As part of a broader arc of cases in which the Texas Supreme Court has reversed lower-court rulings that it sees as overly technical, that Court reversed the Fifth Court in Verhalen v. Akhtar, concluding:

When a litigant demonstrates good cause to file a late response to a motion for summary judgment, the trial court must allow the filing. Johnston did not raise this argument in her briefing. We hold that when, as here, a litigant shares the response with the opposing party one day after the response deadline, files an affidavit explaining that the late filing was the result of a mere mistake, and no prejudice will result to the opposing party, the denial of that motion is an abuse of discretion.

No. 23-0885 (Tex. Oct. 4, 2024).

Kroger Specialty Infusion v. Sturns, No. 05-22-01276-CV (May 16, 2024), presents four important, “nuts and bolts” tips about summary-judgment affidavits:

1. Conclusory objection. An argument that an affidavit is “conclusory” is considered a “defect of substance” that may be raised for the first time on appeal.
2. Conclusory example. This statement, as a matter of law, is conclusory as to whether someone improperly solicited customers. If you’re drafting an affidavit, say more than this:
   

   “While employed by BioPlus, and shortly before becoming employed by BioPlus, Sturns solicited some of the same customers, referral sources and/or patients in her former Sales Territory, in violation of her Agreement with [Kroger]. Sturns: (a) provided BioPlus business cards and marketing materials to one or more customers, referral sources and/or patients within the Restricted Area and/or the Sales Territory (both as defined in the Agreement); (b) conducted meetings with one or more such customers, referral sources and/or patients; and (c) met with or spoke to such customers, referral sources and/or patients.”

3. Other objections. “Objections to the testimony of an interested witness or the absence of personal knowledge are defects in form” that must be raised in a specific objection that the trial court rules upon (emphasis added).
4. Still an other objection. The need for an objection includes testimony that starts with weasel words like “I have reason to believe” or “[u]nless stated otherwise, I have personal knowledge.” Those are still objections to form that must be raised by objection, ruled upon, etc.

(LPHS represented one of the successful appellees in this case.)

The Fifth Court affirmed a summary judgment for Sidney Powell against disciplinary claims brought by the State Bar in the wake of the ill-fated “Kraken” litigation of 2020-21. The panel — three Democrats, by the way — reviewed a number of record and record-citation issues with the Bar’s filings and concluded:

The Bar employed a “scattershot” approach to the case, which left this court and the trial court “with the task of sorting through the argument to determin what issue had actually been raised.”

Commission for Lawyer Discipline v. Powell, No. 05-23-00497-CV (April 17, 2024) (mem. op.) (cleaned up).

Ziegler v. Origin Bank presents a waiver issue involving a summary-judgment response, arising from two problems:

1. Record. “The record shows that Hatter filed a response to Origin’s second traditional motion for summary judgment, arguing that there were genuine issues of material fact that precluded summary judgment and attaching evidence in support of his argument. The docket sheet reflects that Ziegler filed a “Motion to Adopt Response,” and the trial court’s order says the court considered “Defendant Robert Ziegler’s Motion to Adopt Walt Hatter’s Response.” However, the record on appeal does not contain Ziegler’s motion. As a result, we do not know the substance of that motion.”
2. Substance. “The trial court’s order granting Origin’s second motion for summary judgment states, in part, that the trial court considered Origin’s second traditional motion for summary judgment, Hatter’s response, “Defendant Robert Ziegler’s Motion to Adopt Walt Hatter’s Response,” Origin’s reply, and the parties’ supplemental letter briefing. The order also sustained Origin’s objections to Hatter’s letter brief, granted Origin’s second traditional motion for summary judgment, and awarded Origin damages against Hatter and Ziegler jointly and severally. However, the order does not grant Ziegler’s motion to adopt Hatter’s response. Rather, the order expressly states that “[a]ll relief not specifically granted herein is denied.”

No. 05-22-00160-CV (March 21, 2024) (mem. op.). Had the appellant simply filed a response that expressly incorporated the relevant response, the record would have been clearer on this point.

The resolution of Verhalen v. Akhtar turned on the trial court’s rejection of a late  summary-judgment response. The Fifth Court affirmed the take-nothing judgment that resulted from that decision, making several observations of note for the careful practitioner.

1. Good cause. Counsel’s affidavit said:

“Due to an inadvertent calendaring error, the deadline for Plaintiffs to respond to the Motions for Summary Judgment filed by Defendants Adriana Akhtar and Evan Johnston did not appear on the firm’s company calendar. . . . As soon as this oversight became known, I immediately prepared the responses as well as a Motion for leave of the Court to file late responses ….”

At the summary-judgment hearing, counsel further explained that when the summary-judgment hearings were rescheduled from October 5 and 13 to October 12, “unfortunately our calendaring system did not pick that up, and it was a mere mistake on [our] part.” The Court found this record insufficient:

“We agree that the “slight excuse” standard applies, but the excuse offered here is only that the deadline to file responses did not appear in counsel’s calendar. Therefore, trial court could not conclude from that explanation that failure to prepare responses was an accident or mistake.  For example, nothing in the affidavit indicated that the hearings themselves did not appear in the counsel’s calendar such that counsel would be aware that responses would be due the week prior.” (citations omitted).

2.  Continuance. Counsel filed a motion for leave several days before the summary-judgment hearing, but did not move for continuance of the hearing unti making an oral motion at the hearing itself. Further complicating the picture, “although the motion for leave to file late responses also requested leave to file appendices greater than 25 pages long, the motion contained no attached responses or evidence,” allowing the conclusion that the hearing was the defendants’ first opportunity to review the responses.

3. Scope of appeal. Related to (2): “[Plaintiffs] assert that their counsel served the responses with supporting evidence on opposing counsel six days prior to the hearing. To support this assertion, they rely on the affidavits of their counsel and paralegal filed in support of their motion for new trial. However, those affidavits were not included in support of the motion for leave to file late responses, and the Verhalens do not appeal the trial court’s decision to deny their motion for new trial. No. 05-22-01364-CV (Sept. 14, 2023) (mem. op.).

The issue in Myers v. Raoger Corp. d/b/a Cadot Restaurant was whether Khan, a patron of Cadot Restaurant, had too much to drink while he was there. Specifically, the dram shop statute requires proof that “at the time the provision occurred it was apparent to the provider that the individual … was obviously intoxicated to the extent that he presented a clear danger to himself and others ….”

The Fifth Court reversed a summary judgment in favor of the defendant, finding a genuine issue of material fact.

The one clear fact is that Khan had a BAC of .139 at 3:09 AM, a few hours after he left Cadot and was involved in an accident. From there, the opinion described the conflicting testimony of Khan, the arresting officer, the bartender, the restaurant owner, and a toxicology expert, and concluded that the record contained sufficient circumstantial evidence to allow inferences in the plaintiff’s favor under City of Keller.

The Court also noted a legal error in the defendant’s summary-judgment position,in that the statute “does not require evidence that the provider actually witnessed the intoxicated behavior”–only that the behavior have been objectively “visible, evident, and easily observed.” No. 05-21-00988-CV (July 5, 2023) (mem. op.).

This affidavit was conclusory about the alleged misrepresentations; thus it did not avoid summary judgment in an insurance-coverage dispute:Orange Cup Drive In LLC v. Mid-Continent Casualty Co., No. 05-21-00448-CV (Jan. 6, 2023) (mem. op.).

The Fifth Court clarified what is, and isn’t, in the record when the resolution of a summary-judgment motion involves motions for reconsideration/new trial:

• “When a motion for reconsideration or new trial is filed after a summary judgment motion is heard and ruled upon, the trial court may ordinarily consider only the record as it existed before hearing the motion for the first time.”
• BUT: “[A] trial court may accept summary judgment evidence filed late, even after summary judgment, as long as the court affirmatively indicates in the record that it accepted or considered it. Where the trial court affirmatively indicates on the record that it accepted or considered the evidence attached to a motion to reconsider, this court reviews ‘the summary judgment based upon the grounds and proof in both prejudgment and post-judgment filings.'” 

Chang v. Liu, No. 05-20-00977-CV (Nov. 23, 2022) (mem. op.) (citations pmitted).

The appellant in NFVT Motors v. Jupiter Chevrolet argued that it only needed to show that a noncompete was of appropriate breadth to obtain reversal. The appellee countered that it had also sought summary judgment on the ground that the noncompete lacked consideration and the plaintiff had no damages. The court of appeals agreed with the appellee, specifically noting: “We may not consult the reporter’s record of the summary judgment hearing to determine if the judgment is limited to certain grounds. Nor can we look to docket entries that ordinarily do not form part of the record that may be considered on appeal.” No. 05-21-01031-CV (Nov. 16, 2022) (mem. op.) (citations omitted).

Kam v. Adams, an attorney-client dispute about a retainer agreement, produced reference points on basic aspects of summary-judgment practice:

• “Because Adams’s evidence serves only to raise a fact issue, Kam was not required to offer a response to the motion for summary judgment or contradictory proof. ‘In our summary judgment practice, the opponent’s silence never improves the quality of a movant’s evidence.’” (citation omitted).
• “Although Adams disputes that this was their understanding, he is an interested witness. For the testimony of an interested witness to establish a fact as a matter of law, there must be no circumstances in evidence tending to discredit his testimony. Such circumstances are presented here by Kam’s complete reliance on Thomas in the creation and negotiation of the retainer agreement, as well as the continued negotiations and apparent changes made to the agreement, including to the non-refundable fee specifically, after Kam signed it.”
• In the specific context of intent to form a contract: “Intent is a fact question uniquely within the realm of the trier of fact because it depends upon the credibility of the witnesses and the weight to be given to their testimony.” (citation omitted).

No. 05-21-00871-CV (Nov. 3, 2022) (mem. op.).

The appellee in Hartsfield v. Hartsfield Cabinet LLC relied on a detailed list of line-items to obtain summary judgment on damages. The Fifth Court was left wanting:

Here, there is no specificity or supporting documentation. The affiant fails to specify the owner of the tools, files, and computers, which files and tools were allegedly stolen and given away, or the software that was allegedly destroyed or made unstable on the laptops that were allegedly taken and returned. Although the affiant avers that he consulted with an unidentified forensic expert who concluded that software had been destroyed, the expert is not identified, nor is the cost of replacing and re-programming the software explained or substantiated.

No. 05-21-00896-CV (Sept. 8, 2022) (mem. op.).

The defense of waiver was not conclusively established in a contract dispute when:

“The only evidence we see that could potentially support waiver is the $85,000 check that Ganguly accepted from Kaur Ltd. But we conclude that this evidence does not suffice. Although the check bears the notation “For KERSEVA DEBT,” that notation does not indicate that the funds are being offered as payment in full; thus Ganguly’s acceptance of the check, without more, is no evidence of intent to relinquish Ganguly Holdings’ claim against Ker-Seva or of intentional conduct inconsistent with asserting that claim.”

Ganguly Holdings, LLC v. Ker-Seva, Ltd., No. 5-21-00124-CV (July 29, 2022) (mem. op.)

The plaintiff’s summary-judgment testimony about reliance went as follows (with a key phrase emphasized):

Had I known that Defendants were planning to leave my company and go out on their own I would not have entered into the second agreement on January 5, 2018. By doing so I allowed Defendants to pull more loads, earn greater revenue, and gain greater access to my clients and my business information. In fact, I would have taken actions to hire other drive[r]s and secure additional trucks as necessary. I would also have reduced and ultimately eliminated the work I was providing to Defendants.

Unfortunately, this testimony “failed to link [plaintiff’s] purported reliance to the only misrepresentation it identified—Mr. Woods’s failure to reveal he had changed the name of his entity from Woods Transportation to 1st Class Fuels.” L.D. McLoud Transp., LLC v. 1st Class Fuels, LLC, No. 05-20-00796-CV (June 3, 2022) (mem. op.) (emphasis added).

The plaintiff in Benit v. Primalend Capital Partners filed a nonsuit of his claims on the evening before a summary-judgment hearing. The trial court struck the nonsuit and entered summary judgment against the plaintiff. The Fifth Court reversed, noting that the defendant had not made a claim for affirmative relief against the plaintiff, and holding that the defendant’s argument on appeal–that its motion to strike was in fact a Tex. R. Civ. P. 12 motion to show authority–was not supported by the defendant’s trial-court filing:

“Although Primalend’s motion to strike used the phrase ‘lacks authority,’ the motion did not mention rule 12; it was not sworn; it was not set for hearing; nor did it provide 10 days’ notice of a hearing. … Primalend’s motion did not provide fair notice regarding the basis for the serious relief that Primalend now insists—on appeal—it requested of the trial court pursuant to rule 12.”

No. 05-21-00024-CV (May 6, 2022) (mem. op.) (citation omitted).

Fans of newspaper comic strips know The Phantom as “the man who cannot die.” Equally resilient is the Texas Supreme Court’s Malooly opinion that requires an appellant to address all bases for affirmance. In re Pepperstone Group Ltd. (a mandamus proceeding, so not technically a Malooly case) involved a situation in which an issue had been raised but not in the proper way to trigger Malooly:

“Although Das’s trial-court reply brief contained an objection that Pepperstone’s response was late under the local rules, he asked only that the trial court not consider Pepperstone’s response in ruling on the motion to compel. Das did not contend that his timeliness objection was an independent ‘ground’ for granting his motion to compel. Accordingly, we reject Das’s argument.”

No. 05-21-00767-CV (Feb. 28, 2022) (mem. op.).

A question in Kanen v. DeWolff, Boberg & Assocs. was whether the plaintiff presented a fact issue about a prima facie case of age discrimination; specifically, as to whether he had been “replaced by someone outside the protected class, replaced by someone younger, or was otherwise discharged because of his age.” The Fifth Court found a sufficient question to avoid summary judgment on that point, noting two matters in particular. First –

“Because Kanen presented evidence DeWolff retained and hired substantially younger market analysts after his employment was terminated, and because DeWolff considers the market analysts to be interchangeable and claimed Kanen’s accounts would be randomly assigned to other analysts and conceded that Kanen’s replacement ‘could be anyone in the office,’ a jury could determine that Kanen’s job duties were distributed to younger workers.”

And second –

“In addition, contrary to DeWolff’s assertion of how accounts are assigned, Kanen established market analysts are assigned to a specific outside salesperson and territory. A jury could conclude that DeWolff’s explanation as to how accounts are assigned is not credible and infer that the individual, or individuals, who took over his accounts were among those Kanen identified as being substantially younger than himself.”

No. 05-20-00126-CV (Jan. 18, 2022) (mem. op.).

To the right, Mother Hubbard plays well with her dog, but in Eagle Remodel LLC v. Capital Financial Corp., Mother Hubbard did not play well with a summary-judgment order: “Appellant asserts in a letter brief filed at our direction that the order is appealable because appellee did not file a counterclaim for fees and the order included a ‘Mother Hubbard’ clause stating that ‘All relief not expressly granted herein is denied.’ As appellee notes in its response, however, a ‘Mother Hubbard’ clause is not indicative of finality when, as here, a conventional trial on the merits was not held.” No. 05-21-00625-CV (Jan. 5, 2022) (mem. op.) (applying Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001)).

Hardy v. Communication Workers of America provides three reminders about the “sham affidavit” doctrine recently applied by the Texas Supreme Court in Lujan v. Navistar, Inc., 555 S.W.3d 79 (Tex. 2018):

• Object. “Hardy did not object to Mathias’s affidavit in her response to the motions for summary judgment, and she did not object to the affidavit during the trial court’s hearing to consider pretrial motions, including the motions for summary judgment. Finally, the record does not show that the trial court ruled, or refused to rule, on an objection to Mathias’s affidavit.” (citations omitted).
• Confirm the claimed inconsistency.  “The 2019 affidavit does not mirror the 2016 affidavit—it is organized differently, it is longer, and it contains more factual detail. However, a side-by-side comparison of Mathias’s statements in the two affidavits does not reveal material contradictions. Nor does Hardy direct us to the specific statements that she asserts are contradictory. Instead, she complains that Mathias fails to explain: (1) why she created a new affidavit, (2) why the new affidavit did not include every statement from the 2016 affidavit, and (3) why certain statements were worded differently.”
• Procedural posture.  “[W]e are not faced with a contradictory affidavit by the nonmovant, seeking to raise a fact issue in order to avoid summary judgment. Instead, Hardy attempts to apply the sham affidavit rule to an affidavit filed by the movant in support of summary judgment.”

No. 05-19-01388-CV (Dec. 10, 2021) (mem. op.).

The grant of a no-evidence motion for summary judgment was affirmed when:

“In its response to the no-evidence motion, Great Hans did not specifically identify the supporting proof it wanted considered by the trial court on any specific element nor make any argument or cite to any legal authority in support of its position. Rather, as to each element challenged on the various causes of action, Great Hans recited the element and provided the same response: ‘More than a scintilla of summary judgment evidence is submitted in the record as adopted by reference and as set out above in the traditional summary judgment motion argument on this ground.’ Great Hans did not direct the court to where in its response to the traditional motion it could find the argument and evidence related to the specific element.”

Great Hans LLC v. Liberty Life Service Corp., No. 05-20-00113-CV (Dec. 8, 2021) (mem. op.)

“In the motion for summary judgment, the movant must expressly present the grounds upon which the motion is made. A ‘ground’ is a reason the movant is entitled to judgment and is not presented by mere reference to the summary judgment evidence. The nonmovant need not object to a summary judgment motion that presents no grounds because such a motion is insufficient as a matter of law.” Funmilayo v. Aresco, L.P., No. 05-20-00492-CV (Nov. 30, 2021) (mem. op.) (citations omitted).

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

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

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

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

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

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

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

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

Orange Cup Drive In LLC v. Mid-Continent Casualty Co. illustrates the application of the rules about the grounds for summary judgment motions:

• General rule. “Granting summary judgment on a claim not addressed in the motion is, as a general rule, reversible error.’ The supreme court has recognized a harmless error exception to this rule “when the omitted cause of action is precluded as a matter of law by other grounds raised in the case.” (citations omitted).
• Insurance law. “[S]ome claims for common law or statutory violations may exist even where there is no coverage under the policy.”
• Thus: “Where the motion is silent on grounds for summary judgment for the extracontractual claims—and particularly where the motion specifically recites that the claims will be addressed by a separate motion later—we cannot determine whether ‘the omitted cause of action is precluded as a matter of law by other grounds raised in the case.'”

No. 05-19-00014-CV (Aug. 28, 2020) (mem. op.)

“Care Tecture contends the trial court could not consider the [Mediated Settlement Agreement] because it was not physically attached to the motion or an affidavit. Matheson argues that the MSA was properly before the court because it was on file with the court at the time of the summary judgment hearing, referenced in the motion for summary judgment, and authenticated by the affidavits. We agree with Matheson. See Kastner v. Jenkens & Gilchrist, 231 S.W.3d 571, 581 (Tex.App.—Dallas 2007, no pet.) (noting that the rules “do not require that summary judgment evidence be physically attached to the motion”). Care Tecture v. Matheson Commercial Properties, No. 19-00591-CV (June 30, 2020) (mem. op.)

This is a cross-post from 600 Hemphill which follows the Texas Supreme Court.

B.C. v. Steak & Shake, the supreme court reversed a Dallas case case that declined to consider a late-filed summary judgment submission, holding: “We . . . conclude that the trial court’s recital that it considered the ‘evidence and arguments of counsel,’ without any limitation, is an ‘affirmative indication’ that the trial court considered B.C.’s response and the evidence attached to it. The court of appeals concluded this reference ‘indicates nothing more than the trial court considered [Steak N Shake’s evidence] in conjunction with the traditional motion.’ But a court’s recital that it generally considered ‘evidence’—especially when one party objected to the timeliness of all of the opposing party’s evidence—overcomes the presumption that the court did not consider it.” No. 17-1008 (March 27, 2020) (per curiam)

The key issue in Hernandez v. Sun Crane & Hoist, Inc. was whether a general contractor exercised “actual control” over a subcontractor’s work. The en banc court reversed a no-evidence summary judgment for the contractor, observing in footnote 9:

“. . . The original panel’s analysis omits any mention of (1) the Subcontract provisions described above regarding schedule control and mandatory safety harness use; (2) Johnston’s testimony that JLB supervisory employees were on-site on the day of the accident and knew the cage could fall over in the event of strong wind or improper bracing; (3) Hernandez’s testimony that he saw JLB supervisors looking at the cage’s bracing prior to the accident; and (4) Molina’s statements that the wind speed was 15–25 miles per hour on the day of the accident and Hernandez was told to jump, but was tethered to the cage by his safety harness.

Those omissions demonstrate that the original panel’s opinion represents a serious departure from precedent in the review of no-evidence summary judgment cases and therefore warrants en banc review under Texas Rule of Appellate Procedure 41.2 to ‘secure or maintain uniformity of the court’s decisions.'”

The court split cleanly along party lines, with all Democratic justices joining the majority opinion, and all Republican justices joining two dissents. Justice Bridges disagreed with the majority’s legal analysis while Justice Whitehill questioned whether the case had warranted en banc consideration.  No. 05-17-00719-CV (March 26, 2020).

Not without meeting a demanding standard: “Texas uses a functional approach in determining whether a person is entitled to absolute derived judicial immunity. Under this approach, we must ‘determine whether the activities of the person seeking immunity are intimately associated with the judicial process and whether the person exercised discretionary judgment comparable to a judge, as opposed to ministerial or administrative tasks.’ In other words, ‘[i]f an action involves personal deliberation, decision or judgment, it is discretionary; actions requiring obedience to orders or the performance of a duty to which the actor has no choice are ministerial.'” (citations omitted, emphasis added).  In Manning v. Jones, the Fifth Court found a receiver immune from suit for actions taken in connection with a property transactionn that she had been appointed to handle. No. 05-18-01140-CV (Dec. 4, 2019) (mem. op.)

The Fifth Circuit noted a limit on its Flakes opinion in Oliver v. Saadi, No. 05-17-01403-CV (Aug. 30, 2019) (mem. op.): “Oliver is obliged to attack every ground that by and of its own force could have produced the judgment. He is not obliged to marshal and attack every subsidiary argument and citation to authority that may have informed the trial court’s thinking along the way. To be sure, the arguments relating to the admission or exclusion of evidence may vary and here include qualifications, reliability, and relevance. But none of these interstitial evidentiary debates would amount either to a ‘ground’ for summary judgment on their own account.”

This footnote:

when not responded to in the trial court, was a sufficient basis for affirmance of a no-evidence summary judgment on appeal as to the “confidentiality agreement” referenced in the footnote. Prophet Equity LP v. Twin City Fire Ins. Co., No. 05-17-00927-CV (Aug. 19, 2019) (mem. op.).

BCH Development sought to build a two-story house; the neighborhood association sued to enforce a restrictive covenant limiting construction to a “single family dwelling not to exceed one story in height.” Because a two-story house stood on the neighboring lot, BCH argued waiver; the association countered that 1 nonconforming lot out of 104 could not establish waiver. The Fifth Court remanded for trial on the issue of waiver, noting: “Waiver in restrictive covenant cases is a fact-intensive inquiry involving multiple factors. A statistical analysis is but one component in determining the issue of waiver. Also relevant are the nature and severity of existing violations, any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant.”  BCH Development v. Lakeview Heights Addition Property Owners’ Assoc., No. 05-17-01096-CV (March 21, 2019). Notably, the opinion was decided by a 2-judge panel of Justices Myers and Brown, after Justice Evans was not re-elected in 2018.

Telfer v. Adams presented the question whether an objection to an affiant’s lack or personal knowledge was a defect in “form” or “substance,” and thus whether a trial court objection and ruling is necessary to preserve error about the affidavit’s consideration under Seim v. Allstate Texas Lloyds, 551 S.W.3d 161 (Tex. 2018). The Fifth Court sidestepped the question by concluding that the notary’s acknowledgement was sufficient to prove up the attached documents. The Court noted that its prior opinions were not consistent on the point, and cited an informative article by now-Magistrate Judge David Horan about the Fifth Circuit’s practices on this topic: “Because panels lack the authority to overrule one another, our first decision touching upon a question should control pending en banc reconsideration.” No. 05-17-01387-CV (Feb. 8, 2019) (mem. op.) (The mild incongruity of a rule about the resolution of uncertainty appearing in a memorandum opinion, which assumes that “the issues are settled,” Tex. R. App. 47.2, is a byproduct of 2003 rule amendments that reconfigured the types of appellate opinions in Texas.)

The Fifth Court affirmed summary judgment for the plaintiff, in a suit to recover an unpaid credit card balance, based on a record with two exhibits

• “The first exhibit attached to the Bank’s motion for summary judgment consisted of three types of documents: (1) twelve consecutive monthly statements for the period of June 11, 2015, to June 10, 2016, with a final balance of $17,445.84, each listing Alqawariq as the account holder, showing he made charges and payments, and demonstrating the Bank assessed transaction fees and charged interest; (2) Alqawariq’s credit card agreement; and (3) an applicant details record concerning [personal identifying] information about Alqariq . . . .”
• “The second exhibit contained a business records affidavit attaching the final account statement for the period of May 11, 2016, to June 10, 2016, which showed a balance of $17,445.84. In the business records affidavit, the custodian of records stated that: ‘[Alqawariq] opened an account with [the Bank], or a predecessor in interest, for the purpose of obtaining an extension of credit [] and did thereafter use or authorize the use of the [a]ccount for the acquisition of goods, services, or cash advances in accordance with the customer agreement [] governing use of the [a]ccount. Further, [Alqawariq] has failed to make periodic payments as required by the [a]greement.”

Alqaqwariq v. Bank of America, No. 05-18-00392-CV (Feb. 4, 2019) (mem. op.)

Under McConnell v. Southside ISD, 858 S.W.2d 337 (Tex. 1993), a party may specially except to a summary judgment motion that is unclear about its grounds. Lemus v. Cookscreek 255 LLC provides a detailed application of McConnell as to eight different claims in a premises liability case, and also reminds: “The excepting party must obtain a ruling on the special exception to preserve the issue for appeal.” No. 05-17-01085-CV (Nov. 30, 2018) (mem. op.)

Microlaser Therapy Corp. v. White involved a defense summary judgment on limitations, in response to a suit on a guaranty, based upon a payment schedule (right). The Fifth Court found that the first few entries were not only not conclusive evidence of when the claim arose, but no evidence on that point. Accordingly, it reversed and rendered judgment for the plaintiff. No. 05-17-00761-CV (Nov. 16, 2018) (mem. op.)

A feature of Texas procedure is a litgant’s right to nonsuit: “The right to nonsuit is absolute, and a plaintiff’s right to a nonsuit exists from the moment a written motion is filed or an oral motion is made in open court, unless the defendant has, prior to that time, sought affirmative relief.” Central Refining LLC v. Calderon, No. 05-17-01372-CV (Nov. 5, 2018) (mem. op.) That case offers a classical illustration of what that principle can mean in practice:

• Appellees filed a no-evidence motion for summary judgment. The motion was set for hearing on August 18, 2017.
• On August 17, 2017, appellant filed a motion to nonsuit its claims without prejudice.
• The trial court did not rule on the motion prior to the hearing. Instead, the trial court granted appellees’ no-evidence motion for summary judgment on August 17, 2017 without a hearing.

The summary judgment order was an error: “Because the case was moot at that time, the trial court could not subsequently render a summary judgment.”

The plaintiff in Hernandez v. Sun Crane & Hoist noted that the defendant’s Health and Safety Manual identified it as a “controlling employer” for OSHA purposes. That manual has to be read along with the relevant contract, however, which “repeatedly made clear that Capform was responsible for providing all equipment for performing the work; Capform was ‘solely responsible for the acts and omissions of its employees, agents and suppliers and for the acts and omissions of its sub-subcontractors and their employees, agents and suppliers’; and Capform accepted sole responsibility for providing a safe place to work for its employees and for the employees of its sub-subcontractors and suppliers, and for the adequacy and required use of all safety equipment,” leading to affirmance of summary judgment for the defendant. No.   05-17-00719-CV (Nov. 2, 2018) (mem. op.)

In Kiewit Offshore v. Dresser-Rand, the Fifth Circuit affirmed a summary judgment for the plaintiff in a large construction  matter; as the final point addressed, the Court observed: “Dresser-Rand contends, for the first time on appeal, that Kiewit submitted insufficient, conclusory summaries of the work reflected in Invoices DR-04b, 05, and 06, preventing the district court from verifying the total amount of damages Kiewit claimed. Dresser-Rand failed to raise this argument below, and we therefore decline to consider it here.” The Court also noted that “it was undisputed that the invoices accurately reflected actual costs incurred . . . for work performed and accepted . . . .” It is a fair question whether the same result would obtain under Texas state practice, which among other matters distinguishes between “substantive” and “form” objections to summary judgment affidavits – “form” issues requiring objection, but not substantive ones. See Seim v. Allstate Texas Lloyds, No. 17-0488, 2018 WL 3189568, at *3 (Tex. June 29, 2018) (per curiam).

• “[A]lthough [a] motion for traditional summary judgment did not contain [a] section ‘expressly setting forth summary judgment grounds,’ it was sufficiently specific where it clearly pertained to [the] sole cause of action in question and set forth [a] basis on which movant should prevail.”
• “‘Courts have granted summary judgments on causes of action not specifically addressed in a movant’s motion if the movant has conclusively disproven an ultimate fact which is central to all causes of action alleged, or the unaddressed causes of action are derivative of the addressed cause of action.'”

Turner v. Nationstar Mortgage LLC, No. 05-17-01053-CV (Sept. 6, 2018) (mem. op.) (citations omitted for both of the above, which are case parentheticals in the opinion).

The vagaries of practice often test the deadlines imposed by the summary judgment rules. Jackson v. Motel 6 involved a late-filed summary judgment response, which the Fifth Court did not consider in its review of the merits. Several important and practical principles played a part in the analysis:

• A reminder that Seim v. Allstate Texas Lloyds, No. 17-0488, 2018 WL 3189568, at *3 (Tex. June 29, 2018) (per curiam), which clarified that a ruling is required to preserve an objection to the form of summary judgment evidence, applies to other objections raised in the course of summary judgment practice;
• While summary judgment papers are not technically “pleadings” under the Texas Rules, this language in the trial court’s order was sufficient to show an implicit denial of the appellant’s motion for leave to file a late response: “examined the timely pleadings filed in this matter . . . “‘; and
• Proactive steps help the record, avoiding observations such as this by the appellate court: . “Yet, Jackson failed to timely take any steps to seek a continuance of the hearing or response deadline. Instead, as she had done on two prior occasions, she waited until the eve of the hearing to seek relief from the trial court.”

No. 05-17-00487-CV (Aug. 17, 2018) (mem. op.)

This request for admission – “Admit or deny that Defendant’s negligence was the sole proximate cause of the incident forming the basis of this lawsuit” – did not involve an issue of fact, or the application of law to fact. It was thus improper and did not raise a fact issue to overcome a summary judgment motion. Arana v. Figueroa, No. 05-17-00368-CV (July 30, 2018) (mem. op.)

In a dispute about whether photographs were properly authenticated as summary judgment evidence, the Fifth Court summarized the current state of preservation law after a recent Texas Supreme Court opinion: “To preserve a complaint for appellate review, a party generally must raise the issue in the trial court through a timely request, objection, or motion and the trial court must rule or refuse to rule on the issue. Tex. R. App. P. 33.1(a). The supreme court has specifically noted that, if a summary judgment affidavit suffers from a defect in form, ‘that flaw must be objected to and ruled upon by the trial court for error to be preserved.’ However, if a summary judgment affidavit presents a ‘substantive defect,’ the party may complain about the defect for the first time on appeal and is not subject to the general rules of error preservation. A complete absence of authenticating evidence is a defect in substance. However, a complaint that evidence was not properly authenticated is a defect of form.” Lee v. Global Gaming LSP, No. 05-18-00427-CV (July 31, 2018) (citations omitted, quoting Seim v. Allstate Texas Lloyds, No. 17-0488 (Tex. June 29, 2018).

The Fifth Court found a sufficient fact issue to reverse a summary judgment in 6200 GP LLC v. Multi Service Corp., in which an affiant’s testimony was found not to be conclusory when:

• his testimony about the relevant assignment was not conclusory, when his affidavit explained his roles in the businesses, his relationship to the transaction, and the business structure relevant to the transaction;
• an objection that the testimony “cite[d] no, let alone contemporaneous facts or document evidencing the alleged transactions or Prime’s intent” was not well-taken, since “[a] person may testify to a sale and assignment without providing any documentary evidence,” and the testimony as in fact supported by the witness’s understanding of “journal entries and [a] tax work sheet.”

No. 05-16-01491-CV (June 28, 2018) (mem.op.)

While 600Commerce does not ordinarily cover the Texas Supreme Court, the opinion in Lujan v. Navistar is of unusually broad interest to civil litigators. Navistar contended that Lujan made inconsistent statements about the ownership of a group of trucks, and that as a result, Lujan’s affidavit testimony on the point should be diregarded as a “sham.” The Texas Supreme Court agreed that this was a viable concept in state court summary judgment practice: “Most Texas courts of appeals have recognized the sham affidavit rule as a legitimate component of a trial judge’s authority under Rule 166a to grant summary judgment when no genuine issue as to any material fact exists. The rule has long been applied throughout the federal court system under Rule 56, which contains language nearly identical to Rule 166a. We agree with the majority view that a trial court’s authority to distinguish between genuine and non-genuine fact issues includes the authority to apply the sham affidavit rule when confronted with evidence that appears to be a sham designed to avoid summary judgment.” No. 16-0588 (April 27, 2018).b

Stephens slipped and fell outside a Wal-Mart. He sued, Wal-Mart sought summary judgment based on his admissions about the cause of his fall, and Stephens then asked for a continuance to conduct more discovery. The Fifth Court affirmed judgment for Wal-Mart, observing that Stephens’s continuance motion (1) “does not identify any evidence he is seeking to discovery that would make his case an exception to th[e] rule” that a premises owner is not liable for injury caused by natural accumulation of precipitation, and (2) “fails to explain why he did not seek to take any depositions in the two months” between the designation of Wal-Mart’s knowledgeable employees and the summary judgment hearing, other than an “unsubstantiated reference to his counsel’s ‘litigation schedule.'” Stephens v. Wal-Mart Stores, No. 05-17-00434-CV (Apr. 11, 2018) (mem. op.)

As to the need to object to summary judgment evidentiary rulings – not the evidence itself – the current state of the law in Dallas is as follows: “Prior panel decisions of this Court suggest that when a party fails to object to the trial court’s ruling that sustains an objection to his summary judgment evidence, he has not preserved the right to complain on appeal about the trial court’s ruling. See Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 878 (Tex. App.—Dallas 1990, no writ). We are aware that this holding has come under criticism recently. See Miller v. Great Lakes Mgmt. Serv., Inc., No. 02-16-00087-CV, 2017 WL 1018592, at *2 n.4 (Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (mem. op.). Absent a decision from a higher court or this Court sitting en banc that is on point, this Court is bound by the prior holdings of other panels of this Court.” Du Bois v. Martin Luther King Jr. Family Clinic, No. 05-16-01460-CV (April 5, 2018) (mem. op.)

The case of Starwood Management v. Swaim returned to the Fifth Court, after a reversal and remand by the Texas Supreme Court. The previous Fifth Court opinion affirmed a defense summary judgment, finding that the affidavits of the plaintiffs’ causation experts in a legal malpractice were conclusory. The Texas Supreme Court held otherwise. Against that backdrop, on remand, the Fifth Court found that the affidavits were not “speculative” (a concept arguably distinct from being “conclusory”) and was relevant, and reversed the summary judgment that had resulted from these rulings and the one addressed by the supreme court. No. 05-14-01218-CV (March 20, 2018) (mem. op.)

The plaintiffs in Sky Group LLC v. Vega Street I, LLC sued for conversion, and showed in their motion for summary judgment that they “contracted with Sky Group for property management services and, in the course of those services, Sky Group acquired possession of funds, documents, and keys belonging to [them]. After [they] terminated the contract, they demanded the return of the property, but the property was not returned.” Unfortunately, however, “[t]he mere failure by the defendant to deliver the property after a demand is generally not sufficient to prove an affirmative refusal. To be liable for conversion, a person must intend to assert some right in the property.” (citations omitted). The Fifth Court thus reversed summary judgment on this claim, along with several other related business tort claims. No. 05-17-00161-CV (March 5, 2018) (mem. op.)

In The Art of War, Sun-Tzu famously described nine types of ground where battles could occur. In Medina v. Michelin North America, the Fifth Court reminded that summary judgment can only occur on the specified grounds, especially for a no-evidence motion:

“Michelin’s only basis for no-evidence summary judgment motion on these claims was the lack or absence of expert testimony should the trial court grant its motion to exclude [plaintiff’s expert’s] testimony. The no-evidence motion itself specifically requested the trial court not consider the no-evidence summary judgment motion on these claims until it considered and ruled on its motion to exclude. In granting summary judgment on these claims after denying Michelin’s motion to exclude, however, the trial court necessarily concluded [that the expert’s] testimony constituted no evidence. Because Michelin did not move for summary judgment on this ground, the trial court erred in granting summary judgment on the Medinas’ defective design, defective manufacturing, and negligence claims once it denied Michelin’s motion to exclude this testimony.”

No. 05-16-00794-CV (Jan. 29, 2018) (mem. op.) I presented the oral argument in this case for the appellants.

Appellant sought a new trial based on the lack of a reporter’s record from the key summary judgment hearing, citing Tex. R. App. P. 13.1 and 34.6(f). Neither citation worked. As to Rule 13.1, which lists the duties of a court reporter, “[t]he Texas Supreme Court has held that creating a reporter’s record is neither necessary nor appropriate to the purposes of a summary judgment hearing.” (citation omitted). And Rule 34.6(f), which “provides that an appellant is entitled to a new trial if a significant exhibit or portion of a reporter’s record is lost or destroyed,” was inapplicable because “[b]oth parties acknowledge a reporter’s record was never made.” Lynch v. O’Hare,  No. 05-17-00175-CV (Jan. 18, 2018) (mem. op.)

The following summary judgment motion was granted, and the Fifth Court affirmed, rejecting challenges to the level of detail in the motion (as well as the non-respondent’s citation to evidence not expressly incorporated in the response):

_____________________________________________________________________

Summary of the Motion

Plaintiffs seek summary judgment on their claims against Thomas J. Granata, II because he guaranteed the debt of Full Spectrum Diagnostics, LLC. The default judgment was entered against Full Spectrum Diagnostics, LLC on June 1, 2016. Mr. Granata guaranteed the amount of indebtedness of Full Spectrum Diagnostics, LLC. Therefore, Plaintiffs are entitled to summary judgment against Mr. Granata.

Undisputed Facts

Mr. Granata guaranteed the promissory note made by Full Spectrum Diagnostics, LLC. Full Spectrum Diagnostics, LLC. only paid $50,000 of the note via a third party. The note was to be repaid by October 26, 2015. No payment has been forthcoming on said promissory note cents [sic] the $50,000 payment was made by the third-party. On June 1, 2016, the court entered a default judgment against Full Spectrum Diagnostics, LLC based on the promissory note in the amount of the unpaid principal balance of the note along with interest.

Argument and Authorities

The Court should grant the motion for summary judgment against Mr. Granata because Mr. Granata guaranteed the obligation of Full Spectrum Diagnostics, LLC. A default judgment was entered against that company for the promissory note Mr. Granata guaranteed. Therefore, the Court should grant the summary judgment against Mr. Granata for the same amount as the default judgment.

Prayer

WHEREFORE, Plaintiffs request the Court enter a Summary Judgment
corresponding to the default judgment entered against Full Spectrum Diagnostics,
LLC as follows:a. Monetary relief of $220,000.00; b. Interest in the amount of $8,066.67 through February 25, 2016 and 8% interest on the monetary relief expressed above, compounded annually, until paid in full.

(Citations to exhibits omitted.) Granata v. Kroese, No. 05-17-00118-CV (Jan. 10, 2018) (mem. op.)

The appellant in an unsuccessful wrongful-termiantion suit pointed to hearing testimony that he said “evinced a negative attitude . . . that [his] allegations were ‘very egregious and very inflammatory.” The Fifth Court affirmed summary judgment against him, noting on this point that the testimony addressed the nature of the allegations and was not a negative statement about the report itself.” Hackbarth v. UT-Dallas, No. 05-16-01250-CV (Jan. 4, 2018).

In Walls v. Capella Park Homeowners’ Association, Inc., the Fifth Court recapped the standards for a “trial on stipulated facts” under Tex. R. Civ. P. 263 – a useful and underappreciated rule. “An agreed statement of facts under rule 263 is similar to a special verdict; it is the parties’ request for judgment under the applicable law. In a rule 263 agreed case, the only issue on appeal is whether the district court properly applied the law to the agreed facts. Such a review is less deferential to the trial court, because a trial court has no discretion in deciding what the law is or in properly applying it. Id. If the trial court files findings of fact in an agreed case, they are disregarded by the appellate court.” No. 05-16-00783-CV (Nov. 30, 2017) (applying Addison Urban Development Partners v. Alan Ritchey Materials, 437 S.W.3d 597, 600 (Tex. App.—Dallas 2014, no pet.)).

The appellant in Abuzaid v. Anani LLC, a user of the venerable AOL email service, alleged that he did not receive notice of a summary judgment hearing. The Fifth Ciurt first noted:

Texas Rule of Civil Procedure 21a allows for electronic service of documents “if the email address of the party or attorney to be served is on file with the electronic filing manager.” It is undisputed Abuzaid’s email was on file to receive electronic service of documents, and he repeatedly availed himself of the process. . . . The rule does not contemplate that electronic service is somehow incomplete when a party experiences computer or email issues. Rather, notice properly sent pursuant to rule 21a raises a presumption that notice was received.”

(citations omitted). Here, the appellant did not overcome that presumption:

“Under rule 21a, constructive notice may be established if the serving party presented evidence that the intended recipient engaged in instances of selective acceptance or refusal of service of documents. Here, Abuzaid has not denied receiving the January 13, 2016 email attaching the motions for summary judgments and stating, ‘We will notify you via separate correspondence with the hearing date on these motions.’ Further, the record establishes Abuzaid sent and received numerous electronic filings and notices without incident at the email address on file with the trial court up until the day before appellees’ electronically filed their summary judgment motions and notice of hearing. . . . .  Given the conflicting evidence, it was within the trial court’s discretion not to believe Abuzaid’s unsupported, self-serving statements about computer issues causing him not to ‘see’ the delivered documents and determine he engaged in selective acceptance of documents.”

No. 05-16-00667-CV (Nov. 21, 2017) (mem. op.)

B.C. v. Steak & Shake involved a late-filed summary judgment response. The unsuccessful appellant sought rehearing en banc, which led to another opinion. Among other matters, the Court declined to consider a “supplemental clerk’s record” containing information about the logistics of the filing, when that material was not before the trial court or the Fifth Court at the time of its opinion. The Court quoted Chief Justice Hecht’s statement on the general subject in Worthy v. Collagen Corp., 967 S.W.2d 360, 366 Tex. 1998): “Supplementation of the record after a case is decided is a different matter. It certainly does not serve judicial economy for the appellate court to allow a supplementation of the record that would require it to reconsider its decision on the merits when the party has had ample opportunity to correct the omission prior to decision.”  967 S.W.2d 360, 366 (Tex. 1988). No. 05-14-00649-CV (Oct. 27, 2017) (suppl. op. on rehearing).

Brooks sued CalAtlantic about the construction of a retaining wall; CalAtlantic argued that the suit was barred by the 10-year statute of repose in Tex. Civ. Prac. & Rem. Code § 16.069. The Fifth Court affirmed summary judgment for the defense. Procedurally, the Court concluded that the plaintiff had the burden to establish an exception to the statute once the defendant showed its applicability, citing Ryland Group v. Hood, 924 S.W.2d 120 (Tex, 1996). Substantively, the Court distinguished plaintiff’s authority, observingL “[T]here is no evidence of [defendant’s] awareness that deviating from the Civil Plans could create property defects and dangerous conditions. And neither [cited case] supports Brooks’s contention that proof of deviation from construction plans, alone, is evidence of willful misconduct.” Brooks v. CalAtlantic Homes of Texas, No. 05-16-01203-CV (Oct. 9, 2017) (mem. op.)

Defendant challenged plaintiff’s standing in a dispute about nursing home care, arguing: “The plaintiff must be personally injured—he must plead facts demonstrating that he, himself (rather than a third party or the public at large), suffered the injury.” The Fifth Court agreed, focusing on the pleading at the time of the summary judgment hearing: “Patricia and Delois’s original petition was their pleading on file at the time of the hearing. The original petition does not allege the individual injuries Patricia claims on appeal. Although the prayer in the petition requests that a judgment include $5,000 for “Patricia A. Shaw—Agent Fee’s” [sic] and $39,000 for “Home Health Care[,]” the claims in the original petition concern the economic and physical injuries that Delois suffered. Because Patricia did not plead her individual claims in  the original petition, she may not now urge these claims and supporting arguments on appeal.” Shaw v. Daybreak, Inc., No. 05-16-01251-CV (Sept. 20, 2017).

The plaintiff in B.C. v. Steak & Shake filed her summary judgment response a day late. The panel majority rejected her argument that the trial court had accepted the filing by including this language in the order granting summary  judgment: “After considering the pleadings, evidence, and arguments of counsel, the Court finds that the Motion should be granted.” Accordingly, because the record lacked an “affirmative indication” that it considered the late-filed evidence or granted leave to file it, the majority presumed that the trial court had not considered it. The majority and a dissent disagreed on whether the Court “may consider [plaintiff’s] appellate issues that assert the legal insufficiency of [defendant’s] motion for summary judgment.” No. -5-14-00649-CV (Aug. 30, 2017).

Football legend Deion Sanders sued his ex-wife for defamation; the trial court granted summary judgment on liability and entered judgment for $2.2 million after a bench trial on damages. The Fifth Court reversed, holding that this testimony was too conclusory to justify a summary judgment on the issue of malice:

“At the hearing, Deion was asked, ‘Does Pilar Sanders know that these statements are untrue,’ and he answered ‘Yes.’ In his affidavit, Deion stated, ‘Defendant knew or should have known that each of the defamatory statements . . . were [sic] false . . . I have previously so testified.”

Finding no other evidence or argument sufficient to sustain the judgment as to malice, the Court remanded. Sanders v. Sanders, No. 05-16-00248-CV (Aug. 29, 2017) (mem. op.)

Defendants moved to compel arbitration, admitting that they could not find the relevant construction contract, but stating in an affidavit that it would have used a standard form that contained an arbitration clause that would govern the matter in dispute. The trial court denied their motion; the Fifth Court reversed, noting two technical issues. First, while plaintiffs objected to various parts of the affidavit, “appellees did not obtain a
ruling on this objection. An objection that an affidavit contains hearsay is an objection to the form of the affidavit. The failure to obtain a ruling from the trial court on an objection to the form of an affidavit waives the objection.” Second, while plaintiffs provided their own affidavits “stating they ‘do not recall’ signing any documents other than documents relating to financing and ‘do not recall’ signing documents requiring arbitration” – “To have probative value, an affiant ‘must swear that the facts presented in the affidavit reflect his personal knowledge[,]’ so “[a]n affiant’s belief about the facts is legally insufficient.” Ladymon v. Lewis, No. 05-16-00776-CV (July 21, 2017) (mem. op.)

A famous Shakespeare poem laments: “What win I, if I gain the thing I seek?
A dream, a breath, a froth of fleeting joy. . . . ” These thoughts could also be the lament of the landlord / appellee in Analytical Technology Consultants v. Axis Capital, who obtained a summary judgment against a tenant in default on a lease. Unfortunately, while the tenant did not respond to the summary judgment motion, it pointed out in a motion for new trial that the landlord had failed to include a credit against the accelerated balance as required by the lease’s remedies provision. The landlord sought to preserve its judgment on appeal by pointing to the evidence it submitted in response to the motion for new trial, which it said included the relevant calculation, but the Fifth Court disagreed: ” An attachment to a motion for new trial is not evidence. To constitute evidence, the attachment must be introduced at the hearing on the motion for new trial. If there is no hearing, then the document never becomes evidence.” (citations omitted). No. 05-16-00281-CV (June 19, 2017) (mem. op.)

A quick reminder on summary judgment procedure appears in Autosource Dallas LLC v. Addison Aeronautics LLC:

• “A movant is required to provide twenty-one days’ notice when setting a summaryjudgment. This twenty-one day requirement is designed to give
  the nonmovant sufficient time to prepare and file a response for the original setting.”
• “The twenty-one-day notice requirement does not however apply to a resetting of the hearing, so long as the nonmovant received twenty-one days’ notice of the original hearing.”
• For a recheduled hearing, the movant “needed only to give reasonable notice that the hearing on its summary judgment had been rescheduled. Reasonable notice means at least seven days before the hearing because a nonmovant
  may only file a response to a motion for summary judgment not later than seven days prior to the date of the hearing without leave of court.”

No. 05-16-00838-CV (June 9, 2017) (mem. op.)

AWD brought a flat tire to Logan & Son for repairs. Jaimes, who worked for Logan * Son, was injured while working on the tire, and contended that his employer, Logan & Son, was an independent contractor of AWD. The Fifth Court disagreed: “The evidence showed that AWD was simply a customer who did not have a right to control any aspect of Logan and Son’s work. When Jaimes was asked at his deposition what he was claiming AWD did to cause his injuries, he [only] said, ‘they brought the truck.'” Jaimes v. Lozano, No. 05-16-00165-CV (April 14, 2017) (mem. op.)

A law firm moved for summary judgment as to an unpaid balance, attaching an affidavit which in turn had several invoices attached. The Fifth Court reversed a summary judgment for the firm, noting that the affidavit did not (1) attach a complete set of invoices, (2) was missing entire pages, (3) only reflected that they were sent to one of the relevant parties, and (4) did not attach the computer records used to calculate the net balance. Thus, “[w]e conclude that without the invoices or computer records [the witness] relied on to support his affidavit, the affidavit was conclusory.” Acrey v. Kilgore & Kilgore PLLC, No. 05-15-01229-CV (March 30, 2017) (mem. op.)

The trial court granted summary judgment for the employer (oddly enough, a labor union) in a dispute arising from an employee’s benefits. The Fifth Court reversed, finding ambiguity in the underlying disability policy (noting, in particular, its interplay with separately-drafted legal instruments about the employment relationship – a recurring issue in disputes about arbitration clauses), and also finding related fact issues about whether the contract was unilateral or bilateral, and whether the employee had exhausted administrative remedies. The opinion recaps the major authorities about the role of contractual ambiguity in a summary judgment analysis. Videtich v. Transport Workers Union of Am., No. 05-15-01449-CV (Dec. 29, 2016) (mem. op.)

In KLZ Diamond Tools, Inc. v. TKG General Agency, Inc. (July 18, 2016), the Dallas Court of Appeals considered an appeal of summary judgment granted in favor of TKG, the insurer defendant, against KLZ, the plaintiff insured. KLZ claimed that the insurer failed to pay the full amount owed under a policy relating to approximately $400,000 in stolen merchandise. The insurer advanced half, but requested additional documentation relating to the merchandise. KLZ contended that the request was just stalling, and after the insurer failed to pay the full amount of the claim, sued for breach of contract, insurance code violations, deceptive trade practices, among other claims. The insurer filed a motion for summary judgment. The district court struck KLZ’s responsive summary judgment evidence due to the failure to properly prove up the attached documents and said at the hearing that it had no choice but to grant summary judgment in the absence of responsive evidence. The district court did tell KLZ’s counsel that it would allow KLZ to supplement. But the district court entered an order granting summary judgment before the deadline it gave to KLZ for the supplement, which was timely filed.

The first issue on appeal was whether the trial court erred by orally stating that KLZ was permitted to supplement an affidavit but then granting summary judgment before the deadline given. Recognizing that the summary judgment rule anticipates a party’s summary judgment evidence may not initially be properly presented and allows supplementation, the Dallas Court of Appeals held that it was an abuse of discretion to grant summary judgment without waiting for the supplemental affidavit and without explaining its ruling after having initially granting leave to supplement. Considering the supplemental evidence, the Court further concluded that summary judgment was improper because KLZ had offered summary judgment evidence creating a question of fact as to whether the insurer had improperly refused to pay the entire claim.

KLZ Diamond Tools v TKG General Agency (July 18, 2016)

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.)

In Starwood Management, LLC v. Swaim, the Dallas Court of Appeals affirmed a summary judgment in favor of the defendant by holding that the plaintiff’s evidence of causation, an opinion from their expert witness, was conclusory and therefore not admissible summary judgment evidence. The opinion is a reminder that expert opinion evidence on summary judgment must be more than mere conclusions.

The facts of the case arose from plaintiff hiring the defendants, an attorney and his law firm, to recover an aircraft that was seized by the DEA for an allegedly illegal registration. The defendants were late in filing a claim with the DEA’s Forfeiture Counsel to recover the aircraft, causing the plaintiff’s federal claim for the aircraft to be dismissed. The affidavit offered by the plaintiff as evidence of causation was that of an attorney who had successfully represented the plaintiff in five previous aircraft seizure cases. His opinion was that if the plaintiff had timely filed its claim with the DEA such that the federal lawsuit would not have been dismissed, the DEA would have returned the aircraft as it had in those prior five case. The district court excluded the opinion and granted summary judgment in favor of the defendants.

The Dallas Court of Appeals affirmed because it held the expert’s opinion of causation was conclusory. Inexcusably passing on an opportunity to use one of this blogger’s favorite Latin phrases, ipse dixit, the Dallas Court of Appeals instead described the legal standard in less colorful but ultimately more helpful terms. “To avoid being conclusory, ‘[t]he expert must explain the basis of his statements to link his conclusions to the facts.’ An expert must also ‘[e]xplain how and why the negligence caused the injury.’” Or as I was told in math class, the expert must show his work. This expert failed to do that because, although he had past experience in other aircraft seizure cases in which the outcome was positive, he failed to describe the facts of those cases. As a result, he failed to link those cases to the one at hand, rendering his causation opinion a mere conclusion.

Starwood Management v. Swaim

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.)

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.

After a night of drinking in Uptown, Shawn Strumph was found by a jogger the next morning in a creekbed beneath a bridge owned by CC-Turtle Creek. Medical records contained several versions of how he ended up there, including assault, jumping, or simply falling. Shawn and his parents sued for dram shop and premises liability, but the trial court granted no-evidence summary judgment on the element of proximate cause. Because Shawn remembered nothing of how his injuries happened, and because there were no witnesses to the incident, the plaintiffs could not carry their burden under any theory of liability.

Stumph v. Dallas Lemmon West, Inc., No. 05-14-01044-CV

In early 2012, the Dallas Court of Appeals reversed a temporary injunction that would have prevented BB&T from foreclosing on a pair of properties secured by a $10 million promissory note. Two and a half years later, matters have not improved for the borrowers, as the Court has now affirmed summary judgment for the bank.

In responding to the no-evidence summary judgment motion, the borrowers had “relied entirely on evidence presented at the temporary judgment hearing” to show that they had a valid contract with BB&T that superseded the bank’s right to foreclose. Because the Court had previously held that this evidence amounted to nothing more than an unenforceable “agreement to agree,” the law of the case doctrine prevented the outcome from being any different in this subsequent appeal. The same evidence was also held to be insufficient to support the borrowers’ claims for fraud and declaratory judgment, while a money had and received claim failed because the borrowers had made a $1.8 million payment with full knowledge of the facts and without fraud or duress. Finally, the trial court had not abused its discretion by striking the borrowers’ fifth amended petition because it had been filed outside the deadline in the court’s scheduling order, was not filed with leave of court, and was prejudicial to the bank because it sought to add a claim that “would effectively inject new substantive matters into the litigation by reinjecting old ones.”

TCI Luna Ventures, LLC v. Branch Banking & Tr. Co., No. 05-13-01221-CV

The guarantors of a construction loan agreement and promissory note sought to avoid a deficiency judgment by disputing a successor bank’s summary judgment evidence that it was the holder of the note. The Dallas Court of Appeals was having none of that oft-repeated claim. In the absence of controverting evidence, affidavit testimony and a copy of the note are sufficient to prove it up for summary judgment purposes, and an affidavit is likewise sufficient to establish ownership or assignment of the note. Because none of the summary judgment evidence contradicted the bank’s affidavit testimony, summary judgment for the deficiency was properly granted. The Court went on to rule that the bank was not required to include a complete history of payment activity on the account as part of its summary judgment evidence, and that the guarantors’ own affidavits did not create a fact issue on the issue of the property’s fair market value.

Cha v. Branch Banking & Trust Co., No. 05-14-00926-CV

The owner of an apartment complex sued the builder for construction defect claims. The defendant moved for summary judgment on limitations and lack of notice, which is an element of the plaintiff’s express warranty claim. The trial court granted the summary judgment motion without specifying the grounds. For reasons that are not clear from the opinion, the appellant limited its issues on appeal to the express warranty claim, but only addressed the limitations argument. That resulted in affirmation of the summary judgment ruling.  Because the appellant failed to challenge the other ground — i.e., lack of notice — on which summary judgment could have been granted, the Court of Appeals upheld the judgment based on the unchallenged ground.

ZZ&Z Props., Ltd. v. ZCC-ZPL,LLP, No. 05-14-00812-CV

After the real estate bubble burst in 2008, borrowers attempted all sorts of ways to get out of their obligations. Most notably, debtors repeatedly challenged the ways that their mortgages had been transferred and recorded (or not) by the banks that had held, swapped, sold, and securitized them. Long story short, it hardly ever worked, as courts across the country mostly (but not always) eschewed technical arguments in favor of the big picture of who owed what to whom. But a new opinion from the Dallas Court of Appeals shows that when the bank doesn’t follow the rules in litigation, the debtors may still escape liability on a loan.

In this instance, a pair of individual guarantors for a $748,000 loan were sued by Wells Fargo after the borrower defaulted. While the case was pending, Wells Fargo allegedly assigned the loan documents to another entity, Apex. Wells Fargo’s attorneys later filed a motion for withdrawal and substitution, which the trial court granted. The motion failed to mention the assignment of the loan documents to Apex. The guarantors then filed for no-evidence summary judgment, pointing out that Wells Fargo had conducted no discovery and that the discovery period was closed. The motion argued that there was no evidence to show who owned the guaranty. When Apex appeared and tried to cure that deficiency, the guarantors objected and moved to strike Apex’s summary judgment evidence. The trial court sustained the objections and granted summary judgment. The Court of Appeals affirmed, holding that it was not an abuse of discretion to exclude Apex’s evidence because it had waited 11 months after acquiring the loan to amend Wells Fargo’s discovery responses by disclosing its ownership. That was not “reasonably prompt,” and it acted as an unfair surprise to the guarantors to have that come out only in response to their summary judgment motion.

LSREF2 Apex (TX) II, LLC v. Blomquist, No. 05-14-00851-CV

After a jury awarded millions of dollars in damages and the Court of Appeals affirmed, the defendants in that case decided to become plaintiffs by suing their lawyers at Andrews Kurth. The county court at law granted summary judgment for the defendants, and the Dallas Court of Appeals affirmed. In a malpractice case based on an attorney’s conduct in connection with litigation, the plaintiff has to demonstrate that it would have prevailed in the prior case but for the lawyer’s negligence. Concluding that the plaintiffs’ proof on that point was conclusory and speculative, the Court held that there was no evidence in the summary judgment record to establish causation of any injury to the plaintiffs.

Rogers v. Zanetti, No. 05-14-00733-CV

A car fell on David Fusaro at the house of his friend, Christopher Becherer. The car was owned by Becherer’s mother, and the pair were working on her brakes. Becherer’s homeowner’s insurer denied coverage, relying on an exclusion for injuries “arising out of the ownership, maintenance, operation, use, loading or unloading of: Motor or engine propelled vehicles or machines designed for movement on land . . . which are owned or operated by or rented or loaned to an insured.” After Fusaro obtained a $1.1 million judgment, Becherer assigned his coverage claim to Fusaro, who lost the coverage case on summary judgment. Fusaro argued that Becherer’s mother’s case was not “owned or operated by or rented or loaned to” Becherer, but the Court of Appeals affirmed. Construing the words in light of their ordinary meaning, Becherer’s mother had loaned the vehicle to her son, and he was operating the vehicle by performing ordinary acts of maintenance on it.

Fusaro v. Trinity Universal Ins. Co., No. 05-14-00481-CV

One of the messiest cases in recent memory has resulted in a 79-page opinion and judgment that disposes of the case in almost every way imaginable: “Our decision in this case is to vacate, in part, affirm, in part, dismiss, in part, and reverse and remand to the trial court, in part.” The case arose out of a lease executed by Fitness Evolution, its subsequent acquisition by Headhunter Fitness, a series of personal guarantys, assignments, representations, and just about everything else one might find in a bar exam essay question. Since this one pretty much defies summary, we will instead report that while summary judgment was affirmed on some claims, the end result is that most everybody involved will be remanded to the Collin County trial court for additional proceedings.

Fitness Evolution, LP v. Headhunter Fitness, LLC, No. 05-13-00506-CV

A surveying company named TBE Group contracted with a competing surveying company, Lina T. Ramey & Associates, to locate utility lines for transportation and construction projects. After one lawsuit, the parties entered into a “Strategic Alliance Agreement” that would govern their ongoing relationship. But Ramey did not generate the amount of business required by the agreement, and the parties sued one another for breach of contract. The trial court granted TBE’s motion for summary judgment and the Court of Appeals affirmed, holding that Ramey had failed to come forward with more than a scintilla of evidence that it had fulfilled its part of the contract. Although Raney’s summary judgment affidavit referenced checks that were supposed to demonstrate Raney’s performance, the checks were not attached to the affidavit. That failure rendered the affidavit conclusory and of no evidentiary value.

Lina T. Ramey & Assocs., Inc. v. TBE Group, Inc., No. 05-13-01711-CV

An insurance coverage dispute highlights a key requirement of the venerable mailbox rule — namely, that it doesn’t apply when the filing party (in this case, both pro se and temporarily incarcerated) does not affix sufficient postage to have his summary judgment response delivered by the postal service. In the absence of a properly filed response, the Court of Appeals held that the trial court had correctly granted the insurer’s traditional and no-evidence motions for summary judgment.

Wilson v. Colonial County Mut. Ins. Co., No. 05-14-00220-CV

Update: We did it again!

The United Food & Commercial Workers Union sought to collectively bargain on behalf of the employees of the Texoma Area Paratransit Systems, a rural transit district. TAPS sued for a declaratory judgment that, as a government subdivision, it was prohibited from collectively bargaining by Chapter 617 of the Texas Government Code. A Grayson County trial court granted summary judgment for TAPS and (more than a year later) awarded its attorney fees. The Dallas Court of Appeals affirmed, rejecting the union’s claim that TAPS’s declaratory judgment action was preempted by federal labor law. Despite 12 years of collective bargaining between TAPS and the union, state law still prohibited collective bargaining with a government entity, and that meant that TAPS was indeed entitled to summary judgment on the issue.

United Food & Commercial Workers Union Local 1000 v. Texoma Area Paratransit Sys., Inc., No. 05-12-01556-CV

The Texas Commission on Human Rights Act preempts many employment-related claims in favor of the TCHRA’s own available remedies. In this case, an employee sued her employer, Steak N Shake, for common law assault after her supervisor committed an act of sexual assault. Because the gravamen of the plaintiff’s “unwanted offensive touching” claim was for sexual harassment, the Court of Appeals followed Texas Supreme Court authority in holding that the common law assault claim was preempted by the TCHRA. The Court also rejected the employee’s claim that the claim did not sound in harassment because it involved only a single incident. The Court therefore affirmed summary judgment for the employer.

B.C. v. Steak N Shake Ops., Inc., No 05-14-00649-CV

The Court of Appeals has affirmed summary judgment for Albert G. Hill, Jr. in one part of the long-running legal battle initiated by his son, Albert G. Hill III. The trial court ordered the receiver for Hill 3 Investments, LLC to wind up the company and distribute its assets to Hill Jr. and Hill III. Among other items, the Court of Appeals rejected Hill III’s argument that his accountant’s declaration had demonstrated a fact dispute over the receiver’s calculation of the company’s capital accounts. No fact issue existed, the Court of Appeals held, because the accountant only noted that he could not verify the receiver’s calculation with the records available to him. That statement gave rise to “no more than a surmise or suspicion that the accounting might be different if additional documents were reviewed.”

Full disclosure: Our firm formerly represented Hill Jr., including in the case that originally resulted in the appointment of the receiver for Hill 3 Investments. We were not involved in the case at issue here, however.

Hill v. Hill, No. 05-13-00732-CV

Just under two years ago, the Court of Appeals reversed summary judgment for Compass Bank because its custodian of records affidavit did not explain how the witness would have personal knowledge to prove up the promissory note. On remand, the trial court granted the bank’s amended motion for summary judgment, and this time that judgment was affirmed. Among other things, the defendants sought to establish a fact issue by pointing to a discrepancy in the amount of damages owed to the bank in the original summary judgment affidavit versus the affidavit in the amended motion. The Court of Appeals disposed of that issue by pointing out that it had already held the original affidavit to be “no evidence,” so the purported conflict was not really a conflict at all. The Court also held that the bank was not required to file the original promissory note, despite a Collin County local rule to that effect, because the local rule conflicted with the Texas Rules of Evidence governing the admissibility of a duplicate. Finally, although the lending instrument contained an illegal homestead warranty provision, the Court held that provision was severable from the remainder of the contract.

Vince Poscente Int’l, Inc. v. Compass Bank, No. 05-14-00165-CV

If a court orders a party to be subjected to weekly drug testing, the testee can’t sue the testor over how it is fulfilling its court-appointed duties thanks to the doctrine of derived judicial immunity.

B.W.D. v. Turnage, No. 05-13-01733-CV

In this case involving a plaintiff’s purchase of a condominium allegedly containing “harmful indoor mold,” the plaintiff insisted that the trial court erred by (among other things) granting the defendants’ no-evidence motions for summary judgment without permitting adequate time for discovery.  The Court of Appeals held that adequate time for discovery had, indeed, passed since the plaintiff had announced ready for trial several times prior to the defendants’ motions were filed In addition, the plaintiff had previously agreed not to seek additional discovery and did not explain what additional discovery was necessary.  Thus, the Court concluded that the plaintiff had failed to show that the trial court abused its discretion when it determined that there had been adequate time for discovery.

Manautou v. Ebby Haiilday Real Estate, Inc.

In this fraud and aiding and abetting breach of fiduciary duty case, the court addressed  the defendant’s no evidence motion for summary judgment.  The court held that the plaintiff had not properly responded to the no evidence motion because it merely stated the elements of the aiding and abetting claim in its response brief, without specifically “pointing out” any evidence to support the contention that the defendant “knowingly assisted” in the breach of fiduciary duty.  Although the plaintiff attached a “large amount of evidence” to its response, the court noted that the plaintiff’s response required specific references to the evidence that would support each element of the claim.

MaximusAlliance Partners, LLC v. Faber

A Highland Park property dispute has resulted in a 30-page memorandum opinion affirming the trial court’s summary judgment ruling that the defendants have title to a strip of land adjacent to their home, but also reversing an attorney fee award of $40,670 against the plaintiff, Armstrong DLO Properties. ADLO filed suit, seeking to establish that (among very many other things) a 1949 warranty deed in the defendants’ chain of title was invalid, which would make the frontage of ADLO’s lot approximately 155 feet wide.

During the summary judgment hearing, the trial court revealed that it had sua sponte discovered that ADLO’s owner had successfully sued the estate of his father seeking reformation to the deed, establishing that the frontage was only 140 feet wide. The court orally stated that it would take judicial notice of that judgment, describing it as an issue of “estoppel.” The court subsequently granted summary judgment for the defendants without identifying the grounds for its ruling. The Court of Appeals rejected ADLO’s claim that the district court had improperly relied on matters outside the record in granting the summary judgment, as there was nothing in the written summary judgment order indicating that the court had actually granted summary judgment on the basis of the prior judgment. Because the grounds otherwise presented in the defendants’ motion were sufficient to justify summary judgment, the Court affirmed it. However, the Court reversed as to the award of attorney fees, holding that fees were not recoverable under the Declaratory Judgments Act because the issue was title to the property, not the location of the boundary between properties. See Tex. Civ. Prac. & Rem. Code § 37.004(c).

Armstrong DLO Props., LLC v. Furniss, No. 05-13-01581-CV

Update: The pressure is now on a for a three-peat next week.

The Dallas Court of Appeals has affirmed summary judgment in favor of former state and federal district court judge Joe Kendall and the law firm of Provost & Umphrey. The lawsuit alleged that the plaintiffs had provided Kendall with confidential information for a possible qui tam lawsuit related to the procurement practices of the Dallas and Houston Independent School Districts, and that Kendall and Provost had improperly used that information in filing a successful qui tam lawsuit on behalf of two other clients. Kendall and Provost sought and obtained summary judgment, arguing that no confidential information has been shared, that no duty of loyalty was owed or breached, that there was no evidence of an attorney-client relationship, and that there was no evidence of damages. Among other things, the Court of Appeals held that there was no evidence Kendall had intended to undertake a legal representation of the plaintiffs by meeting with one of them to discuss the “possibility” of a qui tam lawsuit, and that there was no evidence Kendall had actually disclosed any of the plaintiffs’ confidential information in connection with the lawsuit that was actually filed.

Gillis v. Provost & Umphrey Law Firm, LLP, No. 05-13-00892-CV

Marco Calvillo sued the owner of the Kliff Klub — first review on Yelp: “Drinks are very strong”; second review on Yelp: “The drinks are EXTREMELY strong” — for dram shop liability after a patron of the club collided with Calvillo’s truck at 3:30 am, driving the wrong way on I-30. Testing at the hospital more than two hours after the club’s closing time showed the driver still had a .177 BAC. The county court at law granted summary judgment for the club owner, and the Court of Appeals affirmed. The patron’s deposition testimony was that she had never bought a drink at the club that night, but was instead consuming drinks bought for her daughter by various men at the club. Because the driver’s consumption was “twice removed from the provision of alcohol to the men who purchased it and gave it” to the daughter, Calvillo has no evidence that the driver was “served” alcohol within the scope of the Dram Shop Act.

Calvillo v. Frazier, No. 05-14-00013-CV

Update: Woo hoo!  We’re betting it was the on-the-nose Yelp reviews that put it over the top with the judges.

A memorandum opinion provides a short lesson in the nature of equitable remedies. Monterey Mushrooms sued Majestic Realty Co. and McLane Foodservice after one of Monterey’s employees slipped and fell on ice located on their property, causing Monterey to pay the worker through its ERISA injury benefits plan. Monterey sued the defendants for equitable subrogation, unjust enrichment, and money had and received. The Dallas Court of Appeals affirmed no-evidence summary judgment for the defendants. Although Monterey had evidence supporting an equitable right of subrogation, that subrogation claim only put it in the shoes of its injured worker, and there was no evidence that he would have a claim against the defendants. The Court distinguished between haveing a right of subrogation and having the ability to recover under that right. Monterey’s unjust enrichment claim failed because there was no evidence that the defendants received any benefit from Monterey’s payment of its injured worker’s benefits. Nor was there a claim for money had and received because there was no evidence teh defendants received any money or benefits belonging to Monterey.

Monterey Mushrooms, Inc. v. Majestic Realty Co., No. 05-13-01015-CV

An overly-complicated series of transactions led to a dispute over who had valid title to a residential property at 2701 Wickham Court in Plano. The case turned on which of two competing deeds — one filed by the corporation of Quang Dangtran and the second filed by another company that took its deed from his ex-wife, Tuyet Anh Le — was effective. The Court of Appeals affirmed in part and reversed in part. The Court agreed with the trial court’s summary judgment ruling that Dangtran’s deed was not properly acknowledged because it failed to identify the state where the corporate entity was incorporated (see Tex. Civ. Prac. & Rem. Code 121.008(b)(4)). However, the Court also held that there was a genuine issue of material fact whether the second claimant took the deed from Le with notice of her ex-husband’s claim, which would negate her transferee’s status as a bona fide purchaser. Because Dangtran was in unequivocal possession of the property at the time of the second transaction, and because Dangtran was not a member of Le’s family at that time, summary judgment could not be sustained on the second claimant’s bona fide purchaser defense.

Whoa USA, Inc. v. Regan Props., LLC, No.05-13-01412-CV

Under the Texas Tax Code, property taxes are a personal obligation of the person who owns the property on January 1 of each tax year. In this case, the owner purchased her home on February 25 and paid that year’s taxes after closing. She then sought to make the former owner’s lender responsible for the payment of the property taxes because the former owner had been delinquent under the loan. The Court of Appeals rejected that attempt holding that a lienholder is not an owner subject to the property tax obligation. The Court also rejected the buyer’s attempt to make the bank liable to her under a contract theory, noting that her sale agreement was with the seller, and that she had no contract with the bank. Accordingly, the trial court’s summary judgment order was affirmed.

Blume v. Wells Fargo Bank, N.A., No. 05-13-01429-CV

A fire at a hotel in Duncanville left the property owner unable to continue paying on the $3.4 million promissory note. The lender foreclosed and the property was sold for $500,000, leaving a substantial balance on the defendants’ personal guaranty obligations. The bank prevailed on summary judgment, a result that was not helped by the failure of defendants’ counsel to respond to the motion or appear at the hearing. The Court of Appeals affirmed.

The guarantors challenged the trial court’s denial of their motion for new trial. The Court of Appeals analyzed the case as a post-answer default, applying the Craddock factors of whether (1) the failure to answer or appear was a mistake or accident, (2) the defendant had a meritorious defense, and (3) the motion was filed at a time when granting a new trial would not delay or otherwise injure the plaintiff. In this instance, the motion for new trial failed to establish item (3), as the attorney’s affidavit did not address that factor, Neither the motion nor the affidavit  stated that the defendants were ready, willing, or able to go to trial immediately or offer to reimburse the plaintiff for its expenses. The Court also rejected the defendants’ claim of newly-discovered evidence, given that the affidavits failed to establish the proffered evidence (testimony from friends of the defendants) was actually newly discovered or could not have been discovered earlier through the exercise of due diligence.

Kahrobaie v. Wilshire State Bank, No. 05-13-01459-CV

In this breach of contract claim, the trial court granted summary judgment on the grounds that the plaintiff had not satisfied the conditions precedent contained in the agreement.  The employment agreement at issue was to hire the plaintiff as President and CEO of the Dallas Housing Authority, but the agreement contained a condition that provided the agreement remained “nonbinding unless signed by the Chairman of the Board of Commissioners of the [DHA] and approved by the Board of Commissioners.”  The Court of Appeals rejected the plaintiff’s argument that a factual issue precluded summary judgment because the Board of Commissions told him, prior to executing the agreement, that they had already approved it.  The Court of Appeals, however, rejected this argument, and affirmed the trial court’s holding because “if the conditions stated in the letter agreement were satisfied before the agreement was presented to [the plaintiff], there would be no need to include such language in the agreement.”

Killingsworth v. Housing Authority

In an opinion that never mentions the name “Ross Perot Jr.” (a.k.a. Hillwood Investment Properties III), the Court of Appeals has affirmed summary judgment in favor of Mark Cuban (a.k.a. Radical Mavericks Management LLC) in a case alleging that Cuban spent too darned much money on payroll for the Mavs. Or, more technically speaking, that the Mavs were spending more money than they were taking in, rendering the team insolvent and requiring the appointment of a receiver. Sports fans and legal observers may recall this case as the one in which Cuban filed a particularly amusing pleading shortly after the Mavs won the 2011 NBA title. In any event, the Court of Appeals affirmed the trial court’s ruling that Hillwood had no evidence of insolvency, holding that its expert had failed to consider “third-party contributions to the Mavericks” (a.k.a. Cuban’s personal footing of the bills). The Court also affirmed the trial court’s decision to seal certain business records under Rule 76a, holding that the lower court had not abused its discretion in determining that the financial and collective bargaining documents were sufficiently sensitive to justify their sealing.

Hillwood Investment Props. III, Ltd. v. Radical Mavericks Mgmt., LLC, No. 05-11-01470-CV

An architectural firm subcontracted with Pavecon Commercial Concrete to pour the foundation for a wedding facility in Carrollton. The architect failed to pay the last of Pavecon’s invoices, prompting Pavecon to sue the architect and the owner of the facility. The defendants counterclaimed for breach of contract and negligence, alleging that the concrete services had been performed improperly. Pavecon moved for summary judgment on the counterclaims. The trial court granted the motion and the Court of Appeals affirmed, holding that the architect had failed to submit admissible evidence of any specific pecuniary loss and that the negligence claims were barred by the economic loss doctrine. Justice Moseley dissented in part, arguing that the trial court should not have sustained Pavecon’s objection that the defendants’ summary judgment affidavit was conclusory in averring their damages.

Trebuchet Siege Corp. v. Pavecon Commercial Concrete Ltd., No. 05-12-00945-CV

Trebuchet Siege Corp. v. Pavecon Commercial Concrete Ltd. (dissent)

In this lawsuit against guarantors on promissory notes, the Court addressed, among other issues, the standard for adequate summary judgment affidavits.  The appellants argued that the two affidavits supporting appellee’s motion for summary judgment demonstrated that the witness lacked personal knowledge.  The majority opinion, however, found that the affidavits properly reflected the witness’ personal knowledge because the witness asserted that (1) he had personal knowledge of the matters in the affidavit; (2) his job responsibilities included “servicing and collection of indebtedness” owed by appellant; (3) he was the custodian of records familiar with appellee way of maintaining its books and records (which he had reviewed); and (4) appellee’s business records support the statements in the affidavit.

Bagwell v. Ridge at Alta Vista Investments I, LLC

The dissenting opinion pointed out that these affidavits were defective because appellee was not the original lender on the loans, and nothing in the affidavits demonstrated that he had any personal knowledge of the events occurring before the loans were acquired in January 2010.

Bagwell v. Ridge at Alta Vista Investments I, LLC (dissent)

Plaintiff sued defendant for breach of a lease agreement and unpaid rent. Shortly before the hearing on the plaintiff’s motion, the defendant’s counsel filed a motion for leave to file a late response.  The trial court denied the defendant’s motion and granted the plaintiff’s MSJ.  The Court of Appeals affirmed the trial court’s decision, noting that the defendant did not attach any evidence to its motion and also failed to address all of the relevant factors in its argument.

Dawn M. Brown v. Melissa 121 Partners, Ltd.

In this mortgage foreclosure-related lawsuit, the appellants challenged the trial court’s decision to grant summary judgment on a no-evidence basis.  The Court of Appeals, however, affirmed the trial court’s decision because the appellees did not present any evidence to overcome each of the appellees’ no-evidence grounds.  The Court rejected the appellant’s argument “[b]ecause they have not challenged on appeal all possible grounds upon which summary judgment could have been granted.”

Puricelli v. Saxon Mortgage Services`

The company operating the Golf Club at Castle Hills agreed to grant lifetime memberships to a number of golfers, who filed suit in order to vindicate those contracts after the course was foreclosed on and sold to defendant CAPX Realty. Although the plaintiffs continued to golf for free for the next four years, that was not enough to raise a genuine issue of material fact on the golfers’ theory that CAPX had ratified their contracts. Ratification is a theory by which a principal can affirm a contract entered into by an agent.  But CAPX was not a party to the contract, and nobody was acting as CAPX’s agent in entering into the contract. Therefore, CAPX could not ratify the lifetime memberships, and summary judgment was appropriately granted.

Averett v. CAPX Realty LLC, No. 05-13-00885-CV

In a follow-up from an opinion issued a few months ago, the Court of Appeals has affirmed summary judgment in favor of the financiers of a development project in Fort Worth. For essentially the same reason that the buyer could not recover against the architect who had referred the deal in the first place — namely, that the paperwork for the sale fully disclosed the fact that the property was partially situated on a 100-year floodplain. Because the architect’s summary judgment motion had conclusively negated any possibility that he was personally responsible for any fraudulent misrepresentations, the buyer could not recover for fraud against the finance he was allegedly representing in the transaction.

Collective Asset Partners, LLC v. Pana, No. 05-13-00552-CV

After a string of missed, overpaid, refunded, and improperly credited property tax payments and a cancelled foreclosure, homeowners Peter and Natalya Shin sued Chase Home Finance under the Texas Debt Collections Practices Act. Chase moved for a no-evidence summary judgment, which the trial court granted. The Court of Appeals affirmed, holding that the plaintiffs had failed to come forward with evidence showing a violation of the Act. Among other things, the Court held that the homeowners had not shown Chase had attempted to collect unauthorized fees, because the mortgage papers provided that Chase could indeed collect the subject fees if the borrowers did not pay their property taxes on time. Since there was no question that the plaintiffs had been late in paying their property taxes, Chase’s attempt to set up and collect the funds for an escrow account was authorized under the parties’ agreement.

Shin v. Chase Home Finance LLC, No. 05-12-01634-CV

The Court of Appeals affirmed the trial court’s grant of a no evidence motion for summary judgment in which the defendant, a lumber company, was alleged to have breached its contract to build a swimming pool for plaintiff.  The Court found that, although there were cracks alleged in the built pool, nothing in the plaintiff’s affidavit identifies a contractual obligation that the defendant failed to perform.

Lopez v. Metro Lumber Indus.

Dentist, Stephen Chu, ordered dental supplies form the plaintiff, accepted the shipment, but refused to pay the balance.  The plaintiff sued Dr. Chu individually and his dental practice, Stephen Chu, DDS, MSD, PA d/b/a Smile Again Orthodontics” for breach of contract and account stated.  Dr. Chu, however, declared bankruptcy and was subsequently nonsuited.  The Court found that a series of invoices addressed to “Stephen Chu DDS” could not establish, on summary judgment, that ” Stephen Chu, DDS, MSD, PA d/b/a Smile Again Orthodontics” was a party to the contract.

Chu v. Schein

In 2010, the Court of Appeals reversed summary judgment in favor of the lender in a collateral-disposition case, holding that the borrowers had raised a fact question as to the commercial reasonableness of the property. DMC Valley Ranch, L.L.C. v. HPSC, Inc., 315 S.W.3d 898 (Tex. App.–Dallas 2010, no pet.). On remand, the lender took the position that the defendants’ valuation expert report was correct, and again moved for summary judgment on that basis (apparently seeking to recover a smaller deficiency rather than fighting for a larger one). The trial court granted summary judgment for the lender, and also awarded attorney fees via summary judgment. The Court of Appeals affirmed on the deficiency ruling, but reversed on attorney fees. The Court held that there was a fact issue on the reasonableness and necessity of the attorney fees because the defendants’ attorney had submitted an affidavit opining that it was unreasonable to seek fees for unsuccessful appeals and motions, and that it was not appropriate to have seven lawyers on the file. The case was therefore remanded for further proceedings on attorney fees.

DMC Valley Ranch LLC v. HPSC, Inc., No. 05-11-01730-CV

The Dallas Court of Appeals continues to be a hard place for borrowers and guarantors to claim the statutory right to offset deficiencies when collateral is sold in foreclosure for less than its fair market value. In this instance, the bank sued the guarantor of a $9.5 million loan. After the apartment complex that secured the debt was sold in foreclosure for only $4 million, the bank sought to recover the deficiency. The guarantor argued that the bank should only be permitted to recover the difference between the balance of the loan and the fair market value of the property, not the price realized in the foreclosure sale. See Tex. Prop. Code  § 51.003(c). The trial court granted summary judgment for the bank, and the Court of Appeals affirmed. Although the opinion does not cite to the Moayedi case that started off this line of decisions (and that is currently pending before the Texas Supreme Court after oral argument in January), the Court once again held that the parties’ contract validly waived the guarantor’s right to offset. In this particular agreement, the waiver clause referred to “any and all rights or defenses based on suretyship or impairment of collateral” and “any claim of setoff.”  Both clauses, the Court held, were sufficient to waive the statutory offset rights.

Nussbaum v. OneWest Bank, FSB, No. 05-13-00081-CV

The opinion in a premises liability case has rejected a novel attempt to defeat summary judgment by invoking the special exceptions process. The plaintiff, a mother whose minor son was injured after tripping on an escalator at Amazing Jakes, argued that summary judgment should not be based on a pleading deficiency that could be cured by amendment, and that the proper procedure for doing so was to file special exceptions. The Court of Appeals disagreed, holding that Amazing Jakes had moved for traditional and no evidence summary judgment based on the facts, not on the basis that the plaintiff had failed to state a cause of action or any other pleading deficiency. The Court noted that a pleading deficiency would not be a proper basis for summary judgment unless the trial court has first given the plaintiff an opportunity to amend the pleading, except when the defect is of the type that could not be cured by amendment.

Williams v. Adventure Holdings LLC, No. 05-12-01610-CV

In this negligent misrepresentation and fraud case, the Court of Appeals has affirmed summary judgment for the defendant based on the statute of limitations. Collective Asset Partners LLC sued Michael Schaumburg and his architectural firm after Schaumburg informed CAP about a property for sale in Tarrant County and took a $1 million fee in the resulting sale. Half of the property turned out to be located on a floodplain, which allegedly caused CAP to be unable to develop it. Schaumburg sought and obtained summary judgment that there had been no misrepresentation because the paperwork for the sale included disclosures that identified the floodlplain. Nor could CAP show a misrepresentation based on a $10.25 million appraisal on the property, as that appraisal was only intended for use by the bank that commissioned it and could not be justifiably relied upon by third parties.

Collective Asset Partners LLC v. Schaumburg, No. 05-13-00040-CV

Southwestern Christian College fired its track coach after he allowed two ineligible athletes to run in a meet.  Later, when the college’s track program got audited, the athletic director chose not to respond and accepted a ban from that year’s national championship, because the penalty for running ineligible athletes would have been worse than the penalty for failing to respond to an audit request.  The athletic director then told the track team that the reason they could not compete in the national championship meet was because the coach ran ineligible athletes.  The coach disputed that explanation.  He claimed that the audit and resulting ban were due to the athletic director’s failure to submit certain forms.

The coach sued the college, the athletic director, and the college’s president, alleging, among other things, that the athletic director and college president had made slanderous statements that tarnished his reputation in the track and field community and prevented him from getting another job.  The trial court granted the defendants’ motion for summary judgment and dismissed all of the coach’s claims.  The Court of Appeals, however, reversed the trial court’s dismissal of the coach’s slander claims against the college and the athletic director, finding that the coach had raised a material fact issue as to the truth of the athletic director’s statements to the track team.

Porter v. Southwestern Christian College, No. 05-12-01737-CV

In this breach of contract claim, the plaintiff moved for summary judgment and establish its standing in an affidavit from one of its employees concerning the acquisition of the lease at issue.  The defendant objected to the affidavit, arguing that it did not reflect the employees personal knowledge.  The Court of Appeals rejected the defendant’s argument and upheld the trial court’s grant of summary judgment because, according to the court, the plaintiff’s affidavit satisfied the personal knowledge requirements by stating that the affiant (1) was responsible for negotiating the acquisition of the lease; (2) reviewed the “books, records and documents” of the company from which the plaintiff acquired the lease; (3) affirmed that he verified the accuracy of those records after the sale; and (4) incorporated the records concerning of the acquired lease (from the previous owner) into the plaintiff’s records.

Nat’l Health Resources v. TBF Financial

Thomas Ellis owned a unit in The Renaissance on Turtle Creek.  He sued the condominium association after it had fined him numerous times for playing loud music and harassing his upstairs neighbors.  The condominium counterclaimed to recover the $13,405 dollars he owed and to foreclose on the continuing assessment lien it held on Ellis’ unit.  The trial court granted the condominium’s summary judgment motion, and the Court of Appeals upheld this decision on appeal because “no fact issue was raised by Ellis’s arguments in his summary judgment response.”

Ellis v. Renaissance on Turtle Creek Condo. Ass’n

Seib Family GP and Richard Seib purchased a limited liability company that owned a 60-acre tract in a warehouse district adjoining the Trinity River levee in Dallas. Two years later, Seib sued the bank that held the note on the property, alleging that it was liable under the Texas Securities Act because it had failed to disclose its knowledge that the levee was “in jeopardy” and “being decertified” by the Corps of Engineers. The trial court granted traditional summary judgment for the bank, and the Court of Appeals affirmed. To the extent that Seib alleged direct seller liability by the bank, that claim failed because the bank was only a lender, not a seller of the LLC. Nor could the bank be liable under the TSA for secondary liability, as the evidence demonstrated — and Seb did not contest — that the bank did not and could not exercise control over the operation of the purchased LLC.

Seib Family GP, LLC v. Bank of the Ozarks, No. 05-12-01171-CV

The Court of Appeals has affirmed summary judgment for the lenders in a foreclosure dispute. Anil and Sheela Das sued Deutsche Bank and others to prevent them from foreclosing on their home. The Dases claimed that DB was not an owner or holder of the note. However, an affidavit from an analyst of the loan servicing company established that the note had been transferred to DB, and that the servicer maintained the original of the note on behalf of DB. Copies of the original instruments were also attached to the affidavit, and that uncontradicted evidence was enough for the Court of Appeals to determine that Deutsche Bank had met its summary judgment burden on the issue. The Court also rejected the borrowers’ argument that the bank was judicially estopped from relying on that copy of the note, as its use of an earlier, unendorsed copy of the note during prior bankruptcy proceedings was not clearly inconsistent with a later copy that included the subsequent endorsement.

Das v. Deutsche Bank Nat’l Trust Co., No. 05-12-01612-CV

A franchise agreement between Applebee’s and Gator Apple (a Florida franchisee) prohibits the franchisee from soliciting or hiring anybody from another franchisee who was employed by that other franchisee within the previous six months, states that other franchisees are third party beneficiaries of the franchise agreement, and provides for liquidated damages equal to three times the employee’s annual salary. A Texas franchisee, Apple Texas, sued Gator Apple under that provision after Gator Apple hired five of Apple Texas’ current or former employees and executives. The trial court granted summary judgment for Apple Texas, awarding it liquidated damages in excess of $1.2 million. The Court of Appeals affirmed. After determining that the franchise agreement was governed by Kansas law due to its choice of law provision, the Court upheld the award of liquidated damages under Kansas law. The Court also rejected Gator Apple’s argument that a fact issue existed on its affirmative defense of waiver, as none of the waivers it relied on authorized Gator Apple (as opposed to other franchisees or Applebee’s corporate) to solicit Apple Texas’ employees.

Gator Apple, LLC v. Apple Texas Restaurants, Inc., No. 05-12-01369-CV

The Court of Appeals has affirmed summary judgment in favor of the defendant in a libel and business disparagement case.  The case arises out of statements made by OAC Senior Living in an administrative waiver proceeding initiated by a competitor, Senior Care Resources. The allegedly defamatory statements were made to the Texas Department of Aging and Disability Services, a state agency designated to administer and monitor human services programs, including Medicaid. If that sounds like the sort of thing that would be absolutely privileged under defamation law, the Court of Appeals agrees with you. Although DADS is not a court, it was exercising quasi-judicial power in determining whether to grant Senior Care’s requested waiver. The Court’s opinion provides a lengthy analysis of when it is proper for a court to conclude, as a matter of law, that such a proceeding qualifies as quasi-judicial for purposes of the absolute privilege defense.

Senior Care Resources, Inc. v. OAC Senior Living, LLC, No. 05-12-00495-CV

Gary Cooper thought he was dealing with an authorized representative of Lawyers Title Company when he deposited $1.8 million in escrow for the purchase of property in Fort Worth. In reality, Jason Chumley was an independent contractor working for an attorney for Lawyers Title. But the Fort Worth project never developed, and Chumley and two of Cooper’s business associates instead applied the money to pay off four liens on a McKinney Avenue property in Dallas. That transaction led to federal indictments for wire fraud, as well as a lawsuit by Cooper against numerous parties in an effort to recover the $1.8 million. The trial court granted summary judgment for Cooper on his claims for bailment, conversion, and money had and received, while denying Lawyers Title’s cross-motion. Those claims were then severed from the rest of the case, thereby enabling an immediate appeal. The case turned largely on whether Lawyers Title had ever received Cooper’s funds, as they had been wired to an account maintained by the title company’s attorney. There was conflicting evidence on whether Lawyers Title actually controlled that account, which was a genuine issue of material fact and required reversal of summary judgment on all three quasi-contract claims.

Lawyers Title Co. v. J.G. Cooper Dev,, Inc., No. 05-11-01537-CV

Brian Vodicka and Steven Aubrey provided nearly $1 million for a loan to fund a real estate development. The loan was only secured by a subordinate lien, and Vodicka and Aubrey lost their entire investment after the borrower defaulted. They sued North American Title, which had served as the escrow agent for the loan, alleging a variety of fraud, negligence, and fiduciary duty claims. The Court of Appeals affirmed summary judgment for the title company. The Court held that the trial court had not erred in striking the plaintiffs’ summary judgment evidence. The trial court had not abused its discretion in sustaining the defendant’s objection to a spreadsheet because the plaintiffs had failed to file it under seal as required by the court’s protective order. The plaintiffs also waived their complaint about their summary judgment affidavit because their appellate briefing failed to address several of the objections the defendant had asserted before the trial court. Those rulings meant that the plaintiffs were left with literally no evidence to respond to North American Title’s no-evidence motion, and the trial court’s grant of summary judgment was therefore affirmed.

Vodicka v. N. Am. Title Ins. Co., No. 05-13-00126-CV

Clint Simon applied for a “Termite & Pest Control General Liability” insurance policy for his d/b/a, Sherlock Pest. The application included a “WDI Exclusion,” which excluded liability for claims or losses arising out of inspections for Wood Destroying Insects. That exclusion, in somewhat different form, was included in a pair of endorsements to the policy that was subsequently issued, as well as a later renewal policy. When a homeowner sued Simon for performing an improper inspection, the insurer invoked the WDI Exclusion to deny coverage. Simon sued, but the insurer obtained summary judgment on all claims. The Court of Appeals affirmed, holding that Simon could not have justifiably relied on a coverage certificate the insurer had filed with the Texas Department of Agriculture, which had not mentioned any exclusion in Simon’s insurance policy. Because the application, the initial policy, and the renewal policy all contained the WDI Exclusion, a reasonable person could not have relied on the coverage certificate as a representation that there was actually insurance coverage for WDI inspections. The Court also rejected Simon’s argument that the trial court should have granted a continuance to permit him to conduct more discovery, as his appellate brief failed to explain how the additional discovery would have allowed him to respond to the summary judgment motion.

Simon v. Tudor Ins. Co., No. 05-12-004430CV

The Court of Appeals has affirmed in part and reversed in part a summary judgment in favor of a law firm in a suit to recover attorney fees from its former clients. The opinion is quite lengthy and covers a number of topics. The first issue is evidentiary, as the Court decided that the trial court did not abuse its discretion in striking the affidavit of one of the defendants, in which he averred that the defendants did not owe the fees because they were not “reasonable and necessary” to the engagement. The engagement letter provided that the law firm was to perform “[r]easonable and necessary legal services . . . which [the firm] and [the clients] decide are reasonable and necessary to perform the Engagement.” Nevertheless, the affiant was not an attorney and was therefore not qualified to offer an opinion on the reasonableness or necessity of the fees. The Court also affirmed the summary judgment ruling in favor of the law firm’s cause of action for sworn account, as the defendants had failed to answer it with a verified affidavit that disputes the specific facts on which such a claim is based. The Court further affirmed that the defendants had not produced any evidence of recoverable damages on their counterclaims, since the only harm they had shown was having to incur attorney fees to defend themselves in this lawsuit. However, the Court reversed that portion of the judgment that held the president of one defendant jointly and severally liable for payment of the debt owed by one of the corporate defendants, and remanded the case to the trial court for further consideration of the attorney fees that had been assessed against that individual.

Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., No 05-11-01718-CV

The Court of Appeals has reversed and remanded a summary judgment ruling obtained by Minyard Food Stores. The trial court ruled that Minyard was entitled to a setoff against North Central Distributors’ receivable. The receivable was originally owned by NCD Acquisition, an entity formed by members of the Minyard family to acquire the assets of North Central. After NCD Acquisition defaulted on its note, North Central foreclosed on NCD’s assets, including the Minyard Food Stores receivable. But in the meanwhile, NCD Acquisition also breached a sublease agreement with Minyard. NCD and Minyard settled that dispute with the lessor, but reserved its right of offset against NCD. Minyard contended that it was a buyer in the ordinary course of business for the goods underlying the NCD Acquisition receivable, but the evidence on that point was disputed. There was also conflicting evidence as to the proper date for the offset, as some of the unpaid rent may have accrued after Minyard received notice of North Central’s foreclosure on NCD’s receivable, and much of the claimed offset appeared to be for future rent payments. In light of these disputed fact issues, the Court of Appeals reversed and remanded the case to the trial court.

N. Central Distribs., Inc. v. Minyard Food Stores, Inc., No. 05-12-00418-CV

In 1986, Summers Electric Company extended credit to Stuart Electric, Inc., which backed its credit application with the personal guaranty of its owners, Barry and Zac Stuart. The guaranty was in favor of Summers or its assigns, for all money that may come to be due to Summers by Stuart Electric. Although Summers’ ownership and name changed over the years, Stuart continued to do business with the company.  In 2008, Barry and Zac sold Stuart Electric. The new ownership group continued to purchase materials from Summers, but failed to pay up. Summers turned to the Stuarts to make good on their 22-year-old written guaranty, which they refused. Summers then filed suit, obtaining a default judgment against Stuart Electric and a summary judgment against Barry and Zac.

On appeal, the Court of Appeals first sustained the trial court’s decision not to strike the Stuarts’ affidavits, in which they testified that Summers’ employees had told them they were no longer on the company’s account and were not responsible for any purchases made by Stuart Electric. Although the Stuarts were interested witnesses, their affidavits were still admissible because they were sufficiently “clear, positive, and direct, free from contradictions or inconsistencies, and could have been readily controverted.”  Tex R. Civ. P. 166(a)(c). That affidavit testimony also supported each of the elements of the Stuarts’ promissory estoppel defense, which precluded the trial court’s grant of summary judgment against them. The Court therefore reversed and remanded for further proceedings.

Stuart v. Summers Group, Inc., No. 05-12-00489-CV

Dan Lopez sues RS Clark & Associates for violating the Debt Collection Practices Act, the Texas Debt Collection Practices Act, and the DTPA. The dispute apparently arose out of a $54.34 cleaning charge assessed and turned over to the collections agency by Lopez’s former apartment complex. Lopez based his case on four unanswered phone calls the agency made to his residence during daytime hours, as well as its failure to inform credit reporting services that Lopez disputed the debt. The collections agency counterclaimed for sanctions and attorney fees, alleging that Lopez’s suit was groundless and brought in bad faith. The trial court granted summary judgment for the collections agency and, after a bench trial, awarded it attorney fees as a sanction against Lopez. On appeal, the Court of Appeals held that Lopez had failed to establish that he gave the collections agency written notice he no longer wished to communicate with them, as his letter only directed them not to call his cell phone or work number. With respect to his home phone, the letter stated only that it was “inconvenient” for them to call him at home. The letter also did not dispute the validity of the debt, stating instead that he just did not want it reported to the credit agencies. The Court of Appeals therefore affirmed.

Lopez v. RS Clark & Asscos., Inc., No. 05-12-00868-CV

Miller Global Properties worked with Marriott International to build a resort and golf club in the Hill Country outside San Antonio. They entered into a series of agreements for planning and budgeting the resort, but the final contract by which Miller purchased the report included an “as-is” sale provision. In that clause, Miller acknowledged and agreed that Marriott had not made any representations, and went on to “specifically negate and disclaim any representations.” A related contract regarding the construction of the property also contained a merger clause. The cost to build the resort proved to be $90 million higher than the budget, and Miller sued Marriott on con-tort claims, alleging that Marriott had misrepresented that the plans and specifications for the resort were essentially complete and that the budget would be adequate to complete construction.

The trial court granted summary judgment for Marriott, which argued that the contracts negated the element of reliance necessary to support Miller’s tort claims. The Court of Appeals affirmed, holding that the as-is provision negated and disclaimed the extrinsic representations Marriott was alleged to have made to Miller. That met the standard set by Italian Cowboy Partners, Ltd. v. Prudential Ins. Co., 341 S.W.3d 323 (Tex. 2011), which had permitted a misrepresentation case to proceed where the parties’ contract only disclaimed the existence of representations about the subject matter of the contract, without also disclaiming reliance on any representations made outside the contract. Because the contracts negotiated between Miller and Marriott disclaimed both the existence of additional representations and any reliance on them, Miller’s claims were barred.

Miller Global Props., LLC v. Marriott Int’l, Inc., No. 05-12-0822-CV

After Brown missed at least twenty-five mortgage payments, the Bank sent Brown notice of default and he failed to cure. The Bank sought a declaratory judgment authorizing a non-judicial foreclosure sale of the property, and obtained summary judgment. Brown appealed, and the Court affirmed. First, the Court found that Brown’s attacks on the admissibility or competency of the Bank’s summary judgment evidence were largely inadequately briefed. Second, the Court rejected Brown’s argument that the trial judge erred by denying Brown a continuance of the summary judgment hearing because (1) Brown’s motion for continuance did not mention the summary-judgment hearing, (2) Brown failed to preserve error because there was no ruling on his motion, and (3) Brown failed to submit evidence demonstrating the materiality of the purportedly previously unavailable summary-judgment evidence. Finally, the Court held that Brown failed to show reversible error due to the clerk’s late filing of the record on appeal.

Brown v. Bank of America

In a rare en banc opinion, the Court of Appeals has clarified the standards for asserting a no-evidence motion for summary judgment. The owners of Gloria’s restaurants sued one of their long-time managers and his business partner after the manager left to start a new restaurant, Mario Sabino’s. The new restaurant served similar food, and Gloria’s claimed that the defendants had misappropriated trade secret recipes and tortiously interfered by recruiting Gloria’s employees. The defendants filed a motion for summary judgment that asserted Gloria’s had no evidence of “one or more” of the elements of Gloria’s claims. The motion listed all the elements of each of the claims, but failed to specifically identify which of those elements were being challenged. Gloria’s therefore attempted to respond with evidence of each element of its entire case, but the trial court granted the defendants’ motion on all claims.

The majority opinion rejected that shotgun approach to summary judgment practice. Rule 166a(i) and its supporting comments require the movant to specifically state which elements of a claim are being challenged, and the defendants’ invocation of “one or more” of the elements of Gloria’s case failed to meet that threshold. The Court declined to interpret “one or more” as meaning “each and every,” as the defendants argued on appeal. The Court also stressed that a no-evidence motion is intended to assess the proof of an element that the movant believes in good faith to be unsupported by evidence. In seeking to challenge every aspect of Gloria’s claims, the defendants sidestepped the specificity requirement of Rule 166a(i) and improperly forced Gloria’s to prove up its entire case.

The majority also rejected the defendants’ argument that Gloria’s had waived its complaint by responding to the motion in its entirety, following a line of cases that permit a party to challenge the legal sufficiency of a summary judgment motion for the first time on appeal. Justice Evans O’Neill dissented based on that waiver point, arguing that the motion met the “fair notice” pleading standard, that Gloria’s attempt to meet all the elements of its case demonstrated it understood what was being challenged, and that Gloria’s should have objected or specially excepted to the motion in order to raise the issue and preserve it for appeal.

Jose Fuentes Co., Inc. v. Alfaro, No. 05-11-00228-CV (majority)

Justice O’Neill’s dissenting opinion

The Court of Appeals has issued a lengthy opinion in a breach of contract case. Defendant Richard Berryman and his company, Berryman South Fork, claimed that J. Baxter Brinkmann International Corp. had constructively terminated the contract and owed them $160,000 in unreimbursed expenses. JBBI got to the courthouse first, however, and claimed that Berryman had breached the contract by failing to continue his performance. The trial court granted summary judgment in favor of JBBI and awarded it more than $500,000 in damages, attorney fees, and interest.

Among many other issues, the Court of Appeals held that JBBI could not recover approximately $290,000 in breach of contract damages for payments it made to Berryman during the months following his attempted repudiation of the contract. That holding flows from the 88-year-old case of Osage Oil & Ref. Co. v. Lee Farm Oil Co., 230 S.W.2d 518 (Tex. Civ. App.–Amarillo 1921, writ ref’d). In that case, the court held that when a party is served with notice that the other party is repudiating their contract, the first party cannot continue to perform it and thereby increase the damages to which it would otherwise be entitled. However, that principle apparently does not extend beyond the breach of contract claim, as the Court’s opinion affirmed JBBI’s award of even greater damages for money had and received. The opinion also includes multiple discussions regarding the preservation of issues for appeal, including through pleadings, evidentiary objections, and briefing on appeal.

Berryman’s South Fork, Inc. v. J. Baxter Brinkmann Int’l Corp., No. 05-12-00492-CV

Pattie and Warren Gilbert were married in 1959. During the course of the marriage, Pattie inherited investment assets from her parents and uncle, and in 1993 she rolled those assets into a trust for the benefit of the couple’s daughter. The following year, Pattie and Warren entered into a post-nuptial agreement that defined their separate and community property, including Pattie’s separate interest in the trust assets. Shortly thereafter, Beal Bank obtained a judgment against Warren for default on a note. In 2008, the bank sued Pattie and Warren, seeking to set aside the transfer of Pattie’s inherited assets to their daughter’s trust as a fraudulent transfer. The parties filed cross-motions for summary judgment, and the trial court ruled in favor of the Gilberts. The Court of Appeals affirmed.

Property acquired during the course of a marriage is presumed to be community property, and the bank sought to take advantage of that presumption in collecting on its judgment against Warren. In this case, however, the undisputed evidence established that Pattie had inherited the assets in the trust, and that made them her separate property. The Court of Appeals also rejected the bank’s argument that interest and dividends on those assets were community property that became commingled with the separate property in the trust account. The earnings from Pattie’s separate property might have been community property, but they were “sole management” community property, and that meant they were not subject to any non-tortious liability of her spouse. Because the bank was only a creditor of Warren, and not Patttie, her transfer of those assets to the trust was not a fraudulent transfer as to the bank.

Beal Bank v. Gilbert, No. 05-12-00692-CV

In 1977, Bullough married Hundley because she told him she was pregnant with his child – Dale Jr. – who was born the following year.  In 2004, the parties divorced after a two-day trial, and the trial court made a division of the parties’ marital estate.  More than six years later, Bullough learned that Dale Jr. was not his biological son through DNA testing.  A few months later, the Will Slip 2011 Trust was created for the benefit of Bullough and the children of Dale Jr.  Bullough then assigned his claims against Hundley to the Trust, and seventeen days later, the Trust filed suit.

The essence of the Trust’s claims was that Hundley deceived Bullough into marrying her by lying about the paternity of Dale Jr., and continued to lie throughout the marriage.  As damages, the Trust sought the value of the support Bullough provided Hundley during more than 20 years of marriage, the value of the assets Hundley received as part of the divorce, and the parties’ art collection.  The trial court found that the 2004 final divorce decree barred the Trust’s claims and granted Hundley’s motion to dismiss and motion for summary judgment.  The Court of Appeals affirmed, holding that because the Trust’s claims arise out of facts that could have been litigated in the divorce, they were barred by res judicata.

Hevey v. Hundley

PDBI and Varel entered into an agreement in which PDBI agreed to act as Varel’s authorized sales representative by providing “sales and technical service” to certain customers.  Pursuant to this contract, PDBI met with MMS several times to pitch Varel’s products and provide product price sheets, product requirements, and technical services.  Varel then cancelled its agreement with PDBI, and informed PDBI that any sales to MMS would be made directly by Varel.  MMS subsequently began buying products directly from Varel.  PDBI sued Varel, alleging that PDBI procured MMS as a buyer of Varel products, provided “sales and technical services” to MMS, and was “entitled to commission on sales” to MMS.  The Court of Appeals reversed the trial court’s grant of summary judgment in favor of Varel.  The Court reasoned that PDBI’s evidence raises a fact issue whether it rendered sales and technical service to MMS under the terms of its contract with Varel.

PetroDrillBits Int’l v. Varel Int’l Indus., No. 05-12-00406

What, you may be asking yourself, is a viatical settlement? A new securities opinion from the Dallas Court of Appeals provides the answer to that question, and in the process examines the scope of the Texas Securities Act. Life Partners, Inc. is in the business of buying life insurance policies and reselling interests in those policies to investors, transactions known as “life settlements” or “viatical settlements.” The purchasers of those policies are not told what Life Partners paid for them, and Life Partners remains the owner of the policies while holding them as the agent for the investors. Several of the company’s investors filed suit for violations of the TSA, alleging that the life settlements were actually investment contracts that qualified as securities under the TSA. The trial court court granted summary judgment for Life Partners.

The case turned on the question of whether the profits sought by the investors of these viatical settlements were derived “solely from the efforts of others,” one of the four factors for determining whether investment contracts qualify as securities under SEC v. W.J. Howey Co., 328 U.S.293 (1946) and Searsy v. Commercial Trading Corp., 560 S.W.2d 637 (Tex. 1977). After a detailed analysis of a line of cases holding that viatical settlements were not securities, the Court disagreed. Because the investors were dependent upon Life Investors for the evaluation and purchase of the policies, and because they were also required to rely on Life Investors for information about the insureds, the profits were indeed derived solely from the efforts of Life Partners. In so holding, the Court expressly disagreed with the Waco Court of Appeals, which had reached the opposite conclusion in a previous case, and instead followed rulings by the 11th Circuit, the Tyler Court of Appeals, and several courts in other states. In doing so, the Court rejected Life Partners’ argument that it was engaged in the business of selling insurance, which is exempted from regulation by the TSA. Finally, the Court determined that while the claims of the two lead plaintiffs were barred by limitations, some of the claims of two other plaintiffs had been timely filed and could proceed on remand to the trial court.

Given the split of authorities, this case would seem to be a candidate for review by the Texas Supreme Court. We’ll keep you updated if it proceeds in that direction.

Arnold v. Life Partners, Inc., No. 05-12-00092-CV

Today’s the day for successor cases from lawsuits in 2004. Alexandrea Crutcher originally sued DISD for discrimination and retaliation in that fateful (for 2013 purposes) year.  That lawsuit was resolved by settlement. In 2009, Crutcher interviewed for a job as a basketball coach and science teacher. After some initial recommendations that she be hired, the school hired a different candidate. Crutcher filed suit under the Texas Commission for Human Rights Act, alleging retaliation for her previous retaliation and discrimination lawsuit. Under the TCHRA, employers cannot retaliate or discriminate against an employee or applicant for filing a discrimination complaint. Tex. Lab. Code § 21.055. But Crutcher failed to meet her initial burden of coming forward with either direct or circumstantial evidence that the adverse employment decision was motivated by discriminatory purpose.

The principal who initially recommended Crutcher’s hiring did so after she learned of the earlier lawsuit, and only withdrew the recommendation later on. The person in the HR department who was responsible for making the employment decision was unaware of the first lawsuit, and a paperwork error had caused a misdescription of the job that was actually available. Allegations of hanky panky with a colleague in a supply closet also make a cameo appearance in the opinion, along with a bunch of other facts that the Court of Appeals ruled had adequately negated any causal connection between the decision not to hire Crutcher with her previous lawsuit. The Court therefore concluded that Crutcher had failed to show a prima facie case of retaliation, and that DISD has negated any showing of discriminatory intent in any case. As a result, the Court affirmed the trial court’s grant of summary judgment in favor of the school district.

Crutcher v. Dallas Indep. Sch. Dist., No. 05-11-01112-CV

Majestic Cast, Inc. entered into a contract with ProCon Paving to serve as a subcontractor on the construction of a Montessori school. Citing numerous complaints, Majestic Cast terminated the contract and filed suit against “Majed Khalef d/b/a ProCon Paving and Construction, Inc.” for theft, conversion, breach of contract, and fraud. Majestic Cast’s posited that Khalaf was using ProCon’s corporate form as an empty shell to avoid liability, and that he should therefore be held personally liable as an alter ego of ProCon. The trial court granted traditional and no-evidence motions for summary judgment, and Majestic Cast appealed. The Court of Appeals reversed as to the claims for theft, conversion and fraud. Whereas Majestic Case had pleaded those tort claims against Khalaf individually, Khalaf had sought summary judgment only by arguing that Majestic Cast could not pierce the veil to hold him liable on ProCon’s contract.  Because a corporate agent can be held liable for his own fraudulent or tortious acts even while acting within the scope of the agency, Khalaf was not entitled to summary judgment on the tort claims. As to Majestic Cast’s breach of contract claim, however, the Court held that there was no evidence to raise a fact issue on any theory for disregarding the corporate fiction in order to make Khalaf individually liable for breach of the Majestic Cast-ProCon contract. Thus, summary judgment was affirmed only as to the contract claim, with the tort claims remanded for further proceedings.

Majestic Cast, Inc. v. Khalaf, No. 05-12-00112-CV

Marquis Acquisitions and several related entities were sued after a fire at an apartment complex killed three people. The defendants were covered by several layers of insurance, which assumed the defense of the case in successive order as policy limits were exhausted. At each layer, one or another of the defendants sought to reject the insurers’ choice of defense counsel and to be represented instead by the business partner and personal attorney of the defendants’ primary owner. Marquis eventually filed suit against Steadfast Insurance, and that move finally created a conflict between Marquis and the insurer’s chosen counsel that caused the attorney to withdraw. Marquis thereafter sued the insurer to recover “the attorney fees it expended in getting Steadfast to retain separate counsel” for Marquis and some of the other insureds. The trial court granted summary judgment for the insurer, and the Court of Appeals affirmed. Marquis could not recover for breach of the insurance contract because it could not identify any specific terms or conditions that required Steadfast to immediately hire separate counsel based on an insured’s unspecified and unsubstantiated allegations of a conflict of interest. Marquis also could not recover the attorney fees it paid to Shaw as damages, since attorney fees are only recoverable “in addition to” the recovery of actual damages, not as independent damages themselves. The court went on to reject Marquis’ claim that Steadfast’s conduct had constituted an unfair or deceptive act or practice under the Insurance Code because Marquis could not point to any alleged misrepresentation by Steadfast, and further held there was no evidence that the insurer had any duty to independently identify conflicts among its insureds when appointing legal counsel to defend them.

Marquis Acquisitions, Inc. v. Steadfast Ins. Co., No. 05-11-01663-CV

With its motion for summary judgment, the plaintiff submitted affidavits testifying to, among other things, the terms of an unsigned lease agreement with its former tenant, a law firm.  The defendant generally objected to these affidavits as inadmissible hearsay, but failed to specify which portions of the affidavits contained the hearsay.  The Court of Appeals held that, although an affidavit containing hearsay may not support summary judgment, the opposing party must make “specific objections to each component part of a particular piece of evidence to preserve error on appeal.”  Because the defendant simply objected that “the Affidavits contain inadmissible hearsay,” the Court of Appeals held that they had not specifically objected to the allegedly inadmissible statements and concluded that the trial court properly considered the affidavits.

Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd.

IBP leased a restaurant space to Pizza Associates.  Graman executed the lease for Pizza Associates as its president, and executed a written guaranty, guaranteeing the payment and performance of the lease.  IBP terminated the lease after Pizza Associates failed to comply with its terms.  IBP sued Pizza Associates for breach of the lease, and sued Graman pursuant to the guaranty.  The trial court granted IBP’s motion for summary judgment, to which Graman had filed a response but Pizza Associates did not.  Graman appealed.

The court of appeals held that Graman did not raise a viable challenge to the trial court’s summary judgment against them because their arguments did not address the obligation to pay under the guaranty.  Instead, Graman raised issues related to the lease, but Pizza Associates’ liability was settled.  The court of appeals determined that Graman cannot avoid liability under the guaranty by now questioning the settled underlying liability related to the lease.  The court of appeals also rejected Graman’s argument that IBP was required to segregate its fees between the breach of lease suit and the breach of guaranty claim.  The court of appeals affirmed the trial court’s judgment.

Graman v. IBP Retail No. 5, L.P., No. 05-12-00565-CV

In a breach of contract case, a group of defendants appealed from the district court’s grant of summary judgment in favor of the plaintiff. The defendants argued that the plaintiff lacked standing to sue them because there was no evidence it had privity of contract with any of the defendants. The court of appeals rejected that argument, holding that the defendants were actually challenging the capacity of the plaintiff to sue or be sued. The plaintiff had standing to sue on the contract because it pleaded and proved it was “formerly known as” the party named in the agreement. As to the challenge to the plaintiff’s capacity, the court held that the defendants had been untimely in making that challenge, as the verified denial of capacity required by Rule 93 was only filed the morning of the summary judgment hearing — not 7 days before as required by Rule 63. The trial court’s summary judgment order indicated that it had not considered the amended pleading, stating that it had considered the “pleadings timely filed,” not all of the pleadings in the case. Nor was the issue of capacity tried by consent as part of the summary judgment proceeding, since the response to the summary judgment motion raised no issue of the plaintiff’s capacity to bring suit. Likewise, the court of appeals rejected the claim of one of the individual defendants that he could not be personally liable on the contract because he had signed it as CEO of the defendant corporation. Because the defendant had not timely filed a verified denial of his capacity to be sued individually, that issue was also waived. As a result, the trial court’s judgment was afffirmed.

John C. Flood of DC, Inc. v. SuperMedia, LLC, No. 05-12-00307-CV

General Capital Group, a German investment firm, claimed that it entered into an oral deal with AT&T in January 2009 to broker the purchase of T-Mobile for a 2% commission on what was to be a $39 billion deal. In May 2009, GC held another meeting with AT&T, during which AT&T indicated it was not interested in pursuing the transaction at that time. After two years with no communication between GC and AT&T, the latter announced that it intended to acquire T-Mobile. GC approached AT&T, which denied that it had any deal with GC.

GC filed suit for breach of contract.  During the pendency of the suit, AT&T announced that it was not longer going to pursue the T-Mobile deal due to opposition by the Justice Department.  With no sale on which to base its claim for a massive commission, GC changed its theory to to fraud, seeking recovery of $30 million for the “reasonable value of its services.” The trial court granted summary judgment, and the court of appeals affirmed. GC could not recover for fraud because even if AT&T had agreed to a 2% success fee, GC could not show harm because there hadn’t ever been any success for such a fee to be based on. Likewise, GC could not recover for quantum meruit because it has no expectation of being paid unless there was a successful acquisition.

General Capital Group v. AT&T, No. 05-12-00446-CV

Robison filed a medical malpractice suit against Texas Health Resources, Inc. d/b/a Texas Health Presbyterian Hospital Allen a/k/a Texas Health Allen (“THR”).  However, Robinson was treated by Texas Health Presbyterian Hospital Allen (“THPHA”), and THR does not do business as THPHA nor did THR provide any of the care at issue in Robinson’s claim.  The trial court granted summary judgment for THR, and dismissed Robison’s claims due to the misidentification.  Robinson appealed, claiming that her original petition against “d/b/a [THPHA]” constituted an actual suit against THPHA.  The court of appeals disagreed, finding that the “d/b/a” designation does not make the entity a party to the lawsuit. Further, nothing in the record showed that THPHA has been an assumed name for THR or vice-versa. Thus, the court of appeals affirmed the judgment of the trial court.

Robison v. Texas Health Resources, No. 05-11-01376-CV

Cousins and business partners Matthew and J.W. Jenkins agreed to buy an investment property out of foreclosure. They claimed the negotiated price was to have been $250,000, but the closing documents listed the sale price as $349,000. Stewart Title Co. closed the sale, and J.P. Morgan Chase accepted assignment of the funded loan. The Jenkins sued the title company and the bank on theories including negligent misrepresentation, breach of fiduciary duty, intentional infliction of emotional distress, invasion of privacy, and defamation.

Stewart Title and Chase both filed traditional and no-evidence motions for summary judgment. The cousins did not file any response, and the trial court granted summary judgment for both defendants. The Jenkins moved for reconsideration, which the trial court denied. The Jenkins appealed from the denial of the motions for reconsideration, but the court of appeals affirmed. Although the motions for reconsideration proffered evidence contesting the prior summary judgment motions, the plaintiffs did not ask for leave of court to file that evidence, nor did they demonstrate good cause for failing to respond to the original motions in a timely manner. Hence, there was no abuse of discretion in the trial court’s decision to deny reconsideration of the summary judgment rulings.

Jenkins v. Stewart Title Co., No. 05-12-00685-CV

Henning obtained a mortgage loan from Willow Bend Mortgage, which was later sold to IndyMac Mortgage Services, a division of OneWest Bank. IndyMac notified Henning that his loan was in serious default, and that failure to cure the default could result in foreclosure. Henning filed suit against OneWest, and OneWest filed a counterclaim for foreclosure. The trial court granted OneWest’s no evidence motion for summary judgment as to all of Henning’s claims, and OneWest’s summary judgment motion on its counterclaim. Among other issues, Henning alleges that the trial court erred by granting OneWest’s motion for summary judgment on its counterclaim for foreclosure.

The court of appeals rejected Henning’s claim that the assignment of the note and deed of trust from IndyMac to OneWest was invalid because it was signed by a “robo-signer,” ruling instead that the note was endorsed in blank and OneWest was in possession of the original note. Thus, there was no genuine issue of material fact respecting the “chain of title” on the note. The court of appeals also concluded that Henning failed to raise a genuine issue of material fact as to default. The court found no evidence in support of Henning’s claim that OneWest’s documents reflect confusion and misrepresentations regarding its claim of default. The court also rejected Henning’s claim that OneWest’s “loss mitigation obligations” precluded foreclosure because the record did not show that the note or deed of trust “expressly incorporated” any “loss mitigation obligations.” Thus, the court affirmed summary judgment for OneWest on its foreclosure counterclaim.

Henning v. Onewest Bank FSB, No. 05-12-00078-CV

Rickey Wayne Tolbert sued his former attorney, George Otstott, for legal malpractice. Tolbert is a pro se prison inmate, and was incarcerated at the time Otstott settled three separate personal injury matters on Tolbert’s behalf. The trial court granted summary judgment for the defendant based on his limitations defense, and since the underlying lawsuits were settled between 1987 and 1991, you would think that’s probably a meritorious defense. The court of appeals agreed. As a matter of law, a reasonably diligent person, after receiving a $1,012 check from his attorney, followed by sixteen years of silence, would have investigated and discovered that the lawyer had settled all three claims. Thus, the two year limitations periods for legal malpractice expired long before the filing of Tolbert’s lawsuit in 2010.

Tolbert v. Otstott, No. 05-12-0024-CV

Several years ago, the court of appeals affirmed most of a judgment against Spin Doctor Golf, but reversed the trial court’s grant of summary judgment sustaining Paymentech, L.P.’s statute of limitations defense. Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354, 363 (Tex. App.-Dallas 2009, pet. denied). On remand, the trial court denied Spin Doctor’s motion to modify the scheduling order to permit it to designate expert witnesses. The court denied that motion, and granted Paymentech’s traditional and no-evidence motions for summary judgment.

Spin Doctor had sought to designate five experts prior to the first summary judgment ruling and appeal, but that designation came months after the deadline under the scheduling order then in effect, and the trial court determined Spin Doctor had not shown good cause for the late designation of the experts. On remand, the trial court again rejected Spin Doctor’s request to designate experts. The court of appeals sustained that ruling, concluding that (1) there was a valid scheduling order in effect and Spin Doctor had blown well past it, (2) Spin Doctor’s need for a lost profits expert did not establish good cause for missing the deadline, (3) Paymentech’s failure to produce certain documents did not explain why Spin Doctor was prevented from timely designating the experts, and (4) the trial court could have reasonably determined that Paymentech would be unfairly surprised by the experts’ testimony because the record did not disclose any proffered report from those experts, leaving Paymentech to take discovery in the dark. The court of appeals also affirmed the summary judgment ruling, holding that the affidavit of Spin Doctor’s president had been properly stricken the first time through the trial court, and that its lost profits analysis was conclusory in any event.  With no evidence of damages, the judgment against Spin Doctor was affirmed.

Spin Doctor Golf, Inc. v. Paymentech, L.P., No 05-11-0104-CV

Three months ago, the court of appeals affirmed summary judgment in favor of an attorney who was alleged to have signed a fraudulent verification of deposit form on behalf of the borrower in a $1.9 million loan. In another appeal arising out of that same loan, Bank of Texas has managed to reverse summary judgment in favor of another attorney alleged to have issued letters “To Whom It May Concern” confirming the borrower’s employment and access to the same two trust accounts. The witnesses all told different stories about who prepared and signed the letters and who they had been provided to. Based on that conflicting evidence, the court of appeals concluded that the bank had submitted sufficient evidence to defeat the attorney’s no-evidence motion. Testimony of the law office’s business practices was sufficient to show that it was within the scope of his employees’ duties to sign the attorney’s name to various documents, and that the representations were made in the course of his business as an attorney. The court also rejected the defendant’s attempt to invoke the economic loss rule, reiterating the Supreme Court’s recent holding that the doctrine only applies to the parties to a contract, not between strangers to the contract. See Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 418 (Tex. 2011). The court went on to reverse the trial court’s grant of traditional summary judgment in favor of the attorney, holding that the attorney had not conclusively negated the authority of his employees to have prepared and signed the letters. And unlike the earlier case, where Bank of Texas could not show justifiable reliance because the verification form was not addressed to the bank, the letters here were addressed “To Whom It May Concern,” raising the inference that it was reasonable for anyone, including the bank, to rely on them.

Bank of Texas, N.A. v. Glenny, No. 05-11-01478

Citibank sued Albert Evans to collect approximately $10,000 in credit card debt. Evans appealed from the trial court’s grant of summary judgment for the bank, and the court of appeals affirmed. Among other things, Evans argued that he had never agreed to, or even seen, Citibank’s credit card agreement, that Citibank’s credit card statements were erroneous, and that the account statements were never delivered to him. However, the trial court struck those portions of Evans’ summary judgment affidavit as conclusory. The court of appeals held that the trial court had not abused its discretion in that evidentiary ruling, noting that Evans’ denials of the documents were not accompanied by any underlying facts or documentation that supported his denial. Without that affidavit testimony, Evans had no other evidence showing that he had not agreed to the amounts owed as shown by Citibank’s credit card statements, making summary judgment appropriate on the bank’s account stated claim.

Evans v. Citibank (S.D.), N.A., No. 05-11-01107

Lorrie Smith filed suit for judicial foreclosure of a judgment lien against three lots in a Frisco subdivision. Smith had obtained her judgment against Shaddock Builders & Developers, and she recorded an abstract of the judgment on July 15, 2010. Two years earlier, Shaddock had acquired the three lots and immediately conveyed them to another company, Basin, Ltd. The conveyance from Shaddock to Basin was recorded, but the original sale to Shaddock went unrecorded until the seller corrected its “oversight” exactly one day before Smith recorded her judgment lien. Shortly thereafter, Basin conveyed the lots to Sumeer Homes, which built houses and sold the lots to the current homeowners. Each of those subsequent transactions was recorded. Seeking to foreclose on the lots in order to collect on her judgment against Shaddock, Smith sued the homebuilder, the homeowners, their mortgage lenders, and the title company. The defendants moved for and obtained summary judgment against Smith.

On appeal, Smith argued that the conveyance to Shaddock had been fraudulently backdated, and that it had really been filed the day after she recorded her judgment lien. According to Smith, that meant that legal title to the property had not been transferred to Shaddock until after she filed her lien, therfore making the three lots subject to her claim. The court of appeals rejected that argument. Although “legal title” to property serves as evidence of ownership, it does not constitute full and complete title to the property. What really matters when it comes to a judgment creditor’s lien is equitable title to the property, which passes to the purchaser when it pays the purchase price and fulfills the obligations of the contract of sale. In this case, Shaddock had acquired equitable title to the lots three years before Smith recorded her lien, and Shaddock had immediately transferred that title to Basin. Equitable title is a complete defense against the lien of a judgment creditor. Because Basin had acquired equitable title long before Smith acquired her judgment against Shaddock, that title subsequently passed to Sumeer Homes and the subsequent homebuyers free and clear of Smith’s judgment judgment against Shaddock. Nor did Shaddock hold “legal title” to the three lots on the day Smith recorded her lien. The summary judgment evidence showed that the original seller had recorded the sale the day before, and because Shaddock had conveyed the property to Basin by warranty title two years earlier, legal title to the property passed instantly to Basin when the sale to Shaddock was finally recorded. The court of appeals therefore affirmed the trial court’s grant of summary judgment.

Smith v. Sumeer Homes, Inc., No. 05-11-01632-CV