“Birds of a feather flock together,” says the old proverb. But on the Fifth Court, justices of the same political party do not always rule together, as shown by two recent opinions.

The first, Inland Western v. Nguyen, No. 05-17-00151-CV (Feb. 10, 2020) began when the owners of a nail salon, the Nguyens, sued their landlord for alleged misrepresentations about lease renewal. They won a judgment in their favor after a jury trial, after which a Fifth Court panel reversed and rendered judgment for the landlord.

The Nguyens petitioned for rehearing en banc. The court granted their petition, held oral argument and then reversed course Feb. 10 in a 10-4 decision. It issued a short, form order denying en banc reconsideration without discussing the merits.

The order was supported by all five of the current Republican justices (David Bridges, Lana Myers, Bill Whitehill, David Schenck and David Evans), joined by retired Justice Robert Fillmore from the original panel. Four of the Democratic justices (Leslie Osborne, Bill Pedersen, Amanda Reichek and Cory Carlyle) also joined the order.

Three of those Republican justices joined Inland Western v. Nguyen inland concurrence that emphasized the judicial oversight of jury trials: “[Our system, like the federal, recognizes … that there is no right to a judgment on a jury verdict if the legal theory is invalid or the objective quality of the evidence does not support the jury’s finding.” Justice Schenck wrote the concurring opinion, joined by justices Bridges and Evans.

A four-justice dissent was joined by four other Democratic justices. Chief Justice Robert Burns wrote that he would remand for a new trial, noting, “Appellate courts are duty bound to indulge every reasonable inference to sustain a jury verdict when the evidence supports the verdict.” He was joined by justices Ken Molberg, Robbie Partida-Kipness and Erin Nowell.

The Nguyen opinions show the importance of party affiliation, in that all Republicans on the court joined the decision to deny review, while all the dissenting justices were Democrats. But at the same time, Nguyen reminds that the new Democratic majority on the Dallas court is not a monolithic block, as four of those justices joined the majority while four dissented.

The second case, In re: Parks, No. 05-19-00375-CV (Feb. 18, 2020) (mem. op.), denied a mandamus petition about a trial court order striking counteraffidavits related to the reasonableness and necessity of certain medical expenses filed under Chapter 18 of the Civil Practice and Remedies Code.

Republican Justice Bridges, joined by Democratic Justice Carlyle, drew an analogy between the trial court’s ruling and an order striking expert-witness designations, which is not ordinarily a basis for mandamus relief.

Republican Justice Schenck—who wrote the Nguyen concurrence—dissented, arguing that the present state of Dallas law “raises serious constitutional concerns related to the parties’ rights to a trial by jury, as well as their due process rights….” While from the same party as Justice Bridges, the two differed on an important procedural point about the balance of power between trial and appellate judges.

Going forward, these two cases are a good reminder that party affiliation, while important, is far from dispositive as to how a particular justice may approach a case.

(A similar article appeared this week in the Texas Lawbook. My LPCH partner Jason Dennis represents the Nguyens.)

The majority and dissenting opinions in In re: Baby Dolls — an interesting mandamus case to be discussed next week — are both written in fourteen-point font.

The appellate bar rejoices.

By early 2019, the attorney-client relationship between Klein and McCray was disintegrating. With a summary judgment hearing looming, Klein moved for continuance and asked for latitude at the hearing “because my client has not provided me with key materials” and discussing the topic of his withdrawal. The trial court then granted summary judgment against McCray (in an order that Klein agreed to “as to form”), after which Klein moved for withdrawal and was allowed to do so.

McCray sought relief from the judgment, “denying he received notice of the summary judgment motion from Klein.” This request led to a difficult, but outcome-determinative question, as to whether Klein’s knowledge should be imputed to McCray, despite their deteriorated relationship:

If [McCray] is correct in his position on the law and facts, then Craddock applies to his claim because it means he would have had no notice of the motion, the failure to respond, or the summary judgment hearing, and a motion for new trial is the proper method to challenge the summary judgment. If he is incorrect on his no-imputation argument, then Carpenter applies and he is required to challenge the trial court’s denial of his motion for continuance for an abuse of discretion, which he has not done.

The Fifth Court held that “[b]ecause Klein was still actively (if not sufficiently) representing [McCray] prior to and at the summary judgment hearing, Klein’s knowledge is imputed to [McCray].” McCray v. McCray, No. 05-19-00556-CV (Feb. 20, 2020).

The Committee for a Qualified Judiciary has published its list of local judicial candidates found qualified.

Bad service was found, and a restricted appeal succeeded, in Plummer v. Enterra Capital when the citation described the documents served (without attachments) as:

and otherwise: “The E&P citation was to be served on Plummer as E&P’s registered agent on Ridgeview Drive in Richardson, but handwriting next to the printed address showed an address on Arapaho Road in Richardson for a different entity, Richmond Engineering, Inc. Both of the returns show service at the Arapaho Road address. The Officer’s Return on each citation showed service on November 16, 2018, but the blank following ‘by delivering to the within named’ was not filled in on either return.” No. 05-19-00255-CV (Feb. 20, 2020) (mem. op.)

In re Parks denied a mandamus petition arising from the striking of counteraffidavits, related to the reasonableness and necessity of certain medical expenses, filed pursuant to Chapter 18 of the Civil Practice and Remedies Code. Applying Fifth Court precedent, the Court drew an analogy to the striking of expert designations, which is not ordinarily addressed by mandamus review. A dissenting opinion argued that “our existing construction raises serious constitutional concerns related to the parties’ rights to a trial by jury, as well as their due process rights to a decision on the merits and to appellate review,” and would have considered the merits of the petition. No. 05-19-00375-CV (Feb. 18, 2020) (mem. op.)

Morales v. Barnes reminds how an appellate mandate should guide further trial-court proceedings: “Our December 29, 2017 judgment and related mandate, however, rendered a partial judgment dismissing only Barnes’ claims based on the second letter. We affirmed the trial court’s denial of the motion to dismiss Barnes’ claims based on the first letter and we remanded those claims to the trial court for further proceedings. We conclude that by dismissing any claims based on the first letter, the trial court’s order was inconsistent with and failed to give full effect to our December 29, 2017 judgment and related mandate.” No. 05-18-00767-CV (Feb. 7, 2020) (mem. op.)

Jones v. Schachar succinctly summarizes compliance with Malooly:  “The appellant can do this by either asserting a separate issue challenging each possible ground, or asserting a general issue that the trial court erred in granting summary judgment and within that issue providing argument negating all possible grounds upon which summary judgment could have been granted.” No. 05-19-00188-CV (Feb. 11, 2020) (mem. op.)

The Nguyens, owners of a nail salon, sued their landlord for alleged misrepresentations related to lease renewal. They won a judgment in their favor after a jury trial; a Fifth Court panel reversed and rendered judgment for the landlord. The Court granted the Nguyens’ motion for en banc rehearing, which produced these three points of view after oral argument:

1. A majority of justices denied the request for en banc review in a short, one-line order (Justices Bridges, Myers, Whitehill, Schenck, Osborne, Pedersen, Reichek, Carlyle, Evans, and from the original panel, Justice Fillmore).
2. A short concurrence underscored the importance of a judge’s power to set aside a jury verdict when required by law (Justice Schenck, joined by Justices Bridges and Evans) (as all three concurring Justices are named “David,” one could say they viewed the case in “3-D”)
3. Four justices dissented, emphasizing the importance of jury deliberations to the civil justice system (Chief Justice Burns, joined by Justices Molberg, Partida-Kipness, and Nowell).

No. 05-17-00151-CV (Feb. 10, 2020) (My LPCH partner Jason Dennis represented the Nguyens.)

An in-house lawyer for Ruhrpumpen, Inc., a company involved in substantial patent litigation, claimed an interest in the contingent fee agreement of the company’s outside counsel. The Fifth Court rejected the claim, holding: “[W]e conclude that a company’s general counsel owes the company a fiduciary duty not to accept compensation from anyone other than the company for working on a case for the company or for referring the case to a law firm without disclosing that compensation to the company and getting the company’s consent. In this case, Moore did not have authority to consent on Ruhrpumpen’s behalf to the fee-sharing agreement unless he had disclosed the agreement to the management of Ruhrpumpen other than himself.The record establishes that Moore did not disclose the fee-sharing agreement to Ruhrpumpen’s managers. Therefore, Moore did not have authority to consent to the fee-sharing agreement on Ruhrpumpen’s behalf.” Cokinos, Bosien & Young v. Moore, No. 05-18-01340-CV (Feb. 4, 2020) (mem op.)

“The contract, which neither side contends is ambiguous, bears Mr. Turnbow’s signature and does not mention PMC Chase or indicate representative capacity in any way. Thus, on its face, the contract unambiguously shows it is the obligation of Mr.Turnbow personally.” Accordingly, among other reasons, judgment against Mr. Turnbow was affirmed. PMC Chase, LLP v. Branch Structural Solutions, Inc., No. 05-18-01383-CV (Jan. 28, 2020) (mem. op.).

Last Friday’s opinion by the Texas Supreme Court in St. John Missionary Baptist Church v. Flakes reversed St. John’s Missionary Baptist Church v. Flakes, 547 S.W.3d 311 (Tex. App.–Dallas 2018) (en banc). The law of appellate briefing waiver now has (at least) these features:

1. Waiver occurs when (a) the defendants move for summary judgment on two grounds that each are an “independent basis” for judgment (limitations and release), (b) the trial court grants the motion without specifying a reason, and (c) “[o]n appeal, the plaintiff challenged the validity of the release in question but did not address the defendants’ statute-of-limitations argument.” In this situation, the trial court’s judgment “must stand, since it may have been based on a ground not specifically challenged by the plaintiff and since there was no general assignment that the trial court erred in granting summary judgment.” Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970).
2. Waiver does not occur when – and a court may thus request supplemental briefing if that would be helpful – when the defendants seek dismissal based on two doctrines (standing and ecclesiastical abstention), the substance of which “significantly overlaps.” The supreme court found such an “overlap” in Flakes when consideration of both doctrines required review of the applicable church bylaws and church membership situation. Two other examples cited in Flakes involve arguments about equitable relief related to points about money damages (First United Pentecostal Church v. Parker, 514 S.W.3d 214 (Tex. 2017)), and an issue about the applicability of a specific case in a broader dispute about the right to terminate a lease (Rohrmoos Venture v. UTSW DVA Healthcare, 578 S.W.3d 469 (Tex. 2019)).
3. Supplemental briefing is discretionary under Flakes; cf. Horton v. Stovall, No.18-0925 (Tex. Dec. 20, 2019) (finding that an appellant should have been given the opportunity to cure the particular record-citation issues identified in that case).

“We are bound by this Court’s prior precedent requiring exceptionally strict compliance with rule 52.3(j)’s requirements. To comply with prior opinions of this Court that interpret mandamus rules, relators should use the exact words of rule 52.3(j) without deviation in their certification: ‘I have reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.’ Because Mr. Stewart failed to use the precise words in the rule, we are bound by precedent to deny mandamus.” In re Stewart, No. 05-19-01338-CV (Jan. 24, 2020) (mem. op.) (emphasis added).

Underscoring its 2019 opinion in RWI Construction v. Comerica Bank, the Fifth Court reminded that “the ancient and controlling rule forecloses resort to injunctive relief simply to sequester a source of funds to satisfy a future judgment.” Acknowledging that the “general rule would not control where there is a logical and justifiable connection between the claims alleged and the acts sought to be enjoined, or where the plaintiff claims a specific contractual or equitable interest in the assets it seeks to freeze,” it found no such connection here: “Lake Point has not established any right to the funds in Renovation Guru’s Bank of America account.Instead, this injunction mirrors the RWI injunction on general capital call funds, which served only the improper purpose of assuring future satisfaction of a subsequent judgment.” Renovation Gurus, LLC v. Lake Point Assisted Living, LLC, No. 05-19-00499-CV (Jan. 29, 2020) (mem. op.).

The Fifth Court gives some highly practical guidance about the enforcement of noncompetition agreements in Gehrke v. Merritt Hawkins & Assocs.

As to the scope of activity, the Court reminded: “Covenants not to compete prohibiting solicitation of clients with whom a former salesman had no dealings are unreasonable and unenforceable. . . . . However, when an employer seeks to protect its confidential business information in addition to its customer relations, broad non-solicitation restrictions are reasonable.” Here, “the record demonstrates [Defendant] was much more than a mere salesman–he was an executive and vice president with intimate knowledge of MHA’s confidential business information and trade secrets who also supervised other salesmen.”

As to geographic scope, the Court concluded that “the trial court abused its discretion by misapplying the law to the facts in failing to enforce a geographic restriction for all states where Gehrke had worked during his final year at MHA, including the entirety of the Contested States. Additionally, we conclude the trial court abused its discretion by imposing the arbitrary ten-mile radius restriction because neither party presented evidence supporting that restriction.”  No. 05-18-01160-CV (Jan. 23, 2020) (mem. op.) (citations omitted from all quotes, all emphasis added).

In Energy Transfer Partners v. Enterprise Products Partners, the Texas Supreme Court resolves a Texas-sized partnership dispute in favor of contractual waivers of partnership. No. 17-0862 (Tex. Jan. 31, 2020). The underlying case arose from a $550 million judgment entered in 2014 in Dallas County, later reversed by the Dallas Court of Appeals; this opinion affirms the Fifth Court’s judgment.