Lost in Translation

A premises liability case between tenant and landlord highlights a potential problem in obtaining a proper waiver of trial by jury. Concerned that the jury would be unable to understand the pro se defendant’s broken English, the trial court first requested a translator. After being informed that no translator would be available for another week, the court continued the trial, then asked the defendant whether he would agree to waive a jury. The defendant agreed, but was not asked to confirm his waiver a week later when the case proceeded to a bench trial with the aid of an interpreter. The trial court awarded $70,000 in damages to the plaintiff. On appeal, the defendant (now also represented by counsel) argued that the jury waiver was invalid because it was made before he had obtained the services of the court-appointed interpreter. The Court of Appeals agreed, holding once the trial court has exercised its discretion to appoint an interpreter, the defendant was entitled to have that interpreter for all purposes, including the decision whether to waive his constitutional right to a jury trial. Without the interpreter, the Court of Appeals could not conclude that the defendant had knowingly waived that right.

Trejo v. Huy, No. 05-14-00310-CV

Return to Sender

An insurance coverage dispute highlights a key requirement of the venerable mailbox rule — namely, that it doesn’t apply when the filing party (in this case, both pro se and temporarily incarcerated) does not affix sufficient postage to have his summary judgment response delivered by the postal service. In the absence of a properly filed response, the Court of Appeals held that the trial court had correctly granted the insurer’s traditional and no-evidence motions for summary judgment.

Wilson v. Colonial County Mut. Ins. Co., No. 05-14-00220-CV

UpdateWe did it again!

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Hearing on Motion for New Trial Not Necessary

In this bill of review concerning an eviction for unpaid rent, the Court of Appeals found, among other things, that the trial court did not abuse its discretion by not holding a hearing on a motion for new trial.  The Court explained that “a trial court is required to conduct a hearing on a motion for new trial only when the motion presents a question of fact upon which evidence must be heard.”

Carson v. El Capitan Apartments

Snail Mail

Providence Bank sued for a deficiency judgment after the bank foreclosed on one of the borrower’s properties. The parties agreed to settle that claim, and so the bank filed a notice of nonsuit by mail. But on the same day the bank mailed in the nonsuit, the borrower filed brand new counterclaims against the bank on other properties. So the question became whether the bank’s nonsuit terminated the entire case before the filing of the counterclaims. The Court of Appeals answered that question in the negative.  Although TCRP 5 deems a document to be filed on the date it is mailed, that rule only applies to documents that have to be filed by a particular deadline. By contrast, a nonsuit under Rule 162 can be filed at any time before the close of the plaintiff’s evidence. Accordingly, the nonsuit was not deemed filed at the time of mailing, and by the time it arrived at the courthouse for filing, the borrower’s counterclaims were already part of the lawsuit and could move forward as part of the case.

FP Asset Group, LP v. Providence Bank, No. 05-12-01728-CV

Dialing Back the Shotgun Approach to No-Evidence Summary Judgment Practice

In a rare en banc opinion, the Court of Appeals has clarified the standards for asserting a no-evidence motion for summary judgment. The owners of Gloria’s restaurants sued one of their long-time managers and his business partner after the manager left to start a new restaurant, Mario Sabino’s. The new restaurant served similar food, and Gloria’s claimed that the defendants had misappropriated trade secret recipes and tortiously interfered by recruiting Gloria’s employees. The defendants filed a motion for summary judgment that asserted Gloria’s had no evidence of “one or more” of the elements of Gloria’s claims. The motion listed all the elements of each of the claims, but failed to specifically identify which of those elements were being challenged. Gloria’s therefore attempted to respond with evidence of each element of its entire case, but the trial court granted the defendants’ motion on all claims.

The majority opinion rejected that shotgun approach to summary judgment practice. Rule 166a(i) and its supporting comments require the movant to specifically state which elements of a claim are being challenged, and the defendants’ invocation of “one or more” of the elements of Gloria’s case failed to meet that threshold. The Court declined to interpret “one or more” as meaning “each and every,” as the defendants argued on appeal. The Court also stressed that a no-evidence motion is intended to assess the proof of an element that the movant believes in good faith to be unsupported by evidence. In seeking to challenge every aspect of Gloria’s claims, the defendants sidestepped the specificity requirement of Rule 166a(i) and improperly forced Gloria’s to prove up its entire case.

The majority also rejected the defendants’ argument that Gloria’s had waived its complaint by responding to the motion in its entirety, following a line of cases that permit a party to challenge the legal sufficiency of a summary judgment motion for the first time on appeal. Justice Evans O’Neill dissented based on that waiver point, arguing that the motion met the “fair notice” pleading standard, that Gloria’s attempt to meet all the elements of its case demonstrated it understood what was being challenged, and that Gloria’s should have objected or specially excepted to the motion in order to raise the issue and preserve it for appeal.

Jose Fuentes Co., Inc. v. Alfaro, No. 05-11-00228-CV (majority)

Justice O’Neill’s dissenting opinion

Cite, Please?

In 2008, the mother of plaintiff Bich Nguyen purchased a life insurance policy from Allstate, representing that she had not been diagnosed with a lung disorder in the last 10 years or treated by a doctor in the last five years. The next month, the mother was diagnosed with lung cancer, and she died just a few months later. Allstate investigated, and found that the mother had a history of lung problems, treatment, and hospitalization. Allstate therefore rescinded the insurance policy, and Nguyen filed suit.

Allstate moved for summary judgment, and Nguyen responded with 650 pages of summary judgment evidence. Allstate objected, asserting that Nguyen had failed to meet her burden of actually demonstrating where her controverting evidence could actually be located in those voluminous documents. The trial court and the court of appeals both agreed. While Nyugen’s brief contained a 28-page “Real Factual Background,” that section failed to reference any of the summary judgment evidence in support of her version of the facts, and elsewhere simply referred generally to lengthy documents in support of her claims. Because citing generally to voluminous summary judgment evidence is not sufficient to raise an issue of fact to defeat summary judgment, and because Allstate had met its own summary judgment burden, the court of appeals affirmed the trial court’s decision.

Nguyen v. Allstate Ins. Co., No. 05-11-01120-CV

Don’t Ignore Motions for Summary Judgment

The Court affirmed a summary judgment in favor of Frost Bank on counterclaims related to a loan default. TAM failed to pay off a loan it received from Frost by the maturity date stated in the written loan agreement. Frost setoff part of the amount due with money from TAM’s operating account and sued for the remainder. TAM counterclaimed, alleging that Frost had orally extended the maturity date in a meeting with TAM’s representative and that Frost’s wrongful setoff caused TAM significant damage. Frost moved for, and TAM failed to challenge, traditional summary judgment on its breach of contract claims, which the court granted based primarily on the written loan agreement. It then granted no-evidence summary judgments dismissing TAM’s counterclaims related to the alleged oral extension. TAM appealed, challenging the trial court’s judgment on TAM’s counterclaims for breach of contract, promissory estoppel, negligent misrepresentation, fraud, conversion, and wrongful setoff.

On appeal, the court held that because TAM did not challenge the traditional summary judgment on Frost’s breach of contract claim, the trial court’s judgment as to the enforceability of the written agreement between TAM and Frost was binding. Thus, TAM’s corresponding counterclaims for breach of contract, negligent misrepresentation, and fraud, which were based on the alleged oral extension, failed due to the written agreement’s enforceability. The court agreed that there was no evidence that TAM relied on the alleged oral extension in its decision to deposit more money into the operating account, so TAM’s promissory estoppel claim also failed. And because TAM’s conversion and wrongful setoff claims required that TAM be entitled to possession of the funds in the operating account, and thus relied on the success of at least one of TAM’s other failed counterclaims, those claims likewise failed.

Trevino & Associates Mechanical v. Frost National Bank, No. 05-11-00650-CV

21-Year-Old Default Judgment Revived

The court affirmed a summary judgment reviving a default judgment entered against Bartz in 1989. Randall brought this action to revive it in 2010, providing affidavit evidence purportedly showing that she procured a writ of execution to be served on Bartz at his last known address in 1999, thereby extending the time to revive and enforce the judgment until 2011. The court granted Randall’s motion for summary judgment, reviving the default judgment.

On appeal, Bartz argued that Randall failed to show that her revival action was timely. The court noted that Randall had the burden to show that a writ was prepared and issued by the court clerk and delivered to the proper officer for execution within the 10-year statutory time period. The evidence showed that Randall had a writ issued just inside of 10 years after the judgment and that the judgment thus became dormant in 2009, ten years after the writ issued. Randall’s action to revive the judgment was then filed less than two years after the judgment became dormant, so the action was timely. Finally, when the writ was returned due to a bad address Bartz supplied, Randall had no obligation under the statute extending the life of the judgment to ensure actual service.

Bartz v. Randall, No. 05-11-00836-CV

16 Months Is Enough

In February 2008, Booklab sued Konica over the faulty printer it had purchased from Konica.  Sixteen months after the suit began, Konica filed a “no evidence” summary judgment motion on Booklab’s damages claim.  Booklab objected, contending that the motion was improper because it had not had enough time for discovery.  The trial court granted Konica’s motion and Booklab appealed.

The main issue on appeal was whether Booklab’s time for discovery had been adequate.  Booklab argued that its case was “complex”–thus requiring an extended discovery period.  It also asserted that the trial court’s established discovery period had not expired by the time Konica had filed its motion.  The court of appeals rejected both of these arguments.  Because determining whether adequate time for discovery is so fact specific, it held that “the rules do not require that the discovery period applicable to the case have ended before a no-evidence summary judgment may be granted.”  It also rejected Booklab’s claim that the case was complex, finding that Booklab’s damages claim required only that it prove a loss of business opportunities with its own clients.  It noted that Booklab could not explain why discovery of Konica’s employees and executives was necessary to its claim.

Booklab Inc. v. Konica Minolta Business Solutions, Inc., No. 05-10-00095

Another Pro Se Prevails

A pro se defendant has managed to reverse a summary judgment granted against him by the trial court.  In a very short memorandum opinion, the court of appeals held that the plaintiff’s traditional motion summary judgment failed to identify the specific grounds for the motion, including the causes of action and their elements.  The court therefore remanded the case for further proceedings.

Eoff v. Ahern Rentals, Inc., No. 05-11-00621-CV