Second Court of Appeals | Case Summaries

Reynolds v. Murphy, No. 02-0003-294 (Feb. 9, 2006) (Livingston, J., joined by Gardner, J.; McCoy, J. concurs with opinion) (op. on reh'g).: Held: In this case of first impression involving the potential liability of an author and publisher of an investment-related newsletter to one of its subscribers who alleged that he incurred losses as a result of making investments in accordance with recommendations in the newsletter, the trial court did not err in granting a traditional summary judgment in favor of the author and publisher on the subscriber’s negligence, negligence per se, and negligent misrepresentation claims because the newsletter contains nonpersonalized investment advice and commentary; thus, it is entitled to the same First Amendment protection as newspapers. Additionally, the trial court did not err by granting a traditional summary judgment in favor of the author and publisher on the subscriber's fraud and misrepresentation by nondisclosure claim because the evidence showed that the author and publisher did not know that the subscriber was unaware of the allegedly undisclosed information, and the subscriber did not submit any summary judgment evidence raising a genuine issue of material fact as to the author's and publisher's knowledge.; Concurrence: The trial court did not err in granting summary judgment. However, the investment newsletter in this case is not the functional equivalent of a newspaper because of the disparity in issues involving access. Also, the absence of a duty to disclose cannot be grounded upon the author and publisher's lack of knowledge that the subscriber was unaware of the undisclosed information because of the problems of proof that arise by requiring a defendant to show that it knew that the plaintiff did not know some fact.
Cotten v. Weatherford Bancshares, Inc., No. 02-0003-341 (Feb. 9, 2006) (Dauphinot, J., joined by Boyd, J. (Retired, Sitting by Assignment); Cayce, C.J. concurs in part and dissents in part without opinion).: Held: The trial court erred by rendering judgment as a matter of law and dismissing Cotten’s inspection claim against Weatherford Bancshares, Inc. and his oppression and conspiracy claims against Sharp and Statham. As a preferred shareholder and equitable owner, Cotten was entitled to inspect and photocopy the documents at issue, and there are issues of fact concerning whether Weatherford Bancshares, Inc. violated this right. Additionally, oppression may exist between directors and preferred shareholders even if it cannot exist between common and preferred shareholders, and there is some evidence to support Cotten’s claim of oppression against Sharp and Statham. Also, Cotten’s civil conspiracy claim could be based on the oppression claim against Sharp and Statham as directors on the rigging claim; thus, issues of material fact exist on the civil conspiracy claim. The trial court also erred by holding that Cotten’s shares were effectively redeemed on January 7, 2002. Cotten remains a preferred shareholder entitled to dividends accrued from May 1997 until the date that his shares are properly redeemed because he did not get requisite notice of the January 2002 redemption.; Concurrence/Dissent: The trial court’s judgment should be affirmed in its entirety.
Crane v. Crane, No. 02-0004-162 (Feb. 9, 2006) (Gardner, J., joined by Holman and McCoy, JJ.).: Held: The trial court incorrectly treated Appellant’s motion for continuation of spousal maintenance as a motion under Texas Family Code section 8.057 to modify the maintenance ordered by the original decree of divorce; thus, the court erred in imposing on Appellant the burden to prove a material and substantial change in the circumstances of either party under section 8.057. Appellant’s request for the trial court to review continuation of the spousal maintenance order placed no special burden of proof on her other than to prove by a preponderance of the evidence that her disability was continuing.
Proulx v. Wells, No. 02-0005-044 (Feb. 9, 2006) (Livingston, J., joined by Gardner, J.; Walker, J., dissents with opinion).: Held: Appellee proved as a matter of law that Appellant was not diligent in effecting service before the statute of limitations expired.; Dissent: Viewed in the light most favorable to the nonmovant Appellant, the summary judgment evidence shows that Appellant attempted to serve Appellee twenty-three times at five different addresses, that Appellee dodged service, that Appellant utilized two different investigators in an effort to locate Appellee, and that Appellant ultimately obtained substituted service on Appellee’s brother. Because reasonable minds can differ as to whether this summary judgment evidence establishes that Appellant acted with reasonable diligence in obtaining service on Appellee, the trial court erred by granting summary judgment for Appellee on this ground.
Lavigne v. Holder, No. 02-0005-223 (Feb. 9, 2006) (Gardner, J., joined by Cayce, C.J., and Dauphinot, J.).: Held: The trial court erred by granting Appellees' motion for summary judgment and denying Appellant's motion. Appellant's grant of an easement to a third party across property that was subject to a deed of trust held by Appellees did not trigger the acceleration and foreclosure clause in the deed of trust.
Fakeye v. State, No. 02-0004-300 (Feb. 9, 2006) (McCoy, J., joined by Dauphinot, J.; Cayce, C.J., dissents with opinion).: Held: The trial court erred by failing to admonish Appellant of the possible deportation consequences of his guilty plea. The record is silent in regard to whether Appellant was aware of the deportation consequences. Additionally, the record contains evidence that Appellant was not a United States citizen. Appellant’s substantial rights were affected by this error.; Dissent: There is no evidence in the record that Appellant did not know of the deportation consequences of his guilty plea. A silent record neither proves nor disproves this alleged fact. Further, there is no evidence that Appellant would not have entered the plea had he known the consequences.
Mai v. State, No. 02-0005-020 (Feb. 9, 2006) (Holman, J., joined by Cayce, C.J., and Livingston, J.).: Held: The attorney appointed to assist the county attorney in the prosecution of Appellant for misdemeanor resisting arrest was appointed as a special prosecutor, rather than as an attorney pro tem; thus, the trial court did not err in allowing the county attorney to participate in Appellant’s trial with the special prosecutor. The trial court did not abuse its discretion in refusing to admit character evidence of the arresting officer because the evidence had no relevance apart from its tendency to prove that the arresting officer acted in conformity with his character.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of February 6, 2006