Editor’s note: What follows are summaries of state and federal appellate court opinions issued from May 22 to May 29. The list is organized by court and practice area. All of the opinions listed are available on www.texaslawyer.com.

Courts of Appeals — Civil

Banking Law

Cline vs. Guaranty Bond Bank
Texarkana Court of Appeals
May 24, 2013; No. 06-13-00004-CV

The trial court granted summary judgment in favor of a bank in this case alleging claims for conversion and negligence. No evidence was presented that the plaintiff ever deposited any money with the bank, that the bank promised to deposit a check into the plaintiff’s account, or that the bank ever wrongfully exercised dominion and control over the plaintiff’s money. In a no-evidence motion for summary judgment, the bank did not have any burden to produce evidence concerning issues upon which the plaintiff had the burden of proof. The trial court’s judgment is affirmed.

Business Law

Cuidado Casero Home Health of El Paso v. Ayuda Home Health Care Services LLC
El Paso Court of Appeals
May 22, 2013; No. 08-11-00332-CV

Cuidado Casero Home Health appeals from a grant of a summary judgment in favor of Ayuda Home Health Care Services in this suit alleging misappropriation of trade secrets, breach of contract, breach of fiduciary duty, tortious interference, conversion and disgorgement. The trial court’s judgment is affirmed in part, reversed in part and remanded.

Civil Procedure

2005 Honda Civic v. State
El Paso Court of Appeals
May 22, 2013; No. 08-11-00304-CV

This case is an appeal from a motion for summary judgment granted in favor of the state in a forfeiture proceeding. The state failed to provide summary judgment evidence that would give rise to anything more than a mere surmise or suspicion that a substantial connection exists between the property to be forfeited and the criminal conduct alleged. The case is reversed and remanded.

Creditors and Debtors Rights

Sedona Pacific Housing Partnership v. Ventura
El Paso Court of Appeals
May 22, 2013; No. 08-11-00208-CV

Appellants in this home foreclosure case filed a motion for new trial on equitable grounds. At the trial court level, appellants made a general appearance in the case but failed to file an answer. Under these circumstances, the judgment entered by the court is not a no-answer default judgment, a judgment nihil dicit or a post-answer default judgment. It is instead a post-appearance default judgment. The judgment of the trial court is affirmed.

Employment Law

Hagood v. County of El Paso
El Paso Court of Appeals
May 22, 2013; No. 08-11-00280-CV

Randy Hagood brought suit against his former employer, the county of El Paso, alleging disability discrimination and retaliation. If no reasonable accommodation would enable the plaintiff to perform the essential functions of his position, then he is not a "qualified individual" with a disability. The trial court’s summary judgment order in favor of the county is affirmed.

Energy and Natural Resources

Crosstex NGL Pipeline LP v. Reins Road Farms-1 Ltd.
Beaumont Court of Appeals
May 23, 2013; No. 09-12-00563-CV

Crosstex NGL Pipeline contends the trial court was required to grant its request for an injunction to prevent Reins Road Farms-1 (RRF), a landowner, from interfering with its attempt to survey RRF’s property to complete its planned natural-gas-liquids pipeline. The trial court did not abuse its discretion by determining that Crosstex is not likely to prevail on its claims. Therefore, the trial court’s order denying Crosstex’s request for temporary injunctive relief is affirmed.


Texas Water Development Board v. Ward Timber
Eastland Court of Appeals
May 23, 2013; No. 11-12-00030-CV

The issue of first impression, involving a proposed Marvin Nichols Reservoir in the Sulphur River Basin, is whether there is an interregional conflict between the 2011 water plans of two regions that are now part of the Texas water plan. The district court denied the Texas Water Development Board’s plea to the jurisdiction, declared that an interregional conflict existed between the two water plans, reversed the board’s decision approving the two plans, and remanded the case to the board for it to follow its rules and the statute to resolve the conflict.

Family Law

F.M.G.W v. D.S.W.
El Paso Court of Appeals
May 22, 2013; No. 08-11-00365-CV

The acceptance-of-the-benefits doctrine is a jurisdictional rule grounded on the constitutional authority of courts. Appellant’s conduct deprived the appellate court of jurisdiction, which cannot be recreated through her subsequent nonsuit of the justice action. The court dismisses the appeal for want of jurisdiction.

Gurka v. Gurka
Houston’s 14th Court of Appeals
May 23, 2013; No. 14-11-00978-CV

This appeal is from the trial court’s determination that Tracy Gurka is the biological father of Shane Gurka. Shane allegedly drowned while at the residence of appellants Gloria Gurka and Eric Brock. Tracy filed a wrongful death action against appellants. The trial court found that clear and convincing evidence established that Tracy was Shane’s biological father. The evidence is legally and factually sufficient to support the trial court’s finding that Tracy was Shane’s biological father.

Local Government

Riley vs. Commissioners Court of 
Blanco County
Austin Court of Appeals
May 23, 2013; No. 03-11-00276-CV

The plaintiff challenges the district court’s granting of the plea to the jurisdiction in his attempted suit alleging open meetings violations by a commissioners court. The open meetings act waives immunity for violations of the act and authorizes suits against governmental bodies. The presentment provision does not apply under these circumstances. The language of Texas Local Government Code §89.004 demonstrates that the types of claims governed by this provision are claims for monetary relief from a county. The trial court’s judgment is affirmed in part, and reversed and remanded in part.

Real Property

In Re: Texas Rice Land Partners
Beaumont Court of Appeals
May 23, 2013; No. 09-12-00484-CV

The petitioners seek a writ of mandamus ordering the trial court to vacate a writ of possession issued to TransCanada Keystone Pipeline LP in conjunction with the pipeline owner’s condemnation suit. It was error for the trial court to refrain from making the preliminary finding that TransCanada is an entity with eminent domain authority, but the error was harmless. The petition is denied.

Trusts and Estates

In Re: Estate of Valdez
San Antonio Court of Appeals
May 29, 2013; No. 04-12-00105-CV

This appeal arises from a summary judgment in a will contest. The mere filing of a will contest does not constitute tortious interference with inheritance rights. The trial court’s judgment is affirmed.

Workers Compensation

Rico v. Judson Lofts
San Antonio Court of Appeals
May 29, 2013; No. 04-12-00330-CV

The appellant challenges an adverse summary judgment in his common law negligence suit against Judson Lofts, Ltd. for injuries the appellant sustained in a workplace incident. Because the service agreement is ambiguous as to whether Judson and the appellant’s employer shared responsibilities as required by the Staff Leasing Services Act, Judson failed to meet its burden to establish conclusively all of the elements of its SLSA affirmative defense of workers’ compensation insurance. The trial court’s judgment is reversed and remanded.

Courts of Appeals — Criminal

Criminal Law

Davison v. State
May 22, 2013; No. PD-1236-12

Davison pleaded guilty to burglary of a building and also pleaded true to three felony enhancement paragraphs, which made him susceptible to punishment as a second-degree felon. On appeal, he argued that the trial court failed to admonish him as to the applicable range of punishment. Davison had received notice of the enhancement paragraphs in the indictment, and he had explicitly acknowledged in the Guilty Plea Memorandum that he had read them and that they were "true and correct." The sentence is affirmed.

Ex Parte Denton
May 22, 2013; No. AP-76

Denton argues that his convictions for both aggravated robbery and aggravated assault of each complainant violate the prohibition against double jeopardy. Two of his four convictions are in violation of his constitutional double-jeopardy protections that preclude multiple punishments for the same offense. When a defendant is convicted of two offenses and those convictions violate double-jeopardy protections, the conviction for the more serious offense is retained. The court set aside the aggravated-assault convictions.

Tucker v. State
San Antonio Court of Appeals
May 22, 2013; No. 04-09-00046-CR

This case was remanded to the court of appeals to review a video recording and determine whether the evidence supports the trial court’s implicit finding that appellant’s consent to search his residence was voluntary. That the officers allegedly refused to remove the appellant’s 2-year-old child from a van without air conditioning on a 100-degree day does not require a finding that the appellant’s consent was coerced. The trial court’s judgment is affirmed.

State v. Zorrilla
San Antonio Court of Appeals

May 22, 2013; No. 04-12-00360-CR

The complaint in this case, which only alleged Bexar County as the place of the offense, satisfied the requisites of Article 15.05 of the Code of Criminal Procedure sufficiently to apprise appellee of the offense with which he was charged so that he could prepare a defense. Therefore, the trial court erred in granting appellee’s motion to quash.

Ex Parte Pharris
Houston’s 14th Court of Appeals
May 23, 2013; No. 14-13-00002-CR

The appellant in this habeas matter seeks a reduction in bond. When considering a bond reduction under Texas Code of Criminal Procedure Article 17.151, the trial court has a duty to consider Article 17.15′s factors, such as "the nature of the offense and the circumstances under which it was committed" and "the future safety of the victim and the community," as well as whether bail is excessive. Because the trial court’s decision to reduce bail to $600,000 is not outside the zone of reasonable disagreement, the trial court’s judgment is affirmed.

Smith vs. State
Texarkana Court of Appeals
May 24, 2013; No. 06-12-00114-CR

The appellant challenges the admissibility of an enhancement offense. To establish that a defendant has been convicted of a prior offense, the state must prove beyond a reasonable doubt that 1. a prior conviction exists and 2. the defendant is linked to that conviction. Texas law does not require that the fact of a prior conviction be proved in a specific manner. The trial court’s judgment is affirmed.

5th U.S. Circuit Court of Appeals

Bankruptcy Law

In Re: Lively
May 29, 2013; No. 12-20277

This is an appeal of the denial of confirmation of an individual Chapter 11 debtor’s reorganization plan. Chapter 11′s absolute priority rule, 11 U.S.C. §1129(b)(2)(B) as amended by the Bankruptcy Abuse Prevention & Consumer Protection Act of 2005, applies in individual debtor cases. The bankruptcy court’s judgment is affirmed.

Criminal Law

Coleman v. Thaler
May 23, 2013; No. 12-70002

Lisa Ann Coleman was convicted of capital murder and sentenced to death. A federal district court denied her petition for habeas relief, a judgment she seeks to appeal. Coleman asks the court to overturn her conviction based on two nearly identical statements, offered by family members, which in several places flatly contradict the inescapable weight of the evidence before the state court. The court denies her request for a certificate of appealability.