Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of November 19, 2007

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions can be accessed by clicking the cause number then clicking View HTML Version of Opinion.

Allstate Ins. Co. v. Hunter, No. 02-07-00027-CV (Nov. 21, 2007) (Walker, J., joined by Livingston and McCoy, JJ.).: Held: The manifestation trigger-of-coverage theory applied to first-party homeowners' breach of contract claim against their insurance company based on progressive property damage to their home. Charge error existed in the submission of this trigger-of-coverage theory because the jury was asked whether the damage to the home was capable of being perceived, recognized, and understood during the policy's coverage period, not whether the damage was capable of being easily perceived, recognized, and understood. Because this charge was submitted over objection, we measure the sufficiency of the evidence against the correct charge and hold that the evidence was legally insufficient to support a finding that the damage was capable of being easily perceived during the insurance policy's coverage period. Accordingly, we reverse the trial court's judgment and render judgment that the Hunters take nothing.
Fix v. Flagstar Bank, No. 02-07-00030-CV (Nov. 21, 2007) (Walker, J., joined by Livingston and McCoy, JJ.).: Held: The refinance of a home equity loan is governed by the constitutional amendment in effect at the time the loan contract was executed, not by the version later adopted by a public vote. The lender and title company's offer to cure constitutional defects in the refinancing contract were sufficient under the prior version of the constitution to avoid forfeiture of the loan's principle and interest. Accordingly, the trial court properly granted summary judgment to the lender and the title company on the borrowers' claim for forfeiture. Furthermore, the borrowers did not meet the DTPA's definition of consumers as to the lender because they did not seek or acquire a good or service and as to the title company because the title company's services did not form the basis of the DTPA complaint. Therefore, summary judgment was properly granted in favor of the lender and title company on the borrowers' DTPA claim. Finally, because summary judgment was properly granted to the lender, a no-evidence summary judgment was properly granted in favor of assignee to whom the note was assigned two years later.
Schiffert v. State, No. 02-02-00278-CR (Nov. 21, 2007) (Gardner, J., joined by Cayce, C.J., and Livingston, J.).: Held: In its first opinion in this appeal, the court held that the evidence was factually insufficient to support the jury's verdict that Appellant was a party to the victim's murder. The court of criminal appeals reversed and remanded with instructions to reconsider the factual sufficiency of the evidence in light of its opinion in Watson v. State, 204 S.W.3d 404, 415-17 (Tex. Crim. App. 2006). Applying the factual sufficiency standard articulated in Watson, the court now holds that the evidence is factually sufficient to support the jury's verdict.