In an insurance-coverage dispute arising from a theft of gold coins with a fraudulent check, the supreme court said: “We hold that a loss sustained “consequent upon” an event connotes but-for causation under the policy’s exclusion of coverage for property handed over to a third party against a fraudulent check. Accordingly, we answer the Fifth Circuit’s first certified question yes.” Dillon Gage, Inc. v. Certain Underwriters, No. 21-0312 (Dec. 3, 2021).
New TRAP
A new set of TRAPs about direct appeals to the Texas Supreme Court takes effect at the start of 2022. It substantially clarifies the procedure for these unusual cases, and aligns the rules about them with other TRAPs about supreme-court proceedings.
Findings and Appeal Deadlines
“[W]e adopt the following two-step inquiry for determining when requests for findings and conclusions that are not required by the rules will trigger the extended ninety-day filing deadline. First, was the non-jury proceeding a type in which the trial court could consider evidence? Second, if so, was there evidence before the court? When the answer to both questions is yes and a party requests findings and conclusions, all parties benefit from the extended appellate timetable.
The first question is categorical, not case-specific. For example, it will be answered yes for a judgment following a bench trial, a default judgment on a claim for unliquidated damages, a judgment rendered as sanctions, and any other judgment that could be based in any part on an evidentiary hearing.
The second question is case-specific and focuses on whether evidence was presented to the trial court, not whether that evidence proved to be necessary in hindsight. In answering this question, it is not relevant whether the evidence presented was disputed, or jurisdictional, or material to an issue later raised on appeal.” Phillips v. McNeil, No. 19-0831 (Dec. 3, 2021) (citations omitted, emphasis added) (applying IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997) and Gene Duke Builders, Inc. v. Abilene Housing Auth., 138 S.W.3d 907 (Tex. 2004) (per curiam)).
Denial of Discovery and Mandamus
“The denied discovery was necessary to develop a defense that goes to the heart of ExxonMobil’s case—that the providers’ rates were unreasonable. Additionally, the effects of the trial court’s denial of discovery will evade review by any higher court because the discovery ExxonMobil cannot obtain is from third parties, the providers, and thus cannot be included in the appellate record. Under these circumstances, we conclude that ExxonMobil lacks an adequate remedy on appeal.” In re ExxonMobil Corp., No. 20-0849 (Nov. 19, 2021) (applying In re K & L Auto Crushers, LLC, 627 S.W.3d 239 (Tex. 2021) (orig. proceeding).
Masks are back in style
This is a cross-post from 600Commerce, as the topic of mask mandates may be making a return trip to the Texas Supreme Court soon.
The Fifth Court deftly aligned the parties’ arguments about mask requirements with the Texas Disaster Act’s statement of purpose in Abbott v. Jenkins: “Based on the evidence in the record, the trial court acted within its discretion to conclude that Jenkins demonstrated a probable right to relief on the ground that Abbott lacked authority to suspend [Tex. Gov’t Code] section 418.108 because imposing a face-covering mandate does not prevent, hinder, or delay necessary action in coping with a disaster. Arguably, the evidence shows the opposite—that by imposing a face-covering mandate, Jenkins furthered Abbott’s stated goals to preserve livelihoods and protect lives through the least restrictive means available.“ No. 05-21-00733-CV (Nov. 22, 2021) (emphasis added).
No future, no future damages.
The Energizer Bunny, famously, keeps on going. Not so, the contract between Pura-Flo and Donald Clanton, under which Pura-Flo committed to pay Clanton a monthly fee for the use of fifty water coolers. The supreme court reversed and rendered as to an award of future damages in a lawsuit between them, observing:
“Here, no evidence indicated the contract would endure for any length of time, let alone five years after trial. Perhaps, as the court of appeals suggested, the jury sought to award Clanton either the amount Vanderzyden originally paid Pura-Flo to buy the water coolers in 1994 or the amount Pura-Flo’s investment proposal claimed the company would pay to repurchase the water coolers after sixty months. But neither suggested rationale can be the basis for an award of future damages, which, as evidenced by its name, is an award for damages that Clanton was reasonably certain to incur in the future. Without evidence that the contract would continue in the future, the jury’s $50,000 future-damages award has no reasonable basis in evidence and therefore was not reasonably certain as required by law.”
Pura-Flo Corp. v. Clanton, No. 20-0964 (Nov. 19, 2021) (per curiam) (citations omitted, emphasis added).
Writing Wednesday – Judicial Fonts/Typography
The Texas Supreme Court is using a new, standard layout for its opinions. Similar in some ways to what the Fifth Circuit has used for some time (most notably, the use of Old English for the court name), it is based on a Century font rather than the Equity font used by the Fifth Circuit.
New Justice Appointed
Governor Abbott has appointed Evan Young of Baker Botts to the vacancy on the court created by the resignation of Eva Guzman.
State-Federal Practice Differences
I recently wrote an article, “Federalism and Appellate Procedure: Five Texas-Federal Differences to Know,” in the Appellate Advocate, the quarterly publication by the Appellate Section of the State Bar of Texas. I hope you find it interesting and useful.
Laches Didn’t Bar Mandamus
In addition to other points about “apex depositions,” the supreme court rejected an argument that an unreasonable delay barred mandamus relief:
“American reasonably explained the year-long period between the trial court’s order compelling Eberwein’s deposition and American’s mandamus filing in the court of appeals. The record establishes that American did not receive notice of the order until four months after its issuance. At that point, the parties were on notice that the order set preconditions to Eberwein’s deposition by requiring Arnette to serve a new deposition notice designating deposition topics. To date, neither has occurred, with no explanation on Arnette’s part. As the trial date loomed, first in December 2020 and now in December 2021, American prudently sought mandamus relief to avoid the necessity of rescheduling the trial. On this record, the delay is neither unexplained nor unreasonable.”
In re American Airlines, Inc., No. 20-0789 (Oct. 22, 2021) (per curiam) (reaching a different conclusion than the Fifth Court of Appeals did in 2020.
