Zurich Am. Ins. Co. v. MB2 Dental Solutions, LLC declined to take a permissive appeal, stating:

Regarding [Tex. Civ. Prac. & Rem. Code] section 51.014(d)’s second requirement, generally, a trial court will make a finding that an appeal will facilitate final resolution of the case “when resolution of the legal question dramatically affects recovery in a lawsuit.” Conversely, when other issues are left pending in the litigation, ultimate termination of the litigation is not advanced by allowing immediate appeal of an otherwise interlocutory order.

No. 05-24-00288-CV (Sept. 20, 2024) (mem. op.).

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).

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.).

Appellant challenged a temporary injunction arising from a noncompetition agreement about supplying beauty products to salons. The Fifth Court affirmed in Kim v. Oh, holding, inter alia:

• Capacity. “Appellants argue the evidence in the record establishes they signed the contracts with Oh in their corporate, not individual, capacities, and consequently there are no enforceable contracts on which Oh can recover against appellants. Appellants further assert that Oh lacks capacity to recover in this suit, noting he signed the contracts as ‘Grace Beauty Supply’ and that Grace Beauty Supply is not a party to this suit. However, these arguments raise affirmative defenses and dilatory pleas, which may be addressed at a later proceedings on the merits and are not issues to be resolved at this stage . . . ” (footnote omitted).
• Irreparable Injury. This testimony worked: “Oh stated there had been many violations of the noncompetition provisions, but he could not estimate how many because there were ‘too many’ to count. He saw appellants at his customers’ salons ‘many times’ after they terminated their contracts with him in December 2018. He believed appellants were competing with him for the same business and would continue to violate the noncompetition provisions. Oh testified it had been ‘very, very difficult’ for him to rebuild his customer base and that he was expecting a ‘difficult time’ when asked if he would be able to survive financially in the months between the hearing and the trial.” No. 05-19-00947-CV (May 11, 2020) (mem. op.)

Faced with a lack of appellate jurisdiction because of a nonfinal order, a party suggested abatement to cure the problem rather than dismissal. The Fifth Court rejected that request: “In so doing, we note nothing in the record reflects determination of the counterclaims will be perfunctory.  Nor does the record reflect a determination is imminent. No trial date has been set, and the record reflects December 20, 2019 is the date set for a hearing on appellant’s motion to set a trial date.” Dixon v. Principal Management Group, Inc., No. 05-19-00895-CV (Dec. 3, 2019) (mem. op.) (citations omitted).

Clark sued Phillips, his former competitor in an an election for Kaufman County Commissioner, for defamation in campaign materials. Phillips lost a summary judgment motion and sought one of the many interlocutory appeals available under Texas’s Byzantine interlocutory-appeals statute; specifically, section 51.014(a)(6). The result is the second split in recent weeks between a Democratic majority and a Republican dissenter, as follows.

Justice Reichek, joined by Justice Molberg, held that the Fifth Court lacked jurisdiction: “The record before us shows that Phillips was a candidate for public office who  allegedly provided information that was published in mailers and on a website. Nothing in the record shows Phillips has ever engaged in professional news reporting or any other form of journalism or professional investigation and commentary about matters of public concern. Accordingly, Phillips does not qualify as a ‘member of the media (emphasis added),'” and thus could not avail himself of this statute.

Justice Whitehill, invoking Occam’s Razor, agreed with the majority’s conclusion but disagreed with the path of its reasoning: “In short, whether we have jurisdiction over Phillips’s appeal from the denial of his summary judgment motion in this defamation case depends on whether he asserted a ground based on the First Amendment, its Texas equivalent, or Civil Practice and Remedies Code Chapter 73. He didn’t. Enough said. That should end the appeal. . . . Because there is a straightforward answer to this case without exploring in the first instance the boundaries of what constitutes the electronic media, we should follow the straightforward path and wait until when defining the electronic media is necessary to decide the case then before us (emphasis added).” Phillips v. Clark (links to both opinions above), No. 05-18-00556-CV (May 3, 2019).

Recent decisions have grappled with whether a “memorandum of decision” qualifies as a final judgment for purposes of starting appellate deadlines; the recent case of In re RKK further contributes to that dicsussion, finding that the trial court’s memorandum in that case did start the clock. No. 05-17-00794-CV (Oct. 25, 2017) (mem. op.)

At issue in Galaxy Builers, Ltd. v. Globus Management Group was a trial court order denying enforcemement of an arbitrator’s subpoena. While the order said that it was final, section 171.098 of the Texas Arbitration Act does not list it as an appealable category of arbitration-related ruling; thus, the appeal was dismissed for lack of jurisdiction. No. 05-17-00831-CV (Oct. 2, 2017) (mem. op.)

The Fifth Court affirmed summary judgment for D Magazine in a defamation suit by a former volunteer, finding that most of the statements at issue were unactionable opinions or accurate statements of fact. Summarizing the underlying principles of free speech, the opinion reminds that a “rhetorical flourish” that is “merely unflattering, abusive, annoying, irksome, or embarrassing, or that only hurts the plaintiff’s feelings, is not actionable.” The court lacked appellate jurisdiction over part of a related appeal by the Dallas Symphony, since it involved the denial of a summary judgment about a tortious interference claim rather then free speech issues, although the Court was able to address the civil conspiracy claim against the Symphony. D Magazine Partners LP v. Reyes, No. 05-16-00294-CV (April 18, 2017) (mem. op.)

In Viveri Youth Service v. Orme, the Fifth Court dismissed an appeal for lack of a final judgment. While the docket sheet indicated the case had been closed, the Court observed: “The last order, however, contains no language of finality or other indication the case was closed. While the trial court’s docket sheet reflects the case was closed, a docket sheet entry does not constitute a judgment or other appealable order of the trial court.” No. 05-17-00002-CV (April 11, 2017) (mem. op.)

In University of Texas Southwestern Medical Center v. Munoz, the Dallas Court of Appeals for the second time considered whether sovereign immunity barred the plaintiff’s claims. At the interlocutory stage, the answer was “no.” After a trial on the merits, the Dallas Court of Appeals said “yes,” and judgment was rendered for the University.

The issue in the case was whether the University had sovereign immunity from a suit arising from an injury caused by an air handling unit. If the air handling unit was personal property, the Texas Legislature waived immunity under the Texas Tort Claims Act. If it was a fixture attached to real property, then there was no waiver and the suit was barred because the plaintiff was aware of the danger.

In the first interlocutory appeal, the Dallas Court of Appeals held that the air handling unit was personal property, and thus the trial court had jurisdiction because sovereign immunity was waived. The plaintiff argued on the appeal of the final judgment that this was the law of the case. It was, after all, the same air handling unit discussed in the opinion from the interlocutory appeal.

The Dallas Court of Appeals disagreed. Noting that “[i]f the record in one appeal on a plea to the jurisdiction differs from the record on a second appeal following trial, we review the evidence challenging the existence of jurisdictional facts.” The court held that it was logical to assume the facts were better developed by the time of trial, and so it would consider those better developed facts. After reviewing those facts, the Dallas Court of Appeals concluded that the air handling unit was actually a fixture and reversed the final judgment in favor of the plaintiff. So governmental entities, despair not if you lose your interlocutory appeal, because it may turn out that the court trying your case does not have jurisdiction after all.

University of Texas Southwestern Medical Center v. Munoz

One thing every lawyer in Texas learns early on is that if you want to challenge personal jurisdiction, you have to file a special appearance before you answer the petition. Critter Control, Inc. sought to avoid that waiver point by filing a motion to withdraw its original answer in favor of a subsequently filed special appearance, which the trial court denied. Critter Control filed for interlocutory appeal, and Galt Strategies, LLC filed a motion to dismiss for lack of appellate jurisdiction. The Court of Appeals dismissed the appeal because it did not challenge the denial of the special appearance, but the Court notably did not foreclose the stratagem of moving to withdraw the answer in order to assert the untimely special appearance.

Critter Control, Inc. v. Galt Strategies, LLC, No. 05-15-01011-CV

A group of plaintiffs collectively named as Nemaha Water Services moved to compel arbitration before FINRA. In a cross-motion, Esposito Securities moved to compel arbitration before the AAA. The trial court denied Nemaha’s motion and granted Esposito’s, sending the case to AAA arbitration. In a hybrid interlocutory appeal and mandamus proceeding, the Dallas Court of Appeals reversed and sent the case to FINRA. Nemaha had signed a letter agreement in which it had agreed to pay Esposito 5% of the total consideration received in a qualifying investment or merger. The contract included a AAA arbitration provision, but the Court of Appeals held that clause was trumped by the FINRA rules, at least in this instance. The case turned on the question of whether Nemaha was a “customer” of Esposito, which would entitle it to invoke arbitration under the FINRA rules. Applying the ordinary meaning of “customer,” the Court held that Nemaha qualified even though it had not paid Esposito the contractual commission. Because Nemaha had contracted with Esposito — a member of FINRA — to purchase financial services for a fee, the Court concluded that Nemaha was entitled to invoke FINRA arbitration. The Court noted, however, that there is authority for the proposition that FINRA arbitration can be superseded by contract, although that was not the case this time.

Morford v. Esposito Sec., LLC, No. 05-14-01223-CV

A Republican primary battle for the office of Kaufman County commissioner (precinct 2) resulted in a defamation claim against the challenger’s media consultant. It seems that two days before the election, a website went up that strongly implied the incumbent, Ray Clark, had intervened in multiple child molestation cases brought against his “nephew,” Stoney Adams. resulting in the charges being dismissed. A series of mailed-out fliers made similar allegations. In reality, Adams was only distantly related through a series of marriages on Clark’s wife’s side of the family, and Clark averred that he had never done anything to support or assist Adams in any criminal case. Based on those facts, the trial court denied the defendants’ motion to dismiss under the TCPA, finding that Clark had established a prima facie case for each element of his defamation claims. The Dallas Court of Appeals affirmed, rejecting the defendants’ argument that the statements were protected as “rhetorical hyperbole.” Similarly, the statements were not protected as non-actionable opinions just because they were attributed to Adams’ ex-wife, but were instead capable of being defamatory because they implied knowledge that Clark really had intervened in Adams’ child molestation cases. As for actual malice, the Court of Appeals credited Clark’s argument that the defendants had “carefully attempted to distance themselves” from the defamatory statements, which in turn demonstrated that they “entertained serious doubts” about them.

Campbell v. Clark, No. 05-14-01056-CV

A short opinion helps to illustrate the limited reach of an appellate court’s authority over the cases before it. On interlocutory appeal, both litigants agreed that the trial court should have vacated an order appointing a receiver in Texas to serve ancillary to a primary receivership in Minnesota. But in addition to vacting the order appointing the receiver, the appellant also wanted the Court of Appeals to undo all the receiver’s actions. That was beyond the appellate court’s powers however. Pointing to TRAP 43.2, the Court held that it could affirm, modify, reverse and render, reverse and remand, vacate, or dismiss — none of which permitted the Court to grant the additional relief sought by the appellant.

Burlington Resources Oil & Gas Co. LP v. Verde Minerals, LLC, No. 05-15-00014-CV

In this case involving corporate infighting, the defendant filed a third-party claim against Troy Brown.  Mr. Brown filed a special appearance asserting that the court did not have personal jurisdiction, which the trial court denied.  Mr. Brown appealed.

The Court of Appeals reversed, determining that Brown did not have minimum contacts with Texas such that he was subject to personal jurisdiction here.  The Court specifically found that several emails Brown sent to people in Texas did not “constitute a contact demonstrating purposeful availment.”

Brown v. Pennington

Three of four defendants filed motions to dismiss under the Texas Citizens Participation Act, all of which were granted by the district court. The plaintiffs sought interlocutory review of those rulings, but the Dallas Court of Appeals concluded that it did not have jurisdiction to review the rulings. Because the claims against the fourth defendant were still pending, there was no final, appealable judgment in the case. Under the 2013 version of CPRC § 51.014(a)(12), only orders denying a TCPA motion to dismiss are subject to interlocutory appeal, and the current version of the TCPA itself only authorizes interlocutory appeals when the motion has been overruled by operation of law due to the trial court’s failure to rule within 30 days. The plaintiffs will therefore have to wait until final judgment before appealing the TCPA dismissals.

Horton v. Martin, No. 05-15-00015-CV

The Dallas Court of Appeals has reversed an order appointing a receiver to wind up the affairs of a business equally owned by two siblings who could not agree on selling the cattle ranch they operated. The opinion serves as a useful primer on the statutory criteria for appointment of a receiver. In this instance, the Court of Appeals held that a receiver could not be justified because there was no evidence that the company was under threat of an irreparable injury if the property was not sold.

Spiritas v. Davidoff, No. 05-14-00068-CV

Connie Sigel used a website to book an apartment in Paris (the one in France) for a seven-night vacation. During that stay, an intruder with keys to both the apartment and its safe stole most of Sigel’s possessions. Sigel sued the booking agency on multiple contract and tort claims. The trial court denied My Vacation Europe’s special appearance, but the Dallas Court of Appeals reversed and rendered. The Court held that Sigel’s act of accessing MVE’s website and renting an apartment while she was located in Dallas did not constitute a purposeful availment of Texas by MVE, and there was no evidence that MVE specifically targeted Texas residents for its services. The Court of Appeals also held that there could be no specific jurisdiction in Texas because the claims all arose from a burglary that occurred in France, meaning that the relationship between Texas and the operative facts of the litigation was too tenuous to support jurisdiction.

My Vacation Europe, Inc. v. Sigel, No. 05-14-00435-CV

Update: Threepeat. The dream is alive.

Although medical malpractice usually isn’t this blog’s cup of tea, it is sometimes interesting to see just how broadly the courts will apply the expert report requirement for health care liability claims contained in Chapter 74 of the Civil Practice & Remedies Code. In this case, we learn that a case against a hospital will not be dismissed for failure to file an expert report when the claim is for a slip-and-fall injury. The Court of Appeals distinguished between claims that have an indirect relationship with health care (which require an expert report) and those that are “completely untethered” from health care. Slipping and falling on a wet floor in a hallway, the Court holds, has nothing to do with health care, and so the trial court correctly denied the hospital’s motion to dismiss.

Methodist Hosps. of Dallas v. Searcy, No. 05-14-00375-CV

A special appearance in a probate case has led to the exceedingly rare grant of a motion for sanctions for the filing of a frivolous appeal. In this instance, the appellant managed to make a general appearance in the case before filing the special appearance — a fact that the appellant had failed to even address in response to the appellee’s briefing in the probate court. On top of that, the appellant had failed to preserve his argument on appeal that the special appearance was somehow severable from the motion to show cause in which he entered his general appearance, nor had the appellant objected (and thereby preserved error) when the probate judge overruled the special appearance without holding a separate hearing on it. Although the appellee had not submitted any evidence of her damages to support the award of sanctions, the Court of Appeals granted her leave to file such evidence within ten days of the opinion.

Estate of Ardyce Deuel-Nash, Deceased, No. 05-14-00128-CV

In what appears to be only the third opinion in the state reviewing a motion to dismiss under Texas Rule of Civil Procedure 91a, the Dallas Court of Appeals has affirmed a trial court’s order that granted in part and denied in part a motion to dismiss on the pleadings. Similar to Federal Rule of Civil Procedure 12(b)(6), Rule 91a allows a party to move to dismiss a cause of action “on the grounds that it has no basis in law or fact,” based solely on the claimant’s pleadings. In this case, the plaintiffs sued the City of Dallas after emergency services failed to respond to a 911 call reporting their son’s drug overdose. The plaintiffs attempted to plead their way around governmental immunity by claiming the City had negligently used or misused the 911 system’s telephone and computer systems. The Court affirmed dismissal of negligence claims that the City had failed to properly respond to the 911 call, but also affirmed the denial of the motion as to claims that the equipment itself had failed or malfunctioned.

City of Dallas v. Sanchez, No. 05-13-01651-CV

An investor in an office building sued the building’s architect and engineering consulting firm for fraud, negligent misrepresentation, aiding and abetting, and conspiracy. The investor did not file a certificate of merit with the original petition, so the defendants moved to dismiss. The claims against the engineering firm were dismissed without prejudice, and the plaintiff refiled with a new complaint that included a certificate of merit. After consolidating the old and new cases, the trial court granted a motion to dismiss as to all claims against the engineering firm, but only as to the negligent misrepresentation claim for the architects. An interlocutory appeal ensured, and the Court of Appeals ended up siding with the plaintiff. As to the plaintiff’s claim against the engineering firm, the Court held that dismissal without prejudice did not prevent the plaintiff from refiling a new lawsuit — the one under appeal — that included a certificate of merit. As to the claims against the architecture firm, no certificate of merit was required because the plaintiff’s case was based on the allegation that the firm knew of defects in the building due to its occupancy in the building, not in connection with any professional services that the firm had provided. Accordingly, no certificate of merit was necessary, and all of the plaintiff’s claims against the architecture firm were also remanded for further proceedings.

TIC N. Central Dallas 3, LLC v. Envirobusiness, Inc., No. 05-13-01021-CV

The Court of Appeals has issued a lengthy opinion affirming the denial of a special appearance. The appeal arises out of an apparently contentious case involving claims and counterclaims for breach of contract, fraud, and defamation. Defendant Sebastian Lombardo — an Italian citizen who lives in Belgium and works in France — challenged personal jurisdiction by invoking the fiduciary shield doctrine, which protects officers of corporations from being personally haled into court in Texas due to their contacts as representatives of the corporation. Unfortunately for Lombardo, his argument in the trial court had presented that issue as a matter of general personal jurisdiction, and the trial court had found him to be subject to specific personal jurisdiction. Having failed to present the fiduciary shield doctrine as a bar to the exercise of specific personal jurisdiction, the issue was also waived on appeal. The opinion goes on to affirm the legal and factual sufficiency of the evidence supporting the trial court’s findings of jurisdictional facts, as well as its application of the law to those facts, and therefore affirmed denial of the special appearance.

Lombardo v. Bhattacharyya, No. 05-13-01583-CV

Last November, the Texas Supreme Court reversed and remanded for further consideration in a case where the Dallas Court of Appeals had concluded that the plaintiff had sufficiently pleaded a waiver of sovereign immunity through the use of tangible property. The Supreme Court held that the plaintiff had not alleged a “use” of property for a whiteboard that fell on his head, because Dallas Metrocare had only made the board available for use by patients. On remand, the Court of Appeals had to consider the alternative question of whether the plaintiff’s claims alleged injury through a “condition” of property. The Court concluded that he had pleaded such a claim, based on the allegation that the whiteboard was in an unsafe condition because it was not properly secured. The case was therefore remanded to the trial court for further proceedings.

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

Cornerstone Healthcare owns and operates a group of hospitals located in several states. It filed suit against Nautic Management VI, the general partner or manager of several private equity funds. NMVI filed a special appearance to challenge personal jurisdiction, but the trial court overruled it. On interlocutory appeal, the Court of Appeals reversed and rendered judgment dismissing NMVI from the case. Cornerstone argued that NMVI should be subject to specific personal jurisdiction in Texas because it controlled the funds whose representatives had traveled to Texas and conducted the business that got them all sued. The Court of Appeals disagreed, holding Cornerstone to its word that it was not attempting to pierce the corporate veil and therefore refusing to attribute the contacts of the funds to NMVI.

Nautic Mgmt. VI, LP v. Cornerstone Healthcare Group Holding, Inc., No. 05-13-00859-CV

The Texas Citizens Participation Act continues to be a fruitful source of appellate activity. In this instance, the Court of Appeals has reversed the trial court’s order denying a motion to dismiss in a case arising out of a bad review on Angie’s List. Barbara Young hired Perennial Properties to construct an outdoor living space at her home, but Young claimed that Perennial failed to perform its work as required. McKinney Lumber Company then filed a lien against Young’s property for $9,779 in lumber that Perennial had failed to pay for. After the lumber company sued everyone involved, Young wrote up her experience in an online review, giving Perennial an overall grade of “F” and describing Perennial’s owners as incompetent crooks. Those owners then intervened in the lawsuit in order to sue Young and her attorney for defamation and intentional infliction of emotional distress.

The Court of Appeals first held that Young had met her initial burden of showing that the online review was an exercise of her right to free speech because it was a communication made to the public in connection with a good, product, or service. That brought it within the scope of the TCPA and shifted the burden to Perennial’s owners to establish by clear and specific evidence a prima facie case for each element of their claims. That they failed to do, according to the Court of Appeals. The defamation claim failed because the owners had not provided any evidence that the allegedly false statements were defamatory (as opposed to non-actionable opinions) or that Young had been negligent in making them. The intentional infliction of emotional distress claim failed because that cause of action is only a “gap-filler” tort, and there were no different or distinguishing facts from the defamation claim to permit it to proceed separately. The Court of Appeals therefore dismissed both claims and remanded the case for further proceedings under the TCPA, presumably to consider an award of attorney fees to Young.

Young v. Krantz, No. 05-13-00853-CV

If “blogger” sounds like an unusual pastime for the son of an oil-and-gas billionaire, this colorful case may be the one for you. T. Boone Pickens and several of his children sued Michael Pickens. Michael is T. Boone’s son and a recovering drug addict who has chronicled his life and his recovery in his blog, “5 Days in Connecticut” (which is now closed to uninvited readers). The blog has not been very kind to the other members of Michael’s family, which led them to sue for invasion of privacy, defamation, and intentional infliction of emotional distress. Michael moved to dismiss based on the Texas Citizens Participation Act, our version of the “anti-SLAPP” laws that have been enacted around the country in recent years. The trial court denied the motion to dismiss, and the Court of Appeals affirmed, holding that Michael’s statements about his life and his family did not qualify for protection under the TCPA because they were not “made in connection with a matter of public concern.”  Tex. Civ. Prac. & Rem. Code § 27.001(3).

Although the TCPA defines “public concern” to include statements relating to “a public figure,” the Court drew a distinction between general-purpose public figures and limited-purpose public figures. To qualify as a matter of public concern under the TCPA, the speech must either relate to a general-purpose public figure (whose entire life is followed by the public) or a limited-purpose public figure (who is only followed at times, or on certain topics). If it is a limited-purpose public figure, then the defendant’s speech only qualifies as a matter of public concern if the statements relate to the subject matter that makes the person a limited-purpose public figure. Here, the Court concluded that Michael’s evidence was insufficient to show that T. Boone was a public figure for all purposes, and that he was only a public figure for the limited purpose of his opinions and activities in the energy industry. Because Michael’s statements related to T. Boone’s family life, and not the energy industry, they did not qualify as matter of public interest under the TCPA, and therefore Michael’s motion to dismiss had to be denied.

Pickens v. Cordia, No. 05-13-00780-CV

In a case that 600 Commerce believes is the first successful attempt at a permissive interlocutory appeal since the inception of the blog, the Court of Appeals has affirmed the trial court’s application of Texas law to a personal guaranty. (Check out https://600commerce.com/?s=permissive&submit=Search to see instances where the Court declined to hear interlocutory appeals)

Coca-cola had extended credit to Robert Winspear’s business pursuant to a credit agreement and a personal guaranty from Winspear.  The credit agreement contained a choice of law provision in favor of Georgia law.  The guaranty was included on the same page as the credit agreement, but it did not contain a choice of law provision.  After Winspear’s business defaulted, Coca-Cola sued Winspear in Texas (where he and his business were located and where the agreements were executed) on the guaranty.  Winspear filed a motion seeking to apply Georgia law based on the choice of law provision in the credit agreement, but the trial court denied his motion and held that Texas law applied.

Winspear sought a permissive interlocutory appeal based on his contention that if Georgia law applied to the guaranty, it would be unenforceable and thus dispose of the entire case.  Although the Court agreed to hear the interlocutory appeal, it ultimately affirmed the trial court’s decision because the choice of law provision in the credit agreement did not apply to the separate guaranty.

Winspear v. Coca Cola, No. 05-13-00712-CV

In this inverse condemnation action, the City of Dallas claimed that the case against it should be dismissed for lack of subject matter jurisdiction.  The Court of Appeals held that fact issues precluded dismissal because the plaintiff had alleged, among other things, that the City has: (1) prevented him from developing his property in order to reduce the City’s cost of acquiring that property in the future; (2) closed a street near his property, potentially reducing the plaintiff’s investment-backed expectation; and (3) refused to act on plaintiff’s application to build a privately funded bridge to connect to his property.

City of Dallas v. Millwee-Jackson JV

The owners and occupants of a medical office building sued TDI, the company that installed the plumbing system, alleging a number of defects that caused mold and “brown water.” TDI filed a motion to dismiss based on the plaintiffs’ failure to file a certificate of merit, which is required when the plaintiff’s claims arise out of the provision of professional services by certain types of licensed or registered professionals, including engineers and architects. See Tex. Civ. Prac. & Rem. Code § 150.002. The trial court denied the motion to dismiss, and the Court of Appeals affirmed on interlocutory review. The only evidence TDI had offered to show it was a “licensed or registered professional” was a printout of search results from a government registry of engineering firms, and that printout showed nothing regarding TDI’s alleged status as a licensed or registered engineering firm. Based on that evidence, the trial court did not abuse its discretion in concluding that TDI had failed to meet its burden of showing itself to be a licensed or registered professional, and the certificate of merit requirement therefore did not apply.

TDIndustries v. My Three Sons, Ltd., No. 05-13-00861-CV

The Court of Appeals has once again denied a permissive interlocutory appeal. Respondents sued petitioners for injuries they sustained after a bus accident in Mexico. The bus ticket stated that the passenger accepted “the validity and application of the authority and jurisdiction of the applicable Mexican Law and Regulations…” The trial court denied petitioner’s motion to apply the laws of Mexico, ruling instead that Texas law applied. Petitioners appealed. The Court found that although petitioners claim they will have to do additional discovery without a decision from the Court of Appeals on the choice of law issue, petitioners failed to show the appeal would materially advance the ultimate termination of the litigation.

Autobuses Ejecutivos v. Cuevos

The Court of Appeals has once again ruled that it is without jurisdiction to consider a permissive interlocutory appeal. In this instance, the developers of White Bluff Resort at Lake Whitney are in a dispute with their property owners over the assessment of fees for the property owners’ association. The parties filed cross-motions for partial summary judgment, and the trial court ruled in favor of the property owners. The parties then agreed to an interlocutory appeal of the ruling, which the trial court also authorized. The developers argued that the appeal presented “controlling questions” of law, but the Court of Appeals disagreed because the summary judgment ruling did not specify the basis for the trial court’s decision. Without a substantive ruling from the trial court, the Court of Appeals could not conclude that the appeal presented any controlling questions, and the Court was therefore without jurisdiction to hear the interlocutory appeal.

Double Diamond Delaware, Inc. v. Walkinshaw, No. 05-13-00893-CV

The Dallas Court of Appeals continues to be a difficult place to get a permissive interlocutory appeal. In this instance, a defendant in a breach of contract case attempted to appeal the denial of its motion for partial summary judgment, which had sought to establish that it could terminate its lease because of the cancellation of two government contracts. The Court of Appeals noted that while the interpretation of an unambiguous contract is question of law, it was not a controlling question of law in this case. The Court also pointed to the existence of several other issues in the lawsuit, concluding that the resolution of the contract issue would not advance the ultimate termination of the litigation. The Court therefore denied the petition for permission to appeal.

Trailblazer Health Enterprises, LLC v. Boxer F2, L.P., No. 05-13-01158-CV

According to the operators of Hank’s Texas Grill, the City of McKinney and its police officers have been wrongfully harassing the restaurant, its employees, and its customers for the last ten years. In response, the city alleges that Hank’s violates numerous city ordinances. The city filed a plea to the jurisdiction to invoke its governmental immunity. The trial court denied the plea, and the city appealed. Summarizing the recent (and conflicting) string of cases challenging local ordinances, the Court of Appeals concluded that “the Declaratory Judgments Act waives governmental immunity against claims that a statute or ordinance is invalid,” but “does not waive a governmental entity’s immunity against a claim that government actors have violated the law.” Construing Hank’s pleadings, the Court concluded that they did not demonstrate that Hank’s claim was outside the scope of the city’s governmental immunity. However, the pleading also did not demonstrate that the claim was barred by governmental immunity, meaning that Hank’s had to be given the opportunity to amend. The Court also affirmed the trial court’s ruling that Hank’s claim for damages was not barred by immunity to the extent that it was an offset against the city’s own damage claims. Finally, the Court of Appeals rejected the city’s claim that the trial court lacked subject matter jurisdiction to enjoin its enforcement of state laws and local ordinances, ruling that the pleadings and arguments at this stage of the case were still too unclear to affirmatively demonstrate that the trial court lacked jurisdiction to issue an injunction.

City of McKinney v. Hank’s Restaurant Group, L.P., No. 05-123-01359-CV

The Court of Appeals has reversed the district court’s order sustaining the special appearance of an Iowa company formed by one of the plaintiff’s former employees. Interestingly, the opinion starts out with some discussion of a recurring problem in Texas practice — namely, the use and treatment of documents filed under seal. In this instance, much of the evidence necessary to determine the special appearance had been sealed by the trial court, including an exhibit that was “the only evidence of the terms of the relationship” between two of the defendants. The Court of Appeals resolved this difficulty by stating that it had made every effort to preserve the confidentiality of the designated materials, but that the appeal could not be decided without mention of some key jurisdictional facts. The lesson here appears to be that the Court will do what it can to preserve the litigants’ confidential information, but if the details are essential to the appeal, you can reasonably expect some of them to come out in an opinion that is a matter of public record.

Moving on to the merits of the special appearance, the evidence showed that Eco Technologies was an Iowa company that had all of its operations located in that state, but that it distributed its products to independent dealers in Texas and elsewhere. One of those dealers in Texas is owned by the plaintiff’s former employee Billy Cox, a Texas resident who also is a part owner of Eco Technologies itself. The plaintiff alleged that Eco Technologies and Cox had interfered with the plaintiff’s Texas contracts and unfairly competed with the plaintiff in Texas, and the Court held that those allegations were sufficient to bring Eco Technologies within the reach of the Texas long arm statute. Citing Iowa law, the Court held that as a member of a member-managed LLC, Cox was an agent of Eco Technologies, and that his recruitment of the plaintiff’s distributors in Texas to enter into relationships with Eco Technologies were jurisdictional contacts attributable to Eco Technologies. The company therefore fell short of its burden to negate the jurisdictional grounds alleged by the plaintiff.  Accordingly, the Court of Appeals reversed the order sustaining the special appearance and remanded the case for further proceedings.

Masterguard, L.P. v. Eco Techs. Int’l LLC, No. 05-12-01318-CV

After Media Consultants, LLC defaulted on its lease and filed for bankruptcy, plaintiff 11327 Reeder Road, Inc. filed suit against Kenneth Guarino and Capital Video Corp. to recover the unpaid rent owed under the lease agreement, alleging that Media Consultants and Capital Video were Guarino’s alter egos. 11327 further alleged that Guarino had fraudulently induced it to enter into a lease modification, and that Media Consultants had conspired with Guarino to commit fraud. However, Guarino and Media Consultants were not residents of Texas, and they filed a special appearance to contest personal jurisdiction. On interlocutory review from the denial of the special appearances, the Court of Appeals reversed. Proof that an individual is an officer, director, or majority owner of a company is insufficient, standing alone, to establish alter ego. Nor was there general jurisdiction over Guradino because “Making telephone calls and sending e-mails about separate business entities in another state are not the types of continuous and systematic contacts that approach the relationship between the state and its own residents.” 11327 also failed to establish jurisdiction over Guradino through proof that he had negotiated the lease modification through a telephone call to Texas, because a single telephone call to Texas that included alleged misrepresentations does not demonstrate the defendant purposefully availed himself of the privilege of conducting activities in Texas sufficient to support specific jurisdiction.

Guarino v. 11327 Reeder Road, Inc., No. 05-12-01573-CV

The Court of Appeals has affirmed the district court’s order denying two motions to compel arbitration. The plaintiffs had sued for breach of fiduciary duty, fraud, and negligent misrepresentation, arising out of a bad investment promoted by the defendants. The brokerage account documents signed by the plaintiffs contained an arbitration clause, but that clause only required arbitration of claims against “Introducing Firm, Clearing Agent, and any Sub-Advisor” — terms that were not defined in the agreement. While it may have been reasonable to conclude that the arbitration clause was intended to cover claims against the defendants, there was no abuse of discretion by the trial court in failing to find that they were within the scope of the arbitration clause. The Court of Appeals also rejected the defendants’ attempt to invoke “direct benefits estoppel,” a doctrine that allows non-signatory defendants to compel arbitration “if the nature of the underlying claims requires the signatory to rely on the terms of the written agreement containing the arbitration provision in asserting its claims against the non-signatory.” That doctrine did not apply here because the plaintiffs were not seeking any direct benefit under the contracts that contained the arbitration provisions. The order denying arbitration was therefore affirmed.

VSR Financial Services, Inc. v. McLendon, No. 05-12-01016

Since 1994, the City of Dallas has been in litigation with its police, firefighters, and rescue officers. The question at hand is whether a referendum and ordinance passed in 1979 amounted to a one-time salary adjustment, as the city contends, or a perpetual entitlement in all future salary adjustments. More than a decade after the lawsuits started, the city suddenly remembered that it had governmental immunity, and filed pleas to the jurisdiction on that basis. In 2011, the Texas Supreme Court held that the officers could not pursue a declaratory judgment on their interpretation of the ordinance because the only potential relief from such a declaration would be an award of money damages. City of Dallas v. Albert, 354 S.W.3d 368 (Tex. 2011). In the meantime, however, the legislature had enacted a new, retroactive statute that waived local governments’ immunity from suit for certain breach of contract claims. See Tex. Local Gov’t Code § 271.151 et seq. The case was therefore remanded to the trial court to consider whether there was jurisdiction to hear the officers’ breach of contract claims. The trial court denied the city’s renewed pleas to the jurisdiction, ruling that the contract claims fell within the new statutory waiver of immunity. On interlocutory appeal, the Court of Appeals agreed.

The analysis is somewhat lengthy, but its core relies on City of Houston v. Williams, 353 S.W.3d 128 (Tex. 2006) for the proposition that city ordinances can create a unilateral contract between the city and its employees that is within the scope of the legislature’s waiver of governmental immunity. Finding all of the elements of such a contract contained within the 1979 ordinance, the Court of Appeals concluded that it was a unilateral contract between the city and the officers. However, on the key question of whose interpretation of the ordinance would prevail, the court deferred to one of its previous rulings in the case, holding that the ordinance was ambiguous and its interpretation was therefore a question of fact to be determined at trial. The court also held there was no jurisdiction on the remaining declaratory judgment claims, concluding that the Albert decision had already established the city was entitled to governmental immunity from such claims.

City of Dallas v. Arredondo, No. 05-12-00963-CV

Jay Nanda and his brother, Atul, ended up in a dispute over their jointly-owned company, Dibon Solutions. An arbitrator awarded ownership of the company to Atul and ordered him to pay Jay in excess of $500,000. After the arbitration award, Jay began to call Dibon’s customers and its bank, claiming that Dibon was engaged in all kinds of misconduct, including money laundering, human trafficking, and forging documents. Dibon sued Jay, asking the trial court for a temporary injunction to stop Jay from spreading his allegations any further. The trial court denied the temporary injunction, and Dibon filed an interlocutory appeal. The court of appeals affirmed, holding that the testimony supported Jay’s assertion that the statements were true. Without any false or misleading statements at issue, Dibon could not meet its burden of establishing an exception to the First Amendment’s prohibition of prior restraint. The court went on to hold that an injunction could not be sustained on Dibon’s alternative theory of tortious interference because, apart from the fact that Jay admitted sending the disparaging information in an email, there was no evidence that he had otherwise taken an active part in persuading Dibon’s customer to breach its contract. Accordingly, the trial court did not abuse its discretion in denying Dibon’s request for a temporary injunction.

Dibon Solutions, Inc. v. Nanda, No. 05-12-01112-CV

On July 6, 2012, the trial court in this case signed an order denying the defendant’s special appearance.  The defendant then moved for reconsideration of that denial on August 9, which the trial court subsequently denied on September 24.  On October 15, the defendant appealed the second denial.  On appeal, the Court of Appeals concluded that it lacked jurisdiction to hear the appeal because, under the rules, the defendant’s notice of interlocutory appeal was due by July 26, or twenty days after the trial court denied the first special appearance. The Court explained that permitting appeals twenty days after a motion for reconsideration would essentially eliminate the twenty-day requirement.

Pahl v. Swaim

Michael Tabasso was a salesman for BearCom Group, Inc., a Garland-based wireless equipment dealer. Tabasso was based out of BearCom’s office in Philadelphia, and was in charge of a sales region that did not include Texas. Nevertheless, the company disciplined Tabasso for attempting to make sales outside of his sales region, including contracting with a Texas company and then referring a portion of that contract to another party at BearCom’s expense. After Tabasso was terminated, he apparently continued to fulfill service requests by BearCom customers and forwarded confidential information to his personal email account. All of that led to BearCom filing suit against Tabasso in Dallas County. Tabasso filed a special appearance, which the district court denied.

On interlocutory appeal, the court of appeals affirmed. BearCom’s pleading raised a plethora of alleged jurisdictional contacts, including contacts with BearCom’s customers in Texas. That pleading shifted the burden to Tabasso to negate each of the alleged jurisdictional contacts, but he did not do so. Instead, the trial court deemed his affidavits to be “not credible in light of the record,” and there was ample evidence of Tabasso’s communications and dealings with those Texas customers. Tabasso also failed to preserve any objections to the trial court’s evidentiary rulings. In light of the entire record, the court of appeals found no abuse of discretion and affirmed the denial of the special appearance.

Tabasso v. BearCom Group, Inc., No. 05-11-01674-CV

A temporary injunction order is void if it does not fix the amount of security for the applicant’s bond or fails to set a trial date. The injunction issued against appellant Michael Lodispoto did neither. As a result, the court of appeals set aside both the TI order and the trial court’s subsequent order to show cause for violations of the injunction.

Lodispoto v. Ruvolo, No. 05-12-01580-CV

The district court certified a class of claimants who alleged that Stewart Title Guaranty Co. had charged them more than permitted by the Texas Department of Insurance in renewing their mortgage title policies. On interlocutory appeal, the court of appeals has now reversed that class certification. The opinion is lengthy and fact-intensive, but the case basically boils down to the question of whether questions of law or fact common to the class predominated over questions affecting only individual members. Unfortunately for the plaintiffs, the Fifth Circuit had recently rejected class actions in two recent cases alleging similar claims against different lenders.  See Ahmad v. Old Republic Nat’l Title Ins. Co., 690 F.3d 698 (5th Cir. 2012); Benavides v. Chicago Title Ins. Co., 636 F.3d 699 (5th Cir. 2011). The court of appeals discussed both cases extensively and followed them to the same conclusion, holding that that facts of each class member’s loans would have to be examined individually, negating any possibility that common questions would predominate over those individual inquiries.

Stewart Title Guaranty Co. v. Mims, No. 05-12-00534-CV

Suzann Ruff asked the probate court to stay arbitration of her dispute with Michael Ruff and Frost Bank. The probate court agreed and issued an order staying the arbitration, denying Michael’s motion to stay the judicial proceedings, and stating that the court would conduct a hearing to determine whether to grant of deny Michael and the bank’s motions to compel arbitration. Michael and the bank filed a notice of interlocutory appeal, and Suzann moved to dismiss. The court of appeals agreed with Suzann. An interlocutory order staying arbitration is appealable under CPRC § 171.098, and an order denying the stay of judicial proceedings in favor of arbitration is appealable under CPRC § 51.016 and 9 U.S.C. 171.098(a)(2), but those statutes first require a final decision as to whether the case is subject to arbitration. No such decision had been made in this case, because the court’s order also stated that it would proceed to a hearing on the merits of the motions to compel arbitration. Since the probate court had not determined whether the dispute was subject to arbitration, the court of appeals had no jurisdiction to hear the attempted appeal.

Ruff v. Ruff, No. 05-13-00317-CV

Mesquite ISD filed an interlocutory appeal after the district court denied a motion for summary judgment based on sovereign immunity. The school district had terminated plaintiff Tomasa Mendoza after she washed several dirty mop heads and placed them in the dryer, causing a fire. (Flaming mop heads are apparently a thing, and it was the second such fire in the school district in the same year.) Mendoza sued for gender and national-origin discrimination under the Texas Commission on Human Rights Act. The school district moved for summary judgment, claiming governmental immunity on the basis that Mendoza could not establish a prima facie case of discrimination.

The court of appeals held that Mendoza had failed to meet her burden on the gender discrimination claim because she had not shown that she was replaced by someone outside of the protected class, or that she was treated less favorably than similarly situated members of another class. The school district had reassigned one woman to replace Mendoza and hired another woman to take over the open slot, facts which negated the claim she had been fired based on her gender. Mendoza also argued that she had been treated differently than the male employee who had failed to collect the dirty mop heads in the first place, as he had only been reprimanded instead of being fired. However, that employee’s duties and the nature of his misconduct were both sufficiently different from Mendoza’s that the court of appeals concluded they were not “similarly situated.” But the court of appeals sustained the trial court’s ruling on the national origin claim, concluding that a genuine issue of material fact existed because the woman hired for the open custodial position was outside Mendoza’s protected class. Thus, the case was remanded to the district court for further proceedings on the claim for national-origin discrimination.

Mesquite Ind. Sch. Dist. v. Mendoza, No. 05-12-01479-CV

BH DFW, the local franchise of the Blue Haven Pool & Spa group, took out an advertisement in the Dallas Morning News, claiming that it was the “World’s Largest!” That did not sit well with the Better Business Bureau of Metropolitan Dallas, whose guidelines require its members to be truthful when making statements of objective fact in their ads. When BH was unable to substantiate that it was, in fact, the “World’s Largest!”, the BBB revoked the company’s “Accredited Business” status and demoted its rating from A+ to F. BH sued for breach of contract, and the BBB moved to dismiss under the Texas Citizens Participation Act.

On interlocutory appeal, the court of appeals reversed the trial court’s denial of the BBB’s motion to dismiss. The court first rejected BH’s argument that there was no jurisdiction to hear the appeal, disagreeing with the Fort Worth Court of Appeals’ previous holding that the TCPA did not grant the right of interlocutory appeal when the trial court timely denies a motion to dismiss. Proceeding to the merits, the court held that the TCPA was not narrowly limited to cases involving a citizen’s participation in government, but was instead more broadly extended to matters of free speech involving a matter of public concern. Although the TCPA includes an exemption for certain types of commercial speech, that exemption was not applicable to BH’s claims because the BBB was not engaged in the sale or lease of goods or services. Finally, the court of appeals held that the trial court should have granted the BBB’s motion to dismiss because BH had failed to come forward with prima facie evidence of the existence of a contract requiring the BBB to maintain BH as an accredited business in exchange for its $1000 annual fee. The court therefore rendered judgment in favor of the BBB and remanded to the trial court for consideration of its attorney fees and expenses.

Better Business Bureau v. BH DFW, Inc., No. 05-12-00587-CV

A low-speed collision involving two eighteen-wheelers in Wythe County, Virginia has ended up in the Dallas Court of Appeals. Fernando Garza was injured in the accident, leading him to file suit against the other driver, Timothy Jones. Jones, however, is a resident of Memphis, Tennessee, and he therefore filed a special appearance to contest the district court’s jurisdiction to hear the case, which the trial court denied.  On interlocutory appeal, Garza argued that Jones had minimum contacts with Texas because the rig he was driving bore the name of a Texas-based corporation.  According to Garza, that made Jones a statutory employee of a Texas company. The court of appeals rejected that argument as a basis for personal jurisdiction because it was aimed at the forum contacts of the employer, not of the specially appearing defendant. The court therefore rendered judgment dismissing Garza’s claims for lack of jurisdiction.

Jones v. Garza, No. 05-12-00532-CV

In July 2011, the Dallas Court of Appeals ruled — in a rare en banc opinion — that an arbitration clause contained in a testamentary trust could not be enforced because there was no contract with the trust’s beneficiary to arbitrate his claims. Rachal v. Reitz, 347 S.W.3d 305 (Tex App.-Dallas 2011). This morning, the Texas Supreme Court reversed that decision, holding that the beneficiary was bound to arbitrate his claims against the trustee due to the doctrine of direct benefits estoppel. In brief, that doctrine means that if the plaintiff accepts the benefits of the trust, he also has to accept the arbitration clause contained in the trust. In reaching that decision, the Supreme Court noted that the Texas Arbitration Act requires an “agreement” to enforce arbitration, not a “contract” with the claimant. Such an agreement could be satisfied through direct benefits estoppel, as the beneficiary failed to disclaim his interest in the trust, thereby accepting both its benefits and its burdens.

Rachal v. Reitz, No. 11-0708

A temporary injunction order is void if it doesn’t set a specific date for trial on the merits. In this case, the county court at law issued a temporary injunction that only said it “shall remain in effect until final disposition of this case or until further order of the Court.” Neither “final disposition” nor “further order” is a date certain, so the TI was reversed on appeal as void without further reference to the merits.

ACI Healthcare Staffing, LLC v. V-Platinum Consulting, LP, No. 05-12-01060-CV

In February, the court of appeals reversed a district court’s temporary injunction prohibiting a lender from foreclosing on the borrower’s properties, concluding that the testimony only established an agreement to negotiate, not an enforceable agreement to forebear from foreclosure. The court has now issued an updated opinion in that case that clarifies the standard of review. In the original opinion, the court wrote that “the trial court abuses its discretion when it misapplies the law to established facts or when the evidence does not reasonably support the trial court’s determination of the existence of a probable injury or a probable right of recovery.” In the revised opinion, the court states that an abuse of discretion occurs when the trial court “misapplies the law to established facts or when there is no evidence that supports the trial court’s determination of the existence of a probable injury or a probable right of recovery.” The difference between those two standards yielded no difference in the outcome of the case, but anyone appealing a temporary injunction should be sure to cite the correct standard of review.

Branch Banking & Trust Co. v. TCI Luna Ventures, LLC, No. 05-12-00653-CV

Phytel, Inc. brought an interlocutory appeal after the district court denied its motion to compel arbitration of its former CEO’s claim that his noncompete agreement was unenforceable. The arbitration clause was contained in the CEO’s termination agreement, which also reaffirmed the noncompete provision in his original employment agreement. However, a subsequent agreement for the repurchase of the CEO’s stock did not contain a separate arbitration clause, although it reaffirmed the terms and conditions of the earlier termination agreement and modified the noncompete provision. The court of appeals concluded that the reincorporation of the prior contact necessarily encompassed the dispute resolution provisions of that agreement, and further held that the arbitration requirement applied to the validity of the noncompete because its subject matter related to all three of the parties’ agreements. The court rejected the CEO’s contention that a merger clause in the third contract worked to exclude the arbitration provision of the second contract because the incorporation of the second agreement by reference resulted in it becoming an inherent part of the subsequent document. Finally, the court of appeals also rejected the claim that Phytel had waived its right to invoke arbitration, holding that waiting two months after the lawsuit was filed and exchanging one set of discovery and initial disclosures did not substantially invoke the judicial process to the prejudice of the CEO. The court of appeals therefore reversed and rendered the trial court’s denial of the motion to compel arbitration.

Phytel, Inc. v. Snyder, No. 05-12-00607-CV

The court of appeals has reversed the grant of a temporary injunction that prohibited the lender from foreclosing on a pair of properties that secured a $10,000,000 promissory note. After multiple previous foreclosures, a bankruptcy filing, and the voluntary dismissal of the bankruptcy case, the borrower sued to enjoin further foreclosures, claiming that the parties had entered into a binding agreement that limited the lender’s ability to foreclose. The court of appeals rejected that argument, concluding that the testimony of the borrower’s witness at the injunction hearing only demonstrated an agreement to engage in further negotiations following dismissal of the bankruptcy, not any concrete and enforceable contractual terms. The court of appeals also rejected the borrower’s contention that the foreclosures would be wrongful because they would result in less than fair market value being received. That argument, the court held, was only applicable to a deficiency claim after foreclosure, not as grounds to prevent foreclosure itself.  The court of appeals therefore dissolved the temporary injunction and remanded the case to the trial court.

Branch Banking & Trust Co. v. TCI Luna Ventures, LLC, No. 05-12-000653-CV

UPDATE: The court has issued a revised opinion in the case, in which it clarifies the standard of review. The outcome remains the same.

Back in December, the Dallas Court of Appeals became one of the first courts to issue a ruling on the merits under our new anti-SLAPP statute, the Texas Citizens Participation Act. As we noted previously, the TCPA permits defamation defendants to file a motion to dismiss, which then puts the plaintiff to the burden of producing prima facie evidence in support of their claim. The statute may also permit an interlocutory appeal if the trial court denies the motion to dismiss (although maybe not so much under the Fort Worth Court of Appeals’ reading of the statute). But to invoke the right to an interlocutory appeal, the defendant still has to follow the deadlines established by the TCPA, which requires the notice of appeal to be filed within 60 days after the motion to dismiss is denied, whether by order of the trial court or by operation of law.

Defendant Ravinder Jain timely filed his motion to dismiss, and the trial court heard the motion on February 2, 2012. But the court did not issue a ruling on the motion within 30 days, at which time the TCPA deems the motion to be denied by operation of law. On May 17, the trial court issued an order expressly denying the motion to dismiss, and Jain filed his notice of appeal only a few days after that order. However, the court of appeals held that the notice of appeal needed to be filed within 60 days of the date that the motion was originally denied by operation of law (i.e., early March), making Rain’s late-May notice of appeal untimely. The court therefore dismissed the interlocutory appeal for lack of jurisdiction.

Jain v. Cambridge Petroleum Group, Inc., No. 05-12-0677-CV

Kaufman County obtained a temporary injunction against the operators of a local firing range, preventing them from continuing to operate the gun range because it was too close to nearby businesses and residences.  The range owners filed an interlocutory appeal, and the parties thereafter agreed to stay the trial court proceedings while the appeal was pending. But an interlocutory appeal of a temporary injunction is not supposed to delay the trial on the merits, as the issue on appeal is whether the court abused its discretion in ordering temporary relief before the case can proceed to full trial, not to obtain a ruling on the merits from the appellate courts. Invoking the rule that the fastest way to cure the hardship of a temporary injunction is to try the case on the merits, the court of appeals dismissed the appeal, admonishing the parties and the trial court to proceed “expeditiously” to trial.

Morgan Security Consultants, LLC v. Kaufman County, No. 05-12-00721-CV

The court of appeals continues to explore the limits of permissive interlocutory appeals. In this instance, the court was faced with an agreed-upon appeal from an order granting a motion to quash the deposition of the appellant’s former attorney, who allegedly had information showing that a mediated settlement agreement should be vacated. The trial court granted the opposing party’s motion to quash, and the parties agreed to present that ruling to the court of appeals under section 51.014(d) of the Civil Practice & Remedies Code. But the court of appeals rejected that effort, holding that the appeal did not present a “controlling issue of law,” as required by the statute. The trial court’s ruling on a motion to quash did not determine whether other sources of evidence regarding the mediation would be admissible at trial, and the parties could not use an agreed appeal to resolve that evidentiary issue before it was presented at the time of trial. The court therefore dismissed the appeal.

Gunter v. Empire Pipeline Corp., No. 05-12-00249-CV

Dr. Wallace Sarver was hired by Primary Health Physicians, P.A. to serve as a doctor at its clinic in Frisco.  The parties’ written employment agreement included a covenant not to compete, which prohibited Dr. Sarver from practicing medicine within ten miles of the clinic for a period of two years after his termination of employment.  Sarver resigned from the clinic, and shortly thereafter assumed the practice of another physician in Allen — less than 10 miles away from PHP’s clinic.  Dr. Allen sued filed suit for a declaratory judgment on the non-compete.  PHP’s counterclaims included a request for a temporary injunction, which the district court denied.

On interlocutory appeal, the court of appeals affirmed the trial court’s ruling.  The court rejected PHP’s argument that the Covenants Not to Compete Act preempted any requirement to show irreparable harm in order to enjoin Dr. Sarver from violating his non-compete agreement.  In making that ruling, the court dismissed contrary statements in three previous opinions as dicta: McNeilus Cos. Inc. v. Sams, 971 S.W.2d 507 (Tex. App.-Dallas 1997, no pet.); Hilb, Rogal & Hamilton Co. of Tex. v. Wurzman, 861 S.W.2d 30 (Tex. App.-Dallas 1993, no writ); Recon Exploration, Inc. v. Hodges, 798 S.W.2d 848 (Tex. App.-Dallas 1990, no writ).

The court of appeals also rejected PHP’s claim that the trial court had abused its discretion by failing to find irreparable harm.  Although PHP had established that Dr. Sarver had been popular with patients and that patients had continued to ask for him, there was little evidence that any of those patients had left PHP’s clinic and gone to Dr. Sarver’s new practice.  The court of appeals also relied on evidence that the two clinics practiced different types of medicine, with PHP’s facility focused on “episodic” illnesses and injuries, while Dr. Sarver’s new practice was devoted to a more traditional family practice.  Two of PHP’s witnesses also confirmed that the patient volume and profitability of its clinic were about the same as they had been before Dr. Sarver left.  That evidence supported the trial court’s finding of no irreparable harm, and the temporary injunction was therefore affirmed.

Primary Health Physicians, P.A. v. Sarver, No. 05-12-00351-CV

Van Peterson entered into a contract with ADT to provide commercial alarm services to his jewelry store. Allegedly, an unidentified man wearing an ADT uniform and driving an ADT van came to the jewelry store and sold Van Peterson a device for its alarm system, but instead of installing the device, the man disabled the alarm. Van Peterson’s store was burgled soon after. Van Peterson brought various tort, fraud and DTPA claims against ADT. ADT filed a traditional motion for summary judgment on the tort claims, arguing that Van Peterson waived liability for these claims in the contract, and a no-evidence motion on the other claims. The trial court eventually denied the motions but permitted an interlocutory appeal under former section 51.014(d) of the Texas Civil Practice and Remedies Code.

On appeal, the court first held that ADT could not raise issues first advanced in its reply in support of its no-evidence motion for summary judgment. The court reversed the trial court’s denial of summary judgment on the tort claims because the parties’ contract included a limitation-of-liability provision as to those claims. Such waivers are not invalidated by the DTPA, which only limits waivers of DTPA claims. Finally, the court held that ADT could not challenge on appeal Van Peterson’s subrogated insurer’s pursuit of a DTPA claim because only Van Peterson was a party to the litigation and any opinion as to the insurer would be advisory.

ADT Security Services, Inc. v. Van Peterson Fine Jewelers, No. 05-11-01468-CV

The court dismissed an agreed interlocutory appeal from the trial court’s denial of competing motions for summary judgment related to a home foreclosure for want of jurisdiction. The Guzmans obtained a home mortgage on which the Bank eventually foreclosed. The Guzmans sued for wrongful foreclosure and breach of contract and argued that the Bank lacked standing to foreclose on the property or enforce the original note. Both sides moved for summary judgment, and the trial court denied the competing motions on the basis that the parties failed to satisfy their burdens for summary judgment. In agreement on the facts and the relevant legal issues, the parties filed a joint motion to appeal from interlocutory order under section 51.014(d) of the Civil Practice and Remedies Code contending that the “issues raised in [the] dispositive motions involve controlling questions of law as to which there is a substantial ground for difference of opinion, and obtaining a ruling on those issues of law from the appeals court will materially advance the outcome of this case.”

In its jurisdictional analysis, however, the court of appeals emphasized the fact that the trial court did not substantively rule on the controlling legal issues presented in the agreed interlocutory appeal. Instead, it submitted the issues to the appellate court for an advisory opinion – contrary to the purpose of section 51.014(d) – and thus the court had no jurisdiction over the appeal under that section.

Bank of New York Mellon v. Guzman, 05-12-00417-CV

Delcom Group, LP thought that it was the winning bidder for a project to install “Digital Classroom integration solutions with technology components including installation and service at multiple school facilities” in the Dallas Independent School District.  But when DISD dumped Delcom and went with the second-place bidder instead, Delcom sued both the school district and the competing bidder.  The trial court granted a temporary restraining order to prevent DISD and the competitor from using Delcom’s trade secrets, but ultimately denied a temporary injunction and granted the school district’s plea to the jurisdiction.  On interlocutory appeal from that ruling, the court of appeals affirmed.  Despite a chain of documents that Delcom pointed to as forming the contract, the court held that the contractor could not sue DISD for breach because the parties had never settled on the essential terms of a contract.  Among other problems, Delcom had actually submitted two different bids, one for $79 million and the other for $62 million — and DISD had never stated which bid it intended to accept.  Because the parties had not agreed on the essential terms of a contract, there could be no waiver of governmental immunity under section 271.152 of the Local Government Code.  The court likewise rejected Delcom’s takings claim, because there could be no taking when Delcom had given its alleged trade secrets to the school district voluntarily.  Finally, the panel affirmed the trial court’s denial of the temporary injunction, holding that Delcom had not established any imminent and irreparable injury through use of its trade secrets, nor had it shown it could not be compensated with money damages if any actual misappropriation were to occur.

Delcom Group, LP v. Dallas Independent School District, No. 05-11-01259-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