A wall in repose

Brooks sued CalAtlantic about the construction of a retaining wall; CalAtlantic argued that the suit was barred by the 10-year statute of repose in Tex. Civ. Prac. & Rem. Code § 16.069. The Fifth Court affirmed summary judgment for the defense. Procedurally, the Court concluded that the plaintiff had the burden to establish an exception to the statute once the defendant showed its applicability, citing Ryland Group v. Hood, 924 S.W.2d 120 (Tex, 1996). Substantively, the Court distinguished plaintiff’s authority, observingL “[T]here is no evidence of [defendant’s] awareness that deviating from the Civil Plans could create property defects and dangerous conditions. And neither [cited case] supports Brooks’s contention that proof of deviation from construction plans, alone, is evidence of willful misconduct.” Brooks v. CalAtlantic Homes of Texas, No. 05-16-01203-CV (Oct. 9, 2017) (mem. op.)

Stand in the place where you are, unless you should amend.

Defendant challenged plaintiff’s standing in a dispute about nursing home care, arguing: “The plaintiff must be personally injured—he must plead facts demonstrating that he, himself (rather than a third party or the public at large), suffered the injury.” The Fifth Court agreed, focusing on the pleading at the time of the summary judgment hearing: “Patricia and Delois’s original petition was their pleading on file at the time of the hearing. The original petition does not allege the individual injuries Patricia claims on appeal. Although the prayer in the petition requests that a judgment include $5,000 for “Patricia A. Shaw—Agent Fee’s” [sic] and $39,000 for “Home Health Care[,]” the claims in the original petition concern the economic and physical injuries that Delois suffered. Because Patricia did not plead her individual claims in  the original petition, she may not now urge these claims and supporting arguments on appeal.” Shaw v. Daybreak, Inc., No. 05-16-01251-CV (Sept. 20, 2017).

Late summary judgment responses cause problems.

The plaintiff in B.C. v. Steak & Shake filed her summary judgment response a day late. The panel majority rejected her argument that the trial court had accepted the filing by including this language in the order granting summary  judgment: “After considering the pleadings, evidence, and arguments of counsel, the Court finds that the Motion should be granted.” Accordingly, because the record lacked an “affirmative indication” that it considered the late-filed evidence or granted leave to file it, the majority presumed that the trial court had not considered it. The majority and a dissent disagreed on whether the Court “may consider [plaintiff’s] appellate issues that assert the legal insufficiency of [defendant’s] motion for summary judgment.” No. -5-14-00649-CV (Aug. 30, 2017).

False start on defamation claim.

Football legend Deion Sanders sued his ex-wife for defamation; the trial court granted summary judgment on liability and entered judgment for $2.2 million after a bench trial on damages. The Fifth Court reversed, holding that this testimony was too conclusory to justify a summary judgment on the issue of malice:

“At the hearing, Deion was asked, ‘Does Pilar Sanders know that these statements are untrue,’ and he answered ‘Yes.’ In his affidavit, Deion stated, ‘Defendant knew or should have known that each of the defamatory statements . . . were [sic] false . . . I have previously so testified.”

Finding no other evidence or argument sufficient to sustain the judgment as to malice, the Court remanded. Sanders v. Sanders, No. 05-16-00248-CV (Aug. 29, 2017) (mem. op.)

I think we agreed to arbitrate.

thinkerDefendants moved to compel arbitration, admitting that they could not find the relevant construction contract, but stating in an affidavit that it would have used a standard form that contained an arbitration clause that would govern the matter in dispute. The trial court denied their motion; the Fifth Court reversed, noting two technical issues. First, while plaintiffs objected to various parts of the affidavit, “appellees did not obtain a
ruling on this objection. An objection that an affidavit contains hearsay is an objection to the form of the affidavit. The failure to obtain a ruling from the trial court on an objection to the form of an affidavit waives the objection.” Second, while plaintiffs provided their own affidavits “stating they ‘do not recall’ signing any documents other than documents relating to financing and ‘do not recall’ signing documents requiring arbitration” – “To have probative value, an affiant ‘must swear that the facts presented in the affidavit reflect his personal knowledge[,]’ so “[a]n affiant’s belief about the facts is legally insufficient.” Ladymon v. Lewis, No. 05-16-00776-CV (July 21, 2017) (mem. op.)

. . . a dream, a breath, a froth of fleeting summary judgment . . .

dandelionA famous Shakespeare poem laments: “What win I, if I gain the thing I seek?
A dream, a breath, a froth of fleeting joy. . . . ” These thoughts could also be the lament of the landlord / appellee in Analytical Technology Consultants v. Axis Capital, who obtained a summary judgment against a tenant in default on a lease. Unfortunately, while the tenant did not respond to the summary judgment motion, it pointed out in a motion for new trial that the landlord had failed to include a credit against the accelerated balance as required by the lease’s remedies provision. The landlord sought to preserve its judgment on appeal by pointing to the evidence it submitted in response to the motion for new trial, which it said included the relevant calculation, but the Fifth Court disagreed: ” An attachment to a motion for new trial is not evidence. To constitute evidence, the attachment must be introduced at the hearing on the motion for new trial. If there is no hearing, then the document never becomes evidence.” (citations omitted). No. 05-16-00281-CV (June 19, 2017) (mem. op.)

When I was one-and-twenty, I heard a wise man say . . .

prime timeA quick reminder on summary judgment procedure appears in Autosource Dallas LLC v. Addison Aeronautics LLC:

  • “A movant is required to provide twenty-one days’ notice when setting a summaryjudgment. This twenty-one day requirement is designed to give
    the nonmovant sufficient time to prepare and file a response for the original setting.”
  • “The twenty-one-day notice requirement does not however apply to a resetting of the hearing, so long as the nonmovant received twenty-one days’ notice of the original hearing.”
  • For a recheduled hearing, the movant “needed only to give reasonable notice that the hearing on its summary judgment had been rescheduled. Reasonable notice means at least seven days before the hearing because a nonmovant
    may only file a response to a motion for summary judgment not later than seven days prior to the date of the hearing without leave of court.”

No. 05-16-00838-CV (June 9, 2017) (mem. op.)

Air leaks out of negligence claim

tireAWD brought a flat tire to Logan & Son for repairs. Jaimes, who worked for Logan * Son, was injured while working on the tire, and contended that his employer, Logan & Son, was an independent contractor of AWD. The Fifth Court disagreed: “The evidence showed that AWD was simply a customer who did not have a right to control any aspect of Logan and Son’s work. When Jaimes was asked at his deposition what he was claiming AWD did to cause his injuries, he [only] said, ‘they brought the truck.'” Jaimes v. Lozano, No. 05-16-00165-CV (April 14, 2017) (mem. op.)

Conclusory affidavit in attorney fee proveup

A law firm moved for summary judgment as to an unpaid balance, attaching an affidavit which in turn had several invoices attached. The Fifth Court reversed a summary judgment for the firm, noting that the affidavit did not (1) attach a complete set of invoices, (2) was missing entire pages, (3) only reflected that they were sent to one of the relevant parties, and (4) did not attach the computer records used to calculate the net balance. Thus, “[w]e conclude that without the invoices or computer records [the witness] relied on to support his affidavit, the affidavit was conclusory.” Acrey v. Kilgore & Kilgore PLLC, No. 05-15-01229-CV (March 30, 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.)