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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Fifth Court concluded that this potential claims was tolled, quoting Hughes: “Where “a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” No. 05-20-00354-CV (Aug. 29, 2022) (mem. op.).

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

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

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

The dispute in In re Brown involved a trial subpoena to a corporate-representative witness. The court of appeals granted mandamus relief, analogizing Tex. R. Civ. P. 199 to Fed. R. Civ. P. 30(b)(6). The corporation, however, had also cited the general subpoena rule – Tex. R. Civ. P. 176 – and the supreme court remanded for consideration of those arguments:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The well-known poem Antigonish begins:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The well-intentioned mandamus petitioners in In re Diaz sought relief from the trial court not having a hearing on their TCPA motion to dismiss. Unfortunately, the record showed that “the statutory deadline by which the trial court must hold the TCPA hearing had expired prior to relators filing their petition and the trial court may no longer hold the hearing,” thereby mooting the mandamus petition. No. 05-21-01115 (June 3, 2022) (mem. op.).

“When a TCPA movant’s step-one burden and a nonmovant’s TCPA exemption are both disputed, we conclude that a court may consider a nonmovant’s exemption first, if it chooses to do so.” Temple v. Cortez Law Firm, No. 05-21-00367-CV (June 3, 2022).

You may enjoy my latest (and short!) podcast episode, Originalism and its Discontents, which compares:

•  the Fifth Circuit’s May 2022 opinion in Jarkesy v. SEC, which held that the Seventh Amendment’s right to civil jury trial extends to an SEC enforcement action (although the SEC did not exist in 1791), and
• the draft Supreme Court majority opinion in Dobbs (which held that the Fourteenth Amendment did not protect an abortion right in 1868, although the vast majority of women could neither vote nor own property at that time).

The episode concludes that historical analogies, made in the name of “originalism,” may not be a faithful application of that technique for constitutional reasoning, when the historical context differs substantially from our own.

In Diana Convenience LLC v. Dollar ATM, LLC, the Fifth Court affirmed a death-penalty sanctions award. Among the relevant facts considered, this particular move was unwise for the sanctioned party: “[T]he decision by appellants Shark Phones and AMK Convenience to file a no-evidence motion for summary judgment based on the very evidence that appellee was seeking—who signed the agreement and were they authorized to do so—supports the trial court’s finding that appellants had a callous disregard for the rules of discovery.” No. 05-20-00936-CV (May 25, 2022).

Lua v. Capital Plus Financial addressed, and rejected, a number of challenges to a judgment of eviction in a forcible entry and detainer action. In particular, as to the appellants’ claim that “because Capital Plus failed to submit an affidavit verifying its observance of certain requirements prior to the sale of the property, there are defects in the sale,” the Fifth Court distinguished the main case relied upon by appellants:

The Luas rely on A Plus Investments Inc v Rushton, No. 02-03-00174-CV, 2004 WL 868866 (Tex. App.—Fort Worth Apr. 22, 2004, no pet.) (mem. op.), for the proposition that the alleged defect in the statutorily-required presuit notice required the trial court to abate or dismiss this case. However, A Plus held that the county court lacked jurisdiction over a forcible detainer suit “[b]ecause an unresolved question of title was so intertwined with the right of possession that the action could not have been adjudicated without first determining title.” … Accordingly, the defect alleged by the Luas does not present the same fundamental issue that was present in A Plus.”

No. 05-19-01227-CV (May 26, 2022).

This blog does not ordinarily cover family-law appeals, but the grant of mandamus relief in In re Barnes involves a novel issue about the scope of a fundamental statute in that area: “We are not persuaded that [Tex. Fam. Code] section 153.002 reaches so far as to allow the family court to require a parent who does not have the right to determine a child’s primary residence and who has little or no possession time to live in a specific school district so that his child can maintain eligibility to attend schools within that district.” No. 05-21-00807-CV (May 27, 2022) (mem. op.).

Important arbitration-waiver case earlier this week from SCOTUS:

“Most Courts of Appeals have answered that question by applying a rule of waiver specific to the arbitration context. Usually, a federal court deciding whether a litigant has waived a right does not ask if its actions caused harm. But when the right concerns arbitration, courts have held, a finding of harm is essential: A party can waive its arbitration right by litigating only when its conduct has prejudiced the other side. That special rule, the courts say, derives from the FAA’s ‘policy favoring arbitration.’  We granted certiorari to decide whether the FAA authorizes federal courts to create such an arbitration-specific procedural rule. We hold it does not.”

Morgan v. Sundance Inc., No. 21-328 (May 23, 2022).

Overstreet v. Allstate, an insurance-coverage case about hail damage, presented an unsettled issue under Texas’ “concurrent causation” doctrine. Accordingly, the Fifth Circuit hailed the Texas Supreme Court for assistance, certifying the issue to it for review (a topic where the Fifth Circuit had previously certified the same topic, only for the parties to settle). No. 21-10462 (May 19, 2022). (As is customary for such requests, the Court disclaimed any intention to hale the Texas Supreme Court toward any particular result.)

Justice Oliver Wendell Holmes, dissenting from an early Sherman Act case, famously observed: “Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Northern Securities Co. v. United States, 193 U.S. 197 (1904).

Yet in the context of temporary injunctions and TROs, there are only “hard cases,” because of the demanding requirements about proof of irreparable injury, etc. For example, the most recent statement from the Texas Supreme Court about the specificity required by Tex. R. Civ. P. 683 is In re: Luther, 620 S.W.3d 715, 722-23 (Tex. 2021) (orig. proceeding)–an extremely charged case politically, arising in one of the most challenging periods of the COVID-19 pandemic.

In that vein is the panel majority in In re Childrens Medical Center of Dallas, a dispute about care for transgender youth, which found this order sufficiently specific as to Rule 683’s requirements about harm. A dissent saw otherwise. No. 05-22-00459-CV (May 18, 2022) (mem. op.).

The Court’s oft-used summary of the required elements for mandamus relief has been updated, see In re Grantham, 05-22-00077-CV (May 20, 2022):

The trial court in In re Alford appointed a special master to resolve discovery issues. Tex. R. Civ. P. 171 gives a trial court the power to “in exceptional cases, for good cause appoint a master in chancery.” Case law clarifies that “a special master may not be appointed merely because ‘a case is complicated or time-consuming, or [because] the court is busy.'” Here, the Fifth Court granted mandamus relief, noting “no indication that the case is unusually complicated or requires specialized knowledge,” and citing this exchange from the hearing on relators’ objection to the master’s appointment:

[Counsel]: Can you explain on the record what the good cause is and what the reasons for the appointment of this order is?

THE COURT: No, but thank you for asking.

No. 05-22-00240-CV (May 16, 2022).

The Fifth Court granted a mandamus petition about a corporate-representative deposition, when “proportionality” was not shown, given the corporation’s other information disclosures: “Safeco supported its proportionality objection with evidence. Safeco provided the trial court with a business record affidavit and two hearing exhibits, one containing a chain of e-mails between counsel and the other containing its supplemental responses to Taiwo’s request for disclosure. Further, the declaration of Barbara Spearman, Senior Complex Resolution Specialist IV for Safeco, stated that Safeco had produced and disclosed ‘1,208 pages of responsive documents and things in this matter, including its entire, unprivileged claim file, which included Plaintiff’s Policy, correspondence between the parties, the police report stemming from the accident and witness statements regarding the Accident.’” In re Safeco, No. 05-21-00873-CV (May 10, 2022) (mem. op.).

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

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

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

Here is the PowerPoint from my presentation for the Dallas Bar Association today. And if you prefer it as a .pdf, here it is in that format.

The issue in Bluestone Resources, Inc. v. First Nat’l Capital, LLC was a judgment that included post-judgment interest, by the court that confirmed an arbitration award, when the award itself was silent about post-judgment interest. The Fifth Court held:

“We acknowledge there is a line of cases … that appears to conclude the award of any post-judgment interest is unauthorized unless such interest was awarded by the arbitrator.  We respectfully disagree. Interest on a money judgment accrues automatically and is recoverable even if it is not specifically awarded. We see no reason why a judgment confirming an arbitration award, which is a ‘money judgment of a court of this state,’ would be exempt from this rule.”

No. 05-20-00776-CV (April 29, 2022) (citations and footnote omitted).

In Romeo and Juliet, the doomed heroine observes: “What’s in a name? That which we call a rose by any other name would smell as sweet.”

In Bell v. XTC Cabaret (Dallas), Inc., the Fifth Court observes (citations omitted):

“A misnomer differs from a misidentification. Misidentification—the consequences of which are generally harsh—arises when two separate legal entities exist and a plaintiff mistakenly sues an entity with a name similar to that of the correct entity. If a plaintiff is mistaken as to which of two defendants is the correct one and there is actually existing a corporation with the name of the erroneously named defendant (misidentification), then the plaintiff has sued the wrong party and limitations is not tolled.”

Those principles did not save a lawsuit filed against the wrong “XTC” entity: “Appellants argue the doctrine of misnomer applies because they served the correct defendant, XTC Cabaret (Dallas), Inc., but misnamed it as XTC Cabaret, Inc. … The fact that businesses have the same registered agent and the same attorneys is not evidence that they were aware of whom appellants intended to sue. We conclude appellants have not shown that the doctrine of misnomer applies.” No. 05-21-00294-CV (May 5, 2022) (mem. op.).

I’ll be speaking at the Dallas Bar Association’s downtown headquarters next Tuesday, May 10, at noon, to give an update on notable cases in the past year from both the U.S. Court of Appeals for the Fifth Circuit and the Dallas Court of Appeals

In bringing to an end a long-running international oil-and-gas dispute, the Texas Supreme Court examined a seeming tension between two earlier opinions about the specificity required for an effective release: “‘[W]hile the misrepresentation in Schlumberger “pertained to the very matter negotiated, settled, and released,”‘ the misrepresentation in Forest Oil ‘did not concern known disputed matters (which were settled and released) but potential future disputes (which were set aside and reserved).'” The Court concluded:

“Here, the evidence does not suggest that the parties actually considered or discussed allegations that Astra representatives bribed Petrobras officials to approve the 2006 stock-purchase agreement or offered to bribe them to approve the 2012 settlement agreement. But the evidence—including the terms of the settlement agreement itself does establish that the parties entered into the settlement agreement only after an extended series of complex and hotly contested negotiations that included discussions about the need to resolve all prior, pending, and possible claims between the parties, including those that were ‘unknown’ at the time.”

Transcor Astra Group S.A. v. Petrobras America Inc., No. 20-0932 (Tex. April 29, 2022).

I recently wrote a short piece for the UK’s Solicitor’s Journal about two recent personal-jurisdiction cases of note–one from the Fifth Circuit and one from the Dallas Court of Appeals–which it published as an “international insight” and titled “How to Deal with Texas Businesses Without getting Sued.”

The Dallas Morning News reported that the Fifth Court stayed the Rule 202 depositions of two UT-Southwestern executives in connection with its program for transgender use; the mandamus proceeding continues to be briefed in the meantime.

In a defamation / business disparagement claim, when the charge told the jury to:it was reversible error for the jury to consider evidence about the effects of “a widespread ‘whisper campaign'” distinct from the referenced statement. Memorial Hermann Health System v. Gomez, No. 19-0872 (Tex. April 22, 2022).

After reviewing the several cases that find laches based on an unexplained four-month delay, In re Bottled Blonde Dallas LLC holds: “Here, relator waited more than seven months from the challenged order, and with only a month remaining before trial, to file this petition. Relator has offered no explanation for this lengthy delay. Accordingly, because we conclude that relator’s unexplained delay bars its right to mandamus relief, we deny mandamus relief.” No. 05-22-00353-CV (April 22, 2022) (mem. op.).

Delaware corporate law has a robust line of authority about the advancement of attorneys’ fees during litigation; Texas, not so much, which is why In re Demattia is important to know. The case involved a typical advancement provision in an LLC’s organizational documents:

“(a) the Company shall indemnify each Member who was, is, or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding (‘Proceeding’), any appeal thereof, or any inquiry or investigation preliminary thereto, by reason of the fact that he or she is or was a Member ….”

in the context of the LLC’s suit against a former member for the alleged theft of trade secrets. Even in that setting where the member was adverse to the company, the Fifth Court held that the provision was enforceable, drawing on the principles established in Delaware law:

The board may well have a firm basis to believe that the official intentionally injured the corporation and is therefore reluctant to advance funds for his defense, fearing that the funds will never be paid back and resisting the idea of seeing further depletion of corporate resources at the instance of someone perceived to be a faithless fiduciary. But the Delaware courts have determined that to ‘give effect to this natural human reaction as public policy would be unwise’ because the possibility exists that the company’s allegations are untrue or cannot be proven.

Based on that conclusion, the Court granted mandamus relief as against a summary-judgment ruling adverse to the member on the issue of his entitlement to fee advancement. Notably, because of the limited scope of the order under review, the opinion addressed only the entitlement to fees, and not the specific procedural mechanism under Texas law for obtaining payment. No. 05-21-00460-CV (April 12, 2022).

In Wofford v. Pinnacle:

• A summary judgment, granted on July 20, 2021, disposed of some but not all claims in the litigation;
• On July 29, the claims addressed by that summary judgment were severed into a new cause (thus creating a final judgment as to those matters);
• On August 30, 2021, the trial court’s plenary power expired in the new cause; and
• In October 2021, the trial court signed a final judgment in the new cause which was later appealed.

The Fifth Court dismissed for lack of jurisdiction: “[B]ecause the July summary judgment was made final by the severance and the trial court’s plenary power expired August 30, the October final judgment is void.” No. 05-22-00071-CV (April 18, 2022) (mem. op.).

In a (literal) footnote to Collins Asset Group v. Ayers, the Fifth Court noted a technical point about a line of attack on the relevant instrument: “Ayres also objected to the Note based on the absence of assignments, and on cross-examination, appeared to challenge the signatures on the Note. Ayres did not contest the authenticity of signatures in his verified denial, so the Note was admissible in that regard as fully proved. See Tex. R. Civ. P. 93(7); Boyd v. Diversified Fin. Sys., 1 S.W.3d 888, 891 (Tex. App.—Dallas 1991, no pet.).” No. 05-21-00295-CV (March 30, 2022) (mem. op.).

An eccleastical-immunity dispute led to the denial of mandamus relief in In re Munger Avenue Baptist Church, in which the Court reminded: “[W]here the petition for writ of mandamus challenges the trial court’s subject matter jurisdiction over the underlying proceeding, relators need not establish the lack of an adequate appellate remedy.” No. 05-21-00539-CV (April 13, 2022).

A cautionary note on motions to extend the notice-of-appeal deadline: “[W]e have repeatedly held that delay caused by waiting for the trial court to rule on a post judgment motion or for the trial court’s plenary power to expire is unreasonable as it reflects an awareness of the deadline for filing a notice of appeal but a conscious decision to ignore it.” Ali v. Spectra Bank, No. 05-21-01113-CV (April 6, 2022) (mem. op.).

In Sunchase IV Homeowners Assoc. v. Atkinson, the Texas Supreme Court returned to the topic of a defendant who wins a take-nothing judgment on a key claim, in the context of a Property Code fee-shifting provision, and reached substantially the same result as in the Court’s recent Rohrmoos opinion. No. 20-0682 (Tex. April 8, 2022).

Last Friday I spoke to the Dallas Area Paralegal Association about preparing a case for appeal in Texas state court. We covered, among other topics, the mechanics of preparing a notice of appeal (including the deadline!), ordering the clerk’s record, and ordering a reporter’s record that’s complete in all respects. Here is my PowerPoint.

In Southwest Airlines Pilots Union v. The Boeing Co., a dispute related to the 737 Max, the Fifth Court held: “[W]e conclude that SWAPA has standing to assert claims on its own behalf, but at the time the suit was filed, lacked standing to assert claims on behalf of its members. Although SWAPA’s subsequently acquired assignments of member interests do not cure the jurisdictional defects in the present case, the assignments might confer standing on SWAPA to file suit in the future. Thus, while the trial court properly dismissed the suit without providing SWAPA an opportunity to amend its pleadings, the dismissal should have been without prejudice. We further conclude that the RLA does not preempt SWAPA’s state law claims.” No. 05-20-01067-CV (March 30, 2022) (mem. op.). (LPHS represented the appellant in this case.)

Of general interest to court-watchers, building on a recent interview that I did with the Lincoln Project, the current episode of the “Coale Mind” podcast examines why today’s Supreme Court is like a bowl of soup, heated by two separate burners.

The first is the ongoing scrutiny over Justice Thomas’s recusal decisions in matters related to his wife’s political activity. The second, cool now but with the potential to become blazing hot, is the pending Dobbs case in which the Court could significantly limit or even overrule Roe v. Wade. 

The combined heat potentially generated by these two issues–an ethical dispute about a Justice coupled with the possibility of a uniquely controversial ruling–could present a legitimacy problem for the Court of a magnitude not seen in recent memory.

The panel majority in Texas Champps Americana v. Comerica Bank concluded that after a merger, Comerica owned the note sued upon, noting evidence about the handling of the note and its accounting, in the context of Tex. Bus. Orgs. Code § 10.008(a)(2) which provides: “[A]ll rights, title, and interests to all real estate and other property owned by each organization that is a party to the merger is allocated to and vested … in one or more of the surviving or new organization as provided in the plan of merger without … any transfer or assignment having occurred[.]” A dissent found inadequate proof without evidence tied to the actual plan of merger. No. 05-20-00461-CV (March 29, 2022).

This testimony (in addition to, but also independently of, a business-records affidavit) was sufficient to prove up a note, and the Fifth Court found error in concluding otherwise, in Collins Asset Group v. Ayers:

Dan Laux, CAG’s Legal Outsourcing Manager, testified that he is familiar with CAG’s records and the method by which CAG acquires, stores, and takes possession of notes. He further described how this Note was received, scanned, and stored with CAG’s business records.

 

Laux testified that he received the original Note within thirty days of CAG’s purchase of the Note, and that he had tendered the original to counsel. He identified the Note attached to the business records affidavit as a true and correct copy of the original.

 

Laux also offered testimony about how CAG relied upon and used the Note to calculate the amount due and sent letters based on that calculation. Laux testified that CAG is the owner of the Note.

No. 05-21-00295-CV (March 30, 2022) (mem. op.).

The lease at issue in Apple Texas Restaurants v. Shops Dunhill Ratel, LLC, No. 05-20-01052-CV (March 25, 2022) (mem. op.), contained a “prevailing party” allowing either side to recover in a suit about the lease. The judgment included an award of “defensive” fees, and the Fifth Court concluded that that topic had fairly been placed at issue:

“[I]n addition to both parties’ repeated reliance on section 13.08 described above, Dunhill provided disclosure responses more than a year before trial describing its counsel’s expected testimony regarding defensive attorney’s fees, stating, (1) Dunhill “is entitled to damages pursuant to the Lease . . . and interest, attorneys’ fees, and costs,” and (2) its counsel “is expected to testify regarding the reasonableness and necessity of attorneys’ fees and costs related to the prosecution of Plaintiff’s claims . . . and defense against Defendant’s counterclaims.'”

No. 05-20-01052-CV (March 25, 2022) (mem. op.).

Under the most current precedent, this testimony was insufficient to prove up a contingent award of appellate attorneys fees:

“Dunhill will be required to incur additional attorney’s fees if Apple appeals the final judgment entered in this Action. In my opinion, Dunhill will likely incur at least $35,000 in reasonable and necessary attorney’s fees if Apple appeals the final judgment to the Court of Appeals. In addition, Dunhill will likely incur at least an additional $35,000 in reasonable and necessary attorney’s fees if Apple appeals the final judgment to the Texas Supreme Court and Dunhill is required to respond thereto.”

Apple Texas Restaurants v. Shops Dunhill Ratel, LLC, No. 05-20-01052-CV (March 25, 2022) (mem. op.) (applying Yowell v. Granite Operating Co., 620 S.W.3d 335 (Tex. 2020)).

Legally insufficient evidence was offered (under a clear-and-convincing proof standard, with case law that specifically addresses this evidentiary point) of an asset’s separate-property status when:

“The trial court .. questioned Moon concerning what evidence was presented at trial to show ‘that she had separate property before that got converted into the 51 percent community of Lakeside Vision.’ Moon did not cite any evidence but reiterated her contention that she would not have entered into the purchase if she had known it would be community property. The trial court noted the only evidence of tracing was Moon’s testimony regarding funds used for the purchase, but Moon and Scheef offered conflicting testimony as to the source of those funds, and Moon offered no evidence showing inception of title to the funds.”

Moon v. Scheef, No. 05-20-00105-CV (March 23, 2022) (mem. op.).

The difficulties of the COVID-19 pandemic led to reversal of a contempt finding in a family-law dispute about how to pass a child from one divorced parent to another:

“Here, the requirement that Hilburn surrender the child ‘at the school in which the child is enrolled’ became reasonably susceptible to more than one meaning when the child’s physical school closed, and the child moved to a virtual learning environment at his grandfather’s house. Although the child was enrolled at a public elementary school, he did not attend the physical school building nor was he enrolled in classes held at the school itself. Hilburn’s view that the physical location where the child is engaging in school constitutes the place of enrollment is, thus, one reasonable interpretation of the terms of the 2012 Order as applied to a virtual learning environment.”

In re Hilburn, No. 05-20-01068-CV (March 21, 2022) (mem. op.) (emphasis added).

“The Supreme Court of Texas recently determined that section 17.028 of the civil practice and remedies code provides the exclusive means for service of process on a financial institution. Section 17.028 requires service on the institution’s registered agent. The … court held that ‘service on the Secretary [of State] as a foreign corporate fiduciary’s “agent” under [Estates Code] Chapter 505 does not constitute service on a financial institution’s “registered agent” for purposes of section 17.028.'” Bank of New York Mellon v. FFGGP, Inc., No. 05-20-00384-CV (March 11, 2022) (mem. op.) (citations omitted) (applying U.S. Bank, N.A. v. Moss, No. 20-0517 (Tex. Feb. 25, 2022)).

The TCPA (still) did not apply to a discovery-related motion in Sorkin v. P.T. Atlas Mfg., notwithstanding procedural differences from prior Fifth Court precedent:

The matter before us is in a procedurally different posture than Misko in that P.T. Atlas did not bring his complaints predicated on discovery abuse in the Harris County Lawsuit where the discovery was being conducted. … Had P.T. Atlas instead filed a petition in intervention in the Harris County Lawsuit to challenge the alleged discovery abuse, our Misko opinion would support the denial of a TCPA motion to dismiss and would be consistent with the rationale in both Misko and Dow Jones. Likewise, here, while the reason for this lawsuit––abusive discovery–– arose in the context of the Harris County Lawsuit, this suit itself does not attack any of the substantive claims in the Harris County Lawsuit nor is the suit based on, or in response to, any of the substantive allegations in that suit.

No. 05-21-00657-CV (March 16, 2022) (mem. op.).

Out-of-state business dealings with effects in Texas present a continuing challenge in special-appearance proceedings. One set of such dealings resulted in reversal of the grant of a special appearance in Halperin v. Moreno:

“[T]his case involves more than the ‘the presence of property in a state.’ The deed of trust and the HELOC were between a Texas borrower (Moreno) and a lender and trustee (Waguespack) with—according to the documentation—a Texas-based mailing address. The HELOC set Texas as the place where the loan contract would be performed. The HELOC was secured by a house located in Texas, and the deed of trust is governed by Texas law. It is undisputed that the HELOC was assigned to MOR KM, which maintains its principal office and place of business in Texas. The HELOC note and the loan documentation evince a clear, specific intent by Waguespack to  purposefully direct conduct towards Texas for the benefit of her brother, a Texas resident.”

No. 05-21-00390-CV (March 9, 2022) (mem op.). See also MBM Family Trust No. 1. v. GE Oil & Gas, No. 05-20-01103-CV, 2021 WL 4236874 (Tex. App.—Dallas Sept. 17, 2021, no pet.) (mem. op.) (reaching similar conclusion about related transaction).

After a split decision from the Fifth Court declined to send a personal-injury case to arbitration, the Texas Supreme Court ruled otherwise in Baby Dolls v. Sotero: “The Family’s argument, and the court of appeals’ holding, that Hernandez and the Club never had a meeting of the minds on the contract blinks the reality that they operated under it for almost two years, week after week, before Hernandez’s tragic death. We hold that the parties formed the agreement reflected in the contract they signed.” No. 20-0782 (Tex. March 18, 2022).

In the context of service of process, and reinforcing its recent holding about the distinction between individuals and entities in Prado v. Nichols, No. 05-20-01092-CV (Feb. 25, 2022) (mem. op.), the Fifth Court rejected a judgment based on the return of service in Mesa SW Management v. BBVA USA:

“Appellee used an entity to receive the process and a natural person to serve the process; [Tex. R. Civ. P.] 105 does not allow this. Rule 105 requires one person perform both actions. Because the process was delivered to an entity but a natural person executed and returned the same, we conclude appellee failed to strictly comply with rule 105.” No. 05-20-01091-CV (Feb. 24, 2022) (mem. op.) (emphasis added).

A good reminder about a basic point of mandamus practice appears in In re Aspen Heights Constr., LLC.: “A court cannot grant mandamus relief unless the error was raised in the trial court.” No. 05-22-00093-CV (March 3, 2022) (mem. op.) (quoting In re Rowes, No. 05-14-00606-CV, 2014 WL 2452723, at *1 (Tex. App.—Dallas May 30, 2014, orig. proceeding) (mem. op.)).

The Fifth Court’s recent ERCOT opinion found that matter appropriate for en banc review when, between its original panel opinion and the present proceedings, the Texas Supreme Court had ruled on immunity issues in a way that undermined a key assumption of the panel opinion about ERCOT’s immunity. (“In the most recent of these three opinions, the supreme court stated: ‘Though we have contemplated it, we have yet to extend sovereign immunity to a purely private entity—one neither created nor chartered by the government—even when that entity performs some governmental functions.'”).

At least nominally, that analysis puts the case in the “just right” category of my Goldilocks article about intermediate-court en banc review, although the importance of the subject matter may make it a “big splash” case as well.

The ERCOT dissent suggests another, fragrance-based approach to decisions about en banc review: “To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong, it must . . . strike us as wrong with the force of a five-week old, unrefrigerated dead fish.”  (citing Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).

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

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

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

In a restricted appeal: “[T]he face of the record shows that appellee filed suit against a Texas corporation named either Joe Prado DBA J.P. Enterprises or Joe Prado ‘JP Enterprises.’ The return of service shows that Joe Prado was served but does not indicate his capacity to receive service on behalf of the purported corporation. Moreover, no other portion of the record indicates Joe Prado’s authority to receive service on behalf of the corporation. We conclude the face of the record fails to show strict compliance with the rules governing return of service; thus, the trial court lacked jurisdiction to render a default judgment against JP Enterprises.” Prado v. Nichols, No. 05-20-01092-CV (Feb. 25, 2022) (mem. op.) (citation omitted, emphasis added).

An 11-1 en banc opinion concluded that ERCOT lacked sovereign immunity against fraud claims by a power producer. The opinion noted, inter alia, that this conclusion was consistent with ERCOT not receiving tax revenue, with the structure of the PUC’s regulations about ERCOT liability, and with the law about derivative immunity for “self-regulated organizations.” The Court also rejected ERCOT’s alternative argument that the plaintiff’s claims fell within the PUC’s exclusive jurisdiction.

A dissent “would conclude that the original panel opinion was not clearly erroneous, the majority’s decision undermines the constitutional-avoidance doctrine, and the PUC has exclusive jurisdiction over Panda’s complaints …”

The Texas Lawbook has further detail. (By way of general background, Erwin Chemerinsky’s 2001 article “Against Sovereign Immunity” remains a classic on that side of the issue.)

The would-be appellant in Cosentino v. Frost Bank tried to appeal a ruling about arbitrability by using the Crowson precedent about what “finality” means in longrunning probate proceedings. The Fifth Court did not accept the argument, reasoning: “As reflected in the parties’ live pleadings, the ancillary proceeding was brought as a declaratory judgment action concerning the validity and enforceability of the PMA [premarital agreement]. The order compelling arbitration determined a preliminary issue within that cause of action—that the PMA was properly executed such that an agreement to arbitrate existed and arbitration of those issues could be compelled—not a cause of action in itself that could be asserted independently as its own lawsuit.” No. 05-21-00829-CV (Feb. 16, 2022) (mem. op.).

In mandamus practice, there is an important exception to the “four-month rule” and other laches-related doctrines, which is that “the doctrine of laches does not apply to a void order ….” In re Reiss, No. 05-21-00600 (Feb. 18, 2022) (mem. op.).

In case the point wasn’t clear from the Fifth Court’s recent opinion in In re Tekin & Assocs., No. 05-21-00219-CV (Feb. 9, 2022) (mem. op.), the Court restated it in In re Perez-Merino: “Under prior holdings of this court and others, an unexplained delay of four months or more can constitute laches and result in denial of mandamus relief.” No. 05-22-00082-CV (Feb. 14, 2022) (mem. op.).

“Under prior holdings of this court and others, an unexplained delay of four months or more can constitute laches and result in denial of mandamus relief. Here, relator’s April 6, 2021 petition for mandamus was filed seven months and six days after the trial court’s August 31, 2020 order denying the [Rule 91a] motion to dismiss. We conclude that relator’s unexplained delay bars his right to mandamus relief.” In re Tekin & Assocs., No. 05-21-00219-CV (Feb. 9, 2022) (mem. op.).

“’Texas courts have long held that an appealing party may not complain of errors that do not injuriously affect it or that merely affect the rights of others.’ An appellant is not harmed when sanctions are imposed solely against the appellant’s attorney and does not have standing to challenge an order imposing sanctions solely upon his attorney.” On Deck Capital, Inc. v. CWO Designer Landscapes, No. 05-20-00471-CV (Feb. 10, 2022) (mem. op.).

The threshold question in Ruff v. Ruff was the timeliness of a TCPA motion to dismiss:

“Mike argues that Suzann’s earlier petitions sought relief based on a suit to quiet title while in the seventh amended petition, ‘[s]he abandoned the quiet title claim and now seeks declaratory relief interpreting the [probate court judgment]. The seventh petition is a new legal action seeking new declaratory relief.'”

After examining a redlined comparison of the relevant pleadings, the Fifth Court found the motion untimely, concluding that “[t]his is essentially the same claim re-alleged repeatedly over two years in the subsequent amendments to the petition,” and that as a result:

“Mike has not identified on appeal any allegations in the seventh amended petition that added a new party, alleged new essential facts to support previously asserted claims, or asserted new legal claims or theories involving different elements than the claims or theories previously asserted.”

No. 05-21-00157-CV (mem. op.) applying Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021)).

The defendant in a medical-malpractice cases sought the production of electronic information about the dates when certain photographs of the plaintiff had been taken. The Fifth Court granted mandamus relief to the plaintiff:

“Methodist did not meet the burden of going forward with evidence … Mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device. While the mandamus record suggests Methodist may have been concerned about multiple creation dates, Methodist failed to make an evidentiary showing that the electronic files Cooley produced lacked metadata. Accordingly, Methodist failed to make the good-cause showing necessary to justify the trial court’s order.”

In re Cooley, No. 05-21-00445 (Feb. 2, 2022) (mem. op.) (citations omitted; applying, inter alia, In re Weekley Homes, 295 S.W.3d 309 (Tex. 2009)).

“In a legal sufficiency analysis, we cannot ignore conflicts in the evidence, even where the conflict is within a party’s own exhibits. Here, there is a conflict between Exhibit 88 and Exhibit 7, the draw receipts. During closing argument, appellants argued: ‘Every time money was drawn [Bresnahan] got Mr. Kidwell to sign another little receipt-type note. So if you look at Exhibit 7, I think there’s 43 of them. So ever[y] draw he got him to sign.’ The problem is that there are forty-seven such draws listed in Exhibit 88 but only thirty eight draw receipts in Exhibit 7. The missing draw receipts, including interest and fees, and the “other deficient notes” together accounted for $569,344 on Exhibit 88.” Haddington Fund, LP v. Kidwell, No. 05-19-01202 (Jan. 12, 2022) (mem. op.) (citations omitted). h

Mike Lynn and I have an article in the latest Oklahoma Law Review about a fiendishly tricky issue with some “battles of the forms” under the Uniform Commercial Code. A few years back, Mike had a hard-fought trial about this issue in the context of the roof insulation for a big warehouse near D/FW Airport. I hope you enjoy it – and can use it someday in your next UCC case – https://digitalcommons.law.ou.edu/olr/vol74/iss2/3

The judgment-finality issue in Paxton v. Simmons involved a conflict between the Lehmann finality language and handwritten edits to a form of judgment. Held:

“To the extent Ms. Simmons contends the judgment’s statement that ‘[t]his final judgment disposes of all claims and all parties, and is appealable” automatically makes the judgment final, we disagree. The Lehmann dictum she cites does not purport to address a circumstance where, as here, the judgment’s substance directly conflicts with that statement. Our supreme court has instructed that ‘[c]lear and unequivocal language that reflects an intent to dispose of the entire case is given effect, but when there is doubt about finality, the record resolves the issue.’ Here, as Ms. Simmons asserts in her appellate reply brief, the trial court ‘must make further determinations before the issues are finally disposed of.’ On this record, we conclude the December 20, 2019 judgment is not final and appealable.”

No. 05-20-00058-CV (Jan. 21, 2022) (emphasis added).

Texas’ rule against the appeal of interlocutory orders has a long and colorful history of exceptions to that rule (a story well told by Lee Thompson in her recent law review article about our interlocutory-appeal statute). The increased number of permissible interlocutory appeals can produce procedural friction with the standard appellate process; the supreme court recently granted review of a Dallas case involving such friction on a fundamental jurisdictional point:

• “Payment is an affirmative defense which the defendant has the burden to plead and prove. Payments pled by the defendant which are not admitted in the plaintiff’s petition must be specifically alleged.”
• What about trial by consent? “‘The doctrine of trial by consent does not apply when the evidence of an unpleaded matter is relevant to the pleaded issues because it would not be calculated to elicit an objection.’ Milbourn’s testimony was relevant to the Kidwell’s claim for breach of fiduciary duty … that Bresnahan breached his fiduciary duty by failing to disclose his conflicts of interest and by unilaterally increasing his own wages. … Because the Kidwells’ evidence of payment [a spreadsheet] was also relevant to their pleaded claim for breach of fiduciary duty, we conclude payment was not tried by consent.”

Haddington Fund, LP v. Kidwell, No. 05-19-01202 (Jan. 11, 2022) (mem. op.) (citations omitted).

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

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

And second –

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

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

The standard for waiver of a contractual arbitration right can be demanding, especially if the record does not contain all referenced material:

“Mary’s response to appellants’ amended motion to compel arbitration stated that appellants served responses to discovery in December 2016 and sent discovery requests of their own in February 2017. Appellants contend that the discovery they propounded was minimal, consisting of nine interrogatories, nine requests for admission, and one request for production. As no party attached any of the requests or responses to their filings in connection with the motions to compel arbitration, we cannot weigh any of the discovery-related factors in favor of or against waiver. Mary has not shown that the discovery in question was extensive, related to the merits of her claims, or would be unavailable in arbitration.”

Haddington Fund v. Kidwell, No. 05-19-01202 (Jan. 11, 2022) (mem. op.) (citations omitted).

In Hadley v. Baxendale, 8 Exch. 341, 156 Eng. Rep. 145 (1854), the Court of Exchequer held that a miller’s lost profits, arising from the late delivery of a replacement shaft for a steam engine in the mill, were not recoverable as consequential damages in a suit for breach of contract: “But it is obvious that, in the great multitude of cases of millers sending off broken shafts to third persons by a carrier under ordinary circumstances, such consequences would not, in all probability, have occurred, and these special circumstances were here never communicated by the plaintiffs to the defendants. It follows, therefore, that the loss of profits here cannot reasonably be considered such a consequence of the breach of contract as could have been fairly and reasonably contemplated by both the parties when they made this contract.” 

The long shadow of that broken shaft was most recently seen in Signature Indus. Services, LLC v. Int’l Paper Co., which held: “The law does not charge contracting parties with a duty to understand how their actions will affect the counterparty’s market valuation. …  As a general rule, neither the counterparty’s market value nor the impact of breach on that value will be reasonably foreseeable at the time of contracting. SIS … attempted to show that IP was intimately familiar with SIS’s business because of the companies’ close relationship. But again, knowledge of a business is not the same as knowledge of the market for buying and selling that business.” No. 20-0396 (Jan. 14, 2022).

By popular demand, the nationally respected jury consultant Jason Bloom returns to the “Coale Mind” podcast after his insightful interview last year about the restart of jury trials after the 2020 quarantines. In this new 2022 episode, he discusses his insights from the continued return of jury trials.

Jason describes how, across the country, prospective jurors are more eager to be selected and serve on juries than ever before, reflecting a national mood that wants to reassert control over government after many months of uncertainty and frustration. Relatedly, jury deliberations are emphasizing a theme of “accountability”–examining which party to a case has demonstrated responsibility for its actions and decisions.

Obviously important for trial lawyers, Jason’s insights are also critical to understanding America’s political dialogue as society continues to reawaken after the COVID pandemic. Whether acting as jurors, voters, or customers, decisionmakers bring very specific interests and desires to 2022 that must be understood and accommodated to make effective policy.

In Soo v. Pletta, the Fifth Court affirmed the denial of a TCPA motion, finding an insufficient connection between the allegedly protected activity and the lawsuit, and noting:

• Case law about the previous version of the TCPA, which required a showing that claims were “based on, related to, or in response to” protected activity, has less relevance under the amended version that asks whether a claim is “based on or in respone to” the activity; and
• “The Soos’s argument that Trust’s claims are “based on or in response to” TCPA-protected activity simply because that activity occurred before Trust filed its lawsuit amounts to a post hoc ergo propter hoc logical fallacy and does not satisfy the Soos’s step one burden” under the TCPA.

No. 05-20-00876 (Jan. 14, 2022) (mem. op.).

The Fifth Court found that a set of overly-redacted fee statements was legally insufficient evidence to support an award of fees in THB Construction v. Holt Texas, Ltd., observing:

“[T]he evidence here is like that presented in [Long v. Griffin, 442 S.W.3d 253 (Tex. 2014)]. In both cases, counsel testified only to general tasks performed during the representation.  Although Holt’s counsel produced invoices, they effectively provide no additional evidence beyond counsel’s testimony due to the heavy redactions. Indeed, counsel admitted as much. In that regard, the evidence presented here is just as insufficient as that presented in Long.”

The Court further reviewed its own relevant precedent in this area. No. 05-20-00020-CV (Jan. 13, 2022) (mem. op.) (citation omitted).

A delay in holding a hearing on a TCPA motion (again) led to denial of appellate review in Vertical Holdings LLC v. LocatorX, Inc.:

“… [W]e find no information in the record to support Vertical Holdings’s suggestion that the hearing delay was caused by the COVID-19 pandemic. We also find no information in the record to suggest the trial court canceled the October 5, 2020 hearing or suspended any TCPA deadlines as a result of any of the supreme court’s pandemic-related emergency orders.

Notably missing from the record is any information about the trial court’s docket conditions on or near October 5, 2020, the date of the original hearing setting. Also missing is any information showing good cause to reset the hearing, an agreement between the parties to reset the hearing within section 27.004’s deadlines, an extension to allow discovery under TCPA section 27.006(b), or any other efforts by Vertical Holdings to have the motion heard within section 27.004’s deadlines.”

No. 05-21-00469-CV (Jan. 14, 2022) (mem. op.).

“Offer and acceptance are essential elements of a valid and binding contract. As a matter of blackletter law, an offer empowers the offeree to seal the bargain by accepting the offer. But equally well-established is the rule that acceptance is ineffective to form a binding contract if the power of acceptance has been terminated, such as by the offeror’s revocation before acceptance. The main issue in this contract dispute is whether a purported offer to settle a debt for a reduced sum was accepted before it was revoked. Resolution of that issue turns on the parameters of the recognized, but rarely implicated, doctrine of implied revocation.

Here, the parties dispute whether the implied-revocation doctrine (1) is limited to offers involving the sale of land, (2) applies if the offeree learns about the offeror’s inconsistent act from someone other than the offeror, and (3) is satisfied under the undisputed facts in this case. We hold that the doctrine is not constrained to real-property transactions and the settlement offer was impliedly revoked when the offeror assigned the underlying judgment to a third party for collection and the assignee gave the offeree a copy of the assignment agreement before he accepted the settlement offer. We therefore reverse the court of appeals’ judgment and render judgment that no contract to settle the debt was formed.”

The Fifth Court recently recalled a mandate and amended its own judgment to include the surety on a supersedeas bond as an additional party. The motion primarily cited Whitmire v. Greenridge Place Apts., 333 S.W.3d 255, 260-61 (Tex. App. – Houston [1st Dist.] 2010, pet. dism’d w.o.j.). A big 600Commerce thanks to Ben Taylor for pointing out this order to me (and correcting the pet. history on my original post)

The Fifth Court found that an appeal, taken from the domestication of a foreign judgment under the Uniform Enforcement of Foreign Judgments Act, was untimely. The Appellant cited the later filing of a third-party action, and a related special appearance, as reasons the clock did not start to run. The Court disagreed:

“The Foreign Judgment became a final Texas Judgment on January 22, 2020, the day it was filed. ‘By its very nature, the UEFJA does not contemplate or authorize the entry of a judgment replacing the foreign judgment.’ … [I]t is well settled that a Texas trial court has no jurisdiction to set aside another state’s judgment and return the parties to the positions they occupied before the foreign judgment was rendered. An intervention and a third-party claim in an enforcement proceeding do not in any way alter this fact.”

Moreno v. Halperin, No. 05-20-00858-CV (Dec. 14, 2021) (mem. op.).

A contempt/sanction order entered in a dispute about a divorce degree was vacated by In the Interest of E.W.M., No. 05-19-01589-CV (Jan. 7, 2022) (mem. op.): “Here, the record shows the enforcement proceedings could have resulted in Marc’s incarceration. Thus, the trial court was required to inform Marc that he had a right to counsel. See [Tex. Family Code ] § 157.163 (a), (b). But instead of informing Marc of that right, the trial court affirmatively misrepresented that, because Sarah did not seek more than six months of jail time, he had no right to counsel. This was clear error, and we are not persuaded by Sarah’s arguments to the contrary.”

The denial of a special appearance by a Florida-based real estate broker was affirmed after the Fifth Court noted these facts:

• “Though appellants’ solicitations involved the sale of Florida property, they knew from Mr. Bernstein’s mailing address that they were soliciting a Texas resident who was thus subject to Texas laws, including property-ownership laws. Appellants had a ‘say in the matter’ as to whether to reach out to solicit business in Texas.”
• “Here, unlike in [Bryan v. Gordon, 384 S.W.3d 908 (Tex. App.–Houston [14th Dist.] 2012, no pet.)], Mr. Bernstein made no initial request for contact. Instead, appellants ‘initially targeted’ Mr. Bernstein, whom they knew to be a Texas resident, as a client.”
• “Though appellants contend ‘everything’ for which they are being sued ‘occurred in Florida,’ the record shows the Bernsteins’ claims are directly based on alleged misrepresentations appellants made during the solicitations and the resulting contract allegedly induced by those misrepresentations. Thus, appellants’ contacts are substantially connected to the litigation’s operative facts.”

Ringham v. Bernstein, No. 05-21-00526-CV (Jan. 5, 2022) (mem. op.).

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

The Texas Lawbook recently published a good feature by Androvett Legal Media & Marketing about the top Texas legal stories of 2021 (in which I discuss the hard-fought litigation about SB8, the new Texas abortion law). It’s worth a look while preparing for law practice in this New Year.

The question whether testimony is “conclusory” arises frequently in commercial litigation, particularly when the testimony is presented by affidavit. While the boundary lines are not always clear, one definite data point for practitioners was provided by Chloe’s Concepts, LLC v. Clear Rainbow, Inc., which held in a default-judgment case: “Appellants complain that the affidavit of Clear Rainbow’s president does not state when default occurred but merely concludes the past due amount was $128,259.86 and that prejudgment interest was $11,069.00. However, ‘[t]estimony of the total amount due under a written instrument is legally sufficient to support an award of that amount in a default judgment proceeding.'” No. 05-20-00484-CV (Dec. 20, 2021) (mem. op.) (citation omitted).

A default judgment stood when the defendant “state[d] he was in discussions with plaintiff’s counsel regarding a resolution without court intervention.” The Fifth Court noted: “Settlement negotiations may be a valid excuse for failing to answer where there is some basis for the defendant to believe default would not be taken while negotiations were in progress.” But “appellants produced no evidence of any statement by appellee that would give them reason to believe that appellee would not take a default judgment”; thus, the first Craddock factor was not satisfied. Chloe’s Concepts, LLC v. Clear Rainbow, Inc., No. 05-20-00484-CV (Dec. 20, 2021) (mem. op.).

Since the supreme court’s opinion in Rohrmoos Venture v. UTSW DVA Healthcare, 578 S.W.3d 469 (Tex. 2019), the mechanics of proving up attorneys’ fees have received a great deal of thought by practitioners and judges. The Fifth Court’s opinion in In re Estate of Willingham reminds of something more basic as to awards of appellate attorneys’ fees:

“[T]here is no certainty regarding who will represent the appellee in the appellate court, what counsel’s hourly rate(s) will be, or what services will be necessary to ensure appropriate representation in light of the issues the appellant raises … [but] this uncertainty does not excuse a party seeking to recover contingent appellate fees from the need to provide opinion testimony about the services it reasonably believes will be necessary to defend the appeal and a reasonable hourly rate for those services.”

Finding no evidence on that topic, the Court deleted the award of appellate attorneys fees from the judgment and otherwise affirmed. No. 05-20-00235-CV (Dec. 20, 2021) (mem. op.) (applying Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020)).

A new set of TRAPs about direct appeals to the Texas Supreme Court takes effect at the start of 2022. It substantially clarifies the procedure for these unusual cases, and aligns the rules about them with other TRAPs about supreme-court proceedings.

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

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

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

Yes, it’s kind of a pain, and yes, it comes around every year. But you have a voice in the oft-cited “Super Lawyers” awards, and you can make it heard on the Super Lawyers’  website. Nominations are due by December 16, 2021.

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

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

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

Yes, it’s kind of a pain, and yes, it comes around every year. But you have a voice in the oft-cited “Super Lawyers” awards, and you can make it heard on the Super Lawyers’  website. Nominations are due by December 16, 2021.

This is a cross-post from 600Hemphill, which follows commercial litigation in the Texas Supreme Court:

“[W]e adopt the following two-step inquiry for determining when requests for findings and conclusions that are not required by the rules will trigger the extended ninety-day filing deadline. First, was the non-jury proceeding a type in which the trial court could consider evidence? Second, if so, was there evidence before the court? When the answer to both questions is yes and a party requests findings and conclusions, all parties benefit from the extended appellate timetable.

The first question is categorical, not case-specific. For example, it will be answered yes for a judgment following a bench trial, a default judgment on a claim for unliquidated damages, a judgment rendered as sanctions, and any other judgment that could be based in any part on an evidentiary hearing.

The second question is case-specific and focuses on whether evidence was presented to the trial court, not whether that evidence proved to be necessary in hindsight. In answering this question, it is not relevant whether the evidence presented was disputed, or jurisdictional, or material to an issue later raised on appeal.” Phillips v. McNeill, No. 19-0831 (Dec. 3, 2021) (citations omitted, emphasis added) (applying IKB Inus. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997) and Gene Duke Builders, Inc. v. Abilene Housing Auth., 138 S.W.3d 907 (Tex. 2004) (per curiam)).

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

. . . But in our service.” Cf. Julius Caesar, Act I, Scene III. The key phrases in the return of service in Pro-Fire & Sprinkler, LLC The Law Co. were as follows:

The panel majority concluded this return was defective because (1) the pleading was attached to the door without looking for someone over 16 to receive it, as required by the substituted-service order, and (2) the return was inconsistent, saying both that the pleading was attached to the door and served “in person.” A dissent saw these matters as the sort of “incidental details” that do not require reversal. No. 05-19-01490-CV (Nov. 29, 2021).

In an echo of Toyota Motor Sales v. Reavis, 627 S.W.3d 713 (Tex. App.–Dallas 2021, pet. filed), the Fifth Court found that the plaintiff’s expert testimony in a significant car-accident case was sufficient to create legitimate jury issues on the topics of (1) “human factors” testimony about design defect, (2) a mechanical engineer’s testimony about a safer alternative design, and (3) proximate cause. American Honda Motor Co. v. Milburn, No. 05-19-00850-CV (Nov. 24, 2021) (mem. op.).

“[A]ppellants assert that the order disposes of all issues based, in part, on language at the end of the order stating that ‘[a]ll other relief not expressly provided for herein is DENIED.’ The Texas Supreme Court, however, has specifically rejected such language as an indicator of an order’s finality, concluding that when, as here, no conventional trial on the merits has occurred, an order is final for purposes of appeal only if it ‘actually disposes of every pending claim and party’ or ‘clearly and unequivocally states’ it finally disposes of all parties and claims. Because the order here leaves the amount of attorney’s fees, expenses, and costs to be determined, it is not final and appealable.” Page v. 3838 Oak Lawn, No. 05-21-00859-CV (Oct. 29, 2021) (mem. op.) (applying Lehman v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001)). My LPHS colleagues Sam Hardy and Dan Polese represented the successful movant in this matter.

The Fifth Court deftly aligned the parties’ arguments about mask requirements with the Texas Disaster Act’s statement of purpose in Abbott v. Jenkins: “Based on the evidence in the record, the trial court acted within its discretion to conclude that Jenkins demonstrated a probable right to relief on the ground that Abbott lacked authority to suspend [Tex. Gov’t Code] section 418.108 because imposing a face-covering mandate does not prevent, hinder, or delay necessary action in coping with a disaster. Arguably, the evidence shows the opposite—that by imposing a face-covering mandate, Jenkins furthered Abbott’s stated goals to preserve livelihoods and protect lives through the least restrictive means available.“ No. 05-21-00733-CV (Nov. 22, 2021) (emphasis added).

(This is a crosspost from 600Hemphill.) The Energizer Bunny, famously, keeps on going. Not so, the contract between Pura-Flo and Donald Clanton, under which Pura-Flo committed to pay Clanton a monthly fee for the use of fifty water coolers. The supreme court reversed and rendered as to an award of future damages in a lawsuit between them, observing:

“Here, no evidence indicated the contract would endure for any length of time, let alone five years after trial. Perhaps, as the court of appeals suggested, the jury sought to award Clanton either the amount Vanderzyden originally paid Pura-Flo to buy the water coolers in 1994 or the amount Pura-Flo’s investment proposal claimed the company would pay to repurchase the water coolers after sixty months. But neither suggested rationale can be the basis for an award of future damages, which, as evidenced by its name, is an award for damages that Clanton was reasonably certain to incur in the future. Without evidence that the contract would continue in the future, the jury’s $50,000 future-damages award has no reasonable basis in evidence and therefore was not reasonably certain as required by law.”

Pura-Flo Corp. v. Clanton, No. 20-0964 (Nov. 19, 2021) (per curiam) (citations omitted, emphasis added).

Compton v. Compton, No. 05-21-00163-CV (Nov. 1, 2021), provides a good framework for approaching a settlement on appeal that includes action related to the trial-court order under appeal:

“An unexplained delay of four months or more can constitute laches and result in denial of mandamus relief … Here, relator did not file the petition for writ of mandamus until September 22, 2021–five months after the challenged order. We conclude that relator’s unexplained delay bars their right to mandamus relief.” In re Weatherall Family Funeral Services, LLC, No. 05-21-00826-CV (Nov. 8, 2021) (mem. op.).

The key facts of In re Woods Capital Enterprises are as follows:

• Woods Capital sued DXC Technology in Collin County for breach of a contract to sell real property, and filed a lis pendens.
• DXC moved to dismiss under the TCPA and to expunge the lis pendens.
• The trial court expunged the lis pendens, after which DXC (a) tabled its fee application related to the lis pendens, given the pending TCPA motion, (b) argued and won the TCPA motion, and (c) sought fees in connection with the TCPA motion.
• The trial court then dismissed Woods Capital’s case, awarded fees to DXC, and included a “Mother Hubbard” clause in that order.
• Woods Capital appealed and obtained reversal of the TCPA ruling in DXC’s favor. Upon remand, Woods Capital nonsuited its claims and filed a new suit in Dallas County.
• In the Collin County case, DXC filed a counterclaim for its fees associated with the lis pendens ruling.

Woods Capital filed a plea to the jurisdiction against the counterclaim, noting its nonsuit. The Collin County trial court denied the plea and the Fifth Court granted mandamus relief against that ruling, holding that the nonsuit – coupled with the Mother Hubbard clause in the earlier order – extinguished the earlier lawsuit. “Had DXC believed the trial court erred by denying its lis pendens fee application, it needed to file a cross appeal in the TCPA case.” No. 05-21-00188-CV (Nov. 8, 2021) (mem. op.).

The majority opinion in Prestonwood Tradition, LP v. Jennings, No. 05-20-00380-CV et seq. (Oct. 22, 2021).concluded that wrongful-death and survival claims were controlled by the decedents’ arbitration agreements, including their delegation of arbitrability to the arbitrator. A dissent saw matters differently, citing Roe v. Ladymon, 318 S.W.3d 502 (Tex. App.–Dallas 2010, no pet.)).

The Texas Supreme Court is using a new, standard layout for its opinions. Similar in some ways to what the Fifth Circuit has used for some time (most notably, the use of Old English for the court name), it is based on a Century font rather than the Equity font used by the Fifth Circuit.

In a temporary-injunction appeal, the Fifth Court reasoned: “During the time of COVID, remote proceedings and electronic submissions are the rule rather than the exception. Sohail’s submission of his affidavit and other evidence electronically prior to the Zoom videoconference was in compliance with the trial court’s standing order. Sohail’s evidence was put into the record, referenced and discussed without objection from appellants. Although the trial court did not use ‘magic words’ admitting into evidence Sohail’s affidavit and electronic submissions, the trial court’s order granting a temporary injunction repeatedly states that it was based on Sohail’s evidence.” Kazi v. Sohail, No. 05-20-00789-CV (Oct. 28, 2021) (mem. op.).