June 17, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • SED Holdings, LLC v. St. John, 19-20841, appeal from S.D. Tex.
    • Duncan, J. (Haynes, Duncan, Engelhardt), fraud, breach of contract, res judicata, judicial estoppel
    • Affirming judgment of fraud, but finding damages excessive and remanding for remittitur, and vacating judgment of breach of contract, and remanding for further proceedings.
    • This case arose from a purported sale of non-performing residential mortgage loans from 3 Star to SED, which 3 Star had falsely represented to SED that it owned, for $14 million, which was to be paid in multiple payments over the course of a year, with the loans to be serviced by Home Servicing. After SED had paid $4 million of the amount, it discovered most of the loans were defective, and it began to try to “put back” the loans under terms of the servicing agreement.
    • The Court held that a judgment and positions taken by SED in separate Texas state court litigation did not operate as either res judicata or judicial estoppel as to the positions advanced by SED in this litigation, finding that the two litigations involved separate batches of loans subject to the SED-3 Star transaction and that SED’s positions in the two litigations were not inconsistent. The Court also held that there was no privity between the entity involved in the separate Texas state court litigation and the parties in this matter.
    • On the merits, the Court held that there was sufficient evidence in the record to support the judgment of fraudulent transfer of the loans from 3 Star to SED, and of a civil conspiracy between 3 Star and the entities who were using 3 Star as a shell through which to market and sell the loans.
    • The Court also held that the district court properly instructed the jury on the elements of fraudulent transfer and in “asking the jury to consider whether each defendant transferred the total amount ($4,372,739) rather than asking the jury to consider specific transfers.”
    • The Court held, however, that the amount of compensatory damages awarded by the jury appeared to be the result of double-counting some elements of those damages and included an unreasonable calculation for lost profits, and so remanded with instructions to for a remittitur.
    • As to a verdict of breach of contract against Home Servicing, the Court vacated that part of the judgment, as SED was not a party to the loan servicing agreements between Home Servicing and another entity, such that Home Servicing could not be found to have breached any contract with SED.
  • Kelson v. Clark, 20-10764, appeal from N.D. Tex.
    • Higginson, J. (Wiener, Elrod, Higginson), qualified immunity
    • Affirming denial of defendants’ motion for summary judgment on qualified immunity defense in action arising from failure to treat and wrongful death of Hirschell Fletcher, who died from head trauma inflicted while he was in custody.
    • Fletcher, a homeless man, was assaulted and robbed outside a Dallas soup kitchen, and then subsequently assaulted a second time, by a punch to the head that caused him to hit his head on a wall. He had visible head wounds. He told paramedics who arrived that he needed medical attention but they laughed at him while he sat there in pain, and they assumed he was drunk. He was arrested for public intoxication. He told the arresting officers in the police car and then at the police station during booking that he needed medical attention, but he was placed in a cell where he lay down under a mattress. The next morning, he was found unresponsive, and died later that day from head trauma. The paramedics later falsely claimed that they had had no contact with Fletcher the previous evening. The plaintiffs. Fletcher’s estate and children, “primarily assert that paramedics Clark and Cox violated Fletcher’s Fourteenth Amendment right when they failed to treat his visible head wounds, which ultimately led to his death.”
    • The Court rejected the paramedic defendants’ “overly narrow reading” of the plaintiffs’ complaint and held that a reasonable person in Fletcher’s position, confronted with five responding officers at the time the paramedics were present, would have believed he was not free to leave, triggering the rights attendant to someone who is being detained to be free from deliberate indifference to obvious medical needs.
    • The Court then held that the plaintiffs adequately alleged that the paramedic defendants were deliberately indifferent to Fletcher’s medical needs. “[I]nstead of treating or even evaluating the visible head injuries, Clark and Cox allegedly mocked Fletcher and then, in an apparent attempt to cover their tracks, allegedly lied in their official report about interacting with Fletcher at all. Taken together, this is enough to allege that the officials ‘refused to treat him,’ ‘ignored his complaints,’ and engaged in conduct that ‘clearly evince[d] a wanton disregard for any serious medical needs.'” (Citations omitted).
    • The Court then held that these allegations were of a violation of clearly established Constitutional rights. “It is undisputed that, at the time Clark and Cox allegedly failed to treat Fletcher, the law was clearly established that pretrial detainees have a Fourteenth Amendment right to medical care.”
  • IMA, Inc. v. Columbia Hospital Medical City at Dallas, Subsidiary LP, 20-20032, appeal from S.D. Tex.
    • Higginson, J. (Higginbotham, Jones, Higginson), arbitration
    • Affirming the district court’s denial of a motion to compel arbitration of a dispute involving unreimbursed medical fees, holding that the plaintiff was not a party to one of the intermediate agreements containing the arbitration provision at issue.
    • The Court held that the district court did not clearly err in finding direct benefits estoppel did not apply because the plaintiff did not even have knowledge of the Hospital Agreement containing the arbitration provision. The Court also held that the Hospital Agreement did not form part of a “unified agreement” with any contract to which the plaintiff was a party.
  • T.O. v. Fort Bend Independent School District, 20-20225, appeal from S.D. Tex.
    • Wiener, J. (Wiener, Costa, Willett), Wiener, J., specially concurring, joined by Costa, J.; 1983, Fourth Amendment, Fourteenth Amendment, Americans with Disabilities Act
    • Affirming dismissal of Fourth and Fourteenth Amendment constitutional claims and ADA and Rehabilitation Act claims arising from injuries incurred by child in altercation with a teacher arising from a disciplinary incident.
    • Because Fifth Circuit precedent provides that there is no constitutional violation in the school corporal punishment context when it is not arbitrary and capricious but arises from a disciplinary incident, the Court held the district court did not err in dismissing the constitutional claims. “Fidelity to our precedent requires us to affirm the dismissal of the instant claim of substantive due process. The aide removed T.O. from his classroom for disrupting class, and Abbott used force only after T.O. pushed and hit her. Even if Abbott’s intervention were ill-advised and her reaction inappropriate, we cannot say that it did not occur in a disciplinary context.”
    • The Court held that none of the plaintiff’s allegations support that he was discriminated against on the basis of his disability, precluding the ADA and Rehabilitation Act claims.
    • After concluding his opinion, Judge Wiener then specially concurred in order to highlight his belief that the Fifth Circuit precedent that dictated the result should be reconsidered en banc. “I write separately today to re-urge the same, hoping that the intervening decades of experience will have persuaded my colleagues that the rule is not only unjust, but is completely out of step with every other circuit court and clear directives from the Supreme Court.”
  • Jobe v. National Transportation Safety Board, 20-30033, appeal from E.D. La.
    • Duncan, J. (Clement, Ho, Duncan), Ho, J., dissenting; Freedom of Information Act
    • Reversing district court’s judgment that documents shared between NTSB and outside manufacturing experts in investigation of helicopter crash are not shielded under FOIA’s “consultant corollary” under Exemption 5, and remanding for further proceedings.
    • The Court held that any self-interest of the non-agency manufacturer experts did not take them out of the consultant corollary. “By necessity, the NTSB solicits technical input from entities whose aircraft are under investigation. But the process only finds facts and issues safety recommendations; it does not assign liability or have adverse parties, and its conclusions are not admissible in litigation. Moreover, the agency closely supervises non-agency parties and controls the release of any non-public information. Subjecting the NTSB’s communications with consultants to broad public disclosure would inhibit the agency’s ability to receive candid technical input from those best positioned to give it.”
    • However, the Court held that this was not the end of the inquiry, and remanded to the district court to undertake the second step of the FOIA analysis: “On remand, the district court will need to undertake the second facet of the Exemption 5 inquiry: determining whether the documents at issue are subject to a litigation privilege ordinarily available to a government agency.”
    • Judge Ho dissented, and would find that no communications between the NTSB and the aircraft manufacturer should be shielded from FOIA production. “A communication between the regulator and the regulated—between parties with conflicting public versus private interests— is the very opposite of an internal government communication. That makes it hard to square this case with the plain text of Exemption 5. I have trouble seeing how an exchange between a government agency and the employee of a company with an interest in the outcome of that agency’s actions can possibly constitute an ‘inter-agency or intra-agency’ communication.”

Unpublished

  • Craaybeek v. Lumpkin, 19-10173, appeal from N.D. Tex.
    • Higginson, J. (Owen, Clement, Higginson), habeas corpus
    • Affirming denial of petitioner’s habeas petition arguing implicit jury bias.
  • Neutra, Ltd. v. Terry, 19-10846, appeal from N.D. Tex.
    • per curiam (Smith, Ho, Oldham), mootness
    • Dismissing appeal as moot.
  • U.S. v. Ramos, 19-10205, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Hawkland v. Hall, 20-10901, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Wilson), First Amendment, employment, qualified immunity
    • Reversing denial of summary judgment in favor of defendants on former employee’s claim that he was terminated in violation of his First Amendment rights, on grounds of qualified immunity and that plaintiff failed to state a claim because his comments were made in furtherance of his job duties.
  • U.S. v. Wilson, 20-20270, appeal from S.D. Tex.
    • per curiam (King, Dennis, Ho), criminal, sentencing
    • Affirming 12-month sentence on conviction of defendant for forcibly assaulting, resisting, opposing, impeding, intimidating, and interfering with a federal employee of the U.S. Postal Service, while she was engaged in the performance of her official duties.
  • D.C. v. Klein Independent School District, 20-20339, appeal from S.D. Tex.
    • Haynes, J. (Haynes, Graves, Willett), Willett, J., dissenting; Individuals with Disabilities Education Act
    • Affirming district court’s judgment that school district unreasonably delayed providing special education assessment and failed to provide an adequate special education program.
    • Judge Willett dissented, opining that there was not sufficient basis to determine that the IEP was insufficient.
  • Chetlin v. Exxon Mobil Oil Corp., 20-20641, appeal from S.D. Tex.
    • per curiam (Davis, Stewart, Dennis), ERISA
    • Affirming denial of plaintiff’s claim for deceased ex-husband’s retirement benefits.
  • Novak v. Tilbury, 20-30700, appeal from E.D. La.
    • per curiam (Davis, Stewart, Dennis), redhibition
    • Affirming district court’s summary judgment dismissal of redhibition claims on basis of lack of redhibitory defects.
  • U.S. v. Zavala, 20-40184, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Alamo Forensic Services, LLC v. Bexar County, 20-50449, appeal from W.D. Tex.
    • per curiam (Dennis, Engelhardt, Hicks (by desig.)), breach of contract, First Amendment
    • Affirming dismissal of plaintiff’s claims of breach of implied contract and denial of First Amendment rights.
  • U.S. v. Oyuela-Baquedano, 21-50007, appeal from W.D. Tex.
    • per curiam (Jolly, Elrod, Graves), criminal, sentencing
    • Granting summary affirmance of 16-month sentence on conviction of illegal reentry.