No mandamus of order compelling arbitration

th8In its order denying a mandamus petition in the case of In re: Adelphi Group, the Fifth Court reminds: “Although parties may expend time and money if they are ordered to arbitration improperly, delay and expense—standing alone—will not render the final appeal inadequate. Further, mandamus as a remedy for review of orders compelling arbitration should be limited to the comparatively rare cases where the legislature has through statute expressed a public policy that overrides the public policy favoring arbitration.” No. 05-16-01060-CV (Sept. 22, 2016) (mem. op.)

Preserve early, preserve often.

preservesBeasley v. Richardson, while involving facts unique to pro se litigation, provides a valuable reminder about preservation with relation to the handling of a nonsuit: “Error in dismissing a case with prejudice cannot be raised for the first time on appeal and must be presented to the trial court. To preserve a complaint of error in a judgment for appellate review, Beasley was required to inform the trial court of his objection by a post-judgment motion to amend or correct the judgment or a motion for new trial.” (citations omitted). No. 05-15-01156-CV (Sept. 20, 2016) (mem. op.)

Adverse judgment, lots of fallout

2000px-united_states_fallout_shelter_sign-svgHenry S. Miller Commercial Co. lost a trial on a fraud claim but succeeded in a later malpractice claim against its trial counsel. The Fifth Court resolved two issues – (1) postjudgment assignment of malpractice claims as part of a reorganization was acceptable where “Here, HSM asserted its own malpractice claim against the Lawyers in its own name. It pursued its own claim through trial and judgment. Under these circumstances, HSM’s right ‘to bring [its] own cause of action for malpractice is not vitiated’ by the assignment to its judgment creditors” (applying Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627, 629 (Tex. App.—Dallas 2000, pet. denied)); and (2) the trial court erred in dismissing HSM’s claim for gross negligence based on the failure to designate a key responsible third party. Accordingly, because a new trial was required on punitive damages, it was also required on compensatory damages, and thus liability as well. Henry S. Miller Comm’l Co. v. Newsom, Terry & Newsom LLP, No. 05-14-01188-CV (Sept. 14, 2016) (mem. op.)

Maybe malpractice, but no damage.

liability meme“Legal-malpractice damages are the difference between the result obtained from the client and the result that would have been obtained with competent counsel. Here, the result obtained, foreclosure, was inevitable concerning [Plaintiff’s] failure to pay her mortgage in her past and her refusal to pay in order to bring the loan current. Under these circumstances . . . there is no evidence of damages resulting from any alleged legal malpractice.” Sheetz v. Slaughter, No. 05-14-00982-CV (Aug. 31, 2016) (mem. op.)

No corporation? No fees.

The Fifth Court has now joined the line of cases stating that CPRC § 38.001 only allows an award of attorneys fees against certain kinds of business entities (although bypassing the actual application of that statement on the specific, conflicting facts presented about the defendants’ business structure): “Under the plain language of section 38.001, a trial court cannot order limited liability partnerships (L.L.P.), limited liability companies (L.L.C.), or limited partnerships (L.P.) to pay attorneys’ fees.” Varel Int’l Indus., LP v. PetroDrillBits Int’l, Inc., No.  05-14-01556-CV (Aug. 30, 2016) (mem. op.)

A picture is worth a thousand words

truckTen Hagen Excavating, Inc. v. Castro-Lopez presents a detailed review of the evidence about a serious truck accident, involving issues of tort law beyond the usual scope of this blog. As a matter of style, the opinion is notable for deftly using accident photos in its description of and analysis of the issues, as well as a diagram of how the accident happened. No. 05-15-00902-CV (Aug. 29, 2016).

Employee or independent contractor? Label not controlling.

TI_SpeakSpellDespite a contract between Texas Instruments and Volt, an employment agency, saying that Volt was an independent contractor, the Fifth Court reversed a jury verdict on the issue of whether Udell – a worker supplied by Volt – was an employee for pTexasBarToday_TopTen_Badge_VectorGraphicurposes of workers compensation. Reviewing the record in detail, the Court concluded that “Udell was working on TI’s premises, in furtherance of TI’s day-to-day business, and the detail
s of Udell’s work that gave rise to his injury were directed by TI.” Texas Instruments v. Udell, No. 05-14-01042-CV (Aug. 24, 2016) (mem. op.)