This is a crosspost from 600Hemphill, which follows business litigation in the Texas Supreme Court. 

The Texas Supreme Court recently summarized the sometimes-confusing law about preservation of objections an an expert’s testimony:

“Requiring an admissibility objection to the reliability of expert testimony gives the proponent a fair opportunity to cure any deficiencies and prevents trial and appeal by ambush. Thus, when an expert opinion ‘is admitted in evidence without objection, it may be considered probative evidence even if the basis of the opinion is unreliable.’ But conclusory or speculative opinion testimony is not relevant evidence because it does not make the existence of a material fact more or less probable. Evidence that lacks probative value will not support a jury finding even if admitted without objection. ‘Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence.'”

Pike v. Texas EMC Management LLC, No. 17-0557 (June 19, 2020). While this quote eliminates the case citations in the original, the cited authorities provide further discussion of these principle and illustrate their applications in specific settings.

This is a crosspost from 600Hemphill, which follows business litigation in the Texas Supreme Court. 

In Pike v. Texas EMC Mangagment LLC, ”‘Value’ was defined in the jury charge as ‘”Market Value,”’ the amount that would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling.’”

Expert testimony sought to establish a $4.1 million value for the relevant plant and equipment, which the Texas Supreme Court rejected for three reasons:

“First, … [e]vidence of the purchase price of the Partnership’s property is insufficient under that measure because it does not establish the fair market value of the property at a different time.”

“Second, …[c]ourts employing an actual-value measure have held that ‘[f]rom that starting point, adjustments are made for wear and tear, depreciation, and other pertinent factors.’ Having examined the record, we disagree with the plaintiffs that [the expert] took anything other than purchase price—and a 20% escalation factor—into account in opining about the value of the plant and equipment.”

“Third, [the expert] did not attempt to tie the value of the plant to the market value of the
Partnership, which was the only measure of damages in the jury charge. He did not address whether any debt encumbered the plant, for example, or otherwise testify regarding how loss of the plant and equipment impacted the value of the Partnership as a whole.” (emphasis added, citations omitted)

The Court also rejected efforts to corroborate the expert’s testimony with lay-opinion testimony by an owner, because that testimony was based on book rather than actual value. Foreclosure-sale price was similarly irrelevant. No. 17-0557 (June 19, 2020).

In re Perl granted mandamus relief as to jurisdictional discovery requests.

As to scope, it reasoned (as to one set of the requests): “Interrogatory No. 2’s request for “details of how business is conducted between” Relators and Cake Craft, Interrogatory No. 8’s request for Relators’ “work, role and/or services” to Cake Craft, Request for Production No. 5’s requests for documents “regarding your engagement and business relationship” with Cake Craft, and Request for Production No. 15’s request for documents “that detail the inspecting and auditing services that you performed on the Cake Craft defendants” do not focus on any jurisdictional fact. None of these requests are confined to any of the three purposeful availment factors: Relators’ own activities, aimed at Texas, or the specific benefit, advantage, or profit Relators would earn from a Texas relationship.” (emphasis added)

As to adequate remedy, in response to the argument that “the only injury claimed is the ordinary expense of litigation,” the Court observed: “[A]llowing discovery of a potential claim against a defendant over which the court would not have personal jurisdiction denies him the protection Texas procedure would otherwise afford.” No. 05-20-00170-CV (June 2, 2020). LPHS represented the real parties in interest in this case.

On June 12, the Fifth Court revisited the ongoing litigation about Downtown Dallas’s much-reviled Confederate memorial, by granting the City’s emergency motion to put the memorial in “archival storage” in light of protests in the downtown area.

Lunch-buying did not create arbitrator bias in Texas Health Management v. Healthspring: “THM next claims the Tribunal was partial because it received free beverages and meals from Healthspring every day of the hearing. THM claims it received this information from a December 5, 2017 letter from Healthspring to the Tribunal. However, on the first day of arbitration, Appel acknowledged, “I understand, Mr. Leckerman, you ordered in lunch.” Leckerman, Healthspring’s attorney, confirmed lunch would arrive around noon. THM did not question or object to Healthspring providing lunch.” (footnote omitted).

This is a cross-post from 600 Hemphill

It’s not a Texas Supreme Court case, but Title Source Inc. v. HouseCanary Inc. is a jury charge case worth reviewing. In it, the San Antonio Court of Appeals reversed a $700+ million judgment based in part on a classic Casteel issue. In reviewing the jury instruction about the plaintiff’s claim for theft of trade secrets, the Court observed:

“[T]he jury was also instructed that ‘improper means’ includes bribery, espionage, and ‘breach or inducement of a breach of a duty to maintain secrecy, to limit use, or to prohibit discovery of a trade secret.’ This instruction tracks TUTSA’s definition of ‘improper means’ and is therefore a correct statement of law. But HouseCanary conceded at oral argument that there is no evidence TSI acquired the trade secrets through bribery, and our review of the record reveals no evidence that TSI acquired the trade secrets through espionage. Because those theories are not supported by the evidence, they should have been omitted from the ‘improper means’ definition that was submitted to the jury.“

(emphasis added, citations omitted). The Court went on to cite Texas Supreme Court authority stating that while “a jury charge submitting liability under a statute should track the statutory language as closely as possible,” the statutory language “may be slightly altered to conform the issue to the evidence presented,” and that “[a] broad-form question cannot be used to put before the jury issues that have no basis in the law or the evidence.”

UDF v. Megatel illustrates the Fifth Court’s approach to “public concern” as defined by the TCPA: “[W]hile the alleged communications may have been motivated by a climate of public scrutiny created by criticisms of the UDF Parties’ business practices, the communications at issue did not in any way address the substance of either those criticisms or the resulting public scrutiny. Instead, they addressed only the termination of contracts . . . as a means for the UDF Parties to achieve liquidity which is not a matter ‘of political, social, or other concern to the community.'” No. 05-19-00647-CV (May 29, 2020) (mem. op.) (citation omitted).

The details of Duncan v. Park Place Motorcars provide a road map to “death penalty” sanctions, both substantively and procedurally as to the trial court’s findings: “On this record, we conclude the imposition of death penalty sanctions was just because it related directly to the conduct at issue in the case—specifically, Duncan’s  failure to appear for the completion of his deposition, and generally, Duncan’s  continuing violation of the trial court’s orders and hindrance of the discovery process  for appellees; the trial court imposed lesser sanctions to no avail; and Duncan’s  conduct throughout the long history of the case reasonably justified a presumption his affirmative claims lacked merit. Accordingly, we conclude the trial court did not abuse its discretion in ordering death penalty sanctions in this case.” No. 05-19-00032-CV (June 2, 2020) (mem. op.)

The philosophy of aesthetics finds practical application in the law of website user agreements, as illustrated in Home Advisor, Inc. v. Waddell. The plaintiffs sought to avoid arbitration of their claims, arguing that the notice about “terms and conditions” on this screen was not sufficiently conspicuous:

The Fifth Court disagreed. Citing the recent Northern District of Texas opinion in Phillips v. Neutron Holdings, the Court noted a distinction among “clickwrap” agreements, “browsewrap” agreements, and “sign-in-wrap” agreements. This case involved a sign-in wrap agreement, which “notifies the user of the existence of the website’s terms and conditions and advises the user that he or she is agreeing to the terms when registering an account or signing up,” and is “typically enforce[d] . . . when notice of the existence of the terms was ‘reasonably conspicuous.'” The Court found that this agreement was conspicuous enough, noting that “more cluttered and complicated sign-in-wrap screens have been found to provide sufficient notice” of similar contract terms. No. 05-19-00669-CV  (June 4, 2020) (mem. op.)

“[W]e decline to extend the Supreme Court’s holding in Burnham to find personal jurisdiction over James in all of his capacities simply because he was served in his individual capacity while present in Texas. Such a holding would conflict with the consistent position taken by Texas courts that actions taken by an individual in a representative capacity are separate and distinct from actions taken in an individual’s personal capacity.” Hanschen v. Hanschen, No. 05-19-01134-CV (May 28, 2020) (mem. op.) A concurrence noted: “We did not conclude whether the trial court could obtain personal jurisdiction over James in his representative capacities in the future if he were to be served properly in those capacities.”