The Fifth Court granted mandamus relief in a proceeding related to the removal of a mechanic’s lien in In re J&S Utilities, No. 05-20-00696-CV (Nov. 24, 2020) (mem. op.), holding as follows:

Abuse of discretion. “[T]he statute allows for an evidentiary hearing regardless of whether claimant elected to file a response. Although the trial court may have had the option of disregarding J&S Utilities’ response under its local rules, the trial court did not have the right to make a determination on submission and forfeit J&S Utilities’ right to an evidentiary hearing. For these reasons, we conclude the trial court abused its discretion by denying J&S Utilities an evidentiary hearing.” (citation omitted).

Inadequate remedy. “The legislature provided for J&S Utilities’ due process rights by the statutory procedure that was enacted, but which the trial court denied to J&S Utilities and which cannot be cured by a subsequent appeal. Mandamus relief, however, will preserve J&S Utilities’ statutory right to an evidentiary hearing on the summary motion.”

“The trial judge in this case has a reputation for running a highly efficient courtroom in which he holds all parties to strict time limits for putting on their case. The record here shows this case was no exception. The truncated ‘charge conference’ appears to be one way in which the trial judge moves cases along and gets cases to the jury quickly. While we applaud the trial judge’s efficiency and respect for the jurors’  time, the use of a global denial of objections and requests based solely on the parties’ pretrial submission of proposed jury charges does not preserve issues of charge error for appellate review. See, e.g., Clark v. Dillard’s, Inc., 460 S.W.3d 714, 729–30 (Tex. App.—Dallas 2015, no pet.); see also Tex. R. Civ. P. 272, 273, 274. The reason is simple; a proposed jury charge filed pretrial standing alone does not meet the preservation of error requirements of rules 272, 273, and 274.”

EYM Diner LP v. Yousef, No. 05-19-00636-CV (Nov. 24, 2020) (mem. op.) (emphasis in original)

Simon & Garfunkel’s The Sounds of Silence begins: “Hello darkness, my old friend, I’ve come to talk with you again.” In In re Estate of Buchanan, however, the Fifth Court did not want to talk with the litigants again, after silence on a key issue in a previous appeal. The issue was who had the right to control certain funds based on a series of probate-court orders, which had involved a previous appeal to the Fifth Court. It held: “A reviewing court does not again pass upon any matter presented to, directly passed upon, or in effect disposed of by an earlier appeal to that court. An appellate court’s judgment is final not only in reference to the matters actually litigated, but as to all other matters the parties might have litigated and decided in the case. Thus, if James believed the trial court erred by declaring Jennifer has the superior right to the funds, he needed to raise the issue in that appeal.” No. 05-19-01473-CV  (Nov. 19, 2020) (mem. op.).

In an echo (pun intended) of the Flakes litigation, the panel majority and a concurrence disagreed as to whether the appellant had adequately briefed its arguments; the majority finding that they had been appropriately presented and the concurrence holding a different view. For interested practitioners, the full text of the pertinent argument (relating to whether the underlying proceedings were an impermissible collateral attack on an earlier judgment) is reproduced in the concurrence. Eco Planet, LLC v. Ant Trading, 05-19-00239-CV (Nov. 16, 2020).

The plaintiff sought a temporary injunction against a claimed trespass; the Fifth Court reversed on proof grounds: “[T]here is no evidence in the record that appellees have suffered or will suffer any injury or that any injury they would suffer is irreparable. Certainly the cost to repair or replace the fence can be adequately compensated in damages. And, while appellees argue trespass alone is an irreparable injury, this Court’s case law does not support that proposition. Appellees did not provide the trial court with any evidence that appellant trespassing on their property would cause probable, imminent, and irreparable injury. They did not show that appellant trespassing on their property would invade the possession of their land, destroy the use and enjoyment of their land, or cause potential loss of rights in real property.” WBW Holdings v. Clamon, No. 05-20-00397-CV (Nov. 12, 2020) (mem. op.) (emphasis added, citations omitted).

“GPM asserted fraudulent transfer claims against all defendants. Given that GPM’s fraudulent transfer claim against Hossein involves the same facts and issues as the fraudulent transfer claims against Marjaneh and the two entities owned by them, the claim against Hossein was not properly severable. The trial court effectively severed a party, instead of a cause of action, and abused its discretion by doing so.” In re Glast Phillips & Murray, No. 05-20-00557-CV (Nov. 12, 2020) (mem. op.).

Among other issues addressed in Wal-Mart Stores v. Xerox State & Local Solutions, Inc., the Fifth Court examined whether indemnity obligations can give rise to third-party beneficiary status, and concluded that they did not on this record. No. 05-18-01421-CV (Nov. 12, 2020) (mem. op.). (LPHS represented Xerox, the successful appellee.)

Who knew? The federal bench in Houston just released an inspiring rendition of “We’ll Be Back” from Hamilton, revised to reflect life in the COVID-19 pandemic.  Bravo!

As the Flying Dutchman (right) restlessly travels the Seven Seas, so does B.C. v. Steak N Shake travel the courts, most recently on remand from the Texas Supreme Court. The Fifth Court denied en banc review; concurrences by Justice Evans and Justice Schenck elaborated on the relevant scope of review (echoing their similar exchange in the Flakes case). Justice Evans succinctly summarized the respective positions: “[T]he record review I conducted was somewhat more than [Steak N Shake]’s view and quite a bit less than Justice Schenck’s view. … [U]ntil we receive contrary direction from the supreme court, we should continue to review the context of the record referenced by the parties, including in our review what the referenced-record contains, not merely the parties’ limited or inaccurate summary of the record.” No. 05-14-00649-CV (Aug. 3, 2020).

In Merrill v. Curry, the Fifth Court reversed the grant of a TCPA motion to dismiss, and then declined to address a ruling on a partial Rule 91a motion that had also been appealed: “[W[e first consider the propriety and efficiency of addressing interlocutory issues after we have reversed the judgment dismissing the case. We have not located a case in which a party pursued, and a court addressed, the denial of a partial 91a motion under these circumstances. But this situation is analogous to the analysis employed when a party seeks review of a cross motion for partial summary judgment. As courts have explained, the denial of a motion for summary judgment is generally not appealable, except when both parties move for summary judgment and the trial court grants one and denies the other. In such a case, an appellate court reviews both motions and renders the judgment the trial court should have rendered. But, when a party moves for only partial summary judgment, the exception does not apply.” No. 05-19-01229-CV (Nov. 5, 2020) (mem. op.) (citations omitted, emphasis added).

The Texas Lawbook reports (not paywalled) the intermediate court of appeals election results, with these numbers on the Dallas races with roughly 95% completion:

Kaufman v. AmeriHealth Lab reviewed an important practical issue–does active participation in a TRO proceeding waive a potential special appearance? After reviewing the handful of Texas cases on the point, the Court concluded that a waiver occurred when, during the TRO hearing: “Kaufman’s counsel appeared without limiting his appearance and actively made arguments on Kaufman’s behalf, which included arguing he was not a signatory to the consulting agreement. AmeriHealth reminded the court that the parties retired to the jury room, at the court’s suggestion, to work out the expedited discovery requests. After their discussions, they proceeded on the record. The second half of the hearing in our appellate record is titled, ‘Rule 11
Agreement Proceeding.'” No. 05-20-00504-CV (Oct. 30, 2020) (mem. op.).