“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.

COURT REJECTS ARGUMENT THAT “THIS AGREEMENT” LITERALLY MEANS ONLY “THIS AGREEMENT”

Advocare GP, LLC v. Heath
Dallas Court of Appeals, No. 05-16-00409-CV (January 5, 2017)
Justices Lang, Myers (Opinion), and Evans
Advocare hired Richard Heath to serve on its board of directors. His offer letter referred to an attached non-disclosure agreement. Heath signed both the letter and the NDA and was terminated less than two months later. Heath sued Advocare asserting breach of contract—including breach of the written offer letter and an alleged oral agreement to hire Heath as CEO—as well as various tort claims. Advocare moved to abate the case and compel arbitration based on an arbitration agreement in the NDA, which provided “any controversy, dispute or claim arising out of or in any way related to or involving the interpretation, performance or breach of this Agreement shall be resolved by binding arbitration.” The trial court held that Advocare’s affirmative defense of breach of the NDA must go to arbitration, but that the rest of the case could proceed in court.

The Dallas Court of Appeals disagreed, writing: “We reject appellee’s contention that the arbitration provision’s use of the phrase ‘this Agreement’ narrows its application to literally ‘this Agreement,’ i.e., the NDA itself.” The NDA was specifically referenced in the offer letter, and the two agreements were signed at the same time, so the Court held they were effectively part of the same “Agreement.” Moreover, the Court noted the arbitration provision was written broadly to include all claims “in any way related to or involving” the Agreement and so should be construed to “embrace all disputes between the parties having a significant relationship to the contract.” Under that standard, and given that Advocare contended it terminated Heath for violating the NDA, all claims (including those in tort) were covered by the arbitration agreement.

NEXT FRIENDS’ APPEAL DISMISSED FOR LACK OF JURISDICTION

Garza v. Fliedner
Dallas Court of Appeals, No. 05-15-01067-CV (December 27, 2016)
Justices Lang, Myers (Opinion), and Schenck
On its face, this is a simple case. Medical malpractice claims were dismissed when plaintiffs did not serve the expert report required by statute. Plaintiffs’ procedural maneuvers designed to avoid dismissal, however, spun a web of issues under the rules of civil and appellate procedure.

Here’s the situation: Parents filed a medical malpractice lawsuit individually and as “next friends” of their daughter, then 17, but did not timely serve the required expert report. A couple months after the daughter turned 18, the defendant doctor filed a motion to dismiss under Chapter 74 of the Civil Practice and Remedies Code. The day before the hearing on that motion, the parents filed a notice to nonsuit “their entire case,” and the daughter (represented by the same attorney) filed a separate lawsuit asserting the same claims her parents had previously pursued on her behalf. The trial court dismissed the parents’ lawsuit (both their individual claims and those they had asserted as representatives of their daughter) with prejudice. The parents appealed. The daughter did not.

The Dallas Court of Appeals addressed two questions: (1) Do the parents have standing to appeal the order dismissing the claims they asserted as next friends of their daughter? (2) Since the daughter did not file her own notice of appeal, can she intervene to complain of the judgment? The short answer to both questions, the Court held, is “no.”

The authority of a next friend to act on a minor’s behalf expires when the minor reaches “the age of majority” (18). A lawsuit pending at the time may proceed, at the former minor’s election, but should be prosecuted in her own name. Here, the daughter elected to pursue her claims in a separate lawsuit. The Court did not reach the merits of the trial court’s dismissal with prejudice of the claims the parents had asserted on behalf of the daughter (and then nonsuited), because it held they no longer had standing to complain of that ruling. And because the daughter was a party to the judgment but did not file her own notice of appeal, she could not intervene based on the doctrine of “virtual representation.” The appeal was therefore dismissed for lack of jurisdiction.

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