Cheryl Currid v. Coit Cleaning & Restoration Services, No.  01-17-00630-CV (Tex.App.- Houston [1st Dist.]  April 17, 2018) (right to avoid summary judgment by asserting arbitration/forum selection clause lost based on oral statements later made by appearance attorney at hearing on post-judgment motion.)

Attorney at oral hearing on the post-judgment motion filed after grant of summary judgment wasn't even from the same law firm that was pursuing the appeal, and the notice of appeal had been filed before the post-judgment motion was even filed, not to mention heard by the trial court.

Chief Justice Radack nevertheless finds that the attorney's deferential response to the presiding judge  at the oral hearing on the motion for reconsideration ("I totally understand what you are saying") resulted in waiver of the argument the client's appellate law firm was making on appeal, seeking reversal of the summary judgment granted based on the record before the trial court at that time it was heard.

Say "Yes, ma'mam at your client's peril"

Only a two weeks earlier, Justice Russel Lloyd, a member of the very same court, has this to say in Young v. DWAYNE R. DAY, PC:

Day cannot rely on the Youngs' attorney's statement at the summary judgment hearing because the trial court must decide the summary judgment issues based on the pleadings and evidence on file at the time of the hearing. See TEX. R. CIV. P. 166a(c).

Here, the oral remarks of the losing party's attorney that Chief Sherry Radack found to have resulted in waiver under the invited error doctrine were not even made at the summary judgment hearing; they were made on a post-judgment motion that the trial court judge denied while the case was already on appeal. The denial was not even added to the issues on appeal. Instead, the opposing party requested a supplemental reporter's record to torpedo the appeal with the "incriminating" statements that would not even have been in the appellate record otherwise, arguing that they amounted to "waiver" and  mooted the pending appeal.

Sanctimonious Nonsequitur 

Radack cites a prior First Court case for authority:

“An individual cannot rely upon the [Fifth Amendment] privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally.” [...] Russo has not shown that the documents he withheld are not records of a corporate entity within his possession or that the Fifth Amendment act-of-production privilege applies to these documents. Accordingly, we deny Russo’s petition for writ of mandamus and lift our partial stay of the March 20, 2018 order.  

On April 3, 2018, relator Christopher J. Russo filed a petition for writ of
mandamus in this court, his second relating to this discovery dispute. See Tex. Gov’t
Code Ann. § 22.221 (West Supp. 2017); see also Tex. R. App. P. 52. In the petition,
Russo asks this court to compel the Honorable Caroline Baker, presiding judge of
the 295th District Court of Harris County, to vacate her March 20, 2018 order, which
compels Russo to produce certain documents for which Russo has asserted an actof-production
privilege under the Fifth Amendment of the United States Constitution.

The real parties-in-interest are Superior Energy Services, Inc., and Stabil Drill
Specialties, LLC, and SESI, LLC (collectively, the “Superior Parties”).

The Fifth Amendment privilege does not apply to the records of corporate
entities. Russo has not shown that the documents for which he asserted the privilege
are not records of corporate entities he allegedly owned or controlled. We therefore
deny the petition for writ of mandamus.

FACTUAL AND PROCEDURAL BACKGROUND

The Superior Parties filed suit, alleging, among other things, that Russo and
the other defendants conspired to defraud the Superior Parties of $72 million and
other assets over several years. Specifically, the Superior Parties allege that Russo
and Martin A. LeBlanc were the executive officers of Stabil Drill, a subsidiary of
SESI, and that Russo and LeBlanc engaged in a complex scheme of self-dealing
primarily by creating separate but interwoven corporate entities (which they owned
or controlled directly or indirectly) to improperly invoice Stabil Drill for goods and
services and to benefit themselves by being on both sides of various transactions.
The Superior Parties allege that Russo was a member of, owned, and/or controlled
several limited liability companies which he used to execute his schemes to defraud
the Superior Parties. These corporate entities include, among others, Triple RRR
Investments, LLC, Gulf Coast Wireline, LLC, Maverick Rental Tools, LLC, Quest
Holdings, LLC, Basket Specialties, LLC, Tri-Eagle NDT Services, LLC, Longhorn
Bits LLC, Prime 337, LLC, Russo Energy LLC, Russo Exploration LLC, and Cole
Joseph Russo Trust, LLC. In their petition, the Superior Parties assert claims against
Russo and his corporate entities for breach of fiduciary duty, fraud, trade secret
misappropriation, and civil conspiracy.

The Superior Parties served Russo and Russo Energy, LLC with several
requests for production. Russo withheld some responsive documents, objecting to
each request “on the ground that it requires production of documents in violation of
Defendant’s Fifth Amendment (U.S. Constitution) act-of-production privilege. See
United States v. Hubbell, 530 U.S. 27 (2000).”

On September 22, 2016, the Superior Parties filed a motion to compel
production of the withheld documents. The trial judge heard the motion on October
3, 2016, and took the matter under advisement. On August 3, 2017, the trial judge
issued an order requiring Russo to prepare a privilege log of all the documents Russo
withheld and to deliver the documents to the court for an in camera review. Russo
submitted a privilege log listing 2,277 documents.

At a hearing on October 20, 2017, the trial judge asked Russo to attempt to
reduce the number of documents for which he was asserting his Fifth Amendment
privilege. Russo later produced some of the documents he had withheld, submitted
amended and supplemental privilege logs (listing a total of 1538 documents), and
delivered the documents on the logs to the court for in camera review.

On February 12, 2018, the trial judge signed an order requiring Russo to
produce all of the documents that Russo had listed on the logs.
 On February 21, 2018, Russo filed a petition for writ of mandamus, asking
our court to compel the trial judge to vacate her February 12, 2018 order.
On March 1, 2018, the trial judge vacated her February 12, 2018 order.
On March 20, 2018, the trial judge signed an order compelling Russo, within
fourteen days, to produce “all emails (or portions of emails) identified on the
Amended and Supplemental Privilege Logs that were generated by a third party.”
The order directs Russo to file additional briefing regarding whether the documents
he withheld on Fifth Amendment grounds pose a real and substantial risk of
incrimination to him and why the Superior Parties are not entitled to copies of the
Amended and Supplemental privilege logs under Texas Rule of Civil Procedure
193.3.

Because the trial judge had vacated the February 12, 2018 order, we issued an
opinion on April 2, 2018, dismissing as moot Russo’s first petition for writ of
mandamus.

In his second petition for writ of mandamus now before us, Russo argues that
the March 20, 2018 order constitutes an abuse of discretion because in it the trial
judge orders production of documents which Russo contends are protected by his
Fifth Amendment act-of-production privilege.

MANDAMUS STANDARD

To obtain mandamus relief, a relator generally must show both that the trial
court clearly abused its discretion and that the relator has no adequate remedy by
appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). A trial court clearly abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if
it clearly fails to analyze the law correctly or apply the law correctly to the facts. In
re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (per curiam). The relator must establish that the trial court reasonably
could have reached only one conclusion. Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992) (orig. proceeding).

A party will not have an adequate remedy by appeal when the appellate court
would not be able to cure the trial court’s discovery error. In re Christus Santa Rosa
Health Sys., 492 S.W.3d 276, 280 (Tex. 2016). “If the trial court issues an erroneous
order requiring the production of privileged documents, the party claiming the
privilege is left without an adequate appellate remedy.” Id. “Mandamus is
appropriate for constitutional protections like the privilege against self-incrimination
that an appeal could not adequately protect.” In re Speer, 965 S.W.2d 41, 45 (Tex.
App.—Fort Worth 1998, orig. proceeding) (citing Tilton v. Marshall, 925 S.W.2d
672, 682 (Tex. 1996)).

STANDARD OF REVIEW

A defendant has the right to assert his Fifth Amendment privilege to avoid
civil discovery if he reasonably fears that the responses would tend to incriminate
him. See Tex. Dept. of Pub. Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 760
(Tex. 1995). “Before the judge may compel the witness to answer, [the judge] must
be ‘perfectly clear, from a careful consideration of all the circumstances in the case,
that the witness is mistaken, and that the answer(s) cannot possibly have such
tendency to incriminate.’” Ex Parte Butler, 522 S.W.2d 196, 198 (Tex. 1975) (quoting
Hoffman v. United States, 341 U.S. 479, 71 (1951)).
Whether a discovery privilege applies is a matter of statutory construction,
which is a question of law reviewed de novo. See In re Christus Santa Rosa Health
Sys., 492 S.W.3d at 280. We review with limited deference the issue of whether a
trial court properly has applied the law of privileges to the documents. See Keene
Corp. v. Caldwell, 840 S.W.2d 715, 718 (Tex. App.—Houston [14th Dist.] 1992, no
writ).

ANALYSIS

A. The Fifth Amendment act-of-production privilege does not protect
records of entities.

The only privilege asserted by Russo was the Fifth Amendment of the United
States Constitution act-of-production privilege, discussed in United States v.
Hubbell, 530 U.S. 27 (2000). A person may be required to produce specific
documents even though the documents contain incriminating assertions of fact or
belief because the creation of those documents was not compelled within the
meaning of the privilege. Id. at 36. However, the act of producing documents in
response to a subpoena duces tecum may have a compelled testimonial aspect
because the act of production itself may implicitly communicate statements of fact.
Id. “By ‘producing documents in compliance with a subpoena, the witness would
admit that the papers existed, were in his possession or control, and were authentic.’”
Id. “The privilege afforded not only extends to answers that would in themselves
support a conviction under a federal criminal statute but likewise embraces those
which would furnish a link in the chain of evidence needed to prosecute the claimant
for a federal crime.” Id. at 37 (quoting Hoffman v. United States, 341 U.S. 479, 486
(1951)).
However, it is well established that “artificial entities,” such as corporations,
are not protected by the Fifth Amendment. Braswell v. United States, 487 U.S. 99,
102 (1988). Representatives of a collective entity act as agents, and the official
records of the organization that are held by them in a representative rather than a
personal capacity cannot be the subject of their personal privilege against selfincrimination,
even though production of the papers might tend to incriminate them
personally (known as the “collective entity rule”). Id. at 99–100, 107. The
“collective entity rule” applies regardless of the entity’s size and regardless of
whether the subpoena is addressed to the entity or to the individual in the individual’s
capacity as the records’ custodian. Id. “Any claim of Fifth Amendment privilege
asserted by the agent would be tantamount to a claim of privilege by the corporation,
which possesses no such privilege.” Id. at 100, 110.1 A corporate custodian may not
resist a subpoena for corporate records on Fifth Amendment grounds, even though
the act of production may incriminate the custodian. Id. at 108–113. “An individual
cannot rely upon the [Fifth Amendment] privilege to avoid producing the records of
a collective entity which are in [the individual’s] possession in a representative
capacity, even if these records might incriminate [the individual] personally.” Bellis
v. United States, 417 U.S. 85, 88 (1974). The “collective entity rule” applies even if
the subpoena or document request is addressed to an individual who has custody of
corporate records, rather than to the corporation.2

Corporate documents are (i) those prepared by an employee, officer, director,
representative or agent of the corporation in furtherance of her or his corporate duties
and responsibilities, or (ii) those sent, received, used or maintained by an officer,
director, employee, agent or representative of the corporation in the course of its
business. See In re Grand Jury Investigation, Special Grand Jury No. II, 600 F.
Supp. 436, 438 (D. Md. 1984); In re Grand Jury 89-4 Subpoena Duces Tecum, 727
F. Supp. 265, 269–70 (E.D. Va. 1989). The following nonexhaustive list of criteria
is relevant to determining whether a document is corporate or personal in nature:
who prepared the document; the nature of its contents; its purpose or use; who
possessed it; who had access to it; whether the entity required its preparation; and
whether its existence was necessary to or in furtherance of the entity’s business. See
In re Grand Jury Proceedings, 55 F.3d 1012, 1014 (5th Cir. 1995); Grand Jury
Subpoena Duces Tecum Dated April 23, 1981 Witness v. United States, 657 F.2d 5,
8 (2d Cir. 1981); United States v. Wujkowski, 929 F.2d 981, 984 (4th Cir. 1991).

B. Russo has not shown that the withheld documents are not business
entity records, for which there is no Fifth Amendment privilege.

The withheld documents consist almost entirely of emails either to or from
Russo at a Yahoo email account. In its motion to compel, the Superior Parties
correctly argued that Russo may not withhold emails in his custody that are records
of his corporate entities. See e.g., Bellis, 417 U.S. at 88; In re Grand Jury Subpoena,
593 F.3d 155, 157–58 (2d Cir. 2010) (the custodian of corporate records, who acts
as a representative of the corporation, cannot refuse to produce corporate records on
Fifth Amendment grounds; this rule holds true regardless of whether the subpoena
is directed to the corporation or to the custodian in the custodian’s representative
capacity).

The burden is on the party asserting a privilege from discovery to produce
evidence concerning the applicability of the privilege. Peeples v. Fourth Supreme
Judicial District, 701 S.W.2d 635, 635 (Tex. 1985) (orig. proceeding). “The party
who seeks to limit discovery by asserting a privilege has the burden of proof.” In re
E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig.
proceeding). It is relator’s burden to establish the applicability of the Fifth
Amendment privilege. Batson v. Rainey, 762 S.W.2d 717, 720 (Tex. App.—Houston
[1st Dist.] 1988, no writ). A person asserting the Fifth Amendment privilege to the
production of documents has the burden to prove that the documents are personal,
rather than corporate. See Wujkowski, 929 F.2d at 984; In re Grand Jury 89-4
Subpoena Duces Tecum, 727 F. Supp. at 270; In re Grand Jury Investigation, Special
Grand Jury No. II, Sept. Term, 1983, 600 F. Supp. at 438.
In his briefing, Russo alleges that none of the emails he withheld are records
of the entities he owned or controlled. In support of this allegation, Russo cites only
the statement of his counsel at the hearing that Russo will be producing any corporate
records that Russo has in his possession pertaining to Triple RR Investment, LLC or
any of the other entities which he owns or controls. However, unsworn statements
by counsel, such as this, are not evidence. See Daugherty v. Jacobs, 187 S.W.3d 607,
619 (Tex. App.—Houston [14th Dist.] 2006, no pet.); In re Butler, 987 S.W.2d 221, 225
(Tex. App.—Houston [14th Dist.] 1999, orig. proceeding).

Further, there is evidence that the withheld emails likely are records of an
entity because they were sent or received by Russo, as an agent of an entity, in the
course of the entity’s business. See In re Grand Jury Investigation, Special Grand
Jury No. II, 600 F. Supp. at 438. Many of the emails, which Russo initially withheld
under the Fifth Amendment but later produced, are emails to or from a Yahoo
account that relate to the business of one or more of Russo’s corporate entities. For
example, in one email, Russo sends an invoice from his wholly owned entity, Gulf
Coast Wireline, LLC, to obtain payment from a Stabil Drill vendor, Basket
Specialties, LLC, also an entity that Russo allegedly owned. A second email shows
that Russo used the Yahoo account to communicate with Stabil Drill vendor, E&M
Supply Group, and to invoice this vendor for consulting services by Longhorn Bits,
LLC, another entity that Russo allegedly owned. In a third email from the Yahoo
account, Russo expresses his desire to include LeBlanc in “Pro” (short for
“Procyon,” another vendor of Stabil Drill that Russo allegedly owned). The Superior
Parties allege in their petition that Russo and Chris Hart received direct kickbacks
of over $500,000 from Procyon for its basket sales to Stabil Drill. Russo also sent
an email from this account to attempt to convince a vendor to bill Stabil Drill for
services that were not performed; Russo states in his email to the vendor’s
representative that “nobody outside of you and I would know anything about our
agreement.” Thus, it is clear that Russo used the Yahoo account to conduct the
business of corporate entities which the Superior Parties allege Russo used to
execute his fraudulent schemes.

Additionally, in the privilege logs, Russo states that each of the documents
relate to either the “alleged kickback” or the “alleged unreported related party
transactions.” Russo acknowledges in his mandamus petition that the Superior
Parties allege that “Russo and other co-defendants created several entities to engage
in and profit from undisclosed related-party transactions from which they received
kickbacks and other remuneration.” The Superior Parties allege in their petition that
several vendors of Stabil Drill paid kickbacks to Russo’s entities, including Ragin
Rentals, Longhorn Bits, Prime 337, and Gulf Coast Wireline, among others. The
Superior Parties further allege that Russo’s entities, Basket Specialties, LLC and TriEagle
NDT Services, LLC, misrepresented and concealed their “related party” status
when transacting business with Stabil Drill to induce the company to enter into
business with them. Because the “alleged kickbacks” and the “alleged unreported
related party transactions” were paid to or done with entities that Russo allegedly
owned or controlled, it reasonably may be inferred that the withheld documents
constitute records of one of these entities.

Thus, there is evidence in the record that Russo used the Yahoo account to
conduct business of his corporate entities and that the emails in this account are
likely or may be corporate records. Russo had the burden to prove that each of the
documents he withheld are personal and not a record of one of his corporate entities.
See In re E.I. DuPont de Nemours & Co., 136 S.W.3d at 223; Wujkowski, 929 F.2d
at 984. Russo has not done so.3

CONCLUSION

“An individual cannot rely upon the [Fifth Amendment] privilege to avoid
producing the records of a collective entity which are in his possession in a
representative capacity, even if these records might incriminate him personally.”
Bellis, 417 U.S. at 88. Russo has not shown that the documents he withheld are not
records of a corporate entity within his possession or that the Fifth Amendment actof-production
privilege applies to these documents. Accordingly, we deny Russo’s
petition for writ of mandamus and lift our partial stay of the March 20, 2018 order.

/s/ Tracy Christopher
 Justice

Panel consists of Chief Justice Frost and Justices Christopher and Jamison.

Last week, the Texas Supreme Court blessed the federal Sham Affidavit Doctrine, denominated it a "rule", and incorporated it into rule 166a of the Texas Rules of Civil Procedure without bothering to resort to the rule-revision process. Albert Lujan d/b/a Texas Wholesale Flowers Co. v. Navistar Inc., et al. (Tex. Apr. 27, 2018).

Using its power of say-so, the Court established by fiat a new statewide rule to the effect that a controverting summary judgment affidavit may be ignored by trial courts when deemed not to be credible on account on inconsistencies with other evidence. 

High court critics will have no trouble diagnosing yet another egregious example of results-oriented disposition. Since the new rule may short-cut a case either for the plaintiff or the defendant, however, it may yet come back to bite the very types of parties whose interests the Texas Supreme Court is famously fond of protecting and promoting.  

The Court's sham-affidavit opinion--written by Governor Abbott's latest addition to the all-Republican terminal state appellate court for all matters civil--comes in a case that has a good claim to being just about the worst vehicle to annunciate the viability of doctrine in Texas. 

The supposed "sham affidavit" at issue in Lujan v Navistar Inc. did not even contradict prior deposition testimony on the key issue; the court endeavored to rely on oral argument by counsel (which is not evidence) to beef up the claim that inconsistent representations were made; and it additionally treated unsigned documents of a third-party corporate intervenor as being material to the supposedly sham nature of the testimony of the plaintiff suing in his own name as a natural person. As if the corporation were not a separate entity distinct from the owner(s). As if a third party's pleadings and documents could bind another party. Not to mention a third party intervenor that was removed from the pending case. 

In her appropriately vigorous dissent in the intermediate court of appeals (there was no dissent among the Supremes), Justice McCally additionally pointed out that the existing Texas summary judgment rule provides remedies for false affidavits (attorney fees and contempt), and that the exclusion of the affidavit based on the sham affidavit doctrine by the Harris County district judge in the court below was not authorized because the Houston Court of Appeals had never recognized its validity. 

The Supremes have now "fixed" that. 

DISSENTING OPINION BY JUSTICE MCCALLY IN THE HOUSTON COURT OF APPEALS 

I. Summary of the Dissent

• We should reject the sham affidavit doctrine as it is contrary to Texas Supreme Court precedent and without support in the Texas Rules of Civil Procedure; and

• Even if we adopt the sham affidavit doctrine, as the Majority does, the doctrine does not—by its terms—apply to the evidence in this case.

II.

We should reject the sham affidavit doctrine as contrary to Texas Supreme Court precedent and the Texas Rules of Civil Procedure.

A. Inception of the Sham Affidavit Doctrine

• lies from the outset of the litigation, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 522 (1993) ("[P]erjury may purchase the defendant a chance at the factfinder [but] it also carries substantial risk.");

• lies in a deposition after telling the truth in that same deposition, see Duffield v. Periman, No. 01-98-01131-CV, 1999 WL 1018180, at *3-4 (Tex. App.-Houston [1st Dist.] Nov. 10, 1999, no pet.) (not designated for publication) (contradictions within the false-imprisonment plaintiff's deposition about whether she was voluntarily or involuntarily detained created a fact question);

• lies on an errata sheet within twenty days after telling the truth in a deposition, see Tex. R. Civ. P. 203.1(b);

• lies in the post-deposition summary judgment affidavit, explaining that he was "confused" in his deposition when he provided the contradictory, truthful testimony, see Farroux, 962 S.W.2d at 111 n.1.

B. Stare decisis demands that we reject the sham affidavit doctrine

Having reviewed the different line of cases, we conclude that a court must examine the nature and extent of the differences in the facts asserted in the deposition and the affidavit. If the differences fall into the category of variations on a theme, consistent in the major allegations but with some variances for detail, this is grounds for impeachment, and not a vitiation of a later filed document. If, on the other hand, the subsequent affidavit clearly contradicts the witness's earlier testimony involving the suit's material points, without explanation,[^[6]] the affidavit must be disregarded and will not defeat the motion for summary judgment.

C. Rule 166a does not authorize striking a sham affidavit.

Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

III.

The sham affidavit doctrine does not apply here because Lujan's affidavit is not contradicted by Lujan's prior sworn deposition.

The sham affidavit doctrine does not apply here because there is no contradictory summary judgment evidence on ownership (from anyone).

(1) the Corporation's judicial admission^[11] in support of its attempted intervention that Lujan's assets, including the trucks at issue, had been transferred to the Corporation;

(2) the Corporation's reliance on the section 351 election filed with its 2006 federal income tax return as evidence that Lujan had transferred all of the assets and liabilities of his sole proprietorship to the Corporation in exchange for 100% of the stock;

(3) Lujan's counsel's representations on behalf of the Corporation that the section 351 election and corporate tax returns demonstrated that Lujan's assets were transferred "lock, stock and barrel" to the Corporation in 2006; and

(4) the tax returns and banking documents reflecting that, contrary to Lujan's affidavit, the Corporation actively conducted business and engaged in banking transactions.

A. The Corporation's attempted intervention does not contradict Lujan's ownership affidavit.

In 2005 Plaintiff, Albert Lujan d/b/a Texas Wholesale Flower Co., purchased the CF600 trucks made the basis of his warranty claims. In 2007 Plaintiff involuntarily purchased the 4300M trucks that replaced the CF600 trucks.

On June 12, 2006, at his accountant's recommendation, Plaintiff made an IRS Section 351 election transfer. Pursuant to the election, Plaintiff transferred all of the assets and liabilities of Texas Wholesale Flower Co. to Texas Wholesale Flower Co., Inc., in exchange for 100% ownership of the stock. Hereto attached is the page from Intervenor's 2006 corporate return that indicates the exchange. Although the return reflects the trucks were transferred, legal title was not transferred. Plaintiff continued to conduct business without change. Because of the Section 351 exchange, Intervenor believes that it may have an interest in this dispute.

B. The "Section 351 Election" form does not contradict Lujan's ownership affidavit.

C. "Counsel's representations" on behalf of the Corporation are not summary judgment evidence at all and, thus, do not contradict Lujan's ownership affidavit.

D. The Corporation's records, indicating it is "actively conduct[ing] business and engag[ing] in banking transactions," do not contradict Lujan's ownership affidavit.

• Lujan never testified or swore, in any form, before or after he signed the ownership affidavit, to anything that contradicts his statement that he did not transfer legal title to the subject trucks; and

• even if we credit all of the other summary judgment evidence and then pretend it was spoken by Lujan himself, it still does not contradict the ownership statements in his affidavit.

V.

Conclusion

Trial court order at issue in Lujan Case

Offord v. West Houston Trees, Ltd. No. 14-16-00532-CV (Tex.App.- Houston [14th Dist.] April 19, 2018) (trial court judgment vacated for lack of jurisdiction, rather than reversed and rendered).

DIANA G. OFFORD AND DIOGU KALU DIOGU II, Appellants,
v.
WEST HOUSTON TREES, LTD., Appellee.

No. 14-16-00532-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Memorandum Opinion filed April 19, 2018.

MEMORANDUM OPINION

BACKGROUND

ANALYSIS

CONCLUSION

To err is human, to have it pointed out to you by the court of appeals [with sic or sans] not so divine; to catch the court of appeals making an error itself precipitates a slight bout of Schadenfreude. 

Holier than Chau

14th COA finds fault with Harris County Clerk's failure to submit a pdf-searchable clerk's record, but orders Harris County District Clerk (Chris Daniel) rather than County Clerk (Stan Stanart) to fix the problem. 

Not that everything always goes smoothly in the high-volume District Clerk's office. Sometimes, overtime is required, perhaps even a three extra weeks in a month to get it all the rubber-stamping done. See below: 

Duly Filed on April 55, 2016 -- That ought to be Deemed Timely.

Atkins v. Schultz No. 01-16-00864-CV (Tex.App. - Houston [1st Dist.] April 2018) (concluding no-evidence summary judgment was properly granted for attorney in legal-mal suit).
Trial Court: 165th District Court Harris County, Texas Trial Court Case No. 2013-31227

STINAL ATKINS, Appellant,
v.
JOSEPH BERNARD SCHULTZ, Appellee.

No. 01-16-00864-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued April 19, 2018.

MEMORANDUM OPINION

BACKGROUND

PROPRIETY OF SUMMARY JUDGMENT

The Trial Court Erred in Granting the Appellee's Motion for Summary Judgment, as the Appellant Did Prove that a Genuine Issue[] of Fact Existed.

Standard of Review

Legal Malpractice

Damages

Breach of Fiduciary Duty

CONCLUSION

R. Hassell & Company, Inc. v. Springwoods Realty Co, Harris County Improvement Dist #18, Walter P. Moore, Inc, and Costello, Inc. No. 01-17-00154-CV (Tex.App. - Houston [1st Dist.] April 19, 2018) (order striking intervention in pending lawsuit affirmed)

Trial court: 333rd District Court Harris County, Texas Trial Court Case No. 2012-42981

R. HASSELL & COMPANY, INC. AND R. HASSELL BUILDERS, INC., Appellants,
v.
SPRINGWOODS REALTY COMPANY, HARRIS COUNTY IMPROVEMENT DISTRICT #18, WALTER P. MOORE, INC., AND COSTELLO, INC., Appellees.

No. 01-17-00154-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued April 19, 2018.

MEMORANDUM OPINION

Background

Intervention

Standard of Review and Legal Principles

Timeliness and Multiplication of Issues

Conclusion

Marathon Petroleum Company LP v Cherry Moving Company, Inc. No. 14-16-00634-CV (Tex.App.- Houston [14th Dist] May 1, 2018) (summary judgment in bill of review case reversed on issue of official mistake by clerk in mailing notice of intent to dismiss to wrong address for company's attorney).

Cherry's "Top Gun" at demolition site in Houston

v.
CHERRY MOVING COMPANY, INC., Appellee.

No. 14-16-00634-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Opinion filed May 1, 2018.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Case

B. Marathon's Petition for Equitable Bill of Review

C. Cherry's Summary-Judgment Motion

(1) There is no evidence of fraud, accident, or a wrongful act by Cherry or of official mistake;

(2) There is no evidence that the trial court's 2015 dismissal of the Underlying Case was unmixed with any fault or negligence on Marathon's part;

(3) The summary-judgment evidence proves as a matter of law that there was no official mistake nor was there any fraud, accident, or wrongful act by Cherry; and

(4) The summary-judgment evidence proves as a matter of law that the trial court's 2015 dismissal of the Underlying Case was mixed with fault or negligence on Marathon's part.

D. Marathon's Summary-Judgment Response

Updating of Address in Galveston County Attorney Register

Status Letters with Updated Address in Court's File

E. The Trial Court's Ruling

II. ISSUES AND ANALYSIS

A. What bill-of-review elements are at issue in this appeal?

B. Does any statute or rule establish how a trial court clerk should determine which address to use for notices under Rules 165a and 306a?

1. Failure to Appear. A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket. . . Notice of the signing of the order of dismissal shall be given as provided in Rule 306a. Failure to mail notices as required by this rule shall not affect any of the periods mentioned in Rule 306a except as provided in that rule.

"Every notice required by these rules . . . other than the citation to be served upon the filing of a cause of action and except as otherwise expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record in the manner specified below: . . . (2) Documents Not Filed Electronically. A document not filed electronically may be served in person, mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct."

C. Must a counsel of record have filed a notice of address change in the case before counsel may complain that the court clerk failed to send a notice to counsel's new address?

D. Are trial court clerks precluded from using attorney registers as an administrative convenience in determining the address the clerk should use in sending notices?

E. Does the summary-judgment evidence raise a fact issue as to whether the District Clerk committed an official mistake by failing to send the DWOP Notice and the Rule 306a Notice to the registry address?

F. Does the summary-judgment evidence raise a fact issue as to whether the alleged official mistake by the District Clerk was unmixed with any fault or negligence on Marathon's part?

III. CONCLUSION

Justice Harvey Brown reminds appellate attorney that a heavy workload is no excuse not to timely complete and file a client's brief after multiple extension have already been granted in several pending cases to accommodate the attorney's time crunch issues.  

In the Interest of A. T. O. Jr., child,
v.
Department of Family and Protective Services.

No. 01-18-00173-CV.

Court of Appeals of Texas, First District, Houston.

May 2, 2018.

ORDER

Houston COA Justices disagree whether trial court's conclusion regarding attorney's lack of authority (resulting from challenged attorney's failure to file a response to Rule 12 motion) in the trial court applies on appeal. Chief Justice Frost would hold that Rule 12 of the Texas Rules of Civil Procedure should be invoked on appeal in the absence of a similar means to challenge attorney's authority under the Texas Rules of Appellate Procedure (TRAP). 

Rule 12 of the TRCP

TRANSAMERICA CORPORATION, Appellant,
v.
BRAES WOODS CONDO ASSOCIATION INC., Appellee.

No. 14-16-00880-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Order filed April 24, 2018. 

ORDER

Cooper v. Trent, No 14-17-00017-CV(Tex.App. - Houston [14th Dist. May 1, 2018])

LORI ELISE COOPER, Appellant,
v.
MICHAEL E. TRENT, Appellee.

No. 14-17-00017-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Opinion filed May 1, 2018. 

OPINION

Background

A. Criminal Proceedings against Cooper

B. Cooper's Civil Lawsuit

Standard of Review

1. Lori Cooper's causes of action have no basis in law or in fact because her claims, taken as true, together with inferences reasonably drawn from them, do not entitle her to the relief she seeks.

2. Lori Cooper is estopped from filing suit against Michael Trent because her claims are based on factual allegations that are inconsistent with her judgment of conviction for murder in the 179th District Court and with the factual findings of the First Court of Appeals in Cooper v. State, Cause No. 01-05-00764-CR, 2006 WL 2974366 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd).

3. Public policy forecloses . . . Cooper, as a convicted individual, from seeking civil recovery for being wrongfully convicted unless and until she is exonerated. Because Cooper has not been exonerated, she cannot bring suit against Trent based on facts alleging that she was wrongfully convicted.

Analysis

A. Rule 91a Specificity Requirements

B. Whether Cooper's Claims Have a Basis in Law or Fact

Conclusion

In the Estate of Annie Ruth Danford, Deceased. NO. 14-16-00972-CV (Tex.App.- Houston [14th Dist.] May 1, 2018)

Courts have concluded that a will proponent established testamentary capacity when witnesses testified that the testator had sufficient mental ability at the time he executed the will to understand that he was making a will and the will’s effect. See, e.g., In re Estate of Hemsley, 460 S.W.3d 629, 635-37 (Tex. App.—El Paso 2014, pet. denied) (two lawyers testified that they met with testator shortly before will was signed and testator “was in full possession of his faculties,” lawyer who drafted will went over each provision of will in detail with testator, witnesses to will had both known testator for several years and stated testator understood the will and what he was doing); In re Estate of Arrington, 365 S.W.3d 463, 468 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (subscribing witnesses, one of whom had known testator for twenty years, testified that testator was of sound mind when he signed the will; notary stated testator told her “he was signing his will and that it needed to be notarized”; testator’s sisters testified that testator “maintained his mental faculties until his death”); In re Estate of Vackar, 345 S.W.3d 588, 595-96 (Tex. App.— San Antonio 2011, no pet.) (testator’s long-term friend testified that testator had discussed his desire to leave all his property to his sister—to the exclusion of other potential heirs; nurse testified that will was read aloud to testator before he signed it and she believed that testator “understood what he was doing when he signed his will”).

Jennifer Ann Larkins-Ruby, proceeding pro se, attempts to appeal from an
interlocutory order denying her motion to recuse the trial court judge. Appellees
have filed a motion to dismiss the appeal for lack of jurisdiction, asserting that a
final judgment has not issued in the case and an interlocutory appeal of the order is
2
not authorized. Appellant’s response failed to demonstrate a basis for our court’s
jurisdiction over the appeal. We grant appellees’ motion and dismiss the appeal.

Generally, appellate courts have jurisdiction only over appeals from final
judgments. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); N.E.
Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). A judgment is final
for purposes of appeal if the judgment disposes of all pending parties and claims
before the trial court. Aldridge, 400 S.W.2d at 895. The clerk’s record filed in this
appeal does not show, and appellant has not asserted, that the trial court has signed
a final judgment that disposes of all parties and claims before the Court.

An appellate court also has jurisdiction to consider an appeal from an
interlocutory order if a statute explicitly provides jurisdiction. Stary v. DeBord, 967
S.W.2d 352, 352–53 (Tex. 1998); see, e.g., TEX.R.CIV. PROC. § 51.014 (authorizing
appeals from certain interlocutory orders). But no statute authorizes an appeal from
an interlocutory order denying a motion to recuse. See Rizk v. Gray, No. 01–16–
00374–CV, 2016 WL 7104020, at *1 (Tex. App.—Houston [1st Dist.] Dec. 6, 2016,
no pet.) (mem. op.). To the contrary, Texas Rule of Civil Procedure 18a(j)(1)(A)
expressly provides that “[a]n order denying a motion to recuse may be reviewed only
for abuse of discretion on appeal from the final judgment.” TEX. R. CIV. PROC.
18a(j)(1)(A); see Rizk, 2016 WL 7104020, at *1 (explaining interlocutory order
denying motion to recuse “is appealable only on appeal of the final judgment”). We,
3
thus, lack jurisdiction over appellant’s attempted appeal of the order denying her
motion to recuse.

Accordingly, we dismiss the appeal for lack of jurisdiction. We dismiss any
other pending motion as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

Toth v. Sears Home Improvement Products, Inc. 
No. 14-17-00615-CV (Tex.App. - Houston [14th Dist.] May 10, 2018) (Denial of Motion to dismiss under the Texas Citizens Participation Act reversed, commercial speech exception found inapplicable). 

JOHN TOTH, INDIVIDUALLY AND D/B/A ARTISTIC FLOORING, Appellant,
v.
SEARS HOME IMPROVEMENT PRODUCTS, INC., Appellee.

No. 14-17-00615-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Opinion filed May 10, 2018.

OPINION

Background

18. Confidential Business Information

(a) `Confidential Business Information' means any information, whether disclosed in oral, written, visual, electronic or other form, which Sears discloses or Contractor observes in connection with Contractor's performance of its obligations under this Agreement. Confidential Business Information includes, but is not limited to, work product; Sears business plans, strategies, forecasts and analyses; Sears financial information; Sears employee and vendor information; Sears software (including all documentation and code); hardware and system designs, architectures and protocols; Sears product and service specifications; Sears purchasing, logistics, sales, marketing and other business processes; and the terms and existence of the Agreement.

(b) Contractor shall use Confidential Business Information only as necessary to perform its obligations under this Agreement. Contractor shall restrict disclosure of Confidential Business Information to its employees, agents or authorized subcontractors who have a need to know such information to perform its obligations hereunder and who have first agreed to be bound by the terms of this Section 18. . . .

19. Confidential Personal Information

(a) Contractor agrees that all information about Sears Customers provided by Sears to Contractor, including but not limited to names, addresses, telephone numbers, account numbers, customer lists, and demographic, financial and transaction information ("Confidential Personal Information"), shall be deemed confidential.

(b) Contractor shall use Confidential Personal Information only as necessary to perform its obligations under the Agreement. Contractor shall not duplicate or incorporate the Confidential Personal Information into its own records or databases. Contractor shall restrict disclosure of Confidential Personal Information to its employees, agents or authorized subcontractors who have a need to know such information to perform its obligations hereunder and who have first agreed to be bound by the terms of this Section 19. . . .

(f) Contractor shall notify Sears promptly upon the discovery of the loss, unauthorized disclosure or unauthorized use of the Confidential Personal Information. . . .

21. Sears Customers

All Customers and all leads and prospects resulting from Sears work belongs to Sears and the Contractor agrees to notify Sears of all such prospective jobs or Customers. All leads and prospects resulting from Contractor's non-Sears work remain the property of the Contractor. Furthermore, Contractor acknowledges and agrees that it shall be deemed a material breach of this Agreement for Contractor to solicit, recommend or sell a non-authorized Sears product or a non-authorized Sears service to a Customer.

Analysis

A. Standard of Review and Governing Law

B. Exercise of Free Speech

C. Applicability of the Commercial Speech Exemption

to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.

(1) the defendant was primarily engaged in the business of selling or leasing goods,

(2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant's capacity as a seller or lessor of those goods or services,

(3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and

(4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides.

1. Toth's statements regarding Bostik

2. Toth's statements to Langham regarding her claim

D. Clear and specific prima facie evidence of breach of contract

The communications and interactions between Winifred Langham and John Toth did complicate [Sears's] efforts to resolve Winifred Langham's claims. Correspondence with Winifred Langham's counsel at the time suggested that there were forces influencing Winifred Langham in [Sears's] efforts to resolve her claims and ultimately caused settlement discussions at that time to cease. John Toth was communicating with Winifred Langham about Sears Home Improvement Products, Inc.'s efforts to resolve her claim.

E. Attorney's Fees and Expenses

Conclusion

Former SEARS location in Midtown (now closed)

In re Velvin Oil Company, Inc., No. 01-17-00384-CV (Tex.App. - Houston [1st Dist.] May 8, 2018) (petition for writ of mandamus conditionally granted directing trial court to set Velvin’s motion to transfer venue for a hearing and rule on the motion before proceeding with the request for a Rule 202 deposition).

IN RE VELVIN OIL COMPANY, INC., Relator.

No. 01-17-00384-CV.

Court of Appeals of Texas, First District, Houston.

Opinion on Rehearing issued May 8, 2018.

MEMORANDUM OPINION ON REHEARING

Background

Standard of Review

Trial Court Possesses Subject-Matter Jurisdiction

Trial Court Failed to Rule on Motion to Transfer Venue Promptly

Conclusion

Velvin Oil Company, Inc. seeks mandamus relief concerning the trial court’s
May 19, 2017 order granting a Rule 202 Petition and its failure to rule on Velvin’s
motion to transfer venue.1 We conclude that the trial court abused its discretion in
failing to rule on the motion to transfer venue before deciding the Rule 202 Petition.

1 The underlying case is In re: A.J.P. Oil Company, LLC d/b/a Grapeland Fuel &
BBQ, cause number 2017-20243, pending in the 61st District Court of Harris
County, Texas, the Honorable Fredericka Phillips presiding.
2
Accordingly, we conditionally grant the petition as it concerns the motion to transfer
venue. We deny relator’s other issues.2

Background
Velvin distributes diesel fuel, gasoline, and other related products to retailers
across Texas, including AJP. AJP originally sued Velvin in Houston County alleging
fraud, negligence, and other claims regarding the quality and merchantability of the
diesel fuel sold by Velvin. AJP further alleged in the Houston County petition that
Velvin committed fraud by overcharging AJP for fuel taxes.
Velvin filed a plea to the jurisdiction in the Houston County suit on the
overcharge claims, asserting that the trial court lacked subject-matter jurisdiction
because AJP failed to exhaust its administrative remedies. Specifically, Velvin
argued that AJP’s overcharge claims fell under the statutory provisions requiring tax
refund claims to be filed with the state comptroller. See Burgess v. Gallery Model
Homes, Inc., 101 S.W.3d 550, 558 (Tex. App.—Houston [1st Dist.] 2003, pet.
denied) (holding that Legislature has created exclusive means for obtaining refund
of improperly-collected taxes and trial court lacks jurisdiction if plaintiff has not

2 By opinion issued January 23, 2018, we granted Velvin’s petition for writ of
mandamus as it concerned the motion to transfer venue and denied it as to other
issues. Relator filed a motion for rehearing. We requested a response. Although we
deny the motion for rehearing, we withdraw our opinion of January 23, 2018, and
issue this opinion in its place. Our disposition remains unchanged.
3
exhausted administrative remedies under this legislative scheme); TEX. TAX CODE §
111.104 (procedure for requesting tax refund from comptroller).
The Houston County trial court granted the plea and dismissed AJP’s claims
concerning tax overcharges and its claims for common-law fraud and negligent
misrepresentation. The Houston County lawsuit remains pending as to AJP’s causes
of action regarding the quality and merchantability of the diesel fuel it purchased
from Velvin.
AJP later filed a Verified Rule 202 Petition in Harris County, seeking a
deposition to investigate claims “arising out of Velvin’s sale of diesel fuel and
collection of state diesel fuel taxes.” AJP argued that it was entitled to discovery on
whether Velvin was collecting and keeping for its own benefit amounts represented
to be fuel taxes paid to the refineries. Unlike in the Houston County petition, AJP
alleged in its Rule 202 Petition that it did not know whether Velvin kept any
overcharges for its own benefit.
Velvin filed an opposition to the petition, a motion to transfer venue, and a
motion to dismiss. Velvin argued that the issues raised in the Rule 202 Petition
mirrored those dismissed in the Houston County case. Velvin also filed a motion for
leave to set the venue motion on the same date as the hearing on the Rule 202
Petition, but the trial court denied the motion for leave. After a hearing, the trial court
4
granted the Rule 202 Petition but has yet to rule on Velvin’s motion to transfer
venue.
Standard of Review
To be entitled to mandamus relief, a petitioner must show both that the trial
court abused its discretion and that there is no adequate remedy by appeal. In re
Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004). Generally, appellate courts
will hold that a trial court has abused its discretion if its actions were either “without
reference to any guiding rules and principles” or “arbitrary or unreasonable.”
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Trial Court Possesses Subject-Matter Jurisdiction
While Rule 202.1(b) permits parties to petition the court for an order
authorizing a deposition to investigate a potential claim or suit, they generally may
not “obtain by Rule 202 what [they] would be denied in the anticipated action.” In
re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011); see In re DePinho, 505 S.W.3d 621,
623 (Tex. 2016). To properly obtain presuit discovery under Rule 202, the court
must have subject-matter jurisdiction over the anticipated action. Id.
Velvin asserted in the trial court, and asserts here, that AJP’s petition for
presuit discovery is an attempt to circumvent the Houston County lawsuit and to
avoid the statutorily-required administrative procedures, and thus, the Harris County
trial court lacks subject-matter jurisdiction. AJP responds that it is seeking to
5
discover “whether Velvin is collecting and keeping for its own benefit diesel fuel
taxes in excess of the pass through tax it pays to the refineries.”
Subject-matter jurisdiction is necessary to a court’s authority to decide a case.
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A
plaintiff must allege facts affirmatively showing the trial court has subject-matter
jurisdiction, id. at 446, and a party may challenge the lack of subject-matter
jurisdiction by filing a plea to the jurisdiction or by other means, including by motion
for summary judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000).
Whether a court has subject-matter jurisdiction is a question of law that we
review de novo. Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228
(Tex. 2004). When we conduct a de novo review, we exercise our own judgment and
re-determine legal issues, giving no deference to the trial court’s ruling. See Quick
v. Austin, 7 S.W.3d 109, 116 (Tex. 1998).
“When . . . an agency has exclusive jurisdiction, a party must exhaust his
administrative remedies before seeking judicial review of agency action.” Burgess,
101 S.W.3d at 558; see Oncor Elec. Delivery Co. LLC v. Chaparral Energy, LLC,
No. 16–0301, 2018 WL 1974336, at *8 (Tex. Apr. 27, 2018) (stating that “[w]hen
the Legislature creates a pervasive regulatory scheme, it intends for the agency with
the appropriate expertise to make important determinations before the parties take
6
their claim to the judicial system.”). Before a party has exhausted these
administrative remedies, “the trial court lacks subject-matter jurisdiction over the
dispute and must dismiss those claims within the agency’s exclusive jurisdiction.”
Burgess, 101 S.W.3d at 558.
To determine whether the trial court has subject-matter jurisdiction over
AJP’s claims, we must determine whether the Tax Code applies to those claims. If
so, “the Texas Legislature intended for the remedies and causes of action in the Tax
Code to be exclusive.” Id. AJP asserted in its Rule 202 Petition that Velvin
overcharged for fuel taxes, but stated that it “has no information as to whether Velvin
keeps any excess State diesel fuel taxes it collects for its benefit or pays such excess
funds to the State.” Indeed, AJP asserted in its petition that it seeks the deposition to
investigate “potential claims” including whether Velvin collects and keeps for its
own benefit any excess charges for fuel taxes.
In Burgess, this court held that the Tax Code provides the exclusive remedy
for an aggrieved taxpayer to obtain a refund of overcharged sales tax. Id. But at that
time, Section 111.104(b) provided that a tax refund claim could be filed with the
comptroller by the person who paid the tax. See id.; Rahmes v. Louis Shanks of Tex.,
Inc., No. 03–04–00298–CV, 2005 WL 3331620, at *3–4 (Tex. App.—Austin Dec.
9, 2005, no pet.) (stating that excess taxes were paid before amendment and thus,
prior statute and Burgess case applied); Serna v. H.E. Butt Groc. Co., 21 S.W.3d
7
330, 336 (Tex. App.—San Antonio 1999, no pet.) (op. on reh’g) (holding that
taxpayer may seek refund from state regardless of whether taxpayer paid tax directly
to state). The statute was amended in 2003 after Burgess was decided. See Act of
June 20, 2003, 78th Leg., R.S., ch. 1310, § 86, 2003 Tex. Gen. Laws 4748, 4782
(codified at TEX. TAX CODE § 111.104(b)).
The 2003 amendment3
changed who may file the claim for a refund—the
claim now may be filed “only by the person who directly paid the tax to this state or
by the person’s attorney, assignee, or other successor.” See TEX. TAX CODE
§ 111.104(b). AJP did not pay the taxes directly to the state; it paid them to Velvin,
which then paid all or some portion of them to the state. Thus, the only entity that
may seek a refund under the revised statutory scheme is Velvin or its assignee. See
id.; Levy v. Officemax, Inc., 228 S.W.3d 846, 850–51 (Tex. App.—Austin 2007, no
pet.) (consumer sued retailer to obtain assignment of retailer’s refund claim for
improperly paid taxes).
Our goal in construing the amended version of section 111.104(b) is to
implement the Legislature’s intent. Levy, 228 S.W.3d at 850. We may not presume
that the Legislature did a “useless act” when it amended Section 111.104(b). See id.
As amended, the statute precludes AJP from filing a refund claim with the state

3
It appears that the 2003 amendment applies here because Velvin did not begin
seeking allegedly overpaid taxes until 2016 based on the petitions included in our
record. The record does not disclose when the overcharges allegedly began.
8
because AJP did not directly pay the tax to the comptroller. See id.; TEX. TAX CODE
§ 111.104(b).
AJP may seek a refund from the comptroller only if it obtains an assignment
of Velvin’s rights. Thus, the comptroller would have no jurisdiction over a claim by
AJP at this time. Cf. Levy, 228 S.W.3d at 850 (stating that “statute precludes
[consumers] from filing . . . refund claim with the Comptroller”). And if the
comptroller would have no jurisdiction over a claim filed by AJP, it cannot be said
to have exclusive jurisdiction over it.
AJP seeks to discover whether Velvin paid any excessive funds to the
comptroller. If it discovers that Velvin did not pay any part of the alleged
overcharges to the state, then Section 111.104(b) would not apply. But even if AJP
discovers that Velvin did pay excess taxes to the comptroller, only Velvin would
possess a refund claim under Section 111.104(b), and AJP could not pursue those
funds unless Velvin assigns its claim for a refund to AJP. See Levy, 228 S.W.3d at
852. Because AJP has not yet discovered whether Velvin paid any excess funds to
the state, there is no showing that the statutory remedy under Section 111.104(b)
applies. Therefore, Velvin has not demonstrated that the trial court abused its
discretion in failing to dismiss AJP’s petition for failure to exhaust its administrative
remedies.
Trial Court Failed to Rule on Motion to Transfer Venue Promptly
9
AJP filed its Rule 202 Petition on March 24, 2017. Rule 202 permits a person
to petition the trial court for an order to take a deposition “to investigate a potential
claim or suit.” TEX. R. CIV. P. 202.1(b). The petition must be verified and filed
in the county where venue of the anticipated suit lies or where the witness resides,
if suit is not anticipated. See id. 202.2(a)-(b). AJP’s petition was set for a hearing on
May 19. Velvin timely filed its motion to transfer venue on April 28.
Velvin asserted that AJP failed to comply with Rule 202’s venue
requirements. See TEX. R. CIV. P. 202.2(b)(1)-(2). AJP responded that venue in
Harris County was proper because Velvin sells and delivers diesel fuel to retailers
all over Texas, including some operating in Harris County. A few days after filing
the motion to transfer, Velvin filed a motion for leave to set the motion to transfer
on the same date as the Rule 202 Petition hearing without the required 45 days’
notice or, alternatively, for a continuance of the Rule 202 Petition hearing. AJP
filed an opposition to Velvin’s motion to expedite consideration of the motion to
transfer venue.
In its response to Velvin’s mandamus petition, AJP asserts that the trial court
did not abuse its discretion because the party opposing a motion to transfer must
have the opportunity to obtain reasonable discovery. See TEX. R. CIV. P. 258 (trial
court shall allow reasonable discovery in support of, or in opposition to, motion
to transfer venue); Union Carbide Corp. v. Moye, 798 S.W.2d 792, 793 (Tex. 1990)
10
(trial court abuses its discretion by denying opponent of motion to transfer venue
opportunity to obtain reasonable discovery). AJP claimed in its opposition that by
requesting expedited consideration of its motion to transfer venue, Velvin was
attempting to strip AJP of its discovery rights under Rule 258.
But even if the trial court denied the motion to expedite consideration of the
motion to transfer based on AJP’s discovery rights, it was nonetheless required to
rule “promptly” on the motion to transfer venue as required by Rule 87(1). The trial
court did not rule “promptly” on the venue objection; it instead, ruled on the merits
of the case—the Rule 202 Petition—before determining venue.
Under Texas Rule of Civil Procedure 84, a trial court has broad discretion to
determine the order of proceedings, but that discretion is limited when deciding
motions to transfer venue. Glover v. Moser, 930 S.W.2d 940, 944 (Tex. App.—
Beaumont 1996, writ denied). A motion to transfer venue must be decided
“promptly.” See TEX.R.CIV. P. 87(1). The movant bears the burden of requesting
a setting on the motion to transfer. See id. Each party is entitled to 45 days’ notice
of a hearing on the motion to transfer except on leave of court. See id.
Once Velvin properly filed its motion to transfer venue and requested a
hearing, the trial court was required to hear the motion before ruling on the merits
of the case. See Glover, 930 S.W.2d at 944 (once movant filed motion to transfer
and obtained hearing, trial court required to hear and determine motion before
11
hearing motion for default judgment); see also Gordon v. Jones, 196 S.W.3d 376,
383 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (unless motion to transfer venue
is waived by untimely filing of motion, trial court must determine venue before
proceeding to matters relating to merits). Accordingly, it was an abuse of discretion
for the trial court not to determine the motion to transfer before determining the Rule
202 Petition. See Bench Co., Inc. v. Nations Rent of Tex., L.P., 133 S.W.3d 907, 908
(Tex. App.—Dallas 2004, no pet.) (trial court must determine motion to transfer
venue before determining merits).
Although an erroneous ruling on a motion to transfer venue is generally
reviewable on appeal, see Cone v. Gregory, 814 S.W.2d 413, 414–15 (Tex. App.—
Houston [1st Dist.] 1991, orig. proceeding) (op. on reh’g), an order granting a presuit
deposition when a subsequent suit is anticipated is not an appealable order. See In
re Jorden, 249 S.W.3d 416, 419 (Tex. 2008). Therefore, Velvin has no adequate
remedy by appeal under these facts.
Conclusion
Accordingly, we conditionally grant Velvin’s petition for writ of mandamus
and direct the trial court to set Velvin’s motion to transfer venue for a hearing and
rule on the motion before proceeding with the request for a Rule 202 deposition.
12
The petition is otherwise denied because, although the trial court ruled on the
merits before determining the venue issue was premature, we conclude no abuse of
discretion was shown in the trial court’s failure to dismiss for lack of subject-matter
jurisdiction. We are confident the trial courtwill complywith this opinion and the writ
will issue only if it does not. See TEX. R. APP. P. 52.8.
Harvey Brown
Justice
Panel consists of Justices Keyes, Brown, and Lloyd.

Mukoro v Jackson, No. 01-17-00466-CV (Tex.App. - April 19, 2018) (Prison employees granted qualified immunity from inmate's Section 1983 claim over retaliatory seizure of his typewriter).

Jackson alleges that a "Smith Corona XL-1000 typewriter" and an "$11.50 Holmes 10" White Box Fan" were seized from him in retaliation for his previously-filed Step 1 grievance alleging damage to those items while he was away from the unit on medical leave. 

Jackson cannot show an actionable retaliation claim under § 1983 because the adverse action alleged was de minimis. A § 1983 conspiracy claim is not actionable without an actual violation of § 1983

PRIYE T. MUKORO, CERSANDRA D. TEAGUE, AND DANNY R. MEYERS, Appellants,
v.
DONALD C. JACKSON, Appellee.

No. 01-17-00466-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued April 19, 2018.

MEMORANDUM OPINION

BACKGROUND

Jackson's claims derive from damage to a typewriter and box fan that had been in his possession. These and other items had been inventoried and placed in a prison storage facility while Jackson was away from his unit on medical leave. Jackson's pleadings allege that these items were damaged when they were returned to him after his medical leave, and that he requested repair or replacement of the items by pursuing a Step 1 grievance through the prison grievance system.

Jackson claims that prison officials "conspired" at that point to deprive him of the damaged typewriter and fan "in retaliation" for (1) previously filing a lawsuit in state court relating to "confiscation of [his] radio and headphone set" and (2) initiating the Step 1 grievance relating to the typewriter and box fan. Shortly thereafter, the typewriter and box fan were confiscated from Jackson's living area. The reason stated for the seizure on the prison's form was "ownership questioned." Jackson disputed that assertion in the Step 2 grievance he filed at that point, in which he claimed (1) "that his property was confiscated in retaliation for the exercise of his right of access to the courts and for use of the prison grievance [system]," and (2) that he was in "possession of documentation" showing his authority to possess the typewriter and fan.

Jackson's pleadings allege that while the Step 2 grievance was pending, prison officials conspired to delete the documents establishing his rightful possession from prison records, with the result that his grievance was resolved in a report stating that, "after further investigation[, Jackson] never owned the property . . . in question, and therefore it will be disposed of in accordance with Administrative Directive 03.72."

QUALIFIED IMMUNITY

Law Applicable to Qualified Immunity in § 1983 Cases

Retaliation

Under the third prong of [the test set forth in Morris v. Powell], acts of retaliation that are de minimis do not satisfy the "retaliatory adverse act" requirement. Id. at 684-85. "To establish a constitutional violation, an inmate must show that he suffered a qualifying adverse retaliatory act," and "[i]f the retaliation alleged . . . does not pass this bar, he has suffered no constitutional injury." Id. at 684.

In making this determination, the Fifth Circuit has adopted the standard first set forth in Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996): an inmate's retaliation claim must allege adverse acts "that `would chill or silence a person of ordinary firmness from future First Amendment activities.'" See Morris, 449 F.3d at 685-86 (quoting Britton, 93 F.3d at 826); see also Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999) (adopting the same standard). Thus, an inmate's job transfer from the commissary to the kitchen was de minimis, while his transfer to a more dangerous prison was not. Morris, 449 F.3d at 687; see also Bibbs v. Early, 541 F.3d 267, 271-72 (5th Cir. 2008) (subjecting inmate to below-freezing temperatures for more than four hours during each of four consecutive nights was more than de minimis); Leggett v. Comer, 280 Fed. Appx. 333, 336 (5th Cir. 2008)(purported confiscation of more than $11,000 of inmate's personal property was not de minimis).

As an additional basis for concluding that Jones's claims have no arguable basis in law, we add that this Court, among several others, has employed the doctrine of de minimis non curat lex—that is, "[t]he law does not concern itself with trifles"—to affirm the dismissal as frivolous of suits brought by inmates over the claimed confiscation by prison employees of property having insignificant value. Black's Law Dictionary 496 (9th ed.2009); see Brown v. Cockrell, No. 07-03-00139-CV, 2005 Tex. App. LEXIS 2131, at *5-6, 2005 WL 645944 (Tex. App.-Amarillo Mar. 21, 2005, no pet.) (mem.op.) (finding doctrine applicable when inmate sought recovery for confiscation of postage stamps); Hammonds, 2004 Tex. App. LEXIS 3293, at *5, 2004 WL 769373 (applying doctrine when inmate sued to recover for loss of two shower shoes, two chess sets, and a sweatshirt); Pennington v. Peterson, No. 13-96-00344-CV, 1998 Tex. App. LEXIS 573, at *5-6, 1998 WL 35277005 (Tex. App.-Corpus Christi Jan. 29, 1998, pet. denied) (concluding the law did not concern itself with inmate's claim seeking recovery of $3.15 for property confiscated upon arrival at new prison unit); Smith v. Stevens, 822 S.W.2d 152, 152 (Tex. App.-Houston [1st Dist.] 1991, writ denied) (concluding that the law was not concerned with claims involving the confiscation of a coffee bag and two packs of cigarettes); Thompson, 814 S.W.2d at 812 (finding trial court could have invoked doctrine when inmate sought recovery for the conversion of five highlighters, an extension cord, four small wooden picture frames, a stainless steel pen and pencil set, a mirror, three hospital bracelets, and a fan). Any error associated with the dismissal would be harmless because the amount of damages sought is insignificant. See Hammonds, 2004 Tex. App. LEXIS 3293, at *5-6, 2004 WL 769373; Smith, 822 S.W.2d at 152.

The trial court could have concluded that, based on the same doctrine, Jones's claims seeking compensation for or the return of two and one-half bags of coffee, five pens, and a padlock were de minimus and therefore lacked an arguable basis in the law when the law does not concern itself with such a trifling matter.

Conspiracy to Retaliate

CONCLUSION

Clemons v. State of Texas, NO. 01-16-00336-CV (Tex.App. - Houston [1st Dist.] May 22, 2018) (out-of-time motion for rehearing denied based on expiration of plenary power over the judgment).

Justice Massengale writes separately to suggest that the Court of Criminal Appeals provide relief to mitigate the problem caused by administrative error.

Comment: Errors happen. It would be desirable for the rules of appellate procedure to provide a remedy for such occurrences, i.e. an exception to expiration of plenary power in circumstances where the parties were not given notice of issuance of the judgment, and therefore missed the deadline to file a motion for rehearing or for en banc consideration, or a timely petition to the relevant court of last resort.
Appellant, Louis R. Clemons, an inmate proceeding pro se, moves to recall
this Court’s mandate, seeking to file an out-of-time motion for rehearing in this
Court and an out-of-time petition for discretionary review in the Texas Court of
Criminal Appeals. See TEX. R. APP. P. 18.7.

We deny appellant’s motion.

A jury found appellant guilty of the offense of aggravated robbery. After
finding true the allegations in the enhancement paragraphs that he had twice
previously been convicted of felony offenses, the jury assessed his punishment at
confinement for 99 years. On August 17, 2017, this Court affirmed the judgment of
the trial court. Clemons v. State, No. 01-16-00336-CR, 2017 WL 3526721, at *9
(Tex. App.—Houston [1st Dist.] Aug. 17, 2017, no pet.) (mem. op., not designated
for publication). Any motion for rehearing was due by September 1, 2017. See TEX.
R. APP. P. 49.1. A petition for discretionary review, if any, was due by September
18, 2017. See TEX. R. APP. P. 68.2(a). There being no motion for rehearing or
petition for discretionary review filed, our plenary power over our judgment expired
on October 16, 2017. See TEX. R. APP. P. 19.1(a). We issued our mandate on
October 27, 2017.

Appellant asserts that he was not afforded an opportunity to timely file a
motion for rehearing in this Court or to timely file a petition for discretionary review
in the Court of Criminal Appeals because he did not receive notice of this Court’s
August 17, 2017 opinion and judgment. This Court’s records reflect that, due to an
administrative error, notice of the opinion and judgment was not sent to the parties.
Appellant, seeking to file an out-of-time motion for rehearing in this Court and an
out-of-time petition for discretionary review in the Court of Criminal Appeals,
requests that this Court withdraw its mandate.

We deny appellant’s request to file an out-of-time motion for rehearing.

Because this Court’s plenary power has expired, we are without jurisdiction to
vacate or modify our judgment. See TEX. R. APP. P. 19.1, 19.3.

Only the Court of Criminal Appeals may enlarge the time for filing a petition
for discretionary review. TEX. R. APP. P. 68.2(c). Consequently, the Court of
Criminal Appeals is the proper forum to grant such an extension of time. Should the
Court of Criminal Appeals grant appellant leave to file an out-of-time petition for
discretionary review, this Court will withdraw its mandate as directed by the Court
of Criminal Appeals. See Ex parte Webb, 270 S.W.3d 108, 111 (Tex. Crim. App.
2008) (holding court of appeals not required to recall its mandate for defendant to
seek out-of-time petition for discretionary review). We decline to withdraw our
mandate at this time. See id.; see also TEX. R. APP. P. 19.3 (providing that court of
appeals “may” recall its mandate). Accordingly, the motion to withdraw the
mandate is denied.

It is so ORDERED.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Keyes and Massengale.
Massengale, J., concurring.

Do not publish. TEX. R. APP. P. 47.2(b).


I concur in the court’s ruling, denying appellant Louis R. Clemons’s motion
to recall and reissue our mandate. The requested relief would not have the effect of
reinstating our plenary power over the appeal, nor would it trigger a new opportunity
for Clemons to file petition for discretionary review, as his motion suggests. See
TEX. R. APP. P. 19.1 (expiration of plenary power of court of appeals); TEX. R. APP.
P. 68.2 (time to file PDR). Rather, as the court’s order correctly suggests, the
appropriate procedure is for Clemons to file a post-conviction application for a writ
of habeas corpus in the trial court. See TEX. CODE CRIM. PROC. art. 11.07; Ex parte
Valdez, 489 S.W.3d 462, 465 (Tex. Crim. App. 2016); Rodriguez v. Court of
Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d 554, 558–59 & n.3 (Tex. Crim.
App. 1989).

I respectfully suggest to future reviewing courts that if Clemons applies for
permission to file an out-of-time petition for discretionary review, such relief should
be granted in light of our court’s confession of administrative errors that,
unfortunately, significantly impaired his opportunity and ability to exercise his
postjudgment procedural rights to seek rehearing in the court of appeals and
discretionary review in the Court of Criminal Appeals. See TEX. R. APP. P. 48.1,
48.4; see also Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim. App. 2006) (in
circumstances of “a breakdown in the system” impairing applicant’s right to exercise
the statutory right to file a PDR, granting permission to file out-of-time PDR without
a determination that counsel rendered ineffective assistance).

Michael Massengale

Justice

Pichini v. Federal National Mortgage Ass'n aka FANNIE MAE, NO. 01-17-00519-CV (Tex.App. - Houston [1st Dist.] May 17, 2018)(dismissal by county court of attempted appeal from justice court affirmed)

Comment:Another quirk in the Texas judicial system. Appeals from JP courts have different deadlines and different requirements from appeals from county courts and district courts to the courts of appeals,  and - as illustrated here -- some of the differences have very harsh consequences because they are characterized as jurisdictional, leaving no room for discretion or cure.   

PETER Q. PICHINI, JR., Appellant,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE, Appellee.

No. 01-17-00519-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued May 17, 2018.

OPINION

Background

Standard of Review

Discussion

(a) How Taken; Time. A party may appeal a judgment by filing a bond, making a cash deposit, or filing a Statement of Inability to Afford Payment of Court Costs with the justice court within 21 days after the judgment is signed or the motion to reinstate, motion to set aside, or motion for new trial, if any, is denied.

. . . .

(h) Appeal Perfected. An appeal is perfected when a bond, cash deposit, or Statement of Inability to Afford Payment of Court Costs is filed in accordance with this rule.

(i) Costs. The appellant must pay the costs on appeal to a county court in accordance with Rule 143a.

If the appellant fails to pay the costs on appeal from a judgment of a [justice court] within twenty (20) days after being notified to do so by the county clerk, the appeal shall be deemed not perfected and the county clerk shall return all papers in said cause to the [justice court] having original jurisdiction and the [justice court] shall proceed as though no appeal had been attempted.

Conclusion

/s/ J. Brett Busby
Justice

Panel consists of Justices Christopher, Busby, and Jewell (Jewell, J., dissenting).

CRITICAL PATH RESOURCES, INC., Appellant,
v.
RICHARD CUEVAS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF NICOLAS OSCAR CUEVAS, DANIEL CUEVAS, NICOLAS CUEVAS, MARIA CUEVAS, GUADALUPE TORRES, BLANCA RODRIGUEZ, LUIS DE LOS SANTOS, BLAKE SMITH, AND TAMATHA SMITH, Appellees.

No. 14-16-00036-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Majority and Dissenting Opinions filed March 29, 2018.

MAJORITY OPINION

BACKGROUND

A. Mike Rivers of Critical Path serves as master scheduler for a turnaround of Valero's Memphis refinery.

B. Isolation and cleaning of the south flare line is not scheduled.

C. The turnaround begins and a belated plan to prepare the south flare line for work is not followed.

D. Work on the south flare line begins, an explosion occurs, and several workers are severely burned.

E. Valero completes the work and investigates the causes of the explosion.

F. The injured workers sue, a jury finds in their favor, and the trial court signs a judgment against Critical Path.

ANALYSIS

I. Sufficient evidence supports the jury's finding that Critical Path was negligent and that its negligence proximately caused appellees' injuries.

A. Standard of review and applicable law

B. Sufficient evidence supports the jury's finding that Critical Path breached its duty of ordinary care.

C. Sufficient evidence supports the jury's finding that Critical Path's breach was a cause-in-fact of appellees' injuries.

II. The trial court did not abuse its discretion by refusing to give an instruction on new and independent cause.

A. Standard of review and applicable law

(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;

(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;

(c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation;

(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act;

(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;

(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

B. The greatest relief Critical Path can receive based on its briefing regarding new and independent cause is a new trial.

C. Because the suggested intervening acts and omissions risk the same harm and are the very hazard that made Critical Path's scheduling failure negligent, they are not new and independent causes.

III. Sufficient evidence supports most, but not all, of the challenged awards of damages.

A. Standard of review

B. Future medical expenses

1. The jury's award to Daniel for future medical expenses is excessive.

2. Factually sufficient evidence supports the jury's award to Richard for future medical expenses.

3. Factually sufficient evidence supports the jury's award to Torres for future medical expenses.

4. Factually sufficient evidence supports the jury's award to Smith for future medical expenses.

C. Loss of future earning capacity

1. Factually sufficient evidence supports the jury's award to Richard for loss of future earning capacity.

2. Factually sufficient evidence supports the jury's award to de los Santos for loss of future earning capacity.

D. Factually sufficient evidence supports the jury's award for loss of household services to Blanca Rodriguez, Torres's wife.

E. Sufficient evidence supports the jury's award for pecuniary loss to Mr. and Mrs. Cuevas.

F. Factually sufficient evidence supports the jury's awards of non-economic damages to Daniel and Torres.

1. Daniel

2. Torres

F. Factually sufficient evidence supports the jury's awards of non-economic damages to the estate of Nico Cuevas.

G. The jury's awards of non-economic damages to Nico's parents are excessive.

In terms of — for Mr. and Mrs. Cuevas for — my numbers — there's lots of different blanks here, but my numbers total about 7 and a half million dollars. It's pecuniary loss in the past — there's not a lot of evidence of a lot of pecuniary loss, but there's a lot of loss of companionship and society and mental anguish that they have suffered in the past and that they're going to suffer in the future. Because it's obvious that Mrs. Cuevas is very close to her son; and so, I'm not doubting that at all. That's you know — those are very difficult numbers and very difficult things.

  Mr. Cuevas's loss of companionship in the past:      $500,000

  Mrs. Cuevas's loss of companionship in the past:     $750,000

  Mr. Cuevas's loss of companionship in the future:    $500,000

  Mrs. Cuevas's loss of companionship in the future:   $1,250,000

  Mr. Cuevas's mental anguish in the past:             $1,250,000

  Mrs. Cuevas's mental anguish in the past:            $1,000,000

  Mr. Cuevas's mental anguish in the future:           $750,000

  Mrs. Cuevas's mental anguish in the future:          $1,000,000

CONCLUSION

DISSENTING OPINION

Issue Presented

Standard of Review

Applicable Law

A. Proximate cause generally

B. Superseding cause

the crucial distinction between a superseding cause and a concurring cause is the intervening cause's effect on the chain of causation. In evaluating the existence of a superseding cause, "[t]he question always is, was there an unbroken connection? Would the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?"

(1) whether the intervening force brings about harm different in kind from that which otherwise would have resulted from the actor's negligence;

(2) whether the intervening force's operation or its consequences appear after the event to be extraordinary, rather than normal, in view of the circumstances existing at the time of the force's operation;

(3) whether the intervening force is operating independently of any situation created by the actor's negligence or is not a normal result of such a situation;

(4) whether the operation of the intervening force is due to a third person's act or to his failure to act;

(5) whether the intervening force is due to an act of a third person that is wrongful toward the other and thus subjects the third person to liability to him; and

(6) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

Analysis

In applying the test of foreseeability to situations where a negligently created preexisting condition combines with a later act of negligence causing an injury[,] there is a distinction between a situation in which one has created a dangerous condition and a later actor observes, or by the circumstances should have observed, the existence of the dangerous condition and a situation in which the dangerous condition is not apparent and cannot be observed by the actor. In regard to the first situation, the intervening act interrupts the natural sequence of the events and cuts off the legal effect of the negligence of the initial actor. This is based upon the premise that it is not reasonable to foresee or expect that one who actually becomes cognizant of a dangerous condition in ample time to avert the injury will fail to do so.

Background

Mandamus Standard of Review

Motion to Dismiss for Forum Non Conveniens

If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action. In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court shall consider whether:

(1) an alternate forum exists in which the claim or action may be tried;

(2) the alternate forum provides an adequate remedy;

(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;

(4) the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff's claims;

(5) the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state; and

(6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.

A. Undisputed Relevant Facts

B. Adequate Alternate Forum

C. Substantial Injustice

D. Jurisdiction over All Defendants

E. Public and Private Interest Factors

1. Public Interest Factors

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

the law of the local state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

2. Private Interest Factors

3. Acts or Omissions

F. Duplication or Proliferation of Litigation

G. Section 71.051(b) factors, as a whole

Conclusion