Second Court of Appeals | Case Summaries

Grimes Constr. v. Great Am. Lloyds Ins. Co., No. 02-0004-335 (Mar. 9, 2006) (Dauphinot, J., joined by Livingston, J.; McCoy, J., concurs without opinion).: Held: Because the demand for arbitration against Appellant did not allege an occurrence, Appellee did not owe Appellant a duty to defend or a duty to indemnify it in the underlying suit, nor did Appellee violate Article 21.55 of the Texas Insurance Code.
Francis v. TDCJ-CID, No. 02-0005-258 (Mar. 9, 2006) (Dauphinot, J., joined by Holman, J.; Livingston, J., dissents without opinion).: Held: The trial court abused its discretion by dismissing Appellant’s claim based on a grievance decision that on its face shows that Appellant complied with the statutory time period for filing suit.
Davis v. City of Grapevine , No. 02-0005-145 (Mar. 9, 2006) (Holman, J., joined by McCoy, J., joined by McCoy, J.; Walker, J., concurs without opinion).: Held: The McDonnell Douglas burden-shifting test does not apply to an employee’s claim that an employer failed to make a reasonable accommodation for a disability. Running is a major life activity within the meaning of Chapter 21 of the Texas Labor Code. The City failed to prove as a matter of law that Appellant was not disabled within the meaning of Chapter 21, that he could not perform the essential functions of his position, with or without a reasonable accommodation, that it offered Appellant a reasonable accommodation, or that the accommodations proposed by Appellant were unreasonable or would constitute an undue burden. The City also failed to prove as a matter of law that it did not subject Appellant to an unlawful employment practice by constructively discharging him. The City conclusively negated at least one element of Appellant’s age discrimination claim.
Grotti v. Belo Corp., No. 02-0005-105 (Mar. 9, 2006) (Dauphinot, J., joined by Cayce, C.J., and McCoy, J.).: Held: The affirmative defense of substantial truth is a complete defense to a defamation claim. Summary judgment for media defendants who allegedly published defamatory statements involving plaintiff doctor during multiple television broadcasts was proper because media defendants conclusively established that the gist of each complained of broadcast was substantially truthful.
McIlroy v. State, No. 02-0004-308; 02-04-00309-CR (Mar. 9, 2006) (Walker, J., joined by Dauphinot and McCoy, JJ.).: Held: In Appellant’s joint trial for possession of a firearm by a felon and for possession of methamphetamine, Appellant stipulated to her prior felony conviction for methamphetamine and to her status as a felon. The trial court erroneously allowed the State, over Appellant’s objection, to read to the jury the portion of the possession of a firearm by a felon indictment that described Appellant’s prior felony conviction as possession of methamphetamine. This error, however, did not affect Appellant’s substantial rights.; The trial court did not err by refusing to instruct the jury on the complete definition of a firearm—that is, that a firearm does not include an antique or curio firearm, or replica thereof.
Yaquinto v. Britt, No. 02-0004-283 (Mar. 9, 2006) (Livingston, J., joined by Dauphinot and Holman, JJ.).: Held: In medical malpractice case governed by former article 4590i, section 13.01(g) of the Texas Revised Civil Statutes, in which the claimants relied on the trial court’s original order granting a section 13.01(f) extension, the claimants demonstrated that their reliance on the section 13.01(f) order was a mistake of law and therefore, claimants were entitled to section 13.01(g) grace period extension.
Fugate v. State, No. 02-0004-548 (Mar. 16, 2006) (Livingston, J., joined by Dauphinot and Holman, J.; Dauphinot, J., dissents with opinion).: Held: The State's notice of enhancement of punishment, filed one week before trial began on guilt-innocence, was filed within a reasonable time before trial. In accordance with this court's prior opinions in Williams v. State, 172 S.W.3d 730 (Tex. App.—Fort Worth 2005, pet. ref'd), and Hudson v. State, 145 S.W.3d 323 (Tex. App.—Fort Worth 2004, pet. ref'd), adoption of a bright-line rule requiring a minimum of ten days' notice of enhancement is unwarranted.; Dissent: This court should adopt a bright-line rule that an enhancement notice affecting the range of punishment is a de facto amendment of the indictment, and that because article 28.10(a) of the Texas Code of Criminal Procedure requires a minimum of ten days’ notice for an amendment to an indictment, a minimum of ten days’ notice is also required when the State files a separate pleading giving notice of enhancement allegations.

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