General Practice, Solo and Small Firm Section of the State Bar of Texas


FALL 2018



In re Bayview Loan Servicing, LLC, 532 S.W.3d 510 (Tex. App.—Texarkana 2017, orig. proceeding)

Court of Appeals Statutory Mandamus Jurisdiction Does Not Extend to Review of County Courts at Law:  Bayview sought a writ of mandamus to compel action by the trial court, which was the County Court at Law No. 1 in Hopkins County.  The court of appeals held that it lacked jurisdiction to issue a writ of mandamus against the county court at law judge under Section 22.221 of the Texas Government Code.  That statute authorizes issuance of a writ of mandamus against a “judge of a district or county court” in the court of appeals’ district.  Chapter 22 of the Government Code, however, differentiates between “county courts” and “county courts at law.”  Because of the distinction made by other sections in Chapter 22, the court of appeals concluded that it lacked jurisdiction to issue a writ of mandamus against the judge of a county court at law.

In re National Lloyds Insurance Company, 532 S.W. 3d 794 (Tex. 2017, orig. proceeding)

Discovery Principles; Attorney-Billing Information Held Not Discoverable:  In multi-district litigation involving allegations of underpaid homeowner insurance claims, the homeowners sought recovery of attorney fees, but the insurer did not.  The homeowners obtained a trial court order compelling the insurer to disclose its attorney-billing information on several grounds, including the proposition that it was relevant to the reasonableness of the homeowners’ attorney-fee request in the same case.  Held: mandamus conditionally granted.  “The issue is whether a party’s attorney-billing information is discoverable when the party challenges an opposing party’s attorney-fee request as unreasonable or unnecessary but neither uses its own attorney fees as a comparator nor seeks to recover any portion of its own attorney fees.  We hold that, under such circumstances, (1) compelling en masse production of a party’s billing records invades the attorney work-product privilege; (2) the privilege is not waived merely because the party resisting discovery has challenged the opponent’s attorney-fee request; and (3) such information is ordinarily not discoverable.”  The court reviewed principles generally applicable to discovery and to work-product privilege. 

City of Magnolia 4A Economic Development Corporations v. Smedley, 533 S.W. 3d 297 (Tex. 2017)

Twenty-day Interlocutory Appeal Ran from Second Motion Raising Same Lack-of-Jurisdiction Theory Because of Procedural Distinctions in Motions:  Defendant Economic Development Corporations filed a motion to dismiss and plea to the jurisdiction, alleging failure to plead claims giving rise to jurisdiction.  The trial court denied relief, and the Economic Development Corporations did not pursue an interlocutory appeal.  Later, the Economic Development Corporations filed a hybrid no-evidence and traditional motion for summary judgment on the same grounds.  The trial court denied the motion for summary judgment and, within twenty days after the order denying the motion, the Economic Development Corporations appealed.  The court of appeals held that the motion for summary judgment was essentially a motion for rehearing of the motion to dismiss, and the appellate deadline therefore did not reset.  Held:  judgment of court of appeals reversed and cause remanded to court of appeals for further proceedings.  If a motion or amended plea to the jurisdiction is merely a motion to reconsider an earlier motion or plea, the appellate timetable does not reset.  See City of Houston v. Estate of Jones, 388 S.W.3d 663 (Tex. 2012).  The Jones opinion gave “little guidance in finding the line between mere changes in form and changes substantial enough to warrant resetting the appellate clock.”  The first motion to dismiss constituted a challenge to the pleadings, while the motion for summary judgment addressed the evidence or lack of evidence.  “While the analysis depends more on content than form, the differences between those procedural vehicles inform our analysis. . . . A pleadings challenge argues that the plaintiff has not alleged facts that, if proven true, constitute a valid claim over which there is jurisdiction.  This is a different proposition than arguing that the discovered evidence fails to prove or even affirmatively negates the plaintiff’s claim.” 

Longview Energy Company v. Huff Energy Fund LP, 533 S.W. 3d 866 (Tex. 2017)

Choice of Law: The Supreme Court reiterated general choice of law principles governing substance and procedure.  “Under choice of law principles, Texas courts apply the law of the jurisdiction that has the most significant relationship to the particular substantive issue to be resolved.”  Here, the parties agreed that Delaware law applied to substantive issues.  “The law of Texas, as the forum state, governs matters of procedure.”   

Jury Does Not Decide Propriety of Equitable Relief: “A jury does not determine the expediency, necessity, or propriety of equitable relief such as disgorgement or constructive trust.”  Whether equitable relief should be granted must be determined by a court based on the equity of the circumstances, and the scope and application of equitable relief generally is left to the court’s discretion.  If contested fact issues must be resolved before a court can determine whether to grant equitable relief, a party is entitled to have a jury resolve the disputed fact issues.

Teal Trading and Development, LP v. Champee Springs Ranches Property Owners Association, 534 S.W. 3d 558 (Tex. App.—San Antonio 2017, pet. filed)

Law-of-the-Case Principles:  Before discussing the merits of this appeal, the court addressed a contention that the trial court had misapplied the law of the case doctrine.  “The law of the case doctrine provides that when a court of last resort makes a decision on a question of law, that decision governs the case in subsequent stages.  The rationale for the doctrine is that it narrows the issues in successive stages of the litigation to achieve uniformity of decision as well as judicial economy and efficiency.  The law of the case doctrine is based on public policy and is aimed at bringing finality to the litigation process.  The doctrine applies only to questions of law and does not apply to questions of fact.”  In the prior appeal the court of appeals reversed a summary judgment, finding that fact issues existed.  For this reason, the court declined to apply the law of the case doctrine.

In re Coppola, 535 S.W. 3d 506 (Tex. 2017, orig. proceeding)

Proportionate-Responsibility Statute Broadly Authorizes Defendant to Designate Any Person as a “Responsible Third Party”:  Adams sued the Coppolas for fraud and deceptive trade practices arising from a real estate transaction.  Seventy-six days before the trial setting, the Coppolas requested leave to designate Adams’ attorneys as responsible third parties, but the trial court denied the motion to designate.  The court of appeals denied mandamus relief.  Held:  writ of mandamus conditionally granted.  Section 33.004 of the Texas Civil Practice and Remedies Code permits a tort defendant to designate a person as a responsible third party by filing a motion “on or before the sixtieth day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.”  Tex. Civ. Prac. & Rem. Code § 33.004(a); see id. § 33.002 (making the proportionate-responsibility statute applicable to tort and deceptive-trade-practices claims).  The Coppolas’ motion here was timely.  The Supreme Court did not decide whether the Coppolas’ pleading regarding the attorneys’ alleged responsibility was insufficient, because even if a deficiency existed, the trial court lacked discretion to deny the motion to designate without affording them an opportunity to replead.  The Supreme Court rejected Adams’ contention that parties are categorically prohibited from designating attorneys as responsible third parties.  “This argument cannot be squared with the statute’s provisions.”  In § 33.011(6), “responsible third party” is defined as “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought….”  The statute makes one exception, not applicable here.  The Supreme Court noted that Adams’ policy concerns “seem unfounded” in light of statutory directives that neither a designation nor a finding of fault “impose[s] liability on the person” and neither can “be used in any other proceeding, on the basis of res judicata, collateral estoppel, or any other legal theory, to impose liability on the person.”  Tex. Civ. Prac. & Rem. Code § 33.004(i).

Abdullatif v. Choudhri, 536 S.W. 3d 48 (Tex. App.—Houston [14th Dist.] 2017, no pet.)

Supersedeas Order Failed to Provide Sufficient Security Pending Appeal:  Plaintiff obtained a judgment for damages and a declaration regarding the parties’ respective ownership interests in two business entities.  The trial court permitted defendants to supersede the judgment with a cash deposit equal to the amount of damages plus applicable interest, and the court also prohibited certain activities by the business entities as further security for plaintiff pending appeal.  Plaintiff sought review of the supersedeas order, contending that it did not provide sufficient security for the declaratory portion of the judgment.  Held: additional security required, in an amount to be determined by the trial court on remand.  Under Texas Rule of Appellate Procedure 24.1, unless a rule or the law provides otherwise, a judgment debtor may supersede the judgment by filing an agreement with the judgment creditor for suspending enforcement of the judgment, posting a bond, making a deposit in lieu of a bond, or providing alternate security as ordered by the court.  The amount of security required depends on the type of judgment.  Tex. R. App. P. 24.2(a).  A money judgment may be superseded by a bond, deposit, or security equal to the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment, subject to certain limitations.  Tex. R. App. P. 24.2(a)(1).  If the judgment is for the recovery of an interest in personal property, the amount of security must be at least the value of the property interest on the date the trial court rendered judgment.  Tex. R. App. P. 24.2(a)(2).  When the judgment is for something other than money or an interest in property, the trial court must set the amount and type of security.  The judgment declarations here concerned plaintiff’s interests in a partnership and a limited liability company, and thus the recovery pertained to interests in personal property.  The trial court’s restrictions on the actions of the entities did not substitute for security required by the rule, because the rule requires that the amount of security must be at least “the value of the property interest on the date when the court rendered judgment.”  Tex. R. App. P. 24.2(a)(2)(B).  The court of appeals remanded the cause to the trial court to take evidence about that value.

United Scaffolding, Inc. v. Levine, 537 S.W.3d 463 (Tex. 2017)

Plaintiff’s Submission of Wrong Theory Waived Recovery, and Defendant Preserved Error: The Supreme Court held that plaintiff erroneously submitted a general-negligence theory of recovery to the jury, thereby waiving his right to recover under the proper, premises-liability theory.  Under Texas Rule of Civil Procedure 279, the failure to submit any element of the proper theory constituted waiver.  The Supreme Court further held that defendant did not waive the improper-theory argument by failing to object to the jury charge.  “A defendant has no obligation to complain about a plaintiff’s omission of an independent theory of recovery; rather, the burden to secure proper findings to support that theory of recovery is on the plaintiff, and a plaintiff who fails to satisfy that burden waives that claim.”  A defendant must preserve error by objecting only when an independent theory of recovery is submitted defectively, including when an element of that theory of recovery is omitted.  Defendant here also did not invite the charge error by requesting a general-negligence question in the first trial, after which a new trial was granted.  “[W]hen the trial court grants a motion for new trial, the court essentially wipes the slate clean and starts over.”  Wilkins v. Methodist Healthcare System, 160 S.W. 3d 559, 563 (Tex. 2005).  See also Green v. Dallas County Schools, 537 S.W. 3d 501 (Tex. 2017) (Supreme Court held that plaintiff did not waive recovery under jury charge, as wording of charge permitted jury to find in accordance with plaintiff’s theory and evidence).

Livingston v. Livingston, 537 S.W.3d 578 (Tex. App.—Houston [1st Dist.] 2017, no pet.)

Permanent Injunction Principles: In this case, the court of appeals affirmed a judgment in favor of a step-mother against her step-son, based on a jury verdict in favor of the step-mother on her emotional distress claim and based on the trial court’s decision to grant a permanent injunction in her favor.  In the opinion, the court reviewed a number of principals governing permanent injunctions.  “To obtain permanent-injunctive relief, a party must show (1) the existence of a wrongful act, (2) the existence of imminent harm, (3) the existence of irreparable injury, and (4) the absence of an adequate remedy at law.”  The court rejected the step-son’s contention that he was denied a right to jury trial on the elements of a permanent injunction.  The role of the jury is limited to determining ultimate factual issues, and it does not determine whether a party is entitled to a permanent injunction.  See Longview Energy Company v. Huff Energy Fund LP, 533 S.W. 3d 866 (Tex. 2017) (summarized above).  The jury’s findings on intentional infliction of emotion distress resolved any fact issues in the step-mother’s favor.  The step-son argued that injunctive relief was improper because no damages were awarded for intentional infliction of emotional distress, and therefore no underlying cause of action purportedly was established.  But this argument confused the concepts of liability and remedy, the court held.  The jury made a liability finding against the step-son, even though it failed to award damages.  The trial court therefore had the discretion to award the equitable remedy of a permanent injunction.  The court also rejected the step-son’s contention that the permanent injunction violated Texas Rule of Civil Procedure 683, because it failed to state the reasons for its issuance, holding that this requirement applied only to ancillary injunctive relief and temporary injunctive relief, neither of which was at issue here.

In re Mesa Petroleum Partners, LP, 538 S.W.3d 153 (Tex. App.—El Paso 2017, orig. proceeding)

Mandamus Compelling Trial Court to Act: Parties and their attorneys in the trial court often wish to compel the court to rule on motions or the merits, after they have been submitted to the court for decision, and this opinion gives guidance about that situation.  Mesa sued several defendants for breach of contract and several torts.  The trial court granted summary judgment that Mesa take nothing on all claims except breach of contract, and the case proceeded to a jury trial on October 31, 2016.  The court submitted the case to the jury on November 22, 2016, and the jury found defendants liable for breach of contract.  The jury awarded Mesa damages and attorneys’ fees in the total amount of about $145M.  On December 16, 2016, Mesa moved for judgment on the verdict and attached a proposed final judgment.  Defendants moved for judgment notwithstanding the verdict and filed responses to Mesa’s motion for judgment.  On February 27, 2017, the trial court conducted a hearing on the motions and gave the parties until March 28, 2017, to file additional briefs and objections.  Two other pending cases also related to this case.  Counsel for Mesa wrote letters to the trial court requesting rulings on the post-trial motions, but the trial court did not act, and Mesa sought mandamus relief.  Held: petition for writ of mandamus conditionally granted, directing trial court to rule.  When the court of appeals issued its opinion, almost one year had expired since the jury rendered its verdict, and it had been more than eight months since the post-trial motions hearing and more than seven months since the parties submitted final briefs.  “To obtain mandamus relief based on a trial court’s failure to perform a ministerial duty, the relator must show that the trial court: (1) had a legal duty to perform a non-discretionary act; (2) was asked to perform that act; and (3) refused to do so.”  Where no irreconcilable conflict exists in a jury’s findings, the trial court has a ministerial duty to render a judgment on a jury verdict.  “A trial court’s failure to proceed to judgment within a reasonable time deprives the parties of an adequate remedy at law including the right to accept or appeal the judgment.”  What time period is reasonable depends on the facts and circumstances.  The court of appeals noted that the trial court has inherent power to control its own docket and that this trial court carried a heavy multi-county docket.  Nonetheless, the court of appeals concluded that eight months was a reasonable period of time for the trial court to rule on the parties’ post-verdict motions and render judgment.

TMRJ Holdings, Inc. v. Inhance Technologies, LLC, 540 S.W. 3d 202 (Tex. App.—Houston [1st Dist.] 2018, no pet.)

No Violation of One-Satisfaction Rule by Award of Damages and Permanent Injunction:  In this theft-of-trade-secrets case, the trial court’s judgment awarded both damages based on a jury verdict and permanent injunctive relief.  The court of appeals held that the award of both forms of relief did not violate the one-satisfaction rule, under the evidence in this case.  “Under the one-satisfaction rule, a plaintiff is entitled to only one recovery for any damages suffered because of a particular injury.  A double recovery happens when a judgment awards a plaintiff more than one recovery for the same injury.  A party may seek damages based on alternative theories, but it is not entitled to a double recovery.  When a remedy compensates for a separate and distinct injury, however, then it is not duplicative of another remedy.  For example, a damages award that compensates a plaintiff for past damages combined with relief to prevent future damages does not constitute a double recovery.”  (citations of authorities omitted).  The court concluded that this case fit the latter situation. 

In re Shipman, 540 S.W. 3d 562 (Tex. 2018, orig. proceeding)

Discovery Dispute Concerning Turning Over of Computer:  Following a discovery dispute between Defendant Shelton and Third Party Shipman, concerning claims of fraud and breaches of contract and fiduciary duty, the trial court ultimately granted a motion to compel requiring Shipman to turn over his computer to an expert for Shelton, so that the expert could attempt to retrieve documents from the computer and then allow Shipman to object before turning anything over to Shelton.  Held:  petition for writ of mandamus conditionally granted.  The Supreme Court first addressed a contention that Shipman had failed to adequately lodge a Texas Rule of Civil Procedure 196.4 objection to specific documents, but because Shipman contended that he had produced all responsive documents in his possession, he did not have to make further objection.  Second, the Supreme Court held that Shelton failed to prove that Shipman had defaulted in his obligation to search his records and produce the requested data, before requiring that he turn over his computer.  Shelton’s basis for requesting the computer did not amount to more than mere skepticism that Shipman was incapable of or unwilling to search his computer for responsive documents.  Furthermore, the trial court’s order was overly broad in that it required Shipman to surrender not just his computer, but also all electronic media, whether business or personal, and regardless of whether they were related to the issues in this lawsuit, for the past seventeen years.  Even if some relief were warranted, the trial court’s order was overly broad.

Altesse Healthcare Solutions, Inc. v. Wilson, 540 S.W. 3d 570 (Tex. 2018)

Overly Harsh Sanction for Recalcitrant Litigant:  The Wilsons sued Altesse for breach of contract, seeking damages and injunctive relief.  The Wilsons obtained a temporary restraining order prohibiting certain business activities and requiring Altesse to return to the Wilsons assets, records, and access to information.  The temporary restraining order expired during the time Altesse removed the case to federal court and the court remanded to state court.  The Wilsons did not request a hearing on a temporary injunction, but filed a motion for contempt and sanctions, alleging that Altesse violated the temporary restraining order while it remained in effect.  The trial court signed an order granting the motion for contempt and sanctions, awarding full damages, attorneys’ fees, and the amount of cash transfers Altesse made during the term of the temporary restraining order. The trial court then signed a final judgment for the same amounts, and the court of appeals affirmed.  Held: judgment of court of appeals reversed and cause remanded to trial court, because trial court abused its discretion by imposing overly severe sanctions.  The Supreme Court agreed that Altesse had knowingly violated the temporary restraining order without a compelling excuse.  But the sanction imposed was excessive.  The death-penalty sanctions discussed for discovery abuses apply to litigation-abuse sanctions.  See TransAmerican Natural Gas Corp. v. Powell, 811 S.W. 2d 913 (Tex. 1991).  There are constitutional limitations on the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits.  There was no direct relationship between the sanctions and the conduct of the party sanctioned, beyond punishment for its own sake.  Furthermore, the sanctions here went beyond death-penalty sanctions, in that the trial court awarded the Wilsons a greater amount of damages than they would have been entitled to for their claims.  Moreover, Altesse was denied the opportunity to have its defenses adjudicated.  The trial court did not properly consider lesser sanctions.

Alexander, Dubose, Jefferson, and Townsend, LLP v. Chevron Phillips Chemical Company, L.P., 540 S.W. 3d 577 (Tex. 2018)

Turnover Order Not Final and Appealable:  In this opinion, the Supreme Court discussed whether a turnover order was final and appealable, and the court held that it was not.  “Usually, only final judgments are subject to appeal.  In addition, a judgment’s finality determines whether an appellant invoked a court’s appellate jurisdiction by timely filing a notice of appeal.  Although turnover orders necessarily follow an underlying final judgment, they must also be final and timely appealed to successfully confer appellate jurisdiction.  However, what qualifies as ‘final’ in the turnover context necessarily diverges from the more traditional concept of finality.”  The Supreme Court explained that turnover orders have been treated similarly to mandatory injunctions, but that portions of an order can be injunctive in nature while other provisions of the same order can be interlocutory and unreviewable because they do not resemble injunctive relief.  Turnover orders, for example, that direct that funds be deposited into the court’s registry pending a final adjudication of ownership are interlocutory and not subject to appeal. 

Smith v. Smith, 541 S.W. 3d 251 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)

Waiver of Venue Motion: The trial court denied defendant’s motion to transfer venue, then decided the merits.  Held: affirmed as to venue.  Defendant “waited nearly a year to have his motion to transfer venue heard and then waited approximately six more months to file a proposed order.  This delay indicates a lack of diligence in securing the hearing and obtaining a ruling.”  Defendant also filed a response to plaintiff’s summary judgment motions and joined a motion for continuance in which the parties asserted that they needed more time to prepare for trial so that they could present their claims and defenses.  Defendant did not condition his response or the continuance motion on his venue motion, and he did not re-urge his venue objection.  Based on these factors, the trial court could have determined that defendant’s delay in seeking a hearing and a ruling on his venue motion, along with his filings that were not subject to his venue objection, amounted to a waiver of his venue objection.

In re Estate of Nunu, 542 S.W. 3d 67 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)

Sufficiency of the Record On Appeal:  Appellant asserted that appellee waived his right to appeal because he did not request a complete reporter’s record, and in designating the clerk’s record he only included thirteen of 418 entries on the docket sheet.  The court of appeals disagreed.  “A party need not request a reporter’s record unless it is necessary to the appeal.  See Tex. R. App. P. 34.1.  Moreover, an appellant does not waive the appeal by failing to file a reporter’s record.  The appellate court can decide the appeal based on the brief and the clerk’s record.  See Tex. R. App. P. 37.3(c). . . .  If a reporter’s record is necessary to the appeal, and certain other requirements have not been met, then we will presume that the omitted portion of the reporter’s record supports the judgment.  See Tex. R. App. P. 34.6. . . .  As for the clerk’s record, the Texas Rules of Appellate Procedure no longer place the burden on any party to designate items to be included in the appellate record, but instead permit any party – or the trial court, or the appellate court – to do so.  See Tex. R. App. P. 34.5(a) (‘Unless the parties designated the filings in the appellate record by agreement under Rule 34.2, the record must contain copies of [the enumerated items].’); Tex. R. App. P. 34.5(b)(2) (‘[A]ny party may file with the trial court clerk a written designation specifying items to be included in the record.’); Tex. R. App. P. 34.5(c)(1) (‘If a relevant item has been omitted from the clerk’s record, the trial court, the appellate court, or any party, may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted item.’). . . .” 

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