A recent order in a long-running commercial dispute illustrates the challenge of crafting protective orders in Texas state court: “On January 24, 2023, we transferred sealed volumes 9 and 10 of the clerk’s record filed in appellate cause number 05-13-01700-CV into this appeal. We gave the parties an opportunity to obtain a sealing order in compliance with Texas Rule of Civil Procedure 76a and cautioned that we would order the volumes unsealed should the parties fail to file either a sealing order or status report by February 23, 2022.” At that point, having not received either one, the court ordered the volumes unsealed. Orca Assets GP v. JP Morgan Chase Bank, No. 22-40043-CV (March 23, 2023) (order).

Olivares v. Chevron Phillips Chem.Co. distinguishes two closely related doctrines about the limits of judicial power, which are distinguished procedurally:

“Unlike the exclusive jurisdiction doctrine, exclusive remedy is an affirmative defense. As an affirmative defense, exclusive remedy should not be disposed of with a motion to dismiss such as a plea to the jurisdiction; it should instead be raised through a motion for summary judgment or proven at trial. ‘Thus, pursuing the exclusive-remedy defense through a plea to the jurisdiction ‘is problematic and not to be encouraged.’”

No. 05-22-00057-CV (March 14, 2023) (mem. op.) (citations omitted).

In a dissent from a dismissal order in Chapman v. Doe, Justice Jackson questioned whether the Supreme Court had become too quick to vacate judgments, noting, inter alia, that “our common-law system assumes that judicial decisions are valuable and should not be cast aside lightly, especially because judicial precedents ‘are not merely the property of private litigants,’ but also belong to the public and ‘legal community as a whole.'” (reviewing United States v. Munsingwear, Inc., 340 U.S. 36 (1950)).

As she was the sole dissenter on this point, her views are apparently not shared by a majority of that court, but her analysis is still thought-provoking and deserves study, as it examines a part of the appellate process that often goes largely unnoticed. Thanks to Ben Taylor for drawing my attention to this one!

Aflalo v. Harris arose from a contract to sell a house. The question was (generally) how to calculate the value of the house at the contractually specified sales time, and (specifically) when a later resale of a home can be probative of that value. The Fifth Court reviewed the specific facts of this resale to determine that it was probative, discussing and distinguishing Barry v. Jackson,  309 S.W.3d 135 (Tex. App.–Austin 2010, no pet.) (LPHS represented the successful appellant in this case.)

Ryan, an accounting firm, made a claim on its professional liability policy for losses caused by a rogue director’s submission of fraudulent tax returns. The insurer acknowledged an obligation to pay for losses resulting from employee “theft,” but instead:

“… maintain[ed] that that Weaver did not unlawfully take money from Ryan but that, instead, he started a chain reaction that caused money to improperly flow from the taxing authorities to Ryan’s clients, to Ryan, and then to Weaver and other employees.”

The Fifth Court found coverage for $346,612 paid to the director in bonuses, as an “unlawful taking” of those funds by him, and remanded for further consideration of related issues. Ryan, LLC v. Nat’l Union Fire Ins. Co., No. 05-22-00286-CV (March 13, 2023) (mem. op.).

The Legislature is in session; thus, legislators are seeking continuances of trial settings pursuant to Tex. Civ. Prac. & Rem. Code § 30.003. While the trial court in In re Jones did not expressly deny a state senator’s request for a legislative continuance, it implicitly denied it by, inter alia, setting a status conference and making a docket entry that said “Proposed Order Denied,” That was sufficient to justify mandamus relief, since a proper motion had been made under section 30.003 and relator would not have an adequate remedy by appeal. No. 05-23-00070-CV (March 10, 2023) (mem. op.).

US Bank “prayed for a declaration that [appellant’s] equitable title was subject to US Bank’s lien.”

But US Bank pleaded a suit to quiet title as its cause of action. “In such a suit, the plainitff has the burden to show (1) an interest in a specific property, (2) title to the property is affected by a claim by the defendant, and (3) the claim, although facially valid, is invalid or unenforceable.”

Because that claim didn’t match the requested relief, the Fifth Court reversed summary judgment for the bank. TFHSP, LLC v. U.S. Bank N.A., No. 05-22-00002-CV (March 8, 2022) (mem. op.).

The interplay between appellate lawyers and courts (“we need the transcript now!”) and trial-court reporters (“I have twenty other transcripts due this month!”) is part of daily life in appellate practice. The situation in In the Interest of B.Q.L. goes to a whole other level, however, and presents a textbook application of Tex. R. App. 34.6. The Fifth Court reversed and remanded for a new trial, due to the lack of a reporter’s record, when the following facts were established in trial-court proceedings:

(1) Atkins [court reporter] testified she was not present at the trial held on June 8, 2021; (2) her testimony was untruthful; (3) Atkins was the reporter for the trial; (4) Atkins stated she has no notes from the trial; (5) Mother is not at fault for the reporter’s record not being transcribed; (6) the attorneys state the record is necessary to the appeal’s resolution; and (6) the record cannot be replaced by agreement of the parties. 

No. 05-21-01108-CV (March 6, 2023) (mem. op.).

Litigation between two parties about the ownership of a valuable Ferrari ended with a final judgment that awarded clean title to the car–except, lienholder Truist Bank was not joined as a party. Truist filed a bill of review; as the Fifth Court explained: “Ordinarily, a bill of review involves an independent action by a party to the former case. A nonparty, however, has standing to bring a bill of review if it had a then-existing legal right or interest that was prejudiced by the prior judgment.” The Court went on to reverse and render judgment for Truist on its bill, observing:

“Truist Bank asserted a meritorious defense based upon its unreleased priority lien, its possession of the original title to the Ferrari, and its challenge to Loyola’s right to relief in [another related] lawsuit. On this record, we are not persuaded by Loyola’s 2.403 Business and Commerce Code argument that, as a matter of law, he had a right to clear title, and we decline to so determine. … Truist Bank was prevented from establishing or protecting its priority lien rights by Loyola’s wholesale failure to serve, join, or notify Truist Bank in the … suit.”

Truist Bank v. Loyola, No. 05-21-00206-CV

The issue in Harry Hines Millennium Market Place LLC v. Pawn TX, Inc. was whether a commercial tenant vacated the leased premises on May 31, 2018.

The tenant’s principal testified that it did so, and also offered testimony about how it “gutted the showroom …, moved inventory and all pawns …, pulled down fixtures and back racks,” and made its last pawn-shop transaction on the premises on May 30.

The Fifth Court found the landlord’s contrary testimony to be conclusory (that the tenant “failed to vacate the premises and remained in possession of the Property for an additional two (2) months”). The Court also rejected the landlord’s argument that termination was ineffective absent formal notice, as the lease did not impose such a requirement and the common law does not otherwise impose one. (The Court also declined to consider several photographs submitted along with the landlord’s brief because they were not in the record.) No. 05-21-00778-CV (Feb. 28, 2023) (mem. op.).