In 2008, Metroplex entered a mail processing agreement with Donnelley’s predecessor in interest Browne & Co under which Metroplex would sort mail for Browne’s Dallas facility customers.  In 2009, Metroplex ceased its operations, and Browne filed suit against Metroplex seeking the return of money it had on deposit.  The jury found in favor of Browne, and Metroplex appealed.  The Court of Appeals affirmed the jury’s finding of breach of contract against Metroplex and its award of attorney’s fees.  The Court, however, found no evidence to support piercing Metroplex’s corporate veil to hold its president personally liable.  Accordingly, the Court reversed the trial court’s judgment to the extent it orders recovery against the president individually, and affirmed the trial court’s judgment in all other respects.

Metroplex Mailing Servs. v. R.R. Donnelley Sons

The Dallas Court of Appeals continues to be a difficult place to get a permissive interlocutory appeal. In this instance, a defendant in a breach of contract case attempted to appeal the denial of its motion for partial summary judgment, which had sought to establish that it could terminate its lease because of the cancellation of two government contracts. The Court of Appeals noted that while the interpretation of an unambiguous contract is question of law, it was not a controlling question of law in this case. The Court also pointed to the existence of several other issues in the lawsuit, concluding that the resolution of the contract issue would not advance the ultimate termination of the litigation. The Court therefore denied the petition for permission to appeal.

Trailblazer Health Enterprises, LLC v. Boxer F2, L.P., No. 05-13-01158-CV

Jeffrey Bay sued Regions Bank for breaching an escrow agreement.  According to Bay, Regions was to serve as escrow agent for his $500,000 investment and was only to carry out the investment if it received an opinion from counsel affirming that the described investment was either registered securities or exempt from registration.  Regions argued that it did receive such a letter prior to releasing the funds, but the Court of Appeals held that the only letter it did receive describing the securities at issue did not provide the opinion required by the escrow agreement.  Instead, the letter merely stated that the offering was “designed” to be exempt from securities registration.  The Court thus held that Bay had offered sufficient evidence to show Regions breached the escrow agreement.

Regions Bank v. Bay

According to the operators of Hank’s Texas Grill, the City of McKinney and its police officers have been wrongfully harassing the restaurant, its employees, and its customers for the last ten years. In response, the city alleges that Hank’s violates numerous city ordinances. The city filed a plea to the jurisdiction to invoke its governmental immunity. The trial court denied the plea, and the city appealed. Summarizing the recent (and conflicting) string of cases challenging local ordinances, the Court of Appeals concluded that “the Declaratory Judgments Act waives governmental immunity against claims that a statute or ordinance is invalid,” but “does not waive a governmental entity’s immunity against a claim that government actors have violated the law.” Construing Hank’s pleadings, the Court concluded that they did not demonstrate that Hank’s claim was outside the scope of the city’s governmental immunity. However, the pleading also did not demonstrate that the claim was barred by governmental immunity, meaning that Hank’s had to be given the opportunity to amend. The Court also affirmed the trial court’s ruling that Hank’s claim for damages was not barred by immunity to the extent that it was an offset against the city’s own damage claims. Finally, the Court of Appeals rejected the city’s claim that the trial court lacked subject matter jurisdiction to enjoin its enforcement of state laws and local ordinances, ruling that the pleadings and arguments at this stage of the case were still too unclear to affirmatively demonstrate that the trial court lacked jurisdiction to issue an injunction.

City of McKinney v. Hank’s Restaurant Group, L.P., No. 05-123-01359-CV

Appellant Danny Katave and two other individuals solicited Israeli investors to develop commercial real estate. The negotiations took place in Israel, and were conducted in Hebrew. The discussions resulted in two written contracts, one in Hebrew and one in English. The Hebrew document provided for a 10% success fee to Katave, but the English document included a 20% success fee. Naturally, Katave claimed the 20% fee when the property was sold. In the resulting litigation, the jury sided with the investors, finding that Katave had committed fraud by failing to disclose that the English document did not contain the same terms as the Hebrew contract.

The Court of Appeals confirmed the adequacy of the evidence supporting the finding of fraud by omission, holding that Katave had a duty to make a full disclosure in order to correct the false impression conveyed by his partial disclosure that the terms of the documents were consistent. The Court also affirmed the trial court’s finding of $466,226 in out-of-pocket damages, rejecting Katave’s contention that his agreement to submit the issue of “damages” to the trial court did not include the measure of damages to be applied. However, the Court of Appeals reversed the trial court’s award of attorney fees in favor of the investors, holding that the investors had plead and prevailed in the case as a fraud claim, not a claim for breach of contract. Because attorney fees are not recoverable on the basis of fraud, the investors could only recover their out of pocket damages.

K.A. West, LLC v. GK Investments, Inc., No. 05-11-00617-CV

The pace of the Court’s docket has slowed down since the end of August, but the stakes are still high for some litigants. Relator Todd Tomasella was convicted of criminal contempt and sentenced to consecutive terms of 6 and 3 months. The Court of Appeals granted habeas corpus because Tomasella had not had a jury trial, which cannot be denied if the sentence is in excess of six months. However, Tomasella had also been convicted of civil contempt, and he did not challenge that portion of the conviction in his habeas petition. The Court of Appeals therefore discharged the conviction and sentence for criminal contempt, but left the conviction and sentence for civil contempt in place. As a result, Tomasella will apparently remain in the custody of the Kaufman County Sheriff for an unspecified period of time.

In re Tomasella, No. 05-13-01077-CV

A little over a year ago, country music star Randy Travis was arrested for DWI, an event that was captured on the arresting officers’ dashboard video cameras. After pleading guilty, Travis’ attorney asked the court for a protective order requiring the Department of Public Saftey to destroy all copies and transcripts of the video. The trial court granted the motion. When DPS received a copy of the order, it moved to set it aside, but the trial court denied that motion. In the interim, DPS received an open records request for a copy of the video under the Texas Public Information Act. The Attorney General ruled that parts of the video could be redacted, but the rest of it must be released as public information. DPS sought mandamus relief to set aside the destruction order. Citing the AG’s ruling that the video was public information, the Court of Appeals concluded that the trial court had no jurisdiction to order that it not be released in response to an open records request, and therefore also had no authority to order that it be destroyed.

It will be a while before the video hits the Internet, however. In accordance with the PIA, Travis has filed suit in Austin to set aside the Attorney General’s ruling that the arrest video should be released. The Court of Appeals expressed no opinion on the merits of that challenge.

In re: Tex. Dep’t of Pub. Safety, No. 05-13-00882-CV

The defendants here were two executives of a California-based party-planing company that contracted in with a Texas company to throw a Super Bowl party before the 2011 Super Bowl in Dallas.  While the details on what happened at the party are unclear, the party apparently did not go well, so the plaintiff sued these two executives for breach.  After the trial court granted the defendants’ special appearance based on the fiduciary shield doctrine, the plaintiff appealed, arguing that the fiduciary shield doctrine applies only in cases where the plaintiff asserts general jurisdiction over the defendants, and here the plaintiff asserted specific jurisdiction over the executives.  The Court rejected this argument and affirmed the trial court’s decision.

Stull v. LaPlant

In 2004, Crutcher filed a lawsuit against the Dallas Independent School District (“DISD”) alleging discrimination and retaliation.  The 2004 lawsuit was settled out of court.  In the summer of 2009, Crutcher interviewed for a position with the DISD, but did not get the job.  Following this adverse employment decision, Crutcher sued DISD.  The trial court granted summary judgment in favor of DISD, and Crutcher appealed.  The Court of Appeals held that Crutcher failed to establish a causal connection between Crutcher’s filing of the 2004 lawsuit and the adverse employment decision so as to establish a prima facie case of retaliation.  The Court further held that DISD provided substantial evidence to show legitimate, nondiscriminatory reasons for its decision to not hire Crutcher.

Crutcher v. Dallas Indep.Sch. Dist., No. 05-11-01112-CV

PDBI and Varel entered into an agreement in which PDBI agreed to act as Varel’s authorized sales representative by providing “sales and technical service” to certain customers.  Pursuant to this contract, PDBI met with MMS several times to pitch Varel’s products and provide product price sheets, product requirements, and technical services.  Varel then cancelled its agreement with PDBI, and informed PDBI that any sales to MMS would be made directly by Varel.  MMS subsequently began buying products directly from Varel.  PDBI sued Varel, alleging that PDBI procured MMS as a buyer of Varel products, provided “sales and technical services” to MMS, and was “entitled to commission on sales” to MMS.  The Court of Appeals reversed the trial court’s grant of summary judgment in favor of Varel.  The Court reasoned that PDBI’s evidence raises a fact issue whether it rendered sales and technical service to MMS under the terms of its contract with Varel.

PetroDrillBits Int’l v. Varel Int’l Indus., No. 05-12-00406

The Weavers hired attorney Holliday to pursue claims relating to a car accident.  The Weavers later sued Holliday for breach of fiduciary duty, professional negligence, fraud, and violation of the DTPA, alleging that Holliday settled an insurance claim without the Weavers’ consent and converted the money for personal use.  The trial court found in favor of the Weavers on all four claims, and the Weavers elected to recover on the DTPA claim.  The Court of Appeals reversed the trial court’s judgment on the DTPA claim, and rendered judgment for the Weavers on the breach of fiduciary duty claim.  The Court of Appeals noted that there was “no evidence that [Holliday’s] acceptance of the settlement payments…or his attorney’s fees, constituted a pecuniary loss to the Weavers that was caused by Holliday’s DTPA violations as opposed to the other claimed wrongful conduct.”  Thus, the evidence was legally insufficient to support the award of damages under the DTPA because there was no evidence that the DTPA violations were a producing cause of the Weavers’ claimed pecuniary loss.

Holliday v. Weaver, No. 05-10-01614-CV