This blog has merged with its sister blog 600Commerce, on the 600Commerce site, consolidating my coverage of Texas state appellate law in one convenient place!
Author Archives: dscoale
How to serve a bank
“The Supreme Court of Texas recently determined that section 17.028 of the
civil practice and remedies code provides the exclusive means for service of process
on a financial institution. Section 17.028 requires service on the institution’s registered agent. The … court held that ‘service on the Secretary [of State] as a foreign
corporate fiduciary’s “agent” under [Estates Code] Chapter 505 does not constitute service on a financial institution’s “registered agent” for purposes of section 17.028.'”Bank of New York Mellon v. FFGGP, Inc., No. 05-20-00384-CV (March 11, 2022) (mem. op.) (citations omitted) (applying U.S. Bank, N.A. v. Moss, No. 20-0517 (Tex. Feb. 25, 2022)).
Minds Met About Arbitration
This is a cross-post from 600Commerce about a Dallas case recently reviewed by the Texas Supreme Court:
After a split decision from the Fifth Court declined to send a personal-injury case to arbitration, the Texas Supreme Court ruled otherwise in Baby Dolls v. Sotero: “The Family’s argument, and the court of appeals’ holding, that Hernandez and the Club never had a meeting of the minds on the contract blinks the reality that they operated under it for almost two years, week after week, before Hernandez’s tragic death. We hold that the parties formed the agreement reflected in the contract they signed.” No. 20-0782 (Tex. March 18, 2022).
En Banc Review?
This is a cross-post from 600Commerce, it involves a Dallas Court of Appeals decision but is of broader statewide interest –
The Fifth Court’s recent ERCOT opinion found that matter appropriate for en banc review when, between its original panel opinion and the present proceedings, the Texas Supreme Court had ruled on immunity issues in a way that undermined a key assumption of the panel opinion about ERCOT’s immunity. (“In the most recent of these three opinions, the supreme court stated: ‘Though we have contemplated it, we have yet to extend sovereign immunity to a purely private entity—one neither created nor chartered by the government—even when that entity performs some governmental functions.'”).
At least nominally, that analysis puts the case in the “just right” category of my Goldilocks article about intermediate-court en banc review, although the importance of the subject matter may make it a “big splash” case as well.
The ERCOT dissent suggests another, fragrance-based approach to decisions about en banc review: “To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong, it must . . . strike us as wrong with the force of a five-week old, unrefrigerated dead fish.” (citing Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).
New UCC Article
Mike Lynn and I have an article in the latest Oklahoma Law Review about a fiendishly tricky issue with some “battles of the forms” under the Uniform Commercial Code. A few years back, Mike had a hard-fought trial about this issue in the context of the roof insulation for a big warehouse near D/FW Airport. I hope you enjoy it – and can use it someday in your next UCC case – https://digitalcommons.law.ou.edu/olr/vol74/iss2/3
SCOTX to review Dallas interlocutory-appeal case
Texas’ rule against the appeal of interlocutory orders has a long and colorful history of exceptions to that rule (a story well told by Lee Thompson in her recent law review article about our interlocutory-appeal statute). The increased number of permissible interlocutory appeals can produce procedural friction with the standard appellate process; the supreme court recently granted review of a Dallas case involving such friction on a fundamental jurisdictional point:
Lost Book Value Not Foreseeable
In Hadley v. Baxendale, 8 Exch. 341, 156 Eng. Rep. 145 (1854), the Court of Exchequer held that a miller’s lost profits, arising from the late delivery of a replacement shaft for a steam engine in the mill, were not recoverable as consequential damages in a suit for breach of contract: “But it is obvious that, in the great multitude of cases of millers sending off broken shafts to third persons by a carrier under ordinary circumstances, such consequences would not, in all probability, have occurred, and these special circumstances were here never communicated by the plaintiffs to the defendants. It follows, therefore, that the loss of profits here cannot reasonably be considered such a consequence of the breach of contract as could have been fairly and reasonably contemplated by both the parties when they made this contract.”
The long shadow of that broken shaft was most recently seen in Signature Indus. Services, LLC v. Int’l Paper Co., which held: “The law does not charge contracting parties with a duty to understand how their actions will affect the counterparty’s market valuation. … As a general rule, neither the counterparty’s market value nor the impact of breach on that value will be reasonably foreseeable at the time of contracting. SIS … attempted to show that IP was intimately familiar with SIS’s business because of the companies’ close relationship. But again, knowledge of a business is not the same as knowledge of the market for buying and selling that business.” No. 20-0396 (Jan. 14, 2022).
Deal With Juries in 2022? Listen to This Podcast!
By popular demand, the nationally respected jury consultant Jason Bloom returns to the “Coale Mind” podcast after his insightful interview last year about the restart of jury trials after the 2020 quarantines. In this new 2022 episode, he discusses his insights from the continued return of jury trials.
Jason describes how, across the country, prospective jurors are more eager to be selected and serve on juries than ever before, reflecting a national mood that wants to reassert control over government after many months of uncertainty and frustration. Relatedly, jury deliberations are emphasizing a theme of “accountability”–examining which party to a case has demonstrated responsibility for its actions and decisions.
Obviously important for trial lawyers, Jason’s insights are also critical to understanding America’s political dialogue as society continues to reawaken after the COVID pandemic. Whether acting as jurors, voters, or customers, decisionmakers bring very specific interests and desires to 2022 that must be understood and accommodated to make effective policy.
New Year, Old Principles
The supreme court engaged fundamental, black-letter principles of contract law in Angel v. Tauch, No. 19-0793 (Jan. 14, 2022), holding:
“Offer and acceptance are essential elements of a valid and binding contract. As a matter of blackletter law, an offer empowers the offeree to seal the bargain by accepting the offer. But equally well-established is the rule that acceptance is ineffective to form a binding contract if the power of acceptance has been terminated, such as by the offeror’s revocation before acceptance. The main issue in this contract dispute is whether a purported offer to settle a debt for a reduced sum was accepted before it was revoked. Resolution of that issue turns on the parameters of the recognized, but rarely implicated, doctrine of implied revocation.
Here, the parties dispute whether the implied-revocation doctrine (1) is limited to offers involving the sale of land, (2) applies if the offeree learns about the offeror’s inconsistent act from someone other than the offeror, and (3) is satisfied under the undisputed facts in this case. We hold that the doctrine is not constrained to real-property transactions and the settlement offer was impliedly revoked when the offeror assigned the underlying judgment to a third party for collection and the assignee gave the offeree a copy of the assignment agreement before he accepted the settlement offer. We therefore reverse the court of appeals’ judgment and render judgment that no contract to settle the debt was formed.”
(footnotes and citations omitted, emphasis added).
2021 Review to Start 2022 Right
The Texas Lawbook recently published a good feature by Androvett Legal Media & Marketing about the top Texas legal stories of 2021 (in which I discuss the hard-fought litigation about SB8, the new Texas abortion law). It’s worth a look while preparing for law practice in this New Year.
