“Under [Tex. Civ. Prac. & Rem. Code] Section 41.003, a court may not imply a unanimous jury finding in imposing exemplary damages. The burden to secure a unanimous verdict is on the plaintiff and ‘may not be shifted.'” Oscar Renda Contracting, Inc. v. Bruce, No. 22-089 (Tex. May 3, 2024).

The jury in Rhino Linings Corp. v. 2×2 Partnership, Ltd. indicated that (1) eleven of twelve jurors agreed, generally, (2) all twelve agreed to the exemplary predicates about gross negligence and fraud, and (3) all twelve agreed to the amount of exemplary damages. And as for (2), those questions were predicated on unanimous answers as to the related liabliity questions. This record did not establish a reason to reverse:

We know that the jurors were not unanimous in every one of their responses. However, we have a specific certification that they were unanimous on the ultimate exemplary-damages questions. … [And w]e do not have a record establishing that the jury did not follow those [predicate] instructions ….

No. 05-22-00522-CV (March 1, 2024) (mem. op.) (citations omitted, emphasis in original).

The issue in Lurks v. Designer Draperies was whether the employer of a driver who caused an accident – a Mr. Heitzmann – could be liable for exemplary damages because Heitzmann was a vice-principal.

Noting Heitzmann’s statements to a police officer, his deposition testimony about his work, and his assertion of the Fifth Amendment in response to several questions about his drinking on the job, the Fifth Court “assume[d], without deciding, [that] the summary-judgment evidence raises a genuine issue of fact as to whether Heitzmann was consuming alcoholic beverages at DDF’s workplace, that he was drinking with employees of DDF, and, perhaps, that someone encouraged him to drive.” 

The Court then held: “What is missing from the foregoing evidence and potentially available inferences, however, is more than a mere scintilla of evidence that Heitzmann’s drinking or decision to drive while intoxicated was referable to DDF’s business. Without this evidence, we cannot conclude Heitzmann’s alleged tortious actions may be attributed to DDF.” No. 05-21-00908-CV (Aug. 3, 2022) (mem. op.).

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.)

In In re Michelin North America, Inc., the Dallas Court of Appeals conditionally granted a writ of mandamus to protect Michelin from being forced to produce certain discovery.  The district court ordered Michelin to produce specifications for tires similar to the allegedly defective tire at issue in that case in addition to financial information for the decade prior to the litigation.

The court of appeals held that Michelin satisfied its burden under Texas Rule of Evidence 507 to resist the discovery of trade secrets through the affidavit of an engineer who worked in Michelin’s legal department but that Michelin failed to satisfy its burden of proving its financial data was a trade secret because it failed to offer an affidavit until after the hearing on the motion to compel (helpful hint: it should be filed 7 days before the hearing under TRCP 193.4(a) if it is in affidavit form).  The court also held that the plaintiffs failed to meet their burden under Rule 507 to show “with specificity” exactly how the lack of information would impair the presentation of the case on the merits “to the point that an unjust result is a real, rather than a merely possible, threat.”  On the issue of financial information, though Michelin failed to timely prove its trade secrets privilege, Michelin was saved by a secondary argument that the district court’s order was too broad because the discovery included financial information from several years earlier and only current financial information is relevant for calculation of punitive damages.

In re Michelin