“Jordan ignores a key component required for the exercise of a right to petition, namely, a communication under [TCPRC] section 27.001(4). … Contrary to Jordan’s argument, a nonmovant’s reference to a judicial proceeding in a petition does not necessarily establish that a movant has engaged in any communication constituting an exercise of a right to petition under section 27.001(4) or that the nonmovant’s claims are based on such communication.” Jordan v. JP Bent Tree, No. 05-19-01263-CV (Oct. 19, 2020).

Continuing to drive home the point from the recent Glassdoor litigation, the Fifth Court again reminded that: “Because the limitations period had run on the Estate’s anticipated claims before it filed its Rule 202 petition, the petition was moot, and the trial court should have dismissed the petition for want of jurisdiction.” In re Estate of Tobolowsky, No. 05-19-00073-CV (Oct. 20, 2020) (mem. op.).

Bickham v. Dallas County “consider[ed] whether ‘election watchers’—persons appointed to observe the conduct of an election under Chapter 33 of the Texas Election Code— have standing to pursue claims against certain election officials for alleged violations of chapter 33 and the Texas Administrative Code.” The panel majority concluded that they did not: “Appellants are not petition signers, and unlike the petition signers in [other cases], they have not shown an election interest that is distinct from voters at large. Although they allege impurity in the process, that interest is not distinct from voters at large, all of whom are presumed to want the election to be conducted in compliance with the law.”

A dissent saw the issue differently, reasoning: “The Legislature created the office of watcher, at least in substantial part, for the watcher to be available publicly to attest to the process, including in any later contest for office. … Whether one focuses on the right to express one’s opinion on the fairness of the process to the public via the print or electronic media or simply on the right to participate as a witness at a trial, either interest is legally cognizable.” No. 05-20-00560-CV (Oct. 23, 2020).

In a second visit to the Fifth Court on a discovery dispute involving claims of attorney-client privilege, the Court held: “In this case, neither party has put its attorney fees at issue. The Estate simply suspects that Topletz should be able to make payment on the judgment because he apparently has been able to pay his attorneys throughout this litigation. But that circumstance fails to fall within the kind of acceptable scenario that would permit discovery of the attorney fee information sought here.” In re Topletz, No. 05-20-00634-CV (Oct. 15, 2020) (mem. op.). The Court also reminded: “[N]either the rules of civil procedure nor case law requires evidence in support of an assertion relating to discovery when evidence is unnecessary to decide the matter. Here, evidence is not necessary to show that the requested information is not discoverable because this Court has already determined, as a matter of law, it is not.”

The Texas Lawbook recently held a candidate forum with all of the incumbents and challengers in this year’s three races for the Fifth Court. Its report on the forum is not behind a paywall and is interesting and informative reading.

Mandamus relief was granted to compel a trial-court ruling about a motion for judgment nunc pro tunc in a criminal case when: “[R]elator’s third motion for judgment nunc pro tunc has been on file for roughly eleven months. Relator requested a ruling on the motion in the trial court approximately nine months ago. Although an unsigned memorandum was sent to relator, it stated that no ruling has yet been made. Under these circumstances, the trial court failed to fulfill its ministerial duty to rule on relator’s motion within a reasonable time, and relator lacks an adequate appellate remedy.” In re Williams, No. 05-20-00369-CV (Oct. 15, 2020) (mem. op.).

I was on a panel today for a great DAYL CLE program on jury charge conferences; you can see the one-hour presentation here!

In the context of a motion to extend an interlocutory-appeal deadline, the Fifth Court reminded: “We have previously concluded that intentionally waiting for a trial court to hear a motion for new trial is not a reasonable explanation.” Careington Int’l Corp. v. First Call Telemedicine LLC, No. 05-20-00841-CV (Oct. 12, 2020) (mem. op.).

Like a submarine occasionally surfacing from the deep, the concept of factual suffiency review (as distinct from legal sufficiency) occasionally emerges in family-law cases about parental termination. While In re M.T. unanimously affirms a termination judgment, a concurrence argued that the evidence on one of the statutory grounds was factually insufficient. No. 05-20-00450-CV (Oct. 5, 2020) (mem. op.).

A lurid invasion-of-privacy dispute offers a procedural reminder and substantive conclusion:

• Procedure: “MYR’s invasion of privacy claim was not “buried” in the pleading. Rather, her cause of action was clearly pleaded. She included additional jurisdictional facts in the affidavit attached to her response, to which BGC did not object, to support her burden. She did not add a new claim in her response. Accordingly, we consider whether BGC is subject to specific jurisdiction in Texas in light of MYR’s first amended pleading and response.”
• Substance: “BGS’s contacts in Texas with MYR were not random and isolated, but instead constituted purposeful, continued contacts in Texas over the course of a three-year relationship. And while he contends he did not seek any benefit from the state, he actively pursued a relationship with a Texas resident, whom he allegedly persuaded to provide intimate photos, and he likewise secretly took photos of her while in Texas. One may speculate about the benefit BGC received from the taking of such photos, but to say he received no benefit from a Texas resident is incredulous.”

BGC v. MYR, No. 05-20-00318-CV (Oct. 9. 2020) (mem. op.).

An unusual venue dispute led to a thorough review of the policies underlying the concept of “dominant jurisdiction” and the first-filed rule: “In resolving this dispute we must decide whether a plaintiff who initiates separate lawsuits in the same county against different defendants can claim dominant jurisdiction in one of those cases, after agreeing to transfer venue of that case to a different county and subsequently joining the defendant from the case still pending in the transferor county. Relators … assert that the transferred case lacks dominance over the interrelated case still pending in the original venue. We agree and conditionally grant the writ.” In re Equinor, No. 05-20-00578-CV (Oct. 7, 2020) (mem. op.).

In Marble Ridge Capital v. Neiman-Marcus Group, the Fifth Court affirmed the denial of a TCPA motion in a defamation action brought by Neiman-Marcus, pre-bankruptcy, against an investment fund. Among other holdings, the Court thoroughly surveyed Texas law about the judicial-communications privilege and held: “Based on this record, we conclude Marble Ridge did not satisfy its burden under section 27.005(d) regarding the judicial-communications privilege because Marble Ridge was not actually contemplating and giving serious consideration to a  judicial proceeding when making its September 18, September 21, and September 25, 2018 communications.” No. No. 05-19-00443-CV (Sept. 30, 2020) (emphasis added). LPHS represented Neiman-Marcus in this matter.

The movants in GN Ventures v. Stanley won their argument that the TCPA applied to a motion in a dispute about arbitrability: “[E]ven though a request for a pre-arbitration temporary restraining order and temporary injunction merely seeks equitable remedies, and is not an independent cause of action, such a request is a ‘filing that requests . . . equitable relief’ and, therefore, a ‘legal action’ as defined by section 27.001(6). And because in this case, there is no underlying cause of action and appellants’ TCPA motion solely sought dismissal of the request for temporary restraining order and temporary injunction, that requested injunctive relief is the ‘claim’ the elements of which the Stanley affiliates must demonstrate a prima facie case by clear and specific evidence in the second step of the TCPA analysis we discuss below.” (citations omitted). Despite that win, however, they lost their motion because the nonmovants established a prima facie case for their requested injunctive relief. No. 05-19-01076-CV (Oct. 2, 2020).

An inartfully-drafted part of the expunction statute produced a remarkable 7-6 split of the en banc Fifth Court in Ex Parte Ferris, No. 05-19-00835-CV (Oct. 2, 2020). Charles Ferris pleaded guilty to DWI in 2015. Four years later, a jury found him not guilty in another DWI matter. Ferris sought expunction of the case in which he was acquitted, and ran headlong into a particularly awkward bit of statutory drafting.

If his two DWI cases formed a “criminal episode” as defined by Tex. Penal Code § 3.01, he could not receive expunction. The statute defines “criminal episode” as:

… the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses

(emphasis added). Part (1) did not apply, so the case turned on part (2).

The majority opinion held that application of part (2) to Ferris’s two DWI cases would create an absurd result: “Such a cabined view of what constitutes a ‘criminal episode’ creates an absurd, nonsensical result wherein a single ‘criminal episode’ would engulf two DWI arrests, which (i) share no common or continuing pattern of facts; (ii) are impossible to prosecute as multiple prosecutions under Chapter 3 of the Texas Penal Code (through joinder); and (iii) could not share a concurrent sentence.”  (Justice Petersen, joined by Justices Myers, Molberg, Osborne, Reichek, Nowell, and Carlyle).

The dissent reasoned that the majority had incorrectly blurred the two parts of the statute together, “when the plain meaning of the unambiguous text of section 3.01(2): ‘criminal episode’ means the repeated commission of the same or similar offense without limitation of time, place, same or related transaction, or conspiracy.” (Justice Evans, joined by Chief Justice Burns and Justices Whitehill, Schenck, Partida-Kipness, and Browning).