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

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

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

The court affirmed the dismissal of an action for lack of subject matter jurisdiction based upon the ecclesiastical abstention doctrine. Jennison, a former Episcopal Priest, sued Prasifka, an Episcopal Church parishioner, for slander, tortious interference with a contractual relationship, and wrongful discharge, stemming from complaints she made to a church official in response to a request by the church in connection with internal church disciplinary proceedings against Jennison. The proceedings resulted in his discharge from the priesthood. Prasifka filed, and the court granted, a motion to dismiss because the action involved church matters outside of the court’s jurisdiction.

On appeal, the court noted that the ecclesiastical abstention doctrine removes most issues related to a church’s ministerial employment decisions from the jurisdiction of the civil courts. In this case, Prasifka’s defamatory statements were made entirely in connection with church disciplinary proceedings. These statements and Jennison’s claims were inextricably intertwined with the church’s investigation and thus closely related to internal matters of church governance and discipline. Further, a causation determination would require an analysis of the church’s disciplinary decision-making process. Thus, the ecclesiastical abstention doctrine applied and the district court lacked jurisdiction.

Jennison v. Prasifka,   05-11-01253-CV

Just before trial, Victor Enterprises Incorporated (“VEI”) moved for recusal.  The trial judge, however, denied the motion as untimely.  The case proceeded to trial, and the judge entered a final judgment in favor of Defendant, Clifford Holland.  The Court of Appeals reversed the recusal decision and voided the judgment.  Turning to the text of TRCP 18a, the Court unequivocally found that “in the event a recusal motion is filed, a trial judge must promptly enter one of two orders which are permitted:  recusal or referral.”  Because the trial judge denied the motion as untimely, she did not follow either of the two permitted courses.  Thus, she did not comply with Rule 18a and abused her discretion.

Victor Enterprises v. Clifford Holland, No. 05-10-01592-CV

FedEx sued Smith Protective Services for breaching the parties’ services agreement after thieves cut holes in the fences on its property and looted several of its trucks. The trial court found that Smith had, indeed, breached the parties’ agreement. It found that the thieves had cut two holes in the shipping terminal’s perimeter fence over a period of two days (with a third cut several days later), through which the thieves entered and “off-loaded” valuable cargo by hand. FedEx investigated, finding that, while the contract purportedly required it, none of the guards present during the heist knew that one of their duties was to conduct patrols. FedEx also opined that the thieves knew about this failure and took advantage of it.

On appeal, Smith challenged the conclusion that the parties’ contract required its guards to patrol the premises. The court of appeals, however, pointed to express language in the contract along with testimony by several FedEx employees to refute this claim, and, accordingly, upheld the trial court’s findings of fact and conclusions of law.

Smith Protective Services v FedEx, No. 05-11-00715-CV

On the eve of trial, the district court granted a motion to withdraw filed by the attorneys for L’Arte de la Mode, Inc., but denied the company’s request for a continuance because it was the client’s fault they had not been paying their bills. The case was called to trial, but nobody appeared for L’Arte. The trial court therefore granted a default judgment for Neiman Marcus, awarding it more than $150,000 in compensatory damages and twice that amount for exemplary damages, all attributable to Neiman’s claim for money had and received.  L’Arte retained substitute counsel, but the trial court denied the company’s motion for new trial. The court of appeals reversed, holding that L’Arte had established all of the elements for a new trial.

The court of appeals analyzed the case under the venerable standards of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939), which requires the movant to establish that (1) the failure to appear was not intentional or the result of conscious indifference, but was the result of an accident or mistake, (2) the movant has a meritorious defense, and (3) granting the motion will occasion no delay or otherwise injure the plaintiff. L’Arte established the first element through the affidavit of its in-house counsel, who stated that L’Arte had not received either the attorneys’ motion to withdraw or the order granting the withdrawal. L’Arte also established that it had a meritorious defense through its contention that Wells Fargo actually holds Neiman’s money, thanks to its factoring arrangement with L’Arte. Finally, the court of appeals held that L’Arte had satisfactorily assured that a new trial would not injure Neiman Marcus by agreeing to pay its attorney fees incurred in obtaining the default judgment, despite Neiman’s objection that the promise was hollow in light of L’Arte’s inability to pay its own attorneys and its failure to post a bond to supersede the existing judgment. The court of appeals therefore reversed the default and remanded to the district court for a trial on the merits.

L’Arte de la Mode, Inc. v. Neiman Marcus Group, No. 05-11-01440-CV

In this divorce proceeding, the parties negotiated and signed (but did not file with the Court) a Final Divorce Decree.  Over the next year, the parties continued to negotiate the Final Decree even though they had already finalized and signed a prior version.  These additional negotiations broke down and the parties could not arrive at a new agreement, so one party filed the previously signed version with the court, which the judge accepted.

When the trial court refused to set aside the Final Decree, this appeal followed, with the party challenging the Final Decree arguing that the agreement did not meet Rule 11’s requirements because it was not filed before it was signed by the trial judge.  The Court of Appeals disagreed, holding that “[a]lthough rule 11 requires the writing to be filed as part of the record, the rules does not state when the writing must be filed.”  According to the Court, Rule 11 only requires the agreement to be filed before it is sought to be enforced.

Markarian v Markarian, No. 05-11-01076-CV

The court affirmed a judgment in a forcible detainer action awarding possession of a property purchased at a foreclosure sale to the buyer. The owners of a property defaulted on their promissory note, and the property was sold to FHLMC in foreclosure. FHLMC notified the former owners to vacate twice, the first in three and the second in ninety days, and eventually filed a petition for forcible detainer. After the former owners failed to object to FHLMC’s evidence or present any evidence of their own, FHLMC was awarded judgment. The former owners appealed arguing that the petition insufficiently identified the property and that the notice to vacate was insufficient. The court rejected both arguments, holding that the petition was sufficiently identified the property by including the address of the property and that the evidence of the notices to vacate was sufficient to support the judgment.

Caro v. FHLMC, No. 05-11-01023-CV

The court of appeals continues to explore the limits of permissive interlocutory appeals. In this instance, the court was faced with an agreed-upon appeal from an order granting a motion to quash the deposition of the appellant’s former attorney, who allegedly had information showing that a mediated settlement agreement should be vacated. The trial court granted the opposing party’s motion to quash, and the parties agreed to present that ruling to the court of appeals under section 51.014(d) of the Civil Practice & Remedies Code. But the court of appeals rejected that effort, holding that the appeal did not present a “controlling issue of law,” as required by the statute. The trial court’s ruling on a motion to quash did not determine whether other sources of evidence regarding the mediation would be admissible at trial, and the parties could not use an agreed appeal to resolve that evidentiary issue before it was presented at the time of trial. The court therefore dismissed the appeal.

Gunter v. Empire Pipeline Corp., No. 05-12-00249-CV

In this shareholder challenge to the pending merger of MetroPCS, Deutsche Telekom and T-Mobile, the plaintiffs sought a TRO enjoining the defendants’ use of several “deal protection devices,” including “Poison-Pill Lock-Up” and “Force-the-Vote” provisions.  The trial court granted the TRO, agreeing with the plaintiffs that these deal protection devices irreparably harmed shareholders by, among other things, warding off other potential acquirers.  Defendants petitioned for a writ of mandamus to vacate the TRO because the trial court failed to address their motion to dismiss or stay the action based on the forum-selection clause in MetroPCS’s bylaws, which mandated Delaware as the proper forum.  The Court of Appeals found that because the motion to dismiss or stay was filed before the request for a TRO, the trial court abused its discretion by granting injunctive relief without first ruling on the forum-selection clause issue.  Citing the Texas Supreme Court’s holding in In re AutoNation, the Court of Appeals found that “subjecting  a party to trial in a forum other than that agreed upon and requiring an appeal to vindicate the rights granted in a forum-selection clause” warrants mandamus.  Accordingly, the Court vacated the TRO and stayed the case until the motion to dismiss could be decided.

In re MetroPCS, No. 05-12-01577-CV

Denise and Greg Brown sued their homeowner’s association for failing to maintain portions of the property. The HOA counterclaimed, alleging that the Browns had made a number of unauthorized alterations to their home. The Browns then joined American Western, the HOA’s insurer, asserting numerous causes of action against the insurance company. The insurer moved for summary judgment, arguing that the Browns were not named insureds under the policy and that the HOA’s counterclaim was not a covered “occurrence” under the policy in any event. The trial court granted the motion, and the court of appeals affirmed. Under the terms of the insurance policy, American Western was only liable for damage that arose from “an accident,” and it did not apply to property damage to the insured’s own leased property. Thus, even if the Browns were named insureds under the policy — an issue the court of appeals did not reach — the insurer was still not obligated to defend them from the HOA’s counterclaim.

Brown v. American Western Home Ins. Co., No. 05-11-00561-CV