Yes, it arose in the unusual procedural posture of a Rule 736 home equity loan foreclosure, and no, it is not the recommended practice. That said, the relators in the case of In re: Priester successfully convinced the Fifth Court to reverse direction and, on rehearing, grant a writ of mandamus in their favor “[i]n light of the more developed record and clarified arguments . . . .” No. 05-16-00965-CV (Nov. 21, 2016) (mem. op.)

While affirming a relatively straightforward judgment in a home loan dispute, the Fifth Court observed: “The unjust enrichment doctrine applies principles of restitution to disputes where there is no actual contract and is based on the equitable principle that one who receives benefits which would be unjust for him to retain ought to make restitution.” Ihde v. First Horizon Home Loans, No. 05-15-01084-CV (Nov. 28, 2016) (mem. op.) (emphasis added) A counterpoint in this practical but rarely-visited area of remedies law appears in City of Harker Heights v. Sun Meadows Land Ltd., 830 S.W.2d 313, 317 (Tex. App.–Austin 1992, no writ), which observes: “An action for money had and received may be founded upon an express agreement or one implied in fact, but it is not dependent upon either.” (emphasis added).

I was on the trial team that won a $146 million verdict in Pecos, Texas last week; here is the Dallas Morning News’s recent story on the case.

Plaintiffs won a lawsuit against their landlord about the handling of their security deposit. The Fifth Court affirmed, reversing only as to prejudgment interest. While the parties’ lease said that “[a]ny person who is a prevailing party in any legal proceeding brought under or related to the transaction described in this lease is entitled to recover prejudgment interest,” the plaintiffs recovered based on section 92.109(a) of the Property Code, which allows recovery of statutory penalties in the event of a landlord’s bad faith retention of the security deposit. Because “[p]rejudgment interest does not apply to statutory penalties imposed for wrongdoing,” and the underlying statute did not provide for recovery of prejudgment interest, the interest award could not stand. Frazin v. Sauty, No. 05-15-00879-CV (Nov. 6, 2016) (mem. op.)

From sister blog 600Camp – celebrate Halloween with these Five Recent Fifth Circuit Cases to Know. And don’t forget to vote for Super Lawyers by this Friday, October 28!

A classic example of a “too soon” appeal appears in Bolden v. Fidelity Nat’l Title: “In the original petition, appellee sought both damages for breach of warranty of title and attorney’s fees. The trial court signed a default judgment awarding damages for breach of warranty of title. The default judgment is silent as to appellee’s claim for attorney’s fees. Because the claim for attorney’s fees remains pending, the judgment is not final.” No. 05-16-00398-CV (Oct. 14, 2016) (mem. op.)

The relator in the case of In re: Schindler Elevator complained that the trial court “refused to issue findings of fact and conclusions of law explaining the court’s reasoning for denying relator’s motion for leave to designate responsible third parties.” The Fifth Court found no abuse of discretion, noting that the RTP proceeding was not a “trial” within the meaning of the applicable rule, and that the relator had a remedy by direct appeal. No. 05-16-01172-CV (Oct. 10, 2016) (mem. op.)

If ever a case illustrated a trap for the unwary, it is IDA Engineering v. PBK Architects, in which the plaintiff sued exactly four years after the termination of its contractual relationship. Unfortunately, the invoices upon which its damage claim relied were issued before the contract termination, and the contracts contained this language about payment: “Invoices will be issued monthly, per percentage of completion or per phase and will be due upon issuance date.” (emphasis added). Accordingly, the claim was barred by limitations.  No. 05-15-01418-CV (Oct. 4, 2016) (mem. op.)

Axiomatic, but like many other basic mandamus concepts, worth remembering:

1. If the trial court does not have jurisdiction to rule on relator’s motion, the motion cannot be categorized as “properly filed” for purposes of a potential writ of mandamus to compel a ruling;
2. And if the the trial court does not have jurisdiction to rule on the motion, “it logically follows that it does not have a ministerial duty to rule on the motion.”

In re: Guzman, No. 05-16-01109-CV (Sept. 29, 2016) (mem. op.)

A basic point, but one that bears frequent repetition, and the Court of Criminal Appeals concurrence ultimately cited by the Fifth Court is a quick and worthwhile read.: “As the party seeking relief, the relator has the burden of providing the Court with a sufficient record to establish his right to mandamus relief.” In re: Johnson, No. 05-16-01094-CV (Sept. 27, 2016) (mem. op.) (citing In re: Jones, No. 05-16- 00230-CV, 2016 WL 836835 (Tex. App.—Dallas March 4, 2016, orig. proceeding) (mem. op.) (citing Lizcano v. Chatham,  416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring))).

In its order denying a mandamus petition in the case of In re: Adelphi Group, the Fifth Court reminds: “Although parties may expend time and money if they are ordered to arbitration improperly, delay and expense—standing alone—will not render the final appeal inadequate. Further, mandamus as a remedy for review of orders compelling arbitration should be limited to the comparatively rare cases where the legislature has through statute expressed a public policy that overrides the public policy favoring arbitration.” No. 05-16-01060-CV (Sept. 22, 2016) (mem. op.)

The Fifth Court is the first appellate court in Texas to offer an extension of TAMES that allows attorneys to see non-public documents; here is the official announcement.

Beasley v. Richardson, while involving facts unique to pro se litigation, provides a valuable reminder about preservation with relation to the handling of a nonsuit: “Error in dismissing a case with prejudice cannot be raised for the first time on appeal and must be presented to the trial court. To preserve a complaint of error in a judgment for appellate review, Beasley was required to inform the trial court of his objection by a post-judgment motion to amend or correct the judgment or a motion for new trial.” (citations omitted). No. 05-15-01156-CV (Sept. 20, 2016) (mem. op.)

Happy fifth birthday to the sister blog, 600 Camp, which follows commercial litigation in the U.S. Court of Appeals for the Fifth Circuit.

Henry S. Miller Commercial Co. lost a trial on a fraud claim but succeeded in a later malpractice claim against its trial counsel. The Fifth Court resolved two issues – (1) postjudgment assignment of malpractice claims as part of a reorganization was acceptable where “Here, HSM asserted its own malpractice claim against the Lawyers in its own name. It pursued its own claim through trial and judgment. Under these circumstances, HSM’s right ‘to bring [its] own cause of action for malpractice is not vitiated’ by the assignment to its judgment creditors” (applying Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627, 629 (Tex. App.—Dallas 2000, pet. denied)); and (2) the trial court erred in dismissing HSM’s claim for gross negligence based on the failure to designate a key responsible third party. Accordingly, because a new trial was required on punitive damages, it was also required on compensatory damages, and thus liability as well. Henry S. Miller Comm’l Co. v. Newsom, Terry & Newsom LLP, No. 05-14-01188-CV (Sept. 14, 2016) (mem. op.)

Here is my PowerPoint from my “Fifth Circuit Update” presentation at the Advanced Civil Appellate Course in Austin. Note that it includes some initial notes on Globeranger-AG v. Software AG, a major intellectual property opinion released by the U.S. Fifth Circuit earlier this week.

“Legal-malpractice damages are the difference between the result obtained from the client and the result that would have been obtained with competent counsel. Here, the result obtained, foreclosure, was inevitable concerning [Plaintiff’s] failure to pay her mortgage in her past and her refusal to pay in order to bring the loan current. Under these circumstances . . . there is no evidence of damages resulting from any alleged legal malpractice.” Sheetz v. Slaughter, No. 05-14-00982-CV (Aug. 31, 2016) (mem. op.)

The Fifth Court has now joined the line of cases stating that CPRC § 38.001 only allows an award of attorneys fees against certain kinds of business entities (although bypassing the actual application of that statement on the specific, conflicting facts presented about the defendants’ business structure): “Under the plain language of section 38.001, a trial court cannot order limited liability partnerships (L.L.P.), limited liability companies (L.L.C.), or limited partnerships (L.P.) to pay attorneys’ fees.” Varel Int’l Indus., LP v. PetroDrillBits Int’l, Inc., No.  05-14-01556-CV (Aug. 30, 2016) (mem. op.)

Ten Hagen Excavating, Inc. v. Castro-Lopez presents a detailed review of the evidence about a serious truck accident, involving issues of tort law beyond the usual scope of this blog. As a matter of style, the opinion is notable for deftly using accident photos in its description of and analysis of the issues, as well as a diagram of how the accident happened. No. 05-15-00902-CV (Aug. 29, 2016).

Despite a contract between Texas Instruments and Volt, an employment agency, saying that Volt was an independent contractor, the Fifth Court reversed a jury verdict on the issue of whether Udell – a worker supplied by Volt – was an employee for purposes of workers compensation. Reviewing the record in detail, the Court concluded that “Udell was working on TI’s premises, in furtherance of TI’s day-to-day business, and the detail
s of Udell’s work that gave rise to his injury were directed by TI.” Texas Instruments v. Udell, No. 05-14-01042-CV (Aug. 24, 2016) (mem. op.)

In Cooper v. Campbell, the Fifth Court reviewed the key principles that govern “equitable remedies such as disgorgement and forfeiture to remedy a breach of fiduciary duty” —

• “The central purpose of forfeiture as an equitable remedy is not to compensate the injured principal, but to protect relationships of trust by discouraging disloyalty.
• “Disgorgement is compensatory in the same sense as attorney fees, interest, and costs, but it is not damages. . . . In fact, a claimant need not prove actual damages to succeed on a claim for forfeiture because they address different wrongs. In addition to serving as a deterrent, forfeiture can serve as restitution to a principal who did not receive the benefit of the bargain due to his agent’s breach of fiduciary duty. . . .”
• “The amount of disgorgement is based on the circumstances and is within the trial court’s discretion.”

The Court then remanded for more fulsome consideration of factors identifed in ERI Consulting Engineers v. Swinnea, 318 S.W.3d 867 (Tex. 2010). No. 05-15-00340-CV (Aug. 24, 2016) (mem. op.) On the general subject of disgorgement, other useful references from the Fifth Court are its recent opinion in Premier Pools Management Corp. v. Premier Pools Inc., and McCullough v. Scarbrough, Medlin & Associates, 435 S.W.3d 871, 904 (Tex. App.-Dallas 2014, pet. denied).

In some detail, the district court ordered Altesse Healthcare not to deplete the assets of a business, whereupon: “Altesses’s actions in failing to comply with the TRO resulted in destroying the value of the company over which the lawsuit was based. In essence, Altesse took over running the company and then failed to make the scheduled payments when due, leaving the Wilsons without the company or payment. After the trial court ordered Altesse to return the company to the Wilsons, Altesse delayed and by the time it returned the necessary assets to run the business, there was little left to run.” The Fifth Court affirmed the trial court’s detailed order awarding “death penalty” sanctions and other penalties, including contempt. Altesse Healthcare Solutions v. Wilson, No. 05-15-00906-CV (Aug. 23, 2016) (mem. op.)

We all too easily forget that the requirements of a good appellate brief are defined by law, as recently noted in Lau v. Reeder, No. 05-14-01459-CV (Aug. 16, 2016) (mem. op.)

As to the issues presented, “a brief must state concisely all issues for review and reveal the legal questions we are called upon to decide. See TEX. R. APP. P. 38.1(f); Bolling v. Farmers Branch Indep. Sch. Dis., 315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, no pet.).”

As to the record citations that accompany the argument, the Justices “have no right or obligation to search through the record to find facts or research relevant law that might support an appellant’s position because doing so –4– would ‘improperly transform this Court from neutral adjudicators to advocates.’ Chappell v. Allen, 414 S.W.3d 316, 321 (Tex. App.—El Paso 2013, no pet.)”

And as to good draftsmanship, a brief does not violate the rules but is notably unhlepful when the table of contents “indicates that the argument portion of the brief for all nine issues is located on pages 18 to 94 without any indication or notation as to where specific issues are addressed,” and the 77-page argument section “also does not denote where each of the nine issues is discussed and the only arguable headings in this section do not identify the issues to which they are attached.”

My colleagues Michael Hurst and Jonathan Childers recently spoke at the Dallas Bar Association Oil & Gas Update; here is their powerpoint, which provides a great summary of the law today on the key topics in oil and gas cases.

While affirming a $4 million judgment related to a truck accident – most of which involved a series of Daubert challenges — the Fifth Court provided some rare appellate guidance about the use of video animation in the courtroom. Specifically, Smith – the plaintiff’s accident reconstruction expert – prepared an animation to accompany and illustrate his testimony about how the accident occurred.

The Court found no error. As to foundation, it said: “As to the video animation, we note the video was not admitted into evidence but was shown during Smith’s testimony for demonstrative purposes. Defense counsel objected ‘on the grounds of 403.’ Smith testified he measured Gaston’s truck and two similar trailers ‘in order to get data to fill in the animation.’ It was not possible to ‘match tire to track,’ but Smith made a generalized analysis of marks on the roadway he described as an ‘approximation.’ Smith testified the animation was not a simulation and ‘not an exact replication of what happened,’ but it was ‘an accurate representation of what occurred.’”

As to admissibility and waiver, it held: “Earlier in the trial, Smith was allowed to express his underlying opinion without objection when the testimony was presented to the jury. Since the animation was a graphic depiction of the opinion admitted into evidence without
objection, Greenwood’s trial objection to the video depiction of that opinion was waived. Video animation and other demonstrative evidence that ‘summarize, or perhaps emphasize, testimony are admissible if the underlying testimony has been admitted into evidence, or is subsequently admitted into evidence.'” (citations omitted) Greenwood Motor Lines v. Bush, No. 05-14-01148-CV (Aug. 17, 2016).

Plaintiffs sued for libel, based on four articles in the Korea Town News (N.B. – Dallas has the largest Korean-American community in Texas). Unfortunately, the TCPA “anti-SLAPP” statute applied, because the articles dealt with “the proposed sale of an office building . . . for use as a community center, which would be purchased “in part with funds raised by the public.” And the statements at issue were not actionable, as they “the majority of these statements concern the value of the building . . . the appraisal value of the building, the purchase price, and its market value.” Accordingly, the Fifth Court affirmed the dismissal of Plaintiffs’ claim — and the resulting award of attorneys fees under the TCPA. Mansik & Young Plaza LLC v. K-Town Management LLC, No. 05-15-00353-CV (Aug. 15, 2016) (mem. op.)

In Premier Pools Management Corp. v. Premier Pools Inc., the Fifth Court found that a successful trademark plaintiff had established sufficient evidence of secondary meaning for the phrase “Premier Pools,” noting — in particular — the plaintiff’s proof about its advertising about and long use of the name, as well as the testimony of nine impartial witnesses about the issue of confusion. Similar evidence supported the findings for liability, damages, and disgorgement. The Court reversed the related declaratory judgment (and with it, the attorney’s fees award), finding that the “claim added nothing and provided access to no remedy that was not otherwise available . . . ” No. 05-14-01388-CV (Aug. 12, 2016) (mem. op.)

Due to recent events, the courthouse is closed today. Let us think of the brave men and women of our police forces.

1. “A statement that makes up the parties’ contact is an operative fact, a necessary part of a cause of action, and is not hearsay.”
2. “A document created by one business may become a record of a second business if the second business determines the accuracy of the information generated by the first business.”
3. A document is not hearsay when “it represents the legally operative fact of demand, a necessary part of [a] breach of contract case.”

Humphrey v. Yancey, No. 05-15-00653-CV (June 30, 2016) (mem. op.)

The appeal of an eviction case was resolved largely by the lack of a reporter’s record in Lyons v. Polymathic Properties, Inc. The opinion reminds of several basic principles triggered when a reporter’s record is required, which are worth remembering when considering whether to obtain a record, and in responding to an argument if an opponent has not obtained one:

• The judgment of the trial court implies all necessary findings of fact to sustain the judgment; “[i]n other words, we must presume the missing reporter’s record supports the decisions of the trial court”;
• Attaching a partial transcript to a brief is not a substitute for a formal reporter’s record; and
• Statements in a brief that are unsupported by the record cannot be accepted as facts.

No. 05-15-00408-CV (June 29, 2016) (mem. op.)

Celebrate summer with 600 Summer Camp and five good cases to know from the Fifth Circuit in 2016 — and one special bonus!

In review of a Dallas case, in In re J.B. Hunt Transport, the Texas Supreme Court clarified the standards for mandamus review of a plea in abatement based on a “dominant jurisdiction” dispute between two Texas courts with jurisdiction over similar cases. The Court confirmed that “[In re: Prudential, Ins. Co., 148 S.W.3d 124 (Tex. 2004) indeed abrogates [Abor v. Black, 695 S.W.2d 564 (Tex. 1985)]’s inflexible understanding of an adequate remedy by appeal. Permitting a case to proceed in the wrong court necessarily costs ‘private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conduct proceedings.'” On the merits, the Court found that there had not been a sufficient factual showing to “estop the plaintiff in the prior action from asserting his plea in abatement. No. 15-0631 (May 27, 2016).

Texas’s far-flung and complicated court system produces a stream of litigation about conflicts between different jurisdictions. In Enexco v. Staley, the Fifth Court took the unusual step of granting a writ of prohibition against a district court in Nacogdoches County, finding that “the Nacogdoches proceeding must be stayed to prevent interference with this Court’s jurisdiction in deciding this pending appeal.” No. 05-15-01047-CV (June 21, 2016) (mem. op. & order)

. . . a seemingly academic question, but one of great significance to the guarantor whose liability rested on whether a transfer occurred. Acknowledging the Texas Supreme Court’s broad definition of a “transfer” as “Any mode of disposing of or parting with an asset or an interest in an asset, including a gift, the payment of money, release, lease, or creation of a lien or other encumbrance. . . . every method—direct or indirect, absolute or conditional, voluntary or involuntary—of disposing of or parting with property or an interest in property,” the Fifth Court held that standard release language in a settlement agreement did not create a transfer, even though the overrarching goal of the settlement was to bring an end to one development project, so a new one could proceed. Argent Development LP v. Las Colinas Group LP, No. 05-15-00626-CV (June 20, 2016) (mem. op.)

Over the weekend, I participated in a DAYL skills seminar, making a mock appellate argument against my friend, the capable Chad Baruch. Judge Martin Hoffman led the seminar, and Justices Molly Francis, Ada Brown, and Bill Whitehill presided over the argument.

Alpha Omega alleged that a law firm breached its responsibilities as an escrow agent. In ts findings of fact and conclusions of law, the trial court said: “11. Alpha Omega, Inc. did not prove by a preponderance of the credible evidence that a fiduciary relationship existed between it and the Defendants.” The Fifth Court disagreed, and then found harm because the trial court “did not evaluate the remaining elements of fiduciary breach under the proper legal standards” and “there was some evidence of the remaining elements of fiduciary breach, such that the trial court could have reached the opposite result had it not erred in finding 11.” Accordingly, it reversed and remanded. Alpha Omega CHL, Inc. v. Min, No. 05-15-00124-CV (June 16, 2016) (mem. op.)

I recently spoke at the University of Texas appellate course to provide an update on recent Fifth Circuit cases, here is my PowerPoint from that presentation.

Rainier Income Fund I, Ltd. v. Gans presented an appeal from the district court’s confirmation of the rulings of a “special judge” appointed under chapter 151 of the Texas Civil Practice & Remedies Code. The appellant moved for a new trial before the district court; the appellee contended that it was not effective to extend the appellate deadline, as the district court’s power to grant a new trial in this posture is significantly limited by chapter 151. After a thorough review of the statute and the general principles surrounding the motion for new trial in Texas, the Fifth Court concluded that the motion was effective and the deadline was extended. In particular, it noted the Texas Supreme Court’s reminder in Old Republic Ins. Co. v. Scott, 846 S.W.2d 832, 833 (Tex. 1993) that: “The filing of a motion for new trial in order to extend the appellate timetable is a matter of right, whether or not there is any sound or reasonable basis for the conclusion that a further motion is necessary.” No. 05-00460-CV (June 7, 2016) (mem. op.)

The appellate bar is still getting used to section 51.014(d) of the Civil Practice & Remedies Code, under which a “permissive” interlocutory appeal may proceed under certain circumstances. In Hartford Accident & Indemnity Co. v. Seagoville Partners, after initially granting leave to appeal under that section, the Fifth Court reconsidered whether the trial court had in fact made “a substantive ruling on a controlling question of law” as required by the statute. After thoroughly reviewing the procedural posture of the case, the Court concluded that the trial court could have also decided on the basis of whether the evidence was sufficient to raise a fact issue under the legal standard advocated by the appellant. Accordingly, it dismissed the appeal. No. 05-15-00760-CV (June 9, 2016) (mem. op.)

Last Friday, blog publisher David Coale spoke about recent federal cases on sanctions and professional responsibility issues; for some ethics CLE self-study, here is the handout that he used.

LPCH partner Britta Stanton, vice-Chair of the Dallas Bar Association Trial Skills Association, recently published this good article about Impeachment in Five Simple Steps under the Texas Rules of Evidence.

The oral argument in the high-profile partnership dispute of Enterprise Products Partners LP v. Energy Transfer Partners LP will proceed at 3:00 on Wednesday, April 20, 2016. (LPCH represents Appellee ETP.)

The unfortunate plaintiff in K.W. Ministries v. Auction Credit Enterprises had trouble responding to the defendant’s summary judgment motions. They were set for hearing on September 15, 2014.  On September 8, the plaintiff filed a response that addressed only one of the claims and included no evidence. Three days before the hearing, it filed a “Document Supplement” to its response, but not a motion seeking leave to file that supplement.  Then, on the morning of the hearing, the plaintiff filed an amended response accompanied by an affidavit and other materials. At the hearing, its counsel asked the court to “receive my oral motion for leave to amend and accept our response to the summary judgment that was filed this morning.” Asked why he had not provided an affidavit to support the response on the day it was due instead of that morning, counsel answered: “I don’t have a satisfactory answer for that, Your Honor.”  The response was thus not considered, and the Fifth Court affirmed, using the plain language of the relevant rule of procedure to reject plaintiff’s arguments about why it should have been.  No. 05-14-01392-CV (March 21, 2016) (mem. op.)

Celebrate St. Patrick’s Day with five recent cases to know from the Dallas Court of Appeals; click here to access the list and analysis.  And watch out for leprechauns!

AdvoCare filed a petition to take a Rule 202 deposition from Michael Moussa; Moussa, joined by Shereef Kamel, counterclaimed.  AdvoCare obtained a $3,500 sanctions award against Kamel and his counsel related to that filing.  They appealed, arguing that “AdvoCare never asserted any affirmative claim for relief in the suit, the rule 202 petition has been ‘superseded and rendered moot’ by the institution of arbitration proceedings initiated by AdvoCare against Moussa and Kamel, and their counterclaims are no longer pending because they have nonsuited the counterclaims.”  The Fifth Court disagreed because no written order confirmed the nonsuit; accordingly, it dismissed for lack of appellate jurisdiction over an appealable final order. Kamel v. AdvoCare Int’l, L.P., No. 05-15-01295-CV (March 4, 2016) (mem. op.)

In the otherwise unexceptional case of In re Thorpe, the Fifth Court augmented its customary citation when denying mandamus relief [“Ordinarily, to obtain mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re: Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding)”] with an additional one: “Mandamus is not a substitute for appeal.  In re: Bernson, 254 S.W.3d 594, 596 (Tex. App.–Amarillo 2008, orig. proceeding).”  No. 05-16-00148-CV (Feb. 25, 2016) (mem. op.)

Appellants filed a bill of review about the dismissal of their case, but could not prove a lack of fault: “Because appellants failed to pursue all adequate legal remedies when they did not appeal the denial of [the] motion to reinstate, appellants could not plead and prove the third element of a bill of review.” McCurdy v. Oeftering, No. 05-14-01353-CV (Feb. 19, 2016) (mem. op.)

Appellees sued Pak for breach of contract and won a judgment in their favor after a bench trial.  Pak requested findings of fact and conclusions of law.  Then, in a series of unfortunate events: the trial judge did not enter findings or conclusions; Pak filed a notice of past due findings and conclusions on December 31 — the judge’s last day in office — and the successor judge did not enter findings until January 12, after the period specified by the Rules.  The panel majority reasoned that the successor judge (who did not participate in the trial) had no authority to make findings and conclusions, and that Pak did not have to object at the time to preserve his appellate complaint about them. It then found harm, reversed the judgment against Pak, and remanded for proceedings consistent with the opinion.  A detailed dissent would have found a waiver on the specific facts and circumstances of the case, noting the original judge’s continued availability.  Pak v. Ad Villarai, LLC, No. 05-14-01312-CV (Feb. 16, 2016) (mem. op.)

Schultz, owner of a chain of movie theaters, did not want to pay Banowsky, a licensed Texas attorney, for helping Schultz find a theater location.  Schultz won summary judgment based on the Texas Real Estate Licensing Act,  primarily because Banowsky admitted that his work did not involve legal services.  The Fifth Court reversed: “[Schultz] argues that Banowsky’s construction of the Act is both unreasonable and favors the individual interest of an attorney over the interest in protecting the public from unlicensed, unscrupulous, or unqualified persons.  But the fact remains that the plain language of the statute exempts attorneys from all requirements of the Act.”  Banowsky v. Schultz, No. 05-14-01624-CV (Feb. 10, 2016) (mem. op.)

DFW Advisors sued its former bookkeeper, Ervin, alleging misappropriation.  She responded to a request for disclosure by saying that she did acted with consent.  At trial, she sought to introduce evidence of consent, in the form of testimony of an affair with DFW’s principal.  The trial court allowed the testimony, over DFW’s objection, and the Fifth Court affirmed “[T]his response sufficiently disclosed Ervin’s basic defense, which was that she had consent to take the money.  [Tex. R. Civ. P.] 194.2 only requires disclosure of a party’s basic assertions and did not require Ervin to disclose the details of how consent was given.”  DFW Advisors Ltd. v. Ervin, No. 05-14-00883-CV (Feb. 11, 2016) (mem. op.)

The wrenching facts of the paternity dispute in In re: H.H. provide a rare example of when a finding of legally insufficient evidence can justify remand rather than rendition.   The underlying rule, Tex. R. App. P. 43.3, requires that “When reversing a trial court’s judgment, the court must render the judgment that the trial court should have rendered, except when: (a) a remand is necessary for further proceedings; or (b) the interests of justice require a remand for another trial.”  Under the rule, in the Fifth Court: “Remand is appropriate when, for any reason, a case has not been fully developed below.”

Here, the child “was barely a year old when the trial court entered the decree of termination and had been in the custody of TDFPS for almost her entire life, never at any time living with Father. . . . Father has been incarcerated since before learning he was potentially the biological father of H.H. and admits in his appellate brief that he remains incarcerated. However, there is no evidence in the record regarding when Father will be released or his ability to care for H.H. in a manner consistent with her interests.  Additionally, neither Father nor his attorney appeared at the hearing[.]” Accordingly, ” a remand of the case against Father is appropriate to further develop the record and is in the interest of justice.”  No. 05-15-01322-CV (Feb. 12, 2016) (mem. op.)

Tunnell sued Archer for negligence after a truck accident involving Archer’s cattle.  The trial court declined to dismiss Tunnell’s claim for failure to file an expert report under a statute related to claims against health care providers (Archer was a doctor), and Archer  appealed that denial.  After a Texas Supreme Court opinion clarified the underlying statute,Tunnell contended that Archer’s appeal not only no longer had merit, but had become frivolous and sanctionable.

After Archer continued with the appeal on other grounds, the Fifth Court agreed with Tunnell and sanctioned Archer and his counsel for the costs of the motion to dismiss: “After the supreme court’s opinion in Ross, there were no reasonable grounds for an advocate to believe the case could be reversed. However, appellants did not dismiss this frivolous appeal. Instead, appellants’ counsel filed a brief on the merits asserting ERISA preemption based on non-existent orders that this Court lacked jurisdiction to consider. No reasonable counsel could believe the ERISA-preemption argument was a reasonable ground for reversal in this case when there was no written order on a motion asserting the argument and no statute permits an interlocutory appeal from such an order. In these circumstances, we conclude that appellants and their counsel’s actions are so egregious as to warrant the award to Tunnell of just damages from appellants and their counsel for their pursuit of this frivolous appeal.”  Archer v. Tunnell, No. 05-15-00459-CV (Feb. 9, 2016) (mem. op.)

Dharma and Hahn divorced.  The trial court entered a final decree. Dharma appealed the trial court division of property; primarily, an interest in her medical practice.  Hahn argued that she accepted the benefits of the decree by selling a related entity and encumbering the practice’s assets, and the Fifth Court agreed, finding that she “exercised control over substantial assets she received in the trial court’s property division.”  The Court rejected an argument that the “acceptance of benefits” doctrine did not apply, based on her view of what would likely happen on remand, because that did not establish an “unquestionable” right as required by the limits on that doctrine.  In re S.B.H., No. 05-14-00585-CV (Feb. 5, 2016) (mem. op.)

Self-explanatory: “Here, the record shows the trial court set the show cause hearing for November 12. The record does not contain any notice for any other hearing that day, nor does it contain notice of a final trial setting. Thus, while Pollard had reasonable notice that the issue before the trial court on November 12 was whether the independent executor should be removed, he had no notice that the hearing would result in a final determination of his homestead rights. To the extent the trial court considered and ruled Pollard abandoned his homestead rights in the Beverly Drive house or on any issues other than the show cause, the trial court erred. Because Pollard did not receive proper notice, his due process rights were violated, and we must reverse the trial court’s order.”

Echoing Justice Marshall’s classic head fake in Marbury v. Madison about jurisdiction, the case of In re Ralston Outdoor Advertising Ltd. offered a similar maneuver about Texas mandamus standards.  After first expanding the Fifth Court’s usual citation to In re: Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) to include its discussion of balancing (“An appellate remedy is ‘adequate’ when any benefits to mandamus review are outweighed by the detriments.”), the Court then denied mandamus relief based on longstanding pre-Prudential precedent : “Texas courts have long held that a plaintiff denied a default judgment has an adequate appellate remedy.” (citing Jackson v. McKinsey, 12 S.W.2d 1044, 1045 (Tex. Civ. App.—Fort Worth 1928, no writ)).

The Fifth Court continues to carefully police the boundaries of judicial admissions.  In a family law case, it observed: “In her original motion to modify, Mother did not request the amount of child support be modified; rather she requested only that the order be modified to impose greater restrictions on Father’s access to [Child].  Therefore, Mother’s statement there had been a material and substantial change in circumstances was directed toward possession of and access to J.C.J., not the previously ordered child support.  Accordingly, Mother did not make a ‘clear, deliberate, and unequivocal’ statement in her original motion to modify that there had been a material and substantial change in circumstances relating to Father’s financial condition or to the amount of child support Father had been ordered to pay.”  In re JCJ, No. 05-14-01449-CV (Jan. 28, 2016) (mem. op.) (applying Horizon/CMS Healthcare Corp. v. Auld,  34 S.W.3d 887, 905 (Tex. 2000)).

A high-profile fee dispute led to holdings that (1) an attorney can recover in quantum meruit in connection with an oral contingent fee agreement, notwithstanding the other legal problems with such agreements; (2) legally sufficient evidence of the attorney’s “valuable compensable global settlement services” supported the verdict on his quantum meruit theory; (3) claimed error on the narrow scope of a fiduciary duty instruction was not preserved without a specific objection to the scope issue; and (4) the trial court did not abuse its discretion in refusing a spoliation instruction, when evidence showed that the destruction of the relevant emails resulted from a routine upgrade process.  Shamoun & Norman, LLP v. Hill, No. 05-13-01634-CV (Jan. 26, 2016).  The Court rendered judgment on quantum meruit.

It really can happen in the appeal of a temporary injunction — “If, while on appeal of the granting or denying of the temporary injunction, the trial court renders final judgment, the case on appeal becomes moot.”   Santiago v. Bank of New York (Jan. 25, 2016) (mem. op.) (citing Isuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236 (Tex. 1991) (per curiam)).

Graman v. Graman involved a contentious dispute about the operation of a family restaurant business.  On a fraud claim related to a loan, a witness testified to a conversation with the defendant: “We ended up talking about his loans his parents made to him and he told me that he never intended to pay his parents back at that point in time . . . He told me that he never intended on paying them back — and that’s why he never signed on what I recall him telling me was approximately $850,000.  Finding that the first statement was not evidence of the defendant’s intent at the time of the loans, the Fifth Court then found: “As for the second statement, a fact finder could determine that statement showed Jason’s intent at the time of all the loans,” and reversed a no-evidence summary judgment on this claim.  No. 05-14-01254-CV (Jan. 20, 2016) (mem. op.)

The issue in Tempay, Inc. v. Tanintco, Inc. was whether a notice of assignment, required to be sent to an account debtor as part of a factoring arrangement, satisfied section 9.406 of the UCC.  That provision requires that the notice “reasonably identify the rights assigned,” and courts have divided about exactly what it requires, and whether summary judgment is appropriate.  Here, in an analysis of broader interest about the appropriate standards for summary judgment, the Fifth Court found fact issues about the adequacy of the notice and whether it had been revoked.  No. 05-15-00130-CV (Jan. 15, 2016) (mem. op.)

Highland Capital sued the Looper Reed law firm, who represented a former employee in litigation with Highland, alleging that the firm committed several torts against Highland during the course of that representation.  The Fifth Court affirmed the dismissal of those claims on immunity grounds: “[T]he actions themselves—acquiring documents from a client that are the subject of litigation against the client, reviewing the documents, copying the documents, retaining custody of the documents, analyzing the documents, making demands on the client’s behalf, advising a client to reject counter-demands, speaking about an opposing party in a negative light, advising a client on a course of action, and even threatening particular consequences such as disclosure of confidential information if demands are not met—are the kinds of actions that are part of the discharge of an attorney’s duties in representing a party in hard-fought litigation.”  Highland Capital Management LP v. Looper Reed & McGraw, PC, No. 05-15-00055-CV  (Jan. 14, 2016) (mem. op.) (applying Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015)).

After a deadly 18-wheeler accident, the trucking company “decided to have the remains of the tractor and part of the trailer cut in half and crushed.”  The district court allowed a spoliation instruction in the subsequent litigation, and the Fifth Court affirmed, noting: “the severity of the crash, [the CEO’s] years of experience in the industry, his previous dealings with obtaining police reports, and his awareness to preserve the [electronic control mechanism].”  That said, particularly given the company’s protection by the workers’ compensation statutes, the death penalty sanctions entered by the district court did not have a “direct relationship” to that destruction.  In re: J. H. Walker Inc., No. 05-14-01497-CV (Jan. 15, 2016) (mem. op.)  This opinion presents a thoughtful application of the Texas Supreme Court’s recent analysis of spoliation in Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.2d 9 (Tex. 2014).

In recently dismissing an appeal, the Fifth Court reminded that as a “fictional legal person,” “a corporation may only appear through an attorney” in court proceedings, and summarized the cases on this point.  Temple of the Supreme Mother Goddess Mahadevi Shakit of America, Corp. v. Wells Fargo Bank N.A., No. 05-15-01289-CV (Jan. 8, 2016) (mem. op.)

After the Texas Supreme Court’s reversed the Fifth Court’s analysis of a shareholder oppression claim in Ritchie v. Rupe, 443 S.W.3d 856 (Tex. 2014), it remanded for consideration of a parallel “informal fiduciary duty” claim.  On remand, the Fifth Court rejected that claims, concluding: (1) standing alone, “evidence of domination and control” by the majority shareholder would not establish the necessary duty, and (2) the various familial and business relationships between the plaintiff and the defendants were not enough to establish a relationship of trust and confidence, notwithstanding the interaction of various family trusts over the years.  Ritchie v. Rupe, No. 05-08-00615-CV (Jan. 12, 2016) (mem. op.)

Plaintiffs sought damages for losing a telecommunication contract with DISD.  The defendants argued that, in the absence of any evidence of acts of fraudulent concealment, limitations should run from 2006 when Plaintiffs received their last payment.  The Fifth Court agreed, rejecting Plaintiffs’ counterargument that limitations did not begin to run until the federal agency overseeing the contract had completed its investigation of the situation. Lazo Technologies v. Hewlett-Packard, No. 05-14-01060-CV (Jan. 7, 2016) (mem. op.)

After the second mediation of a wrongful death case failed to yield a settlement, the trial judge ordered the Chief Claims Officer (a resident of Alabama not otherwise involved in the case) of the defendant’s carrier (a nonparty) to appear at a show cause hearing.  The Fifth Court granted a mandamus petition about that order: “[W]e conclude the judge lacked jurisdiction to order Thomas, a non-party who did not attend either mediation and who lives outside the trial court’s subpoena range, to appear and explain why ProAssurance should not be sanctioned.”  In re ProAssurance Ins. Co., No. 05-15-01256-CV (Jan. 4, 2016) mem. op.)

A business involved in the fuel purchases of a convenience store (right) obtained a $344,000 default judgment against an individual involved with the store’s operations. The Fifth Court set aside the judgment under the Craddock factors.  As to the first factor (conscious indifference), the Court reminded of the importance of evidence rulings: “Although Quik-Way objected to the affidavits and other evidence filed in support of the motion for new trial, it did not secure any rulings on its objections; thus, we consider all the evidence in support of the motion for new trial”  On the merits, the defendant “explained that her sister  . . . handled the financial and personnel matters in the business and was the day manager of the store. After they were sued, [the sister] said she would handle the lawsuit. According to [the defendant], [the sister] was more educated and did not have a full-time outside job. [The defendant] said she relied on her sister and believed a lawyer had been hired and that an answer had been filed.”  The sister filed a confirming affidavit.  This showing sufficed: “A party’s belief that she had taken the appropriate steps to hire counsel is not consciously indifferent conduct, nor does it show [the defendant] knew she was being sued but did not care.”  Khwaja v. Quik-Way Retail Associates II, Ltd., No. 05-14-01090-CV (Dec. 28, 2015) (mem. op.)

“Branch” Warren, a noted professional bodybuilder, tore a leg muscle when he slipped on a rainy ramp outside a TGI Friday’s restaurant.  He proffered expert testimony from an architect named Peter Combs who, after inspecting the ramp roughly three months after the accident, opined that it was unsafe.  The Fifth Court affirmed summary judgment for the defendant: “[A] fatal problem with the Combs affidavit is that Combs did not say what the ramp’s condition was when Warren fell. Combs did not say that the ramp was probably as slippery on August 20 (when Warren fell) as it was on December 4 (when Combs inspected the ramp). He did not say that the lapse of time and exposure to the elements made the ramp more slippery, less slippery, or had no effect on the ramp’s slipperiness. In short, Combs’s affidavit addressed the ramp’s condition only on the day he examined it.”  Warren v. Carlson Restaurants, No. 05-14-01232-CV (Dec. 30, 2015) (mem. op.)

Appellant complained that the trial judge had further proceedings after a nonsuit.  While also affirming as to whether a nonsuit occurred (finding that one did not happen), the Fifth Court reminded of the importance of timely objection: ” Generally, to preserve a complaint for appellate review, a party must timely present the complaint to the trial court and seek a ruling on the complaint . . . .  In this case, not only did appellants not object when the case was reinstated, they affirmatively indicated that they did not object. As a result, this issue was not preserved for appellate review.”  Gonzalez v. Gonzalez, No. 05-14-01361-CV (Dec. 29, 2015) (mem. op.)

In a companion to the high-profile libel case of Tatum v. Dallas Morning News, the Fifth Court addressed the “anti-SLAPP” dismissal of the Tatum’s suit against Julie Hersh, a book author who allegedly discussed the subject of the offending column with columnist Steve Blow. For purposes of the motion, the Court assumed that “Hersh admitted talking with Blow about suicide and secrecy in general, but . . . denied making the alleged statements that the Tatums based their claims on—statements about [their son’s] death and obituary that encouraged Blow to write critically about those facts.”  Based on those facts, the Court reversed dismissal, finding that its holding in Pickens v. Cordia, 433 S.W.3d 179 (Tex. App.–Dallas 2014, no pet.), controlled when “the defendant’s motion admits participating in a conversation generally but denies making the specific relevant statements in particular.”  Tatum v. Hersh, No. 05-14-01318-CV (Dec. 30, 2015).

In a detailed analysis, the Fifth Court reversed a summary judgment for the Dallas Morning News and columnist Steve Blow as to this 2010 column in the case of Tatum v. Dallas Morning News, No. 05-14-01017-CV (Dec. 30, 2015).  In a nutshell, the plaintiffs took issue with Blow’s suggestion that they were untruthful about the circumstances of their son’s suicide.  The Court found genuine issues of material fact about whether the column was about the Tatums (it did not expressly name them); whether it was defamatory, substantially true, or privileged; whether it solely involved opinion; and whether Blow acted with malice.  The News’s own coverage of the opinion appears here.

While the Wilburns submitted the highest price at a real estate auction, it was below the reserve price set by the bank who was auctioning the property. They nevertheless sought to enforce a right to the property.  The Dallas Court affirmed a take-nothing verdict for the defendants.  As to the auctioneer’s actual authority, the Court noted the instructions about reserve price in the “Agreement to Conduct Auction Sale.”  As to his apparent authority, the Court noted the auctioneer’s statements at the start of the auction and the Wilburns’ signatures on two cards that said what a reserve price was and referenced the auctioneer’s contract: “None of the bank’s actions or inactions clothed the auctioneer with the indicia of authority to sell the Property at a price below the reserve without Valliance’s consent.”  Wilburn v. Valliance Bank, No. 05-14-00965-CV (Dec. 21, 2015) (mem. op.)

Tervita LLC unsuccessfully disputed Sutterfield’s workers compensation claim in a contested hearing; afterwards, Sutterfield sued Tervita for various torts relating to its handling of his claim.  The trial court denied Tervita’s motion to dismiss under the new Texas anti-SLAPP statute.  The Dallas Court of Appeals reversed as to Sutterfield’s claims based on Tervita’s participation in the agency hearing, concluding that those claims were based on Tervita’s exercise of its right to petition.  It otherwise affirmed, concluding that Sutterfield’s claims about a hostile work environment and wrongful discharge “are based on Tervita’s actions and statements outside of the TDI-WC proceeding.”  Tervita LLC v. Sutterfield, No. 05-15-00479-CV (Dec. 18, 2015).

The Hales sued their homebuilder for fraud and violation of the DTPA, alleging serious problems with the foundation of their Rockwall home (right).  They substantially succeeded at trial, and the Dallas Court of Appeals affirmed in large part in Bishop Abbey Homes, Ltd. v. Hale, No. 05-14-00137-CV (Dec. 16, 2015) (mem. op.)  In particular, the Court affirmed as to limitations – a significant issue in this long-simmering dispute – noting that “each time the Hales raised a concern about the foundation, they were assured by one of appellants’ experts that the foundation was not the cause of the problems the Hales observed.”  The court also affirmed as to sufficiency challenges to liability, several claims of improper closing argument, and a challenge to the the basis of the exemplary damages award based on constitutional and Kraus factors. The court requested a remittitur as to (a) mental anguish damages (for sufficiency reasons) above $208,856 per plaintiff; and (b) a portion of the additional/exemplary damages award, based on the applicable cap and the conclusion that the total award “exceeds the guidelines set forth in [Bennett v. Reynolds, 315 S.W.3d 867 (Tex. 2010)] and [Tony Gullo Motors I, LP v. Chapa, 212 S.W.3d 299 (Tex. 2006)] for the type of harm suffered by the Hales as a result of appellants’ conduct.”

In the mandamus case of In re Fort Apache Energy Inc., the relators sought relief from a trial setting in Dallas County, alleging that it interfered with the dominant jurisdiction (and slightly later trial setting) of the Kendall County Court.  No. 05-15-00159-CV (Dec. 16, 2015).  The Dallas Court of Appeals denied the petition, finding that the setting did not “amount[] to the kind of direct interference . . . that warrants mandamus relief under currently governing law.”  (citing, inter alia, Abor v. Black, 695 S.W.2d 564, 566 (Tex. 1985) (orig. proceeding).  In a classic disagreement about the scope and role of mandamus proceedings, a dissent would grant relief, arguing that “refusal to correct the trial court’s clear abuse of discretion by mandamus presents a strong likelihood of wasted public and private resources alike.”  The Texas Supreme Court has since accepted a mandamus petition in, and set oral argument for, a similar case, also from Dallas.

One Technologies (“OT”) sued Profinity and a former OT employee for breach of a noncompetition agreement. Profinity counterclaimed for violations of the Texas antitrust statute.  The jury found against OT and for Profinity; the trial judge adopted the verdict as to OT’s claims and granted JNOV on Profinity’s.  The Dallas Court of Appeals affirmed, changing only the basis for resolution of the antitrust claim.  Profinity LLC v. One Technologies, LP, No. 05-14-00403-CV (Dec. 17, 2015) (mem. op.)

As to OT’s claim, the Court found no conclusive proof the element of damage, noting that Profinity’s damages expert had squarely clashed with OT’s expert at trial.  As to the antitrust claims, the Court expressed considerable skepticism about Profinity’s damages model, which calculated the value of lost customers nationwide.  Under Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671 (Tex. 2006), because “remedying extraterritorial injury . . . would provide no benefit to consumers ‘in state,'” even allegations of anticompetitive conduct in Texas toward a company based in Texas are likely not actionable under the Texas statute.  The Court did not rule on this basis, however, instead finding a lack of jurisdiction under the Noerr-Pennington doctrine, as the alleged anticompetitive conduct focused on “conduct ‘incidental’ to the prosecution of a lawsuit respecting [antitrust] redress.” (citing Noell v. City of Carrollton, 431 S.W.3d 682, 708 (Tex. App.–Dallas 2014, pet. denied).

While otherwise affirming the plaintiffs’ victory in an easement dispute, the Dallas Court of Appeals struck a portion of the trial court’s declaratory judgment related to the legal rights associated with that easement.  The Court found no request for judgment on that matter in the plaintiffs’ live pleading or summary judgment motion, and also found that general discussion of the applicable city regulations had been offered for other purposes.  The Court reminded: “[A]n issue is not tried by consent when evidence relevant to the unpleaded issue is also relevant to a pleaded issue because admitting that evidence would not be calculated to elicit an objection and its admission would not prove the parties’ ‘clear intent’ to try the unpleaded issue.”  United Services Pyramid Group v. Hurt, Noi. 05-14-00108-CV (Dec. 7, 2015) (mem. op.)

Defendant won summary judgment, with a combination of no-evidence and traditional grounds, on fraudulent transfer claims.  Renate Nixdorf v. Midland Investors LLC, No. 05-14-01258-CV (Dec. 8, 2015) (mem. op.)  The Dallas Court of Appeals reversed, finding problems with what defensive matters were appropriately addressed by a no evidence summary judgment motion and what specific transactions were at issue, as well as proof of “reasonably equivalent value” that was conclusory.

Cross moved for summary judgment on limitations, submitting this affidavit: “My name is John K. Cross. I am at least 18 years of age and of sound mind. I have personal knowledge of the facts alleged in Defendant’s Second Motion for Summary Judgement. I hereby swear that the following statements in support of Defendant’s Second Motion for Summary Judgment are true and correct.  The mortgage at issue in this case was a secondary mortgage on a home I owned in Massachusetts. The primary holder foreclosed on the property, and it was sold  at foreclosure sale on July 14, 2010 per the correspondence I received from the mortgage holder’s attorney on May 28, 2010.”

Unfortunately for Cross, “[a]n affidavit that, on its face, establishes the affiant’s lack of personal knowledge is a defect of substance that may be raised for the first time on appeal.”  Here, “Cross’s affidavit affirmatively demonstrates his lack of personal knowledge on its face with respect to the date of the foreclosure sale. Cross attested only to what the May 28th letter told him.”   Old Republic Ins Co. v. Cross, No. 05 14-01204-CV (Dec. 7, 2015) (mem. op.) (The opinion is not completely clear on the identity of the parties, but it appears that the “mortgage holder” in the letter was not Cross’s party-opponent in this litigation, so that doctrine was not discussed.)

Dickson, an attorney, alleged interference with his contingent fee contract that led to the abandonment of a promising appeal.  The Dallas Court of Appeals affirmed summary judgment for the defense, noting: “Dickson’s summary judgment response below that the appeal was a ‘slam dunk’ is conclusory because it does not provide the underlying facts to support it.”  Dickson v. American Electric Power, Inc., No. 05-14-00690-CV (revised Jan. 15, 2016) (mem. op.)

Highland Capital won a judgment for over $20 million based on the alleged breach of a contract by RBC Capital to sell a package of notes.  RBC Capital Markets, LLC v. Highland Capital Management, LP, No. 05-13-00948-CV (Dec. 4, 2015) (mem. op.) The Dallas Court of Appeals reversed, finding no enforceable contract.  The Court first reviewed the protean doctrines of judicial admissions and judicial estoppel, ultimately concluding that statements made by RBC in other litigation were not preclusive in this case, noting that RBC did not ultimately prevail in the other matter.  It then rejected Highland’s argument that a contract was formed when the parties agreed upon “price and principal,” noting that RBC’s acceptance was expressly subject to further documentation (specifically, a written trade confirmation and purchase agreement). The Court noted that, as alleged by Highland, the claimed breach involved matters that remained to be resolved in those subsequent documents.  (Another “conditional agreement” case is discussed today on sister blog 600Camp.)

Does a limitation of liability provision include gross negligence claims?  This basic question of contract drafting finds surprisingly little answer in Texas authority.  A recent article by LTPC attorneys David Coale and Mallory Biblo summarizes the opinions and where the Dallas Court of Appeals falls.

Not too early . . . Gast v. Tinsley, No. 05-15-00498-CV (Nov. 24, 2015, mem. op.) (unresolved claims remained in the trial court against other defendants)

Not too late . . . In re: S.A.W., No. 05-15-00876-CV (Nov. 25, 2015, mem. op.) (notice untimely after nunc pro tunc order revised judgment to a significantly earlier date)

It’s worth remembering the shorthand that the Dallas Court uses, in its short memorandum opinions denying mandamus relief, to describe the requirements for the writ: “Ordinarily, to obtain mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re: Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Having carefully reviewed the petition and record in support of the petition, we conclude relator has failed to establish a right to relief.”  E.g., In re Duncan, No. 05-15-01318-CV (Nov. 23, 2015, mem. op.)  While this succinct phrase is not controversial, it is worth noting that Prudential is still the “go-to” cite, and the basic two-factor test still the standard reference, despite the more exotic formulations of the Texas mandamus standards by other cases and commentators in the decade-plus since Prudential.

Property located in Louisiana was foreclosed upon in Orleans Parish.  Subsequent litigation in Texas about the appropriate credit for that sale was not filed in the right place, waiving that issue: “[Texas Property Code] Section 51.004 . . .   provides that any person obligated on the debt, including a guarantor, may bring an action in the district court in the county in which the real property is located for a determination of the fair market value of the real property as of the date of the foreclosure sale.”   State Bank v. Granbury Hospitality, No. 05-14-01306-CV (Nov. 20, 2015, mem. op.) (emphasis added).

Zive, the president of a partner in a real estate development venture, sought to testify about the value of the relevant property at various times, in the context of a dispute about the value received at a foreclosure sale.  The Court affirmed his exclusion, reminding that while “an owner is qualified to testify to property value,” the testimony must “meet the same requirements as any other opinion evidence.”  (quoting Natural Gas Pipeline Co. of America v. Justiss, 397 S.W.3d 150, 156, 159 (Tex. 2012)).  Here, although Zive relied upon an appraiser’s report, Zive “provided no substantiation for his opinion that the fair market value of the property would have increased by approximately $2 million by the 2011 foreclosure sale date,” and thus did not meet the standard.  Grapevine Diamond v. City Bank, No. 05-14-00260-CV (Nov. 10, 2015, mem. op.)

While outside the usual coverage of this blog, the high-profile products liability case of Johnson & Johnson v. Batiste provides a powerful illustration of “no evidence” review. The plaintiff alleged personal injuries from defective vaginal mesh, the jury found for her, and the Dallas Court reversed:

“It is undisputed the implantation of a [product] for the treatment of [urinary incontinence] can cause a number of complications, including erosion of the mesh into the vagina and urethral, pelvic, and groin pain. It is also undisputed that Batiste suffered from these complications. However, ‘[t]he law of products liability does not guarantee that a product will be risk free.’  Rather, to recover on her product liability claim based on an alleged design defect in the [product], Batiste was required to prove a specific defect in the [product], and not simply the device itself, was the producing cause of her injuries. . . . Although Batiste alleged the [product] was defective based on its use of mechanically cut, heavyweight, small-pore mesh that was subject to degradation and particle loss, she failed to produce more than a scintilla of evidence that any of these alleged defects caused her injuries. Accordingly, the evidence is legally insufficient to support the jury’s verdict.”

No. 05-14-00864-CV (Nov. 5, 2015, mem. op.)  (citations omitted).  Coverage of the case has recently appeared in the Dallas Observer and Dallas Morning News.

Pinkus, visiting Dallas on business, suffered fatal injuries in a car accident while driving to dinner with his son.  The Fifth Court affirmed summary judgment for his employer’s workers compensation carrier, finding (1) that the “continuous coverage” doctrine did not apply when his trip “merely placed him in a position to take advantage of an opportunity for a ‘distinct departure’ on a ‘personal errand,'” and (2) for the same reasons, the “dual purpose travel” doctrine did not apply either.  A concurrence would have analyzed the dual-purpose doctrine differently, but reached the same result. Pinkus v. Hartford Casualty, No. 05-14-00892-CV (Nov. 5, 2015).

The trial court granted summary judgment for approximately $30,000 in unpaid invoices under an “account stated” theory, as well as roughly $15,000 in attorneys fees.  Pegasus Transportation Group v. CSX Transportation, No. 05-12-00465-CV (August 14, 2013, mem. op.)  The Court of Appeals affirmed, reminding that “account stated” can allow recovery without an express contract when the parties have “a standard course of dealing . . . after the expiration of that written agreement.”  The Court also gave no weight to a controverting affidavit on attorneys fees, noting that it “does not address what was described by [plaintiff’s] lawyer as the work that was done, what is customarily charged in similar cases, why the time expended was excessive to accomplish the work provided, or that the work performed was unnecessary.”  (citing Cammack the Cook, LLC v. Eastburn, 296 S.W.3d 884, 895 (Tex. App.–Texarkana 2009, pet. denied)).

Liability for foundation damage under a multi-year series of CGL policies was at issue in Mid-Continent Casualty Co. v. Castagna, No.05-12-00383-CV (Aug. 20, 2013).  Among other holdings, the Court concluded that one policy, which named “McClure Brothers Custom Homes, LLC,” did not extend to an entity of which it was a general partner, “McClure Brothers Homes LP,” because of an exclusion “with respect to the conduct of any current or past partnership . . . or limited liability company” not expressly named. While that policy did reach members and managers of the LLC, no summary judgment evidence made that connection as to this party.  The Court also found that a breach of the implied warranty of good workmanship, despite its relationship to the parties’ construction contracts, did not go so far as to trigger the “contractual liability” exclusion under Gilbert Texas Construction, LP v. Underwriters at Lloyds, 327 S.W.3d 118 (Tex. 2010).

The court has issued some interesting comments in connection with the denial of a motion for rehearing in a condemnation case.  In the jury charge conference, Dallas County objected to the property owner’s proposed definition of “Cost to Cure,” but the specific basis of the objection was unclear.  The trial judge eventually summarized the objection as being that the instruction amounted to a comment on the weight of the evidence, and the County agreed.  The trial judge fixed that problem by modifying the instruction to award cost to cure damages, “if any.”  On appeal, the County attempted to argue that the definition was actually “an incorrect statement of Texas law,” but the court of appeals rejected that claim:

A party objecting to the jury charge must “point out distinctly the objectionable matter and the grounds of the objection.” Tex. R. Civ. P. 274. When the complaining party’s objection is, “in the opinion of the appellate court, obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, such objection or request shall be untenable.” Id.
Reviewing the reporter’s record of the charge conference, we cannot determine the County’s exact complaint to the trial court concerning “cost to cure” except that it constituted a comment on the weight of the evidence. The trial court addressed that complaint by modifying the statement of the definition.

The court also rejected the County’s argument that the property owner’s expert had offered conclusory opinion testimony, since the County had failed to raise an issue as to the legal sufficiency of the testimony.  In its appellate briefing, the County had challenged the trial court’s admission of the expert testimony as being an abuse of discretion, but did not attack the legal sufficiency of the testimony.  For that reason, the court declined to evaluate whether the testimony was conclusory, and therefore denied the County’s motion for rehearing.

Dallas County, Texas v. Crestview Corners Car Wash, No. 05-09-00623-CV

The court also issued a memorandum opinion in another governmental immunity case.  In this instance, the court of appeals affirmed the trial court’s denial of a plea to the jurisdiction, concluding that the plaintiff had properly alleged a waiver of sovereign immunity based on the government body’s use or condition of tangible personal property – namely, the 4×8-foot, improperly secured whiteboard that had fallen on the plaintiff’s head.

Dallas Metrocare Services v. Juarez, No. 05-11-01144-CV

In a governmental immunity case, the court has sustained a plea to the jurisdiction asserted by the City of Dallas in response to a slip-and-fall case.  The plaintiff alleged she had fallen while trying to open a locked door that had a puddle of fallen rainwater in front of it.  The City filed an interlocutory appeal after the trial court denied its plea to the jurisdiction.  The court of appeals reversed and rendered judgment dismissing the plaintiff’s claims, concluding that (1) the plaintiff had failed to raise a fact issue showing the City had knowledge of the allegedly dangerous condition, and (2) a plaintiff injured by a premises defect on governmental property can only assert a premises defect claim under the Texas Tort Claims Act, not a claim for general negligence.  Without an express waiver of governmental immunity under the TTCA, the court dismissed the case for lack of subject matter jurisdiction.

City of Dallas v. Prado, No. 05-11-01598-CV