Badger Tavern LP v. City of Dallas
Dallas Court of Appeals, No. 05-23-00299-CV (April 20, 2023)
Chief Justice Burns (opinion available here) and Justices Molberg and Goldstein
Showing posts with label Burns. Show all posts
Showing posts with label Burns. Show all posts
Rules Are Rules
No Interlocutory Appeal of Order Deferring Decision on Motion to Compel Arbitration
Builders FirstSource, Inc. v. White
Builders moved to stay White’s lawsuit against it and to compel arbitration under the Federal Arbitration Act. White responded with a motion for a jury trial on the threshold issue of arbitrability. When the trial court denied Builders’ motion and granted White’s, Builders filed an interlocutory appeal under FAA §§ 16(a)(1)(A) & (B). But the Dallas Court of Appeals dismissed for want of jurisdiction. The Court acknowledged that an order denying a motion to stay and for arbitration ordinarily is appealable under the FAA and Civil Practice & Remedies Code § 51.016. But the trial court’s order here “simultaneously granted White’s motion for a jury trial on arbitrability.” Consequently, the Court explained, “the order can only reasonably be construed as deferring a final ruling on whether to grant arbitration.” Citing decisions from several other Texas Courts of Appeals, the Dallas Court then held that an order deferring decision on the motion to compel, as opposed to “a definitive ruling on Builders’ motion to stay litigation and compel arbitration” is interlocutory and not appealable.
Dallas Court of Appeals, No. 05-22-00724-CV (March 29, 2023)
Chief Justice Burns (Opinion, linked here) and Justices Molberg and Goldstein
Court Lacked Jurisdiction to Enter Declaratory Judgment Because It Was Uncontested
In re Banigan
After her husband filed for divorce in 2021, Cynthia Banigan moved to vacate a 2015 declaratory judgment establishing that the parties’ agreed partition of community property was valid and enforceable. The husband had filed the declaratory judgment action on the same day the partition agreement was signed. In her response, the wife confirmed the facts set forth in the petition and expressed her consent to entry of an order declaring the partition agreement to be valid. At the hearing, the husband testified as to the validity of the agreement, and the wife testified that she agreed with everything the husband had said.
Dallas Court of Appeals, No. 05-22-01084-CV (January 12, 2023)
Chief Justice Burns and Justices Partida-Kipness and Smith (Opinion, linked here)
The wife’s tune changed, of course, after the husband filed for divorce six years later. She argued that she did not voluntarily sign the partition agreement and that it was unconscionable. The trial court referred the matter to arbitration based on an arbitration provision in the partition agreement.
The wife then filed a mandamus proceeding arguing the declaratory judgment was void for lack of subject matter jurisdiction. The Dallas Court of Appeals agreed, holding there was no justiciable controversy between the parties when the trial court entered the declaratory judgment. The Uniform Declaratory Judgments Act allows a person interested under a written contract to have determined any question of construction or validity arising under the contract and to obtain a declaration of “rights, status, or other legal relations.” But a declaratory judgment is only appropriate if (1) a justiciable controversy exists as to the rights and status of the parties and (2) the controversy will be resolved by the declaration sought. Lack of a justiciable controversy results in a lack of subject matter jurisdiction. Because the wife confirmed the facts set forth in the petition, consented to the entry of the declaratory judgment, and “agreed with Husband’s position entirely” at the hearing, there was no live controversy between the parties. The trial court therefore lacked jurisdiction to enter the requested order, and so the Court of Appeals vacated the declaratory judgment as void.
Beware the TRAP: The Deadline to Appeal after Filing a Post-Judgment Motion
Nur Ali v. Spectra Bank
In substantially identical opinions in two related cases, the Dallas Court of Appeals made appellants painfully aware of an anomaly in the Texas rules. Under TRAP 26.1, a notice of appeal ordinarily must be filed “30 days after the [trial court] judgment is signed.” But if an appellant timely files a qualifying motion, such as a motion for new trial, TRAP 26.1(a) extends the deadline for the notice of appeal to “90 days after the judgment is signed”—but not to 30 days after the motion is overruled or denied, as one might expect and as is prescribed by the corresponding federal rule governing notices of appeal, FRAP 4(a)(4). This anomaly can prove especially treacherous where, as in these two cases, the post-judgment motion in the trial court is overruled by operation of law.
Dallas Court of Appeals, No. 05-21-01113-CV (April 6, 2022)
Chief Justice Burns, Justice Molberg (Opinion, linked here), and Justice Goldstein
A to Z Wholesale Wine & Spirits, LLC, v. Spectra Bank
Dallas Court of Appeals, No. 05-21-01149-CV (April 6, 2022)
Chief Justice Burns, Justice Molberg, and Justice Goldstein (Opinion, linked here)
In both Ali and A to Z the appellant timely filed a motion for new trial. In each case, the motion was overruled by operation of law 75 days after the judgment was signed, pursuant to TRCP 329b(c). Instead of filing a notice of appeal within the next 15 days—that is, within 90 days after the judgment was signed—the appellants waited until 30 days after the motions were overruled, making the notices 15 days late under TRAP 26.1(a). That still gave each appellant a last-gasp, post-deadline opportunity to seek an extension under TRAP 26.3, provided they could show their delay in filing “was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance.” Trying to meet that standard, each appellant argued the delay was justified to allow for “disposition of the entire case below,” i.e., for the trial court’s plenary jurisdiction to expire under TRCP 329b(e). The Court of Appeals didn’t buy it, saying it had “repeatedly held that delay caused by waiting for the trial court to rule on a post-judgment motion or for the trial court’s plenary power to expire is unreasonable as it reflects an awareness of the deadline for filing a notice of appeal but a conscious decision to ignore it.” In other words, a “deliberate [and] intentional” decision, exactly the opposite of “inadvertance, mistake, or mischance.” In each case, therefore, the Court denied the appellant’s motion to extend time to file a notice of appeal and dismissed for want of jurisdiction.
First Things First: Due Order of Hearings for Special Appearances
Jayco Hawaii, Inc. v. Viva Railings, LLC
Most lawyers know and carefully observe the “due-order-of-pleadings” requirement for a special appearance. That is, under Rule 121a(1), a special appearance must be filed “prior to a motion to transfer venue or any other plea, pleading or motion.” Otherwise, the challenge to personal jurisdiction is waived. But Rule 120a(2) embodies a “due-order-of-hearings” requirement, as well, directing that a special appearance “shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard.” Failure to follow that “due-order” requirement can be fatal to any determination taken out of turn, before the special appearance is resolved.
Dallas Court of Appeals, No. 05-20-00528-CV (August 25, 2021)
Chief Justice Burns and Justices Molberg and Goldstein (Opinion, linked here)
Jayco initiated an arbitration in Dallas County pursuant to an arbitration agreement that specified venue in that locale. Viva prevailed in the arbitration and filed suit in a Dallas County District Court to confirm the award. Jayco responded with a special appearance, arguing it was not subject to personal jurisdiction in Texas, and set a hearing on that special appearance. But Viva obtained an earlier setting on its motion to confirm the arbitration award, at which the court granted the motion to confirm and entered judgment for Viva. The Dallas Court of Appeals reversed and remanded, however, because “[t]he rules of civil procedure give a trial court no discretion to hear a plea or pleading, including a motion to confirm an arbitration award, before hearing and determining a special appearance.” Viva argued that Jayco had waived any objection to personal jurisdiction by, among other things, contractually agreeing to a Dallas County venue for the arbitration. But, the appeals court said, “Whether a party has waived its challenge to personal jurisdiction is an issue to be decided by the trial court in connection with that party’s special appearance.” Because the trial court had not conducted a hearing on the special appearance or ruled on it, the Court of Appeals had “no authority to determine the merits of Viva’s waiver arguments” in the first instance. The Court declined Viva’s invitation to construe the order confirming the arbitration award as implicitly overruling Jayco’s special appearance, because Jayco was given no notice that its special appearance would be addressed at the confirmation hearing, “thus depriving Jayco [of] the opportunity to put forth evidence in support of its special appearance.”
In other words, first things first: No hearing on the special appearance, no discretion to jump ahead and rule on the merits.
HIGHLAND PARK IMMUNE FROM SUIT FOR DEATH OF OFFICER PERFORMING EXTRA-DUTY SECURITY SERVICE AT PRIVATE RESIDENCE
Town of Highland Park v. McCullers
Dallas Court of Appeals, No. 05-19-01431-CV (June 29, 2021)
Chief Justice Burns (Dissent linked here), and Justices Pedersen, III (Opinion linked here) and Goldstein (Concurrence linked here)
The Town of Highland Park cannot be sued by the survivors of an off-duty police officer killed in a flash flood while providing security at a private residence through an arrangement coordinated by the Town, according to a divided Dallas Court of Appeals panel.
SMU police officer Calvin Marcus McCullers accepted an assignment offered by the Highland Park Department of Public Safety to provide after-hours security, at a property owner’s expense, for a private residence then under construction. A little more than two hours after he arrived at the property in his personal car, a torrential downpour flooded the area where he was parked and swept him and his car over an embankment into Turtle Creek. His body was discovered several weeks later on the banks of the Trinity River more than three miles downstream.
Officer McCullers’s survivors sued Highland Park and others for negligence and other torts. Asserting governmental immunity from such claims, Highland Park filed a plea to the jurisdiction, which the trial court denied after the parties conducted limited discovery. On interlocutory appeal, the core issue was whether coordinating a program to provide security services to private residences by off-duty police officers is an exercise of “police protection” and thus a governmental function for which the Town is generally immune from suit, or a “proprietary” function to which immunity does not apply.
The distinction between governmental and proprietary functions, which applies only to municipalities, is codified in the Texas Tort Claims Act, chapter 101 of the Civil Practice and Remedies Code. The TTCA defines proprietary functions as those “that a municipality may, in its discretion, perform in the interests of the inhabitants of the municipality”—but not including the list of 36 functions expressly identified as governmental functions. The first item on this list is “police and fire protection and control.” Justices Pedersen and Goldstein, in separate opinions, held “the Town’s coordination of Officer McCullers to provide law enforcement services” at the residence was an exercise of “the governmental function of police protection.” Justice Goldstein’s concurrence, elaborating on the statutory analysis, cited precedent that plaintiffs “may not split various aspects of a city’s operation into discrete functions and recharacterize certain of those functions as proprietary.” She concluded her opinion by noting “the ongoing struggle associated with judicial analysis and application of the governmental-proprietary dichotomy” and other aspects of governmental immunity. She urged the Legislature to provide “more certainty” on these issues for Texas citizens and governmental bodies.
Chief Justice Burns, dissenting, said his “colleagues rely on labels instead of function.” He denied that coordinating “private security services for private property owners,” so that an off-duty officer was “essentially functioning as a night-watchman for one citizen,” fits within the statutory meaning of “police protection.” Instead, applying the factors articulated by the Texas Supreme Court for breach-of-contract claims in Wasson Interests, Inc. v. City of Jacksonville (1998), he concluded that “in providing private security services” Highland Park “was acting in a proprietary role.”
One final note: finding the program is a governmental function does not necessarily end the immunity analysis. Under the TTCA, governmental immunity is waived in circumstances involving “personal injury or death caused by a condition or use of tangible personal or real property”—if the plaintiff complies with statutory notice requirements or the governmental entity has “actual notice” of the injuries and its potential liability. Justice Pedersen, extensively describing the record and controlling precedent, concluded plaintiffs failed to provide timely notice and rejected plaintiffs’ argument that Highland Park had actual subjective knowledge of its alleged fault in causing or contributing to the officer’s death. Justice Goldstein concurred in a footnote, while identifying the “actual subjective awareness” test as ripe for review by the Legislature. Chief Justice Burns did not mention this issue.
SCOTX COVID-19 ORDER DOES NOT GRANT COURTS POWERS THEY HAVE LOST
Dallas Court of Appeals, No. 05-20-00979-CV (March 15, 2021)
Chief Justice Burns (Opinion) and Justices Molberg and Goldstein
Pursuant to a settlement agreement, the trial court dismissed the underlying case. Five months later, the court reinstated the case based on a claimed breach of the settlement, and entered the injunction orders forming the basis of the appeal.
After asking for jurisdictional briefing, the appeals court determined that the COVID-19 orders presuppose a “pre-existing power or authority over the case or the proceedings,” something the trial court lacked after the expiration of its plenary power. There was, simply, nothing for the court to “modify or suspend.” Therefore, the orders reinstating the case and granting the injunction were void. The Court vacated them and dismissed the appeal for want of jurisdiction.
DOMINANT JURISDICTION: TRANSFER AFFECTS WHICH CASE IS “FIRST FILED”
In re Equinor Texas Onshore Properties f/k/a Statoil Texas Onshore Properties LLC
Dallas Court of Appeals, No. 05-20-00578-CV (October 7, 2020)
Chief Justice Burns (Opinion, linked here), and Justices Partida-Kipness and Reichek
A bank, as trustee, held certain oil and gas interests in LaSalle County, Texas—an enclave of about 7,000 souls roughly halfway between San Antonio and Laredo. Equinor and Repsol together acquired lease rights to some of those interests. When a dispute arose about royalty payments, the bank filed two separate lawsuits in LaSalle County, one against Equinor and one against Repsol—even though it would later contend they were jointly and severally liable for the alleged shortfall. The case against Repsol was assigned a lower docket number than the Equinor lawsuit, even though the file-mark on the petition indicated it was filed three days later. Equinor accepted venue in LaSalle County. But Repsol challenged venue, and the case against it was transferred by agreement to Dallas County. After the transfer, the bank added Equinor to the Dallas case that had originally been filed only against Repsol. Equinor objected, moved to transfer venue, and filed a plea in abatement, asserting dominant jurisdiction lay with the LaSalle County district court in the case in which the bank had sued Equinor originally.
With respect to interrelated lawsuits, the “court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts.” In re JB Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding). The parties did not dispute that the two suits here were interrelated. But there was considerable disagreement about which was “first filed,” given the confusion arising from the discrepancy between the file stamps and the sequence of case numbers assigned to the original Equinor and Repsol lawsuits in LaSalle County. The Dallas Court of Appeals, however, swept that confusion aside, holding that the “LaSalle County court acquired jurisdiction over the Equinor Lawsuit long before the Dallas County court acquired jurisdiction over the Repsol Lawsuit” to which Equinor was later added, and that the date and timing of the transferred Repsol lawsuit did “not relate back” to its original filing in LaSalle County. Dominant jurisdiction, therefore, lay with the LaSalle County district court in the original Equinor lawsuit. So Equinor was entitled to have the Dallas County case against it abated.
NO CONTINUANCE TO AVOID BENCH TRIAL BY VIDEO
Dallas Court of Appeals, No. 05-20-00574-CV (August 20, 2020)
Chief Justice Burns and Justices Pedersen, III and Reichek (Opinion available here)
The Court held the trial court did not abuse its discretion by overruling the husband’s objection to trial via videoconference. In its emergency orders, the Supreme Court of Texas expressly granted trial courts the discretion, “subject only to constitutional limitations” and “without a participant’s consent,” to require that all participants in hearings, depositions, “or other proceeding[s] of any kind” participate remotely, “such as by teleconferencing, videoconferencing, or other means.” Although the emergency orders do not specify bench trials, the Court held they would fall under the category of “other proceeding[s] of any kind.” The husband did not claim a bench trial by videoconference would violate any of his constitutional rights, so the trial court did not abuse its discretion in requiring him to participate in this manner.
NURSING HOME POLICIES AND PROCEDURES NOT SUBJECT TO CHAPTER 74 DISCOVERY STAY
In re: Kenneth Smith
Kenneth Smith sued the nursing home where his wife had stayed during the months before her death, alleging the facility failed to provide adequate care and supervision to prevent his wife from suffering several falls during her stay. Under Chapter 74, discovery in a health care liability claim is stayed until an expert report has been filed, except for “information, including medical or hospital records or other documents or tangible things, related to the patient’s health care.” Relying on that discovery stay, the trial court denied a motion to compel that sought to require the nursing home to produce several policies and procedures that are statutorily required to be kept and made available to patients and their families.
Dallas Court of Appeals, No. 05-20-00497-CV (August 12, 2020)
Justices Burns, Pedersen (Opinion available here), and Carlyle
The Dallas Court of Appeals conditionally granted mandamus, concluding the trial court abused its discretion in denying discovery of the requested policies. Texas courts have reached different conclusions about whether policies and procedures fall within the exception to the Chapter 74 discovery stay. But the Court noted in this case that the requested policies (1) were required by statute to be publicly available; and (2) were “related to the patient’s health care.” “As there is no dispute that relator’s claims—alleging inadequate supervision and services to meet a nursing home resident’s health care needs and protect her from harm—are health care claims, it logically follows that “training and staffing policies” are “integral components of [the nursing home’s] rendition of health care services.” In particular, the requested policies and procedures were “relevant to assessing the standard of care that should have been given to Mrs. Smith,” and Mr. Smith and his expert should have had access to those documents before having to produce their expert report.
The Court also found that Mr. Smith had no adequate remedy by appeal because, without the requested documents, he would be severely hampered in his ability to file an adequate expert report, which could result in his claims being dismissed. Although he would be able to appeal from the grant of a motion to dismiss, the Court would be limited in its ability to cure the error because it would only be able to remand for the trial court to consider whether to grant a thirty-day extension to file an adequate report. The Court therefore vacated the trial court’s order and directed it to issue an order granting discovery of the requested documents.
NO PERMISSIVE APPEAL WHERE CONTROLLING ISSUES WERE NOT DECIDED BY THE TRIAL COURT
Dallas Court of Appeals, No. 05-20-00596-CV (August 12, 2020)
Chief Justice Burns (Opinion, linked here), and Justices Whitehill and Nowell
Safeco sought permission to pursue an interlocutory appeal of that ruling under Civil Practice and Remedies Code § 51.014(d) & (f). It argued the trial court’s decision “turned on” three “controlling questions of law”—i.e., (1) whether an insured must obtain a judicial determination that he was legally entitled to recover from an uninsured or underinsured motorist before he can proceed against his own insurer on UM/UIM issues, and (2) whether a court can defer dismissal or abatement based on that ground and (3) allow discovery to proceed, without first resolving that threshold issue. The trial court granted permission for the appeal, pursuant to § 51.014(d). But the Dallas Court of Appeals rejected Safeco’s petition and denied the appeal under § 51.014(f).
The appeals court held that “to invoke this court’s permissive appeal jurisdiction, the trial court must make a substantive ruling on the controlling legal issues presented in the petition for permissive appeal.” It found the trial court had not done that here. The record reveals that although the trial court’s order refers to “the controlling questions of law decided by this order,” it actually contains no such decisions on those questions—at least no express decisions. The proposed form of order tendered by Safeco included such rulings, but the trial court manually lined through those passages and inserted the more generic statement that its order was predicated on “the argument and authority in the motion, the response, and papers on file.” This, the appeals court apparently concluded, did not constitute the “substantive ruling on the controlling legal issues” necessary to support a permissive appeal.
ONCE MORE, WITH FEELING: BUSINESS ENTITIES MUST BE REPRESENTED IN COURT BY A LICENSED ATTORNEY
Dallas Court of Appeals, No. 05-19-01246-CV (March 18, 2020)
Chief Justice Burns (Opinion, linked here), and Justices Molberg and Nowell
Here, R2Go’s counsel was allowed to withdraw from the appeal. When the LLC did not obtain replacement counsel, despite having been warned and ordered to do so, the Dallas Court dismissed its appeal, because it could not proceed with its appeal without being represented by a licensed attorney.
NO BACK-UP = NO BILL OF REVIEW
Dallas Court of Appeals, No. 05-18-01208-CV (November 20, 2019)
Chief Justice Burns and Justices Molberg and Reichek (Opinion, linked here)
Here, a private “certified process server” filed a return of service stating he personally served Mitchell at a specified time and place. Mitchell didn’t answer and was defaulted. At trial of the bill of review, Mitchell testified he had not been served. But no other competent evidence corroborated that testimony. Mitchell offered affidavits from two other witnesses that might have cast doubt on service as reported, but those affidavits were properly excluded as hearsay. Consequently, the trial court denied the bill of review. The Dallas Court of Appeals affirmed, because “the testimony of a bill of review plaintiff alone, without corroborating evidence, is insufficient to overcome the presumption [from the return of service] that the [bill-of-review] plaintiff was served.”
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