Editor’s note: What follows are summaries of state and federal appellate court opinions issued from Feb. 20 to Feb. 28. The list is organized by court and practice area. Names of the cases below are linked to full-text opinions.

Courts of Appeals — Civil

Civil Practice

Turner Bros. Trucking LLC v. Baker
Dallas Court of Appeals
Feb. 21, 2013; No. 05-10-00882-CV

The appellant argues the trial court abused its discretion in refusing to appoint a receiver, erred in concluding it lacked legal authority to order turnover of certain life insurance proceeds, and abused its discretion in failing to award attorney fees. Texas courts do not apply the turnover statute to non-judgment debtors. A judgment creditor who obtains turnover relief is entitled to reasonable costs, including attorney fees. The trial court’s denial of attorney fees is reversed and remanded, and the judgment is otherwise affirmed.

Local Government

City of Harlingen v. Lee
Corpus Christi Court of Appeals
Feb. 28, 2013; No. 13-12-00213-CV

The trial court denied a city’s plea to the jurisdiction in this suit involving a petition for disannexation. The appellee has standing to challenge an ordinance purportedly granting the city the power to re-annex. The trial court’s judgment is affirmed in part and reversed as to refund claims made by the appellee on behalf of third parties.


Poynor v. BMW of North America LLC
Dallas Court of Appeals
Feb. 21, 2013; No. 05-10-00724-CV

Appellants were injured during a test drive while the car was being driven by a salesperson. To trigger vicarious liability, the right to control must extend to the specific activity from which the injury arose. The trial court’s judgment is affirmed.

Courts of Appeals — Criminal

Criminal Law

Balentine v. State
Beaumont Court of Appeals
Feb. 20, 2013; No. 09-09-00354-CR

The trial court permitted the deletion of a phrase, "and causing Robert Rhodes['s] hand to be sprained during the resisting," in the indictment during trial. The phrase was needlessly pleaded and, under the circumstances presented, the unnecessary language could be abandoned by the state. The defendant received sufficient notice of the offense charged and was not surprised or misled. The deletion was not material and did not prejudice the defendant’s substantial rights. The trial court’s judgment is affirmed.

Dees v. State
Fort Worth Court of Appeals
Feb. 21, 2013; No. 02-12-00488-CR

The appellant filed a motion asking the court of appeals to unseal portions of the reporter’s record that were sealed pursuant to Texas Rule of Evidence 412 and to make them available to his appellate counsel for purposes of his appeals. The complainant’s privacy rights and appellant’s right to a meaningful appeal can each be protected adequately through specific orders from the court of appeals. The appellant’s motion is granted in part.

White v. State
Fort Worth Court of Appeals
Feb. 21, 2013; No. 02-11-00511-CR

The appellant appeals his convictions for alleged burglary of a habitation with intent to commit sexual assault (Count No. 1) and alleged burglary of a habitation with intent to commit assault (Count No. 2). When a defendant has been prosecuted and convicted in a single criminal action of two or more offenses that constitute the same offense, in violation of double jeopardy, the remedy is to apply "the most serious offense" test and retain the conviction for the "most serious" offense. The trial court’s judgment on Count No. 1 is affirmed, and the judgment on Count No. 2 is vacated and dismissed.

5th U.S. Circuit Court of Appeals

Arbitration Law

Klein v. Nabors Drilling USA LP
Feb. 26, 2013; No. 11-30824

An employer appeals the district court’s denial of its motion to compel the arbitration of an age discrimination claim. The employee signed an Employee Acknowledgment Form as a condition of employment. The form provided that disputes would be resolved through a dispute resolution program, and stipulated that it was not an employment contract, that nothing in the program was "intended to violate or restrict any rights of employees guaranteed by state or federal laws," and that resolution of disputes could be resolved by mediation or arbitration. The district court’s order is reversed and remanded with instructions to grant the motion to compel arbitration.

Bankruptcy Law

In the Matter of: Village At Camp Bowie I, LP v. Village At Camp Bowie I LP
Feb. 26, 2013; No. 12-10271

A creditor appeals a bankruptcy court order confirming a Chapter 11 cramdown plan and denying the appellant’s motion for relief from the automatic stay. 11 U.S.C. §1129(a)(10) does not distinguish between discretionary and economically driven impairment. A plan proponent’s motives and methods for achieving compliance with the voting requirement of §1129(a)(10) must be scrutinized, if at all, under the rubric of §1129(a)(3), which imposes on a plan proponent a duty to propose its plan "in good faith and not by any means forbidden by law." The judgment of the bankruptcy court is affirmed.

In the Matter of: Spillman Development Group Ltd. v. Bischoff
Feb. 28, 2013; No. 11-51057

Fire Eagle LLC appeals the district court’s decision affirming a bankruptcy court’s grants of summary judgment in two consolidated matters. The ability of a bankruptcy court to resolve certain statutorily core proceedings implicates a strong public-policy interest. The bankruptcy court may decline to enforce a forum-selection clause. The district court’s judgment is affirmed.

Civil Practice

Thrasher v. City of Amarillo
Feb. 22, 2013; No. 11-10153

The appellant, acting pro se, asserted claims under 42 U.S.C. §1983. The district court dismissed the suit for delay in perfecting service of process. A litigant’s pro se status neither excuses his failure to effect service nor excuses him for lack of knowledge of the Rules of Civil Procedure. Even if the days the appellant was admitted for in-patient care at an out-of-state treatment facility are deducted from the equation, the appellant still fails to show that he exercised due diligence during the remaining time available to perfect service of process. The district court’s judgment is affirmed.

Criminal Law

Gongora v. Thaler
Feb. 27, 2013; No. 07-70031

This is an appeal of a state court’s denial of habeas relief. Because the appellant was denied a right to a fair trial by the prosecutor’s comments in violation of his Fifth Amendment right not to testify, the judgment of the district court is reversed and the petition for habeas relief is granted.

United States v. Duque-Hernandez
Feb. 28, 2013; No. 11-40642

The appellant suggests that the probable cause statement attached to his information is not a Shepard-approved document and should not have been relied upon to support the application of an adjustment to his base offense level. Because the sentencing error, if any, does not seriously affect the fairness, integrity or public reputation of judicial proceedings, the appellate court declines to exercise discretion to correct it and affirms the sentence.

Insurance Law

Mid-Continent Casualty Co. v. Eland Energy Inc.
Feb. 22, 2013; No. 11-10649

According to the appellant, an insurer prematurely tendered the limits of the appellant’s primary and umbrella policies ($6 million total) while undercutting the appellant’s ability to defend a class action suit for environmental damage following Hurricanes Katrina and Rita. No Texas court has yet held that recovery is available for an insurer’s extreme act, causing injury independent of the policy claim, in the first-party claim context, let alone in the third-party claim context. The district court’s judgment is affirmed.

First American Title Insurance Co. v. Continental Casualty Co.
Feb. 28, 2013; No. 12-30336

First American Title Insurance Company appeals the district court’s grant of Continental Casualty Company’s motion for summary judgment. Louisiana’s Direct Action Statute does not trump the reporting provision in Continental’s claims-made-and-reported policy’s insuring clause, which requires that a claim be reported within the policy’s effective period. The district court’s grant of summary judgment for Continental is affirmed.


National Labor Relations Board v. Arkema Inc.
Feb. 28, 2013; No. 11-60877

The National Labor Relations Board applies for enforcement of its order upholding a decision of an administrative law judge invalidating a decertification election based on findings that Arkema Inc. violated the National Labor Relations Act before an election by disciplining a union employee for allegedly threatening to withdraw help needed by another employee. The undisputed testimony establishes that an employee needed assistance from others to perform physical aspects of her job; a threat to withdraw that assistance, gratuitous or not, would impair her ability to perform her job and could cause her to lose it. Such threats do not fall under the protection of the act and are subject to employer discipline. The application for enforcement is denied.


Learmonth v. Sears, Roebuck and Co.
Feb. 27, 2013; No. 09-60651

The appellant challenges the application of Mississippi’s statutory cap on noneconomic damages. The appellant has not shown that the statute is in palpable conflict with the exclusive right of a jury to find the amount of compensatory damages, or that the common law jury guarantee includes the right to a judgment equal to the jury’s damages finding notwithstanding the permissible legal remedy. The appellant failed to establish beyond a reasonable doubt that the statute violates Mississippi’s constitutional separation of powers. The district court’s judgment is affirmed.