CIVIL PROCEDURE

SPRING 2020

 

In the Interest of Z.M.M., 577 S.W.3d 541 (Tex. 2019)

 

Broad Construction of Issues on Appeal: A father’s parental rights were terminated by the trial court on a ground that had two possible bases for the father to have proved compliance and avoided termination.  On appeal, the court of appeals addressed only one of the two bases.  The father had framed the issue on the one basis addressed by the court of appeals, but had argued reasons supporting the second basis, as well.  Held: Court of appeals judgment is reversed and the cause is remanded to the court of appeals.  “Courts must broadly construe issues to reach all core and substantive questions such that the merits of an appeal are addressed when reasonably possible to provide the party with a meaningful appeal.”

 

Worsdale v. City of Killeen, 578 S.W.3d 57 (Tex. 2019)

 

Stare Decisis: In affirming its previous interpretation of “actual notice” under the Texas Tort Claims Act, the majority opinion in this case defended its adherence to precedent based on principles of stare decisis.  The opinion noted that the court’s composition had changed since it issued one of the prior decisions, but stated that an appellate court’s decisions should not change merely because the judges have changed.  Stare decisis also has its greatest force in matters of statutory construction.  Stare decisis advances important interests, including efficiency, fairness, predictability, and judicial integrity.  The doctrine has special force in the construction of statutes precisely because the legislature can “readily course correct” if it believes the law should be changed.  “Though stare decisis is not an impenetrable barrier, we should not overrule precedent absent a compelling reason.  We find none here.”  See also Agar Corp., Inc. v. Electro Circuits International, LLC, 580 S.W.3d 136 (Tex. 2019) (“Finally, Electro argues that we should not overturn the court of appeals’ decades-long, uniform application of the two-year limitations period to civil conspiracy.  But a long history of mistaken application alone is insufficient to counsel against correcting the error.”).

 

Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019)

 

Attorneys’ Fees:  This opinion reviews at length the principles governing contractual attorneys’ fees, prevailing-party status, the interrelationship with Chapter 38 of the Texas Civil Practice and Remedies Code, and procedural issues. 

 

Gonzales v. Thorndale Cooperative Gin and Grain Company, 578 S.W.3d 655 (Tex. App.—Houston [14th Dist.] 2019, no pet.)

 

Trial Court Letter Stating Ground for Summary Judgment Ruling and General Order; Order Prevails:  Defendant moved for summary judgment on two grounds.  The trial court signed a general order that failed to specify the ground or grounds on which summary judgment was granted.  On the same date the order was signed, the trial court sent a letter to the parties stating that it was granting summary judgment on one of the grounds.  On appeal, plaintiff challenged only the ground stated in the trial court’s letter.  Held: Summary judgment is affirmed.  “Longstanding case law only permits the appellate court to look to the trial court’s formal summary-judgment order to determine the trial court’s grounds, if any, for its ruling.”  The court of appeals cannot look to a letter, docket entry, or another place in the record other than the trial court’s order.  Because appellant failed to challenge the second possible ground for the trial court’s order, the judgment had to be upheld on the unchallenged ground. 

 

Scott Pelley P.C. v. Wynne, 578 S.W.3d 694 (Tex. App.—Dallas 2019, no pet.)

 

Principles Governing Reversal of Trial Court’s Judgment and Remand to Trial Court:  This appeal followed a previous appeal in which the court of appeals reversed the trial court’s judgment and remanded to the trial court.  Appellants contended that the trial court had exceeded the scope of the court of appeals’ remand and had committed error.  In this second appeal, the court of appeals reversed in part and affirmed in part.  In doing so, the court of appeals discussed principles governing remand.  A mandate is an appellate court’s formal command requiring the lower court to comply with the appellate court’s judgment.  When an appellate court affirms a trial court’s judgment or renders the judgment the trial court should have rendered, that judgment becomes the judgment of both courts.  When an appellate court reverses a portion of the trial court’s judgment and remands the case, as occurred here in the previous appeal, the trial court is authorized to take all actions necessary to give full effect to the appellate court’s judgment and mandate.  The scope of the mandate is determined by examining both the appellate court’s opinion and the mandate.  The trial court has no authority to take any action that is inconsistent with or beyond what is necessary to give full effect to the appellate court’s judgment and mandate.  The trial court must observe and carry out the mandate, and its orders carrying out the mandate are ministerial.  When the remand is limited to a particular issue, the trial court is restricted to a determination of that issue.  Moreover, the appellate court’s judgment is final not only with reference to the matters actually litigated, but as to all other matters that the parties might have litigated and had decided in the cause.  When a trial court exceeds the authority under a mandate, the resulting judgment is erroneous.  In a subsequent appeal, instructions given to a trial court in the former appeal will be adhered to and enforced. 

 

Propel Financial Services, LLC v. Conquer Land Utilities, LLC, 579 S.W. 3d 485 (Tex. App.—Corpus Christi-Edinburg 2019, pet. denied)

Default Judgment and Restricted Appeal: The plaintiff obtained a default judgment for $18 million in damages.  In a restricted appeal, the defendant succeeded in having the judgment reversed and the cause remanded to the trial court for new trial.  “To prevail in a restricted appeal, an appellant must show that (1) the notice of appeal was filed within six months of the complained-of judgment; (2) the appellant was a party to the suit who did not participate in the hearing that resulted in the judgment; (3) the appellant did not timely file a post-judgment motion, request findings of facts and conclusions of law, or file a notice of appeal within the time permitted under Rule 26.1(a); and (4) error is apparent from the face of the record.”  See Texas Rules of Appellate Procedure 26.1(c) and 30. Held:  For purposes of a restricted appeal, the face of the record consists of all papers that were before the trial court when it rendered the judgment. 

Equistar Chemicals, LP v. ClydeUnion DB, Limited, 579 S.W.3d 505 (Tex. App.—Houston [14th Dist.] 2019, pet. denied)

Rule of Procedure Versus Statute: “If a rule of procedure conflicts with a statute, generally the statute prevails.” 

 

In re Hightower, 580 S.W.3d 248 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding)

 

Motion In Limine Versus Pre-trial Admissibility Ruling: The trial court granted a mistrial when the defendants introduced evidence in violation of a pre-trial ruling.  By mandamus, defendants contended that the trial court should have rendered a take-nothing judgment, rather than granting a new trial.  Held: Writ of mandamus denied.  Defendants argued in part that the plaintiffs had waived any error by failing to object when defendants introduced the evidence.  The court of appeals, however, reiterated the distinction between a ruling on a motion in limine and a pre-trial evidentiary ruling on admissibility.  When a trial court makes only a ruling on a motion in limine, the moving party must nonetheless object if the evidence is introduced at trial without approaching the bench.  But the trial court has authority to make an absolute pre-trial ruling on the admissibility of evidence, and if it does so, the moving party need not make any further objection if the evidence is introduced in violation of the pre-trial ruling.  Note: This opinion should convince practitioners to file a motion for a pre-trial evidentiary ruling, rather than merely a motion in limine, and attempt to obtain a trial-court ruling.

 

In re Coats, 580 S.W.3d 431 (Tex. App.—Texarkana 2019, orig. proceeding)

 

Death of Party During Pendency of Suit in Trial Court: The defendant died during the pendency of the plaintiff’s personal injury suit against him.  Counsel for defendant filed a suggestion of death, but a writ of scire facias did not issue and the estate representative was not substituted for defendant at that time.  Following a subsequent trial, the jury returned a substantial verdict in favor of plaintiff.  Days later, defense counsel moved to dismiss.  The trial court denied the motion and granted plaintiff’s motion for new trial.  Held: Writ of mandamus is denied, as trial court did not abuse its discretion.  A suggestion of a defendant’s death notifies a trial court that the defendant died.  The legal consequence of that notice is a jurisdictional defect: that the defendant is beyond the power of the trial court and the case cannot proceed until jurisdiction is acquired over the legal representative of the deceased’s estate by service of scire facias.  If the latter is accomplished, the revived action is merely a continuation of the original action, and the substituted party stands in the same shoes as the original party.  When a defendant dies and no personal representative is served or participates in the trial, the resulting judgment is void as a matter of law.  In this case, however, the trial court declined to render judgment on the jury verdict.  When a defendant dies, the trial court loses only personal jurisdiction over the deceased defendant, not subject-matter jurisdiction over the case.  Once the personal representative is substituted as defendant, the action is revived and the case may proceed.  The remedy provided by Texas Rule of Civil Procedure 152 is substitution, not dismissal. 

 

 

Texas Central Partners, LLC v. Grimes County, 580 S.W.3d 824 (Tex. App.—Houston [14th Dist.] 2019, no pet.)

Summary Judgment Standard for Permanent Injunction: The trial court granted summary judgment on plaintiff’s claim for a permanent injunction.  Held: The trial court’s judgment is reversed and the cause is remanded to the trial court.  To prove entitlement to a summary judgment granting a permanent injunction, the plaintiff must conclusively prove at least one claim.  Plaintiff here failed to do that. 

 

Lacy v. Castillo, 580 S.W.3d 830 (Tex. App.—Houston [14th Dist.] 2019, no pet.)

 

Nonsuit Without Prejudice; No Avoidance of Unfavorable Ruling: After plaintiff filed suit, defendants moved for summary judgment, and plaintiff responded to the motion.  About one month later, plaintiff nonsuited.  The trial court’s dismissal order recited that the nonsuit was without prejudice.  Defendants moved to have the nonsuit declared a dismissal with prejudice, but the trial court denied the motion.  Held: Affirmed.  Whether a party nonsuited to avoid an unfavorable ruling is a question of fact reviewed for an abuse of discretion.  “Several factors may support an inference that a plaintiff has nonsuited in order to avoid an unfavorable ruling: (1) a plaintiff’s nonsuit after a defendant files a motion for summary judgment; (2) a plaintiff’s unexcused failure to respond to requests for admission or other discovery that could support an adverse judgment; (3) a plaintiff's failure to timely identify experts or other critical witnesses; and (4) the existence of other procedural obstacles that could defeat the plaintiff’s claim, such as an inability to join necessary parties.”  Under the record here, the court of appeals concluded that the trial court did not abuse its discretion in dismissing without prejudice. 

 

Toyota Motor Company v. Cook, 581 S.W.3d 278 (Tex. App.—Beaumont 2019, no pet.)

 

Choice-of-Law Rules: This suit against Toyota arose out of an automobile accident in Mexico.  The trial court held that Texas law applied uniformly to plaintiff’s claims.  Toyota pursued an agreed interlocutory appeal.  Held: trial court’s order reversed in part.  The court of appeals held that Mexico law applied to liability and punitive damages issues, and Texas law applied to the issue of compensatory damages.  Texas applies the most significant relationship test outlined in the Restatement (Second) of Conflict of Laws to determine choice-of-law issues.  Each substantive issue must be separately considered, and the State’s law having the most significant relationship to each issue must be determined.  Choice-of-law analysis is undertaken only if a conflict of law exists that would affect the outcome of an issue.  The court further explained the factors to be considered, and the reasons for its holdings.

 

RWI Construction, Inc. v. Comerica Bank, 583 S.W.3d 269 (Tex. App.—Dallas 2019, no pet.)

 

Temporary Injunction to Preserve Funds Held by Defendants:  Plaintiff lending bank sued defendants for breach of a loan agreement and injunctive relief against two borrowers and two guarantors.  The trial court granted a temporary injunction to prevent defendants from hiding, secreting, or dissipating certain funds.  Defendants appealed the temporary injunction order.  Held: The order is reversed in part and affirmed in part, and cause remanded.  The court of appeals reiterated the general rule that a trial court is forbidden to issue a preliminary injunction freezing a defendant’s assets simply to assure future satisfaction of a subsequent judgment.  But that general rule does not control where there is a logical and justifiable connection between the claims alleged and the acts sought to be enjoined, or where the plaintiff claims a specific contractual or equitable interest in the assets it seeks to freeze.  Here, that exception was applicable to funds derived from account receivables which were collateral for the loan and which should have been paid to plaintiff upon defendant’s receipt of those funds.  The temporary injunction was improper, however, as to funds not connected to breach of the loan agreement claims.  Finally, the evidence was sufficient to support the trial court’s finding that defendants lacked assets and willingness to satisfy their loan obligations to plaintiff.

 

In re Montelongo, 586 S.W.3d 513 (Tex. App.—Houston [14th Dist. 2019, orig. proceeding)

 

Denial of Jury Trial Unwarranted:  The maternal grandmother of two children whose mother had died had been granted possession and access to the children by previous order agreed to between the children’s father and grandmother.  Father petitioned to modify to deny grandmother possession and access, and grandmother counter-petitioned for sole conservatorship, demanding a jury trial.  In a pre-trial conference order, the judge set the case for pre-trial hearing and jury trial, and the order recited that failure of a party to appear at the pre-trial hearing would constitute a waiver of that party’s jury-trial request.  At the pre-trial hearing, counsel for grandmother left the courtroom to use the restroom, after having informed the court coordinator and opposing counsel he was doing so. During grandmother’s counsel’s absence, the judge called the case and, because of grandmother’s counsel’s absence, ordered the case removed from the jury docket.  Grandmother petitioned for writ of mandamus seeking reinstatement of the case on the jury docket.  Held:  Petition for writ of mandamus is conditionally granted.  The court of appeals began its opinion by discussing the elevated status of the right to jury trial, and the procedural basis for requesting the right in Texas Rule of Civil Procedure 216.  “The right to a jury trial may be waived or withdrawn by agreeing to a bench trial, failing to timely pay a jury fee, failing to timely request a jury trial, or failing to object to a bench trial despite a properly perfected request.”   A party’s failure to appear for trial also is deemed to waive the right to jury trial, under Texas Rule of Civil Procedure 220.  Under Rule 220, appearance at trial by a party’s attorney, constitutes “appearance for trial,” even if the party is not present.  Sanctions for violations of pre-trial orders under Texas Rule of Civil Procedure 166, although not expressly authorized by that rule, have been upheld as impliedly authorized.  But sanctions under that rule must be just and appropriate.  After considering all possible grounds for denial of jury trial here, the court of appeals held that the trial court abused its discretion by removing the case from the jury docket, and that grandmother had no adequate remedy by appeal.  See also Roman v. Halverson, 587 S.W.3d 509 (Tex. App. – El Paso 2019, pet. filed) (affirming dismissal of plaintiffs’ suit after their failure to appear at two pre-trial hearings).    

 

Commission for Lawyer Discipline v. Cantu, 587 S.W.3d 779 (Tex. 2019)

 

Arguing New Authorities On Appeal, As Opposed to New Issues, Is Permissible:  The Supreme Court held that a party was not foreclosed from relying on an authority on appeal that it had not argued in the courts below.  Appellate courts do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the appellate court.