CIVIL PROCEDURE
SPRING 2008
In re Shredder Company, L.L.C., 225 S.W.3d 676 (Tex. App.—El Paso 2006, orig. proceeding)
Mandamus Available to Require Trial Court to Rule on Motion to Compel Arbitration: During about a six-month period, the trial court conducted three hearings on the defendant’s motion to compel arbitration and two additional hearings at which the defendant urged the court to rule, but the court failed to make a ruling. The court of appeals held that mandamus was available to compel a trial court to rule on a motion after it had failed to rule within a reasonable time. “Although we have jurisdiction to direct the trial court to exercise its discretion in some manner, under no circumstances may we tell the trial court what its decision should be.” The court of appeals directed the trial court to make a ruling on the motion to compel arbitration.
Gavrel v. Rodriguez, 225 S.W.3d 758 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)
Incomplete and Inaccurate Record on Appeal Entitles Appellant to New Trial: Following a jury trial, judgment was rendered against plaintiff-appellant in this medical malpractice suit. A substitute court reporter transcribed the third and final day of trial testimony. After the appellant filed a notice of appeal, his attorney determined that the substitute court reporter did not prepare a complete and accurate reporter’s record. After the appellant complained about the record on appeal, the court of appeals directed the parties to attempt to resolve the dispute about the record and, if no agreement was possible, refer the dispute to the trial court for resolution. The parties were unable to resolve the dispute, and the trial court made twelve corrections to the record. Notwithstanding these corrections, the court of appeals held that the record was incomplete and inaccurate. The substitute court reporter had admitted that her tape recorder malfunctioned and that she had difficulty transcribing some of the technical testimony. Portions of the testimony were missing, the court of appeals concluded. A complete record was necessary, the court held, because appellant was contending that the jury’s verdict was against the great weight and preponderance of the evidence, a challenge that required examination of the entire record. See also Landry’s Seaford House-Addison, Inc. v. Snadon, 233 S.W.3d 430 (Tex. App.—Dallas 2007, pet. pending) (holding that missing portion of testimony from reporter’s record was minimal and unrelated to issues raised on appeal).
First Commerce Bank v. Palmer, 226 S.W.3d 396 (Tex. 2007)
Remand for New Trial Versus Rendition for Plaintiff: After the plaintiff presented its case and rested, the trial court granted the defendants’ motion for directed verdict and rendered judgment that the plaintiff take nothing. The Supreme Court held that the trial court erred by granting the directed verdict. The plaintiff urged the Supreme Court to render a judgment with a monetary award in its favor, arguing that defendants waived their factual defenses by failing to adduce any evidence. The Supreme Court, however, rejected this argument. Because the trial court “improvidently granted the motion for directed verdict, the [defendants] did not have the need or opportunity to present evidence of any other defenses or credits due them. They should have that opportunity. Tex. R. App. P. 60.” Accordingly, the Supreme Court reversed the court of appeals’ judgment and remanded the case to the trial court for a new trial.
Hubicki v. Festina, 226 S.W.3d 405 (Tex. 2007)
In Default Judgment Case, Face of Record Fails to Demonstrate That Alternative Service Was Reasonably Effective to Give Defendant Timely Notice of Suit: The trial court granted a default judgment awarding significant damages to the plaintiff, and the defendant filed a restricted appeal. See In the Interest of B. M., below, for the requirements in a restricted appeal. Because the defendant filed the restricted appeal within six months and did not participate in the default hearing, the only question the Supreme Court resolved was whether error was apparent on the face of the record. After the plaintiff had made one attempt to serve the defendant by certified mail at an address in the U.S., the trial court authorized the plaintiff to serve the defendant by certified mail in Mexico. The Supreme Court held, however, that the plaintiff did not adequately establish that the defendant was at the address in Mexico when the plaintiff attempted service there. The plaintiff further did not establish return of service by providing a return receipt with the defendant’s signature, as the rules contemplated. “We have long demanded strict compliance with applicable requirements when a defendant attacks a default judgment.” Accordingly, the Supreme Court reversed the court of appeals’ judgment and remanded the case to the trial court.
Tellez v. City of Socorro, 226 S.W.3d 413 (Tex. 2007)
Alleged Defects in Appeal From Zoning Board Are Not Jurisdictional and Were Waived: Tellez timely appealed from a decision by the city’s zoning board of adjustment, and the trial court affirmed the board’s decision. The court of appeals, however, concluded that two defects in the appeal petition Tellez filed in the trial court deprived that court of subject matter jurisdiction; the court of appeals thus dismissed Tellez’s suit. The Supreme Court reversed the judgment of the court of appeals and remanded the case to that court. The Supreme Court reiterated that subject matter jurisdiction involved a court’s power to hear a case. Here, the court of appeals dismissed Tellez’s suit because he sued the City of Socorro rather than its zoning board, and because his petition did not explain how the board’s decision was illegal. But the city did not object to either defect. Although subject matter jurisdiction cannot be waived, the two procedural defects can be waived because they do not affect subject matter jurisdiction. Although the zoning board was the proper party and the statute at issue required specific allegations of illegality, neither of these defects was jurisdictional.
Reliance National Indemnity Company v. Advance’d Temporaries, Inc., 227 S.W.3d 46 (Tex. 2007)
Undisputed Facts Present Question of Law About Statutory Issue: This case presented a statutory mechanic’s lien issue that rested on a determination of the facts. The Supreme Court concluded, however, that the facts were undisputed. “Appellate courts review legal determinations de novo, whereas factual determinations receive more deferential review based on the sufficiency of the evidence. What might otherwise be a question of fact becomes one of law when the fact is not in dispute or is conclusively established.”
In re Allied Chemical Corporation, 227 S.W.3d 652 (Tex. 2007, orig. proceeding)
Mass Tort Claims; Selection of Five Claimants for Prompt Trial, Reduced to One in Response to Supreme Court’s Stay Order, Improper Without Identification of Causation Expert: About 1900 plaintiffs sued 30 defendants, alleging exposure to a “toxic soup” of chemical fumes and pesticide leaks. Five years after filing, the trial court set the first trial for five plaintiffs for about six months away. The plaintiffs had failed to identify any witness to establish causation between the defendants’ products and the plaintiffs’ diseases, as required in Merrell Doro Pharmaceuticals v. Havner., 953 S.W.2d 706 (Tex. 1997). Although the trial court’s order violated In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004), and despite the fact that this opinion was brought to the trial judge’s attention, the trial court did not alter its order and the court of appeals denied mandamus relief. When the Supreme Court granted a stay, however, the trial court granted plaintiffs’ motion to proceed to trial on just one of the plaintiff’s claims. For several reasons, the Supreme Court declined to find that the altered order mooted the request for mandamus relief. Most importantly, the trial court was still requiring the defendants to proceed to trial despite the absence of any discovery that met the threshold for causation evidence and in the absence of the identification of any expert who could establish causation. Under the circumstances in this case, mandamus relief was appropriate.
In re Allstate County Mutual Insurance Company, 227 S.W.3d 667 (Tex. 2007, orig. proceeding)
Excessive and Overly Broad Discovery Requests Warrant Mandamus Relief: Following a car accident, two plaintiffs sued the other driver, her carrier, and her carrier’s adjuster. The plaintiffs sent the insurer and its adjuster 89 requests for production, 59 interrogatories, and 65 requests for admissions, including requests for “transcripts of all testimony ever given by any Allstate agent on the topic of insurance; every court order finding Allstate wrongfully adjusted the value of a damaged vehicle; personnel files of every Allstate employee a Texas court has determined wrongfully assessed the value of a damaged vehicle; and legal instruments documenting Allstate’s status as a corporation and its net worth.” The Supreme Court concluded that “much of this discovery had no relation or relevance to the scope of the parties’ dispute,” and therefore granted mandamus relief. “Discovery is a tool to make the trial process more focused, not a weapon to make it more expensive.”
Nichols v. Sedalco Construction Services, 228 S.W.3d 341 (Tex. App.—Waco 2007, pet. denied)
Dismissal for Want of Prosecution, Affirmed: The court of appeals held that the trial court properly dismissed the plaintiff’s suit for lack of prosecution. The case was pending in the trial court for two years after the defendant’s answer, which was twice the time allowed for final disposition by the Rules of Judicial Administration. The record also showed “long periods of inactivity punctuated by brief bursts of activity prompted by” defendant. Accordingly, the trial court did not abuse its discretion by ordering dismissal.
In the interest of B. M., 228 S.W.3d 462 (Tex. App.—Dallas 2007, no pet.)
Grant of Relief in Restricted Appeal: The father of the child brought suit to modify the parent-child relationship in his favor. Following a hearing at which the mother failed to appear, the trial court granted final relief. The mother then filed a restricted appeal. The court of appeals reversed and remanded for further proceedings. “A restricted appeal must: (1) be brought within six months after the trial court signs the judgment; (2) by a party; (3) who did not participate in the trial; and (4) the error complained of must be apparent on the face of the record.” The court of appeals found that all four prerequisites were satisfied. As to the fourth requirement, the mother complained that the father’s motion to modify was legally insufficient to support the judgment against her because the father filed a motion seeking only temporary relief and the trial court rendered a final judgment. This error was apparent on the face of the record, which included the father’s motion and the trial court’s final order.
In re Autonation, Inc., 228 S.W.3d 663 (Tex. 2007, orig. proceeding)
Forum Selection Clause Enforceable by Mandamus; Comity Generally Requires Deference to Earlier Filed Suit in Another State: Autonation sued Hatfield in Florida to enforce a covenant not to compete, which was contained in an employment contract that also included an agreement to litigate any disputes under the contract in Florida under Florida law. Hatfield later sued Autonation in Texas under the contract. The trial court refused to dismiss or stay this action and enjoined Autonation from pursuing its first-filed Florida suit. Autonation then sought mandamus relief. The Supreme Court granted mandamus, on two grounds. First, the court reaffirmed that mandamus relief was available to enforce forum selection clauses. See In re AIU Insurance Company, 148 S.W.3d 109, 111-12 (Tex. 2004, orig. proceeding). Second, principles of comity usually required that a Texas court defer to a court in another state where suit was first filed. “When a matter is first filed in another state, the general rule is that Texas courts stay the later-filed proceeding pending adjudication of the first suit.” Here, there were no factors that supported an exception to the general rule.
Van Es v. Frazier, 230 S.W.3d 770 (Tex. App.—Waco 2007, pet. denied)
“Death penalty” Sanctions Upheld: The plaintiffs filed a motion to compel production of documents after the defendant failed to produce documents responsive to he plaintiffs’ second request for production. At a hearing on the motion to compel, the trial court overruled the defendant’s objections to production and ordered the defendant to produce the documents, but did not specify a deadline for compliance. Several months later, the plaintiffs filed their first motion for sanctions, complaining that the defendant still had not produced the documents. The defendant did not appear at the hearing on the motion for sanctions, at which the trial court set deadlines for production of the documents and deposition of the defendant and ordered the defendant to pay $1,500 in attorneys’ fees as a discovery sanction. About two months later, after the defendant still had failed to comply with the earlier order, the plaintiffs filed a second motion for sanctions. At the hearing on the second motion, the trial court rejected defendant’s arguments against sanctions, set new deadlines for the deposition and document production, and assessed an additional $1,500 discovery sanction. The court also warned that the defendant’s pleadings would be struck if the defendant failed to compel with the orders. The defendant only partially complied with the orders, and the plaintiffs filed a third motion for sanctions. The trial court then rendered an order striking the defendant’s pleadings and prohibiting him from offering evidence at trial or any hearing. Following rendition of judgment for the plaintiffs, the defendant appealed, complaining of the death penalty sanctions. The court of appeals affirmed. The trial court did not abuse its discretion by imposing the death penalty sanctions, the court of appeals held. Although the trial court had discretion in awarding discovery sanctions, any sanction imposed must be “just.” For a sanction to be just, “there must be (1) a direct relationship among the offensive conduct, the offender, and the sanction imposed, and (2) the sanction must not be excessive.” These standards were met here, the court concluded.
C. L. Westbrook, Jr. v. Penley, 231 S.W.3d 389 (Tex. 2007)
Principles Governing Pleas to the Jurisdiction: In this suit for negligence arising from church discipline, the trial court granted the defendants’ pleas to the jurisdiction, which were based on the First and Fourteenth amendments to the United States Constitution. In affirming the order of dismissal, the Supreme Court discussed the standards governing review of a plea to the jurisdiction based on lack of subject matter jurisdiction. “A plea questioning the trial court’s subject-matter jurisdiction raises a question of law that we review de novo. . . . We focus first on the plaintiff’s petition to determine whether the facts pled affirmatively demonstrate that subject-matter jurisdiction exists. . . . If the pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the plaintiff should be afforded the opportunity to replead. . . . A plea should not be granted if a fact issue is presented as to the court’s jurisdiction, but if the pleadings affirmatively demonstrate an incurable jurisdictional defect, then the plea to the jurisdiction must be granted.” See also Texas A & M University System v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) (“As is the case with special exceptions, a pleader must be given an opportunity to amend in response to a plea to the jurisdiction only if it is possible to cure the pleading defect.”); Texas Parks and Wildlife Department v. E. E. Lowrey Realty, Ltd., 235 S.W.3d 692 (Tex. 2007) (claims that are incurably defective because they are barred by sovereign immunity “should not be remanded because amending the pleadings would serve no legitimate purpose.”).
In re Andrews, 231 S.W.3d 495 (Tex. App.—Dallas 2007, orig. proceeding)
Plaintiff Can Be Declared a Vexatious Litigant, Even Though Initially Represented by Counsel at Outset of Suit: The plaintiff, who had previously filed two lawsuits pro se against the defendant and who had filed numerous other prior lawsuits pro se, was originally represented by an attorney when this suit was filed. Thereafter, however, the plaintiff’s attorney withdrew from the representation. The defendant moved to have the plaintiff declared a vexatious litigant in accordance with the provisions in Chapter 11 of the Texas Civil Practice and Remedies Code. The motion was heard after the plaintiff’s counsel withdrew, but the trial court concluded that it could not grant the motion in light of the fact that plaintiff originally had been represented by an attorney. The defendant then sought mandamus relief. The court of appeals held that the fact that the plaintiff originally had been represented by an attorney did not foreclose the trial court from determining that the plaintiff was a vexatious litigant. Without deciding whether the statute could apply to a plaintiff represented by counsel, the court of appeals observed that the plaintiff represented himself since the early stage of the lawsuit and was representing himself at the time the trial court ruled on the defendant’s motion. “To interpret the statute in such a way as to immunize [the plaintiff] from its effect, simply because [the plaintiff] was briefly represented by counsel, would be to thwart the statute’s purpose.”
Fortis Benefits v. Cantu, 234 S.W.3d 642 (Tex. 2007)
Rule 11 Agreement Enforceable: The Supreme Court found that a rule 11 agreement was enforceable and was consistent with its disposition of the case. “Rule 11 aims to remove misunderstandings and controversies that accompany verbal assurances, and the written assignments ‘speak for themselves.’”
PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163 (Tex. 2007)
No Personal Jurisdiction Under General Jurisdiction Theory: The deceased, whose representatives brought this suit, was a Texas resident who sought medical care at a Louisiana hospital. After the deceased’s death, the representatives brought a products liability action against the manufacturer, who brought a third party action against the owner of the hospital and the owner’s parent corporation. The trial court held that it had general jurisdiction over the hospital owner and its parent corporation, and the court of appeals affirmed. The Supreme Court reversed, and rendered judgment dismissing the claims against the third party defendants. The Supreme Court extensively discussed general jurisdiction principles and clarifies several issues concerning those principles. A general jurisdiction inquiry, the court concluded, was very different from a specific jurisdiction inquiry and involved a more demanding minimum contact analysis, with a substantially higher threshold. Usually, the defendant must be engaged in longstanding business in the forum state, such as marketing or shipping products, or performing services or maintaining one or more offices there. The court clarified that the relevant time period for evaluating contacts ends not at the time of the occurrence that prompted the suit, but rather at the time suit was filed. The court examined the hospital owner’s contacts with Texas extensively, and concluded that those contacts were insufficient to establish personal jurisdiction. The court then discussed the circumstances under which the contacts of a parent corporation would be considered, and concludes that the parent did not exercise the sort of control over the hospital owner that was required to fuse them for jurisdictional purposes.
The Supreme Court simultaneously decided several cases involving the enforceability of arbitration agreements. See In re H & R Block Financial Advisors, Inc., 235 S.W.3d 177 (Tex. 2007, orig. proceeding) (company can enforce arbitration agreement even if it changed its name, and employee is bound by agreement even though he did not sign contracts in his personal capacity); In re Merrill Lynch Trust Company FSB, 235 S.W.3d 185 (Tex. 2007, orig. proceeding) (plaintiffs agreed to arbitrate with Merrill Lynch, but not the employee or affiliates they also sued; because claims against employee are in substance claims against Merrill Lynch, those claims must be arbitrated; because no contract theory ties the affiliates to the same agreement, those claims are not arbitrable; to the extent the separate proceedings overlap, litigation must be stayed until the arbitration is completed); In re Kaplan Higher Education Corp., 235 S.W.3d 206 (Tex. 2007, orig. proceeding) (when a party to an arbitration contract seeks to avoid it by pleading a contract dispute as fraudulent inducement by a nonsignatory officer, agent, or affiliate of the other party, the nonsignatories can enforce the arbitration agreement).
Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007)
Limitations and Diligence in Effecting Service of Process: Although suit was filed before limitations expired, the defendant moved for and secured summary judgment on the ground that limitations expired because the plaintiff did not exercise diligence in effecting service. The court of appeals affirmed. The Supreme Court reversed, holding that the summary judgment evidence failed to conclusively establish that the plaintiff did not exercise diligence in having the defendant served. The Supreme Court discussed the shifting burden of proof on diligence, depending how the issue arose. “In assessing diligence, the relevant inquiry is whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served. . . . Generally, the question of the plaintiff’s diligence in effecting service is one of fact, and is determined by examining the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service.” The Supreme Court concluded there was a fact issue over the plaintiff’s diligence during the nine months that elapsed between the time suit was filed and service was effected.
Ford v. Exxon Mobil Chemical Company, 235 S.W.3d 615 (Tex. 2007)
Finality of Summary Judgment: The Supreme Court discussed principles of finality. “There is no presumption of finality for summary judgment orders, and the order here contains no unequivocal statement of finality.” Nonetheless, a judgment that actually disposes of all parties and all claims was final, regardless of its language. Because the judgment here did dispose of all parties and all claims, the Supreme Court held that it was final.
In re Southwestern Bell Telephone Company, LP, 235 S.W.3d 619 (Tex. 2007, orig. proceeding)
Mandamus Available When Trial Court Fails to Recognize Administrative Agency’s Exclusive Jurisdiction: The Supreme Court reiterated that mandamus was available to correct a trial court’s denial of a plea to the jurisdiction based on an agency’s exclusive jurisdiction.
National Plan Administrators, Inc. v. National Health Insurance Company, 235 S.W.3d 695 (Tex. 2007)
No Duty to Object to Immaterial Jury Question: The jury found that defendant failed to comply with its fiduciary duty. Plaintiff argued that the defendant waived its argument about the scope of its duty because the defendant failed to request a jury instruction. The Supreme Court disagreed. “Whether a party owes a fiduciary duty is a legal matter. . . . Because [the defendant] did not owe [plaintiff] a general fiduciary duty, the question should not have been submitted, the question is immaterial, and it cannot support a judgment for [plaintiff]. . . . Even though it did so, [defendant] was not required to object to the immaterial question.”