An insurance coverage dispute highlights a key requirement of the venerable mailbox rule — namely, that it doesn’t apply when the filing party (in this case, both pro se and temporarily incarcerated) does not affix sufficient postage to have his summary judgment response delivered by the postal service. In the absence of a properly filed response, the Court of Appeals held that the trial court had correctly granted the insurer’s traditional and no-evidence motions for summary judgment.

Wilson v. Colonial County Mut. Ins. Co., No. 05-14-00220-CV

Update: We did it again!

In February and again in March, the Dallas Court of Appeals held that appellate courts will not conduct merits-based review of orders granting a new trial following bench trials. In a very short opinion denying mandamus review, the Court has now extended that holding to orders granting new trial following entry of a default judgment. So unless the Texas Supreme Court weighs in, it appears that the only new trial orders subject to mandamus review under In re Columbia Medical Center will be those that follow jury trials.

In re Klair, No, 05-15-00462-CV

The owners of a company that owned and operated three ASI Gymnastics centers attempted to effectuate a business divorce via a Rule 11 agreement calling for the appointment of a panel of appraisers. A dispute ensued over how the appraisers were to do their work, and that led the parties back to the courthouse to sort out the terms and enforceability of the Rule 11. The trial court ruled that the agreement was valid, and the Court of Appeals affirmed. While the plaintiffs argued that the agreement lacked essential terms as to the interest rate and payment period for the buyout, the Court of Appeals held that the agreement itself (represented in a series of email exchanges between the attorneys) stated that those terms were not the “heart of the proposal,” and the rest of the terms were indeed agreed upon. (Notably, the buyout funds were actually tendered as a lump sum, rendering the interest rate and payment terms moot.) The Court also rejected the plaintiffs’ contention that the Rule 11 was unenforceable because it was not manually signed, ruling that they had not timely objected that the electronic signature blocks on the emails were invalid as signatures for a Rule 11 agreement. However, the Court reversed and rendered an award of attorney fees in favor of the defendants, concluding that the dispute was already before the trial court when the defendants filed a declaratory judgment counterclaim that they had validly complied with the Rule 11 agreement.

Crews v. DKASI Corp., No. 05-14-00544-CV

The owner of “$8,074.68 in United States currency, forty ‘8 liner’ machines, three Walmart gift cards, and miscellaneous paperwork” appealed a judgment of civil forfeiture, challenging the admissibility of the search warrant affidavit that led to the property’s seizure. That police officer’s affidavit was “replete with hearsay,” but the Court of Appeals found that to be no impediment to the validity of the affidavit. Citing a string of Court of Criminal Appeals and Dallas Court of Appeals cases, the Court held that in presenting the facts to support a search warrant, police officers are permitted to rely on the observations of other persons. And because the affidavit had already been relied upon as probable cause by the magistrate who issued the search warrant, the burden was already shifted to the owner to show cause why the property should not be forfeited or destroyed. Thus, as the Court of Appeals memorably states it, “the State did not have a burden to show probable cause at the show cause hearing.”

$8,074.68 in United States Currency v. State, No. 05-13-01502-CV

The United Food & Commercial Workers Union sought to collectively bargain on behalf of the employees of the Texoma Area Paratransit Systems, a rural transit district. TAPS sued for a declaratory judgment that, as a government subdivision, it was prohibited from collectively bargaining by Chapter 617 of the Texas Government Code. A Grayson County trial court granted summary judgment for TAPS and (more than a year later) awarded its attorney fees. The Dallas Court of Appeals affirmed, rejecting the union’s claim that TAPS’s declaratory judgment action was preempted by federal labor law. Despite 12 years of collective bargaining between TAPS and the union, state law still prohibited collective bargaining with a government entity, and that meant that TAPS was indeed entitled to summary judgment on the issue.

United Food & Commercial Workers Union Local 1000 v. Texoma Area Paratransit Sys., Inc., No. 05-12-01556-CV

Banco Popular appealed from an agreed final judgment of garnishment for over $900,000 of its account holder’s money. The same day the court signed that agreed judgment, the bank moved for a new trial on grounds that it was not indebted to the account holder after all. The trial court denied the motion for new trial, and the Dallas Court of Appeals affirmed. The Court first held that Craddock factors did not apply because it was an appeal from an agreed judgment instead of a default. The Court also shut down a pair of creative arguments, holding that trial courts are not required to explain their reasons for denying a new trial, and that they are not required to hold an evidentiary hearing before entering an agreed judgment.

Banco Popular N. Am. v. Am. Fund US Invests. LP, No. 05-14-00368-CV

Under Rule 329b of the Texas Rules of Civil Procedure, the trial court loses its plenary power over a default judgment thirty days after it is signed.  An exception to this 30 day rule is when a party fails to receive notice within 20 days of the signing of the judgment.  In this case, the defendant sought to have a default judgment set aside, alleging that he did not receive notice of the judgment until the 98th day after it was rendered.  The trial court granted his motion and vacated the default judgment.

The Court of Appeals, however, granted the defendant’s mandamus petition, because under Rule 306a(4), “a party who does not have actual knowledge of an order of dismissal within 90 days of the date it is signed cannot move for reinstatement.”

In re Intergas Capital Recovery LLC

The Texas Commission on Human Rights Act preempts many employment-related claims in favor of the TCHRA’s own available remedies. In this case, an employee sued her employer, Steak N Shake, for common law assault after her supervisor committed an act of sexual assault. Because the gravamen of the plaintiff’s “unwanted offensive touching” claim was for sexual harassment, the Court of Appeals followed Texas Supreme Court authority in holding that the common law assault claim was preempted by the TCHRA. The Court also rejected the employee’s claim that the claim did not sound in harassment because it involved only a single incident. The Court therefore affirmed summary judgment for the employer.

B.C. v. Steak N Shake Ops., Inc., No 05-14-00649-CV

Is a party seeking to set aside an arbitration award entitled to take discovery from her opponent’s attorneys and the arbitrator in order to establish a claim of evident partiality? The answer from the Dallas Court of Appeals is a partially qualified yes. Dolores Rodas sued her employer, La Madeleine, for personal injuries sustained during her employment. The case was compelled into arbitration, and the arbitrator issued a take-nothing award in favor of La Madeleine. Rodas moved to set aside the result on the basis of the arbitrator’s evident partiality, claiming that he had failed to disclose two subsequent times he had been appointed as arbitrator in cases involving La Madeleine’s law firm. The trial court confirmed the arbitration award, but the Court of Appeals reversed and remanded. Assuming, without deciding, that Texas law requires a party to make some evidentiary showing of grounds to challenge the arbitration result before discovery is permitted, the Court of Appeals held that Rodas had met that threshold and was therefore entitled to take depositions in support of her claim of evident partiality.

Rodas v. La Madeleine of Tex., Inc., No. 05-14-00054-CV

A short opinion appears to stand for the proposition that mandamus will not issue to prevent the deposition of a lawyer for one of the parties in the litigation because the appellate court can only speculate what questions might be asked of the attorney. The opinion relies on a pair of cases from the Houston [1st] and Corpus Christi Courts of Appeals that held the future possibility of questions being asked on privileged topics does not justify the prior restraint of barring the deposition altogether. It should be noted that the witness here was apparently involved in the facts underlying the plaintiff’s claims, and that the district judge’s order did provide at least a broad definition of the proper scope of inquiry (although neither caveat is included in the Court of Appeals’ opinion).

In re Hydroscience, Inc., No. 05-15-00366-CV

In this simple breach of contract case, the defendant agreed to pay the plaintiff approximately $8,000 through installment payments of $75 per month.  After paying $2,500, the defendant stopped making the monthly payments and the plaintiff brought this lawsuit.  After a trial, a jury awarded the plaintiff the remaining balance on the contract–just over $5,500.

The Dallas Court of Appeals affirmed the jury’s findings, but remitted the damages award to $1,200 because there was no acceleration provision in the contract and the evidence only established that the defendant had failed to make a total of sixteen payments.  The Court reasoned that absent an acceleration clause or a repudiation, the defendant was only entitled to recover the past due payments under the installment agreement, not the entire remaining balance. Consequently, the Court ordered a remittitur.

Eoff v. Central Mut. Ins. Co.

By local ordinance, the City of Plano permits the owner of a billboard that pre-existed the city’s current territorial limits to repair the sign if it becomes “dilapidated and deteriorated.” The owners of one such sign near Highway 75 sued the city after their request to repair the sign after the sign and all but one of its five supporting beams were blown over in a storm. The city refused, arguing that the sign was “destroyed,” not dilapidated and deteriorated. The Court of Appeals disagreed, noting that the ordinance did not contain the word “destroyed,” and that its definition of “dilapidated and deteriorated” included broken support members. The Court ruled against the sign owners on their temporary regulatory taking claim, however, citing recent Texas Supreme Court authority that the pendency of a civil-enforcement procedure, by itself, does not give rise to a taking.

CPM Trust v. City of Plano, No. 05-14-00104-CV

In this products liability case, a distributor of latex gloves sought statutory indemnity from the manufacturer of those gloves.  The Court of Appeals found that the manufacturer was liable under Section 82.002 of the Texas Civil Practice and Remedies Code to the distributor for litigation costs expended in defending two products liability lawsuits related to the gloves brought by healthcare workers because those expenses were “related to” the manufacturer’s gloves, even though other manufacturer’s gloves were at issue in the lawsuit.

United Med. Supply Co. v. Ansell Healthcare Prods., Inc.

The plaintiffs defaulted on their mortgage and were then removed from the house via a forcible detainer action filed in Collin County.  They appealed, arguing that the trial court erred by admitting as a business record several notices of eviction sent to them in the mail.  The plaintiffs’ primary argument was that the witness who laid the foundation through an affidavit was not qualified.  The Dallas Court of Appeals disagreed, noting that “Rule 803(6) does not . . . require a witness laying the predicate for introduction of a business record to be the creator of the document or even an employee of the company keeping the record.” All that is required is that he/she have personal knowledge of the facts contained within the business record.

Singha v. FNMA

Last summer, the Dallas Court of Appeals rendered judgment in favor of television reporter Brett Shipp on a motion to dismiss under the Texas Citizens Participation Act. The plaintiff in that case, Dr. Richard Malouf, is back in the Court of Appeals with another pair of defamation cases involving the TCPA. This time, Malouf and his wife sued AOL, Inc. and its reporter for publishing an allegedly defamatory story concerning a backyard water park being built while Malouf was “charged” with millions of dollars in Medicaid fraud. Malouf claimed that was defamatory because he had never been “charged” with fraud in any criminal proceeding.

Because the statements related to matters of public concern — namely, allegations of defrauding taxpayers and the provision of dental services to the public — the TCPA shifted the burden to the Maloufs to establish a prima facie case for each element of the defamation claim by clear and specific evidence. The Court of Appeals held that they had failed to do so. Because the defendants were acting as members of the media, the Maloufs had to prove that the statements were actually false. The Court of Appeals held that the words “charged” and “stolen’ did not improperly suggest criminal charges or activity when Malouf had been sued under civil law for the alleged conduct several times. Therefore, a person of ordinary intelligence would not perceive the article’s claims to be more damaging to Malouf’s reputation merely because the article omitted to distinguish between civil and criminal proceedings. The Court of Appeals reversed and rendered in favor of AOL, affirmed dismissal as to the reporter, and remanded to the trial court for determination of AOL’s attorney fees and expenses.

AOL, Inc. v. Malouf, No. 05-13-01637-CV

The Texas Citizens’ Participation Act continues to be a powerful tool in certain types of commercial cases. In this instance, the publisher of Petroleum News Bakken managed to obtain and affirm a judgment of dismissal and attorney fees in a business disparagement and tortious interference case. The dispute arose out of a newspaper article that stated no records could be found for wells that Breitling Oil & Gas claimed to have drilled in North Dakota. The publisher moved to dismiss under the TCPA, which shifted the burden to the burden to the plaintiff to come forward with prima facie evidence of each element of its claims. Breitling responded with a notice of nonsuit, but that didn’t stop the trial court from moving forward with the hearing and awarding the defendant $88,444.58 in attorney fees and expenses. The Court of Appeals affirmed, holding that the nonsuit did not moot the pending motion to dismiss because the defendant had already made a “pending claim for affirmative relief” through its request for attorney fees and sanctions. The Court also rejected Breitling’s argument that the attorney fees should have been tried to a jury, noting that the record did not show that Breitling ever objected to the trial court making findings on the reasonableness of the fees awarded.

Breitling Oil & Gas Corp. v. Petroleum Newspapers of Alaska, LLC, No. 05-14-00299-CV

In this complex fraud case involving the purchase of a dry cleaning business, the Court of Appeal upheld the trial court’s granting of a directed verdict in the defendant’s favor because, among other things, the plaintiff did not identify a fraudulent statement.  The plaintiff alleged that, in the course of purchasing a dry cleaning business, the defendant purportedly asserted that the price offered to the plaintiff was “fair, reasonable, and supported by a valid appraisal.”  However, the court found that there was no evidence that the defendant made any such statement.  Indeed, the plaintiff testified that she did not negotiate the price of the business and was simply told that the price of $1.6 million was a take-it-or-leave-it number.

Kwik Indus., Inc. v. Rock Prairie Holdings, Ltd.