Editor’s note: What follows are summaries of state and federal appellate court opinions issued from Jan. 8 to Feb. 15. The list is organized by court and practice area. Names of the opinions below are linked to full-text opinions.

Texas Supreme Court

Environmental Law

Southern Crushed Concrete LLC v. City of Houston
Feb. 15, 2013; No. 11-0270

The city of Houston denied Southern Crushed Concrete’s municipal permit application to move a concrete-crushing facility to a new location. Because the city’s ordinance makes it unlawful to build a concrete-crushing facility at a location that was specifically authorized by the Commission on Environmental Quality by virtue of a Texas Clean Air Act permit, the ordinance is pre-empted. The court of appeals’ judgment is reversed and rendered for SCC.

Health Law

Certified EMS Inc. v. Potts
Feb. 15, 2013; No. 11-0517

A patient sued a nurse staffing service. The court of appeals held that, because the expert reports support a theory of vicarious liability against the staffing service, the lack of a description supporting direct liability is not fatal to the claimant’s maintaining her cause of action. When a health-care liability claim involves a vicarious liability theory, either alone or in combination with other theories, an expert report that meets the statutory standards as to the employee is sufficient to implicate the employer’s conduct under the vicarious theory. And if any liability theory has been adequately covered, the entire case may proceed. The court of appeals’ judgment is affirmed.

Courts of Criminal Appeals

Criminal Law

Ex Parte Milner
Feb. 13, 2013; No. AP-76,481

Applicant pleaded guilty to two counts of attempted capital murder and one count of murder. The applicant has shown that his conviction and sentencing for a second offense of attempted capital murder violates the Double Jeopardy Clause of the Fifth Amendment and the Due Process Clause of the 14th Amendment. Applicant has also accompanied his meritorious double-jeopardy claim with a prima facie showing of actual innocence and has thereby satisfied his burden under Texas Code of Criminal Procedure Art. 11.07, § 4(a)(2). The trial court’s judgment is vacated with instructions to render judgment of acquittal.

Courts of Appeals — Civil

Banking Law

Murphy v. Wells Fargo Bank NA
Houston’s 14th Court of Appeals
Feb. 12, 2013; No. 14-11-00560-CV

The trial court granted summary judgment for the appellee, a bank, in this suit involving a foreclosure. The nonrecourse status of the loan mandates that appellants are not personally liable for the attorney fees the bank incurred prosecuting this litigation; rather, the bank may only recover its attorney fees and costs against the property. Because appellants were seeking a loan to refinance their home mortgage and not the purchase of a new home, they are not consumers under the DTPA. The trial court’s judgment is affirmed in part, reversed to the extent it awards attorney fees against the appellants personally, and remanded.

Business Law

Bhatia v. Woodlands North Houston Heart Center PLLC
Houston’s 14th Court of Appeals
Feb. 14, 2013; No. 14-11-00477-CV

In this suit concerning the breakup of a medical practice group, a jury found that no party was liable for any damages to any other party. The appellees were the prevailing parties in the main issues in this litigation, and the trial court did not err in awarding them attorney fees. The trial court’s judgment is affirmed.

Energy Law

Bradshaw v. Steadfast Financial LLC
Fort Worth Court of Appeals
Feb. 14, 2013; No. 02-10-00369-CV

The plaintiff/appellant, the holder of a non-participating royalty interest in approximately 1,800 acres, sued several parties based on the allegation that the executive rights holder breached its duty to her. The level of duty owed by the executive rights holder depends on the amount of control placed in his or her hands by the terms of the NPRI reservation itself; i.e., whether a fraction of royalty or a fractional royalty is reserved. The judgment of the trial court is affirmed in part and reversed in part.

Government Law

In the Matter of the Expunction of J.E.
El Paso Court of Appeals
Feb. 13, 2013; No. 08-11-00006-CV

The appellants appeal from an order granting a petition for expunction of records in connection with the petitioner’s arrest for alleged possession of marijuana in a drug-free zone. Because there is no record of the trial court’s hearing on the petition, the record on appeal does not reflect whether the appellants offered to the trial court any evidence in support of their affirmative defense of waiver at the hearing or whether the trial court ruled or refused to rule thereon. The trial court’s judgment is affirmed.

Courts of Appeals — Criminal

Criminal Law

Cardenas v. State
Houston’s 1st Court of Appeals

Feb. 7, 2013; No. 01-11-01123-CR

The appellant pleaded guilty to the first-degree felony offense of alleged aggravated robbery with a deadly weapon. The appellant’s contention that the signed second page of the written confession bears no relationship to the first page is implausible. The trial court’s judgment is affirmed.

5th U.S. Circuit Court of Appeals

Criminal Law

United States v. Snarr, et al.
Jan. 8, 2013; No. 10-40525

The defendants appeal their convictions for murder and death sentences. A defendant’s exercise of peremptory challenges is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause. The convictions and sentences are affirmed.

United States v. Fraga
Jan. 10, 2013; No. 12-40302

The defendant appeals his 27-month prison sentence and lifetime term of supervised release following a guilty plea to failing to register as a sex offender. The sentencing judge did not err by not giving the defendant’s willingness to cooperate significant weight. No 18 U.S.C. §3553(a) factor requires the sentencing judge to take such cooperation into account. The district court’s order pertaining to the defendant’s lifetime term of supervised release is vacated and remanded for further proceedings on this issue, and the sentence is otherwise affirmed.