Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of June 2, 2008

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 (PDF version) can be accessed by clicking the cause number.

In re Estate of Rhea, No. 02-07-00283-CV (June 5, 2008) (Gardner, J., joined by Dauphinot and McCoy, JJ.).: Held: When the decedent's children removed virtually all personal property from the decedent's residence, trial court did not err by granting Appellee, the decedent's husband, a $20,000 family allowance, despite the fact that he had monthly income in excess of his ordinary monthly expenses. Nor did the trial court err by both awarding Appellee an allowance in lieu of exempt property that was no longer on hand and setting aside the exempt property that was on hand—namely, the decedent's wedding ring—because probate code section 273 authorizes both awards. The trial court did, however, err by granting Appellee a life estate in the wedding ring because probate code section 278 precludes a life estate in set-aside exempt property.

State v. Powell, No. 02-05-00477-CR (June 5, 2008) (Dauphinot, J., joined by Cayce, C.J., and Walker, J.).: Held: Because the trial court stated that the suppression ruling was based on the evidence and the credibility of the witnesses, we cannot say that the trial court erred by concluding that the seizure and opening of the safes later at a different location exceeded the scope of the warrant. Among other things, the safes were not particularly described in the warrant, and no evidence shows that Powell exercised control over either safe, that the safes were connected to him, or that either safe was the safe referred to in the affidavit and warrant. Additionally, because of the trial court's explanation for its ruling, we cannot say that the trial court erred by concluding that the State failed to prove that Officer Hobbs had legal authority to be in the place where he viewed the safes and was legally able to access them, failed to prove that the safes were in plain view, failed to prove that the incriminating character of the safes was immediately apparent, and therefore failed to prove that the plain view exception justified the seizure and subsequent search of the safes.

Brooks v. Brooks, No. 02-07-00270-CV (June 5, 2008) (Livingston, J., joined by Gardner and McCoy, JJ.).: Held: The trial court did not err by failing to render judgment in accordance with the parties' pretrial mediated settlement agreement (MSA) under family code section 6.602. Appellant-husband is estopped from enforcing the MSA because (1) he agreed to a second mediation and once that mediation failed, he knew he would have to go trial, (2) he participated in the trial without objection, presenting his own proposed property division that differed from the terms of the MSA, and (3) he did not object when, after trial, property of the parties was sold and the proceeds distributed in accordance with a provision of the divorce decree that differed from the MSA. In addition, the evidence was sufficient to support the trial court's award of spousal maintenance to Appellee-wife even in the absence of medical expert testimony.

In re S.R., No. 02-07-00454-CV (June 5, 2008) (Livingston, J., joined by Cayce, C.J., and Dauphinot, J.).: Held: The evidence supporting the termination of Appellant's parental rights was legally and factually sufficient to support the trial court's best interest findings under family code section 161.001(2).

In re J.S., No. 02-07-00279-CV (June 5, 2008) (Livingston, J., joined by Holman and Gardner, JJ.).: Held: The Appellant's statement of points was specific enough to allow the trial court to correct any erroneous findings on the challenged grounds. The evidence supporting the termination of Appellant's parental rights was legally and factually sufficient to support the trial court's best interest findings under family code section 161.001(2).

Richardson v. Foster & Sear, L.L.P., No. 02-07-00207-CV (June 5, 2008) (Gardner, J., joined by Livingston and Dauphinot, JJ.).: Held: The trial court erred by dismissing Appellant's DTPA claims and non-DTPA claims for failure to serve notice of his claims as required by the DTPA. Appellant served sufficient postsuit notice while the suit was abated for that purpose. Moreover, the trial court did not have the authority to dismiss Appellant's non-DTPA claims even if Appellant had failed to serve sufficient notice of his DTPA claims.