The Texas Supreme Court has now given final approval to some new Rules of Appellate Procedure about the identification and disclosure of counsel.

Empower Texans, Inc. v. Dallas County involved open records request to Dallas County government. The panel majority held that “as a matter of law, the County’s conditional compliance by notifying Empower of the estimate costs for manipulation of data in order to redact and produce the electronic documents for inspection did not constitute a refusal to provide the requested information under [the statute] for purposes of waiving governmental immunity.” A dissent saw matters otherwise “[b]ecause the statute authorizes neither the conversion of files, the demand for payment of same, nor the resulting delay ….” No. 05-20-00546-CV (July 15, 2022) (mem. op.).

Gamble v. Anesthesiology Associates presented a tort claim, 2022-style, as follows:

• The accident. “Blain was also driving northbound on I-35 enroute to a business meeting in Oklahoma City for another Abeo client. During her drive, Richter called from his home in Kentucky to tell her he planned to announce his retirement to Anesthesiology Associates the next day. Blain answered the call on her hands-free Bluetooth device. She continued driving with her cruise control set at approximately eighty miles-per-hour while continuing the conversation. Blain hit and killed Gamble and the Good Samaritan. The accident investigation determined the collision occurred because of Blain’s inattentive driving while talking on the cellphone.
• Duty? “The critical fact in these cases [cited by Plaintiff] that is distinctly missing from the facts at hand is a passenger in close proximity distracting the driver. Here, the alleged distraction came from Richter’s phone call, which originated miles away in another state. Appellants have provided no Texas authority recognizing such an expansive duty. Until the Texas Supreme Court or the legislature indicates such a duty exists, we refuse to create one having such far-reaching implications for essentially all cellphone users anywhere in the world.” (emphasis added)

No. 05-20-01024-CV (July 21, 2022) (mem. op.).

Choi v. Brixmore Holdings provides a good example of when an offer of proof is required to preserve a matter for appellate review:

“Although it is the landlord’s duty to mitigate damages, the tenant has the burden of proving that the landlord has failed to mitigate damages and the amount by which the landlord could have reduced its damages. Neither the Guptas nor Choi offered or sought to offer evidence about Brixmor’s failure to relet the premises. Nor did they make an offer of proof of the amount of damages they contend Brixmor should have mitigated by undertaking an investigation before entering into the assignment, even though the trial court invited them to ‘submit an Offer of Proof on that via affidavit’ after sustaining Brixmor’s objection.”

No. 05-20-00516-CV (July 21, 2022) (mem. op.) (citation omitted).

Actress and inventor Hedy Lamarr said that “all my six husbands married me for different reasons.” Because judges can also reach the same decision for different reasons, the Fifth Court recently observed that “we ‘must uphold a correct lower court judgment on any legal theory before it, even if the court gives an incorrect reason for its judgment.'” Choi v. Brixmore Holdings, No. 05-20-00516-CV (July 19, 2022) (mem. op.).

Fans of appellate terminology will recall a recent blog post about the distinctions among the words “rendered,” “entered,” and “signed” in the context of judgments. The Fifth Court applied those distinctions in In the Interest of C.D.G., a challenge to a judgment entered nunc pro tunc. The Court said:

• “A judgment is ‘rendered’ when the decision is officially announced either orally in open court or by memorandum filed with the clerk. On the other hand, a judgment is ‘entered’ after being signed by the trial court judge.”
• Therefore: “The nunc pro tunc requirement is satisfied only if there is some evidence that the trial court had, at some point before the original order was entered, rendered judgment inconsistent with the language actually entered in the original order. If nothing in the record shows that there is a discrepancy between the judgment as rendered and the judgment as entered, we are compelled to hold that the error in the signed final judgment was a judicial error and thus a judgment nunc pro tunc cannot stand.”
• And importantly: “The focus is … on the actions of the court, not the parties. Thus, the mere fact that the parties entered into an [agreement] or filed it with the court, without more, does not translate that act into the entry of a judgment thereon by the court. A judicial error is an error which occurs in the rendering as opposed to entering of a judgment.”

No. 05-21-00132-CV (July 15, 2022) (mem. op.) (citations omitted, emphasis in original).

The Texas Supreme Court’s majority opinion in In re: Abbott–a mandamus about an appellate stay order in ongoing litigation about medical care for transgender youth–contained an intriguing footnote about the potential boundaries set by the Texas Constitution for appellate-stay orders:

“The State contends that, under an 1880 decision of this Court, courts of appeals exercising appellate jurisdiction lack any authority to “protect the parties from damage during the pendency of the appeal.” City of Laredo v Martin, 52 Tex. 548, 554 (1880). As we observed in Geomet, in which no party raised Martin, such a line of argument “amounts to a constitutional attack on Rule 29.3.” 578 S.W.3d at 89–90. We further noted in Geomet that a state of affairs in which no court can protect parties’ rights during an interlocutory appeal would raise constitutional questions about the automatic stay of trial court proceedings afforded by section 51.014(b) of the Civil Practice and Remedies Code. Id. at 90. Likewise, the limitation on appellate courts’ Rule 29.3 authority suggested by the State would raise constitutional questions about the State’s statutory right to automatically supersede injunctions on appeal. We do not purport to resolve any of these questions in this expedited mandamus posture.”

No. 22-0229 (May 13, 2022).

Emphasizing “our common-sense approach to error preservation,” in Browder v. Moree the Texas Supreme Court held:

If a trial court indicates that it will proceed with a bench trial in a case where a jury demand was timely perfected, a demanding party that still wishes to have a jury trial must ensure that the court is aware of the demand. But neither our procedural rules nor this Court’s decisions require a party that has obtained an adverse ruling from the trial court to take the further step of objecting to that ruling to preserve it for appellate review. Once the trial court denied Browder’s request for a jury trial, Browder had no choice but to go forward with the bench trial. … ‘If simply adhering to an adverse order while continuing to litigate waived review of that order on appeal from a final judgment, there would be few orders left to review.'”

No. 21-0691 (June 24, 2022) (per curiam) (citation omitted).

Wilson v. Capital Partners Financial Group, No. 05-20-00704-CV (July 5, 2022) (mem. op.), addressed the UCC’s requirements for a secured creditor giving notice about the disposition of collateral, in the context of an email among the parties (all citations omitted):

1. “The first element is to describe the debtor and the secured party. We conclude that the e-mail satisfies this element. The e-mail mentions Capital Partners and gives information from which Capital Partners’ status as a secured party could be inferred.”
2. So far so good. But then things changed. “The second element requires the secured party to describe the collateral that is the subject of the intended disposition. In general, a description of personal property is sufficient, whether or not it is specific, if it reasonably identifies what is described. … In the e-mail, Austin states a plan to liquidate what he variously referred to as ‘what is at the facility’ and ‘the items.’ These descriptions are insufficient.”
3. “BTH and Capital Partners fare no better on the third element, which requires the secured party to state the method of intended disposition. To satisfy this element, we have required the notification of disposition to state, at a minimum, whether the disposition will be through a public or private sale.”
4. “The fourth element requires the notification to state ‘that the debtor is entitled to an accounting of the unpaid indebtedness and state[] the charge, if any, for an accounting.’ The e-mail makes no mention of appellants’ right to an accounting, and it does not satisfy this element.”
5. “The fifth element requires the notification to state ‘the time and place of a public disposition or the time after which any other disposition is to be made.’ …  While the e-mail gives dates for the repossession, it offers no information concerning when the sale might occur. Therefore, it fails to satisfy the fifth and final element.”

The Fifth Court provided a valuable reminder about the enforcement of post-litigation agreements in Patel v. Gonzalez Hotels:

“Written settlement agreements may be enforced as contracts even if one party withdraws consent before judgment is entered on the agreement. When consent is withdrawn, however, the agreed judgment that was part of the settlement may not be entered. The party seeking enforcement of the settlement agreement must pursue a separate claim for breach of contract, which is subject to the normal rules of pleading and proof.” (citation omitted).

However, this principle does not apply to all agreements covered by Tex. R. Civ. P. 11, such as stipulations about evidentiary matters, as discussed in this article I co-authored a couple of years ago on the subject. (A big 600Commerce thanks to the able Ben Taylor for drawing this case to my attention!)

An out-of-state guarantor was subject to suit in Texas when

Whited personally guaranteed the performance and payment of “any and all financial, credit or business obligations” that one Texas company owed to another Texas company. [1] These obligations were those of a managing general agent as defined by the Texas Administrative Code and the Texas Insurance Code. [2] He agreed that his guaranty would be “interpreted by, construed in accordance with, and governed by the laws of the State of Texas.” Moreover, the agreement he guaranteed included another such Texas choice-of-law clause as well as a Texas forum-selection clause. Both his guaranty and the MGA obligations he guaranteed were performable in Dallas County, Texas. [3] Old American agreed to appoint Windhaven as its managing general agent after Whited agreed to execute this guaranty. According to the guaranty agreement, Whited agreed to it because he “desire[d] to continue the appointment of [Windhaven] a [sic] Texas Managing General Agency to act as [Old American’s] Managing General Agent”; he “wish[ed] to facilitate such continuing appointment”; and he wished to increase Old American’s financial security. 

Whited v. Old American County Mut, Fire Ins. Co., 05-21-00536-CV (June 16, 2022) (mem. op.) (references added).

Yedlapalli v. Jaldu, in rejecting sufficiency challenges to a judgment in an auto-collision case, summarizes the infrequently appealed but practically important case law about negligent driving. In particular (and contrary to what my Driver’s Ed teacher said in high school), the Fifth Court reminds:

With rear-end collisions, ‘standards of ordinary care cannot be fixed with any degree of certainty but must be left in large measure to the trier of the facts.’ … [T]he mere occurrence of a rear-end accident does not establish negligence as a matter of law. ‘And it is neither impossible nor automatically invalid for a jury to determine that neither driver in a rear-end accident committed negligence.’ … ‘A rear-end collision may be some evidence of negligence of the rear-ending driver, but it does not constitute conclusive proof.'” 

No. 05-20-00531-CV (June 28, 2022) (mem. op.) (citations omitted).

The Fifth Court affirmed summary judgment for the defense in a sexual abuse case involving long-ago events, summarizing:

“We do not question the sincerity of Doe’s motive for bringing the lawsuit or the reality of the terrible ordeal he underwent at the hands of a person who should have protected him and while in the care of organizations dedicated to protecting children like himself. … . The purpose of the statute of limitations is to ‘protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise.’ The forty years between the assault and Doe’s bringing suit has taken a toll on the evidence available in this case as every person involved aside from Doe and G.L. appears to be deceased. The courts have created narrow exceptions to the application of the statute of limitations, including the discovery rule, fraudulent concealment, and equitable estoppel, but the evidence conclusively established those exceptions do not apply in this case and that Doe did not present evidence raising a genuine issue of material fact as to whether those exceptions apply.”

Doe v. Catholic Society, No. 05-21-00616-CV (June 30, 2022) (mem. op.).