In a dispute about whether a property owner’s operation of a poker club violated City of Dallas ordinances, the Fifth Court found sufficient evidence to justify a tempoary injunction under one statute (that didn’t require proof of immediate, irrepable injury), and thus held:

Here, we must uphold the trial court’s decision to grant the temporary injunction on any legal theory supported by the record. Because the City pleaded and proved facts to show it was entitled to injunctive relief under section 211.112(c), any error by the trial court in also granting relief pursuant to sections 54.016 and 54.018 is harmless.

Badger Tavern LP v. City of Dallas, No. 23-496 (March 29, 2024) (mem. op.).

A valet service damaged the plaintiff’s 2018 Lamborghini Huracan (a 2017-model example of which appears in the graphic). The Fifth Court affirmed a small award for loss of use, noting the trial court’s consideration of evidence about other vehicles available to the plaintiff and the effects of the COVID-19 pandemic. It rejected the plaintff’s request for damages for dimunition of value, noting:

Jones failed to provide any factual basis on which his valuation opinions rested. While Jones testified about how much he paid for the car seven months before the accident, he provided no factual basis to support his speculation about the value of the car at the time of the accident or after it was repaired. The basis for Jones’s opinions were conversations with people who sell “these cars” and “internet sites for all those cars out there.”

Jones v. Mr. Valet, No. 05-23-00355-CV (March 20, 2024) (mem. op.).

The Fifth Court held in Rudnicki v. Thompson Petroleum Corp. that a former oil-company executive was not entitled to indemnity for certain litigation expenses, agreeing with the company’s position that: ““[Partnership’s] Agreement could have provided for indemnification of expenses incurred ‘based on,’ ‘arisin(g from,’ or similarly ‘related to’ a covered person’s performance of the obligations of the GP with respect to [the Partnership]. But that simply is not what it says.” The company was authorized to indemnify the executive, but was not required to do so. No. 05-23-00125-CV (March 20, 2024) (mem. op.).

Ziegler v. Origin Bank presents a waiver issue involving a summary-judgment response, arising from two problems:

1. Record. “The record shows that Hatter filed a response to Origin’s second traditional motion for summary judgment, arguing that there were genuine issues of material fact that precluded summary judgment and attaching evidence in support of his argument. The docket sheet reflects that Ziegler filed a “Motion to Adopt Response,” and the trial court’s order says the court considered “Defendant Robert Ziegler’s Motion to Adopt Walt Hatter’s Response.” However, the record on appeal does not contain Ziegler’s motion. As a result, we do not know the substance of that motion.”
2. Substance. “The trial court’s order granting Origin’s second motion for summary judgment states, in part, that the trial court considered Origin’s second traditional motion for summary judgment, Hatter’s response, “Defendant Robert Ziegler’s Motion to Adopt Walt Hatter’s Response,” Origin’s reply, and the parties’ supplemental letter briefing. The order also sustained Origin’s objections to Hatter’s letter brief, granted Origin’s second traditional motion for summary judgment, and awarded Origin damages against Hatter and Ziegler jointly and severally. However, the order does not grant Ziegler’s motion to adopt Hatter’s response. Rather, the order expressly states that “[a]ll relief not specifically granted herein is denied.”

No. 05-22-00160-CV (March 21, 2024) (mem. op.). Had the appellant simply filed a response that expressly incorporated the relevant response, the record would have been clearer on this point.

In re Lee reminds that, notwithstanding the strong interest in courtroom proceedings untainted by outside influence, the First Amendment presents a powerful countervailing interest such that:

“Gag orders are presumptively unconstitutional. To overcome this presumption, there must be an imminent and irreparable harm to the judicial process and the judicial action must represent the least restrictive means to prevent that harm. These elements must be supported by specific findings and evidence.”

No. 05-23-00768-CV (March 15, 2024) (mem. op.).

Zurvita Holdings, Inc. v. Jarvis offers a detailed analysis of an arbitration-waiver issue. Its holdings are, inter alia:

• In its 2023 TotalEnergies opinion, the supreme court clarified “who decides arbitrability when the agreement incorporates the AAA or similar rules that delegate arbitrability to the arbitrator,” but “dot not address waiver of the right to arbitrate.”
• “[A]n agreement that is silent about arbitraing claims against non-signatories does not unmistakably mandate arbitration or arbitrability in such cases.”
• “Substantial invocation of the judicial process” was established by a record involving an 11-month delay in asserting an arbitraion right, actively pursuing expedited discovery, and pursuing a summary judgment motion. (Consistent with current Texas law, the Court also reviewed whether the delay caused prejudice–an issue that the Texas Supreme Court is likely to consider after the U.S. Supreme Court recently did away with that additional waiver requirement under the Federal Arbitration Act.)

No. 05-23-00661-CV (March 14, 2024) (mem. op.)

The key facts of Vetri Ventures LLC v. Westridge Eagles Nest Owners Association were as follows:

• Judge A (a senior judge appointed by assignment) presided over a bench trial, in a dispute about assessments by a homeowners’ association, on April 6, 2021;
• A May 24 docket entry, followed by a May 25 email from the court coordinator, indicated Judge A’s ruling on all matters except the amount of attorneys’ fees, and requested submission of an appropriate order;
• In November 21, after a hearing on the motion for judgment, Judge B (the elected judge for the court) entered final judgment that included a fee award.
• Judge B then signed findings of fact and conclusions of law, after which Judge A signed amended findings and conclusions.

Held:

• The coordinator’s email was not an effective “rendition” of judgment: “The email was sent only to the parties’ counsel. The trial court did not orally announce, in open court, its decision on the issues addressed in the court administrator’s email. Nor did the court deliver the email to the clerk of the court for filing, entry, or inclusion in the public record or take any actions reasonably calculated to effectuate such delivery.”
• Because the email was not a rendition, Judge B lacked authority to “merely memorialize” that rendiition with a final written judgment.

No. 05-21-01172-CV (March 15, 2024) (mem. op.) Enthusiasts of this sort of Texas appellate arcana will enjoy my Baylor Law Review article about “Judgment Rendition in Texas,” co-authored with the able Ben Taylor.

Simons v. Medical Hyperbarics, Inc. reviews the need for a jury trial to determine the reasonableness and necessity of attorneys’ fees.

• Substance. “[CPRC] Section 38.001(b) permits the recovery of attorneys’ fees but does not dictate how to determine the attorneys’ fee amount, except that the award must be ‘reasonable.’ … When faced with a similar silent fee-shifting provision in [Transcon. Ins. Co. v.] Crump, the Supreme Court of Texas construed the statute as entitling the parties to have the jury determine the disputed issue of the reasonableness of the attorneys’ fees. … Similarly, because section 38.001(b) does not dictate the manner to determine the amount of attorneys’ fees, providing only that the award must be ‘reasonable,’ reasonableness remains a fact issue that a jury, upon proper request, may resolve.” 
• Preservation. “Simons filed his request for a jury trial and paid his fee. He objected to the trial court considering the fee issue in his response to MHI’s application for fees and objected throughout the hearing on MHI’s application for fees. … Because Simons was entitled to a jury trial on attorneys’ fees as a matter of right, his timely request was presumptively reasonable and should have been granted.”

No. 05-23-00053-CV (March 16, 2024) (mem. op.) (emphasis added).

In re Lozovyy presents a variation on a “failure to rule” mandamus proceeding; specifically, a “failure to set” the hearing required by the TCPA. The hearing is important because “[a]bsent a timely hearing, the movant forfeits TCPA relief and the court of appeals loses jurisdiction to consider any interlocutory appeal.” The Fifth Court granted mandamus relief after issuing an interim stay, directing the trial court to have a hearing in the remaining time. The opinion details the several steps taken by the petitioner to build the necessary record in a relatively compressed time period. No. 05-24-00195-CV (March 11, 2024).

The settlement agreement in Clendening v. Blucora, Inc. resolved an arbitration by requiring a series of settlement payments by one party (the former employer), conditioned on the acceptable provision of information by the other (the former employee). The arbitrator “retain[ed] jurisdiction” to hear a dispute about the adequacy of that information and order a deposition “to occur not later than February 27, 2022.”

A dispute arose, and the arbitrator ordered a deposition to occur after February 27. The Fifth Court held that this award exceeded the arbitrator’s powers and vacated it. No. 05-22-01190-CV (March 7, 2024) (mem. op.).

The jury in Rhino Linings Corp. v. 2×2 Partnership, Ltd. indicated that (1) eleven of twelve jurors agreed, generally, (2) all twelve agreed to the exemplary predicates about gross negligence and fraud, and (3) all twelve agreed to the amount of exemplary damages. And as for (2), those questions were predicated on unanimous answers as to the related liabliity questions. This record did not establish a reason to reverse:

We know that the jurors were not unanimous in every one of their responses. However, we have a specific certification that they were unanimous on the ultimate exemplary-damages questions. … [And w]e do not have a record establishing that the jury did not follow those [predicate] instructions ….

No. 05-22-00522-CV (March 1, 2024) (mem. op.) (citations omitted, emphasis in original).

A warehouse owner sued Rhino, a provider of waterproof roof coatings, for negligence for recommending an allegedly substandard contractor. The trial court rendered a substantial judgment for the owner and the Fifth Court affirmed in Rhino Linings Corp. v. 2×2 Partnership, Ltd.

Rhino argued that the negligence claim was foreclosed by a warranty that established “THE SOLE AND EXCLUSIVE AGREEMENT, REMEDY AT LAW OR IN EQUITY FOR DEFECTS IN MATERIAL SUPPLIED BY RHINO.” (The legal effect of CAPITALIZING CONTRACT TERMS I leave for another day.)

The Fifth Court disagreed, concluding that the owner’s claim did not involve “defects in material,” but rather “its reliance on Rhino’s knowing misrepresentation concerning Potter’s being qualified to apply Rhino’s products on 2X2’s roof, which led to 2X2’s hiring him.”

If you are an enthusiast of the three-step process for judgment formation in Texas (rendition, signing, and entry), then you should read my 2023 Baylor Law Review article that I co-authored with Ben Taylor about the general topic, and then read Baker v. Bizzle, No. 22-0242 (Tex. March 1, 2024), in which the Texas Supreme Court applies that framework to a letter ruling.

Specifically, it held that no “rendition” occured when: “It is undisputed that the trial court did not orally announce, in open court, its decision on the issues addressed in the October 4 email. Nor is it alleged that the court delivered the email to the clerk of the court for filing, entry, or inclusion in the public record or took any actions reasonably calculated to effectuate such delivery.”

A thoughtful concurrence recommends attention to this long-standing process in modern-day rulemaking, observing: “Our system’s tedious distinction among “rendering” judgments, “signing” them, and “entering” them was necessary in early Texas, when judges would travel by horseback to attend court in far-flung locations. The confusion sown by these distinctions today, however, is needless and intolerable.”