• In an 11-1 en banc decision written by Justice Osborne, the Fifth Court granted mandamus relief, allowing Ken Paxton to be named as a responsible third party in a securities-fraud case.
• A dissent by Justice Schenck (the lone Republican, as Justice Myers did not participate) argued that specialized comparative-fault schemes under other relevant statutes should control rather than the general comparative-fault statute.
• A concurrence by Justice Smith expressed frustration at the present rules and practices governing the sealing of court records.

In re: Cook, No. 05-20-00205-CV (April 28, 2021). (A big 600 Commerce shoutout to my friend Ben Taylor for his able assistance in reviewing these opinions).

Beamers Private Club v. Jackson, a high-profile dram shop liability case involving former Dallas Cowboys, presented both a review of legal and factual sufficiency of the evidence supporting the jury’s verdict for the plaintiff. The factual-sufficiency challenge was based on the testimony of nightclub employees; the Fifth Court rejected it, observing: “At the time the servers and doorman gave their initial statements, which corresponded on the question of visible intoxication with their testimony at trial, they were employees of the club. And Brent himself testified that his teammates ‘had his back’ in the aftermath of the accident and Brown’s death. Despite these witnesses’ statements that they saw no signs that Brent was intoxicated, jurors could have reasonably concluded that their statements were subject to personal interest and were not credible. Jurors could have determined that Brent’s intoxication, as seen on the club’s video, was apparent to anyone present and watching.” No. 05-19-00698-CV (April 20, 2021) (mem. op.).

Oral argument in the Amber Guyger appeal is at 1:00 today, it will be available to view on the Court’s Youtube channel.

 

I briefly discuss the case along with some new Supreme Court matters in an interview on KLIF this morning.

Ziehl’s car was hit by a Tornado bus, driven by Luviano. Ziehl and his passengers sued Tornado and Luviano. The jury found that Ziehl and Luviano were negligent, and that Tornado and Ziehl’s employer (SCR Construction Co.) were not. In response to the next question the jury found:From there, the court found that Luviano was entitled to contribution from Ziehl for 35% of all plaintiffs’ damages, and also reduced Ziehl’s damages by 35%.

The Fifth Court agreed with Ziehl that this adjustment was improper, noting: “Using the word ‘shall’ three times in [CPRC] section 33.016(c), the Legislature specifically and clearly imposed an obligation on the trier of fact to make a separate finding of the percentage of responsibility for each contribution defendant. The finding must be solely for the purpose of [CPRC] section 33.016 and cannot be part of the percentage of responsibility determined pursuant to section 33.003.” The Court reversed “[b]ecause the statute makes the question mandatory and the question was neither requested nor given ….” Ziehl v. Tornado Bus, No. 05-19-00901-CV (April 22, 2021).

 

CNN recently reported on a Capitol rioter who was turned in by an unimpressed Bumble match (right). This story illustrates precisely the kind of “red-blue” interaction (admittedly, with less romanticism) that jury service forces when it brings together people of different backgrounds and interactions.  These interactions are increasingly important in our divided times, and have taken on new dimensions after the difficult year of 2020. I discuss this topic (jury selection, not date-getting) with top jury consultant Jason Bloom in the most recent episode of the Coale Mind podcast.

In Snell v. Ellis, the Fifth Court noted – but did not resolve – the issue whether an agent’s speech on behalf of a principal can implicate the TCPA. It did observe, however, that: “The plain text of section 27.005(b), long-standing rules regarding agency, and our decisions in other contexts suggest the answer is ‘no’ ….” No. 05-20-00642-CV (April 5, 2021) (mem. op.)

Among other issues in Barcus v. Scharbauer, the Fifth Court affirmed the appellee’s testimony about the fair market value of certain artwork: “Appellants challenge the legal sufficiency of proof of commercially reasonableness of sales as proving market value and proving market value at a time over a year before the sales. … However, appellants do not dispute Mohle’s testimony that the sales were commercially reasonable or point to any evidence in the record that the sales were ‘out of the ordinary in some way.’ … A reasonable factfinder could decide Mohle’s testimony about the reasonably commercial sales conformed to the legal definition and theory of fair market value established by willing sellers and buyers under no compulsion.  A reasonable factfinder could credit Mohle’s testimony regarding the sufficient stability of the art market to conclude the sales in 2018 established fair market value a little more than a year earlier in 2016.”  No. 05-19-01121-CV (April 15, 2021) (mem. op.) (citations omitted). (My LPHS colleagues Eric Pinker and Paulette Miniter represented the successful appellee in this case.)

This week on the “Coale Mind” podcast, I had top-flight jury consultant Jason Bloom as a special guest; in the episode we touch on the many pervasive effects that 2020 will have on jurors and jury selection, including:

– A surprising eagerness of people to show up and serve on juries, in part driven by widespread feelings of frustration after months of shutdown;

– Concern about what Jason calls the “massive exercise in confirmation bias” that potential jurors bring to the courthouse with them, depending on how restricted a juror’s information sources may be;

– The once-obscure psychological terms “ultracrepidarian” and “pareidolia” (you have to listen to the podcast to explore those terms’ meaning 🙂;

– Remembering that 2020 changed potential jurors not only because of COVID, but because of Black Lives Matter, the Biden-Trump election and its aftermath, etc.

– And a reminder that jury service—unlike the similar civic-engagement exercise of voting—forces jurors to form a consensus among their different beliefs; and

– Why 1-page written questionnaires for potential jurors may be particularly useful now in light of the above issues.

“[A]ppellants initiated the underlying suit and then essentially abandoned the proceedings they had set in motion. Appellants failed to participate in depositions even though the trial court and appellees attempted to make remote participation in the depositions possible. Not until appellees’ fourth motion to compel did the trial court impose death penalty sanctions on appellants and strike their pleadings. Under these circumstances, we conclude the trial court did not abuse its discretion in awarding  sanctions four times in response to appellants’ failure to appear at depositions and ultimately striking appellants’ pleadings.” Boktor v. U.S. Bank, No. 05-19-01306-CV (April 7, 2021) (emphasis added).

The Fifth Court granted mandamus relief as to the denial of a responsible third party designation, summarizing the record as follows: “Based on the evidence produced by relators, a jury could infer that Stephens modified and used Del Rio’s scaffolding solely because Electro Acoustics failed to provide him with the necessary equipment to safely perform his work. Accordingly, a jury could conclude Electro Acoustics’s omission was a substantial factor in bringing about Stephens’s injuries. Furthermore, a jury could reasonably conclude that a person of ordinary intelligence could appreciate the danger of requiring an employee to work in high spaces without providing the equipment required to reach and work in the area safely.”  in re Kilmer, No. No. 05-20-00814-CV (April 7, 2021) (mem. op.) (applying Advance Tire & Wheel v. Enshikar, 527 S.W.3d 476, 480 (Tex. App.–Houston [1st Dist.] 2017, no pet.).

This is a cross-post from 600Hemphill, which follows commercial litigation in the Texas Supreme Court. A high-profile 2020 dispute about the enforcement of a COVID-related TRO against a Dallas-area hairdresser was resolved in In re Luther by finding the TRO void. It said:

The Texas Supreme Court found that this order did not satisfy Tex. R. Civ. P. 683, as “it nowhere specifies any particular state, county, or city regulation that Luther has violated, is threatening to violate, or is being commanded to stop violating. Nor does it describe with specificity which ‘in-person services’ were restrained, such that performing them would cause Luther to violate the temporary restraining order.” No. 20-0363 (April 9, 2021). (NOTE–While the case was never before the Fifth Court, the supreme court opinion notes: “In light of the considerable uncertainty surrounding the multiplicity of orders and regulations issued by public officials throughout the State in the early months of the COVID-19 pandemic, we conclude there was a compelling reason for Luther to file her petition in this Court without first filing in the court of appeals.”)

Farewell to the I-35 Court of Appeals, one of many courts that would have arisen from SB11 in this Legislative term. Fortunately, the bill’s main advocate abandoned the effort yesterday; she correctly notes that the topic of court structure is one “with many stakeholders” that should be considered in a deliberate way. 

 

 

The parties’ dispute in Sazy v. J.R. Birdwell Constr. & Restoration, LLC went to trial and final judgment on the jury’s verdict. The sole issue on appeal was the denial of the defendant’s motion to transfer venue pretrial. While pretrial review of venue decisions is significantly limited by statute, those decisions are fair game for appeal post-trial. No. 05-19-01351-CV (April 1, 2021) (mem. op.).

The state Senate has undertaken the redistricting the current 14 intermediate-court districts in Texas; Law360 has a thorough story and related chart after a recent Jurisprudence Committee hearing. As for Dallas, the Senate’s plan links Austin and Dallas (right, below), cities that have been jurisprudentially distinct since at least 1893 (left, below). Please make your opinions known on the “I-35 Court of Appeals” as the Legislature continues to consider this proposal.