The TCPA (still) did not apply to a discovery-related motion in Sorkin v. P.T. Atlas Mfg., notwithstanding procedural differences from prior Fifth Court precedent:

The matter before us is in a procedurally different posture than Misko in that P.T. Atlas did not bring his complaints predicated on discovery abuse in the Harris County Lawsuit where the discovery was being conducted. … Had P.T. Atlas instead filed a petition in intervention in the Harris County Lawsuit to challenge the alleged discovery abuse, our Misko opinion would support the denial of a TCPA motion to dismiss and would be consistent with the rationale in both Misko and Dow Jones. Likewise, here, while the reason for this lawsuit––abusive discovery–– arose in the context of the Harris County Lawsuit, this suit itself does not attack any of the substantive claims in the Harris County Lawsuit nor is the suit based on, or in response to, any of the substantive allegations in that suit.

No. 05-21-00657-CV (March 16, 2022) (mem. op.).

Out-of-state business dealings with effects in Texas present a continuing challenge in special-appearance proceedings. One set of such dealings resulted in reversal of the grant of a special appearance in Halperin v. Moreno:

“[T]his case involves more than the ‘the presence of property in a state.’ The deed of trust and the HELOC were between a Texas borrower (Moreno) and a lender and trustee (Waguespack) with—according to the documentation—a Texas-based mailing address. The HELOC set Texas as the place where the loan contract would be performed. The HELOC was secured by a house located in Texas, and the deed of trust is governed by Texas law. It is undisputed that the HELOC was assigned to MOR KM, which maintains its principal office and place of business in Texas. The HELOC note and the loan documentation evince a clear, specific intent by Waguespack to  purposefully direct conduct towards Texas for the benefit of her brother, a Texas resident.”

No. 05-21-00390-CV (March 9, 2022) (mem op.). See also MBM Family Trust No. 1. v. GE Oil & Gas, No. 05-20-01103-CV, 2021 WL 4236874 (Tex. App.—Dallas Sept. 17, 2021, no pet.) (mem. op.) (reaching similar conclusion about related transaction).

After a split decision from the Fifth Court declined to send a personal-injury case to arbitration, the Texas Supreme Court ruled otherwise in Baby Dolls v. Sotero: “The Family’s argument, and the court of appeals’ holding, that Hernandez and the Club never had a meeting of the minds on the contract blinks the reality that they operated under it for almost two years, week after week, before Hernandez’s tragic death. We hold that the parties formed the agreement reflected in the contract they signed.” No. 20-0782 (Tex. March 18, 2022).

In the context of service of process, and reinforcing its recent holding about the distinction between individuals and entities in Prado v. Nichols, No. 05-20-01092-CV (Feb. 25, 2022) (mem. op.), the Fifth Court rejected a judgment based on the return of service in Mesa SW Management v. BBVA USA:

“Appellee used an entity to receive the process and a natural person to serve the process; [Tex. R. Civ. P.] 105 does not allow this. Rule 105 requires one person perform both actions. Because the process was delivered to an entity but a natural person executed and returned the same, we conclude appellee failed to strictly comply with rule 105.” No. 05-20-01091-CV (Feb. 24, 2022) (mem. op.) (emphasis added).

The Fifth Court’s recent ERCOT opinion found that matter appropriate for en banc review when, between its original panel opinion and the present proceedings, the Texas Supreme Court had ruled on immunity issues in a way that undermined a key assumption of the panel opinion about ERCOT’s immunity. (“In the most recent of these three opinions, the supreme court stated: ‘Though we have contemplated it, we have yet to extend sovereign immunity to a purely private entity—one neither created nor chartered by the government—even when that entity performs some governmental functions.'”).

At least nominally, that analysis puts the case in the “just right” category of my Goldilocks article about intermediate-court en banc review, although the importance of the subject matter may make it a “big splash” case as well.

The ERCOT dissent suggests another, fragrance-based approach to decisions about en banc review: “To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong, it must . . . strike us as wrong with the force of a five-week old, unrefrigerated dead fish.”  (citing Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).

Fans of newspaper comic strips know The Phantom as “the man who cannot die.” Equally resilient is the Texas Supreme Court’s Malooly opinion that requires an appellant to address all bases for affirmance. In re Pepperstone Group Ltd. (a mandamus proceeding, so not technically a Malooly case) involved a situation in which an issue had been raised but not in the proper way to trigger Malooly:

“Although Das’s trial-court reply brief contained an objection that Pepperstone’s response was late under the local rules, he asked only that the trial court not consider Pepperstone’s response in ruling on the motion to compel. Das did not contend that his timeliness objection was an independent ‘ground’ for granting his motion to compel. Accordingly, we reject Das’s argument.”

No. 05-21-00767-CV (Feb. 28, 2022) (mem. op.).

In a restricted appeal: “[T]he face of the record shows that appellee filed suit against a Texas corporation named either Joe Prado DBA J.P. Enterprises or Joe Prado ‘JP Enterprises.’ The return of service shows that Joe Prado was served but does not indicate his capacity to receive service on behalf of the purported corporation. Moreover, no other portion of the record indicates Joe Prado’s authority to receive service on behalf of the corporation. We conclude the face of the record fails to show strict compliance with the rules governing return of service; thus, the trial court lacked jurisdiction to render a default judgment against JP Enterprises.” Prado v. Nichols, No. 05-20-01092-CV (Feb. 25, 2022) (mem. op.) (citation omitted, emphasis added).

An 11-1 en banc opinion concluded that ERCOT lacked sovereign immunity against fraud claims by a power producer. The opinion noted, inter alia, that this conclusion was consistent with ERCOT not receiving tax revenue, with the structure of the PUC’s regulations about ERCOT liability, and with the law about derivative immunity for “self-regulated organizations.” The Court also rejected ERCOT’s alternative argument that the plaintiff’s claims fell within the PUC’s exclusive jurisdiction.

dissent “would conclude that the original panel opinion was not clearly erroneous, the majority’s decision undermines the constitutional-avoidance doctrine, and the PUC has exclusive jurisdiction over Panda’s complaints …”

The Texas Lawbook has further detail. (By way of general background, Erwin Chemerinsky’s 2001 article “Against Sovereign Immunity” remains a classic on that side of the issue.)

The would-be appellant in Cosentino v. Frost Bank tried to appeal a ruling about arbitrability by using the Crowson precedent about what “finality” means in longrunning probate proceedings. The Fifth Court did not accept the argument, reasoning: “As reflected in the parties’ live pleadings, the ancillary proceeding was brought as a declaratory judgment action concerning the validity and enforceability of the PMA [premarital agreement]. The order compelling arbitration determined a preliminary issue within that cause of action—that the PMA was properly executed such that an agreement to arbitrate existed and arbitration of those issues could be compelled—not a cause of action in itself that could be asserted independently as its own lawsuit.” No. 05-21-00829-CV (Feb. 16, 2022) (mem. op.).

In mandamus practice, there is an important exception to the “four-month rule” and other laches-related doctrines, which is that “the doctrine of laches does not apply to a void order ….” In re Reiss, No. 05-21-00600 (Feb. 18, 2022) (mem. op.).

“Under prior holdings of this court and others, an unexplained delay of four months or more can constitute laches and result in denial of mandamus relief. Here, relator’s April 6, 2021 petition for mandamus was filed seven months and six days after the trial court’s August 31, 2020 order denying the [Rule 91a] motion to dismiss. We conclude that relator’s unexplained delay bars his right to mandamus relief.” In re Tekin & Assocs., No. 05-21-00219-CV (Feb. 9, 2022) (mem. op.).

“’Texas courts have long held that an appealing party may not complain of errors that do not injuriously affect it or that merely affect the rights of others.’ An appellant is not harmed when sanctions are imposed solely against the appellant’s attorney and does not have standing to challenge an order imposing sanctions solely upon his attorney.” On Deck Capital, Inc. v. CWO Designer Landscapes, No. 05-20-00471-CV (Feb. 10, 2022) (mem. op.).

The threshold question in Ruff v. Ruff was the timeliness of a TCPA motion to dismiss:

“Mike argues that Suzann’s earlier petitions sought relief based on a suit to quiet title while in the seventh amended petition, ‘[s]he abandoned the quiet title claim and now seeks declaratory relief interpreting the [probate court judgment]. The seventh petition is a new legal action seeking new declaratory relief.'”

After examining a redlined comparison of the relevant pleadings, the Fifth Court found the motion untimely, concluding that “[t]his is essentially the same claim re-alleged repeatedly over two years in the subsequent amendments to the petition,” and that as a result:

“Mike has not identified on appeal any allegations in the seventh amended petition that added a new party, alleged new essential facts to support previously asserted claims, or asserted new legal claims or theories involving different elements than the claims or theories previously asserted.”

No. 05-21-00157-CV (mem. op.) applying Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021)).

 

The defendant in a medical-malpractice cases sought the production of electronic information about the dates when certain photographs of the plaintiff had been taken. The Fifth Court granted mandamus relief to the plaintiff:

“Methodist did not meet the burden of going forward with evidence … Mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device. While the mandamus record suggests Methodist may have been concerned about multiple creation dates, Methodist failed to make an evidentiary showing that the electronic files Cooley produced lacked metadata. Accordingly, Methodist failed to make the good-cause showing necessary to justify the trial court’s order.”

In re Cooley, No. 05-21-00445 (Feb. 2, 2022) (mem. op.) (citations omitted; applying, inter aliaIn re Weekley Homes, 295 S.W.3d 309 (Tex. 2009)).

“In a legal sufficiency analysis, we cannot ignore conflicts in the evidence, even where the conflict is within a party’s own exhibits. Here, there is a conflict between Exhibit 88 and Exhibit 7, the draw receipts. During closing argument, appellants argued: ‘Every time money was drawn [Bresnahan] got Mr. Kidwell to sign another little receipt-type note. So if you look at Exhibit 7, I think there’s 43 of them. So ever[y] draw he got him to sign.’ The problem is that there are forty-seven such draws listed in Exhibit 88 but only thirty eight draw receipts in Exhibit 7. The missing draw receipts, including interest and fees, and the “other deficient notes” together accounted for $569,344 on Exhibit 88.” Haddington Fund, LP v. Kidwell, No. 05-19-01202 (Jan. 12, 2022) (mem. op.) (citations omitted). h

The judgment-finality issue in Paxton v. Simmons involved a conflict between the Lehmann finality language and handwritten edits to a form of judgment. Held:

“To the extent Ms. Simmons contends the judgment’s statement that ‘[t]his final judgment disposes of all claims and all parties, and is appealable” automatically makes the judgment final, we disagree. The Lehmann dictum she cites does not purport to address a circumstance where, as here, the judgment’s substance directly conflicts with that statement. Our supreme court has instructed that ‘[c]lear and unequivocal language that reflects an intent to dispose of the entire case is given effect, but when there is doubt about finality, the record resolves the issue.’ Here, as Ms. Simmons asserts in her appellate reply brief, the trial court ‘must make further determinations before the issues are finally disposed of.’ On this record, we conclude the December 20, 2019 judgment is not final and appealable.”

No. 05-20-00058-CV (Jan. 21, 2022) (emphasis added).

Texas’ rule against the appeal of interlocutory orders has a long and colorful history of exceptions to that rule (a story well told by Lee Thompson in her recent law review article about our interlocutory-appeal statute). The increased number of permissible interlocutory appeals can produce procedural friction with the standard appellate process; the supreme court recently granted review of a Dallas case involving such friction on a fundamental jurisdictional point:

  • “Payment is an affirmative defense which the defendant has the burden to plead and prove. Payments pled by the defendant which are not admitted in the plaintiff’s petition must be specifically alleged.”
  • What about trial by consent? “‘The doctrine of trial by consent does not apply when the evidence of an unpleaded matter is relevant to the pleaded issues because it would not be calculated to elicit an objection.’ Milbourn’s testimony was relevant to the Kidwell’s claim for breach of fiduciary duty … that Bresnahan breached his fiduciary duty by failing to disclose his conflicts of interest and by unilaterally increasing his own wages. … Because the Kidwells’ evidence of payment [a spreadsheet] was also relevant to their pleaded claim for breach of fiduciary duty, we conclude payment was not tried by consent.”

Haddington Fund, LP v. Kidwell, No. 05-19-01202 (Jan. 11, 2022) (mem. op.) (citations omitted).

A question in Kanen v. DeWolff, Boberg & Assocs. was whether the plaintiff presented a fact issue about a prima facie case of age discrimination; specifically, as to whether he had been “replaced by someone outside the protected class, replaced by someone younger, or was otherwise discharged because of his age.” The Fifth Court found a sufficient question to avoid summary judgment on that point, noting two matters in particular. First –

“Because Kanen presented evidence DeWolff retained and hired substantially younger market analysts after his employment was terminated, and because DeWolff considers the market analysts to be interchangeable and claimed Kanen’s accounts would be randomly assigned to other analysts and conceded that Kanen’s replacement ‘could be anyone in the office,’ a jury could determine that Kanen’s job duties were distributed to younger workers.”

And second –

“In addition, contrary to DeWolff’s assertion of how accounts are assigned, Kanen established market analysts are assigned to a specific outside salesperson and territory. A jury could conclude that DeWolff’s explanation as to how accounts are assigned is not credible and infer that the individual, or individuals, who took over his accounts were among those Kanen identified as being substantially younger than himself.”

No. 05-20-00126-CV (Jan. 18, 2022) (mem. op.).

The standard for waiver of a contractual arbitration right can be demanding, especially if the record does not contain all referenced material:

“Mary’s response to appellants’ amended motion to compel arbitration stated that appellants served responses to discovery in December 2016 and sent discovery requests of their own in February 2017. Appellants contend that the discovery they propounded was minimal, consisting of nine interrogatories, nine requests for admission, and one request for production. As no party attached any of the requests or responses to their filings in connection with the motions to compel arbitration, we cannot weigh any of the discovery-related factors in favor of or against waiver. Mary has not shown that the discovery in question was extensive, related to the merits of her claims, or would be unavailable in arbitration.”

Haddington Fund v. Kidwell, No. 05-19-01202 (Jan. 11, 2022) (mem. op.) (citations omitted).

In Hadley v. Baxendale, 8 Exch. 341, 156 Eng. Rep. 145 (1854), the Court of Exchequer held that a miller’s lost profits, arising from the late delivery of a replacement shaft for a steam engine in the mill, were not recoverable as consequential damages in a suit for breach of contract: “But it is obvious that, in the great multitude of cases of millers sending off broken shafts to third persons by a carrier under ordinary circumstances, such consequences would not, in all probability, have occurred, and these special circumstances were here never communicated by the plaintiffs to the defendants. It follows, therefore, that the loss of profits here cannot reasonably be considered such a consequence of the breach of contract as could have been fairly and reasonably contemplated by both the parties when they made this contract.” 

The long shadow of that broken shaft was most recently seen in Signature Indus. Services, LLC v. Int’l Paper Co., which held: “The law does not charge contracting parties with a duty to understand how their actions will affect the counterparty’s market valuation. …  As a general rule, neither the counterparty’s market value nor the impact of breach on that value will be reasonably foreseeable at the time of contracting. SIS … attempted to show that IP was intimately familiar with SIS’s business because of the companies’ close relationship. But again, knowledge of a business is not the same as knowledge of the market for buying and selling that business.” No. 20-0396 (Jan. 14, 2022).

By popular demand, the nationally respected jury consultant Jason Bloom returns to the “Coale Mind” podcast after his insightful interview last year about the restart of jury trials after the 2020 quarantines. In this new 2022 episode, he discusses his insights from the continued return of jury trials.

Jason describes how, across the country, prospective jurors are more eager to be selected and serve on juries than ever before, reflecting a national mood that wants to reassert control over government after many months of uncertainty and frustration. Relatedly, jury deliberations are emphasizing a theme of “accountability”–examining which party to a case has demonstrated responsibility for its actions and decisions.

Obviously important for trial lawyers, Jason’s insights are also critical to understanding America’s political dialogue as society continues to reawaken after the COVID pandemic. Whether acting as jurors, voters, or customers, decisionmakers bring very specific interests and desires to 2022 that must be understood and accommodated to make effective policy.

In Soo v. Pletta, the Fifth Court affirmed the denial of a TCPA motion, finding an insufficient connection between the allegedly protected activity and the lawsuit, and noting:

  • Case law about the previous version of the TCPA, which required a showing that claims were “based on, related to, or in response to” protected activity, has less relevance under the amended version that asks whether a claim is “based on or in respone to” the activity; and
  • “The Soos’s argument that Trust’s claims are “based on or in response to” TCPA-protected activity simply because that activity occurred before Trust filed its lawsuit amounts to a post hoc ergo propter hoc logical fallacy and does not satisfy the Soos’s step one burden” under the TCPA.

No. 05-20-00876 (Jan. 14, 2022) (mem. op.).

The Fifth Court found that a set of overly-redacted fee statements was legally insufficient evidence to support an award of fees in THB Construction v. Holt Texas, Ltd., observing:

“[T]he evidence here is like that presented in [Long v. Griffin, 442 S.W.3d 253 (Tex. 2014)]. In both cases, counsel testified only to general tasks performed during the representation.  Although Holt’s counsel produced invoices, they effectively provide no additional evidence beyond counsel’s testimony due to the heavy redactions. Indeed, counsel admitted as much. In that regard, the evidence presented here is just as insufficient as that presented in Long.”

The Court further reviewed its own relevant precedent in this area. No. 05-20-00020-CV (Jan. 13, 2022) (mem. op.) (citation omitted).

A delay in holding a hearing on a TCPA motion (again) led to denial of appellate review in Vertical Holdings LLC v. LocatorX, Inc.:

“… [W]e find no information in the record to support Vertical Holdings’s suggestion that the hearing delay was caused by the COVID-19 pandemic. We also find no information in the record to suggest the trial court canceled the October 5, 2020 hearing or suspended any TCPA deadlines as a result of any of the supreme court’s pandemic-related emergency orders.

Notably missing from the record is any information about the trial court’s docket conditions on or near October 5, 2020, the date of the original hearing setting. Also missing is any information showing good cause to reset the hearing, an agreement between the parties to reset the hearing within section 27.004’s deadlines, an extension to allow discovery under TCPA section 27.006(b), or any other efforts by Vertical Holdings to have the motion heard within section 27.004’s deadlines.”

No. 05-21-00469-CV (Jan. 14, 2022) (mem. op.).

The supreme court engaged fundamental, black-letter principles of contract law in Angel v. Tauch, No. 19-0793 (Jan. 14, 2022), holding:
“Offer and acceptance are essential elements of a valid and binding contract. As a matter of blackletter law, an offer empowers the offeree to seal the bargain by accepting the offer. But equally well-established is the rule that acceptance is ineffective to form a binding contract if the power of acceptance has been terminated, such as by the offeror’s revocation before acceptance. The main issue in this contract dispute is whether a purported offer to settle a debt for a reduced sum was accepted before it was revoked. Resolution of that issue turns on the parameters of the recognized, but rarely implicated, doctrine of implied revocation.
Here, the parties dispute whether the implied-revocation doctrine (1) is limited to offers involving the sale of land, (2) applies if the offeree learns about the offeror’s inconsistent act from someone other than the offeror, and (3) is satisfied under the undisputed facts in this case. We hold that the doctrine is not constrained to real-property transactions and the settlement offer was impliedly revoked when the offeror assigned the underlying judgment to a third party for collection and the assignee gave the offeree a copy of the assignment agreement before he accepted the settlement offer. We therefore reverse the court of appeals’ judgment and render judgment that no contract to settle the debt was formed.”
(footnotes and citations omitted, emphasis added).

The Fifth Court recently recalled a mandate and amended its own judgment to include the surety on a supersedeas bond as an additional party. The motion primarily cited Whitmire v. Greenridge Place Apts., 333 S.W.3d 255, 260-61 (Tex. App. – Houston [1st Dist.] 2010, pet. dism’d w.o.j.). A big 600Commerce thanks to Ben Taylor for pointing out this order to me (and correcting the pet. history on my original post)

The Fifth Court found that an appeal, taken from the domestication of a foreign judgment under the Uniform Enforcement of Foreign Judgments Act, was untimely. The Appellant cited the later filing of a third-party action, and a related special appearance, as reasons the clock did not start to run. The Court disagreed:

“The Foreign Judgment became a final Texas Judgment on January 22, 2020, the day it was filed. ‘By its very nature, the UEFJA does not contemplate or authorize the entry of a judgment replacing the foreign judgment.’ … [I]t is well settled that a Texas trial court has no jurisdiction to set aside another state’s judgment and return the parties to the positions they occupied before the foreign judgment was rendered. An intervention and a third-party claim in an enforcement proceeding do not in any way alter this fact.”

Moreno v. Halperin, No. 05-20-00858-CV (Dec. 14, 2021) (mem. op.).

A contempt/sanction order entered in a dispute about a divorce degree was vacated by In the Interest of E.W.M., No. 05-19-01589-CV (Jan. 7, 2022) (mem. op.): “Here, the record shows the enforcement proceedings could have resulted in Marc’s incarceration. Thus, the trial court was required to inform Marc that he had a right to counsel. See [Tex. Family Code ] § 157.163 (a), (b). But instead of informing Marc of that right, the trial court affirmatively misrepresented that, because Sarah did not seek more than six months of jail time, he had no right to counsel. This was clear error, and we are not persuaded by Sarah’s arguments to the contrary.”

The denial of a special appearance by a Florida-based real estate broker was affirmed after the Fifth Court noted these facts:

  • “Though appellants’ solicitations involved the sale of Florida property, they knew from Mr. Bernstein’s mailing address that they were soliciting a Texas resident who was thus subject to Texas laws, including property-ownership laws. Appellants had a ‘say in the matter’ as to whether to reach out to solicit business in Texas.”
  • “Here, unlike in [Bryan v. Gordon, 384 S.W.3d 908 (Tex. App.–Houston [14th Dist.] 2012, no pet.)], Mr. Bernstein made no initial request for contact. Instead, appellants ‘initially targeted’ Mr. Bernstein, whom they knew to be a Texas resident, as a client.”
  • “Though appellants contend ‘everything’ for which they are being sued ‘occurred in Florida,’ the record shows the Bernsteins’ claims are directly based on alleged misrepresentations appellants made during the solicitations and the resulting contract allegedly induced by those misrepresentations. Thus, appellants’ contacts are substantially connected to the litigation’s operative facts.”

Ringham v. Bernstein, No. 05-21-00526-CV (Jan. 5, 2022) (mem. op.).

To the right, Mother Hubbard plays well with her dog, but in Eagle Remodel LLC v. Capital Financial Corp., Mother Hubbard did not play well with a summary-judgment order: “Appellant asserts in a letter brief filed at our direction that the order is appealable because appellee did not file a counterclaim for fees and the order included a ‘Mother Hubbard’ clause stating that ‘All relief not expressly granted herein is denied.’ As appellee notes in its response, however, a ‘Mother Hubbard’ clause is not indicative of finality when, as here, a conventional trial on the merits was not held.” No. 05-21-00625-CV (Jan. 5, 2022) (mem. op.) (applying Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001)).

The question whether testimony is “conclusory” arises frequently in commercial litigation, particularly when the testimony is presented by affidavit. While the boundary lines are not always clear, one definite data point for practitioners was provided by Chloe’s Concepts, LLC v. Clear Rainbow, Inc., which held in a default-judgment case: “Appellants complain that the affidavit of Clear Rainbow’s president does not state when default occurred but merely concludes the past due amount was $128,259.86 and that prejudgment interest was $11,069.00. However, ‘[t]estimony of the total amount due under a written instrument is legally sufficient to support an award of that amount in a default judgment proceeding.'” No. 05-20-00484-CV (Dec. 20, 2021) (mem. op.) (citation omitted).

A default judgment stood when the defendant “state[d] he was in discussions with plaintiff’s counsel regarding a resolution without court intervention.” The Fifth Court noted: “Settlement negotiations may be a valid excuse for failing to answer where there is some basis for the defendant to believe default would not be taken while negotiations were in progress.” But “appellants produced no evidence of any statement by appellee that would give them reason to believe that appellee would not take a default judgment”; thus, the first Craddock factor was not satisfied. Chloe’s Concepts, LLC v. Clear Rainbow, Inc., No. 05-20-00484-CV (Dec. 20, 2021) (mem. op.).

Since the supreme court’s opinion in Rohrmoos Venture v. UTSW DVA Healthcare, 578 S.W.3d 469 (Tex. 2019), the mechanics of proving up attorneys’ fees have received a great deal of thought by practitioners and judges. The Fifth Court’s opinion in In re Estate of Willingham reminds of something more basic as to awards of appellate attorneys’ fees:

“[T]here is no certainty regarding who will represent the appellee in the appellate court, what counsel’s hourly rate(s) will be, or what services will be necessary to ensure appropriate representation in light of the issues the appellant raises … [but] this uncertainty does not excuse a party seeking to recover contingent appellate fees from the need to provide opinion testimony about the services it reasonably believes will be necessary to defend the appeal and a reasonable hourly rate for those services.”

Finding no evidence on that topic, the Court deleted the award of appellate attorneys fees from the judgment and otherwise affirmed. No. 05-20-00235-CV (Dec. 20, 2021) (mem. op.) (applying Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020)).

A new set of TRAPs about direct appeals to the Texas Supreme Court takes effect at the start of 2022. It substantially clarifies the procedure for these unusual cases, and aligns the rules about them with other TRAPs about supreme-court proceedings.

Hardy v. Communication Workers of America provides three reminders about the “sham affidavit” doctrine recently applied by the Texas Supreme Court in Lujan v. Navistar, Inc., 555 S.W.3d 79 (Tex. 2018):

  • Object. “Hardy did not object to Mathias’s affidavit in her response to the motions for summary judgment, and she did not object to the affidavit during the trial court’s hearing to consider pretrial motions, including the motions for summary judgment. Finally, the record does not show that the trial court ruled, or refused to rule, on an objection to Mathias’s affidavit.” (citations omitted).
  • Confirm the claimed inconsistency.  “The 2019 affidavit does not mirror the 2016 affidavit—it is organized differently, it is longer, and it contains more factual detail. However, a side-by-side comparison of Mathias’s statements in the two affidavits does not reveal material contradictions. Nor does Hardy direct us to the specific statements that she asserts are contradictory. Instead, she complains that Mathias fails to explain: (1) why she created a new affidavit, (2) why the new affidavit did not include every statement from the 2016 affidavit, and (3) why certain statements were worded differently.”
  • Procedural posture.  “[W]e are not faced with a contradictory affidavit by the nonmovant, seeking to raise a fact issue in order to avoid summary judgment. Instead, Hardy attempts to apply the sham affidavit rule to an affidavit filed by the movant in support of summary judgment.”

No. 05-19-01388-CV (Dec. 10, 2021) (mem. op.).

Yes, it’s kind of a pain, and yes, it comes around every year. But you have a voice in the oft-cited “Super Lawyers” awards, and you can make it heard on the Super Lawyers’  website. Nominations are due by December 16, 2021.

The grant of a no-evidence motion for summary judgment was affirmed when:

“In its response to the no-evidence motion, Great Hans did not specifically identify the supporting proof it wanted considered by the trial court on any specific element nor make any argument or cite to any legal authority in support of its position. Rather, as to each element challenged on the various causes of action, Great Hans recited the element and provided the same response: ‘More than a scintilla of summary judgment evidence is submitted in the record as adopted by reference and as set out above in the traditional summary judgment motion argument on this ground.’ Great Hans did not direct the court to where in its response to the traditional motion it could find the argument and evidence related to the specific element.”

Great Hans LLC v. Liberty Life Service Corp., No. 05-20-00113-CV (Dec. 8, 2021) (mem. op.)

Yes, it’s kind of a pain, and yes, it comes around every year. But you have a voice in the oft-cited “Super Lawyers” awards, and you can make it heard on the Super Lawyers’  website. Nominations are due by December 16, 2021.

This is a cross-post from 600Hemphill, which follows commercial litigation in the Texas Supreme Court:

“[W]e adopt the following two-step inquiry for determining when requests for findings and conclusions that are not required by the rules will trigger the extended ninety-day filing deadline. First, was the non-jury proceeding a type in which the trial court could consider evidence? Second, if so, was there evidence before the court? When the answer to both questions is yes and a party requests findings and conclusions, all parties benefit from the extended appellate timetable.

The first question is categorical, not case-specific. For example, it will be answered yes for a judgment following a bench trial, a default judgment on a claim for unliquidated damages, a judgment rendered as sanctions, and any other judgment that could be based in any part on an evidentiary hearing.

The second question is case-specific and focuses on whether evidence was presented to the trial court, not whether that evidence proved to be necessary in hindsight. In answering this question, it is not relevant whether the evidence presented was disputed, or jurisdictional, or material to an issue later raised on appeal.” Phillips v. McNeill, No. 19-0831 (Dec. 3, 2021) (citations omitted, emphasis added) (applying IKB Inus. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997) and Gene Duke Builders, Inc. v. Abilene Housing Auth., 138 S.W.3d 907 (Tex. 2004) (per curiam)).

“In the motion for summary judgment, the movant must expressly present the grounds upon which the motion is made. A ‘ground’ is a reason the movant is entitled to judgment and is not presented by mere reference to the summary judgment evidence. The nonmovant need not object to a summary judgment motion that presents no grounds because such a motion is insufficient as a matter of law.” Funmilayo v. Aresco, L.P., No. 05-20-00492-CV (Nov. 30, 2021) (mem. op.) (citations omitted).

. . . But in our service.” Cf. Julius Caesar, Act I, Scene III. The key phrases in the return of service in Pro-Fire & Sprinkler, LLC The Law Co. were as follows:

The panel majority concluded this return was defective because (1) the pleading was attached to the door without looking for someone over 16 to receive it, as required by the substituted-service order, and (2) the return was inconsistent, saying both that the pleading was attached to the door and served “in person.” A dissent saw these matters as the sort of “incidental details” that do not require reversal. No. 05-19-01490-CV (Nov. 29, 2021).

 

In an echo of Toyota Motor Sales v. Reavis, 627 S.W.3d 713 (Tex. App.–Dallas 2021, pet. filed), the Fifth Court found that the plaintiff’s expert testimony in a significant car-accident case was sufficient to create legitimate jury issues on the topics of (1) “human factors” testimony about design defect, (2) a mechanical engineer’s testimony about a safer alternative design, and (3) proximate cause. American Honda Motor Co. v. Milburn, No. 05-19-00850-CV (Nov. 24, 2021) (mem. op.).

“[A]ppellants assert that the order disposes of all issues based, in part, on language at the end of the order stating that ‘[a]ll other relief not expressly provided for herein is DENIED.’ The Texas Supreme Court, however, has specifically rejected such language as an indicator of an order’s finality, concluding that when, as here, no conventional trial on the merits has occurred, an order is final for purposes of appeal only if it ‘actually disposes of every pending claim and party’ or ‘clearly and unequivocally states’ it finally disposes of all parties and claims. Because the order here leaves the amount of attorney’s fees, expenses, and costs to be determined, it is not final and appealable.” Page v. 3838 Oak Lawn, No. 05-21-00859-CV (Oct. 29, 2021) (mem. op.) (applying Lehman v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001)). My LPHS colleagues Sam Hardy and Dan Polese represented the successful movant in this matter.

The Fifth Court deftly aligned the parties’ arguments about mask requirements with the Texas Disaster Act’s statement of purpose in Abbott v. Jenkins: “Based on the evidence in the record, the trial court acted within its discretion to conclude that Jenkins demonstrated a probable right to relief on the ground that Abbott lacked authority to suspend [Tex. Gov’t Code] section 418.108 because imposing a face-covering mandate does not prevent, hinder, or delay necessary action in coping with a disaster. Arguably, the evidence shows the opposite—that by imposing a face-covering mandate, Jenkins furthered Abbott’s stated goals to preserve livelihoods and protect lives through the least restrictive means available. No. 05-21-00733-CV (Nov. 22, 2021) (emphasis added).

(This is a crosspost from 600Hemphill.) The Energizer Bunny, famously, keeps on going. Not so, the contract between Pura-Flo and Donald Clanton, under which Pura-Flo committed to pay Clanton a monthly fee for the use of fifty water coolers. The supreme court reversed and rendered as to an award of future damages in a lawsuit between them, observing:

“Here, no evidence indicated the contract would endure for any length of time, let alone five years after trial. Perhaps, as the court of appeals suggested, the jury sought to award Clanton either the amount Vanderzyden originally paid Pura-Flo to buy the water coolers in 1994 or the amount Pura-Flo’s investment proposal claimed the company would pay to repurchase the water coolers after sixty months. But neither suggested rationale can be the basis for an award of future damages, which, as evidenced by its name, is an award for damages that Clanton was reasonably certain to incur in the future. Without evidence that the contract would continue in the future, the jury’s $50,000 future-damages award has no reasonable basis in evidence and therefore was not reasonably certain as required by law.

Pura-Flo Corp. v. Clanton, No. 20-0964 (Nov. 19, 2021) (per curiam) (citations omitted, emphasis added).

“An unexplained delay of four months or more can constitute laches and result in denial of mandamus relief … Here, relator did not file the petition for writ of mandamus until September 22, 2021–five months after the challenged order. We conclude that relator’s unexplained delay bars their right to mandamus relief.” In re Weatherall Family Funeral Services, LLC, No. 05-21-00826-CV (Nov. 8, 2021) (mem. op.).

The key facts of In re Woods Capital Enterprises are as follows:

  • Woods Capital sued DXC Technology in Collin County for breach of a contract to sell real property, and filed a lis pendens.
  • DXC moved to dismiss under the TCPA and to expunge the lis pendens.
  • The trial court expunged the lis pendens, after which DXC (a) tabled its fee application related to the lis pendens, given the pending TCPA motion, (b) argued and won the TCPA motion, and (c) sought fees in connection with the TCPA motion.
  • The trial court then dismissed Woods Capital’s case, awarded fees to DXC, and included a “Mother Hubbard” clause in that order.
  • Woods Capital appealed and obtained reversal of the TCPA ruling in DXC’s favor. Upon remand, Woods Capital nonsuited its claims and filed a new suit in Dallas County.
  • In the Collin County case, DXC filed a counterclaim for its fees associated with the lis pendens ruling.

Woods Capital filed a plea to the jurisdiction against the counterclaim, noting its nonsuit. The Collin County trial court denied the plea and the Fifth Court granted mandamus relief against that ruling, holding that the nonsuit – coupled with the Mother Hubbard clause in the earlier order – extinguished the earlier lawsuit. “Had DXC believed the trial court erred by denying its lis pendens fee application, it needed to file a cross appeal in the TCPA case.” No. 05-21-00188-CV (Nov. 8, 2021) (mem. op.).

The Texas Supreme Court is using a new, standard layout for its opinions. Similar in some ways to what the Fifth Circuit has used for some time (most notably, the use of Old English for the court name), it is based on a Century font rather than the Equity font used by the Fifth Circuit.

In a temporary-injunction appeal, the Fifth Court reasoned: “During the time of COVID, remote proceedings and electronic submissions are the rule rather than the exception. Sohail’s submission of his affidavit and other evidence electronically prior to the Zoom videoconference was in compliance with the trial court’s standing order. Sohail’s evidence was put into the record, referenced and discussed without objection from appellants. Although the trial court did not use ‘magic words’ admitting into evidence Sohail’s affidavit and electronic submissions, the trial court’s order granting a temporary injunction repeatedly states that it was based on Sohail’s evidence.” Kazi v. Sohail, No. 05-20-00789-CV (Oct. 28, 2021) (mem. op.).

After reviewing a range of cases about term limits, the Fifth Court applied them to a trust-governance issue in Employees’ Retirement Fund v. City of Dallas, holding:

“The imposition of term limits for elected Fund board members added a substantive qualification for office that rendered a class of potential candidates ineligible and effected a fundamental change to the Trust Document, which must follow the amendment process set out in the Trust Document itself. The City did not follow the amendment process set out in section 40A-35 of the City Code. Rather, in enacting section 8-1.5(a-1), the City attempted to accomplish indirectly what it was prohibited from doing directly. Accordingly, we sustain the Fund’s first and third issues.”

No. 05-20-00494-CV (Oct. 29, 2021) (emphasis added).

 

In addition to other points about “apex depositions,” the supreme court rejected an argument that an unreasonable delay barred mandamus relief:

“American reasonably explained the year-long period between the trial court’s order compelling Eberwein’s deposition and American’s mandamus filing in the court of appeals. The record establishes that American did not receive notice of the order until four months after its issuance. At that point, the parties were on notice that the order set preconditions to Eberwein’s deposition by requiring Arnette to serve a new deposition notice designating deposition topics. To date, neither has occurred, with no explanation on Arnette’s part. As the trial date loomed, first in December 2020 and now in December 2021, American prudently sought mandamus relief to avoid the necessity of rescheduling the trial. On this record, the delay is neither unexplained nor unreasonable.”

In re American Airlines, Inc., No. 20-0789 (Oct. 22, 2021) (per curiam) (reaching a different conclusion than the Fifth Court of Appeals did in 2020.

The Fifth Court reminded about a basic requirement for mandamus relief in In re Chron: “[W]e conclude that relator has failed to demonstrate that he sought relief in the trial court for the alleged abuse of discretion before bringing his petition for writ of mandamus before this court. Accordingly, we deny the petition for writ of mandamus without prejudice to refiling a petition with a record that reflects that the predicate request requirement has been met.” No. 05-21-00899-CV (Oct. 21, 2021) (mem. op.) (applying In re: Coppola, 535 S.W.3d 506, 50 (Tex. 2017) (orig. proceeding)).

Even on a court that has strong differences of opinion about the law that defines the boundary between the judicial process and arbitration, some questions command consensus–in Holifield v. Barclay Properties, Ltd., the Fifth Court agreed that “a bilateral agreement to arbitrate under the AAA rules constitutes clear and unmistakable evidence of the parties’ intent to delegate the issue of arbitrability to the arbitrator.” No. 05-21-00239-CV (Oct. 5, 2021) (mem. op.) (citations omitted).

The Fifth Court reversed a sanctions award arising from a discovery dispute involving a subpoena to a health-care provider, finding weaknesses in the supporting record that included these matters:

  • Technical problems with the subpoena papers. “Incomplete preparation and service of the subpoena, however, is not evidence of Allstate’s bad faith, harassment, or improper purpose necessary to overcome the presumption that pleadings are made in good faith.”
  • Other litigation. “ROSIT’s allegations of sanctionable conduct rest on its contention that, based on a history of intentional noncompliance in other cases, Allstate intentionally failed to comply with the requirements for service of a subpoena and then filed the motion in bad faith, for an improper purpose, and to harass ROSIT. The trial court’s findings of sanctionable conduct were based in part on this history. But Allstate’s motion for sanctions with its attachments was limited to ROSIT’s noncompliance with service in this case.”
  • Alleged discovery agreement. “In its motion and at the hearing, and as reflected in the trial court’s findings and conclusions, ROSIT complained of Lexitas’s ‘repeated refusal to comply’ with an alleged agreement regarding service of depositions on written questions directed to ROSIT in this and other cases. Although the trial court cited this failure in its findings, no evidence of any such agreement was admitted.”

Allstate Property & Casualty Co. v. Ford, No. 05-20-00463-CV (Oct. 15, 2021) (mem. op.).

The annual Appellate Judges Education Institute, hosted by the Appellate Judges Conference, an arm of the American Bar Association’s Judicial Division, will be held November 11-14, 2021, at the Hyatt Regency in Austin, Texas. This Appellate Summit offers four days of advanced-level appellate educational programming and is the largest nationwide gathering of appellate jurists and advocates. The most recent Summit sold out and the ABA had to cut off registrations early. Early-bird registration for the 2021 Summit is now open through October 15, 2021. Over 100 judges from throughout the country have already signed up for the Summit.

This year’s summit features speakers on the following topics, among others:

  • How Judges Read in an E-filing Era
  • Top-Notch Oral Argument Answers
  • Managing Stress and Strengthening Resiliency: Practical Strategies for Judges and Lawyers
  • Building and Growing an Appellate Practice
  • Supreme Court Preview
  • Writing from the Reader’s Perspective: How the English Language Really Works
  • United States Supreme Court Civil Update
  • Storytelling for Advocates and Judges: How and Why We Should Incorporate Storytelling Techniques and Themes into our Work

Panelists include:
Erwin Chemerinsky, Dean of the University of California, Berkeley, School of Law
Hon. Nathan Hecht, Chief Justice, Texas Supreme Court
Hon. Bridget Mary McCormack, Chief Justice, Michigan Supreme Court
Hon. Albert Diaz, United States Court of Appeals for the Fourth Circuit
Hon. James Earl Graves Jr., United States Court of Appeals for the Fifth Circuit
Hon. Consuelo Callahan, United States Court of Appeals for the Ninth Circuit
Hon. Steven H. David, Indiana Supreme Court
Hon. Marsha Ternus, former Chief Justice, Iowa Supreme Court
Hon. Samuel A. Thumma, Arizona Court of Appeals
Hon. Martha Warner, Fourth District Court of Appeal, Florida
Hon. David W. Ellis, Illinois Court of Appeals and best-selling author
Kannon K. Shanmugam, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP
George Gopen, Ph.D., Professor Emeritus of the Practice of Rhetoric, Duke University & Consultant on Writing the English Language

The summit will be taking place in a hotel that will easily accommodate social distancing for attendees and presenter. The ballroom boasts over 14,000 square feet and a ceiling height of 22 feet. It is rated to hold more than 1,000 attendees during normal times, but will be capped at 400 attendees. Round tables will be set with no more than 4-5 seats instead of the usual 7 to 8. The opening reception at the Bullock Museum will be held in the museum’s Grand Lobby, which has a capacity of 600. Additionally, a color coding system, to reflect your social distancing preference, will be offered at registration. Meals also will have enhanced safety measures.

For further details on speakers, programs, and registration, go to: https://lnkd.in/exxjtGjA.

The appellant in Square 9 Softworks v. SIPS Consults Corp. appealed the denial of its special appearance, arguing that because it proved itself to be a nonresident, that showing sufficed in the absence of adequate jurisdictional allegations. Unfortunately, it did not appeal the striking of the declaration that would have established that matter:

“In this case, however, even if we assume SIPS failed to plead sufficient jurisdictional facts, the only evidence submitted by Square 9 to prove it was not a Texas resident, and the only evidence it points to on appeal, is the sworn declaration signed by Frattini that was struck in its entirety from the record by the trial court. Square 9 does not challenge the trial court’s striking of the sworn declaration. Accordingly, we cannot consider the declaration as part of the evidence to be considered on appeal.”

No. 05-20-01116-CV (Oct. 11, 2021) (mem. op.)

The original incarnation of the TCPA was widely criticized for broad language that included a wide range of civil litigation. After its amendment, opinions such as CBS Stations Group v. Burns remind that, at its core, the TCPA serves an important role in protecting First Amendment rights; here, a local TV station’s coverage of a bank robbery:

“We conclude Burns failed to present clear and specific evidence that CBS knew or should have known that publication of the photograph in connection with the report on the robbery was false. Further, there is no evidence supporting a conclusion that a photograph obtained from a law enforcement agency after a public–information-act request using the correct name and birth date of the individual would warn a reasonably prudent broadcaster of its defamatory potential.”

No. 05-21-00042-CV (Sept. 27, 2021) (mem. op.). Of special note, the panel includes Justice Ken Molberg, author of Dyer v. Medoc Health Services, 573 S.W.3d 418 (Tex. App.–Dallas 2019, pet denied), which thoroughly reviewed and significantly limited the TCPA’s protection of the right of association, compared to some earlier opinions by other courts of appeal on the topic.

These facts led to a problem with the timeliness of the notice of appeal in Jordan Kahn Music Co. v. Threlkeld:

  • January 19, 2021. Trial court signs interlocutory order granting a TCPA motion to dismiss, and orally invites the movant to submit a fee affidavit;
  • February 28, 2021. Trial court signs a final judgment, including a fee award.
  • Nonmovant timely moved for a new trial.
  • May 24, 2021. Notice of appeal filed.

The Fifth Court held that the February 28 judgment was a “trial court order on a motion  to dismiss … under section 27.003” under the relevant statute, and thus triggered the 20-day deadline for perfecting an accelerated appeal–for which, the filing of a motion for new trial does not extend the perfection deadline is it otherwise would. No. 05-21-00381-CV (Sept. 29, 2021) (mem. op.).

Texas rules about preservation of no-evidence points are generally more forgiving than the federal rules, although they are not without nuance, one of which became important in American Pride Xpress Logistics v. Joe Jordan Trucks: “Although [Appellants] moved for a directed verdict after appellee rested, and the trial court denied the motion, they proceeded to present their own evidence and did not re-urge the motion for directed verdict when the evidence closed. ‘If a party proceeds to present evidence after that party has moved for a directed verdict, such party must reurge the motion for directed verdict at the close of the case, or any error in its denial is waived.'” No. 05-20-00281-CV (Sept. 24, 2021) (mem. op.) (citation omitted).

Including deposition excerpts in a trial record can become complicated, and in American Pride Xpress Logistics v. Joe Jordan Trucks, it led to a preservation problem: “During appellee’s case in chief, it presented the testimony of Lee Cox, the attorney who prepared the deed ….  Cox testified through a videotaped deposition. Before the testimony was played for the jury, appellants’ attorney told the court, ‘We have asked that the court reporter not transcribe this portion since we’ve got a transcript of it.’ However, the transcript of Cox’s testimony was not made part of the record. Without Cox’s testimony, the reporter’s record is incomplete, and we must presume his testimony supported the trial court’s judgment.” No. 05-20-00281-CV (Sept. 24, 2021) (mem. op.).

“The preservation requirements of appellate rule 33.1 apply to arbitrations.” And just as in a traditional litigation setting, the lack of a record created preservation problems in Alia Realty LLC v. Alhalwani: “In addition to a silent record as to whether appellees informed the arbitrator that the extended time to file a supplemental expert report was insufficient before proceeding to arbitration, appellees failed to make any such complaints in two postarbitration briefs. Instead, they argued the evidence was insufficient to support the arbitration award because appellants’ expert’s opinions were unsupported speculation, and their expert, unlike appellant’s expert, used the proper accounting analysis by reconciling bank accounts.” No. 05-21-00265-CV (Sept. 23, 2021) (mem. op.).

The Who memorably asked, “Who Are You?” In that spirit, the case of MBM Family Trust No. 1 v. GE Oil & Gas, LLC examined a claim that a trustee had acted solely in her individual capacity, rather than in her trustee capacity, and was thus not subject to personal jurisdiction in Texas in a judgment-collection lawsuit. Whatever theoretical force this argument may have had, the Fifth Court found that it lacked support in the testimony presented, which did not draw this distinction and which also presented credibility issues that the judge had resolved against the appellant. No. 05-20-01103-CV (Sept. 17, 2021) (mem. op.).

  • Atlas Shrugged.” Ayn Rand, 1957.
  • “Jesus wept.” John 11:35.
  • “Mandamus lied.” Synopsis, State v. Walker, 679 S.W.2d 484 (Tex. 1984).

(H/T to Ben Taylor for showing this one to me!)

“‘”Breach’” of a contract occurs when a party fails to perform an act that it has contractually promised to perform.’ Under terms of the agreement, Hinojosa merely agreed to allow the first $258,996.16 in proceeds from the sale to go to LaFredo with any remaining proceeds to be split between them. LaFredo does not identify any action taken by Hinojosa that precluded him from receiving any of the proceeds from the sale. To the contrary, the record before us suggests LaFredo received all the available proceeds, used a portion to pay for the Canton Street condominium, and signed a settlement statement reflecting his agreement to this disbursement. That LaFredo spent a portion of the proceeds to purchase the Canton Street condominium is not evidence, much less conclusive evidence, that Hinojosa breached the One Arts Plaza Agreement. Based on the record before us, we conclude LaFredo has not conclusively shown, as he must, that Hinojosa breached the One Arts Plaza Agreement.” Hinojosa v. LaFredo, No. 05-20-00166-CV (Sept. 20, 2021) (emphasis added).

After a supreme court opinion earlier this year, the Fifth Court revisited the question whether PNC’s effort to foreclose a subrogation lien claim was time-barred. It held:

  • Accrual. Recognizing that “Texas case law gives conflicting answers to this issue,” the Court concluded that “the correct result is the one first reached by Kone in 1927. The lender’s cause of action to enforce its subrogation lien rights accrues on the date the refinancing loan matures.” (citing Kone v. Harper, 297 S.W. 294 (Tex. App.–Waco 1927, aff’d, 1 S.W.2d 857 (Tex. Comm’n App. 1928)).
  • Limitations period.  The Court applied the four-year statute that governs other lien actions, reasoning: “PNC cannot, in the name of equity, have more rights than the party to which it is subrogated, and those rights are subject to the same defenses the borrower would have had against the original lender.”

PNC Mortgage v. Howard, No. 05-17-01484 (Sept. 17, 2021).

The allegedly overlapping fraud and contract claims in Benge General Contracting v. Hertz Electric were as follows:

  • “Appellees’ breach-of-contract counterclaim was based on ‘enforceable agreements’ under which appellees agreed to provide ‘electrical contracting and painting services at several jobsites in North Texas’ in exchange for BGC’s promise to compensate appellees for the services.”
  • “Their fraud counterclaim, as stated in appellees’ fourth amended counterclaims, was based on Dennie’s reliance [on] Benge’s allegedly false representation that he would pay for work performed by appellees ‘in exchange for the signing of lien releases.’ Appellees alleged that appellants knew the representations were false when made and omitted facts regarding Benge’s misappropriation of project funds otherwise intended to compensate appellees for work performed.”

The Fifth Court concluded: “Appellants characterize this counterclaim as fraud by omission and argue there is no evidence a special relationship to support such a claim. … The gravamen of appellees’ fraud counterclaim, however, was not that Benge fraudulently omitted information but that he fraudulently induced Dennie to sign lien waivers to obtain a payment he never intended to make; indeed, a payment already owed under the contracts. Thus, appellees stated a claim for fraudulent inducement.” No. 05-19-01506-CV (Sept. 7, 2021) (mem. op.) (later modified slightly on rehearing).

The peculiar treatment of attorneys’ fee awards against LLCs in contract cases, by the now-repealed version of CPRC § 38.001, led to the resolution of a novel issue in Benge General Contracting, LLC v. Hertz Elec., LLC: “Absent mandatory, or at least persuasive, authority applying the alter-ego theory to hold an LLC’s members liable for attorney’s fees that could not be incurred by the LLC, we must abide by the plain statutory language. Accordingly, we conclude that the trial court abused its discretion in awarding attorney’s fees, and we sustain appellants’ first issue.” No. 05-19-01506-CV (Sept. 7, 2021) (mem. op.).

Judge Gregg Costa memorably described the McDonnell-Douglas burden-shifting framework as “the ‘kudzu’ of employment law.” Nall v. BNSF Railway Co., 917 F. 3d 335 (5th Cir. 2019) (Costa, J., specially concurring). The painstaking majority and dissenting opinions in Addante v. Univ. of Tex. at Dallas, No. 05-20-00376-CV (Sept. 8, 2021) illustrate the amount of detail work required to evaluate a complex retaliation case and deserve study by anyone who practices in that area in state court.

In a supersedeas-bond dispute, the Fifth Court held: When Real Parties withdrew the deposit without the court’s authorization, they assumed the risk that their withdrawal might be improper and that the court might require them to redeposit the funds. Moreover, Real Parties received the full benefit of having the partition-and-sale order superseded during the years that the order was on appeal. The trial court may determine whether equity requires ordering Real Parties to return the supersedeas to the court’s registry for the court to determine the amount of Relators’ damages during the appeal.” In re Pelley, No. 05-21-00314-CV (Aug. 31, 2021) (mem. op.) (emphasis added).

After the Texas Supreme Court (again) signaled that it preferred to review mask-mandate cases after intermediate court review of a temporary injunction record, the Fifth Court granted a motion to expedite the Dallas mask case, and it is moving on the following schedule:

The successful party in an arbitration obtained confirmation of the award before the trial court ruled on the other party’s special appearance. The Fifth Court reversed, citing TRCP 84 and 120a as well as its own precedent: “Jayco was entitled to have its special appearance adjudicated prior to any decision on the merits.  The rules of civil procedure give a trial court no discretion to hear a plea or pleading, including a motion to confirm an arbitration award, before hearing and determining a special appearance.”  Jayco Hawaii LLC v. Viva Railings, LLC, No. 05-20-00528-CV (Aug. 25, 2021) (mem. op.) (citations omitted, emphasis added).

Prime argued that fraudulent inducement tolled limitations on its fraud claims, citing an email in which the defendant said: “I ask that you extend this [deadline] to at least 90 days or some other requirement so we have the chance to find another investor, do the paperwork, and get his funding.” The Fifth Court disagreed, stating that the “request to extend the time to ninety days by itself is simply not a representation, promise, or an agreement that would extend the accrual of a cause of action.” Prime United Petroleum Holding Co., LLC v. Malameel, LLC, No. 05-20-00032-CV (Aug. 24, 2021) (mem. op.) (emphasis in original).

The Texas Supreme Court’s longtime staff attorney for public information, Osler McCarthy, retires on August 31 after many years of dedicated service. I wanted to salute his hard work and share a well-written tribute to him recently prepared by former Chief Justice Wallace Jefferson.

Footnote 3 in the recent en banc majority opinion from Steward Health Care System v. Saidara suggests a promising special exception in cases with general allegations about unfair competition:

Appellants do not specify the branch of “unfair competition” they allege. See, e.g., James E. Hudson, III, A Survey of the Texas Unfair-Competition Tort of Common-Law Misappropriation, 50 BAYLOR L. REV. 921, 924–26 (1989) (noting Texas common law recognizes three branches of unfair competition: palming off, trade-secret misappropriation, and common-law misappropriation); RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 40 cmt. a (AM. LAW INST. 1995) (stating that unfair competition includes torts for misappropriation, infringement, unjust enrichment, and breach of confidence, but not breach of contract, breach of the duty of loyalty owed by an employee or other agent, or breach of confidence not involving a trade secret). Rather, they generally refer to their claim as “Unfair Competition” and contend that “by misleading Steward with their misrepresentations that Prospect intended to buy the assets of Southwest General and thereby inducing Steward to make Southwest General’s most sensitive business information available to Prospect senior executives and ultimately all of Prospect, Prospect and Saidara have engaged in conduct that is contrary to honest practices in commercial matters.”

The panel majority in Winstead PC v. Moore concluded that the TCPA applied to two of three tort claims by a client against his legal counsel, holding that they implicated the firm’s right of petition, while the third did not have a sufficient connection to the exercise of that right. No. 05-20-00050-CV (Aug. 20, 2021). A dissent would have applied the TCPA to all claims and, from there, concluded that the plaintiff failed to meet its burden.

An en banc majority opinion, overruling prior case law to the contrary, held “that the plaintiff must meet its initial burden on a special appearance by pleading, in its petition, sufficient allegations to invoke jurisdiction under the Texas long-arm statute.” (emphasis in original). (Relatedly, under the relevant supreme court precedent, “[t]he plaintiff’s response to the special appearance may contain evidence supporting the petition’s jurisdictional allegations, but that evidence must be consistent with the allegations in the petition.”) Steward Health Care System LLC v. Saidara, No. 05-19-00274-CV (Aug. 20, 2021). Other opinions were written.

Quintanilla v. ANG Rental Holdings, provides a cautionary note about proving up attorneys’ fees, even in the relative informality of a bench trial on frequently litigated issues:

  • The appeal arose from a de novo retrial, to the bench, of an FED action in county court; as a result, “an appellant may raise a no-evidence point for the first time on appeal.”
  • The record was silent as to (a) an 11-day notice required by the statute allowing fee recovery, and more basically (b) “no evidence of a written lease that entitles ANG to recover attorney’s fees.”
  • Why? Because “the lease agreement was excluded from evidence because of the [tenants’] objection, and ANG made no according offer of proof or bill of exception.”

No. 05-20-00062-CV (Aug. 16, 2021) (mem. op.).

Relying on my fortune-telling skills (right), I offer these thoughts on the recent Texas Supreme Court orders in the ongoing mask litigation:

  1. The court could have effectively ended the litigation with a complete stay, as it did last week in the “arrest the legislators” case.
  2. It didn’t do that. Instead, it let temporary injunction hearings go forward in both Bexar and Dallas Counties. The Bexar hearing is today.
  3. A decent guess is that there is division of opinion on the court and this order is a rough compromise, among: (a) Justices who would have ruled for the Governor (who “got something” in the form of the initial TROs being vacated; (b) Justices who want to further consider the evidence (or lack thereof) (and who “got something” by the TI hearings proceeding; and (c) Justices who were willing to “kick the can down the road” until after the TI hearings.

The Fifth Court affirmed the dismissal, on ecclesiastical-abstention grounds, of a fraud claim about the handling of a sex-abuse claim by the Roman Catholic Diocese of Dallas: “The district court determined that (i) the Dallas Diocese’s Sexual Misconduct Policy (Policy) was ‘an outgrowth of, or so integrally related to, the Dallas Diocese’s dogma that it comprises part of the Dallas Diocese’s religious representations, beliefs, and teachings,’ (ii) Doe’s fraud claim required Doe to prove the Dallas Diocese’s material representations to Doe were false, and (iii) the First Amendment to the Constitution of the United States prohibited the trial court from adjudicating the truth or falsity of religious doctrines or beliefs. Because Doe’s claims require resolution of matters of church government, we affirm the judgment of the trial court.” Doe v. Roman Catholic Diocese of Dallas, No. 05-19-00997-CV (Aug. 11, 2021) (mem. op.).

An old lawyers’ adage, sometimes attributed to Carl Sandburg, says in part: “If the facts are against you, argue the law. If the law is against you, argue the facts. …” Such are the battle lines in the Dallas County mask-mandate case now before the supreme court, in which the real-party-in-interest county judge points to an extensive affidavit and the support of several amici, while the SG’s office laser-focuses on the terms of the Government Code.

The dispute between Governor Abbott’s GA-38 order, on the one hand, and Judge Tonya Parker’s TRO / County Judge Clay Jenkins’ recent COVID order, on the other, has led to the filing of a mandamus petition in the Fifth Court on the Governor’s behalf. It is accompanied by a request for emergency relief that requests a ruling by Friday afternoon.

While In the Interest of Z.A. involved an issue unique to family law, the relevant facts are instructive about when the denial of a continuance can create reversible error: “Evidence presented at the hearing indicated that E.S.S. [the ‘alleged father’ was indigent and without transportation. Further, he was operating under the faulty assumption that testing would be scheduled in Sherman when he moved there. There was no testing facility in Sherman, however, and the caseworker did not inform him of this fact. And, as of the hearing date, E.S.S. was incarcerated in the Grayson County Jail. Although there is evidence the Department made some attempt to schedule a third appointment at the jail, there is no evidence as to why that did not happen. His attendance at a third appointment would have essentially been assured had it been scheduled to take place at the Grayson County Jail. When E.S.S. presented his motion, he asked the trial court to schedule the genetic testing before terminating his parental rights.” No. 05-21-00126-CV (Aug. 6, 2021) (mem. op.).

“An unexplained delay of four months or more can constitute laches and result in denial of mandamus relief.  Here, relators did not file the petition for writ of mandamus until July 28, 2021—more than four and a half months from the challenged oral ruling and three months after the trial court signed the complained-of order. We conclude that relators’ unexplained delay bars their right to mandamus relief.” In re Wages & White Lion Investments LLC, No. 05-21-00650-CV (July 30, 2021) (mem. op.) (citations omitted).

Two rulings about the crime-fraud exception to the attorney-client privilege were recently reversed, by both the Fifth Circuit and Dallas’s Fifth District, in response to mandamus petitions. (This is a cross-post with 600Camp.com.)

  • In the Fifth Circuit: “[A]s Boeing argues, the district court clearly erred in finding that Plaintiffs established a prima facie case that the contested documents were subject to the crime-fraud exception. The district court concluded that the contested documents were reasonably connected to the fraud based on one finding only—that the documents sought ‘f[e]ll within the period Boeing admit to hav[ing] knowingly and intentionally committed “fraud” in the DPA. However, a temporal nexus between the contested documents and the fraudulent activity alone is insufficient to satisfy the second element for a prima facie showing that the crime-fraud exception applies.” In re The Boeing Co., No. 21-40190 (July 29, 2021, unpublished).
  • In the Fifth District, the Court noted: “[A] determination at the TCPA stage as to a prima facie showing does not automatically translate to a prima facie showing for purposes of application of the crime–fraud exception to the attorney–client privilege. The exception UDF attempts to invoke is for crime–fraud, not crime–tort.” From there, it declined to follow a broad view of the exception defined by another Texas intermediate court, “and note that, notwithstanding certain language in the [relevant] opinion, the El Paso court continues to apply the elements of common-law fraud when determining the applicability of the crime fraud exception, rather than requiring proof of a false statement only.” In re Bass, No. 05-21-00102-CV (July 30, 2021) (mem. op.).

Mike Nomad (right) would have been at home in Forever Living Products, Int’l, LLC v. AV Europe GMBH, No. 05-20-00558-CV (July 30, 2021), a personal-jurisdiction appeal in which the record failed to show where the defendant corporation was based. The Fifth Court found that the plaintiff’s pleading asserted general jurisdiction over the defendant; the defendant sought to negate that basis for jurisdiction with affidavits about the location of its “nerve center.” The Court found that while the defendant had substantial connections to Germany at other points in time, in the relevant months leading up to the filing of suit its evidence was legally insufficient to negate general jurisdiction:

“AV Europe’s own evidence shows that its managing director has lived in Texas full-time since July 2018. It also shows that since June 2018 AV Europe ‘has been winding down,” which implies some level of activity, and that its activities have included at least the return of unsold products to HW&B. We see no evidence showing the location from which Hardy [the directpr] or any other AV Europe officer (if any) controlled these activities. We therefore conclude that the evidence was legally insufficient to show that AV Europe’s nerve center was outside of Texas from June 2018 until the filing of suit in January 2019.”

The Fifth Court revisited the borderline between “capacity” and “standing” in the context of a claim acquisition from bankruptcy in Obsidian Solutions, LLC v. KBIDC Investments, LLC, No. 05-19-00440-CV (July 30, 2021) (mem. op.).

Substantively, the Court reminded: “The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome; in contrast, the issue of capacity ‘is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.’ …  ‘When the issue involves capacity arising from a contractual right, “Texas law is clear, and this court has previously held numerous times, that a challenge to a party’s privity of contract is a challenge to capacity, not standing.”‘” (citations omitted, emphasis added).

Procedurally, the issue was tried by consent, even if the correct label was not applied.   “[A]t trial, the issue of whether KBIDC bought the assets out of bankruptcy and which assets were purchased arose during KBIDC’s direct examination of Kent. … The trial court listened to arguments from both sides on their interpretations of the APA before finding that the APA gave ‘authority to the Plaintiff for … the advancement of this suit.’ Given the parties’ arguments and the trial court’s ruling, we conclude that capacity was tried by consent in the trial court.” (emphasis added).

In TOS episode The Changeling, the Enterprise crew confronted a hostile space probe called “Nomad” (right). In Great Divide Ins. Co. v. Fortenberry, the Fifth Court confronted a nomadic case in which neither side established venue in Dallas County, when a provision of the Workers’ Compensation Act requires a case to proceed in the county where the employee resided at the time of injury.

The plaintiff, a former Dallas Cowboy, averred that he lived in a Residence Inn in Dallas County at the time of his training-camp injury, but the Court found his affidavit did not establish the necessary facts that he had “some right of possession and not be a mere visitor” at the time. It also rejected arguments based on correspondence he received from the defendant insurance company’s office in Irving. But on the other hand, the insurance company failed to establish that it had a “principal office” in Travis County, just by showing that its agent for notice and filing was based there. Accordingly, the Court remanded for further development of the record about venue. No. 05-19-01541-CV (July 26, 2021) (mem. op.).

In Ferrant v. Lewis Brisbois, No. 05-19-01552-CV (July 14, 2021) (mem. op.), a law firm client contended that no evidence established his consent to an hourly billing arrangement; the Fifth Court affirmed the judgment against him based on this “acknowledgment” at the time the client moved his business from another law firm —

and a “yes” answer to this jury question:

 

 

In re Frenkel illustrates an important procedural aspect of practice regarding sanctions; specifically, the supreme court’s holding in Braden v. Downey, 811 S.W.2d 922 (Tex. 1991) (orig. proceeding) about the interplay between an interlocutory sanctions order and the right to its appellate review.

In this case, the Fifth Court found that mandamus review of a $1000 sanction payable to TLAP was warranted because after final judgment, “the trial court would not have the means to compel TLAP to return the monetary sanction.”

Similarly, it found that a requirement to take certain ethics CLEs within 24 months of the order also require mandamus intervention, as “[t]here is no guarantee that a final appealable judgment will be rendered before the twenty-four month period expires,” particularly in light of the COVID pandemic. Accordingly, the Court required the trial court to defer both orders “until rendition of final judgment, thus allowing the merits of the sanctions order to be considered on appeal.” No. 05-21-000194-CV (July 13, 2021).

Two recent supreme court opinions involved the enforcement of statutes that the Court saw as prohibiting the filing of the action–In re: Academy, No. 19-0497 (June 25, 2021), in which a federal statute said that the specified kinds of cases about firearms sales “may not be brought in any Federal or State court,” and In re: Facebook, No. 20-0434 (June 25, 2021), about the Communications Decency Act’s command that “[n]o cause of action may be brought” about the subject matters of that Act. Both were enforced by petitions for writ of mandamus, based on the principle that “requiring [Defendant] to ‘proceed to trial–regardless of the outcome–would defeat the substantive right’ granted by” those statutes.

In Luciano v. SprayFoamPolymers LLC, No. 18-0350 (Tex. June 25, 2021), while the Texas Supreme Court said in a footnote that it was not addressing this specific question, its holding suggests that Texas’s focus on the “operative facts” of a case continues to have force in personal-jurisdiction disputes after the U.S. Supreme Court’s recent opinion in Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021): “Because the United States Supreme Court has confirmed that due process does not mandate a causation-only approach, we reject SprayFoam’s narrow conception of the relatedness requirement.  Instead, we apply the Supreme Court’s precedent to determine whether the Lucianos’ suit “arise[s] out of or relate[s] to” SprayFoam’s Texas contacts.”  

The trial court dismissed the plaintiff’s case in Ashrat v. Choudhry as involving a dispute about rights to real property located in Pakistan. The Fifth Court disagreed, noting as to the claim:

Ashrat does not dispute that Choudhry has title to the property in Pakistan. And, by this suit, Ashrat does not seek to divest Choudhry of that title. Instead, Ashrat seeks return of the money he gave Choudhry to purchase the property and disgorgement of any monies received by Choudhry as a result of his misuse of Ashrat’s funds.

and as to forum non conveniens:

Texas courts clearly have an interest in resolving a dispute between its citizens regarding an alleged agreement made within the State and claims of misappropriation and breach of fiduciary duty based upon that alleged agreement.

No. 05-20-00515-CV (June 30, 2021) (mem. op.).

If you are an email subscriber to this blog’s new posts, or subscribe to its RSS feed, please know that Google has discontinued its “Feedburner” service, so 600Commerce is converting to a similar (but hopefully much improved) service offered by “Follow.it.” With luck, the transition will be seamless. But if you experience a loss of service – or the opposite problem of multiple deliveries – please notify me at dcoale@lynnllp.com. Many thanks for subscribing

This is a cross-post from 600Hemphill, which follows commercial litigation inthe Texas Supreme Court: ______ If you doubted that the written word carried dispositive weight in the current Texas Supreme Court, please consider these cases that lead up to an oil-and-gas opinion of last week:
  • In 2019, Bombardier Aerospace Corp. v. SPEP Aircraft Holdings holds that the written word matters: “Under our strongly held principles of freedom to contract, we hold that the limitation-of-liability clauses are valid limited warranties that were the basis of the parties’ bargain. … Although Bombardier’s conduct in failing to provide SPEP and PE with the new engines they bargained for was reprehensible, the parties bargained to limit punitive damages, and we must hold them to that bargain.”
  • In 2020, Energy Transfer v. Enterprise emphasized that the written word matters: “We hold that parties can conclusively negate the formation of a partnership under Chapter 152 of the TBOC through contractual conditions precedent. ETP and Enterprise did so as a matter of law here, and there is no evidence that Enterprise waived the conditions.”
  • During 2021, in In re the Estate of Johnson, the Court noted that actions also matter: “MacNerland was put to an election: either seek to set the will aside or accept the benefits Johnson bequeathed to her. She chose the latter. As a result, she ‘must adopt the whole contents of the instrument, so far as it concerns [her], conforming to its provisions, and renouncing every right inconsistent with it.’ Because MacNerland accepted benefits under Johnson’s will, the trial court properly dismissed her challenge to its validity.” (citation omitted).
  • But last week, in BPX Operating v. Strickhausen, the Court again gave primacy to the written word: “Strickhausen bargained for a strong anti-pooling clause, she consistently withheld the written consent the clause requires, and she reiterated her objections multiple times. Although she accepted BPX’s money, she reasonably believed that one way or another she was owed an amount in the same ballpark as the checks she deposited.”

A recent “Writing Wednesday” post on this blog examined the distinctions among “signing,” “entry,” and “rendition.” Midwest Compressor Systems v. Highland Imperial reviews the contours of “rendition” and found that one occurred when the trial court orally stated: “Motion for directed verdict is granted. Court finds that this case does fall under the statute of frauds requirements.” Accordingly, a motion for a trial amendment that came after that announcement was untimely. No. 05-19-01115-CV (June 22, 2021) (mem. op.).

Solving several years of mischief arising from unclear statutory language, the governor recently signed an amended version of Tex. Civ. Prac. & Rem. Code § 38.001 to clarify when attorneys’ fees may be recovered in breach-of-contract actions. It is effective to cases filed on or after Sept. 1, 2021:

The Fifth Court had good news, and bad news, for the plaintiff suing for breach of an alleged oral contract in Midwest Compressor Systems v. Highland Imperial, Inc.:

GOOD NEWS: “Gerber testified not only that Prince solicited the compressors and urged him to deliver them quickly, but also testified about Highland’s receipt and use of the compressors. This evidence creates at least a question of fact regarding the existence of oral leases. See Tex. Bus. & Com. Code § 2A.204(a) (‘A lease contract may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of a lease contract.’)”.

BAD NEWS:Midwest did not bill in advance for each day of Highland’s use; it billed in arrears for the 30 days’ use that had already occurred. Hence an invoice dated June 30 expressly stated it was for ‘June compressor rental.’ Thus, although the amount required for each lease could have been less than $1,000 if the leases had terminated after one day, each lease on which Midwest sought payment continued for thirty days and Midwest admitted the total amount fell within the statute [of frauds.]” No. 05-19-01115-CV (June 22, 2021) (mem. op.).

Reversing a Fifth Court opinion that had held otherwise, the Texas Supreme Court held: “A limited partnership’s agents for service of process are its general partner, Tex. Bus. Orgs. Code § 5.255(2), and its registered agent, id. § 5.201(b)(1). The evidence establishes that Miraki served only a WWLC employee described as its ‘owner,’ ‘president,’ and ‘CEO.’ Accordingly, we hold that WWLC demonstrated that it was not properly served.” WWLC v. Miraki, No. 20-0173 (June 18, 2021).

The long-running defamation case continues about a D Magazine article called “The Park Cities Welfare Queen,” most recently with the Fifth Court affirming the denial of the defendants’ summary-judgment motion: “There are multiple fact issues about whether Bender committed a crime by providing false or incomplete information to the HHSC to obtain thousands of dollars of SNAP benefits to which she was not entitled. Having reviewed the entire record, we conclude there is more than a scintilla of evidence that the gist of the Article is not substantially true.” D Magazine Partners LP v. Bender, No. No. 05-19-01525-CV (June 9, 2021) (mem. op.).

With respect to court orders and judgments, the words “signed,” “rendered,” and “entered” are often used interchangeably. But those words have specific, technical meanings, and it is wise to remember those meanings when differences matter.  Accord, Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978) (“Judges render judgment; clerks enter them on the minutes.  …  The entry of a judgment is the clerk’s record in the minutes of the court.  ‘Entered’ is synonymous with neither ‘Signed’ nor ‘Rendered.’”).

Two rules set the background as to when critical countdowns commence:

  • Tex. R. Civ. P. 306a: “The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court’s plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules authorize a party to file …”
  • Similarly, Tex. R. App. P. 26.1 begins: “The notice of appeal must be filed within 30 days after the judgment is signed, except as follows …”

By contrast, “[j]udgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk.”  E.g., S&A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam).  And the above-quoted paragraph from Rule 306a concludes: “… but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose.”

By contrast, entry of judgment refers to the recording of a rendered judgment in the court’s official records. See, e.g., Lone Star Cement Corp v. Fair, 467 S.W.2d 402, 405 (Tex. 1971) (“The law is settled in this state that clerical errors in the entry of a judgment, previously rendered, may be corrected after the end of the court’s term by a nunc pro tunc judgment; however, judicial errors in the previously rendered judgment may not be so corrected.” (emphasis added)).

I gratefully acknowledge the excellent insights of Ben Taylor in preparing this post!

Dallas-Fort Worth is the fourth largest metropolitan area in the United States, and it is only a matter of time until it passes Chicago to become #3. Dallas is routinely ranked among the nation’s best cities. Yet it is significantly underrepresented on the Texas Supreme Court. Hopefully, geographic diversity will play a role in the appointment of a successor to Justice Eva Guzman.

Continuing a series of Retail Services WIS Corp. v. Crossmark, Inc., a preliminary-injunction case, the Fifth Court examined how the injunction addressed electronic information:

Weekley involved rule 196.4 discovery rather than a temporary injunction and was not a trade secrets case. Appellants cite no authority mandating Weekley’s application here and we have found none. Further, the law governing mandatory injunctive relief is consistent with Weekley’s requirement that ‘trial courts should be
mindful of protecting sensitive information and utilize the least intrusive means necessary to facilitate discovery of electronic information.’  As described above, rule 683 requires an injunction order to be specific and detailed and to ‘set forth the reasons for its issuance.’ And a preliminary mandatory injunction is proper only if a mandatory order is ‘necessary’ to prevent irreparable injury or extreme hardship. Though the DTO in this case is deficient for the reasons described in our analysis above, we cannot conclude Texas law entirely precludes mandatory injunctions requiring production of digital storage devices when the applicable standards—including rule 683’s specificity and irreparable injury requirements—are met.

No. 05-20-00937-CV (May 4, 2021) (citations omitted).

This post follows up on a recent post about Retail Services WIS Corp. v. Crossmark, Inc., a preliminary-injunction case involving the alleged misuse of trade secrets. The Fifth Court identified problems with the emphasized terms in various parts of a temporary-injunction order (some of which were repeated throughout the order):

  • “The Court further finds that the CROSSMARK Confidential Information and Trade Secrets and other confidential and proprietary business information of CROSSMARK and business relationships of CROSSMARK are assets belonging solely to CROSSMARK.”
  • “For purposes of this Temporary Injunction, ‘Covered Clients and Customers’  means those persons or entities that CROSSMARK provided services to and that the Former Employees either had contact with, supervised employees who had contact with, or received proprietary information about within the last twenty-four (24) months period that they were employed by CROSSMARK.”
  • A ban on recruiting “any persons formerly or currently employed by or associated with Crossmark.”
  • “directly or indirectly . . . taking any steps to cause any current client or
    customer of CROSSMARK, including [Client X and Client Y], to divert, withdraw,
    curtail or cancel any of their business with CROSSMARK.”
  • Deletion of data about “existing or prospective customers or clients of CROSSMARK, as well as ”CROSSMARKinformation” and “other digital storage devices.”

No. 05-20-00937-CV (May 4, 2021) (mem. op.).

Article VI, clause 2 of the Constitution provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

That principle animates the two sides of Toyota Motor Sales v. Reavis, No. 05-19-00075-CV (June 3, 2021), in which a 2-1 Fifth Court majority affirmed a $200+ million judgment in a products-liability case. Greatly simplified, the dispute between majority and dissent can be summarized with two quotes. The majority emphasizes state law and procedure:

At the heart of this case, like many product liability cases, was a battle of the experts. Plaintiffs’ experts examined physical evidence, performed tests, reviewed data, performed calculations, criticized Toyota Motor’s experts, and concluded the vehicle was defective. Toyota Motor’s experts did the same and concluded the vehicle was not defective. The jury properly exercised its prerogative to resolve this  conflicting evidence and believed the plaintiffs’ experts. This Court may not second guess the jury’s decision.

(emphasis added). The dissent, federal regulation:

“The Reavises’ theory of liability—that choosing to design a car with seatback strength far in excess of federal minimum standards and utilizing seatbelt design options permitted after decades of comprehensive federal regulation could support a conclusion that federal regulations are inadequate or that the overall design is defective as a matter of law—is unsustainable. …  I accept it as theoretically possible that every car ever marketed and sold to this point could be ‘defective’ and that their manufacturers could all be subject to exemplary damages on this basis, or, that virtually all such cars are defective for failure to employ ‘locking/cinching’ lap belts without regard to seatback rigidity, the proof should be up to the task.”

(footnote omitted, emphasis in original). This dialogue strongly echoes the “two narratives” at play in United States ex rel. Harman v. Trinity Indus., Inc., 872 F.3d 645 (5th Cir. 2017), which reversed a $600+ million judgment based on an allegedly-defective highway guardrail:

The trial in this case offers two narratives. One of a hardworking man who, angered by failures of guardrails installed across the United States — with sometimes devastating consequences — persuaded a Texas jury of a concealed cause of those failures. The other of the inventive genius of professors at Texas A&M’s Transportation Institute, who, over many years of study and testing, developed patented systems including guardrails that, while saving countless lives, cannot protect from all collisions at all angles and all speeds by all vehicles — guardrails that have been installed throughout the United States with an approval from which the government has never wavered as it reimbursed states for the installation of a device integral to the system.

The Greeks saw the all-powerful Zeus as the god of the skies; Haitian vodou, the storm-spirit Agau; and so forth throughout all the world’s cultures. Despite that tradition, the Fifth Court reversed a jury instruction that posed the following comparative-fault question:

 

 

 

 

“Though the jury here made no finding that the occurrence was proximately caused by the acts or omissions of more than one person, question number two of the charge allowed the jury to find a ‘percentage of the negligence’ attributable to ‘Weather/Road Conditions,’ which was not a person or party whose negligence was found to have been a proximate cause. This was not consistent with section 33.003(a) or rule 277.” Panameno v. Williams, No. 05-19-01496-CV (June 1, 2021) (mem. op.) (emphasis added).

 

In an 8-1 decision, the Texas Supreme Court reversed the Fifth Court’s judgment in Fifth Court’s judgment in Aerotek v. Boyd, a dispute about whether employees agreed to arbitration via their employer’s electronic system. The court observed:

“It may be that the use of electronic contracts already exceeds the use of paper contracts or that it will soon. The [Texas Uniform Electronic Transactions Act] does not limit the ways in which electronic contracts may be proved valid, but it specifically states that proof of the efficacy of the security procedures used in generating a contract can prove that an electronic signature is attributable to an alleged signatory. An opposing party may, of course, offer evidence that security procedures lack integrity or effectiveness and therefore cannot reliably be used to connect a computer record to a particular person. But that attribution cannot be cast into doubt merely by denying the result that reliable procedures generate.”

(footnote omitted). A dissent would have evaluated the record differently. No. 20-0290 (Tex. May 28, 2021).

No disclaimer found when: “[T]he specific misrepresentations about which Amy complains, that Paul said he was walking away from the title business but was actually accepting a bonus and a well-paid position with Alamo, were not referenced in the agreement and were not disclosed to Amy. Thus, we reject the Mundheims’ argument that the disclaimer-of-reliance provision in the agreement was binding to preclude Amy from asserting she relied on the Mundheims’ misrepresentations when she entered the agreement.” Mundheim v. Lepp, No. 05-19-01490-CV (May 13, 2021) (mem. op.).

This timeline led the Fifth Court to deny a request for leave to file a late notice of appeal:

  • December 15, 2020. Trial court signs a final divorce decree.
  • January 14, 2021. Appellants first learn of the decree by seeing it on the court’s docket. They file a motion for new trial that same day.
  • March 15, 2021 became the new deadline for filing a notice of appeal.
  • March 25, 2021 was when Appellants filed their notice of appeal.

The Court found the grounds in the motion for leave unpersuasive, noting: “[A]lthough counsel and her firm may have been preoccupied with other matters between February 15 and March 5, and counsel may have been busy handling an emergency after that time, appellants fail to explain how this prevented them from timely filing the notice of appeal.” In the Interest of D.M., No. 05-21-00185-CV (May 21, 2021) (mem. op.).

Cooper v. Cooper presented an issue about the entry of a consent judgment after one of the parties withdrew its approval. The Fifth Court found that by the time judgment was rendered, the trial court was on notice about the issue with that party’s consent, making it an abuse of discretion to proceed to entry of judgment based on the earlier agreement. No. 05-20-00507-CV (May 4, 2021) (mem. op.) This topic can be surprisingly challenging in Texas state practice given the wide range of agreements covered by Tex. R. Civ. P. 11 — this is a 2019 article that I co-authored about some of those procedural issues.

Brown v. Daniels presents a detailed review of allegations against the Dallas County Sheriff’s office about the operation of the county jail during the COVID-19 pandemic; the Fifth Court ruled for the sheriff in all respects, reversing the denial of her plea to the jurisdiction, and rendering a judgment of dismissal. No. 05-20-00579-CV (May 19, 2021) (mem. op.).

Retail Services WIS Corp. v. Crossmark, Inc., a preliminary-injunction case involving the alleged misuse of trade secrets, made these observations (among others):

  • Trade secret existence. The plaintiff adequately established the existence of a trade secret with testimony that “(1) Crossmark possesses information it considers confidential, including playbooks and digital transformation strategies, that would give a competitor ‘insight into what we’re working on’ and an opportunity ‘to cut corners and create a shortcut to allow them to be able to compete effectively and potentially even, you know, take it further faster than we are’; 2) Crossmark takes multiple steps to protect that information, including limiting access and requiring employees to sign confidentiality agreements; and (3) the digital demo display customers see in stores is ‘just the tip of the iceberg’ and does not constitute the entirety of Crossmark’s strategy.
  • Order specificity. While the Court said that “much of th[e] provision is conclusory” that described the harm justifying the injunction, it concluded: “[T]wo portions address ‘reasons why’ Crossmark will suffer irreparable injury: ‘because once CROSSMARK trade secrets are improperly used and disclosed, they are forever lost and such loss is cannot be calculated in money damages’ and ‘CROSSMARK’s customer and client goodwill, which has been developed over many years, will be harmed and such harm cannot be quantified in money damages.'”

The Court went on to identify a number of problems with the specificity of the enjoined acts, as well as the requirement that certain electronic storage devices be turned over, and the details of those holdings will be reviewed in a future post. No. 05-20-00937-CV (May 4, 2021) (mem. op.).

“[R]eal parties expressly renounced their contractual right to a nonjury trial when they repeatedly demanded a jury and paid the jury fee. Having done so, they cannot ask this Court to enforce that contractual right by mandamus. Relator was entitled to rely upon real parties’ conduct. And the record establishes that relator did rely on real parties’ conduct: relator never objected to real parties’ jury demands, and when real parties first indicated the possibility of asserting their contractual right by filing the Notice, relator immediately filed its own jury demand and fee.” In re PlainsCapital Bank, No. 05-20-00765-CV (May 13, 2021) (mem. op.).

In JLB Builders LLC v. Hernandez, the Texas Supreme Court reversed an en banc Fifth Court opinion about a construction-site accident. The issue was the general contractor’s right of control over the workplace, and the supreme court reached these conclusions about key aspects of that issue (all emphasis added):

  • Direction. “Hernandez references his additional testimony that he had previously seen JLB supervisors talking to [the subcontractor’s] foremen and that the supervisors ‘appear[ed] to be giving instructions as to how our jobs were to be done.’ Without more, evidence of what JLB generally ‘appeared’ to be doing is no evidence that it was exercising actual control over the details of the injury-causing work.”
  • Safety requirements. “A general contractor that promulgates mandatory safety requirementsand procedures owes only a narrow duty to ensure that those requirements and procedures generally do not ‘unreasonably increase, rather than decrease, the probability and severity of injury.'”
  • Direction. “[T]here is no indication that JLB was aware that the wind posed a particular danger that day, and the testimony that JLB employees ‘could watch’ the supports being secured is not evidence that they did so or that they were aware the supports were improperly secured.”

(In my three-part system for categorizing Texas intermediate-court en banc opinions, JLB Builders would be a “successful failure,” in that it drew supreme court attention but for the purpose of reversal.)

Service was inadequate to support a default judgment when: “The record before us shows the citation was addressed to ‘U.S. Bank Trust, N.A.’ However, the defendant in the action and the party against whom the default judgment was taken is ‘U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust.’ There is no evidence in the record that service was had upon ‘U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust.'” U.S. Bank Trust, N.A. v. AJ & Sal Enterprises, LLC, No. 05-20-00346-CV (April 30, 2021) (mem. op.).

Continuing the shower of spring en banc opinions from the Fifth Court, an eight-justice majority concluded that any “substantive nexus” between the relevant safety standards and health care was too attenuated to implicate the Texas Medical Liability Act on the following facts: “On May 25, 2014, Faber went to pick her mother up at Dayspring [Assisted Living Community] to take her to a hair styling appointment. Faber parked in Dayspring’s parking lot and asked a Dayspring employee to help Millie to the car. Millie, who had become a Dayspring resident only a week earlier, used a rolling walker and sat on it facing backwards as the Dayspring employee pushed her along the public sidewalk outside Dayspring’s entrance. Millie’s walker got caught in a large crack in the sidewalk, causing her to fall and hit her head on the concrete.” 

A 5-justice dissent saw otherwise: “The facts that form the basis of Faber’s suit show that Smith did not simply trip over a crack in the sidewalk. Instead, she fell because a staff member of the health care institution in which she resided pushed her over a crack in the sidewalk while she was seated in a wheeled walker causing her to fall. Because of this, Faber’s claim is inextricably intertwined with the conduct of, and duties owed by, Collin Creek as a health care provider.”  Faber v. Collin Creek Assisted Living Center, No. 05-18-00827-CV (May 3, 2021).

The Phantom, longtime defender of Bangalia, is often called the “Man Who Cannot Die.” Neither do disputes about the scope of issue statements; in a counterpoint to a recent opinion that read Flakes narrowly, the Fifth Court rejected a Flakes-based objection to a charge-error issue: “Following the supreme court’s mandate, we conclude that, fairly subsumed in Ziehl’s briefing, is the challenge to the trial court’s judgment awarding contribution to all parties who failed to secure a statutorily required jury instruction.” Ziehl v. Tornado Bus, No. 05-19-00901-CV (April 22, 2021) (mem. op.).

The defendants in Chen v. Razberi Technologies lost a special appearance and took an interlocutory appeal. But before resolution of the appeal, the trial court entered final judgment against the defendants, who did not file an additional notice of appeal. A Fifth Court panel concluded that “[t]he special appearance order merged into the final judgment mooting this interlocutory appeal. ” In later proceedings, the Court denied en banc review, over a detailed dissent. No. 05-19-01551-CV (April 28, 2021).

  • In an 11-1 en banc decision written by Justice Osborne, the Fifth Court granted mandamus relief, allowing Ken Paxton to be named as a responsible third party in a securities-fraud case.
  • A dissent by Justice Schenck (the lone Republican, as Justice Myers did not participate) argued that specialized comparative-fault schemes under other relevant statutes should control rather than the general comparative-fault statute.
  • A concurrence by Justice Smith expressed frustration at the present rules and practices governing the sealing of court records.

In re: Cook, No. 05-20-00205-CV (April 28, 2021). (A big 600 Commerce shoutout to my friend Ben Taylor for his able assistance in reviewing these opinions).

Beamers Private Club v. Jackson, a high-profile dram shop liability case involving former Dallas Cowboys, presented both a review of legal and factual sufficiency of the evidence supporting the jury’s verdict for the plaintiff. The factual-sufficiency challenge was based on the testimony of nightclub employees; the Fifth Court rejected it, observing: “At the time the servers and doorman gave their initial statements, which corresponded on the question of visible intoxication with their testimony at trial, they were employees of the club. And Brent himself testified that his teammates ‘had his back’ in the aftermath of the accident and Brown’s death. Despite these witnesses’ statements that they saw no signs that Brent was intoxicated, jurors could have reasonably concluded that their statements were subject to personal interest and were not credible. Jurors could have determined that Brent’s intoxication, as seen on the club’s video, was apparent to anyone present and watching.” No. 05-19-00698-CV (April 20, 2021) (mem. op.).

Ziehl’s car was hit by a Tornado bus, driven by Luviano. Ziehl and his passengers sued Tornado and Luviano. The jury found that Ziehl and Luviano were negligent, and that Tornado and Ziehl’s employer (SCR Construction Co.) were not. In response to the next question the jury found:From there, the court found that Luviano was entitled to contribution from Ziehl for 35% of all plaintiffs’ damages, and also reduced Ziehl’s damages by 35%.

The Fifth Court agreed with Ziehl that this adjustment was improper, noting: “Using the word ‘shall’ three times in [CPRC] section 33.016(c), the Legislature specifically and clearly imposed an obligation on the trier of fact to make a separate finding of the percentage of responsibility for each contribution defendant. The finding must be solely for the purpose of [CPRC] section 33.016 and cannot be part of the percentage of responsibility determined pursuant to section 33.003.” The Court reversed “[b]ecause the statute makes the question mandatory and the question was neither requested nor given ….” Ziehl v. Tornado Bus, No. 05-19-00901-CV (April 22, 2021).

 

CNN recently reported on a Capitol rioter who was turned in by an unimpressed Bumble match (right). This story illustrates precisely the kind of “red-blue” interaction (admittedly, with less romanticism) that jury service forces when it brings together people of different backgrounds and interactions.  These interactions are increasingly important in our divided times, and have taken on new dimensions after the difficult year of 2020. I discuss this topic (jury selection, not date-getting) with top jury consultant Jason Bloom in the most recent episode of the Coale Mind podcast.

In Snell v. Ellis, the Fifth Court noted – but did not resolve – the issue whether an agent’s speech on behalf of a principal can implicate the TCPA. It did observe, however, that: “The plain text of section 27.005(b), long-standing rules regarding agency, and our decisions in other contexts suggest the answer is ‘no’ ….” No. 05-20-00642-CV (April 5, 2021) (mem. op.)

Among other issues in Barcus v. Scharbauer, the Fifth Court affirmed the appellee’s testimony about the fair market value of certain artwork: “Appellants challenge the legal sufficiency of proof of commercially reasonableness of sales as proving market value and proving market value at a time over a year before the sales. … However, appellants do not dispute Mohle’s testimony that the sales were commercially reasonable or point to any evidence in the record that the sales were ‘out of the ordinary in some way.’ … A reasonable factfinder could decide Mohle’s testimony about the reasonably commercial sales conformed to the legal definition and theory of fair market value established by willing sellers and buyers under no compulsion.  A reasonable factfinder could credit Mohle’s testimony regarding the sufficient stability of the art market to conclude the sales in 2018 established fair market value a little more than a year earlier in 2016.”  No. 05-19-01121-CV (April 15, 2021) (mem. op.) (citations omitted). (My LPHS colleagues Eric Pinker and Paulette Miniter represented the successful appellee in this case.)

This week on the “Coale Mind” podcast, I had top-flight jury consultant Jason Bloom as a special guest; in the episode we touch on the many pervasive effects that 2020 will have on jurors and jury selection, including:

– A surprising eagerness of people to show up and serve on juries, in part driven by widespread feelings of frustration after months of shutdown;

– Concern about what Jason calls the “massive exercise in confirmation bias” that potential jurors bring to the courthouse with them, depending on how restricted a juror’s information sources may be;

– The once-obscure psychological terms “ultracrepidarian” and “pareidolia” (you have to listen to the podcast to explore those terms’ meaning 🙂;

– Remembering that 2020 changed potential jurors not only because of COVID, but because of Black Lives Matter, the Biden-Trump election and its aftermath, etc.

– And a reminder that jury service—unlike the similar civic-engagement exercise of voting—forces jurors to form a consensus among their different beliefs; and

– Why 1-page written questionnaires for potential jurors may be particularly useful now in light of the above issues.

“[A]ppellants initiated the underlying suit and then essentially abandoned the proceedings they had set in motion. Appellants failed to participate in depositions even though the trial court and appellees attempted to make remote participation in the depositions possible. Not until appellees’ fourth motion to compel did the trial court impose death penalty sanctions on appellants and strike their pleadings. Under these circumstances, we conclude the trial court did not abuse its discretion in awarding  sanctions four times in response to appellants’ failure to appear at depositions and ultimately striking appellants’ pleadings.” Boktor v. U.S. Bank, No. 05-19-01306-CV (April 7, 2021) (emphasis added).

The Fifth Court granted mandamus relief as to the denial of a responsible third party designation, summarizing the record as follows: “Based on the evidence produced by relators, a jury could infer that Stephens modified and used Del Rio’s scaffolding solely because Electro Acoustics failed to provide him with the necessary equipment to safely perform his work. Accordingly, a jury could conclude Electro Acoustics’s omission was a substantial factor in bringing about Stephens’s injuries. Furthermore, a jury could reasonably conclude that a person of ordinary intelligence could appreciate the danger of requiring an employee to work in high spaces without providing the equipment required to reach and work in the area safely.”  in re Kilmer, No. No. 05-20-00814-CV (April 7, 2021) (mem. op.) (applying Advance Tire & Wheel v. Enshikar, 527 S.W.3d 476, 480 (Tex. App.–Houston [1st Dist.] 2017, no pet.).

This is a cross-post from 600Hemphill, which follows commercial litigation in the Texas Supreme Court. A high-profile 2020 dispute about the enforcement of a COVID-related TRO against a Dallas-area hairdresser was resolved in In re Luther by finding the TRO void. It said:
The Texas Supreme Court found that this order did not satisfy Tex. R. Civ. P. 683, as “it nowhere specifies any particular state, county, or city regulation that Luther has violated, is threatening to violate, or is being commanded to stop violating. Nor does it describe with specificity which ‘in-person services’ were restrained, such that performing them would cause Luther to violate the temporary restraining order.” No. 20-0363 (April 9, 2021). (NOTE–While the case was never before the Fifth Court, the supreme court opinion notes: “In light of the considerable uncertainty surrounding the multiplicity of orders and regulations issued by public officials throughout the State in the early months of the COVID-19 pandemic, we conclude there was a compelling reason for Luther to file her petition in this Court without first filing in the court of appeals.”)

The parties’ dispute in Sazy v. J.R. Birdwell Constr. & Restoration, LLC went to trial and final judgment on the jury’s verdict. The sole issue on appeal was the denial of the defendant’s motion to transfer venue pretrial. While pretrial review of venue decisions is significantly limited by statute, those decisions are fair game for appeal post-trial. No. 05-19-01351-CV (April 1, 2021) (mem. op.).

The state Senate has undertaken the redistricting the current 14 intermediate-court districts in Texas; Law360 has a thorough story and related chart after a recent Jurisprudence Committee hearing. As for Dallas, the Senate’s plan links Austin and Dallas (right, below), cities that have been jurisprudentially distinct since at least 1893 (left, below). Please make your opinions known on the “I-35 Court of Appeals” as the Legislature continues to consider this proposal.

Many books and movies involve tales of scary creatures who return, ranging from Grendel’s family in the ancient epic of Beowulf to “Where’s My Mummy?”, an underappreciated part of the Scooby Doo multiverse. The topic of briefing waiver returns in the majority opinion from Herczeg v. City of Dallas, which found waiver in a sovereign-immunity case because the opening brief did not address untimeliness or exhaustion of remedies. It distinguished St. John Missionary Baptist v. Flakes, 595 S.W.3d 211 (Tex. 2020), as involving “two grounds [that] were not actually independent but were inextricably intertwined,” while here, “untimeliness and failure to exhaust administrative remedies are independent of the City’s other grounds, which focused on the merits of Herczeg’s claims.” A dissent questioned whether the older authority cited by the majority continued to be viable after Flakes. Justice Garcia wrote for the majority, joined by Justice Smith; Justice Schenck dissented. No. 05-19-01023-CV (March 29, 2021) (mem. op.).

A common sci-fi movie trope is the image of a “mad scientist” working in the laboratory. Texas appellate lawyers and judges have a similar look when applying Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (2000), which deals with the vexing problem of jury charges that mix valid and invalid elements. The Fifth Court’s majority opinion in Kansas City Southern Ry. Co. v. Horton, No. 05-19-00856-CV (March 11, 2021) (mem. op.), after finding one of the plaintiffs’ two liability theories preempted by federal law, found a Casteel issue with a broad-form negligence submission in a personal injury case. It distinguished an earlier Dallas case and a Corpus Christi decision as involving factual-sufficiency rather than legal-validity issues. A dissent took issue with the holding about preemption.

“’When a trial court’s order does not specify the grounds for its summary judgment, an appellate court must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious.’  However, when the trial court’s summary judgment order does
specify a ground on which it was granted, we generally limit our review to that ground. 
Here, because the trial court’s summary judgment order specified the ground
on which it was granted—that Finley was a released party because the term
‘predecessor’ in the Release includes an entity that was a ‘predecessor in title’ to
the subject property interest—we will limit our review to that theory.” Headington Royalty v. Finley Resources, No. 05-19-00291-CV  (March 18, 2021) (citations omitted) (emphasis added).