Two recent opinions involved the enforcement of statutes that the Court saw as prohibiting the filing of the action–In re: Academy, No. 19-0497 (June 25, 2021), in which a federal statute said that the specified kinds of cases about firearms sales “may not be brought in any Federal or State court,” and In re: Facebook, No. 20-0434 (June 25, 2021), about the Communications Decency Act’s command that “[n]o cause of action may be brought” about the subject matters of that Act. Both were enforced by petitions for writ of mandamus, based on the principle that “requiring [Defendant] to ‘proceed to trial–regardless of the outcome–would defeat the substantive right’ granted by” those statutes.
Operative Fact About the “Operative Facts”
In Luciano v. SprayFoamPolymers LLC, No. 18-0350 (Tex. June 25, 2021), while the Texas Supreme Court said in a footnote that it was not addressing this specific question, its holding suggests that Texas’s focus on the “operative facts” of a case continues to have force in personal-jurisdiction disputes after the U.S. Supreme Court’s recent opinion in Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021): “Because the United States Supreme Court has confirmed that due process does not mandate a causation-only approach, we reject SprayFoam’s narrow conception of the relatedness requirement. Instead, we apply the Supreme Court’s precedent to determine whether the Lucianos’ suit “arise[s] out of or relate[s] to” SprayFoam’s Texas contacts.”
Note for Subscribers
If you are an email subscriber to this blog’s new posts, or subscribe to its RSS feed, please know that Google has discontinued its “Feedburner” service, so 600Camp is converting to a similar (but hopefully much improved) service offered by “Follow.it.” With luck, the transition will be seamless. But if you experience a loss of service – or the opposite problem of multiple deliveries – please notify me at dcoale@lynnllp.com. Many thanks for subscribing!
Writings Matter
If you doubted that the written word carried dispositive weight in the current Texas Supreme Court, please consider these cases that lead up to an oil-and-gas opinion of last week:
- In 2019, Bombardier Aerospace Corp. v. SPEP Aircraft Holdings holds that the written word matters: “Under our strongly held principles of freedom to contract, we hold that the limitation-of-liability clauses are valid limited warranties that were the basis of the parties’ bargain. … Although Bombardier’s conduct in failing to provide SPEP and PE with the new engines they bargained for was reprehensible, the parties bargained to limit punitive damages, and we must hold them to that bargain.”
- In 2020, Energy Transfer v. Enterprise emphasized that the written word matters: “We hold that parties can conclusively negate the formation of a partnership under Chapter 152 of the TBOC through contractual conditions precedent. ETP and Enterprise did so as a matter of law here, and there is no evidence that Enterprise waived the conditions.”
- During 2021, in In re the Estate of Johnson, the Court noted that actions also matter: “MacNerland was put to an election: either seek to set the will aside or accept the benefits Johnson bequeathed to her. She chose the latter. As a result, she ‘must adopt the whole contents of the instrument, so far as it concerns [her], conforming to its provisions, and renouncing every right inconsistent with it.’ Because MacNerland accepted benefits under Johnson’s will, the trial court properly dismissed her challenge to its validity.” (citation omitted).
- But last week, in BPX Operating v. Strickhausen, the Court again gave primacy to the written word: “Strickhausen bargained for a strong anti-pooling clause, she consistently withheld the written consent the clause requires, and she reiterated her objections multiple times. Although she accepted BPX’s money, she reasonably believed that one way or another she was owed an amount in the same ballpark as the checks she deposited.”
New TCPRC 38.001 — UPDATED
Solving several years of mischief arising from unclear statutory language, the governor recently signed an amended version of Tex. Civ. Prac. & Rem. Code § 38.001 to clarify when attorneys’ fees may be recovered in breach-of-contract actions. It is effective to cases filed on or after Sept. 1, 2021:
LLC Service
“A limited partnership’s agents for service of process are its general partner, Tex. Bus. Orgs. Code § 5.255(2), and its registered agent, id. § 5.201(b)(1). The evidence establishes that Miraki served only a WWLC employee described as its ‘owner,’ ‘president,’ and ‘CEO.’ Accordingly, we hold that WWLC demonstrated that it was not properly served.” WWLC v. Miraki, No. 20-0173 (June 18, 2021).
Good CLE on Thursday!
On Thursday, June 17 at noon, I’m giving an update on commercial cases of note from the past year in the Dallas Court of Appeals. It will be by Zoom and you can register here, and here is the PowerPoint that I’ll use (subject to continuing proofreading!)
Writing Wednesday: Signed ≠ Rendered ≠ Entered
With respect to court orders and judgments, the words “signed,” “rendered,” and “entered” are often used interchangeably. But those words have specific, technical meanings, and it is wise to remember those meanings when differences matter. Accord, Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978) (“Judges render judgment; clerks enter them on the minutes. … The entry of a judgment is the clerk’s record in the minutes of the court. ‘Entered’ is synonymous with neither ‘Signed’ nor ‘Rendered.’”).
Two rules set the background as to when critical countdowns commence:
- Tex. R. Civ. P. 306a: “The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court’s plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules authorize a party to file …”
- Similarly, Tex. R. App. P. 26.1 begins: “The notice of appeal must be filed within 30 days after the judgment is signed, except as follows …”
By contrast, “[j]udgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk.” E.g., S&A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam). And the above-quoted paragraph from Rule 306a concludes: “… but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose.”
By contrast, entry of judgment refers to the recording of a rendered judgment in the court’s official records. See, e.g., Lone Star Cement Corp v. Fair, 467 S.W.2d 402, 405 (Tex. 1971) (“The law is settled in this state that clerical errors in the entry of a judgment, previously rendered, may be corrected after the end of the court’s term by a nunc pro tunc judgment; however, judicial errors in the previously rendered judgment may not be so corrected.” (emphasis added)).
I gratefully acknowledge the excellent insights of Ben Taylor in preparing this post!
Dallas is in North TEXAS
Dallas-Fort Worth is the fourth largest metropolitan area in the United States, and it is only a matter of time until it passes Chicago to become #3. Dallas is routinely ranked among the nation’s best cities. Yet, as noted in a recent Texas Lawbook op-ed, it is significantly underrepresented on the Texas Supreme Court. Hopefully, geographic diversity will play a role in future appointments to that Court.
Acceptance of Benefits
In the case of In the Estate of Johnson, the supreme court reaffirmed a strict approach to the “acceptance of benefits” defense in will contests: “MacNerland was put to an election: either seek to set the will aside or accept the benefits Johnson bequeathed to her. She chose the latter. As a result, she ‘must adopt the whole contents of the instrument, so far as it concerns [her], conforming to its provisions, and renouncing every right inconsistent with it.’ Because MacNerland accepted benefits under Johnson’s will, the trial court properly dismissed her challenge to its validity.” (citation omitted).
