A good year for scire facias

scire faciasThe 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.)

V’s got a ticket to ride.

84ecb956c1ff1bc291cf8a9901ad7bdfvRide, 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.)

Rounding error?

wheelThe 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.)

FED Refresher

jp logo2Appeals 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.)

No temporary injunction against former employee

In the common fact situation of an employee leaving for a new, competing employer, the Fifth Court found no abuse of discretion in denying a temporary injunction when:

  • After his termination, Turner did not have access to any confidential information except for the contents of a laptop
  • Turner testified that he did not access the laptop following his termination except to examine his girlfriend’s resume and his employment agreement and when he took it to the Apple Store to have his personal photographs removed from the computer.
  • Plaintiff had a forensic examination of the computer performed, and it presented no evidence that Turner’s testimony was false.
  • When Turner also testified that when he went to work for Gulfstream, he did not contact any of BM Medical’s clients with whom he had worked while employed by BM Medical (although some contacted him to find out what had happened to him); and
  • Only one client of BM Medical became a client of Gulfstream, who was a good friend of Turner’s whom Turner had known before he went to work for BM Medical, and who still did business with BM Medical.

BM Medical Management Service LLC v. Turner, No. 05-16-00670-CV (Jan. 10, 2017) (mem. op.)

Don’t Hop to DWOP

Enxeco Inc. v. Staley reversed a dismissal for want of prosecution, observing: “[T]he rules of judicial administration provide that civil non-jury cases should be brought to trial or final disposition within twelve months from the defendant’s appearance date. The administrative rules expressly recognize, however, that in complex cases or special circumstances ‘it may not be possible to adhere to these standards.'” (citations omitted). Here, such circumstances were presented by lengthy motion practice about forum and capacity issues. The Court gave little weight to plaintiff’s decision to not pursue discovery, noting that no rule compelled it to do so. No. 05-15-01047-CV (Jan. 9, 2017) (mem. op.)

Arbitration — what is “this Agreement”?

dumbledore-memeHeath’s employment agreement incorporated a confidentiality agreement, which in turn required arbitration of “any controversy, dispute or claim arising out of or in any way related to or involving the interpretation, performance or breach of this Agreement . . .” The Fifth Court noted that phrases such as “any controversy” are viewed, by federal and state courts, as “broad arbitration clauses capable of expansive reach.” It rejected the argument that the term “this Agreement” referred only to the confidentiality agreement, even though that agreement had a merger clause, because the arbitration clause refers to both claims “arising out of” and “in any way related to” the agreement. The Court also noted that the employment and confidentiality agreement were executed at the same time, and that its holding would apply fully to Heath’s tort claims as well. Advocare GP LLC v. Heath, No. 05-16-0049-CV (Jan. 5, 2017) (mem. op.)

Ambiguity defeats summary judgment

Directional Signs on a Signpost on White Background

The trial court granted summary judgment for the employer (oddly enough, a labor union) in a dispute arising from an employee’s benefits. The Fifth Court reversed, finding ambiguity in the underlying disability policy (noting, in particular, its interplay with separately-drafted legal instruments about the employment relationship – a recurring issue in disputes about arbitration clauses), and also finding related fact issues about whether the contract was unilateral or bilateral, and whether the employee had exhausted administrative remedies. The opinion recaps the major authorities about the role of contractual ambiguity in a summary judgment analysis. Videtich v. Transport Workers Union of Am., No. 05-15-01449-CV (Dec. 29, 2016) (mem. op.)