JURY’S DAMAGES VERDICT OKAY IF IT’S SOMEWHERE IN BETWEEN, EVEN IF IT’S UNCLEAR HOW THEY GOT THERE

Baker v. Habeeb
Dallas Court of Appeals, No. 05-16-01209-CV (April 18, 2018)
Justices Lang, Brown (Opinion, linked here), and Whitehill
Habeeb develops and produces TV programs. He rented space from Baker’s partnership, 3900 Commerce. During the last few weeks of Habeeb’s occupancy, Baker had maintenance workers from 3900 Commerce begin clearing the space out, to prepare for a new tenant. Oops. During the clearing-out process, the workers mistakenly disposed of the master tapes of more than 50 episodes of two programs that Habeeb had stored in the rented space. At trial, Habeeb’s expert testified that the total discounted value of the lost episodes was $4,847,000. Baker’s expert disagreed, placing the value at $160,000. The jury returned a verdict for Habeeb and assessed damages in between, at $2,582,854.60. Baker appealed, but the Dallas Court of Appeals affirmed.

Most of the Court’s opinion was devoted to a careful application of the Texas Supreme Court’s Robinson standards to Habeeb’s expert witness and his valuation testimony in the unique setting of this case. But Baker also argued that the jury’s $2,582,854.60 damages award was not supported by legally sufficient evidence, and that the value of the lost tapes was not established with the requisite “reasonable certainty.” Although the jury’s damages number was something of a head-scratcher, the Court of Appeals held the “jury’s finding may not be set aside because its reasoning in arriving at the amount of damages is unclear.” The Court explained that a “jury is free to accept or reject all or any portion of an expert’s testimony” and “has discretion to award damages within the range of evidence presented at trial, so long as there is a rational basis for calculation.” So, “[w]hile it is not clear how the jury arrived at this figure, it had the discretion to award damages within the range presented at trial”—i.e., somewhere between the $4.8 million to which Habeeb’s expert testified, and the $160,000 urged by Baker’s expert.

TEXAS SUPREME COURT RETAINS MENCHACA RULES ON INSURANCE DAMAGES, BUT SPLINTERS ON REMEDY FOR CONFLICTING JURY ANSWERS

USAA Texas Lloyds Insurance Co. v. Menchaca
Supreme Court of Texas (April 13, 2018)
Justice Boyd (opinion here); Justice Green (dissent here); Chief Justice Hecht (concurrence here.)
As reported in this blog last April (available here), a unanimous Texas Supreme Court articulated “five distinct but interrelated rules that govern the relationship between contractual and extra-contractual claims in the insurance context” and remanded to the trial court for a new trial. USAA Texas Lloyds Insurance Co. v. Menchaca, No. 14-0721, 2017 WL 1311752 (Tex. Apr. 7, 2017). After granting a motion for rehearing, the Court reached the same result, but while maintaining agreement “on the legal principles and rules announced” in the previous opinion, the justices splintered on “the procedural effect of those principles in this case.”

THE COURT CAN’T HELP YOU

St. John Missionary Baptist Church v. Flakes
Dallas Court of Appeals, No. 05-16-00671-CV (March 29, 2018)
En Banc (Evans majority opinion available here; Schenck dissent available here; Boatright dissent available here)
In an en banc opinion, the Dallas Court of Appeals held that the Court cannot identify a dispositive issue not raised by the appellants and request additional briefing on that issue. The defendants in the lower court filed a motion to dismiss plaintiffs’ petition based on two separate grounds. The trial court held a hearing during which both grounds were argued and then granted the motion to dismiss. Plaintiffs/appellants appealed, but addressed only one of the two bases for dismissal in their brief. The majority concluded that, because appellants failed to challenge all possible grounds for the trial court’s decision, the Court must accept the validity of the unchallenged ground and affirm the adverse ruling. The Court held it did not have the authority to sua sponte identify a potentially reversible issue and then offer appellants the opportunity for additional briefing. To do so would depart from the Court’s duty to be neutral and impartial.

A five-person minority disagreed in two lengthy dissents. The minority would treat the failure to address both bases for dismissal as a “briefing deficiency.” TRAP 38.9 provides that an appellant need only comply with the rules substantially, and if an appellant does not substantially comply with the rules, the Court has the discretion to do what is necessary to effect a satisfactory submission. The minority would hold that a failure to address an argument that is deemed to be included in the trial court’s disposition of the case should not be fatal to the appeal. Instead, that deficiency simply amounts to “a failure to properly present the case on the briefs” and affords the Court a number of efficient options under the rules, including a request for additional briefing.

DISCOVERY OVER 67-YEAR PERIOD IS APPROPRIATE

In re National Collegiate Athletic Association
Dallas Court of Appeals, No. 05-17-00951-CV (March 1, 2018)
Justices Lang (opinion available here), Stoddart, and Boatright
The NCAA sought mandamus after the trial court ordered it to produce all documents, from 1950 to present, related to head trauma in any sport. The plaintiff in the case had sued the NCAA alleging her husband Greg’s death from Chronic Traumatic Encephalopathy (CTE) was a result of concussions he sustained while playing football at the University of Texas from 1968 to 1972. She sought discovery regarding what the NCAA knew about head trauma and when they knew it.

The NCAA agreed to produce documents from 1963 to 1974, which they argued was a sufficient time before and after the years Greg played football, but argued that a 67-year time period was overly broad. The Dallas Court of Appeals acknowledged that discovery orders requiring document production from an unreasonably long time period are often found to be impermissibly overbroad. But it agreed with the plaintiff that what the NCAA knew years before Greg started playing football was relevant to its state of knowledge in 1968 and that what it knew after Greg graduated was relevant to plaintiff’s claims that the NCAA fraudulently concealed information from them regarding the dangers of football. It further concluded the NCAA owed continuing duties to Greg to inform him of new information regarding the development and treatment of concussion-related injuries.

The Dallas Court also agreed with plaintiff that she was entitled to documents regarding all NCAA sports, not just football. The NCAA argued it should not be required to produce documents related to injuries sustained in sports Greg never played. But the Court held that information known to the NCAA regarding head injuries and the impact of those injuries on NCAA athletes is relevant, regardless of whether the NCAA obtained that information from studying brain injuries in soccer players, hockey players, football players, or other athletes because “the injury, not the sport, is the proper inquiry.”

The NCAA did get some relief, however. The Court agreed it was unreasonable to require production of all documents related to “head trauma,” because injuries such as dental injuries, eye injuries, and facial abrasions are irrelevant to the claims at issue regarding CTE. So the Court limited the discovery to documents regarding “concussive and sub-concussive blows to the head that may result in brain diseases, such as dementia or CTE.” But it cautioned the NCAA not to limit its search only to those specific key words but, rather, to search for and produce all documents that “address, discuss, and/or are related to [those] concepts.”

NO VERIFICATION = NO JURISDICTION

IOLAP, Inc. v. On Deck Management
Dallas Court of Appeals, No. 05-17-00856-CV (February 22, 2018)
Justices Wright (opinion available here), Evans, and Brown
After two years of litigation and a trial in 2017, the Dallas Court of Appeals held the trial court did not have jurisdiction to reinstate a case back in 2015, and the trial court’s judgment was, therefore, void. In February 2015, the trial court dismissed the case for want of prosecution. Its plenary power was to expire 30 days later. IOLAP filed a Motion to Reinstate the Case within that 30-day period, which would have extended the trial court’s plenary power—had the motion been verified. But it wasn’t. The trial court granted the Motion to Reinstate in April 2015, tried the case, and entered a judgement in April 2017. IOLAP appealed.

The Dallas Court of Appeals held that, although a verified motion to reinstate a case filed within 30 days of a dismissal for want of prosecution extends the trial court’s plenary power in the same manner as a motion for new trial, an unverified motion to reinstate is a nullity and does not extend the trial court’s plenary jurisdiction. So everything that happened in the case after the trial court lost plenary power in March 2015 was a nullity. The appellate court was not moved by the fact that all parties participated in the case, without objection, after it was purportedly reinstated. Subject matter jurisdiction exists by operation of law and cannot be conferred by consent or waiver.

JUDGMENT AGAINST MEMBERS OF DEFUNCT LLC REVERSED ON RESTRICTED APPEAL

Haynes v. Gay
Dallas Court of Appeals, No. 05-17-00136-CV (February 8, 2018)
Justices Lang-Miers (Opinion linked here), Fillmore, and Stoddart
In something of a rarity, the Dallas Court of Appeals reversed and rendered judgment on a restricted appeal. Gay sued the Hayneses for breach of contract. The justice court dismissed the Hayneses, but entered judgment against Skygroup, LLC—a by-then-defunct LLC that was the party to the contract at issue, and of which the Hayneses were members. Gay appealed the Hayneses’ dismissal to the county court at law. The Hayneses did not appear for the trial de novo, and the county court rendered judgment against them. The Hayneses filed a restricted appeal under TEX. R. APP. P. 30. After observing that all the procedural boxes had been ticked for a proper restricted appeal, the Dallas Court of Appeals reversed.

In a restricted appeal, reversible error must be “apparent on the face of the record,” which includes “all papers on file in the appeal, including the clerk’s record and any reporter’s record.” Nevertheless, the “scope of review” is the same as in an ordinary appeal. It extends to “the entire case” and “includes review of legal and factual insufficiency claims.”

Here, the evidence at trial—on the face of the record—unequivocally established that Skygroup, LLC was the contracting party and that the breaches of contract occurred before Skygroup forfeited its charter. Under TEX. BUS. ORGS. CODE § 101.114, the Hayneses were not liable for the LLC’s debts and obligations incurred before its demise—including the breach of its contract with Gay. As members of the LLC, they could be liable only for its debts created or incurred after its charter was forfeited, under TEX. TAX CODE § 171.255(a). Even though Skygroup’s charter lapsed before trial and judgment, the appeals court concluded that the date of contract or breach, rather than the date of judgment, established the date of the debt at issue for purposes of §§ 101.114 and 171.255(a). So, the Court reversed and rendered judgment for the Hayneses.

READ YOUR BANK STATEMENTS. FILE A WRITTEN CLAIM. SERIOUSLY.

Horton v. JP Morgan Chase Bank, N.A.
Dallas Court of Appeals, No. 05-16-00472-CV (January 22, 2018)
Justices Lang-Miers, Brown, and Boatright (Opinion linked here)
The Dallas Court of Appeals affirmed summary judgment in favor of JP Morgan Chase because its customer failed to timely file a written claim complaining that $345,000 had been improperly withdrawn from her bank account.

Horton opened a bank account at JP Morgan Chase. Two months later, the bank received a new signature card purporting to convert the account into a joint account with her employer. After Horton was terminated several months later, her employer withdrew all the funds from the account.

At the time of the withdrawal, Horton orally complained to JP Morgan Chase, but never submitted a written complaint. Because the bank had sent written bank statements to Horton showing that the account had been converted to a joint account naming her employer, and because Horton had not filed a written notice of the error within the 30 days required under the bank’s account terms, Horton’s lawsuit—filed over a year later—was barred.

Article 4 of the UCC establishes the rights and duties of banks and their customers regarding deposits and collections. If a “bank sends or makes available to the customer an account statement that reasonably identifies the items paid, the customer must exercise reasonable promptness in examining the statement and must promptly notify the bank of relevant facts regarding any unauthorized payments due to the alteration of an item or an authorized signature.” Specific notice requirements may be set by the bank’s written terms, which here provided Horton 30 days to raise any errors an account statement, including errors in ownership or amounts paid, in writing.

Horton failed to file a written claim with the bank within 30 days of either seeing an additional account owner on her account statement or seeing the $345,000 withdrawn by her employer. Her lawsuit therefore was precluded by the UCC and the bank’s written terms.

EXPERT TESTIMONY ON “POSSIBILITIES” IS NOT HELPFUL TO THE JURY

Zamora v. Champion Cooler Corp.
Dallas Court of Appeals, No. 05-16-00577-CV (January 23, 2018)
Justices Bridges, Myers (link to opinion here), and Schenck
Plaintiff Zamora’s doctor testified his reactive airway dysfunction syndrome (“RADS”) might have been caused by asthma or by chemical exposure in the workplace. The doctor acknowledged his impression that Zamora’s condition was caused by workplace chemical exposure was “speculation … a possibility.” The trial court excluded the doctor’s causation testimony and granted the employer’s summary judgment based on no evidence of causation. Zamora appealed. The Dallas Court of Appeals affirmed.

A trial court’s decision to exclude expert-witness testimony is reviewed for abuse of discretion. When an expert is challenged, the proponent of the expert opinion has the burden to prove the reliability of each opinion. While the expert in this case testified that RADS is “an irritant-induced type of asthma,” he conceded he could not determine whether anything Zamora inhaled at his employer’s facility caused his lung condition. Zamora argued he should be allowed to present the doctor’s testimony that Zamora’s condition was caused either by asthma or workplace exposure and then put on other evidence that he had no prior history of asthma. But the Court of Appeals held the trial court acted within its discretion in concluding the expert’s “inability to tie Zamora’s injuries to his workplace-exposure to fumes and not to asthma made his testimony unhelpful to the jury on the subject of causation.” So the trial court did not abuse its discretion in excluding the doctor’s causation testimony and, without expert testimony on causation, summary judgment was appropriate.

NO RECORD OF MSJ HEARING? NO PROBLEM.

Lynch v. O’Hare
Dallas Court of Appeals, No. 05-17-00175-CV (January 18, 2018)
Justices Francis, Evans, and Boatright (Opinion linked here)
Lynch lost his personal injury claim on summary judgment. No reporter’s record was made of the summary judgment hearing. Lynch argued the absence of that record prevented him from presenting meaningful issues and arguments on appeal and entitled him to a new trial. He relied on TEX. R. APP. P. 13.1 (regarding reporters’ duties) and 34.6(f) (addressing the effect of a lost or destroyed reporter’s record). But the Dallas Court of Appeals explained that Rule 13.1 did not require a reporter’s record to be made of a summary judgment hearing. To the contrary, the Court said, “a reporter’s record is neither necessary nor appropriate to the purposes of a summary judgment hearing.” And because all parties agreed no reporter’s record had ever been prepared, none was (or could be) lost or destroyed. So, Rule 34.6(f) did not apply. Summary judgment affirmed.

PROPER SERVICE OF A MOTION TO VACATE AN ARBITRATION AWARD

Craig v. Southwest Securities, Inc.
Dallas Court of Appeals, No. 05-16-01378-CV (December 18, 2017)
Justices Lang-Miers, Brown (Opinion linked here), and Boatright
When an arbitration is conducted pursuant to the Federal Arbitration Act, that Act applies to the substantive rules of decision, but Texas law—specifically, the Texas Arbitration Act—governs procedure. Failure to observe and comply with this division of authority can be fatal to a challenge to an arbitration award.

Craig’s claims against Southwest Securities and one of its brokers were denied in an arbitration governed by the FAA. That Act requires a party who challenges an arbitration award governed by the FAA to serve “notice” of the motion to vacate or other proceeding within three months after the award is filed or delivered. Craig filed a motion to vacate the adverse arbitration decision in a state district court well within the three-month window. But he purported to serve notice of the motion only by emailing it to his opponents’ counsel, as one might do when serving a motion under Texas Rule of Civil Procedure 21a. Several weeks later, outside the three-month window, he filed a supplemental motion. This time he requested citations and served his opponents with process. The district court dismissed Craig’s motion for failure to provide the required notice within the three-month window established by the FAA, and the Dallas Court of Appeals affirmed.

The appeals court explained that, while the FAA established the three-month substantive deadline or limitations period for challenging an arbitration award, the method for serving notice of that challenge was procedural and therefore governed by the TAA. The Texas Act— specifically, § 171.094 of the Civil Practice & Remedies Code—“requires service of process to initiate a court proceeding to vacate an arbitration award,” process and service “in the form and includ[ing] the substance required for process and service on a defendant in a civil action in a district court.” Because Craig did not request citation or service of process until he filed his supplemental motion, well beyond the three-month deadline, his motion to vacate the arbitration award was dismissed. His earlier purported email service of the original motion was not effective to commence the proceeding or provide the required notice under the Texas statute.

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