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Does Texas follow the “sham affidavit” doctrine?

A “sham affidavit” has been described as referring to an affidavit in which an affiant offers sworn testimony that contradicts the affiant’s prior, sworn testimony on a material point and the affiant gives no explanation in the affidavit for the change in the testimony.  The scenario of the “sham affidavit” arises with great frequency in … Continue Reading

Whose Right is it Anyway? Unconstitutional Speaker Discrimination in Texas’ Anti-SLAPP Scheme

Freedom of speech and thought lie at the core of liberty.  Though many philosophers, statesmen, and legal practitioners have opined on the value of free speech and thought, Justice Louis Brandies best captured the value of free speech and thought in our constitutional scheme: Those who won our independence believed that the final end of … Continue Reading

The Interplay Between Federal Rule 56 and Daubert

The Fifth Circuit Court of Appeals’ opinion in Operaciones Tecnicas Marinas, SAS v. Diversified Marine Services, LLC illustrates the interplay between the requirements of Federal Rule of Civil Procedure 56—the summary judgment rule—and the requirements of Daubert case law that an expert adequately exclude alternative causes. Diversified Marine Services, LLC (Diversified) was called upon to … Continue Reading

The Impact of Medical Lien Funding on Past Medical Expenses “Actually Paid or Incurred”

Texas Civil Practice and Remedies Code Section 41.0105 limits recoveries of medical care expenses by an injured claimant to those expenses actually paid or incurred by or on behalf of the claimant.  A number of appellate decisions have addressed what this paid-or-incurred language means in different contexts.  The opinion in Katy Springs Manufacturing, Inc. v. … Continue Reading

The Texas Supreme Court Adopts a “Factual Plausibility” Pleading Standard

Did the Texas Supreme Court substitute fair notice pleading for well-pleaded complaints?  Texas Rule of Civil Procedure 91a was adopted in 2013, and provides a “no reasonable person could believe” standard.  Until recently, whether “no reasonable person could believe” meant “plausibility” remained an unanswered question.  In City of Dallas v. Sanchez, No. 15-0094 (July 1, … Continue Reading

Personal jurisdiction found over corporate parent without veil-piercing

Ordinarily, when evaluating the contacts of distinct legal entities, the contacts of parent corporations and subsidiaries are evaluated separately for jurisdictional purposes, unless the corporate veil is pierced.  On first glance, that doesn’t appear to be what happened in Cornerstone Healthcare Group Holding, Inc. v. Nautic Management VI, L.P.  The key to understanding this opinion … Continue Reading

Mandamus standard over dominant jurisdiction is relaxed

Once upon a time a trial court’s decision on a question of dominant jurisdiction was not subject to mandamus relief unless one court was actively interfering with another court’s exercise of jurisdiction.  The Texas Supreme Court has abrogated that standard in favor of the more flexible standard the court adopted in In re Prudential Insurance … Continue Reading

Context Matters: personal e-mail addresses of government officials are not protected from disclosure requirements

The Texas Public Information Act is intended to provide the public with a window into the business of government and the official acts of public officials.   There are some limited restrictions on the information that may be obtained by a person requesting information.  The Austin Court of Appeals’ opinion in The Austin Bulldog vs. Leffingwell … Continue Reading

Injunction Law: Back to the Basics

Temporary restraining orders and temporary injunctions are governed by some fairly specific requirements. Failure to follow those black-and-white requirements can result in the court’s order being declared void.  That’s what happened in Medi-Lynx Monitoring, Inc. v. AMI Monitoring, Inc.  Texas Rule of Civil Procedure 683 requires that an order granting a temporary injunction set the … Continue Reading

Plaintiffs avoid getting (anti) SLAPPed

Appellate courts in Texas have seen an influx of defamation, business disparagement, and other similar actions since 2011 when the Texas Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code §§ 27.001-27.011 (2015), was signed into law.  The TCPA is an anti-SLAPP statute; SLAPP is an acronym for Strategic Lawsuits Against Public Participation, which … Continue Reading

No contempt for contractual support

The Dallas Court of Appeals recently held that contempt is not available to enforce contractual spousal support absent decretal language in the divorce decree along with a reference to Chapter 8 of the Texas Family Code and its requirements. Here, the parties entered into an agreement for spousal maintenance. The final divorce decree, however, simply … Continue Reading

First Amendment Speech vs. State Regulation of Health and Safety

The Fifth Circuit Court of Appeals recently issued an opinion addressing First Amendment protections over political speech and First Amendment challenges to the state regulation of psychological services. In Serafine vs. Branaman, the Texas State Board of Examiners of Psychologists ordered Mary Serafine to stop using the title of “psychologist” on her campaign website and … Continue Reading

When is Mandamus Relief Available for Conflicting Trial Settings?

The Texas Supreme Court’s holding in In re Prudential Insurance Co. of America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding)—that determining whether an appellate remedy is “adequate” requires a balancing of the benefits and detriments of mandamus review and is not an abstract or formulaic determination—seems to have caused a split among the Courts … Continue Reading

Trial court’s reach exceeds its grasp

The Dallas Court of Appeals recently held that a trial court lacks jurisdiction to issue a show-cause order for a non-party to appear if the party is outside the subpoena power of the court. Here, after one unsuccessful mediation, the parties attempted another mediation during trial with the trial court’s blessing. The trial court determined … Continue Reading

Mandamus subject to laches

The Dallas Court of Appeals recently reaffirmed that mandamus is controlled by equitable principles, including laches. Here, the relator waited almost nine months to file its petition without explanation. The Court relied on cases finding waiver in which the petitioner waited four to six months before filing for no apparent reason. Accordingly the Court found … Continue Reading

Exemplary Damages Caps Need Not Be Pleaded

The Texas Supreme Court recently resolved a split of authority among Texas courts of appeals regarding whether the exemplary damages cap in Section 41.008 of the Texas Civil Practice and Remedies Code needs to be pleaded as an affirmative defense or is simply applied as a matter of law.  Some courts (2nd, 13th, 14th) had … Continue Reading

Employee’s assault claim barred by the TCHRA

In a short, straight-forward opinion, the Dallas Court of Appeals recently held that a common-law claim for assault is precluded by the Texas Commission on Human Rights Act. Here, the plaintiff alleged that a supervisor engaged in various sexual related conduct against her at work, including unwanted force and touching. The defendant moved for summary … Continue Reading
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