Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 11, 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.

Dangerfield v. Ormsby, No. 02-07-00033-CV (Aug. 14, 2008) (Livingston, J., joined by Dauphinot and Holman, JJ.).: Held: The trial court did not err by granting Appellees' motion for summary judgment on Appellant's false imprisonment and malicious prosecution claims because Appellee Ormsby, a private citizen, did not request or direct Appellant's arrest nor was he responsible for Appellant's subsequent imprisonment. Additionally, the trial court did not err by granting Appellees' motion for summary judgment on Appellant's negligence claims because Appellant failed to present any evidence of Appellee Academy's negligence in hiring, training, retaining, or supervising Appellee Ormsby.

Fowler v. State, No. 02-06-00183-CR (Aug. 14, 2008) (Gardner, J., joined by Cayce, C.J., Livingston, Dauphinot, Holman, and Walker, JJ.; McCoy, J., concurs with opinion). [Note: Both opinions are at the same link in one document.]: Held: Officer did not have reasonable suspicion to initiate a traffic stop in this DWI case when the right-hand tires of Appellant's vehicle crossed the fog line by a tire's width one time and there were no other vehicles around because under the relevant provision of the transportation code, a person commits an offense by failing to drive in a single lane only when movement outside the lane is unsafe.; Concurrence: The language in section 545.060(a)(2) of the transportation code cannot logically modify subsection (a)(1) in the manner described by the majority. However, section 545.060(a) contains only one offense, as enumerated in subsections (1) and (2), and the case law requirement of some other endangering factor in order to violate the statute, besides failure to drive in a single lane, is correct.

Taylor v. State, No. 02-07-00169-CR (Aug. 14, 2008) (Dauphinot, J., joined by Holman and Walker, JJ.).: Held: Even though the trial court charged the jury on both theories of intoxication and Appellant does not challenge the sufficiency of the evidence on either ground, under Bagheri, we cannot sidestep Appellant's challenge to the intoxilyzer evidence and simply affirm the general verdict based on the loss-of-normal-use prong. Appellant, however, did not preserve his complaint below.

Inimitable Group, L.P. v. Westwood Group Dev. II, Ltd., No. 02-07-00289-CV (Aug. 14, 2008) (Livingston, J.; joined by Cayce, C.J.; and Holman, J.).: Held: The trial court's following findings were supported by legally and factually sufficient evidence: (1) Appellant Soitis, L.L.C.—Appellant Inimitable Group, L.P.'s predecessor-in-interest in the purchase and sale agreement at issue in this case—entered into a second, binding oral agreement for Appellee to provide the interior finish-out design for the exterior shell building Appellant Soitis had already contracted to purchase; and (2) Appellants either waived or were estopped from claiming any breach by Appellee of the agreement for the purchase of the exterior shell. Additionally, the trial court did not err by concluding that Appellee was excused from performing under the purchase agreement after Appellants either anticipatorily repudiated or breached the second agreement for interior design services, or both, because Appellants did not raise in their pleadings, or try by consent, their contention that Appellee failed to elect which remedy it wished to pursue against Appellants: either (1) insist on performance and remain bound by all terms of the agreement or (2) treat Appellants' actions as a breach and eschew any performance by Appellants.

Range Res. Corp. v. Bradshaw, No. 02-07-00263-CV (Aug. 14, 2008) (Op. on Rehearing) (McCoy, J., joined by Livingston, J.; Cayce, C.J., dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: The non-participating royalty interest reservations in two deeds created in the 1960s reserved a fraction of royalty rather than a fractional royalty because the reservations anticipated future leasing and presented the method of calculation based on the royalty negotiated in future leases.; Dissent: The two 1960 deeds created a fixed fractional 1/16th non-participating royalty interest. To hold otherwise ignores rules of contract construction, gives no effect to the deeds' "being equal to language," and implies that the "not less language" in the deeds reserves an interest in favor of the grantor that is more than the plain language of the deeds allows.