No Interlocutory Appeals for Partial Dismissals Under the TCPA

Three of four defendants filed motions to dismiss under the Texas Citizens Participation Act, all of which were granted by the district court. The plaintiffs sought interlocutory review of those rulings, but the Dallas Court of Appeals concluded that it did not have jurisdiction to review the rulings. Because the claims against the fourth defendant were still pending, there was no final, appealable judgment in the case. Under the 2013 version of CPRC § 51.014(a)(12), only orders denying a TCPA motion to dismiss are subject to interlocutory appeal, and the current version of the TCPA itself only authorizes interlocutory appeals when the motion has been overruled by operation of law due to the trial court’s failure to rule within 30 days. The plaintiffs will therefore have to wait until final judgment before appealing the TCPA dismissals.

Horton v. Martin, No. 05-15-00015-CV

On Receiverships

The Dallas Court of Appeals has reversed an order appointing a receiver to wind up the affairs of a business equally owned by two siblings who could not agree on selling the cattle ranch they operated. The opinion serves as a useful primer on the statutory criteria for appointment of a receiver. In this instance, the Court of Appeals held that a receiver could not be justified because there was no evidence that the company was under threat of an irreparable injury if the property was not sold.

Spiritas v. Davidoff, No. 05-14-00068-CV

Maybe Next Time Try Paris, Texas?

Connie Sigel used a website to book an apartment in Paris (the one in France) for a seven-night vacation. During that stay, an intruder with keys to both the apartment and its safe stole most of Sigel’s possessions. Sigel sued the booking agency on multiple contract and tort claims. The trial court denied My Vacation Europe’s special appearance, but the Dallas Court of Appeals reversed and rendered. The Court held that Sigel’s act of accessing MVE’s website and renting an apartment while she was located in Dallas did not constitute a purposeful availment of Texas by MVE, and there was no evidence that MVE specifically targeted Texas residents for its services. The Court of Appeals also held that there could be no specific jurisdiction in Texas because the claims all arose from a burglary that occurred in France, meaning that the relationship between Texas and the operative facts of the litigation was too tenuous to support jurisdiction.

My Vacation Europe, Inc. v. Sigel, No. 05-14-00435-CV

Update: Threepeat. The dream is alive.

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Slip and Fall =! Med Mal

Although medical malpractice usually isn’t this blog’s cup of tea, it is sometimes interesting to see just how broadly the courts will apply the expert report requirement for health care liability claims contained in Chapter 74 of the Civil Practice & Remedies Code. In this case, we learn that a case against a hospital will not be dismissed for failure to file an expert report when the claim is for a slip-and-fall injury. The Court of Appeals distinguished between claims that have an indirect relationship with health care (which require an expert report) and those that are “completely untethered” from health care. Slipping and falling on a wet floor in a hallway, the Court holds, has nothing to do with health care, and so the trial court correctly denied the hospital’s motion to dismiss.

Methodist Hosps. of Dallas v. Searcy, No. 05-14-00375-CV

Frivolous Appeal

A special appearance in a probate case has led to the exceedingly rare grant of a motion for sanctions for the filing of a frivolous appeal. In this instance, the appellant managed to make a general appearance in the case before filing the special appearance — a fact that the appellant had failed to even address in response to the appellee’s briefing in the probate court. On top of that, the appellant had failed to preserve his argument on appeal that the special appearance was somehow severable from the motion to show cause in which he entered his general appearance, nor had the appellant objected (and thereby preserved error) when the probate judge overruled the special appearance without holding a separate hearing on it. Although the appellee had not submitted any evidence of her damages to support the award of sanctions, the Court of Appeals granted her leave to file such evidence within ten days of the opinion.

Estate of Ardyce Deuel-Nash, Deceased, No. 05-14-00128-CV

First Rule 91a Opinion From the Dallas Court of Appeals

In what appears to be only the third opinion in the state reviewing a motion to dismiss under Texas Rule of Civil Procedure 91a, the Dallas Court of Appeals has affirmed a trial court’s order that granted in part and denied in part a motion to dismiss on the pleadings. Similar to Federal Rule of Civil Procedure 12(b)(6), Rule 91a allows a party to move to dismiss a cause of action “on the grounds that it has no basis in law or fact,” based solely on the claimant’s pleadings. In this case, the plaintiffs sued the City of Dallas after emergency services failed to respond to a 911 call reporting their son’s drug overdose. The plaintiffs attempted to plead their way around governmental immunity by claiming the City had negligently used or misused the 911 system’s telephone and computer systems. The Court affirmed dismissal of negligence claims that the City had failed to properly respond to the 911 call, but also affirmed the denial of the motion as to claims that the equipment itself had failed or malfunctioned.

City of Dallas v. Sanchez, No. 05-13-01651-CV

On Certificates of Merit

An investor in an office building sued the building’s architect and engineering consulting firm for fraud, negligent misrepresentation, aiding and abetting, and conspiracy. The investor did not file a certificate of merit with the original petition, so the defendants moved to dismiss. The claims against the engineering firm were dismissed without prejudice, and the plaintiff refiled with a new complaint that included a certificate of merit. After consolidating the old and new cases, the trial court granted a motion to dismiss as to all claims against the engineering firm, but only as to the negligent misrepresentation claim for the architects. An interlocutory appeal ensured, and the Court of Appeals ended up siding with the plaintiff. As to the plaintiff’s claim against the engineering firm, the Court held that dismissal without prejudice did not prevent the plaintiff from refiling a new lawsuit — the one under appeal — that included a certificate of merit. As to the claims against the architecture firm, no certificate of merit was required because the plaintiff’s case was based on the allegation that the firm knew of defects in the building due to its occupancy in the building, not in connection with any professional services that the firm had provided. Accordingly, no certificate of merit was necessary, and all of the plaintiff’s claims against the architecture firm were also remanded for further proceedings.

TIC N. Central Dallas 3, LLC v. Envirobusiness, Inc., No. 05-13-01021-CV

Waiving the Fiduciary Shield

The Court of Appeals has issued a lengthy opinion affirming the denial of a special appearance. The appeal arises out of an apparently contentious case involving claims and counterclaims for breach of contract, fraud, and defamation. Defendant Sebastian Lombardo — an Italian citizen who lives in Belgium and works in France — challenged personal jurisdiction by invoking the fiduciary shield doctrine, which protects officers of corporations from being personally haled into court in Texas due to their contacts as representatives of the corporation. Unfortunately for Lombardo, his argument in the trial court had presented that issue as a matter of general personal jurisdiction, and the trial court had found him to be subject to specific personal jurisdiction. Having failed to present the fiduciary shield doctrine as a bar to the exercise of specific personal jurisdiction, the issue was also waived on appeal. The opinion goes on to affirm the legal and factual sufficiency of the evidence supporting the trial court’s findings of jurisdictional facts, as well as its application of the law to those facts, and therefore affirmed denial of the special appearance.

Lombardo v. Bhattacharyya, No. 05-13-01583-CV

No Governmental Immunity for Unsecured Whiteboard

Last November, the Texas Supreme Court reversed and remanded for further consideration in a case where the Dallas Court of Appeals had concluded that the plaintiff had sufficiently pleaded a waiver of sovereign immunity through the use of tangible property. The Supreme Court held that the plaintiff had not alleged a “use” of property for a whiteboard that fell on his head, because Dallas Metrocare had only made the board available for use by patients. On remand, the Court of Appeals had to consider the alternative question of whether the plaintiff’s claims alleged injury through a “condition” of property. The Court concluded that he had pleaded such a claim, based on the allegation that the whiteboard was in an unsafe condition because it was not properly secured. The case was therefore remanded to the trial court for further proceedings.

Dallas Metrocare Servs. v. Juarez, No. 05-11-01144-CV

Veils Don’t Get Pierced If You Don’t Seek to Pierce Them

Cornerstone Healthcare owns and operates a group of hospitals located in several states. It filed suit against Nautic Management VI, the general partner or manager of several private equity funds. NMVI filed a special appearance to challenge personal jurisdiction, but the trial court overruled it. On interlocutory appeal, the Court of Appeals reversed and rendered judgment dismissing NMVI from the case. Cornerstone argued that NMVI should be subject to specific personal jurisdiction in Texas because it controlled the funds whose representatives had traveled to Texas and conducted the business that got them all sued. The Court of Appeals disagreed, holding Cornerstone to its word that it was not attempting to pierce the corporate veil and therefore refusing to attribute the contacts of the funds to NMVI.

Nautic Mgmt. VI, LP v. Cornerstone Healthcare Group Holding, Inc., No. 05-13-00859-CV