The supreme court granted mandamus relief with respect to the denial of a pro hac vice motion in In re AutoZoners, LLC. Among other matters that didn’t support the trial court’s ruling, the Court noted:

Listing out-of-state attorneys whose pro hac vice motions have not yet been granted on a signature block below the name and signature of a Texas attorney is not a problematic practice and provides no grounds for denying a pending or subsequent pro hac vice motion.

The Court further held: “Kern’s participation in one or two Texas cases in the last two years—and five cases in fifteen years—is not ‘appearing in courts in  Texas on a frequent basis” as contemplated by [Tex.R. Govern. Bar Adm’n] 19. Facilitating this kind of rare, occasional participation in Texas cases by an out-of-state attorney is precisely why we allow pro hac vice admission in Texas courts. No. 22-0719 (Tex. April 26, 2024).

The supreme court provided guidance about the limits of “alter ego” liability in JNM Express, LLC v. Lozano, holding:

     The “injustice” prong requires more than a judge’s or juror’s “subjective perception of unfairness.”  Instead, it references “the kinds of abuse . . . that the corporate structure should not shield,” like “fraud, evasion of existing obligations, circumvention of statutes, monopolization, criminal conduct, and the like.” “Such abuse is necessary before disregarding the existence of a corporation as a separate entity.” A “plaintiff must prove that he has fallen victim to a basically unfair device by which a corporate entity has been used to achieve an inequitable result.”
    The court of appeals erred because it did not address the injustice prong. Had it done so, it would have recognized that the evidence here does not satisfy that prong’s standard. The Lozanos point to nothing in the record showing that the Marins abused the corporate form such that failing to pierce the corporate veil would result in “injustice” in the sense that our alter ego cases describe that concept. One relevant consideration in the tort context is whether the corporation was “reasonably capitalized in light of the nature and risk of its business.” Yet the Lozanos produced evidence at trial to demonstrate that the companies did have the resources to protect their drivers.

No. 21-0853 (April 19, 2024) (per curiam) (citations and footnotes omitted, emphasis added). (In the graphic, DALL-E illustrates “piercing the corporate veil”).

The supreme court recently reversed a court of appeals’ (not Dallas) conclusion about waiver of charge error, holding:

At the charge conference, defense counsel objected to the use of the federal regulations’ definitions at all, arguing that the trial court should have used the Texas Pattern Jury Charge instead. Counsel alternatively objected to the specific application of the federal regulations’ definitions to Omega. …

Petitioners’arguments on appeal are more nuanced than at the charge conference, but the upshot is the same: the jury charge should have used the common-law definitions from the Pattern Jury Charge, not the federal regulations’ definitions. … 

Petitioners repeatedly made similar arguments both before and after the charge conference, using common-law considerations (not the federal regulations’ definitions) to argue that no defendants, and certainly not all, were Mr. Lozano’s employer. Their answer to the Lozanos’ petition also stated that Mr. Lozano was not their employee. This sufficiently put the trial court on notice of the objection.

JNM Express, LLC v. Lozano, No. 21-0853 (Tex. April 19, 2024) (footnotes omitted). (The graphic was provided by DALL-E, asked to illustrate the concept of an argument becoming “more nuanced” from trial to appeal, wihch apparently involves a transition from printed documents to a tablet.)

Sidney Powell may have avoided trouble with the State Bar for her involvement in questionable litigation about the 2020 election, but a Fifth Court panel majority denied Ken Paxton’s immunity-based appeal about a similar sort of disciplinary action, arising from Texas’s effort to intervene in election litigation at the Supreme Court.

A dissent–by the Court’s lone Republican member–had a broader view of the Attorney General’s immunity. No. 05-23-00128-CV, Paxton v. Commission for Lawyer Discipline (April 18, 2024) (mem. op.). A petition for review is a certainty.

The Fifth Court affirmed a summary judgment for Sidney Powell against disciplinary claims brought by the State Bar in the wake of the ill-fated “Kraken” litigation of 2020-21. The panel — three Democrats, by the way — reviewed a number of record and record-citation issues with the Bar’s filings and concluded:

The Bar employed a “scattershot” approach to the case, which left this court and the trial court “with the task of sorting through the argument to determin what issue had actually been raised.”

Commission for Lawyer Discipline v. Powell, No. 05-23-00497-CV (April 17, 2024) (mem. op.) (cleaned up).

The classic children’s book “Caps for Sale” involved a peddler who had many caps. So too, section 52.006 of the Texas Civil Practice & Remedies Code, which caps the amount of a supersedeas bond at $25 million, but as to which “[t]here is a split of authority on whether the $25 million statutory cap … applies per individual judgment debtor or per judgment.”

In Greystar Devel. & Constr., L.P. v. Williams, the Fifth Court held that the cap applies per debtor, joining the Tyler Court of Appeals in so holding, but diverging from the analysis of the San Antonio Court of Appeals. Review by the state supreme court seems likely on this important but elusive issue of statutory interpretation. No. 05-23-001168-CV (April 10, 2024).

The most recent Advocate (the quarterly publication of the State Bar of Texas Litigation Section) has several articles about how the new Fifteenth Court of Appeals will get off the ground. I have a short piece on where the new court is likely to look for precedent, since it will have none of its own to start. I hope you find it useful in thinking about this important new appellate forum.

The Texas Supreme Court rejected a challenge to the unconscionabilty of an arbitration award (and thus, the delegation of arbitrability to the arbitrator) in Lennar Homes of Texas Inc. v. Rafiei, No. 22-0830 (Tex. Apr. 4, 2024). The challenge involved the cost of arbitration; the Court held:

Rafiei has presented no evidence that he sought a deferral or reduction of the administrative fees or an agreement to proceed with a single arbitrator. Without evidence that Rafiei sought to estimate the actual costs associated with arbitrating the arbitrability question, it is speculative to conclude that the delegation provision is itself unconscionable.

Your faithful blogger has been in Scotland the last few days, visiting the University of St. Andrews with my daughter. For inexplicable reasons, Scottish wi-fi services uniformly block the websites of the Texas Supreme Court and the Dallas Court of Appeals. Commentary will resume this week upon my return!

In In re CG Searcy LLC, the Texas Supreme Court clarified what hearing exhibits must be included in a mandamus record:

Rule 52.7 requires a relator to file (1) “document[s] . . . material to the relator’s claim for relief” and (2) “a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence.” TEX. R. APP. P. 52.7(a) (emphases added). Because the prepositional phrase “including any exhibits offered in evidence” modifies “transcript of any relevant testimony,” an exhibit that is not relevant or material to the original proceeding need not be included in the mandamus record.

No. 24-0170 (Tex. March 28, 2024).