The Fifth Circuit’s recent opinion in Cutrer v. Tarrant County Local Workforce Development Board, discussed here on 600Camp, offers this fascinating tidbit about why a Texas county’s administrator is called a “county judge”:

“The position of county judge is a remnant of Texas’s time as part of Mexico. Title II, Section VII of the 1827 Constitution of the State of Coahuila and Texas established Ayuntamientos (town councils), charged with municipal administration. And under Article 159 of the 1827 Constitution, the council was to include “Alcades.” “Alcade” is a Spanish term for a magistrate who performs both executive and judicial functions. Today, the county judge principally serves as the chief executive of a Texas county. See Tex. Const. art. V, §§ 16, 18. But in keeping with the historical pedigree of the office, a county judge still performs some judicial functions. See, e.g., Tex. Est. Code § 1002.008(a)(1); Tex. Health & Safety Code §§ 571.012, 573.012.”

A scholarly, yet highly readable article in the Texas Supreme Court Historical Society Journal by former Justice Jason Boatright offers further background on this modern-day legacy of Spanish and Mexican law.

A bill of review is an equitable proceeding allowed by Texas law to challenge a default judgment. While equitable in nature, the proceeding still has serious proof requirements; in particular: “‘[T]he testimony of a bill of review plaintiff alone, without corroborating evidence, is insufficient to overcome the presumption that the plaintiff was served.’ Here, the evidence showed that . . . appellant was personally served . . . at 3815 N. Westmoreland at 7 p.m. on March 23, 2016. The officer’s return is prima facie evidence of the facts of service. Although appellant testified he was not served at that address, there was no other evidence to corroborate that statement. Although he admitted an unrecorded contract for deed showing a conveyance of the Westmoreland property to Alfredo Guzman in 2008, this document does not corroborate his testimony that he was not served at the location.”  Mitchell v. City of Dallas, No. 05-18-01208-CV  (Nov. 20, 2019) (unpubl.) (citations omitted, emphasis added).

Simmons sued Cook for securities fraud; Cook move to dismiss under the TCPA, and the Fifth Court found that Cook failed to show that Simmons’s lawsuit was “in response to” any potentially-protected communication: “Cook does not dispute that Simmons’s pleadings do not mention Cook’s interview with the Texas Rangers or make any reference to Paxton or Servergy. Nor is there any evidence that Simmons was involved in any way with the Texas Rangers’s investigation. According to Cook, his interview was about Paxton, not Simmons. Simmons’s allegations are that Cook made misrepresentations in the sale of securities. ‘Any activities [by Cook] that are not a factual predicate for [Simmons’s] claims are not pertinent to our inquiry regarding whether the TCPA applies.'” Cook v. Simmons, No. 05-19-00091-CV  (Nov. 12, 2019) (mem. op.) (citation omitted).

“After the justice court held a jury trial in a forcible detainer suit and the jury rendered a verdict, appellant appealed to the county court. The county court ruled in appellees’ favor, and appellant appealed. The record before this Court includes only the jury verdict from the justice court and not a judgment from the justice court.” Because the Fifth Court has no more jurisdiction than the court appealed from, it dismissed Anderson v. Weed for lack of appellate jurisdiction. No. 05-19-00864-CV (Nov. 14, 2019) (mem. op.)

An insurer failed to show prejudice, and thus could not take advantage of a “consent-to-settle” provision in an uninsured motorist first-party policy.  The key Texas Supreme Court case “did not recognize difficulty in proving the value of a potential subrogation claim as sufficient prejudice”; to the contrary, it “indicates that the only kind of prejudice sufficient to make a consent-to-settlement breach material is loss of a valuable subrogation right[.]” And the insurer also failed to conclusively prove a loss of value, even under its view of the law. Davis v. State Farm Lloyds, No. 05-18-00969-CV (Nov. 12, 2019) (mem. op.).

In a fraudulent-transfer case, the Fifth Court reversed the denial of a German company’s special appearance when: “AEG Germany was not a party to the Manufacturing Agreement or the Security Agreement;it was not involved inthe “order process” with Power Max and AEG USA;nor was it a party to AEG USA’s lawsuit against Power Max. In fact, Creation has not alleged any contacts by AEG Germany with the state of Texas that ‘give rise’ to Creation’s claims against it, apart from the allegation that AEG Germany was the recipient of fraudulently transferred assets. . . . [A]s the above [“effects test”] cases show, even if we assume a tort was somehow committed and that AEG Germany knew its actions would cause an injury in Texas (assumptions this record does not support), the alleged contacts do not rise to the level of purposeful availment simply because Creation is a Texas company or the alleged harm occurred in Texas.” AEG Power Solutions v. Creation Technologies,  No. 05-19-00195-CV (Nov. 12, 2019) (mem. op.)

The Fifth Court found that the following closing argument was not “incurable” (and thus, had to be objected to during trial). During voir dire, after noting the trial court’s instruction that lawyer argument was not evidence, Plaintiffs’ counsel said:

Despite that, I’ll make a pledge to you, everything I tell you will be 100-percent accurate and truthful. I have been known to make a mistake. If I make that mistake, I’ll own it in closing argument at the end of the case.

Later, during closing argument, defense counsel argued:

Do you remember the pledge that Plaintiffs’ counsel made to you before this trial started? If there was a mistake, he would own it. Okay. So, let’s look at that. He puts up on that overhead what my client says, “I’m responsible for the damages.” For the accident, yes. But what he doesn’t remind you of, he also asked my client, “Do you know what their injuries are, what their treatments are?” He had no idea. So, to insinuate that my client is going to say, “I accept all of this,” is ridiculous. That’s dishonest.”

The Court noted that “‘[u]nsubstantiated attacks on the integrity or veracity of a party or counsel’ has been cited as a type of jury argument that is deemed incurable,” but found that this argument was not incurable given the earlier argument of Plaintiffs’ counsel, Plaintiff’s counsel’s rebuttal of the argument later, and the jury verdict that was generally consistent with the evidence on the central trial issue about damages. Hopkins v. Phillips, No. 05-18-01143-CV (Oct, 29, 2019) (mem. op.)

In a dispute about standing to assert rights as a partner, the Fifth Court made this general procedural point: “Although appellants did not file a rule 93 verified ‘denial of partnership,’ the record shows [plaintiffs] did not assert their ‘admission’ argument below.  Rather, [plaintiffs’] claimed status as a . . . partner was a primary focus of both sides’ arguments at trial. On this record, we conclude capacity was tried by consent.”  (citations omitted, applying Highland Credit v. UBS, 451 S.W.3d 508, 515 (Tex. App.—Dallas 2014, no pet.). Malouf v. Sterquell PSF Settlement LC, No. 05-17-01343-CV (Nov. 7, 2019) (mem. op.)

The Fifth Court affirmed a TCPA dismissal in Kappos v. Baxter: “As part of his representation of his clients, Baxter stated in a motion filed in the federal litigation that there was a judgment in the underlying California state-court litigation. Whether the statements were wrong, fraudulent, or part of a conspiracy to defraud Kappos does not affect the applicability of the defense of attorney immunity. Kappos was not Baxter’s client. Therefore, following Youngkin, we conclude that Baxter is immune from Kappos’s suit based on his actions while representing his clients, including his statements in court filings that there was a judgment in the California state-court litigation. We conclude Baxter established by a preponderance of the evidence the elements of the defense of attorney immunity.” No. 05-19-00020-CV (Oct. 30, 2019) (mem. op.)

The Fifth Court summarized the current state of its precedent on the difficult interplay between estoppel and standing in probate cases: “In her answer to the will contest, Lisa Jo pled the affirmative defense of estoppel, and was therefore required to demonstrate Tia’s acceptance of the proceeds of the mutual fund was inconsistent with her challenge to the Will. . . . .Rather than satisfy her burden, Lisa Jo relied on a case that disagreed with our holding in Holcomb,and argued Tia was burdened with disproving estoppel. Declining an unacceptable invitation for one panel of this court to disregard the holding of another panel, we hold Lisa Jo failed to satisfy her burden, as the Will’s proponent, by failing to demonstrate that Tia accepted greater benefits than those to which she was entitled under the Will or intestacy laws.” In re Estate of Johnson, No. 05-18-01193-CV (Nov. 4, 2019) (unpubl.)

Governor Abbott has appointed Hon. David Evans to return to the Fifth Court and fill its vacant seat; Law360 reports that he may continue to hear some matters from the district court where he presently serves until his replacement is appointed and up to speed. Judge Evans recently donated a kidney to his former colleague, Hon. Carolyn Wright, an act that has raised local awareness about living organ donation. Welcome back, Justice Evans!