In this case involving corporate infighting, the defendant filed a third-party claim against Troy Brown.  Mr. Brown filed a special appearance asserting that the court did not have personal jurisdiction, which the trial court denied.  Mr. Brown appealed.

The Court of Appeals reversed, determining that Brown did not have minimum contacts with Texas such that he was subject to personal jurisdiction here.  The Court specifically found that several emails Brown sent to people in Texas did not “constitute a contact demonstrating purposeful availment.”

Brown v. Pennington

In this post-judgment litigation, the plaintiff sought to collect on a judgment against the defendant.  During the course of the litigation, the plaintiff filed pleadings and made assertions that the defendant felt were false.  Consequently, the defendant successfully moved for sanctions under Chapter 10 of the Texas Civil Practice and Remedies Code.

The plaintiff appealed and raised nearly every possible argument for overturning the sanctions award, but the Court of Appeals rejected them all, affirming the award.

Powell v. Penhollow, Inc.

Homeowner Sheila Larry failed to pay her HOA fees.  Eventually, the HOA took legal action to collect the unpaid dues.  Like most HOA fees, they were secured by a contractual lien on Ms. Larry’s property.  The HOA successfully moved for summary judgment, but the trial court refused to order foreclosure of the lien, and the HOA appealed.

Reversing the trial court, the Dallas Court of Appeals reasoned that the “purchase of property within a deed restricted subdivision carries with it the obligation to pay association fees,” and “the remedy of foreclosure is an inherent characteristic of that property right” — even if it may seem harsh.

Gateway Estates HOA v. Larry

Wells Fargo obtained a judgment against Charles Paschall and then sought to collect by garnishing an investment account Paschall held at U.S. Trust. U.S. Trust opposed the garnishment, asserting that the funds it held were subject to a properly perfected security interest held by Inwood National Bank. Inwood then intervened to protect its lien interest in the account. The trial court ultimately ruled that Wells Fargo’s judgment lien trumped Inwood’s security interest and awarded the funds to Wells.

Inwood appealed. The issue before the Dallas Court of Appeals was whether Inwood lost its priority over Wells Fargo by executing a new promissory note with Paschall several months after Wells Fargo recorded its judgment lien. Under Texas law, if this new obligation were considered an “advance” as opposed to a renewal or extension of an existing indebtedness, then Inwood would lose its priority. Relying on several cases interpreting the UCC, the Court determined that the new promissory note was not an advance, reversed the trial court’s ruling, and held that Wells Fargo was not entitled to garnish the funds.

Inwood Nat’l Bank v. Wells Fargo Bank, N.A.

Under Rule 329b of the Texas Rules of Civil Procedure, the trial court loses its plenary power over a default judgment thirty days after it is signed.  An exception to this 30 day rule is when a party fails to receive notice within 20 days of the signing of the judgment.  In this case, the defendant sought to have a default judgment set aside, alleging that he did not receive notice of the judgment until the 98th day after it was rendered.  The trial court granted his motion and vacated the default judgment.

The Court of Appeals, however, granted the defendant’s mandamus petition, because under Rule 306a(4), “a party who does not have actual knowledge of an order of dismissal within 90 days of the date it is signed cannot move for reinstatement.”

In re Intergas Capital Recovery LLC

In this simple breach of contract case, the defendant agreed to pay the plaintiff approximately $8,000 through installment payments of $75 per month.  After paying $2,500, the defendant stopped making the monthly payments and the plaintiff brought this lawsuit.  After a trial, a jury awarded the plaintiff the remaining balance on the contract–just over $5,500.

The Dallas Court of Appeals affirmed the jury’s findings, but remitted the damages award to $1,200 because there was no acceleration provision in the contract and the evidence only established that the defendant had failed to make a total of sixteen payments.  The Court reasoned that absent an acceleration clause or a repudiation, the defendant was only entitled to recover the past due payments under the installment agreement, not the entire remaining balance. Consequently, the Court ordered a remittitur.

Eoff v. Central Mut. Ins. Co.

The plaintiffs defaulted on their mortgage and were then removed from the house via a forcible detainer action filed in Collin County.  They appealed, arguing that the trial court erred by admitting as a business record several notices of eviction sent to them in the mail.  The plaintiffs’ primary argument was that the witness who laid the foundation through an affidavit was not qualified.  The Dallas Court of Appeals disagreed, noting that “Rule 803(6) does not . . . require a witness laying the predicate for introduction of a business record to be the creator of the document or even an employee of the company keeping the record.” All that is required is that he/she have personal knowledge of the facts contained within the business record.

Singha v. FNMA

In a case involving a dispute among members of the Obowu Union DFW, the plaintiff sued the other members for defamation after he was suspended.  The Union filed a plea in intervention but the plaintiff never filed an answer and the Union moved for default judgment, which the trial court granted.  The case went to trial and a jury returned a verdict in the plaintiff’s favor on his defamation claim for over $200,000.

The defendants appealed the defamation verdict, which the Court of Appeals affirmed, and the plaintiff also appealed the default judgment.  The Court affirmed the default judgment, rejecting the plaintiff’s argument that the trial court should have granted him a new trial because the intervenors failed to serve a copy of the motion for default judgment on him.  Specifically, the Court noted that “after a defendant has been served with citation and the petition, the plaintiff has no legal duty to notify the defendant before taking a default judgment . . . .”

Iroh v. Igwe

The defendant in this private jet interior decoration case pleaded a series of affirmative defenses.  After the defendant’s counsel objected to requests for production asking for documents related to these affirmative defenses and then instructed its corporate representative not to answer depositions questions about them, the trial court struck the affirmative defenses in their entirety as a sanction.  The defendant later lost at trial and appealed the trial court’s sanction.

The Court of Appeals reversed, holding that striking the defendant’s affirmative defenses amounted to a “death penalty” sanction that went too far.  Because the trial court had not adequately considered other remedies (such as assessing deposition costs or awarding attorneys’ fees), the sanction was unwarranted.  The Court explained that “case determinative sanctions may be imposed in the first instance only in exceptional cases when they are clearly justified and it is fully apparent that no lesser sanctions would promote compliance with the rules.”

Associated Air Ctr. LP v. Tary Network Ltd.

In this partnership dispute, two individual limited partners sued their fellow individual partner (who also signed the limited partnership agreement on behalf of the general partner entity) for, among other things, breach of contract and breach of fiduciary duty.  The jury returned a verdict in favor of the two limited partners, but the trial court granted a JNOV, dismissing those claims for lack of standing.  The Court of Appeals affirmed because “a limited partner does not have standing to sue for injuries to the partnership that merely diminish the value of that partner’s interest” and the plaintiffs’ claims were based solely on their fellow partner’s duties as a partner.

Hodges v. Rajpal

Homeowners Nader and Fariba Daryapayma purchased a $1.5 million house and financed $735,000 of the purchase price with two loans secured by liens on the home.  Shortly thereafter, the Daryapaymas applied for and obtained a home equity loan from Countrywide for $937,500, the purpose of which was to pay off their current mortgage (i.e. the existing $735k loans).   Countrywide funded the home equity loan and the Daryapaymas used the proceeds  to pay off the first two loans.

A few years later, the Daryapaymas defaulted on the home equity loan.  Bank of New York Mellon (BONY), as the assignee of the loan, foreclosed on the Daryapaymas property and then filed a petition for forcible detainer.  The Daryapaymas counterclaimed, contending that the home equity loan violated the Texas Constitution, which limits the amount of home equity loans, when combined with existing mortgages, to 80% of a home’s fair market value.  The Daryapaymas argued that because the $937k home equity loan combined with their outstanding $735k mortgages exceeded 80% of the home’s value, the foreclosure was unenforceable.  The trial court agreed and granted the Daryapaymas summary judgment.

The Dallas Court of Appeals reversed, holding that because the loan documents reflected that the $937k home equity loan was made, in large part, to pay off the existing mortgages, the trial court erred in including the balance of those loans in its calculation of the total amount of indebtedness.

Bank of New York Mellon v. Daryapayama

BB&T sought to collect a judgment against Brittania Construction by seeking to garnish funds held by an individual named Richard Heath.  BB&T claimed that Mr. Heath owed Brittania $178,000 that it was entitled to collect.

As it turns out, Mr. Heath also had a $185,000 unsecured obligation to a Trust that he had agreed to pay using the same funds BB&T sought to garnish.  The Trust sought to intervene to protect its interest in those funds, but the trial court granted the other parties’ motion to strike its intervention.  The Trust appealed.

On appeal, the Dallas Court of Appeals affirmed, holding that although Mr. Heath may owe the Trust money, the Trust could not “show ownership of or an equitable interest in the money held by Heath such that Trust was entitled to intervene in the garnishment action.”

Gregory B. Baten Trust v. Branch Banking & Trust Co.

In a dispute over an $1,800 monthly rental payment, the Court of Appeals affirmed a judgment in favor of the landlord and rejected several arguments by the tenant that the trial court had erred.  One such argument was the tenant’s contention that because the landlord had altered the memo line of several checks he had sent her, his obligation to pay rent was discharged.  Apparently, the landlord changed the memo line to reflect the month for which she applied the tenant’s payment.

Because the landlord had not acted with fraudulent intent, and because the notation did not change anything material about the check, the Court held that the affirmative defense of discharge did not apply.

Cunningham v. Anglin

Dr. Erwin Cruz sued his former business partners, claiming, among other things, that he was a limited partner in an entity called Plano AMI, L.P.  Before trial, the trial court granted Dr. Cruz’s motion for partial summary judgment establishing his ownership interest as a limited partner, based in large part upon the fact that Plano AMI’s tax returns listed Dr. Cruz as a limited partner.

On appeal, the Dallas Court of Appeals reversed that decision, finding that the partnership agreement was ambiguous and that because Plano AMI had later amended its tax returns to list Dr. Cruz as a general partner, Cruz had failed to establish as a matter of law that he was a limited partner.

Plano AMI, L.P. v. Cruz

After Kevin White defrauded investors in a foreign currency trading scheme, a federal court appointed Kelly Crawford as receiver over the estates and assets of White and his companies.  One such entity was a fund operating as a limited partnership called the Revelation Forex Fund.  Crawford determined that investors in Revelation had claims against Forex, the company with which Revelation had maintained foreign currency trading accounts.  Consequently, the investors assigned their claims to Crawford and he then filed suit against Forex in Colin County District Court.

Forex sought to dismiss the lawsuit based on an arbitration provision in its contract with Revelation.  When the trial court denied its motion, Forex appealed.  The Dallas Court of Appeals affirmed based on the crucial distinction that Crawford’s claims were brought as an assignee of the investors’ claims, not in his role as trustee.  Because only Revelation (and not the individual investors) had agreed to arbitrate claims against Forex, venue in Colin County was proper.

Forex Capital Markets, LLC v. Crawford

The Relator in this mandamus action sought to avoid his obligation to respond to post-judgment discovery requests.  He argued that the trial court abused its discretion in ordering him to respond because he did not receive notice of the trial date and therefore the judgment against him was void.

The Dallas Court of Appeals denied his mandamus petition because procedurally the Relator did not follow the correct steps to challenge the validity of the underlying judgment.  The Court noted that if indeed the Relator did not have notice of the trial setting, the judgment may be voidable.  But the proper procedural path to challenging the judgment was for Relator to file a bill of review in the trial court to set aside the judgment (as it had become final and was no longer appealable).  Then, if the Relator wanted to avoid enforcement of the judgment pending a decision on the bill of review, he could petition the trial court to enjoin its enforcement.

In this case, the Court noted that until it was set aside, the judgment was valid and therefore the trial court did not abuse its discretion in allowing the plaintiff’s post-judgment discovery.  Moreover, because Relator could seek to set aside the judgment and enjoin its enforcement in the trial court, mandamus relief was not appropriate.

In re Lowery

Several months before the decedent died, he had his attorney prepare an amendment to a trust he had created that would have increased the distributions to his two children.  The attorney drafted the amendment, but the decedent never signed it.  Acting in their capacity as personal representatives for their father’s estate, the children sued the attorney for negligence.  The attorney moved for summary judgment, which the trial court granted based on its finding that the attorney owed no duty to them.

The children appealed, and the Dallas Court of Appeals affirmed, holding that “an attorney owes a duty of care only to his or her client, not to third parties who may have been damaged by the attorney’s negligent representation of the client.”

Donaldson v. Mincey

In a dispute between former business partners, the plaintiff sued the defendant for breach of contract, alleging that the defendant first agreed to reimburse him for certain expenses totaling $75,000, and then, second, when he refused to pay, promised the plaintiff that he would give him a check for $75,000 instead.  The jury found that the defendant breached both contracts and awarded the plaintiff $75,000 for each breach (for a total of $150,000).  Because that amounted to a double recovery, the Dallas Court of Appeals reversed and limited the plaintiff to one recovery of $75,000 for breach of contract.

Kim v. Pak

Sky Capital, a single-asset entity, ordered a private jet from Bombardier for a (presumably) wealthy Russian man named Iouri Chliaifchtein.  Unhappy with the jet Bombardier delivered, Sky Capital sued Bombardier for, among other things, breach of the delivery contract.  The case went to trial and the jury returned a defense verdict in favor of Bombardier.

Sky Capital appealed, arguing that the evidence was legally and factually insufficient to support the jury’s verdict because Bombardier clearly breached part of the delivery contract.  On appeal, the Court noted that the jury was instructed that to find a breach, it must be material.  Although, as the Court recognized, materiality instructions are generally presented in the context of when a party is excused from performing under a contract based on the other party’s breach, Sky Capital did not challenge the instruction itself.  Consequently, the Court upheld the verdict on the basis that although Bombardier did breach the delivery contract, the evidence was sufficient to support the jury’s finding that it was not material.

After Ricky Holland suffered injuries from taking medication, he convinced a law firm to bring a lawsuit on his behalf against the drug manufacturer.  That lawsuit went nowhere, and actually led to the law firm suing the Hollands for fraudulently inducing them to take his case. The Hollands countersued, bringing a claim for intentional infliction of emotional distress based on the lawsuit the law firm filed against them.

The trial court dismissed the Hollands’ IIED claim because it was inapplicable in light of the other claims they had pleaded.  On appeal, the Court of Appeals reversed the trial court because plaintiffs are permitted to plead claims in the alternative.  The Court also refused to consider the law firm’s additional argument that the claim fails because it was based on statements made in its lawsuit and thus protected by an absolute privilege.

In 2000, the union representing DART’s employees sued DART, alleging that it was improperly denying its employees’ grievances and requests for appeals.  As a result, the parties entered into a settlement agreement providing that DART was required to modify the employee grievance procedures in its employment manual.

Years later, in 2010, a dispute arose between DART and a former employee (who had been terminated) over DART’s grievance procedures.  The union ultimately sued DART, alleging that it had breached the prior settlement agreement.  DART filed a plea to the jurisdiction, asserting sovereign immunity, which the trial court denied.  On appeal, the Court of Appeals affirmed the trial court’s decision, noting that when “a governmental entity agrees to settle a lawsuit in which it has waived governmental immunity, it cannot claim immunity from suit for breach of the settlement agreement.”  Because DART had waived immunity in the 2000 lawsuit and the union was claiming it had breached that agreement, DART could not claim immunity from the suit.

Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338

In a prior action, the plaintiff (through counsel) negotiated a settlement through the defendant’s attorney and the attorney then sent the plaintiff a final settlement agreement, which the plaintiff signed.  The defendant, however, refused to sign the agreement and later filed bankruptcy.  The plaintiff then sued the defendant’s attorney for fraud, arguing that the attorney had misrepresented that her client would settle based on the agreed upon terms.

The trial court granted the attorney’s motion for summary judgment, holding that the plaintiff could not establish the justifiable reliance element of his fraud claim.  The Court of Appeals affirmed because the attorney made no express representation that her client had approved or would sign the settlement agreement, and reliance on representations made in business transactions are  not justified when the representation takes place in an adversarial context such as litigation.

Weilbacher v. Craft

In this complex fraud case arising out of the misappropriation of millions of dollars in loan proceeds, one issue before the Court of Appeals was whether the trial court erred in denying the plaintiff’s request for a spoliation instruction.  The plaintiff had moved to compel certain communications from one of the defendants, but that defendant had replaced its servers and did not back up the data.  Because there was no evidence that the defendant had acted with intent to conceal the discoverable evidence or acted negligently to irreparably deprive the plaintiff of “any meaningful ability to present its claims,” the Court of Appeals affirmed the trial court’s decision not to give a spoliation instruction to the jury.

Flagstar Bank, FSB v. Walker

An investor sought to have its shares in a hedge fund redeemed, but the hedge fund made a complex maneuver under Bermuda laws that resulted in the investor receiving less than it anticipated from the redemption.  The investor sued the hedge fund, asserting numerous claims, including a negligence claim.  The trial court granted summary judgment, and the investor appealed.  Addressing the investor’s negligence claim, the Court of Appeals affirmed the trial court’s decision, holding that the hedge fund manager did not owe a duty to the investor.

Mary E. Bivins Found. v. Highland Capital Mgmt., LP

A chiropractor provided treatment to a patient injured in a car accident and, in return, the patient assigned her right to any proceeds from a settlement, judgment, or verdict.  The patient settled her claim with the other driver’s insurance company, but, instead of sending the payment directly to the chiropractor, the insurance company paid the patient.  The chiropractor then sued the insurance company directly, seeking the amount it had paid to the patient.   The trial court granted summary judgment in favor of the insurance company and the chiropractor appealed.

The Court of Appeals affirmed, rejecting the chiropractor’s argument that it was an “account debtor” under the UCC because there had been no finding of liability.  Rather, the parties had settled and therefore there had been no determination of liability, so the chiropractor was not an account debtor.

Pain Control Institute, Inc. v. GEICO Gen. Ins. Co.

Graham Mortgage sued Holmes on a personal guaranty he had signed.  The trial court granted Graham’s motion for summary judgment, and Holmes appealed.  Among other things, he argued that the trial court had erred by refusing to deem his requests for admission admitted because Graham never responded to them. Graham argued that it had no obligation to respond to the requests for admission because they were served by email and the rules (at the time) did not allow service by email.  The Court of Appeals agreed, holding that even though Graham had received the requests for admission, its internal procedures were not structured to receive discovery requests by email, and “attorneys should be able to structure their internal procedures around their opponents’ compliance with the rules of civil procedure in such matters as service of documents.”

Holmes v. Grahma Mortgage Corp.

The Plaintiff hired Classic Superoof to build a metal roof for her house, which it did. The appearance of the roof, however, was marred by markings and scuff marks.  As a result, Plaintiff complained to (and ultimately sued) Classic.  At first, Classic thought the problem stemmed from the metal itself and therefore contacted the metal company, who then, in turn, contacted U.S. Steel, the provider of the metals used to make the roof.  Looking to investigate the issue, U.S. Steel sent its own metallurgical engineer to the Plaintiff’s home to inspect the roof.  The engineer performed an inspection and (perhaps not surprisingly) concluded that the coating on the roof was damaged during installation (thus absolving U.S. Steel of any responsibility and pinning the blame on Classic).

At trial, the Plaintiff used the U.S. Steel report and won a judgment against Classic.  On appeal, Classic argued, among other things, that the trial court erred by admitting the report because it was hearsay–specifically, because it was prepared in anticipation of litigation, it fell outside the business records exceptions. The Court of Appeals rejected that argument, noting that the engineer was not contacted by the Plaintiff, there was no lawsuit on file at the time, and that the engineer testified that his job was simply to investigate the cause of the concern.

Classic Superoof v. Bean

The grantor to a trust apparently changed his mind and sought to undo the trust.  After litigation on several fronts spanning several decades, the grantor filed a declaratory action seeking a declaration that he is the owner of an oil and gas lease called the Westbrook Lease, which was previously property of the trust he created.  The trustee opposed the grantor’s efforts, arguing that the trust was still intact and that the trust still owned the rights to the Westbrook Lease.

The main issue in the case was the effect of several judgments, dating as far back as 1980.  Specifically, the grantor moved for summary judgment, claiming that res judicata applied in his favor based on one of the prior orders.  The trial court agreed and granted summary judgment.  The Court of Appeals, however, reversed because the judgment upon which the trial court relied had been reversed on appeal.

Schmidt v. Ward

In this habeas corpus proceeding, Charles Miller challenged the trial court’s decision to incarcerate him for contempt.  Mr. Miller had failed to produce certain documents required by court order, leading to the contempt finding and his confinement.  Specifically, the trial court found Miller guilty of constructive contempt, which is contemptuous conduct outside the presence of the court.  Miller argued that he was not given proper notice of the contempt charge, and the Court of Appeals agreed, because in cases involving conduct outside the presence of the court, “due process requires that the alleged contemnor receive full and unambiguous notification of the accusation of any contempt and a reasonable opportunity to defend the charges or explain the conduct.”  Because Miller was not afforded that opportunity, the Court granted him habeas corpus relief.

In re Miller

During the course of this case, the defendant made numerous changes to his deposition testimony post hoc.  Ultimately, it was discovered that the defendant’s counsel had drafted the changes and told their client to adopt them.  The trial court judge, outraged at this behavior, forced the defendant to disclose emails reflecting that conduct (on the theory that they fell under the crime/fraud exception to attorney-client privilege).  Not surprisingly, the plaintiff had a field day attacking the defendant’s credibility at trial, leading to a multi-million dollar verdict in its favor, including substantial punitive damages.

After trial the plaintiff moved for sanctions based on the plaintiff’s conduct, which the trial court awarded.  On appeal, the Court of Appeals reversed, because the motion for sanctions should have been brought before trial and because, even under the trial court’s inherent power to sanction, the Court concluded that allowing the plaintiff’s counsel to use emails between the defendant and his counsel for cross examination was “enough to make the point” and further sanctions were excessive.

Cherry Petersen Landry Albert LLP v. Cruz

In a case of first impression, the Court of Appeals ruled that if a court determines that a mechanic’s lienholder has a perfected statutory mechanic’s lien and is entitled to recover damages for unpaid labor and materials, the court must issue a judgment of foreclosure and order the sale of the property.

In the specific case in front of the Court, the lienholder sought to foreclose on its lien, but the trial court refused to order a foreclosure, noting that the language of the statute (Texas Property Code 53.154) provides that mechanic’s liens “may be foreclosed only on judgment of a court of competent jurisdiction.”  The Court of Appeals, reversing the trial court’s decision, noted that the use of the passive voice implied a meaning that mechanic’s liens may be enforced by the lienholder, thus giving the lienholder–not the court–the discretion.

Crawford Servs., Inc. v. Skillman Int’l Firm LLC

A former Halliburton employee who had worked at the company designing and manufacturing wellbore plugs left and formed his own company that designed and manufactured wellbore plugs.  Halliburton sued the former employee and his company.  Ultimately, a jury found in Halliburton’s favor, awarding it damages, and the trial court entered an injunction barring the former employee from using Halliburton’s trade secrets for eighteen months.

Not satisfied, Halliburton appealed, seeking a permanent injunction.  The Court of Appeals sided with Halliburton, holding that the trial court erred by refusing to enter a permanent injunction because the former employee failed to show that anything less than a perpetual injunction would protect Halliburton’s rights and “remove the competitive advantage obtained through the misappropriation.”  Halliburton Energy Servs., Inc. v. Axis Tech. LLC, 444 S.W.3d 251 (Tex. App.-Dallas 2014, no pet.)

In this wrongful foreclosure action, plaintiffs sued the law firm handling the foreclosure, alleging, among other things, fraud.  The trial court granted the law firm’s motion for summary judgment based on the attorney immunity doctrine, which generally provides that “an attorney’s conduct, even if frivolous or without merit, is not actionable as long as the conduct was part of the discharge of the lawyer’s duties in representing his or her client.”

The Court of Appeals reversed the trial court’s decision, however, because the attorney immunity doctrine does not extend to allegations of fraud.

Santiago v. Mackie Wolf Zientz & Mann PC

An April 2009 wildfire that damaged nearly 400 acres in Palo Pinto County led to a lawsuit in which a developer’s insurance company ultimately sought to pin the blame on Oncor Electric Company.  The insurance company’s theory of the fire was that an Oncor worker lit a cigarette and tossed it in some brush, igniting the blaze.  To support this theory, the insurance company found several expert fire reconstructionists who conducted tests and re-enactments and determined that the most likely cause of the fire was “the careless disposal of a cigarette” by the Oncor worker.

The trial court excluded the experts’ opinions, pointing to the fact that they did not have any “real experience” with wildfires and did not demonstrate a proper foundation to reach their conclusions.  On appeal, noting the deferential standard of review for the admission/exclusion of expert testimony, the Court of Appeals affirmed.

Club Vista Dev. II, Inc. v. Oncor Elec. Deliv. Co., LLC

In this commercial paper case, Jason Kang signed several checks made out to various businesses and drawn on the bank account of his business, Ever Construction.  Unfortunately, the checks ended up the hands of wrongdoer Kwan Sup Choi, who was not the named payee on the checks but took and cashed them at Lee’s Check Cashing.  When Kang found out that his intended payees did not receive their money, Lee’s Check Cashing was forced to bear the loss and pay them.

Lee’s, however, blamed Kang for the forgery and sued him and Ever Construction under theories of negligence and fraud.  After a bench trial, the trial court awarded judgment in favor of Lee’s, and Kang and Ever Construction appealed.  The Court of Appeals reversed, holding, among other things, that Kang and Ever Construction had no duty to ensure that the checks it wrote were only presented to third parties for payment by persons who were authorized to cash them.

Ever Constr. Corp. v. Su

 

A pathologist and his former employer sued each other over a covenant not to compete provision in the pathologist’s employment contract.  Among numerous issues before the Court of Appeals was whether the geographic scope of the non-compete provision was unreasonable.  The agreement provided that the pathologist was restricted from being employed by a practice that operates within 50 miles of Dallas County.

The pathologist argued that the scope of his non-compete was overly broad because he only worked in Dallas and Collin counties and because it was actually unlimited in scope since he was restricted from working for any practice that operates in Dallas, even if he worked far from the Dallas area.

The Court rejected those arguments and held that the geographic scope of his non-compete was not unreasonable, noting that the pathologist was also part of his former employer’s management team, causing him to be responsible for pathology practices across the Dallas area.  Consequently, the Court reasoned that “even if [the pathologist] were working in New York, for example, his management knowledge of and experience with appellants’ Dallas-area operations would be valuable to his new employer.”

Ameripath v. Hebert

In this products liability case, the plaintiffs alleged that Goodyear was grossly negligent with respect to its tire manufacturing practices at its North Carolina plant and that the design of the tire was defective because it failed to include a nylon cap ply.  Ostensibly to help prove their case, the plaintiffs sought to tour and videotape parts of Goodyear’s plant in North Carolina.  The trial court obliged, ordering Goodyear to allow plaintiffs’ counsel, expert witness, and a videographer to enter the facility and document the manufacturing process.

Goodyear resisted by filing a writ of mandamus challenging the trial court’s order permitting the tour.  The Court of Appeals sided with Goodyear, reasoning that the main reason the plaintiffs wanted to tour the facility was to create demonstrative evidence (namely, a video to show the jury), not to discover new information.  Because that is not a valid purpose to seek entry onto another party’s property, the Court granted Goodyear’s mandamus petition.

In re the Goodyear Tire & Rubber Company

In this landlord-tenant dispute, the tenants sued the landlord for wrongfully withholding their security deposit in violation of Section 92 of the Texas Property Code.  The trial court granted the tenants’ motion for summary judgment, and the landlord appealed.  The Court of Appeals reversed, finding that there was a disputed issue of material fact as to whether the tenants provided the landlord with a valid forwarding address where the landlord could provide the written notice required by the statute.

Franzin v. Sauty

Plaintiff sued defendant for breach of a lease agreement and unpaid rent. Shortly before the hearing on the plaintiff’s motion, the defendant’s counsel filed a motion for leave to file a late response.  The trial court denied the defendant’s motion and granted the plaintiff’s MSJ.  The Court of Appeals affirmed the trial court’s decision, noting that the defendant did not attach any evidence to its motion and also failed to address all of the relevant factors in its argument.

Dawn M. Brown v. Melissa 121 Partners, Ltd.

The only issue before the Court in this case was whether the trial court erred in denying the defendant’s motion to compel arbitration.  The plaintiffs signed up to be Independent Representatives (apparently, a type of sales rep) for the defendants.  As part of the online application process, plaintiffs clicked a box confirming that they agreed to the defendant’s terms and conditions.  Those terms and conditions contained a provision providing that any dispute between the parties would be resolved by binding arbitration.

It turns out that the Court recently upheld the exact same arbitration provision in a case against the same defendants.  Consequently, without much substantive analysis, the Court referenced its prior opinion and reversed the trial court, holding that there was a valid agreement to arbitrate between the parties.

Momentis U.S. Corp. v. Perissos Holdings Inc.

The issue in this case was whether the trial court erred in awarding attorneys’ fees to the defendant when the plaintiff dropped its claim under the Texas Theft Liability Act (“TTLA”)  a few days after the defendant filed a motion for summary judgment.

Under the TTLA, the prevailing party is entitled to recover attorneys’ fees.  In this case, the plaintiff brought a TTLA claim against the defendant.  When the defendant moved for summary judgment, the plaintiff must have realized that it was going to lose.  Consequently, the plaintiff amended its complaint and removed the TTLA claim, effectively nonsuiting it.  Thus, the plaintiff claimed that the defendant was not a prevailing party and therefore not entitled to attorneys’ fees.

The Court of Appeals affirmed the trial court’s decision to award attorneys’ fees, holding that a party is still a prevailing party if the nonsuit was taken to avoid an unfavorable ruling on the merits.  This result was further cemented by the fact that at the hearing on attorneys’ fees, plaintiff’s attorney acknowledged that by filing its nonsuit the plaintiff “basically, said ‘Uncle.'”

BBP Sub I LLP v. Di Tucci

Mr. and Mrs. Carpenter hired the law firm of Shaw & Lemon to represent them in a lawsuit against Holmes Builders.  The Carpenters agreed to pay Shaw & Lemon 40% of any recovery.  Shaw & Lemon, in turn, hired attorney Daniel Hagood to assist with the case.  In exchange for Mr. Hagood’s assistance, Shaw & Lemon agreed orally to pay him 25% of their 40% contingency fee.

Ultimately, the Carpenters obtained a judgment against Holmes for more than $2 million.  Rather than pay the judgment, however, Holmes filed for bankruptcy protection.  By this time, Mr. Shaw and Mr. Lemon had experienced a falling out and had parted ways (and sued each other).  Mr. Lemon, on his own, was then retained by the bankruptcy trustee to recover assets for Holmes’ bankruptcy estate, for which he would receive 34% of any assets recovered.  Significantly, as part of this arrangement, Mr. Lemon, on behalf of himself and his firm, waived any right to payment from the Carpenters.

It turns out that Mr. Lemon was fairly successful at recovering assets for the estate, as he recovered over $1 million.  As a result, the Carpenters received nearly $600,000 for their claim.  Once the Carpenters were paid, Mr. Hagood sought his cut of their recovery based on the agreement he had with Lemon and Shaw.

In this opinion, the Court of Appeals addressed several issues, one of which was whether Hagood had a valid breach of contract claim against Lemon.  Lemon argued that since neither he nor his now-defunct firm received any payment from the Carpenters, Hagood had no claim.  The Court rejected that argument, noting that “one who prevents or makes impossible the performance of a condition precedent upon which his liability under a contract is made to depend cannot avail himself of its nonperformance.”  Here, the Court noted that Lemon’s waiver of his firm’s right to recover from the Carpenters made impossible the performance of the condition precedent to Lemon’s liability under the agreement with Hagood, because “[a] duty to cooperate is implied in every contract in which cooperation is necessary for performance of the contract.”

Lemon v. Hagood

Among several issues on appeal in this dispute between a commercial landlord and tenant, the Court of Appeals considered whether the defendant could recover attorneys’ fees pursuant to the declaratory judgments act.  After the plaintiff sued the defendant for breach of contract for failing to construct ramps in compliance with the ADA, the defendant responded by requesting a declaratory judgment that he had no duty to pay for the ramps.  Because the defendant’s counsel admitted at trial that the issues raised in his declaratory judgment action would be resolved by the plaintiff’s breach of contract lawsuit, the court rejected the defendant’s attempt to recover attorneys’ fees, noting the rule that “a party cannot use the declaratory judgments act merely as a vehicle to obtain otherwise impermissible attorney’s fees.”

Cellular Sales of Knoxville, Inc. v. McGonagle

In this dispute between neighbors over a poorly placed fence, the victorious neighbors appealed the trial court’s decision denying them their court costs.  The case had already been up to the Court of Appeals once before, where the Court reversed the trial court and remanded the case “for entry of judgment consistent with our opinion and for consideration of the [successful neighbors’] request for attorney’s fees.”  On remand, the trial court refused to award court costs because the mandate from the Court of Appeals only referenced attorneys’ fees and made no mention of court costs.

The Court of Appeals again reversed the trial court, holding that the prevailing neighbors were entitled to recover their trial court costs pursuant to Rule 131 of the rules of civil procedure.  Although court costs were not specifically mentioned in the Court’s previous mandate, “the trial court retains its constitutional jurisdiction to perform duties collateral to and consistent with” that mandate.

Blaylock v. Holland

In this forcible detainer action, the trial court dismissed American Homes 4 Rent’s (AH4R) attempt to evict the defendant because AH4R could not prove that it had title to the property at issue.  Specifically, the trial court based its dismissal on the defendant’s argument that she had filed bankruptcy the day before AH4R bought the property and thus its purchase was void because it had violated the automatic stay.  The Court of Appeals reversed the trial court’s dismissal, because to prevail in a forcible detainer action, “a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession.”

American Homes 4 Rent Props. One LLC v. Ibarra

Hidden within this seemingly straightforward post-foreclosure forcible detainer action is an interesting evidentiary issue.  After purchasing the Martins’ home at a foreclosure sale, Fannie Mae sought to have them evicted by filing a forcible detainer action in County Court at Law.  The trial court ruled in favor of Fannie Mae, and the Martins appealed, arguing, among other things, that Fannie Mae did not introduce evidence to establish that it owned the property.

That issue turned on whether the substitute trustee’s deed (which showed that Fannie Mae owned the property) was admitted into evidence.  Apparently, when Fannie offered the substitute trustee’s deed into evidence, the Martins’ attorney objected to the second page of the document on the basis of hearsay and the trial court sustained his objection.  Later, however, Fannie’s attorney discussed and summarized the relevant provisions of the deed and made arguments about the deed as if it had been admitted into evidence.  Notably, the Martins’ attorney never objected to these statements, leading the Court of Appeals to conclude that the substitute trustee’s deed was, “for all practical purposes,” admitted into evidence.  Accordingly, the Court affirmed the trial court’s ruling.

Martin v. Fed. Nat’l Mtg. Ass’n

Mike Jabary obtained a commercial certificate of occupancy for a restaurant in Allen, Texas.  As it turns out, Mr. Jabary opened a hookah bar instead of a restaurant.  Consequently, the City of Allen revoked his certificate of occupancy.

Mr. Jabary sued the City, alleging both private and public takings.  The City filed a motion for summary judgment on the ground that, because Mr. Jabary had not exhausted his administrative remedies by filing an appeal with the City, his claim was not ripe.  The trial court granted the City’s MSJ, and Mr. Jabary appealed.  On appeal, the Court of Appeals affirmed the trial court’s decision, rejecting Mr. Jabary’s argument that appealing to the city would be futile.

Jabary v. City of Allen

Aamer Razi hired attorney Edwin Sigel to represent him in connection with criminal charges brought against him.  Sigel, concerned that Razi would not be able to pay his bills, worked out a deal in which Razi signed a power of attorney appointing Sigel as his agent generally, including over all matters regarding his residence condominium.  Sigel then transferred the condo to himself as trustee.  Apparently, the parties had different understandings of this arrangement: Sigel believed it was to provide security for Razi’s legal fees, while Razi thought Sigel was just going to take care of the condo.  After Razi fired Sigel and refused to pay his bills, Sigel sold the condo.

Razi then sued Sigel for breach of fiduciary duty and conversion, and moved for summary judgment, which the trial court granted. Sigel appealed, and the Court of Appeals reversed, finding that the trial court erred in granting summary judgment because fact issues existed regarding whether Sigel explained that Razi was in effect signing over his condo as collateral.

Sigel v. Razi

In this breach of contract case involving the sale of an apartment complex, the buyer refused to proceed to closing because the seller failed to provide it with a pamphlet from the EPA regarding lead-based paint, which was required by the contract.  The seller sued the buyer, and the trial court ruled in the seller’s favor because even though the contract did require the seller to provide the pamphlet, the buyer waived that breach by failing to object in writing as required by another provision in the contract.  The Court of Appeals affirmed.

Winston Acquisition Corp. v. Blue Valley Apartments Inc.

Steadfast Insurance Company entered into an agreed judgment with appellants and later filed an application for turnover and appointment of a receiver in aid of judgment.  Steadfast set its application for hearing but did not provide notice to appellants.  At the ex parte hearing, Steadfast represented to the trial court that it had given appellants notice, and the trial court granted its application.  Not surprisingly, the Court of Appeals set aside the turnover order and appointment of receiver for failure to provide notice.

Mac23, Inc. v. Steadfast Ins. Co.

In an attempt to collect on a $3.6 million promissory note, Graham Mortgage Corporation filed suit against several parties, including appellant Barbara Mills, who had executed a personal guaranty for up to $1.8 million (half of the total amount).  Graham Mortgage successfully moved for summary judgment against Ms. Mills, and the trial court entered a judgment against her for $2.8 million plus interest and attorneys’ fees.  Ms. Mills appealed, arguing that the guaranty limited her liability to $1.8 million, plus fees and expenses.

Graham Mortgage did not contest that there was an error in the amount of the judgment, but instead argued that the Court of Appeals could simply modify the amount of the judgment pursuant to Rule of Civil Procedure 46.5, which allows for voluntary remittitur.  The Court disagreed, noting that Rule 46.5 “only allows voluntary remittitur after a court of appeals has reversed the trial court’s judgment because of a legal error affecting only part of the damages awarded.”

Mills v. Graham Mortgage Corp.

An employer sued its former employee for misappropriating funds from the company, alleging multiple causes of action, including breach of contract, fraud, and breach of fiduciary duty.  The jury returned a verdict in favor of the employer on all counts and awarded economic and punitive damages.  The trial court also awarded the employer attorneys’ fees based on its breach of contract claim.

On appeal, among other things, the employee argued that the trial court’s damages award violated the one-satisfaction rule, which limits a plaintiff who suffers a single injury to damages based on only one cause of action.  The Court of Appeals agreed, noting that “when a defendant’s acts result in a single injury and the jury returns favorable findings on two or more theories of liability, the plaintiff has the right to a judgment on the theory entitling him to the greatest or most favorable relief.”  Consequently, the Court set aside the attorneys’ fees and statutory damages awarded by the trial court, and awarded the employer economic and exemplary damages under its breach of fiduciary duty claim (which does not provide for the recovery of attorneys’ fees) because that result gave the employer its largest recovery.

McCullough v. Scarbrough, Medlin & Assocs.

The plaintiff sought a declaration that it has an easement by necessity to cross the defendant’s property to gain access to County Road 134.  Property law buffs (or those studying for the bar exam) will recall that an easement by necessity is established when there is:

  1. unity of ownership of the dominant and servient estates prior to severance;
  2. necessity of a roadway; and
  3. existence of the necessity at the time of the severance of the two estates.

The resolution of this case turned on the third element–specifically, whether CR 134 existed when the two tracts were severed nearly 150 years ago in 1866.  Because the plaintiff did not meet its burden of establishing that CR 134 was being used at that time, the Court of Appeals affirmed the trial court’s finding that the plaintiff does not have an easement by necessity across the defendant’s property to access CR 134.

Staley Family Partnership v. Stiles

Trinity Structural Towers, Inc. sued two related companies: 1) Suzlon Wind Energy Corporation (Suzlon Wind), a Delaware corporation with its principal place of business in Texas, and 2) Suzlon Energy Company (Suzlon India), Suzlon Wind’s India-based parent company.  Trinity sued both defendants for breach of contract and several related claims.  Suzlon India filed a special appearance, arguing that it was not subject to personal jurisdiction in Texas, which the trial court denied.

On interlocutory appeal, the Court of Appeals reversed the trial court and dismissed Suzlon India from the case for lack of personal jurisdiction.  Even though one of Suzlon India’s employees signed the contract at issue, the evidence was clear that the contract was between Trinity and Suzlon Wind, not Suzlon India.  The Court also rejected Trinity’s argument that Suzlon India was acting as Suzlon Wind’s agent, noting that Trinity did not meet its burden under Texas law to prove an agency relationship.

Suzlon Energy Ltd. v. Trinity Structural Towers Inc.

In this whistleblower lawsuit, Ginger Weatherspoon alleged that the Office of the Attorney General (OAG) retaliated against her and ultimately terminated her employment after she reported that she was pressured to sign a false affidavit.   According to Ms. Weatherspoon, the affidavit was going to be used to support a judicial misconduct complaint against a district judge in Dallas (apparently, Judge David Hanschen).

The OAG sought to have Ms. Weatherspoon’s case dismissed based on sovereign immunity, and moved for summary judgment on that basis.  The Texas Government Code waives sovereign immunity for claims brought under the Texas Whistleblower Act, but, in order for a claim to fall within the purview of that statute, the alleged conduct must be reported to “an appropriate law enforcement authority.”  The OAG argued that Ms. Weatherspoon did not make her report to an appropriate law enforcement authority because she reported the alleged conduct only to her division head in the Child Support Division of the OAG.  The Court of Appeals disagreed, and upheld the trial court’s decision to deny the OAG’s Motion, because Ms. Weatherspoon’s division head was required to forward her report to the OAG’s Office of Special Investigations–an appropriate law enforcement authority.

Office of Attorney General v. Weatherspoon, No. 05-00632-CV

Cornerstone Healthcare Group Holding, Inc., a provider of post acute care hospital services, was pursuing acquisition opportunities of rehabilitation facilities in Texas.  In the midst of these efforts, several of its executives left the company.  Around the same time, New Reliant, a Delaware limited liability company, acquired a rehabilitation hospital in Texas called “Old Reliant.”  Cornerstone filed suit against New Reliant and a few other entities that had indirect ownership stakes in New Reliant via a chain of subsidiaries, alleging that several of Cornerstone’s recently-departed executives had usurped a corporate opportunity from Cornerstone.

The entities with ownership stakes in New Reliant filed special appearances, asserting that the court lacked personal jurisdiction over them.  Cornerstone argued that the entities were subject to jurisdiction in Texas based on their indirect ownership interest in New Reliant–a company doing business in Texas–and the fact that they held 100% of the stock of every entity involved in the purchase of the hospitals.  The entities argued that they were separate companies (based in Delaware) and that their only contact with Texas was their passive, indirect ownership interests in New Reliant. The trial court granted the entities’ special appearances, and Cornerstone appealed. The Court of Appeals affirmed, rejecting Cornerstone’s argument that the subsidiaries in between the entity defendants and New Reliant should be ignored.  The Court further explained that nothing in the record suggested “that the degree of control exercised by appellees is greater than that normally associated with with common ownership and directorship.”

Cornerstone Healthcare Group Holding, Inc. v. Reliant Splitter, L.P. et al., No. 05-11-01730-CV

In this attorney malpractice case, a client sued his lawyer for malpractice and a number of other related causes of action.  The parties settled the case at mediation and signed a settlement agreement requiring the lawyer to sign an agreed judgment to secure payment of the settlement amount.  The client’s attorney prepared the agreed judgment and sent it to the lawyer’s attorney, but, after several attempts, never received a response.  As a result, the trial court re-opened the case (which had been dismissed due to the settlement), set it for a bench trial, and sent notice of the trial setting to both parties.

At the bench trial, neither the lawyer nor his attorney showed up, and the trial court awarded the client damages in an amount that was more than three times the amount of the settlement.  The lawyer then filed a motion for a new trial.  His attorney acknowledged, however, that he had received notice of the trial but ignored it because he thought that it was an “erroneous” notice since the case had settled.  The trial court found this excuse insufficient and denied the motion.  On appeal, the Court of Appeals agreed, and, although it reversed some of the damages awarded to the client, held that it was within the trial court’s discretion to conclude that the lawyer and his attorney “failed to appear for trial as the result of intentional conduct or conscious indifference.”

McLeod v. Gyr, No. CC-11-02708-B

Soon after the Plaintiff was sued for an alleged debt, she received a letter from a lawyer soliciting her to speak with him about representing her in the lawsuit.  The attorney’s letter violated a Texas law that made it a crime for lawyers to solicit clients within 31 days of a lawsuit being filed against them.  The Plaintiff brought a civil action against the lawyer pursuant to the 2012 version of the Texas Civil Barratry Statute, which allowed plaintiffs to bring civil barratry claims against attorneys who violated “the laws of this state.”

The trial court granted the lawyer’s motion for summary judgment, based on its findings that the Civil Barratry Statute was unconstitutional and that liability under the statute is predicated upon a criminal prosecution or conviction.  On appeal, the Court of Appeals reversed, holding that the 2012 statute does not require a criminal conviction.  Additionally, the Court overturned the trial court’s holding that the statute was unconstitutional, because deciding the constitutionality of a criminal statute requires the participation of a party “with authority to enforce” the law, which in this case was the Dallas County District Attorney.

Shearer v. Reister, No. 05-12-01475-CV

In an interesting case on the scope of “minimum contacts,” the Court of Appeals held that serving as the representative plaintiff in a nationwide class action (with members from Texas) against a Texas company was not sufficient to create minimum contacts for purposes of personal jurisdiction.

The case arose out of a nationwide class action that the Appellees, as class representatives, filed in Illinois against King Supply Company, LLC alleging violations of the Telephone Consumer Protection Act (TCPA).  King settled the class action for $20 million, but as part of the settlement the Appellees covenanted that, except for $200,000 paid by King, their only source of payment would be King’s insurance policies.  King’s Texas-based insurance companies (Appellants) then filed a declaratory action in Dallas against Appellees seeking a declaration that they had no duty to defend or indemnify King.

Appellees filed a special appearance contesting personal jurisdiction, which the trial court granted.  Appellants appealed, arguing that by representing a nationwide class (12% of which were Texas residents) against a Texas company and seeking to recover funds from Texas insurance policies, Appellees’ contacts with Texas were sufficient to warrant personal jurisdiction over them.  The Court of Appeals disagreed, concluding that the evidence failed to show that Appellees “purposefully availed themselves of the privilege of conducting activities in Texas, thus invoking the benefits and protections of Texas law.”

Nat’l Fire Ins. Co. v. CE Design, Ltd., No. 05-13-00720-CV

Speed Boats of Texas brought suit against Fountain Powerboats and obtained a default judgment.  Fountain then filed a restricted appeal in which it sought to set aside the default judgment by arguing that the record did not establish that the secretary of state served Fountain with process.   The Court of Appeals agreed.  Because the record did not “affirmatively show that the secretary of state forwarded a copy of the process to the defendant,” the Court set aside the default judgment and remanded the case back to the trial court.

Fountain Powerboats v. Speed Boats of Texas, No. 05-13-006570-CV

The plaintiff sued his former employer, El Paisano, for unpaid wages and unpaid overtime.  After four unsuccessful attempts by a process server to serve El Paisano at the address of its registered agent, the plaintiff served the Texas Secretary of State, who then forwarded the process to the same address via certified mail.  That attempt at service also failed, and the process was returned to the secretary of state with the notation “unclaimed.”  The plaintiff then moved for a default judgment, which the trial court granted.

El Paisano eventually learned of the default judgment and sought to have it set aside.  The trial court denied its motion for a new trial, and El Paisano appealed.  El Paisano argued, among other things, that it was not properly served because the secretary of state did not send the process to its principal place of business.  The Court of Appeals rejected that argument and upheld the default judgment, noting that the plaintiff was entitled to use substituted service on the secretary of state and that the secretary of state had no obligation to send it anywhere other than the address of El Paisano’s registered agent.

El Paisano Nw Hwy v. Arzate, No. 05-12-01457-CV

In a case that 600 Commerce believes is the first successful attempt at a permissive interlocutory appeal since the inception of the blog, the Court of Appeals has affirmed the trial court’s application of Texas law to a personal guaranty. (Check out https://600commerce.com/?s=permissive&submit=Search to see instances where the Court declined to hear interlocutory appeals)

Coca-cola had extended credit to Robert Winspear’s business pursuant to a credit agreement and a personal guaranty from Winspear.  The credit agreement contained a choice of law provision in favor of Georgia law.  The guaranty was included on the same page as the credit agreement, but it did not contain a choice of law provision.  After Winspear’s business defaulted, Coca-Cola sued Winspear in Texas (where he and his business were located and where the agreements were executed) on the guaranty.  Winspear filed a motion seeking to apply Georgia law based on the choice of law provision in the credit agreement, but the trial court denied his motion and held that Texas law applied.

Winspear sought a permissive interlocutory appeal based on his contention that if Georgia law applied to the guaranty, it would be unenforceable and thus dispose of the entire case.  Although the Court agreed to hear the interlocutory appeal, it ultimately affirmed the trial court’s decision because the choice of law provision in the credit agreement did not apply to the separate guaranty.

 

Winspear v. Coca Cola, No. 05-13-00712-CV

Southwestern Christian College fired its track coach after he allowed two ineligible athletes to run in a meet.  Later, when the college’s track program got audited, the athletic director chose not to respond and accepted a ban from that year’s national championship, because the penalty for running ineligible athletes would have been worse than the penalty for failing to respond to an audit request.  The athletic director then told the track team that the reason they could not compete in the national championship meet was because the coach ran ineligible athletes.  The coach disputed that explanation.  He claimed that the audit and resulting ban were due to the athletic director’s failure to submit certain forms.

The coach sued the college, the athletic director, and the college’s president, alleging, among other things, that the athletic director and college president had made slanderous statements that tarnished his reputation in the track and field community and prevented him from getting another job.  The trial court granted the defendants’ motion for summary judgment and dismissed all of the coach’s claims.  The Court of Appeals, however, reversed the trial court’s dismissal of the coach’s slander claims against the college and the athletic director, finding that the coach had raised a material fact issue as to the truth of the athletic director’s statements to the track team.

Porter v. Southwestern Christian College, No. 05-12-01737-CV

The DFW Airport Board sought to incentivize taxicabs powered by natural gas by giving them “head of the line” privileges at DFW.  In 2009, the Airport Board passed a resolution to that effect, and the Association of Taxicab Operators (the “Association”) brought suit, seeking a declaration that the resolution was void.  The trial court ultimately sided with the Association and declared the resolution as passed void.  The Airport Board did not appeal that ruling.

Instead, in 2012, the Airport Board passed a second, similar resolution, which gave “head of the line” privileges to “taxicab operators who invest in a CNG operated taxicab.”   Once again, the Association challenged the resolution, and again the trial court declared the resolution void.  This time, the Airport Board appealed.  The Court of Appeals reversed the trial court’s ruling, holding that the Airport Board has the exclusive power to operate DFW Airport, which includes the power to manage the flow of ground transportation.  The Court also rejected the Association’s argument that the trial court’s ruling on the first resolution was binding in this case under the doctrine of collateral estoppel.  Because the court’s ruling on the first resolution only applied to that resolution as passed, it did not determine whether the second resolution was valid.

DFW Airport Bd. v. Ass’n of Taxicap Ops., No. 05-12-00777-CV

In 2003, Wayne Brown opened a brokerage account at Southwest Securities.  He listed his step-mother as the co-applicant on the account, and he selected “Joint Tenancy with Right of Survivorship” as the type of account.  After Wayne’s death, his wife brought a lawsuit against Wayne’s step-mother, challenging her right of survivorship and seeking the funds in the account.  The trial court granted summary judgment in favor of the step-mother, and the Court of Appeals affirmed, holding that Wayne and his step-mother owned the account as joint tenants with a right of survivorship.  Specifically, the Court held that parties are not required to use the exact language from the Texas Probate Code (now called the Texas Estates Code) to create a valid right of survivorship.  Instead, “[a]ll that is required to make an interest ‘survive’ to another party is a word or phrase expressing that the interest of the deceased party will survive to the surviving party.”

Mims-Brown v. Brown, No. 05-12-01132-CV

A Dallas doctor brought lawsuits against UT Southwestern and Parkland Hospital, alleging that they retaliated against him after he raised concerns that some of their billing practices were running afoul of Medicaid laws.  The trial court granted the defendants’ plea to the jurisdiction and dismissed both lawsuits on the basis of sovereign immunity. In affirming, the Court of Appeals rejected the doctor’s argument that the defendants had waived sovereign immunity, and held that a state entity cannot waive sovereign immunity by its conduct.  The Court specifically noted that “the Texas Supreme Court has never ruled that a doctrine of waiver of sovereign immunity by conduct exists.”

Gentilello v. UTSW, 05-13-00149-CV

Gentilello v. DCHD, 05-13-00150-CV