factfinder evaluated the credibility of testimony and believed the mother’s testimony when she identified that underwear as that given to her by the victim on the day after the defendant’s last act of abuse. The appellate court found that the defendant offered no evidence of tampering or of a breach in the chain other than attacks on witness credibility, and therefore, the trial court did not abuse its discretion in admitting the victim’s underwear into evidence. The appellate court concluded that the defendant was not egregiously harmed by the absence of a unanimity jury instruction. Accordingly, the judgment of the trial court was affirmed.


The trial court abused its discretion by signing a default judgment in direct contradiction of the Texas Election Code.
In re Bishop
Appellate: Civil, Election, Gov't/Administrative, Procedure, Torts
Texas 5th Court of Appeals
December 17, 2018
05-18-01333-CV
David L. Bridges
Published
The relators appealed the decision of the trial court, seeking a writ of mandamus directing the trial court to vacate the default judgment which declared the candidate for justice of the peace ineligible for the office because she was purportedly not a resident of the district, that the trial court's jurisdiction over the matter was moot due to the election schedule. This appeal stemmed from the underlying lawsuit originated by another candidate for justice of the peace challenged the eligibility of her opponent, seeking a declaratory judgment and injunctive relief. The appellate court noted that by granting a default judgment, the trial court failed to comply with the mandatory statutory provision prohibiting a default judgment in an election contest. The appellate court found that the trial court abused its discretion by signing a default judgment in direct contradiction of the Texas Election Code. The appellate court concluded that the default judgment was void and the relator need not show there was no adequate remedy by appeal. Accordingly, the relators’ petition was conditionally granted.


The alleged defects in the trial court’s temporary orders did not invalidate the final termination order, as it was supported by expert witness testimony and it included the necessary Indian Child Welfare Act findings.
In re A.M.
Family, Procedure, Tribal
Texas 8th Court of Appeals
December 14, 2018
08-18-00105-CV
Ann Crawford McClure
Published
The biological mother appealed the judgment of the trial court which terminated the parental rights to her child. This appeal arose out of the Texas Department of Family and Protective Services (the Department) involvement based on allegations of neglectful supervision, drug use, and mental health issues. On appeal, the mother argued that the termination order must be reversed and the case dismissed based on violations of the Indian Child Welfare Act (ICWA). The mother alleged that the Department violated ICWA because it failed to provide formal notice to the Tribe of the emergency ex parte hearing conducted by the trial court, and that the emergency order entered on that date did not include the findings required by Section 1912(d) and (e). The appellate court found that the requirements of Section 1912(a), (d), and (e) did not apply to the emergency removal of the child because of Section 1922's directive that nothing in ICWA should prevent the emergency removal of an Indian child when necessary to prevent imminent physical damage or harm to the child. The appellate court concluded that the alleged defects in the temporary orders did not invalidate the final termination order, as it was supported by expert witness testimony and it included the necessary ICWA findings. Accordingly, the judgment of the trial court was affirmed.


The evidence admitted at the disposition hearing, viewed in the light most favorable to the challenged finding, was legally sufficient to show that the Department made reasonable efforts to prevent or eliminate the need to remove the juvenile from his home.
In re V.L.T.
Criminal, Gov't/Administrative, Juvenile, Procedure
Texas 8th Court of Appeals
December 14, 2018
08-17-00209-CV
Ann Crawford McClure
Published
The juvenile appealed the judgment of the trial court which committed him to the custody of the Texas Juvenile Justice Department for failing to attend trauma counseling sessions and for assault causing bodily injury while under intensive supervision probation. On appeal, the juvenile argued that the evidence was insufficient to support the trial court's finding that reasonable efforts had been made to prevent or eliminate the need for his removal from home and to make it possible for him to return home. Specifically, the juvenile asserted that there was no evidence of any reasonable efforts to keep him in his home and eliminate the need for his removal. The appellate court found the evidence admitted at the disposition hearing, viewed in the light most favorable to the challenged finding, was legally sufficient to show that the Department made reasonable efforts to prevent or eliminate the need to remove the juvenile from his home. The appellate court concluded that the trial court did not abuse its discretion in modifying the disposition because the evidence was both legally and factually sufficient to support the challenged finding. Accordingly, the judgment of the trial court was affirmed.


The relator had the right to withhold these communications from disclosure and assert its claim that the documents were protected by the attorney-client and work product privileges.
In re: WHC, LLC
Appellate: Civil, Constitution, Discovery, Employment, Procedure, Workers' Compensation
Texas 8th Court of Appeals
December 14, 2018
08-18-00088-CV
Ann Crawford McClure
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus against the trial court judge, challenging his order requiring the relator to disclose documents which were protected by the attorney-client privilege. On appeal, the relator contended that the trial court clearly abused its discretion by concluding that the withheld documents were not privileged and ordering the relator to disclose the documents to the moving party. The moving party responded that the relator did not specifically plead the privileges it claimed were applicable to the in camera documents. The appellate court noted that in these communications, the relator’s attorneys were providing status reports about the progress of the case and presenting their evaluation and analysis of the pending litigation. The appellate court found that it could be readily determined from the documents that the attorney-client and work product privileges were applicable and protected the documents from compelled disclosure. The appellate court concluded that the relator had the right to withhold these communications from disclosure and assert its claim that the documents were protected by the attorney-client and work product privileges. Accordingly, the relator’s petition was conditionally granted.


The defendants did not conclusively establish the exclusive remedy defense afforded by Section 408.001(a) of the Texas Workers' Compensation Act.
Reveles v. OEP Holdings, LLC
Appellate: Civil, Litigation: Personal Injury, Torts, Workers' Compensation
Texas 8th Court of Appeals
December 14, 2018
08-16-00073-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendants in a suit alleging negligence based on injuries sustained. On appeal, the plaintiff challenged the order granting summary judgment in favor of the defendants based on the exclusive remedy defense, arguing that they failed to establish each element of the affirmative defense as a matter of law. Specifically, the plaintiff maintained that the defendants failed to conclusively prove that they were his co-employers because they offered no evidence that the defendant was a license holder. The appellate court found that the defendants offered evidence conclusively proving that the defendant was a license holder under the Staff Leasing Services Act. The appellate court concluded that the defendants did not conclusively establish the exclusive remedy defense afforded by Section 408.001(a) of the Texas Workers' Compensation Act. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The clerk's failure to send notice of judgment in a timely manner deprived the employer of the opportunity to attack the judgment by filing a motion for new trial or other post-judgment motions, and his failure constituted an error on the face of the record.
Camoco, LLC v. Terrazas
Appellate: Civil, Employment, Procedure, Workers' Compensation
Texas 8th Court of Appeals
December 13, 2018
08-17-00029-CV
Yvonne T. Rodriguez
Published
The employer appealed the judgment of the trial court which granted a default judgment against it for a retaliatory firing. On appeal, the employer argued that default judgment was improper because the return of citation did not strictly comply with Texas Rules of Civil Procedure 107(b)(8) in that the return failed to identify the manner of delivery of service. The employer further asserted that the default judgment should be reversed due to the clerk's failure to immediately notify it of the rendition of judgment, as required by Texas Rules of Civil Procedure 306a(3), and the vague testimony of the employee was legally and factually insufficient to prove causation and damages. The appellate court found that authority held that the manner of delivery of service or attempted service was not satisfied by merely stating that a person "was served" or that citation was delivered "by serving" a particular person. The appellate court concluded that the clerk's failure to send notice of judgment in a timely manner deprived the employer of the opportunity to attack the judgment by filing a motion for new trial or other post-judgment motions, and his failure constituted an error on the face of the record. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The defendant was not entitled to a lesser-offense instruction on manslaughter because there was no reasonable interpretation of the evidence that would allow a jury to rationally find that the defendant acted only recklessly when she stabbed the victim.
Ritcherson v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 12, 2018
PD-0021-17
Barbara Parker Hervey
Published
The defendant appealed the judgment of the trial court which convicted her of murder and sentenced her to 25 years’ confinement. The criminal appellate court was asked to determine whether the defendant was entitled to a lesser-included offense instruction on manslaughter during her second murder trial. On appeal, the defendant argued that the trial court erred when it did not instruct the jury on manslaughter. The State counterargued that the criminal appellate court should overrule Saunders v. State because it was poorly reasoned. The criminal appellate court noted that if the jury took the witness’s use of the word "reflex" literally, its only option was to acquit the defendant because a jury could not infer intent from a reflexive reaction, and a reflexive reaction did not constitute a voluntary act as contemplated by Section 6.01(a). The defendant further contended that the evidence was susceptible to different interpretations because the defendant stabbed the victim only once, with a knife of indeterminate size, under circumstances which would support a reasonable conclusion that she acted without deliberation, and in response to provocation. The criminal appellate court concluded that the defendant was not entitled to a lesser-offense instruction on manslaughter because there was no reasonable interpretation of the evidence that would allow a jury to rationally find that the defendant acted only recklessly when she stabbed the victim. Accordingly, the judgment of the trial court was affirmed.


If an officer held an objectively reasonable belief that an evidence-destroying medical treatment was about to take place, the Fourth Amendment did not command him to wait until the treatment was mere moments away before he could act.
State v. Garcia
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 12, 2018
PD-0344-17
Michael E. Keasler
Published

The defendant caused a severe car crash. On the scene of the crash, the defendant appeared to be intoxicated. The defendant was transported to a nearby hospital to have his injuries evaluated, and some police officers went with him.  At the hospital, the police saw a nurse about to give the defendant an I.V. But a doctor came into the defendant’s room and, at the defendant’s insistence, canceled the I.V.  Thereafter, the police took the defendant’s blood without a warrant. The defendant moved to suppress the blood evidence, and the State claimed “exigent circumstances” in response—the argument being that, if the defendant had received an I.V., evidence of his intoxication would have been effectively destroyed. So, the State argued, the police simply had no time to obtain a warrant in light of the hazard posed by the I.V. The trial judge disagreed, suppressing the blood evidence. The trial judge found that, at the time of the search, the officers were aware that the defendant was not at risk of receiving an I.V. The court of appeals reversed the trial judge, but the Court of Criminal Appeals reversed the court of appeals and affirmed the trial judge. The Court of Criminal Appeals held that the trial judge did not abuse his discretion in resolving a matter of disputed fact—whether the officers were aware that the defendant was not going to receive I.V. The Court of Criminal appeals held that the trial court’s finding in this regard, if “inscrutable,” had at least some support in the record. As such, there was no abuse of discretion.


A discharge for "untruthfulness" within the meaning of Section 1701.452(b)(3) included a discharge for material omissions, therefore, the trial court did not err in affirming the order that the petitioner was not entitled to have the termination report changed.
Stacks v. Burnet Cnty. Sheriff’s Office
Appellate: Civil, Employment, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
December 12, 2018
03-17-00752-CV
Cindy Olson Bourland
Published
The petitioner appealed the judgment of the trial court which affirmed the administrative law judge’s order denying his petition to correct the sheriff’s office report to reflect an honorable or general discharge from his position as a deputy sheriff. On appeal, the petitioner argued that the omissions from the report and affidavit did not amount to "untruthfulness." The sheriff’s office counterargued that omitting facts could render an otherwise-true representation misleading. The appellate court noted that in applying its common meaning, a discharge for untruthfulness included a discharge for omitting material information or facts that rendered a statement misleading or deceptive. The petitioner further raised a practical objection, that including material omissions within the definition of untruthfulness would endanger confidential informants, and alleging that such a holding would result in police officers erring on the side of disclosing confidential informants in their reports, thus increasing the risk that defendants would learn their identity in discovery. The appellate court concluded that a discharge for "untruthfulness" within the meaning of Section 1701.452(b)(3) included a discharge for material omissions, therefore, the trial court did not err in affirming the order that the petitioner was not entitled to have the termination report changed. Accordingly, the judgment of the trial court was affirmed.


The criminal appellate court concluded that, pursuant to Moore v. Texas and Ex parte Moore, no further record development or fact findings were needed and that the applicant was not entitled to relief.
Ex parte Wood
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 12, 2018
WR-45,746-02
Sharon Keller
Published
The applicant appealed the judgment of the trial court, filing a subsequent application claiming that he was exempt from the death penalty due to intellectual disability and that due process required that he be given tools and a hearing to more fully establish his intellectual-disability claim. Thereafter, the applicant filed a suggestion that the criminal appellate court reconsider his application on its own initiative. The criminal appellate court noted that sometimes it allows an applicant to put on new evidence on remand when there was no reason or opportunity to put on the relevant evidence earlier, however, there was no reason to allow the applicant to put on new evidence. The criminal appellate court found that a remand to allow the opportunity to further develop the evidence was simply unwarranted. The criminal appellate court concluded that, pursuant to Moore v. Texas and Ex parte Moore, no further record development or fact findings were needed and that the applicant was not entitled to relief. Accordingly, the applicant’s request for relief was denied.


Because section 22.011(f) was rationally related to a legitimate governmental interest, its application to the defendant’s punishment for sexual assault did not violate his rights to equal protection or substantive due process.
Estes v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
December 13, 2018
02-14-00460-CR
Lee Gabriel
Published
The defendant appealed the judgment of the criminal appellate court which remanded the appeal for consideration of the following questions: whether strict scrutiny applied to the defendant’s claim that the punishment enhancement for sexual-assault convictions involving bigamy violated equal protection as applied to him, and whether the sexual-assault punishment enhancement as applied to him violated his substantive due-process rights. The defendant argued that section 22.011(f) impinged on his fundamental right to marry, mandating application of the strict-scrutiny test. The State conceded that marriage was a fundamental personal right, but maintained that section 22011(f) was not subject to strict scrutiny because it did not place a direct limit on entering marriage versus creating different consequences due to being married. The appellate court found that strict scrutiny did not apply to an equal-protection review of section 22.011(f) as applied to the defendant. The appellate court concluded that because section 22.011(f) was rationally related to a legitimate governmental interest, its application to the defendant’s punishment for sexual assault did not violate his rights to equal protection or substantive due process. Accordingly, the judgment of the criminal appellate court was affirmed.


The relators' requested mandamus relief must be denied solely on the basis that this was not the sort of exceptional case that warranted the extraordinary remedy of mandamus.
In re Double Diamond, Inc.
Appellate: Civil, Constitution, Gov't/Administrative, Real Property
Texas 11th Court of Appeals
December 13, 2018
11-18-00318-CV
John Bailey
Published
The relators appealed the judgment of the trial court, seeking mandamus relief from a suit filed by the property owners association concerning the governance of the association. On appeal, the relators sought to vacate various interlocutory orders by the trial court concerning the annual election of the board of directors of the property owners association, a "special meeting" of the members of the property owners association, the tabulation of members' votes, and the removal of directors and election of new directors. Specifically, the relators asserted that these orders by the trial court violated the governing documents of the property owners association. The appellate court noted that the relators did not assert they did not have an adequate remedy by appeal, and thus, the relators did not have an adequate remedy by appeal. The appellate court concluded that the relators' requested mandamus relief must be denied solely on the basis that this was not the sort of exceptional case that warranted the extraordinary remedy of mandamus. Accordingly, the relators’ request for mandamus relief was denied.


The appellate court was required to deny the relators' requested mandamus relief solely on the basis that this was not the sort of exceptional case that warranted the extraordinary remedy of mandamus.
In re Dipprey
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 11th Court of Appeals
December 13, 2018
11-18-00091-CV
John Bailey
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus to vacate the trial court’s order concerning the tabulation of votes for owners of timeshare estates at a meeting of the members of the property owners association. On appeal, the relators contended that the trial court erred in its construction of the articles of incorporation of the bylaws and of the property owners association with respect to the tabulation of votes. The appellate court noted that it could not reach the relators' contention that the trial court clearly abused its discretion because the relators failed to establish that they did not have an adequate remedy by appeal. The relators argued that they did not have an adequate remedy by appeal because the trial court's order could determine the governance of the property owners association. The appellate court disagreed with the relators and concluded that it must deny the relators' requested mandamus relief solely on the basis that this was not the sort of exceptional case that warranted the extraordinary remedy of mandamus. Accordingly, the relators’ request for mandamus relief was denied.


The plaintiff failed to preserve his complaints in the trial court and, even if he had preserved the issue, the trial court did not abuse its discretion by imposing time limits under the circumstances.
Johnson v. Nat’l Oilwell Varco, LP
Appellate: Civil, Civil Rights, Employment, Evidence, Procedure
Texas 14th Court of Appeals
December 11, 2018
14-16-00440-CV
Martha Hill Jamison
Published
The plaintiff appealed the judgment of the trial court which ruled in favor of the defendant in his race-discrimination, employment-termination case. On appeal, the plaintiff contended that the trial court abused its discretion in denying his motion for new trial, in imposing time limits in the middle of trial, in refusing to charge the jury in keeping with a federal pattern jury instruction, finding that the defendant only negligently, as opposed to intentionally, destroyed video evidence, failing to order a remedy for destruction of the evidence that would have restored the plaintiff’s ability to prove his case, refusing to sanction the defendant, and admitting certain evidence while excluding other evidence. The appellate court disagreed with the plaintiff and found that the plaintiff failed to preserve his complaints in the trial court and, even if he had preserved the issue, the trial court did not abuse its discretion by imposing time limits under the circumstances. The appellate court concluded that the judge reasonably could have found that sanctions were not warranted because no progressive discipline policy was uncovered after the defendant spent a reported $500,000 or more searching for one, and thus, these conclusions were not arbitrary, unreasonable, or undertaken without reference to guiding rules or principles. Accordingly, the judgment of the trial court was affirmed.


A court-cost statute need only fall within one category to be constitutional, and the district attorney and clerk fees within the first category.
Moliere v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 11, 2018
14-17-00594-CR
J Brett Busby
Published
The defendant appealed the judgment of the trial court which convicted him of misdemeanor assault involving family violence in violation of section 22.01(a)(1) of the Texas Penal Code. On appeal, the defendant contended that Article 42.013 of the Code of Criminal Procedure, which required the trial court to make an affirmative finding of family violence in the judgment, was unconstitutional under Apprendi v. New Jersey. Specifically, the defendant asserted that a finding under Article 42.013 increased his penalty beyond the prescribed statutory maximum by depriving him of his right to possess a firearm without a finding by the jury. The defendant further challenged, as facially unconstitutional, two court costs, including the district attorney fee and the clerk's fee, maintaining that the fees violated the separation of powers clause because the statutes did not direct the fees to be spent for a legitimate criminal justice purpose, thereby turning the courts into tax gatherers. The appellate court concluded that a court-cost statute need only fall within one category to be constitutional, and the district attorney and clerk fees within the first category. Accordingly, the judgment of the trial court was affirmed.


Sufficient evidence supported the trial court's predicate finding under Subsection (E), best-interest finding, and order termination of the mother’s parental rights.
In re J.D.G.
Family, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 11, 2018
01-18-00578-CV
Harvey Brown
Published
The mother appealed the judgment of the trial court which terminated her parental rights due to the child’s hospitalization from injuries caused by the father's shaking of him. On appeal, the mother challenged the sufficiency of the evidence to support the trial court's three predicate findings for termination of her parental rights, the best-interest determinations, and appointment of the Department of Family and Protective Services (the Department) as the children's managing conservator. The mother further challenged the applicability and sufficiency of the evidence on an affirmative defense relevant to one of the predicate findings against her and an evidentiary ruling. The appellate court found that sufficient evidence supported the trial court's predicate finding under Subsection (E), best-interest finding, and order termination of the mother’s parental rights. The appellate court concluded that because the termination of the mother’s parental rights was upheld, she did not have standing to challenge the designation of the Department as the children's managing conservator. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court acted within its discretion in overruling the doctor’s objection and denying his motion.
Richter v. Downey
Appellate: Civil, Damages, Gov't/Administrative, Health Care, Torts
Texas 3rd Court of Appeals
December 07, 2018
03-17-00740-CV
Michael Toth
Published
The doctor appealed the judgment of the trial court which denied his motion to dismiss a health care liability claim under the Texas Medical Liability Act, and overruling his objection to the expert report filed in support of the claim. This appeal stemmed from the plaintiff’s allegations that the doctor was negligent and breached his duty of care by failing to test for, diagnose, and treat acute appendicitis, and that the delay in diagnosis caused the plaintiff’s appendix to perforate, resulting in complications. On appeal, the doctor argued that the amended report was inadequate with respect to causation because it failed to address cause in fact and foreseeability. The plaintiff counterargued that the report adequately addressed causation by identifying facts in the medical record and medical studies which support the conclusion that the doctor’s failure to perform a CT scan was a direct and proximate cause of damages sustained. The appellate court found that the amended report linked conclusions to specific facts, tracing the decision to discharge the plaintiff without performing diagnostic testing to the ensuing delay that occasioned the plaintiff’s injuries. The appellate court concluded that the trial court acted within its discretion in overruling the doctor’s objection and denying his motion. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court had the inherent authority to sanction the attorney for his conduct in making repeated, and unexcused, misrepresentations.
Darnell v. Broberg
Appellate: Civil, Courts, Ethics, Procedure, Professional Responsibility
Texas 8th Court of Appeals
December 07, 2018
08-16-00282-CV
Gina M. Palafox
Published
The attorney appealed the judgment of the trial court which imposed sanctions on him for making misrepresentations to the court and for disobeying a court order. This appeal stemmed from the plaintiff’s underlying suit alleging implied warranty of good and workmanlike services, deceptive trade practices, breach of contract, and negligence against the defendant, whom the attorney represented. On appeal, the attorney asserted that the trial court abused its discretion in awarding monetary sanctions against him, arguing that the award of sanctions lacked an evidentiary basis, that it covered conduct that fell outside the scope of sanctionable conduct, and no nexus existed between the award of attorney's fees and the sanctionable conduct. The appellate court disagreed with the attorney and found that the record supported the imposition of sanctions by the trial court because there was sufficient evidence for the trial court to hold that the factual statements made in the third-party petition were patently false, and without any evidentiary basis. The appellate court concluded that the trial court had the inherent authority to sanction the attorney for his conduct in making repeated, and unexcused, misrepresentations. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the arguments in the defendant’s motion for rehearing and the arguments in the plaintiffs’ motion for rehearing lacked merit.
Abdullatif v. Choudhri
Appellate: Civil, Business, Contracts, Procedure, Real Property
Texas 14th Court of Appeals
December 06, 2018
14-16-00116-CV
Kem Thompson Frost
Published
The plaintiffs appealed the judgment of the trial court which denied their motion for rehearing. On appeal, the plaintiffs relied on the court’s holding in The Atrium v. Kenwin Shops of Crockett, Inc., for a holding that parties to a lease could ratify by their conduct a lease even after the lease had become "null and void" under a lease provision. The appellate court noted that the Atrium court's holding did not bind it because the holding conflicted with Supreme Court of Texas precedent under which the plain, ordinary, and generally accepted meaning of the term "void" was entirely null, not binding on any party, and not susceptible of ratification or confirmation. The plaintiffs further cited Humble Oil & Refining Company v. Clark for the proposition that a void instrument could be made valid by adoption, ratification, or confirmation. The appellate court found that the Clark court did not state that a void instrument could be made valid by adoption, ratification, or confirmation. The appellate court concluded that the arguments in the defendant’s motion for rehearing and the arguments in the plaintiffs’ motion for rehearing lacked merit. Accordingly, the judgment of the trial court was affirmed.


The trial court acted within its discretion awarding summary judgment on appellee's claims and in striking the appellant's amended answer and counterclaims, but the trial court erred in its award of attorney’s fees to the appellee, as well as in its awards for costs and prejudgment interest.
Texas Black Iron, Inc. v. Arawak Energy Int'l Ltd.
Contracts, Damages, Torts
Texas 14th Court of Appeals
December 06, 2018
14-17-00748-CV
Marc W. Brown
Published
The appellant incorporation and the appellee company entered into a purchase order agreement for oil and gas drilling equipment. The appellee prepaid for the entire purchase order. The appellant failed to deliver certain equipment and refunded a portion of the prepaid amount to the appellee. The appellee returned some of the equipment and sought a refund under the buy-back provision of the purchase order. The appellant refused to pay. The appellee filed claims against the appellant and applied for a temporary injunction. The appellant filed counterclaims against the appellee. The appellee moved for traditional and no-evidence summary judgment. The trial court granted the appellee's motion on its contract claim and on the appellant's contract and fraud counterclaims. The trial court awarded the appellee damages, attorney’s fees, costs, and pre- and postjudgment interest. The trial court also granted the appellee's motion to strike the appellant's amended answer and counterclaims. The appellate court found that the trial court properly granted summary judgment in the appellee's favor on its contract claim and the appellant's contract and fraud counterclaims. Further, the trial court acted within its discretion in striking the appellant's amended answer and counterclaims. Lastly, the trial court erred in its award of attorney’s fees to the appellee, as well as in its awards for costs and prejudgment interest. Accordingly, the court affirmed the trial court’s final judgment in part and reversed it in part and remanded for additional proceedings.


The appellant did not meet the 90-day residency requirement of Family Code Section 6.301, the court affirmed the vacatur of the default divorce decree and dismissal of the suit, however, the court modified the sanctions award to conform to the court's holding.
Alwazzan v. Alwazzan
Appellate: Civil, Family
Texas 1st Court of Appeals
December 06, 2018
01-16-00589-CV
Laura Carter Higley
Published
The appellant wife petitioned the Galveston trial court for a divorce from her appellee husband. However, that was not the first divorce suit the appellant had initiated against the appellee. She had previously filed divorce actions in Montgomery County and Harris County, which she had nonsuited at varying stages. The Galveston petition also named the appellee corporation in which the appellant alleged that the appellee husband had an ownership interest—as a party to the suit. The appellant claimed that the appellee husband had fraudulently transferred community funds to the appellee corporation. The trial court granted the appellant's request to serve the appellee husband by publication. The appellant claimed that the appellee corporation, a company formed under the laws of the Kingdom of Bahrain, could be served through the Texas Secretary of State. Neither the appellee husband nor the appellee corporation responded to the suit. The Galveston trial court rendered a divorce decree, dissolving the marriage between the appellant and the appellee husband. Among its provisions, the decree also awarded the appellant a money judgment against the appellees, jointly and severally, for $416,532,514.56. The trial court also granted a motion for sanctions against the appellant, ordering that she pay the appellee corporation and the appellee husband's trial and appellate attorneys’ fees. The appellate court found that because the appellant did not meet the 90-day residency requirement of Family Code Section 6.301, the court affirmed the vacatur of the default divorce decree and dismissal of the suit. Further, the court affirmed the sanctions awarded but modified it to reflect that the award of appellate attorneys’ fees as sanctions was contingent on the outcome of the appeals process. Accordingly, the judgment was affirmed as modified.  


Texas rather than New Mexico law applied and the appellee therefore had the obligation to defend and indemnify the appellant against the individual’s claims
Banta Oilfield Servs., Inc v. Mewbourne Oil Co.
Appellate: Civil, Contracts, Damages, Litigation: Personal Injury, Torts
Texas 6th Court of Appeals
December 04, 2018
06-17-00107-CV
Bailey C. Moseley
Published
The appellee company as operating in New Mexico, drilling for and producing oil and/or natural gas. The appellee decided to install a 300-gallon battery tank at a well site there and retained the appellant company to assist in its installation. The parties entered into a Master Services Agreement (MSA) drafted by the appellee. The appellee also contracted with the company to be a contractor at the well site in New Mexico. It also entered into an agreement with the second company wherein it would provided services at the site. An individual worked for the companies as either a direct employee, an agent, or a contractor. The individual was injured at the New Mexico site when a chain slipped off a tank that was being moved by a appellant-owned-and-operated pole truck. The individual’s wife brought suit against the appellant in New Mexico for the individual’s personal injuries. The appellant sent a demand letter to the appellee seeking defense and indemnity from the appellee. The appellee refused the appellant’s demand, informing the appellant that the appellee was only a pass-through for defense and indemnification and that the appellant should demand a defense and indemnity from the company. The appellant brought suit against the appellee seeking a judicial declaration. After the parties filed cross-motions for summary judgment, the trial court denied the appellant’s motion and entered judgment in favor of the appellee. The appellate court found that Texas law applied to the terms of the parties’ MSA; that under Texas law, the appellee had the obligation to defend and indemnify the appellant against the individual’s claims; that it breached its contractual obligation to the appellant by refusing to do so; and that the appellant was entitled to recover damages and its attorney fees. Accordingly, the judgment was reversed and remanded.


The trial court did not abuse its discretion in determining that exceptional circumstances warranted the use of concealed physical restraints on defendant during this trial
Alcozer v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 04, 2018
01-17-00970-CR
Harvey Brown
Published
The appellant pleaded guilty to the narcotic-possession and evidence-tampering charges. The trial court declared a mistrial on the evading arrest charge, and it sentenced the appellant to 50- and 25-year periods of confinement on the two convictions. The appellant appealed the ruling that he be restrained during the jury trial. The appellate court found that there was ample evidence in the record from which the trial court reasonably could have concluded that the appellant attempted to injure himself to delay his trial and continued to have thoughts of injuring himself as trial progressed. It was not a situation in which a trial court merely expressed generalized security concerns untied to the unique circumstances of a particular criminal defendant or had shown a propensity to restrain criminal defendants as a matter of course. The court concluded that the trial court did not abuse its discretion in determining that the history of harmful ideation and injury supported the use of restraints during the appellant’s jury trial. Thus the trial court did not reach a harm analysis. But noted that there was no clear evidence in the record, including the photograph of the appellant restrained, that the wrist, leg, or torso restraints were visible to the jury. Accordingly, the judgment was affirmed.


State proved enhancement by showing that the victim was a person appellant was prohibited by the bigamy statute from marrying because, at the time of the offenses, appellant was already married to someone else
Rodriguez v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 04, 2018
01-17-00906-CR
Sherry Radack
Published
A jury convicted Appellant of three charges of sexual assault of a child, a person he was prohibited from marrying, and assessed punishment at confinement for life and a $10,000 fine on each charge, which the trial court ordered to run consecutively. The appellate court observed that Penal Code section 22.011(f) required the State merely to prove that, if the actor were to actually marry or purport to marry his victim, or if he were to live with his victim under the appearance of being married, then he would commit the offense of bigamy. The State introduced a Declaration of Informal Marriage, signed by appellant and his wife, and stated that appellant and his wife agreed to be married, lived together as husband and wife, and represented to others that they were married. The appellant’s daughter testified that appellant and his wife were still married at the time of trial. The State met its burden of showing that the victim was a person appellant was prohibited by the bigamy statute from marrying because, at the time of the offenses, appellant was already married to someone else. Because the State was not required to show actual bigamy, but merely facts showing that the bigamy statute would prohibit appellant from marrying his victim, which the State proved by showing that appellant was already married, the evidence was legally sufficient to sentence appellant as a first-degree felon under section 22.011(f) of the Texas Penal Code. Accordingly, the court affirmed the trial court’s judgments.