This is a cross-post from 600 Camp:

Thryv, Inc. v. NLRB, a review of the NLRB’s handling of an unfair labor practices case, presents deft usage of a typographical device called the “dinkus”:

Thanks to the observant Cedric Bond for pointing this out!

The Fifth Court continued to cast a skeptical eye at spoliation instructions in Copper Creek Distributors, Inc. v. Valk. The Court found an abuse of discretion in two regards; first, as to the trial court’s assessment of the evidence about certain QuickBook records:

However, there is no evidence CCDI intentionally or negligently failed to preserve the QuickBooks data. In his deposition, Escoffie testified he had not attempted to log into QuickBooks and he had not called QuickBooks to attempt to access his books ks and records. He stated he would work with his attorney to determine whether he had access to QuickBooks — the record does not show whether this happened and, if it did, whether any documents or data were recovered. Considering the failure to provide any evidence about when CCDI “closed out” its online QuickBooks account and when CCDI migrated from the online platform to the desktop platform along with the lack of evidence about whether Escoffie searched for QuickBooks records and recovered any, the trial court abused its discretion by concluding Platinum met its burden to show CCDI intentionally or negligently breached its duty to preserve accounting books and records, including QuickBooks files. Accordingly, we conclude the trial court erred by instructing the jury that CCDI destroyed or failed to preserve accounting books and records, and the jury could consider that evidence would have been unfavorable to CCDI.

and second, by not considering whether lesser sanctions would be effective. The Court then found harm, and as a result, reversed and remanded. No. 05-23-00123-CV (May 24, 2024) (mem .op.).

A long-anticipated constitutional challenge to the new Fifteenth Court of Appeals was recently filed by Dallas County, who was able to avoid some justiciability issues as the likely subject of a transfer order to that Court later this year.

Kroger Specialty Infusion v. Sturns, No. 05-22-01276-CV (May 16, 2024), presents four important, “nuts and bolts” tips about summary-judgment affidavits:

1. Conclusory objection. An argument that an affidavit is “conclusory” is considered a “defect of substance” that may be raised for the first time on appeal.
2. Conclusory example. This statement, as a matter of law, is conclusory as to whether someone improperly solicited customers. If you’re drafting an affidavit, say more than this:
   

   “While employed by BioPlus, and shortly before becoming employed by BioPlus, Sturns solicited some of the same customers, referral sources and/or patients in her former Sales Territory, in violation of her Agreement with [Kroger]. Sturns: (a) provided BioPlus business cards and marketing materials to one or more customers, referral sources and/or patients within the Restricted Area and/or the Sales Territory (both as defined in the Agreement); (b) conducted meetings with one or more such customers, referral sources and/or patients; and (c) met with or spoke to such customers, referral sources and/or patients.”

3. Other objections. “Objections to the testimony of an interested witness or the absence of personal knowledge are defects in form” that must be raised in a specific objection that the trial court rules upon (emphasis added).
4. Still an other objection. The need for an objection includes testimony that starts with weasel words like “I have reason to believe” or “[u]nless stated otherwise, I have personal knowledge.” Those are still objections to form that must be raised by objection, ruled upon, etc.

(LPHS represented one of the successful appellees in this case.)

The facts of Lawton Candle v. BG Personnel were as follows:

1. Lawton Candle is an LLC organized under Oklahoma law. It is not registered to do business in Texas and does not have a registered agent in Texas.
2. BG Personnel sued Lawton Candle in Dallas.
3. BG Personnel had process served on Lawton Candle’s registered agent in Tulsa.
4. BG Personnel obtained a default judgment against Lawton Candle.

Lawton Candle filed a restricted appeal, arguing that under Texas law, the only acceptable means of service on a foreign entity is via the Texas Secretary of State. The Fifth Court agreed – rejecting BG Personnel’s argument that no Texas law foreclosed service in the above manner – and vacated the default judgment. No. 05-23-00449-CV. (May 13, 2024).

Last week’s Alonzo v. John opinion from the supreme court, in addition to its holding about impermissible jury argument, concluded with this provocative footnote about last year’s Gregory v. Chohan opinions:

Last term, the Court clarified that claimants cannot rely on unsubstantiated anchoring to sustain a damages award. See Gregory v. Chohan, 670 S.W.3d 546, 558 (Tex. 2023 (plurality op.) (“Unsubstantiated anchors . . . have nothing to do with the emotional injuries suffered by the plaintiff and cannot rationally connect the extent of the injuries to the amount awarded.”); id. at 569 (Devine, J., concurring) (“[Claimants] cannot engage in ‘unsubstantiated anchoring’ by asking fact-finders to rely on evidence that has nothing to do with the pain or anguish they’ve suffered.”); id. at 576 (Bland, J., concurring) (“Counsel’s unchecked directives to the jury to employ mental anguish measurements based on standards that depart from the evidence render the verdict legally infirm under long-standing common law.”).

No. 22-0521 (Tex. May 10, 2024).

Only a few weeks after the Fifth Circuit reversed on incurable argument grounds, the Texas Supreme Court did the same in Alonzo v. John holding that the injection of race-based argument into a significant personal-injury trial required reversal. The court noted, inter alia, this excerpt from the plaintiff’s rebuttal closing argument:

We don’t want the 4 or 5 million dollars. And now we certainly don’t want this $250,000. … We don’t want their 4 or 5 million dollars. That’s not fair. Because it’s a woman, she should get less money? Because she’s African American, she should get less money? No. We’re going to fight because we believe in the jury system.

No. 22-0521 (May 10, 2024) (per curiam).

In the musical Six, Anne Boleyn sings the song “Don’t Lose Ur Head,” with the refrain “Sorry, not sorry!” Similarly, in In re Lakeside Resort JV, LLC, the trial court’s default judgment ended with the confusing phrase:

“This Judgment finally disposes of all claims and all parties, and is not appealable. The Court orders execution to enter for this judgment.” 

The supreme court held that this judgment was not final under Lehmann, particularly given that it arose in the default-judgment context. No. 22-1100 (May 11, 2024) (emphasis added).

“Under [Tex. Civ. Prac. & Rem. Code] Section 41.003, a court may not imply a unanimous jury finding in imposing exemplary damages. The burden to secure a unanimous verdict is on the plaintiff and ‘may not be shifted.'” Oscar Renda Contracting, Inc. v. Bruce, No. 22-089 (Tex. May 3, 2024).

It’s an election year, which means election litigation, which brings this reminder from the Fifth Court about its jurisdiction in such cases:

“We do not have jurisdiction to grant any sort of writ other than a writ of mandamus in an original proceeding under the election code. ‘A suit for injunctive relief in an appropriate trial court is the proper avenue for relief if a person is in danger of being harmed by a threatened violation of the election code.'” 

In re Wernick, No. 05-24-00524-CV (May 3, 2024).

In Sanders v. The Boeing Co., No. 22-20317 (May 2, 2024), the Fifth Circuit summarized the two key holdings that resulted from certification of a question about the Texas limitations-savings statute (reproduced in full below):

1. “[Tex. Civ. Prac. & Rem. Code] Section 16.064(a)(1) applies whenever the previous court dismissed an action for lack of jurisdiction. Thus is so even when the court ‘erred and actually had jurisdiction or could have had jurisdiction had the claims been pleaded differently.'” (citation omitted)
2. “[A] dismissal or other disposition does not ‘become final’ for purposes of Section 16.064(a)(2) until the parties have exhausted their appellate remedies and the court’s power to alter the dismissal has ended.'” (citation omitted, cleaned up).

The Fifth Court denied en banc review of Monticello Asset Managment v. Wells, a premises liability case involving a gruesome accident involving contact between a flagpole and an electric line. Four Justices joined a dissent to the denial of en banc review.

The supreme court has approved a new rule about use of a sworn appendix instead of an official clerk’s record, aligning “conventional” appeal practice with the longstanding custom in mandamus proceedings.