East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Thomas v. Bobby D. Associates (Published Memo): $49,000 in fees for a $7,000 recovery is excessive.  The Tyler court orders a $24,000 remittitur.

This is a collections case.  Thomas agreed to buy six tracts of land in Van Zandt County.  He made the payments for a while, but couldn't keep them up.  Bobby D repossessed the tracts but still sued for the full amount on the notes, plus interest.  In total, Bobby D sought about $80,000 in damages.  The jury only awarded $7,000.  That's because the trial court didn't go for the Bobby D's double-dipping.  The trial court instructed the jury to base their award on the amount due on the notes less the current fair market value of the repossessed tracts.

In light of the award, the Tyler court couldn't stomach the big fee award.  Bobby D had asked for too much, had let the case linger on the docket for seven years, and had multiple attorneys get up to speed on the case only to hand it off to someone else.  The Tyler court makes Bobby D an offer: agree to a $24,000 reduction in the fee award, or have the fees wiped out and sent back to the trial court for a do-over.

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Morris v. State (Unpublished Memo): Intoxication manslaughter conviction affirmed.  Morris and his passenger left the El Greco club in Kilgore at 12:30 a.m.  They headed towards Tyler on Highway 31.  For those not familiar with East Texas, that's a notorious liquor run road (Tyler dry, Kilgore wet).  Not the best place to be after dark, as this case shows.  Morris swerved into oncoming traffic.  His passenger was killed in the wreck.

Morris complais that the evidene wasn't legally or factually sufficient to convict him (see opinion for discussions of these standards of review).  But the investigating officer testified to skid marks on the scene that showed Morris was in the wrong lane.  The officer also smelled alcohol on Morris.  What's more, Morris complained of "heart pain" and was taken to the hospital.  His blood was drawn, tested, and came back at twice the legal limit.

Conviction affirmed.

Morris also tried to say that his sentence was unconstitutionally cruel and unusual.  Since he didn't make that complaint to the trial court, the Tyler court won't hear it on appeal.

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Morales v. Dougherty and Mabe, dba Top Gun Trucking (Published Memo): Here's one for the personal injury practitioners.  Truck wreck case upholding the submission of a sudden emergency instruction and the admission of testimony about the plaintiff's insurance coverage.

Here's the crash scenario, with letters representing vehicles.

A    B    C    Hill    D

The plaintiff, A, was waiting to make a left turn on a rural highway.  B, and then C came up behind her.  D then topped the hill.  D couldn't stop in time, so he went off road on the right around C.  But D then lost control and veered back onto the road, into A.  C, another trucker, testified that, in his opinion, D did all that could be done and that A was dawdling.

That fact pattern supports a sudden emergency instruction for D.  Even without D having plead for such an instruction.  Sudden emergency is not an affirmative defense, so D could simply request the instruction during the charge conference.

The Tyler court holds that the plaintiff opened the door to testimony about her insurance coverage.  She asked for thousands of dollars for medical procedures.  She said that she had not gotten the procedures because she couldn't pay for them.  But she had insurance.  The trial court and the Tyler court say that the plaintiff's plea of poverty opened the door to her insurance coverage.

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In the interest of A.T.S. and M.D.S. (Published Memo): Termination of parental rights with another constitutional challenge to  the Family Code's indigent parent provisions. 

The Tyler court holds that the Family Code Section 263.405(i) requirement of statements of appellate issues does not prevent parties from appealing matters that come up after the statements are filed.  In this case, it's the trial court's findings of fact and conclusions of law that were entered after the statements were filed.

The terminated parents had alleged that the Family Code was unconstitutional to the extent that it required them to see into the future.  It doesn't, so it isn't.

The parents got to present their appeal.  But it was denied.  The Tyler court goes to great lengths to set out the drug/un-under employment/non-compliance with CPS "family plan" evidence that supports the trial court's decision to terminate parental rights.

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Chapman v. TDCJ-ID (Published Memo): An inmate on a work detail fell from a ladder.  He sues, alleging improper supervision, and a defect in the ladder (lack of non-slip rubber feet).  The suit is dismissed as frivolous under Texas Civil Practice and Remedies Code Chapter 14.

Following the Chapter 14 standards the trial court found that the claim's "realistic chance of ultimate success is slight."

The Tyler court reviews that decision under an abuse of discretion standard.  The State of Texas is immune from suit unless it has given permission to sue.  Permission to sue has been given for the "use of tangible personal property."  But no such permission has been given for cases of mixed use and nonuse.  Chapman's complaint about the ladder and being left alone is a mixed claim.  The claim was therefore frivolous.

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Tyler v. Crawford (Published Memo): Under Texas Rule of Appellate Procedure 20.1, the court reporter's ten day deadline to challenge a party's affidavit of inability to pay costs runs from the time the affidavit is actually put in the hands of the court, not from the date the party puts the affidavit in the mailbox. 

Interesting twist: On the off chance that his grounds for appeal don't get the job done, Mr. Tyler filed a motion asking the Tyler court to order him to present the grounds that would win.  Motion overruled

Also,since this case doesn't get to the meat of the inability to pay costs, let me point you to a prior case that does: "A horse, a horse, my appeal for a horse!"

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This week the Supreme Court of Texas took action on a couple of Tyler cases.  The SCoTX had previously declined to hear hear the Willich case.  Then there was a motion for rehearing asking the SCoTX to reconsider.  This week, the SCoTX declined the case again, denying the motion for rehearing.

In addition the SCoTX denied temporary relief in the Tieri case, so the decision of the Tyler court stands while the SCoTX decides whether or not to hear the case.

If you practice in East Texas and haven't checked out the Last Word post from a week ago, please do.  The cases have changed (Willich is off the docket, Tieri is now on it).  But the numbers are still the same.

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City of Athens v. MacAvoy (Published): An Athens PD officer was sleeping on the job -- with a married woman.  The husband finds out, and files a complaint with the Chief of Police  This sets off a jurisdictional "Who's on First?" of police officer discipline.

The Chief placed the officer on indefinite suspension.  Texas Local Government Code Chapter 143 gives officers a right to appeal discipline actions to an independent examiner.  The officer appeals.  He says the suspension was improper because, under Texas Government Code Chapter 614, he should have been given a copy of the husband's complaint before he was suspended.  The 143 examiner agrees with the officer, and reverses the suspension.

The City of Athens appeals the examiner's decision by suing.  The City contends that the 143 examiner didn't have jurisdiction to apply 614.  The trial court held that it (the trial court) did not have jurisdiction because Chapter 143 makes the examiner's decision final, unless the examiner lacked jurisdiction.

The Tyler court says: 

1. Look into the City's allegations.  Maybe 614 is beyond a 143 examiner's authority to apply, maybe it isn't.  Either way, the City's pleadings raise the question.  The trial court jumped the gun by dismissing the case.  For now, the trial court has jurisdiction to consider the question.  After considering the matter, it may turn out that the The City is wrong, in which case the trial court will not have jurisdiction.  But the City may be right, in which case the trial court will have jurisdiction.  Case remanded so the trial court can figure it out.

2. Don't get sucked into another jurisidctional merry-go-round.  Let's say that the 143 examiner does have authority to apply 164. There are occasions when an examiner's application of a statute is so hare-brained that the application is outside of the examiner's authority.  "Don't go there", says the Tyler court (not in so many words, of course).  The City complains that, even if 614 applies, the Chief himself qualifies as a "complainant" and thus the officer was given the required pre-suspension complaint.  The examiner figured that the complaint that 614 is about is the husband's.  That's not exactly a hare-brained conclusion.  It may still be wrong, of course.  If the Tyler court were deciding the issue itself, it might side with the City.  But the point is that Chapter 143 gives examiners a wide degree of latitude in interpreting statutes within their jurisidiction to apply.  This interpretation is within that latitude.

So it come back to: Is the application of a provision in Chapter 614 within the jurisdiction of a Chapter 143 examiner?  On this front, as if getting into the middle of a marriage isn't bad enough, the officer has stepped into the middle of a feud between the Texas Legislature and the Supreme Court of Texas.

The City argues that the old version of 614 is limited to certain kinds of officers, and doesn't apply to this officer.  The officer counters, "So what?"  There's a new version of the statute and a slight change in the wording makes it look like he's now protected by 614.  The City responds: Yes, but when the Texas Legislature passed the new statute, they did not intend for the new statute to change the law spelled out by the old one.

And that, dear readers, is the fued discussed in the post entitled Texas Legislature/Supreme Court of Texas Showdown!

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Morris v. State (Unpublished Memo): Morris got deferred adjudication community supervision on a theft charge.  Roughly a year and a half into it, Morris blew off reporting to his supervision officer, paying restitution installments, and doing monthly community service hours.  The State asked the trial court to proceed to final adjudication and sentence Morris to prison.  The trial court did.  Three years.

Morris appeals.  This is new, as appeals from deferred adjudication have only been allowed since 2007.  The State filed its motion to proceed to final adjudication just eleven days after the change in the law took effect. 

But the appeal is on the same terms as a revocation of probation.  Morris must show that the trial court's judgment is void.  Quoting the Court of Criminal Appeals, the Tyler court notes that:

[A] judgment is void only in very rare situations-usually due to a lack of jurisdiction . . . . A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived . . . . While we hesitate to call this an exclusive list, it is very nearly so.

The next bad news for Morris is that a guilty plea counts as "some evidence" to support the trial court's judgment.  Having pled "guilty" to the underlying theft charge, and "true" to the State's grounds for revoking the deferred adjudication, Morris is out of luck on appeal.

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