Sauer obtained judgments in Pennsylvania and California against Valley Games, a foreign corporation. Sauer domesticated these judgments in the trial court, and filed suit against relator, Valley Games and others for fraudulent transfer and sought to pierce the corporate veil. Sauer obtained an ex parte order for a pre-judgment writ of attachment against relator, and an order requiring relator to deposit $260,000 into the court registry. The court of appeals conditionally granted a writ of mandamus as to both orders. The court found that it was error for the trial court to order the writ of attachment because Sauer’s claims were contingent and unliquidated.  As the court noted, such writ “may be issued only when the demand is not contingent, is capable of ascertainment by the usual means of evidence, and does not rest in the discretion of the jury.” The order requiring relator to deposit money in the court’s registry was also error because it is a form of mandatory injunction, and Sauer had not proven that he was entitled to injunctive relief.

In Re Radiant Darkstar Productions, LLC, No. 05-13-00586-CV

Michael Tabasso was a salesman for BearCom Group, Inc., a Garland-based wireless equipment dealer. Tabasso was based out of BearCom’s office in Philadelphia, and was in charge of a sales region that did not include Texas. Nevertheless, the company disciplined Tabasso for attempting to make sales outside of his sales region, including contracting with a Texas company and then referring a portion of that contract to another party at BearCom’s expense. After Tabasso was terminated, he apparently continued to fulfill service requests by BearCom customers and forwarded confidential information to his personal email account. All of that led to BearCom filing suit against Tabasso in Dallas County. Tabasso filed a special appearance, which the district court denied.

On interlocutory appeal, the court of appeals affirmed. BearCom’s pleading raised a plethora of alleged jurisdictional contacts, including contacts with BearCom’s customers in Texas. That pleading shifted the burden to Tabasso to negate each of the alleged jurisdictional contacts, but he did not do so. Instead, the trial court deemed his affidavits to be “not credible in light of the record,” and there was ample evidence of Tabasso’s communications and dealings with those Texas customers. Tabasso also failed to preserve any objections to the trial court’s evidentiary rulings. In light of the entire record, the court of appeals found no abuse of discretion and affirmed the denial of the special appearance.

Tabasso v. BearCom Group, Inc., No. 05-11-01674-CV

In 2006, Dr. Tran bought medical equipment on eBay for $14,580 using his Citibank credit card.  When the equipment arrived, Dr. Tran found that it was missing a key component so he contacted Citibank to dispute the purchase.  In response, Citibank issued two chargebacks: one in October 2006 for $4,580 (which the seller accepted) and one in November 2006 for the remaining $10,000 (which the seller did not accept).  Among other things, Tran sued Citibank for breach of an oral agreement to “timely” issue the credit card chargebacks together.  The Court of Appeals found that Tran had not put forward any evidence showing that Citibank agreed to issue the chargebacks “by a certain date, within a certain time frame, or at the same time.”  Thus, the Court held that the oral contract alleged by Dr. Tran failed for indefiniteness.

Citibank v Tran

In a commercial dispute concerning a furniture liquidation sale, the trial court awarded appellees damages for breach of contract and fraud, and attorney’s fees, but reduced the jury’s attorney’s fee award by nearly $425,000.  Among other issues, appellants challenge the trial court’s $100,000 judgment against Lavercombe based on fraud, and appellees challenge the trial court’s reduction of attorney’s fees.

The court of appeals reversed the trial court’s judgment with respect to the fraud claim.  The court found no evidence in the record showing that Lavercombe made a material misrepresentation as to the quantity and availability of upholstery products with an intent to deceive and with no intention of performing as represented.  The court of appeals also reinstated the jury’s higher award of attorney’s fees because there was more than a scintilla of evidence in the record supporting the jury’s award.  In all other respects, the court of appeals affirmed the trial court’s judgment.

Broyhill Furniture Indus. v. Murphy, No. 05-11-01545-CV

A temporary injunction order is void if it does not fix the amount of security for the applicant’s bond or fails to set a trial date. The injunction issued against appellant Michael Lodispoto did neither. As a result, the court of appeals set aside both the TI order and the trial court’s subsequent order to show cause for violations of the injunction.

Lodispoto v. Ruvolo, No. 05-12-01580-CV

The district court certified a class of claimants who alleged that Stewart Title Guaranty Co. had charged them more than permitted by the Texas Department of Insurance in renewing their mortgage title policies. On interlocutory appeal, the court of appeals has now reversed that class certification. The opinion is lengthy and fact-intensive, but the case basically boils down to the question of whether questions of law or fact common to the class predominated over questions affecting only individual members. Unfortunately for the plaintiffs, the Fifth Circuit had recently rejected class actions in two recent cases alleging similar claims against different lenders.  See Ahmad v. Old Republic Nat’l Title Ins. Co., 690 F.3d 698 (5th Cir. 2012); Benavides v. Chicago Title Ins. Co., 636 F.3d 699 (5th Cir. 2011). The court of appeals discussed both cases extensively and followed them to the same conclusion, holding that that facts of each class member’s loans would have to be examined individually, negating any possibility that common questions would predominate over those individual inquiries.

Stewart Title Guaranty Co. v. Mims, No. 05-12-00534-CV

Three months ago, the court of appeals affirmed summary judgment in favor of an attorney who was alleged to have signed a fraudulent verification of deposit form on behalf of the borrower in a $1.9 million loan. In another appeal arising out of that same loan, Bank of Texas has managed to reverse summary judgment in favor of another attorney alleged to have issued letters “To Whom It May Concern” confirming the borrower’s employment and access to the same two trust accounts. The witnesses all told different stories about who prepared and signed the letters and who they had been provided to. Based on that conflicting evidence, the court of appeals concluded that the bank had submitted sufficient evidence to defeat the attorney’s no-evidence motion. Testimony of the law office’s business practices was sufficient to show that it was within the scope of his employees’ duties to sign the attorney’s name to various documents, and that the representations were made in the course of his business as an attorney. The court also rejected the defendant’s attempt to invoke the economic loss rule, reiterating the Supreme Court’s recent holding that the doctrine only applies to the parties to a contract, not between strangers to the contract. See Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 418 (Tex. 2011). The court went on to reverse the trial court’s grant of traditional summary judgment in favor of the attorney, holding that the attorney had not conclusively negated the authority of his employees to have prepared and signed the letters. And unlike the earlier case, where Bank of Texas could not show justifiable reliance because the verification form was not addressed to the bank, the letters here were addressed “To Whom It May Concern,” raising the inference that it was reasonable for anyone, including the bank, to rely on them.

Bank of Texas, N.A. v. Glenny, No. 05-11-01478

The Better Business Bureau of Metropolitan Dallas may end up being the single biggest beneficiary of the Texas Citizens Participation Act.  For the third time in the last month, the Dallas Court of Appeals has sided with the BBB in an appeal arising out of a motion to dismiss under the TCPA. In this instance, Wholesale TV and Radio Advertising, LLC sued for business disparagement, fraud, negligent misrepresentation, and DTPA claims after the Bureau gave Wholesale an F rating. The trial court granted the Bureau’s motion to dismiss, and the court of appeals affirmed. The court rejected Wholesale’s argument that the TCPA did not apply to false commercial speech, relying on its recent BH DFW and Ward opinions for the proposition that the TCPA covers speech that relates to “a good, product, or service in the marketplace.” That meant the burden was on Wholesale to come forward with prima facie evidence of each element of its claims. However, the court concluded that Wholesale had failed to adequately brief those issues on appeal, omitting any discussion of one or more of the elements of each of its claims. The court therefore affirmed both the trial court’s dismissal of Wholesale’s entire case and its award of $15,999 in attorney fees to the BBB.

Wholesale TV & Radio Advertising, LLC v. Better Business Bureau, No. 05-11-01337-CV

The trial court awarded the appellees over $360,000 in attorney’s fees in a commercial dispute concerning the sale of a business under an asset purchase agreement.  On appeal, the Court addressed the requirement that, when a party seeks attorney’s fees in a case involving several claims, some of which permit the recover of fees and some of which don’t, “the party must segregate and exclude the fees for services related to the claims for which fees are not recoverable.”  In this case, the appellees argued that they could not segregate fees because their tort claims (which don’t provide for attorney’s fees) arose from the same transactions and facts as their contract claims (which do).  The Court disagreed and found that “[b]ecause there is not a de minimis exception to the requirement to segregate recoverable attorney’s fees from non-recoverable and there was evidence of unsegregated non-recoverable attorney’s fees included in the amount awarded by the trial court, a new trial on attorney’s fees is required.”

CTMI v. Fischer

Big D appealed from the denial of its motion for new trial following a no-answer default judgment. The court of appeals found that the trial court properly refused to set aside the default judgment.  Big D did not prove that its failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident.  Rollins properly served Big D by substituted service on the secretary of state after seven failed attempts to serve Big D’s registered agent at the agent’s registered office and home.  The substitute service on the secretary of state was not rendered void by the process being returned with the notation “Refused” because the secretary is not an agent for serving but for receiving process on the defendant’s behalf.  Big D also failed to show that the evidence was insufficient to support the amount of damages awarded by the trial court.  The court of appeals found that the car owner’s testimony regarding the “Blue Book” value of her vehicle was not so weak that the finding of damages was clearly wrong and unjust.  Thus, the court of appeals affirmed the trial court’s judgment.

Big D Transmission v. Rollins, No. 05-11-01019

Van Voris was taking an aikido course at Chop Shop when he was injured during demonstration of a jiu-jitsu technique.  Van Voris sued Chop Shop for negligence and gross negligence.  Chop Shop moved for summary judgment based on its defense of pre-injury release from a one page “Release and Waiver of Liability and Indemnity Agreement.”  Chop Shop argued that the waiver barred the negligence claims, and that the gross negligence claim was inseparable from the negligence claim.

The court of appeals found that the one-page release met the fair notice requirements for purposes of releasing Chop Shop from liability for its own negligence.  The release was sufficiently conspicuous, and the language was specific and expressed the intent of exculpating Chop Shop. However, the court found that the waiver did not release the gross negligence claims and did not preclude proof of claims for negligence and actual damages.  The court pointed to Texas’s strong public policy prohibiting pre-injury releases of negligence, heightened concerns involving gross negligence and exemplary damages, and the distinct elements for proving negligence and gross negligence.  Thus, the court of appeals reversed the summary judgment against Van Voris regarding his gross negligence claims, and affirmed as to the negligence claims.

Van Voris v. Team Chop Shop, No. 05-11-01370-CV

UES sued Four D for failing to pay its invoices.  In support of its motion for summary judgment, UES attached an affidavit that established the amount due.  The trial court granted summary judgment in favor of UES, and Four D appealed.  Four D argued that fact issues exist on the amount owed on the account.  The court of appeals rejected UES’s argument that the affidavit could not support the summary judgment motion because it failed to meet the requirements of an interested witness affidavit.  The court found that UES waived this argument because it failed to obtain a ruling on its objection.  “Reasserting” the objection in UES’s motion for a new trial, which was subsequently overruled by operation of law, did not preserve the error.  However, the court agreed with Four D that invoices attached to the affidavit that were stamped “PAID” raised a fact issue as to the amount owed.  The court of appeals reversed and remanded.

Four D Construction v. Utility & Environmental Services, No. 05-12-00068-CV

Suzann Ruff asked the probate court to stay arbitration of her dispute with Michael Ruff and Frost Bank. The probate court agreed and issued an order staying the arbitration, denying Michael’s motion to stay the judicial proceedings, and stating that the court would conduct a hearing to determine whether to grant of deny Michael and the bank’s motions to compel arbitration. Michael and the bank filed a notice of interlocutory appeal, and Suzann moved to dismiss. The court of appeals agreed with Suzann. An interlocutory order staying arbitration is appealable under CPRC § 171.098, and an order denying the stay of judicial proceedings in favor of arbitration is appealable under CPRC § 51.016 and 9 U.S.C. 171.098(a)(2), but those statutes first require a final decision as to whether the case is subject to arbitration. No such decision had been made in this case, because the court’s order also stated that it would proceed to a hearing on the merits of the motions to compel arbitration. Since the probate court had not determined whether the dispute was subject to arbitration, the court of appeals had no jurisdiction to hear the attempted appeal.

Ruff v. Ruff, No. 05-13-00317-CV

The court of appeals has dismissed Glenda Rhone’s appeal from the trial court’s summary judgment order. Ordinarily, this would be a bad thing for the appellant. In this instance, however, the dismissal is as good as a win. As it turns out, the lawsuit was originally dismissed for want of prosecution in January 2012, and the trial court did not enter any order reinstating the case until after the motion to reinstate had already been overruled  by operation of law under Rule 165a(3). The parties apparently proceeded to litigate the case anyway, and the trial court entered the summary judgment order in March 2013. Rhone appealed, but the court of appeals determined it did not have jurisdiction to hear the appeal. Because the case had not been timely reinstated, the final judgment was actually the January 2012 dismissal order, which would have to have been appealed within 90 days (thanks to the motion to reinstate extending the appellate deadlines). Thus, Rhone could not appeal the case, but the summary judgment order turns out to have been void in any event because it was issued after expiration of the trial court’s plenary power.

Rhone v. Geer, No. 05-13-00492-cv

In this car accident case, the defendant moved for summary judgment on the ground that the suit was barred by the two-year statute of limitations.  In response, the plaintiff argued that, under CPRC 16.063, the out-of-state trips she took over the past two years tolled the statute of limitations for the time period she was outside of Texas.  On appeal, the Court rejected the plaintiff’s argument, finding that section 16.063 was intended to apply to “Texas creditors faced with individuals who enter Texas, contract a debt, depart, and then default on the debt.”  Here, the plaintiff remained a Texas resident for the entire two-year statue of limitations, and, during that period, would have had no difficulty in serving the defendant with process.

A dissenting opinion argued that the majority’s reading of the section 16.063 “has rendered the statute meaningless and effectively repealed the statute.”

Liptak v. Brunson (majority)

Liptak v. Brunson (dissent)

Gautam and Shweta Daftary leased office space for their dental practice from the Henry S.  Miller real estate firm (“HSM”).  Among other disputes with HSM, the Dafatarys argued that they were constructively evicted from their office space when a excessively loud dance studio moved into the the office next door. Although HSM contended that the Dafatarys took too long to leave the premises to support a constructive eviction claim, the Court of Appeals upheld the jury’s finding that 13 months is a reasonable amount of time to expect a dental practice to move offices.

Daftary v. Prestonwood Markey Square

In 2009, Andres Diaz paid $85,000 for his “dream car,” a 2010 Mercedes C63 AMG. Two weeks later, Caroline Culwell rear-ended him at a stop light, costing Diaz over $9,000 for repairs. At trial, Culwell stipulated to liability, leaving only the question of damages to be decided by the jury. Among other items, Diaz sought to recover $15,671 for the post-accident diminution in value of the car. That claim was supported by the testimony of Diaz’s appraisal expert, but the jury awarded $0.00 for diminished value. Diaz sought judgment notwithstanding that portion of the verdict, and the trial court awarded him the full amount of the claim. The court of appeals reversed, holding that it was within the province of the jury to disbelieve the appraisal expert’s testimony. Even uncontroverted expert testimony does not bind the jury unless the subject matter is one for experts alone. The court of appeals concluded that determining the value of a car for diminution of value damages is not so complicated that an expert’s testimony is required for the jury to understand the issue. Accordingly, the court of appeals reinstated the jury’s refusal to award Diaz any damages for diminution of value.

Culwell v. Diaz, No. 05-12-00093-CV

Citibank sued Albert Evans to collect approximately $10,000 in credit card debt. Evans appealed from the trial court’s grant of summary judgment for the bank, and the court of appeals affirmed. Among other things, Evans argued that he had never agreed to, or even seen, Citibank’s credit card agreement, that Citibank’s credit card statements were erroneous, and that the account statements were never delivered to him. However, the trial court struck those portions of Evans’ summary judgment affidavit as conclusory. The court of appeals held that the trial court had not abused its discretion in that evidentiary ruling, noting that Evans’ denials of the documents were not accompanied by any underlying facts or documentation that supported his denial. Without that affidavit testimony, Evans had no other evidence showing that he had not agreed to the amounts owed as shown by Citibank’s credit card statements, making summary judgment appropriate on the bank’s account stated claim.

Evans v. Citibank (S.D.), N.A., No. 05-11-01107

ICON appealed the trial court’s order denying their post judgment motion to enforce a pretrial protective order. ICON sought to prevent the City of Lubbock from publicly disclosing an audit of ICON’s administration of the City’s health care plan. The court of appeals concluded that the trial court’s ruling was not subject to direct appeal; the ruling was not a final judgment or an appealable order under a statutory exception. The court rejected ICON’s attempt to characterize the order as a request for injunctive relief or an order relating to the unsealing of court records. The court determined that the proper procedural vehicle to challenge the ruling is to seek mandamus relief. In the interest of judicial economy, the court treated the appeal as a petition for writ of mandamus.

The court of appeals held that the trial court’s order permitting disclosure of the audit contradicted the plain meaning of its earlier protective order. The audit was created using and analyzing protected materials, and the protective order prohibited public disclosure not only of protected materials, but also any knowledge or intelligence taken from or received by those protected materials.  Because the order denying ICON’s motion was a clear abuse of the trial court’s discretion, the court of appeals conditionally granted mandamus relief.

Icon Benefit Administrators v. Mullin, No. 05-11-00935-CV

Lorrie Smith filed suit for judicial foreclosure of a judgment lien against three lots in a Frisco subdivision. Smith had obtained her judgment against Shaddock Builders & Developers, and she recorded an abstract of the judgment on July 15, 2010. Two years earlier, Shaddock had acquired the three lots and immediately conveyed them to another company, Basin, Ltd. The conveyance from Shaddock to Basin was recorded, but the original sale to Shaddock went unrecorded until the seller corrected its “oversight” exactly one day before Smith recorded her judgment lien. Shortly thereafter, Basin conveyed the lots to Sumeer Homes, which built houses and sold the lots to the current homeowners. Each of those subsequent transactions was recorded. Seeking to foreclose on the lots in order to collect on her judgment against Shaddock, Smith sued the homebuilder, the homeowners, their mortgage lenders, and the title company. The defendants moved for and obtained summary judgment against Smith.

On appeal, Smith argued that the conveyance to Shaddock had been fraudulently backdated, and that it had really been filed the day after she recorded her judgment lien. According to Smith, that meant that legal title to the property had not been transferred to Shaddock until after she filed her lien, therfore making the three lots subject to her claim. The court of appeals rejected that argument. Although “legal title” to property serves as evidence of ownership, it does not constitute full and complete title to the property. What really matters when it comes to a judgment creditor’s lien is equitable title to the property, which passes to the purchaser when it pays the purchase price and fulfills the obligations of the contract of sale. In this case, Shaddock had acquired equitable title to the lots three years before Smith recorded her lien, and Shaddock had immediately transferred that title to Basin. Equitable title is a complete defense against the lien of a judgment creditor. Because Basin had acquired equitable title long before Smith acquired her judgment against Shaddock, that title subsequently passed to Sumeer Homes and the subsequent homebuyers free and clear of Smith’s judgment judgment against Shaddock. Nor did Shaddock hold “legal title” to the three lots on the day Smith recorded her lien. The summary judgment evidence showed that the original seller had recorded the sale the day before, and because Shaddock had conveyed the property to Basin by warranty title two years earlier, legal title to the property passed instantly to Basin when the sale to Shaddock was finally recorded. The court of appeals therefore affirmed the trial court’s grant of summary judgment.

Smith v. Sumeer Homes, Inc., No. 05-11-01632-CV

Gardners appealed from a take-nothing judgment in a medical malpractice lawsuit against Children’s Medical Center. Gardners challenge the constitutionality of section 74.153 of the Texas Civil Practice and Remedies Code, arguing that the heightened standard of proof in cases involving emergency medical care in certain facilities violates the Equal Protection Clauses of the Texas and US Constitution. The statute created two categories of claimants: (1) those who received emergency medical care in certain settings and must meet a heightened standard of proof, and (2) those who receive emergency medical care in non-covered settings or receive non-emergency care and must only meet the traditional standard of proof. Gardners claim this classification is arbitrary, unreasonable, and not rationally related to a legitimate state interest.

The court of appeals held that the statute does not violate the Equal Protection clauses. According to the court, the lack of legislative facts explaining the basis for the statute’s classification has no significance in rational-basis analysis because legislative choices may be based on rational speculation unsupported by evidence or empirical data. The court also noted that the classification does not fail rational-basis review simply because in practice it results in some inequity. Instead, the statute must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. The court determined that the statute bears a rational relationship to the State’s legitimate interest in ensuring the provision and availability of emergency medical care to its citizens. Thus, Gardners’ sole issue on appeal was overruled, and the trial court’s judgment was affirmed.

Gardner v. Children’s Medical Center, No. 05-11-00758-CV

The Dallas Court of Appeals denied a mandamus petition seeking to set aside the trial court’s disqualification of counsel for the plaintiff in a commercial dispute. In re RSR Corp., 405 S.W.3d 265 (Tex. App.–Dallas 2013, orig. proceeding).  The Texas Supreme Court later took the opposite review and remanded for further proceedings.  In re: RSR Corp., No. 13-0499 (Tex. Dec. 4, 2015). The opinions involve the interplay of the different disqualification standards provided by In re American Home Products Corp., 985 S.W.2d 68 (Tex. 1998), and In re Meador, 968 S.W.2d 346 (Tex. 1998). We will present this case without the usual commentary because our firm represents the real party in interest, but it is a useful read or anyone wondering about what lawyers can and cannot do with a former employee of an opposing party.

After their fathers’ death, Brenda Levitz and Thomas Sutton sued each other over the distribution of his estate. They settled this dispute during a mediation, but 4 months later Levitz moved to set aside the settlement.  Levitz argued that sleep deprivation combined with medications and fibromyalgia made it so that she didn’t have the requisite capacity to enter into the settlement during the mediation. Sutton moved to compel a medical evaluation of his sister, and amended his petition to include a claim for breach of the settlement agreement, seeking, among other things, specific performance. After a bench trial, the trial judge found that Levitz had had the requisite capacity the day she signed the settlement agreement and granted Sutton’s motion to for specific performance. Levitz moved for a new trial, which the court denied.

On appeal, the Court found that the trial judge could not grant specific performance as a remedy because specific performance is a remedy for a breach of contract claim only. In granting this remedy, the trial court only decided whether a binding contract existed between the brother and sister, it did not address whether Levitz had breached the agreement. Because a breach of contract claim requires proof of a valid contract, performance or tendered performance, breach and damages, “a determination that an agreement is enforceable . . . does not equate to a determination that a party is entitled to specific performance.” The Court of Appeals therefore reversed the trial court’s judgment and remanded the case for further proceedings.

Levetz v. Sutton

Mesquite ISD filed an interlocutory appeal after the district court denied a motion for summary judgment based on sovereign immunity. The school district had terminated plaintiff Tomasa Mendoza after she washed several dirty mop heads and placed them in the dryer, causing a fire. (Flaming mop heads are apparently a thing, and it was the second such fire in the school district in the same year.) Mendoza sued for gender and national-origin discrimination under the Texas Commission on Human Rights Act. The school district moved for summary judgment, claiming governmental immunity on the basis that Mendoza could not establish a prima facie case of discrimination.

The court of appeals held that Mendoza had failed to meet her burden on the gender discrimination claim because she had not shown that she was replaced by someone outside of the protected class, or that she was treated less favorably than similarly situated members of another class. The school district had reassigned one woman to replace Mendoza and hired another woman to take over the open slot, facts which negated the claim she had been fired based on her gender. Mendoza also argued that she had been treated differently than the male employee who had failed to collect the dirty mop heads in the first place, as he had only been reprimanded instead of being fired. However, that employee’s duties and the nature of his misconduct were both sufficiently different from Mendoza’s that the court of appeals concluded they were not “similarly situated.” But the court of appeals sustained the trial court’s ruling on the national origin claim, concluding that a genuine issue of material fact existed because the woman hired for the open custodial position was outside Mendoza’s protected class. Thus, the case was remanded to the district court for further proceedings on the claim for national-origin discrimination.

Mesquite Ind. Sch. Dist. v. Mendoza, No. 05-12-01479-CV

Michael Malone, Jr. worked for Nationwide Recovery Systems, a commercial debt collector, but resigned and began working for a competitor named HHT Limited Company. Malone also convinced two of Nationwide’s other employees to move over to HHT. Nationwide sued HHT and Malone for tortious interference with existing contract and related claims, and the jury sided with Nationwide. On appeal, the defendants argued that the trial court had erred by admitting several summaries of Nationwide’s claimed damages. The court of appeals concluded that HHT had failed to explain how the summaries were based on improper accounting methods or were otherwise inadmissible. The court also rejected the defendants’ legal sufficiency challenge to the damages. Lost profits do not need to be susceptible of exact calculation, and the testimony of Nationwide’s president was based on years of experience and an established profit margin of 20 percent. That testimony was sufficient basis for the jury’s award of damages, and the court of appeals therefore affirmed the judgment.

HHT Ltd. Co. v. Nationwide Recovery Sys., Ltd., No. 05-11-01058-CV

Voltaix is a New Jersey company that manufactures a specialty gas used in the semiconductor and solar energy industries.   Voltaix alleged that two of its former employees at its New Jersey plant stole its trade secrets, moved to Texas, and started a competing company based in Texas named Metaloid Precursors.   Voltaix sued these employees, their new company, and John Ajongwen (the chairman and a major investor in Metaloid) in Texas for, among other things, misappropriation of trade secrets.  Ajongwen, however, filed a special appearance because, in his view, he was a New Jersey resident with no minimum contacts in Texas.  The trial court agreed.

The Court of Appeals affirmed the trial court’s decision.  It found that Ajongwen came to Texas only one time, for half a day, to oversee set up of the plant’s water purification system and to conduct a safety inspection of the plant.  Because neither of these events had any connection with the trade secret misappropriation allegations, the court held Texas courts lacked personal jurisdiction over Ajongwen in this suit.

Voltaix LLC v Ajongwen

Karen Smith sued Brown Consulting & Associates, her employer, for injuries she sustained during the course of her employment.  BCA never appeared, and the trial court entered  default judgment in Smith’s favor.   On appeal, BCA argued that Smith failed to properly serve it, and that the default judgment should be voided.  The Court of Appeals agreed with BCA, finding that the affidavit Smith submitted in suport of her rule 106(b) motion for substitute service of process was defective for two reasons.  First, the affidavit did not contain a statement that BCA’s address was the usual place of business of the defendant or its registered agent.  Second, the affidavit did not contain a statement that the address is a place where the registered agent could probably be found.  Because the Court strictly construes the rules governing service when a default judgment is entered, it reversed the trial court’s entry of default judgment and remanded the case for further proceedings.

Brown Consulting v. Smith