I recently participated in a mock reargument of Marbury v. Madison (right), albeit changed from the original to (1) actually have discussion about judicial review (2) actually have participation by my character, Attorney General Levi Lincoln, who in “real life” was ordered to stay silent by a highly irritated President Jefferson. In case you should ever need such a thing, here are my notes about the case against judicial review, which rely heavily upon an outstanding 1969 Duke Law Journal article by Professor William Van Alstyne.
Representatives of the Estate of Samuel Dorfman moved to dismiss tort claims under the Texas anti-SLAPP law, brought by professionals who did work for the Estate and complained that they had been defamed and disparaged in comments about their work. Applying the newly-decided opinion in Hersh v. Tatum , 2017 WL 2839873 (Tex. June 30, 2017), the Fifth Court held that the trial court erred in determining that “the Estate was not entitled under the TCPA to seek dismmissal of appellees’ claims because the Estate denied making the communications that form the bases of those claims,” and remanded for further consideration of the TCPA motion. Dorfman Estate v. Proactive Inventory, No. 05-16-01286-CV (July 11, 2017) (mem. op.)
The Dallas Morning News reports the recent death of former Dallas Court of Appeals Justice David Lewis, who resigned from that Court last year to combat alcoholism and depression. The story sounds a warning note for all in the legal profession about the importance of mental health.
The long-running dispute between the City of Dallas and the Topletz family, which owns a number of residential rental properties, reappeared in the case of Topletz v. City of Dallas. The Fifth Court substantially affirmed a temporary injunction in favor of the City and a class of tenants, reversing as to one provision that “prohibits appellants from raising rent, properly initiating eviction proceedings, or evicting . . . without leave of the trial court.” This provision was overly broad because it “enjoins activities the appellants otherwise have a legal right to perform . . . .” No. 05-16-00741-CV (April 6, 2017) (mem. op.) (citing, inter alia, Webb v. Glenbrook Owners Ass’n, Inc., 298 S.W.3d 374 (Tex. App.–Dallas 2009, no pet.)).
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.)
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.)
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.)
The first ever Bench-Bar conference for the Northern District of Texas will be held on January 27 at the Four Seasons in Las Colinas. Here is the schedule and registration information; it looks to be a great program and the beginning of a strong tradition.
Governor Abbott has appointed Dallas attorney Jason Boatright to the vacancy on the Fifth Court; more information is available in the official press release.