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Consent to Search - Civil Rights

Jun 5, 2013 — by Jeff Mundy
Tags: Civil Rights Torts Commerical Litigation

For consent to be valid, it must "'not be coerced, by explicit or implicit means, by implied threat or covert force.'" Consent must be given freely, unequivocally, and without duress or coercion.  "The ultimate question is whether the suspect's will was overborne" by the officer's actions.  The trial court must examine the voluntariness of a consent based on the "totality of the circumstances from the point of view of an objectively reasonable person, including words, actions, or circumstantial evidence." If the voluntariness of the consent is challenged at trial, the State must prove the voluntariness of a consent to search by clear and convincing evidence. "If the record supports a finding by clear and convincing evidence that consent to search was free and voluntary, we will not disturb that finding." 

Vehicle Ratings - Crash Tests

Vehicle Safety is second only safe driving habits to avoid being injured in a car wreck.

Almost all small SUV received marginal or poor safety ratings.

Here are the most recent vehicle safety ratings from the Insurance Institute for Highway Safety.


To determine crashworthiness — how well a vehicle protects its occupants in a crash — IIHS rates vehicles good, acceptable, marginal or poor based on performance in five tests: moderate overlap front, small overlap front, side, rollover and rear.

To earn TOP SAFETY PICK+ vehicles must receive good ratings in at least 4 of 5 tests and no less than acceptable in the fifth test.

To earn TOP SAFETY PICK vehicles must receive good ratings in the moderate overlap front, side, rollover and rear tests, regardless of their ratings in the small overlap front test.

Covenant Not to Compete - Attorney's Fees

May 6, 2013 — by Jeff Mundy
Tags: Contract Law Commercial Litigation Covenant Not To Compete

In the context of a personal-services agreement, attorney's fees may be awarded to a promisor who satisfies certain evidentiary requirements in defending against enforcement of an unreasonable covenant.

Franlink Inc. v. GJMS, (Tex. App. - Houston [14th Dist.] )

Civil Rights - Fracking Water Contamination

May 5, 2013 — by Jeff Mundy
Tags: Civil Rights Torts Commerical Litigation

When the legislature enacted chapter 27 in 2011, it expressed that the purposes of doing so were to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code Ann. § 27.002. To promote these purposes, chapter 27 creates an avenue at the early stage of litigation for dismissing unmeritorious suits that are based on the defendant's exercise of the rights of free speech, petition, or association as those rights are defined within the chapter. Id. § 27.003; see also id. § 27.001(2)-(4) (defining the exercise of the right of association, the exercise of the right of free speech, and the exercise of the right to petition).

In re: Lipsky, (Tex. App. - Fort Worth, 2013)

No Governmental Immunity for Independent Contractor

May 4, 2013 — by Jeff Mundy
Tags: Governmental Immunity

Under the TTCA, a person is not an employee of a governmental unit if the person is an independent contractor or "performs tasks the details of which the governmental unit does not have the legal right to control." The statutory definition requires both "control and paid employment to invoke the [TTCA]'s waiver of immunity."

Olivares v. Brown & Gay Engineering (Tex. App. - Houston [14th Dist.] 2013, no pet).

Medical Malpractice - Expert Report


Whether a witness is qualified as an expert is within the trial court's discretion. The party offering the expert's report bears the burden of proving the witness is qualified under rule of evidence 702. A physician is qualified if he has "knowledge, skill, experience, training, or education" to testify about the particular causation opinion at issue. Although not every licensed doctor is qualified to testify on every medical question, we must be careful not to draw expert qualifications too narrowly. 

Kim next asserts Cooperman's report was conclusory as to causation. An expert report need not marshal the claimant's evidence, but should explain the basis for its conclusions and link the conclusions to the facts of the case. A report's adequacy does not depend on whether an expert uses any particular "magic words."

CDC - Occupational Exposure to Carbon Nanotubes and Nanofibers

May 2, 2013 — by Jeff Mundy
Tags: Toxics

Just prior to the release of this CIB NIOSH reported at the annual meeting of the Society of Toxicology [03/11/2013] preliminary findings from a new laboratory study in which mice were exposed by inhalation to multi-walled carbon nanotubes (MWCNT) [see http:// Web Site Icon]. The study was designed to investigate whether MWCNT have the potential to initiate or promote cancer. Mice receiving both an initiator chemical plus inhalation exposure to MWCNT were significantly more likely to develop tumors (90% incidence) and have more tumors than mice receiving the initiator chemical alone.


First Right of Refusal - Real Estate & Contract Law

May 2, 2013 — by Jeff Mundy
Tags: Contract Law Commercial Litigation Real Estate

A right of first refusal is essentially a dormant option. It requires the owner, before selling the property to another, to offer the property to the rightholder on the same terms or conditions specified in the offer by or to a bona fide purchaser.  The property owner has an initial duty to make a reasonable disclosure of the offer's terms.  When the property owner expresses its intention to sell, the rightholder must, in compliance with the terms of the right, elect to either purchase the property or decline to purchase it and allow the owner to sell it to another.

Jarvis v. Peltier, (Tex. App. - Tyler, 2013)

FOIA - Freedom of Information Act

In this case, we must decide whether the Virginia Freedom of Information Act... violates either the Privileges and Immunities Clause of Article IV of the Constitution or the dormant Commerce Clause. The Virginia Freedom of Information Act (FOIA), provides that "all public records shall be open to inspection and copying by any citizens of the Commonwealth," but it grants no such right to non-Virginians.... We hold, however, that petitioners' constitutional rights were not violated. By means other than the state FOIA, Virginia made available to petitioners most of the information that they sought, and the Commonwealth's refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity. Nor did Virginia violate the dormant Commerce Clause. The state Freedom of Information Act does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship. 

Standing to Bring a Case

Apr 30, 2013 — by Jeff Mundy
Tags: Civil Procedure


A person has standing if (1) he has sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act of which he complains; (2) he has a direct relationship between the alleged injury and claim sought to be adjudicated; (3) he has a personal stake in the controversy;

(4) the challenged action has caused the plaintiff some injury in fact, either economic, recreational, environmental, or otherwise; or (5) he is an appropriate party to assert the public's interest in the matter, as well as his own.

Willis v. Marshall, (Tex. App. - El Paso, 2013)

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