Awards of appellate attorneys’ fees have become more detailed in recent months, following a Texas Supreme Court that clarified the necessary proof requirements. Bucking that trend, the prevailing party in Wafer v. Hiltop Residential obtained an award, “in the event of an unsuccessful appeal by [appellant], any reasonable and necessary amounts.” The Fifth Court dismissed the appeal for want of jurisdiction, as that language did not resolve the issue of appellate fees. The Court noted that the phrase was insufficient for “ministerial officers [to] carry the judgment to execution without ascertainment of facts” not stated in the judgment. No. 05-22-00546-CV (Aug. 29, 2022) (mem. op.).(Thanks to the eagle-eyed Ben Taylor for catching an error in my original post!)

The supreme court found that an excessive, unexplained delay in filing a mandamus petition barred relief in In re Self, observing:

Relators filed this mandamus petition on August 8, 2022. The petition seeks relief within eighteen days, by August 26, which relators contend is the deadline established by the Election Code for the relief they seek. The Libertarian Party nominated the disputed candidates, who had not paid the filing fee, in April 2022. Under relators’ view of the law, those candidates’ ineligibility attached in April 2022, when they were nominated despite not paying the fee. Nearly four months passed between the facts giving rise to the relators’ claims and the filing of this mandamus action. Relators do not provide any explanation for why these claims could not have been investigated and brought to the courts with the “unusual dispatch” our precedent requires of those who seek to use the court system to alter the conduct of elections.

(footnote omitted, emphasis added). While the “unusual dispatch” concept is unique to election-law cases, Self nevertheless provides a good general reference point for when laches will bar mandamus relief in civil cases more generally. No. 22-0658 (Tex. Aug. 26, 2022).

Fritz American Mangagement LLC v. Huge American Real Estate, Inc. reversed a summary judgment in a contract case, noting, inter alia, fact issues on the defense of waiver. Points from the Fifth Court’s opinion include:

• Legal standard. In addition to the often-used definition of waiver as “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right,” the Court further observed: “The elements of waiver include
  (1) an existing right, benefit, or advantage held by a party; (2) the party’s actual
  knowledge of its existence; and (3) the party’s actual intent to relinquish the right,
  or intentional conduct inconsistent with the right.” In the specific setting of a contractual right, the Court further said: “A waiver of a right granted in a contract can occur in any of three ways: the right may be expressly renounced; the renunciation may be shown when a party knowingly possessing the right is inactive or silent for an unreasonable period of time such that the intention to waive is implied; or waiver can occur if a party knowingly possessing the right acts in such a manner that the party misleads the other party into believing that a waiver has occurred.”  (all citations omitted).
• Factually. “[Plaintiff] gave this permission after declining to respond either affirmatively or negatively to Fritz’s e-mail seeking permission for the remodel. … This is particularly true in light of the evidence showing that both parties were experienced Burger King franchisees that understood the nature of franchisor requirements. That is, Fritz’s evidence supported a reasonable inference that Huge Real Estate would have understood the sort of remodel sought by Fritz, which was required to maintain a Burger King franchise on the premises pursuant to the lease.”  (emphasis added).

In In re Five Star Global, LLC, the Fifth Court granted mandamus relief to restore a case to the jury-trial docket, when the effort to enforce a jury waiver came too late:

“In addition to paying the jury fee, real parties also explicitly demanded a jury in six pleadings filed between November 15, 2019 and October 21, 2020. Although real parties deleted the “Jury Demand” paragraph in two of the pleadings, those pleadings still requested a jury in the prayer section, and the “Jury Demand” paragraph even re-appeared in their October 21, 2020 pleading. Moreover, real parties never objected to FSG’s jury demand until they filed their motion to strike in February 2021, which was fifteen months after they initiated the lawsuit against FSG.”

No. 05-22-00153-CV (Aug. 15, 2022) (mem. op.).

If you don’t subscribe to Jerry Bullard’s excellent updates about the Legislature’s activities relevant to appellate practice, you should. His most recent one advises of an upcoming House committee hearing about, inter alia, “potential solutions to improve the judicial efficiency of the state courts of appeals ….”

The Fifth Court granted mandamus relief based on the attorney-immunity doctrine in In re: Sams:

“Maltezos’s claim is based upon the kind of conduct involved in legal representation. Labeling the conduct as fraudulent or wrongful does not remove it from the scope of Sams’s legal representation. The face of Maltezos’s petition establishes that his claims are barred by the defense of attorney immunity. Accordingly, they have no basis in law and were properly subject to dismissal under Rule 91a. We conclude that the trial court abused its discretion by denying Sams’s motion to dismiss. We conclude further that mandamus relief, rather than appeal, is appropriate in this case to spare the parties and the public the time and money spent on a fatally flawed proceeding.”

No. 05-22-00150-CV (Aug. 15, 2022) (mem. op.)

Full of Faith Christian Center, Inc. v. May affirmed a no-answer default judgment, making several points of general interest about that area of Texas procedure:

• Some service problems are fixable:  “T]he order denying the motion for default judgment was without prejudice and noted the returns failed to show Calvin’s authority to receive service. … The default judgment specifically referenced the second amended returns as support for the judgment and the court found all defendants were served properly and that the returns of service were on file at least ten days before the hearing on the motion to reconsider on July 31, 2020. These orders were ‘tantamount to formal amendment of the return of citation,’ and the record is sufficient to show valid service. An amended return relates back to the original return and is regarded as filed when the original return was filed.” (citation omitted).
• Even for a default judgment, basic damages principles must be followed: “The judgment awards punitive damages against appellants jointly and severally. This was error. See Tex. Civ. Prac. & Rem. Code § 41.006 (‘In any action in which there are two or more defendants, an award of exemplary damages must be specific as to a defendant, and each defendant is liable only for the amount of the award made against that defendant.’).”
• “86” Rule 44: “Rule 44.1(b) provides that when liability is contested, the court may not order a separate trial solely on unliquidated damages. Tex. R. App. P. 44.1(b). However, when a defendant appeals a no answer default judgment, liability is not contested for purposes of this rule.”

No. 05-20-00859-CV (Aug. 11, 2022) (mem. op.).

The well-known poem Antigonish begins:

Yesterday, upon the stair,
I met a man who wasn’t there
He wasn’t there again today
I wish, I wish he’d go away.

In that general spirit, in recent days, both the U.S. Court of Appeals for the Fifth Circuit and the Court of Appeals for the Fifth District at Dallas had close en banc votes involving questions of arbitrability, as to a party who “wasn’t there”–who had not signed an arbitration agreement, but was nevertheless potentially subject to it. (The Dallas case is discussed here; the Fifth Circuit’s, here.)

Whether the timing is an example of synchronicity I will leave to others. The courts’ difficulty with these issues shows the strong feelings provoked by the issue of court access, even among very sophisticated jurists, in an area of the law with well-developed case law on many key points.

The en banc Fifth Court divided 7-6 on a difficult arbitration issue; specifically, whether a court or the AAA should resolve arbitrability as to wrongful-death claims brought by estate representatives. Agreeing with the panel majority, the full-court majority  saw it as an issue for the AAA; the dissent, one for court. A concurrence urged consistency with applicable federal law. Prestonwood Tradition, LP v. Jennings, Nos. 05-20-00380 and -00387 et seq. (Aug. 5, 2022).

Justice Pedersen wrote the majority opinion, joined by Justices Myers, Schenck (who wrote a concurring opinion), Osborne, Reichek, Goldstein, and Smith. Justice Partida-Kipness wrote the dissent, joined by Chief Justice Burns and Justices Molberg, Nowell, Carlyle, and Garcia. The panel consisted of Justices Pedersen and Goldstein in the majority and Justice Partida-Kipness in dissent.

The defense of waiver was not conclusively established in a contract dispute when:

“The only evidence we see that could potentially support waiver is the $85,000 check that Ganguly accepted from Kaur Ltd. But we conclude that this evidence does not suffice. Although the check bears the notation “For KERSEVA DEBT,” that notation does not indicate that the funds are being offered as payment in full; thus Ganguly’s acceptance of the check, without more, is no evidence of intent to relinquish Ganguly Holdings’ claim against Ker-Seva or of intentional conduct inconsistent with asserting that claim.”

Ganguly Holdings, LLC v. Ker-Seva, Ltd., No. 5-21-00124-CV (July 29, 2022) (mem. op.)

A recent Fifth Court opinion reminded of the importance of an offer of proof, in addition to arguing the related objection, to appropriately preserve error. In the same vein, Phoenix Thera-Lase Systems, LLC v. Curewave Lasers, LLC reminded of an additional step needed to preserve error as to a claimed violation of a motion in limine:

Here, Phoenix’ counsel objected immediately to Herbert’s reference to “two felonies.” However, counsel did not request an instruction to disregard; instead, following an off-the-record discussion at the bench, counsel withdrew the question that elicited the complained-of response. To the extent counsel did not request an instruction to disregard, any error is waived.

No. 05-20-00665-CV (Aug. 4, 2022) (mem. op.).

A well-known Zen koan involves the sound of one hand clapping. Similarly, JMJ Development, LLC v. Ramolia involved the Texas test for whether a judgment is final, which can be satisfied whether or not the judgment is, in fact, a resolution of all mattters in dispute:

Regarding finality, the trial court’s judgment states “This judgment finally disposes of all parties and claims and is appealable.” Appellants asserts this language conflicts with the language in the order granting summary judgment on “his claims” instead of granting summary judgment on all claims. However, nothing on the face of the order suggests that there is any claim or party that remains pending. Appellants’ argument might have merit had the judgment lacked the finality phrase. However, since the judgment included a finality phrase, it was clear and unequivocal, the record is irrelevant, and further analysis is prohibited.

No. 05-21-01100-CV (July 27, 2022) (mem. op.).

If you practice in Dallas County and want to move your case faster, associate judges can help speed up the process. Policies and procedures are available for both Associate Judges Hurdle and Merritt; in particular, as to court reporters:

My colleague Kyle Gardner and I wrote this article for the most recent Headnotes about two cases–one federal, one state–that summarize basic personal-jurisdiction principles for Texas in business cases.