Editor’s note: What follows are summaries of state and federal appellate court opinions issued from May 9 to May 17. The list is organized by court and practice area. All of the opinions listed are available on www.texaslawyer.com.

Texas Supreme Court

Appeals

In Re: Nalle Plastics Family LP
May 17, 2013; No. 11-0903

The court of appeals held that attorney fees are both compensatory damages and costs for the purpose of suspending enforcement of a judgment. To suspend enforcement of a money judgment pending appeal, a judgment debtor must post security equaling the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal and costs awarded in the judgment. That amount does not include attorney fees incurred in the prosecution or defense of the claim. Mandamus relief is conditionally granted.

Health Law

El Paso County Hospital District v. Texas Health and Human Services Commission
May 17, 2013; No. 11-0830

This case involves an earlier appeal and opinion wherein hospitals challenged a “cutoff date” used by the Texas Health and Human Services Commission to cap the collection of data used to calculate Medicaid reimbursement rates for inpatient services. In that 2008 opinion, the Texas Supreme Court did not decide whether the hospitals could reopen past agency proceedings or obtain relief for past years. The agency was not ordered to recalculate these hospitals’ rates, although that relief was available to the hospitals under the agency’s error-correction rules. The court of appeals’ judgment, holding in part that there was no retroactive remedy, is affirmed.

 
Torts

Hancock v. Variyam
May 17, 2013; No. 11-0772

In a letter sent to colleagues and others, a physician accused a fellow physician of lacking veracity and speaking in half truths, resulting in an award of $90,000 in actual damages for mental anguish and loss of reputation and $85,000 in exemplary damages. Because the statements did not ascribe the lack of a necessary skill that is peculiar or unique to the profession of being a physician, the statements did not defame the physician per se. There is no evidence of actual damages, and the physician cannot recover exemplary damages. The court of appeals’ judgment is reversed and rendered that the physician take nothing.

 

Court of Criminal Appeals

Criminal Law

Okonkwo v. State
May 15, 2013; No. PD-0207-12

The court of appeals reversed the appellant’s conviction for alleged forgery of money, finding that the appellant’s counsel rendered ineffective assistance by failing to request a jury instruction on the defense of mistake of fact. Though the court of appeals properly applied an objective standard, it erred by failing to weigh the evidence in a light most favorable to the trial court’s ruling. The court of appeals erred by determining that counsel was objectively ineffective in light of the record in this case, which shows that it was an inconsistent, alternative theory asserted by appellant’s trial counsel, and its inclusion may have lessened the state’s burden of proof. The court of appeals’ judgment is reversed.

 

Courts of Appeals — Civil

Civil Practice

Jones v. Garza
Dallas Court of Appeals
May 14, 2013; No. 05-12-00532-CV

An accident involving trailer trucks in Virginia gave rise to this attempted suit, in which the trial court denied the special appearance of a Tennessee resident. That the appellant drove a truck belonging to a Texas corporation and licensed in Texas does not satisfy the minimum contacts standard. The trial court’s order is reversed and rendered, dismissing the claims for want of jurisdiction.

Scheel v. Alfaro
San Antonio Court of Appeals
May 15, 2013; No. 04-11-00443-CV

The appellant challenges the trial court’s order setting aside a courthouse-steps sale conducted by a receiver pursuant to two turnover orders and the trial court’s setting aside of those turnover orders. Because Texas Civil Practice & Remedies Code §31.002 does not require notice of a turnover application or prohibit turnover orders from being granted absent notice, the trial court erred in sanctioning counsel for the appellant $5,000 under Texas Rule of Civil Procedure 21; that portion of the trial court’s order is reversed, the remainder is affirmed.

 
Family Law

Litman v. Litman
Dallas Court of Appeals
May 15, 2013; No. 05-11-00903-CV

The appellant in this divorce matter challenges, inter alia, the trial court’s denial of her motion to disqualify the husband’s attorneys. Courts must adhere to an exacting standard when considering motions to disqualify so as to discourage their use as a dilatory trial tactic. The trial court’s judgment is affirmed.

 
Probate Law

In the Matter of the Estate of Allen
Eastland Court of Appeals
May 9, 2013; No. 11-11-00131-CV

This is an appeal of an order admitting a will to probate as a muniment of title. The issue of whether a proponent is in default is a question of fact. Evidence that the proponent relied on counsel’s advice was sufficient to support a finding that the proponent was not in default.

 
Real Property

Meekins v. Wisnoski
Houston’s 14th Court of Appeals
May 16, 2013; No. 14-12-00048-CV

This dispute revolves around the sale of real property. References to a 1958 deed do not contain a clear intention to reserve or except an interest from the receiver and guardianship deed. A portion of the trial court’s judgment involving alleged title to 50 percent of mineral rights to an inherited estate is severed, reversed and remanded; the remainder is affirmed as modified.

 

Courts of Appeals — Criminal

Criminal Law

Ex Parte Arjona
Beaumont Court of Appeals
May 15, 2013; No. 09-12-00554-CR

The applicant in this habeas matter alleges he is entitled to relief based on the immigration consequences of his guilty plea. Considering the circumstances presented at the plea hearing — involving a discussion regarding applicant’s efforts to obtain a green card — the possibility of an assumed duty by counsel, and the allegation of ineffectiveness and affirmative misadvice of counsel, the applicant should be provided an opportunity to develop and present evidence at the hearing. The trial court’s denial is vacated and remanded.

Pacheco v. State
Amarillo Court of Appeals
May 14, 2013; No. 07-11-00217-CR

The trial court denied the appellant’s motion to withdraw his plea based on the assertion that the state breached the plea agreement. No promises were ever made to the appellant by the state that his plea would not be reported to appropriate authorities or that he would not be deported. The trial court’s judgments are affirmed.

Sturdivant v. State
Houston’s 1st Court of Appeals
May 14, 2013; No. 01-12-00089-CR

The appellant challenges her convictions for alleged murder and attempted capital murder. Because corroborating nonaccomplice evidence was not so unconvincing in fact as to render the state’s overall case for conviction clearly and significantly less persuasive, appellant did not suffer egregious harm from the trial court’s failure to instruct the jury that another person was an accomplice witness as a matter of law with respect to the attempted capital murder charge. The trial court’s judgment is affirmed.

Youkers v. State
Dallas Court of Appeals
May 15, 2013; No. 05-11-01407-CR

The appellant appeals the revocation of his community supervision and eight-year prison sentence. The judge’s designation as a Facebook “friend” with the father of the alleged victim, without context providing insight into the nature of the relationship, was insufficient to show bias. The trial court’s judgment is affirmed as modified to delete the assessment of court-appointed attorney fees.

 

5th U.S. Circuit Court of Appeals

Civil Rights

James v. Dallas Housing Authority
May 15, 2013; No. 12-10969

The plaintiff appeals the district court’s order granting summary judgment for defendant Dallas Housing Authority and Sheila Ann Reynolds in a 42 U.S.C. §1983 suit arising from the termination of the plaintiff’s housing assistance. To overcome qualified immunity, there must be evidence that 24 CFR §982.553(c), which provides for the termination of benefits based on a charge of alleged domestic violence rather than a full conviction, or its use was unconstitutional under clearly established law. The district court’s judgment is affirmed.

 
Constitutional Law

Cibolo Waste Inc. v. City of San Antonio
May 15, 2013; No. 12-50153

Appellants filed suit against a city, claiming that the permit fee violates the dormant Commerce Clause by imposing an excessive burden on interstate waste haulers. The district court dismissed their claims. The ordinance is a type of blanket prohibition that favors neither interstate nor intrastate commerce. Appellants’ participation in intrastate commerce throughout Texas does not suffice to place them within the zone of interests protected by the dormant Commerce Clause. The district court’s dismissal is affirmed.

 
Criminal Law

United States v. Alvarado-Casas
May 14, 2013; No. 12-40295

The appellant challenges his federal guilty plea conviction of conspiracy to commit aggravated alien transporting, arguing principally that his plea lacks an adequate factual basis and that the district court misadvised him as to his sentencing exposure, rendering his plea involuntary. Although it was error for the district court to inform him that he faced only a 10-year maximum sentence, and that the error was clear and obvious, the appellant failed to carry his burden of establishing a reasonable probability that, but for the error, he would not have pleaded guilty. The sentence is affirmed.

 
Insurance Law

Louisiana Generating LLC v. Illinois Union Insurance Co.
May 15, 2013; No. 12-30651

This case concerns whether Illinois Union Insurance Co. has a duty to defend Louisiana Generating LLC in an underlying suit filed against it by the Environmental Protection Agency and the Louisiana Department of Environmental Quality for alleged Clean Air Act and state environmental law violations. “Remediation costs” are defined very broadly to include expenses incurred to redress pollution in compliance with environmental law, including, inter alia, costs associated with investigating, mitigating or abating pollution. This language providing coverage for remediation costs potentially covers the multiple prayers for relief in the complaint. The district court’s holding is affirmed and the case is remanded.