Among other holdings related to the arbitrability of a dispute between a business and a former employee, the Fifth Court rejected an argument that the defendant business had waived its right to invoke arbitration: “In short, many factors weigh against a waiver finding: (i) Tantrum is the defendant, not the plaintiff, (ii) Tantrum’s delay in seeking arbitration was not extreme, and Carson has not shown an improper reason for the delay, (iii) Tantrum did not seek a merits disposition of Carson’s claims, and it did not conduct an inordinate amount of discovery, (iv) Tantrum’s counterclaims are arguably compulsory counterclaims, (v) Carson did not show that the parties have spent an inordinate amount of time or money litigating this case, and (vi) Carson did not show that the discovery Tantrum conducted would have been unavailable in arbitration or would not be useful in the arbitration.” Tantrum Street LLC v. Carson, No. 05-16-01096-CV (July 24, 2017).

The forum selection clause in In re Atos IT Solutions said: “If the Dispute cannot be resolved by Customer and Supplier in accordance with Clause 32.1[the Mandatory ADR Process], the Parties irrevocably agree that the Courts of England shall have exclusive jurisdiction . . . .” “The use of the term ‘if’ connotes a condition precedent that conditions performance rather than a covenant or promise.” (quoting Shin-Con Dev. Corp. v. I.P. Invs., Ltd., 270 S.W.3d 759, 766–67 (Tex. App.—Dallas 2008, pet. denied)). The trial court received evidence about whether that condition had been satisfied here, concluded that it had not, and the Fifth Court thus found no abuse of discretion in the resulting ruling. No. 05-17-00952-CV (Aug. 18, 2017) (mem. op.).

A tip of the hat to sister blog 600Camp.com, which celebrates its sixth birthday today!

The plaintiff in B.C. v. Steak & Shake filed her summary judgment response a day late. The panel majority rejected her argument that the trial court had accepted the filing by including this language in the order granting summary  judgment: “After considering the pleadings, evidence, and arguments of counsel, the Court finds that the Motion should be granted.” Accordingly, because the record lacked an “affirmative indication” that it considered the late-filed evidence or granted leave to file it, the majority presumed that the trial court had not considered it. The majority and a dissent disagreed on whether the Court “may consider [plaintiff’s] appellate issues that assert the legal insufficiency of [defendant’s] motion for summary judgment.” No. -5-14-00649-CV (Aug. 30, 2017).

The Texas exemplary damages statute (specifically, TCPRC § 41.008(b)) imposes the following cap: “Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: (1) (A) two times the amount of economic damges; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000 . . . ” It further defines “economic damages” as “compensatory damages intended to compensate a claimant for actual economic or pecuniary loss; the term does not include exemplary damages or noneconomic damages.”

The panel majority in Goodyear Tire & Rubber Co. v. Rogers concluded that “economic damages in this statute are existing in fact, real monetary losses like lost wages, the cost to obtain services that another previously provided for free or at a lower cost, or that the defendant’s misconduct compelled the claimant to seek out.” A dissent objected to the application of this standard to testimony about loss resulting from a relative’s death, noting: “These pecuniary losses are not subject to precise mathemetical calculation, but . . . ‘the inherent uncertianty in measuring these losses does not make them “non-economic in nature.”‘ Nor does this inherent uncertainty mean the loss is not an actual pecuniary loss. No. 05-15-00001-CV (Aug. 31, 2017).

The Fifth Court found this forum selection clause mandatory and unambiguous: “Any lawsuit relating to any matter arising under this agreement shall be initiated in a State or Federal Court located in San Jose, California.” An attempt to avoid the contract provision by relying upon tort claims failed under Pinto Technology Ventures v. Sheldon (Tex. May 19, 2017): “Dynasty’s claims arise from the business relationship that was struck through the agreements and will require review and interpretation of the agreements by the trial court or trier of fact for Dynasty to prevail. On this record, a but for relationship is evidence between the claims asserted below and the Business Agreement.” In re Bambu Franchising, No. 05-17-00690-CV (Sept. 12, 2017) (mem. op.)

Omnicare and Remarkable had four contracts, all with a forum selection clause which said that Delaware state and federal courts had jurisdiction “to the exclusion of any and all other possible venues.” Remarkable sued Omnicare in four separate Texas counties (one suit per contract); the parties agreed to consolidate them in Dallas, and signed a Rule 11 agreement to do so which said that Omnicare agreed to “waive any objections they may have to venue over the claims against them being in Dallas County.” Omnicare then moved to dismiss, based on the contractual forum selection clause. The Fifth Court conditionally granted mandamus relief in favor of Omnicare, finding that the Rule 11 agreement addressed “venue” – the locale within the Texas system – as opposed to “forum” – the locale outside that system. In re Omnicare Pharmacy, No. 05-17-00246-CV (Aug. 31, 2017).

Football legend Deion Sanders sued his ex-wife for defamation; the trial court granted summary judgment on liability and entered judgment for $2.2 million after a bench trial on damages. The Fifth Court reversed, holding that this testimony was too conclusory to justify a summary judgment on the issue of malice:

“At the hearing, Deion was asked, ‘Does Pilar Sanders know that these statements are untrue,’ and he answered ‘Yes.’ In his affidavit, Deion stated, ‘Defendant knew or should have known that each of the defamatory statements . . . were [sic] false . . . I have previously so testified.”

Finding no other evidence or argument sufficient to sustain the judgment as to malice, the Court remanded. Sanders v. Sanders, No. 05-16-00248-CV (Aug. 29, 2017) (mem. op.)

The trial court dismissed Williams’s lawsuit for want of prosecution. Williams moved to reinstate, triggering Tex. R. Civ. P. 165a(3), which requires the court to “set a hearing on the motion as soon as practicable.” The trial court did not do so, and reversal resulted because under the language of this rule, “the trial court has no discretion to fail to hold a hearing.” Williams v. Moreno, No. 05-16-01114-CV (Sept. 7, 2017) (mem. op.) While arising from direct appeal rather than a petition for mandamus, this outcome is a useful reminder as to other such mandatory rules.

Last week, the Supreme Court of Texas Historical Society gave its annual Jack Pope Professionalism Award to Hon. Carolyn Wright, Chief Justice of the Dallas Court of Appeals. Wonderful recognition for a distinguished public servant.

If your opponent makes unclear arguments on appeal, after a bench trial with detailed findings of fact and conclusions of law, the opinion of Pelley v. Wynne, No. 05-15-01560-CV (Aug. 28, 2017) (mem. op.), reminds of two principles to bring clarity:

1. “When a party’s issue globally attacks the trial court’s findings of fact and there is no method to ascertain the appellant’s true objection to the sufficiency of the evidence, the findings of fact issued by the trial court are binding on the trial court.” (“However, the binding nature of the trial court’s findings of fact does not prevent an appellate court from reviewing the conclusions drawn from those factual findings.”)
2. An attack on a conclusion of law, as required by Tex. R. App. P. 38.1(i), must “contain a clear and concise argument for the contentions made, wiith appropriate citations to authorities and to the record.”

I am speaking at the Texas State Bar’s “Civil Appellate Practice 101” course on September 6 in Austin about key differences in procedural issues between Texas courts and federal courts in the Fifth Circuit. Here is a copy of the PowerPoint that I am using.

In the recent family law case of In re: B.W.S., this memorandum was held to not start the running of appellate deadlines; the Court notedd (among other things) how the parties reacted:

When a document such as the Memorandum here instructs the parties to prepare an appropriate final order, this is evidence that the trial court did not intend the document to be a final judgment. This is supported further by the fact the trial court signed the Final Order in this case three months later. Additionally, the parties did not treat the Memorandum as a final judgment below. Mother did not file post-judgment motions after the court sent the Memorandum; she filed them after the trial court signed the Final Order. And even though Father argues on appeal that the Memorandum was the final judgment, he did not argue that below, and he also filed a motion asking the court to sign a final order.

No. 05-15-01207-CV (Nov. 28, 2016) (mem. op.) (citation omitted). In contrast, in the recent family law case of In re B.D., a similar memorandum was held to constitute a judgment and start the running of appellate deadlines; discounting (among other things) how the parties reacted to it:

“Despite the trial court’s hearings to consider appellee’s motion to sign an order and its subsequent order, we conclude the memorandum substantially complies with the requisites of a formal judgment to be accorded final judgment status triggering the appellate deadline.”

No. 05-17-00674-CV (Aug. 31, 2017).

The key distinction between these opinions seems to be the inclusion  of express language that the memorandum is not intended as a judgment, and that requests the parties to prepare draft judgments. This practice echoes the general custom endorsed by Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), of including “language of finality” in a ruling intended to be a final judgment. Of course, even under Lehmann, the substance controls rather than the “magic words,” so this area looks to be one that will continue to pose practical challenges. (SPECIAL THANKS to Hon. Emily Miskel of the 470th District Court in Collin County, who alerted me to these cases on her informative Twitter feed.)