Opinions Released January 5, 2017

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Vera v. City of Hidalgo, No. 13-16-00088-CV (Memorandum Opinion by Justice Benavides; Panel Members: Justice Longoria, with Justice Perkes not participating in the decision)

In this interlocutory appeal, the Thirteenth Court of Appeals reviewed a temporary injunction giving the City of Hidalgo the exclusive right to host the 40th Annual BorderFest.

This case involves a dispute over the ownership and rights to BorderFest, which is an annual festival held in March in the Rio Grande Valley. The City of Hidalgo has hosted the festival since its creation, while the BorderFest Association—an unincorporated entity of volunteers—has organized the BorderFest. Joe Vera was the common factor between the two groups, serving as the former executive director of the Association and the former city manager for Hidalgo.

In 2015, the Association and Hidalgo got into a dispute, leading Hidalgo to demand recognition of their ownership of BorderFest. Hidalgo then formed Texas BorderFest LLC and planned to use the new entity to host the 40th Annual BorderFest in 2016. The Association responded by contracting with the nearby City of McAllen—where Vera was assistant city manager—to host BorderFest. Consequently, in January 2016, the media reported that McAllen—not Hidalgo—would host the 40th Annual BorderFest.

Hidalgo sued Vera and the Association seeking declaratory and injunctive relief regarding the ownership of the BorderFest name. The Association responded by claiming ownership of BorderFest and seeking its own injunctive relief for the BorderFest name, trademark, and goodwill.

Approximately one month before the 40th BorderFest event, the trial court held a two-day hearing on the applications for temporary injunctions. Numerous Hidalgo employees—including the Hidalgo purchasing director, information technology director, planning director, and director of streets and parks—testified at the hearing regarding the City’s involvement and investment in BorderFest. The employees testified that Hidalgo paid for advertising, lighting, and equipment rentals for BorderFest, while also building the website and many of the floats and food booths. The City had been planning for the 40th Annual BorderFest for the past year, beginning soon after the 2015 BorderFest event ended.

The Association called two witnesses: former Hidalgo mayor John David Franz and Vera. Both claimed the BorderFest name was created by the Association in the 1980s and characterized Hidalgo’s monetary contributions to the event as donations. The Association offered documents purporting to be from the United States Patent and Trademark Office, reflecting the Association as the owner of the BorderFest trademark.

The trial court denied the Association’s request for an injunction and instead granted the City of Hidalgo injunctive relief. Vera and the Association were enjoined from using the BorderFest name, parade floats, or equipment; interfering with Hidalgo’s use of the BorderFest name or operation of the festival; or even permitting another party to use the BorderFest name.

The Association and Vera appealed.

Held: The trial court acted within its discretion by granting Hidalgo’s application for a temporary injunction and denying the Association’s application.

The Thirteenth Court of Appeals first began by reaffirming the law governing temporary injunctions. An injunction is an extraordinary remedy, intended to preserve the status quo. An applicant for an injunction must prove (a) a cause of action against the defendant, (b) a probable right to relief, (c) a probable, imminent, and irreparable injury that cannot be adequately compensated by damages.

The Thirteenth Court of Appeals reviewed the trial court’s decision to grant or deny the parties’ requested temporary injunctions for an abuse of discretion.

Turning to the City of Hidalgo’s application, the Thirteenth Court held that the trial court was within its discretion to grant the injunction. Hidalgo’s underlying claims sought a declaratory judgment that the City was the exclusive owner of BorderFest, or, alternatively, a return of all BorderFest property. Hidalgo’s witnesses testified that the City had already invested significant taxpayer funds and manpower in the 40th Annual BorderFest. Furthermore, Hidalgo’s witnesses stated that the City had been the exclusive host for BorderFest over the past 39 years, and that BorderFest brought Hidalgo notoriety.

The Association, in turn, did not show that it used the registered BorderFest trademark and had no assumed name certificate on file in Hidalgo County. Although the trial court’s findings regarding the Association were sparse, the Thirteenth Court nonetheless held that they were within the court’s discretion.

In sum, the trial court’s orders granting Hidalgo injunctive relief and denying relief to the Association were within its discretion and effectively preserved the status quo for the 40th BorderFest event.

Read the Full Opinion Here

Marshall v. State, No. 13-16-00391-CR (Memorandum Opinion Per Curiam; Panel Members: Justices Rodriguez, Garza, and Longoria)

In this attempt at an appeal, the Thirteenth Court discussed the rules and process for a defendant who files a notice of appeal after waiving his right to do so.

Jorge Antonio Marshall was convicted of possession of a controlled substance, and filed a timely appeal. The trial court certified, however, that the defendant had waived his right to appeal. The Thirteenth Court directed Marshall’s counsel to review the record and advise the court regarding Marshall’s waiver of his right to appeal, or any amended certification. Marshall’s counsel filed the requested letter brief with the Thirteenth Court but did not disprove the trial court’s certification or otherwise show that Marshall had the right to appeal.

Held: The appeal was dismissed.

Texas Rule of Appellate Procedure 25.2 provides than an appeal must be dismissed if the trial court’s certification does not affirm the defendant’s right to appeal. Here, the trial court’s certification showed that Marshall waived his right to appeal, and Marshall’s letter brief did not disprove this certification. Moreover, the trial court’s findings of fact and conclusions of law indicated that Marshall had waived his right to appeal. The attempted appeal was thus dismissed.

Read the Full Opinion Here