No English fluency? No arbitration defense.

In an uncommon but fundamental challenge to an arbitration agreement, the plaintiff relied upon his inability to understand English. The Fifth Court rejected this challenge under general principles of contract formation:

“It is unusual that MiCocina translated the Mutual Agreement to Arbitrate, summary plan description, and handbook into Spanish, but not the one-page Acknowledgment form. However, on this record, there is no evidence of a fraudulent misrepresentation or trickery that would relieve Balderas of the consequences of failing to read or have read to him a document he voluntarily signed. In light of the obligation an illiterate party has to have a document read to them before they sign it and the lack of evidence of a fraudulent misrepresentation or trickery, we conclude Balderas is bound by his signature on the Acknowledgment. Accordingly, Balderas failed to prove procedural unconscionability and fraudulent inducement.”

MiCocina v. Balderas, No. 05-16-01507-CV (Oct. 27, 2017) (mem. op.) (citations omitted; distinguishing Delfingen US-Texas, LP v. Valenzuela, 407 S.W.3d 791
(Tex. App.—El Paso 2013, no pet.)).T

Third time was not the charm.

B.C. v. Steak & Shake involved a late-filed summary judgment response. The unsuccessful appellant sought rehearing en banc, which led to another opinion. Among other matters, the Court declined to consider a “supplemental clerk’s record” containing information about the logistics of the filing, when that material was not before the trial court or the Fifth Court at the time of its opinion. The Court quoted Chief Justice Hecht’s statement on the general subject in Worthy v. Collagen Corp., 967 S.W.2d 360, 366 Tex. 1998): “Supplementation of the record after a case is decided is a different matter. It certainly does not serve judicial economy for the appellate court to allow a supplementation of the record that would require it to reconsider its decision on the merits when the party has had ample opportunity to correct the omission prior to decision.”  967 S.W.2d 360, 366 (Tex. 1988). No. 05-14-00649-CV (Oct. 27, 2017) (suppl. op. on rehearing).

Pro Bono Opportunities for Federal Appeals –

Of interest to all appellate practitioners, particularly those who may be planning on becoming board certified – the Fifth Circuit describes its newly-created Pro Bono Program as follows. Great opportunity for quality appellate experience!

“The Program assists the Court by facilitating the appointment of pro bono counsel to represent pro se litigants. Pro Bono Panel members will, at the Court’s invitation, be appointed in civil appeals that, for example, present issues of first impression, complex facts or legal questions, or potentially meritorious claims warranting further briefing and/or oral argument.

Pro bono appointments are made by the Court, and are limited to proceedings before this Court. Although oral argument is not guaranteed, cases selected for the Program are likely to meet the Court’s criteria for granting oral argument.

Attorneys wishing to join the Pro Bono Panel should submit to the CMJS Office a cover letter (including statement of types of cases, if any, that counsel prefers or does not prefer), resumé, writing sample (appellate brief or brief of substantive motion), and statement of good standing in the Fifth Circuit Bar. Applications for panel membership should be emailed to the CMJS Office at Questions about the program may be directed to Kate Clark, Administrative Attorney, at that email address or by telephone at 504-310-7799.”

Personal Jurisdiction in Dallas Courts Today –

Over the summer, the Fifth Court thoroughly summarized and applied the many recent Supreme Court (both U.S. and Texas) cases about personal jurisdiction in Northern Frac Proppants v. 2011 NF Holdings. Specifically, “this appeal presents this central specific jurisdiction question: Do non-Texas residents who acquire and sell Wisconsin sand mines and related rights purposefully avail themselves of Texas if (i) Texas companies claim to be the assets’ rightful owners and (ii) the non-residents know that much of the sand produced in Wisconsin will be sold to customers for use in Texas fracing operations?” The Court “conclude[d] that the answer is no based on this case’s particular facts.” No. 05-16-00319-CV (July 27, 2017) (mem. op.)

Novel question, old writ.

Applying In re: Jorden, 249 S.W.3d 416 (Tex. 2008), which held that a Rule 202 pre-suit deposition was inappropriate in a health care case before service of the appropriate expert report, the Fifth Court held in In re Sandate  that third-party discovery was improper for similar reasons, and granted a mandamus petitition to quash it. No. 05-17-00871-CV (Oct. 19, 2017).

While Sandate does not directly address the requirement of a lack of adequate remedy by direct appeal, Jorden makes clear that this line of authority is not intended as a general invitation to seek mandamus relief about discovery matters:

Correcting whichever view is wrong after final judgment seems very unlikely, as it is hard to imagine how allowing discovery a little too early could ever be harmful error — either by causing rendition of an improper judgment or preventing the presentation of an appeal. If (as relators claim) Texas law prohibits presuit depositions until an expert report is served, those depositions cannot be “untaken” and thus an appellate court will not be able to cure the error and enforce the statutory scheme after trial. As a result, relators unquestionably may lose substantive and procedural rights if review is postponed, rights the Legislature believed (as discussed below) are critical to ensuring access to affordable medical care in the state.

Sandate does, however, contain a muscular summary of when mandamus relief may issue to address a trial court’s legal error:

In civil cases, “[a] trial or appellate court has no discretion in determining what the law is or inapplying the law to the facts, even if the law is somewhat unsettled.” [Jorden, 249 S.W.3d] at 424 (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding) (case of first impression regarding enforceability of contractual jury waiver); see also Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex. 1988) (orig. proceeding) (changing 100 years of case law and granting mandamus for abuse of discretion when trial judge followed then-existing law), disapproved on other grounds by Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding).

Not counsel? Not mandamus.

In re Guess provides a basic reminder about the limits of pro se representation and legal services from non-lawyers: “Before the Court is relator’s October 5, 2017 petition for writ of mandamus. Bruce Bryant filed this petition for writ of mandamus as relator’s “authorized representative.” Mr Bryant is not an attorney, is not a party to the litigation and, therefore, cannot file a petition on behalf of relator.” Nos. 05-17-01163-CV et seq. (Oct. 11, 2017) (mem. op.)

Ecclesiastical abstention bars suit v. private school

The Fifht Court granted mandamus relief against a lawsuit about a student’s discipline by a private school, based on the ecclesiastical abstention doctrine. The Court’s thorough analysis observes: “We acknowledge that the dispute does not expressly concern religious doctrine in all respects. But we also note that [In re: St. Thomas High School, 495 S.W.3d 500, 506 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding). and [In re: Vida, No. 04-14-00636-CV, 2015 WL 82717, at *2 (Tex. App.—San Antonio Jan. 7, 2015, orig.
proceeding) (mem. op.)] did not do so either. St. Thomas involved the expulsion of a student based on the school handbook. Vida concerned age requirements in the school’s policy manual. And as the St. Thomas court observed, ‘exclusive focus on the presence or absence of an express dispute concerning religious doctrine demonstrates an unduly narrow conception of [the doctrine’s] applicable protections.'” In re Episcopal School of Dallas, No. 05-17-00493-CV (Oct. 11, 2017). The opinion also reviews and rejects a challenge to the mandamus petition based on the doctrine of laches.

It’s a note, but that doesn’t mean it’s negotiable.

Chase Bank sued a borrower; the threshold question was whether the longer limitations period for a negotiable instrument applied. While Chase sued on a note, the instrument did not qualify as a negotiable instrument because ” the sum-certain requirement is not met unless one can determine from the face of the note the extent of the maker’s liability.” Here, the Note (1) referred to a promise to pay “the total principal amount of $169,573.72 or so much as may be outstanding,” (2) “permit to pay ‘all or any part of the loan evidenced by this Note at any time,'” (3) said that “if prepayments are made, the Bank may apply them “in such order and manner as [the Bank] may from time to time determine in its sole discretion,'” and (4) referred to the “books and records of the Bank” to specify the precise amount owerd. Accordingly: “[b]ecause the Note fails to identify a sum certain on its face, we conclude it is not a negotiable instrument.” JP Morgan Chase v. Robinson & Hoskins, No. 05-17-00087-CV (Oct. 9, 2017) (mem. op.)

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.)