Editor’s note: What follows are summaries of state and federal appellate court opinions issued from May 8 to May 31. The list is organized by court and practice area.

Texas Supreme Court

Civil Practice

Amedisys Inc. v. Kingwood Home Health Care LLC

Under Texas Rule of Civil Procedure 167 a party may recover certain litigation costs if the party made, and the party’s opponent rejected, a settlement offer that was significantly more favorable than the judgment obtained at trial. The court of appeals found that no settlement agreement existed here because the petitioner had not accepted all of the offer’s material terms. The petitioner sought to enforce a contract, not to recover litigation costs, and to prevail on that claim it had to establish the existence of a valid contract under the common law, including the elements of offer and acceptance. The petitioner’s email and letter constitute prima facie evidence of a clear intent to accept the settlement offer and did not indicate that acceptance was conditioned on the alteration of any material terms. The court of appeals’ judgment is reversed and remanded. Texas Supreme Court, No. 12-0839, 05-09-2014


Waste Management of Texas Inc. v. Texas Disposal Systems Landfill Inc.

This suit concerns an allegation of libel made by one corporation against another. A for-profit corporation may suffer reputation damages. Such damages are non-economic in nature. While the evidence in this case is sufficient to support the award of remediation costs, the evidence is not sufficient to support the award of reputation damages. The respondent is entitled to exemplary damages, but the amount must be recalculated. The court of appeals’ judgment is affirmed in part, reversed in part, and remanded. Texas Supreme Court, No. 12-0522, 05-09-2014

Courts of Appeals-Criminal

Criminal Law

Cooper v. State

The appellant was convicted of five counts of aggravated robbery arising from a single home invasion. Two counts pertain to a first complainant, two counts to a second complainant, and one count to a third complainant. Appellant’s convictions violate the double-jeopardy clause. The court of appeals’ judgment is reversed and remanded. Court of Criminal Appeals, No. PD-1022-12, 05-14-2014

Whitfield v. State

The trial court held a Texas Code of Criminal Procedure Chapter 64 hearing and found no reasonable probability that the appellant would not have been convicted had the results been available at his trial. The court of appeals dismissed for want of jurisdiction. Holloway was wrongly decided. The courts of appeals may consider the sufficiency of the evidence and other grounds of appeal of chapter 64 hearings, except that they have no jurisdiction to consider DNA-testing appeals in death-penalty cases. After a final decision of a court of appeals of a DNA-testing appeal in a non-death-penalty case, the results of the proceeding may be used for an application for post-conviction habeas-corpus relief under Article 11.07. The court of appeals’ decision is reversed and remanded. Court of Criminal Appeals, No. PD-0865-13, 05-07-2014

Ex Parte Campbell

This is a subsequent application for a writ of habeas corpus and a motion to stay applicant’s execution. The applicant asserts that he is mentally retarded and therefore his application will violate the Eighth Amendment. The allegations do not satisfy Texas Code of Criminal Procedure Article 11.071 §5. The application is dismissed, the court declines to re-open prior writ applications, and the stay is denied. Court of Criminal Appeals, No. WR-44,551-05, 05-08-2014

Perez v. State

The court of appeals affirmed the conviction of the appellant. At trial, and without objection, the indictment was amended. The appellant had actual notice of the amendments, six counts were eliminated and the remainder reorganized without altering the language of the old charges. The court of appeals’ judgment is affirmed. Court of Criminal Appeals, No. PD-1380-13, 05-14-2014

Courts of Appeals-Civil

Civil Practice

Naples v. Lesher

This dispute concerns proceeds from the sale of timber and minerals on a jointly owned property. The trial court found that the claims related to minerals were barred by the statute of limitations. Summary judgment was not proper concerning royalty payments made in 2006 that were not mentioned in a 2005 letter. A 2007 letter shows that the appellant was aware of missing timber, so those claims are barred by limitations. The trial court erred in finding no fiduciary duty applied to the timber claims; partners owe each other and the partnership a fiduciary-like duty in the conduct of partnership business and that liability flows from a breach of that duty. The trial court’s judgment is affirmed in part, and reversed and remanded in part. Texarkana Court of Appeals, No. 06-13-00059-CV, 05-08-2014

In re: Ingram

The relator challenges several orders of the trial court. Although the relator alleges that he filed an amended pleading raising breach of the settlement agreement and/or fraud in its inducement, this pleading is not included in the mandamus record. Mandamus is denied based on the availability of adequate remedy by law. Whether the trial court erred in its determination that the Rule 11 agreement is valid and binding is an issue that can be presented on direct appeal. Whether the trial court erred in its rulings on the disputed discovery is likewise an issue that can be presented on direct appeal. The petition for writ of mandamus is denied. Texarkana Court of Appeals, No. 06-14-00032-CV, 05-14-2014

Tax Law

Texas Entertainment Association Inc. v. Combs

The trial court concluded that the sexually-oriented-business tax is an occupation tax that does not violate the Texas Constitution. The sexually-oriented-business tax is a general excise tax rather than an occupation tax, therefore there is no requirement that 25% of its revenue go to public schooling. The sexually-oriented-business tax’s classification is not unreasonable because limiting the tax’s applicability to businesses with audiences of two or more reasonably relates to adverse secondary effects that the tax is intended to address; the tax does not violate the Equal and Uniform Clause of the Texas Constitution. The trial court’s judgment is reversed and rendered in part and affirmed. Austin Court of Appeals, No. 03-12-00527-CV, 05-09-2014


KBMT Operating Co. LLC v. Toledo

A doctor brought a defamation suit against media defendants following their report of a Texas Medical Board agreed order. The trial court denied the media defendants’ Texas Citizen Participation Act motion to dismiss. While it is true that the plaintiff is a pediatrician and that the TMB did discipline her for having improper sexual contact with a patient, the media defendants’ decision to place these two facts together in the same sentence, particularly with the word “pediatrician” being used, in essence, as the subject of the phrase “engaged in sexual contact with a patient,” resulted in a statement that was reasonably capable of being interpreted by the average listener as stating that the doctor was punished for having improper sexual contact with a child. The TMB agreed order did not specify the age of the patient referred to, and the doctor asserts that he was an older adult male for whom she purchased testosterone injections. The “fair report” privilege does not apply. The trial court’s denial of the motion to dismiss is affirmed. Beaumont Court of Appeals, No. 09-13-00234-CV, 05-08-2014

Criminal Law

Ex Parte Baldez

The appellant challenges the trial court’s order denying his post-conviction application for writ of habeas corpus as frivolous. In the context of both habeas petitions and motions for new trial, the absence of a verification does not prevent the trial court from acting or the appellate court from reviewing the trial court’s action. On their face, the application and affidavits submitted by the appellant indicate that appellate counsel failed to notify appellant of his right to file a pro se petition for discretionary review. It was error to find the application frivolous, because the face of the application does not show that the appellant is manifestly entitled to no relief. The trial court’s order is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00494-CR, 05-14-2014

U.S. Court of Appeals for the Fifth Circuit


Colbert, Kenyon & Kenyon LLP v. Brennan

The plaintiff-appellees filed this suit — a revocatory action and oblique action — against the defendant-appellant seeking to collect on a judgment. The appellant voluntarily dismissed his appeal, placing himself in the same position as someone who had never filed an appeal. The appellant moved this court to reinstate his appeal five months after the judgment and two months after dismissing his appeal-well outside of the time limit set by Federal Rule of Appellate Procedure 4(a)(1)(A) for civil appeals. Therefore, his motion to reinstate was ineffective and there is no operative timely filed notice of appeal. The appeal is dismissed. 5th U.S. Circuit Court of Appeals, No. 13-30069, 05-09-2014

Criminal Law

United States v. Gutierrez-Mendez

The appellant was found guilty of conspiring to harbor illegal aliens and harboring illegal aliens for commercial advantage or private financial gain. During trial, an officer testified concerning a past traffic stop involving the appellant. He testified that the car smelled of human sweat, and that the odor was consistent with human smuggling. Admission of the testimony under Federal Rule of Evidence 404(b) was erroneous but harmless — the evidence was weak and there were multiple limiting instructions. 5th U.S. Circuit Court of Appeals, No. 12-40709, 05-12-2014

United States v. Hinojosa

The appellant pleaded guilty to one count of possession with intent to distribute 211 kilograms of marijuana. As a sentencing factor, the district court found that he was responsible for 2,648.8 additional kilograms of marijuana. The district court found that the additional amounts were part of a common scheme or plan — it’s immaterial that the conduct occurred before this offense. The Guidelines do not contain any prohibition, for relevant conduct purposes, on activities occurring during a scheme that spans from before a defendant reaches the age of majority to after he reaches the age of majority. The sentence is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40351, 05-20-2014

United States v. Palacios

At sentencing, the government withheld an additional one-level reduction under U.S. Sentencing Guidelines Manual §3E1.1(b) for pretrial acceptance of responsibility solely because the defendant refused to waive his right to appeal. Amendment 775, which became effective Nov. 1, 2013, after the appellant was sentenced but while this appeal was pending, applies here. The government should not withhold a §3E1.1(b) motion based on the defendant’s decision not to waive appeal. The sentence is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-40153, 05-21-2014

Insurance Law

State Farm Mutual Automobile Insurance Co. v. Logisticare Solutions LLC

A volunteer driver for LogistiCare Solutions, LLC provided non-emergency medical transportation services for Medicaid patients using an automobile insured by State Farm Mutual Automobile Insurance Company. Following an accident, the driver and LogistiCare were sued in Mississippi state court. The district court granted summary judgment for State Farm, and denied summary judgment for the heirs and LogistiCare, as to the duties to defend and indemnify. The “for a charge” exclusion does not apply merely because the driver was reimbursed for mileage expenses. Looking at the complaint, the “for a charge” exclusion does not apply and the insurer has a duty to defend. Looking at the entire record, the driver intended to and did profit from her arrangement with LogistiCare. These facts trigger the applicability of the “for a charge” exclusion and absolves the insurer of its duty to indemnify. The district court’s judgment is affirmed in part, reversed in part, and remanded. 5th U.S. Circuit Court of Appeals, No. 13-60287, 05-23-2014

Maritime Law

Gabarick v. DRD Towing Company LLC

The appellant challenges the district court’s dismissal that found tthe appellant’s position that certain vessel chartering agreements were void ab initio clearly contradicted its earlier position in a related proceeding that the charters were valid. The two positions are inconsistent. The court of appeals rejects the appellant’s argument that, in the former limitations action, it only posited that the agreements were intended to be valid charters. Once a court has accepted and relied upon one of a party’s several alternative positions, any argument inconsistent with that position may be subject to judicial estoppel in subsequent proceedings. The district court did not require the appellant to adopt the position it later sought to contradict, and it is not inequitable to apply judicial estoppel. The district court’s dismissal is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30739, 05-21-2014


Eckhardt v. Qualitest Pharmaceuticals Inc.

The plaintiff appeals judgment against him in his suit alleging damages resulting from his prolonged use of a medicine. The trial court dismissed the claims brought against brand-name defendants and granted summary judgment to the generic manufacturers. The generic defendants were estopped under federal law from unilaterally providing stronger warnings. The strict-liability design-defect claim is pre-empted by federal law. The claims against the brand-name defendants are essentially product liability claims for which there is no liability. The parallel claims were not adequately pleaded. A brand-name manufacturer does not owe a duty to consumers who use a generic version of the drug. The district court’s judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40151, 05-13-2014

Alfonso v. United States

The district court dismissed this suit alleging negligence finding the defendants were engaged in emergency preparedness activities and were immune under the Louisiana Homeland Security and Emergency Assistance and Disaster Act. Although the immunity statute does not apply to general levee construction, he district court did not clearly err in finding that the national guard was engaged in debris removal around the time and place of the plaintiff’s accident in response to the emergency created by Hurricane Katrina. The statute does not contemplate a particular time limit to immunity. The judgment of dismissal is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30824, 05-12-2014