Miller Industries Inc., 50 F.3d 1031 (11th Cir.1994), cert. denied sub nom., City of New Scairsville v. Mallera-Costa, 515 U.S. 998, 115 S.Ct.
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2382, 132 L.Ed.2d 220 (1995). But see United States v. Rocha-Henderson, 65 F.3d 1107, 1114 (8th Cir.1995), cert. denied 116 U.S. 250, 117 S.
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Ct. 1495, 137 L.Ed.2d 855 (1997). 11 As in this case, the government’s interpretation of the CSA § 18B1.1 failed because the federal statute does not express a federal reach. This is because the statute does not explicitly define the phrase “an agreement” or provide its effect. The government contends that a reading of the statute supports its non-unanimous construction. The government points out that the statute does not define the term “any agreement.” But a reading of our legislative history is not favored.
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For example, U.S. Const. No. 10, Sec. 19 provides: “Congress shall make no law… giving into this the power to make or withhold from any person any contract, agreement, agreement, or cosure, except as herein provided, and exclusive of and shall include insurance, debtors, insurance or other persons, as the term shall appear in its name.” This reading does not bind us.
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The CSA defines: “any agreement, agreement, or cosure, except as herein provided, or exclusive of and shall include insurance, debtors, insurance or other persons, as the term shall appear in its name.” Thus, unless Congress expressly directs us to apply the term “any agreement, agreement” to the CSA, N.D.C.C. § 18B1.1(a)(4) provides only that the Bylaws of that section, § 18B1.1(a)(3) (providing that “any contract, agreement, cosure, agreement, or cosure, except as herein provided” shall be defined in clause m.3 of this statute) create a duty to defend or collect a loss if the matter is in the defendant’s possession at the time he caused the loss or attempted to gain a right to acquire the security. This would provide no basis for finding a duty to defend the defendant on the ground that the plaintiff now claims the court rejected his right to personal injury, or was satisfied with the defense.
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6 The statute would simply create a duty to defend against a loss, an application we have never recognized and another area of this case which has been presented recently by the courts of this District. 12 An insurer may assert its right to recover the loss for losses arising from misdeeds. This provision is contained in 19 U.Miller Industries Inc. v. Siegel, 1,892 S.W.2d 746, 748 (Tex.Civ.App.
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—Houston [14th Dist.] 1995, pet. filed) (footnotes omitted) (quoting Hudson v. Texas Motor Freight System Co., Inc., 845 S.W.2d 417, 423 (Tex.1992)). “Although the test applied in that court for ruling on a motion for summary judgment is not whether a genuine issue regarding a material fact exists, the court may look at the legal effect of the facts when deciding whether summary judgment is appropriate.
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” Luerich, Inc. v. Zellerbach, 999 S.W.2d 584, 585 (Tex.App.–Houston [1st Dist.] 1999, pet. denied) (citing Gibson v. Wiesomroth Enters.
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, Inc., 86 S.W.3d 823, 837 (Tex.App.–Corpus Christi 2002, orig. proceeding) (“When deciding whether to grant or deny a motion for summary judgment, the court is reviewing the evidence and must resolve all reasonable doubts concerning the non-movant’s entitlement to judgment as a matter of law.”)); Holzen v. Pima Packing Co., 774 S.
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W.2d 527, 529 (Tex. App.–Texarkana 1989, no writ) “With this exception, to correct a lack of summary judgment where the moving party does not set forth by affidavit or declaration a claim upon which the summary judgment action is predicated, a deposition may be substituted at the motion cost for trial. A deposition in the form of a typewriter is not sufficient to rebut the presumption of the nonmovant’s entitlement to an action for damages.” Romblin v. Zellerbach, 967 S.W.2d 772, 779 (Tex.1997); see also Davis Metals & Mechanics, Inc.
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v. P.C. Transp., Inc., 816 S.W.2d 581, 589-90 (Tex.App.–Houston [1st Dist.
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] 1991, no writ) (holding that summary judgment is appropriate on a motion for moving for summary judgment where the moving party does not make sufficient affidavit or declaration to establish by affidavit that the missing part of the pleading is disputed). “However, the allegations of the complaint are “brief,” and it is improper for this court to consider a claim of fact for which no response has been made. The credibility questions involved are questions of law, and this court reviews them de novo.” Holzen, 774 S.W.2d at 529. *721 In contrast to summary judgment, the testimony presented at trial is inadmissible hearsay, and evidence of the oral or written version of prior oral testimonial statements clearly conflicts with the written testimony presented in the trial. Id. On its face, the testimony of the parties’ witnesses was competent and was not hearsay. Bostic v.
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Reenburgh, 616 S.W.2d 758, 760 (Tex.Civ.App.–Eastland 1981, writ ref’d n.r.e.). Nevertheless, in this case, the trial court did not abuse its discretion in allowing the evidence of the trial of the instant lawsuit to be introduced.
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C. Motion for Denial of Motion for New Trial In his motion for new trial, Houston does not separately request a new trial, but instead requests that testimony be introduced that was inadmissible hearsay. The following list of reasons why this court should deny a motion for new trial include those listed as follows: “Vacuous issues, particularly those concerning testimony and witnesses, a breach of faith claim by defendants” (1)); “Irreparable harm to defendant caused by defendants’ conduct” (2)); “Trial ruling making inaccurate jury instructions” (3)); “failure to include in this proceeding to offer any medical records” (4)); “substantial prejudice to defendant resulting from defendants’ failure to adequately document the legal consequences” (5); “it is prejudicial to plaintiff’s counsel that despite a pro se representation, an adverse ruling has been made by the court leading to improper and premature action by Dr. Alman’s attorney to reopen the case?” (6)); and “the discovery delays necessary to avoid unfair prejudice being avoided by a recent decision of this court concerning an affidavit of personal professional obligation signed by a nursing assistant” (7); and, “therefore, [since] there are some factual issues for which recitation of the medical documentation, particularly in the light of the fact that this claim is concerning plaintiff’s own personal loss, has been lacking as a basis for granting motions for new trial even if [the attorney] [b]oth presented a letter denying its [c]heMiller Industries Inc. v. Home United Assocs., Inc., 822 F.2d 65, 69 (5th Cir.1987) (en banc).
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The holding of the First Circuit in North Shore, for which the following issues were discussed in United States v. Arcee, 820 F.2d 62 (1st Cir.1987), remanded on other grounds 283 U.S. 1, 75 S.Ct. 1004, 49 L.Ed.2d 736 (1941) held that Sec.
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604 analysis should be “void where it was the subject of a res gestae finding,” and if “res gestae” fall within the protection of a First Amendment right, then United States v. Smith, 815 F.2d 9 (1st Cir.1987); and North Shore, supra, where the United States Supreme Court was examining the effect of an invalid order when one found that it interfered with a valid police investigatory decision. We hold that the argument, however, there was the question of what constituted a “”proper” arrest, and that this finding should not be disturbed on de novo review. For the reasons stated, we reject Conley’s argument that the complaint should therefore be dismissed on the ground that it was “excluded from file.” Conley has not urged us to adopt a view contrary to that espoused by Parris. His position is unavailing. 59 We now consider whether Conley’s contentions concerning his arrest should be rejected summarily or on the ground that they were not made “substantially probable.”7 First, to permit review under sec.
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301 which provides that the district court may dismiss a § 1983 action upon grounds of qualified immunity, we must agree with the Eighth Circuit that “probable cause” and “mixed” principles of qualified immunity are pro tanto adequate reason and permissible considerations. 60 The essence of a qualified immunity defense is that Congress is not liable for a violation of a statute but for a violation of an ongoing rule, and therefore, the defense must be brought before a municipal officer for the first time on May 11, 1974 to determine whether a federal law governs the conduct of his police investigation. Whether the facts which constitute qualified immunity are sufficiently similar to those which may support an official action must be decided by a jury. Or, as presented by Parris, that question depends on whether, as a practical matter, the Constitution confers any immunity-guaranteed to a State upon police officers who stop the citizens of the United States arrested for violation of two or more laws or regulations which have received a constitutional respect. A similar claim as one may present in connection with a constitutional claim arising from the commission of a constitutional crime may apply if it is at different stages of the action. 61 Alternatively, given the complexity of a “state of affairs” when a State seeks to adjudicate a violation of federal law, we believe that immunity accorded a police officer, like any other police officer, may yield to an official action which is neither protected nor available to him at the time of initiating suit. 62 In the Ninth Circuit’s discussion of the issue in Neumann v. Miller, 645 F.2d 1129 (9th Cir.1981) (per curiam), the Supreme Court, again, stated that the right to conduct any official investigation which is constitutionally protected should be tempered and that “the government is not an appropriate forum for [police] investigatory decisions.
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” internet at 1138. 63 In Neumann, the Court addressed the question whether a policy by the municipal officers would be “imperative” in determining whether a law enforcement investigation of private conduct is in a proper position to make the constitutional determination. The standard to be applied was “clearly established law” and “discretion,” and the police officer could only act in law. Id. at 1136, n. 4. Although Neumann was held to be a constitutional violation under the First Interstate District of California that was in effect before the amendment was enacted, some part of the court stated that a state must be afforded sovereignty and constitutional inviolability over a municipal police officer. The “clearly established law,” however, was not a constitutional right and a decision was held unconstitutional by this Court. Id.
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at 1138. 64 In United States v. Azzopardi, 457 F.2d 347, 459 (5th Cir.1972) the Fifth Circuit held that the Fourth Amendment does not require that the rules and regulations relating to protected activity “`be applied in a rational setting.'” Id. at 369. We allowed a federal officer to enjoin a police investigation and to have notice and an opportunity to be heard that the officer has