Editor’s note: What follows are summaries of state and federal appellate court opinions issued from May 28 to June 5. The list is organized by court and practice area. Names of the cases below are linked to full-text opinions.

Courts of Appeals — Civil


Nguyen v. Allstate Insurance Co.
Dallas Court of Appeals
May 29, 2013; No. 05-11-01120-CV

The appellant challenges summary judgment granted in favor of an insurance company. An appellant may not include in a reply brief a new issue in response to some matter pointed out in the appellee’s brief but not raised in the appellant’s opening brief. The trial court’s judgment is affirmed.

In re Mizer
Fort Worth Court of Appeals
May 30, 2013; No. 02-13-00084-CV

The relator argues that the respondent, the judge of a county court, abused its discretion by dismissing his appeal for failure to file a brief. Texas Government Code §30.00021(b) is neither mandatory nor jurisdictional, and the respondent clearly abused its discretion by dismissing the appeal on this ground. Mandamus relief is conditionally granted.

Civil Practice

Levetz v. Sutton
Dallas Court of Appeals
June 3, 2013; No. 05-11-00737-CV

The trial court signed a final judgment severing the appellee’s breach of contract claim and transferring it to the county in which a corollary will contest is pending. The trial court’s severance did not avoid prejudice or further convenience, instead, it separated interwoven issues that share facts and issues that should be tried together. The trial court’s judgment is reversed and remanded.

Employment Law

Mesquite Independent School District v. Mendoza
Dallas Court of Appeals
June 3, 2013; No. 05-12-01479-CV

The trial court denied an independent school district’s motion for summary judgment in this suit alleging sex and national-origin discrimination. A male employee who worked at a different location, had a different supervisor, different job duties, and different alleged misconduct was not similarly situated. The trial court’s order is reversed as to the sex discrimination claim, and that portion of the case is dismissed. The order is affirmed and remanded as to the claim of national-origin discrimination.

Health Law

Bailey v. Amaya Clinic
Houston’s 14th Court of Appeals
May 30, 2013; No. 14-12-00335-CV

Each party appeals the trial court’s order sustaining in part the defendants’ objections to three expert reports. Grouping defendants together in discussing the relevant standards of care does not render an expert report inadequate when all the defendants owed the same duty to the plaintiff. The trial court’s denial of the motion to dismiss is affirmed, and the cause is remanded.

University of Texas Medical Branch at Galveston v. Qi
Houston’s 14th Court of Appeals
May 30, 2013; No. 14-12-00581-CV

The University of Texas Medical Branch at Galveston appeals an order denying its plea to the jurisdiction in this health-care liability case. The suit does not invoke the limited waiver of sovereign immunity found in the Texas Tort Claims Act because the allegations do not meet the act’s requirement that the use of tangible personal property caused the stillbirth and injury. The substance of the claim is that UTMB’s employees failed to timely diagnose and treat the appellee for preeclampsia and induce delivery of her baby. The trial court’s order is reversed and rendered.

Gardner v. Children’s Medical Center of Dallas
Dallas Court of Appeals
June 3, 2013; No. 05-11-00758-CV

The appellants question whether the heightened standard of proof in cases involving emergency medical care in certain facilities as set forth in Texas Civil Practice and Remedies Code §74.153 violates the Equal Protection Clauses of the Texas and U.S. Constitutions. A classification of health care liability claimants based on whether they receive emergency medical care in a hospital emergency room or whether they receive emergency medical care in a non-covered setting does not fail rational-basis review because in practice it results in some inequity. The trial court’s judgment is affirmed.

Real Property

Centerplace Properties Ltd. v. Columbia Medical Center of Lewisville
Fort Worth Court of Appeals
May 30, 2013; No. 02-11-00049-CV

The appellant challenges an adverse judgment following a bench trial in a suit for breach of a lease agreement. Some level of landlord self-help beyond a notice of default or to vacate is required to create liability under Texas Property Code §93.002(c). The trial court’s judgment is reversed and rendered in part, and affirmed in part.


Board of Trustees of the Galveston Wharves v. O’Rourke
Dallas Court of Appeals
May 30, 2013; No. 01-10-01115-CV

The Board of Trustees of the Galveston Wharves appeals the denial of its plea to the jurisdiction in this case alleging invasion of privacy and civil conspiracy. The Wharves is immune from the claims for declaratory and injunctive relief. A governmental entity retains immunity from ultra vires suits, and a decision concerning the discipline, or lack thereof, of a police officer is a discretionary act. To the extent that the appellant claims his reputation was damaged by allegedly false testimony offered at a hearing, that does not, by itself, constitute a sufficient liberty or property interest to invoke due process protection. The trial court’s order is reversed and rendered.

City of Alton v. Sharyland Water Supply Corp.
Corpus Christi Court of Appeals
May 30, 2013; No. 13-06-00038-CV

In this case concerning allegations of negligence in the construction of sewer lines, a group of contractors challenge the sufficiency of the evidence. The evidence supporting the award of excavation costs, which is based on mere surmise, is not legally sufficient because it would not enable reasonable and fair-minded people to find that the cost was reasonable. The past damages award is reversed and rendered. The remainder of the judgment as to the contractors is affirmed.

Dunham Engineering Inc. v. Sherwin Williams Co.
Houston’s 14th Court of Appeals
May 30, 2013; No. 14-12-00369-CV

The appellant challenges the denial of its motion to dismiss claims of intentional interference with prospective business relationships, business disparagement, and product disparagement. The certificate of merit requirement is not limited to causes of action alleging negligence. The statute does not require the plaintiff to marshal all his evidence and does not foreclose the defendant from later challenging the sufficiency or admissibility of the plaintiff’s evidence. The trial court’s order is affirmed.

Workers’ Compensation

Gunn v. Baptist/St. Anthony’s Health Network
Amarillo Court of Appeals
May 31, 2013; No. 07-11-00245-CV

Finding that the plaintiff had signed a waiver under Labor Code §406.033, the trial court dismissed her suit against her employer. The waiver was entered into at least 10 business days from the date of the initial report of injury; the plaintiff received a medical evaluation from a nonemergency care doctor before signing the waiver; the waiver was conspicuous; and assuming without deciding that the express negligence doctrine applies, it is here satisfied. The trial court’s judgment is affirmed.

Court of Appeals — Criminal

Criminal Law

Ex parte De Leon
June 5, 2013; No. AP-76, 763

The applicant in this habeas matter asserts, inter alia, that the state breached the plea agreements by reindicting his brother. Because a waiver of appeal was not a binding element of applicant’s plea agreements, the applicant did not breach the agreements when he obtained the court’s permission to appeal; consequently, the state breached the agreements when it reindicted the applicant’s brother. The judgments are set aside and remanded.

Ex parte White
June 5, 2013; No. AP-76, 971

The applicant was denied bail on a new offense because of a "hold" on him that was the result of a pending but unexecuted parole-revocation warrant in the case at bar. For purposes of Texas Government Code §508.253, an arrest occurs when the blue warrant causes the defendant’s confinement. The applicant was entitled to time credit on the sentence in this case for the period that he was confined pursuant to the "hold" in the new case. Habeas relief is granted.

5th U.S. Circuit Court of Appeals

Civil Practice

Crostley v. Lamar County
May 29, 2013; No. 12-40288

The appellants filed this civil rights suit seeking damages for injury suffered as a result of their nine-month imprisonment pursuant to charges that were dropped. The district judge’s intent to enter a partial final judgment under Federal Rule of Civil Procedure 54(b) "must be unmistakable" on the face of the order or of the documents referenced in it. No such unmistakable intent is exhibited in the district court’s order dismissing appellants’ claims against Lamar County. The district court’s denial of appellants’ motion for leave to amend as it relates to Lamar County is reversed and remanded, but the denial as it relates to a police officer is affirmed. The district court’s summary judgment is affirmed.

Civil Rights

Wyatt v. Fletcher
May 31, 2013; No. 11-41359

The district court denied the defendants’ motion for summary judgment that argued that the defendants had qualified immunity in this suit alleging that the defendants disclosed the sexual orientation of a student during a disciplinary meeting with the student’s mother. There is no clearly established law holding that a student in a public secondary school has a privacy right under the Fourteenth Amendment that precludes school officials from discussing with a parent the student’s private matters, including matters relating to sexual activity of the student. Such students have not clearly established Fourth Amendment right that bars a student-coach confrontation in a closed and locked room. The district court’s judgment is reversed and vacated in part and remanded for dismissal of the federal claims against these individual defendants.

Criminal Law

United States v. Dignam
May 28, 2013; No. 12-30262

The appellant challenges her conviction for alleged mail fraud, arguing that the district court violated the Speedy Trial Act. Although the parties signed the plea agreement and filed a notice of intent to enter it with the court, because the agreement was never submitted to the district court, the court could not have considered it. Thus, the district court erred in finding the delay resulting from the notice of intent excludable under 18 U.S.C. §3161(h)(1)(G). The error was harmless. The conviction is affirmed.

Employment Law

Equal Employment Opportunity Commission v. Houston Funding II
May 30, 2013; No. 12-20220

The Equal Employment Opportunity Commission appeals a district court judgment finding that firing someone because of lactation or breast-pumping is not sex discrimination, and that lactation is not a related medical condition of pregnancy. Discharging a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII. The district court’s judgment is vacated and remanded.

Juino v. Livingston Parish Fire District No. 5
May 30, 2013; No. 12-30274

The plaintiff, a volunteer firefighter, appeals from the district court’s dismissal of her claim of sexual harassment under Title VII of the Civil Rights Act of 1964. The threshold-remuneration test is used to assess a plausible employment relationship within the volunteer context. Common law principles are used to analyze the character of an economic relationship only in situations that plausibly approximate an employment relationship. The plaintiff here is not an "employee" within the meaning of Title VII. The district court’s dismissal is affirmed.


Homoki v. Conversion Services
May 28, 2013; No. 11-20371

This suit involves an attempt by Electronic Payments Systems to develop a competing version of a Global Check Services product. Inter alia, EPS challenges the sufficiency of the evidence supporting the jury’s finding on the interference with contract claim. Both parties frame the sufficiency issue as whether knowledge of an exclusivity clause was proved. The intent-to-interfere element of the tortious interference with contract claim was proved with sufficient evidence, including evidence of EPS’s alleged aggressive push to recruit GCS’s agents. The district court’s judgment is affirmed.