The Fifth Court granted mandamus relief in a failure-to-rule case when: “The ninth and current trial setting is for June 27, 2022, which is less than a week away. The motions were filed more than three months to over twenty-two months ago; the summary judgment motions were heard more than ten months ago; and the remaining motions were heard almost two months ago. The record reflects that relators have requested rulings multiple times. Further, respondent has a history of failing to rule in this case, which has already required this Court to conditionally grant mandamus relief.” In re Reiss, No. 05-22-00575-CV (June 21, 2022) (mem. op.).

In the context of a mandamus petition about a responsible third-party designation, the Fifth Court rejected a ripeness argument based on the pendency of a related motion:

“We conclude that the trial court’s denial of relator’s motion to designate Michael as a responsible third party was a concrete injury. This injury is not rendered “contingent or remote’ by relator’s pending motion to join Michael as a contribution defendant, because even the granting of that motion would not provide the relief that relator seeks in this proceeding.”

In re Modern Senior Living, No. 05-22-00283-CV (June 17, 2022) (mem. op.) (citations omitted).

The Fifth Court recently granted mandamus relief as to an excessive e-discovery order in In re Meadowbrook Baptist Church, No. 05-22-00271-CV (June 15, 2022) (mem. op.), even though the real party in interest had written a letter saying it did not intend to enforce the relevant order. The Court found that the proceeding was not mooted by that letter, since the order itself remained in effect.

In re Weekley Homes was not satisfied as to an electronic-discovery order, and mandamus relief was granted, when the record showed:

• No discovery default by nonmovant. “Meadowbrook responded to Blalock’s discovery requests and produced responsive documents in its possession. Where Meadowbrook found no responsive documents to a request, Meadowbrook confirmed that it diligently searched for responsive documents and found none. Indeed, the record shows that Meadowbrook withheld only five responsive documents, which were baptismal certificates of minors. Moreover, in its response and objections to the RFI, Meadowbrook presented a suggested protocol and parameters for searching the computer and stated that it would allow a search of the computer if an agreement could be reached with Blalock as to search terms and search protocols.”
• No likely benefit. “[Blalock] relied solely on her suspicions that a forensic expert would be able to recover additional relevant materials that may have been deleted from the computer prior to the incident in question. Mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device.”

In re Meadowbrook Baptist Church, No. 05-22-00271-CV (June 15, 2022) (mem. op.)

2 recent opinions state basic principles about stare decisis in Texas:

• The Texas Supreme Court expressly adopted the “rule of orderliness” concept in Mitschke v. Faiva, No. 21-0326 (May 13, 2022), observing: “If one appellate panel decides a case, and another panel of the same court differently resolves a materially indistinguishable question in contravention of a holding in the prior decision, the second panel has violated the foundational rule of stare decisis. Affording stare decisis authority to the second case would be tantamount to eliminating stare decisis altogether, as nothing would stop a third panel from returning to the initial outcome, or going yet another way.”
• A recent concurrence by Justice Schenck reminded: “I will … simply note that under the doctrine of stare decisis courts are bound only by the holding and discussion necessary to the resolution of the case. Newman v. Minyard Food Stores, Inc., 601 S.W.2d 754, 756 (Tex. App.—Dallas 1980, writ ref’d n.r.e.).”

In a state-court maritime case, this clause: ” . . all parties agree that any legal action seeking relief for a covered dispute must be filed in either (1) the United States District Court for the Western District of Kentucky, or (2) the McCracken County Circuit Court in Paducah, Kentucky” was held to be an enforceable forum-selection clause rather than an impermissible venue-selection clause. Risher v. Marquette Transp., No. 05-21-00289-CV (June 8, 2022).

Our firm again achieved Chambers & Partners Band One status this year for commercial litigation in the D/FW area; my partner Mike Lynn and I wrote the lead article introducing this year’s rankings and talking about our area’s strong economy and legal market.

After a powerful summary of Texas’s constitutional protection for court access and jury trial, the en banc court in Maypole v. Acadian Ambulance Service reversed the dismissal of a medical malpractice claim for alleged shortcomings in the required medical authorization form. A concurrence agreed with the result but not the scope of the majority opinion. No. 05-18-00539-CV (June 10, 2022) (Hat tip to 600Commerce friend Ben Taylor for pointing this case out to me).

Allegheny Millwork v. Honeycutt highlights a tension in some requests for sanctions–a request for a large amounts of attorneys’ fees can be inconsistent with the underlying claim that a position is not well-founded:

“While Allegheny’s counsel’s failure  o reconcile or even address that the case is disappointing, and thereby raises an issue of candor with the Court, we do not see it as sufficiently egregious to support a shifting of fees, and certainly not in the amount requested by NQS. Given this Court’s familiarity with its own opinion in Ninety Nine Physicians, a brief reference to the case in response to the attorney’s fee issue would have sufficed.”

No. 05-21-00113-CV (June 8, 2022) (mem. op.) (footnote omitted).

The plaintiff’s summary-judgment testimony about reliance went as follows (with a key phrase emphasized):

Had I known that Defendants were planning to leave my company and go out on their own I would not have entered into the second agreement on January 5, 2018. By doing so I allowed Defendants to pull more loads, earn greater revenue, and gain greater access to my clients and my business information. In fact, I would have taken actions to hire other drive[r]s and secure additional trucks as necessary. I would also have reduced and ultimately eliminated the work I was providing to Defendants.

Unfortunately, this testimony “failed to link [plaintiff’s] purported reliance to the only misrepresentation it identified—Mr. Woods’s failure to reveal he had changed the name of his entity from Woods Transportation to 1st Class Fuels.” L.D. McLoud Transp., LLC v. 1st Class Fuels, LLC, No. 05-20-00796-CV (June 3, 2022) (mem. op.) (emphasis added).

The well-intentioned mandamus petitioners in In re Diaz sought relief from the trial court not having a hearing on their TCPA motion to dismiss. Unfortunately, the record showed that “the statutory deadline by which the trial court must hold the TCPA hearing had expired prior to relators filing their petition and the trial court may no longer hold the hearing,” thereby mooting the mandamus petition. No. 05-21-01115 (June 3, 2022) (mem. op.).

“When a TCPA movant’s step-one burden and a nonmovant’s TCPA exemption are both disputed, we conclude that a court may consider a nonmovant’s exemption first, if it chooses to do so.” Temple v. Cortez Law Firm, No. 05-21-00367-CV (June 3, 2022).

You may enjoy my latest (and short!) podcast episode, Originalism and its Discontents, which compares:

•  the Fifth Circuit’s May 2022 opinion in Jarkesy v. SEC, which held that the Seventh Amendment’s right to civil jury trial extends to an SEC enforcement action (although the SEC did not exist in 1791), and
• the draft Supreme Court majority opinion in Dobbs (which held that the Fourteenth Amendment did not protect an abortion right in 1868, although the vast majority of women could neither vote nor own property at that time).

The episode concludes that historical analogies, made in the name of “originalism,” may not be a faithful application of that technique for constitutional reasoning, when the historical context differs substantially from our own.

In Diana Convenience LLC v. Dollar ATM, LLC, the Fifth Court affirmed a death-penalty sanctions award. Among the relevant facts considered, this particular move was unwise for the sanctioned party: “[T]he decision by appellants Shark Phones and AMK Convenience to file a no-evidence motion for summary judgment based on the very evidence that appellee was seeking—who signed the agreement and were they authorized to do so—supports the trial court’s finding that appellants had a callous disregard for the rules of discovery.” No. 05-20-00936-CV (May 25, 2022).