An investor in an office building sued the building’s architect and engineering consulting firm for fraud, negligent misrepresentation, aiding and abetting, and conspiracy. The investor did not file a certificate of merit with the original petition, so the defendants moved to dismiss. The claims against the engineering firm were dismissed without prejudice, and the plaintiff refiled with a new complaint that included a certificate of merit. After consolidating the old and new cases, the trial court granted a motion to dismiss as to all claims against the engineering firm, but only as to the negligent misrepresentation claim for the architects. An interlocutory appeal ensured, and the Court of Appeals ended up siding with the plaintiff. As to the plaintiff’s claim against the engineering firm, the Court held that dismissal without prejudice did not prevent the plaintiff from refiling a new lawsuit — the one under appeal — that included a certificate of merit. As to the claims against the architecture firm, no certificate of merit was required because the plaintiff’s case was based on the allegation that the firm knew of defects in the building due to its occupancy in the building, not in connection with any professional services that the firm had provided. Accordingly, no certificate of merit was necessary, and all of the plaintiff’s claims against the architecture firm were also remanded for further proceedings.

TIC N. Central Dallas 3, LLC v. Envirobusiness, Inc., No. 05-13-01021-CV

In this habeas corpus proceeding, Charles Miller challenged the trial court’s decision to incarcerate him for contempt.  Mr. Miller had failed to produce certain documents required by court order, leading to the contempt finding and his confinement.  Specifically, the trial court found Miller guilty of constructive contempt, which is contemptuous conduct outside the presence of the court.  Miller argued that he was not given proper notice of the contempt charge, and the Court of Appeals agreed, because in cases involving conduct outside the presence of the court, “due process requires that the alleged contemnor receive full and unambiguous notification of the accusation of any contempt and a reasonable opportunity to defend the charges or explain the conduct.”  Because Miller was not afforded that opportunity, the Court granted him habeas corpus relief.

In re Miller

In this breach of contract case, the majority opinion found that the appelle’s no-evidence summary judgment motion was legally insufficient to support the trial court’s summary judgment because it “fails to challenge or even mention a single element of any of [the] claims as to which there is no evidence.”

The dissent, however, disagreed, noting that “a party may challenge a specific element in a breach-of-contract case by filing a no-evidence motion asserting there is no evidence of breach of contract.”  In the dissent’s view, appelle’s motion makes this assertion.

Coleman v. Prospere

Coleman v. Prospere (dissent)

In the wake of the Texas Supreme Court’s decision vacating a $125 million arbitration award that had been reinstated by the Dallas Court of Appeals, the latter court has rejected another claim that an arbitration award should be vacated on grounds of evident partiality. A group of homeowners sought to recover against Meritage Homes after discovering that their houses were smaller than had been represented. At the start of the final hearing, the arbitrator disclosed his participation in “one or two” arbitrations with the claimants’ attorneys since the case had begun, but Meritage had no objection to proceeding with the hearing. That changed after the arbitrator found in favor of the homeowners and awarded damages and attorney fees.

In seeking to set aside the arbitration award, Meritage claimed that the arbitrator had failed to disclose that he had really held three arbitrations with the claimants’ attorneys, plus one additional mediation. The trial court confirmed the award over Meritage’s objections, and the Court of Appeals affirmed. Although the Court noted that the arbitrator’s disclosure was “vague, at best” as to the number of arbitrations he had conducted with the homeowners’ attorneys, the comment was still “clear as to substance” — namely, that he had arbitrated cases with the attorneys while the case was pending. Because the arbitrator had disclosed that substance, and because Meritage had failed to follow up on the disclosure until after it had already lost the arbitration, the failure to disclose one more arbitration and one mediation would not yield a reasonable impression of the arbitrator’s partiality to an objective observer.

Meritage Homes of Texas LLC v. Ruan, No 05-13-00831-CV

In case you missed it, or if you just hate reading Twitter in real time, Law360 has kindly posted a transcript (twitscript?) of Wednesday afternoon’s discussion on the Texas Supreme Court’s recent term. Please don’t expect too much analysis in 140 characters or less, but it’s a nice way to check in on some big developments you might have missed by not obsessively checking the opinions at 9:05 am every Friday. Thanks very much to Law360 for the invitation to participate. Now back to our regularly-scheduled programming.

At noon on Wednesday, @600Commerce will be participating in a #Law360Chat on Twitter with @Law360 and some excellent attorneys to discuss the 2013-14 Supreme Court of Texas term. Regular Twitter followers will get our comments in their feed, of course, but you can follow the whole event via the hashtag above. Drop on by for plenty of very short takes on some of the more important cases of the term.

In this memorandum opinion, the Court directed the trial court to vacate its order disqualifying defense counsel.  Although the plaintiff argued that the counsel for defendant should be disqualified because he was a potential witness, the Court of Appeals found no evidence establishing what was “essential” about his testimony or how the plaintiff would be prejudice if he were not permitted to testify.

In re VSDH Vaquero Venture, Ltd.

In this decision, the Court of Appeals found that the plaintiffs’ claims were barred by the doctrine of res judicata because those claims should have been litigated in a prior lawsuit brought by one of the plaintiff against the same defendants.  Although one of the plaintiffs in the second suit was not a party to the initial litigation, the Court nevertheless applied res judicata to both plaintiffs because the “new” plaintiff was a one person professional association populated entirely by the previous plaintiff.  Thus, the parties were in privity with one another, and res judicata barred the claim.

Hill v. Tx-An Anesthesia Mgmt. P.A.

In this memorandum opinion, the court found insufficient the sheriff’s affidavit of service, because the affidavit merely stated that the recipient “was served.”  According to the Court, “[b]ecause the return does not state the manner of service, it does not strictly comply with [TRCP] 107, which requires the officer’s return state ‘the manner of delivery of service.'”

U.S. Bank v. Pinkerton Consulting & Investigations