One of the questions appellate lawyers get from time to time is “What’s our deadline to file for mandamus?” The answer is that there is no formal deadline under the rules, but if you wait too long you may end up waiving your right to mandamus. A short opinion from the Dallas Court of Appeals exemplifies the latter principle. On June 6, 2014, the county court at law granted a motion for new trial. On May 27, 2015, a mandamus petition was filed, seeking to require the trial judge to explain its reasons for setting aside the jury verdict and granting a new trial. With the new trial now scheduled for July 8, the Court of Appeals held that the unexplained delay of almost one year to challenge the new trial ruling was too long to justify mandamus relief.

In re Stembridge, No. 05-15-00672-CV

One of the messiest cases in recent memory has resulted in a 79-page opinion and judgment that disposes of the case in almost every way imaginable: “Our decision in this case is to vacate, in part, affirm, in part, dismiss, in part, and reverse and remand to the trial court, in part.” The case arose out of a lease executed by Fitness Evolution, its subsequent acquisition by Headhunter Fitness, a series of personal guarantys, assignments, representations, and just about everything else one might find in a bar exam essay question. Since this one pretty much defies summary, we will instead report that while summary judgment was affirmed on some claims, the end result is that most everybody involved will be remanded to the Collin County trial court for additional proceedings.

Fitness Evolution, LP v. Headhunter Fitness, LLC, No. 05-13-00506-CV

A surveying company named TBE Group contracted with a competing surveying company, Lina T. Ramey & Associates, to locate utility lines for transportation and construction projects. After one lawsuit, the parties entered into a “Strategic Alliance Agreement” that would govern their ongoing relationship. But Ramey did not generate the amount of business required by the agreement, and the parties sued one another for breach of contract. The trial court granted TBE’s motion for summary judgment and the Court of Appeals affirmed, holding that Ramey had failed to come forward with more than a scintilla of evidence that it had fulfilled its part of the contract. Although Raney’s summary judgment affidavit referenced checks that were supposed to demonstrate Raney’s performance, the checks were not attached to the affidavit. That failure rendered the affidavit conclusory and of no evidentiary value.

Lina T. Ramey & Assocs., Inc. v. TBE Group, Inc., No. 05-13-01711-CV

A settlement agreement between two groups of real estate partners released all of the parties claims in connection with two named lawsuits, but did not include any release for a third lawsuit. The third case proceeded in litigation for another two years before the defendants decided that the plaintiffs’ decision to continue the lawsuit was a breach of the prior settlement agreement. So the defendant filed a fourth lawsuit for declaratory judgment, breach of contract, and related tort claims. On the first day of trial in lawsuit #4, the court ruled that the settlement agreement did not include the third lawsuit, then granted directed verdict on all of the plaintiff’s claims. The Court of Appeals affirmed, holding that the settlement language unambiguously referred  to lawsuit #1 and # 2, not to lawsuit #3.

Mikob Props., Inc. v. Joachim, No. 05-13-01613-CV

On Thursday, Progressive Insurance filed a mandamus petition complaining that the trial court has not ruled on its motion to allow the late designation of a medical expert. On Friday, the Dallas Court of Appeals denied mandamus, holding that there was nothing in the record demonstrating that the trial court did not intend to rule on the matter before trial. Trial is set to commence today.

In re Progressive County Mut. Ins. Co., No. 05-15-00622-CV

Homeowner Sheila Larry failed to pay her HOA fees.  Eventually, the HOA took legal action to collect the unpaid dues.  Like most HOA fees, they were secured by a contractual lien on Ms. Larry’s property.  The HOA successfully moved for summary judgment, but the trial court refused to order foreclosure of the lien, and the HOA appealed.

Reversing the trial court, the Dallas Court of Appeals reasoned that the “purchase of property within a deed restricted subdivision carries with it the obligation to pay association fees,” and “the remedy of foreclosure is an inherent characteristic of that property right” — even if it may seem harsh.

Gateway Estates HOA v. Larry

A series of oil and gas investments led to a lawsuit between BV Energy Partners and Richard Cheatham, the managing member of their jointly owned company, Tsar Energy II, LLC. Although Cheatham was initially required to work exclusively for Tsar II, that exclusivity provision was eliminated after the company had languished with only one investment made in three years. Cheatham continued to bring oil and gas opportunities to BV, and also made his own acquisitions, but the parties made no further investments were made through Tsar II. Cheatham’s investments proved to be far more lucrative than BV’s, which led BV to sue Cheatham for breach of fiduciary duty. The jury rejected those claims, and the Court of Appeals affirmed. The Court held that there was no charge error in asking the jury to consider whether the parties had formed a partnership to invest in “all” deals (as opposed to “any”) that Cheatham had an opportunity to acquire in the Marcellus Shale. The Court held that was a proper instruction because the justice’s review of the evidence and arguments at trial showed that BV had tried the case on an all-or-nothing theory.

BV Energy Partners, LP v. Cheatham, No. 05-14-00373-CV

The Texas Citizens Participation Act is becoming a powerful tool for disposing of certain types of lawsuits at an early stage of litigation, but an opinion from the Dallas Court of Appeals recognizes two important limits to the TCPA’s scope. Travis Coleman sued his former employer, ExxonMobil Pipeline, and two former supervisors for defamation and related claims. Coleman contended that the defendants had lied about his alleged failure to measure the level of fluid in a chemical holding tank, which led to his dismissal. The trial court denied Exxon’s motion to dismiss under the TCPA, and the Court of Appeals affirmed.

The Court of Appeals first relied on the Texas Supreme Court’s recent holding in Lippincott v. Whisenhunt (4/25/15) to reject Coleman’s argument that the TCPA did not apply because the speech was purely private. Nevertheless, the Court held that the allegedly defamatory statements did not involve a “matter of public concern” because their contents related to Coleman’s private job performance, not health, safety, the environment, or Exxon’s economic interests. The fact that the potential consequences of Coleman’s alleged failure to check the tank included health, safety, environmental, and economic concerns was not enough to transform the statements into a matter of public concern. The Court also rejected Exxon’s argument that the TCPA applied on free association grounds, holding that communications made in the context of free association had to involve some sort of public or citizens’ participation to fall under the TCPA.

ExxonMobil Pipeline Co. v. Coleman, No. 05-14-00188-CV

Heritage Auctions held a number of items owned by Movie Poster House, Inc. and one of its owners, William Hughes. Hughes owed Kenneth Mauer over $600,000 that was secured by Hughes’ collectibles, and Mauer filed an application for writ of garnishment against Heritage. While that case was pending, Movie Poster House intervened, seeking an accounting to determine which items were owned by Hughes personally and which were owned by MPH. Because MPH’s consignment agreement contained an arbitration provision, the matter was compelled to arbitration. MPH later sought to amend its statement of claims to add additional causes of action for damages, but the arbitrator denied leave to file on the basis that the filing was untimely. The arbitrator ruled in favor of MPH on the original claims, and the trial court subsequently granted summary judgment for Heritage when MPH sought to re-file its additional claims in court. The Court of Appeals affirmed. Because MPH failed to appeal the arbitration award directly, it could not complain about the arbitrator’s decision to deny leave to amend. And because those additional claims arose out of the same set of facts as the claims that were addressed in arbitration, they were barred by res judicata.

Movie Poster House, Inc. v. Heritage Austions, Inc., No. 05-14-01260-CV

The Dallas Court of Appeals has now joined two other Texas appellate courts in holding that “A post-verdict motion requesting attorney’s fees filed before the entry of a final judgment is a sufficient pleading to support an attorney’s fee award.” The Court also disposed of the appellant’s argument that a $50,000 fee award was unreasonable because it far exceeded the $11,000 in damages found by the jury, holding that the issue was waived by failing to request a reporter’s record of the hearing.

Nisby v. Dentsply Int’l, Inc., No. 05-14-00814-CV

A year before trial, Investment Retrievers filed a business records affidavit and attached business records in a suit to recover on an assigned credit card debt. The trial court rendered judgment over the debtor’s objection that the business records affidavit was inadmissible because it was made by a third party. On appeal, new counsel argued that the judgment was not supported by evidence because the business records affidavit was not included in the clerk’s record. That deficiency was quickly cured through the filing of a supplemental clerk’s record, and the Court of Appeals defendant had failed to preserve other arguments by not objecting at the trial court or by not briefing them on appeal.

Parks v. Investment Retrievers, Inc., No. 05-14-00024-CV

In August 2013, the Dallas Court of Appeals held that “viatical settlements” — basically, interests in bought and resold life insurance policies — were securities within the scope of the Texas Securities Act. Likely because of a conflict between that holding and a previous case out of the Waco Court of Appeals, the Supreme Court granted the petition for review and set the case for oral argument. This morning, the Supreme Court unanimously affirmed the Dallas court’s opinion, finally confirming that the trial court had erred in granting summary judgment for the defendants. The case was remanded for further proceedings, presumably including trial on the merits.

Life Partners, Inc. v. Arnold, No. 14-0122

A 1999 divorce decree required Molly Brizendine to pay a $14,477 debt the she and her ex-husband owed to Texans Credit Union. In 2013, Texans sued Richard Brizendine for the balance of the outstanding line of credit. The county court at law granted judgment for the ex-husband, but the Dallas Court of Appeals reversed and rendered. Although it was Molly who had continued to take advances on the line of credit long after the divorce was final, Richard was still liable for the debt because he had signed the original contract as a co-borrower. The Court held that it was “well-settled that a court in a divorce action has no power to disturb rights that creditors lawfully hold against the parties.”

Texans Credit Union v. Brizendine, No. 05-13-01422-CV

Wells Fargo obtained a judgment against Charles Paschall and then sought to collect by garnishing an investment account Paschall held at U.S. Trust. U.S. Trust opposed the garnishment, asserting that the funds it held were subject to a properly perfected security interest held by Inwood National Bank. Inwood then intervened to protect its lien interest in the account. The trial court ultimately ruled that Wells Fargo’s judgment lien trumped Inwood’s security interest and awarded the funds to Wells.

Inwood appealed. The issue before the Dallas Court of Appeals was whether Inwood lost its priority over Wells Fargo by executing a new promissory note with Paschall several months after Wells Fargo recorded its judgment lien. Under Texas law, if this new obligation were considered an “advance” as opposed to a renewal or extension of an existing indebtedness, then Inwood would lose its priority. Relying on several cases interpreting the UCC, the Court determined that the new promissory note was not an advance, reversed the trial court’s ruling, and held that Wells Fargo was not entitled to garnish the funds.

Inwood Nat’l Bank v. Wells Fargo Bank, N.A.