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

DeGrate v. Executive Imprints (Published) No evidence summary judgment affirmed in negligence and design defect case over exploding candle.  The precedential value of this case is probably limited because the Tyler court questions the briefing presented by the DeGrates.

Mrs. DeGrate got a new scented candle marketed by Executive Imprints.  After letting it burn for an hour or so, she went to blow it out.  The flame just got bigger.  She dropped the candle.  The hot wax splattered everywhere, including on her.  She and her husband bring many claims including negligence and strict liability.

Executive Imprints filed a no evidence motion for summary judgment.  The DeGrates responded with the report and affidavit of a Ph.D chemist.  The chemist believes that the candle had the wrong sort of wax, the wax pooled up too much, and the design of the candle allowed the wax to be heated to the flash point.

The Tyler court finds fault with the expert.  He doesn't back up his opinions.  So they're not evidence.

The Tyler court also finds fault with the briefing of the DeGrates.  In a footnote, the Tyler court says that the entirety of the DeGrate's briefing on the product liability claim was:

Under the doctrine of strict product liability, Appellants showed through the tendered summary judgment evidence that the candle was of a defective design since it was without a reasonable alternative design, as a fundamental element, marketed, manufactured and was unsafe for its purposes at the time it left control of Appellee and was sold posing an unreasonable risk factor for consumers.

So, if anyone cites this case against you, point out the footnote.

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Morris v. State (Unpublished Memo): Intoxication manslaughter conviction affirmed.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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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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Webb v. State (Unpublished Memo): Webb complains that the trial court didn't even consider her application for probation of a felony marijuana possession charge.  If Webb's charge is true, the trial judge deprived her of her right to due process under the Constitutions of the United States and the State of Texas.

For starters, Webb waived this complaint by not presenting it to the trial court.  But the Tyler court doesn't leave it at that.  The Tyler court looks at the merits of Webb's charge, and finds it without merit.  Unfortunately for Webb, the trial judge had read her application for probation. 

There was something in the application that galled the judge.  Webb had been convicted at a bench trial.  But her application said she was a good candidate for probation because "I never did anything. I've never been on nothing."  Having read that, the trial judge declared:

Yeah[,] you did something, it's not like you did nothing, you violated the law of this state. ... She comes and violates the law and thinks this judge is going to reward it? It ain't going to be. No. Probation is not appropriate for this defendant under these circumstances.

When Webb started crying, the judge went on:

Late for tears. I could shed some tears too, tears for those who were going to get that marijuana transferred into this county. Yeah, I get tears.

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Hohn v. Hohn (Published): Divorce dispute over what counts as the present value of the husband's interest in a partnership, and what counts as the husband's future earnings.  As Robin Williams once quipped: "Ah, yes, divorce ... from the Latin, meaning to rip out a man's genitals through his wallet."

Lest anyone accuse me of coarsening the public discourse with that observation, my defense is that I read it in the Economist.

As the Economist notes, some are expecting a rush to the divorce courts as the spouses of high earners try to get their divorce based on the earnings history of their spouses, before the reality of the sinking markets shows up in the form of paltry Christmas bonuses, etc.  For the Gotham big-shot attorneys representing the titans of Wall Street, this case out of little old Tyler might prove helpful.

The husband in this case is a partner at one of the firms that represented the State of Texas in the tobacco litigation.  The attorney and the firm as a whole are very successful.  They've got another big case in the works.  And that's what the fight is over.  The wife and her expert consider the huge fees that the firm might earn as good as in the bank, making the husband's current stake in the firm (which is community property) all-the-more valuable.  The Tyler court disagrees. 

Before getting to the ultimate conclusion, the Tyler court notes that the firm's partnership agreement provisions about what the husband would get if he were to withdraw from the firm do not control the court's valuation of his present interest in the firm.  Also, the trial court did not, in general, abuse its discretion in allowing the wife's expert to testify.  The expert had testified to the value of interests in professional firms before (including a prior divorce involving the same firm).  His choice of the income method of valuation over an asset-based method was a choice favored by other experts.

But the wife's expert included potential fees the firm might earn on the cases "in the works" in calculating the husband's current stake.  In the words of the Tyler court: "Revenue from these cases is no more than an expectancy interest and any money to be received constitutes future earnings to which [the wife] is not entitled."  The case is remanded for a re-division of the marital estate.

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Hamilton v. Thompson, et al. (Published Memo): Prisoner's civil rights suits against eleven TDCJ-ID employees is dismissed without a hearing (or rehearing) for failure to comply with Tex. Civ. Prac. & Rem. Code Chapter 14.  There have been several decisions by the Tyler court this year on this provision.  This time, the prisoner listed his prior pro se lawsuits, as required, but did not provide the required summaries of what he was claiming in those suits and their outcomes.

The prisoner also objects on equal protection grounds to the portion of the dismissal order that assessed court costs against him.  He hadn't raised that issue before the trial court, so the Tyler court rules that it was waived.  Even so, the Tyler court goes on to say that the equal protection argument fails because the prisoner made no showing of disparate treatment.

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Avila v. State (Published): In some Spanish-speaking countries, a “notario” is a legal advocate. Playing on this, some notaries in Texas (and elsewhere) have taken up providing immigration and other legal advice. Two problems: 1. the notary laws in Texas have a general prohibition against providing legal advice, and 2. only attorneys and specially-qualified representatives of non-profit agencies may represent petitioners before the Immigration and Naturalization Service (now Citizenship and Immigration Services).

In 2003, the Texas AG’s office announced that it was going after notarios. This case is a successful product of that well-publicized effort.

The AG sued a husband and wife “notario” team in Tyler for the unauthorized practice of law and deceptive trade practices, seeking civil damages and an injunction.

At trial, the husband and wife objected to the unauthorized practice of law questions on grounds that they were duplicative, and there was no evidence to support their submission to the jury. On appeal, they complained that the questions were immaterial, and constituted a comment on the weight of the evidence.

The Tyler court held that the charge error complaints were waived because the complaints at trial didn’t match the complaints on appeal.

On other issues raised in this appeal, the Tyler court held that ...
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