The Baroque rules surrounding special-exception practice led to reversal in J.G. v. Jones, a claim by “J.G.” against the owner of the Dallas Cowboys alleging unwanted physical contact. In particular, the Fifth Court held:

• Preservation. Where, as here, the plaintiff amended in response to a special-exceptions order, the plaintiff preserved error by, inter alia, opposing the defendants’ motion to dismiss. The Court distinguished a 1993 opinion in which the plaintiff did not amend in response to a similar order.
• Merits. The Court noted that of six deficiencies identified in the special exceptions, only two were challenged in the motion to dismiss. As to the location of the alleged conduct, the court found that her revised description “was at least a good faith attempt” that could not support dismissal; as to the use of initials, the court noted that “[a]ppellees do not dispute that they were informed of appellant’s identify before the trial court ruled on their motion to dismiss.”

No. 05-22-00215-CV (Feb. 27, 2023) (mem. op.). The Dallas Morning News recently reported on the case.

In the case of In re Commitment of Robinson, a civil-commitment case about a sexually violent individual, the trial court granted a directed verdict that the defendant was a “repeat sexually violent offender” and included an instruction to that effect in the jury charge. In a holding that likely has little effect outside this specific procedural setting, the Fifth Court found no plain error from that particular instruction in this specific case. No. 05-21-00795-CV (Feb. 23, 2023).

On a second appeal after an earlier remand from the Texas Supreme Court, the once-successful plaintiff in Credit Suisse AG v. Claymore Holdings LLC sought judgment for “an additional $25,235,910.61 for secondary market purchases in addition to the $40 million in damages for fraudulent inducement.” The Fifth Court noted:

• “[t]he jury was not asked to determine liability as to the secondary market purchases; therefore, the record contains no liability or causation finding” to support such damages;
• “Claymore did not object to the absence” of a question on those matters, and did not try to submit one either;
• in the trial court’s findings of fact and conclusions of law, on matters tried to the bench, “[t]here is not a separate section for fraudulent inducement of secondary market purchases”;
• The trial court’s conclusion of law that awarded such damages did not make “an implicit finding and conclusion” about liability and causation;
• The supreme court did not address this topic in its prior opinion, and because “[t]he jury made no liability finding on the secondary market purchases … there was nothing for Credit Suisse to appeal at that stage in the proceedings.”

No. 05-21-00649-CV (Feb. 14, 2023) (mem. op.).

Desperate to hear the fabled song of the Sirens, but knowing full well that they steered sailors toward the rocks, Odysseus told his crew:

“[T]ake me and bind me to the crosspiece half way up the mast; bind me as I stand upright, with a bond so fast that I cannot possibly break away, and lash the rope’s ends to the mast itself. If I beg and pray you to set me free, then bind me more tightly still.”

He survived. Not so, the appellants in Bienati v. Cloister Holdings, LLC, who disclosed during argument that:

“… because the probable right to recovery issue could impact the merits of the entire case, the trial court ‘abated it until this Court weighed in on the merits of the temporary injunction and whether there’s a probable right to recovery.”

The court of appeals held: “We have repeatedly disapproved the practice of postponing the trial on the merits of a case to obtain a ruling on the appeal of a temporary injunction. This practice not only delays the ultimate resolution of the merits of the parties’ dispute but wastes judicial resources.” It thus dismissed the appeal. No. 05-22-00324-CV (Feb. 10, 2023) (mem. op.).

The classic question of “who” was central to Western Healthcare LLC v. Herda, which involved the role of a “contractual delay” provision as a defense to a suit alleging a failure to pay certain workers: “[Plaintiffs] contended that because the work stoppage at issue affected Ellwood, rather than WHC, it should not defeat their claims. But the contractual provision does not specify that a particular employer must undergo a work stoppage to trigger its application; Ellwood’s closure certainly stopped the Providers’ ability to work at its hospital, which was the work bargained for in their contracts.” No. 05-21-00603-CV (Feb. 10. 2023) (mem. op.) (emphasis added).

On Wednesday at noon, I am doing a virtual CLE for the Dallas Bar that reviews the key cases, since last spring, from the U.S. Court of Appeals for the Fifth Circuit and the Fifth Court of Appeals in Dallas. You can register here and you can download (subject to last-minute revisions) my PowerPoint here. I hope you can join me!

Kirk v. Atkins enforced a straightforward arbitration agreement (my apologies for the tilt, which appears in the original record) with broad, “any dispute” language:despite similarly broad “all remedies” language in another section about remedies: Held: “[I]t is possible to harmonize and give effect to both provisions of the agreement. The ADR paragraph, in which the arbitration clause is found, controls the process of resolving disputes between the parties, while the remedies paragraph describes the substantive relief that may flow from decisions on those controversies.” No. 05-21-00639-CV (Feb. 1, 2023) (mem. op.).