In In re State Farm Mut. Auto. Ins. Co., the Fifth Court held that the trial court abused its discretion by ordering an attorney to pay up to $88,240 as a sanction before final judgment, without making express written findings as to why the sanctions did not impair State Farm’s access to the courts.

Reviewing the supreme court’s precedent in the area, the Court held that when a litigant contends that a monetary sanction precludes access to the court, the sanctioning court must either (1) provide that the sanction is payable only at a date that coincides with or follows entry of a final order terminating the litigation, or (2) make express written findings, after a prompt hearing, as to why the award does not have such a preclusive effect. No. 05-24-00229-CV (Aug. 23, 2024) (mem. op.).

Ostteen v. Holmes presented a conflict between a developer and a neighborhood activist. The Fifth Court affirmed the trial court’s denial of Ostteen’s motion to dismiss under the TCPA, concluding that Holmes’s claims were not based on or in response to TCPA-protected activity: “Holmes’s allegations and claims indicate his suit was based on or in response to Ostteen’s trespassing, interference or harassment of Holmes’s agents and contractors, and disparaging remarks about Holmes or the property allegedly made to locals or social media followers.”

The Court also reversed the trial court’s award of attorney’s fees because Homes did not provide sufficient detail about the particular services performed, who performed them, and the reasonable amount of time required for those services. No. 05-23-01150-CV, Aug. 22, 2024 (mem. op.).

In Feeney v. Morfin Capital Group, the Fifth Court considered whether the fiduciary-shield doctrine could protect a corporate officer from personal jurisdiction in Texas. The officer, at the time CEO of One Health Medical Systems, was alleged to have traveled to Texas to negotiate the purchase of MedOne’s assets. During these meetings, Feeney and other defendants allegedly made false representations about One Health’s financial capability to complete the transaction, inducing MedOne to enter the asset purchase agreement.

The Court found that the officer’s actions, which included making specific fraudulent statements during face-to-face meetings in Texas, were sufficient to establish personal jurisdiction. The fiduciary-shield doctrine does not apply when an officer is alleged to have personally committed a tort. No. 05-22-01375-CV, August 21, 2024 (mem. op.).

The Texas Supreme Court ended debate over the constitutionality of the 15th Court of Appeals in In re Dallas County, No. 24-0426 (Aug. 23, 2024), concluding that its statewide jurisdiction was permissible:

So whatever else it means for the State to be divided into appellate districts, it does not mean that each district will be a distinct division of the State, that any case is free from being sent across Texas to a far-flung court of appeals, or that one court may not be given effective statewide reach over at least some cases. These departures from a purely geography-based appellate system—in which each appellate court would resolve every appeal arising from its geographic territory—confirm that flexibility is a paramount value of [Tex. Const.] Article V, § 6(a).

No. 24-0426 (Tex. Aug. 23, 2024).

In Hurt v. Goswami, the Fifth Court reversed part of the trial court’s summary judgment concerning the award of damages for repairs to a leased property. The Court found that the evidence provided by the landlord was insufficient to establish the reasonableness and necessity of the claimed repair costs. Specifically, the Court noted that “[m]ere proof of amounts charged or paid does not raise an issue of reasonableness,” and without expert testimony or other supporting evidence, the summary judgment awarding over $32,000 in repair costs could not stand. No. 05-22-00389-CV (Aug. 6, 2024).

Deutsche Bank Nat’l Trust Co. v. Kingdom Group Investments, Inc. reversed a default judgment due to improper service of process. Kingdom Group tried to serve Deutsche Bank using substituted service through the Secretary of State, claiming that the bank was a foreign fiduciary without a registered agent or place of business in Texas.

But Tex. Civ. Prac. & Rem. Code § 17.028 specifies that service on a financial institution must be carried out by serving either the registered agent of the institution or, if no registered agent exists, serving the president or a branch manager at any office within Texas. These steps are not optional; they are exclusive and mandatory for valid service on financial institutions. Kingdom Group’s failure to follow these specific procedures meant service was invalid. No. 05-23-00656-CV. Aug. 12, 2024 (mem. op.)

Hipps v. CBRE Inc. summarizes the present state of the law on several key issues about the enforcement of noncompetes (while federal-court litigation proceeds, nationwide, about the viability of the FTC’s new regulation that would substantially ban them). The Fifth Court’s holdings include:

• Global? The worldwide restriction imposed by the agreement was unjustified because there was no evidence that the appellant’s work responsibilities extended to all the areas covered by the covenant.
• Harm. The Court agreed that irreparable harm had been established, citing evidence showing that the appellant had already engaged in activities that violated the noncompetition and non-solicitation provisions, including furthering business relationships with the appellee’s clients on behalf of a competitor.
• Consideration.  The appellee had provided substantial consideration, including access to additional training, clients, proprietary information, and a substantial financial incentive.
• Specificity. The opinion quotes the provisions of the temporary injunction that satisfied the requirements for specificity about (a) the “reasons for issuance” of the injunction under Tex. R. Civ. P. 683, (b) the relevant confidential information, (c) prohibited conduct, and (d) prohibited clients (noting that “the trial court’s injunction order restrains only [the employee]” and not the new employer).

No. 05-24-00056-CV, August 16, 2024 (mem. op.).

In re Marsana de Monserat denied a mandamus petition about the grant of a new trial. As one basis for its holding, the Fifth Court said:

The mandamus record also fails to show that relator made a predicate request to the trial court to correct the alleged deficiencies in its written order. See In re Eagleridge Operating, LLC, 642 S.W.3d 518, 525 (Tex. 2022) (orig. proceeding) (“Due to the extraordinary nature of the remedy, the right to mandamus relief generally requires a predicate request for action by the respondent, and the respondent’s erroneous refusal to act.”). Based on the circumstances here, we conclude that this is not one of those rare occasions where the predicate requirement may be relaxed.

No. 24-00466 (Aug. 9, 2024) (mem. op.). The opinion does not state whether the petitioner’s response to the motion for new trial could have potentially satisfied this requirement.

In Horton v. Kansas City Southern Ry. Co., the Texas Supreme Court walked back a line of authority about the Casteel harmful-error presumption for certain types of charge error, stating that the presumption does not apply to legal-sufficiency issues that arise from proof failure rather than legal infirmity:

For this reason, and in an effort to clarify the law and simplify the process, we hold that reviewing courts should not presume harm when a broad-form submission permits a jury to make a finding based on a theory or allegation that is invalid only because it lacks evidentiary support. Because the broad-form negligence question submitted in this case was erroneous only for that reason, we conclude that Casteel’s presumed-harm rule does not apply. 

Fair enough. Now what? The court explained:

After determining whether [the Casteel presumption] applies, and assuming the parties point to the record to support their conflicting positions, reviewing courts should focus on the ultimate question of whether “a review of the entire record provides [a] clear indication that the contested charge issues probably caused the rendition of an improper judgment.”  Focusing on that ultimate issue, reviewing courts should explain in their opinions why the record as a whole does or does not establish harm in each particular case.

No. 21-0769 (June 28, 2024) (citations omitted). Time will tell whether this clarification enhances the efficiencies of broad-form submission, or produces Baroque case law about various indicia of harm, since a jury’s actual thought process is privileged.

Two statements in Cooper v. TCH Altera AHCC, LLC capture key concepts in appellate waiver for Texas practice today:

1. Briefing waiver. “Because briefing waiver is disfavored, we will construe appellants’ brief to also challenge the declaratory relief to the extent reasonably possible. See Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex. 1995) (per curiam) (“An appellate court should consider the parties’ arguments supporting each point of error and not merely the wording of the points.”).
2. Malooly waiver. “Altera raised multiple grounds attacking appellants’ breach of contract counterclaims, including a ground that appellants could not show that a condition precedent—approval of appellants’ fee by the City of Allen—had been satisfied. Appellants do not address this condition precedent argument in their appellate brief, so we must affirm the judgment on their breach-of-contract counterclaims. See Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 226–27 ‘(Tex. 2022); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).”

Madonna reached #2 on the charts in 1985 with “Material Girl.” In Bain & Schindele Tax Consulting, LLC v. EW Tax & Valuation Group, LLP, the Fifth Court found that when the trial court found a party’s breach of a non-solicitation obligation to be material and unjustified, it erred by not fully excusing the other contracting party from further performance of the contract obligations (in that case, certain note payments). No. 05-23-00560-CV (Aug. 7, 2024).

The able David Gunn has written a provocative article in the Baylor Law Review about damages under Texas law for fraudulent inducement claims. While that topic has been the subject of considerable and thoughtful attention by the Texas Supreme Court in recent years, his article points out that those opinions don’t fully mesh with the supreme court’s emphasis on horizontal stare decisis / orderliness — and much older cases from that court on that topic in years past.

This question is particularly relevant as the new business courts and 15th Court of Appeals work to identify their controlling precedent, a process that I’ve analyzed in this short article.

The supreme court is seeking comment on new rules about legal work by nonlawyers, designed to solve significant problems with access to justice. Justice Brett Busby recently provided some useful background about these important new measures.

The U.S. Eventing Association escaped personal jurisdiction in Texas when the plaintiff’s jurisdictional argument didn’t align with its live pleading, either in substance, or in relationship to the elements of the pleaded claims (the Moki Mac “operative facts” requirement). The Fifth Court also emphasized that the Association’s relevant decisionmaking occurred in Pennsylvania, and other allegations involving Texas activity involved the unilateral acts of other parties. US Eventing Association v. Pegasus Eventing, No. 05-23-01287 (Aug. 5, 2024) (mem. op.).