Second Court of Appeals | Case Summaries

In re Ezukanma, No. 02-09-00464-CV (Nov. 17, 2010) (Gardner, J., joined by Walker, J.; Livingston, C.J., dissents with opinion). [Note: Opinion withdrawn Marach 9, 2011.]: Held: Petitions for writ of mandamus and habeas corpus conditionally granted where the trial court abused its discretion by finding petitioner in criminal contempt even though petitioner made the past-due child support payments raised in a motion to enforce prior to the hearing on motion to enforce and by finding petitioner in criminal contempt for not making child support payments that were not raised in the motion to enforce. Further, petitioner did not waive his complaint about the contempt order by agreeing to the form of an order granting his motion for reconsideration because the agreed order only modified the manner in which petitioner would serve his contempt penalty in the event it was not invalidated.; Dissent: The majority incorrectly construes subsection(d) of family code section 157.162 to support its holding. That subsection was not affected by the legislature's addition of subsection (e); thus, subsection (e) should not be used to interpret the meaning of subsection (d). The dissent would hold that the only reasonable interpretation of section 157.162(d) is that at the time of the enforcement hearing, the contemnor must be current in all child support payments, including those accruing between the time the motion to enforce is filed and the hearing on the motion, to avoid criminal contempt for the past-due violations alleged in the motion to enforce.
Hogan v. State, No. 02-09-00387-CR (Nov. 18, 2010) (Livingston, C.J., joined by McCoy and Meier, JJ.).: Held: The trial court did not err by denying appellant's motion to suppress the result of his blood test, which the police obtained by getting an evidentiary search warrant. From the facts stated in the affidavit, the magistrate who signed the warrant could have reasonably inferred that there was probable cause that appellant committed driving while intoxicated. Specifically, although the affidavit could have been more precise, it was sufficient under federal and state law because it stated that the police saw a car driving recklessly and illegally; noted appellant's presence when the car was stopped (and did not indicate that someone else could have driven the car); explained that appellant showed several signs of intoxication; stated that appellant showed many clues for intoxication on field sobriety tests; and related that he refused to provide a breath specimen.
Hoppenstein Props., Inc. v. Schober, No. 02-09-00312-CV (Nov. 18, 2010) (Livingston, C.J., joined by Gardner and Meier, JJ.).: Held: The evidence is factually insufficient to support the jury's finding that Hoppenstein, a shopping center landlord, failed to mitigate 100% of its damages after Schober, the tenant, abandoned the leased premises. Although there was evidence that another business owner wanted to lease the premises, that person was also a tenant in the shopping center, and there was no evidence of how much rental would be lost on those premises or how soon that tenant could move in after Schober's abandonment. And, although there was evidence that the approximately $56,000 in improvements the landlord made for a new tenant were unreasonable, there was no evidence that no improvements at all would have been necessary for a new tenant.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of November 15, 2010