In The Art of War, Sun-Tzu famously described nine types of ground where battles could occur. In Medina v. Michelin North America, the Fifth Court reminded that summary judgment can only occur on the specified grounds, especially for a no-evidence motion:

“Michelin’s only basis for no-evidence summary judgment motion on these claims was the lack or absence of expert testimony should the trial court grant its motion to exclude [plaintiff’s expert’s] testimony. The no-evidence motion itself specifically requested the trial court not consider the no-evidence summary judgment motion on these claims until it considered and ruled on its motion to exclude. In granting summary judgment on these claims after denying Michelin’s motion to exclude, however, the trial court necessarily concluded [that the expert’s] testimony constituted no evidence. Because Michelin did not move for summary judgment on this ground, the trial court erred in granting summary judgment on the Medinas’ defective design, defective manufacturing, and negligence claims once it denied Michelin’s motion to exclude this testimony.”

No. 05-16-00794-CV (Jan. 29, 2018) (mem. op.) I presented the oral argument in this case for the appellants.

Litigation about this year’s primary election led to a mandamus petition about the ballot in a judicial race, in which the Fifth Court “conditionally granted relator’s petition for writ of mandamus by written opinion and ordered the trial court to vacate the temporary restraining order. We determined that the proceeding in the district court was moot as to the primary election ballot at the time it was heard, and the resulting order was void.” The opposing party then filed a “cross-petition” about the same ballot, as to which the Court similarly held: ” That relief is unavailable because overseas and military ballots have already been printed and mailed for the March primary.” In re Williams, No. 05-18-00068-CV (Jan. 26, 2018) (mem. op.) While turning on an issue unique to election law, the opinion also illustrates how equitable defenses such as laches can affect the resolution of mandamus petitions.

Section 38.001 of the Texas Civil Practice & Remedies Code refers to an award of “reasonable attorney’s fees” in types of cases. In Basic Energy Services v. Exco Resources, however, the parties’ contract “provide[d] for ‘all expenses of litigation, court costs, and attorneys’ fees which may be incurred by Company Group . . . ‘ and does not include any requirement that such amounts must be subsequently subjected to scrutiny for reasonableness.” Distinguishing an earlier case about a note dispute between two individuals, the Fifth Court reasoned that “two sophisticated, commercial entities” had negotiated an agreement under which the indemnitee:

. . . could either (1) tender its defense to Basic thus allowing Basic to control the costs of litigation or (2) incur litigation expenses itself, negotiating with attorneys for fees that it would then submit to Basic for indemnification, risking Basic’s refusal or inability to pay and assuring itself of the reasonableness of the fees it was paying in the process. Accordingly, in view of the fact that the agreement at issue here was between two sophisticated, commercial entities presently familiar with the expenses of litigation, court costs and attorney’s fees and free to negotiate and structure their affairs as they sought fit, we see no reason to impose additional procedures beyond those they chose for themselves.

No. 05-15-00667-CV (Jan. 26, 2018) (mem. op.)

The economic loss rule, and the related debate about the proper handling of “con-tort” claims, can raise difficult and close questions. Hames v. JP Morgan Chase, however, presents a relatively clean example. Hames alleged mishandling of her bank account, and argued that her negligence claim could proceed independently of her breach-of-contract claim, as the bank’s duties arose from Article 4 of the UCC.The Court disagreed, finding that “[t]he duties that Chase allegedly breached were dependent on its contact with Hames,” and noting authority that “[t]he relationship of a bank to a general depositor is conrractual, that of debtor-creditor arising from the depository contract.”  Additionallly, “the account funds that Hames seeks to recover relate to the subject matter of the contract . . . ” No. 05-16-00472-CV (Jan. 22, 2018) (mem. op.)

In Cruz v. Ghani, a judgment creditor executed on the judgment debtor’s condominium – realizing a sale price of $25,000, despite a market value of $217,500 – only to have the judgment later reversed on appeal. In the ensuing lawsuit about wrongful execution, the (former) judgment debtor prevailed and won judgment for the market value. The trial court required a supersedeas bond for the full amount and the Fifth Court affirmed. It concluded that the purpose of such an award was to compensate for loss, and thus did not fall within a line of authority holding that awards for equitable disgorgement do not have to be bonded, as they “are not based on an actual pecuniary loss suffered by the plaintiff, but on the defendant’s ill-gotten gains.” No. 05-17-00566-CV (Jan. 17, 2018) (mem. op.)

Appellant sought a new trial based on the lack of a reporter’s record from the key summary judgment hearing, citing Tex. R. App. P. 13.1 and 34.6(f). Neither citation worked. As to Rule 13.1, which lists the duties of a court reporter, “[t]he Texas Supreme Court has held that creating a reporter’s record is neither necessary nor appropriate to the purposes of a summary judgment hearing.” (citation omitted). And Rule 34.6(f), which “provides that an appellant is entitled to a new trial if a significant exhibit or portion of a reporter’s record is lost or destroyed,” was inapplicable because “[b]oth parties acknowledge a reporter’s record was never made.” Lynch v. O’Hare,  No. 05-17-00175-CV (Jan. 18, 2018) (mem. op.)

A court of appeals can grant mandamus relief if a trial court refuses to rule within a reasonable time. (A good, recent example is In re Mesa Petroleum Partners LP, an El Paso case I was involved with.) But January 2018 is too soon to complain about alleged inaction in connection with rulings made on December 15, 2017 – in that situation, “[t]o the extent relator seeks a separate order in his motion to clarify, the trial court has not been given a reasonable time in which to sign such an order and relator has not presented a record showing that he has requested an order from the trial court.” In re Venkartaman, No. 05-17-01474-CV (Jan. 9, 2018) (mem. op.)

Plaintiff alleged that his counsel’s negligence as to the handling of evidence about certain property appraisals led to an unfavorable settlement. The Fifth Court affirmed summary judgment for the defense, noting that the appraisals only became relevant if a particular ruling was made on a threshold legal issue, and the plaintiff’s expert affidavit “contained no analysis of the law or the facts relating to” whether “[P]laintiff would have prevailed on the payment issue at trial.” “Therefore a ‘fatal analytical gap’ in [the expert’s affidavit divide his recitation of the facts from his opinion of the ‘true value’ of the case, and we ‘are simply left to take his word’ that the settlement was excessive.”  Barnett v. Schiro, No. 05-16-00999-CV (Jan. 9, 2018) (mem. op.)

The following summary judgment motion was granted, and the Fifth Court affirmed, rejecting challenges to the level of detail in the motion (as well as the non-respondent’s citation to evidence not expressly incorporated in the response):

_____________________________________________________________________

Summary of the Motion

Plaintiffs seek summary judgment on their claims against Thomas J. Granata, II because he guaranteed the debt of Full Spectrum Diagnostics, LLC. The default judgment was entered against Full Spectrum Diagnostics, LLC on June 1, 2016. Mr. Granata guaranteed the amount of indebtedness of Full Spectrum Diagnostics, LLC. Therefore, Plaintiffs are entitled to summary judgment against Mr. Granata.

Undisputed Facts

Mr. Granata guaranteed the promissory note made by Full Spectrum Diagnostics, LLC. Full Spectrum Diagnostics, LLC. only paid $50,000 of the note via a third party. The note was to be repaid by October 26, 2015. No payment has been forthcoming on said promissory note cents [sic] the $50,000 payment was made by the third-party. On June 1, 2016, the court entered a default judgment against Full Spectrum Diagnostics, LLC based on the promissory note in the amount of the unpaid principal balance of the note along with interest.

Argument and Authorities

The Court should grant the motion for summary judgment against Mr. Granata because Mr. Granata guaranteed the obligation of Full Spectrum Diagnostics, LLC. A default judgment was entered against that company for the promissory note Mr. Granata guaranteed. Therefore, the Court should grant the summary judgment against Mr. Granata for the same amount as the default judgment.

Prayer

WHEREFORE, Plaintiffs request the Court enter a Summary Judgment
corresponding to the default judgment entered against Full Spectrum Diagnostics,
LLC as follows:a. Monetary relief of $220,000.00; b. Interest in the amount of $8,066.67 through February 25, 2016 and 8% interest on the monetary relief expressed above, compounded annually, until paid in full.

(Citations to exhibits omitted.) Granata v. Kroese, No. 05-17-00118-CV (Jan. 10, 2018) (mem. op.)

A civil forfeiture action arising from a criminal conviction produced a succinct reminder about review for evidentiary sufficiency: “Wife’s testimony was equivocal, and the trial court was free to disbelieve her. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (fact finder may believe one witness and disbelieve others).” One 2007 Lexus v. State, No. 05-16-01296-CV  (Jan. 8, 2018) (mem. op.)

The appellant in Bowser v. Craig Ranch Emergency Hospital LLC, a medical negligence case, argued that a Casteel situation arose “because the single [liability] question . . . combined the negligence issue and the proximate cause issue, so it is impossible to assess how the jury was affected by the erroneous proximate cause instruction.”  The Fifth Court disagreed: “The Texas Supreme Court has specifically limited its holding in Casteel and its progeny to the submission of broad-form questions incorporating multiple theories of liability or multiple damage elements.” No. 05-16-00639-CV (Jan. 8, 2018) (mem. op.) (citing Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006)).

The appellant in an unsuccessful wrongful-termiantion suit pointed to hearing testimony that he said “evinced a negative attitude . . . that [his] allegations were ‘very egregious and very inflammatory.” The Fifth Court affirmed summary judgment against him, noting on this point that the testimony addressed the nature of the allegations and was not a negative statement about the report itself.” Hackbarth v. UT-Dallas, No. 05-16-01250-CV (Jan. 4, 2018).

NRG failed to attend a court-ordered mediation. The court entered “death penalty” sanctions and NRG sought a new trial, alleging problems with notice and difficutly finding appropriate counsel (as an LLC, NRG could not appear pro se). The Fifth Court reversed, finding (1) no direct relationship between the sanction and the harm (incurred expenses) to the other party, (2) a failure to test less sanctions, and (3) potentially meritorious defenses. NRG & Associates v. Service Transfer, LLC, No. 05-16-01375-CV (Dec. 21, 2017) (mem. op.)

While finding that a statement in a cease-and-desist letter fell within the scope of the TCPA, the Fifth Court found a failure to state an actionable claim in response to a TCPA dismissal motion. As to tortious interference, the plaintiff’s damages allegations fell short of Elliott v. S&S Emergency Training Solutions, Inc., No. 05-16-01373-CV, 2017 WL 2118787 (Tex. App.—Dallas May 16, 2017, pet. filed); as to the tort of “invasion of seclusion,” the allegations failed because “[s]everal courts, including our own, have consistently held that an intrusion upon seclusion claim fails without evidence of a physical intrusion or eavesdropping on another’s conversation with the aid of wiretaps, microphones, or spying.” Morales v. Barnes, No. 05-17-00316-CV (Dec. 29, 2017) (mem. op.)

Craig moved to vacate an arbitration award: “Thus, under [Tex. Civ. Prac. & Rem. Code] section 171.094, she was required to arrange for service of process on appellees upon filing the motion. Craig did not arrange for service of process until she filed her supplemental motion to vacate on September 1, 2016, more than five months after the arbitration panel entered its award. Because she did not serve notice of her motion to vacate within [FAA] Section 12’s three-month limitations period, the service was untimely and the trial court was required to dismiss her motion as untimely.” The Fifth Court declined to apply any equitable tolling doctrine, and rejected an earlier emailing of the motion as inadequate under the TAA’s procedural requirements. Craig v. Southwest Securities, No. 05-16-01378-CV (Dec. 18, 2017) (mem. op.)