The Beaumont Court of Appeals has held that a contractual waiver of jury clause does not extend to non-contractual claims brought against non-signatory joint tortfeasors or alleged conspirators.

In In re Wild Oats Markets, Inc., Kuykendahl-WP Retail, L.L.P. ("Kuykendahl") had a lease agreement with Wild Oats Markets, Inc., which contained a contractual waiver-of-jury-trial clause.  Kuykendahl brought suit against Wild Oats for breach of the agreement.  Kuykendahl also sued Whole Foods Market, Inc. for tortious interference with the lease and for engaging in a conspiracy with Wild Oats to commit fraud.

The trial court struck Kuykendahl’s jury demand with respect to its claims against Wild Oats, but set Kuykendahl’s claims against Whole Foods for a jury trial.  Wild Oats sought mandamus relief, asserting that the contractual waiver necessarily included Kuykendahl’s claims against Whole Foods.  Noting that Wild Oats had not shown that Kuykendahl had waived its right to a jury trial on its tortious interference claim against Whole Foods (for conduct occurring prior to Whole Foods’ merger with Wild Oats), the court of appeals denied Wild Oats’ petition for writ of mandamus.   From the court’s opinion, it is unclear how the trial court intended to try claims for fraud and conspiracy when part of them were to be tried to a jury and part were to be tried to the bench.  The court’s opinion may be found at this link.

Update: Wilds Oats and Whole Foods (which was not a relator in the court of appeals) have now filed a petition for writ of mandamus in the supreme court. See Case No. 09-0278.  The supreme court has called for a response.

The United States Court of Appeals for the Fifth Circuit recently held that the United States Supreme Court’s decision in Hall Street Associates v. Mattel  "restricts the grounds for vacatur" of an arbitration award and, thus, "manifest disregard for the law is no longer an indepdendent ground for vacating arbitration awards under the FAA."  Consequently, the only  bases for setting aside an arbitration award are (1) fraud or corruption in obtaining the award; (2) evident partiality by the arbitrator; (3) misconduct or misbehavior by the arbitrator; and (4) where the arbitrator exceeded its power.  See 9 U.S.C. sec. 10(a). 

In reaching its conclusion, the Fifth Circuit disagreed with decisions from the Sixth, Second, and Ninth Circuits holding that "manifest disregard" survived the Supreme Court’s decision in Hall.  The Fifth Circuit noted the Supreme Court’s "repeated statements [in Hall] that: ‘We hold that the statutory grounds are exclusive.’ "  As a result, the Fifth Circuit held that "manifest disregard of the law as an independent, nonstatutory ground for setting aside an award, must be abandoned and rejected."  The Court also expressly overruled any precedent to the contrary.  The Fifth Circuit’s opinion in Citigroup Global Markets, Inc. v. Bacon is availble at this link.  

This week the federal Fifth Circuit Court of Appeals issued an opinion in connection with a Petition for Leave to Appeal solely to remind district judges (and presumably practitioners) to demonstrate that the standards governing interlocutory appeals under 28 U.S.C. Section 1292(b) have been met.

Section 1292(b) requires that a district court should state when it believes there is a question of controlling law in a case upon which there is a substantial ground for difference of opinion and upon which an immediate appeal would materially advance the resolution of the litigation.  In Linton v. Shell Oil Co., the district court denied Shell’s motion for summary judgment and certified "the issues raised in the Motion for Summary Judgment" to the Fifth Circuit.  The Fifth Circuit noted that orders are certified, not issues; however, the court noted that it is helpful if the district court frames the controlling question.  The district court should also elaborate on why the question presented in the order is a controlling question and why there is a substantial ground for difference of opinion.

Of course, practitioners should be mindful of these requirements as well so that they can assist district courts in rendering orders in conformity with these instructions.  The Fifth Circuit’s opinion may be found at this link.

I’ve wanted to write something about Boenig v. Starnair, Inc. since I first read it because I believe the analysis is incorrect. 

This case involves the intersection of the responsible third party statute and a statute of repose.

Boenig sued contractor Pulte in November 2005 for injuries she allegedly sustained when she fell through the attic floor of a home Pulte built.  On July 19, 2007, Pulte filed a motion for leave to designate Starnair as a responsible third party.  Starnair was a subcontractor that performed the heating, ventilation, and air conditioning installation in the home.  On August 23, 2007, Boenig filed her fourth amended petition in which she joined Starnair as a defendant.

Starnair moved for summary judgment in reliance upon the ten-year statute of repose set out in Civil Practice and Remedies Code Section 16.009.  The trial court granted the motion and Boenig appealed.

Continue Reading Responsible Third Party Statute and Statutes of Repose

The Dallas Court of Appeals‘ opinion in In re Berry leaves more questions than answers.

This is an appeal from probate court action in which Sue Berry brought suit against Comerica, H&R Block, Washington Mutual Bank and the executrix of Eugene Berry’s estate for wrongful payment of checks.  Comerica filed a motion for summary judgment contending that the claims against it were barred because Ms. Berry did not report the unauthorized signatures within one year after the statement or items were made available to her, as required by Section 4.406(f) of the Texas Business and Commerce Code.  The trial court granted Comerica’s motion for summary judgment and all other claims were dismissed without prejudice.  Ms. Berry appealed the summary judgment.

Continue Reading Wrongful Payment of Checks

Can the non-movant in a summary judgment context use the movant’s evidence (attached to support a traditional motion for summary judgment) to challenge no-evidence grounds for summary judgment on appeal?

According to the El Paso Court of Appeals, the answer is "no." 

 

Continue Reading Combining No-Evidence Motions for Summary Judgment with Traditional Motions

The San Antonio Court of Appeals has held that a party challenging a default judgment may well risk losing the opportunity to challenge the exercise of personal jurisdiction over him unless special precautions are taken.

In Boyd v. Kobierowski, Kobierowski, a Texas resident, sued Boyd, a California resident, in Texas for breach of contract, fraud, misrepresentation and DTPA violations.  All causes of action arose from the sale of a vehicle  Boyd sold to Kobierowski. 

Boyd did not answer the suit and Kobierowski took a default judgment against Boyd.  Boyd subsequently filed a restricted appeal to challenge the default judgment.  He prevailed on appeal because of a defect in personal service.  See Appeal No. 04-06-0041-CV. 

On remand, Kobierowski repeatedly tried to get Boyd to answer the suit, but Boyd did not respond.  Kobierowski then took a second default judgment.  Boyd subsequently filed a special appearance and a motion for new trial subject to the special appearance.  The trial court denied the special appearance, but granted the motion for new trial.  In a second (interlocutory) appeal, Boyd argued that it was error to deny his special appearance.

Continue Reading Waiver of Special Appearances in Default Challenges

Apparently the Dallas Court of Appeals is Pro-choice.  At least when it comes to a Plaintiff’s choice of forums.

In Signature Management Team, LLC v. Quixtar, Inc., the Dallas Court of Appeals determined that the trial court abused its discretion when it dismissed a case under the doctrine of forum non conveniens even though some substantive and probative evidence existed to support the court’s decision.

Continue Reading Dallas Court of Appeals Favors Plaintiff’s Choice of Forum

The Dallas Bar Association, Appellate Law Section will have its regular monthly meeting on Thursday, March 19, 2009, at noon at the Belo Mansion.  The keynote speakers this month are Jennifer Trulock and Kathy Schatz of Baker Botts who will be speaking on employment law appeals.  This is good for one hour of CLE credit.

James Ho will speak to the Tarrant County Appellate Section on April 21, 2009, at noon at the Petroleum Club, about the Office of Solicitor General.  For more information about that event, go to this link.

The simple answer is yes, they do. See Texas Rule of Civil Procedure 162.

But the defendant’s pleading must allege a cause of action independent of the plaintiff’s claims on which the defendant can recover.  If a defendant fails to do so, then the plaintiff has an absolute right to a non-suit of all claims, as the Dallas Court of Appeals demonstrated in In re Metropolitan Lloyds Insurance Company of Texas.

Continue Reading Do counterclaims survive when a plaintiff non-suits?