Carrington, Coleman, Sloman, & Blumenthal, L.L.P.

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Jayco Hawaii, Inc. v. Viva Railings, LLC Dallas Court of Appeals, No. 05-20-00528-CV (August 25, 2021) Chief Justice Burns and Justices Molberg and Goldstein (Opinion, linked here) Ken Carroll Most lawyers know and carefully observe the “due-order-of-pleadings” requirement for a special appearance. That is, under Rule 121a(1), a special appearance must be filed “prior to a motion to transfer venue or any other plea, pleading or motion.” Otherwise, the challenge to personal jurisdiction is waived. But Rule 120a(2) embodies a “due-order-of-hearings” requirement, as well, directing that a special appearance “shall be heard and determined before a motion to transfer…
Town of Highland Park v. McCullers Dallas Court of Appeals, No. 05-19-01431-CV (June 29, 2021) Chief Justice Burns (Dissent linked here), and Justices Pedersen, III (Opinion linked here) Goldstein (Concurrence linked here) Lyndon Bittle                The Town of Highland Park cannot be sued by the survivors of an off-duty police officer killed in a flash flood while providing security at a private residence through an arrangement coordinated by the Town, according to a divided Dallas Court of Appeals panel.          SMU police officer Calvin Marcus McCullers accepted an assignment offered by the…
In re Academy, Ltd. Supreme Court of Texas, No. 19-0497 (June 25, 2021) Justice Lehrmann (Opinion, linked here), Justice Boyd Concurring (linked here) Ken Carroll         In November 2017, Devin Kelley shot 25 people to death, and wounded 20 more, in the First Baptist Church in Sutherland Springs, Texas. Kelley wielded a semi-automatic assault rifle he purchased from an Academy Sports store in San Antonio. Academy sold the rifle as part of a pre-packaged unit that included a 30-round large-capacity magazine (“LCM”), with a single SKU number and a single price for all components in the package.…
Amazon.com, Inc. v. McMillan Supreme Court of Texas, No. 20-0979 (June 25, 2021) Opinion by Justice Busby (linked here) Dissent by Justice Boyd (linked here) Lyndon Bittle         Answering a question certified by the Fifth Circuit, the Texas Supreme Court held Amazon is not a “seller” under Texas product liability law when it does not hold title to the product but controls the process of the transaction and delivery through the “Fulfillment by Amazon” program.         As discussed in a previous Sua Sponte post, the McMillan plaintiffs allege injuries to a 19-month-old child who swallowed…
Bank of Texas v. Collin Central Appraisal District Dallas Court of Appeals, No. 05-19-00568-CV (June 22, 2021) Justices Myers, Nowell (Opinion linked here), and Goldstein Lyndon Bittle         Bank of Texas appealed a judgment denying its challenge to CCAD’s tax appraisal of two properties. The bank argued the trial court abused its discretion by striking the bank’s appraisal experts for not properly applying the “income method,” one of three appraisal methods recognized by the Tax Code. The Dallas Court of Appeals affirmed, holding the trial court could reasonably have concluded “that the comparables relied on by the [bank’s]…
Florey v. U.S. Bank, N.A. Dallas Court of Appeals, No. 05-20-00306-CV (June 22, 2021) Justices Osborne, Reichek (Opinion, linked here), and Nowell Ken Carroll         Where a borrower defaults on a loan secured by real estate and the noteholder accelerates that loan, foreclosure must occur within four years after acceleration—unless the noteholder abandons that acceleration, which resets the limitations clock.         The Floreys defaulted on their home equity loan. Nationstar Mortgage, the holder of the note, sent the Floreys a notice of default and then a notice accelerating the debt, both in 2013. But for many months…
BPX Operating Company v. Strickhausen Supreme Court of Texas, No. 19-0567 (June 11, 2021) Justice Blacklock (opinion available here) Justice Boyd Dissent (available here) Kelli Hinson         Ms. Strickhausen’s mineral lease with BPX prohibited pooling her tract with others without her “express written consent.” Nevertheless, BPX pooled several tracts, including Strickhausen’s property, to create a 320-acre unit. Unlike Strickhausen’s lease, her neighbors’ leases permitted pooling. BPX attempted to obtain Strickhausen’s written consent or ratification of the pooling, but Strickhausen consistently refused and repeatedly objected to BPX’s activity. As the parties continued to communicate and discuss a settlement…
Toyota Motor Sales, U.S.A., Inc. v. Reavis Dallas Court of Appeals, No. 05-19-00075-CV (June 3, 2021) Justices Partida-Kipness and Nowell (opinion available here); Justice Schenck dissenting (here) Kelli Hinson The Reavis family was involved in a violent car accident in their Lexus, which resulted in the parents being propelled into the back seat, where they crashed into their small children, who suffered skull fractures and traumatic brain injuries as a result. The family sued Toyota, asserting design and marketing defects. Even though the vehicle complied with all applicable safety standards, the jury found against Toyota, awarding $242…
Panameno v. Williams Dallas Court of Appeals, No. 05-19-01496-CV (June 1, 2021) Chief Justice Burns and Justices Reichek and Carlyle (Opinion linked here) Lyndon Bittle            It was a dark and stormy night. Two cars collided. The defendant in a lawsuit about the accident testified that he “hit a large puddle of water, hydroplaned, and spun into a car in which Mr. Panameno was a passenger.” The defendant denied he was negligent, insisting he acted reasonably given the poor road conditions and bad weather. The district court defined “Act of God” and asked the jury to assign…
Aerotek, Inc. v. Boyd Supreme Court of Texas, No. 20-0290 (May 28, 2021) Chief Justice Hecht (Opinion, linked here); Justice Boyd Dissenting (linked here) Ken Carroll In Aerotek, the Texas Supreme Court overturned the decisions of a trial court and court of appeals that refused to compel arbitration between the company and certain of its employees. In the process, the Court significantly bolstered parties’ ability to rely on electronic signatures and digital contracts. When four Aerotek employees sued the company for discrimination and retaliation, Aerotek moved to compel arbitration of the dispute, relying on an arbitration agreement that…