The Fifth Court reversed a sanctions award arising from a discovery dispute involving a subpoena to a health-care provider, finding weaknesses in the supporting record that included these matters:

• Technical problems with the subpoena papers. “Incomplete preparation and service of the subpoena, however, is not evidence of Allstate’s bad faith, harassment, or improper purpose necessary to overcome the presumption that pleadings are made in good faith.”
• Other litigation. “ROSIT’s allegations of sanctionable conduct rest on its contention that, based on a history of intentional noncompliance in other cases, Allstate intentionally failed to comply with the requirements for service of a subpoena and then filed the motion in bad faith, for an improper purpose, and to harass ROSIT. The trial court’s findings of sanctionable conduct were based in part on this history. But Allstate’s motion for sanctions with its attachments was limited to ROSIT’s noncompliance with service in this case.”
• Alleged discovery agreement. “In its motion and at the hearing, and as reflected in the trial court’s findings and conclusions, ROSIT complained of Lexitas’s ‘repeated refusal to comply’ with an alleged agreement regarding service of depositions on written questions directed to ROSIT in this and other cases. Although the trial court cited this failure in its findings, no evidence of any such agreement was admitted.”

Allstate Property & Casualty Co. v. Ford, No. 05-20-00463-CV (Oct. 15, 2021) (mem. op.).

The annual Appellate Judges Education Institute, hosted by the Appellate Judges Conference, an arm of the American Bar Association’s Judicial Division, will be held November 11-14, 2021, at the Hyatt Regency in Austin, Texas. This Appellate Summit offers four days of advanced-level appellate educational programming and is the largest nationwide gathering of appellate jurists and advocates. The most recent Summit sold out and the ABA had to cut off registrations early. Early-bird registration for the 2021 Summit is now open through October 15, 2021. Over 100 judges from throughout the country have already signed up for the Summit.

This year’s summit features speakers on the following topics, among others:

• How Judges Read in an E-filing Era
• Top-Notch Oral Argument Answers
• Managing Stress and Strengthening Resiliency: Practical Strategies for Judges and Lawyers
• Building and Growing an Appellate Practice
• Supreme Court Preview
• Writing from the Reader’s Perspective: How the English Language Really Works
• United States Supreme Court Civil Update
• Storytelling for Advocates and Judges: How and Why We Should Incorporate Storytelling Techniques and Themes into our Work

Panelists include:
Erwin Chemerinsky, Dean of the University of California, Berkeley, School of Law
Hon. Nathan Hecht, Chief Justice, Texas Supreme Court
Hon. Bridget Mary McCormack, Chief Justice, Michigan Supreme Court
Hon. Albert Diaz, United States Court of Appeals for the Fourth Circuit
Hon. James Earl Graves Jr., United States Court of Appeals for the Fifth Circuit
Hon. Consuelo Callahan, United States Court of Appeals for the Ninth Circuit
Hon. Steven H. David, Indiana Supreme Court
Hon. Marsha Ternus, former Chief Justice, Iowa Supreme Court
Hon. Samuel A. Thumma, Arizona Court of Appeals
Hon. Martha Warner, Fourth District Court of Appeal, Florida
Hon. David W. Ellis, Illinois Court of Appeals and best-selling author
Kannon K. Shanmugam, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP
George Gopen, Ph.D., Professor Emeritus of the Practice of Rhetoric, Duke University & Consultant on Writing the English Language

The summit will be taking place in a hotel that will easily accommodate social distancing for attendees and presenter. The ballroom boasts over 14,000 square feet and a ceiling height of 22 feet. It is rated to hold more than 1,000 attendees during normal times, but will be capped at 400 attendees. Round tables will be set with no more than 4-5 seats instead of the usual 7 to 8. The opening reception at the Bullock Museum will be held in the museum’s Grand Lobby, which has a capacity of 600. Additionally, a color coding system, to reflect your social distancing preference, will be offered at registration. Meals also will have enhanced safety measures.

For further details on speakers, programs, and registration, go to: https://lnkd.in/exxjtGjA.

The appellant in Square 9 Softworks v. SIPS Consults Corp. appealed the denial of its special appearance, arguing that because it proved itself to be a nonresident, that showing sufficed in the absence of adequate jurisdictional allegations. Unfortunately, it did not appeal the striking of the declaration that would have established that matter:

“In this case, however, even if we assume SIPS failed to plead sufficient jurisdictional facts, the only evidence submitted by Square 9 to prove it was not a Texas resident, and the only evidence it points to on appeal, is the sworn declaration signed by Frattini that was struck in its entirety from the record by the trial court. Square 9 does not challenge the trial court’s striking of the sworn declaration. Accordingly, we cannot consider the declaration as part of the evidence to be considered on appeal.”

No. 05-20-01116-CV (Oct. 11, 2021) (mem. op.)

The original incarnation of the TCPA was widely criticized for broad language that included a wide range of civil litigation. After its amendment, opinions such as CBS Stations Group v. Burns remind that, at its core, the TCPA serves an important role in protecting First Amendment rights; here, a local TV station’s coverage of a bank robbery:

“We conclude Burns failed to present clear and specific evidence that CBS knew or should have known that publication of the photograph in connection with the report on the robbery was false. Further, there is no evidence supporting a conclusion that a photograph obtained from a law enforcement agency after a public–information-act request using the correct name and birth date of the individual would warn a reasonably prudent broadcaster of its defamatory potential.”

No. 05-21-00042-CV (Sept. 27, 2021) (mem. op.). Of special note, the panel includes Justice Ken Molberg, author of Dyer v. Medoc Health Services, 573 S.W.3d 418 (Tex. App.–Dallas 2019, pet denied), which thoroughly reviewed and significantly limited the TCPA’s protection of the right of association, compared to some earlier opinions by other courts of appeal on the topic.

These facts led to a problem with the timeliness of the notice of appeal in Jordan Kahn Music Co. v. Threlkeld:

• January 19, 2021. Trial court signs interlocutory order granting a TCPA motion to dismiss, and orally invites the movant to submit a fee affidavit;
• February 28, 2021. Trial court signs a final judgment, including a fee award.
• Nonmovant timely moved for a new trial.
• May 24, 2021. Notice of appeal filed.

The Fifth Court held that the February 28 judgment was a “trial court order on a motion  to dismiss … under section 27.003” under the relevant statute, and thus triggered the 20-day deadline for perfecting an accelerated appeal–for which, the filing of a motion for new trial does not extend the perfection deadline is it otherwise would. No. 05-21-00381-CV (Sept. 29, 2021) (mem. op.).

Texas rules about preservation of no-evidence points are generally more forgiving than the federal rules, although they are not without nuance, one of which became important in American Pride Xpress Logistics v. Joe Jordan Trucks: “Although [Appellants] moved for a directed verdict after appellee rested, and the trial court denied the motion, they proceeded to present their own evidence and did not re-urge the motion for directed verdict when the evidence closed. ‘If a party proceeds to present evidence after that party has moved for a directed verdict, such party must reurge the motion for directed verdict at the close of the case, or any error in its denial is waived.'” No. 05-20-00281-CV (Sept. 24, 2021) (mem. op.) (citation omitted).

Including deposition excerpts in a trial record can become complicated, and in American Pride Xpress Logistics v. Joe Jordan Trucks, it led to a preservation problem: “During appellee’s case in chief, it presented the testimony of Lee Cox, the attorney who prepared the deed ….  Cox testified through a videotaped deposition. Before the testimony was played for the jury, appellants’ attorney told the court, ‘We have asked that the court reporter not transcribe this portion since we’ve got a transcript of it.’ However, the transcript of Cox’s testimony was not made part of the record. Without Cox’s testimony, the reporter’s record is incomplete, and we must presume his testimony supported the trial court’s judgment.” No. 05-20-00281-CV (Sept. 24, 2021) (mem. op.).

“The preservation requirements of appellate rule 33.1 apply to arbitrations.” And just as in a traditional litigation setting, the lack of a record created preservation problems in Alia Realty LLC v. Alhalwani: “In addition to a silent record as to whether appellees informed the arbitrator that the extended time to file a supplemental expert report was insufficient before proceeding to arbitration, appellees failed to make any such complaints in two postarbitration briefs. Instead, they argued the evidence was insufficient to support the arbitration award because appellants’ expert’s opinions were unsupported speculation, and their expert, unlike appellant’s expert, used the proper accounting analysis by reconciling bank accounts.” No. 05-21-00265-CV (Sept. 23, 2021) (mem. op.).

The Who memorably asked, “Who Are You?” In that spirit, the case of MBM Family Trust No. 1 v. GE Oil & Gas, LLC examined a claim that a trustee had acted solely in her individual capacity, rather than in her trustee capacity, and was thus not subject to personal jurisdiction in Texas in a judgment-collection lawsuit. Whatever theoretical force this argument may have had, the Fifth Court found that it lacked support in the testimony presented, which did not draw this distinction and which also presented credibility issues that the judge had resolved against the appellant. No. 05-20-01103-CV (Sept. 17, 2021) (mem. op.).

• “Atlas Shrugged.” Ayn Rand, 1957.
• “Jesus wept.” John 11:35.
• “Mandamus lied.” Synopsis, State v. Walker, 679 S.W.2d 484 (Tex. 1984).

(H/T to Ben Taylor for showing this one to me!)

“‘”Breach’” of a contract occurs when a party fails to perform an act that it has contractually promised to perform.’ Under terms of the agreement, Hinojosa merely agreed to allow the first $258,996.16 in proceeds from the sale to go to LaFredo with any remaining proceeds to be split between them. LaFredo does not identify any action taken by Hinojosa that precluded him from receiving any of the proceeds from the sale. To the contrary, the record before us suggests LaFredo received all the available proceeds, used a portion to pay for the Canton Street condominium, and signed a settlement statement reflecting his agreement to this disbursement. That LaFredo spent a portion of the proceeds to purchase the Canton Street condominium is not evidence, much less conclusive evidence, that Hinojosa breached the One Arts Plaza Agreement. Based on the record before us, we conclude LaFredo has not conclusively shown, as he must, that Hinojosa breached the One Arts Plaza Agreement.” Hinojosa v. LaFredo, No. 05-20-00166-CV (Sept. 20, 2021) (emphasis added).

After a supreme court opinion earlier this year, the Fifth Court revisited the question whether PNC’s effort to foreclose a subrogation lien claim was time-barred. It held:

• Accrual. Recognizing that “Texas case law gives conflicting answers to this issue,” the Court concluded that “the correct result is the one first reached by Kone in 1927. The lender’s cause of action to enforce its subrogation lien rights accrues on the date the refinancing loan matures.” (citing Kone v. Harper, 297 S.W. 294 (Tex. App.–Waco 1927, aff’d, 1 S.W.2d 857 (Tex. Comm’n App. 1928)).
• Limitations period.  The Court applied the four-year statute that governs other lien actions, reasoning: “PNC cannot, in the name of equity, have more rights than the party to which it is subrogated, and those rights are subject to the same defenses the borrower would have had against the original lender.”

PNC Mortgage v. Howard, No. 05-17-01484 (Sept. 17, 2021).

The allegedly overlapping fraud and contract claims in Benge General Contracting v. Hertz Electric were as follows:

• “Appellees’ breach-of-contract counterclaim was based on ‘enforceable agreements’ under which appellees agreed to provide ‘electrical contracting and painting services at several jobsites in North Texas’ in exchange for BGC’s promise to compensate appellees for the services.”
• “Their fraud counterclaim, as stated in appellees’ fourth amended counterclaims, was based on Dennie’s reliance [on] Benge’s allegedly false representation that he would pay for work performed by appellees ‘in exchange for the signing of lien releases.’ Appellees alleged that appellants knew the representations were false when made and omitted facts regarding Benge’s misappropriation of project funds otherwise intended to compensate appellees for work performed.”

The Fifth Court concluded: “Appellants characterize this counterclaim as fraud by omission and argue there is no evidence a special relationship to support such a claim. … The gravamen of appellees’ fraud counterclaim, however, was not that Benge fraudulently omitted information but that he fraudulently induced Dennie to sign lien waivers to obtain a payment he never intended to make; indeed, a payment already owed under the contracts. Thus, appellees stated a claim for fraudulent inducement.” No. 05-19-01506-CV (Sept. 7, 2021) (mem. op.) (later modified slightly on rehearing).

The peculiar treatment of attorneys’ fee awards against LLCs in contract cases, by the now-repealed version of CPRC § 38.001, led to the resolution of a novel issue in Benge General Contracting, LLC v. Hertz Elec., LLC: “Absent mandatory, or at least persuasive, authority applying the alter-ego theory to hold an LLC’s members liable for attorney’s fees that could not be incurred by the LLC, we must abide by the plain statutory language. Accordingly, we conclude that the trial court abused its discretion in awarding attorney’s fees, and we sustain appellants’ first issue.” No. 05-19-01506-CV (Sept. 7, 2021) (mem. op.).

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. Univ. of Tex. at Dallas, No. 05-20-00376-CV (Sept. 8, 2021) illustrate the amount of detail work required to evaluate a complex retaliation case and deserve study by anyone who practices in that area in state court.

In a supersedeas-bond dispute, the Fifth Court held: “When Real Parties withdrew the deposit without the court’s authorization, they assumed the risk that their withdrawal might be improper and that the court might require them to redeposit the funds. Moreover, Real Parties received the full benefit of having the partition-and-sale order superseded during the years that the order was on appeal. The trial court may determine whether equity requires ordering Real Parties to return the supersedeas to the court’s registry for the court to determine the amount of Relators’ damages during the appeal.” In re Pelley, No. 05-21-00314-CV (Aug. 31, 2021) (mem. op.) (emphasis added).

After the Texas Supreme Court (again) signaled that it preferred to review mask-mandate cases after intermediate court review of a temporary injunction record, the Fifth Court granted a motion to expedite the Dallas mask case, and it is moving on the following schedule:

The successful party in an arbitration obtained confirmation of the award before the trial court ruled on the other party’s special appearance. The Fifth Court reversed, citing TRCP 84 and 120a as well as its own precedent: “Jayco was entitled to have its special appearance adjudicated prior to any decision on the merits.  The rules of civil procedure give a trial court no discretion to hear a plea or pleading, including a motion to confirm an arbitration award, before hearing and determining a special appearance.”  Jayco Hawaii LLC v. Viva Railings, LLC, No. 05-20-00528-CV (Aug. 25, 2021) (mem. op.) (citations omitted, emphasis added).

Prime argued that fraudulent inducement tolled limitations on its fraud claims, citing an email in which the defendant said: “I ask that you extend this [deadline] to at least 90 days or some other requirement so we have the chance to find another investor, do the paperwork, and get his funding.” The Fifth Court disagreed, stating that the “request to extend the time to ninety days by itself is simply not a representation, promise, or an agreement that would extend the accrual of a cause of action.” Prime United Petroleum Holding Co., LLC v. Malameel, LLC, No. 05-20-00032-CV (Aug. 24, 2021) (mem. op.) (emphasis in original).

The Texas Supreme Court’s longtime staff attorney for public information, Osler McCarthy, retires on August 31 after many years of dedicated service. I wanted to salute his hard work and share a well-written tribute to him recently prepared by former Chief Justice Wallace Jefferson.

Footnote 3 in the recent en banc majority opinion from Steward Health Care System v. Saidara suggests a promising special exception in cases with general allegations about unfair competition:

Appellants do not specify the branch of “unfair competition” they allege. See, e.g., James E. Hudson, III, A Survey of the Texas Unfair-Competition Tort of Common-Law Misappropriation, 50 BAYLOR L. REV. 921, 924–26 (1989) (noting Texas common law recognizes three branches of unfair competition: palming off, trade-secret misappropriation, and common-law misappropriation); RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 40 cmt. a (AM. LAW INST. 1995) (stating that unfair competition includes torts for misappropriation, infringement, unjust enrichment, and breach of confidence, but not breach of contract, breach of the duty of loyalty owed by an employee or other agent, or breach of confidence not involving a trade secret). Rather, they generally refer to their claim as “Unfair Competition” and contend that “by misleading Steward with their misrepresentations that Prospect intended to buy the assets of Southwest General and thereby inducing Steward to make Southwest General’s most sensitive business information available to Prospect senior executives and ultimately all of Prospect, Prospect and Saidara have engaged in conduct that is contrary to honest practices in commercial matters.”

The supreme court’s August 19 order in a mask-mandate case:

reminds of a basic rule of mandamus procedure, Tex. R. App. P. 52.3(e):

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 have a sufficient connection to the exercise of that right. No. 05-20-00050-CV (Aug. 20, 2021). A dissent would have applied the TCPA to all claims and, from there, concluded that the plaintiff failed to meet its burden.

An en banc majority opinion, overruling prior case law to the contrary, held “that the plaintiff must meet its initial burden on a special appearance by pleading, in its petition, sufficient allegations to invoke jurisdiction under the Texas long-arm statute.” (emphasis in original). (Relatedly, under the relevant supreme court precedent, “[t]he plaintiff’s response to the special appearance may contain evidence supporting the petition’s jurisdictional allegations, but that evidence must be consistent with the allegations in the petition.”) Steward Health Care System LLC v. Saidara, No. 05-19-00274-CV (Aug. 20, 2021). Other opinions were written.

Quintanilla v. ANG Rental Holdings, provides a cautionary note about proving up attorneys’ fees, even in the relative informality of a bench trial on frequently litigated issues:

• The appeal arose from a de novo retrial, to the bench, of an FED action in county court; as a result, “an appellant may raise a no-evidence point for the first time on appeal.”
• The record was silent as to (a) an 11-day notice required by the statute allowing fee recovery, and more basically (b) “no evidence of a written lease that entitles ANG to recover attorney’s fees.”
• Why? Because “the lease agreement was excluded from evidence because of the [tenants’] objection, and ANG made no according offer of proof or bill of exception.”

No. 05-20-00062-CV (Aug. 16, 2021) (mem. op.).

Relying on my fortune-telling skills (right), I offer these thoughts on the recent Texas Supreme Court orders in the ongoing mask litigation:

1. The court could have effectively ended the litigation with a complete stay, as it did last week in the “arrest the legislators” case.
2. It didn’t do that. Instead, it let temporary injunction hearings go forward in both Bexar and Dallas Counties. The Bexar hearing is today.
3. A decent guess is that there is division of opinion on the court and this order is a rough compromise, among: (a) Justices who would have ruled for the Governor (who “got something” in the form of the initial TROs being vacated; (b) Justices who want to further consider the evidence (or lack thereof) (and who “got something” by the TI hearings proceeding; and (c) Justices who were willing to “kick the can down the road” until after the TI hearings.

The Fifth Court affirmed the dismissal, on ecclesiastical-abstention grounds, of a fraud claim about the handling of a sex-abuse claim by the Roman Catholic Diocese of Dallas: “The district court determined that (i) the Dallas Diocese’s Sexual Misconduct Policy (Policy) was ‘an outgrowth of, or so integrally related to, the Dallas Diocese’s dogma that it comprises part of the Dallas Diocese’s religious representations, beliefs, and teachings,’ (ii) Doe’s fraud claim required Doe to prove the Dallas Diocese’s material representations to Doe were false, and (iii) the First Amendment to the Constitution of the United States prohibited the trial court from adjudicating the truth or falsity of religious doctrines or beliefs. Because Doe’s claims require resolution of matters of church government, we affirm the judgment of the trial court.” Doe v. Roman Catholic Diocese of Dallas, No. 05-19-00997-CV (Aug. 11, 2021) (mem. op.).

An old lawyers’ adage, sometimes attributed to Carl Sandburg, says in part: “If the facts are against you, argue the law. If the law is against you, argue the facts. …” Such are the battle lines in the Dallas County mask-mandate case now before the supreme court, in which the real-party-in-interest county judge points to an extensive affidavit and the support of several amici, while the SG’s office laser-focuses on the terms of the Government Code.

Clay Jenkins has filed his response to the AG’s mandamus petition to the Fifth Court of Appeals.

The dispute between Governor Abbott’s GA-38 order, on the one hand, and Judge Tonya Parker’s TRO / County Judge Clay Jenkins’ recent COVID order, on the other, has led to the filing of a mandamus petition in the Fifth Court on the Governor’s behalf. It is accompanied by a request for emergency relief that requests a ruling by Friday afternoon.

While In the Interest of Z.A. involved an issue unique to family law, the relevant facts are instructive about when the denial of a continuance can create reversible error: “Evidence presented at the hearing indicated that E.S.S. [the ‘alleged father’ was indigent and without transportation. Further, he was operating under the faulty assumption that testing would be scheduled in Sherman when he moved there. There was no testing facility in Sherman, however, and the caseworker did not inform him of this fact. And, as of the hearing date, E.S.S. was incarcerated in the Grayson County Jail. Although there is evidence the Department made some attempt to schedule a third appointment at the jail, there is no evidence as to why that did not happen. His attendance at a third appointment would have essentially been assured had it been scheduled to take place at the Grayson County Jail. When E.S.S. presented his motion, he asked the trial court to schedule the genetic testing before terminating his parental rights.” No. 05-21-00126-CV (Aug. 6, 2021) (mem. op.).

“An unexplained delay of four months or more can constitute laches and result in denial of mandamus relief.  Here, relators did not file the petition for writ of mandamus until July 28, 2021—more than four and a half months from the challenged oral ruling and three months after the trial court signed the complained-of order. We conclude that relators’ unexplained delay bars their right to mandamus relief.” In re Wages & White Lion Investments LLC, No. 05-21-00650-CV (July 30, 2021) (mem. op.) (citations omitted).

Two rulings about the crime-fraud exception to the attorney-client privilege were recently reversed, by both the Fifth Circuit and Dallas’s Fifth District, in response to mandamus petitions. (This is a cross-post with 600Camp.com.)

• In the Fifth Circuit: “[A]s Boeing argues, the district court clearly erred in finding that Plaintiffs established a prima facie case that the contested documents were subject to the crime-fraud exception. The district court concluded that the contested documents were reasonably connected to the fraud based on one finding only—that the documents sought ‘f[e]ll within the period Boeing admit to hav[ing] knowingly and intentionally committed “fraud” in the DPA. However, a temporal nexus between the contested documents and the fraudulent activity alone is insufficient to satisfy the second element for a prima facie showing that the crime-fraud exception applies.” In re The Boeing Co., No. 21-40190 (July 29, 2021, unpublished).
• In the Fifth District, the Court noted: “[A] determination at the TCPA stage as to a prima facie showing does not automatically translate to a prima facie showing for purposes of application of the crime–fraud exception to the attorney–client privilege. The exception UDF attempts to invoke is for crime–fraud, not crime–tort.” From there, it declined to follow a broad view of the exception defined by another Texas intermediate court, “and note that, notwithstanding certain language in the [relevant] opinion, the El Paso court continues to apply the elements of common-law fraud when determining the applicability of the crime fraud exception, rather than requiring proof of a false statement only.” In re Bass, No. 05-21-00102-CV (July 30, 2021) (mem. op.).

Mike Nomad (right) would have been at home in Forever Living Products, Int’l, LLC v. AV Europe GMBH, No. 05-20-00558-CV (July 30, 2021), a personal-jurisdiction appeal in which the record failed to show where the defendant corporation was based. The Fifth Court found that the plaintiff’s pleading asserted general jurisdiction over the defendant; the defendant sought to negate that basis for jurisdiction with affidavits about the location of its “nerve center.” The Court found that while the defendant had substantial connections to Germany at other points in time, in the relevant months leading up to the filing of suit its evidence was legally insufficient to negate general jurisdiction:

“AV Europe’s own evidence shows that its managing director has lived in Texas full-time since July 2018. It also shows that since June 2018 AV Europe ‘has been winding down,” which implies some level of activity, and that its activities have included at least the return of unsold products to HW&B. We see no evidence showing the location from which Hardy [the directpr] or any other AV Europe officer (if any) controlled these activities. We therefore conclude that the evidence was legally insufficient to show that AV Europe’s nerve center was outside of Texas from June 2018 until the filing of suit in January 2019.”

The Fifth Court revisited the borderline between “capacity” and “standing” in the context of a claim acquisition from bankruptcy in Obsidian Solutions, LLC v. KBIDC Investments, LLC, No. 05-19-00440-CV (July 30, 2021) (mem. op.).

Substantively, the Court reminded: “The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome; in contrast, the issue of capacity ‘is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.’ …  ‘When the issue involves capacity arising from a contractual right, “Texas law is clear, and this court has previously held numerous times, that a challenge to a party’s privity of contract is a challenge to capacity, not standing.”‘” (citations omitted, emphasis added).

Procedurally, the issue was tried by consent, even if the correct label was not applied.   “[A]t trial, the issue of whether KBIDC bought the assets out of bankruptcy and which assets were purchased arose during KBIDC’s direct examination of Kent. … The trial court listened to arguments from both sides on their interpretations of the APA before finding that the APA gave ‘authority to the Plaintiff for … the advancement of this suit.’ Given the parties’ arguments and the trial court’s ruling, we conclude that capacity was tried by consent in the trial court.” (emphasis added).

In TOS episode The Changeling, the Enterprise crew confronted a hostile space probe called “Nomad” (right). In Great Divide Ins. Co. v. Fortenberry, the Fifth Court confronted a nomadic case in which neither side established venue in Dallas County, when a provision of the Workers’ Compensation Act requires a case to proceed in the county where the employee resided at the time of injury.

The plaintiff, a former Dallas Cowboy, averred that he lived in a Residence Inn in Dallas County at the time of his training-camp injury, but the Court found his affidavit did not establish the necessary facts that he had “some right of possession and not be a mere visitor” at the time. It also rejected arguments based on correspondence he received from the defendant insurance company’s office in Irving. But on the other hand, the insurance company failed to establish that it had a “principal office” in Travis County, just by showing that its agent for notice and filing was based there. Accordingly, the Court remanded for further development of the record about venue. No. 05-19-01541-CV (July 26, 2021) (mem. op.).

In Ferrant v. Lewis Brisbois, No. 05-19-01552-CV (July 14, 2021) (mem. op.), a law firm client contended that no evidence established his consent to an hourly billing arrangement; the Fifth Court affirmed the judgment against him based on this “acknowledgment” at the time the client moved his business from another law firm —

and a “yes” answer to this jury question:

In re Frenkel illustrates an important procedural aspect of practice regarding sanctions; specifically, the supreme court’s holding in Braden v. Downey, 811 S.W.2d 922 (Tex. 1991) (orig. proceeding) about the interplay between an interlocutory sanctions order and the right to its appellate review.

In this case, the Fifth Court found that mandamus review of a $1000 sanction payable to TLAP was warranted because after final judgment, “the trial court would not have the means to compel TLAP to return the monetary sanction.”

Similarly, it found that a requirement to take certain ethics CLEs within 24 months of the order also require mandamus intervention, as “[t]here is no guarantee that a final appealable judgment will be rendered before the twenty-four month period expires,” particularly in light of the COVID pandemic. Accordingly, the Court required the trial court to defer both orders “until rendition of final judgment, thus allowing the merits of the sanctions order to be considered on appeal.” No. 05-21-000194-CV (July 13, 2021).

Two recent supreme court opinions involved the enforcement of statutes that the Court saw as prohibiting the filing of the action–In re: Academy, No. 19-0497 (June 25, 2021), in which a federal statute said that the specified kinds of cases about firearms sales “may not be brought in any Federal or State court,” and In re: Facebook, No. 20-0434 (June 25, 2021), about the Communications Decency Act’s command that “[n]o cause of action may be brought” about the subject matters of that Act. Both were enforced by petitions for writ of mandamus, based on the principle that “requiring [Defendant] to ‘proceed to trial–regardless of the outcome–would defeat the substantive right’ granted by” those statutes.

In Luciano v. SprayFoamPolymers LLC, No. 18-0350 (Tex. June 25, 2021), while the Texas Supreme Court said in a footnote that it was not addressing this specific question, its holding suggests that Texas’s focus on the “operative facts” of a case continues to have force in personal-jurisdiction disputes after the U.S. Supreme Court’s recent opinion in Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021): “Because the United States Supreme Court has confirmed that due process does not mandate a causation-only approach, we reject SprayFoam’s narrow conception of the relatedness requirement.  Instead, we apply the Supreme Court’s precedent to determine whether the Lucianos’ suit “arise[s] out of or relate[s] to” SprayFoam’s Texas contacts.”  

The trial court dismissed the plaintiff’s case in Ashrat v. Choudhry as involving a dispute about rights to real property located in Pakistan. The Fifth Court disagreed, noting as to the claim:

Ashrat does not dispute that Choudhry has title to the property in Pakistan. And, by this suit, Ashrat does not seek to divest Choudhry of that title. Instead, Ashrat seeks return of the money he gave Choudhry to purchase the property and disgorgement of any monies received by Choudhry as a result of his misuse of Ashrat’s funds.

and as to forum non conveniens:

Texas courts clearly have an interest in resolving a dispute between its citizens regarding an alleged agreement made within the State and claims of misappropriation and breach of fiduciary duty based upon that alleged agreement.

No. 05-20-00515-CV (June 30, 2021) (mem. op.).

If you are an email subscriber to this blog’s new posts, or subscribe to its RSS feed, please know that Google has discontinued its “Feedburner” service, so 600Commerce is converting to a similar (but hopefully much improved) service offered by “Follow.it.” With luck, the transition will be seamless. But if you experience a loss of service – or the opposite problem of multiple deliveries – please notify me at dcoale@lynnllp.com. Many thanks for subscribing

• In 2019, Bombardier Aerospace Corp. v. SPEP Aircraft Holdings holds that the written word matters: “Under our strongly held principles of freedom to contract, we hold that the limitation-of-liability clauses are valid limited warranties that were the basis of the parties’ bargain. … Although Bombardier’s conduct in failing to provide SPEP and PE with the new engines they bargained for was reprehensible, the parties bargained to limit punitive damages, and we must hold them to that bargain.”

• In 2020, Energy Transfer v. Enterprise emphasized that the written word matters: “We hold that parties can conclusively negate the formation of a partnership under Chapter 152 of the TBOC through contractual conditions precedent. ETP and Enterprise did so as a matter of law here, and there is no evidence that Enterprise waived the conditions.”

• During 2021, in In re the Estate of Johnson, the Court noted that actions also matter: “MacNerland was put to an election: either seek to set the will aside or accept the benefits Johnson bequeathed to her. She chose the latter. As a result, she ‘must adopt the whole contents of the instrument, so far as it concerns [her], conforming to its provisions, and renouncing every right inconsistent with it.’ Because MacNerland accepted benefits under Johnson’s will, the trial court properly dismissed her challenge to its validity.” (citation omitted).

• But last week, in BPX Operating v. Strickhausen, the Court again gave primacy to the written word: “Strickhausen bargained for a strong anti-pooling clause, she consistently withheld the written consent the clause requires, and she reiterated her objections multiple times. Although she accepted BPX’s money, she reasonably believed that one way or another she was owed an amount in the same ballpark as the checks she deposited.”

A recent “Writing Wednesday” post on this blog examined the distinctions among “signing,” “entry,” and “rendition.” Midwest Compressor Systems v. Highland Imperial reviews the contours of “rendition” and found that one occurred when the trial court orally stated: “Motion for directed verdict is granted. Court finds that this case does fall under the statute of frauds requirements.” Accordingly, a motion for a trial amendment that came after that announcement was untimely. No. 05-19-01115-CV (June 22, 2021) (mem. op.).

Solving several years of mischief arising from unclear statutory language, the governor recently signed an amended version of Tex. Civ. Prac. & Rem. Code § 38.001 to clarify when attorneys’ fees may be recovered in breach-of-contract actions. It is effective to cases filed on or after Sept. 1, 2021:

The Fifth Court had good news, and bad news, for the plaintiff suing for breach of an alleged oral contract in Midwest Compressor Systems v. Highland Imperial, Inc.:

GOOD NEWS: “Gerber testified not only that Prince solicited the compressors and urged him to deliver them quickly, but also testified about Highland’s receipt and use of the compressors. This evidence creates at least a question of fact regarding the existence of oral leases. See Tex. Bus. & Com. Code § 2A.204(a) (‘A lease contract may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of a lease contract.’)”.

BAD NEWS: “Midwest did not bill in advance for each day of Highland’s use; it billed in arrears for the 30 days’ use that had already occurred. Hence an invoice dated June 30 expressly stated it was for ‘June compressor rental.’ Thus, although the amount required for each lease could have been less than $1,000 if the leases had terminated after one day, each lease on which Midwest sought payment continued for thirty days and Midwest admitted the total amount fell within the statute [of frauds.]” No. 05-19-01115-CV (June 22, 2021) (mem. op.).

Reversing a Fifth Court opinion that had held otherwise, the Texas Supreme Court held: “A limited partnership’s agents for service of process are its general partner, Tex. Bus. Orgs. Code § 5.255(2), and its registered agent, id. § 5.201(b)(1). The evidence establishes that Miraki served only a WWLC employee described as its ‘owner,’ ‘president,’ and ‘CEO.’ Accordingly, we hold that WWLC demonstrated that it was not properly served.” WWLC v. Miraki, No. 20-0173 (June 18, 2021).

The long-running defamation case continues about a D Magazine article called “The Park Cities Welfare Queen,” most recently with the Fifth Court affirming the denial of the defendants’ summary-judgment motion: “There are multiple fact issues about whether Bender committed a crime by providing false or incomplete information to the HHSC to obtain thousands of dollars of SNAP benefits to which she was not entitled. Having reviewed the entire record, we conclude there is more than a scintilla of evidence that the gist of the Article is not substantially true.” D Magazine Partners LP v. Bender, No. No. 05-19-01525-CV (June 9, 2021) (mem. op.).

On Thursday, June 17 at noon, I’m giving an update on commercial cases of note from the past year in the Dallas Court of Appeals. It will be by Zoom and you can register here, and here is the PowerPoint that I’ll use (subject to continuing proofreading!)

With respect to court orders and judgments, the words “signed,” “rendered,” and “entered” are often used interchangeably. But those words have specific, technical meanings, and it is wise to remember those meanings when differences matter.  Accord, Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978) (“Judges render judgment; clerks enter them on the minutes.  …  The entry of a judgment is the clerk’s record in the minutes of the court.  ‘Entered’ is synonymous with neither ‘Signed’ nor ‘Rendered.’”).

Two rules set the background as to when critical countdowns commence:

• Tex. R. Civ. P. 306a: “The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court’s plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules authorize a party to file …”
• Similarly, Tex. R. App. P. 26.1 begins: “The notice of appeal must be filed within 30 days after the judgment is signed, except as follows …”

By contrast, “[j]udgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk.”  E.g., S&A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam).  And the above-quoted paragraph from Rule 306a concludes: “… but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose.”

By contrast, entry of judgment refers to the recording of a rendered judgment in the court’s official records. See, e.g., Lone Star Cement Corp v. Fair, 467 S.W.2d 402, 405 (Tex. 1971) (“The law is settled in this state that clerical errors in the entry of a judgment, previously rendered, may be corrected after the end of the court’s term by a nunc pro tunc judgment; however, judicial errors in the previously rendered judgment may not be so corrected.” (emphasis added)).

I gratefully acknowledge the excellent insights of Ben Taylor in preparing this post!

Dallas-Fort Worth is the fourth largest metropolitan area in the United States, and it is only a matter of time until it passes Chicago to become #3. Dallas is routinely ranked among the nation’s best cities. Yet it is significantly underrepresented on the Texas Supreme Court. Hopefully, geographic diversity will play a role in the appointment of a successor to Justice Eva Guzman.

Continuing a series of Retail Services WIS Corp. v. Crossmark, Inc., a preliminary-injunction case, the Fifth Court examined how the injunction addressed electronic information:

Weekley involved rule 196.4 discovery rather than a temporary injunction and was not a trade secrets case. Appellants cite no authority mandating Weekley’s application here and we have found none. Further, the law governing mandatory injunctive relief is consistent with Weekley’s requirement that ‘trial courts should be
mindful of protecting sensitive information and utilize the least intrusive means necessary to facilitate discovery of electronic information.’  As described above, rule 683 requires an injunction order to be specific and detailed and to ‘set forth the reasons for its issuance.’ And a preliminary mandatory injunction is proper only if a mandatory order is ‘necessary’ to prevent irreparable injury or extreme hardship. Though the DTO in this case is deficient for the reasons described in our analysis above, we cannot conclude Texas law entirely precludes mandatory injunctions requiring production of digital storage devices when the applicable standards—including rule 683’s specificity and irreparable injury requirements—are met.

No. 05-20-00937-CV (May 4, 2021) (citations omitted).

This post follows up on a recent post about Retail Services WIS Corp. v. Crossmark, Inc., a preliminary-injunction case involving the alleged misuse of trade secrets. The Fifth Court identified problems with the emphasized terms in various parts of a temporary-injunction order (some of which were repeated throughout the order):

• “The Court further finds that the CROSSMARK Confidential Information and Trade Secrets and other confidential and proprietary business information of CROSSMARK and business relationships of CROSSMARK are assets belonging solely to CROSSMARK.”
• “For purposes of this Temporary Injunction, ‘Covered Clients and Customers’  means those persons or entities that CROSSMARK provided services to and that the Former Employees either had contact with, supervised employees who had contact with, or received proprietary information about within the last twenty-four (24) months period that they were employed by CROSSMARK.”
• A ban on recruiting “any persons formerly or currently employed by or associated with Crossmark.”
• “directly or indirectly . . . taking any steps to cause any current client or
  customer of CROSSMARK, including [Client X and Client Y], to divert, withdraw,
  curtail or cancel any of their business with CROSSMARK.”
• Deletion of data about “existing or prospective customers or clients of CROSSMARK, as well as ”CROSSMARKinformation” and “other digital storage devices.”

No. 05-20-00937-CV (May 4, 2021) (mem. op.).

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, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

That principle animates the two sides of Toyota Motor Sales v. Reavis, No. 05-19-00075-CV (June 3, 2021), in which a 2-1 Fifth Court majority affirmed a $200+ million judgment in a products-liability case. Greatly simplified, the dispute between majority and dissent can be summarized with two quotes. The majority emphasizes state law and procedure:

At the heart of this case, like many product liability cases, was a battle of the experts. Plaintiffs’ experts examined physical evidence, performed tests, reviewed data, performed calculations, criticized Toyota Motor’s experts, and concluded the vehicle was defective. Toyota Motor’s experts did the same and concluded the vehicle was not defective. The jury properly exercised its prerogative to resolve this  conflicting evidence and believed the plaintiffs’ experts. This Court may not second guess the jury’s decision.

(emphasis added). The dissent, federal regulation:

“The Reavises’ theory of liability—that choosing to design a car with seatback strength far in excess of federal minimum standards and utilizing seatbelt design options permitted after decades of comprehensive federal regulation could support a conclusion that federal regulations are inadequate or that the overall design is defective as a matter of law—is unsustainable. …  I accept it as theoretically possible that every car ever marketed and sold to this point could be ‘defective’ and that their manufacturers could all be subject to exemplary damages on this basis, or, that virtually all such cars are defective for failure to employ ‘locking/cinching’ lap belts without regard to seatback rigidity, the proof should be up to the task.”

(footnote omitted, emphasis in original). This dialogue strongly echoes the “two narratives” at play in United States ex rel. Harman v. Trinity Indus., Inc., 872 F.3d 645 (5th Cir. 2017), which reversed a $600+ million judgment based on an allegedly-defective highway guardrail:

The trial in this case offers two narratives. One of a hardworking man who, angered by failures of guardrails installed across the United States — with sometimes devastating consequences — persuaded a Texas jury of a concealed cause of those failures. The other of the inventive genius of professors at Texas A&M’s Transportation Institute, who, over many years of study and testing, developed patented systems including guardrails that, while saving countless lives, cannot protect from all collisions at all angles and all speeds by all vehicles — guardrails that have been installed throughout the United States with an approval from which the government has never wavered as it reimbursed states for the installation of a device integral to the system.

The Greeks saw the all-powerful Zeus as the god of the skies; Haitian vodou, the storm-spirit Agau; and so forth throughout all the world’s cultures. Despite that tradition, the Fifth Court reversed a jury instruction that posed the following comparative-fault question:

“Though the jury here made no finding that the occurrence was proximately caused by the acts or omissions of more than one person, question number two of the charge allowed the jury to find a ‘percentage of the negligence’ attributable to ‘Weather/Road Conditions,’ which was not a person or party whose negligence was found to have been a proximate cause. This was not consistent with section 33.003(a) or rule 277.” Panameno v. Williams, No. 05-19-01496-CV (June 1, 2021) (mem. op.) (emphasis added).

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 that the use of electronic contracts already exceeds the use of paper contracts or that it will soon. The [Texas Uniform Electronic Transactions Act] does not limit the ways in which electronic contracts may be proved valid, but it specifically states that proof of the efficacy of the security procedures used in generating a contract can prove that an electronic signature is attributable to an alleged signatory. An opposing party may, of course, offer evidence that security procedures lack integrity or effectiveness and therefore cannot reliably be used to connect a computer record to a particular person. But that attribution cannot be cast into doubt merely by denying the result that reliable procedures generate.”

(footnote omitted). A dissent would have evaluated the record differently. No. 20-0290 (Tex. May 28, 2021).

No disclaimer found when: “[T]he specific misrepresentations about which Amy complains, that Paul said he was walking away from the title business but was actually accepting a bonus and a well-paid position with Alamo, were not referenced in the agreement and were not disclosed to Amy. Thus, we reject the Mundheims’ argument that the disclaimer-of-reliance provision in the agreement was binding to preclude Amy from asserting she relied on the Mundheims’ misrepresentations when she entered the agreement.” Mundheim v. Lepp, No. 05-19-01490-CV (May 13, 2021) (mem. op.).

This timeline led the Fifth Court to deny a request for leave to file a late notice of appeal:

• December 15, 2020. Trial court signs a final divorce decree.
• January 14, 2021. Appellants first learn of the decree by seeing it on the court’s docket. They file a motion for new trial that same day.
• March 15, 2021 became the new deadline for filing a notice of appeal.
• March 25, 2021 was when Appellants filed their notice of appeal.

The Court found the grounds in the motion for leave unpersuasive, noting: “[A]lthough counsel and her firm may have been preoccupied with other matters between February 15 and March 5, and counsel may have been busy handling an emergency after that time, appellants fail to explain how this prevented them from timely filing the notice of appeal.” In the Interest of D.M., No. 05-21-00185-CV (May 21, 2021) (mem. op.).

Cooper v. Cooper presented an issue about the entry of a consent judgment after one of the parties withdrew its approval. The Fifth Court found that by the time judgment was rendered, the trial court was on notice about the issue with that party’s consent, making it an abuse of discretion to proceed to entry of judgment based on the earlier agreement. No. 05-20-00507-CV (May 4, 2021) (mem. op.) This topic can be surprisingly challenging in Texas state practice given the wide range of agreements covered by Tex. R. Civ. P. 11 — this is a 2019 article that I co-authored about some of those procedural issues.

Brown v. Daniels presents a detailed review of allegations against the Dallas County Sheriff’s office about the operation of the county jail during the COVID-19 pandemic; the Fifth Court ruled for the sheriff in all respects, reversing the denial of her plea to the jurisdiction, and rendering a judgment of dismissal. No. 05-20-00579-CV (May 19, 2021) (mem. op.).

Retail Services WIS Corp. v. Crossmark, Inc., a preliminary-injunction case involving the alleged misuse of trade secrets, made these observations (among others):

• Trade secret existence. The plaintiff adequately established the existence of a trade secret with testimony that “(1) Crossmark possesses information it considers confidential, including playbooks and digital transformation strategies, that would give a competitor ‘insight into what we’re working on’ and an opportunity ‘to cut corners and create a shortcut to allow them to be able to compete effectively and potentially even, you know, take it further faster than we are’; 2) Crossmark takes multiple steps to protect that information, including limiting access and requiring employees to sign confidentiality agreements; and (3) the digital demo display customers see in stores is ‘just the tip of the iceberg’ and does not constitute the entirety of Crossmark’s strategy.“
• Order specificity. While the Court said that “much of th[e] provision is conclusory” that described the harm justifying the injunction, it concluded: “[T]wo portions address ‘reasons why’ Crossmark will suffer irreparable injury: ‘because once CROSSMARK trade secrets are improperly used and disclosed, they are forever lost and such loss is cannot be calculated in money damages’ and ‘CROSSMARK’s customer and client goodwill, which has been developed over many years, will be harmed and such harm cannot be quantified in money damages.'”

The Court went on to identify a number of problems with the specificity of the enjoined acts, as well as the requirement that certain electronic storage devices be turned over, and the details of those holdings will be reviewed in a future post. No. 05-20-00937-CV (May 4, 2021) (mem. op.).

The Fifth Court’s former Chief Justice, Linda Thomas, wrote an excellent op-ed in this weekend’s Dallas Morning News about recent efforts to restructure the Texas court system.

“[R]eal parties expressly renounced their contractual right to a nonjury trial when they repeatedly demanded a jury and paid the jury fee. Having done so, they cannot ask this Court to enforce that contractual right by mandamus. Relator was entitled to rely upon real parties’ conduct. And the record establishes that relator did rely on real parties’ conduct: relator never objected to real parties’ jury demands, and when real parties first indicated the possibility of asserting their contractual right by filing the Notice, relator immediately filed its own jury demand and fee.” In re PlainsCapital Bank, No. 05-20-00765-CV (May 13, 2021) (mem. op.).

“The temporary injunction before us does not include an order setting the case for trial on the merits with respect to the ultimate relief sought. Therefore, the order does not comply with [Tex. R. Civ. P. 683], is void, and must be dissolved.” City of Dallas v. Stamatina Holdings LLC, No. 05-20-00975-CV (May 7, 2021) (mem. op.).

In JLB Builders LLC v. Hernandez, the Texas Supreme Court reversed an en banc Fifth Court opinion about a construction-site accident. The issue was the general contractor’s right of control over the workplace, and the supreme court reached these conclusions about key aspects of that issue (all emphasis added):

• Direction. “Hernandez references his additional testimony that he had previously seen JLB supervisors talking to [the subcontractor’s] foremen and that the supervisors ‘appear[ed] to be giving instructions as to how our jobs were to be done.’ Without more, evidence of what JLB generally ‘appeared’ to be doing is no evidence that it was exercising actual control over the details of the injury-causing work.”
• Safety requirements. “A general contractor that promulgates mandatory safety requirementsand procedures owes only a narrow duty to ensure that those requirements and procedures generally do not ‘unreasonably increase, rather than decrease, the probability and severity of injury.'”
• Direction. “[T]here is no indication that JLB was aware that the wind posed a particular danger that day, and the testimony that JLB employees ‘could watch’ the supports being secured is not evidence that they did so or that they were aware the supports were improperly secured.”

(In my three-part system for categorizing Texas intermediate-court en banc opinions, JLB Builders would be a “successful failure,” in that it drew supreme court attention but for the purpose of reversal.)

Service was inadequate to support a default judgment when: “The record before us shows the citation was addressed to ‘U.S. Bank Trust, N.A.’ However, the defendant in the action and the party against whom the default judgment was taken is ‘U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust.’ There is no evidence in the record that service was had upon ‘U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust.'” U.S. Bank Trust, N.A. v. AJ & Sal Enterprises, LLC, No. 05-20-00346-CV (April 30, 2021) (mem. op.).

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 following facts: “On May 25, 2014, Faber went to pick her mother up at Dayspring [Assisted Living Community] to take her to a hair styling appointment. Faber parked in Dayspring’s parking lot and asked a Dayspring employee to help Millie to the car. Millie, who had become a Dayspring resident only a week earlier, used a rolling walker and sat on it facing backwards as the Dayspring employee pushed her along the public sidewalk outside Dayspring’s entrance. Millie’s walker got caught in a large crack in the sidewalk, causing her to fall and hit her head on the concrete.” 

A 5-justice dissent saw otherwise: “The facts that form the basis of Faber’s suit show that Smith did not simply trip over a crack in the sidewalk. Instead, she fell because a staff member of the health care institution in which she resided pushed her over a crack in the sidewalk while she was seated in a wheeled walker causing her to fall. Because of this, Faber’s claim is inextricably intertwined with the conduct of, and duties owed by, Collin Creek as a health care provider.”  Faber v. Collin Creek Assisted Living Center, No. 05-18-00827-CV (May 3, 2021).

The Phantom, longtime defender of Bangalia, is often called the “Man Who Cannot Die.” Neither do disputes about the scope of issue statements; in a counterpoint to a recent opinion that read Flakes narrowly, the Fifth Court rejected a Flakes-based objection to a charge-error issue: “Following the supreme court’s mandate, we conclude that, fairly subsumed in Ziehl’s briefing, is the challenge to the trial court’s judgment awarding contribution to all parties who failed to secure a statutorily required jury instruction.” Ziehl v. Tornado Bus, No. 05-19-00901-CV (April 22, 2021) (mem. op.).

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. A Fifth Court panel concluded that “[t]he special appearance order merged into the final judgment mooting this interlocutory appeal. ” In later proceedings, the Court denied en banc review, over a detailed dissent. No. 05-19-01551-CV (April 28, 2021).

• 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 Justice Myers did not participate) argued that specialized comparative-fault schemes under other relevant statutes should control rather than the general comparative-fault statute.
• A concurrence by Justice Smith expressed frustration at the present rules and practices governing the sealing of court records.

In re: Cook, No. 05-20-00205-CV (April 28, 2021). (A big 600 Commerce shoutout to my friend Ben Taylor for his able assistance in reviewing these opinions).

Beamers Private Club v. Jackson, a high-profile dram shop liability case involving former Dallas Cowboys, presented both a review of legal and factual sufficiency of the evidence supporting the jury’s verdict for the plaintiff. The factual-sufficiency challenge was based on the testimony of nightclub employees; the Fifth Court rejected it, observing: “At the time the servers and doorman gave their initial statements, which corresponded on the question of visible intoxication with their testimony at trial, they were employees of the club. And Brent himself testified that his teammates ‘had his back’ in the aftermath of the accident and Brown’s death. Despite these witnesses’ statements that they saw no signs that Brent was intoxicated, jurors could have reasonably concluded that their statements were subject to personal interest and were not credible. Jurors could have determined that Brent’s intoxication, as seen on the club’s video, was apparent to anyone present and watching.” No. 05-19-00698-CV (April 20, 2021) (mem. op.).

Oral argument in the Amber Guyger appeal is at 1:00 today, it will be available to view on the Court’s Youtube channel.

I briefly discuss the case along with some new Supreme Court matters in an interview on KLIF this morning.

Ziehl’s car was hit by a Tornado bus, driven by Luviano. Ziehl and his passengers sued Tornado and Luviano. The jury found that Ziehl and Luviano were negligent, and that Tornado and Ziehl’s employer (SCR Construction Co.) were not. In response to the next question the jury found:From there, the court found that Luviano was entitled to contribution from Ziehl for 35% of all plaintiffs’ damages, and also reduced Ziehl’s damages by 35%.

The Fifth Court agreed with Ziehl that this adjustment was improper, noting: “Using the word ‘shall’ three times in [CPRC] section 33.016(c), the Legislature specifically and clearly imposed an obligation on the trier of fact to make a separate finding of the percentage of responsibility for each contribution defendant. The finding must be solely for the purpose of [CPRC] section 33.016 and cannot be part of the percentage of responsibility determined pursuant to section 33.003.” The Court reversed “[b]ecause the statute makes the question mandatory and the question was neither requested nor given ….” Ziehl v. Tornado Bus, No. 05-19-00901-CV (April 22, 2021).

CNN recently reported on a Capitol rioter who was turned in by an unimpressed Bumble match (right). This story illustrates precisely the kind of “red-blue” interaction (admittedly, with less romanticism) that jury service forces when it brings together people of different backgrounds and interactions.  These interactions are increasingly important in our divided times, and have taken on new dimensions after the difficult year of 2020. I discuss this topic (jury selection, not date-getting) with top jury consultant Jason Bloom in the most recent episode of the Coale Mind podcast.

In Snell v. Ellis, the Fifth Court noted – but did not resolve – the issue whether an agent’s speech on behalf of a principal can implicate the TCPA. It did observe, however, that: “The plain text of section 27.005(b), long-standing rules regarding agency, and our decisions in other contexts suggest the answer is ‘no’ ….” No. 05-20-00642-CV (April 5, 2021) (mem. op.)

Among other issues in Barcus v. Scharbauer, the Fifth Court affirmed the appellee’s testimony about the fair market value of certain artwork: “Appellants challenge the legal sufficiency of proof of commercially reasonableness of sales as proving market value and proving market value at a time over a year before the sales. … However, appellants do not dispute Mohle’s testimony that the sales were commercially reasonable or point to any evidence in the record that the sales were ‘out of the ordinary in some way.’ … A reasonable factfinder could decide Mohle’s testimony about the reasonably commercial sales conformed to the legal definition and theory of fair market value established by willing sellers and buyers under no compulsion.  A reasonable factfinder could credit Mohle’s testimony regarding the sufficient stability of the art market to conclude the sales in 2018 established fair market value a little more than a year earlier in 2016.”  No. 05-19-01121-CV (April 15, 2021) (mem. op.) (citations omitted). (My LPHS colleagues Eric Pinker and Paulette Miniter represented the successful appellee in this case.)

This week on the “Coale Mind” podcast, I had top-flight jury consultant Jason Bloom as a special guest; in the episode we touch on the many pervasive effects that 2020 will have on jurors and jury selection, including:

– A surprising eagerness of people to show up and serve on juries, in part driven by widespread feelings of frustration after months of shutdown;

– Concern about what Jason calls the “massive exercise in confirmation bias” that potential jurors bring to the courthouse with them, depending on how restricted a juror’s information sources may be;

– The once-obscure psychological terms “ultracrepidarian” and “pareidolia” (you have to listen to the podcast to explore those terms’ meaning 🙂;

– Remembering that 2020 changed potential jurors not only because of COVID, but because of Black Lives Matter, the Biden-Trump election and its aftermath, etc.

– And a reminder that jury service—unlike the similar civic-engagement exercise of voting—forces jurors to form a consensus among their different beliefs; and

– Why 1-page written questionnaires for potential jurors may be particularly useful now in light of the above issues.

“[A]ppellants initiated the underlying suit and then essentially abandoned the proceedings they had set in motion. Appellants failed to participate in depositions even though the trial court and appellees attempted to make remote participation in the depositions possible. Not until appellees’ fourth motion to compel did the trial court impose death penalty sanctions on appellants and strike their pleadings. Under these circumstances, we conclude the trial court did not abuse its discretion in awarding  sanctions four times in response to appellants’ failure to appear at depositions and ultimately striking appellants’ pleadings.” Boktor v. U.S. Bank, No. 05-19-01306-CV (April 7, 2021) (emphasis added).

The Fifth Court granted mandamus relief as to the denial of a responsible third party designation, summarizing the record as follows: “Based on the evidence produced by relators, a jury could infer that Stephens modified and used Del Rio’s scaffolding solely because Electro Acoustics failed to provide him with the necessary equipment to safely perform his work. Accordingly, a jury could conclude Electro Acoustics’s omission was a substantial factor in bringing about Stephens’s injuries. Furthermore, a jury could reasonably conclude that a person of ordinary intelligence could appreciate the danger of requiring an employee to work in high spaces without providing the equipment required to reach and work in the area safely.”  in re Kilmer, No. No. 05-20-00814-CV (April 7, 2021) (mem. op.) (applying Advance Tire & Wheel v. Enshikar, 527 S.W.3d 476, 480 (Tex. App.–Houston [1st Dist.] 2017, no pet.).

Farewell to the I-35 Court of Appeals, one of many courts that would have arisen from SB11 in this Legislative term. Fortunately, the bill’s main advocate abandoned the effort yesterday; she correctly notes that the topic of court structure is one “with many stakeholders” that should be considered in a deliberate way. 

The parties’ dispute in Sazy v. J.R. Birdwell Constr. & Restoration, LLC went to trial and final judgment on the jury’s verdict. The sole issue on appeal was the denial of the defendant’s motion to transfer venue pretrial. While pretrial review of venue decisions is significantly limited by statute, those decisions are fair game for appeal post-trial. No. 05-19-01351-CV (April 1, 2021) (mem. op.).

The state Senate has undertaken the redistricting the current 14 intermediate-court districts in Texas; Law360 has a thorough story and related chart after a recent Jurisprudence Committee hearing. As for Dallas, the Senate’s plan links Austin and Dallas (right, below), cities that have been jurisprudentially distinct since at least 1893 (left, below). Please make your opinions known on the “I-35 Court of Appeals” as the Legislature continues to consider this proposal.

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 the majority opinion from Herczeg v. City of Dallas, which found waiver in a sovereign-immunity case because the opening brief did not address untimeliness or exhaustion of remedies. It distinguished St. John Missionary Baptist v. Flakes, 595 S.W.3d 211 (Tex. 2020), as involving “two grounds [that] were not actually independent but were inextricably intertwined,” while here, “untimeliness and failure to exhaust administrative remedies are independent of the City’s other grounds, which focused on the merits of Herczeg’s claims.” A dissent questioned whether the older authority cited by the majority continued to be viable after Flakes. Justice Garcia wrote for the majority, joined by Justice Smith; Justice Schenck dissented. No. 05-19-01023-CV (March 29, 2021) (mem. op.).

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 the vexing problem of jury charges that mix valid and invalid elements. The Fifth Court’s majority opinion in Kansas City Southern Ry. Co. v. Horton, No. 05-19-00856-CV (March 11, 2021) (mem. op.), after finding one of the plaintiffs’ two liability theories preempted by federal law, found a Casteel issue with a broad-form negligence submission in a personal injury case. It distinguished an earlier Dallas case and a Corpus Christi decision as involving factual-sufficiency rather than legal-validity issues. A dissent took issue with the holding about preemption.

“’When a trial court’s order does not specify the grounds for its summary judgment, an appellate court must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious.’  However, when the trial court’s summary judgment order does
specify a ground on which it was granted, we generally limit our review to that ground. 
Here, because the trial court’s summary judgment order specified the ground
on which it was granted—that Finley was a released party because the term
‘predecessor’ in the Release includes an entity that was a ‘predecessor in title’ to
the subject property interest—we will limit our review to that theory.” Headington Royalty v. Finley Resources, No. 05-19-00291-CV  (March 18, 2021) (citations omitted) (emphasis added).

This is a cross-post from 600Camp, which follows commercial litigation in the Fifth Circuit.

The DC Circuit’s recent style manual amendment that criticized the use of “Garamond” font has drawn national attention. As this matter has now become a pressing issue facing the federal courts, 600Camp weighs in with these thoughts, all of which are written in 14-point size:

Accordingly, if you really like Garamond and are writing a brief with a word limit rather than a page limit, you should consider bumping the size up to 15-point. And of course, in a jurisdiction with page limits rather than word limits, Garamond offers a way to add more substance to your submission–but be careful that this extra substance does not come at the price of less visibility.

The Fifth Court rejected an argument that a supreme court emergency order extended the trial court’s plenary power after a case’s dismissal: “[T]he language in the emergency orders ‘giving a court the power to modify or suspend “deadlines and procedures” presupposes a pre-existing power or authority over the case or the proceedings. . . . It does not suggest that a court can create jurisdiction for itself where the jurisdiction would otherwise be absent[.]’ Here, the trial court lost jurisdiction over the case on July 20, and the motion to reinstate was not filed until November. Because the trial court lacked jurisdiction over the case by the time the motion to reinstate was filed, it could not avail itself of the emergency order to reinstate the case, and the challenged orders are void.” Quariab v. Khalili, No. 05-20-00979-CV (March 15, 2021) (mem. op.) (citing In re State ex rel. Ogg, No. WR-91,936-01, 2021 WL 800761, at *3 (Tex. Crim. App. Mar. 3, 2021)).

“Texas law provides district court judges with ‘the power to
issue writs necessary to enforce their jurisdiction.’ While the Taxing Entities urge the Post Judgment Order falls within this power to ‘enforce’ the judgment, they fail to explain how an order withdrawing part of the relief afforded by the judgment would amount to ‘enforcement’ or be available to a party after expiration of the trial court’s plenary power other than by appeal.” NMF Partnership v. City of Dallas NMF Partnership v. City of Dallas, No. 05-19-01578-CV (March 17, 2021) (mem. op.) (citations omitted).

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] causes of action . . . related in any way to the Loving County Tract” refers to (i) Petro Canyon and its affiliates’ corporate entities and agents (‘Players’) or (ii) prior parties in Petro Canyon’s chain of title (‘Spectators’) that are otherwise unrelated to Petro Canyon.” 

Held: “‘[P]redecessors’ is in a string of entity-related groups (‘Players’), not chain of title-related owners of the real property interest (‘Spectators’). Excluding ‘predecessor,’
each of those other terms in the Release relate as ‘birds of a feather’ to the corporate
composition or structure of Petro Canyon and its affiliates. The placement of the
term ‘predecessors’ along with its ordinary meaning gives the term a certain legal
meaning.”

Dissent: “The majority’s interpretation of the term “predecessors” in the Release fails to acknowledge the context of the circumstances surrounding the PCH Agreement, including the events leading to its formation, the relationships of the parties, each party’s motivations for entering the agreement, and the intentions of the parties as expressed in the agreement. The majority’s interpretation of the Release also impermissibly adds language to the Release, and the majority opinion conflicts with this Court’s prior opinions.” Headington Royalty v. Finley Resources, No. 05-19-00291-CV  (March 18, 2021).

My colleague Michael Hurst wrote an insightful op-ed in the Dallas Morning News about a proposed system of specialized business courts for Texas. He questions whether it fits well with constitutional guaranties of the right to jury trial.

In Anubis Pictures LLC v. Selig, a dispute about the development of a screenplay, two terms from an early-stage NDA were key to resolving it:

As to the parties’ relationship: “Neither party is bound to proceed with any transaction between the parties unless and until both parties sign a formal, written agreement setting forth the terms of such transaction. At any time prior to the completion of such a formal, written agreement, either party may terminate the Discussions and refuse to enter into any subsequent transaction, for any reason or for no reason, without liability for such termination, even if the other performed work or incurred expenses related to a potential transaction in anticipation that the parties would enter into a formal, written agreement regarding such transaction.”

As to the documents shared: “To be covered under the terms of the NDA, confidential information disclosed in written form was required to be marked confidential on its face. Any oral statement intended to be confidential had to be clearly designated as such by the disclosing party.”  No. 05-19-00817-CV (March 3, 2021) (mem. op.).

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 produced.” and (2) “relied on the affidavit of the President of one of [the movant’s] portfolio companies, which contains conclusory allegations concerning the confidential nature of [its] business and strategies, and of potential harm. Those assertions, in and of themselves, are not dispositive of the objection to confidentiality.” In re Edelman, No. 05-21-00085-CV (March 5, 2021).

A dissent concluded that one of the documents was protected by Texas’s shield statute, observing: “[The interest implicated by Exhibit M is not merely proprietary but also appears to concern a recurring relationship between a media relations firm and a news reporter, the disclosure of which would directly implicate the journalist’s news gathering rights.”

A group of investors (“FPH”) in a business (“FSG”) sought the appointment of a receiver to review and report on the finances of FSG. The trial court (1) agreed, and then (2) allowed FSG to supersede the order with a $10,000 bond while it took an interlocutory appeal, but then (3) allowed FPH to post a “counter-supersedeas bond” of $11,875 so that the receiver’s work could proceed during the interlocutory appeal. The Fifth Court found that “[TRAP] 24.2(a)(3) expressly permitted the trial court to allow FPH to post a counter-supersedeas bond,” and then found the bond amount to be appropriate in light of “[t]he fact that FSG continues to have sole control of its management” and the evidence presented about FSG’s financial situation. Five Star Global, LLC v. Hulme, No. 05-20-00940-CV (March 2, 2021).

Gharavi owned a business that won an arbitration against Khademazad. Gharavi sued to enforce the award, and along the way, made a comment about Khademazad and the award on Yelp. The parties resolved their differences and entered a settlement agreement of the lawsuit about the award, in which Khademazad released all claims “directly or indirectly attributable to the transaction or occurences made the basis of this lawsuit.” Several weeks later, Khademazad sued for libel and similar claims based on the Yelp post. The Fifth Court found that this suit was barred by the release: “Without question, the Yelp review was, if not directly, then indirectly attributable to Khademazad’s failure to pay for Aidris’s services and the lawsuit that followed. Khademazad’s claims here are clearly within the subject matter of the release.” Gharavi v. Khademazad, No. 05-20-00083-CV (Feb. 2, 2021) (mem. op.).

The parties in Ninety Nine Physician Services, PLLC v. Murray arbitrated a business dispute; the lingering issue at confirmation was an award of $341,680 in attorneys’ fees. The Fifth Court found that the award was proper, reasoning as follows:

1. “[U]nder the parties’ distinct agreement and incorporation of the AAA rules, there were three circumstances in which the arbitrator was vested with the authority to award attorney’s fees (1) if all parties requested such an award or (2) if it was separately authorized by law or (3) if it is authorized by the arbitration agreement.” (emphasis in original); and then
2. “Both parties submitted posthearing briefs in which they requested attorney’s fees. In their briefing, Appellees urged, as they do here, there was no basis in the general law to award fees to Appellant. … Appellees contend Appellant’s post-hearing brief is not a proper request for attorney’s fees. The arbitrator in interpreting the Commercial Rules evidently disagreed with Appellees and found the post-hearing briefs to be requests for attorney’s fees under Rule 47(d)(ii).” 

The Court thus reversed a trial-court ruling that vacated that portion of the award. A concurrence would have reached the same result for a different reason: “Because appellant did not file any pleading affirmatively seeking attorneys’ fees until after the arbitration hearing, the arbitrator abused his discretion in awarding attorneys’ fees to appellant. The arbitrator’s mistake of law, however, is not grounds to vacate the award,  and the trial court erred in doing so. Consequently, appellant was entitled to enforcement of the attorneys’ fees award but not on the basis relied upon by the majority.” No. 05-19-01216-CV (Feb. 22, 2021) (mem. op.).

The Texas Supreme Court heard arguments today in In re: Estate of Johnson, No. 05-18-01193-CV (Nov. 4, 2019) (mem. op.), which presents a fundamental issue in Texas probate law–whether a beneficiary’s acceptance of benefits under a will defeats that beneficiary’s standing to challenge that will.

If you have power and a little time for a half-hour of ethics CLE, the State Bar Litigation Section has put together this good video about the proposed new disciplinary rules. The voting period ends March 4 and you can do that on the State Bar website.

Allegations about a great deal of activity that does not implicate the TCPA,’s protection of the right of association, do not implicate the TCPA’s protection of the right of association: “Tiffany first contends that Rupert’s allegations of conspiracy and joint enterprise meet this standard because they involve the disposition of Marie’s estate (including certain community property) and ‘two decades of publicly filed lawsuits.’ She cites no authority for the proposition that the estate proceedings of a private individual involve public or citizen’s participation, and we have found no such authority. Likewise, we find no authority supporting the notion that extended litigation between and among these parties becomes a matter of public or citizen’s participation merely because of its volume or allegedly repetitive nature. On the contrary, the allegations made by Rupert are of an intensely personal nature, and they address actions involving the personal relationships within the Pollard family.”  Pollard v. Pollard, No. 05-19-00240-CV (Feb. 8, 2021) (mem. op.).

In a premises-liability case, the defendant challenged the expert testimony relied upon by the plaintiff. The Fifth Court rejected the challenge, reasoning: “Essentially, United contends that because English’s opinions have been excluded by other courts, we should “follow the lead” of these other courts and not consider them. We reject United’s invitation. United has not cited to any specific conclusory statements in English’s report. Rather, United argues that English’s report is conclusory because he provided a ‘cut-and-paste job’ that is a ‘rather generic’ opinion that ‘he regurgitates every time he
is hired.’ However, such statements provide no particular basis for United’s
objection. Objections that statements are conclusory may not be conclusory
themselves.” McIntyre v. United Supermarkets, No. 05-19-01252-CV (Feb. 4, 2021) (mem. op.).

Sherie McIntyre was injured when she fell in a pothole in a grocery store parking lot. The Fifth Court (in Justice Craig Smith‘s first appearance in this blog) reversed a defense summary judgment in McIntyre v. United Supermarkets, finding a fact issue on the question of the store owner’s constructive knowledge of the pothole: “Trevino testified that he inspected the parking lot approximately twenty to twenty-four times during the first six months of the store’s opening. He noticed the spot where McIntyre fell but ‘didn’t feel that it needed to be repaired . . . It never stood out as a hazard.’ Thus, Trevino’s repeated inspections put him in close proximity to observe the pothole, which he in fact did notice. Trevino acknowledged that the parking lot was restriped before United opened the new store and had not been restriped since then. A picture of the pothole shows the white stripe going over part of the pothole indicating it had been present for at least six months. Thus, McIntyre produced more than a scintilla of evidence to raise a genuine issue of material fact as to whether United had constructive notice of the pothole.” No. 05-19-01252-CV (Feb. 4, 2021) (mem. op.). The Court also found a fact issue on the question of unreasonable danger.

Toyota Motor Sales v. Reavis, a companion case to a still-ongoing appeal of a major products-liability judgment, affirmed the denial of Toyota’s motion to seal certain trial exhibits. After reviewing Toyota’s case for confidentiality, the Fifth Court then turned to available less-restrictive means, holding: “Beyond Toyota’s blanket assertions that a total seal is necessary and redaction would be meaningless, Toyota did not offer any additional testimony or evidence regarding whether the Toyota documents could be redacted or otherwise altered while still protecting its interest. Toyota also contends on appeal that it showed sealing was the least restrictive means to protect its interest here because it sought to seal ‘just four exhibits from a trial involving over 900 exhibits and [covering] pages of closed-courtroom testimony from more than 3,200 pages of trial
transcripts.’ This argument misses the point. Rule 76a imposes strict requirements to obtain a sealing order, and parties are not rewarded with a sealing order simply because they ask the court to only seal a few exhibits or a small amount of testimony. No matter how many exhibits a party seeks to seal, that party must still meet the
requirements of the rule.” No. 05-19-00284-CV (Feb. 4, 2021) (mem. op.).

Toyota Motor Sales v. Reavis, a companion case to a still-ongoing appeal of a major products-liability judgment, affirmed the denial of Toyota’s motion to seal certain trial exhibits. Noting the general presumption in favor of open records, the Fifth Court observed, inter alia:

• “[E]ven assuming the court records contain trade secrets, the existence of trade secrets standing alone is insufficient to overcome the presumption of openness and allow the records to be permanently sealed.”
• “Because Toyota did not take adequate steps during trial to protect the exhibits and related testimony from public disclosure and did not seek an instruction prohibiting the jury and other non-parties from discussing the documents beyond the setting of the trial, we conclude any interest Toyota had in maintaining secrecy of the records does not “clearly outweigh” the presumption of openness.”

No. 05-19-00284-CV (Feb. 4, 2021) (mem. op.).

A vote is underway – eight new Texas Disciplinary Rules have been proposed, and the supreme court has authorized a State Bar membership vote about them. This page has information about the proposed rules.

Singh v. Gill reminds of the importance of strict compliance with Tex. R. Civ. P. 106, the substituted-service rule:

• Location. “Gill’s affidavit stated only that Gill did not know where Singh could be found. Her attorney’s affidavit recounted e-mail and telephone conversations with Singh in which he refused to provide his location. Neither affidavit, however, stated facts showing that service under rule 106(a) had been attempted. … “
• Attempts. “Moreover, the affidavits do not exhibit the diligence necessary to support substituted service. ‘A diligent search must include inquiries that someone who really wants to find the defendant would make, and diligence is measured not by the quantity of the search but by its quality.’ Here, there is no indication that Gill’s diligence included searching public data or ‘obvious inquiries’ a prudent investigator would have made,’ such as attempting service by mail to obtain a forwarding address or locating and contacting other persons who would likely have information about Singh, beyond Singh’s immediate family in India.”

No. 05-19-01146-CV (Jan. 20, 2021) (mem. op.).

This is a crosspost from 600Hemphill, which follows business litigation in the Texas Supreme Court; the court of appeals opinion under review came from the Fifth Court.

_______

A per curiam opinion, based on the Court’s recent opinion in Federal Home Loan Mortgage Co. v. Zepeda, 601 S.W.3d 763 (Tex. 2020), reminded about a lender’s equitable-subordination rights:

“[E]quitable-subrogation rights become fixed at the time the proceeds from a later loan are used to discharge an earlier lien. A lender’s negligence in preserving its rights under its own lien thus does not deprive the lender of its rights in equity to assert an earlier lien that was discharged using proceeds from the later loan. Although we considered the lender’s negligence in Sims, that analysis is limited to the lien-priority context.

Applying Zepeda to this case, the court of appeals erred in concluding that PNC’s failure to timely foreclose under the deed of trust bars its subrogation rights. The availability of better credit terms and interest rates can make refinancing an attractive financial tool for borrowers. Subrogation operates as a hedge against the risk of refinancing the outstanding amount of an existing loan, opening this credit market to borrowers. Subrogation permits a lender to assert rights under a lien its loan has satisfied when the lender’s own lien is infirm.” PNC Mortgage v. Howard, No. No. 19-0842 (Jan. 29, 2021).

A construction company sued for nonpayment; on the eve of trial, the defendants objected to the admission of damages evidence because an earlier request for disclosure, served with the answer, had not been answered. The Fifth Court affirmed the trial court’s decision to exclude, noting a lack of evidence either as to good cause or a lack or prejudice (it is not clear from the opinion what other discovery may have been done: “Construction offered no evidence to demonstrate the absence of unfair surprise or prejudice. Indeed, there is nothing to suggest that Defendants had enough evidence to reasonably assess settlement, avoid trial by ambush, or prepare rebuttal to expert testimony.” (citation omitted). F 1 Construction v. Banz, No. 05-19-00717-CV (Jan. 20, 2021) (mem. op.)

A late discovery supplementation may be allowed if the party shows good cause and a lack of unfair surprise. The Fifth Court reversed a trial court ruling about an expert supplementation when, inter alia: “The record shows (1) Mr. Longeway’s report was based almost entirely on his inspection of the job site’s deactivated electrical lines and (2) the lines’ deactivation could be performed only by the electric delivery company and was not completed until November 30, 2018. Appellants received Mr. Longeway’s report on January 11, 2019, and filed their motion for reconsideration and new trial, with that report attached, several days later. Weekley’s response to the attempted late designation focused only on [another expert’s] report and did not specifically address good cause or unfair surprise or prejudice as to Mr. Longeway.” Paniagua v. Weekley Homes, No. 05-19-00439-CV (Jan. 13, 2021).

This is a crosspost from 600Hemphill, which reviews business cases in the Texas Supreme Court. This case originated from the Fifth Court.

In a per curiam opinion issued without argument, the Texas Supreme Court reminded that it really meant its holding in Pike v. Texas EMC Management LLC, about the distinction between standing and capacity, as applied to the question whether a particular injury is suffered by the named plaintiff or the relevant business entity. Cooke v. Karlseng, No. 19-0829 (Jan. 22, 2021).

This is a cross post from 600Hemphill, which follows business cases in the Texas Supreme Court:

On January 15, the Texas Supreme Court granted an emergency stay in In re: Enven Energy Corp., No. 21-0030, as to the denial of a continuance motion involving COVID-19 issues. The parties’ briefs can be reviewed here, and the merits of the mandamus petition remain pending before the Court.

The Fifth Court concluded that a fact issue was raised on the issue of a contractor’s actual exercise of control based on this evidence: “Leobardo Maravilla’s testimony that Mr. Holmes ‘will always demand to me to work a certain way,’ ‘didn’t allow me to freely do what I know how to work,’ required him to purchase new scaffolding, took him to the building supply store, directed him to buy the aluminum scaffolding his employees were using on the day of the accident, and told him to stay at the project site and continue working even though Mr. Holmes left due to weather conditions,” bolstered by an expert report stating that “while Leobardo Maravilla’s crew continued their work in the ongoing ‘thunderstorm,’ there were numerous lightning strikes in the area that likely energized the rebar in the wet concrete on which they were standing while holding onto the metal scaffolding, thus causing their injuries.”  Paniagua v. Weekley Homes, No. 05-19-00439-CV (Jan. 13, 2021) (mem. op.).

Equitable doctrines such as unjust enrichment, unclean hands, and quasi-estoppel are frequently cited, but by their nature, they are difficult to define with specificity. An uncommon “data point” about unjust enrichment appeared in Hawkins v. Jenkins, No. 05-19-01396-CV (Jan. 8, 2021) (mem. op.) The trial court awarded roughly $10,000 in connection with certain home improvements; the Fifth Court affirmed, noting that “the record contains evidence that appellant reaped a financial benefit from the improvements: she sold the house for $77,000 above its value before appellees made the improvements.”

The majority opinion in Return Lee to Lee Park v. Rawlings, No. 05-19-00456-CV (Dec. 28, 2020), which affirmed a judgment that allowed the removal of two high-profile Confederate memorials from City of Dallas land, summarized the current state of appellate-waiver law after recent Texas Supreme Court opinions:

“Appellate briefs ‘are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case.’ Tex. R. App. P 38.9. Briefs are to be liberally, but reasonably, construed so that the right to appeal is not lost by waiver. Horron v. Stovall, 591 S.W.3d 567, 569 (Tex. 2019) (per curiam). Appellate courts have the authority to request additional briefing on an unbriefed issue that was fairly included in or inextricably entwined with a briefed issue. St. John Missionary Baptist v. Flakes, 595 S.W.3d 211, 216 (Tex. 2020) (per curiam). However, appellate courts retain authority and discretion to deem an unbriefed point waived in lieu of requesting additional briefing. Horton, 519 S.W.3d at 569–70. Whether that discretion has been properly exercised depends on the facts of the case. Id.”

The question in State of Texas v. Mesquite Creek Devel., Inc.. was whether the trial court erred in dismissing a condemnation case based on the state’s failure to timely disclose an appraisal. The Fifth Court observed: “The supreme court utilizes four principles to determine whether the legislature clearly intended a statute to set jurisdictional requirements: “(1) the plain meaning of the statute, (2) whether the statute contains specific consequences for noncompliance, (3) the purpose of the statute, and (4) the consequences that would result from each construction.”  Applying those factors, the Court found that this issue was not jurisdictional. No. 05-19-00028-CV (Dec. 31, 2020).

Three new Justices join the Fifth Court at the start of 2021 –

• Hon. Bonnie Lee Goldstein, who joins the Court after service since 2014 on the 44th District Court of Dallas County;
• Hon. Craig Smith, who served since 2006 on the 192nd District Court of Dallas County; and
• Hon. Dennise Garcia, who has presided over the 303rd District Court of Dallas County since 2004.

The 44th and 192nd are civil district courts and the 303rd is a family district court. When the pandemic subsides, none of the new Justices will have to change their commutes, as all three of these courts are located in the George Allen courthouse.

A temporary-injunction order about confidentiality obligations failed for lack of specificity in Wimbrey v. WorldVentures: “Paragraph 3 merely includes a list of items that the court found the covenants were intended to protect. By failing to define, explain, or otherwise describe what constitutes WorldVentures’s ‘confidential information,’ the order leaves appellants to speculate about what particular information or item would constitute ‘confidential information’ and thus fails to provide necessary notice as to how to conform their conduct.” The Court contrasted the order in McCaskill v. National Circuit Assembly, No. 05-17-01289-CV, 2018 WL 3154616, at *3 (Tex. App.—Dallas June 28, 2018, no pet.) (mem. op.).

A language change in the amended TCPA does not change the analytical framework for a basic practical point: “Before the 2019 amendments, the Texas Supreme Court held that the plaintiff’s petition is the best and all-sufficient evidence of the nature of the action for step one purposes. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017). The court said, ‘When it is clear from the plaintiff’s pleadings that the action is covered by the Act, the defendant need show no more.’ Id. We see no reason to conclude that the legislature intended to overrule Hersh when it changed the step one test from ‘shows by a preponderance of the evidence’ to “demonstrates.’ ‘Demonstrate’ means to ‘clearly show the existence or truth of (something) by giving proof or evidence.'” Brenner v. Centurion Logistics, No. 05-20-00308-CV (Dec. 10, 2020) (mem. op.).

The Fifth Court reversed a judgment based on a jury finding of fraud in BBVA Compass v. Bagwell, No. 05-18-00860-CV (Dec. 14, 2020) (mem. op.), finding inadequate evidence of justifiable reliance. (LPHS represents the Intervenor appellees in this matter).

On rehearing, the Fifth Court reversed field and allowed a post-trial pleading amendment to stand, after previously holding that the amendment was invalid. Murphy v. Mejia Arcos, No. 05-18-01342-CV (Dec. 11, 2020). The relevant motion to amend was timely as it was filed before the entry of an amended judgment.

A new version of Tex. R. App. P. 49.3, about motions for rehearing, takes effect at the start of 2021. The new rule addresses the problem that surfaced after the 2018 elections, when many Justices who sat on a panel were no longer on their courts when the new calendar year begin. (I am quoted in this Law360 article about the rule amendment.)

Yes, it’s kind of a pain, but it’s your vote, your voice, and your chance to be heard as to a widely-circulated attorney directory. The link to the Super Lawyers nomination site is here, and the deadline to make your nominations is December 21, 2020.

Vaughn-Riley v. Patterson illustrates the operation of the new, narrower definition of “matter of public concern” in the TCPA after last year’s amendments. The Fifth Court affirmed the denial of a TCPA motion in a dispute about the production of a play: “At the heart of this matter is whether the actors breached their contracts to perform the second Tyler show and the cause of the second Tyler show’s cancellation. Vaughn’s actions and communications regarding one isolated performance that did not go on as scheduled is simply not a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” In particular, the Court noted legislative history showing that the amendment was derived from a definition in Snyder v. Phelps, 562 U.S. 443 (2011). It rejected an argument that the performed in question was a “limited public figure,” although that argument could  be available in a future case. No. 05-20-00236-CV (Dec. 2, 2020) (mem. op.).

Section 55.002 The Texas Estates Code provides: “In a contested probate or mental illness proceeding in probate court, a party is entitled to a jury trial as in other civil proceedings.” But while “the right to a jury trial ‘is inviolate and one of the greatest rights guaranteed by out Texas and United States Constitutions,’ … the right is not self executing, and even after the right is properly invoked, a party must act affirmatively to preserve a complaint concerning the right’s denial. Thus, to preserve error, a party who has properly perfected its jury trial right must either object on the record if the trial court proceeds without a jury or otherwise affirmatively indicate that it intends to stand on its perfected jury trial right.” In re Ruff Management Trust, No. 05-19-01505-CV (Dec. 3, 2020) (mem. op.). The appellant in Ruff waived any jury-trial right by not making timely objection in the trial court.

Another preservation point from EYM Diner LP v. Yousef, No. 05-19-00636-CV (Nov. 24, 2020) (mem. op.) (emphasis in original), involves the structure of the charge on negligence. Defendant (ACCSC) complained that  also argues it is entitled to rendition of judgment in its favor because the plaintiff (Youssef) did not object to the omission of certain definitions from the charge, citing United Scaffolding v. Levine, 537 S.W.3d 463 (Tex. 2017). The Fifth Court disagreed:

• “First, ACCSC’s reliance on United Scaffolding is misplaced because Yousef pleaded a general negligence claim against ACCSC and obtained a liability finding from the jury based on general negligence at trial. In United Scaffolding, the plaintiff, James Levine, pleaded one theory (premises liability) and obtained a jury finding on a different theory (general negligence).”
• “Second, United Scaffolding preserved its arguments that the verdict was based on an improper theory of recovery by filing a motion for judgment notwithstanding the verdict.  Here, ACCSC filed no such motion and makes no such argument. ACCSC merely asserts charge error here. ACCSC waived any complaint about the charge by failing to object to the charge as discussed above. And, by failing to file a motion for judgment notwithstanding the verdict or other qualifying post verdict motion raising this argument, ACCSC also waived any complaint that Yousef was not entitled to obtain a jury finding as to ACCSC’s general negligence.” (emphasis added in the above).

The Fifth Court granted mandamus relief in a proceeding related to the removal of a mechanic’s lien in In re J&S Utilities, No. 05-20-00696-CV (Nov. 24, 2020) (mem. op.), holding as follows:

Abuse of discretion. “[T]he statute allows for an evidentiary hearing regardless of whether claimant elected to file a response. Although the trial court may have had the option of disregarding J&S Utilities’ response under its local rules, the trial court did not have the right to make a determination on submission and forfeit J&S Utilities’ right to an evidentiary hearing. For these reasons, we conclude the trial court abused its discretion by denying J&S Utilities an evidentiary hearing.” (citation omitted).

Inadequate remedy. “The legislature provided for J&S Utilities’ due process rights by the statutory procedure that was enacted, but which the trial court denied to J&S Utilities and which cannot be cured by a subsequent appeal. Mandamus relief, however, will preserve J&S Utilities’ statutory right to an evidentiary hearing on the summary motion.”

“The trial judge in this case has a reputation for running a highly efficient courtroom in which he holds all parties to strict time limits for putting on their case. The record here shows this case was no exception. The truncated ‘charge conference’ appears to be one way in which the trial judge moves cases along and gets cases to the jury quickly. While we applaud the trial judge’s efficiency and respect for the jurors’  time, the use of a global denial of objections and requests based solely on the parties’ pretrial submission of proposed jury charges does not preserve issues of charge error for appellate review. See, e.g., Clark v. Dillard’s, Inc., 460 S.W.3d 714, 729–30 (Tex. App.—Dallas 2015, no pet.); see also Tex. R. Civ. P. 272, 273, 274. The reason is simple; a proposed jury charge filed pretrial standing alone does not meet the preservation of error requirements of rules 272, 273, and 274.”

EYM Diner LP v. Yousef, No. 05-19-00636-CV (Nov. 24, 2020) (mem. op.) (emphasis in original)

Simon & Garfunkel’s The Sounds of Silence begins: “Hello darkness, my old friend, I’ve come to talk with you again.” In In re Estate of Buchanan, however, the Fifth Court did not want to talk with the litigants again, after silence on a key issue in a previous appeal. The issue was who had the right to control certain funds based on a series of probate-court orders, which had involved a previous appeal to the Fifth Court. It held: “A reviewing court does not again pass upon any matter presented to, directly passed upon, or in effect disposed of by an earlier appeal to that court. An appellate court’s judgment is final not only in reference to the matters actually litigated, but as to all other matters the parties might have litigated and decided in the case. Thus, if James believed the trial court erred by declaring Jennifer has the superior right to the funds, he needed to raise the issue in that appeal.” No. 05-19-01473-CV  (Nov. 19, 2020) (mem. op.).

In an echo (pun intended) of the Flakes litigation, the panel majority and a concurrence disagreed as to whether the appellant had adequately briefed its arguments; the majority finding that they had been appropriately presented and the concurrence holding a different view. For interested practitioners, the full text of the pertinent argument (relating to whether the underlying proceedings were an impermissible collateral attack on an earlier judgment) is reproduced in the concurrence. Eco Planet, LLC v. Ant Trading, 05-19-00239-CV (Nov. 16, 2020).

The plaintiff sought a temporary injunction against a claimed trespass; the Fifth Court reversed on proof grounds: “[T]here is no evidence in the record that appellees have suffered or will suffer any injury or that any injury they would suffer is irreparable. Certainly the cost to repair or replace the fence can be adequately compensated in damages. And, while appellees argue trespass alone is an irreparable injury, this Court’s case law does not support that proposition. Appellees did not provide the trial court with any evidence that appellant trespassing on their property would cause probable, imminent, and irreparable injury. They did not show that appellant trespassing on their property would invade the possession of their land, destroy the use and enjoyment of their land, or cause potential loss of rights in real property.” WBW Holdings v. Clamon, No. 05-20-00397-CV (Nov. 12, 2020) (mem. op.) (emphasis added, citations omitted).

“GPM asserted fraudulent transfer claims against all defendants. Given that GPM’s fraudulent transfer claim against Hossein involves the same facts and issues as the fraudulent transfer claims against Marjaneh and the two entities owned by them, the claim against Hossein was not properly severable. The trial court effectively severed a party, instead of a cause of action, and abused its discretion by doing so.” In re Glast Phillips & Murray, No. 05-20-00557-CV (Nov. 12, 2020) (mem. op.).

Among other issues addressed in Wal-Mart Stores v. Xerox State & Local Solutions, Inc., the Fifth Court examined whether indemnity obligations can give rise to third-party beneficiary status, and concluded that they did not on this record. No. 05-18-01421-CV (Nov. 12, 2020) (mem. op.). (LPHS represented Xerox, the successful appellee.)

Who knew? The federal bench in Houston just released an inspiring rendition of “We’ll Be Back” from Hamilton, revised to reflect life in the COVID-19 pandemic.  Bravo!

As the Flying Dutchman (right) restlessly travels the Seven Seas, so does B.C. v. Steak N Shake travel the courts, most recently on remand from the Texas Supreme Court. The Fifth Court denied en banc review; concurrences by Justice Evans and Justice Schenck elaborated on the relevant scope of review (echoing their similar exchange in the Flakes case). Justice Evans succinctly summarized the respective positions: “[T]he record review I conducted was somewhat more than [Steak N Shake]’s view and quite a bit less than Justice Schenck’s view. … [U]ntil we receive contrary direction from the supreme court, we should continue to review the context of the record referenced by the parties, including in our review what the referenced-record contains, not merely the parties’ limited or inaccurate summary of the record.” No. 05-14-00649-CV (Aug. 3, 2020).

In Merrill v. Curry, the Fifth Court reversed the grant of a TCPA motion to dismiss, and then declined to address a ruling on a partial Rule 91a motion that had also been appealed: “[W[e first consider the propriety and efficiency of addressing interlocutory issues after we have reversed the judgment dismissing the case. We have not located a case in which a party pursued, and a court addressed, the denial of a partial 91a motion under these circumstances. But this situation is analogous to the analysis employed when a party seeks review of a cross motion for partial summary judgment. As courts have explained, the denial of a motion for summary judgment is generally not appealable, except when both parties move for summary judgment and the trial court grants one and denies the other. In such a case, an appellate court reviews both motions and renders the judgment the trial court should have rendered. But, when a party moves for only partial summary judgment, the exception does not apply.” No. 05-19-01229-CV (Nov. 5, 2020) (mem. op.) (citations omitted, emphasis added).

The Texas Lawbook reports (not paywalled) the intermediate court of appeals election results, with these numbers on the Dallas races with roughly 95% completion:

Kaufman v. AmeriHealth Lab reviewed an important practical issue–does active participation in a TRO proceeding waive a potential special appearance? After reviewing the handful of Texas cases on the point, the Court concluded that a waiver occurred when, during the TRO hearing: “Kaufman’s counsel appeared without limiting his appearance and actively made arguments on Kaufman’s behalf, which included arguing he was not a signatory to the consulting agreement. AmeriHealth reminded the court that the parties retired to the jury room, at the court’s suggestion, to work out the expedited discovery requests. After their discussions, they proceeded on the record. The second half of the hearing in our appellate record is titled, ‘Rule 11
Agreement Proceeding.'” No. 05-20-00504-CV (Oct. 30, 2020) (mem. op.).

“Jordan ignores a key component required for the exercise of a right to petition, namely, a communication under [TCPRC] section 27.001(4). … Contrary to Jordan’s argument, a nonmovant’s reference to a judicial proceeding in a petition does not necessarily establish that a movant has engaged in any communication constituting an exercise of a right to petition under section 27.001(4) or that the nonmovant’s claims are based on such communication.” Jordan v. JP Bent Tree, No. 05-19-01263-CV (Oct. 19, 2020).

Continuing to drive home the point from the recent Glassdoor litigation, the Fifth Court again reminded that: “Because the limitations period had run on the Estate’s anticipated claims before it filed its Rule 202 petition, the petition was moot, and the trial court should have dismissed the petition for want of jurisdiction.” In re Estate of Tobolowsky, No. 05-19-00073-CV (Oct. 20, 2020) (mem. op.).

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 the Texas Administrative Code.” The panel majority concluded that they did not: “Appellants are not petition signers, and unlike the petition signers in [other cases], they have not shown an election interest that is distinct from voters at large. Although they allege impurity in the process, that interest is not distinct from voters at large, all of whom are presumed to want the election to be conducted in compliance with the law.”

A dissent saw the issue differently, reasoning: “The Legislature created the office of watcher, at least in substantial part, for the watcher to be available publicly to attest to the process, including in any later contest for office. … Whether one focuses on the right to express one’s opinion on the fairness of the process to the public via the print or electronic media or simply on the right to participate as a witness at a trial, either interest is legally cognizable.” No. 05-20-00560-CV (Oct. 23, 2020).

In a second visit to the Fifth Court on a discovery dispute involving claims of attorney-client privilege, the Court held: “In this case, neither party has put its attorney fees at issue. The Estate simply suspects that Topletz should be able to make payment on the judgment because he apparently has been able to pay his attorneys throughout this litigation. But that circumstance fails to fall within the kind of acceptable scenario that would permit discovery of the attorney fee information sought here.” In re Topletz, No. 05-20-00634-CV (Oct. 15, 2020) (mem. op.). The Court also reminded: “[N]either the rules of civil procedure nor case law requires evidence in support of an assertion relating to discovery when evidence is unnecessary to decide the matter. Here, evidence is not necessary to show that the requested information is not discoverable because this Court has already determined, as a matter of law, it is not.”

The Texas Lawbook recently held a candidate forum with all of the incumbents and challengers in this year’s three races for the Fifth Court. Its report on the forum is not behind a paywall and is interesting and informative reading.

Mandamus relief was granted to compel a trial-court ruling about a motion for judgment nunc pro tunc in a criminal case when: “[R]elator’s third motion for judgment nunc pro tunc has been on file for roughly eleven months. Relator requested a ruling on the motion in the trial court approximately nine months ago. Although an unsigned memorandum was sent to relator, it stated that no ruling has yet been made. Under these circumstances, the trial court failed to fulfill its ministerial duty to rule on relator’s motion within a reasonable time, and relator lacks an adequate appellate remedy.” In re Williams, No. 05-20-00369-CV (Oct. 15, 2020) (mem. op.).

I was on a panel today for a great DAYL CLE program on jury charge conferences; you can see the one-hour presentation here!

In the context of a motion to extend an interlocutory-appeal deadline, the Fifth Court reminded: “We have previously concluded that intentionally waiting for a trial court to hear a motion for new trial is not a reasonable explanation.” Careington Int’l Corp. v. First Call Telemedicine LLC, No. 05-20-00841-CV (Oct. 12, 2020) (mem. op.).

Like a submarine occasionally surfacing from the deep, the concept of factual suffiency review (as distinct from legal sufficiency) occasionally emerges in family-law cases about parental termination. While In re M.T. unanimously affirms a termination judgment, a concurrence argued that the evidence on one of the statutory grounds was factually insufficient. No. 05-20-00450-CV (Oct. 5, 2020) (mem. op.).

A lurid invasion-of-privacy dispute offers a procedural reminder and substantive conclusion:

• Procedure: “MYR’s invasion of privacy claim was not “buried” in the pleading. Rather, her cause of action was clearly pleaded. She included additional jurisdictional facts in the affidavit attached to her response, to which BGC did not object, to support her burden. She did not add a new claim in her response. Accordingly, we consider whether BGC is subject to specific jurisdiction in Texas in light of MYR’s first amended pleading and response.”
• Substance: “BGS’s contacts in Texas with MYR were not random and isolated, but instead constituted purposeful, continued contacts in Texas over the course of a three-year relationship. And while he contends he did not seek any benefit from the state, he actively pursued a relationship with a Texas resident, whom he allegedly persuaded to provide intimate photos, and he likewise secretly took photos of her while in Texas. One may speculate about the benefit BGC received from the taking of such photos, but to say he received no benefit from a Texas resident is incredulous.”

BGC v. MYR, No. 05-20-00318-CV (Oct. 9. 2020) (mem. op.).

An unusual venue dispute led to a thorough review of the policies underlying the concept of “dominant jurisdiction” and the first-filed rule: “In resolving this dispute we must decide whether a plaintiff who initiates separate lawsuits in the same county against different defendants can claim dominant jurisdiction in one of those cases, after agreeing to transfer venue of that case to a different county and subsequently joining the defendant from the case still pending in the transferor county. Relators … assert that the transferred case lacks dominance over the interrelated case still pending in the original venue. We agree and conditionally grant the writ.” In re Equinor, No. 05-20-00578-CV (Oct. 7, 2020) (mem. op.).

In Marble Ridge Capital v. Neiman-Marcus Group, the Fifth Court affirmed the denial of a TCPA motion in a defamation action brought by Neiman-Marcus, pre-bankruptcy, against an investment fund. Among other holdings, the Court thoroughly surveyed Texas law about the judicial-communications privilege and held: “Based on this record, we conclude Marble Ridge did not satisfy its burden under section 27.005(d) regarding the judicial-communications privilege because Marble Ridge was not actually contemplating and giving serious consideration to a  judicial proceeding when making its September 18, September 21, and September 25, 2018 communications.” No. No. 05-19-00443-CV (Sept. 30, 2020) (emphasis added). LPHS represented Neiman-Marcus in this matter.

The movants in GN Ventures v. Stanley won their argument that the TCPA applied to a motion in a dispute about arbitrability: “[E]ven though a request for a pre-arbitration temporary restraining order and temporary injunction merely seeks equitable remedies, and is not an independent cause of action, such a request is a ‘filing that requests . . . equitable relief’ and, therefore, a ‘legal action’ as defined by section 27.001(6). And because in this case, there is no underlying cause of action and appellants’ TCPA motion solely sought dismissal of the request for temporary restraining order and temporary injunction, that requested injunctive relief is the ‘claim’ the elements of which the Stanley affiliates must demonstrate a prima facie case by clear and specific evidence in the second step of the TCPA analysis we discuss below.” (citations omitted). Despite that win, however, they lost their motion because the nonmovants established a prima facie case for their requested injunctive relief. No. 05-19-01076-CV (Oct. 2, 2020).