Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of May 26, 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.

Leachman v. Dretke, No. 02-07-00221-CV (May 29, 2008) (McCoy, J., joined by Dauphinot and Gardner, JJ.). [Note: This opinion was withdrawn July 10, 2008]: Held: "Proper exhaustion" of claims subject to TDCJ's grievance procedure requires compliance with TDCJ's filing deadlines and other procedural requirements. By failing to meet the grievance filing deadline for his claims against three of the TDCJ-Appellees, as well as failing to name two of the three TDCJ-Appellees or their grievable acts in the untimely grievance, Appellant failed to properly exhaust his administrative remedies. Therefore, it was not an abuse of discretion for the trial court to dismiss these claims with prejudice under chapter fourteen of the civil practice and remedies code.

Texas Bay Cherry Hill, L.P. v. City of Fort Worth, No. 2-06-00325-CV (May 29, 2008) (Gardner, J., joined by Walker, J.; Dauphinot, J., dissents without opinion).: Held: Appellee City is immune from Appellant's business disparagement and tortious interference claims because the City was engaged in a governmental function when it adopted an urban renewal plan that included the proposed private acquisition and demolition of Appellant's apartment complex. Appellant did not plead or establish a waiver of immunity under the Tort Claims Act; thus, the trial court did not err by dismissing Appellant's claims. Nor did the trial court err by dismissing Appellant's claims against a City council member; the council member was a City employee, and Appellant's suit against the City barred suit for claims arising from the same subject matter against any City employee under the Tort Claims Act's election of remedies provision.

McGlothlin v. State, No. 02-05-00317-CR (May 29, 2008) (Dauphinot, J., joined by Cayce, C.J., and Gardner, J.).: Held: Appellant's convictions based on genital contact and oral-genital contact that occurred in the same episode do not violate double jeopardy protections.

W.L. Lindemann Operating Co., Inc. v. Strange, No. 02-06-00433-CV (May 29, 2008) (Livingston, J., joined by Cayce, C.J. and McCoy, J.).: Held: The evidence was legally and factually sufficient under the clear and convincing standard of review to support the jury's findings that Appellee was harmed by Appellant's fraud, and the jury's actual and exemplary damages awarded on her fraud claim were also supported by sufficient evidence. However, the evidence was legally insufficient to sustain the jury's finding of wrongful commingling; thus, the damages awarded by the jury for wrongful commingling were improper.