Rule of the week –

In Walls v. Capella Park Homeowners’ Association, Inc., the Fifth Court recapped the standards for a “trial on stipulated facts” under Tex. R. Civ. P. 263 – a useful and underappreciated rule. “An agreed statement of facts under rule 263 is similar to a special verdict; it is the parties’ request for judgment under the applicable law. In a rule 263 agreed case, the only issue on appeal is whether the district court properly applied the law to the agreed facts. Such a review is less deferential to the trial court, because a trial court has no discretion in deciding what the law is or in properly applying it. Id. If the trial court files findings of fact in an agreed case, they are disregarded by the appellate court.” No. 05-16-00783-CV (Nov. 30, 2017) (applying Addison Urban Development Partners v. Alan Ritchey Materials, 437 S.W.3d 597, 600 (Tex. App.—Dallas 2014, no pet.)).

Discovery problems = bond problems

Acra v. Bonaudo illustrates the “falling dominoes” problem that can arise from  discovery issues. Appellants sought to supersede a judgment with relatively small bonds. The district court found problems with their discovery responses, which interfered with their ability to establish a low net worth at the hearing about bond size. The Fifth Court affirmed: “On the record before us, we deny the request to vacate the trial court’s orders. Without evidence of all of Acra’s and Secner HR’s assets and liabilities, the trial court could not determine their individual net worth. And, without a determination of their individual net worth, the amount of bond, set in accordance with civil practice and remedies code section 52.006 and appellate rule 24.2(a)(1), was not an abuse of discretion.”  No. 05-17-00451-CV (Dec. 8, 2017) (mem. op.)

Good appellate advocacy seminar in 2018

DRI’s 2018 Appellate Advocacy Seminar will be held at the Planet Hollywood Resort in Las Vegas from March 14-15, 2018.  This year’s seminar will include valuable insights into effective advocacy (including tips from Bryan Garner), and joint sessions with trial court practitioners.  The seminar promises great networking opportunities with judges, appellate practitioners and trial advocates from across the country. This year’s seminar will be held in conjunction with the Trial Tactics Seminar, and anyone attending the appellate seminar can attend the final day of the Trial Tactics Seminar for no cost. The seminar also coincides with the beginning of the NCAA men’s basketball tournament, a great time to enjoy the excitement of Las Vegas. You can register for the Appellate Seminar here.  Save $100 and get the best hotel rates when you register and book by February 13, 2018.



An Inconvenient Texas

In Grynberg v. Grynberg, the Fifth Court affirmed a forum non conveniens dismissal when the only meaningful connection between Texas and the dispute was the incorporation of the relevant business in Texas: “Although this case involves a single connection to Texas through the incorporation of Pricaspian, it is a controversy involving an entity that maintains its offices in Colorado and individuals who, other than [one], reside in Colorado.” The Court also rejected an argument that the “internal affairs doctrine” created a jurisdictional impediment to a Colorado court proceeding with claims about the governance of the Texas business, finding that the doctrine was a choice-of-law concept rather than a jurisdictional limit. No. 05-16-00636-CV (Nov. 28, 2017) (mem. op.) (The “Pricaspian,” incidentally, is a large salt basin northwest of the Caspian Sea.)

Terms of document = no evidence

A clean example of “no evidence,” as a result of the terms of a legal document, appears in Coyle v. Jones: “The express language of the Agreement creating the trust at issue provided that the trust agreement could be revoked ‘at any time during the joint lives of the Trustors.’ (emphasis added). The Agreement further provided that other than that, when either trustor died, “the designation of Beneficiaries of specific gifts in this Trust shall become irrevocable, and not subject to amendment or modification.” The only evidence of revocation before the jury, however, was Frances’s 2010 written revocation. It is undisputed that Frances executed the revocation almost nine years after Stuart’s death.” No. 05-16-00876-CV (Nov. 30, 2017) (mem. op.)

How to use contention interrogatories –

In a rare grant of mandamus relief about written discovery, based on the “heart of a party’s case” concept of irreparable injury, the Fifth Court strongly endorsed the use of “contention” interrogatories and related requests for production. Requests as to which it granted relief included ones seeking:

  • “Specific factual and legal basis for establishing a fiduciary duty owed by Coralli
    to Vola. (Interrogatory No. 17)”;
  • “Documents Vola contends establish, demonstrate, or prove the amount of
    uniforms Sting Soccer committed to purchasing from Vola as alleged in
    paragraph 17 of the first amended petition. (Request No. 27)”; and
  • “Documents Vola contends establish, demonstrate, or prove the amount of damages alleged owed to Vola by Sting Soccer. (Request No. 35).”

The opinion makes other useful statements about appropriate discovery objections and requests for admission. In re Sting Soccer Group, No. 05-17-00317-CV (Nov. 30, 2017) (mem. op.)


Special disappearance –

Appellant filed a notice of appeal about a special appearance that was timely, measured from the ruling on a motion to amend and reconsider, but was not timely, when measured from the original ruling. The Fifth Court found that it was untimely: “The record here reflects the issue in the special appearance was whether the trial court could exercise specific jurisdiction over appellant. Appellant’s motion to amend and reconsider did not present any new arguments. Instead, it cited to decisions issued after the original order was signed, none of which changed the state of the law regarding specific jurisdiction. Because the motion to amend and reconsider presented no new argument, we conclude the amended order denying appellant’s special appearance was not independently appealable and agree with appellees that appellant should have filed its notice of appeal within twenty days of the signing of the original order.” Michelin North America v. Gallegos, No. 05-17-00617-CV (Nov. 21, 2017) (mem. op.)

You’ve Got Mail.

The appellant in Abuzaid v. Anani LLC, a user of the venerable AOL email service, alleged that he did not receive notice of a summary judgment hearing. The Fifth Ciurt first noted:

Texas Rule of Civil Procedure 21a allows for electronic service of documents “if the email address of the party or attorney to be served is on file with the electronic filing manager.” It is undisputed Abuzaid’s email was on file to receive electronic service of documents, and he repeatedly availed himself of the process. . . . The rule does not contemplate that electronic service is somehow incomplete when a party experiences computer or email issues. Rather, notice properly sent pursuant to rule 21a raises a presumption that notice was received.”

(citations omitted). Here, the appellant did not overcome that presumption:

“Under rule 21a, constructive notice may be established if the serving party presented evidence that the intended recipient engaged in instances of selective acceptance or refusal of service of documents. Here, Abuzaid has not denied receiving the January 13, 2016 email attaching the motions for summary judgments and stating, ‘We will notify you via separate correspondence with the hearing date on these motions.’ Further, the record establishes Abuzaid sent and received numerous electronic filings and notices without incident at the email address on file with the trial court up until the day before appellees’ electronically filed their summary judgment motions and notice of hearing. . . . .  Given the conflicting evidence, it was within the trial court’s discretion not to believe Abuzaid’s unsupported, self-serving statements about computer issues causing him not to ‘see’ the delivered documents and determine he engaged in selective acceptance of documents.”

No. 05-16-00667-CV (Nov. 21, 2017) (mem. op.)

When proving lost profits, don’t be gross.

While from the Fifth Circuit rather than the Dallas Court of Appeals, a recent case notes a fundamental principle in business litigation under Texas law. In it, that Court affirmed a JNOV motion on damages, under Texas law, when the plaintiff proved gross profits rather than net profits. “Its expert witness testified that he used ThermoTek’s gross profit margin—gross sales, less the cost of those goods sold, divided by gross sales—to calculate lost profits. He then stated that he reached his lost-profit totals for the VascuTherm units and wraps by (1) multiplying the average sales ThermoTek made to Wilford each month by the unit sales price and relevant time period, and (2) deducting the cost of the goods sold. But that is the very definition of gross profits. See Black’s Law Dictionary, supra (defining gross profits as “[t]otal sales revenue less the cost of the goods sold, no adjustment being made for additional expenses and taxes”). Motion Medical Technologies v. Thermotek, No. 16-11381 (Nov. 14, 2017).