Louis XIV, the “Sun King” who ruled France from 1643 to 1715, allegedly claimed: “L’État, c’est moi” (“I am the State.”). If, however, Louis served as the governor of Texas rather than the French monarch, he could not say that:

“The claim that the Governor’s commissioning of temporary justices would be attributable to the State, the named plaintiff, misunderstands the nature and structure of Texas’s government. As Respondents concede in their July 13 letter, ‘Texas does not have a unitary executive.’ See In re Abbott, 645 S.W.3d 276, 280 (Tex. 2022) (‘[T]he Texas Constitution does not vest the executive power solely in one chief executive. Instead, the executive power is spread across several distinct elected offices … .’)”

State of Texas v. Volkswagen AG, No. 21-0130 (Tex. Nov. 18, 2022).

The appellant in NFVT Motors v. Jupiter Chevrolet argued that it only needed to show that a noncompete was of appropriate breadth to obtain reversal. The appellee countered that it had also sought summary judgment on the ground that the noncompete lacked consideration and the plaintiff had no damages. The court of appeals agreed with the appellee, specifically noting: “We may not consult the reporter’s record of the summary judgment hearing to determine if the judgment is limited to certain grounds. Nor can we look to docket entries that ordinarily do not form part of the record that may be considered on appeal.” No. 05-21-01031-CV (Nov. 16, 2022) (mem. op.) (citations omitted).

In the mandamus case of In re Sunoco Retail LLC:

• “The record further reflects that a hearing took place on November 14, 2022, on real parties in interest’s motion to compel. Relators did not provide a transcript of this hearing, and they did not state that a transcript has been requested and will be provided. Instead, relators include a statement in their petition that ‘[n]o testimony was presented and no exhibits were offered into evidence at the hearing.'”;
• BUT: “In the order granting real parties in interest’s motion to compel, the trial court stated that it had considered ‘the pleadings, evidence, affidavits, and argument of counsel.’ Thus, the trial court’s order indicates that the November 14, 2022 hearing was evidentiary, despite relators’ statement to the contrary.” (cleaned up).

Because “relators make factual statements about what transpired at the November 14, 2022, and they rely upon these statements when arguing the trial court abused its discretion,” the Court concluded that it “cannot evaluate relators’ argument without a record of the hearing,” and thus rejected the mandamus petition. No. 05-22-01225-CV (Nov. 18, 2022) (mem. op.).

The Texas Supreme Court recently clarified the proper way to dismiss a matter that has become moot on appeal:

MTGLQ’s purchase of the property preceded Alsobrook’s appeal. As the court of appeals correctly concluded, no live controversy existed between the parties after the foreclosure, rendering Alsobrook’s claims moot. The court of appeals thus correctly concluded that dismissal was required. But, as explained, mootness on appeal requires vacatur of the underlying judgment as well as dismissal of the case. The court of appeals should have vacated the trial court’s judgment and dismissed the case.

Alsobrook v. MTGLQ investors, LP, No. 22-0079 (Nov. 18, 2022) (citations omitted). I salute 600Commerce friend Ben Taylor for his persistent advocacy about this and related matters.

The much-maligned TCPA, even after amendments that significantly restricted its scope, is still a powerful tool in a proper case. In Austin v. Amundson:

• The TCPA applied to the communications at issue because “TCPA case law is clear that criminal acts are matters of public concern”;
• Malice, a necessary element of the plaintiff’s reputational claims, was not established by clear and convincing evidence; particularly when a key police report “‘advised’ the police department the parties had ‘… ongoing civil issues since 2016′”;
• As to other claims, falsity was not established when, among other matters, a police department did not more than close a case without further action, making “no finding that [the party] did not drive recklessly”;
• And a third set of claims, about allegedly derogatory statement to customers, were “[m]issing … the facts of when, where, and what was said”.

The Fifth Court thus reversed the denial of the defendants’ motion to dismiss, rendered judgment on the claims that it addressed, and remanded for consideration of fee-related matters as potentially required by the statute. No. 05-22-00066-CV (Nov. 15, 2022) (mem. op.).

The Fifth Court remanded for a new trial based on a voir dire error about the civil-commitment statute that gave rise to In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011): “Counsel then asked the entire panel: ‘would anyone find it hard to give someone who’s been diagnosed by an expert as a hebephile, and that is a sexual attraction to what is parapubescent or postpubescent children, a fair trial?’ The state objected ‘to an improper commitment and comment on evidence’ and the court sustained the objection. Appellant’s counsel asked to approach but the court said ‘No. I sustained the objection. Move on.'” In re Commitment of Revels, No. 05-21-00868-CV (Nov. 8, 2022) (mem. op.).

A long-running jurisdictional dispute, on remand from the Texas Supreme Court after that court’s resolution of a procedural issue, produced a thorough analysis of personal jurisdiction in Chen v. Razberi Technologies, Inc. Among other practical points, the opinion reminds that “[w]hile it is often relevant to the inquiry, the focus is on the relationship between the defendant, the forum, and the litigation, not the plaintiff, the forum, and the litigation.” (citation omitted, emphasis added).

Here, “The connection between the Modrys’ causes of action and Texas is not weak because, like the other investors, they claim to have suffered harm in Texas when they entered into the Stock Purchase Agreement in Texas with a Texas-based company as a result of its director’s and majority shareholder’s misrepresentations and omissions.” No. 05-19-01551-CV (Nov. 8, 2022).

By close but decisive margins, Hon. Nancy Kennedy and Hon. Maricela Moore have won election to the Fifth Court. Congratulations to these two new Justices!

Hon. Erin Nowell and Hon. Amanda Reichek were unsuccessful in their races for the Texas Supreme Court, so their service on the Fifth Court will continue for the balance of their terms. The Texas Lawbook has a thorough review of other appellate elections around the state.

Depending on how quickly the Governor fills the vacancy created by the resignation of Hon. Leslie Osborne, the Court may briefly be all-Democrat – completing the reshaping that began with the 2018 election of the “Slate of Eight.”

The issue in Lurks v. Designer Draperies was whether the employer of a driver who caused an accident – a Mr. Heitzmann – could be liable for exemplary damages because Heitzmann was a vice-principal.

Noting Heitzmann’s statements to a police officer, his deposition testimony about his work, and his assertion of the Fifth Amendment in response to several questions about his drinking on the job, the Fifth Court “assume[d], without deciding, [that] the summary-judgment evidence raises a genuine issue of fact as to whether Heitzmann was consuming alcoholic beverages at DDF’s workplace, that he was drinking with employees of DDF, and, perhaps, that someone encouraged him to drive.” 

The Court then held: “What is missing from the foregoing evidence and potentially available inferences, however, is more than a mere scintilla of evidence that Heitzmann’s drinking or decision to drive while intoxicated was referable to DDF’s business. Without this evidence, we cannot conclude Heitzmann’s alleged tortious actions may be attributed to DDF.” No. 05-21-00908-CV (Aug. 3, 2022) (mem. op.).

Kam v. Adams, an attorney-client dispute about a retainer agreement, produced reference points on basic aspects of summary-judgment practice:

• “Because Adams’s evidence serves only to raise a fact issue, Kam was not required to offer a response to the motion for summary judgment or contradictory proof. ‘In our summary judgment practice, the opponent’s silence never improves the quality of a movant’s evidence.’” (citation omitted).
• “Although Adams disputes that this was their understanding, he is an interested witness. For the testimony of an interested witness to establish a fact as a matter of law, there must be no circumstances in evidence tending to discredit his testimony. Such circumstances are presented here by Kam’s complete reliance on Thomas in the creation and negotiation of the retainer agreement, as well as the continued negotiations and apparent changes made to the agreement, including to the non-refundable fee specifically, after Kam signed it.”
• In the specific context of intent to form a contract: “Intent is a fact question uniquely within the realm of the trier of fact because it depends upon the credibility of the witnesses and the weight to be given to their testimony.” (citation omitted).

No. 05-21-00871-CV (Nov. 3, 2022) (mem. op.).

A concurrence to the Texas Supreme Court’s denial of review in Lester v. Berg, No. 21-0775 (Nov. 4, 2022) reminded of the importance of following that court’s precedent (even while denying review of a court of appeals opinion that disagreed with it):

“It is fundamental to the very structure of our appellate system that this Court’s decisions be binding on the lower courts.” Dall. Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex. 2008). “[I]n reaching their conclusions, courts of appeals are not free to disregard pronouncements from this Court, as did the court of appeals here.” In re K.M.S., 91 S.W.3d 331, 331 (Tex. 2002) (citing Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989) (“This court need not defend its opinions from criticism from courts of appeals; rather they must follow this court’s pronouncements.”)).

The Fifth Court found that the trial court exceeded the bounds of permissible discovery under the TCPA in In re Quality Cleaning Plus:

Although the trial court acknowledged at the August 29 hearing that it could order limited discovery under the TCPA, there is no indication in the record that the trial court considered the limitations of Section 27.006(b) when it entered its post-August 24 discovery orders. Instead, the trial court reasoned that Section 27.006(b) did not apply because the discovery was outstanding and due before Quality Cleaning filed its TCPA motion and, thus, the discovery was not suspended. But the statute does not provide such an exception.

No. 05-22-01053-CV (Oct. 31, 2022) (mem. op.) (emphasis added).

The clerk sent notice of judgment to an outdated address for counsel, after he had notified the court of the change, and took no further action when that notice was returned by the Post Office. The Fifth Court granted relief from that judgment in a restricted appeal in Getmeplacement LLC v. Wiese Indus., LLC, No. 05-21-00133-CV (Oct. 31, 2022) (mem. op.).