The Court of Appeals had granted mandamus relief to a witness who had been ordered to submit to a Rule 202 pre-suit deposition. The trial court abused its discretion because the movant failed to offer any evidence at the hearing on the motion, with the result being that it failed to meet the burden of showing that the likely benefit of the deposition outweighed the burden or expense of the discovery. The Court declined to uphold the Rule 202 deposition on the basis of the verified petition alone, holding instead that the findings required by the rule could not be implied from the record.

In re Noriega, No. 05-14-00307-CV

In this breach of contract claim, the plaintiff moved for summary judgment and establish its standing in an affidavit from one of its employees concerning the acquisition of the lease at issue.  The defendant objected to the affidavit, arguing that it did not reflect the employees personal knowledge.  The Court of Appeals rejected the defendant’s argument and upheld the trial court’s grant of summary judgment because, according to the court, the plaintiff’s affidavit satisfied the personal knowledge requirements by stating that the affiant (1) was responsible for negotiating the acquisition of the lease; (2) reviewed the “books, records and documents” of the company from which the plaintiff acquired the lease; (3) affirmed that he verified the accuracy of those records after the sale; and (4) incorporated the records concerning of the acquired lease (from the previous owner) into the plaintiff’s records.

Nat’l Health Resources v. TBF Financial

Early last year, the Texas Supreme Court granted four petitions for review out of the Dallas Court of Appeals on the same day. Today, the Supreme Court issued opinions in two of those cases, reversing them both. In Kia Motors Corp. v. Ruiz, the Supreme Court affirmed the Court of Appeals’ holding that the manufacturer was not entitled to a presumption against liability due to the vehicle’s compliance with federal crashworthiness standards. However, the Court reversed and remanded for a new trial because the trial court should not have admitted a spreadsheet containing summaries of many different warranty claims on vehicle airbag circuitry, most of which were dissimilar to the plaintiffs’ claimed defect. And in Bioderm Skin Care v. Sok, the Supreme Court reversed the Court of Appeals’ holding that the victim of a botched laser hair removal procedure was not required to submit an expert report, holding that the claim was indeed subject to the Texas Medical Liability Act because the laser could only be purchased by a licensed medical practitioner and required extensive training to operate. The case was therefore remanded for consideration of the defendants’ attorney fees and costs.

A Dallas doctor brought lawsuits against UT Southwestern and Parkland Hospital, alleging that they retaliated against him after he raised concerns that some of their billing practices were running afoul of Medicaid laws.  The trial court granted the defendants’ plea to the jurisdiction and dismissed both lawsuits on the basis of sovereign immunity. In affirming, the Court of Appeals rejected the doctor’s argument that the defendants had waived sovereign immunity, and held that a state entity cannot waive sovereign immunity by its conduct.  The Court specifically noted that “the Texas Supreme Court has never ruled that a doctrine of waiver of sovereign immunity by conduct exists.”

Gentilello v. UTSW, 05-13-00149-CV

Gentilello v. DCHD, 05-13-00150-CV

A habeas corpus case arising out of an underlying divorce proceeding helps to illustrate the limits of a court’s authority to imprison a litigant for contempt. The trial court ordered the wife to pay her former husband $40,000 secured by a lien on a residence awarded to her in the divorce, to be paid six months after the decree. After that date came and went without payment, the husband moved for contempt, and the trial court sentenced her to confinement in the Hunt County jail until she tendered payment. The Court of Appeals ordered her to be released, citing the Texas Constitution’s provision that “No person shall ever be imprisoned for debt.” Tex. Const. art I, §18. Although the trial court could have jailed the wife for failing to comply with a court order to turn over specified property or funds (e.g., “the $40,000 in Wife’s savings account”), that authority did not extend to the failure to pay a pure debt to the other spouse. The Court therefore granted habeas corpus and ordered that the wife be unconditionally released.

In re Kinney, No. 05-14-00159-CV

Although the non-competition agreement at issue in this case contained a choice-of-law provision designating that Texas law would apply, the trial court applied California law to determine the plaintiff’s claims.  The Court of Appeal, however, reversed the trial court’s decision on this point, because Texas did, in fact, have a “substantial relationship to the parties or the transaction” at issue.  Specifically, although the defendant, a former executive of plaintiff (a Texas company) moved to California after being hired, the evidence established that he (1) had an office in Texas at which he often worked; (2) negotiated the contract, at least in part, in Texas; and (3) performed the contract (in part) in Texas.

Ennis, Inc. v. Dunbrooke Apparel Corp.

Thomas Ellis owned a unit in The Renaissance on Turtle Creek.  He sued the condominium association after it had fined him numerous times for playing loud music and harassing his upstairs neighbors.  The condominium counterclaimed to recover the $13,405 dollars he owed and to foreclose on the continuing assessment lien it held on Ellis’ unit.  The trial court granted the condominium’s summary judgment motion, and the Court of Appeals upheld this decision on appeal because “no fact issue was raised by Ellis’s arguments in his summary judgment response.”

Ellis v. Renaissance on Turtle Creek Condo. Ass’n

Seib Family GP and Richard Seib purchased a limited liability company that owned a 60-acre tract in a warehouse district adjoining the Trinity River levee in Dallas. Two years later, Seib sued the bank that held the note on the property, alleging that it was liable under the Texas Securities Act because it had failed to disclose its knowledge that the levee was “in jeopardy” and “being decertified” by the Corps of Engineers. The trial court granted traditional summary judgment for the bank, and the Court of Appeals affirmed. To the extent that Seib alleged direct seller liability by the bank, that claim failed because the bank was only a lender, not a seller of the LLC. Nor could the bank be liable under the TSA for secondary liability, as the evidence demonstrated — and Seb did not contest — that the bank did not and could not exercise control over the operation of the purchased LLC.

Seib Family GP, LLC v. Bank of the Ozarks, No. 05-12-01171-CV

After Charles Reese was terminated two years into his five-year term as pastor for the Faith Cumberland Presbyterian Church, he brought suit against his former employer for breach of contract and intentional infliction of emotional distress seeking, among other things, lost wages, punitive damages and attorney’s fees.  Citing the U.S. Supreme Court’s recent holding in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132, S. Ct. 694 (2012), the Court of Appeals upheld the trial court’s dismissal of the suit on First Amendment grounds.  Quoting Hosanna-Tabor, the Court found that if it were to “second guess the Church’s decision to terminate Reese it would deprive the Church of its right to shape its own faith and mission by imposing an unwanted minister.”

Reese v. Gen. Assembly

In this breach of contract case, the defendant asserted that the plaintiff lacked standing to pursue its claim because the plaintiff’s owner filed for bankruptcy individually.  According to the defendant, the bankruptcy trustee would have been the only party with standing to prosecute the claim.  The Court rejected this argument, however, because the lawsuit was filed two years before the plaintiff filed for bankruptcy and, more importantly, the plaintiff (a coroporation) never itself filed for bankruptcy.  Thus, the plaintiff could establish standing.

Keane Landscaping v. Divine Group

A pair of California residents sought to set aside a default judgment by means of a restricted appeal. The defendants claimed that the trial court lacked jurisdiction due to defective service of process, which had been accomplished through the Secretary of State. The Secretary of State’s certificate of service stated that process for both defendants had been “Unclaimed.” After the defendants failed to appear, the trial court entered default judgment for $612,500 in damages and another $13,258.27 in attorney fees. The Court of Appeals affirmed. Although the process server had listed the date of execution as taking place the month before he received the citation, that apparent typographical error was not enough to invalidate the return of service, particularly where the other service documents demonstrated the correct date of service. Substitute service through the Texas Secretary of State was also proper, the Court held, because the petition alleged that they were doing business in Texas by entering into a promissory note and guaranty with a Texas company, with the note also secured by real property located in Kaufman County. Nor did the “Unclaimed” notations demonstrate that the citations had not been served. Instead, the Court followed previous cases holding that it indicated only that the defendants had refused or failed to claim the citations from the Secretary of State’s mailings, not that service had not been accomplished.

Dole v. LSREF2 APEX 2, LLC, No. 05-12-01683-CV

The Court of Appeals has affirmed summary judgment for the lenders in a foreclosure dispute. Anil and Sheela Das sued Deutsche Bank and others to prevent them from foreclosing on their home. The Dases claimed that DB was not an owner or holder of the note. However, an affidavit from an analyst of the loan servicing company established that the note had been transferred to DB, and that the servicer maintained the original of the note on behalf of DB. Copies of the original instruments were also attached to the affidavit, and that uncontradicted evidence was enough for the Court of Appeals to determine that Deutsche Bank had met its summary judgment burden on the issue. The Court also rejected the borrowers’ argument that the bank was judicially estopped from relying on that copy of the note, as its use of an earlier, unendorsed copy of the note during prior bankruptcy proceedings was not clearly inconsistent with a later copy that included the subsequent endorsement.

Das v. Deutsche Bank Nat’l Trust Co., No. 05-12-01612-CV

A franchise agreement between Applebee’s and Gator Apple (a Florida franchisee) prohibits the franchisee from soliciting or hiring anybody from another franchisee who was employed by that other franchisee within the previous six months, states that other franchisees are third party beneficiaries of the franchise agreement, and provides for liquidated damages equal to three times the employee’s annual salary. A Texas franchisee, Apple Texas, sued Gator Apple under that provision after Gator Apple hired five of Apple Texas’ current or former employees and executives. The trial court granted summary judgment for Apple Texas, awarding it liquidated damages in excess of $1.2 million. The Court of Appeals affirmed. After determining that the franchise agreement was governed by Kansas law due to its choice of law provision, the Court upheld the award of liquidated damages under Kansas law. The Court also rejected Gator Apple’s argument that a fact issue existed on its affirmative defense of waiver, as none of the waivers it relied on authorized Gator Apple (as opposed to other franchisees or Applebee’s corporate) to solicit Apple Texas’ employees.

Gator Apple, LLC v. Apple Texas Restaurants, Inc., No. 05-12-01369-CV

HSBC Bank foreclosed on a residential property in Cedar Hill, but failed to pay assessments on the property to the local homeowners association. The HOA foreclosed on its assessment lien, and the property was purchased out of foreclosure by Khyber Holdings, LLC. HSBC sought to redeem the property as permitted by § 209.011 of the Texas Property Code. However, when the bank’s attorney sent the required notice to Khyber, the letter incorrectly identified Countrywide Home Loans as the owner seeking to redeem the home. The attorney testified that the error had occurred because he represented the servicer for both HSBC and Countrywide, and that Khyber had purchased lots owned by both lenders during the same foreclosure sale. HSBC sued for a declaratory judgment that it was entitled to redeem the property. When Khyber responded with a letter that stated the redemption price would be $80,000, the attorney responded with an $80,000 check and a letter that once again named Countrywide as the owner, although the redemption deed correctly identified HSBC as the grantee of the redemption sale. Khyber refused to allow redemption, the case proceeded to trial, and the jury returned a verdict in favor of HSBC. The Court of Appeals affirmed, concluding that only substantial compliance is required to fulfill the notice requirements of § 209.011, and that the series of back-and-forth exchanges between the parties was sufficient proof that the notice requirements had been fulfilled. The Court also affirmed the jury’s award of damages for trespass, concluding that HSBC was entitled to recover for lost rents during the period of time the property was improperly retained by Khyber.

Khyber Holdings, LLC v. HSBC Bank USA, N.A., No. 05-12-01212-CV

The Court of Appeals has affirmed summary judgment in favor of the defendant in a libel and business disparagement case.  The case arises out of statements made by OAC Senior Living in an administrative waiver proceeding initiated by a competitor, Senior Care Resources. The allegedly defamatory statements were made to the Texas Department of Aging and Disability Services, a state agency designated to administer and monitor human services programs, including Medicaid. If that sounds like the sort of thing that would be absolutely privileged under defamation law, the Court of Appeals agrees with you. Although DADS is not a court, it was exercising quasi-judicial power in determining whether to grant Senior Care’s requested waiver. The Court’s opinion provides a lengthy analysis of when it is proper for a court to conclude, as a matter of law, that such a proceeding qualifies as quasi-judicial for purposes of the absolute privilege defense.

Senior Care Resources, Inc. v. OAC Senior Living, LLC, No. 05-12-00495-CV

The Texas Whistleblower Act prohibits a governmental entity from taking an adverse personnel action against an employee who in good faith reports a violation of law to an appropriate law enforcement authority. Tex. Gov’t Code § 554.002(a). Those elements are jurisdictional, and a plaintiff who fails to adequately plead facts supporting the claim can have his claim dismissed. The Court of Appeals did just that in an appeal from a $400,000 judgment against the Dallas Independent School District. The plaintiff alleged that he had been terminated for reporting that his supervisor had directed him to perform three gas tests in a single day, which he claimed was unsafe. But the plaintiff’s petition did not allege that any actual violation of law had taken place, just that he had been pressured to do something that might be unsafe. As a result, the employee failed to state a claim in his petition, and the trial court therefore had no jurisdiction over his claim.

Dallas Indep. Sch. Dist. v. Watson, No. 05-12-00254-CV