Editor’s note: What follows are summaries of state and federal appellate court opinions issued from Nov. 19 to Nov. 30. The list is organized by court and practice area. Names of the cases below are linked to full-text opinions.

Texas Supreme Court

Health Law

Felton v. Lovett
Nov. 30, 2012; No. 11-0252
The court of appeals concluded that the risk of a vertebral artery dissection was not inherent in a procedure performed by a chiropractor, because injury would not have occurred but for the patient’s own physical condition — an unhealthy vertebral artery — and therefore the risk could not have been inherent in the treatment. The possibility that a patient, due to an undetectable physical condition, will suffer a severe, negative reaction to a procedure is a risk that is inherent in the procedure. The court of appeals’ judgment is reversed and remanded.

Court of Criminal Appeals

Criminal Law

Rhyne v. State
Fort Worth Court of Appeals

Nov. 21, 2012; No. 02-11-00410-CR
The appellant challenges a jury verdict finding him guilty of allegedly driving while intoxicated. No reasonable view of the record supports the trial court’s conclusion that the intoxilyzer had been properly maintained and was properly operating when appellant gave a breath sample. The trial court’s judgment is reversed and remanded.

Canida v. State
Texarkana Court of Appeals
Nov. 27, 2012; No. 06-11-00227-CR
The appellant was convicted by a jury of the alleged manufacture of methamphetamine in an amount of more than 1 gram but less than 4 grams. The defendant’s statement that he “could” produce a certain amount of the illicit drug from a determined quantity of raw materials does not suffice to prove that the quantity of methamphetamine actually produced exceeded 1 ounce. The trial court’s judgment is reversed and remanded.

Doubout v. State
Houston’s 14th Court of Appeals
Nov. 29, 2012; No. 14-11-01041-CR
The appellant contends that his guilty plea was involuntary because he was mentally incompetent to understand the consequences of the plea. Pointing to several instances in the record allegedly showing the appellant is mentally “slow” was not sufficient to carry appellant’s burden of demonstrating that he pleaded guilty without understanding the consequences of his plea and thereby suffered harm. The trial court’s judgment is affirmed.

McMillian v. State
Houston’s 14th Court of Appeals
Nov. 29, 2012; No. 14-11-00833-CR
The appellant contends that the trial court erred in denying his motion to quash, which challenged the constitutionality of the statute criminalizing continuous sexual abuse of a child under the age of 14. Texas Penal Code §21.02 complies with the constitutional requirement of jury unanimity and is not unconstitutionally vague as applied to appellant in this case. The trial court’s judgment is affirmed.

Taylor v. State
Houston’s 1st Court of Appeals
Nov. 29, 2012; No. 01-11-00210-CR
The appellant challenges his conviction for possession of cocaine. Because this non-aggravated state jail felony was enhanced by two prior felonies, it was no longer punishable under Texas Penal Code §12.35(a) and was properly used to enhance appellant’s present felony conviction. The trial court’s judgment is affirmed.

Courts of Appeals — Civil

Arbitration

Courtland Building Co. Inc. v. Jalal Family Partnership Ltd.
Houston’s 14th Court of Appeals
Nov. 20, 2012; No. 14-12-00249-CV
Courtland Building Co. Inc. brings this interlocutory appeal challenging the trial court’s denial of its motion to compel arbitration and to stay further judicial proceedings. The claims asserted fall under the broad arbitration provisions in the construction contract. The trial court’s order is reversed and remanded.

Kelly v. Hinson
Fort Worth Court of Appeals
Nov. 21, 2012; No. 02-12-00058-CV
The appellants claim that the trial court erred by failing to rule on their motion to compel arbitration prior to granting summary judgment in favor of appellees. Appellants’ motion to compel arbitration — signed by a non-lawyer manager — was not void ab initio, and its unobjected-to, pro se status did not excuse the trial court from performing the ministerial duties of setting the motion for a hearing and ruling on it. The trial court’s summary judgment is reversed and remanded.

Civil Practice

In Re: Sierra Club
El Paso Court of Appeals
Nov. 28, 2012; No. 08-12-00236-CV
Sierra Club petitions for writ of mandamus asking that the trial court be ordered to withdraw a temporary restraining order prohibiting the Sierra Club from seeking injunctive relief to prohibit shipments of low-level radioactive waste to a disposal facility in Andrews County. Ordinarily, the expiration of an order granting injunctive or protective relief renders the issue moot. The petition is denied.

Commercial Law

Superior Broadcast Products v. Doud Media Group LLC
Eastland Court of Appeals
Nov. 29, 2012; No. 11-10-00376-CV
In this suit involving the sale of an allegedly defective radio transmitter, the trial court entered judgment in favor of the purchaser on its breach of warranty claim and awarded it damages. Lost revenue is not the correct measure of damages for lost profits. Rather, lost net profits is the correct measure of damages. The trial court’s judgment is reversed and remanded.

Family Law

Williams v. Williams
El Paso Court of Appeals
Nov. 28, 2012; No. 08-11-00212-CV
The trial court entered an order finding that the decree of divorce should be clarified, ordering the appellant to comply with the terms of the clarifying order and providing that the clarifying order may be enforced by contempt. In cases involving a mediated settlement agreement, the trial court could accept the agreement and render judgment thereon, or it could decline to render judgment upon a finding that the agreement was not in the best interest of the child due to family violence. The court could not render judgment and then modify it. The trial court’s clarification order is reversed and rendered.

Health Law

Abbott v. Texas State Board of Pharmacy
Austin Court of Appeals
Nov. 21, 2012; No. 03-11-00481-CV
The Texas State Board of Pharmacy, as part of an investigation, refused the complainant’s request to view its file, even though the file contained the requestor’s own prescription. The district court granted summary judgment to the board after it sued the attorney general, challenging an adverse letter ruling. Because there is no dispute that the requestor’s prescription record is part of the board’s investigative file, it is confidential under Texas Occupations Code §565.055. The district court’s summary judgment is affirmed.

Abilene Regional Medical Center v. Allen
Eastland Court of Appeals
Nov. 29, 2012; No. 11-11-00097-CV
This is an interlocutory appeal challenging the trial court’s denial of the appellants’ motion to dismiss. The reports are deficient with regard to the hospital’s direct liability. The expert reports do not contain any reference to a nurse’s educational background and do not provide any insight on the hospital’s staff training, policies or procedures. The trial court’s order is affirmed in part and reversed and remanded in part.

Torts

City of Watauga v. Gordon
Fort Worth Court of Appeals
Nov. 21, 2012; No. 02-12-00221-CV
The appellant, a city, appeals the trial court’s denial of its plea to the jurisdiction. Because the jurisdictional evidence presented by the city — consisting of only the two affidavits by the police officers who handcuffed the plaintiff — implicated the merits of the negligent-use-of-tangible-personal-property claim and, at most, established a fact issue on whether the officers negligently applied the handcuffs, the trial court properly denied the city’s plea to the jurisdiction. The trial court’s denial is affirmed.

5th U.S. Circuit Court of Appeals

Criminal Law

In Re: Amy Unknown
Nov. 19, 2012; No. 09-41238
The issue presented to the en banc court is whether 18 U.S.C. §2259 requires a district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a “proximate result” requirement in §2259(b)(3)(F). The statute does not require the government to show proximate cause. The plain language of the statute dictates that a district court must award restitution for the full amount of those losses. The district court’s judgment is affirmed.