A declaratory-judgment claim in a will contest led to a counterclaim based on the will’s in terrorem clause. That counterclaim was met by a TCPA motion to dismiss, which was denied by operation of law. The Fifth Court reversed in Roach v. Roach, No. 05-22-00194-CV (Sept. 18, 2023) (mem. op.).

Specifically, the Court concluded that the TCPA applied, as the “counterclaim was based on or in response to” a pleading. Then, noting a handful of Texas cases involving comparable will cases, the Court held that “appellees failed to meet their burden to establish by clear and specific evidence a prima facie case that John’s declaratory action violated the will’s in terrorem clause.”

While Texas law does not find personal jurisdiction when the defendant “directs a tort” toward Texas with out-of-state activity, the analysis changes when the tort is, in fact, committed in Texas:

Trinity is registered with the Texas Secretary of State and operates a regional service center in Euless, Texas, which employs a manager and thirty-three employees. The record reflects Trinity recruited and employed Evenflow and Manselle while both were still working for TTS, and during such time Manselle disclosed to Trinity TTS’ confidential business information related to Texas customers and interfered with TTS’ business in Texas. Trinity’s regional service center in Texas permitted Trinity to capitalize on confidential and proprietary information concerning TTS’ customers and business operations in Texas. In fact, in the twelve months following Trinity’s appropriation of TTS’ confidential business information, Trinity earned approximately $475,000 in recurring Texas-based business.

TTS LLC v. Evenflow LLC, No. 05-22-00770-CV (Sept. 15, 2023) (mem. op.). The court also noted an interesting counterpoint to the often-cited principle that “[w]hen a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied”; namely, that “[a]lthough the trial judge acts as the factfinder and must resolve any factual disputes in the special-appearance evidence, the judge must accept as true any clear, direct, and positive evidence presented in an undisputed affidavit.” (citations omitted).

Below is a reminder email recently sent by the DBA Appellate Section about the annual joint Dallas-Tarrant meeting tomorrow (22nd), which will be at the Arts District Mansion and has lots of great material this year:

Greetings, colleagues! Welcome to your second-to-last reminder email about tomorrow‘s (September 22) Annual Joint Meeting with the Tarrant County Appellate Section.  We’ve got some terrific speakers lined up for you, a fun reception afterwards (generously underwritten by Duane Morris LLP), and a bonus ethics CLE opportunity over the lunch hour by also attending the DBA’s Day of Civility luncheon.

As a bonus you don’t have to go far – this year’s meeting will be at the Dallas Arts Mansion. Yay!

Register here for the joint meeting:

https://www.dallasbar.org/?pg=events&evAction=showDetail&eid=271565&evSubAction=viewMonth&calmonth=202309

Meeting Agenda:

8:00 am: Registration and continental breakfast

8:30 am: Practice and Procedure at the 5th Court of Appeals, presented by Justices Ken Molberg, Cory Carlyle, and Erin Nowell (Moderator: Anne Johnson)

9:45 am: Practice tips for success at the 2nd Court of Appeals, presented by Justices Elizabeth Kerr, Dana Womack, and Mike Wallach (Moderator: Chris Knight)

11:00 am: Supreme Court Q&A with Justices Jane Bland and Jimmy Blacklock

12:00 – 1:00: Lunch (Optional: Attend Day of Civility luncheon in adjoining room for                       additional 1.00 hour of CLE credit)

1:00 pm: The state of the Texas Judiciary with Chief Justice Nathan Hecht followed by a panel discussion with Chief Justices Hecht, Robert Burns, and John Bailey (Moderator: David Coale)

2:00 pm: Reception

The Fifth Court granted mandamus relief in a failure-to-rule case in In re Z Resorts Management LLC–an unusual hybrid of a wrongful-death lawsuit and a dispute about child guardianship. One of the motions addressed the authority of a party to represent a minor’s interests in the litigation. The court rejected an argument that an earlier ruling on a related topic prevented the pursuit of this mandamus petition:

Parguian argues that the Rule 12 Motion serves only to relitigate the trial court’s earlier ruling on the Amended Plea. Because both rulings address Parguian’s capacity to represent the Minor Children, we agree that some questions couldoverlap. But other questions will be new to the issue. The trial court will now have the SAPCR order and the intervening Paternal Grandparents before it when making the capacity decision. Moreover, even if circumstances had not evolved with the signing of the SAPCR order and the intervention of the Paternal Grandparents, the trial court always retained its plenary power to change its capacity ruling. Accordingly, requiring the trial court to rule on the Rule 12 Motion is not an empty or redundant directive

No. 05-23-00425-CV (Sept. 11, 2023) (mem. op.)..

While option agreements are an important part of commercial law, their specific legal requirements are not as frequently litigated as other contract-law concepts. Vertical Holdings, LLC v. LocatorX, Inc. holds that a failure to pay a specified $1,000 price precluded exercise of an option, because:

Under Texas law, to exercise an option, “strict compliance with the provisions of an option contract is required … [A]cceptance of an option must be unqualified, unambiguous, and strictly in accordance with the terms of the contract.” And “any failure to exercise an option according to its terms, including untimely or defective acceptance, is simply ineffectual, and legally amounts to nothing more than a rejection.

No. 05-22-00720-CV (Sept. 13, 2023) (mem. op.) (citations omitted).

The resolution of Verhalen v. Akhtar turned on the trial court’s rejection of a late  summary-judgment response. The Fifth Court affirmed the take-nothing judgment that resulted from that decision, making several observations of note for the careful practitioner.

1. Good cause. Counsel’s affidavit said:

“Due to an inadvertent calendaring error, the deadline for Plaintiffs to respond to the Motions for Summary Judgment filed by Defendants Adriana Akhtar and Evan Johnston did not appear on the firm’s company calendar. . . . As soon as this oversight became known, I immediately prepared the responses as well as a Motion for leave of the Court to file late responses ….”

At the summary-judgment hearing, counsel further explained that when the summary-judgment hearings were rescheduled from October 5 and 13 to October 12, “unfortunately our calendaring system did not pick that up, and it was a mere mistake on [our] part.” The Court found this record insufficient:

“We agree that the “slight excuse” standard applies, but the excuse offered here is only that the deadline to file responses did not appear in counsel’s calendar. Therefore, trial court could not conclude from that explanation that failure to prepare responses was an accident or mistake.  For example, nothing in the affidavit indicated that the hearings themselves did not appear in the counsel’s calendar such that counsel would be aware that responses would be due the week prior.” (citations omitted).

2.  Continuance. Counsel filed a motion for leave several days before the summary-judgment hearing, but did not move for continuance of the hearing unti making an oral motion at the hearing itself. Further complicating the picture, “although the motion for leave to file late responses also requested leave to file appendices greater than 25 pages long, the motion contained no attached responses or evidence,” allowing the conclusion that the hearing was the defendants’ first opportunity to review the responses.

3. Scope of appeal. Related to (2): “[Plaintiffs] assert that their counsel served the responses with supporting evidence on opposing counsel six days prior to the hearing. To support this assertion, they rely on the affidavits of their counsel and paralegal filed in support of their motion for new trial. However, those affidavits were not included in support of the motion for leave to file late responses, and the Verhalens do not appeal the trial court’s decision to deny their motion for new trial. No. 05-22-01364-CV (Sept. 14, 2023) (mem. op.).

Whether Texas needed a 15th Court of Appeals was (and on some points, continues to be) a matter of considerable debate. The supreme court’s recent opinion in In the Interest of AB and DB highlights another aspect of Texas’ intermediate court system that just hasn’t aged well.

Appeals from Gregg County proceed to both the Sixth and Twelfth Courts of Appeal; in that case, one parent appealed a parental-rights judgment to the Sixth Court, while the other appealed to the Twelfth. In the resulting confusion, the supreme court held that the father’s appeal was erroneously dismissed:

The Twelfth Court’s dismissal of the appeal upon Father’s motion did not divest the Sixth Court of jurisdiction. The Sixth Court concluded in error that the Twelfth Court’s dismissal fully adjudicated Father’s appeal.  Rule of Appellate Procedure 42.1(a)(1) provides that an appellate court may not dismiss an appeal if “such disposition would prevent a party from seeking relief to which it would otherwise be entitled.” The Twelfth Court’s dismissal, which explicitly withheld adjudication under Rule 42.1(a)(1), was without prejudice to Father’s pursuit of his appellate rights in the Sixth Court. The Sixth Court improperly interpreted the dismissal as a final disposition preventing Father from seeking further relief in a court of appeals.

No. 22-0864 (Tex. Sept. 15, 2023) (per curiam).

This situation is relevant to Dallas because appeals from Hunt County (Greenville) alternate between Dallas and the Sixth Court. While the supreme court’s opinion capably reviews the applicable procedure, the more relevant question is why? It’s not readily apparent what benefit results from a system that can produce this kind of satellite proceeding.

In the latest Baylor Law Review, you can read an article that I co-wrote with the capable Ben Taylor called “Judgment Rendition in Texas” – here’s a link, and this is the abstract:

.

Novak v. State Farm Lloyds reminds of the importance of following through on the motion practice necessary to establish the receipt of an instrument: “Though appellants attempted to invoke the civil procedure rule 306a(4) and (5) procedure to have the trial court determine the date they received notice of the dismissal as October 11, 2021, such that their motion to reinstate was timely and properly invoked the court’s jurisdiction, they did not request the trial court to issue a ruling to that effect, and the trial court did not do so in any order. ‘Without a finding of the date notice was actually received,’ and a written order to that effect, the motion to reinstate was untimely.” No. 05-22-00061-CV (Sept. 5, 2023) (mem. op.).

AMPM Enterprises v. Borders, a dispute about alleged failures to pay for gasoline deliveries to service stations, presented a good example of a basic issue, and an interesting example of a less common one.

• Proveup. “Here, Borders’ December 23, 2020 affidavit established that he was the vice president of Borders and was responsible for overseeing the maintenance of Borders’ books and records of sales and accounts and was the custodian of such records. The affidavit stated that the table showing a balance of $42,151.82 owed by AMPM and PTE was ‘a true and correct copy of Borders’ records reflecting charges incurred by AMPM and PTE for gasoline delivered to AMPM and PTE’s stores or related fees or services incurred pursuant to the agreement of the parties,’ and the table was ‘created in the ordinary course of business and reflects a systematic record of the amounts owed by AMPM and PTE to Borders.’”
• Performance. “It is not disputed that AMPM and Asghar entered into contracts with Borders in October 2010 to provide fuel at four locations, and Borders continued to provide fuel, and AMPM continued to pay for it, until some time in 2017. Borders and PTE commenced an oral relationship involving requests and delivery of fuel in 2017. During that transactional history, AMPM, Asghar, and PTE did not complain about fees included in the price of fuel or challenge the validity of their contracts with Borders. Under the facts and circumstances of this case, we conclude neither the absence of a price specified in the underlying contracts nor the absence of provisions for the payment of “monthly fees, network fees, and mystery shoppers fees” raised a fact issue as to the amounts owed to Borders under the contracts.”

While In the Matter of J.W. involved an unusual problem–an Anders brief that, for the second time, appeared inadequate–it provided a reminder about a basic distinction that is sometimes overlooked. “Frivolity,” as to an appeal issue, is not the same as “reversibility”:

The two concepts are certainly not the same. An appeal is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.”  Arguments are frivolous when they “cannot conceivably persuade the court.”  An appeal is not wholly frivolous when it is based on “arguable” grounds.  Reversal only occurs if arguable error is found to have occurred, and was harmful. . Many nonfrivolous arguments identify errors that do not result in reversal.

No. 05-22-00556-CV (Aug. 28, 2023) (mem. op.) (citations omitted).

Pizza Hut LLC v. Pandya resolves two issues about waiver of jury trial:

• Burden. “[T]he party objecting to the enforcement of a waiver in a facially valid contract bears the burden of showing the waiver’s unenforceability.”
• Fraud? “[A] fraud claim must be alleged against the jury waiver specifically.”
• Knowing? These, nonexclusive factors answer the question whether a pre dispute jury waiver is knowing or voluntary: “(1) whether both parties had an opportunity to negotiate the terms of the agreement, (2) whether the provision waiving jury trial was conspicuous, (3) the relative bargaining power of the parties, and (4) the business acumen or professional experience of the party opposing the waiver,” as well as “whether the party was represented by counsel.”
• Scope. When the parties had a series of agreements, language in one agreement’s waiver that appies to “any litigation by or among” the parties reaches claims made under those agreements.

No. 22-4055 (Aug. 22, 2023).

The plaintiff in Galovelho LLC v. Abbott argued that a combination of emergency orders during the COVID-19 pandemic amounted to a taking in violation of the Texas constitution, citing their effect on its restaurant business. The Fifth Court affirmed dismisal, finding neither a “categorical” nor a traditional taking under established case law. No. 05-21-00965-CV (Aug. 29, 2023) (mem. op.).

The court noted an interesting textual difference between the state and federal takings provisions:

There is no dispute that the Texas constitution’s takings provision is different from the United States Constitution’s provision. The Fifth Amendment provides: “nor shall private property be taken for public use, without just compensation,” while the Texas counterpart provides: “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation.”

That said, the court went to observe: “[W]e await [the supreme] court’s directive that the provisoins are to be analyzed differently when a takings claim is made for property temporarily ‘damaged.'”

The Appellate Section of the Dallas Bar Association recently sent around the following email, which I wanted to share more broadly, about two openings for briefing attorney positions at the Dallas Court of Appeals —

Colleagues:
Please see below for two appellate job openings that may be of interest.
https://jobs.dallasbar.org/jobs/view/staff-attorney/70601054/
Salary Range: up to $112,790.00
Location: Dallas, TX (hybrid, in-person and telework)
Position Available: Immediately
Justice Emily Miskel of the Court of Appeals, Fifth District of Texas, is accepting applications for a full-time, hybrid staff attorney position in her chambers. The Fifth District Court of Appeals has intermediate appellate jurisdiction of both civil and criminal cases appealed from the district and county courts in the counties that make up the Court’s District (Dallas, Collin, Kaufman, Rockwall, Grayson, and Hunt).

https://jobs.dallasbar.org/jobs/view/staff-attorney/70315081/
Salary Range: up to $112,790.00
Location: Dallas, TX (hybrid, in-person and telework)
Position Available: October 1, 2023
Justice Cory Carlyle of the Court of Appeals, Fifth District of Texas, is accepting applications for a full-time, hybrid staff attorney position in his chambers. The Fifth District Court of Appeals has intermediate appellate jurisdiction of both civil and criminal cases appealed from the district and county courts in the counties that make up the Court’s District (Dallas, Collin, Kaufman, Rockwall, Grayson, and Hunt).