The 2018 results are available from the Committee for a Qualified Judiciary for Dallas-area judicial races.

Pappas testified about his 50% interest in a car wash business, using an undisputed sale price for the business, undisputed evidence about the face amount of a relevant note, and corrobrating his calculation with a recent property appraisal that was admitted without objection. This foundation was sufficient to satisfy “the presumption that an owner is familiar with his property and its value,” which requires that “the owner must provide the factual basis on which his opinion rests, although this burden is not particularly onerous in light of the resources available today.”  Wash Technologies v. Pappas, No. 05-16-00633-CV (Feb. 6, 2018) (applying Natural Gas Pipeline Co. v. Justiss, 397 S.W.3d 150, 157 (Tex. 2012)).

In a labor dispute: “Williams argues that the record is replete with evidence that contradicts the Flex Entities’ version of the events, including his driver logs that show during the time he was purportedly nonresponsive, he was in a remote area out of range for his cell phone, on break, or asleep in his truck,and he did in fact accept and deliver loads on the days referenced in the emails.”  The argument was unavailing: “The jury, as the fact finder, was in the best position to judge the credibility of the witnesses and the weight to be given their testimony, including the validity of the logs Williams created. In this case, the jury found the testimony of the Flex Entities’ witnesses and the internal emails documenting issues with Williams, which began a full month before Williams complained about his pay, to be more credible than the testimony of Williams and his account of why he did not respond to dispatch.” Williams v. FlexFrac Transport LLC, No. 05-16-01032-CV (Feb. 5, 2018) (mem. op.)

At least outside the Rule 91a context: “Texas follows a fair-notice pleading standard; the opposing party must be able to ascertain the nature and basic issues of the controversy and what testimony will be relevant from the pleading. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 677 (Tex. App.—Dallas 2004, pet. denied). The purpose of fair-notice pleading is to provide a defendant with sufficient information to prepare a defense. Horizon/CMS Healthcare Corp., 34 S.W.3d at 897.” Cerna v. Smith, No. 05-17-00178-CV (Feb. 2, 2018) (mem. op.)

Appellant alleged that she established a “loss of ownership resulting from a legal proceeding” within the meaning of a real estate listing agreement, which would excuse the obligation to pay a broker’s commission. Unfortunately, while the relevant “divorce proceeding created a cloud on the [p]roperty’s title, and, as a result, the title company couldnot issue a title policy as required by the sales agreement,” that did not create the requisite “loss” – “By definition . . . a cloud on title does not equate to a loss of ownership. . . . [A] cloud is something with the potential to affect ownership if and when it is established as valid.” Ruder v. Jordan, No. 05-16-00742-CV (Feb. 2, 2018) (mem. op.)

The Fifth Court’s website reports: “On January 30, 2018, the Fifth Court of Appeals held inaugural oral arguments in the historic Dallas County Merrill Hartman Courtroom located on the 8th Floor of the George Allen Sr. Courts Building [right]. Thanks to a joint effort between the Dallas County Commissioners, the Dallas District Courts, and the Fifth Court of Appeals, the Merrill Hartman Courtroom’s judicial bench was redesigned to accommodate the 13 appellate court justices in en banc settings as well as 3 member panels. The Fifth Court of Appeals also serves as the disaster recovery site for the nine member Texas Supreme Court. Both appellate courts, and district courts will utilize the courtroom. Upon final completion of renovations, a re-dedication ceremony is planned on a date to be determined in April 2018.”

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

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

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

Litigation about this year’s primary election led to a mandamus petition about the ballot in a judicial race, in which the Fifth Court “conditionally granted relator’s petition for writ of mandamus by written opinion and ordered the trial court to vacate the temporary restraining order. We determined that the proceeding in the district court was moot as to the primary election ballot at the time it was heard, and the resulting order was void.” The opposing party then filed a “cross-petition” about the same ballot, as to which the Court similarly held: ” That relief is unavailable because overseas and military ballots have already been printed and mailed for the March primary.” In re Williams, No. 05-18-00068-CV (Jan. 26, 2018) (mem. op.) While turning on an issue unique to election law, the opinion also illustrates how equitable defenses such as laches can affect the resolution of mandamus petitions.

Section 38.001 of the Texas Civil Practice & Remedies Code refers to an award of “reasonable attorney’s fees” in types of cases. In Basic Energy Services v. Exco Resources, however, the parties’ contract “provide[d] for ‘all expenses of litigation, court costs, and attorneys’ fees which may be incurred by Company Group . . . ‘ and does not include any requirement that such amounts must be subsequently subjected to scrutiny for reasonableness.” Distinguishing an earlier case about a note dispute between two individuals, the Fifth Court reasoned that “two sophisticated, commercial entities” had negotiated an agreement under which the indemnitee:

. . . could either (1) tender its defense to Basic thus allowing Basic to control the costs of litigation or (2) incur litigation expenses itself, negotiating with attorneys for fees that it would then submit to Basic for indemnification, risking Basic’s refusal or inability to pay and assuring itself of the reasonableness of the fees it was paying in the process. Accordingly, in view of the fact that the agreement at issue here was between two sophisticated, commercial entities presently familiar with the expenses of litigation, court costs and attorney’s fees and free to negotiate and structure their affairs as they sought fit, we see no reason to impose additional procedures beyond those they chose for themselves.

No. 05-15-00667-CV (Jan. 26, 2018) (mem. op.)

The economic loss rule, and the related debate about the proper handling of “con-tort” claims, can raise difficult and close questions. Hames v. JP Morgan Chase, however, presents a relatively clean example. Hames alleged mishandling of her bank account, and argued that her negligence claim could proceed independently of her breach-of-contract claim, as the bank’s duties arose from Article 4 of the UCC.The Court disagreed, finding that “[t]he duties that Chase allegedly breached were dependent on its contact with Hames,” and noting authority that “[t]he relationship of a bank to a general depositor is conrractual, that of debtor-creditor arising from the depository contract.”  Additionallly, “the account funds that Hames seeks to recover relate to the subject matter of the contract . . . ” No. 05-16-00472-CV (Jan. 22, 2018) (mem. op.)

In Cruz v. Ghani, a judgment creditor executed on the judgment debtor’s condominium – realizing a sale price of $25,000, despite a market value of $217,500 – only to have the judgment later reversed on appeal. In the ensuing lawsuit about wrongful execution, the (former) judgment debtor prevailed and won judgment for the market value. The trial court required a supersedeas bond for the full amount and the Fifth Court affirmed. It concluded that the purpose of such an award was to compensate for loss, and thus did not fall within a line of authority holding that awards for equitable disgorgement do not have to be bonded, as they “are not based on an actual pecuniary loss suffered by the plaintiff, but on the defendant’s ill-gotten gains.” No. 05-17-00566-CV (Jan. 17, 2018) (mem. op.)

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

A court of appeals can grant mandamus relief if a trial court refuses to rule within a reasonable time. (A good, recent example is In re Mesa Petroleum Partners LP, an El Paso case I was involved with.) But January 2018 is too soon to complain about alleged inaction in connection with rulings made on December 15, 2017 – in that situation, “[t]o the extent relator seeks a separate order in his motion to clarify, the trial court has not been given a reasonable time in which to sign such an order and relator has not presented a record showing that he has requested an order from the trial court.” In re Venkartaman, No. 05-17-01474-CV (Jan. 9, 2018) (mem. op.)

Plaintiff alleged that his counsel’s negligence as to the handling of evidence about certain property appraisals led to an unfavorable settlement. The Fifth Court affirmed summary judgment for the defense, noting that the appraisals only became relevant if a particular ruling was made on a threshold legal issue, and the plaintiff’s expert affidavit “contained no analysis of the law or the facts relating to” whether “[P]laintiff would have prevailed on the payment issue at trial.” “Therefore a ‘fatal analytical gap’ in [the expert’s affidavit divide his recitation of the facts from his opinion of the ‘true value’ of the case, and we ‘are simply left to take his word’ that the settlement was excessive.”  Barnett v. Schiro, No. 05-16-00999-CV (Jan. 9, 2018) (mem. op.)

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

_____________________________________________________________________

Summary of the Motion

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

Undisputed Facts

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

Argument and Authorities

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

Prayer

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

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

A civil forfeiture action arising from a criminal conviction produced a succinct reminder about review for evidentiary sufficiency: “Wife’s testimony was equivocal, and the trial court was free to disbelieve her. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (fact finder may believe one witness and disbelieve others).” One 2007 Lexus v. State, No. 05-16-01296-CV  (Jan. 8, 2018) (mem. op.)

The appellant in Bowser v. Craig Ranch Emergency Hospital LLC, a medical negligence case, argued that a Casteel situation arose “because the single [liability] question . . . combined the negligence issue and the proximate cause issue, so it is impossible to assess how the jury was affected by the erroneous proximate cause instruction.”  The Fifth Court disagreed: “The Texas Supreme Court has specifically limited its holding in Casteel and its progeny to the submission of broad-form questions incorporating multiple theories of liability or multiple damage elements.” No. 05-16-00639-CV (Jan. 8, 2018) (mem. op.) (citing Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006)).

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

NRG failed to attend a court-ordered mediation. The court entered “death penalty” sanctions and NRG sought a new trial, alleging problems with notice and difficutly finding appropriate counsel (as an LLC, NRG could not appear pro se). The Fifth Court reversed, finding (1) no direct relationship between the sanction and the harm (incurred expenses) to the other party, (2) a failure to test less sanctions, and (3) potentially meritorious defenses. NRG & Associates v. Service Transfer, LLC, No. 05-16-01375-CV (Dec. 21, 2017) (mem. op.)

While finding that a statement in a cease-and-desist letter fell within the scope of the TCPA, the Fifth Court found a failure to state an actionable claim in response to a TCPA dismissal motion. As to tortious interference, the plaintiff’s damages allegations fell short of Elliott v. S&S Emergency Training Solutions, Inc., No. 05-16-01373-CV, 2017 WL 2118787 (Tex. App.—Dallas May 16, 2017, pet. filed); as to the tort of “invasion of seclusion,” the allegations failed because “[s]everal courts, including our own, have consistently held that an intrusion upon seclusion claim fails without evidence of a physical intrusion or eavesdropping on another’s conversation with the aid of wiretaps, microphones, or spying.” Morales v. Barnes, No. 05-17-00316-CV (Dec. 29, 2017) (mem. op.)

Craig moved to vacate an arbitration award: “Thus, under [Tex. Civ. Prac. & Rem. Code] section 171.094, she was required to arrange for service of process on appellees upon filing the motion. Craig did not arrange for service of process until she filed her supplemental motion to vacate on September 1, 2016, more than five months after the arbitration panel entered its award. Because she did not serve notice of her motion to vacate within [FAA] Section 12’s three-month limitations period, the service was untimely and the trial court was required to dismiss her motion as untimely.” The Fifth Court declined to apply any equitable tolling doctrine, and rejected an earlier emailing of the motion as inadequate under the TAA’s procedural requirements. Craig v. Southwest Securities, No. 05-16-01378-CV (Dec. 18, 2017) (mem. op.)

Except for a claim based on a contract with D/FW Airport, as to which the Legislature had partially waived immunity, the Airport was otherwise immune from suit: “The parties agree that the Board hired Vizant to reduce the costs of collecting fees for processing credit card payments. The record shows that the Board collects those fees in connection with its operation of an airport, something it is expressly authorized by statute to do. he operation of an airport is expressly defined by statute as a governmental function that is exercised for a public purpose and is a matter of public necessity. And an airport is expressly designated by statute to be a nonproprietary function. A plaintiff may not split various aspects of a city’s operation into discrete functions and recharacterize certain of those functions as proprietary.” DFW Int’l Airport Board v. Vizant Technologies, No. 05-17-00090-CV (Dec. 15, 2017) (mem. op.) (citations omitted).

In BB&T v. SWIG Partners LP, the Fifth Court reversed a limitations ruling based on allegedly inadequate efforts to serve all of the defendants, observing: “Twelve of the thirty named defendants were served within three weeks after citations were issued. All the defendants then made an appearance obviating  the need for further service of process. See Tex. R. Civ. P. 120. The longest period of time without service on a defendant before all the defendants answered was four business days. The time between the date suit was filed and the date all defendants filed their original answer was twenty-eight days. When three of the defendants were omitted from the defendants’ amended answer, BB&T moved for substitute service. In granting BB&T’s motions for substitute service, the trial court repeatedly found BB&T had diligently attempted service on each of the subject defendants.” No. 05-15-00878-CV (Dec. 13, 2017) (mem. op.)

A Mexican company disputed personal jurisdiction in Texas, but ran afoul of special appearance procedure: “A special appearance that merely challenges the method of service fails as a special appearance and constitutes a general appearance. A complaint that a defendant was not served in acccordance with the Hague Convention is a complaint regarding a curable defect in service of process. Such a complaint does not defeat a nonresident’s amenability to the court’s process and thus should not be raised via a special appearance.” Vitro Packaging de Mexico v. Dubiel, No. 05-17-00258-CV (applying Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202 (Tex. 1985)) (Dec. 13, 2017) (mem. op.) (citations omitted, emphasis added)

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

Acra v. Bonaudo illustrates the “falling dominoes” problem that can arise from  discovery issues. Appellants sought to supersede a judgment with relatively small bonds. The district court found problems with their discovery responses, which interfered with their ability to establish a low net worth at the hearing about bond size. The Fifth Court affirmed: “On the record before us, we deny the request to vacate the trial court’s orders. Without evidence of all of Acra’s and Secner HR’s assets and liabilities, the trial court could not determine their individual net worth. And, without a determination of their individual net worth, the amount of bond, set in accordance with civil practice and remedies code section 52.006 and appellate rule 24.2(a)(1), was not an abuse of discretion.”  No. 05-17-00451-CV (Dec. 8, 2017) (mem. op.)

DRI’s 2018 Appellate Advocacy Seminar will be held at the Planet Hollywood Resort in Las Vegas from March 14-15, 2018.  This year’s seminar will include valuable insights into effective advocacy (including tips from Bryan Garner), and joint sessions with trial court practitioners.  The seminar promises great networking opportunities with judges, appellate practitioners and trial advocates from across the country. This year’s seminar will be held in conjunction with the Trial Tactics Seminar, and anyone attending the appellate seminar can attend the final day of the Trial Tactics Seminar for no cost. The seminar also coincides with the beginning of the NCAA men’s basketball tournament, a great time to enjoy the excitement of Las Vegas. You can register for the Appellate Seminar here.  Save $100 and get the best hotel rates when you register and book by February 13, 2018.

In Grynberg v. Grynberg, the Fifth Court affirmed a forum non conveniens dismissal when the only meaningful connection between Texas and the dispute was the incorporation of the relevant business in Texas: “Although this case involves a single connection to Texas through the incorporation of Pricaspian, it is a controversy involving an entity that maintains its offices in Colorado and individuals who, other than [one], reside in Colorado.” The Court also rejected an argument that the “internal affairs doctrine” created a jurisdictional impediment to a Colorado court proceeding with claims about the governance of the Texas business, finding that the doctrine was a choice-of-law concept rather than a jurisdictional limit. No. 05-16-00636-CV (Nov. 28, 2017) (mem. op.) (The “Pricaspian,” incidentally, is a large salt basin northwest of the Caspian Sea.)

A clean example of “no evidence,” as a result of the terms of a legal document, appears in Coyle v. Jones: “The express language of the Agreement creating the trust at issue provided that the trust agreement could be revoked ‘at any time during the joint lives of the Trustors.’ (emphasis added). The Agreement further provided that other than that, when either trustor died, “the designation of Beneficiaries of specific gifts in this Trust shall become irrevocable, and not subject to amendment or modification.” The only evidence of revocation before the jury, however, was Frances’s 2010 written revocation. It is undisputed that Frances executed the revocation almost nine years after Stuart’s death.” No. 05-16-00876-CV (Nov. 30, 2017) (mem. op.)

In a rare grant of mandamus relief about written discovery, based on the “heart of a party’s case” concept of irreparable injury, the Fifth Court strongly endorsed the use of “contention” interrogatories and related requests for production. Requests as to which it granted relief included ones seeking:

• “Specific factual and legal basis for establishing a fiduciary duty owed by Coralli
  to Vola. (Interrogatory No. 17)”;
• “Documents Vola contends establish, demonstrate, or prove the amount of
  uniforms Sting Soccer committed to purchasing from Vola as alleged in
  paragraph 17 of the first amended petition. (Request No. 27)”; and
• “Documents Vola contends establish, demonstrate, or prove the amount of damages alleged owed to Vola by Sting Soccer. (Request No. 35).”

The opinion makes other useful statements about appropriate discovery objections and requests for admission. In re Sting Soccer Group, No. 05-17-00317-CV (Nov. 30, 2017) (mem. op.)

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Appellant filed a notice of appeal about a special appearance that was timely, measured from the ruling on a motion to amend and reconsider, but was not timely, when measured from the original ruling. The Fifth Court found that it was untimely: “The record here reflects the issue in the special appearance was whether the trial court could exercise specific jurisdiction over appellant. Appellant’s motion to amend and reconsider did not present any new arguments. Instead, it cited to decisions issued after the original order was signed, none of which changed the state of the law regarding specific jurisdiction. Because the motion to amend and reconsider presented no new argument, we conclude the amended order denying appellant’s special appearance was not independently appealable and agree with appellees that appellant should have filed its notice of appeal within twenty days of the signing of the original order.” Michelin North America v. Gallegos, No. 05-17-00617-CV (Nov. 21, 2017) (mem. op.)

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

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

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

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

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

While from the Fifth Circuit rather than the Dallas Court of Appeals, a recent case notes a fundamental principle in business litigation under Texas law. In it, that Court affirmed a JNOV motion on damages, under Texas law, when the plaintiff proved gross profits rather than net profits. “Its expert witness testified that he used ThermoTek’s gross profit margin—gross sales, less the cost of those goods sold, divided by gross sales—to calculate lost profits. He then stated that he reached his lost-profit totals for the VascuTherm units and wraps by (1) multiplying the average sales ThermoTek made to Wilford each month by the unit sales price and relevant time period, and (2) deducting the cost of the goods sold. But that is the very definition of gross profits. See Black’s Law Dictionary, supra (defining gross profits as “[t]otal sales revenue less the cost of the goods sold, no adjustment being made for additional expenses and taxes”). Motion Medical Technologies v. Thermotek, No. 16-11381 (Nov. 14, 2017).

In FC Background LLC v. Fritze, the Fifth Court affirmed the trial court’s conclusion that a merger clause extinguished an arbitration clause in an earlier agreement between the parties. Distinguishing other cases on the general topic, the Court observed that those opinions involved a “subsequent agreement with the merger clause [that] expressly provided for the continued enforceability of prior agreements.” Here, however, the clause “does not contain the limiting language, ‘with respect to the subject matter hereof,’ and thenon-compete agreement incorporates by reference only the December 28 employment agreement but not the employment application that has the arbitration clause sought to be enforced. The merger clause here expressly supersedes any previous written or oral agreements between [the parties] relating to employment.” No. 05-17-00277-CV (Nov. 16, 2017) (mem. op.) (emphasis in original).

A challenge to AAA’s notice of hearing was rejected, and the award confirmed, in Heriage v. BNSF Logistics: “The record shows the AAA sent notice of the May 4th arbitration hearing to appellants on two occasions via both electronic and certified mail––one was approximately two months before the hearing; the other six days before the hearing. The written notices were sent to the physical address listed in the agreement, and the electronic notices were sent to an email address that Herriage admitted he conducted business from in the past but that he no longer bothered to check and had never closed.” 05-16-01232-CV (Nov. 17, 2017) (mem. op.)

The Texas Lawbook has a good story about the recent opinion in H2R Restaurant Holdings LLC v. Rathbun, which affirmed a favorable ruling for our firm’s client in a temporary injunction dispute.

In Teel v. Sumrow, the Fifth Court reversed and rendered judgment for the defense in a suit for breach of fiduciary duty, finding that limitations had run on the claim as a matter of law. “[W]e note that the letter Sumrow wrote to Dr. Bray in July 2008 indicates that by that time, Sumrow knew or suspected Teel had engaged in some wrongful conduct to wrongfully deprive Sumrow of money Sumrow believed Teel owed him (‘screw me out of my money’).” As for reasonable diligence, the Court observed: “[I]n financial affairs, many citizens take a good deal on faith – not everyone zealously checks his mail every day or his bank statement every month – but it would not require ‘daily’ or even monthly diligence to discover the injury alleged in this case.” No. 05-16-00840-CV (Nov. 13, 2017) (mem. op.)

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A trial was held, but after the verdict, a bankruptcy caused several years of inactivity before entry of final judgment in 2015. Unfortunately, in the meantime, a significant part of the reporter’s notes had been lost or destroyed. While Tex. R. App. 34.6 can require a new trial in such a situation if the loss occurs through no fault of the appealing party, the Fifth Court found it did not apply here. In Piotrowski v. Minns, the Texas Supreme Court noted that the applicable Government Code provision “authorizes reporters to cull stale notes from their records after three years when no party has requested otherwise,” whcih means that without a specific request from a litigant, “the litigant is not free from fault if the notes are destroyed as the statute authorizes. 873 S.W.2d 368, 371 (Tex. 1993). The Court found that Piotrowski was good law and controlled here, where no such request had been made in the relevant time period. Geeting v. Dyer, No. 05-16-00128-CV (Nov. 7, 2017) (mem. op.)

The opinion in 7-Eleven, Inc. v. Cardtronics, Inc. reminds both of the importance of proving irreparable injury to obtain a temporary injunction, and the deferential standard of review if the trial court denies relief. Specially, 7-Eleven alleged that cancellation of a contract involving ATMs would cause business disruption, but the Fifth Court saw the evidence differently:

“Seltzer’s testimony is nothing more than fear and speculation as to what may occur unsupported by any relevant data. Although the Agreement had been in place for almost ten years, 7-Eleven offered no evidence to show how over-the-counter sales have been impacted by the addition of the ATMs, or as specific to this case, the impact of the Allpoint network. This does not mean 7-Eleven had to prove any specific amount of damage, only that it needed to offer some concrete evidence that damages will in fact occur by something more than Seltzer’s unsupported conclusory opinion. As for Updyke, he testified only that the retailer loses between 65 and 80 percent of those ‘ATM customers, ATM transactions’ over time. He specifically stated he was not referring to over-the-counter sales customers. To the extent 7-Eleven relies on Cardtronics’s promotional material used to retain 7-Eleven’s business, the trial court could have reasonably seen that as nothing more than a sales pitch, not concrete evidence of specific irreparable harm. Under the particular facts before us, we conclude the trial court could have reasonably determined that 7-Eleven’s claim of harm is speculative and that 7-Eleven failed to demonstrate irreparable injury.

No. 05-17-00623-CV (Nov. 10, 2017) (mem. op.)

In Nu-Build & Assocs. v. Sooners Group, LP, the Fifth Court drove home a recent holding about damages for cost of completion: “We agree because (i) a party seeking completion cost damages in tort and contract cases must prove that those costs are reasonable; and (ii) proof of amounts charged and paid, alone, is no evidence the payment was reasonable. Because Sooners adduced no evidence that the $3.6 million it paid to complete project was reasonable, we sustain Nu-Build’s fourth issue and [reverse and render].Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 200–01 (Tex. 2004) (per curiam); 701 Katy Bldg., L.P. v. John Wheat Gibson, P.C., No. 05-16-00193-CV, 2017 WL 3634335, at *9 (Tex. App.—Dallas Aug. 24, 2017, no pet. h.) (mem. op.).

In recent years, the U.S. and Texas Supreme Court have been widely recognized as limiting the reach of long-arm personal jurisdiction. While the necessary showing is now more difficult in some case, it is far from impossible, as shown by Colmen LLC v.  Santander Consumer USA,  In that case, among other “[s]ince . . . 2015 . . . Colmen reached out to Santander in Texas to solicit the purchase of the fifty-two separate installment sales contracts at issue in this lawsuit. As required, for each individual contract, Colmen forwarded its proposed terms and conditions and all contractually required information, including customer credit-related information, to Santander’s offices in Texas.” No. 05-17-00101-CV (Nov. 3, 2017).

After the commercial, at about 2:30 in this news segment, I offer a couple of thoughts about recent developments in the Russia investigation.

Recent decisions have grappled with whether a “memorandum of decision” qualifies as a final judgment for purposes of starting appellate deadlines; the recent case of In re RKK further contributes to that dicsussion, finding that the trial court’s memorandum in that case did start the clock. No. 05-17-00794-CV (Oct. 25, 2017) (mem. op.)

In an uncommon but fundamental challenge to an arbitration agreement, the plaintiff relied upon his inability to understand English. The Fifth Court rejected this challenge under general principles of contract formation:

“It is unusual that MiCocina translated the Mutual Agreement to Arbitrate, summary plan description, and handbook into Spanish, but not the one-page Acknowledgment form. However, on this record, there is no evidence of a fraudulent misrepresentation or trickery that would relieve Balderas of the consequences of failing to read or have read to him a document he voluntarily signed. In light of the obligation an illiterate party has to have a document read to them before they sign it and the lack of evidence of a fraudulent misrepresentation or trickery, we conclude Balderas is bound by his signature on the Acknowledgment. Accordingly, Balderas failed to prove procedural unconscionability and fraudulent inducement.”

MiCocina v. Balderas, No. 05-16-01507-CV (Oct. 27, 2017) (mem. op.) (citations omitted; distinguishing Delfingen US-Texas, LP v. Valenzuela, 407 S.W.3d 791
(Tex. App.—El Paso 2013, no pet.)).T

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

The Legislature recently streamlined the statute about Texas Supreme Court jurisdiction – the actual bill enacting the new law (below) is a masterpiece of editing for succinctness!

Of interest to all appellate practitioners, particularly those who may be planning on becoming board certified – the Fifth Circuit describes its newly-created Pro Bono Program as follows. Great opportunity for quality appellate experience!

“The Program assists the Court by facilitating the appointment of pro bono counsel to represent pro se litigants. Pro Bono Panel members will, at the Court’s invitation, be appointed in civil appeals that, for example, present issues of first impression, complex facts or legal questions, or potentially meritorious claims warranting further briefing and/or oral argument.

Pro bono appointments are made by the Court, and are limited to proceedings before this Court. Although oral argument is not guaranteed, cases selected for the Program are likely to meet the Court’s criteria for granting oral argument.

Attorneys wishing to join the Pro Bono Panel should submit to the CMJS Office a cover letter (including statement of types of cases, if any, that counsel prefers or does not prefer), resumé, writing sample (appellate brief or brief of substantive motion), and statement of good standing in the Fifth Circuit Bar. Applications for panel membership should be emailed to the CMJS Office at probono@ca5.uscourts.gov. Questions about the program may be directed to Kate Clark, Administrative Attorney, at that email address or by telephone at 504-310-7799.”

Over the summer, the Fifth Court thoroughly summarized and applied the many recent Supreme Court (both U.S. and Texas) cases about personal jurisdiction in Northern Frac Proppants v. 2011 NF Holdings. Specifically, “this appeal presents this central specific jurisdiction question: Do non-Texas residents who acquire and sell Wisconsin sand mines and related rights purposefully avail themselves of Texas if (i) Texas companies claim to be the assets’ rightful owners and (ii) the non-residents know that much of the sand produced in Wisconsin will be sold to customers for use in Texas fracing operations?” The Court “conclude[d] that the answer is no based on this case’s particular facts.” No. 05-16-00319-CV (July 27, 2017) (mem. op.)

Applying In re: Jorden, 249 S.W.3d 416 (Tex. 2008), which held that a Rule 202 pre-suit deposition was inappropriate in a health care case before service of the appropriate expert report, the Fifth Court held in In re Sandate  that third-party discovery was improper for similar reasons, and granted a mandamus petitition to quash it. No. 05-17-00871-CV (Oct. 19, 2017).

While Sandate does not directly address the requirement of a lack of adequate remedy by direct appeal, Jorden makes clear that this line of authority is not intended as a general invitation to seek mandamus relief about discovery matters:

Correcting whichever view is wrong after final judgment seems very unlikely, as it is hard to imagine how allowing discovery a little too early could ever be harmful error — either by causing rendition of an improper judgment or preventing the presentation of an appeal. If (as relators claim) Texas law prohibits presuit depositions until an expert report is served, those depositions cannot be “untaken” and thus an appellate court will not be able to cure the error and enforce the statutory scheme after trial. As a result, relators unquestionably may lose substantive and procedural rights if review is postponed, rights the Legislature believed (as discussed below) are critical to ensuring access to affordable medical care in the state.

Sandate does, however, contain a muscular summary of when mandamus relief may issue to address a trial court’s legal error:

In civil cases, “[a] trial or appellate court has no discretion in determining what the law is or inapplying the law to the facts, even if the law is somewhat unsettled.” [Jorden, 249 S.W.3d] at 424 (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding) (case of first impression regarding enforceability of contractual jury waiver); see also Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex. 1988) (orig. proceeding) (changing 100 years of case law and granting mandamus for abuse of discretion when trial judge followed then-existing law), disapproved on other grounds by Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding).

In re Guess provides a basic reminder about the limits of pro se representation and legal services from non-lawyers: “Before the Court is relator’s October 5, 2017 petition for writ of mandamus. Bruce Bryant filed this petition for writ of mandamus as relator’s “authorized representative.” Mr Bryant is not an attorney, is not a party to the litigation and, therefore, cannot file a petition on behalf of relator.” Nos. 05-17-01163-CV et seq. (Oct. 11, 2017) (mem. op.)

The Fifht Court granted mandamus relief against a lawsuit about a student’s discipline by a private school, based on the ecclesiastical abstention doctrine. The Court’s thorough analysis observes: “We acknowledge that the dispute does not expressly concern religious doctrine in all respects. But we also note that [In re: St. Thomas High School, 495 S.W.3d 500, 506 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding). and [In re: Vida, No. 04-14-00636-CV, 2015 WL 82717, at *2 (Tex. App.—San Antonio Jan. 7, 2015, orig.
proceeding) (mem. op.)] did not do so either. St. Thomas involved the expulsion of a student based on the school handbook. Vida concerned age requirements in the school’s policy manual. And as the St. Thomas court observed, ‘exclusive focus on the presence or absence of an express dispute concerning religious doctrine demonstrates an unduly narrow conception of [the doctrine’s] applicable protections.'” In re Episcopal School of Dallas, No. 05-17-00493-CV (Oct. 11, 2017). The opinion also reviews and rejects a challenge to the mandamus petition based on the doctrine of laches.

Chase Bank sued a borrower; the threshold question was whether the longer limitations period for a negotiable instrument applied. While Chase sued on a note, the instrument did not qualify as a negotiable instrument because ” the sum-certain requirement is not met unless one can determine from the face of the note the extent of the maker’s liability.” Here, the Note (1) referred to a promise to pay “the total principal amount of $169,573.72 or so much as may be outstanding,” (2) “permit to pay ‘all or any part of the loan evidenced by this Note at any time,'” (3) said that “if prepayments are made, the Bank may apply them “in such order and manner as [the Bank] may from time to time determine in its sole discretion,'” and (4) referred to the “books and records of the Bank” to specify the precise amount owerd. Accordingly: “[b]ecause the Note fails to identify a sum certain on its face, we conclude it is not a negotiable instrument.” JP Morgan Chase v. Robinson & Hoskins, No. 05-17-00087-CV (Oct. 9, 2017) (mem. op.)

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

Today’s Dallas Observer has an excellent story about the City of Dallas’s $4 billion back pay dispute with police and firefighters, part of which is set for trial in December 2017 in Collin County. The case involves issues addressed by the Fifth Court in 2002 (yes, 2002) in Arredondo v. City of Dallas, 79 S.W.3d 65 (Tex. App.–Dallas 2002, pet. denied). Specifically, the Court found the word “maintained” to be patently ambiguous as used in this part of a 1978 ordinance: “The current percentage pay differential between grades in the sworn ranks of the Dallas Police Force and the Fire Fighter and Rescue Force shall be maintained.”

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

My partner Britta Stanton recently published a good article – “Who’s Your Client? The Business or the Executive?”‘ about the importance of quality Upjohn warnings – worth a read if your practice involves the depositions of company executives.

Arising from what the Fifth Court described as a “motion [that] has been pending for nearly five years without ruling,” it found that “[t]he trial court has had more than a reasonable time to rule, and relator has done what is require to obtain a ruling on the motion.” Accordingly, it granted mandamus relief, observing that “[a]mong the criteria included are the trial court’s actual knowledge of the motion, its overt refusal to act, the state of the court’s docket, and the existence of other judicial and administrative matters which must be addressed first.” Also, while the petitioner asked the the trial court not only consider his motion to reconsider but also direct that it be granted, the Court observed: “We deny that request because, while we have jurisdiction to direct the trial court to exercise its discretion, we are not permitted to tell the trial court how to rule on the motion.” In re Owens, No. 05-17-00919-CV (Sept. 25, 2017) (mem. op.)

At issue in Galaxy Builers, Ltd. v. Globus Management Group was a trial court order denying enforcemement of an arbitrator’s subpoena. While the order said that it was final, section 171.098 of the Texas Arbitration Act does not list it as an appealable category of arbitration-related ruling; thus, the appeal was dismissed for lack of jurisdiction. No. 05-17-00831-CV (Oct. 2, 2017) (mem. op.)

Among other holdings related to the arbitrability of a dispute between a business and a former employee, the Fifth Court rejected an argument that the defendant business had waived its right to invoke arbitration: “In short, many factors weigh against a waiver finding: (i) Tantrum is the defendant, not the plaintiff, (ii) Tantrum’s delay in seeking arbitration was not extreme, and Carson has not shown an improper reason for the delay, (iii) Tantrum did not seek a merits disposition of Carson’s claims, and it did not conduct an inordinate amount of discovery, (iv) Tantrum’s counterclaims are arguably compulsory counterclaims, (v) Carson did not show that the parties have spent an inordinate amount of time or money litigating this case, and (vi) Carson did not show that the discovery Tantrum conducted would have been unavailable in arbitration or would not be useful in the arbitration.” Tantrum Street LLC v. Carson, No. 05-16-01096-CV (July 24, 2017).

The forum selection clause in In re Atos IT Solutions said: “If the Dispute cannot be resolved by Customer and Supplier in accordance with Clause 32.1[the Mandatory ADR Process], the Parties irrevocably agree that the Courts of England shall have exclusive jurisdiction . . . .” “The use of the term ‘if’ connotes a condition precedent that conditions performance rather than a covenant or promise.” (quoting Shin-Con Dev. Corp. v. I.P. Invs., Ltd., 270 S.W.3d 759, 766–67 (Tex. App.—Dallas 2008, pet. denied)). The trial court received evidence about whether that condition had been satisfied here, concluded that it had not, and the Fifth Court thus found no abuse of discretion in the resulting ruling. No. 05-17-00952-CV (Aug. 18, 2017) (mem. op.).

A tip of the hat to sister blog 600Camp.com, which celebrates its sixth birthday today!

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

The Texas exemplary damages statute (specifically, TCPRC § 41.008(b)) imposes the following cap: “Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: (1) (A) two times the amount of economic damges; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000 . . . ” It further defines “economic damages” as “compensatory damages intended to compensate a claimant for actual economic or pecuniary loss; the term does not include exemplary damages or noneconomic damages.”

The panel majority in Goodyear Tire & Rubber Co. v. Rogers concluded that “economic damages in this statute are existing in fact, real monetary losses like lost wages, the cost to obtain services that another previously provided for free or at a lower cost, or that the defendant’s misconduct compelled the claimant to seek out.” A dissent objected to the application of this standard to testimony about loss resulting from a relative’s death, noting: “These pecuniary losses are not subject to precise mathemetical calculation, but . . . ‘the inherent uncertianty in measuring these losses does not make them “non-economic in nature.”‘ Nor does this inherent uncertainty mean the loss is not an actual pecuniary loss. No. 05-15-00001-CV (Aug. 31, 2017).

The Fifth Court found this forum selection clause mandatory and unambiguous: “Any lawsuit relating to any matter arising under this agreement shall be initiated in a State or Federal Court located in San Jose, California.” An attempt to avoid the contract provision by relying upon tort claims failed under Pinto Technology Ventures v. Sheldon (Tex. May 19, 2017): “Dynasty’s claims arise from the business relationship that was struck through the agreements and will require review and interpretation of the agreements by the trial court or trier of fact for Dynasty to prevail. On this record, a but for relationship is evidence between the claims asserted below and the Business Agreement.” In re Bambu Franchising, No. 05-17-00690-CV (Sept. 12, 2017) (mem. op.)

Omnicare and Remarkable had four contracts, all with a forum selection clause which said that Delaware state and federal courts had jurisdiction “to the exclusion of any and all other possible venues.” Remarkable sued Omnicare in four separate Texas counties (one suit per contract); the parties agreed to consolidate them in Dallas, and signed a Rule 11 agreement to do so which said that Omnicare agreed to “waive any objections they may have to venue over the claims against them being in Dallas County.” Omnicare then moved to dismiss, based on the contractual forum selection clause. The Fifth Court conditionally granted mandamus relief in favor of Omnicare, finding that the Rule 11 agreement addressed “venue” – the locale within the Texas system – as opposed to “forum” – the locale outside that system. In re Omnicare Pharmacy, No. 05-17-00246-CV (Aug. 31, 2017).

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

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

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

The trial court dismissed Williams’s lawsuit for want of prosecution. Williams moved to reinstate, triggering Tex. R. Civ. P. 165a(3), which requires the court to “set a hearing on the motion as soon as practicable.” The trial court did not do so, and reversal resulted because under the language of this rule, “the trial court has no discretion to fail to hold a hearing.” Williams v. Moreno, No. 05-16-01114-CV (Sept. 7, 2017) (mem. op.) While arising from direct appeal rather than a petition for mandamus, this outcome is a useful reminder as to other such mandatory rules.

Last week, the Supreme Court of Texas Historical Society gave its annual Jack Pope Professionalism Award to Hon. Carolyn Wright, Chief Justice of the Dallas Court of Appeals. Wonderful recognition for a distinguished public servant.

If your opponent makes unclear arguments on appeal, after a bench trial with detailed findings of fact and conclusions of law, the opinion of Pelley v. Wynne, No. 05-15-01560-CV (Aug. 28, 2017) (mem. op.), reminds of two principles to bring clarity:

1. “When a party’s issue globally attacks the trial court’s findings of fact and there is no method to ascertain the appellant’s true objection to the sufficiency of the evidence, the findings of fact issued by the trial court are binding on the trial court.” (“However, the binding nature of the trial court’s findings of fact does not prevent an appellate court from reviewing the conclusions drawn from those factual findings.”)
2. An attack on a conclusion of law, as required by Tex. R. App. P. 38.1(i), must “contain a clear and concise argument for the contentions made, wiith appropriate citations to authorities and to the record.”

I am speaking at the Texas State Bar’s “Civil Appellate Practice 101” course on September 6 in Austin about key differences in procedural issues between Texas courts and federal courts in the Fifth Circuit. Here is a copy of the PowerPoint that I am using.

In the recent family law case of In re: B.W.S., this memorandum was held to not start the running of appellate deadlines; the Court notedd (among other things) how the parties reacted:

When a document such as the Memorandum here instructs the parties to prepare an appropriate final order, this is evidence that the trial court did not intend the document to be a final judgment. This is supported further by the fact the trial court signed the Final Order in this case three months later. Additionally, the parties did not treat the Memorandum as a final judgment below. Mother did not file post-judgment motions after the court sent the Memorandum; she filed them after the trial court signed the Final Order. And even though Father argues on appeal that the Memorandum was the final judgment, he did not argue that below, and he also filed a motion asking the court to sign a final order.

No. 05-15-01207-CV (Nov. 28, 2016) (mem. op.) (citation omitted). In contrast, in the recent family law case of In re B.D., a similar memorandum was held to constitute a judgment and start the running of appellate deadlines; discounting (among other things) how the parties reacted to it:

“Despite the trial court’s hearings to consider appellee’s motion to sign an order and its subsequent order, we conclude the memorandum substantially complies with the requisites of a formal judgment to be accorded final judgment status triggering the appellate deadline.”

No. 05-17-00674-CV (Aug. 31, 2017).

The key distinction between these opinions seems to be the inclusion  of express language that the memorandum is not intended as a judgment, and that requests the parties to prepare draft judgments. This practice echoes the general custom endorsed by Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), of including “language of finality” in a ruling intended to be a final judgment. Of course, even under Lehmann, the substance controls rather than the “magic words,” so this area looks to be one that will continue to pose practical challenges. (SPECIAL THANKS to Hon. Emily Miskel of the 470th District Court in Collin County, who alerted me to these cases on her informative Twitter feed.)

Five Tips for Hurricane Harvey Litigation (a version of this article is in this week’s Texas Lawbook)

In the course of reviewing the Fifth Circuit’s commercial cases for the 600 Camp blog, I have read many opinons about disputes arising from Hurricane Katrina cases. In light of the havoc recently created by Hurricane Harvey, I wanted to share five observations  to prepare for the litigation that will inevitably result.

1. Record the facts.

Any lawsuit creates tension between the past and the future. The parties want to move on, and put the expense and stress of litigation behind them. But the legal case forces them to revisit the past.

That tension is particularly acute after a disaster such as Harvey, which forced people and businesses to endure incredible stress, while making them then revisit that trauma to protect their legal rights in court. The – entirely understandable – desire to move on, must be squared with the need to take the time to preserve evidence.

Consider St. Bernard Parish v. Lafarge North America, a case about the destruction of a bridge during Hurricane Katrina. While the parties offered extensive expert testimony about what caused the damage, the summary judgment proceedings turned in no small part on the facts of what happened during the storm, including facts established by photographs.

A party facing litigation should consider – as awkward as it can be while recovering from a life-disrupting event – what facts seem obvious now but may fade from memory as time goes on. To the extent possible, some thought should be given to:

• maintaining electronic records, even if the hardware appears damaged at first blush;
• writing down a “log” of relevant conversations and events about important events;
• storing any relevant physical objects, for potential future analysis by experts; and
• simply writing down basic information about names, addresses, phone numbers, and the like.

In a case arising from a natural disaster, courts will likely be forgiving as to claims of spoliation. But lost information is lost, and its absence can later effect the resolution of a legal case.

2. Help the people.

The fact evidence in the Lafarge case also included eyewitness testimony, which proved critical to defeating the defendant’s summary judgment motion. Just as a photograph can deteriorate, a person’s memory can fade. And the likelihood of that occurring can only increase when the person is placed under the severe stress of a natural disaster.

Any “team” confronted with a legal challenge by Harvey ­– a business, a professional organization, or even a family – should be mindful of the psychological effects of that stress, and encourage counseling for depression, substance abuse, and other such problems when their first signs appear. Of course, that is a good practice in any event. But its potential side benefit to a legal case is real and worth remembering.

3. Remember three definitions.

The factual and legal issues that will ultimately go to trial in cases about Harvey simply cannot be predicted with any specificity. But in the short run, three basic legal concepts are likely to pervade business dealings related to the storm:

• The Texas pattern jury instruction about “duress” defines it as “the mental, physical, or economic coercion of another, causing that party to act contrary to his free will and interest.”
• While “force majeure” is ordinarily defined by a specific contract, it generally refers to an “extraordinary event or circumstance beyond the control of the parties,” and often does not excuse a party’s non-performance entirely, but only suspends it for the duration of the event.
• “Impossibility of performance” is defined by the Restatement (Second) of Contracts as occurring “[w]here, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.”

Awareness of these concepts can potentially avoid problems down the road, as well as identify topics and issues that require special attention today.

4. “Two-deep leadership.”

The Boy Scouts of America strictly follows a policy of “two-deep leadership,” under which two adults should be present at all times when interacting with youth. One benefit of that policy is to avoid “he-said, she-said” disputes between two eyewitnesses with no third–party corroboration. In the stress of dealing with the aftermath of Harvey, involving a business colleague or a friend in important discussions may help the future resolution of a legal matter, if a dispute arises about what was said in those discussions.

5. Crowdsource, wisely.

For good or ill, social media has come a long way since Hurricane Katrina. Used judiciously, it can be a good source of information about late-breaking news or the reputation of a particular business. And it can provide a valuable outlet for self-expression after the trauma of Harvey.

But social media posts can survive much longer than the thoughts that prompted them, and rash comments about people or events can come back to haunt the person who makes an ill-advised post. Social media is a valuable conduit for information, and at the same time, it is a reliable creator and collector of potential evidence.

Conclusion

Faced with the reality of recovery from one of the worst storms in the nation’s history, planning for future litigation may seem to be a distant worry. But the foundation for that litigation is being put in place today, intentionally or unintentionally. These five basic ideas may provide ways to place that foundation in a more orderly manner, resulting in a stronger end product.

The Discovery Channel may have has Shark Week, but the Fifth Court is having Mandamus Week. The most recent installment is In re: Commercial Metals, which involved a challenge to a protective order about a business’s trade secrets. The Court began by reminding, as to the basic requriements for a writ of mandamus, that “[a] trial court abuses its discretion if it orders discovery exceeding the scope permitted by the rules,” and that “[n]o adequate appellate remedy exists when the trial court compels production beyond the permissible bounds of discovery.” That said, the Court found no abuse of discretion in the particularized procedures used to limit use of the information by plaintiff’s “de facto in house counsel,” and denied the petition. The opinion provides useful guidance on a very practical and recurring issue in business disputes about the use of confidential information. No. 05-16-01214-CV (Aug. 29, 2017) (mem. op.)

Six tenants intervened in a code enforcement action, seeking to pursue class claims against the property owners. Defendants sought to take their depositions about issues regarding certification, the intervenors moved to quash, and the trial judge allowed the depositions to proceed, but for no more than thirty minutes each. The Fifth Court granted mandamus, finding that “the record includes no evidence or even argument regarding how a deposition of any length wqould cause intervenors to suffer harm or subject them to undue burden,” and also that the intervenors “lack an adequate remedy by appeal because the order severely compromises relators’ ability to present its case on the issue of class certification.” In re: Topletz, No. 05-17-00315-CV (Aug. 24, 2017).

In a forceful statement against merits discovery before the resolution of a special appearance, the Fifth Court granted a writ of mandamus to require that “relator’s deposition be limited to matters directly relevant to the issue of jurisdiction if the deposition is taken before the trial court rules on relator’s special appearance,” because “Rule 120a requires discovery be limited to matters relevant to jurisdiciton prior to a ruling on a special appearance.” In re: Stanton, No. 05-17-00834-CV (Aug. 24, 2017) (mem. op.) (citing, inter alia, In re: Doe, 444 S.W.3d 603, 608 (Tex. 2014)).

A law firm and its landlord sued one another; the landlord sought unpaid rent, while the firm sought recovery of moving expenses after air conditioning problems with the building became intolerable. The firm won, and as a result defeated the rent claim, but its damages were set aside by the Fifth Court because the firm did not establish their reasonableness: “In sum, there is no evidence that the cost to procure the new office space (such as the deposit) or to equip it (such as the new telephone system) was reasonable. There is no evidence that the direct moving expenses were reasonable. There is no evidence that the miscellaneous expenses, such as the payments for meals, gasoline, and recycling fees, were reasonable. The only evidence about the expenses is the bare fact that they were paid.” 701 Katy Building, LP v. John Wheat Gibson, P.C., No. 05-16-00193-CV (Aug. 24, 2017) (mem. op.)

The Fifth Court rejected the exercise of personal jurisdiction in Texas over a Mexican reinsurance broker in Cooper Gay Martinez del Rio y Asociados v. Elamex, S.A. de C.V., holding: “Cornerstone [Healthcare Group Holding, Inc. v. Nautic Management, 493 S.W.3d 65 (2016)] is distinguishable. CGM did not spearhead or direct appellees’ purchase of the Policy. CGM did not seek out appellees in Texas, insure appellees’ Texas assets, or seek to profit from business in Texas. Further, unlike in Cornerstone, there is no evidence CGM was created for or created subsidiary entities for the purpose of conducting business in Texas, and appellees do not allege this occurred. Rather, Elamex, a Mexican entity, contacted HUB, which began a chain of communications eventually leading to CGM, to find an insurer for its properties. Afirme, a Mexican entity that provided that Policy, sought reinsurance through CGM and paid a commission to CGM. At no point did CGM seek out a Texas company or Texas assets in order to benefit, profit, or take advantage of Texas such that it impliedly consented to suit here.” No. 05-16-01436-CV (Aug. 22, 2017) (mem. op.)

In the fifth appellate proceeding about payment of attorneys’ fees in the prosecution of Attorney General Paxton, the Fifth Court disapproved of a local rule that allowed a judge to depart from the standing fee schedule in particular cases (and thus here, for the payment of the prosecutors pro tem in the Paxton matter): “Rule 4.01B thwarts what we perceive to be the objectives of the [applicable] statute, which are to ensure by means of a duly adopted schedule that (1) appointed attorneys––in this case the prosecutors pro tem––are paid a fair, but not excessive, fee and (2) the commissioners court, which is tasked with the responsibility of settling and directing payments of accounts against the county, can more accurately project the expenses of a fiscal year and budget accordingly. By adopting local rule 4.01B, the Collin County judges partially abdicated to the individual judges the responsibility delegated to them collectively to determine the reasonable fee for appointed counsel and rendered illusory the legislative requirement of setting and applying a fee schedule.” In re Collin County, Texas, County Commissioners, No. 05-17-00634-CV et seq. (Aug. 21, 2017).

A new and important issue in Texas procedure has been the amount of detail required of a trial court in granting a motion for new trial. In the case of In re: BCH Development, the Dallas Court of Appeals reversed such an order, carefully laying out the framework for appellate review:

1. The trial court’s reasons for a new trial must be both sufficiently specific and legally appropriate (satisfied here, where the court identified specific issues involving violation of limine orders, improper jury argument, and evidentiary sufficiency);
2. Those reasons must be valid and correct. Here, (a) as to the limine order, the Fifth Court either found no violaton or a cure; (b) no incurably improper jury argument (and thus a waiver when there was not a contemporaneous objection); and (c) sufficient evidence on the issue of attorneys’ fees, noting that the amount awarded by the jury was “well within the range supported by” the testimony.

Accordingly, the Court conditionally granted the requested writ of mandamus. No. 05-16-01481-CV (Aug. 15, 2017).

The parties’ dispute resolution provision said: “If the Dispute cannot be resolved by Customer and Supplier in accordance with Clause 32.1 [the Mandatory ADR Process], the Parties irrevocably agree that the Courts of England shall have exclusive jurisdiction.” Acknowledging that a writ of mandamus is potentialy available to enforce a forum selection clause, the Fifth Court denied the petitioners’ application here. Procedurally, “[b]oth parties presented evidence as to whether they engaged in the mandatory ADR process.” Legally, “The use of the term ‘if’ connotes a condition precedent that conditions performance rather than a covenant or promise.” Accordingly “[u]nder this record, the trial court did not clearly fail to analyze or apply the law correctly and, thus, did not abuse its discretion.” In re Atos IT, No. 05-17-00952-CV (Aug. 18, 2017) (mem. op.)

I was interviewed today by Fox 4 Dallas about social media and hate speech, in light of recent events in Charlottesville.

Five LPCH attorneys are on the 2018 list of Best Lawyers in America!

Two important concepts about personal jurisdiction were at issue in Celanese Corp. v. Salcedo Sahagun, a case about “Mexican nationals’ use of a Washington, D.C. publicist to disseminate defamatory statements directed at Texas and other markets as part of a national media campaign . . . .” The resolution of those questions turned in no small part on the nuances of how they were defined. The first question was whether a publicist was an agent (and thus, creating imputation) as opposed to an independent contractor; its resolution turned on whether the defendants “retained control over [her] manner and means of performance — regardless of whether they chose to exercise that right.” The second involved the reconciliation of cases applying Calder v. Jones; the Court approached that issue by focusing on “whether [defendants] intended to benefit from having the statements distributed in Texas, regardless of the route taken to get them there.” No. 05-16-00868-CV (Aug. 9, 2017) (mem. op.)

Congrats to my LPCH law partner Liz Ryan for a solid win in a forum dispute.

Krueger brought tort claims against his former employer, Pulse Evolution Corp. The first sentence of the dispute resolution clause in his employment agreement said that “[a]ny dispute under this Agreement shall be arbitrated” in Palm Beach County, Florida. The forum selection clause,  found much later in the long paragraph, said, “In the event that arbitration
cannot be compelled or in order to enforce arbitration,” exclusive jurisdiction lies in Port St.Lucie County, Florida. Krueger argued that the “under this Agreement” clause impliedly carried into the forum selection provision, but the Fifth Court disagreed:

“The modifying language ‘under this Agreement’ is found only in the arbitration clause, which is the first sentence of paragraph 25. The forum selection clause, found in lines 27–30 of paragraph 25, states that it applies to disputes in which arbitration cannot be compelled. Additionally, each clause selects a different county in Florida as the forum for dispute resolution. To give meaning to both the arbitration clause and the forum selection clause, the forum selection clause must refer to disputes that are not subject to the arbitration clause, that is, disputes that do not arise ‘under this Agreement.’ If the parties wanted this modifying language to apply to the forum selection clause, they could have said so.”

Krueger v. Pulse Evolution Corp., No. 05-16-00922-CV (July 21, 2017).

In a topic also addressed on 600Camp today, the interplay of criminal proceedings and civil litigation can be challenging. The conclusion of Dunne v. Brinker Texas, Inc. summarizes one potential result: “Under the particular facts of this case, the only possible remedial measure that could have protected Dunne’s Fifth Amendment privilege was an abatement. But an abatement could not cure the prejudice Chili’s had already suffered from being unable to identify fact witnesses for the more than a year that had passed since it first requested that information. In addition, there was no indication how long the case might sit in limbo, when trial might be, and whether Dunne would continue to assert his Fifth Amendment rights in the event of an appeal. We conclude the trial court did not abuse its discretion in striking Dunne’s pleadings and therefore affirm.” No. 05-16-00496-CV (Aug. 10, 2017).

In TSP Operations, LLC v. Wells Fargo Bank N.A., the Fifth Court listed several deficiencies in an appellant’s brief that justified dismissal of the appeal, after appellant did not cure the deficiencies in response to a notice from the Court. For reference, here is a copy of the brief. No. 05-17-00131-CV (August 7, 2017).

In a construction dispute about work performed in Johnson County, Plainitff Brown said venue was proper in Dallas County because Defendant Ken-Do had a principal office there. Ken-Do argued that venue was proper in Ellis County.

• The Fifth Court rejected Brown’s argument, finding that his only probative evidence related to Ken-Do’s post office box in Dallas, which “at most, . . . showed someone on behalf of Ken-Do retrieved its mail in Dallas County, not that a decision maker did so.”
• But the Court also rejected Ken-Do’s position, which relied on its registered office in Ellis County: “A registered office is nothing more thatn the location an entity has designated where it can be served with legal process. It does not show the principal decisionmakers of the entity conducted its daily affairs from that location.”

Accordingly, the Court reversed the final judgment below, and remanded “to conduct further proceedings on the issue of venue.” Ken-Do Contracting, LP v. F.A. Brown’s Construction, LLC, No. 05-16-00373-CV (Aug. 7, 2017) (mem. op.)

A dispute arose in Dallas among Theilert Aircraft, a German maker of aircraft engine parts; Bruno Kübler, its “insolvency adminstrator” under German law; Superior Air Parts, a former customer of Theilert; and Technify Motors, the purchaser of Theilert’s assets in the Germany insolvency proceeding. Kübler sought a writ of mandamus to compel enforcement of a forum selection clause in the Theilert-Technify sales agreement (“This Agreement is subject to the laws of the Federal Republic of Germany. To the extent legally permitted, exclusive place of jurisdiction is the seat of the Insolvency Debtor [in Germany].”) The Fifth Court agreed, finding that (1) the “extent legally permitted” language did not make the clause permissive instead of mandatory, (2) the claims between Technify and Kübler arose from the sales agreement, and (3) the potential for parallel litigation between Superior and Technify in Dallas did not overcome the policy in favor of enforcing a valid, relevant forum provision. In re: Kübler, No. 05-16-01443-CV (Aug. 4, 2017). (The Court also addressed and rejected a theoretical issue about the enforceability of a similar clause under German law, finding it irrelevant under the current framework used in Texas courts.)

In a time of much furor about “leaks” to the media, the Fifth Court addressed a more traditional form of “leak” in Allen v. State Farm Lloyds, reversing a directed verdict for the insurer in a coverage dispute about a homeowners’ “Water Damage Endorsement.” In a detailed opinion, the Court found that the plaintiffs’ experts made legitimate, non-conclusory points about whether home damage was caused by plumbing leaks, and thus whether “deterioration” occurred within the meaning of the Endorsement. In a footnote, the Court also reminds of the importance of moving to strike allegedly improper expert testimony, and continuing to assert the original objection as the testimony unfolds at trial. No. 05-16-0018-CV (Aug. 1, 2017) (mem. op.)

Securus sued GTL for defamation and business disparagement, alleging that two “Important Industry News Alert” emails from GTL misrepresented the status of certain patents. The Fifth Court reversed the denial of GTL’s anti-SLAPP motion, finding that Securus failed to show that the “commercial speech” exception to the statute applied, and that substance of the emails was either opinion, or too general to have led a reasonable person to confldue that they addressed “any particular facility or recipient.” As to the commercial speech exception, the Court expressly declined to follow a “four prong” test followed by Houston’s Fourteenth Court of Appeals in Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App.–Houston [1st Dist.[ 2013, pet. denied), concluding that this test over-relied on a statute unique to California. Global Tel*Link v. Securus Corp.. Securus Corp., No. 05-16-01224-CV (July 31, 2017) (mem. op.)

A law firm’s former client sued for allegedly flawed tax advice; part of the basis for personal jurisdiction in Texas was the presence of a firm partner at a meeting with the IRS in Dallas. As to that point, the Fifth Court held: “On this record, we conclude there is no evidence of a substantial connection between Wolfe’s attendance at the June 2010 Dallas meeting and the operative facts of the litigation, i.e., whether appellants breached their fiduciary duties owed to Millennium when they ‘represented Hanson’ during the appeal of the 2009 audit and ‘continued to take positions’ during the June 2010 Dallas meeting that were ‘adverse to Millennium’s interests’ respecting the disputed tax benefits . . . . Therefore, Wolfe’s attendance at that meeting does not constitute a contact supporting specific jurisdiction.” The opinion reviews and rejects other arguments for personal jurisdiction, many of which appear (in various forms) in similar cases involving professional advice and state lines. Fried Frank v. Millennium Chemicals, No. 05-16-01132-CV (July 31, 2017) (mem op.)

“Examining the parties’ conduct and course of dealing, the fact finder could have inferred the element of mutual assent [between Miller and DML] from the circumstances.

• Miller asked DML to remove the fountain,
• DML subcontracted with a third party to do so . . .
• The invoice submitted by the subcontractor to DML is part of the record and [DML’s witness] testified that DML’s practice is to submit such invoices to their customers
• DML continued providing landscaping services after the fountain was removed.
• Miller admitted he paid DML for some of the landscaping work. . . .
• DML sent Miller a demand letter stating he was “in default of your obligation to pay the sum of $7,870.00 . . . and you have failed to pay despite repeated requests for payment by our office.” The record does not show Miller protested the demand letter or attempted to reconcile the account. . . .
• Miller tacitly acknowledged he knew there would be compensation for the removal of the fountain and landscaping services when he testified he told Wetzel ‘the money would be held back until either I got the fountain back or he worked off the value of the fountain.’ . . .
• [DML’s witness] testified the first time he heard about the alleged agreement for DML to work off the cost of the fountain was at trial, indicating this was not the parties’ agreement.” (punctuation added)

In sum, good recordkeeping (including recollection of a favorable admission) saved the day for DML. Miller v. Design Masterpiece Landscape, Inc., No. 05-16-00747-CV (July 28, 2017).

In one of the more unlikely topics for litigation, an upset player of the Texas Lottery sued for the amount she believed she should have won had the ticket accurately described the rules. The answer will never be known, however, because Fifth Court concluded that the defendant (a contractor to the Lottery Commission), was entitled to sovereign immunity as if it was the Commission. The Court noted the limited discretion given to the defendant and the detailed oversight of it by the Commission. Nettles v. GTECH Corp., No. 05-15-01559-CV (July 21, 2017) (mem. op.) (applying Brown & Gay Engineering v. Olivares, 461 S.W.3d 117 (Tex. 2015)).

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

Abdul Khan had a dispute with a contractor about the design of a stone medallion for the foyer for his new home. The dispute went to trial and the following Q-and-A occurred during examination of a witness for the contractor:

Q. Okay. And did you have a conversation with them about whether or not you could duplicate one of those medallions?

A. Yes, and I repeated that — They — They repeated to me that this was only a design that they were interested in because they did not want cherubims and angels because — what I surmised by that was for religious readons and —

[Khan’s counsel] Objection; relevance.

THE COURT: Sustained.

Khan argued that this exchange was an attempt to appeal to religious prejudice by identifying him as a Muslin. The Fifth Court agreed that the comment was improper, as “[c]ourts in this state have long recognized that a person’s religious beliefs have no place in determining the merits of a dispute,” but found that “[t]his single reference to Khan’s religion was not extreme” as to amount to incurable error. Khan v. The Chai Road, Inc., No. 05-16-00346-CV (July 17, 2017) (mem. op.)

The appellant in In the Interest of BTG, acknowledging that an order denying the expungement of a lis pendens is not ordinarily appealable, attempted to rely on the Fifth Court’s standard language denying an earlier writ of mandamus. He contended that it granted him an appeal right by agreeing that he had an adequate remedy by direct appeal. ” Appellant, however, misstates our conclusion. In denying the petition, we stated he had ‘not shown he is entitled to the relief requested,’ a burden requiring he show not only that he has no adequate appellate remedy but also that the trial court clearly abused its discretion.” No. 05-17-00465-CV (July 13, 2017) (mem. op.)

In Deaton v. Johnson, the Fifth Court found that a Rhode Island lawyer’s retention pursuant to representation agreement governed by Texas law and “performable in Tarrant County, Texas” allowed the exercise of personal jurisdiction in Texas over that lawyer. No. 05-16-01221-CV (July 14, 2017) (mem. op.)

I recently participated in a mock reargument of Marbury v. Madison (right), albeit changed from the original to (1) actually have discussion about judicial review (2) actually have participation by my character, Attorney General Levi Lincoln, who in “real life” was ordered to stay silent by a highly irritated President Jefferson. In case you should ever need such a thing, here are my notes about the case against judicial review, which rely heavily upon an outstanding 1969 Duke Law Journal article by Professor William Van Alstyne.

Representatives of the Estate of Samuel Dorfman moved to dismiss tort claims under the Texas anti-SLAPP law, brought by professionals who did work for the Estate and complained that they had been defamed and disparaged in comments about their work. Applying the newly-decided opinion in Hersh v. Tatum , 2017 WL 2839873 (Tex. June 30, 2017), the Fifth Court held that the trial court erred in determining that “the Estate was not entitled under the TCPA to seek dismmissal of appellees’ claims because the Estate denied making the communications that form the bases of those claims,” and remanded for further consideration of the TCPA motion. Dorfman Estate v. Proactive Inventory, No. 05-16-01286-CV (July 11, 2017) (mem. op.)

Ms. Mandava served divorce papers on Mr. Chukkapalli in India using the Hague Convention. When Chukkapalli moved for a new trial in Texas, pointing out flaws in how he was served, Mandava countered by showing that he had actual notice of the Texas lawsuit – he had made a filing with an Indian family court that identified the Texas case and attached a document from the Texas case file. The Fifth Court agreed with him about the problems with service and held: “Although it appears Chukkapalli had actual notice of the Texas divorce proceeding, actual notice to a defendant of a pending suit, without proper [service], is not sufficient.” However: “[U]pon remand, the parties will be before the court wihout need for further citation because Chukkapalli has now become subject to the jurisdiction of the court.” Chukkapalli v. Mandava, No. 05-15-01287-CV (June 30, 2017) (mem. op.)

A fraudulent inducement claim, brought by a subcontractor against the project owner, turned on the sub’s evidence of the owner’s inteot not to perform at the time it entered into an agreement about payment. The Fifth Court reviewed the five pieces of cited evidence and concluded: “Except for . . . negotiat[ing] the discount and . . . emailing the template, the other actions by Riverdale occurred as many as eight months prior to November 2010. Regardless of the timing of the pre-agreement events, there is no ‘logical bridge’ between any of these occurrences and the conclusion Riverdale, at the time it made the agreement, did not intend to pay Dixie.” Residences at Riverdale LP v. Dixie Carpet Installations Inc., No. 05-15-01030-CV (July 7, 2017) (applying IKON Office Solutions v. Eifert, 125 S.W.3d 113, 131 (Tex. App.–Houston [14th Dist.] 2003, pet. denied).

KPitch intervened in a lawsuit and obtained a temporary injunction against FSD. FSD appealed the injunction and sought mandamus relief against the intervention. KPitch then nonsuited the claims that were the basis for the injunction, and the Fifth Court agreed with KPitch that this action made the appellate proceedings moot. FSD argued that the appeal should proceed because KPitch had refiled the claims in an improper effort to obtain a severance, but the Court did not see this argument as creating an exception to the general rule about the effect of a nonsuit. Frisco Square Developers LLC v. KPitch Enterprises, LLC, No. 05-16-00992-CV (June 22, 2017) (mem. op.)

Twice in one week, the Fifth Court affirmed substantial awards of exemplary damages. I anticipate posts in the days ahead about the details of these cases, but for now, simply note these important holdings:

• Bombardier Aerospace Corp. v. SPEP Aircraft Holdings LLC, No. 05-16-00086-CV (June 22, 2017) (mem. op.), a case about the condition of an expensive private jet, affirmed “a verdict in appellees’ favor on both claims and awarded $2,694,160 in actual damages and $5,388,320 in exemplary damages,” and
• Wells Fargo Bank, N.A. v. Militello, No. 05-15-01252-CV (June 20, 2017) (mem. op.) affirmed (after a remittitur) an award of approximately $2.7 million  and roughly $1 million in actual damages.

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

In the department of “rare bird sightings,” the case of Hollingsworth v. Walaal Corp. involved an appeal, under the newly-revised Texas Rule of Civil Procedure 145, to a trial court order requiring an appellant to pay for a reporter’s record. The appellant filed an affidavit of inability to pay costs and the trial court had an evidentiary hearing on the appellees’ challenge to it. Recognizing that the appellant did not offer tax returns or the like, the Fifth Court reversed, finding that his “testimony was uncontroverted” and that “[a]lthough the trial court was required to evaluate Hollingsworth’s credibility, the trial court was not free to completely disregard the only evidence establishing his inability to pay costs when no evidence was offered in rebuttal.” No. 05-17-00555-CV (June 9, 2017) (mem. op.)

The Dallas Morning News reports the recent death of former Dallas Court of Appeals Justice David Lewis, who resigned from that Court last year to combat alcoholism and depression. The story sounds a warning note for all in the legal profession about the importance of mental health.

Dahlheimer sought a writ of injunction in the court of appeals to stay proceedings involving a receivership about the sale of a home. The Fifth Court found that it lacked jurisdiction, noting that its injunctive power is limited to “jurisdiction over the subject matter of a pending appeal,” and that “[t]he power to grant a temporary writ of injunction to prevent damages which would otherwise flow to  alitigant who has an apppeal pending rests exclusively with the trial court.” In re Dahlheimer, No. 05-17-00556-CV (June 8, 2017) (mem. op.)

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

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

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

The high-profile mandamus case of In re: Paxton provides a general reminder about geographic bounds on Texas trial courts: “Jurisdiction over the cases vested immediately in the Harris County district courts when respondent signed the transfer order. The Texas Constitution does not allow the 416th Judicial District Court to sit outside of the Collin County seat, McKinney, absent express statutory authority. Tex. Const. art. V, § 7. The only authority by which this may occur is [Code of Criminal Procedure] article 31.09, which requires consent of the parties. Thus, absent effective application of article 31.09, respondent may not continue to preside over the cases or utilize the services of the court reporter, court coordinator, or clerk of the court of original venue. Relator has unequivocally stated that he did not consent to respondent continuing to preside over the cases or otherwise acting in accordance with article 31.09, and no written consent appears in our record. Accordingly, under the plain language of the statute, respondent is without authority to continue to preside over the cases and is also without authority to issue orders or directives maintaining the case files in Collin County. Consequently, all orders issued by respondent after he signed the April 11, 2017 transfer order are void.” No. 05-17-00507-CV (May 30, 2017).

Last Friday, the Texas Supreme Court denied mandamus relief in a high-profile dispute about the proper format in which to produce electronic records, but provided extensive guidance about the framework and factors that should decide such disputes, and remanded for reconsideration in light of that guidance. In a nutshell: “Under our discovery rules, neither party may dictate the form of electronic discovery. The requesting party must specify the desired form of production, but all discovery is subject to the proportionality overlay embedded in our discovery rules and inherent in the reasonableness standard to which our electronic-discovery rule is tethered. The taproot of this discovery dispute is whether production in native format is reasonable given the circumstances of this case. Reasonableness and its bedfellow, proportionality, require a case-by-case balancing of jurisprudential considerations,which is informed by factors the discovery rules identify as limiting the scope of discovery and geared toward the ultimate objective of “obtain[ing] a just,fair, equitable and impartial adjudication” for the litigants “with as great expedition and dispatch at the least expense . . . as may be practicable.” In re State Farm Lloyds, No. 15-903 (Tex. May 26, 2017).

The Texas Supreme Court’s newfound enthusiasm for mandamus review of orders granting motions for new trial after a jury trial (see, e.g., In re: United Scaffolding, 377 S.W.3d 685 (Tex. 2012)) has not been embraced by the courts of appeal (including Dallas) to orders setting aside a default judgment, or orders granting a new trial following a bench trial. A thorough summary of the Fifth Court’s opinions on those subjects appears in In re: Walker, No. 05-17-00404-CV (May 23, 2017) (mem. op.)

New Local Rule 5, which became effective in May 2017, bridges a “gap” in the Texas Rules of Appellate Procedure about the briefing schedule when both parties have appealed.

The case of In re Bolt reminds when a party can seek mandamus relief to obtain a ruling on a motion. On the one hand, because “[m]andamus is appropriate to compel the performance of a ministerial duty,” it follows that “[a] trial jduge must consider and rule on a motion brought to the court’s attention within a reasonable amount of time, and a writ of mandamus may be issued to compel the trial court to rule in such instances.” But, as is required in other contexts where mandamus may be appropriate, the matter must be presented to the trial court: “To be properly filed and timely presented, a motion must be presentedd to a trial court at a time when the court has authority to act on the motion. The mere filing of a motion with the trial court clerk does not equate to a request that the trial court rule on the motion.” No. 05-17-00495-CV (May 22, 2017) (mem. op.)

Federal law, but highly relevant to the local corporate community –  the Supreme Court’s unanimous May 22 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC holds: “As applied to domestic corporations, ‘reside[nce]’ in [28 U.S.C.] § 1400(b) refers only to the State of incorporation.”

Emergency Medical Training Services sued Sheila Elliott for breaching various non-disclosure obligations in her complaints to state regulators. Elliott moved to dismiss under the Texas anti-SLAPP statute; the district court denied her motion, and the Fifth Court reversed and remanded for dismissal of the case in her favor.

The Court used a standard two-step analysis. As to the first step, Elliott met her burden to show that EMTS’s claim was based on her exercise of free speech rights – a matter, the Court ruled, that was not affected by whether she had entered an NDA. As to the second step, EMTS failed to meet its burden to establish a prima facie case fo each element of its contract claim, as its evidence of damage was too conclusory. Elliott v. S&S Emergency Training Solutions, Inc., No. 05-16-01373-CV (May 16, 2017) (mem. op.)

In a quick break from Texas state practice – for a recent CLE presentation, I prepared the attached one-page chart to summarize the Fifth Circuit’s recent holdings about discovery.

The arbitration clause in Employee Solutions v. Wilkerson said, in part, that it applied to “. . . any and all claims challenging the existence, validity or enforceability of this [agreement] (in whole or in part) or challenging the applicability of this [agreement] to a particular dispute or claim.” To get around this broad language, the party opposing arbitration contended that it did not reach a “purely procedural” matter – the alleged failure to serve a written demand for arbitration on him and file it with the arbitral authority within the statute of limitations for negligence. The Fifth Court disagreed, noting the parties’ dispute as to whether this matter was a condition precedent to arbitration, which brought it squarely within the above language. No. 05-16-00283-CV (May 10, 2017) (mem. op.)

In the legal malpractice case of Ashton v. KoonsFuller, P.C., the Fifth Court affirmed a summary judgment for the defendant law firm. Among other issues addressed, the Court criticized the testimony of the plaintiff’s expert about the defendant’s billing, providing an illustration of the commonly-litigated Daubert/Robinson issue about whether an expert adequately considered alternatives to his or her conclusion: “[W]hile Hill disagrees with the amount of time KoonsFuller spent on discovery matters and preparing for mediation, the affidavit does not state how much time would have been reasonable. Similarly, Hill complains about the number of lawyers and legal assistants billing for those services, but does not suggest what an appropriate number would be.” No. 05-16-00130-CV (May 10, 2017) (mem. op.)

The new “permissive appeal” procedure has not led to a lot of permissive, interlocutory appeals; another example of that trend appears in Oklahoma Specialty Ins. Co. v. St. Martin de Porres, Inc. The parties stipulated to damages, the trial court found the policy ambiguous and thus interpreted in a certain way, and said it would follow whatever the Fifth Court decided about that interpretation. The Court declined to hear the case, finding: “Given the posture of this case following the trial court’s rulings and the parties’ stipulations, we conclude a permissive appeal will not materially advance the ultimate termination of the litigation by considerably shortening the time, effort, and expense involved in obtaining a final judgment. (applying Tex. Civ. Prac. & Rem. Code § 51.014(d).

I am speaking on the topic “Ethics 2017: Recent Federal Court Decisions to Know” on Friday, May 5, to the Plano Bar Association (noon at Palio’s Pizza, yum) – here is the PowerPoint that I will be using.

Plaintiff sued two insurance companies, headquartered out-of-state, who produced evidence that their business was limited to out-of-state activity. As to an allegation that the companies and their agents met in Toronto where they “conspired to forge [Plaintiff’s signature,” the Court reminded that “the assertion of personal jurisdiction over a nonresident defendant may not be based solely upon the effects or consequences of an alleged conspiracy with a resident in the forum state.” Friend v. Acadia Holding Corp., No. 05-16-00286-CV (April 27, 2017) (applying Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995)).

Jones sued a TV production company, alleging that he was shot at and received death threats as a result of his appearance (even though blurred and voice-altered) on “The First 48,” a show about homicide investigations. The company did not prevail on its motion to dismiss based on the Texas anti-SLAPP statute: “The plain language of section 27.010(c) excludes legal actions seeking recovery for bodily injury. . . .  Mr. Jones’s negligence claim seeks to recover for the bodily injuries—four gunshot wounds—that he claims he sustained as a result of Kirkstall’s negligence in editing and producing its program. Without expressing any opinion on the merits of his claim, we conclude that Mr. Jones has shown that it is exempted from application of the TCPA.” Kirkstall Road Enterprises v. Jones, No. 05-16-00859-CV (April 27, 2017).

The recent memorandum opinion in In re NCH Corp reminds of two basic points about mandamus practice.

1. In a mandamus situation arising from the threatened disclosure of trade secrets: “No adequate appellate remedy exists if a trial court orders a party to produce privileged trade secrets absent a showing of necessity. In re Bass, 113 S.W.3d 735, 745 (Tex. 2003) (orig. proceeding) (citing In re Cont’l Gen. Tire, Inc., 979 S.W.2d 609, 615  (Tex. 1998) (orig. proceeding)). Further, a trial court abuses its discretion when it erroneously compels production of trade secrets without a showing that the information is ‘material and necessary.’ Id. at 738, 743.”
2. The Fifth Court is using slightly revised “standard” language when denying mandamus relief in a short opinion: “To be entitled to mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). . . . Based on the record before us, we conclude relator has not shown it is entitled to the relief requested. Accordingly, we DENY relator’s petition for writ of mandamus. See Tex. R. App. P. 52.8(a) (the court must deny the petition if the court determines relator is not entitled to the relief sought).

No. 05-17-00360-CV (Apr. 25, 2017) (mem. op.)

Smith intervened in a case after a judgment had been entered; the trial court granted a motion to strike his intervention. Resolving a tangled web of procedural issues, the Fifth Court held that (1) the striking of his intervention was not appealable before final judgment; (2) Smith’s appeal was limited to the merits of his intervention, not the claims of others; and (3) Smith’s filing of a motion for new trial extended the appellate deadlines. Smith v. City of Garland, No. 05-16-00454-CV (Apr. 20, 2017).

The Fifth Court reversed an award of lost profits in Radiant Financial, Inc. v. Bagby, which allegedly arose from improper customer solicitation about an insurance product, noting, inter alia: “Radiant admits the five policies [the expert] used in his estimate were not available at the time Radiant released the fifty-nine investors. Radiant argues that it had sufficient policies availale, but none of the investors chose to invest in those poliicies, even though Radiant presented those policies to its investors.” The Court concluded: “[T]o conclude the nineteen investors would have invested with Radiant instead of Paladin, we would be required to stack assumption upon assumption, which we will not do.” No. 05-16-00268-CV (April 18, 2017) (mem. op.)

The Fifth Court affirmed summary judgment for D Magazine in a defamation suit by a former volunteer, finding that most of the statements at issue were unactionable opinions or accurate statements of fact. Summarizing the underlying principles of free speech, the opinion reminds that a “rhetorical flourish” that is “merely unflattering, abusive, annoying, irksome, or embarrassing, or that only hurts the plaintiff’s feelings, is not actionable.” The court lacked appellate jurisdiction over part of a related appeal by the Dallas Symphony, since it involved the denial of a summary judgment about a tortious interference claim rather then free speech issues, although the Court was able to address the civil conspiracy claim against the Symphony. D Magazine Partners LP v. Reyes, No. 05-16-00294-CV (April 18, 2017) (mem. op.)

Defendants sought review of a post-answer default judgment by restricted appeal. Unfortunately for them, “the record is silent regarding whether notice of the final hearing date was sent . . . . ” They thus failed to show error on the face of the record, as required in a restricted appeal, because “absence in the record of any proof that notice . . . was sent to a party is ‘just that–an absence of proof of error.” Odela Group LLC v. Double-R Walnut Management LLC, No. 05-16-00206-CV (April 12, 2017) (mem. op.) (applying and quoting Gold v. Gold, 145 S.W.3d 212 (Tex. 2004)).

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

In Viveri Youth Service v. Orme, the Fifth Court dismissed an appeal for lack of a final judgment. While the docket sheet indicated the case had been closed, the Court observed: “The last order, however, contains no language of finality or other indication the case was closed. While the trial court’s docket sheet reflects the case was closed, a docket sheet entry does not constitute a judgment or other appealable order of the trial court.” No. 05-17-00002-CV (April 11, 2017) (mem. op.)

A mandamus petition challenged an order allowing a “court-supervised winding up” of an LLC that owned over 700 acres of undeveloped land in Denton County. As to the procedural posture of the case, the Fifth Court obseved: “[M]andamus relief is proper to the extent the winding-up order permits execution before the entry of a final, appealable judgment.” On the merits, the court concluded that this order had that effect, “because if SRE is wound up and the property sold in the interim, [Petitioner]’s property rights and purported right to continue the business will be lost forever.” In re Spiritas, No. 05-16-00791-CV (Apr. 6, 2017) (mem. op.)

The  long-running dispute between the City of Dallas and the Topletz family, which owns a number of residential rental properties, reappeared in the case of Topletz v. City of Dallas. The Fifth Court substantially affirmed a temporary injunction in favor of the City and a class of tenants, reversing as to one provision that “prohibits appellants from raising rent, properly initiating eviction proceedings, or evicting . . . without leave of the trial court.” This provision was overly broad because it “enjoins activities the appellants otherwise have a legal right to perform . . . .” No. 05-16-00741-CV (April 6, 2017) (mem. op.) (citing, inter alia, Webb v. Glenbrook Owners Ass’n, Inc., 298 S.W.3d 374 (Tex. App.–Dallas 2009, no pet.)).

The case of MacFarland v. Le-Vel Brands involved a blog post on the website “Lazy Man and Money,” which was critical of a multi-level marketing company that sells dietary supplements. The trial court denied the defendant’s motion to dismiss under the Texas anti-SLAPP statute and the Fifth Court reversed, finding: (1) the suit involved the blogger’s speech; (2) the “commercial speech” exception did not apply; and (3) the plaintiff could not establish damages for either business disparagement or defamation. (On that subject, compare the recent case from the Fifth Court of Glassdoor v. Andra Group, which did find sufficient evidence of damage.) The opinion carefully reviews the leading recent authorities on the scope of these provisions of the statute. The case was remanded for further proceedings, including consideration of the defendant’s attorneys’ fees and costs. No. 05-16-00672 (March 23, 2017) (mem. op.)

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

Verveba Communications and a former employee, Jewell Thomas, settled a dispute about travel expenses after a JP court trial with this release: “each party hereby: (1) releases all claims against the other; (ii) waives his/its right to file a motion for new trial, [and] (iii) waives his/its right to appeal the [JP court] judgment . . . .” Jewell then brought new claims, beyond the contract claim litigated in JP court, and the Fifth Court affirmed their dismissal: “None of these cases [cited by Thomas] held that the release must identify each claim or cause of action by name to be effective and, in fact, none of the releases in these cases identified the claims being released specifically by name.” Thomas v. Verveba Telecom, LLC, No. 05-16-00123-CV (March 31, 2017) (mem. op.)

An attorney paid a sanction and then challenged the sanctions order as part of the appeal from the final judgment in the action. In reviewing an objection based on mootness, the Fifth Court observed that while an appeal becomes moot “when a judgment debtor voluntarily pays and satisfied a judgment rendered against him,” the purpose of that rule is “to prevent appellants from misleading their opponents into believing a controversy is over when it is not.” Thus, “payment on a judgment will not moot an appeal of that judgment if the judgment debtor clearly expresses an intent that he intends to exercise his right of appeal and appellate relief is not futile.” Here, before the attorney paid the sanction, the other side had notice of his intent to appeal when payment was made, so the appeal was justiciable. Kamel v. AdvoCare Int’l, L.P., No. 05-16-00433-CV (March 28, 2017) (mem. op.)

In Glassdoor Inc. v. Andra Group LP, the Fifth Court affirmed an order granting a Rule 202 petition about online reviews of a business as an employer, offering several pointers for the handling of such petitions:

• The trial judge limited the scope of the examination to two posts, and specific items within them;
• The movant established its potential business disparagement damages with three affidavits about the effect of the posts on its recruiting;
• The statements at issue went beyond “hyperbole or mere personal opinion” to make specific “accusations of illegal conduct that are capable of being proved true or false”; and
• The First Amendment rights of the anonymous reviewers to speak anonymously “must be balanced against the right of others to hold accountable those who engage in speech not protected by the First Amendment.”

A “mirror image” anti-SLAPP motion was properly rejected for the same reasons that the Rule 202 petition was granted. No. 05-16-00189-CV (March 24, 2017) (mem. op.)

If Dr. McCoy made his famous pronouncement, not as to an Enterprise crew member in a red shirt, but during litigation about another defendant by filing a “suggestion of death,” would he make a general appearance in that litigation? The Fifth Court answered “no” in Hegwer v. Edwards, primarily citing a line of cases holding that making and filing a Rule 11 agreement does not amount to a general appearance. No. 05-15-01464-CV (March 22, 2017).

“I-35 argues that, although the guaranty itself does not specify an interest rate, the guaranty incorporates the Note and the two must be read together. We agree.” Interstate 35-Chisam Road LP v. Moyaedi, No. 05-16-00196-CV (March 20, 2017) (mem. op.)

In D Magazine Partners LP v. Rosenthal, reviewing the work of the Dallas Court of Appeals in a high-profile anti-SLAPP case, the Texas Supreme Court observed about Wikipedia:

“Given the arguments both for and against reliance on Wikipedia, as well as the variety of ways in which the source may be utilized, a bright-line rule is untenable. Of the many concerns expressed about Wikipedia use, lack of reliability is paramount and may often preclude its use as a source of authority in opinions. At the least, we find it unlikely Wikipedia could suffice as the sole source of authority on an issue of any significance to a case. That said, Wikipedia  can often be useful as a starting point for research purposes. In this case, for example, the cited Wikipedia page itself cited past newspaper and magazine articles that had used the term ‘welfare queen’ in various contexts and could help shed light on how a reasonable person could construe the term.”

But, as a matter of the relevant substantive law, and the nature of Wikipedia, the Texas Supreme Court found overreliance on a Wikipedia entry when “the court of appeals utilized Wikipedia as its primary source to ascribe a specific, narrow definition to a single term that the court found significantly influenced the article’s gist. Essentially, the court used the Wikipedia definition as the lynchpin of its analysis on a critical issue. . . . ”

Accordingly, Dallas-area practitioners should pay special attention to these statements, if online resources such as Wikipedia play more than a general background role in a legal argument. 

Echoing a line of cases from the Fifth Circuit about attorney immunity, and applying the Texas Supreme Court’s opinion in Cantey Hanger LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), the Fifth Court affirmed a summary judgment for a law firm involved in a foreclosure, noting: “The evidence shows Mackie Wolf provided appellants with a copy of the original note that appellants executed and all actions taken by Mackie Wolf were made in connection with its representation of its clients, BONY and Ocwen. The actions taken by Mackie Wolf that are the subject of this litigation—obtaining the note and presenting it to appellants—are the kinds of actions that are part of the discharge of an attorney’s duties in representing a party.” Santiago v. Mackie Wolf, No. 05-16-00394-CV (March 10, 2017) (mem. op.)

A useful reminder about timeliness appears in Duchouquette v. McWhorter, in which the appellant filed a late notice of appeal within the 15-day grace period, but neglected to move for leave to extend the deadline. In addition to dismissing the appellant’s appeal, the Fifth Court dismissed the cross-appeal noticed 8 days after the appellant’s: “[T]he Court does not have jurisdiction over a cross-appeal where the original notice of appeal is untimely.” No. 05-17-00041-CV (March 13, 2017) (mem. op.)

Together with Chrysta Castañeda, I recently wrote a short article for the State Bar Litigation Section about often-forgotten Texas Rules of Civil Procedure that can help keep legal issues alive at trial.

The writ of “scire facias” made one of its rare appearances in City of Dallas v. Ellis, after ten years passed from rendition of judgment, and the two-year grace period for a writ of scire facias expired as well. Unfortunately for the judgment debtor, under another provision of the Civil Practice & Remedies Code, the grace period does not expire for a judgment held by an incorporated city. The debtor did not persuade the Fifth Court that the city’s case should be viewed as one for subrogation that could potentially avoid that provision. No. 05-16-00348-CV (Feb. 17, 2017) (mem. op.)

In Baxter & Associates, LLC v. D&D Elevators, Inc., No. 05-16-003300-CV (Feb. 15, 2017), the plaintiff appealed from the denial of a temporary injunction against former employees and the company they formed. The plaintiff alleged that the former employees took trade secrets, namely a list of builders with projects potentially including elevators, in violation of their fiduciary duties and the Texas Uniform Trade Secrets Act (“TUTSA”).

After a two-day hearing, the parties received a signed order denying the request for temporary injunction, which was attached to an email from the court administrator stating, “The Court makes the following rulings: … I do find that trade secret as to existing jobs or bids was obtained… [but] there is an adequate remedy at law….” The plaintiff requested findings of fact and conclusions of law, and filed a motion for reconsideration based on its argument that it did not need to show no adequate remedy at law under TUTSA to obtain injunctive relief. The trial court did not sign any findings of fact or conclusions of law, and the plaintiff appealed without filing a notice of past due findings and conclusions of law.

The first issue addressed by the court was procedural—whether the statement contained in the court administrator’s email stating the existence of trade secrets was a finding of fact. The Court of Appeals held it was not, in part because at a subsequent hearing the trial court stated that it had not made such a finding. Although the plaintiff formally requested findings of fact and conclusions of law, it failed to file a notice of past due findings and conclusions of law pursuant to Rule 297. Thus, the Court of Appeals held there were no findings of fact or conclusions of law, that any error for the failure to make such findings was not preserved, and implied a finding that the plaintiff had not shown the existence of a trade secret.

The Court went on to hold that there was evidence that would have allowed the trial court to conclude that the list of projects was not a trade secret because the information could be publicly identified, and therefore would not “derive[] independent economic value, actual or potential, from not being generally known….”

Baxter & Associates, LLC v. D&D Elevators, Inc., No. 05-16-003300-CV (Feb. 15, 2017)

vRide, a vanpool service, sought statutory indemnity from Ford after an accident, contending that the plaintiffs alleged – in substance – a products liability claim. The Fifth Court disagreed: The Cernoseks’ petition did not allege that the Ford van was unreasonably dangerous, was defective by manufacture or design, was rendered defective because it lacked certain safety features, or was otherwise defective. Instead, the petition alleged that vRide represented its vehicles had certain safety features when in actuality the vehicles did not have those safety features and that vRide failed to furnish vehicles with those safety features. In short, the Cernoseks’ petition did not contain allegations that the damages arose out of personal injury, death, or property damage allegedly caused by a defective product.” vRide v. Ford, No. 05-15-01377-CV (Feb. 2, 2017) (mem. op.)

The dispute that rolled into court in Wheel Technologies v. Gonzalez was whether a shipment of wheels had been delivered. The companies’ records were important but not dispositive, as the Fifth Court rounded up the facts: “This case essentially came down to a ‘he said, he said’ between two parties’ explanations of accounting. Blaser testified WTI always created a purchase order when it received a delivery and because WTI had no record of any outstanding purchase orders owed to Gonzalez, then it never received the tires. Gonzalez testified to the contrary. . . . Further, Blaser admitted he could not say for sure Owens always created a purchase order upon receipt of tires because Blaser was never personally involved in any of the transactions. Rather, Gonzalez testified there were many times in which the deliveries occurred after hours so checks and other documentation were not always ready when he made a delivery.” No. 05-16-00068-CV (Feb. 8, 2017) (mem. op.)

In In re FPWP GP LLC, et al. (January 25, 2017), the Dallas Court of Appeals conditionally granted a writ of mandamus for the district court’s failure to transfer venue under the mandatory venue provision of Section 65.023 of the Civil Practice & Remedies Code, which provides that “a writ of injunction against a party who is a resident of this state shall be tried in … the county in which the party is domiciled.” Courts have struggled at times to apply Section 65.023 because it does not apply to all suits seeking an injunction, but instead only to suits in which the relief requested is “purely or primarily injunctive.” So, if the primary form of relief is something else, e.g. damages, then the mandatory venue provision does not apply. The opinion gave examples of the exception, such as when injunctive relief is simply to maintain the status quo pending litigation or when there is no request for a permanent injunction. But in the case at hand, the plaintiff sought only a declaratory judgment that was effectively a mirror image of the permanent injunctive relief requested. Holding the injunction “was a means to the same end” as the declaratory judgment, the Court held that the primary purpose of the lawsuit was injunctive and that transfer to the county of domicile of the defendants was mandatory under Section 65.023.

In re FPWP GP LLC, et al. (January 25, 2017)

In Parsons v. Queenan, et al., No. 05-15-01375-CV (January 23, 2017), the Dallas Court of Appeals affirmed summary judgment in favor of the defendants on limitations grounds. The suit was Parsons’ third in a series of malpractice suits against different attorneys that represented him since the death of his wife in a plane crash more than two decades earlier.

The first issue was whether the breach of fiduciary duty and fraud claims were subject to a 2-year statute of limitations for negligence or a 4-year statute of limitations for fraud or breach of fiduciary duty. The Dallas Court held that the 2-year limitations period applied under the anti-fracturing rule, which prevents legal malpractice plaintiffs from “opportunistically transforming a claim that sounds only in negligence into other claims” to avail themselves of longer limitations periods, less onerous proof requirements, or other tactical advantages. For the anti-fracturing rule to apply, the gravamen of the complaint must focus on the quality or adequacy of the attorney’s representation. The Dallas Court concluded that the fraud and breach of fiduciary duty claims asserted by Parsons were claims for professional negligence as a matter of law.

In the second issue, the Dallas Court held that the 2-year limitations period began to run on the date of the denial of the motion for reconsideration by the Texas Supreme Court in the underlying litigation, not the date mandate was issued. Under Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991), “the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claim are exhausted.” Id. at 157. The Dallas Court held that appeals are exhausted when a motion for rehearing with the Texas Supreme Court is denied because that is the last action of right that can be taken in the underlying case.

Parsons v. Queenan, et al., No. 05-15-01375-CV (January 23, 2017)