Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 29, 2011

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.

Horn v. Gibson,   No. 02-10-00300-CV    (Aug. 29, 2011)   (Meier, J., joined by Walker and McCoy, JJ.).

Held:   The trial court erred by granting summary judgment for Gibson on his election contest claim because the statutory framework for local option elections required the 2009 local option election to be held in the same territory as the 2005 local option election.

XTO Energy Inc. v. Nikolai,   No. 02-09-00299-CV    (Aug. 30, 2011)   (Livingston, C.J., joined by Dauphinot and McCoy, JJ.).

Held:   A deed in the chain of title by which the Nikolais claim ownership of their surface estate recites, "It is thoroughly understood that the Mineral Rights upon this tract of land are not transferred by this instrument . . . ." The Nikolais are bound by this recitation and are therefore estopped from denying the mineral reservation. This holding must apply to all of the defendants in the trial court, although some of them did not appeal the trial court's judgment in favor of the Nikolais, because the rights of the defendants with respect to the minerals located on the Nikolais' land are interwoven and dependent.

Next, the trial court did not err by denying summary judgment for the Nikolais on the grounds of title by adverse possession or prior possession because, in part, the only summary judgment evidence that the Nikolais submitted to support those claims is inadmissible.

Furthermore, the trial court did not err by denying the Nikolais' request for attorney's fees under the Uniform Declaratory Judgments Act because, in part, the essence of their suit was to obtain a declaration of title.

Ex parte Chamberlain,   No. 02-09-00079-CR    (Aug. 30, 2011)   (op. on remand) (Walker, J., joined by Gardner and McCoy, JJ.).

Held:   Because the Texas Sex Offender Registration Program does provide a mechanism for early deregistration for certain offenses and under certain circumstances dictated by the legislature and Council on Sex Offender Treatment (CSOT), the lifetime registration requirement is rationally related to Texas's legitimate interest in protecting its citizens from sexual predators. Thus, the fact that Chamberlain is not eligible at this time to pursue deregistration because he pleaded guilty to and was convicted of an offense that is not included on the CSOT's list does not create a violation of Chamberlain's substantive due process rights; it simply means that the legislature, via the CSOT, in consideration of the category of offense committed by Chamberlain, has determined that Texas's citizens should continue to be protected from perpetrators of this type of sexual offense.

Vargas de Damian v. Bell Helicopter Textron, Inc.,   No. 02-08-00210-CV    (Aug. 31, 2011)   (Gardner, J., joined by Dauphinot, J.; Walker, J., concurs and dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   Appellants' common-law claims are not preempted by the Federal Aviation Act or barred by the Panamanian statute of limitations. Appellants' survival claims are not barred by limitations because a post-limitations appointment as executrix related back to Appellants' pre-limitations original petition, but equitably-adopted children do not have standing to bring wrongful death claims. Legally sufficient evidence supported the jury's finding of design defect in the helicopter's passenger restraint system, but Appellants presented legally insufficient evidence of a design defect or safer alternative design for the helicopter's door mounts or a safer alternative design of the helicopter's windshield because the expert testimony was conclusory and speculative. Legally and factually sufficient evidence supported the jury's comparative responsibility findings, and the jury's damage award was not against the great weight and preponderance of the evidence. Finally, the trial court did not err by failing to accept juror affidavits for filing, failing to conduct an open hearing concerning allegations that the jury traded answers on the jury charge, or failing to grant a new trial due to alleged jury misconduct.

Concurrence and Dissent:   Even excluding expert Hinds's testimony, more than a scintilla of evidence exists to support submission to the jury of the safer alternative design element of the windshield design defect claims.

Comptroller, State of Texas v. Landsfeld,   No. 02-10-00271-CV    (Aug. 31, 2011)   (McCoy, J., joined by Gardner, J.; Dauphinot, J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   Texas Labor Code section 21.202's 180-day filing deadline is both a mandatory and jurisdictional prerequisite to filing suit and the deadline is calculated from the point of the alleged unlawful employment practice. Appellant's case was untimely, and, therefore, the trial court lacked jurisdiction.

Dissent:   Either the notice period expired before the law made it jurisdictional, and therefore the trial court correctly held that TCPA waived its limitations defense, or the notice period did not begin to run until March 31, 2005, the date of TCPA's last adverse action, and Landsfeld's notice was timely.

Leake v. Campbell,   No. 02-10-00278-CV    (Aug. 31, 2011)   (Livingston, C.J., joined by Dauphinot, J.; Gabriel, J., concurs without opinion).

Held:   The trial court erred by granting summary judgment for the Campbells on the ground that the Leakes failed to file suit to enjoin the construction of improvements on the Campbells' property prior to the completion of those improvements. The language in the restrictive covenants for the parties' subdivision providing for deemed approval of improvements if suit is not filed before completion applies only if the homeowner first seeks the approval of the architectural control committee for those improvements; dictum to the contrary in Buckner v. Lakes of Somerset Homeowners Ass'n, 133 S.W.3d 294 (Tex. App.––Fort Worth 2004, pet. denied), does not control. Here, the Campbells did not seek the ACC's approval before constructing the improvements on their property; therefore, the deemed approval language of the restrictive covenants does not apply.

Chesser v. LifeCare Management Services,   No. 02-10-00291-CV    (Aug. 31, 2011)   (Walker, J., joined by McCoy and Meier, JJ.).

Held:   No evidence exists to support submission of the settling defendants' negligence to the jury; consequently, Appellees are not entitled to a percentage-of-responsibility settlement credit. We apply a dollar-for-dollar settlement credit. Legally insufficient evidence exists to support the jury's joint enterprise finding; consequently, LMS is not jointly and severally liable for the entire judgment. Legally and factually sufficient evidence exists to establish that LMS's negligence was a proximate cause of Chesser's injuries. Civil practice and remedies code subsections 74.301 (a) and (b) both apply to the judgment, limiting separately both Appellees' civil liability for noneconomic damages to $250,000 each. Hospital is not jointly and severally liable for LMS's $250,000 civil liability for noneconomic damages. The trial court did not err in awarding prejudgment interest on past noneconomic damages. The trial court did not abuse its discretion by refusing to submit an unavoidable accident instruction or by ordering a specific annuity to fund periodic payments for Chesser's future medical expenses.

Krajcovic v. State,   No. 02-09-00020-CR    (Aug. 31, 2011)   (op. on reconsideration en banc) (Dauphinot, J., joined by McCoy, J.; Meier, J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   Appellant's entitlement to a self-defense instruction was not disputed. Because there was evidence that the homicide occurred before September 1, 2007, as well as evidence that it occurred on or after September 1, 2007, Appellant was entitled to an instruction on self-defense under the law in effect before September 1, 2007, as well as an instruction on self-defense under the law in effect on and after September 1, 2007. The trial court's denial of a self-defense instruction under the law in effect on and after September 1, 2007, was harmful error.

Dissent:   Appellant was not entitled to a self-defense instruction because there is no evidence that he reasonably believed that deadly force was immediately necessary to protect himself from Shawn, nor was Appellant entitled to an instruction in accordance with the "castle doctrine" because there is no fact issue that Appellant murdered Shawn at any point other than in August 2007.

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