In U.S. Polyco, Inc. v. Texas Central Business Lines Corp., the Texas Supreme Court reversed a contract case based on the definition of ambiguity. The court also rejected an argument for affirmance based on “context,” stating:

The task of harmonizing contracts entails reconciling otherwise conflicting contractual provisions. That task does not authorize courts to ensure that every provision comports with some grander theme or purpose, particularly when the parties have not said in the contract which purpose matters most or that everything else in thecontract should be read subject to that purpose. To hold otherwise would implicitly assume that contracting parties pursue a purpose (at whatever generality) at all costs.

No. 22-0901(footnote omitted).

Note that this concept is distinct from “commercial context”–the circumstances surrounding the  execution of a contract, within the reasonable awareness of parties. See, e.g., Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445 (Tex. 2015) (“We may consider the facts and circumstances surrounding a contract, including ‘the commercial or other setting in which the contract was negotiated and other objectively determinable factors that give context to the parties’ transaction.'” (citation omitted)).

In U.S. Polyco, Inc. v. Texas Central Business Lines Corp., the Texas Supreme Court reviewed a contract dispute, and gave a reminder about a basic principle of contract interpretation.

The dispute involved the below language about “other items … as are agreed upon by TCB and [Polyco] in writing” (green, below).

One side contended that it applied only to the “other items” Designated Areas” referred to earlier in the clause (red, below). The other argued that it reached all items listed in the full paragraph (blue, below):

The trial court, court of appeals, and supreme court all agreed that the bettter reading of the “in writing” clause was that it only related to the “other items” (noting, among other matters, the importance of the “Oxford comma”). But the court of appeals found ambiguity, based on its characterization of the parties’ dueling interpretations as reasonable, and that is the point on which the supreme court reversed:

This analysis is erroneous for two basic reasons. First, like all other considerations beyond the contract’s language and structure, parties’ “disagreement” about their intent is irrelevant to whether that text is ambiguous. Parties who find themselves in a business dispute can always claim an extratextual “intent” that would serve a current litigation position. Second, the “multiple, reasonable interpretations” that the court of appeals invoked are illusory. If there were multiple interpretations and a court could not choose among them, then the text would be genuinely ambiguous and there would be no choice but to leave the question to a jury. But the multiple interpretations that the court was referencing here were merely the competing theories that the parties advanced about how to read the text—a dispute that both the trial and appellate courts had ably addressed as a matter of law.

No. 22-0901 (Nov. 3, 2023) (emphasis removed).

Thanks to a persuasive letter from a typographically sophisticated attorney, the Maryland Supreme Court recently recently modernized its list of acceptable fonts, as follows (omitting Palatino and Equity, however). Thanks to my law partner Greg Brassfield for drawing this to my attention!

Also of general interest, the letter links to an informative series of Tweets about the typography used in the federal courts of appeal.

Dallas-Fort Worth International Airport, by any measure one of the world’s largest airports, sprawls into the boundaries of four cities and two counties. But that undisputed fact does not automatically establish venue over American Airlines in Dallas County, as shown by American Airlines v. Halkuff:

American offered evidence that the facts giving rise to appellees’ claims arose in Tarrant County because the terminal where the incident took place is—like all DFW terminals—located in Tarrant County. American’s undisputed evidence included specific identification of Terminal D and Gate D-38 as the location where the flight at issue boarded. According to American’s evidence, Terminal D and its associated runways are located entirely in Tarrant County. This evidence not only disproved appellees’ venue fact, it also amounted to evidence that Tarrant County was a proper venue.

No. 05-23-00621-CV (Oct. 18, 2023) (mem. op.).

The Fifth Court confirmed the confirmation of an arbitration award arising from a dispute about the purchase of a surgical center in Minimally Invasive Surgery Inst., LLC v. MISI Realty CC Dallas, LP. It reminded about two basic points in challenging arbitration awards:

• “‘Manifest disregard of the law‘ is not a valid ground for vacating an arbitration award under the FAA or TAA.”
• “[T]he Final Award notes the four-day arbitration included offers of proof, counsel statements, witness testimony, deposition and documentary evidence, and post-arbitration briefs. The arbitration award also states: ‘All issues have been determined by the evidence presented during the full arbitration.’ The award provides findings and conclusions with analysis. But the record contains little more than the arbitration award, the lease agreement, and the trial court order granting the motion to confirm the arbitration award. There is no list of exhibits or witnesses, no record of exhibits admitted into evidence or rulings on evidentiary objections, and no transcript of the proceedings. The trial court and appellate records do not include a complete record of the arbitration, and what is included is insufficient to allow this Court to conduct a meaningful review of any claimed ‘manifest disregard of the law’ by the arbitrator.”

No. 05-22-00581-CV (Oct. 19, 2023) (mem. op.) (emphasis added).

The Fifth Court declined to resolve a dispute about a spoliation instruction when the relevant record was as follows:

It is not clear what happened. We are reasonably confident that a charge conference of some kind took place during the “Off-the-record discussion” noted in the reporter’s record passage quoted above. Judge Moyé said, “We are off the record,” just before the unrecorded discussion occurred, so perhaps the attorneys were on notice that the court reporter was not transcribing their objections to the final charge. Then again, perhaps they weren’t. Perhaps something happened during the unrecorded conference to make the Monzingos’ attorney reasonably but erroneously believe that the court reporter had begun recording the charge conference before he made his objections to the charge. And during this appeal, Flories has never argued that the Monzingos failed to preserve their second issue.

Monzingo v. Flories, No. 05-22-00719-CV (Oct. 12, 2023).

A contentious eviction case was resolved with a straightforward jurisdictional principle in In re Saving Grace #2, LLC:

Here, the county court’s final judgment was signed on September 1, 2022. No appropriate motion to extend the trial court’s plenary jurisdiction was filed within 30 days of the final judgment. Thus, the county court’s plenary jurisdiction expired on October 1, 2022. See Tex. R. Civ. P. 329b(d). The county court’s stay order was entered on May 19, 2023—well past that deadline. Because the county court may not issue a stay order after plenary power expires, see Tex. R. Civ. P. 329b(f) (explaining the limited actions a court may take after plenary power expires), we conclude that the stay order issued seven months after plenary power expired is void.

No. 05-23-00745-CV (Oct. 13, 2023).

Empowerment Homes LLC v. Aleman undid a series of unfortunate events surrounding a default judgment, as follows:

• Incorrect, but well-intentioned, answer. “Arce filed a pro se answer using a standard “Defendant’s Answer” form. He incorrectly identified “Empowerment Homes LLC” as “Plaintiff,” but then listed his information under section “1. Defendant’s Information.” He signed the Answer in his individual capacity. He indicated in his affidavit attached to the motion for new trial he “thought I was answering on behalf of both myself and Defendant Empowerment Homes, LLC. I was not aware that I could not represent Empowerment Homes, LLC as I am not an attorney licensed in the State of Texas.” Under these facts, we conclude Arce tried, albeit deficient, to answer on behalf of Empowerment.”
• Deemed admissions. “The court held a hearing on the motions, and Arce attended. Appellants do not assert, and the record does not imply, Arce asked to withdraw the deemed admissions at the hearing. Instead, despite notice of the mistake prior to entry of final judgment, appellants did nothing and waited until the motion for new trial to request withdrawal of the deemed admissions. Thus, the equitable considerations that might permit a party to move post-judgment for withdrawal of deemed admissions are not present in this case.”
• Misuse of deemed admissions.  “Because appellees failed to establish an element of their summary judgment burden—that Arce acted in bad faith or callous disregard to the rules by not answering the request for admissions—the trial court erred in granting summary judgment based on the deemed admissions.”

No. 05-22-01082-CV (Oct. 9, 2023).

Mode, a Texas-based provider of transportation services, had a contract with Boyer (and later, his company, MTSI) to act as its sales agent. After some years under the contract, Boyer sought to sell MTSI to an unrelated company called MX, while also discussing a potential sale of MTSI to Mode.

When Mode learned of the Boyer-MX communications, it sued all three parties (Boyer, MTSI, and MX) for taking trade secrets; Boyer and MTSI for breach of their sales-rep contract with Mode; and MX for tortiously interfering with that contract.

The Fifth Court affirmed the denial of the special appearance made by Boyer and MTSI, noting that significant business they conducted in Texas pursuant to their relationship with Mode. But the Court reversed the denial of MX’s special appearance, noting recent Texas and U.S. Supreme Court opinions about “stream of commerce” jurisdictional issues, and nevertheless concluding: “Mode seeks to premise specific jurisdiction over MX based on the ‘directed a tort’ or ‘effects’ theory” that the Texas Supreme Court has rejected. Boyer v. Mode Transp., LLC, No. 05-23-00008-CV (Oct. 4, 2023) (mem. op.).

Boyer v. Mode Transp., LLC, decided by the Fifth Court last week, provides a useful “update” of special-appearance law after some recent Texas and U.S. Supreme Court opinions, and I’ll have a post about it later in the week. A footnote involves an important practical issue in preparing a case for appeal:

The public clerk’s record will contain redacted versions of anything that was filed under seal, pursuant to a protective order, etc. Counsel has to identify such materials before briefing starts and find a way to get that material to the court of appeals before briefing begins. That often requires some coordination with the staff of both the relevant trial and appeals court.

Together with the able Ben Taylor, I have an article in the most recent Baylor Law Review called “Judgment Rendition in Texas.” The abstract is below. Our article was inspired by a 1975 article by Justice Robert Calvert in the Texas Tech Law Review called “Appellate Court Judgments or Strange Things Happen on the Way to Judgment.” We hope that we updated some of his insights for modern-day appellate practice.

The Fifth Court affirmed the denial of a TCPA motion to dismiss on procedural grounds in Quality Cleaning Plus, Inc. v. Preferred Staff, LLC:

“When a separate and independent ground that supports a ruling is not challenged on appeal, we must affirm the lower court’s ruling.” Here, Preferred argued in the trial court that the TCPA is inapplicable on several bases, each of which constituted an independent ground that could support the trial court’s ruling. QCP did not address or mention any of these bases in its appellate brief. Because QCP failed to challenge every independent basis supporting the trial court’s ruling, we must affirm that ruling.”

(citations omitted). Importantly for practitioners who file TCPA motions: the panel majority denied a sanctions motion about this TCPA filing, but a concurrence questioned whether the appeal – particularly, in light of the failure to address the issue noted above – had been taken in good faith or simply to obtain the benefits of the statutory stay. 

A declaratory-judgment claim in a will contest led to a counterclaim based on the will’s in terrorem clause. That counterclaim was met by a TCPA motion to dismiss, which was denied by operation of law. The Fifth Court reversed in Roach v. Roach, No. 05-22-00194-CV (Sept. 18, 2023) (mem. op.).

Specifically, the Court concluded that the TCPA applied, as the “counterclaim was based on or in response to” a pleading. Then, noting a handful of Texas cases involving comparable will cases, the Court held that “appellees failed to meet their burden to establish by clear and specific evidence a prima facie case that John’s declaratory action violated the will’s in terrorem clause.”

While Texas law does not find personal jurisdiction when the defendant “directs a tort” toward Texas with out-of-state activity, the analysis changes when the tort is, in fact, committed in Texas:

Trinity is registered with the Texas Secretary of State and operates a regional service center in Euless, Texas, which employs a manager and thirty-three employees. The record reflects Trinity recruited and employed Evenflow and Manselle while both were still working for TTS, and during such time Manselle disclosed to Trinity TTS’ confidential business information related to Texas customers and interfered with TTS’ business in Texas. Trinity’s regional service center in Texas permitted Trinity to capitalize on confidential and proprietary information concerning TTS’ customers and business operations in Texas. In fact, in the twelve months following Trinity’s appropriation of TTS’ confidential business information, Trinity earned approximately $475,000 in recurring Texas-based business.

TTS LLC v. Evenflow LLC, No. 05-22-00770-CV (Sept. 15, 2023) (mem. op.). The court also noted an interesting counterpoint to the often-cited principle that “[w]hen a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied”; namely, that “[a]lthough the trial judge acts as the factfinder and must resolve any factual disputes in the special-appearance evidence, the judge must accept as true any clear, direct, and positive evidence presented in an undisputed affidavit.” (citations omitted).

Below is a reminder email recently sent by the DBA Appellate Section about the annual joint Dallas-Tarrant meeting tomorrow (22nd), which will be at the Arts District Mansion and has lots of great material this year:

Greetings, colleagues! Welcome to your second-to-last reminder email about tomorrow‘s (September 22) Annual Joint Meeting with the Tarrant County Appellate Section.  We’ve got some terrific speakers lined up for you, a fun reception afterwards (generously underwritten by Duane Morris LLP), and a bonus ethics CLE opportunity over the lunch hour by also attending the DBA’s Day of Civility luncheon.

As a bonus you don’t have to go far – this year’s meeting will be at the Dallas Arts Mansion. Yay!

Register here for the joint meeting:

https://www.dallasbar.org/?pg=events&evAction=showDetail&eid=271565&evSubAction=viewMonth&calmonth=202309

Meeting Agenda:

8:00 am: Registration and continental breakfast

8:30 am: Practice and Procedure at the 5th Court of Appeals, presented by Justices Ken Molberg, Cory Carlyle, and Erin Nowell (Moderator: Anne Johnson)

9:45 am: Practice tips for success at the 2nd Court of Appeals, presented by Justices Elizabeth Kerr, Dana Womack, and Mike Wallach (Moderator: Chris Knight)

11:00 am: Supreme Court Q&A with Justices Jane Bland and Jimmy Blacklock

12:00 – 1:00: Lunch (Optional: Attend Day of Civility luncheon in adjoining room for                       additional 1.00 hour of CLE credit)

1:00 pm: The state of the Texas Judiciary with Chief Justice Nathan Hecht followed by a panel discussion with Chief Justices Hecht, Robert Burns, and John Bailey (Moderator: David Coale)

2:00 pm: Reception

The Fifth Court granted mandamus relief in a failure-to-rule case in In re Z Resorts Management LLC–an unusual hybrid of a wrongful-death lawsuit and a dispute about child guardianship. One of the motions addressed the authority of a party to represent a minor’s interests in the litigation. The court rejected an argument that an earlier ruling on a related topic prevented the pursuit of this mandamus petition:

Parguian argues that the Rule 12 Motion serves only to relitigate the trial court’s earlier ruling on the Amended Plea. Because both rulings address Parguian’s capacity to represent the Minor Children, we agree that some questions couldoverlap. But other questions will be new to the issue. The trial court will now have the SAPCR order and the intervening Paternal Grandparents before it when making the capacity decision. Moreover, even if circumstances had not evolved with the signing of the SAPCR order and the intervention of the Paternal Grandparents, the trial court always retained its plenary power to change its capacity ruling. Accordingly, requiring the trial court to rule on the Rule 12 Motion is not an empty or redundant directive

No. 05-23-00425-CV (Sept. 11, 2023) (mem. op.)..

While option agreements are an important part of commercial law, their specific legal requirements are not as frequently litigated as other contract-law concepts. Vertical Holdings, LLC v. LocatorX, Inc. holds that a failure to pay a specified $1,000 price precluded exercise of an option, because:

Under Texas law, to exercise an option, “strict compliance with the provisions of an option contract is required … [A]cceptance of an option must be unqualified, unambiguous, and strictly in accordance with the terms of the contract.” And “any failure to exercise an option according to its terms, including untimely or defective acceptance, is simply ineffectual, and legally amounts to nothing more than a rejection.

No. 05-22-00720-CV (Sept. 13, 2023) (mem. op.) (citations omitted).

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

1. Good cause. Counsel’s affidavit said:

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

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

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

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

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

Whether Texas needed a 15th Court of Appeals was (and on some points, continues to be) a matter of considerable debate. The supreme court’s recent opinion in In the Interest of AB and DB highlights another aspect of Texas’ intermediate court system that just hasn’t aged well.

Appeals from Gregg County proceed to both the Sixth and Twelfth Courts of Appeal; in that case, one parent appealed a parental-rights judgment to the Sixth Court, while the other appealed to the Twelfth. In the resulting confusion, the supreme court held that the father’s appeal was erroneously dismissed:

The Twelfth Court’s dismissal of the appeal upon Father’s motion did not divest the Sixth Court of jurisdiction. The Sixth Court concluded in error that the Twelfth Court’s dismissal fully adjudicated Father’s appeal.  Rule of Appellate Procedure 42.1(a)(1) provides that an appellate court may not dismiss an appeal if “such disposition would prevent a party from seeking relief to which it would otherwise be entitled.” The Twelfth Court’s dismissal, which explicitly withheld adjudication under Rule 42.1(a)(1), was without prejudice to Father’s pursuit of his appellate rights in the Sixth Court. The Sixth Court improperly interpreted the dismissal as a final disposition preventing Father from seeking further relief in a court of appeals.

No. 22-0864 (Tex. Sept. 15, 2023) (per curiam).

This situation is relevant to Dallas because appeals from Hunt County (Greenville) alternate between Dallas and the Sixth Court. While the supreme court’s opinion capably reviews the applicable procedure, the more relevant question is why? It’s not readily apparent what benefit results from a system that can produce this kind of satellite proceeding.

In the latest Baylor Law Review, you can read an article that I co-wrote with the capable Ben Taylor called “Judgment Rendition in Texas” – here’s a link, and this is the abstract:

.

Novak v. State Farm Lloyds reminds of the importance of following through on the motion practice necessary to establish the receipt of an instrument: “Though appellants attempted to invoke the civil procedure rule 306a(4) and (5) procedure to have the trial court determine the date they received notice of the dismissal as October 11, 2021, such that their motion to reinstate was timely and properly invoked the court’s jurisdiction, they did not request the trial court to issue a ruling to that effect, and the trial court did not do so in any order. ‘Without a finding of the date notice was actually received,’ and a written order to that effect, the motion to reinstate was untimely.” No. 05-22-00061-CV (Sept. 5, 2023) (mem. op.).

AMPM Enterprises v. Borders, a dispute about alleged failures to pay for gasoline deliveries to service stations, presented a good example of a basic issue, and an interesting example of a less common one.

• Proveup. “Here, Borders’ December 23, 2020 affidavit established that he was the vice president of Borders and was responsible for overseeing the maintenance of Borders’ books and records of sales and accounts and was the custodian of such records. The affidavit stated that the table showing a balance of $42,151.82 owed by AMPM and PTE was ‘a true and correct copy of Borders’ records reflecting charges incurred by AMPM and PTE for gasoline delivered to AMPM and PTE’s stores or related fees or services incurred pursuant to the agreement of the parties,’ and the table was ‘created in the ordinary course of business and reflects a systematic record of the amounts owed by AMPM and PTE to Borders.’”
• Performance. “It is not disputed that AMPM and Asghar entered into contracts with Borders in October 2010 to provide fuel at four locations, and Borders continued to provide fuel, and AMPM continued to pay for it, until some time in 2017. Borders and PTE commenced an oral relationship involving requests and delivery of fuel in 2017. During that transactional history, AMPM, Asghar, and PTE did not complain about fees included in the price of fuel or challenge the validity of their contracts with Borders. Under the facts and circumstances of this case, we conclude neither the absence of a price specified in the underlying contracts nor the absence of provisions for the payment of “monthly fees, network fees, and mystery shoppers fees” raised a fact issue as to the amounts owed to Borders under the contracts.”

While In the Matter of J.W. involved an unusual problem–an Anders brief that, for the second time, appeared inadequate–it provided a reminder about a basic distinction that is sometimes overlooked. “Frivolity,” as to an appeal issue, is not the same as “reversibility”:

The two concepts are certainly not the same. An appeal is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.”  Arguments are frivolous when they “cannot conceivably persuade the court.”  An appeal is not wholly frivolous when it is based on “arguable” grounds.  Reversal only occurs if arguable error is found to have occurred, and was harmful. . Many nonfrivolous arguments identify errors that do not result in reversal.

No. 05-22-00556-CV (Aug. 28, 2023) (mem. op.) (citations omitted).

Pizza Hut LLC v. Pandya resolves two issues about waiver of jury trial:

• Burden. “[T]he party objecting to the enforcement of a waiver in a facially valid contract bears the burden of showing the waiver’s unenforceability.”
• Fraud? “[A] fraud claim must be alleged against the jury waiver specifically.”
• Knowing? These, nonexclusive factors answer the question whether a pre dispute jury waiver is knowing or voluntary: “(1) whether both parties had an opportunity to negotiate the terms of the agreement, (2) whether the provision waiving jury trial was conspicuous, (3) the relative bargaining power of the parties, and (4) the business acumen or professional experience of the party opposing the waiver,” as well as “whether the party was represented by counsel.”
• Scope. When the parties had a series of agreements, language in one agreement’s waiver that appies to “any litigation by or among” the parties reaches claims made under those agreements.

No. 22-4055 (Aug. 22, 2023).

The plaintiff in Galovelho LLC v. Abbott argued that a combination of emergency orders during the COVID-19 pandemic amounted to a taking in violation of the Texas constitution, citing their effect on its restaurant business. The Fifth Court affirmed dismisal, finding neither a “categorical” nor a traditional taking under established case law. No. 05-21-00965-CV (Aug. 29, 2023) (mem. op.).

The court noted an interesting textual difference between the state and federal takings provisions:

There is no dispute that the Texas constitution’s takings provision is different from the United States Constitution’s provision. The Fifth Amendment provides: “nor shall private property be taken for public use, without just compensation,” while the Texas counterpart provides: “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation.”

That said, the court went to observe: “[W]e await [the supreme] court’s directive that the provisoins are to be analyzed differently when a takings claim is made for property temporarily ‘damaged.'”

The Appellate Section of the Dallas Bar Association recently sent around the following email, which I wanted to share more broadly, about two openings for briefing attorney positions at the Dallas Court of Appeals —

Colleagues:
Please see below for two appellate job openings that may be of interest.
https://jobs.dallasbar.org/jobs/view/staff-attorney/70601054/
Salary Range: up to $112,790.00
Location: Dallas, TX (hybrid, in-person and telework)
Position Available: Immediately
Justice Emily Miskel of the Court of Appeals, Fifth District of Texas, is accepting applications for a full-time, hybrid staff attorney position in her chambers. The Fifth District Court of Appeals has intermediate appellate jurisdiction of both civil and criminal cases appealed from the district and county courts in the counties that make up the Court’s District (Dallas, Collin, Kaufman, Rockwall, Grayson, and Hunt).

https://jobs.dallasbar.org/jobs/view/staff-attorney/70315081/
Salary Range: up to $112,790.00
Location: Dallas, TX (hybrid, in-person and telework)
Position Available: October 1, 2023
Justice Cory Carlyle of the Court of Appeals, Fifth District of Texas, is accepting applications for a full-time, hybrid staff attorney position in his chambers. The Fifth District Court of Appeals has intermediate appellate jurisdiction of both civil and criminal cases appealed from the district and county courts in the counties that make up the Court’s District (Dallas, Collin, Kaufman, Rockwall, Grayson, and Hunt).

Former Justice Lana Myers has been named as Lt. Gov. Dan Patrick’s counsel in connection with the upcoming impeachment proceedings of Ken Paxton.

In Moby-Dick, Captain Ahab nailed a gold coin to the mast as an incentive to spot the white whale. In Combs v. Crepeau, the judgment debtor deposited a gold coin into the trial court’s registry as part of the supersedeas for a substantial civil judgment. The Fifth Court distinguished a permissible order requring a cash deposit from an impermissible order appointing a post-judgment receiver (in the supersedeas setting), noting: “Placing money into the court’s registry is a means of keeping the money safe.” No. 05-23-00088-CV (Aug. 21, 2023) (mem. op.).

Topletz v. Choice affirmed, in part, a class action of tenants against the owners of several rental properties in Dallas. The reversal turned on the extent of the landlord’s liability under several sections of the Property Code, which in turn involved application of the supreme court’s recent opinion about a similar class action in American Campus Communities, Inc. v. Berry, 667 S.W.3d 277, 283 (Tex. 2023). No. 05-22-00781-CV (Aug. 22, 2023).

I had an op-ed in today’s Dallas Morning News about recent friction between the Supreme Court and Fifth Circuit on standing in some high-profile constitutional/administrative-law cases.

In last week’s Texas Lawbook, I reported on an experiment with an AI competitor of ChatGPT called Claude. It’s not ready to be a virtual law clerk yet, but its surprisingly powerful.

My grandfather was the postmaster of Orange, Texas in the 1930s and 1940s, so I have a family interest in cases involving mail. Long v. Paratheke Enterprises, LLC provides an instructive example about whether a key notice, sent by a landlord using certified and first-class mail, was received by the tenant:

• The certified mailing was not delivered successfully. “The evidence showed the U.S. Postal Service attempted to deliver the certified mail letter on September 29, October 4, and October 14 and returned the letter to Landlord’s counsel as “UNCLAIMED” and with a stock printed sticker stating “RETURN TO SENDER INSUFFICIENT ADDRESS UNABLE TO FORWARD.”
• As for the first-class mailing: “Landlord presented evidence that its counsel addressed the notice to vacate to Tenant and sent the notice to the Premises’ address, postage prepaid, by regular first-class mail. Thus, a presumption exists that the mailing was duly received by Tenant.”
• Tenant sought to overcome that presumption with her testimony about difficulty using that mailbox (it was shared by the tenants and open to the street), and by noting the problem with the certified mailing. The Fifth Court held that the trial court was justified in not crediting that testimony: “As factfinder, the trial court is given great latitude to believe or disbelieve a witness’s testimony, particularly if the witness is interested in the outcome.”

No. 05- 22-00685-CV (Aug. 15, 2023) (mem. op.).

An ex-husband sought to obtain half of the money paid to his ex-wife as a result of an arbitration she won against her former counsel for legal malpractice. The Ffith Court acknowledged the longstanding but seldom-applied cases about the cause of action for “money had and received,” and held:

“David essentially argues that appellees should have paid a portion of what they were court ordered to pay Jennifer to him instead. Had appellees done so, they would have done so in defiance of the trial court’s judgment. David cannot claim that half of the $111,272 belonged to him in equity and good conscience when appellees handled the money in accordance with a court order. Although David argues that appellees’ payment to Jennifer does not insulate appellees from liability to him, the money-had-and received cases he relies on are distinguishable as they involve money mistakenly given to the wrong recipient.“

Barnes v. Kinser, No. 22-30653 (Aug. 17, 2023) (mem. op.).

At last, effective September 1, 2023, the Texas Rules of Civil Procedure require service of signed court orders

A recent, short opinion memorializing a settlement summarizes the operation of Tex. R. App. 42:

Among other expert-testimony issues in Smith v. Nexion Health, the Fifth Court reminded about the importance of excluding alternative causes:

There also was some evidence of other plausible causes of Smith’s death, and Dr. Gupta made no attempt to exclude those causes with reasonable certainty.  Smith’s attending physician at the hospital, in addition to attributing her death to cardiac arrest, made diagnoses of unspecified dementia without behavioral disturbance, essential hypertension, hypotension, hypolipidemia, unspecified, anemia, unspecified, and a personal history of TIA. Irwin Korngut, M.D., an expert witness designated by appellees, testified that the emergency physicians found no evidence to suggest that Smith was septic at the time of her death and did not list sepsis as a diagnosis. Dr. Korngut further testified that Smith’s anemia, her known coronary disease, or internal bleeding could have caused cardiac arrest.

No. 05-22-01140-CV (Aug. 11, 2023) (mem. op.) (citations omitted).

The appellant in Schoenbauer v. Deutsche Bank argued that an “order of nonsuit was improper because he had counterclaims pending.” But the Fifth Court held:

Counterclaims are subject to the payment of a mandatory filing fee. No right to be heard on counterclaims exists until the fee is paid and the filing is complete. Because the record before the Court reflects that appellant did not pay the required mandatory filing fee, the order of nonsuit of all of appellee’s claims against appellant rendered the case moot. 

No. 05-23-00416-CV (Aug. 1, 2023) (mem. op.) (citations omitted).

The plaintiff in Wooten v. Northwestern Mut. Life. Ins. Co. sued for alleged misrepresentations about the sale of disability-insurance policies. The Fifth Court affirmed summary judgment for the defense:  “‘[P]olicy provisions and other documentation addressed above demonstrate the policies did not provide the coverage or the payout appellees allegedly misrepresented. ‘His injury was not inherently undiscoverable because he easily could have discovered his injury by reading the policies.'” No. 05-20-00798-CV (July 31, 2013) (mem. op.).

I’m on a summer vacation road trip, blog posts will resume upon my return next week! I hope you are having an enjoyable summer with quality air conditioning. I also recommend that you see “Oppenheimer” — with or without seeing “Barbie” — as it offers some powerful insights about civil procedure run amok in Oppenheimer’s security-clearance hearings.

After a well-publicized debacle in New York involving “research” in which ChatGPT invented nonexistent cases, the phenomenon of “hallucinatory” generative AI has arrived in Texas. The Waco Court of Appeals recently faulted a lawyer for providing a brief with three nonexistent cases (and, like the New York counsel, not responding when the problem was pointed out by the appellee). While there is nothing wrong with using ChatGPT to help with legal analysis and writing, uncritical acceptance of purported caselaw found “on the Internet” is always risky.

A good example of when direct-benefits estoppel will not support a motion to compel arbitration appears in Strucsure Home Warranty LLC v. 2RH Bros. Props., LLC, where:

“2RH’s third-party petition indicates that its breach of contract claim against StrucSure is based on StrucSure’s alleged breach to provide the Limited Warranty, not a breach of any terms of the Limited Warranty itself.”

No. 05-22-01214-CV (July 17, 2023) (mem. op.).

The affidavit-counteraffidavit procedure in Tex. Civ. Prac. & Rem. Code § 18.001 streamlines the handling of evidence about whether services are reasonable and necessary. That said, the process can generate controversy, as it did in Ortiz v. Nelaplatla, where the defendant’s counteraffidavits in a personal-injury case only addressed some of the matters in the plaintiff’s affidavits.

The panel majority summarized: “Nelapatla filed counteraffidavits that satisfied the requirements of section 18.001 for the purpose of providing notice to Ortiz of the nature and basic issues in controversy so that Ortiz would have ‘sufficient information to enable [her] to prepare a defense or a response.’ Ortiz did not challenge the counteraffidavits. Under the circumstances presented, we conclude the trial court did not abuse its discretion in sustaining Nelapatla’s objections to admission of Ortiz’s section 18.001 affidavits and Nelapatla’s counteraffidavits as proof of the reasonableness and necessity of Ortiz’s medical services and charges.” (citation omitted).

A dissent expressed concern about the majority’s fidelity to the statutory text and the practical consequences of its opinion. No. 05-22-00531-CV (July 18, 2023) (mem. op.).

A nightclub shooting led to litigation. The trial court granted the defendants’ motion to dismiss and the Fifth Court reversed in Mendoza v. Milkshake, LLC, holding, inter alia:

• As to a dispute about whether the proper parties had been sued: “We reject appellees’ assertion that Mendoza’s claims against them can be dismissed due to the verified denial. Assuming the verified denial conclusively proved appellees were improper parties, it cannot be included in the Rule 91a analysis. The trial court was required to decide the motion based solely on the pleading of the cause of action.”
• Because “[a] motion to dismiss must state specifically the reasons the cause of action has no basis in law or in fact,” the court declined to consider arguments for dismissal made for the first time on appeal.

No. 05-22-01018-CV (July 11, 2023) (mem. op.)

In a case about allegedly defective ceiling work, the defendants complained about double recovery, arguing that the judgment for the plaintiffs let them “receive [both] the
smooth ceiling bargained for and a refund for that work.”

The Fifth Court disagreed. Accepting the legal principle that “[u]nder any of the theories of liability involved, the value of any goods and services provided by [defendants] factors into the measure of damages,” the defendants’ argument had a factual problem: “[T]he evidence at trial supports a finding that [defendants’] work provided no value to the Heflins. That evidence included the testimony of the Heflins and photographs showing the shoddy and incomplete work and additional damage caused by that work.”

Hizar v. Heflin, No. 05-21-0036-CV (July 10, 2023) (mem. op.).

The Fifth Court affirmed a severe sanction in Hizar v. Heflin. An issue was whether this admonition in an order on a motion to compel was a “lesser sanction” as understood byt by the case law about death-penalty sanctions:

“If Defendant fails to produce all responsive documents by Monday, July 12, 2021, Defendant’s pleadings will be struck.”

Aligning with several other appellate districts that have reached similar conclusions, the Court held that this language qualified as an unequivocal warning in the context of a death-penalty sanction. No. 05-21-00936-CV (July 10, 2023).

While the Supreme Court issued several opinions in Mallory v. Norfolk Southern Railway, No. 21–1168 (U.S. June 27, 2023), the part joined by a five-justice majority is straightforward. A condition for registering to do business in Pennsylvania is consent to be sued there, and the Court held that condition did not raise a due-process concern, reaffirming the validity of much older precedent on the point. Justice Jackson’s concurrence helpfully distinguishes the concepts of waiver and “minimum contacts.” No. 21-1168 (U.S. June 27, 2023).

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

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

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

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

In Gregory v. Chohan, reversing the en banc Fifth Court, the Texas Supreme Court reversed an award of mental-anguish damages:

“To guard against arbitrary outcomes and to ensure that damages awards are genuinely compensatory, the plaintiff in a wrongful death case should be required to demonstrate a rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded.” 

No. 21-0017 (Tex. June 16, 2023).

Eagle Remodel sued Capital One for honoring several forged checks drawn on its account. The bank sought refuge in the “same wrongdoer rule,” a UCC provision based on the obligation of the bank customer to diligently review statements, and that places the burden on the bank to establish the elements of that defense.

Unfortunately for the bank, while “[t]he record contains evidence that Ruiz [Eagle’s former employee] stole the checks … the record does not show who signed or altered the checks, and it also does not establish the checks were signed or altered by the same wrongdoer.”

Put another way: “The record contains no evidence demonstrating who signed or altered the checks the evidence shows who Eagle Remodel believes stole the checks.” Eagle Remodel LLC v. Capital One Fin. Corp., No. 05-22-00206-CV (July 6, 2023) (mem. op.) (emphasis added).

The Disaster Act “grants the Governor the authority to prohibit local governments from requiring the wearing of masks in response to a contagious disease.” The supreme court left for another day the outer limits of the Governor’s power under that Act. The Dallas mask case was decided in a separate cause number that referred back to the analysis in Abbott v. Harris County, No. 22-0124 (Tex. June 30, 2023).

Texas’s special-appearance process requires, as the second step, that the defendant bring forward evidence to negate the plaintiff’s averments about longarm jurisdiction.

The defendant’s affidavit in Nusret Dallas LLC v. Regan said the following;

The Fifth Court found that paragraphs 2-3 and 5-7 did not negate the plaintiff’s allegations. Paragraphs 4 and 8 addressed the general topic of the plaintiff’s allegations, but did not “squarely meet or negate” their substance. Paragraph 9 “is conclusory … and legally constitues no evidence.” No. 05-21-00739-CV (June 23, 2023) (mem. op.). The Court went on to review the merits of the plaintiff’s allegations and reversed the grant of the defendant’s special appearance.

Two New York lawyers filed a brief with “fake law” in it, having accepted at face value a “hallucination” by ChatGPT abouot several cases that did not in fact exist. The district court has now sanctioned them. The opinion is of broad general interest, given the great influence of generative AI in its few short months of widespread public availability. And it’s also of broad general interest in avoiding sanctions–the lawyers had at least one good chance, and maybe even two, of coming clean about their error, but instead “doubled down” with purported screenshots of the nonexistent cases.

The Emperor Justinian (right) ruled the Byzantine Empire, a society often criticized for its complex legal system. Justinian would likely feel at home with the Texas system of trial courts, which distinguishes among courts created by the state constitution and “statutory” courts created by the Legislature.

In Ditech Servicing, LLC v.  Perez, No. 21-1109 (May 19, 2023), the Texas Supreme Court reviewed that system to conclude that a county-specific statute controlled over a general, statewide limitation on statutory-court jurisdiction, letting a Hidalgo County court at law hear a counterclaim allowing a foreclosure.

The comprehensive review of the statutes, and the relevant canons for their interpretation, is a useful general reference. It remains to be seen if the new business-court system will create other such conflicts.

The recent case of City of Dallas v. PDH Holdings, in the course of rejecting the application of estoppel to bar the enforcement of a zoning ordinance, made two observations about procedural matters of broad general interest:

• Deemed Findings. “PDT argues that because there are no findings of fact and conclusions of law, we imply all findings necessary to support the judgment. While this is true, implied findings must have support in the record on a theory of law applicable to the case. Contrary to what PDT seemed to suggest at oral argument, this does not mean we have carte blanche to craft a remedy based on a theory unsupported by the pleadings or imply findings that have no evidentiary support in the record.”
• Other Districts. “[W]e are not bound by decisions from our sister courts.” (citation omitted).

No. 05-22-00730-CV (June 16, 2023) (mem. op.) (all emphasis added).

Applying City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770 (Tex. 2006), the Fifth Court rejected the application of equitable estoppel to bar the City of Dallas’s enforcement of a zoning ordinance. The issue involved the acceptable height for a “parapet wall” of a duplex townhome; the estoppel argument involved communications with a building inspector during construction. The Court noted:

• “While we do not endorse the City’s erroneous issuance of two permits, the errors cannot properly be characterized as affirmative misrepresentations or deliberate actions calculated to induce PDT’s reliance.”
• “PDT’s argument that it reasonably relief on the City’s erroneous permits is similarly unpersuasive. The RPS ordinance is a matter of public record and PDT is charged with notice of its provisions.”
• PDT showed no benefit to the City (contrasting another case involving a direct land conveyance to the municipality)

No. 05-22-00730-CV (June 16, 2023). Interestingly, the opinion notes that the precedent in this area involves equitable estoppel rather than quasi-estoppel (which does not require detrimental reliance)–a potential area for future litigation.

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: