Texas R. Civ. P. 301 says that a judgment “shall conform to the pleadings.”

In In the Interest of SMG and AIG, a petition for name change asked that two children have their name changed from “Gonzalez Rodriguez” to “Rodriquez.” At the hearing, the petitioner said that “Gonzalez” could also be the middle name.

(In Mexico, the convention is to have two last names–a practice that does not always match with American legal forms.)

The children ended up with the hyphenated last name of “Gonzalez-Rodriguez.” The Fifth Court reversed because that relief did not comport with Rule 301. It expressed no view on the sufficiency of the evidence to support such a change. No. 05-22-00937-CV (June 13, 2023) (mem. op.).

A trust administrator based in South Dakota was not subject to personal jurisdiction in Texas: “South Dakota Trust Company is a trustee in a passive role in that its roles and duties are limited and there is no evidence it sought to conduct business in Texas. Indeed, the Trusts are managed completely in South Dakota. Similarly, the fact that the Trusts’ beneficiaries are Texas residents is insufficient to assert jurisdiction over South Dakota Trust Company.” Willow Tree Consulting Group LLC v. South Dakota Trust Co., LLC, No. 05-22-00176-CV (June 1, 2023).

The Fifth Court reversed a sanction, holding, inter alia, that the trial court’s inherent power did not extend to the matter at hand: “Frenkel’s failure to investigate the source of the Document at Issue before making his bold proclamation that the document was not forged was ill advised. However, reviewing the evidence in the light most favorable to the trial court’s ruling, we cannot conclude the evidence gives rise to an inference of intent or willfulness or indicates improper motive.” Frenkel v. Courtney, No. 05-21-01114-CV (June 9, 2023) (mem. op.) (citation omitted).

Reviewing its earlier precendent about a limitations-tolling statute, the Texas Supreme Court held in Ferrer v. Almanza that:

“Ashley held that “absence from this state” under [Tex. Civ. Prac. & Rem. Code ] Section 16.063 depends not on physical location but, rather, on whether a defendant is subject to personal jurisdiction and service. That holding applies to resident and nonresident defendants with equal force. If a defendant is subject to personal jurisdiction in Texas and amenable to service, he or she is not absent from Texas under Section 16.063, and Section 16.063 does not apply.”

No. 21-0513 (Tex. April 28, 2023). A dissent argued that the majority strayed too far from an appropriate focus on the statutory text.

“Appellees substantially invoked the judicial process to appellants’ detriment when they chose the forum and filed suit in Collin County, Texas, in 2017, alleging numerous causes of action against appellants. Appellees did not raise forum non conveniens until 2020—after the parties had litigated back and forth, and after the trial court had partially granted appellants’ motion for summary judgment. Under these circumstances, allowing the plaintiff-appellees to use forum non conveniens—the point of which is to protect defendants from plaintiffs’ vexatious forum choices—to dismiss defendant-appellants’ counterclaims would be to turn the doctrine on its head.”

Munro v. Jagpal, 05-21-00125-CV (June 9, 2023) (mem. op.) (footnote omitted, emphasis added).

In the 2021 case of Aerotek v. Boyd, the Texas Supreme Court differed with the Fifth Court about the interplay of evidence rules and the Federal Arbitration Act. That case involved electronic signatures. he Fifth Court returned to this general subject, but on a different issue, in Fox v. Rehab. & Wellness Centre of Dallas, LLC, a wrongful death action against a nursing home.

The supreme court has observed that the statute requires consideration of submitted “affidavits, pleadings, discovery, or stipulations.” Here, “[r]ather than submitting with their motion [to compel arbitration] any ‘affidavits, pleadings, discovery, or stipulations’ to support their motion, appellees attached to their motion only the two-page unauthenticated Agreement, and they submitted no evidence at the later non-evidentiary hearing.” (citation omitted).

The Fifth Court noted its precedent that would allow rejection of the motion on that record, but did not decide on that basis. It instead holding that the record had no evidence establishing the authority of a husband (the plaintiff) to sign the agreement on behalf of his wife (the decedent) – despite a “certification” to that effect in the agreement.

The case presents an interesting return to a potentially fruitful topic for opponents of arbitration–reminding that arbitration rights are favored if proven, but still must be proven. The case also suggests that nursing homes should be careful about documentation, as the requisite power and authority will not always be presumed. No. 05-21-000904-CV (June 5, 2023) (mem. op.).

The majority and dissenting opinions in Davis v. Homeowners of Am. Ins. Co. differed about how to apply Tex. R. Civ. 91a to a limitations issue in a homeowner-coverage dispute. Foornote 6 in the majority opinion provides an interesting analysis of what materials, attached to pleadings, are fairly considered as an actualy part of those pleadings:

“Rule 59 permits as ‘pleading exhibits’ only ‘[n]otes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense.’ …  Pleading exhibits are not evidence. They are exhibits in aid of, and to factually amplify allegations in, pleadings and, if used, must be incorporated by reference into the pleadings in some manner. In other words, they are viewed as constituting a part of the pleading to which they are attached. … [A] court may consider a movant’s pleading only to determine whether an affirmative defense has been properly raised in the pleading of the movant. Rule 59 hardly grants carte blanche to litigants to attach unauthenticated, hearsay, unduly prejudicial, or other traditionally objectionable documents to pleadings and have them considered as ‘evidence’ in the traditional sense. Rule 59 pleading exhibits merely imbue or augment the allegations of the pleading to which they are attached.”

No. 05-21-00092-CV (May 31, 2023) (citations omitted, emphasis in original).

Literature is filled with nonexistent books, such as the “Necronomicon” in the works of H.P. Lovecraft, the “Treatise on the Binomial Theorem” written by Sherlock Holmes’s menace, Professor James Moriarty, etc.

To that collection, we can now add Varghese v. China South Airlines, Ltd., 925 F.3d 1339 (11th Cir. 2019).

ChatGPT helpfully offered that opinion to a New York lawyer researching a technical limitations issue. Unfortunately for that lawyer, the opinion did not actually exist and neither did any of the cases that it purported to cite. An understandably vexed federal judge is now considering sanctions about the matter.

Language-model AI tools are extraordinarily powerful and making advances every day. But they aren’t designed to do legal research, and anything they say about a specific precedent needs to be verified (and not by asking ChatGPT to verify itself, as happened in the federal case cited above).

In Cato v. Smith-Cato, the Fifth Court reversed a default judgment when: “No one has asserted, and we do not find that the record contains any showing, that a return of service was filed with the trial court as required by [Tex. R. Civ. P.] 107. … Without proof of service, we cannot presume that service was valid.” No. 05-22-00068-CV (May 26, 2023) (mem. op.).

In describing the controlling legal principle, the Court cited authority running back to Roberts v. Stockslager, 4 Tex. 307 (1849). Showing the timelessness of this problem, in that case the legendary Chief Justice Hemphill confronted these facts:

“The return of the sheriff is that he left a copy of the writ and a true copy of the petition. This statement, without some additional facts as to the place or the person with whom the process was left, is unintelligible.”

And reached this conclusion, in language both archaic and modern:

“The provisions of the statute as to the mode of service and the fullness of the return are as plain as they are imperative. They cannot be mistaken, and the courts should not permit them to be disregarded. …  Every citizen is shielded by the Constitution from being deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by the due course of the law of the land.”

A participant in a parking-lot shootout was a licensee of the relevant business, rather than an invitee, on this record:

Despite Woodrum’s professed intention to purchase items at Walmart, there is no evidence that Woodrum made any purchases or even entered Walmart. Instead, the evidence shows Woodrum and Speights both arrived at the Walmart about the same time, confronted each other in the parking lot, and Speights shot Woodrum after a struggle over a gun. Thus, the record shows that, at the time of Woodrum’s injury, Woodrum had no business relationship with Walmart and was present in Walmart’s parking lot on business with Speights.

Woodrum v. Wal-Mart Stores Texas, LLC, No. 05-22-00561-CV (May 17, 2023) (mem. op.)

An unusual TRO challenge, involving a high-school transcript, and in which no response was filed to the challenger’s mandamus petition, produced several reminders about the requirements of Tex. R. Civ. P. 683 – including the required statement of irreparable injury:

The TRO simply states that the Chens have shown an irreparable injury because Jeffrey may be denied college admission, while also alleging that he had been denied admission to a number of schools. An irreparable injury, however, must be immediate “and not merely an injury that may arise at some point in the future.”  That Jeffrey may be denied admission to unnamed colleges and universities to which he has applied or may apply in the future does not evince immediacy, particularly when the Chens alleged the same imminent harm when they initiated the action in 2022. … There is no identification of pending admission decisions, planned or outstanding applications to any particular institutions, or the deadlines that may apply.

In re St. Mark’s School of Texas, No. 05-23-00369-CV (May 3, 2023) (mem.op.) (citation omitted and emphasis added).

Back during the pandemic, I got a copy of “Dallam’s Decisions.” It’s a one-volume work with the opinions of the short-lived Supreme Court of the  of Texas (1840-45, give or take). It’s fascinating stuff, some of that court’s work is terrible, and some is really insightful.

I wrote down some notes about how that court dealt with slavery, and recently turned those notes into a short article.

It just came out in the “Journal of the Texas Supreme Court Historical Society,” and you can read it starting at page 75 of this link. As you can see, I think those cases offer some good insights about our world, as well as that of the 1840s.

Fortuitously, a Justice with a mechanical engineering degree drew the opinion in Rosales v. Allstate Vehicle & Prop. Ins. Co., which involved the application of a (literal) statutory formula in a section of the Insurance Code, to answer the question whether the payment of all possible damages for a prompt-payment claim extinguished a claim for attorneys’ fees under the prompt-payment statute.

Here’s the formula, from section 542A.007(a) of the Insurance Code, edited slightly in the opinion for easier review:

In this case, the insurer paid the amount found by an appraisal on a home-damage claim (minus the deductible), plus an amount to cover any prompt-payment interest for the time period leading up to the payment. Under the statute, then, “the amount to be awarded in a [prompt-payment] judgment for a covered loss is presently zero dollars, and because the amount of attorney’s fees is a multiple of that amount, Chapter 542As formula must result in an award of zero attorney’s fees.”

The opinion also deftly summarizes the surprisingly voluminous federal district-court authority, distinguishing some adverse precedent as not accurately reflecting the Texas Supreme Court’s most recent guidance on similar issues. No. 05-22-00676-CV (May 16, 2023).

A strong receiver has a lot of influence (see, right). But that general principle does not automatically allow an affected party to supersede an order appointing a receiver, as illustrated by Mexico Foods Holdings, LLC v. Nafal:

At the supersedeas hearing, MFH argued that the receiver is “taking over our billion dollar company.” That is incorrect. The receiver is controlling a minority interest in MFH. MFH did not present any evidence that it will not be able to continue to operate its business during the receivership or that it would otherwise be harmed if it is not allowed to suspend enforcement of the order. In the absence of any evidence that refusal to allow MFH to supersede the order would cause it harm, we conclude the trial court did not abuse its discretion in denying MFH’s request to set a supersedeas bond.

No. 05-23-00108-CV (May 9, 2023) (mem. op., on motion to review supersedeas order).

Lisle v. Do-Mo Joint Venture arose from a dispute among neighbors about the care of the land between and around their respective properties. The case went to trial. The key damages question began:

and after some instructions, concluded:

Despite the benefit of the property-owner rule, an owner’s testimony was insufficient to support those figures when, inter alia, “the jury was asked to make separate awards for the damage caused by flooding and by trespassing trucks. However, Crandall made no effort to provide damages calculations resulting from these two categories; instead, Crandall provided a blanket, unsupported figure of $200,000 to fix the parking lot.” No. 05-22-00236-CV (May 10, 2023) (mem. op.).

A shareholder’s record request led to Third Eye, Inc. v. UST Global, Inc., which affirmed a judgment requiring compliance with the request. On the question whether the shareholder had an “improper purpose” for the request, the Fifth Court reminded that the “mere fact that stockholders seeking access to a company’s books and records are on unfriendly terms with the company is not a ground for denying mandamus relief,” and concluded:

“Given (1) UST’s undisputed evidence that Third Eye never provided it with the financial information it was contractually obligated to deliver, (2) UST’s stated concern regarding its investment in Third Eye, and (3) Third Eye’s own evidence that it began losing substantial business beginning in 2017, we conclude the evidence was factually sufficient to support the trial court’s conclusion that UST had a proper purpose in requesting to inspect Third Eye’s books and records.”

No. 05-22-00334-CV (May 3, 2023) (mem. op.).

1. As to the required contents of a mandamus petition, Tex. R. App. P. 52.3(j) says: “The person filing the petition must certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.”
2. Tex. R. App. P. 52.7 says: “Relator must file with the petition: (1) a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding … .”

The second requirement means an affidavit or a proper unsworn declaration, which ws not supplied in In re Lancaster: “[R]elators’ attorney declares that she has ‘reviewed the documents contained in the mandamus record’ and that they ‘are true and correct copies of the pleadings, orders, and documents they purported to be, which were filed, submitted, or received in the trial court proceedings and/or in the appellate proceedings in this matter.’ The attorney declares that the facts stated ‘in this affidavit are true and correct and are based upon [her] personal knowledge.’ But the attorney’s unsworn
declaration does not invoke the penalty of perjury.” No. 05-23-00381-CV (May 5, 2023) (mem. op.).

The winner of a substantial judgment in the Mexican courts, sought to domesticate the judgment in Texas under the Uniform Foreign Currency Money Judgments Recognition Act (referred to by the less-than-catchy acronym of  “UFCMJRA.”)

Dynaresource conceded that “the purported judgment debtor has no ties, no presence, and no assets in the forum state.”

The Fifth Court held that as a matter of due process, UFCMJRA could not be applied in such circumstances. The Court also concluded that a special appearance was the proper procedural vehicle to raise this challenge, and distinguished two earlier Houston cases on the general topic as involving a different jurisdictional issue and and a repealed statute. Dynaresource de Mexico S.A. de C.V. v. Goldgroup Resources, Inc., No. 05-21-00362-CV (May 2, 2023).

The issue in this case is not directly related to Mallory v. Norfolk Southern Railway Co. presently before the U.S. Supreme Court about the jurisdictional consequence of registering to do business in a state, but it involves a somewhat-similar interplay of a statute with traditional minimum-contacts principles.

The petitioners in In re Redbird Trails Apts, having been rebuffed once before due to problems with presenting a set of in camera documents to the court of appeals, encountered yet more problems on a second try:

In their re-filed petition, relators inform us that the trial court has destroyed the copy of the records it had inspected, but DFPS has printed out another copy of its records for the trial court. Relators thus advise us that they have a pending request for the trial court to forward that printout under seal.

Based on the particular circumstances here, we conclude that even if the trial court were to forward that printout to us, relators have not met their burden of showing that the documents tendered to this Court in camera are the same documents relators tendered to the trial court.

No. 05-23-00379-CV (April 27, 2023) (mem. op.).

The plaintiff in Engler v. Ritz-Carlton sued a well-known Dallas hotel for, inter alia, premises liability, alleging that it should have done more to prevent an unfortunate burglary that occurred on the eve of a wedding.

The Fifth Court noted that “a premises owner owes a duty of care to protect invitees from third-party criminal acts if the owner knows or has reason to know of an unreasonable and foreseeable risk of harm to invitees,” and that such knowledge can be proven “through evidence of specific crimes on or near the premises.” But the plaintiff’s evidence lacked the necessary information about recency, frequency, and similarity to be probative:

[I]t covers a three-year time period, and it does not specify when during that period the other crimes occurred. It also does not prove the frequency of the other crimes because the paragraph actually describes the number of police calls for “alleged and/or actual” crimes, not the number of actual crimes that occurred. That is, the paragraph leaves us to speculate how many of the police calls involved actual crimes as opposed to false or mistaken reports. Finally, the paragraph does not give any details about the police calls arising from alleged “thefts and/or burglaries” to show that those incidents were similar to the incident made the basis of this suit. The umbrella terms “theft” and “burglary” could involve crimes (such as pickpocketing, vehicle break-ins, and thefts by hotel guests or employees) quite dissimilar from the room burglary involved in this case.”

No. 05-22-00067-CV (April 28, 2023) (mem. op.).

In the classic tort case of Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928), a foreseeable type of injury (equipment fell on a passenger waiting for a train) occurred through an unforeseeable chain of events (a dropped package contained fireworks, that exploded and caused a panic, which in turn caused the equipment to fall). The opinions in that case influence tort law to this day, both substantively, and as to the procedural issue of whether a judge or jury should resolve such questions.

In that tradition is the Fifth Court’s opinion in Cernak v. Studley, a suit about “the alleged negligent handling of a puppy.” The Court held that the foreseeability requirement of proximate cause was not established when “there is no evidence that [defendants’] should [have] reasonably anticipated that a third-party would leave the gate open and [defendant’s] father would open the back door to inadvertently facilitate Grayson’s escape out of the home and then the yard as [plaintiff] walked by on uneven terrain.” No. 05-22-00659-CV (April 26, 2023) (mem. op.).

The “anti-fracturing” rule is a powerful principle for professional-liability litigation in Texas. Under the rule, “Texas courts do not allow plaintiffs to convert what are really negligence claims into claims for fraud, breach of contract, breach of fiduciary duty, or violation of the DTPA.” But the rule is constrained by the facts, and the Fifth Court reversed a summary judgment when, inter alia, “[t]he focus of the breach of fiduciary duty claim was on conduct other than the preparation of the [financial statements] and beyond the duty of ordinary care owed to [the accounting firm’s clients] regarding the preparation of those documents.” Rivas v. Pitts, No. 05-21-00876-CV (April 25, 2023) (mem. op.).

i had an op-ed in yesterday’s Dallas Morning News about the proposal for a new 15th Court of Appeals as part of a new “business courts” system for civil litigation.

Monkedia, a Texas-based LLC, loaned $40,000 to Sevenly, a business based in North Carolina. Monkedia sued Sevenly in Texas when a payment dispute arose, and the Fifth Court reversed the denial of Sevenly’s special appearance in Sevenly Outfitters LLC v. Monkedia LLC.

The Fifth Court summarized the law in this area as follows:

• Yes jurisdiction: “[T]he courts of appeals of this state have generally found a nonresident defendant purposefully avails itself of this forum when it contracts with a Texas resident as a result of its solicitation of the Texas resident,” citing a 2017 First Court opinion about a similar interstate loan transaction.
• No jurisdiction: “When the solicitation runs the other way and the plaintiff solicits business with the nonresident defendant, we have concluded there was no specific jurisdiction over the nonresident defendant, even though the defendant made payments to Texas under a contract that includes a Texas choice of law provision.”
• Also no jurisdiction: “[W]hen the record is silent as to which party solicited the others business, courts have found the defendant did not purposefully avail itself of the forum.”

Accordingly, Texas courts lacked jurisdiction over Sevenly. While the reocrd showed some communications between the parties that involved Texas, “[a]bsent in the record … is any allegation or evidence showing that Sevenly solicited Monkedia’s business or that Monkedia was engaged by Sevenly to market Sevenly’s products to Texas customers.” No. 05-22-00096-CV (April 19, 2023) (mem. op.).

In re Redbird Trails Apts involved a mandamus petition, presented after the trial court conducted an in camera review of certain documents, and determined that none of them were relevant.

Citing Tex. R. App. P. 52.7, the Fifth Court noted: “Relators’ burden is to provide this Court with a sufficient record for mandamus review. … This burden requires them ‘to request that any documents submitted to the trial court for in camera inspection be carried forward under seal so that the appellate court can evaluate this information.'”

The Court then held: “Here, the mandamus record does not include the records inspected by the trial court in camera, and nothing before us reflects that relators have asked the trial court to carry the documents forward to this Court under seal. We are unable to assess the merits of the petition without them.” Accordingly, it denied the petition. No. 05-23-00332-CV (April 17, 2023) (mem. op.).

If you missed it, fear not! The CLE panel that I was on last week for DAYL is now on Zoom for your enjoyment and self-study CLE credit.

The Fifth Court granted mandamus relief as to a TRO requiring a law firm to make certain files available to a former firm attorney. It focused on this language in the TRO:

The Court further finds that Plaintiff has demonstrated she and the clients at issue will suffer imminent, irreparable, and extreme injury if the requested relief is not awarded by the Court. Specifically, Plaintiff has demonstrated that she – and the clients – will suffer imminent, irreparable harm for which there is no adequate remedy at law.

And the Court held:

The temporary restraining order … does not provide a nexus between the actions compelled (requiring PJD to give Cheek access to, and allow her to copy, all client files for clients she represented) and an irreparable injury to Cheek. The order merely recites the conclusory statement that Cheek would suffer immediate, irreparable harm for which there is no adequate remedy at law.

In re PJD Law Firm, PLLC, No. 05-23-00012-CV (April 11, 2023) (mem. op.) (applying, inter alia, El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740 (Tex. App.–Dallas 2011, no pet)).

The peititoners for mandamus relief in In re Vega Street 1, LLC argued that the trial court had failed to render judgment in a matter. The Fifth Court saw matters otherwise. Reminding that “an appellate court may not deal with disputed areas of fact in an original mandamus proceeding,” it held:

Here, the record shows respondent provided a path to obtain a judgment by requesting that relators provide a proposed judgment to her. The record contains emails showing that relators e-mailed proposed judgments to respondent at her official e-mail address for her consideration. However, in her response, respondent stated that she had not received the proposed judgments. And the record does not contain file-stamped copies of any proposed judgments. Under these circumstances, we cannot conclude the record conclusively shows respondent actually received the proposed judgments or that she has refused to rule on the motion for judgment.

No. 05-23-00160-CV (April 12, 2023) (mem. op.).

I’m part of a fun online CLE tomorrow April 13 at noon sponsored by the Dallas Association of Young Lawyers, about “what appellate lawyers wish trial counsel knew.” You can register here on the DAYL website.

The Fifth Court affirmed a $3 million fraud judgment, rendered after a bench trial, reaching these conclusions:

• This choice-of-law provision did not encompass a fraud claim that did not involve construction of the referenced LLC agreeement: “This LLC Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Delaware, without regard to any principles of conflicts of law that would result in the application of the laws of any other jurisdiction.” 
• For similar reasons, Texas tort law applied in a Restatement-based choice-of-law analysis.
• Sufficient evidence supported fraud liability when “BKSI disclosed certain facts to ECOM regarding the Promenade Project’s status and operating condition, creating the false impression that it intended to continue operating the project as a long-term investment, and thus obligated BKSI to disclose the ‘whole truth’ concerning the project, specifically the approaching sale of the project to Madera.”

BK Series Investors, LLC v. ECOM Series Investors, LLC, No. 05-22-00115-CV (Apr. 7, 2023) (mem. op.).

In In re Insight Neurodiagnostics, LLC, the Fifth Court granted mandamus relief as to these discovery requests:

In the underlying litigation, Jones contended that he had been undercompensated by his employer. The Court concluded that these requests by him were overly broad:

• “These requests could cover financial information that does not involved Jones,” and
• “The requests are impermissibly broad because they extend into a time period during which Jones did not work with [defendants].”

The court further observed: “The burden to propound discovery complying with the rules of the discovery should be on the party propounding the discovery, and not on the courts to redraft overly broad discovery so that, as re-drawn by the court, the requests comply with hte discovery rules.” No. 05-23-00014-CV (April 5, 2023) (mem. op.) (citation omitted).

The trial court ordered an increase in juror pay from the usual $40/day to $250/day, to be paid by the plaintiff. The Fifth Court granted mandamus relief against this order; describing a statutory problem and a broader, systemic concern.

• Statute. Tex. Gov’t Code § 61.001 says: “In a specific case, the presiding judge, with the agreement of the parties inovled or their attorneys, may increase the daily amount” paid for jury service; which increase “shall be paid, in equal amounts by the parties involved in the case.” This order was not consistent with this statute.
• Broader systemic concern. The plaintiff invoked the court’s inherent power, but the Fifth Court noted that the state constitution expressly places this issue under legislative control. Jurors are considered “officers of the court,” and art. III § 4 of the constitution says: “The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution … .”

In re Oncor Elec. Deliv. Co., No. 05-23-00298-CV (March 31, 2023) (mem. op.).

As a companion to the Fifth Court’s recent opinion in Aflalo v. Harris, which addressed a home seller’s damages when the contract price exceeded the market price, the Texas Supreme Court recently decided MSW Corpus Christi Landfill, Ltd. v. Gulley-Hurst, LLC, which involved the opposite situation:

“When the property’s market value at the time of breach exceeds the contract price, the correct measure of benefit of the bargan damages is the difference between the promised contract price and what the seller received.

No. 21-1021 (Tex. March 24, 2023) (per curiam) (emphasis in original).

The Fifth Court found an abuse of discretion by not reinstating a case after a DWOP, (a matter evaluated under the same standard as “conscious indifference” under Craddock), stating:

The record of the hearing on the motion to reinstate shows the Weldas’ counsel relied on the trial court’s statement at a pretrial hearing that “you probably won’t get reached” on the day of trial to explain his failure to appear at the October 6 trial. Thus, counsel’s testimony established he mistakenly believed that trial would not proceed on October 6 and thus failed to appear for trial. When an explanation is reasonable, as we have here, a trial court abuses its discretion in failing to reinstate. Under these circumstances, we conclude the trial court abused its discretion in allowing the Weldas’ motion to reinstate to be overruled by operation of law.

Welda v. Mangavalli, No. 05-21-00145-CV (March 23, 2023) (mem. op.).

The concept of estoppel is recognized by modern Texas law in many distinct doctrines: quasi-estoppel, equitable estoppel, judicial estoppel, etc. And sometimes, just saying the right words at the right time creates an estoppel, as occurred in a recent Texas Court of Criminal Appeals opinion where this exchange occurred about a key jury instruction:

Held: “The record reflects Appellant specifically asked the trial court to ensure that the jury be instructed they had to agree ‘beyond a reasonable doubt’ that Hogarth was an accomplice. We hold that Appellant, once he stated ‘I’m good’ with the instruction, is estopped from thereafter claiming that the instruction was improper.” Ruffins v. State, No. PD-0862-10 (Tex. Crim. App. March 29, 2023). I thank my friend Doug Gladden, a keen observer of Texas criminal law, for drawing this case to my attention.

A recent order in a long-running commercial dispute illustrates the challenge of crafting protective orders in Texas state court: “On January 24, 2023, we transferred sealed volumes 9 and 10 of the clerk’s record filed in appellate cause number 05-13-01700-CV into this appeal. We gave the parties an opportunity to obtain a sealing order in compliance with Texas Rule of Civil Procedure 76a and cautioned that we would order the volumes unsealed should the parties fail to file either a sealing order or status report by February 23, 2022.” At that point, having not received either one, the court ordered the volumes unsealed. Orca Assets GP v. JP Morgan Chase Bank, No. 22-40043-CV (March 23, 2023) (order).

Olivares v. Chevron Phillips Chem.Co. distinguishes two closely related doctrines about the limits of judicial power, which are distinguished procedurally:

“Unlike the exclusive jurisdiction doctrine, exclusive remedy is an affirmative defense. As an affirmative defense, exclusive remedy should not be disposed of with a motion to dismiss such as a plea to the jurisdiction; it should instead be raised through a motion for summary judgment or proven at trial. ‘Thus, pursuing the exclusive-remedy defense through a plea to the jurisdiction ‘is problematic and not to be encouraged.’”

No. 05-22-00057-CV (March 14, 2023) (mem. op.) (citations omitted).

In a dissent from a dismissal order in Chapman v. Doe, Justice Jackson questioned whether the Supreme Court had become too quick to vacate judgments, noting, inter alia, that “our common-law system assumes that judicial decisions are valuable and should not be cast aside lightly, especially because judicial precedents ‘are not merely the property of private litigants,’ but also belong to the public and ‘legal community as a whole.'” (reviewing United States v. Munsingwear, Inc., 340 U.S. 36 (1950)).

As she was the sole dissenter on this point, her views are apparently not shared by a majority of that court, but her analysis is still thought-provoking and deserves study, as it examines a part of the appellate process that often goes largely unnoticed. Thanks to Ben Taylor for drawing my attention to this one!

Aflalo v. Harris arose from a contract to sell a house. The question was (generally) how to calculate the value of the house at the contractually specified sales time, and (specifically) when a later resale of a home can be probative of that value. The Fifth Court reviewed the specific facts of this resale to determine that it was probative, discussing and distinguishing Barry v. Jackson,  309 S.W.3d 135 (Tex. App.–Austin 2010, no pet.) (LPHS represented the successful appellant in this case.)

Ryan, an accounting firm, made a claim on its professional liability policy for losses caused by a rogue director’s submission of fraudulent tax returns. The insurer acknowledged an obligation to pay for losses resulting from employee “theft,” but instead:

“… maintain[ed] that that Weaver did not unlawfully take money from Ryan but that, instead, he started a chain reaction that caused money to improperly flow from the taxing authorities to Ryan’s clients, to Ryan, and then to Weaver and other employees.”

The Fifth Court found coverage for $346,612 paid to the director in bonuses, as an “unlawful taking” of those funds by him, and remanded for further consideration of related issues. Ryan, LLC v. Nat’l Union Fire Ins. Co., No. 05-22-00286-CV (March 13, 2023) (mem. op.).

The Legislature is in session; thus, legislators are seeking continuances of trial settings pursuant to Tex. Civ. Prac. & Rem. Code § 30.003. While the trial court in In re Jones did not expressly deny a state senator’s request for a legislative continuance, it implicitly denied it by, inter alia, setting a status conference and making a docket entry that said “Proposed Order Denied,” That was sufficient to justify mandamus relief, since a proper motion had been made under section 30.003 and relator would not have an adequate remedy by appeal. No. 05-23-00070-CV (March 10, 2023) (mem. op.).

US Bank “prayed for a declaration that [appellant’s] equitable title was subject to US Bank’s lien.”

But US Bank pleaded a suit to quiet title as its cause of action. “In such a suit, the plainitff has the burden to show (1) an interest in a specific property, (2) title to the property is affected by a claim by the defendant, and (3) the claim, although facially valid, is invalid or unenforceable.”

Because that claim didn’t match the requested relief, the Fifth Court reversed summary judgment for the bank. TFHSP, LLC v. U.S. Bank N.A., No. 05-22-00002-CV (March 8, 2022) (mem. op.).

The interplay between appellate lawyers and courts (“we need the transcript now!”) and trial-court reporters (“I have twenty other transcripts due this month!”) is part of daily life in appellate practice. The situation in In the Interest of B.Q.L. goes to a whole other level, however, and presents a textbook application of Tex. R. App. 34.6. The Fifth Court reversed and remanded for a new trial, due to the lack of a reporter’s record, when the following facts were established in trial-court proceedings:

(1) Atkins [court reporter] testified she was not present at the trial held on June 8, 2021; (2) her testimony was untruthful; (3) Atkins was the reporter for the trial; (4) Atkins stated she has no notes from the trial; (5) Mother is not at fault for the reporter’s record not being transcribed; (6) the attorneys state the record is necessary to the appeal’s resolution; and (6) the record cannot be replaced by agreement of the parties. 

No. 05-21-01108-CV (March 6, 2023) (mem. op.).

Litigation between two parties about the ownership of a valuable Ferrari ended with a final judgment that awarded clean title to the car–except, lienholder Truist Bank was not joined as a party. Truist filed a bill of review; as the Fifth Court explained: “Ordinarily, a bill of review involves an independent action by a party to the former case. A nonparty, however, has standing to bring a bill of review if it had a then-existing legal right or interest that was prejudiced by the prior judgment.” The Court went on to reverse and render judgment for Truist on its bill, observing:

“Truist Bank asserted a meritorious defense based upon its unreleased priority lien, its possession of the original title to the Ferrari, and its challenge to Loyola’s right to relief in [another related] lawsuit. On this record, we are not persuaded by Loyola’s 2.403 Business and Commerce Code argument that, as a matter of law, he had a right to clear title, and we decline to so determine. … Truist Bank was prevented from establishing or protecting its priority lien rights by Loyola’s wholesale failure to serve, join, or notify Truist Bank in the … suit.”

Truist Bank v. Loyola, No. 05-21-00206-CV

The issue in Harry Hines Millennium Market Place LLC v. Pawn TX, Inc. was whether a commercial tenant vacated the leased premises on May 31, 2018.

The tenant’s principal testified that it did so, and also offered testimony about how it “gutted the showroom …, moved inventory and all pawns …, pulled down fixtures and back racks,” and made its last pawn-shop transaction on the premises on May 30.

The Fifth Court found the landlord’s contrary testimony to be conclusory (that the tenant “failed to vacate the premises and remained in possession of the Property for an additional two (2) months”). The Court also rejected the landlord’s argument that termination was ineffective absent formal notice, as the lease did not impose such a requirement and the common law does not otherwise impose one. (The Court also declined to consider several photographs submitted along with the landlord’s brief because they were not in the record.) No. 05-21-00778-CV (Feb. 28, 2023) (mem. op.).

The Baroque rules surrounding special-exception practice led to reversal in J.G. v. Jones, a claim by “J.G.” against the owner of the Dallas Cowboys alleging unwanted physical contact. In particular, the Fifth Court held:

• Preservation. Where, as here, the plaintiff amended in response to a special-exceptions order, the plaintiff preserved error by, inter alia, opposing the defendants’ motion to dismiss. The Court distinguished a 1993 opinion in which the plaintiff did not amend in response to a similar order.
• Merits. The Court noted that of six deficiencies identified in the special exceptions, only two were challenged in the motion to dismiss. As to the location of the alleged conduct, the court found that her revised description “was at least a good faith attempt” that could not support dismissal; as to the use of initials, the court noted that “[a]ppellees do not dispute that they were informed of appellant’s identify before the trial court ruled on their motion to dismiss.”

No. 05-22-00215-CV (Feb. 27, 2023) (mem. op.). The Dallas Morning News recently reported on the case.

In the case of In re Commitment of Robinson, a civil-commitment case about a sexually violent individual, the trial court granted a directed verdict that the defendant was a “repeat sexually violent offender” and included an instruction to that effect in the jury charge. In a holding that likely has little effect outside this specific procedural setting, the Fifth Court found no plain error from that particular instruction in this specific case. No. 05-21-00795-CV (Feb. 23, 2023).

On a second appeal after an earlier remand from the Texas Supreme Court, the once-successful plaintiff in Credit Suisse AG v. Claymore Holdings LLC sought judgment for “an additional $25,235,910.61 for secondary market purchases in addition to the $40 million in damages for fraudulent inducement.” The Fifth Court noted:

• “[t]he jury was not asked to determine liability as to the secondary market purchases; therefore, the record contains no liability or causation finding” to support such damages;
• “Claymore did not object to the absence” of a question on those matters, and did not try to submit one either;
• in the trial court’s findings of fact and conclusions of law, on matters tried to the bench, “[t]here is not a separate section for fraudulent inducement of secondary market purchases”;
• The trial court’s conclusion of law that awarded such damages did not make “an implicit finding and conclusion” about liability and causation;
• The supreme court did not address this topic in its prior opinion, and because “[t]he jury made no liability finding on the secondary market purchases … there was nothing for Credit Suisse to appeal at that stage in the proceedings.”

No. 05-21-00649-CV (Feb. 14, 2023) (mem. op.).

Desperate to hear the fabled song of the Sirens, but knowing full well that they steered sailors toward the rocks, Odysseus told his crew:

“[T]ake me and bind me to the crosspiece half way up the mast; bind me as I stand upright, with a bond so fast that I cannot possibly break away, and lash the rope’s ends to the mast itself. If I beg and pray you to set me free, then bind me more tightly still.”

He survived. Not so, the appellants in Bienati v. Cloister Holdings, LLC, who disclosed during argument that:

“… because the probable right to recovery issue could impact the merits of the entire case, the trial court ‘abated it until this Court weighed in on the merits of the temporary injunction and whether there’s a probable right to recovery.”

The court of appeals held: “We have repeatedly disapproved the practice of postponing the trial on the merits of a case to obtain a ruling on the appeal of a temporary injunction. This practice not only delays the ultimate resolution of the merits of the parties’ dispute but wastes judicial resources.” It thus dismissed the appeal. No. 05-22-00324-CV (Feb. 10, 2023) (mem. op.).

The classic question of “who” was central to Western Healthcare LLC v. Herda, which involved the role of a “contractual delay” provision as a defense to a suit alleging a failure to pay certain workers: “[Plaintiffs] contended that because the work stoppage at issue affected Ellwood, rather than WHC, it should not defeat their claims. But the contractual provision does not specify that a particular employer must undergo a work stoppage to trigger its application; Ellwood’s closure certainly stopped the Providers’ ability to work at its hospital, which was the work bargained for in their contracts.” No. 05-21-00603-CV (Feb. 10. 2023) (mem. op.) (emphasis added).

On Wednesday at noon, I am doing a virtual CLE for the Dallas Bar that reviews the key cases, since last spring, from the U.S. Court of Appeals for the Fifth Circuit and the Fifth Court of Appeals in Dallas. You can register here and you can download (subject to last-minute revisions) my PowerPoint here. I hope you can join me!

Kirk v. Atkins enforced a straightforward arbitration agreement (my apologies for the tilt, which appears in the original record) with broad, “any dispute” language:despite similarly broad “all remedies” language in another section about remedies: Held: “[I]t is possible to harmonize and give effect to both provisions of the agreement. The ADR paragraph, in which the arbitration clause is found, controls the process of resolving disputes between the parties, while the remedies paragraph describes the substantive relief that may flow from decisions on those controversies.” No. 05-21-00639-CV (Feb. 1, 2023) (mem. op.).

In a Tarot deck, the “Magician” (right) has the power to transform. In the Fifth Court, however, the phrase “reasonable and necessary” is not a “magic word.”

In a construction-contract dispute, even though “no witness explicitly testified that the expenses incurred were reasonable and necessary,” the Court reversed a JNOV and reinstated judgment on the jury’s verdict when the evidence allowed the jury to infer that the costs incurred were reasonable and necessary. That evidence included:

• detailed invoices;
• presented by a witness with extensive relevant experience;
• with a contract-based incentive to not incur excessive expense;
• general consistency with an estimate presented by the other side.

Bosque v. Barbosa, No.05-22-00230-CV (Jan. 30, 2023) (mem. op.). (Congrats to my LPHS colleague Greg Brassfield who tried the underlying case and successfully argued this appeal!)

These events produced a triable fact issue about whether the parties renewed a lease:

• On March 1, Property Manager emails Tenant about lease renewal, noting that “rent will be increasing to $2,275/month” from the current $2,200 monthly amount.
• That same day, Tenant responds that “yes, I would like to renew the lease. I will follow up this weekend with more information.”
• On March 12, Tenant sent a lengthy email about problems with her air conditioning, claimed roughly $4000 dollars in damages as a result, and ended: “I still intend to renew the lease and this settlement offer does not constitute a counter offer or rejection to your lease renewal offer on March 1 ….”
• On March 13, Property Owners’ counsel sent a notice of termination.

The Fifth Court noted: “Under the common law, an acceptance may not change or qualify the material terms of the offer, and an attempt to do so results in a counteroffer rather than an acceptance.” Bismar v. Mitchell, No. 05-21-00104-CV (Jan. 27, 2023) (mem. op.).

Justice Emily Miskel recently published a good article in Headnotes about recent appellate opinions involving issues with virtual trial proceedings. You can read the article on page 16 of the online publication or in this screenshot.

One World Bank v. Miller presents a dispute between Miller, the buyer from a used-car dealership of a 2014 Ferrari 458 Italia (example of one, to the right), and the lender for the dealership, which sued the dealership for alleged misconduct in the sale of 27 exotic cars. As to Miller, the suit was unsuccessful, as he established himself to be a bona fide purchaser for value under UCC Article 9, and thus not subject to the lender’s security interest in the dealer’s inventory. The lender argued on appeal that the Certificate of Title Act applied because of irregularities in the transfer of title to Miller, but the Fifth Court rejected that argument, agreeing with other courts’ precedent that the Legislature had expressed a preference for the UCC controlling over the Title Act in the event of tension between them. No. 05-21-00705-CV (Jan. 20, 2023) (mem. op.)

Maersk v. Mgbeowula presented what Maersk (the shipping company) apparently considered to be a collection matter arising from a freight delivery to Nigeria, and what the defendant contended was a problem created by an agent acting without authority. When Maersk’s Texas-law contract claims encountered rough seas at trial, it sought leave to amend with a claim based on maritime law. The trial court denied that request and the court of appeals affirmed, declining to raise that ship by concluding (among other matters) that there had been no trial by consent of such a claim:

“[T]he evidence admitted at trial was submitted by Maersk in support of its claims for breach of contract and sworn account under Texas law. Because the evidence was relevant to the pleaded claims, we cannot conclude that a claim under maritime law was tried by consent. … This is particularly so in light of Mgbowula’s objection at the start of trial to the use of any exhibit to invoke maritime law. While the evidence offered by Maersk might be relevant to a cause of action under maritime law, this does not change the fact that the requested amendment asserted a new substantive matter that would have reshaped Maersk’s case.”

No. 05-21-00820-CV (Jan. 20, 2023).

A hard-fought forum dispute between two shoe businesses led to an unusual forum dispute in In re ASCIS Am. Corp.

Dueling lawsuits between ASCIS (the plaintiff in a California case) and Shoebacca (the plaintiff in a Dallas case) led to a decision by a Dallas district court to stay proceedings in deference to the California one.

ASCIS then served a subpoena on a Dallas-based attorney who had previously represented Shoebacca. Unsatisfied with the attorney’s responsiveness, ASCIS filed an ancillary proceeding in Dallas to enforce the subpoena. Shoebacca then intervened in that case, raising claims that ASCIS had already been stayed by a Dallas court in favor of their resolution in California.

The Fifth Court sided with ASCIS and granted mandamus relief to require the dismissal of the intervention. No. 05-22-00994-CV (Jan. 20, 2023) (mem. op.).

Tex. Civ. Prac. & Rem. Code § 15.002(a)(3) authorizes venue “[i]n the county of the defendant’s principal office in this state, if the defendant is not a natural person.”

Case law further says that a corporation may have more than one principal office in Texas, and that to qualify as a “principal office” location, the plaintiff must show that “the employees in the county where the lawsuit was filed (1) are ‘decision makers’ for the company, and (2) have ‘substantially equal responsibility and authority’ relative to other company officials within the state and case law.”

Logical enough, but still short on specifics. That’s why the Fifth Court’s recent opinion in Deere & Co. v. Bernal, building on an earlier Fifth Court case about this statute, is a helpful contribution. After a detailed review of the record about the responsibilities of a Dallas-based John Deere manager, the court held:

We see no meaningful distinction from the facts described in Roach that Deere’s system of routing certain parts to certain destinations preempts any higher level day-to-day decision making by the manager of the Dallas regional distribution center. Schick’s affidavit and deposition testimony, described above, identified numerous areas—other than the routing of particular parts—in which the manager of the regional distribution center is the authoritative figure in managing the regional facility and its layers and departments of employees. Schick did not identify a decision maker of higher authority in Texas who made day-to-day decisions in running the company, the employees, and the facility than the manager of the Dallas regional distribution center. 

No. 05-22-00916-CV (Jan. 17, 2023) (mem. op.).

A family-law dispute about the rights to a dog (considered personal property under the relevant Texas law) provides a good example of legal-sufficiency review:

Barlow asserts that because the AKC Canine Partners Certificate of Enrollment, the Certificate of Registry, the microchip registration, the pet profile at Petland and the Bill of Sale for the Canine show her as the “owner,” as a matter of law, she is the sole owner of the Canine. Barlow does not cite any authority directly on point here, and we have found none. We conclude that this documentary evidence is some evidence of ownership, but it is not conclusive and does not automatically preclude ownership by another.

…

Other evidence established the Canine was purchased on June 10, 2019, at Petland. Barlow was working at Petland at that time. With Barlow’s employee discount, the purchase price for the Canine was $1,100. Richardson contributed $500 towards the purchase price. While Barlow claimed Richardson gave her the $500 as a gift, which she later offered to repay, Richardson claimed she made the payment in accordance with the parties’ joint decision to purchase the Canine. The evidence showed that while the parties were in a dating relationship, they each had possession of the Canine at various times and Richardson was primarily involved in taking the Canine to the veterinarian and provided considerable financial support of same. While Barlow characterized this arrangement and Richardson’s possession as dog sitting, Richardson claimed her possession was that of a joint owner and evidence of her ownership interest. While there was conflicting evidence on the ownership of the Canine, the trial court was the final arbiter of the credibility of the witnesses, and its determination regarding ownership of the Canine is supported by the evidence.

Barlow v. Richardson, No. 05-21-00844-CV (Jan. 17, 2023) (mem. op.).

The Fifth Circuit and Texas Supreme Court both recently addressed limitations issues in commercial cases:

• Civelli v. JP Morgan Securities involved an investor’s claim that JP Morgan wrongly transferred certain shares of stock in an oil company. The Fifth Circuit declined to apply the discovery rule, stating: “Any injury incurred from the J.P. Morgan defendants’ alleged negligence in transferring the shares without plaintiffs’ consent arose at the time of the transfer. Because Civelli admits that he knew by February 2014 that they had transferred the funds, the rule of discovery does not apply.” No. 21-20618 (Jan. 11, 2023).
• Marcus & Millichap v. Triex Texas Holdings LLC was a suit against a real-estate broker about the sale of a gas station. The Texas Supreme Court held: “It is undisputed that Triex knew it was injured in December 2012. The question before us is whether the discovery rule defers accrual of Triex’s cause of action until it knew that Marcus & Millichap caused its injury. We hold that it does not.” No. 21-0913 (Jan. 13, 2023) (per curiam).

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.).

A deadline issue, based on the interplay of Tex. R. Civ. P. 202 and the TCPA, was resolved against the timeliness of a TCPA motion in In re Petition of Oak Creek Investments:

Rule 202 ensures that the persons to be deposed have at least 15 days’ notice of the hearing, served “in accordance with Rule 21a.” See id. But the rule does not condition effective service on the inclusion of a hearing date in the petition. We conclude that appellants’ TCPA motion, filed more than 60 days after service of appellees’ Rule 202 petition, was untimely.

No. 05-22-00477-CV (Jan. 6, 2013) (mem. op.).

Now available! My (free) e-book, “Originalism Ascendant,” which builds upon recent media appearances to describe where the Constitution finds itself, for the rest of the 2020s, after the overruling of Roe v. Wade.

Topics include:

• How clear are the guidelines for state laws about abortion activity in another state?
• Will Lochner make a comeback?
• If so, what body of academic thought will provide guidance for the courts?
• What would Alexander Hamilton really think about modern economic regulation?
• Who exactly are “the people’s elected representatives” referred to by the Supreme Court in Dobbs?

The “Hitchhiker’s Guide to the Galaxy” teaches that “42” is the Ultimate Answer.  That may be true for intergalactic hitchhikers, but “683” is the Ultimate Answer for Texas temporary-injunction practice:

Here, the January Injunction states the applicants “are entitled to the relief sought” and an injunction is “necessary to restrain [Bailey and Edamame] from taking actions prejudicial to Applicants’ rights.” It does not, however, specify the facts the trial court relied on to reach those conclusions or provide any reason why the applicants are entitled to the relief sought in their application. The January Injunction does not explain why the four actions being enjoined need to be enjoined or how those actions could prejudice Applicant’s rights. The January Injunction is, therefore, conclusory. Further, the January Injunction does not specifically explain how appellees will suffer irreparable harm without the injunction and why they have no adequate remedy at law. These conclusory statements are insufficient to comply with the requirements of rule 683. 

Bailey v. Ramirez, No. 05-22-00072-CV (Dec. 30, 2022) (mem. op.) (applying, inter alia, Indep. Capital Mgmt., LLC v. Collins, 261 S.W.3d 792, 794–95 (Tex. App.—Dallas 2008, no pet.)).

The Fifth Court reviewed a commercial, “triple net” lease in Gaedeke Holdings II v. Chait & Henderson, concluding: “Under the Lease, the fixed amount Uptown paid in the first calendar year of the Lease term does not have any effect on the computation of Uptown’s “Pro Rata Share of Basic Costs” after the first calendar year, and in years two and beyond, Uptown’s “Pro Rata Share of Basic Costs” is based on Gaedeke’s Basic Costs in 2016, subject only to the 6 percent year-over year limitation on increases to Gaedeke’s controllable Basic Costs in 2016.” No. 05-20-01048-CV (Dec. 29, 2022) (mem. op.). An interesting amicus brief discusses different kinds of commercial leases.

Coming next week! My (free) e-book, “Originalism Ascendant,” which builds on recent media appearances to describe where the Constitution finds itself for the rest of the 2020s after the overruling of Roe v. Wade. A link will be available on this blog.

The Theft Liability Act allows the recovery of fees by a successful defendant; therefore, “a ‘defendant may be a prevailing party when a plaintiff nonsuits without prejudice if the trial court determines, on the defendant’s motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits.” (citation and emphasis omitted).

Absent such a finding, however, when a defendant nonsuits a TTLA claim after the filing of summary-judgment motions on other claims, a trial court’s decision to not award fees is not reversible error.

In the “Department of Subtle Hints,” the Fifth Court noted that findings of fact were requested but not made, but no appellate argument had been made on that procedural point. Centurion American Custom Homes, Inc. v. Crossroads Opportunity Partners LLC, No. 05-21-00025-CV (Dec. 28, 2022) (mem. op.).

The governor has appointed Hon. Emily Miskel to the vacant position on the Fifth Court. Judge Miskel brings a strong background in family law and community involvement to the Court. Welcome, now-Justice Miskel!

The supreme court is reviewing the Fifth Court’s case of Kansas City Southern Ry. v. Horton, a case that presents a mix of federal-preemption and Casteel issues. It will also review CAE SimuFlite v. Talavera, which presents a similar mix of substance (whether Texas recognizes a claim for educational malpractice) and procedure (Rule 91a’s proper role). The supreme court’s summary of issues appears here.

The supreme court has preliminarily approved this addition to the Tex. R. App. P. about the clerk’s record:

Hopefully, this change will make it easier to follow Tex. R. App. 43.5 (and its supreme court analog), which says: “When a court of appeals affirms the trial court judgment, or modifies that judgment and renders judgment against the appellant, the court of appeals must render judgment against the sureties on the appellant’s supersedeas bond, if any, for the performance of the judgment and for any costs taxed against the appellant.”

A contentious easement dispute led to, among other matters, a damages judgment for the defendant’s alleged barricading of an access road. The damages included delay costs incurred when a contractor charged an extra fee after a TRO stopped the process of paving the road. Applying DeSantis v. Wackenhut Corp., 793 S.W.2d 670 (Tex. 1990), the Fifth Court found that those damages were not recoverable on this claim:

“The trial court’s temporary restraining order cannot be [defendant’s] breach. And to the extent [Plaintiff] argues the order was wrongful, she did not allege either of two possible actions for wrongful injunction, nor prove the elements of malicious prosecution.”

MQ Prosper North LLC v. Coulter, No. 05-20-00880-CV (Dec. 12, 2022) (mem. op.).

In re Torres granted relief in a failure-to-rule mandamus proceeding. The issue of the effect of COVID-19 came up in the Fifth Court’s review of the record, and the Court observed:

Although real parties Diaz and Galvan make the general claim that trial courts are facing staffing shortages and COVID-related delays, the record before this Court does not contain any indication that the COVID-19 pandemic has prevented the trial judge from ruling on the pending motion. … Indeed, as this Court has noted in a prior case, “courts across Texas—including this Court—have continued to fully tend to most business of the courts and serve the citizens of Texas while implementing safety precautions above and beyond recommendations by the Centers for Disease Control and Prevention and accommodating Covid-19-related exigencies.”

No. 05-22-00715-CV (Dec. 7, 2022) (mem. op.) (citations omitted).

The supreme court granted mandamus relief as to an overly broad request for cellphone data in the case of In re Kuraray America, holding:

[W]e conclude that the trial court abused its discretion by ordering production of Kuraray’s employees’ cell-phone data for a six-week or four-month period without a showing that each employee’s use of his cell phone on May 18 or 19 could have been a contributing cause of the ethylene release. …

Plaintiffs argue that cell-phone data from days, weeks, and months before the release is relevant because Kuraray negligently failed to supervise its employees and failed to implement adequate policies and procedures to protect against cell-phone misuse. But Kuraray’s policies regarding cell-phone use and its alleged failure to supervise its employees are relevant only if there is some evidence that cell-phone use could have been a contributing cause of the release itself.

No. 20-0268 (Dec. 9, 2022).

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).

A medical records prove-up affidavit in McGee v. Tatum said the following:
But that statement was insufficient to establish causation: “[N]othing in the record shows that Cruz is a medical professional or that she was testifying as an expert medical professional. Furthermore, Cruz’s statement is nothing more that a ‘bare proclamation that this one event caused another and is not enough to establish causation.’” No. 05-21-00303-CV (Nov. 28, 2022) (mem. op.).

The venue issue in 7R Owners Assoc. v. Prezas was whether the defendant’s “principal office” was located in Dallas County. The following testimony did not support an argument that it was located there, as opposed to Palo Pinto County:

Mr. Ruff testified in May 2022 that he lives in Dallas. And since 2013, he has worked approximately one or two days a week out of 7R’s office in Palo Pinto County. He said that he works on 7R matters during “that same timeframe,” and he spends the rest of the week working on “other matters.” Appellees argue that, because Mr. Ruff lives in Dallas and is 7R’s sole officer and employee, “to the extent that 7R does conduct ‘daily affairs’” when Mr. Ruff is not in the Palo Pinto County office, those affairs are “necessarily performed in Dallas County by Mr. Ruff.”

No. 05-22-00776-CV (Nov, 30, 2022) (mem. op.).

Louis XIV, the “Sun King” who ruled France from 1643 to 1715, allegedly claimed: “L’État, c’est moi” (“I am the State.”). If, however, Louis served as the governor of Texas rather than the French monarch, he could not say that:

“The claim that the Governor’s commissioning of temporary justices would be attributable to the State, the named plaintiff, misunderstands the nature and structure of Texas’s government. As Respondents concede in their July 13 letter, ‘Texas does not have a unitary executive.’ See In re Abbott, 645 S.W.3d 276, 280 (Tex. 2022) (‘[T]he Texas Constitution does not vest the executive power solely in one chief executive. Instead, the executive power is spread across several distinct elected offices … .’)”

State of Texas v. Volkswagen AG, No. 21-0130 (Tex. Nov. 18, 2022).

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).

In the mandamus case of In re Sunoco Retail LLC:

• “The record further reflects that a hearing took place on November 14, 2022, on real parties in interest’s motion to compel. Relators did not provide a transcript of this hearing, and they did not state that a transcript has been requested and will be provided. Instead, relators include a statement in their petition that ‘[n]o testimony was presented and no exhibits were offered into evidence at the hearing.'”;
• BUT: “In the order granting real parties in interest’s motion to compel, the trial court stated that it had considered ‘the pleadings, evidence, affidavits, and argument of counsel.’ Thus, the trial court’s order indicates that the November 14, 2022 hearing was evidentiary, despite relators’ statement to the contrary.” (cleaned up).

Because “relators make factual statements about what transpired at the November 14, 2022, and they rely upon these statements when arguing the trial court abused its discretion,” the Court concluded that it “cannot evaluate relators’ argument without a record of the hearing,” and thus rejected the mandamus petition. No. 05-22-01225-CV (Nov. 18, 2022) (mem. op.).

The Texas Supreme Court recently clarified the proper way to dismiss a matter that has become moot on appeal:

MTGLQ’s purchase of the property preceded Alsobrook’s appeal. As the court of appeals correctly concluded, no live controversy existed between the parties after the foreclosure, rendering Alsobrook’s claims moot. The court of appeals thus correctly concluded that dismissal was required. But, as explained, mootness on appeal requires vacatur of the underlying judgment as well as dismissal of the case. The court of appeals should have vacated the trial court’s judgment and dismissed the case.

Alsobrook v. MTGLQ investors, LP, No. 22-0079 (Nov. 18, 2022) (citations omitted). I salute 600Commerce friend Ben Taylor for his persistent advocacy about this and related matters.

The much-maligned TCPA, even after amendments that significantly restricted its scope, is still a powerful tool in a proper case. In Austin v. Amundson:

• The TCPA applied to the communications at issue because “TCPA case law is clear that criminal acts are matters of public concern”;
• Malice, a necessary element of the plaintiff’s reputational claims, was not established by clear and convincing evidence; particularly when a key police report “‘advised’ the police department the parties had ‘… ongoing civil issues since 2016′”;
• As to other claims, falsity was not established when, among other matters, a police department did not more than close a case without further action, making “no finding that [the party] did not drive recklessly”;
• And a third set of claims, about allegedly derogatory statement to customers, were “[m]issing … the facts of when, where, and what was said”.

The Fifth Court thus reversed the denial of the defendants’ motion to dismiss, rendered judgment on the claims that it addressed, and remanded for consideration of fee-related matters as potentially required by the statute. No. 05-22-00066-CV (Nov. 15, 2022) (mem. op.).

The Fifth Court remanded for a new trial based on a voir dire error about the civil-commitment statute that gave rise to In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011): “Counsel then asked the entire panel: ‘would anyone find it hard to give someone who’s been diagnosed by an expert as a hebephile, and that is a sexual attraction to what is parapubescent or postpubescent children, a fair trial?’ The state objected ‘to an improper commitment and comment on evidence’ and the court sustained the objection. Appellant’s counsel asked to approach but the court said ‘No. I sustained the objection. Move on.'” In re Commitment of Revels, No. 05-21-00868-CV (Nov. 8, 2022) (mem. op.).

A long-running jurisdictional dispute, on remand from the Texas Supreme Court after that court’s resolution of a procedural issue, produced a thorough analysis of personal jurisdiction in Chen v. Razberi Technologies, Inc. Among other practical points, the opinion reminds that “[w]hile it is often relevant to the inquiry, the focus is on the relationship between the defendant, the forum, and the litigation, not the plaintiff, the forum, and the litigation.” (citation omitted, emphasis added).

Here, “The connection between the Modrys’ causes of action and Texas is not weak because, like the other investors, they claim to have suffered harm in Texas when they entered into the Stock Purchase Agreement in Texas with a Texas-based company as a result of its director’s and majority shareholder’s misrepresentations and omissions.” No. 05-19-01551-CV (Nov. 8, 2022).

By close but decisive margins, Hon. Nancy Kennedy and Hon. Maricela Moore have won election to the Fifth Court. Congratulations to these two new Justices!

Hon. Erin Nowell and Hon. Amanda Reichek were unsuccessful in their races for the Texas Supreme Court, so their service on the Fifth Court will continue for the balance of their terms. The Texas Lawbook has a thorough review of other appellate elections around the state.

Depending on how quickly the Governor fills the vacancy created by the resignation of Hon. Leslie Osborne, the Court may briefly be all-Democrat – completing the reshaping that began with the 2018 election of the “Slate of Eight.”

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

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

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

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.).

A concurrence to the Texas Supreme Court’s denial of review in Lester v. Berg, No. 21-0775 (Nov. 4, 2022) reminded of the importance of following that court’s precedent (even while denying review of a court of appeals opinion that disagreed with it):

“It is fundamental to the very structure of our appellate system that this Court’s decisions be binding on the lower courts.” Dall. Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex. 2008). “[I]n reaching their conclusions, courts of appeals are not free to disregard pronouncements from this Court, as did the court of appeals here.” In re K.M.S., 91 S.W.3d 331, 331 (Tex. 2002) (citing Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989) (“This court need not defend its opinions from criticism from courts of appeals; rather they must follow this court’s pronouncements.”)).

The Fifth Court found that the trial court exceeded the bounds of permissible discovery under the TCPA in In re Quality Cleaning Plus:

Although the trial court acknowledged at the August 29 hearing that it could order limited discovery under the TCPA, there is no indication in the record that the trial court considered the limitations of Section 27.006(b) when it entered its post-August 24 discovery orders. Instead, the trial court reasoned that Section 27.006(b) did not apply because the discovery was outstanding and due before Quality Cleaning filed its TCPA motion and, thus, the discovery was not suspended. But the statute does not provide such an exception.

No. 05-22-01053-CV (Oct. 31, 2022) (mem. op.) (emphasis added).

The clerk sent notice of judgment to an outdated address for counsel, after he had notified the court of the change, and took no further action when that notice was returned by the Post Office. The Fifth Court granted relief from that judgment in a restricted appeal in Getmeplacement LLC v. Wiese Indus., LLC, No. 05-21-00133-CV (Oct. 31, 2022) (mem. op.).

I’m in the newest issue of Park Cities People, talking about the “Poster Wars” under the new Texas law about posters that feature the national motto:

In 2018, a mentally disturbed individual scaled the six-foot fence around an apartment complex and killed a resident. Wang v. TREA Churchill affirmed summary judgment for the defense, reviewing several aspects of what constitutes sufficient proof of foreseeability in this setting. No. 05-21-00880-CV (Oct. 24, 2022) (mem. op.).

Grisaffi v. Rocky Mountain High presents an unusual situation involving the “one-satisfaction rule” (and the choice it requires between recovery of stock and damages for the loss of the same stock), the “mandate rule” requiring an election pursuant to that rule, and the effect of another proceeding arguably implicating the subject matter of this case. The majority affirmed, finding a faithful application of the mandate rule; a dissent had a different view about the import of the other action. No. 05-20-00538-CV (Oct. 18, 2022) (mem. op.).

The plaintiff in Kivowitz v. Dorfman sought to “remove his deceased parents’ remains from mausoleum crypts on Hillcrest’s property.” The defendants had a different view; the unfortunate cemetery operators were stuck in the middle. The resulting litigation contributes to the – body – of law about recoverability of attorneys’ fees in declaratory-judgment cases.

“Caught between competing demands and mindful of its statutory and contractual obligations,” the cemetery sought a declaratory judgment, and “took no position regarding appropriate disposition of the Decedents’ remains.”  The trial court issued a declaratory judgment that the plaintiff was right, and assessed attorneys’ fees of $191,245.25 against the cemetery pursuant to the Declaratory Judgment Act.

The cemetery appealed, noting that the (surprisingly detailed) provisions about the handling of human remains in the Health & Safety Code did not allow for the recovery of fees. The Fifth Court agreed and reversed, citing primarily MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009) (“[A] party cannot use the [Declaratory Judgments] Act as a vehicle to obtain otherwise impermissible attorney’s fees.”). Put another way, the plaintiff did not urn a fee award by his suit.

The Fifth Court’s recent opinion, In the Interest of CJP, makes a somewhat gloomy observation about a Texas Supreme Court decision to grant review, quoting the Texas Law Review‘s style manual:No. 05-22-00233-CV (Oct. 14, 2022) (mem. op.). The paper about internal operating procedure  on the supreme court’s website paints a less-gloomy picture, however:As do the reversal statistics for 2021 available from the Office of Court Administration:

The Texas Supreme Court has preliminarily approved a welcome new rule about the effect of requesting oral argument:

The Stantons sued a construction contractor who did work on a commercial property near their home. The contractor sought to compel arbitration, arguing that their claim implicated an arbitration agreement in its contract with the relevant subcontractor. But the Stantons countered with evidence that the excavation work at issue was performed under a separate contract, directly with the property owners.

The trial court denied the motion to compel arbitration. The Fifth Court affirmed. It noted the principle that “a bilateral agreement to arbitrate under the AAA rules constitutes clear and unmistakable evidence of the parties’ intent to delegate the issue of arbitrability to the arbitrator.” But that said, “[t]he subcontract between [the general] and [the sub] is not a bilateral contract with the Stantons.” Therefore, the trial court retained the authority to determine arbitrability. Scott + Reid General Contractors, Inc. v. Stanton, No. 05-22-00400-CV (Oct. 7, 2022) (mem. op.).

In a ruling that arose from an unusual joint mandamus petition, and drew significant amicus attention from trial-focused organizations, the Texas Supreme Court granted mandamus relief on October 7 as to an order requiring a virtual trial:

The Onion, America’s Finest News Source, recently weighed in at SCOTUS with a brilliant amicus brief about First Amendment protection for parody; this excerpt summarizes the overall flavor:

An unusual feature of Texas’s Reconstruction-era constitution is that it places county prosecutors in the judicial branch of government rather than the executive. As a result, last December, the Court of Criminal Appeals found a law unconstitutional that attempted to give the Texas AG prosecutorial authority over certain Election Code violations. Last week that court denied rehearing – given the several individual opinions and extensive briefing in the matter, here is a link to the case generally, from which one can find the original opinion and the various documents related to rehearing.

The supreme court has approved a new set of statewide rules about local court rules. A comment to new Tex. R. Civ. P. 3a summarizes their key features:

In a “failure-to-rule” mandamus proceeding about counsel’s motion to withdraw, the Fifth Court held:

“We do not adopt a ‘six-month rule’ or ‘ten-month rule’ or fix any similar bright-line demarcation for cases in which parties seek mandamus relief to compel expeditious disposition of motions. We do not repeat the myriad considerations, referenced above, that guide decision of each unique mandamus petition. All we hold is that—based on particular facts and circumstances here—ten months from filing the motion to withdraw and six months from the trial court’s hearing of the motion without ruling presents an unreasonable time warranting mandamus relief.”

In re Robinson, No. 05-22-00579-CV (Sept. 23, 2022) (mem. op.)

Reminding that the Family Code has some unique features not found in the more general Texas Arbitration Act, “which are expressly designed to avoid subjecting parties in divorce cases to arbitration when the contract containing the agreement to arbitrate is invalid or unenforceable,” the Texas Supreme Court held in In re Ayad that “[t]o comply with these statutes, a trial court must: (1) try the issue by giving each party an opportunity to be heard on all validity or enforceability challenges to the contract containing the arbitration clause, as well as an opportunity to offer evidence concerning any factual disputes or questions of foreign law material to the challenges; and (2) decide the challenges before ordering arbitration.” No. 22-0078 (Sept. 23, 2022) (per curiam).

The agreement at issue was an “Islamic Pre-Nuptial Agreement,” but the Court’s ruling did not require it to address any matters about the substance of that agreement.

After a recent ruling about appropriate jurisdictional discovery in a stream-of-commerce case, the Fifth Court reviewed the merits of a special appearance in another such matter in Far East Machinery Co. v. Aranzamendi.  Applying the current state of the law, including recent relevant opinions from both the Texas and United State Supreme Courts, the Court found that the record as to the following alleged contacts was insufficient to support personal jurisdiction in Texas over a claim about natural gas leaks from allegedly defective pipe:

• “arranging for the shipping of its products to the Port of Houston;
• some or all of the pipe was marked “FEMCO HOUSTON TX” and Far East Machinery’s deputy manager admitted Far East Machinery marked the pipe “FEMCO”;
• Far East Machinery has a website accessible in Texas advertising that its products meet certain standards of the American Petroleum Institute, and Far East Machinery stated on the sales documentation that the pipe had been tested and met those specifications;
• Far East Machinery has been involved in litigation in federal court in the Eastern District of Texas; and
• Far East Machinery’s deputy manager travels to Texas once a year.”

No. 05-21-00267-CV (Sept. 13, 2022) (mem. op.) (bullet points added).

Today, a birthday cross-post from sister blog 600Camp:

Today 600Camp celebrates its 11th birthday! For old times’ sake, here is the 10th-anniversary post from last year. Stir up some Shrimp Remoulade to celebrate properly!

In In re Smith & Nephew Orthopaedics Ltd., a dispute about “stream of commerce” personal jurisdiction, the Fifth Court observed:

As the Texas Supreme Court recently explained in Christianson Air Conditioning and Plumbing, a products liability case, ‘information sought in jurisdictional discovery must be essential to prove at least one disputed factor that is necessary to the plaintiff’s proposed theory or theories of personal jurisdiction.’ In that case, the supreme court observed that simply inserting the phrase ‘in Texas’ or ‘in Texas field conditions’ into a topic, as the plaintiffs in that case did, would not make it essential to prove specific jurisdiction.”

(citations omitted). Applying those principles, the Court reviewed ten corporate-representative deposition topics and held: “[T]he topics are too broad as they seek non-essential information that will not support [Plaintiffs’] stream-of-commerce plus theory.” No. 05-22-00495-CV (Sept. 16, 2022) (mem. op.).

Among many other issues, a question in LSC Towers, LLC v. LG Preston Campbell, LLC was whether a lease unambiguously foreclosed an access-easement claim:

In a (literally) picture-perfect description of ambiguity, the Fifth Court found this diagram ambiguous when “what might be a drawn pathway leading to the cell-tower lot from the south is scratched out, the word ‘Access’ with an arrow pointing to that same area is not scratched out.” No. 05-20-00433-CV (Aug. 30, 2022) (mem. op.).

An unusual application of Hughes tolling appeared in White Nile Software v. Travis. The issue of who was entitled to act on behalf of a potential legal-malpractice client remained unresolved for a whopping seven years:

“Thus, rather than coming to a conclusion in 2011, White Nile’s legal malpractice claims in state court were in a legal limbo while Mandell’s bankruptcy proceedings continued, pending a final determination of authority or capacity to take action on behalf of White Nile …  This issue was only resolved when the order of the bankruptcy court that Mandel had no shares in White Nile became final in October 2018.”

The Fifth Court concluded that this potential claims was tolled, quoting Hughes: “Where “a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” No. 05-20-00354-CV (Aug. 29, 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 dispute in In re Brown involved a trial subpoena to a corporate-representative witness. The court of appeals granted mandamus relief, analogizing Tex. R. Civ. P. 199 to Fed. R. Civ. P. 30(b)(6). The corporation, however, had also cited the general subpoena rule – Tex. R. Civ. P. 176 – and the supreme court remanded for consideration of those arguments:

Brown raised the argument that corporate-representative trial subpoenas are available under Rule 176 in both the trial court and the court of appeals. Brown observes that Rule 176.6(b) states that a corporation may “designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization” in response to a valid subpoena “commanding testimony.” Tex. R. Civ. P. 176.6(b). He further notes that an appropriate corporate-representative subpoena may command a person to “attend and give testimony at a . . . trial.” Tex. R. Civ. P. 176.2(a).”

No. 20-0992 (Tex. Sep. 9, 2022).

In 1915, Albert Einstein published an article about the structure of spacetime as defined by general relativity. In 2022, the Fifth Court reviewed the structure of spacetime as defined by the “time-notice” rule for premises-liability cases, finding that rule unsatisfied with this proof:

Nicholson testified that she had been in the store “maybe a minute” before she fell. She testified that there was “a substance on the floor” that caused her to fall, but she did not know what the substance was “because it was clear. It didn’t have, like, a color to it. It was a clear substance on the floor.” She testified that she was not sure how large the substance was before she fell because after she fell, “it was on my clothing. Like, my clothing was wet, so I’m not sure how much was down on the floor.”’

Nicholson v. Wal-Mart Stores, Inc., No. 05-21-00110-CV (Sept. 7, 2022) (applying Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002)).

Newsom, Terry, & Newsom LLP v. Henry S. Miller Commercial Co. reviewed the trial of an attorney-malpractice claim based on an untimely designation of a responsible third party. The Fifth Court found reversible charge error in the following jury instruction as an impermissible comment:

In resisting a motion to strike a designation of a responsible third party, the Terry Defendants would not have been required to prove the plaintiffs’ case that there was fraud in the underlying transaction. They could rely on evidence of the proposed transaction, its failure, and the identity of a responsible third party as the defaulting buyer in resisting a motion to strike a designation of a responsible third party.

No. 05-20-00379-CV (Aug. 31, 2022) (mem. op.).

The Texas Supreme Court granted review in United Rentals v. Evans, a challenging Batson issue. The supreme court does not take many jury-selection cases, much less Batson ones, so the opinion promises to be of broad general interest for civil trial practice.

For August’s end-of-month summary by the Fifth Circuit Bar Association, I contributed a one-page article about preparation for oral argument, complete with action picture (right), joining a similar one contributed last month by Association president Tom Flanagan of New Orleans. If you belong to the BAFFC, I encourage you to write one of your own! And if you don’t belong you should, it’s a great resource and features an outstanding body of work about the Fifth Circuit by the able Walter Woodruff, also of New Orleans.

Awards of appellate attorneys’ fees have become more detailed in recent months, following a Texas Supreme Court that clarified the necessary proof requirements. Bucking that trend, the prevailing party in Wafer v. Hiltop Residential obtained an award, “in the event of an unsuccessful appeal by [appellant], any reasonable and necessary amounts.” The Fifth Court dismissed the appeal for want of jurisdiction, as that language did not resolve the issue of appellate fees. The Court noted that the phrase was insufficient for “ministerial officers [to] carry the judgment to execution without ascertainment of facts” not stated in the judgment. No. 05-22-00546-CV (Aug. 29, 2022) (mem. op.).(Thanks to the eagle-eyed Ben Taylor for catching an error in my original post!)

The supreme court found that an excessive, unexplained delay in filing a mandamus petition barred relief in In re Self, observing:

Relators filed this mandamus petition on August 8, 2022. The petition seeks relief within eighteen days, by August 26, which relators contend is the deadline established by the Election Code for the relief they seek. The Libertarian Party nominated the disputed candidates, who had not paid the filing fee, in April 2022. Under relators’ view of the law, those candidates’ ineligibility attached in April 2022, when they were nominated despite not paying the fee. Nearly four months passed between the facts giving rise to the relators’ claims and the filing of this mandamus action. Relators do not provide any explanation for why these claims could not have been investigated and brought to the courts with the “unusual dispatch” our precedent requires of those who seek to use the court system to alter the conduct of elections.

(footnote omitted, emphasis added). While the “unusual dispatch” concept is unique to election-law cases, Self nevertheless provides a good general reference point for when laches will bar mandamus relief in civil cases more generally. No. 22-0658 (Tex. Aug. 26, 2022).

Fritz American Mangagement LLC v. Huge American Real Estate, Inc. reversed a summary judgment in a contract case, noting, inter alia, fact issues on the defense of waiver. Points from the Fifth Court’s opinion include:

• Legal standard. In addition to the often-used definition of waiver as “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right,” the Court further observed: “The elements of waiver include
  (1) an existing right, benefit, or advantage held by a party; (2) the party’s actual
  knowledge of its existence; and (3) the party’s actual intent to relinquish the right,
  or intentional conduct inconsistent with the right.” In the specific setting of a contractual right, the Court further said: “A waiver of a right granted in a contract can occur in any of three ways: the right may be expressly renounced; the renunciation may be shown when a party knowingly possessing the right is inactive or silent for an unreasonable period of time such that the intention to waive is implied; or waiver can occur if a party knowingly possessing the right acts in such a manner that the party misleads the other party into believing that a waiver has occurred.”  (all citations omitted).
• Factually. “[Plaintiff] gave this permission after declining to respond either affirmatively or negatively to Fritz’s e-mail seeking permission for the remodel. … This is particularly true in light of the evidence showing that both parties were experienced Burger King franchisees that understood the nature of franchisor requirements. That is, Fritz’s evidence supported a reasonable inference that Huge Real Estate would have understood the sort of remodel sought by Fritz, which was required to maintain a Burger King franchise on the premises pursuant to the lease.”  (emphasis added).

In In re Five Star Global, LLC, the Fifth Court granted mandamus relief to restore a case to the jury-trial docket, when the effort to enforce a jury waiver came too late:

“In addition to paying the jury fee, real parties also explicitly demanded a jury in six pleadings filed between November 15, 2019 and October 21, 2020. Although real parties deleted the “Jury Demand” paragraph in two of the pleadings, those pleadings still requested a jury in the prayer section, and the “Jury Demand” paragraph even re-appeared in their October 21, 2020 pleading. Moreover, real parties never objected to FSG’s jury demand until they filed their motion to strike in February 2021, which was fifteen months after they initiated the lawsuit against FSG.”

No. 05-22-00153-CV (Aug. 15, 2022) (mem. op.).

If you don’t subscribe to Jerry Bullard’s excellent updates about the Legislature’s activities relevant to appellate practice, you should. His most recent one advises of an upcoming House committee hearing about, inter alia, “potential solutions to improve the judicial efficiency of the state courts of appeals ….”

The Fifth Court granted mandamus relief based on the attorney-immunity doctrine in In re: Sams:

“Maltezos’s claim is based upon the kind of conduct involved in legal representation. Labeling the conduct as fraudulent or wrongful does not remove it from the scope of Sams’s legal representation. The face of Maltezos’s petition establishes that his claims are barred by the defense of attorney immunity. Accordingly, they have no basis in law and were properly subject to dismissal under Rule 91a. We conclude that the trial court abused its discretion by denying Sams’s motion to dismiss. We conclude further that mandamus relief, rather than appeal, is appropriate in this case to spare the parties and the public the time and money spent on a fatally flawed proceeding.”

No. 05-22-00150-CV (Aug. 15, 2022) (mem. op.)

Full of Faith Christian Center, Inc. v. May affirmed a no-answer default judgment, making several points of general interest about that area of Texas procedure:

• Some service problems are fixable:  “T]he order denying the motion for default judgment was without prejudice and noted the returns failed to show Calvin’s authority to receive service. … The default judgment specifically referenced the second amended returns as support for the judgment and the court found all defendants were served properly and that the returns of service were on file at least ten days before the hearing on the motion to reconsider on July 31, 2020. These orders were ‘tantamount to formal amendment of the return of citation,’ and the record is sufficient to show valid service. An amended return relates back to the original return and is regarded as filed when the original return was filed.” (citation omitted).
• Even for a default judgment, basic damages principles must be followed: “The judgment awards punitive damages against appellants jointly and severally. This was error. See Tex. Civ. Prac. & Rem. Code § 41.006 (‘In any action in which there are two or more defendants, an award of exemplary damages must be specific as to a defendant, and each defendant is liable only for the amount of the award made against that defendant.’).”
• “86” Rule 44: “Rule 44.1(b) provides that when liability is contested, the court may not order a separate trial solely on unliquidated damages. Tex. R. App. P. 44.1(b). However, when a defendant appeals a no answer default judgment, liability is not contested for purposes of this rule.”

No. 05-20-00859-CV (Aug. 11, 2022) (mem. op.).

The well-known poem Antigonish begins:

Yesterday, upon the stair,
I met a man who wasn’t there
He wasn’t there again today
I wish, I wish he’d go away.

In that general spirit, in recent days, both the U.S. Court of Appeals for the Fifth Circuit and the Court of Appeals for the Fifth District at Dallas had close en banc votes involving questions of arbitrability, as to a party who “wasn’t there”–who had not signed an arbitration agreement, but was nevertheless potentially subject to it. (The Dallas case is discussed here; the Fifth Circuit’s, here.)

Whether the timing is an example of synchronicity I will leave to others. The courts’ difficulty with these issues shows the strong feelings provoked by the issue of court access, even among very sophisticated jurists, in an area of the law with well-developed case law on many key points.

The en banc Fifth Court divided 7-6 on a difficult arbitration issue; specifically, whether a court or the AAA should resolve arbitrability as to wrongful-death claims brought by estate representatives. Agreeing with the panel majority, the full-court majority  saw it as an issue for the AAA; the dissent, one for court. A concurrence urged consistency with applicable federal law. Prestonwood Tradition, LP v. Jennings, Nos. 05-20-00380 and -00387 et seq. (Aug. 5, 2022).

Justice Pedersen wrote the majority opinion, joined by Justices Myers, Schenck (who wrote a concurring opinion), Osborne, Reichek, Goldstein, and Smith. Justice Partida-Kipness wrote the dissent, joined by Chief Justice Burns and Justices Molberg, Nowell, Carlyle, and Garcia. The panel consisted of Justices Pedersen and Goldstein in the majority and Justice Partida-Kipness in dissent.

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.)

A recent Fifth Court opinion reminded of the importance of an offer of proof, in addition to arguing the related objection, to appropriately preserve error. In the same vein, Phoenix Thera-Lase Systems, LLC v. Curewave Lasers, LLC reminded of an additional step needed to preserve error as to a claimed violation of a motion in limine:

Here, Phoenix’ counsel objected immediately to Herbert’s reference to “two felonies.” However, counsel did not request an instruction to disregard; instead, following an off-the-record discussion at the bench, counsel withdrew the question that elicited the complained-of response. To the extent counsel did not request an instruction to disregard, any error is waived.

No. 05-20-00665-CV (Aug. 4, 2022) (mem. op.).

A well-known Zen koan involves the sound of one hand clapping. Similarly, JMJ Development, LLC v. Ramolia involved the Texas test for whether a judgment is final, which can be satisfied whether or not the judgment is, in fact, a resolution of all mattters in dispute:

Regarding finality, the trial court’s judgment states “This judgment finally disposes of all parties and claims and is appealable.” Appellants asserts this language conflicts with the language in the order granting summary judgment on “his claims” instead of granting summary judgment on all claims. However, nothing on the face of the order suggests that there is any claim or party that remains pending. Appellants’ argument might have merit had the judgment lacked the finality phrase. However, since the judgment included a finality phrase, it was clear and unequivocal, the record is irrelevant, and further analysis is prohibited.

No. 05-21-01100-CV (July 27, 2022) (mem. op.).

If you practice in Dallas County and want to move your case faster, associate judges can help speed up the process. Policies and procedures are available for both Associate Judges Hurdle and Merritt; in particular, as to court reporters:

My colleague Kyle Gardner and I wrote this article for the most recent Headnotes about two cases–one federal, one state–that summarize basic personal-jurisdiction principles for Texas in business cases.

The Texas Supreme Court has now given final approval to some new Rules of Appellate Procedure about the identification and disclosure of counsel.

Empower Texans, Inc. v. Dallas County involved open records request to Dallas County government. The panel majority held that “as a matter of law, the County’s conditional compliance by notifying Empower of the estimate costs for manipulation of data in order to redact and produce the electronic documents for inspection did not constitute a refusal to provide the requested information under [the statute] for purposes of waiving governmental immunity.” A dissent saw matters otherwise “[b]ecause the statute authorizes neither the conversion of files, the demand for payment of same, nor the resulting delay ….” No. 05-20-00546-CV (July 15, 2022) (mem. op.).

Gamble v. Anesthesiology Associates presented a tort claim, 2022-style, as follows:

• The accident. “Blain was also driving northbound on I-35 enroute to a business meeting in Oklahoma City for another Abeo client. During her drive, Richter called from his home in Kentucky to tell her he planned to announce his retirement to Anesthesiology Associates the next day. Blain answered the call on her hands-free Bluetooth device. She continued driving with her cruise control set at approximately eighty miles-per-hour while continuing the conversation. Blain hit and killed Gamble and the Good Samaritan. The accident investigation determined the collision occurred because of Blain’s inattentive driving while talking on the cellphone.
• Duty? “The critical fact in these cases [cited by Plaintiff] that is distinctly missing from the facts at hand is a passenger in close proximity distracting the driver. Here, the alleged distraction came from Richter’s phone call, which originated miles away in another state. Appellants have provided no Texas authority recognizing such an expansive duty. Until the Texas Supreme Court or the legislature indicates such a duty exists, we refuse to create one having such far-reaching implications for essentially all cellphone users anywhere in the world.” (emphasis added)

No. 05-20-01024-CV (July 21, 2022) (mem. op.).

Choi v. Brixmore Holdings provides a good example of when an offer of proof is required to preserve a matter for appellate review:

“Although it is the landlord’s duty to mitigate damages, the tenant has the burden of proving that the landlord has failed to mitigate damages and the amount by which the landlord could have reduced its damages. Neither the Guptas nor Choi offered or sought to offer evidence about Brixmor’s failure to relet the premises. Nor did they make an offer of proof of the amount of damages they contend Brixmor should have mitigated by undertaking an investigation before entering into the assignment, even though the trial court invited them to ‘submit an Offer of Proof on that via affidavit’ after sustaining Brixmor’s objection.”

No. 05-20-00516-CV (July 21, 2022) (mem. op.) (citation omitted).

Actress and inventor Hedy Lamarr said that “all my six husbands married me for different reasons.” Because judges can also reach the same decision for different reasons, the Fifth Court recently observed that “we ‘must uphold a correct lower court judgment on any legal theory before it, even if the court gives an incorrect reason for its judgment.'” Choi v. Brixmore Holdings, No. 05-20-00516-CV (July 19, 2022) (mem. op.).

Fans of appellate terminology will recall a recent blog post about the distinctions among the words “rendered,” “entered,” and “signed” in the context of judgments. The Fifth Court applied those distinctions in In the Interest of C.D.G., a challenge to a judgment entered nunc pro tunc. The Court said:

• “A judgment is ‘rendered’ when the decision is officially announced either orally in open court or by memorandum filed with the clerk. On the other hand, a judgment is ‘entered’ after being signed by the trial court judge.”
• Therefore: “The nunc pro tunc requirement is satisfied only if there is some evidence that the trial court had, at some point before the original order was entered, rendered judgment inconsistent with the language actually entered in the original order. If nothing in the record shows that there is a discrepancy between the judgment as rendered and the judgment as entered, we are compelled to hold that the error in the signed final judgment was a judicial error and thus a judgment nunc pro tunc cannot stand.”
• And importantly: “The focus is … on the actions of the court, not the parties. Thus, the mere fact that the parties entered into an [agreement] or filed it with the court, without more, does not translate that act into the entry of a judgment thereon by the court. A judicial error is an error which occurs in the rendering as opposed to entering of a judgment.”

No. 05-21-00132-CV (July 15, 2022) (mem. op.) (citations omitted, emphasis in original).

The Texas Supreme Court’s majority opinion in In re: Abbott–a mandamus about an appellate stay order in ongoing litigation about medical care for transgender youth–contained an intriguing footnote about the potential boundaries set by the Texas Constitution for appellate-stay orders:

“The State contends that, under an 1880 decision of this Court, courts of appeals exercising appellate jurisdiction lack any authority to “protect the parties from damage during the pendency of the appeal.” City of Laredo v Martin, 52 Tex. 548, 554 (1880). As we observed in Geomet, in which no party raised Martin, such a line of argument “amounts to a constitutional attack on Rule 29.3.” 578 S.W.3d at 89–90. We further noted in Geomet that a state of affairs in which no court can protect parties’ rights during an interlocutory appeal would raise constitutional questions about the automatic stay of trial court proceedings afforded by section 51.014(b) of the Civil Practice and Remedies Code. Id. at 90. Likewise, the limitation on appellate courts’ Rule 29.3 authority suggested by the State would raise constitutional questions about the State’s statutory right to automatically supersede injunctions on appeal. We do not purport to resolve any of these questions in this expedited mandamus posture.”

No. 22-0229 (May 13, 2022).

Emphasizing “our common-sense approach to error preservation,” in Browder v. Moree the Texas Supreme Court held:

If a trial court indicates that it will proceed with a bench trial in a case where a jury demand was timely perfected, a demanding party that still wishes to have a jury trial must ensure that the court is aware of the demand. But neither our procedural rules nor this Court’s decisions require a party that has obtained an adverse ruling from the trial court to take the further step of objecting to that ruling to preserve it for appellate review. Once the trial court denied Browder’s request for a jury trial, Browder had no choice but to go forward with the bench trial. … ‘If simply adhering to an adverse order while continuing to litigate waived review of that order on appeal from a final judgment, there would be few orders left to review.'”

No. 21-0691 (June 24, 2022) (per curiam) (citation omitted).

Wilson v. Capital Partners Financial Group, No. 05-20-00704-CV (July 5, 2022) (mem. op.), addressed the UCC’s requirements for a secured creditor giving notice about the disposition of collateral, in the context of an email among the parties (all citations omitted):

1. “The first element is to describe the debtor and the secured party. We conclude that the e-mail satisfies this element. The e-mail mentions Capital Partners and gives information from which Capital Partners’ status as a secured party could be inferred.”
2. So far so good. But then things changed. “The second element requires the secured party to describe the collateral that is the subject of the intended disposition. In general, a description of personal property is sufficient, whether or not it is specific, if it reasonably identifies what is described. … In the e-mail, Austin states a plan to liquidate what he variously referred to as ‘what is at the facility’ and ‘the items.’ These descriptions are insufficient.”
3. “BTH and Capital Partners fare no better on the third element, which requires the secured party to state the method of intended disposition. To satisfy this element, we have required the notification of disposition to state, at a minimum, whether the disposition will be through a public or private sale.”
4. “The fourth element requires the notification to state ‘that the debtor is entitled to an accounting of the unpaid indebtedness and state[] the charge, if any, for an accounting.’ The e-mail makes no mention of appellants’ right to an accounting, and it does not satisfy this element.”
5. “The fifth element requires the notification to state ‘the time and place of a public disposition or the time after which any other disposition is to be made.’ …  While the e-mail gives dates for the repossession, it offers no information concerning when the sale might occur. Therefore, it fails to satisfy the fifth and final element.”

The Fifth Court provided a valuable reminder about the enforcement of post-litigation agreements in Patel v. Gonzalez Hotels:

“Written settlement agreements may be enforced as contracts even if one party withdraws consent before judgment is entered on the agreement. When consent is withdrawn, however, the agreed judgment that was part of the settlement may not be entered. The party seeking enforcement of the settlement agreement must pursue a separate claim for breach of contract, which is subject to the normal rules of pleading and proof.” (citation omitted).

However, this principle does not apply to all agreements covered by Tex. R. Civ. P. 11, such as stipulations about evidentiary matters, as discussed in this article I co-authored a couple of years ago on the subject. (A big 600Commerce thanks to the able Ben Taylor for drawing this case to my attention!)

An out-of-state guarantor was subject to suit in Texas when

Whited personally guaranteed the performance and payment of “any and all financial, credit or business obligations” that one Texas company owed to another Texas company. [1] These obligations were those of a managing general agent as defined by the Texas Administrative Code and the Texas Insurance Code. [2] He agreed that his guaranty would be “interpreted by, construed in accordance with, and governed by the laws of the State of Texas.” Moreover, the agreement he guaranteed included another such Texas choice-of-law clause as well as a Texas forum-selection clause. Both his guaranty and the MGA obligations he guaranteed were performable in Dallas County, Texas. [3] Old American agreed to appoint Windhaven as its managing general agent after Whited agreed to execute this guaranty. According to the guaranty agreement, Whited agreed to it because he “desire[d] to continue the appointment of [Windhaven] a [sic] Texas Managing General Agency to act as [Old American’s] Managing General Agent”; he “wish[ed] to facilitate such continuing appointment”; and he wished to increase Old American’s financial security. 

Whited v. Old American County Mut, Fire Ins. Co., 05-21-00536-CV (June 16, 2022) (mem. op.) (references added).

Yedlapalli v. Jaldu, in rejecting sufficiency challenges to a judgment in an auto-collision case, summarizes the infrequently appealed but practically important case law about negligent driving. In particular (and contrary to what my Driver’s Ed teacher said in high school), the Fifth Court reminds:

With rear-end collisions, ‘standards of ordinary care cannot be fixed with any degree of certainty but must be left in large measure to the trier of the facts.’ … [T]he mere occurrence of a rear-end accident does not establish negligence as a matter of law. ‘And it is neither impossible nor automatically invalid for a jury to determine that neither driver in a rear-end accident committed negligence.’ … ‘A rear-end collision may be some evidence of negligence of the rear-ending driver, but it does not constitute conclusive proof.'” 

No. 05-20-00531-CV (June 28, 2022) (mem. op.) (citations omitted).

The Fifth Court affirmed summary judgment for the defense in a sexual abuse case involving long-ago events, summarizing:

“We do not question the sincerity of Doe’s motive for bringing the lawsuit or the reality of the terrible ordeal he underwent at the hands of a person who should have protected him and while in the care of organizations dedicated to protecting children like himself. … . The purpose of the statute of limitations is to ‘protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise.’ The forty years between the assault and Doe’s bringing suit has taken a toll on the evidence available in this case as every person involved aside from Doe and G.L. appears to be deceased. The courts have created narrow exceptions to the application of the statute of limitations, including the discovery rule, fraudulent concealment, and equitable estoppel, but the evidence conclusively established those exceptions do not apply in this case and that Doe did not present evidence raising a genuine issue of material fact as to whether those exceptions apply.”

Doe v. Catholic Society, No. 05-21-00616-CV (June 30, 2022) (mem. op.).

The Fifth Court granted mandamus relief in a failure-to-rule case when: “The ninth and current trial setting is for June 27, 2022, which is less than a week away. The motions were filed more than three months to over twenty-two months ago; the summary judgment motions were heard more than ten months ago; and the remaining motions were heard almost two months ago. The record reflects that relators have requested rulings multiple times. Further, respondent has a history of failing to rule in this case, which has already required this Court to conditionally grant mandamus relief.” In re Reiss, No. 05-22-00575-CV (June 21, 2022) (mem. op.).

In the context of a mandamus petition about a responsible third-party designation, the Fifth Court rejected a ripeness argument based on the pendency of a related motion:

“We conclude that the trial court’s denial of relator’s motion to designate Michael as a responsible third party was a concrete injury. This injury is not rendered “contingent or remote’ by relator’s pending motion to join Michael as a contribution defendant, because even the granting of that motion would not provide the relief that relator seeks in this proceeding.”

In re Modern Senior Living, No. 05-22-00283-CV (June 17, 2022) (mem. op.) (citations omitted).

The Fifth Court recently granted mandamus relief as to an excessive e-discovery order in In re Meadowbrook Baptist Church, No. 05-22-00271-CV (June 15, 2022) (mem. op.), even though the real party in interest had written a letter saying it did not intend to enforce the relevant order. The Court found that the proceeding was not mooted by that letter, since the order itself remained in effect.

In re Weekley Homes was not satisfied as to an electronic-discovery order, and mandamus relief was granted, when the record showed:

• No discovery default by nonmovant. “Meadowbrook responded to Blalock’s discovery requests and produced responsive documents in its possession. Where Meadowbrook found no responsive documents to a request, Meadowbrook confirmed that it diligently searched for responsive documents and found none. Indeed, the record shows that Meadowbrook withheld only five responsive documents, which were baptismal certificates of minors. Moreover, in its response and objections to the RFI, Meadowbrook presented a suggested protocol and parameters for searching the computer and stated that it would allow a search of the computer if an agreement could be reached with Blalock as to search terms and search protocols.”
• No likely benefit. “[Blalock] relied solely on her suspicions that a forensic expert would be able to recover additional relevant materials that may have been deleted from the computer prior to the incident in question. Mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device.”

In re Meadowbrook Baptist Church, No. 05-22-00271-CV (June 15, 2022) (mem. op.)

2 recent opinions state basic principles about stare decisis in Texas:

• The Texas Supreme Court expressly adopted the “rule of orderliness” concept in Mitschke v. Faiva, No. 21-0326 (May 13, 2022), observing: “If one appellate panel decides a case, and another panel of the same court differently resolves a materially indistinguishable question in contravention of a holding in the prior decision, the second panel has violated the foundational rule of stare decisis. Affording stare decisis authority to the second case would be tantamount to eliminating stare decisis altogether, as nothing would stop a third panel from returning to the initial outcome, or going yet another way.”
• A recent concurrence by Justice Schenck reminded: “I will … simply note that under the doctrine of stare decisis courts are bound only by the holding and discussion necessary to the resolution of the case. Newman v. Minyard Food Stores, Inc., 601 S.W.2d 754, 756 (Tex. App.—Dallas 1980, writ ref’d n.r.e.).”

In a state-court maritime case, this clause: ” . . all parties agree that any legal action seeking relief for a covered dispute must be filed in either (1) the United States District Court for the Western District of Kentucky, or (2) the McCracken County Circuit Court in Paducah, Kentucky” was held to be an enforceable forum-selection clause rather than an impermissible venue-selection clause. Risher v. Marquette Transp., No. 05-21-00289-CV (June 8, 2022).

Our firm again achieved Chambers & Partners Band One status this year for commercial litigation in the D/FW area; my partner Mike Lynn and I wrote the lead article introducing this year’s rankings and talking about our area’s strong economy and legal market.

After a powerful summary of Texas’s constitutional protection for court access and jury trial, the en banc court in Maypole v. Acadian Ambulance Service reversed the dismissal of a medical malpractice claim for alleged shortcomings in the required medical authorization form. A concurrence agreed with the result but not the scope of the majority opinion. No. 05-18-00539-CV (June 10, 2022) (Hat tip to 600Commerce friend Ben Taylor for pointing this case out to me).

Allegheny Millwork v. Honeycutt highlights a tension in some requests for sanctions–a request for a large amounts of attorneys’ fees can be inconsistent with the underlying claim that a position is not well-founded:

“While Allegheny’s counsel’s failure  o reconcile or even address that the case is disappointing, and thereby raises an issue of candor with the Court, we do not see it as sufficiently egregious to support a shifting of fees, and certainly not in the amount requested by NQS. Given this Court’s familiarity with its own opinion in Ninety Nine Physicians, a brief reference to the case in response to the attorney’s fee issue would have sufficed.”

No. 05-21-00113-CV (June 8, 2022) (mem. op.) (footnote omitted).