The Dallas Court of Appeals recently discussed the difference between judicial errors and clerical errors and highlighted why it’s so very important to pay attention to the language in orders and judgments.

In In the Interest of N.E., D.E., & M.E., the trial court rendered a final judgment with a Mother Hubbard clause.  The same judgment contained language stating that the intervention of an attorney for one of the parties (seeking attorney’s fees) was stricken.  The trial judge interlineated language that would have made the striking of the intervention "without prejudice."

One hundred seventy-five days later, the trial court attempted to vacate its judgment and render a new judgment reciting dismissal of the intervention without prejudice.  The question on appeal became whether such an order was a clerical mistake that could be corrected by nunc pro tunc judgment.  The court of appeals held that adding the language "without prejudice" to the judgment was a change in the judgment actually rendered and was not correcting a clerical error.  Thus, the court of appeals held that the trial court had no authority to make the change in its judgment since its plenary power had expired.  The court of appeals’ opinion may be found here.

This little news flash nearly escaped my attention.  Governor Perry has appointed Associate Justice Terry Livingston to be the new Chief Justice of the Second Court of Appeals in Fort Worth.  Chief Justice Livingston succeeds Chief Justice John Cayce, who stepped down late last year to return to private practice.  The Governor’s news release may be viewed here.

The Collin County, Frisco, and Plano Bar Associations are co-sponsoring a happy hour with special guests Justices Robert Fillmore and Lana Myers of the Dallas Court of Appeals at The event will be held from 5:30-7:00pm on Thursday, April 29, 2010 at Zea Woodfire Grill, 8100 Dallas Parkway, Plano, Texas 75024.  Members of the bench and bar are welcome to enjoy complimentary food and drink, and meet the Court’s two newest justices. 

Personal Jurisdiction challenges is one area of the law that I’ve found interesting since I took Dean Frank Newton’s conflicts of law class in law school.  Recently there have been a number of personal jurisdiction opinions that have come out.   I’ve summarized what I see as the highlights of some of those cases below:

  • In Jackson v. Hoffman, the Fourteenth Court of Appeals held that the filing of a faulty affidavit by the defendant did not waive the jurisdiction challenge.  The court also held that the defendant did not waive the jurisdiction challenge by filing a motion for sanctions in the court of appeals after the plaintiff appealed the order granting the defendant’s special appearance.  The court’s opinion may be found here.
  • In Zinc Nacional, S.A. v. Bouche Trucking, Inc., the Texas Supreme Court held that the mere act of sending goods through Texas does not establish personal jurisdiction under a specific contacts analysis.  The court’s opinion may be found here.
  • In Touradji v. Beach Capital Partnership, L.P., the First Court of Appeals held that jurisdiction must be examined on a claim-by-claim basis insofar as examining specific jurisdiction.  The court further held that if the plaintiff does not plead sufficient jurisdictional facts, a defendant can meet its burden of negating jurisdiction merely by proving that it is not a Texas resident.  Finally, the court holds that unilateral acts of the plaintiff cannot be used to establish jurisdiction; it must be the defendant’s purposeful conduct that established personal jurisdiction.  The court examines a number of individual claims pleaded in this case, and in that regard the opinion may be of interest for those wanting a more detailed review.  The court’s opinion may be found here.
  • In 2007 East Meadows, L.P. v. RCM Phoenix Partners, L.L.C., the Dallas Court of Appeals holds that specific jurisdiction is "dispute-specific."   The court futher holds that RCM Phoenix did not purposefully avail itself of Texas by using a third-party broker to market real property that was located in Indiana.  Finally, the court holds that where a contract gave the plaintiff the unilateral decision to select the location of the closing of the sale which never closed, the nonresident defendant could not be said to have purposefully availed itself of Texas law.  The court’s opinion may be found here.

 

The Dallas Court of Appeals has held that a settlement agreement by Rule 11 did not support summary judgment because the client challenged her counsel’s authority to sign the Rule 11.  In this case, a plaintiff settled a case by a Rule 11 Agreement.  Later, she brought suit against the same party she had settled with years before.  The defendant alleged affirmative defenses based on the Rule 11.  The plaintiff filed an affidavit that she had not authorized her counsel to sign the Rule 11.  The trial court granted summary judgment for the defendant based on the Rule 11 agreement.

The court of appeals held that while an attorney is presumed to have authority to execute a Rule 11 agreement, the presumption may be overcome with evidence.  Note that case law indicates that an attorney’s authority to settle a case may be different than the authority to prosecute or defend.  Compare Dunlap v. Villareal, 91 S.W.2d 1124, 1125 (Tex. Civ. App.–San Antonio 1936, no writ) (holding an attorney retained for litigation is presumed to possess authority to enter into a settlement on behalf of a client) with Johnson v. Rancho Guadalupe, Inc., 789 S.W.2d 596, 598 (Tex. App.–Texarkana 1990, writ denied) (noting that there is no implied authority for an attorney to release the very right or interest he is employed to protect).  As a result, the court of appeals reversed because the plaintiff filed an affidavit calling into question that attorney’s authority.  The court’s opinion in Karle v. Innovative Direct Media Ltd. Co. can be found at this link.

In a brief memorandum opinion, the Dallas Court of Appeals affirmed that attorneys may be deposed as fact witnesses while counsel in the underlying litigation.  Here, the trial court denied a party’s motion to compel the deposition of the opposing party’s lawyer.  The court of appeals stated that "[t]he mere fact that a fact witness is acting as an attorney in the case will not prevent his deposition from being taken when it is otherwise proper."  Whether the testimony is privileged or admissible "cannot be determined until his deposition is taken."  The opinion does not address the issue of admitting the testimony at trial or calling the attorney as a witness in light of Disciplinary Rule 3.08.  Accordingly, the Court granted the petition for writ of mandamus and ordered the trial court to grant the party’s motion to compel.  The Court’s opinion in In re Glassman can be found at this link.

Dallas Court of Appeals Justice Robert Fillmore will speak on the new rules and procedures governing electronic filing at the court of appeals on Thursday, April 15th at Noon at the Belo Mansion.  Here’s an opportunity to get an hour’s worth of CLE, meet with one of the new Justices on the court, and learn about some new technology.

The Houston (First) Court of Appeals recently held that section 33.004(e) of the Texas Civil Practice and Remedies Code does revive claims against defendants whose liability is solely vicarious.

Section 33.004(e) allows plaintiffs to join as defendants those designated as responsible third parties notwithstanding the applicable statute of limitations.  Plaintiffs in this case filed suit against Wells Fargo well after limitations had apparently expired.  Plaintiff then moved to join one of Wells Fargo’s employees as a responsible third party.  After the court granted the motion, Plaintiff then joined the employee as a defendant.  Both Wells fargo and the employee sought summary judgment based on limitations and argued (1) that public policy barred the use of section 33.004(e) to circumvent limitations, (2) section 33.004(e) cannot revive claims on which the statute had run prior to enactment of Chapter 33, and (3) section 33.004(e) does not revive claims against parties who are only vicariously liable.

The court of appeals rejected the defendants’ first argument as "without merit."  The court, however, agreed with the defendants that Chapter 33 cannot revive claims on which limitations had already expired prior to its passage.  Finally, the court held that a party that is only vicariously liable does not fit the definition of responsible third party in Chapter 33.  After reciting  the definition of responsible third party found in section 33.011(6), the court stated:

A party that is liable based purely on respondeat superior does not fit this definition.  The definition further underscores that section 33.004(e) should not be used to hold a party liable when no allegations have been made that the party caused or contributed to the claimant’s damages.

The take home here is that employers whose liability is only vicarious cannot be designated "responsible third parties" under Chapter 33.  As a result, the court of appeals concluded that the plaintiffs’ time-barred claims against Wells Fargo based on respondeat superior were not revived by section 33.004(e).  The court’s opinion in Villareal v. Wells Fargo Brokerage Servs., LLC can be found at this link.

A couple of weeks ago, I blogged about a Dallas Court of Appeals opinion holding that a temporary injunction that fails to set a trial date on the merits is a void injunction order.  Now the San Antonio Court of Appeals gets into the act and reaffirms the strictness with which temporary injunctions are construed.

In Kotz v. Imperial Capital Bank, the court reaffirmed the principle that "[t]he procedural requirements of Rule 683 are mandatory, and an order granting a temporary injunction that fails to strictly comply with the rule is subject to being declared void and dissolved."  In Kotz, the trial court signed an injunction order with the following language:

The Court finds that Intervenors Patrick Man and Grace Man will suffer irreparable injury in their possession and use of the Subject Property in the event that the requested injunctive relief is not granted, that they have no adequate remedy at law, and that the requested injunctive relief is necessary to preserve the status quo pending final trial.

The court of appeals held that this language violated Rule 683 because it did not provide specific reasons why injury will result without injunctive relief.   After citing examples of numerous other invalidated injunctions, the court stated that the injunction "must be specific and legally sufficient on its face and not merely conclusory."

The Mans argued that the nature of the case justified deviation from Rule 683 because the case involved a dispute to real estate, which is innately unique.  Thus, the Mans argued that the court could presume irreparable injury and lack of an adequate remedy.  But the court of appeals rejected this argument as a basis for overcoming Rule 683’s mandatory requirements.  The court’s opinion dissolving the injunction may be found at this link.

Appellate practitioners know that winning an appeal is not always the end of litigation.  Sometimes it’s just a new beginning of disputes, as my blog entry regarding the Supreme Court’s opinion in the In re Columbia Medical Center case indicates.  But other times, it really is supposed to be the end.  What happens if the trial judge doesn’t see it that way?

 Last month, I blogged about a case called In re Victor Enterprises, Inc., in which the Dallas Court of Appeals granted a petition for writ of mandamus against Dallas County Court at Law No. 1 after the judge of that court granted a petition for writ of mandamus without requesting a response from the Relator, Victor Enterprises.   The court of appeals held that such an act was clear error and granted mandamus.  Now there’s more to the story…

Continue Reading Mandamus to prevent exercise of jurisdiction where there is none