The Texas Supreme Court’s newfound enthusiasm for mandamus review of orders granting motions for new trial after a jury trial (see, e.g., In re: United Scaffolding, 377 S.W.3d 685 (Tex. 2012)) has not been embraced by the courts of appeal (including Dallas) to orders setting aside a default judgment, or orders granting a new trial following a bench trial. A thorough summary of the Fifth Court’s opinions on those subjects appears in In re: Walker, No. 05-17-00404-CV (May 23, 2017) (mem. op.)

New Local Rule 5, which became effective in May 2017, bridges a “gap” in the Texas Rules of Appellate Procedure about the briefing schedule when both parties have appealed.

The case of In re Bolt reminds when a party can seek mandamus relief to obtain a ruling on a motion. On the one hand, because “[m]andamus is appropriate to compel the performance of a ministerial duty,” it follows that “[a] trial jduge must consider and rule on a motion brought to the court’s attention within a reasonable amount of time, and a writ of mandamus may be issued to compel the trial court to rule in such instances.” But, as is required in other contexts where mandamus may be appropriate, the matter must be presented to the trial court: “To be properly filed and timely presented, a motion must be presentedd to a trial court at a time when the court has authority to act on the motion. The mere filing of a motion with the trial court clerk does not equate to a request that the trial court rule on the motion.” No. 05-17-00495-CV (May 22, 2017) (mem. op.)

Federal law, but highly relevant to the local corporate community –  the Supreme Court’s unanimous May 22 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC holds: “As applied to domestic corporations, ‘reside[nce]’ in [28 U.S.C.] § 1400(b) refers only to the State of incorporation.”

Emergency Medical Training Services sued Sheila Elliott for breaching various non-disclosure obligations in her complaints to state regulators. Elliott moved to dismiss under the Texas anti-SLAPP statute; the district court denied her motion, and the Fifth Court reversed and remanded for dismissal of the case in her favor.

The Court used a standard two-step analysis. As to the first step, Elliott met her burden to show that EMTS’s claim was based on her exercise of free speech rights – a matter, the Court ruled, that was not affected by whether she had entered an NDA. As to the second step, EMTS failed to meet its burden to establish a prima facie case fo each element of its contract claim, as its evidence of damage was too conclusory. Elliott v. S&S Emergency Training Solutions, Inc., No. 05-16-01373-CV (May 16, 2017) (mem. op.)

In a quick break from Texas state practice – for a recent CLE presentation, I prepared the attached one-page chart to summarize the Fifth Circuit’s recent holdings about discovery.

The arbitration clause in Employee Solutions v. Wilkerson said, in part, that it applied to “. . . any and all claims challenging the existence, validity or enforceability of this [agreement] (in whole or in part) or challenging the applicability of this [agreement] to a particular dispute or claim.” To get around this broad language, the party opposing arbitration contended that it did not reach a “purely procedural” matter – the alleged failure to serve a written demand for arbitration on him and file it with the arbitral authority within the statute of limitations for negligence. The Fifth Court disagreed, noting the parties’ dispute as to whether this matter was a condition precedent to arbitration, which brought it squarely within the above language. No. 05-16-00283-CV (May 10, 2017) (mem. op.)

In the legal malpractice case of Ashton v. KoonsFuller, P.C., the Fifth Court affirmed a summary judgment for the defendant law firm. Among other issues addressed, the Court criticized the testimony of the plaintiff’s expert about the defendant’s billing, providing an illustration of the commonly-litigated Daubert/Robinson issue about whether an expert adequately considered alternatives to his or her conclusion: “[W]hile Hill disagrees with the amount of time KoonsFuller spent on discovery matters and preparing for mediation, the affidavit does not state how much time would have been reasonable. Similarly, Hill complains about the number of lawyers and legal assistants billing for those services, but does not suggest what an appropriate number would be.” No. 05-16-00130-CV (May 10, 2017) (mem. op.)

The new “permissive appeal” procedure has not led to a lot of permissive, interlocutory appeals; another example of that trend appears in Oklahoma Specialty Ins. Co. v. St. Martin de Porres, Inc. The parties stipulated to damages, the trial court found the policy ambiguous and thus interpreted in a certain way, and said it would follow whatever the Fifth Court decided about that interpretation. The Court declined to hear the case, finding: “Given the posture of this case following the trial court’s rulings and the parties’ stipulations, we conclude a permissive appeal will not materially advance the ultimate termination of the litigation by considerably shortening the time, effort, and expense involved in obtaining a final judgment. (applying Tex. Civ. Prac. & Rem. Code § 51.014(d).

I am speaking on the topic “Ethics 2017: Recent Federal Court Decisions to Know” on Friday, May 5, to the Plano Bar Association (noon at Palio’s Pizza, yum) – here is the PowerPoint that I will be using.

Plaintiff sued two insurance companies, headquartered out-of-state, who produced evidence that their business was limited to out-of-state activity. As to an allegation that the companies and their agents met in Toronto where they “conspired to forge [Plaintiff’s signature,” the Court reminded that “the assertion of personal jurisdiction over a nonresident defendant may not be based solely upon the effects or consequences of an alleged conspiracy with a resident in the forum state.” Friend v. Acadia Holding Corp., No. 05-16-00286-CV (April 27, 2017) (applying Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995)).