SCOTX REMINDS PLAINTIFFS TO CHECK ALL THE BOXES BEFORE FILING A CLAIM AGAINST AN ARCHITECT

Levinson Alcoser Associates, L.P. v. El Pistolón II, Ltd.
Supreme Court of Texas, No. 15-0232 (February 24, 2017)
Justice Brown (Opinion, linked here); Justice Boyd (Concurring)
El Pistolón sued Levinson, its architect, after it became dissatisfied with Levinson’s services on a commercial retail project. In a suit concerning professional services rendered by an architect (or certain other licensed professionals), Chapter 150 of the Civil Practice and Remedies Code requires a plaintiff to submit a sworn certificate of merit. The certificate of merit must be prepared by a third-party professional who (a) has the same professional license as the defendant; (b) is licensed in Texas; (c) is actively engaged in practice; and (d) is knowledgeable in the defendant’s area of practice.

El Pistolón submitted an affidavit from Payne, an actively practicing Texas-licensed professional architect. But the affidavit was silent as to Payne’s knowledge of Levinson’s practice area, shopping centers and similar commercial construction. After the trial court denied Levinson’s motion to dismiss, Levinson brought an interlocutory appeal. The court of appeals affirmed, but the Supreme Court did not. The Court recognized that an architect’s knowledge may be established outside the affidavit, but concluded there was no record evidence that could satisfy the knowledge requirement. So the Court remanded to the trial court with instructions to dismiss, leaving it to the trial court to decide whether the dismissal should be with or without prejudice.

EXPUNCTION OF CRIMINAL RECORDS IN ARRESTS BASED ON UNRELATED OFFENSES—YES, YOU CAN

State of Texas v. T.S.N.
Dallas Court of Appeals, No. 05-15-01488-CV (February 22, 2017)
Justices Bridges, Lang-Miers, and Schenck (Opinion, linked here)
When T.S.N. tried to stop the repossession of her vehicle—by force—she was arrested for aggravated assault with a deadly weapon. During the course of the arrest, the police discovered she had an outstanding warrant for misdemeanor theft-by-check, based on conduct occurring years earlier; so, they executed that warrant at the same time. The two charges were docketed in different cases and different courts. T.S.N. pleaded guilty to the misdemeanor theft charge, but went to trial on the assault and was acquitted. She later sought expunction of all records and files related to her arrest for the agg assault, pursuant to article 55.01(a)(1)(A) of the Code of Criminal Procedure. That statute provides that “a person who has been placed under … arrest for commission of either a felony or misdemeanor is entitled to have all records and files related to the arrest expunged if: (1) the person is tried for the offense for which the person was arrested and is: (A) acquitted ….” There is an express exception to the right of expunction, however, when the acquitted offense is part of a single “criminal episode” and the defendant is convicted or remains at jeopardy for another part of that episode—an exception that did not apply here, because the theft and assault were not related, except that T.S.N. was arrested on both charges at the same time.

The State nevertheless opposed expunction, arguing that article 55.01 is “arrest based” and that T.S.N. therefore was not entitled to expunction because she was convicted on the theft charge for which she was arrested along with the agg assault. But the trial court rejected that argument, and the appeals court agreed. In a case of first impression, the Dallas Court held that “where the arrest includes offenses for which the defendant could not be charged and tried in the aggregate, the arrest—and any subsequent expunction—stands or falls on each unrelated charge.” So, the mere fact that a person is arrested on multiple unrelated charges and is convicted on some will not foreclose expunction of those charges of which he or she is later acquitted. Each unrelated charge will be judged on its own.

“ANALYTICAL GAP” TEST, NOT ROBINSON FACTORS, APPLIES TO TESTIMONY OF FORENSIC PSYCHIATRIST

Texas Capital Bank v. Asche
Dallas Court of Appeals, No. 05-15-00102-CV (February 17, 2017)
Justices Bridges, Francis, and Whitehill (Opinion, linked here)
In this will contest, the jury found that Asche lacked capacity to execute a series of wills, codicils, and trusts and that his wife, Sallie, exerted undue influence over him. These jury findings were supported by the expert testimony of Clayton, a forensic psychiatrist.

Clayton’s testimony was challenged on reliability grounds. Courts tasked with evaluating the reliability of expert testimony often apply a list of non-exclusive factors from the Texas Supreme Court’s decision in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). These factors focus on the scientific testing and methodology underlying the opinion. But the Robinson factors are not appropriate in every case. In certain situations, courts apply the “analytical gap test.” This test considers whether the expert’s field is legitimate, whether the testimony falls within that field, and whether the testimony properly relies on the data and the principles involved in the field.

The court of appeals characterized psychiatric testimony as a “soft science”—that is, experts in the field rely on experience or training to reach their opinions rather than on a particular scientific methodology. Therefore, the analytical gap test, not the Robinson factors, was properly used to evaluate Clayton’s testimony. After applying the analytical gap test—i.e., evaluating “whether there is too great an analytical gap between the data and the opinion proffered for the opinion to be reliable”—the court of appeals concluded the trial court did not abuse its discretion in admitting Clayton’s psychiatric testimony.

ONE WAY *NOT* TO CORRECT THE RECORD ON APPEAL



Burleson v. Collin County Community College District
Dallas Court of Appeals, No. 05-15-01361-CV (February 8, 2017)
Justices Bridges, Lang-Miers, and Whitehill (Opinion, linked here)
Burleson, Mark, and Bennight brought “whistleblower” claims against their employer, the Collin County Community College District. The trial court granted CCCD’s plea to the jurisdiction, finding the plaintiffs had not met the state Whistleblower Act’s jurisdictional prerequisites. The Dallas Court of Appeals disagreed, however, and reversed, sending the case back to the trial court. In the process, the appeals court addressed an issue often faced by appellate practitioners—correcting the record on appeal—and used the circumstances here to illustrate one method that won’t work.

At the hearing on its plea to the jurisdiction, CCCD discovered it had not filed certain documents it had intended to file with its plea. During the hearing, CCCD proffered those documents, labeled collectively as “Exhibit E,” as a corrected version of the materials it intended to file with the plea. The trial court accepted and “admitted” the exhibit as an “addendum.” But Exhibit E was not included in either the clerk’s record or the reporter’s record on appeal. When CCCD discovered the omission, after the officers had filed their notice of appeal and proceedings were underway in the appellate court, CCCD re-filed the Exhibit E materials with the trial court as an “Addendum to Defendant’s Plea to the Jurisdiction.” It then had that Addendum filed as a supplemental clerk’s record in the appeals court, invoking TRAP 34.6(e).

Not so fast, said the Court of Appeals. First, Rule 34.6(e) prescribes the procedure for addressing the accuracy or completeness of the reporter’s record. Here, CCCD attempted to cure the supposed defect by supplementing the clerk’s record. Second, in the absence of agreement—the plaintiffs objected here—Rule 34.6(e) requires that the trial court hold a hearing and determine whether the record is defective or deficient and, if so, approve the proposed correction. (A somewhat similar process is prescribed in Rule 34.5(d) & (e) for items lost from the clerk’s record.) Because CCCD did not follow that procedure, but instead unilaterally filed after-the-fact what it claimed were the omitted materials, the appeals court rejected CCCD’s proposed fix. The Court observed that, without the prescribed trial-court hearing and approval, there was “nothing in the record to establish that these materials are the same materials tendered to and considered by the trial court.” The supplemental materials, therefore, were excluded from the record on appeal.

As a balm to the attorneys involved, the Court dropped a footnote to say it would’ve reached the same result on appeal even if it had considered the disputed materials. But for the rest of us, the Court’s opinion serves as an admonition always to check the rules and follow them. As the Court cautioned, “liberal construction … does not mean that we disregard the rules in their entirety.”

WHAT IS A “PRODUCTS LIABILITY ACTION”?

vRide, Inc. v. Ford Motor Co.
Dallas Court of Appeals, No. 05-15-01377-CV (February 2, 2017)
Justices Bridges, Lang-Miers (Opinion linked here), and Stoddart
James Cernosek was riding as a passenger in a Ford van leased from vRide when he was hit by a drunk driver and severely injured. Cernosek and his wife sued Ford and the drunk driver and settled with both. They then sued vRide, alleging that vRide had promised to put “Safety First” and to provide only vehicles with certain safety features, including side-curtain or side-canopy airbags and state-of-the-art safety systems. vRide sued Ford for indemnity under Chapter 82 of the CPRC, which creates a duty for manufacturers to indemnify sellers for products liability actions.

Ford denied any duty to indemnify, arguing the case against vRide was one for negligent misrepresentation, not products liability, and both the trial court and the Dallas Court of Appeals agreed. A products liability action is one in which the plaintiff alleges a product contained a defect, was unreasonably dangerous, or presented an unreasonable risk of harm. Plaintiffs here alleged that vRide “misrepresented the presence of safety features on the vehicles it provides in its lease programs and promised that its vehicles had certain safety features when they did not.” The Court noted that the Cernoseks would not have to prove the van was defective, only that it was not what vRide promised. So it was not a products liability action, and Ford had no duty to indemnify vRide. The Court, therefore, affirmed summary judgment in favor of Ford and against vRide.

SCOTX REVISITS REQUIREMENTS FOR DEFAMATION CLAIM AGAINST MEDIA DEFENDANT INVOLVING MATTERS OF PUBLIC CONCERN

Brady v. Klentzman
Supreme Court of Texas, No. 15-0056 (January 27, 2017)
Justice Devine (Opinion linked here); Chief Justice Hecht (Dissent linked here)
First Amendment protections give rise to substantial hurdles for even a private, non-public-figure plaintiff who sues a media defendant for defamation based on a news story regarding a “matter of public concern.” The plaintiff bears the burden of proving falsity. And, to obtain anything beyond actual damages, he or she must also prove both “constitutional ‘actual malice’”—the media defendant’s “knowledge of falsity or reckless disregard for the truth”—and “traditional malice”—“intent to injure or conscious indifference to the risk of injury.” Finally, to recover even actual damages for non-economic injury, the plaintiff must adduce legally sufficient evidence “as to both the existence and the amount of such damages.” Because the trial court swung and missed on virtually all these requirements in its charge to the jury, the Supreme Court reversed a judgment for the plaintiff, Brady, and remanded for a new trial. Four justices, led by the Chief, would have gone further and rendered judgment for the defendants, arguing plaintiff failed to provide legally sufficient evidence of damages.

FENCE COVERED AS “DWELLING,” NOT “OTHER STRUCTURE”

Nassar v. Liberty Mutual Fire Insurance Company
Supreme Court of Texas (January 27, 2017)
Per Curiam (Opinion linked here)
When is a fence a dwelling? When the insurance policy defines “dwelling” to include “structures attached to the dwelling.” Exercising its error-correction discretion, the Supreme Court of Texas issued a per curiam opinion to remind lower courts of a basic principle for interpreting insurance policies in Texas: If the insured proffers a reasonable interpretation of disputed policy language, that interpretation is adopted, even if the insurer’s interpretation might seem more reasonable.

“IF YOU COME AT THE KING, YOU BEST NOT MISS”—SCOTX REFINES ULTRA VIRES EXCEPTION TO SOVEREIGN IMMUNITY

Hall v. McRaven
Supreme Court of Texas, No. 16-0773 (January 27, 2017)
Justice Devine (Opinion linked here); Justice Willett (Concurring); Justice Guzman (Concurring); Justice Lehrmann (Concurring); Justice Brown (Concurring)
In the context of a squabble within the University of Texas administration, the Supreme Court of Texas sought to clarify the ultra vires exception to sovereign immunity. The Court first explained how to determine whether a subordinate or higher official should be named as a defendant. The Court also held an official’s misinterpretation of a particular law is not ultra vires if the official has unconstrained discretion to interpret that law.

SCOTX CONFIRMS PROPERTY OWNERS MUST ONLY PROTECT AGAINST CRIME RISKS THAT ARE FORESEEABLE AND UNREASONABLE

UDR Texas Properties, LP v. Petrie
Supreme Court of Texas, No. 15-0197 (January 27, 2017)
Justice Brown (Opinion linked here)
Justice Willett (Concurrence linked here)
Alan Petrie was shot and robbed in the parking lot of his friend’s apartment complex at 2:00 one morning. He sued the apartment complex, claiming it had a duty to protect him from a foreseeable risk of crime. The trial court held the apartment complex had no duty to protect Petrie, but the Houston Court of Appeals disagreed, concluding that Petrie produced evidence the apartment complex knew or should have known of a foreseeable and unreasonable risk of harm based on the five factors set out by the Texas Supreme Court in Timberwalk. The Supreme Court disagreed, noting that the Timberwalk factors go to foreseeability only and that Petrie also had to show the risk of crime was unreasonable. Once foreseeability is established, “the parameters of the duty must still be determined,” which is addressed by the element of unreasonableness. Unreasonableness “turns on the risk and likelihood of injury to the plaintiff … as well as the magnitude and consequences of placing a duty on the defendant.” A risk is therefore unreasonable only when “the risk of a foreseeable crime outweighs the burden placed on property owners—and society at large—to prevent the risk.” Because Petrie did not produce any evidence concerning the burden on the apartment complex to make the property safe and whether that burden was reasonable, the Court reversed and rendered judgment against him.

Justice Willett, joined by Justice Boyd, concurred in the judgment but wrote separately to address a problem that has “long vexed him” in these cases, which is that including elements of foreseeability and reasonableness in the trial court’s determination of “duty” seems to intrude on questions of negligence and proximate cause, which have traditionally been the province of the jury. Justice Willett did not purport to have an answer for his concerns, but rather wrote his concurrence “only to kindle further study from the bench, bar, and academy.”

MANDATORY VENUE WHEN PRIMARY PURPOSE OF ACTION IS INJUNCTION






In re FPWP GP LLC
Dallas Court of Appeals, No. 05-16-01145-CV (January 25, 2017)
Justices Bridges, Myers (Opinion, linked here), and Whitehill
Section 65.023 of the Civil Practice & Remedies Code directs that “a writ of injunction against a … resident of this state shall be tried in … the county in which the party is domiciled.” Texas courts have construed this as precribing mandatory venue for any lawsuit “in which the relief sought is purely or primarily injunctive.” But whether a suit that pleads for more than one remedy seeks “primarily” injunctive relief is not always clear, as this Dallas Court of Appeals decision demonstrates.

The members of a limited partnership disagreed about a number of things, including which entity should serve as general partner. The Second Street faction sued the FPWP faction, seeking a declaratory judgment to sort things out, but also a temporary and permanent injunction to prevent FPWP GP LLC from acting on behalf of the limited partnership as general partner. Because all members of the defendant FPWP faction resided in Harris County, they moved to transfer venue, relying on § 65.023, but the trial court denied that request.

On mandamus, the Dallas Court of Appeals explained that § 65.023 does not prescribe mandatory venue when a claim for injunctive relief is “ancillary” to claims for declaratory or other relief. That is true, for example, where injunctive relief is sought just to maintain the status quo pending resolution of the lawsuit, and generally when no plea is made for a permanent injunction or when “the injunction is sought [only] to enforce rights established in [the] declaratory judgment action.” Here, however, the Court explained, the requested injunctive relief (both temporary and permanent) sought to prevent FPWP and the other relators from taking a number of specific actions inherent in acting as a general partner and that this was the true aim of the lawsuit. Therefore, the Court concluded, “the primary purpose of the lawsuit is injunctive” and the mandatory venue requirement of § 65.023 applied.

The opinion demonstrates that, where this determination is being made in connection with a lawsuit that seeks only a declaratory judgment and injunctive relief intertwined with the requested declarations, one is looking essentially at two sides of a single coin, and deciding which is the “primary” purpose may be more art than science.

Print