Designated for publication
- Penn-America Insurance Co. v. Tarango Trucking, L.L.C., 21-10749, appeal from N.D. Tex.
- Davis, J. (Davis, Willett, Oldham), insurance
- Reversing in part and vacating in part judgment that insurer did not owe defense or indemnity regarding fatal accident on insured’s property, finding that an exception to a policy automobile exclusion applied.
- An independent driver died on the insured’s property while attempting to unload cargo from his tractor-trailer, when the unhitched truck rolled back and pinned the driver between the truck and the trailer. The insured sought defense and indemnity from its insurer for third-party claims that alleged the accident occurred due to poor maintenance of the braking system on the truck and to the maintenance of a dangerously steep grade on the parking lot area of the facility.
- The policy excluded from the bodily injury and property damage coverage “the ownership, maintenance or use … of any … auto,” with “use” including “operation and loading or unloading.” This exclusion was subject to an exception for parking an auto on “premises you own or rent provided the auto is not owned by or rented or loaned to you or the insured.”
- The Court held that the parking exception broadly applied to any activity arising out of the act of parking, and not strictly to the act of parking itself. “Because the Parking Exception is an exception to the Auto Exclusion, it is reasonable to interpret it as employing the same, ‘arising-out-of’ nexus as the Auto Exclusion. And, because this interpretation is reasonable and favors coverage, we adopt it even if a narrower interpretation might also be reasonable.”
- Harris County Water Control and Improvement District No. 89 v. Philadelphia Indemnity Insurance Co., 21-20165, appeal from S.D. Tex.
- Smith, J. (Smith, Elrod, Oldham), suretyship
- Reversing judgment in favor of performance bond surety on issue of whether construction contract was an amendment of the original contract the surety had agreed to bond or was a new contract not subject to the bond.
- When the original architect backed out of its construction management role prior to the start of construction, the project owner and project contractor entered into a new agreement, and rather than being based on the AIA template of the original contract, it was based on a template from the Construction Specifications Institute. It did not, however, that it was “Revised [on] 2/29/16.” The contractor did not obtain a new performance bond for the revised/new contract.
- The Court held that the 2016 agreement was an amendment, under Texas law. The Court noted that the district court “believed that Texas suretyship law does not permit any change to be made to a bonded contract without a surety’s consent. That was once the rule. But since the 1960s, the Supreme Court of Texas has held that only material alterations to a bonded contract will relieve a surety from its obligations.” (Internal citations and footnote omitted). The Court held that the Texas Supreme Court would examine the text of both agreements to determine whether the parties’ intent was to form a new contract or to amend the existing contract, and found, based on such a review, that the parties intended to amend the existing contract.
- Huynh v. Walmart Inc., 21-20277, appeal from S.D. Tex.
- Wilson, J. (Dennis, Southwick, Wilson), false imprisonment, unfair trade practices
- Affirming district court’s 12(b)(6) dismissal of some claims and summary judgment dismissal of others, finding that defendant store’s employees acted appropriately in detaining suspected shoplifters.
- The Court first held that the actions of store employees after any commercial transaction did not qualify as unconscionable trade practices for purposes of an unfair trade practices claim.
- The Court then affirmed the dismissal of the plaintiffs’ tort claims against the defendants.
- U.S. v. Castelo-Palma, 21-50524, appeal from W.D. Tex.
- Dennis, J. (Dennis, Southwick, Wilson), criminal, sentencing
- Vacating 24-month sentence on defendant convicted of one count of transporting illegal aliens for financial gain, where that sentence was based on enhancement for intentionally recklessly creating a substantial risk of death or serious bodily injury based on carrying nine passengers in a Ford Explorer rated for seven passengers, and remanding for resentencing.
- The Court first held that, because the defendant did not dispute the underlying fact that there were nine passengers in a vehicle rated for seven, but was only disputing whether that condition as a matter of law constituted a substantial risk of serious bodily injury or death, its review would be de novo.
- The Court then held that the fact of nine passengers, without more (such as information about the configuration of the seated passengers that would be determinative as to inability to exit the vehicle in an emergency), could not trigger the sentencing enhancement.
- U.S. v. Auzenne, 21-60124, appeal from S.D. Miss.
- Oldham, J. (Barksdale, Engelhardt, Oldham), Barksdale, J., dissenting; criminal, double jeopardy
- Affirming district court’s judgment that it would not be impermissible double jeopardy to retry defendant on an eighth count on which the jury was hung, after a trial where the jury had acquitted the defendant on seven other counts.
- The Court held that, while the defendant may have been found by the jury to have not participated in the prescription and insurance fraud scheme of co-defendants in acquitting him on the first seven counts, his participation in the scheme was not a necessary element of the eighth count that was based on providing a false affidavit to Blue Cross Blue Shield. “[T]he Government need not prove that Auzenne participated in the scheme; it need only prove that Auzenne knew about and failed to disclose Moran’s participation in it. It follows the Government could prove, on retrial, that Auzenne is guilty on Count 8—even if he didn’t participate in the scheme.”
- The Court then held that it need not address the defendant’s argument that a retrial would involve an impermissible broadening of his indictment, because its collateral-order-based review was limited to the double-jeopardy argument, not constructive amendment or variance. “If the Government runs afoul of the constructive-amendment or variance doctrines on retrial, Auzenne can take it up with the district court in the first instance on the basis of actual facts and not hypothetical ones.”
- The Court also held that the collateral order doctrine does not allow its review of whether double-jeopardy–while allowing for retrial under the third theory (“theory C”) under the statute–does not allow an affirmative finding that retrial is not allowed under the first two liability theories under the statute. “Here, Auzenne argued only that the collateral-estoppel ingredient of the Double Jeopardy Clause imposes a total bar to retrial on Count 8. That’s the argument the district court considered and rejected, and that’s the only argument we have jurisdiction to consider now. Auzenne did not ask the district court to exclude a particular argument or piece of evidence. And even if he did, and even if the district court refused to limit the Government’s arguments or evidence, we could not review that decision in this posture. So we can’t say anything about theories (a) and (b)—no matter how earnestly the parties or our most-learned colleague ask us to.”
- Judge Barksdale dissented.
Unpublished
- U.S. v. Wittcop, 20-11170, appeal from N.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- Billiot v. Multifamily Management, Inc., 20-30197, appeal from M.D. La.
- per curiam (Higginbotham, Smith, Dennis), breach of contract, personal tort
- Affirming district court’s dismissal of claims arising from plaintiffs’ groundskeeping activities on defendant’s property, on basis that personal injury claims were time-barred and that they had failed to state a cause of action for breach of contract.
- Almendares v. Garland, 20-60636, petition for review of BIA order
- per curiam (King, Costa, Ho), immigration
- Denying Honduran citizen’s petition for review of BIA order dismissing her appeal from the Immigration Judge’s (IJ) denial of her application for asylum and withholding of removal.
- Butler v. Rivers, 20-60941, appeal from S.D. Miss.
- per curiam (Davis, Jones, Elrod), prisoner suit
- Affirming dismissal of former inmate’s suit.
- Pena v. Garland, 20-60946, petition for review of BIA order
- per curiam (Smith, Stewart, Graves), immigration
- Dismissing Cuban citizen’s petition for review of BIA order dismissing his appeal from a decision of the Immigration Judge (IJ) ordering him removed.
- U.S. v. Prince, 21-10278, appeal from N.D. Tex.
- per curiam (Smith, Stewart, Graves), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Cook, 21-10525, appeal from N.D. Tex.
- per curiam (King, Costa, Ho), criminal, guilty plea
- Affirming denial of motion to withdraw guilty plea.
- Richards v. Hearn, 21-20358, appeal from S.D. Tex.
- per curiam (Stewart, Haynes, Ho), prisoner suit
- Dismissing as frivolous appeal from prisoner’s § 1983 claim.
- LaRocca v. Alvin Independent School District, 21-40043, appeal from S.D. Tex.
- per curiam (King, Jones, Duncan), Title VII, employment discrimination
- Reversing district court’s dismissal of plaintiff’s national-origin discrimination claims on basis of failure to exhaust, and remanding for further proceedings.
- Beach v. City of Galveston, 21-40321, appeal from S.D. Tex.
- per curiam (Barksdale, Stewart, Dennis), takings
- Affirming dismissal of takings claim for lack of jurisdiction.
- U.S. v. Resendez-Gomez, 21-40631, appeal from S.D. Tex.
- per curiam (King, Costa, Ho), criminal, sentencing
- Affirming 170-month sentence on conviction of conspiracy to possess with the intent to distribute 500 grams or more of methamphetamine.
- U.S. v. Sifuentes, 21-40645, appeal from S.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Sampayo-Cruz, 21-40786, appeal from S.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Cherry v. Chavarria, 21-50296, appeal from W.D. Tex.
- per curiam (Southwick, Graves, Costa), prisoner suit
- Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 claim.
- U.S. v. Myers, 21-50771, appeal from W.D. Tex.
- per curiam (Smith, Stewart, Graves), criminal, sentencing
- Affirming 63-month sentence on conviction of being a felon in possession of a firearm.
- U.S. v. Rivas, 21-50936, appeal from W.D. Tex.
- per curiam (King, Costa, Ho), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- U.S. v. Lopez-Vences, 21-50987, appeal from W.D. Tex.
- per curiam (Smith, Stewart, Graves), criminal, sentencing
- Affirming conviction and sentence for illegal reentry.
- U.S. v. Fitz-Maldonado, 21-51012, appeal from W.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
- Affirming 37-month sentence on conviction of illegal reentry.
- U.S. v. Paso-Tarin, 21-51088, c/w 21-51091, appeal from W.D. Tex.
- per curiam (Wiener, Dennis, Haynes), criminal, sentencing
- Affirming conviction and sentence for illegal reentry and revocation of supervised release.
- Colina v. Gillis, 21-60064, appeal from S.D. Miss.
- per curiam (Higginbotham, Duncan, Engelhardt), habeas corpus
- Dismissing as moot appeal from district court’s dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas corpus challenging his prolonged post-removal-order detention by U.S. Immigration and Customs Enforcement as unlawful.
- U.S. v. Long, 21-60703, appeal from S.D. Miss.
- per curiam (Davis, Jones, Elrod), criminal, sentencing
- Dismissing appeal of 360-month sentence on conviction of two counts of production of child pornography.
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