NDA outweigh TCPA? Nay.

slapp graphicEmergency Medical Training Services sued Sheila Elliott for breaching various non-disclosure obligations in her complaints to state regulators. Elliott moved to dismiss under the Texas anti-SLAPP statute; the district court denied her motion, and the Fifth Court reversed and remanded for dismissal of the case in her favor.

The Court used a standard two-step analysis. As to the first step, Elliott met her burden to show that EMTS’s claim was based on her exercise of free speech rights – a matter, the Court ruled, that was not affected by whether she had entered an NDA. As to the second step, EMTS failed to meet its burden to establish a prima facie case fo each element of its contract claim, as its evidence of damage was too conclusory. Elliott v. S&S Emergency Training Solutions, Inc., No. 05-16-01373-CV (May 16, 2017) (mem. op.)

Arbitrability, Arbitrability!

The arbitration clause in Employee Solutions v. Wilkerson said, in part, that it applied to “. . . any and all claims challenging the existence, validity or enforceability of this [agreement] (in whole or in part) or challenging the applicability of this [agreement] to a particular dispute or claim.” To get around this broad language, the party opposing arbitration contended that it did not reach a “purely procedural” matter – the alleged failure to serve a written demand for arbitration on him and file it with the arbitral authority within the statute of limitations for negligence. The Fifth Court disagreed, noting the parties’ dispute as to whether this matter was a condition precedent to arbitration, which brought it squarely within the above language. No. 05-16-00283-CV (May 10, 2017) (mem. op.)

No alternative? No expert opinion.

alternativesIn the legal malpractice case of Ashton v. KoonsFuller, P.C., the Fifth Court affirmed a summary judgment for the defendant law firm. Among other issues addressed, the Court criticized the testimony of the plaintiff’s expert about the defendant’s billing, providing an illustration of the commonly-litigated Daubert/Robinson issue about whether an expert adequately considered alternatives to his or her conclusion: “[W]hile Hill disagrees with the amount of time KoonsFuller spent on discovery matters and preparing for mediation, the affidavit does not state how much time would have been reasonable. Similarly, Hill complains about the number of lawyers and legal assistants billing for those services, but does not suggest what an appropriate number would be.” No. 05-16-00130-CV (May 10, 2017) (mem. op.)

No, you may not appeal that.

no gifThe new “permissive appeal” procedure has not led to a lot of permissive, interlocutory appeals; another example of that trend appears in Oklahoma Specialty Ins. Co. v. St. Martin de Porres, Inc. The parties stipulated to damages, the trial court found the policy ambiguous and thus interpreted in a certain way, and said it would follow whatever the Fifth Court decided about that interpretation. The Court declined to hear the case, finding: “Given the posture of this case following the trial court’s rulings and the parties’ stipulations, we conclude a permissive appeal will not materially advance the ultimate termination of the litigation by considerably shortening the time, effort, and expense involved in obtaining a final judgment. (applying Tex. Civ. Prac. & Rem. Code § 51.014(d).

Perhaps conspirators, but not jurisdiction-creators.

Plaintiff sued two insurance companies, headquartered out-of-state, who produced evidence that their business was limited to out-of-state activity. As to an allegation that the companies and their agents met in Torontconspiracyo where they “conspired to forge [Plaintiff’s signature,” the Court reminded that “the assertion of personal jurisdiction over a nonresident defendant may not be based solely upon the effects or consequences of an alleged conspiracy with a resident in the forum state.” Friend v. Acadia Holding Corp., No. 05-16-00286-CV (April 27, 2017) (applying Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995)).

“True crime” shows and the anti-SLAPP statute

Jones sued a TV production company, alleging that he was shot at and received death threats as a result of his appearance (even tslapp graphichough blurred and voice-altered) on “The First 48,” a show about homicide investigations. The company did not prevail on its motion to dismiss based on the Texas anti-SLAPP statute: “The plain language of section 27.010(c) excludes legal actions seeking recovery for bodily injury. . . .  Mr. Jones’s negligence claim seeks to recover for the bodily injuries—four gunshot wounds—that he claims he sustained as a result of Kirkstall’s negligence in editing and producing its program. Without expressing any opinion on the merits of his claim, we conclude that Mr. Jones has shown that it is exempted from application of the TCPA.” Kirkstall Road Enterprises v. Jones, No. 05-16-00859-CV (April 27, 2017).

Mandamus Notes

th8The recent memorandum opinion in In re NCH Corp reminds of two basic points about mandamus practice.

  1. In a mandamus situation arising from the threatened disclosure of trade secrets: “No adequate appellate remedy exists if a trial court orders a party to produce privileged trade secrets absent a showing of necessity. In re Bass, 113 S.W.3d 735, 745 (Tex. 2003) (orig. proceeding) (citing In re Cont’l Gen. Tire, Inc., 979 S.W.2d 609, 615  (Tex. 1998) (orig. proceeding)). Further, a trial court abuses its discretion when it erroneously compels production of trade secrets without a showing that the information is ‘material and necessary.’ Id. at 738, 743.”
  2. The Fifth Court is using slightly revised “standard” language when denying mandamus relief in a short opinion: “To be entitled to mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). . . . Based on the record before us, we conclude relator has not shown it is entitled to the relief requested. Accordingly, we DENY relator’s petition for writ of mandamus. See Tex. R. App. P. 52.8(a) (the court must deny the petition if the court determines relator is not entitled to the relief sought).

No. 05-17-00360-CV (Apr. 25, 2017) (mem. op.)