Lua v. Capital Plus Financial addressed, and rejected, a number of challenges to a judgment of eviction in a forcible entry and detainer action. In particular, as to the appellants’ claim that “because Capital Plus failed to submit an affidavit verifying its observance of certain requirements prior to the sale of the property, there are defects in the sale,” the Fifth Court distinguished the main case relied upon by appellants:

The Luas rely on A Plus Investments Inc v Rushton, No. 02-03-00174-CV, 2004 WL 868866 (Tex. App.—Fort Worth Apr. 22, 2004, no pet.) (mem. op.), for the proposition that the alleged defect in the statutorily-required presuit notice required the trial court to abate or dismiss this case. However, A Plus held that the county court lacked jurisdiction over a forcible detainer suit “[b]ecause an unresolved question of title was so intertwined with the right of possession that the action could not have been adjudicated without first determining title.” … Accordingly, the defect alleged by the Luas does not present the same fundamental issue that was present in A Plus.”

No. 05-19-01227-CV (May 26, 2022).

This blog does not ordinarily cover family-law appeals, but the grant of mandamus relief in In re Barnes involves a novel issue about the scope of a fundamental statute in that area: “We are not persuaded that [Tex. Fam. Code] section 153.002 reaches so far as to allow the family court to require a parent who does not have the right to determine a child’s primary residence and who has little or no possession time to live in a specific school district so that his child can maintain eligibility to attend schools within that district.” No. 05-21-00807-CV (May 27, 2022) (mem. op.).

Important arbitration-waiver case earlier this week from SCOTUS:

“Most Courts of Appeals have answered that question by applying a rule of waiver specific to the arbitration context. Usually, a federal court deciding whether a litigant has waived a right does not ask if its actions caused harm. But when the right concerns arbitration, courts have held, a finding of harm is essential: A party can waive its arbitration right by litigating only when its conduct has prejudiced the other side. That special rule, the courts say, derives from the FAA’s ‘policy favoring arbitration.’  We granted certiorari to decide whether the FAA authorizes federal courts to create such an arbitration-specific procedural rule. We hold it does not.”

Morgan v. Sundance Inc., No. 21-328 (May 23, 2022).

Overstreet v. Allstate, an insurance-coverage case about hail damage, presented an unsettled issue under Texas’ “concurrent causation” doctrine. Accordingly, the Fifth Circuit hailed the Texas Supreme Court for assistance, certifying the issue to it for review (a topic where the Fifth Circuit had previously certified the same topic, only for the parties to settle). No. 21-10462 (May 19, 2022). (As is customary for such requests, the Court disclaimed any intention to hale the Texas Supreme Court toward any particular result.)

Justice Oliver Wendell Holmes, dissenting from an early Sherman Act case, famously observed: “Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Northern Securities Co. v. United States, 193 U.S. 197 (1904).

Yet in the context of temporary injunctions and TROs, there are only “hard cases,” because of the demanding requirements about proof of irreparable injury, etc. For example, the most recent statement from the Texas Supreme Court about the specificity required by Tex. R. Civ. P. 683 is In re: Luther, 620 S.W.3d 715, 722-23 (Tex. 2021) (orig. proceeding)–an extremely charged case politically, arising in one of the most challenging periods of the COVID-19 pandemic.

In that vein is the panel majority in In re Childrens Medical Center of Dallas, a dispute about care for transgender youth, which found this order sufficiently specific as to Rule 683’s requirements about harm. A dissent saw otherwise. No. 05-22-00459-CV (May 18, 2022) (mem. op.).

The Court’s oft-used summary of the required elements for mandamus relief has been updated, see In re Grantham, 05-22-00077-CV (May 20, 2022):

The trial court in In re Alford appointed a special master to resolve discovery issues. Tex. R. Civ. P. 171 gives a trial court the power to “in exceptional cases, for good cause appoint a master in chancery.” Case law clarifies that “a special master may not be appointed merely because ‘a case is complicated or time-consuming, or [because] the court is busy.'” Here, the Fifth Court granted mandamus relief, noting “no indication that the case is unusually complicated or requires specialized knowledge,” and citing this exchange from the hearing on relators’ objection to the master’s appointment:

[Counsel]: Can you explain on the record what the good cause is and what the reasons for the appointment of this order is?

THE COURT: No, but thank you for asking.

No. 05-22-00240-CV (May 16, 2022).

The Fifth Court granted a mandamus petition about a corporate-representative deposition, when “proportionality” was not shown, given the corporation’s other information disclosures: “Safeco supported its proportionality objection with evidence. Safeco provided the trial court with a business record affidavit and two hearing exhibits, one containing a chain of e-mails between counsel and the other containing its supplemental responses to Taiwo’s request for disclosure. Further, the declaration of Barbara Spearman, Senior Complex Resolution Specialist IV for Safeco, stated that Safeco had produced and disclosed ‘1,208 pages of responsive documents and things in this matter, including its entire, unprivileged claim file, which included Plaintiff’s Policy, correspondence between the parties, the police report stemming from the accident and witness statements regarding the Accident.’” In re Safeco, No. 05-21-00873-CV (May 10, 2022) (mem. op.).

The plaintiff in Benit v. Primalend Capital Partners filed a nonsuit of his claims on the evening before a summary-judgment hearing. The trial court struck the nonsuit and entered summary judgment against the plaintiff. The Fifth Court reversed, noting that the defendant had not made a claim for affirmative relief against the plaintiff, and holding that the defendant’s argument on appeal–that its motion to strike was in fact a Tex. R. Civ. P. 12 motion to show authority–was not supported by the defendant’s trial-court filing:

“Although Primalend’s motion to strike used the phrase ‘lacks authority,’ the motion did not mention rule 12; it was not sworn; it was not set for hearing; nor did it provide 10 days’ notice of a hearing. … Primalend’s motion did not provide fair notice regarding the basis for the serious relief that Primalend now insists—on appeal—it requested of the trial court pursuant to rule 12.”

No. 05-21-00024-CV (May 6, 2022) (mem. op.) (citation omitted).

Here is the PowerPoint from my presentation for the Dallas Bar Association today. And if you prefer it as a .pdf, here it is in that format.

The issue in Bluestone Resources, Inc. v. First Nat’l Capital, LLC was a judgment that included post-judgment interest, by the court that confirmed an arbitration award, when the award itself was silent about post-judgment interest. The Fifth Court held:

“We acknowledge there is a line of cases … that appears to conclude the award of any post-judgment interest is unauthorized unless such interest was awarded by the arbitrator.  We respectfully disagree. Interest on a money judgment accrues automatically and is recoverable even if it is not specifically awarded. We see no reason why a judgment confirming an arbitration award, which is a ‘money judgment of a court of this state,’ would be exempt from this rule.”

No. 05-20-00776-CV (April 29, 2022) (citations and footnote omitted).

In Romeo and Juliet, the doomed heroine observes: “What’s in a name? That which we call a rose by any other name would smell as sweet.”

In Bell v. XTC Cabaret (Dallas), Inc., the Fifth Court observes (citations omitted):

“A misnomer differs from a misidentification. Misidentification—the consequences of which are generally harsh—arises when two separate legal entities exist and a plaintiff mistakenly sues an entity with a name similar to that of the correct entity. If a plaintiff is mistaken as to which of two defendants is the correct one and there is actually existing a corporation with the name of the erroneously named defendant (misidentification), then the plaintiff has sued the wrong party and limitations is not tolled.”

Those principles did not save a lawsuit filed against the wrong “XTC” entity: “Appellants argue the doctrine of misnomer applies because they served the correct defendant, XTC Cabaret (Dallas), Inc., but misnamed it as XTC Cabaret, Inc. … The fact that businesses have the same registered agent and the same attorneys is not evidence that they were aware of whom appellants intended to sue. We conclude appellants have not shown that the doctrine of misnomer applies.” No. 05-21-00294-CV (May 5, 2022) (mem. op.).

I’ll be speaking at the Dallas Bar Association’s downtown headquarters next Tuesday, May 10, at noon, to give an update on notable cases in the past year from both the U.S. Court of Appeals for the Fifth Circuit and the Dallas Court of Appeals

In bringing to an end a long-running international oil-and-gas dispute, the Texas Supreme Court examined a seeming tension between two earlier opinions about the specificity required for an effective release: “‘[W]hile the misrepresentation in Schlumberger “pertained to the very matter negotiated, settled, and released,”‘ the misrepresentation in Forest Oil ‘did not concern known disputed matters (which were settled and released) but potential future disputes (which were set aside and reserved).'” The Court concluded:

“Here, the evidence does not suggest that the parties actually considered or discussed allegations that Astra representatives bribed Petrobras officials to approve the 2006 stock-purchase agreement or offered to bribe them to approve the 2012 settlement agreement. But the evidence—including the terms of the settlement agreement itself does establish that the parties entered into the settlement agreement only after an extended series of complex and hotly contested negotiations that included discussions about the need to resolve all prior, pending, and possible claims between the parties, including those that were ‘unknown’ at the time.”

Transcor Astra Group S.A. v. Petrobras America Inc., No. 20-0932 (Tex. April 29, 2022).

I recently wrote a short piece for the UK’s Solicitor’s Journal about two recent personal-jurisdiction cases of note–one from the Fifth Circuit and one from the Dallas Court of Appeals–which it published as an “international insight” and titled “How to Deal with Texas Businesses Without getting Sued.”