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 … Continue reading
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 … Continue reading
The Fifth Court reversed in Monticello Asset Management, Inc. v. Wells, a case about unfortunate contact between a power line and a flagpole during construction work: “The families in this case suffered horrible losses. But Texas law strictly proscribes the … Continue reading
The affidavit-counteraffidavit procedure in Tex. Civ. Prac. & Rem. Code § 18.001 streamlines the handling of evidence about whether services are reasonable and necessary. That said, the process can generate controversy, as it did in Ortiz v. Nelaplatla, where the defendant’s … Continue reading
Reviewing its earlier precendent about a limitations-tolling statute, the Texas Supreme Court held in Ferrer v. Almanza that: “Ashley held that “absence from this state” under [Tex. Civ. Prac. & Rem. Code ] Section 16.063 depends not on physical location but, … Continue reading
The majority and dissenting opinions in Davis v. Homeowners of Am. Ins. Co. differed about how to apply Tex. R. Civ. 91a to a limitations issue in a homeowner-coverage dispute. Foornote 6 in the majority opinion provides an interesting analysis … Continue reading
In a dissent from a dismissal order in Chapman v. Doe, Justice Jackson questioned whether the Supreme Court had become too quick to vacate judgments, noting, inter alia, that “our common-law system assumes that judicial decisions are valuable and should … Continue reading
Grisaffi v. Rocky Mountain High presents an unusual situation involving the “one-satisfaction rule” (and the choice it requires between recovery of stock and damages for the loss of the same stock), the “mandate rule” requiring an election pursuant to that … Continue reading
The en banc Fifth Court divided 7-6 on a difficult arbitration issue; specifically, whether a court or the AAA should resolve arbitrability as to wrongful-death claims brought by estate representatives. Agreeing with the panel majority, the full-court majority saw it as … Continue reading
Empower Texans, Inc. v. Dallas County involved open records request to Dallas County government. The panel majority held that “as a matter of law, the County’s conditional compliance by notifying Empower of the estimate costs for manipulation of data in … Continue reading
Justice Oliver Wendell Holmes, dissenting from an early Sherman Act case, famously observed: “Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate … Continue reading
The panel majority in Texas Champps Americana v. Comerica Bank concluded that after a merger, Comerica owned the note sued upon, noting evidence about the handling of the note and its accounting, in the context of Tex. Bus. Orgs. Code … Continue reading
The Fifth Court’s recent ERCOT opinion found that matter appropriate for en banc review when, between its original panel opinion and the present proceedings, the Texas Supreme Court had ruled on immunity issues in a way that undermined a key assumption … Continue reading
An 11-1 en banc opinion concluded that ERCOT lacked sovereign immunity against fraud claims by a power producer. The opinion noted, inter alia, that this conclusion was consistent with ERCOT not receiving tax revenue, with the structure of the PUC’s … Continue reading
. . . But in our service.” Cf. Julius Caesar, Act I, Scene III. The key phrases in the return of service in Pro-Fire & Sprinkler, LLC The Law Co. were as follows: The panel majority concluded this return was … Continue reading
The majority opinion in Prestonwood Tradition, LP v. Jennings, No. 05-20-00380-CV et seq. (Oct. 22, 2021).concluded that wrongful-death and survival claims were controlled by the decedents’ arbitration agreements, including their delegation of arbitrability to the arbitrator. A dissent saw matters … Continue reading
The panel opinion in Dickson v. The Afiya Center affirmed the denial of a TCPA motion to dismiss as to allegedly defamatory statements related to a municipal anti-abortion ordinance. The full court has now denied en banc review, over a dissent focusing … Continue reading
Judge Gregg Costa memorably described the McDonnell-Douglas burden-shifting framework as “the ‘kudzu’ of employment law.” Nall v. BNSF Railway Co., 917 F. 3d 335 (5th Cir. 2019) (Costa, J., specially concurring). The painstaking majority and dissenting opinions in Addante v. … Continue reading
The panel majority in Winstead PC v. Moore concluded that the TCPA applied to two of three tort claims by a client against his legal counsel, holding that they implicated the firm’s right of petition, while the third did not … Continue reading
Article VI, clause 2 of the Constitution provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, … Continue reading
In an 8-1 decision, the Texas Supreme Court reversed the Fifth Court’s judgment in Fifth Court’s judgment in Aerotek v. Boyd, a dispute about whether employees agreed to arbitration via their employer’s electronic system. The court observed: “It may be … Continue reading
Continuing the shower of spring en banc opinions from the Fifth Court, an eight-justice majority concluded that any “substantive nexus” between the relevant safety standards and health care was too attenuated to implicate the Texas Medical Liability Act on the … Continue reading
The defendants in Chen v. Razberi Technologies lost a special appearance and took an interlocutory appeal. But before resolution of the appeal, the trial court entered final judgment against the defendants, who did not file an additional notice of appeal. … Continue reading
In an 11-1 en banc decision written by Justice Osborne, the Fifth Court granted mandamus relief, allowing Ken Paxton to be named as a responsible third party in a securities-fraud case. A dissent by Justice Schenck (the lone Republican, as … Continue reading
Many books and movies involve tales of scary creatures who return, ranging from Grendel’s family in the ancient epic of Beowulf to “Where’s My Mummy?”, an underappreciated part of the Scooby Doo multiverse. The topic of briefing waiver returns in … Continue reading
A common sci-fi movie trope is the image of a “mad scientist” working in the laboratory. Texas appellate lawyers and judges have a similar look when applying Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (2000), which deals with … Continue reading
The issue: “[W]hether the word ‘predecessors’ in the Release’s phrase “[Headington] waives, releases, acquits and discharges Petro Canyon and its affiliates and their respective officers, directors, shareholders, employees, agents, predecessors and representatives for any liabilities, claims, . . . [and] … Continue reading
The Fifth Court denied mandamus relief in a dispute about third-party document confidentiality, observing that the party resisting discovery (1) “relied, in part, on a non-disclosure agreement that by its very terms expired years before the documents were subpoenaed and … Continue reading
Bickham v. Dallas County “consider[ed] whether ‘election watchers’—persons appointed to observe the conduct of an election under Chapter 33 of the Texas Election Code— have standing to pursue claims against certain election officials for alleged violations of chapter 33 and … Continue reading
An inartfully-drafted part of the expunction statute produced a remarkable 7-6 split of the en banc Fifth Court in Ex Parte Ferris, No. 05-19-00835-CV (Oct. 2, 2020). Charles Ferris pleaded guilty to DWI in 2015. Four years later, a jury found him … Continue reading
Batson issues are doubly complex–they involve (1) appellate scrutiny of a discretionary decision made “live” under time constraints, and (2) inquiry into motive based on objective manifestations of the motive in juror questions, strike patterns, etc. It is no surprise, … Continue reading
After an earlier dispute about the merits of an interlocutory stay, the Fifth Court reached the substantive issue of arbitrability in Baby Dolls v. Sotero, a personal-injury lawsuit about a serious car accident involving two dancers after they left work. The … Continue reading
The principle is easy enough to state — because the mandatory-venue statute about injunctive relief “is limited to suits ‘in which the relief sought is purely or primarily injunctive[,] . . . it does not apply when the injunctive relief … Continue reading
In a securities fraud case, a trial court issued a protective order against certain questioning of a nonparty deponent. After thoroughly reviewing Texas discovery law about relevance, a Fifth Court panel majority reversed: “[W]e conclude the two challenged lines of … Continue reading
The key issue in Hernandez v. Sun Crane & Hoist, Inc. was whether a general contractor exercised “actual control” over a subcontractor’s work. The en banc court reversed a no-evidence summary judgment for the contractor, observing in footnote 9: “. … Continue reading
The estate of Billy Dickson alleged that he died from asbestos exposure at a Bell Helicopter plant. The estate won at trial on a theory of gross negligence. The panel reversed on legal sufficiency grounds, finding no evidence that Bell … Continue reading
While mandamus litigation often focuses on whether a clear abuse of discretion occurred, the other relevant factors can also be dispositive. Consider the panel majority in In re Alpha-Barnes Real Estate Services LLC, which observed: “While the trial court’s order … Continue reading
A 2018 article with an LPCH colleague considered when it is wise for an intermediate appellate court, subject to further review by the Texas Supreme Court, to take issues en banc. That article has been updated on this page on this … Continue reading
After the 2018 election, an LPCH colleague and I wrote about the potential for renewed interest in “factual sufficiency” review–closely related to “legal sufficiency” review, but placed in the exclusive jurisdiction of the intermediate courts of appeal under the state … Continue reading
In a dispute about arbitrability, the plaintiff claimed never to have seen the arbitration agreement, and after receiving evidence about the defendant’s computer system, the trial judge agreed. A panel majority affirmed the denial of the motion to compel arbitration: … Continue reading
In the 2018 election for a Dallas County Justice of the Peace position, Democratic candidate Margaret O’Brien obtained a default judgment that her Republican opponent, Ashley Hutcheson, was ineligible for the position because of her residence. IAfter the election, in … Continue reading
Section 171.025 of the Civil Practice & Remedies Code says: “The court shall stay a proceeding that involves an issue subject to arbitration if an order for arbitration or an application for that order is made under this subchapter.” The … Continue reading
“Birds of a feather flock together,” says the old proverb. But on the Fifth Court, justices of the same political party do not always rule together, as shown by two recent opinions. The first, Inland Western v. Nguyen, No. 05-17-00151-CV … Continue reading
The majority and dissenting opinions in In re: Baby Dolls — an interesting mandamus case to be discussed next week — are both written in fourteen-point font. The appellate bar rejoices.
In re Parks denied a mandamus petition arising from the striking of counteraffidavits, related to the reasonableness and necessity of certain medical expenses, filed pursuant to Chapter 18 of the Civil Practice and Remedies Code. Applying Fifth Court precedent, the … Continue reading
The Nguyens, owners of a nail salon, sued their landlord for alleged misrepresentations related to lease renewal. They won a judgment in their favor after a jury trial; a Fifth Court panel reversed and rendered judgment for the landlord. The … Continue reading
Lovern sued Eagleridge Operating for injuries suffered in a gas line rupture. Eagleridge named Aruba Petroleum as a responsible third party; the Fifth Court found no abuse of discretion in striking that designation. The panel majority concluded that Aruba could … Continue reading
In Stegall v. TML Multistate Intergovernmental Employee Benefits Pool, Inc., the panel majority (Justice Pedersen writing, joined by Justice Whitehill) held that a serious medical-treatment claim about cancer treatment was barred by the sovereign immunity of two parties:”TML . . … Continue reading
In Duncan v. Acius Group, the panel agreed that the TCPA can reach statements about the topic of animal cruelty, but differed on the connection of a particular statement to that topic. Justice Partida-Kipness’s dissent argued: “I do not disagree … Continue reading
The law firm of Riggs & Ray and the State Fair of Texas have been involved in a long-running dispute about the firm’s “public information” requests to the Fair. In the latest chapter, Riggs & Ray, P.C. v. State of Fair … Continue reading
Denny successfully sued Chang for medical malpractice, based on a cotton ball left inside her head after brain surgery. The key appellate issue was a jury question about Denny’s “degree of diligence” in bringing suit – a finding needed to … Continue reading
The panel in CKJ Trucking v. City of Honey Grove found a waiver of sovereign immunity in an unusual fact situation involving an off-duty police officer. The Fifth Court considered whether to take the matter en banc, and it appears … Continue reading
Tex. R. App. 49.7 says: “A party may file a motion for en banc reconsideration as a separate motion, with or without filing a motion for rehearing. The motion must be filed within 15 days after the court of appeals’ … Continue reading
Majority: “Gutman’s petition alleges that Wells requested a release, Gutman refused to provide the release, and Wells and Arbitrage harassed and threatened Gutman because he refused to provide the release. This sets out a controversy—whether Gutman must provide the requested … Continue reading
Ward sued Gray, alleging that “Gray forced Ward’s resignation to preclude the Partnership’s obligation to purchase Ward’s [partnership] interest. . . . In addition, Ward alleges that [the general partner] made defamatory statements about his employment status when Partnership employees … Continue reading
I have an Op-Ed piece in today’s Dallas Morning News about interesting recent dissents in the Dallas Court of Appeals. And, I have a recent Texas Lawbook article about the en banc opinions in McPherson v. Rudman.
The panel opinion in McPherson v. Rudman affirmed a defense verdict in a medical-malpractice case. The plaintiff sought en banc review, which was denied — barely. Justice Schenck, who wrote the panel opinion, authored a strongly-written concurrence; Justice Partida-Kipness’s dissent was joined … Continue reading
The recent case of SIG-TX Assets v. Serrato, over a dissent, declined to require arbitration of nonsignatories’ claims about mishandled funeral services. It would be wrong to read too much into that case, in light of Meritage Homes v. Mudda, which … Continue reading
A steady stream of cases about the scope of the TCPA (as well as the third dissent of 2019 by Justice Whitehill) continued in Erdner v. Highland Park Emergency Center. The appeal was from the denial of a TCPA motion … Continue reading
Clark sued Phillips, his former competitor in an an election for Kaufman County Commissioner, for defamation in campaign materials. Phillips lost a summary judgment motion and sought one of the many interlocutory appeals available under Texas’s Byzantine interlocutory-appeals statute; specifically, section … Continue reading
In a macabre echo of the old English case about the two ships Peerless, in SIG-TX Assets, LLC v. Serrato, Serrato family members accused a funeral home of confusing the bodies of two women named Maria. The funeral home sought to compel … Continue reading
Amcad sued Freightquotes.com about a misplaced delivery. Freightquoutes moved to dismiss, pointing out that the relevant bill of lading incorporated “terms and conditions” on the company website, which in turn contained a Missouri foum-selection clause. Freightquotes lost in the trial cost and … Continue reading
“Questions of jurisdiction are questions of power,” said Supreme Court Justice Benjamin Curtis. That observation – both simple and profound – provides a useful lens to examine the sweeping changes in the Texas intermediate courts of appeal after the 2018 … Continue reading
In re: C.R. involved a father’s challenge to a termination order. No. 05-18-00412-CV (Sept. 21, 2018) (mem. op.) The father challenged the sufficiency of the evidence to support the order under section 161.001 of the relevant Family Code subchapter but … Continue reading
In a rare en banc decision, a majority of Fifth Court justices held in St. John Missionary Baptist Church v. Flakes that “construing [Tex. R. App. P] 38.9(b) to require us to identify and suggest briefing on issues not raised by an appellant … Continue reading
The plaintiff in B.C. v. Steak & Shake filed her summary judgment response a day late. The panel majority rejected her argument that the trial court had accepted the filing by including this language in the order granting summary judgment: “After considering … Continue reading
The Texas exemplary damages statute (specifically, TCPRC § 41.008(b)) imposes the following cap: “Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: (1) (A) two times the amount of economic damges; plus (B) … Continue reading
Appellees sued Pak for breach of contract and won a judgment in their favor after a bench trial. Pak requested findings of fact and conclusions of law. Then, in a series of unfortunate events: the trial judge did not enter … Continue reading
In the mandamus case of In re Fort Apache Energy Inc., the relators sought relief from a trial setting in Dallas County, alleging that it interfered with the dominant jurisdiction (and slightly later trial setting) of the Kendall County Court. … Continue reading
In 2013, D Magazine published an article that labeled Janay Bender Rosenthal as “The Park Cities Welfare Queen,” based on her receipt of benefits under the Supplemental Nutriotional Assistance Program. Rosenthal sued for libel, and the trial court denied the … Continue reading
The U.S. Supreme Court may be poised to decide the validity of same-sex marriage bans nationwide, but the Texas Supreme Court has managed to have its voice heard to declare that it doesn’t have anything to say. Because the State of Texas was too … Continue reading
Two years ago, the Dallas Court of Appeals ruled that PlainsCapital Bank was not entitled to judgment against a borrower because it based its deficiency claim on the price it obtained when the property was sold a year after foreclosure, rather … Continue reading
Less than a month ago, the Court of Appeals held that a Motion for New Bench Trial Is Not Mandamus-able. Now the Court has reiterated that holding where a district judge granted a new new trial after the case had originally been tried … Continue reading
In this breach of contract case, the majority opinion found that the appelle’s no-evidence summary judgment motion was legally insufficient to support the trial court’s summary judgment because it “fails to challenge or even mention a single element of any … Continue reading
An architectural firm subcontracted with Pavecon Commercial Concrete to pour the foundation for a wedding facility in Carrollton. The architect failed to pay the last of Pavecon’s invoices, prompting Pavecon to sue the architect and the owner of the facility. The defendants counterclaimed … Continue reading
In this lawsuit against guarantors on promissory notes, the Court addressed, among other issues, the standard for adequate summary judgment affidavits. The appellants argued that the two affidavits supporting appellee’s motion for summary judgment demonstrated that the witness lacked personal … Continue reading
The Texas Supreme Court today affirmed the Dallas Court of Appeals’ judgment in a wrongful death/asbestos case, which had vacated an $11.6 million plaintiff’s verdict. The majority opinion disagreed with the Court of Appeals’ holding that the plaintiff had to … Continue reading
This morning’s decision by the Texas Supreme Court in Ritchie v. Rupe raises some pretty substantial questions about the continuing viability of claims for minority shareholder oppression in Texas. By way of background, the decision arises out of a dispute over a family-owned … Continue reading
In what will certainly be seen as a landmark decision for Texas business law, the Supreme Court has issued its opinion today reversing the Dallas Court of Appeals in the case of Ritchie v. Rupe. As we noted a while back, … Continue reading
In a rare en banc opinion, the Court of Appeals has clarified the standards for asserting a no-evidence motion for summary judgment. The owners of Gloria’s restaurants sued one of their long-time managers and his business partner after the manager left … Continue reading
In this car accident case, the defendant moved for summary judgment on the ground that the suit was barred by the two-year statute of limitations. In response, the plaintiff argued that, under CPRC 16.063, the out-of-state trips she took over … Continue reading
Amid a flurry of post-summer break opinions today, the Texas Supreme Court issued one decision in a case from the Dallas Court of Appeals. In U-Haul International, Inc. v. Waldrip, the court of appeals had reversed and rendered an $11.7 million … Continue reading
This landlord-tenant dispute involved Tenet Health Systems and Live Oak, a group of doctors, as tenants. Live Oak entered into a lease with Tenet for a five year period, expiring on June 30, 2006. Live Oak claimed that, before the … Continue reading