Fair Notice of Pleadings
Sua Sponte
by Carrington Coleman
1w ago
Hyde v. GACP Finance Co., LLC  Dallas Court of Appeals, No. 05-23-00873-CV Justices Reichek, Nowell (Opinion, available here), and Wright Kelli Hinson The “fair notice of pleadings” doctrine requires that the parties’ pleadings give adverse parties notice of their claims and defenses, as well as notice of the relief sought. Plaintiff GACP learned that lesson the hard way when the Dallas Court of Appeals reversed a $1.8 million judgment in its favor and rendered judgment for the Defendants.  The GACP sued Defendants Hyde and Winspear alleging fraud in connection with a Credit Agreem ..read more
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Insurer’s Proposed Permissive Interlocutory Appeal Rejected: Won’t Materially Advance Ultimate Termination of Litigation
Sua Sponte
by Carrington Coleman
1M ago
Zurich Am. Ins. Co. v. MB2 Dental Solutions, LLC Dallas Court of Appeals, No. 05-24-00288-CV (September 20, 2024) Justices Molberg (Opinion, linked here), Pedersen, III, and Carlyle  Robert Fountain After Zurich denied coverage under three insuring agreements for MB2’s losses arising from COVID-19 pandemic government orders, MB2 sued Zurich, asserting breach-of-contract and extra-contractual claims. Three years into the suit, the parties filed cross-motions for partial summary judgment on one of the insuring agreements, which covered interruption-by-communicable-disease (“ICD”). After ..read more
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Arbitration and Not-So-Evident Partiality
Sua Sponte
by Carrington Coleman
2M ago
Aspen Strategic Holdings, LLC v. Transitus Capital, L.L.C. Dallas Court of Appeals, No. 05-23-00249-CV (August 27, 2024) Justices Partida-Kipness (Opinion, here), Pedersen III, and Carlyle Ken Carroll A court will vacate an arbitration award where there is “evident partiality” of the arbitrator. See, e.g., Tex. Civ. Prac. & Rem. Code § 171.088(a)(2)(A). The Supreme Court of Texas has explained that a “neutral arbitrator … exhibits evident partiality if he or she does not disclose facts which might, to an objective observer, create a reasonable impression of the arbitrator’s partiality ..read more
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Substantial Invocation of the Judicial Process Waives Arbitration under the FAA Even Without a Showing of Prejudice
Sua Sponte
by Carrington Coleman
2M ago
Dallas Excavation Systems, Inc. v. Orellana Dallas Court of Appeals, No. 05-23-01149-CV (August 21, 2024) Justices Molberg (Opinion, here), Nowell, and Kennedy (Dissenting, here) Ken Carroll In a case arising from an arbitration agreement governed by the Federal Arbitration Act, the Texas Supreme Court has held that, “[A] party waives an arbitration clause by [1] substantially invoking the judicial process [2] to the other party’s detriment or prejudice.” Perry Homes v. Cull, 258 S.W.3d 580, 589-90 (Tex. 2008). More recently, however, the United States Supreme Court has said that under the F ..read more
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When a Non-Solicitation Agreement Applies Even If There’s No Solicitation
Sua Sponte
by Carrington Coleman
3M ago
Bain & Schindele Tax Consulting, LLC  v. EW Tax and Valuation Group, LLP Dallas Court of Appeals , No. 05-23-00560-CV (August 7, 2024)  Justices Molberg, Nowell (Opinion, linked here), and Kennedy Ken Carroll Sarah Schindele sold the assets of her tax and bookkeeping business (“BSTC”) to EW Tax for a little over $800,000—$162,500 up front and a note for the balance that called for 60 monthly payments of $7300 and a sizeable balloon payment at the end of the payout period. As part of the arrangement, Schindele agreed that for a five-year “Restrictive Period”she would not ..read more
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Owner Testimony about Value: “Because I Said So” Isn’t Enough
Sua Sponte
by Carrington Coleman
5M ago
Hernandez v. Ayala Dallas Court of Appeals, No. 05-23-00549-CV (June 18, 2024) Justices Smith (Opinion, linked here), Miskel, and Breedlove Ken Carroll Customarily, an owner may testify about the value of his or her property in a Texas trial court. Testimony of an independent expert isn’t required. But to be legally sufficient, an owner’s testimony about value must embody and convey more than the owner’s unsupported, unsubstantiated guess. A partnership dispute arose between Hernandez and Ayala. At trial, the jury awarded Ayala $104,000 in damages based on the value of pa ..read more
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Designating an Unknown Person as a Responsible Third Party
Sua Sponte
by Carrington Coleman
5M ago
In re Chitkara Dallas Court of Appeals, No. 05-24-00482-CV (June 12, 2024) Justices Pedersen III, Smith (Opinion, linked here), and Garcia  Ken Carroll If a defendant wants to designate an unknown person as a responsible third party, Civil Practice & Remedies Code § 33.004(j) prescribes unique requirements—distinct from those governing designation of known persons— that must be closely followed. Chitkara sued Ortiz and his employer, Hellas Construction, when Ortiz abruptly pulled in front of Chitkara on the Dallas North Tollway, causing a collision. Ortiz and Hellas alleged in ..read more
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WAIT…I CAN’T SERVE THE REGISTERED AGENT?
Sua Sponte
by Carrington Coleman
6M ago
Lawton Candle, LLC v. BG Personnel, LP Dallas Court of Appeals, No. 05-23-00449-CV (May 13, 2024) Justices Garcia, Breedlove (Opinion), and Kennedy Neil R. Burger Lesson learned: serving an out-of-state registered agent for the out-of-state defendant is not proper service under Texas law.   In this restricted appeal, the Oklahoma defendant, Lawton Candle, LLC, claimed the default judgment against it was improper because it had not been properly served with process. The plaintiff, BG Personnel, LP, had served Lawton Candle with the lawsuit through its registered agent in ..read more
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"Just Throw it Away"
Sua Sponte
by Carrington Coleman
6M ago
In the Interest of MBG and ATGDallas Court of Appeals, No. 05-23-00505-CV (May 2, 2024) Justices Partida-Kipness, Nowell (opinion available here), and Smith Kelli Hinson You can’t always trust your soon-to-be ex-husband. The wife in this divorce case learned that the hard way when she failed to answer or appear at trial and was unhappy with the orders entered by the Court. She filed a motion for new trial, arguing she met the Craddock factors. She testified that her failure to respond was not due to conscious indifference because, after she received the divorce petition, the husband told her ..read more
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No Interlocutory Appeal from Denial of Ken Paxton’s Plea to Jurisdiction in Disciplinary Case
Sua Sponte
by Carrington Coleman
7M ago
Paxton v. Commission for Lawyer DisciplineDallas Court of Appeals, No. 05-23-00218-CV (April 18, 2024) Justices Nowell (Opinion, linked here), Miskel (Dissent, linked here), and Kennedy Ken Carroll  More fallout from failed litigation regarding purported irregularities in the 2020 presidential election. A day after one panel of the Dallas Court of Appeals unanimously affirmed summary judgment rejecting the State Bar’s disciplinary charges against Sidney Powell—largely because of the Bar’s less-than-ideal briefing at trial and on appeal—another divided panel of that same court found it la ..read more
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