In Exporttek, Inc. v. Vista Bank, the appellant offered these reasons for continuance of a summary-judgment hearing:

• The discovery has not expired.
• The discovery date expires on April 7, 2024.
• The motion for summary judgment addresses complex fact issues about what Defendant[] knew and when[,] which can only be resolved through further discovery.
• Plaintiff[s] intend to serve Defendant with written discovery prior to end of discovery deadline.
• Plaintiffs seek an amendment to the scheduling order to extend the time of the discovery to allow Plaintiffs to take the deposition of Defendant’s officer, Landon Willes[s].
• Specifically, the actions of the bank in the fast changing COVID regulatory climate while fast tracking loans for a “windfall” to clients requires serious investigation as to what Vista Bank was doing and whether they punished []Plaintiff[s] for Vista Bank’s hasty decisions.

The Fifth Court did not accept those reasons:

“These general and conclusory assertions do not satisfy the requirements of Rule 252. At best, Borrowers provided a vague description of the discovery they sought. Further, Borrowers failed to establish the materiality of any proposed discovery. Borrowers’ claims are for breach of contract and the contract at issue contained entire-agreement and no-waiver provisions. Motivations are not germane to the resolution of Borrowers’ breach of contract claims. Moreover, Borrowers did not provide any information regarding the diligence on their part in obtaining discovery prior to the hearing.”

The Court went on to review some unfavorable facts in the record about diligence. No. 05-24-00915-CV (Apr. 24, 2025) (mem. op.).

While the supreme court takes the entire case when it grants review, as a court of discretionary review it has discretion about what specific issues to address in its opinion. An example appears in First Sabrepoint Capital Mgmnt., LP v Farmland Partners Inc., which reversed on an issue about the timeliness of the trial court’s TCPA order, and then addressed a point about collateral estoppel:

While the court of appeals erred by declaring void the trial court’s order granting Sabrepoint’s TCPA motion, it correctly reversed the trial court’s order granting Sabrepoint’s motion for summary judgment based on collateral estoppel. Because collateral estoppel is the basis for the summary judgment motion and a basis for the TCPA motion, the doctrine’s application to this case will be at issue on remand. Accordingly, in the interest of judicial efficiency, we will address its application here.

No. 23-0634 (Tex. Apr. 25, 2025).

Addressing the unfortunate complexity that can arise from the interaction of judgment-finality principles and sanctions motions, the Fifth Court held in Bandas Law Firm, P.C. v. Modjarrad & Assocs., P.C.

“Based on the text of [Tex. R. Civ. P.] 329b(g), the supreme court’s opinion in [Lane Bank Equip. v. Smith Southern Equip., Inc.], and this Court’s applicable precedents construing them, we conclude that a postjudgment motion for sanctions may qualify as a plenary-power-extending rule 329b(g) motion to modify the judgment, but only if the motion for sanctions specifically requests a substantive change in the existing judgment.”

No. 05-23-01115-CV (Apr. 25, 2025) (mem. op.).

Willowgate Homeowners Ass’n v. Young rejected a HOA’s argument that the “crosshatched area” on a map was sufficient under the Statute of Frauds to describe an alleged common area. Specifically:

• Unlike the area in the map around a lake (with a description saying that “[a]ll areas except those crosshatched is common ground”), the designations for the private lots—including the lot at issue—did not use this clarifying language.
• Adding to the uncertainty, nothing in the record explained what the marks around that lot on the map were intended to mean—including crosshatched and non-crosshatched areas, as well as lines or arrows pointing to certain sections.
• Moreover, the map lacked a measurement scale, fixed markers, or other such data about the dimensions or boundaries of the crosshatched, non-crosshatched, lined, or arrowed areas.

No. 05-24-00173-CV, Apr. 21, 2025 (mem. op.).

“The difference between aming Carlos Whitfield and Donna M. Williams as WWW’s registered agent cannot be characterized as ‘minor.’ The critical distinction, however, is that an incorrectly named agent was not served pursuant to Tex. R. Civ. P. 106(a). Instead, process was served in accordance with the court’s [substituted-service] order under Tex. R. Civ. P. 106(b).” Allied World Nat’l Assurance Co. v. Nisus Corp., No. 05-24-00208-CV (April 16, 2025) (mem. op.).

A “one-satisfaction” rule required reversal in Dorvil v. Mason, when all roads led to the same $2 million in damages:

It is apparent from record before us, including the pleadings, the evidence admitted at trial and the closing argument of the Masons’ attorney, that the Masons sought to recover as actual damages on each of the causes of action asserted the $2 million dollars they loaned to Agile. The jury awarded the Masons $2 million dollars in actual damages on each of their direct claims against Dorvil, except their negligent misrepresentation claim, for which actual damages were not awarded. In keeping with the trial court’s order granting partial default judgment against Agile, the final judgment awarded the Masons breach of contract damages of $2 million against Agile and, additionally, held Dorvil jointly and severally liable for same. In addition, the judgment awarded the Masons damages of $2 million dollars on their direct claims against Dorvil. As a result, the final judgment in effect awarded the Masons actual damages against Dorvil in the amount of $4 million, resulting in an improper double recovery.

No. 05-23-01020-CV (April 10, 2025) (mem. op.) (emphasis added).

A recent order from the Fifth Court that a party provide copies of several un-findable opinions suggests that, yet again, someone misused generative AI technology and relied on “hallucinated” case law.

Two concepts frame the legal-sufficiency issue in Raoger Corp. v. Myers.

First, the Dram Shop Act imposes liability on providers of alcoholic beverages if they serve a customer who is “obviously intoxicated to the extent that he presented a clear danger to himself and others.” The Act requires that the intoxication be “apparent to the provider” when the alcohol was served—a higher tandard than the common-law requirement that the provider “knew or should have known” of the customer’s intoxication.

Second, the rule against “inferences on inferences” prohibits the stacking of conclusions to establish a fact. As Raorger summarized: “Findings must be supported by facts in evidence, not conjecture, and we cannot pile speculation on speculation and inference on inference.”

In Raorger, the plaintiff relied on test results showing that a driver had BAC of .139 approximately 3-4 hours after leaving a restaurant. The supreme court held that while the BAC test results supported an inference that the driver drank a large amount of alcohol, no direct evidence linked that inference to the driver’s appearance and behavior at the restaurant.

More specifically, the Court highlighted that all relevant witnesses testified that the driver did not show signs of obvious intoxication at the restaurant. Speculation about how he “might have” appeared based on his BAC results was insufficient: “Speculative and conclusory testimony, by experts and lay witnesses alike, is incompetent and cannot support or defeat summary judgment.”

Footnote ten of the opinion analyzes the application of this holding to expert analysis more generally. No. 23-0662, April 11, 2025.

Davis v. Homeowners of Am. addressed the enforceability of a contractual limitations period in an insurance policy.

The Fifth Court held that the policy’s provision requiring suit to be filed within two years and one day from the date the claim is accepted or rejected, or three years and one day from the date of the loss, did not violate Texas Civil Practice and Remedies Code § 16.070(a).

The Court distinguished this case from Spicewood Summit Office Condos Ass’n v. Am. First Lloyds Co. noting that the policy in Davis did not impermissibly shorten the limitations period to less than two years, as the trigger date was based on the claim’s acceptance or rejection rather than the date of loss. No. 05-24-00035-CV, Apr. 7, 2025 (mem. op.).

In Jackson v. Cole, the Fifth Court addressed the mention of insurance during trial, the preservation of that topic as appellate error, and the requirement of harmful error.

The record showed that on cross-examination, a friend of the plaintiffs described what she had been told about the car accident at issue. In doing so, the witness made two references to the exchange of insurance cards. Later, one of the plaintiffs made a similar reference to an insurance card. That testimony drew objection, after which the trial court gave a curative instruction. The plaintiffs won an approximately $300,000 verdict.

Preservation. The Court agreed that the plaintiff’s reference to insurance was improper. But the defense did not object to the curative instruction at the time it was made, and the record also showed that the jury was given then pattern instruction to “not consider or guess whether any party is covered by insurance unless I tell you to.” Error was not preserved, even as to the mention of insurance to which an objection had been made.

Harm. The Court detailed the trial evidence and held that “the mere fact that liability was ‘hotly contested’ due to conflicting testimony in this case, without more, has not demonstrated harm warranting reversal when the record contains evidence supporting the jury’s verdict.” From there, the Court observed that the references appeared to be inadvertent, that the defense had not challenged the sufficiency of the damages evidence on appeal, and that the trial court appeared to have actively supervised the handling of this issue. Thus, no harm was shown. No. 05-23-00424-CV (April 1, 2025) (mem. op.).

McDonald v. Four Rivers Devel., LLC, discussed yesterday on a procedural point, also addressed the distinction between a condition precedent and a covenant within a contract. The Fifth Court held that a 25% profit margin requirement for commission payments was not a condition precedent but rather a covenant or term of the contract.

It explained, “We do not view the 25% profit margin requirement as a condition precedent that would require a specific denial. The provision – commissions calculated at 6% for any job sold by McDonald in which the overall profit on the job was 25% or more – was the measure of calculating commissions, i.e., a covenant or term of the contract.”

A condition precedent is an event that must occur before a right can accrue to enforce an obligation, while a covenant is an agreement to act or refrain from acting in a certain way. The court emphasized that this did not indicate an “if this, then that” scenario, as typical of a condition precedent. Instead, the 25% profit margin was a term used to calculate commissions, making it a covenant. No. 05-24-00431-CV (March 28, 2025) (mem. op.).