The buyer of a used Inifiniti M45 brought the car to Crest Infiniti and approved nearly $6,000 in maintenance and repair work. But after the repairs were completed, the owner failed to pay for the work or pick up the car. Unsurprisingly, he had also failed to keep up on his payments to the used vehicle company that had financed his purchase, and the seller sent a repo company over to Crest’s lot to recover the car. Crest sued for tortious interference and conversion but lost a bench trial. The Court of Appeals reversed, holding that the undisputed evidence established Crest had a possessory mechanic’s lien on the vehicle, that the mechanic’s lien took priority over the seller’s security interest as a matter of law, and that the seller had converted the car when the repo driver removed it from Crest’s lot without permission. The Court therefore remanded the case to the trial court to enter judgment in favor of Crest and to consider an award of attorney fees to it as the prevailing party under section 70.008 of the Property Code.

Crest Infiniti II, LP v. Texas RV Outlet, No. 05-13-01285-CV

Connie Sigel used a website to book an apartment in Paris (the one in France) for a seven-night vacation. During that stay, an intruder with keys to both the apartment and its safe stole most of Sigel’s possessions. Sigel sued the booking agency on multiple contract and tort claims. The trial court denied My Vacation Europe’s special appearance, but the Dallas Court of Appeals reversed and rendered. The Court held that Sigel’s act of accessing MVE’s website and renting an apartment while she was located in Dallas did not constitute a purposeful availment of Texas by MVE, and there was no evidence that MVE specifically targeted Texas residents for its services. The Court of Appeals also held that there could be no specific jurisdiction in Texas because the claims all arose from a burglary that occurred in France, meaning that the relationship between Texas and the operative facts of the litigation was too tenuous to support jurisdiction.

My Vacation Europe, Inc. v. Sigel, No. 05-14-00435-CV

Update: Threepeat. The dream is alive.

A Highland Park property dispute has resulted in a 30-page memorandum opinion affirming the trial court’s summary judgment ruling that the defendants have title to a strip of land adjacent to their home, but also reversing an attorney fee award of $40,670 against the plaintiff, Armstrong DLO Properties. ADLO filed suit, seeking to establish that (among very many other things) a 1949 warranty deed in the defendants’ chain of title was invalid, which would make the frontage of ADLO’s lot approximately 155 feet wide.

During the summary judgment hearing, the trial court revealed that it had sua sponte discovered that ADLO’s owner had successfully sued the estate of his father seeking reformation to the deed, establishing that the frontage was only 140 feet wide. The court orally stated that it would take judicial notice of that judgment, describing it as an issue of “estoppel.” The court subsequently granted summary judgment for the defendants without identifying the grounds for its ruling. The Court of Appeals rejected ADLO’s claim that the district court had improperly relied on matters outside the record in granting the summary judgment, as there was nothing in the written summary judgment order indicating that the court had actually granted summary judgment on the basis of the prior judgment. Because the grounds otherwise presented in the defendants’ motion were sufficient to justify summary judgment, the Court affirmed it. However, the Court reversed as to the award of attorney fees, holding that fees were not recoverable under the Declaratory Judgments Act because the issue was title to the property, not the location of the boundary between properties. See Tex. Civ. Prac. & Rem. Code § 37.004(c).

Armstrong DLO Props., LLC v. Furniss, No. 05-13-01581-CV

Update: The pressure is now on a for a three-peat next week.

In this bill of review concerning an eviction for unpaid rent, the Court of Appeals found, among other things, that the trial court did not abuse its discretion by not holding a hearing on a motion for new trial.  The Court explained that “a trial court is required to conduct a hearing on a motion for new trial only when the motion presents a question of fact upon which evidence must be heard.”

Carson v. El Capitan Apartments

In this legal malpractice claim, the plaintiff argued that his expert opinion as to proximate causation were sufficient to establish that element of his claim.  But the Court of Appeals found that the plaintiff’s expert opinion had been excluded by the trial court as unreliable and the plaintiff did not assign error to that ruling in his appellate brief.

Kuzmin v. Schiller

The Dallas Court of Appeals has affirmed summary judgment in favor of former state and federal district court judge Joe Kendall and the law firm of Provost & Umphrey. The lawsuit alleged that the plaintiffs had provided Kendall with confidential information for a possible qui tam lawsuit related to the procurement practices of the Dallas and Houston Independent School Districts, and that Kendall and Provost had improperly used that information in filing a successful qui tam lawsuit on behalf of two other clients. Kendall and Provost sought and obtained summary judgment, arguing that no confidential information has been shared, that no duty of loyalty was owed or breached, that there was no evidence of an attorney-client relationship, and that there was no evidence of damages. Among other things, the Court of Appeals held that there was no evidence Kendall had intended to undertake a legal representation of the plaintiffs by meeting with one of them to discuss the “possibility” of a qui tam lawsuit, and that there was no evidence Kendall had actually disclosed any of the plaintiffs’ confidential information in connection with the lawsuit that was actually filed.

Gillis v. Provost & Umphrey Law Firm, LLP, No. 05-13-00892-CV

Marco Calvillo sued the owner of the Kliff Klub — first review on Yelp: “Drinks are very strong”; second review on Yelp: “The drinks are EXTREMELY strong” — for dram shop liability after a patron of the club collided with Calvillo’s truck at 3:30 am, driving the wrong way on I-30. Testing at the hospital more than two hours after the club’s closing time showed the driver still had a .177 BAC. The county court at law granted summary judgment for the club owner, and the Court of Appeals affirmed. The patron’s deposition testimony was that she had never bought a drink at the club that night, but was instead consuming drinks bought for her daughter by various men at the club. Because the driver’s consumption was “twice removed from the provision of alcohol to the men who purchased it and gave it” to the daughter, Calvillo has no evidence that the driver was “served” alcohol within the scope of the Dram Shop Act.

Calvillo v. Frazier, No. 05-14-00013-CV

Update: Woo hoo!  We’re betting it was the on-the-nose Yelp reviews that put it over the top with the judges.

Dr. Erwin Cruz sued his former business partners, claiming, among other things, that he was a limited partner in an entity called Plano AMI, L.P.  Before trial, the trial court granted Dr. Cruz’s motion for partial summary judgment establishing his ownership interest as a limited partner, based in large part upon the fact that Plano AMI’s tax returns listed Dr. Cruz as a limited partner.

On appeal, the Dallas Court of Appeals reversed that decision, finding that the partnership agreement was ambiguous and that because Plano AMI had later amended its tax returns to list Dr. Cruz as a general partner, Cruz had failed to establish as a matter of law that he was a limited partner.

Plano AMI, L.P. v. Cruz

Mandamus, it turns out, will not issue to correct a trial court’s refusal to rule on a motion to dismiss when the movant has not bothered to set a hearing or given notice that the motion would be heard at the pretrial conference. Disappointingly, the Court of Appeals did not reach the novel question of whether Chapter 74 of the Civil Practice & Remedies Code requires a plaintiff to file an expert report when suing a retired physician who owned the cattle that the plaintiff collided with in his vehicle.

In re Archer, No. 05-15-00020-CV

With less than two weeks to go in office, Governor Perry is continuing to fill vacancies across the state. Yesterday, that included appointments to the Second and Third Courts of Appeals, plus the appointment of David Schenck to serve as a Justice of the Fifth Court of Appeals through the 2016 election cycle. Schenck will replace Justice Michael O’Neill, who has served on the Court since first being elected in 1998. Welcome to Justice Schenck, and best wishes to Justice O’Neill in his retirement.

After Kevin White defrauded investors in a foreign currency trading scheme, a federal court appointed Kelly Crawford as receiver over the estates and assets of White and his companies.  One such entity was a fund operating as a limited partnership called the Revelation Forex Fund.  Crawford determined that investors in Revelation had claims against Forex, the company with which Revelation had maintained foreign currency trading accounts.  Consequently, the investors assigned their claims to Crawford and he then filed suit against Forex in Colin County District Court.

Forex sought to dismiss the lawsuit based on an arbitration provision in its contract with Revelation.  When the trial court denied its motion, Forex appealed.  The Dallas Court of Appeals affirmed based on the crucial distinction that Crawford’s claims were brought as an assignee of the investors’ claims, not in his role as trustee.  Because only Revelation (and not the individual investors) had agreed to arbitrate claims against Forex, venue in Colin County was proper.

Forex Capital Markets, LLC v. Crawford

In this insurance coverage lawsuit, the Court of Appeals held that the insurer had no duty to defend the appellant in the lawsuit brought against them for conversion under  when the appellant sold their home’s former (foreclosed-upon) owner’s personal property at a garage sale.  According to the Court, the removal and purported sale of the personal property was “intentional and deliberate,” and thus failed to qualify as an “occurrence” covered by the policy.

Drew v. Texas Farm Bureau Mut. Ins. Co.

A short opinion denying mandamus in an electronic discovery dispute serves as a reminder of the importance of a hearing transcript in the appellate courts. In this case, VERP Investment lost a motion to compel, but the mandamus record did not include a transcript from either the hearing on the motion or VERP’s subsequent motion for reconsideration. Likewise, the record did not include a statement that no testimony was taken at the hearings, as permitted by TRAP 52.7(a)(2). Those failures left the Court of Appeals unable to determine whether or not VERP’s opponent had made the required evidentiary showing to obtain the electronic discovery. Therefore, VERP could not demonstrate that the trial court had abused its discretion in granting the motion to compel.

In re VERP Investment, LLC, No. 05-14-01403-CV