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This is a cross-post from 600 Commerce about a recent Dallas Court of Appeals case of statewide significance.
While jury selection is a critical and at times outcome-determinative part of trial, appellate opinions on voir dire issues are scarce – trial judges have considerable discretion in such matters and harm is difficult to establish. All the more reason for trial lawyers to carefully review Murphy v. Mejia Arcos, a painstaking analysis of Batson challenges to peremptory strikes of Hispanic jurors. Carefully applying the precedent in the area, the Fifth Court found no abuse of discretion by the trial court in sustaining two such challenges in a personal-injury trial. The analysis is of obvious statewide significance for Texas practice, offering a practical summary of the current Batson procedural framework, and having important policy consequences for an infrequently-reviewed aspect of civil trial practice. No. 05-18-01342-CV (Tex. App.–Dallas July 17, 2020).
Law360 has published its yearly review of the just-completed Texas Supreme Court term. I am quoted at the end of the article about the trio of waiver cases that the supreme court decided, arising from Dallas Court of Appeals opinions.
The Texas Supreme Court declined to enter the fray about the City of Houston’s cancellation of the state Republican Party convention: ‘[Texas Election Code] Section 1.005(10) defines “law” in the Election Code to mean “a constitution, statute, city charter, or city ordinance.”’ Thus, ‘duty imposed by law’ in Section 273.061 is limited to a duty imposed by a constitution, statute, city charter, or city ordinance. The Party does not assert that Houston First owes it any such duty. The Party argues it has constitutional rights to hold a convention and engage in electoral activities, and that is unquestionably true. But those rights do not allow it to simply commandeer use of the Center. Houston First’s only duty to allow the Party use of the Center for its Convention is under the terms of the parties’ Agreement, not a constitution.” In re Republican Party of Texas, No. 20-0525 (Tex. July 13, 2020). A dissent would have taken the case given the importance of the issue.
“‘[T]he purpose of a supersedeas bond is to preserve the status quo by staying the execution or enforcement of the judgment or order appealed from pending the appeal.’ Here, that is precisely what occurred in the trial court. During the pendency of the appeal, CTCA was in the same position it had been prior to obtaining
a favorable judgment. It continued to receive the same membership dues it otherwise could have received had the Haedge Group members been ousted earlier and their shares transferred. Except for the $7,000 deficiency, CTCA did not demonstrate any loss or damage caused by the supersedeas. It is entitled to no further amounts from the bond. Haedge v. Central Texas Cattleman’s Association, No. 19-0595 (Tex. June 26, 2020) (per curiam).
“[D]isparaging the quality or condition of a business’s product or service is not, standing alone, defamation per se. . . . [B]ecause there is no evidence of an actual injury to reputation and the disparaging remarks are not otherwise capable of a defamatory meaning, the pecuniary loss for which special damages were sought may be cognizable as business disparagement but not as defamation.” Innovative Block v. Valley Builders Supply, No. 18-1211 (Tex. June 26, 2020).
Justice Busby wrote for the majority in Bonsmara Natural Beef Co. v. Hart of Texas Cattle Feeder: “[A] person ‘may appeal from’ certain types of interlocutory orders, including an order denying a motion to compel arbitration. Does this language mean that if the losing party chooses not to take an interlocutory appeal from such an order, it forfeits the ability to challenge that order on appeal from a final judgment? According to the [plaintiff] cattle owner, the mere availability of an interlocutory appeal demonstrates that the losing party must appeal the order within twenty days of its issuance. Because the [defendant] cattle feeder failed to appeal the order denying its motion to compel arbitration within that period, the owner contends the appellate court lacked jurisdiction to overturn the trial court’s denial postjudgment. This argument is incorrect: our rule has long been that ‘a party against whom an interlocutory [order] has been rendered will have his right of appeal when . . . the same is merged in a final judgment disposing of the whole case.'” He was joined by Justices Guzman, Lehrmann, Boyd, Blacklock, and Bland.
Justice Green dissented in no uncertain terms: “[B]y applying a myopically permissive interpretation of the interlocutory appeal statute, the Court concludes—in defiance of all common sense—that an interlocutory appeal of a trial court’s denial of a motion to compel arbitration is not required, and a challenge to such an order can wait until after a trial on the merits.” He was joined by Chief Justice Hecht and Justice Devine.
When not engaged in good-natured banter about typeface or proper spacing after periods, the appellate community often argues about the right place to put citations to authority. The traditional approach places them “inline,” along with the text of the legal argument. A contrarian viewpoint, primarily advanced by Bryan Garner, argues that citations should be placed in footnotes.
Has modern technology provided a third path? Professor Rory Ryan of Baylor Law School advocates “fadecites,” reasoning:
A brief using this approach would look like this on a first read:
(A longer example is available on Professor Ryan’s Google Drive.) The reader can quickly skim over citations while reviewing the legal argument. Additionally, assuming that the court’s technology allows it, case citations can be arranged to become more visible if the reader wants to know more information. Modern .pdf technology allows a citation to become darker and more visible if the reader places the cursor on it. A hyperlink to the cited authority could also be made available.
This idea offers an ingenious solution to a recurring challenge in writing good, accessible briefs. I’d be interested in your thoughts and Professor Ryan would be as well.
The Texas Supreme Court recently summarized the sometimes-confusing law about preservation of objections an an expert’s testimony: “Requiring an admissibility objection to the reliability of expert testimony gives the proponent a fair opportunity to cure any deficiencies and prevents trial and appeal by ambush. Thus, when an expert opinion ‘is admitted in evidence without objection, it may be considered probative evidence even if the basis of the opinion is unreliable.’ But conclusory or speculative opinion testimony is not relevant evidence because it does not make the existence of a material fact more or less probable. Evidence that lacks probative value will not support a jury finding even if admitted without objection. ‘Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence.’” Pike v. Texas EMC Management LLC, No. 17-0557 (June 19, 2020). While this quote eliminates the case citations in the original, the cited authorities provide further discussion of these principle and illustrate their applications in specific settings.
A timely charge objection overcame the lack of a verified plea about standing when: “Walker had no reason under Fisher to file a verified plea challenging EMC Cement BV’s capacity to recover for damages to Texas EMC Products. Walker’s complaint about what damages EMC Cement BV was attempting to recover did not arise until EMC Cement BV requested that the jury be instructed to base its damages for Walker and Wilson’s breach of the partnership agreement on the difference in the value of EMC Cement BV’s interest in the partnership before and after the breach.” Pike v. Texas EMC Management LLC, No. 17-0557 (June 19, 2020).
