The Texas Supreme Court recently entered an order amending (effective Jan. 1, 2021) several rules of civil procedure about discovery, including:

• Amendment of Tex. R. Civ. P. 47, 169, and 190 so that expedited discovery procedures will apply to any case with $250,000 or less in controversy (amended from $100,000). This also changes the Rule 47 pleading requirement.
• Rule 194 is amended to follow Fed. R. Civ. P. 26 and require initial disclosure of, among other matters,“all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment.”

Thanks to my LPHS colleague John Adams for his careful review of this order.

Batson issues are doubly complex–they involve (1) appellate scrutiny of a discretionary decision made “live” under time constraints, and (2) inquiry into motive based on objective manifestations of the motive in juror questions, strike patterns, etc. It is no surprise, then, that reasonable minds can differ, as they did in United Rentals v. Evans. The panel found no Batson violation after a detailed review of the relevant record; three Justices dissented from the denial of en banc review, keying on counsel’s statement that “[w]e know from our focus groups that the African-American female is the most favorable juror for this case for whatever reason.” No. 05-18-00665-CV (Aug. 18, 2020).

The London Underground reminds its riders to “Mind the Gap” so they do not trip when entering or exiting a train. The Fifth Circuit’s new typography places a notable gap between paragraphs and footnotes. While this sort of line-spacing does not have a technical label like “kerning,” it is nevertheless an important part of the overall look and feel of a piece of legal writing. What are your thoughts on inter-paragraph line spacing? 

After an earlier dispute about the merits of an interlocutory stay, the Fifth Court reached the substantive issue of arbitrability in Baby Dolls v. Sotero, a personal-injury lawsuit about a serious car accident involving two dancers after they left work. The key question was the interplay of the terms “License” and “Agreement” in the relevant contract; the panel majority concluded: “On this record, we conclude the trial court could have properly determined the parties’ minds could not have met regarding the contract’s subject matter and all its essential terms such that the contract is not an enforceable agreement. Consequently, the trial court did not abuse its discretion by denying the motions to compel arbitration.” (citations omitted). A dissent disputed whether that conclusion was a proper legal basis to deny a motion to compel arbitration, and would have reached a different result about the construction of the parties’ contract. No. 05-19-01443-CV (Aug. 21, 2020) (mem. op.)

In re: Sakyi reminds: “the unique and serious circumstances created by the COVID pandemic require flexibility and adaptability in all aspects of our legal system.” the Court went on to grant mandamus relief about the the denial of a motion for continuance, observing: “In this case, all factors weigh in favor of concluding that the trial court’s denial of the continuance was an abuse of discretion. First, this case is not old; at the time the continuance was sought, the case had been on file for less than a year. Second, the discovery sought is central to the underlying divorce suit since RPI’s marriages, if overlapping, may affect the determination of what property is in the marital estate at issue and raise equitable considerations of possible fraud. Indeed, the trial court acknowledged that the conflicting marriage dates created an issue of fact. Third, Relator’s counsel submitted an affidavit describing her diligent efforts to obtain the necessary discovery before trial.” No. 05-20-00574-CV  (Aug. 20, 2020) (mem. op.)

Sometimes to state the issue is to decide it. For example, the Fifth Court’s opinion in Ruff v. Ruff began: “A pivotal question we address is whether a party can initiate an arbitration proceeding pursuant to a specific arbitration agreement, demand that a signatory to that agreement be compelled to participate in that arbitration, and then disavow the resulting award by alleging that he (the initiating party) did not agree to arbitrate according to that arbitration agreement.” The Court answered that question “no,” reviewing the invited-error and several estoppel doctrines. No. 05-18-00326-CV (Aug. 11, 2020).

Damages were not established in In the Interest of MGG, No. 05-19-00777-CV (Aug. 10, 2020) (mem. op.), when:

“Ms. Gatewood does not dispute that Mr. Gustafson and his employer paid the withheld amounts to the IRS to cover the taxes from the transactions. Nor does she dispute that, if Mr. Gustafson instead paid her 100% of the gross proceeds, she would have to pay those taxes. The only theory of harm Ms. Gatewood advanced in the trial is that, by withholding and paying taxes based on his own tax rate instead of hers, Mr. Gustafson forced her to pay taxes at a higher rate. The proper measure of damages for that harm, however, is the difference between the taxes she would have paid at her purportedly lower tax rate and the amount Mr. Gustafson paid the IRS. To prove Mr. Gustafson harmed her in that manner, Ms. Gatewood had to prove there was a disparity between their tax rates.

Ms. Gatewood refused to turn over her tax records during discovery and chose not to present evidence establishing her tax rate at the trial. The only record evidence directly touching upon Ms. Gatewood’s tax rate is her affirmative response to a hypothetical question asking whether she was ‘at least hopeful’ her tax rate would be lower if she received the money Mr. Gustafson paid the IRS. That conclusory response, premised on Ms. Gatewood’s hope or belief, is insufficient to show Ms. Gatewood’s tax rate would have been lower.” (emphasis added).

In re Smith held that the statutory stay of certain discovery in health-liability claims did not apply to policies that nursing homes are required to make publicly available. As to the availability of mandamus relief, the Court observed: “It is well settled that mandamus relief is appropriate when the trial court
abuses its discretion by ordering discovery precluded by section 74.351(s). However, it is not clear whether the same is true when the trial court prohibits discovery that the statute permits.” (emphasis in original, citation omitted). The Court concluded that it was appropriate because of the potential effect on the statutorily-required expert report. (While the Court cites, inter alia, a general proposition from the Texas Supreme Court about mandamus relief, it remains to be seen how much weight this case will have in other settings without a similar expert report requirement.) No. 05-20-00497-CV (Aug. 12, 2020) (mem. op.).

McGuire-Sobrino v. TX Cannalliance LLC presents a mini-course on effective protection of business information. Cannalliance sued McGuire-Sobrino, a former contractor, for restricting its access to its website and other digital assets. The Fifth Court addressed

• Rule 683. The temporary injunction made adequately-detailed findings, which the Court quoted largely verbatim;
• Irreparable injury. Rejecting the argument that Cannalliance’s proof of irreparable injury showed only “a fear of possible contingencies,” the Court credited testimony of its managing member that “his inability to control Cannalliance’s digital assets and website is ‘crippling our ability to market and promote our events, to sell tickets to support the business’ and … ‘can smear the public perception and paint a bad picture of the ability to have control over our business.'”
• Likelihood of success. Cannaliance showed a likelihood of success on claims for conversion and trademark infringement; and
• Status quo. The injunction preserved the status quo by “returning the parties to their pre-September 26, 2019 status” (the date when Cannalliance showed it no longer had full access to its digital assets).

No. 05-19-01261-CV (Aug. 10, 2020) (mem. op.).

Palladium Metal Recycling v. 5G Metals reminds: “Interlocutory appeals are only available from orders denying TCPA motions, not from orders granting them.” As to that granted motion, the Court also observed in a footnote: “Notably, in the event the trial court’s ruling has not become final and appealable, the trial court retains jurisdiction to vacate its order regarding St. Charles should it decide to do so.” No. 05-19-00482-CV (July 28, 2020) (mem. op.)

The Fifth Court reversed an award of sanctions, based on the trial court’s exercise of its inherent power, in In re Estate of Powell: “The trial court’s orders reflect that it made the attorney’s fees award as a sanction for Douglas’s and Putnam’s bad faith violation of the rule 11 agreement. Although there is some evidence supporting the trial court’s finding that Douglas and Putnam acted in bad faith, the trial court did not also find or conclude that Douglas’s and Putnam’s bad faith conduct significantly interfered with the court’s ‘legitimate exercise of its core functions.’ Consequently, we conclude the trial court abused its discretion by imposing the sanction against Douglas and Putnam.” No. 05-19-00689-CV (Aug. 4, 2020) (mem. op.) (citations omitted) (applying Union Carbide Corp. v. Martin, 349 S.W.3d 137 (Tex. App.–Dallas 2011, no pet.)

“[Tex. R. Civ. P.] 11 provides that ‘no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.’ The purpose of the rule is to relieve the courts of the necessity of resolving disputes over the terms of oral agreements relating to pending suits. As explained in [Anderson v. Cocheu], however, in enforcing rule 11 [agreements] ‘the Texas Supreme Court has been mindful of the fact that the rule may be said to abridge the substantive right of persons to enter into oral contracts.’  Consequently, courts have balanced the purpose of the rule with the ability to make oral agreements, resulting in recognition of certain equitable exceptions to rule 11’s writing requirement. One exception to the writing requirement arises when the oral agreement is undisputed. ‘In cases where the existence of the agreement and its terms are not disputed, the agreement may be enforced despite its literal noncompliance with the rule.’”  In re Estate of Powell, No. 05-19-00689-CV (Aug. 4, 2020) (mem. op.).

In re Commitment of Barnes, No. 05-19-00702-CV (Aug. 5, 2020) (mem. op.), involved a challenge to a voir dire limitation. The trial was to determine whether Barnes should be civilly committed as a sexual predator. His counsel sought to ask these voir dire questions, which the trial court found to be improper “commitment” questions:

 “If you hear evidence of a pedophilic disorder diagnosis, if you hear evidence of child victims, are you going to automatically assume that the person has a behavioral abnormality as defined by what you hear in this case?”

– and –

“If you are presented with evidence by an expert that the diagnosis of a person is pedophilic disorder, are you going to automatically assume that that person has a condition that by [a]ffecting the emotional or volitional capacity predisposes the person to commit a sexually violent offense to the extent that they become a menace to the
health and safety of another person?

The Fifth Court found that this ruling was erroneous, but also no harm because, inter alia, a similar question was allowed: “If you hear evidence of child victims,
is that going to make it to where you turn everything off and don’t listen to the rest
of the facts and you are done? Anyone?”

To review the propriety of the question, the Court applied a 3-part test based on the Court of Criminal Appeals’ Standefer opinion:

1. “[W]hether this is a commitment question, meaning one to which ‘one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question.’” The Court held that it was, because “one answer is that the juror would automatically find a behavioral abnormality if the juror hears evidence of pedophilic disorder or child victims.”
2. “[I]s this commitment question proper, meaning one of the possible answers gives rise to a valid challenge for cause.“ The Court held that it was, noting: “The law requires a ‘certain type of commitment from jurors’ in every trial, and that includes following the law.” From there, the Court held: “If a juror answered that she would stop listening to additional evidence regarding ‘behavioral abnormality’ after hearing a diagnosis of pedophilic disorder or hearing of prior child victims, that juror would be committing to not listening to all the evidence. It would not be a ‘fact-specific opinion,’ but rather evidence of a disqualifying and ‘improper subject-matter bias.'”
3. “[D]oes the question contain ‘only those facts necessary to test whether a prospective juror is challengeable for cause.'” Here, where “[t]he subject matter of the case was child victims and a pedophilic disorder diagnosis,” the Court concluded: “The question added no more, especially in light of what the State had previously introduced to the venire, and thus contained only the facts necessary to test whether the juror is challengeable for cause.”

The ABA House of Delegates has recently adopted a comprehensive set of best practices for litigation funding–an important topic in modern law practice.

The plaintiffs in In re Outreach Housing sought to enforce a (revived) 2006 default judgment that was not final under the applicable standards. The Fifth Court granted mandamus relief as to the trial court’s denial of the defendants’ motion to stay. It found an abuse of discretion in that decision, with irreparable consequences arising from the denial of a meaningful appeal from the 2006 judgment, and some parties’ lack of a meaningful trial. The Court acknowledged a technical point about a potential interlocutory appeal from the denial of the motion, but found that matter too speculative to deny mandamus relief in these circumstances. No. 05-20-00431-CV (July 30, 2020).