Editor's note: What follows are summaries of state and federal appellate court opinions issued from Aug. 13 to Aug. 19.The list is organized by court and practice area.

Courts of Appeals-Civil

Arbitration

Big Bass Towing Co. v. Akin

Dallas Court of Appeals

Aug. 14, 2013; No. 05-13-00120-CV

The appellant challenges the trial court's denial of its motion to compel arbitration. Any notice the appellee received of the occupational injury benefit plan is insufficient by itself to show he had notice of the arbitration agreement, because the documents were separate, despite bearing the same date. There is nothing in the record to show the appellee had any knowledge of the arbitration agreement when he accepted benefits under the occupational injury benefit plan. The trial court's denial is affirmed.

VSR Financial Services Inc. v. McLendon

Dallas Court of Appeals

Aug. 14, 2013; No. 05-12-01016-CV

Appellants challenge the trial court's denials of their motions to compel arbitration. The burden of showing a right to enforce an arbitration agreement, as with the overall burden of establishing the existence of an arbitration agreement, is generally evidentiary. Equitable estoppel does not require arbitration under the direct benefits theory where the claims stand independently from the arbitration agreement and no direct benefit is shown. The trial court's order is affirmed.

Civil Practice

Big Rock Investors Association v. Big Rock Petroleum, Inc.

Fort Worth Court of Appeals

Aug. 15, 2013; No. 02-12-00396-CV

The appellant, Big Rock Investors Association, is a nonprofit association created to commence and prosecute its members' claims against the appellees. Substituting the testimony of one person (the receiver) concerning the individual profits and losses of each of BRIA's 226 individual members is no less fact-intensive than simply permitting each individual member to provide such testimony concerning his profits and losses. This type of fact-intensive analysis, even if performed through one witness, defeats a claim of associational standing under the third prong of the associational standing test. The claims management agreements signed by each BRIA member, characterized as powers of attorney, do not exempt the organization from the associational standing test. The trial court's dismissal is affirmed.

D&M Marine Inc. v. Turner

Fort Worth Court of Appeals

Aug. 15, 2013; No. 02-12-00399-CV

The appellant the challenges the trial court's turnover order. There is no evidence that D&M did not want to be indemnified through its insurance coverage. The appellees requested a turnover order regarding the appellant's insurance policies that possibly provided coverage for the appellant against the appellees' construction-defect suit. The appellees would have the same interest as the appellant would to pursue any bad faith or failure-to-indemnify claims against the appellant's insurer to maximum recovery. The turnover order is affirmed.

Rourk v. Cameron Appraisal District

Corpus Christi Court of Appeals

Aug. 15, 2013; No. 13-11-00751-CV

Appellants challenge the trial court's denial of attorney fees under the Texas Uniform Declaratory Judgment Act in this property taxation case. Appellants brought their claims under the UDJA pre-Heinrich, when the case law interpreting the ultra vires exception to the doctrine of sovereign immunity, as well as to who the property party was in a suit for declaratory remedy, was not clear. The appellants should have an opportunity to replead in an attempt to cure the jurisdictional defects of their petition. The trial court's judgment is reversed and remanded.

Boll v. Cameron Appraisal District

Corpus Christi Court of Appeals

Aug. 15, 2013; No. 13-11-00750-CV

Appellants challenge the trial court's denial of attorney fees under the Texas Uniform Declaratory Judgment Act in this property taxation case. Appellants brought their claims under the UDJA pre-Heinrich, when the case law interpreting the ultra vires exception to the doctrine of sovereign immunity, as well as to who the property party was in a suit for declaratory remedy, was not clear. The appellants should have an opportunity to replead in an attempt to cure the jurisdictional defects of their petition. The trial court's judgment is reversed and remanded.

In re Park Cities Bank

Tyler Court of Appeals

Aug. 15, 2013; No. 12-12-00325-CV

This mandamus proceeding relates to a discovery dispute. The plaintiff did not show a nexus between the alleged fraud and any of the documents ordered to be produced. The trial court abused its discretion by ordering the production of the documents identified in affidavits as work product without at least subjecting them to an in camera review. The writ of mandamus is conditionally granted.

Contracts

Wolf Hollow I, LP v. El Paso Marketing, LP

Houston's 14th Court of Appeals

Aug. 15, 2013; No. 14-09-00118-CV

The appellant argues it is entitled to replacement-power damages in its claims against the appellee. The appellant is not entitled to replacement-power damages for force majeure events defined by the supply agreement. The appellant can sue for replacement-power damages under the agreement for both quantity and quality delivery failures. The trial court's judgment is affirmed in part and reversed and remanded in part.

Energy Law

CenterPoint Energy Houston Electric, LLC v. Public Utility Commission of Texas

Austin Court of Appeals

Aug. 16, 2013; No. 03-11-00065-CV

This is a review of a Public Utility Commission decision disallowing part of a performance bonus that appellant CenterPoint Energy Houston Electric LLC was entitled to for exceeding its 2008 energy-efficiency goals. All of the 2008 energy-efficiency programs, including those funded with $10 million from a 2006 settlement agreement, were administered by CenterPoint, were market-based standard offer programs or targeted market-transformation programs that achieved cost-effective energy efficiency for CenterPoint's customers; accordingly, these programs were programs implemented under PUC Rule 25.181 and the savings from these programs should be included in the calculation of the performance bonus that CenterPoint is entitled to for exceeding its energy-efficiency goals. The trial court's judgment is reversed and remanded.

Health Law

In re Commitment of Adams

Beaumont Court of Appeals

Aug. 15, 2013 No. 09-12-00393-CV

The appellant, an alleged sexually violent predator, challenges the modification of a commitment order. The appellant has no right to appeal the trial court's 2012 interlocutory order that required him to reside in a Texas residential facility under contract with the OVSOM. Mandamus is also not warranted. The appeal is dismissed.

Insurance Law

Marquis Acquisitions, Inc. v. Steadfast Insurance Co.

Dallas Court of Appeals

Aug. 14, 2013; No. 05-11-01663-CV

The claims in this case arise out of the legal defense provided by an insurer to the appellant. Segerstrom does not stand for the proposition that an insurer's failure to appoint separate counsel immediately upon receiving notice of an unspecified conflict of interest from the insured would constitute a breach of contract. Attorney fees incurred as a result of efforts to force an insurer to comply with the insurance contract cannot be recovered as the sole "damages" caused by the breach but may be awarded only in connection with an otherwise successful breach of contract claim. The trial court's judgment is affirmed.

Mid-Continent Casualty Co. v. Krolczyk

Houston's 1st Court of Appeals

Aug. 15, 2013; No. 01-12-00587-CV

This appeal concerns an insurer's duty to defend. The construction of a road is not comparable to a small, unitary item that lacks separate parts on which different types of work are performed. The road project was not an indivisible whole under these allegations, but instead it was composed of several particular parts to which the "your work" exclusion may or may not apply. As the road base could have been built of materials other than earth, land or mud, and the allegations do not mention any other earth movement, the allegations do not clearly establish that the earth-movement exclusion does or does not apply. A declaratory judgment is rendered in favor of the insured.

Courts of Appeals-Criminal

Arrington v. State

San Antonio Court of Appeals

Aug. 14, 2013; No. 04-12-00430-CR

The appellant challenges his conviction for alleged aggravated sexual assault of a child and alleged indecency with a child by sexual contact. It was error not to include an instruction paragraph instructing the jury on unanimity of the acts that constituted the offenses. While appellant's defense was the same as in Cosio (that he did not commit any of the offenses), the jury did not find appellant guilty of all counts like it did in Cosio, but instead was unable to reach a verdict on the only count that evidence of only one incident constituting the offense was alleged. Because appellant was egregiously harmed, the trial court's judgment is reversed and remanded.

Boyd v. State

Eastland Court of Appeals

Aug. 15, 2013; No. 11-12-00251-CR

The appellant argues that the trial court erred when it denied her motion to suppress, arguing that the police officer lacked reasonable suspicion for the traffic stop. The court distinguishes Gamble and Klare from this case. The officer saw the appellant in a pickup truck parked at 4 a.m. in a position giving the occupants a direct line of sight to a tank from which anhydrous ammonia was being transferred to a butane tank. The district court's judgment is affirmed.

5th U.S. Circuit Court of Appeals

Criminal Law

United States v. Abdo

Aug. 19, 2013; No. 12-50836

The appellant challenges his convictions related to an alleged plan to detonate a bomb and shoot service members stationed at Fort Hood. That the appellant was detained at gunpoint, handcuffed and placed into a police car did not convert an investigatory detention into an arrest requiring probable cause. There is no clear error in the appellant's conviction for multiple offenses; the evidence at trial allowed the inference that the appellant kept possession of the firearm for distinct purposes and to further distinct offenses, allegedly to shoot his intended victims and to provide protection for himself while he carried out plans to detonate a bomb. The conviction and sentence are affirmed.

Employment Law

Churchill v. Texas Department of Criminal Justice

Aug. 19, 2013; No. 12-20691

The appellant challenges the dismissal on summary judgment of his employment discrimination claim against defendant Texas Department of Criminal Justice. That the candidate hired was white, female and younger than the appellant raises only a weak issue of fact insufficient to survive summary judgment. Demonstrating that one is "clearly better qualified" is understandably very difficult to meet so as to avoid judicial second-guessing of business decisions; better education, work experience and/or longer tenure with the company does not necessarily make a candidate clearly better qualified. The district court's judgment is affirmed.