Happy New Year!

The Dallas Court of Appeals issued a number of interesting opinions the last week of December. Three of those cases serve as good reminders to be careful what parties say and don’t say in their pleadings.

Khwaja v. Quik-Way Retail Assocs. II, Ltd., No. 05-14-01090-CV:

In this default judgment case, the court of appeals reversed the default judgment entered against Khwaja because she met all three elements of Craddock. The important lesson for Plaintiffs here is , when responding to a motion for new trial following a default and, more specifically, the third Craddock, element, make sure to present specific examples of how the plaintiff will be harmed and disadvantaged by a new trial, such as “the loss of witnesses or valuable evidence.” (Slip Op. at 5-6). Simply being delayed in collecting a judgment is not enough.  Id.

Warren v. Carlson Rests., Inc. d/b/a TGI Friday’s, Inc., No. 05-14-01232-CV:

In this premises liability case, Warren sued TGI Friday’s after he fell on a curbside ramp outside of one of their restaurants. TGI Friday’s filed an MSJ. Warren presented expert testimony in response that the ramp was unreasonably dangerous because it was not skid-resistant and was slick to the touch. The expert did not, however, testify that the ramp was unreasonably dangerous at the time of the accident. Rather, his testimony was based on his examination of the ramp more than three months after the accident and did not opine on the ramps condition at the time of the accident or on how the condition may have changed since the accident. The trial court granted the motion, and the court of appeals affirmed, holding that Warren presented no evidence that the summary judgment granted for TGI Friday’s. (Slip Op. at 6). The lesson? Make sure the expert ties his opinions back to the accident and injury-causing conditions.

Tatum v. Hersh, No. 05-14-01318-CV:

In this TCPA “Anti-SLAAP” case, the defendant’s own pleadings doomed her motion to dismiss. The Tatums sued Hersh for intentional infliction of emotional distress for her role in the publication of a newspaper article concerning the Tatums’ son’s suicide. (Slip Op. at 2-3). Hersh moved to dismiss under the TCPA, which permits dismissal of claims that are based on, related to, or in response to a defendant’s exercise of the right of free speech (and other enumerated rights). The trial court granted the motion. But the court of appeals reversed, holding that Hersh was not entitled to the protections of the TCPA because she pleaded that she did not make any of the alleged statements and, therefore, necessarily denied that the Tatums’ claims were based on, related to, or in response to Hersh’s exercise of free speech. (Slip Op. at 13). In other words, you can’t have your cake and eat it too.