Yesterday, the Third Court of Appeals handed down two memorandum opinions. The first discussed a deferred ajudication of a truancy charge. Cause No. 03-03-00253-CV, Jim Walden v. Rex Baker, Justice of the Peace, Precinct 4, Hays County Yesterday’s other memorandum opinion affirms a trial court judgment dismissing a declaratory judgment action which sought to invalidate Austin’s new smoking ordinance. The VFW, which operates bingo halls in which smoking is commonplace, argued that Austin’s smoking ban improperly criminalized behavior, smoking, which is legal in Texas. The Court of Appeals held that the trial court rightly dismissed the VFW’s claim “because a civil court does not have jurisdiction to make the naked declarations requested by appellants.” Cause No. 03-03-00762-CV, Veterans of Foreign Wars v. City of Austin

The Texas Supreme Court issued two per curiam opinions this morning. The first invoked Rule 47.1 of the Texas Rules of Appellate Procedure and remanded a case back to the 11th Court of Appeals. The Court found that the Court of Appeals’ opinion “failed to identify and expressly consider modification and waiver as distinct issues associated with the relief the parties requested from the arbitrator” and remanded the case for further consideration of those issues. The underlying case involves arbitration issues, but the short Supreme Court opinion is concerned with appellate procedure rather than the law of confirming arbitration awards. The Court’s other per curiam opinion reviewed a Second Court of Appeals opinion in a termination of parental rights case. Technorati Tags: litigation, Texas Supreme Court, law

This morning, the Third Court of Appeals issued two opinions and a memorandum opinion. The first opinion affirmed the granting of a motion for summary judgment on the basis that a class of low income tenants of a housing complex did not have standing to complain that the buyer and seller of the property fraudulently misrepresented the condition of the propoerty to the FDIC in order to avoid having to provide housing to low income families. Brian, Fooshee and Yonge Propoerties (“BFY”) owned the River Woods apartment complex in Austin, which had previously been owned by a “failed thrift” from the savings and loan crisis in the late 1980s. That being the case, any sale of the property was governed by the Affordable Housing Disposition Program (“AHDP”). When BFY agreed to purchase the complex, in order to comply with the AHDP they had to agree to a Land Use Restriction Agreement (“LURA”), whereby they had to agree to maintain the property as multifamily rental housing, 40 units of which had to be reserved for occupancy by Lower-Income Families, 23 units of which had to be reserved for occupancy by Very Low Income Families. Six years after purchasing River Woods, BFY decided to sell it to Embrey Partners, Ltd. (“Embrey”). Embrey, however, did not want to buy the property subject to the LURA and its requirement that units be made available for low income families, so a condition to the purchase agreement required BFY and Embrey to come up with a way to get out of the LURA. Embrey and BFY decided to declare the complex inhabitable, and they sought a determination from the Texas Department of Housing and Community Affairs and the FDIC that the property was suitable for demolition based upon its dilapidated condition. Once the determination of inhabitability was in hand, Embrey bought the River Woods complex and evicted its low income residents, who in turn sued on the basis that Embrey and BFY made fraudulent misrepresentations to both the state agency and the FDIC in getting the inhabitability determination that allowed Embrey to evict the Plaintiffs. The trial court granted Embrey’s motion for summary judgment, on the basis that once the complex was deemed to be slated for demolition, the LURA no longer applied, and the evicted tenants no longer had standing to claim that Embrey was in violation of the LURA. This morning, the Third Court of Appeals affirmed. Cause No. 03-03-007680-CV, Witkoski, et al v. Brian, Fooshee and Yonge Properties and Embrey Partners, Ltd. The Court also affirmed a jury verdict in favor of a whistleblower who was found to have been wrongfully terminated by a state agency for reporting certain violations. The opinion explains, in finding that evidence supported the jury’s findings, the burdens of proof for the various elements of a claim under the Texas Whistleblower Act. Cause No. 03-05-00031-CV, Texas Department of Assitive and Rehabilitative Services v. Richard Howard Finally, in a memorandum opinion, the Court affirmed a decision to dismiss a complaint of judicial misconduct stemming from a Colorado lawyer’s disorderly conduct conviction and a finding of contempt against him. Cause No. 03-04-00376-CV, David L. Smith v. State Commission on Judicial Conduct

This morning, the Third Court of Appeals issued a memorandum opinion that addressed the issue of attorneys’ fees under the Uniform Declaratory Judgment Act. The Court affirmed a trial court decision to not award fees to a prevailing party on the basis that the declaratory relief obtained was redundant to other relief sought. In other words, the Court found that the dec action in question was added solely for the purpose of pleading a claim for which an attorneys’ fee award was possible, and thus the trial court did not abuse its discretion when it declined to award fees. Cause No. 03-05-00171-CV, Aaron Rents, Inc. v. Travis Central Appraisal District, et al.