If Dr. McCoy made his famous pronouncement, not as to an Enterprise crew member in a red shirt, but during litigation about another defendant by filing a “suggestion of death,” would he make a general appearance in that litigation? The Fifth Court answered “no” in Hegwer v. Edwards, primarily citing a line of cases holding that making and filing a Rule 11 agreement does not amount to a general appearance. No. 05-15-01464-CV (March 22, 2017).
“I-35 argues that, although the guaranty itself does not specify an interest rate, the guaranty incorporates the Note and the two must be read together. We agree.” Interstate 35-Chisam Road LP v. Moyaedi, No. 05-16-00196-CV (March 20, 2017) (mem. op.)
In D Magazine Partners LP v. Rosenthal, reviewing the work of the Dallas Court of Appeals in a high-profile anti-SLAPP case, the Texas Supreme Court observed about Wikipedia:
“Given the arguments both for and against reliance on Wikipedia, as well as the variety of ways in which the source may be utilized, a bright-line rule is untenable. Of the many concerns expressed about Wikipedia use, lack of reliability is paramount and may often preclude its use as a source of authority in opinions. At the least, we find it unlikely Wikipedia could suffice as the sole source of authority on an issue of any significance to a case. That said, Wikipedia can often be useful as a starting point for research purposes. In this case, for example, the cited Wikipedia page itself cited past newspaper and magazine articles that had used the term ‘welfare queen’ in various contexts and could help shed light on how a reasonable person could construe the term.”
But, as a matter of the relevant substantive law, and the nature of Wikipedia, the Texas Supreme Court found overreliance on a Wikipedia entry when “the court of appeals utilized Wikipedia as its primary source to ascribe a specific, narrow definition to a single term that the court found significantly influenced the article’s gist. Essentially, the court used the Wikipedia definition as the lynchpin of its analysis on a critical issue. . . . ”
Accordingly, Dallas-area practitioners should pay special attention to these statements, if online resources such as Wikipedia play more than a general background role in a legal argument.
Echoing a line of cases from the Fifth Circuit about attorney immunity, and applying the Texas Supreme Court’s opinion in Cantey Hanger LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), the Fifth Court affirmed a summary judgment for a law firm involved in a foreclosure, noting: “The evidence shows Mackie Wolf provided appellants with a copy of the original note that appellants executed and all actions taken by Mackie Wolf were made in connection with its representation of its clients, BONY and Ocwen. The actions taken by Mackie Wolf that are the subject of this litigation—obtaining the note and presenting it to appellants—are the kinds of actions that are part of the discharge of an attorney’s duties in representing a party.” Santiago v. Mackie Wolf, No. 05-16-00394-CV (March 10, 2017) (mem. op.)
A useful reminder about timeliness appears in Duchouquette v. McWhorter, in which the appellant filed a late notice of appeal within the 15-day grace period, but neglected to move for leave to extend the deadline. In addition to dismissing the appellant’s appeal, the Fifth Court dismissed the cross-appeal noticed 8 days after the appellant’s: “[T]he Court does not have jurisdiction over a cross-appeal where the original notice of appeal is untimely.” No. 05-17-00041-CV (March 13, 2017) (mem. op.)
Together with Chrysta Castañeda, I recently wrote a short article for the State Bar Litigation Section about often-forgotten Texas Rules of Civil Procedure that can help keep legal issues alive at trial.
The writ of “scire facias” made one of its rare appearances in City of Dallas v. Ellis, after ten years passed from rendition of judgment, and the two-year grace period for a writ of scire facias expired as well. Unfortunately for the judgment debtor, under another provision of the Civil Practice & Remedies Code, the grace period does not expire for a judgment held by an incorporated city. The debtor did not persuade the Fifth Court that the city’s case should be viewed as one for subrogation that could potentially avoid that provision. No. 05-16-00348-CV (Feb. 17, 2017) (mem. op.)
vRide, a vanpool service, sought statutory indemnity from Ford after an accident, contending that the plaintiffs alleged – in substance – a products liability claim. The Fifth Court disagreed: The Cernoseks’ petition did not allege that the Ford van was unreasonably dangerous, was defective by manufacture or design, was rendered defective because it lacked certain safety features, or was otherwise defective. Instead, the petition alleged that vRide represented its vehicles had certain safety features when in actuality the vehicles did not have those safety features and that vRide failed to furnish vehicles with those safety features. In short, the Cernoseks’ petition did not contain allegations that the damages arose out of personal injury, death, or property damage allegedly caused by a defective product.” vRide v. Ford, No. 05-15-01377-CV (Feb. 2, 2017) (mem. op.)
The dispute that rolled into court in Wheel Technologies v. Gonzalez was whether a shipment of wheels had been delivered. The companies’ records were important but not dispositive, as the Fifth Court rounded up the facts: “This case essentially came down to a ‘he said, he said’ between two parties’ explanations of accounting. Blaser testified WTI always created a purchase order when it received a delivery and because WTI had no record of any outstanding purchase orders owed to Gonzalez, then it never received the tires. Gonzalez testified to the contrary. . . . Further, Blaser admitted he could not say for sure Owens always created a purchase order upon receipt of tires because Blaser was never personally involved in any of the transactions. Rather, Gonzalez testified there were many times in which the deliveries occurred after hours so checks and other documentation were not always ready when he made a delivery.” No. 05-16-00068-CV (Feb. 8, 2017) (mem. op.)
Appeals from forcible entry and detainer actions are common and we do not ordinarily report on them, but it has been some time since we last noted a summary of key principles. A good one appears in the recent case of McCall v. Fannie Mae, in which the appellant alleged improprieties about the relevant foreclosure sale. “But,” noted the Fifth Court, “the deed of trust expressly created a landlord and tenant-at-sufferance relationship when the property was sold by foreclosure. This provided an independent basis to determine the issue of immediate possession without resolving the issue of title. As we have explained, any defects in the foreclosure process . . . may be pursued in a suit for wrongful foreclosure or to set aside the substitute trustee’s deed, but they are not relevant in this forcible detainer action.” No. 05-16-00010-CV (Jan. 20, 2017) (mem. op.)