Brian P. Lauten 2016-12-20 17:56:54
In commercial litigation, the caselaw continues to evolve in five areas of interest: (1) restrictions on the recoverability of attorneys’ fees under Chapter 38 of the Texas Civil Practice and Remedies Code; (2) a new statutory scheme, which governs the discovery of net worth; (3) the resolution of an appellate court split on whether an arbitration award can be vacated on non-statutory grounds; (4) the continuing evolution of our anti-SLAPP jurisprudence; and (5) recent decisions interpreting Texas Rule of Civil Procedure 91a Motions to Dismiss. Recovering Attorneys’ Fees In contract disputes where the non-breaching party seeks attorneys’ fees, courts have held that Chapter 38 authorizes a recovery in favor of the prevailing plaintiff against a corporation or an individual only.1 Accordingly, attorneys’ fees, under Chapter 38, are not authorized against other legal entities. The Discoverability of Net Worth On June 19, 2015, the Texas Legislature codified section 41.0115 of the Texas Civil Practice and Remedies Code. Plaintiffs can no longer obtain net worth information by making a request for production; on the contrary, they must file a motion and show there is a “substantial likelihood” the claim will be successful.2 New Supreme Court Precedent on Vacating Arbitration Awards In Hoskins v. Hoskins,3 the issue was whether a party seeking to vacate an arbitration award under the Texas General Arbitration Act, or the TAA, might invoke extra-statutory, common-law vacatur grounds. The Texas Supreme Court held that section 171.088 provides the exclusive grounds for vacatur under the TAA. Therefore, the court held that, because “manifest disregard for the law” is not included in the section, the losing party’s attempt to vacate the award on a non-statutory basis must fail. Evolution of Anti-SLAPP Jurisprudence Texas’ anti-SLAPP—strategic lawsuits against public participation—statute, the Texas Citizens Participation Act, provides for the expedited dismissal of claims that implicate a defendant’s right of free speech. A successful motion to dismiss entitles the movant to an award of attorneys’ fees. “Justice and equity” is not an authorized standard for the recovery of attorneys’ fees under the law; instead, the trial court may consider only whether the fee is “reasonable.”4 Interpreting the act, the Austin appellate court recently held that Rule 202 of the Texas Rules of Civil Procedure does not authorize pre-suit depositions when the potential claim would be subject to the law.5 New Decisions Impacting Rule 91a The Texas Supreme Court recently held that a governmental entity’s claim that it had immunity was properly asserted as a Rule 91a Motion to Dismiss. Reversing the court of appeals’ judgment, the Supreme Court dismissed the plaintiff’s case holding it had no basis in law as the trial court lacked jurisdiction.6 Other recent decisions interpreting Rule 91a include: In re Butt7 and In re Essex Ins. Co.8 Notes 1) Alta Mesa Holdings, L.P. v. Ives, 488 S.W.3d 438, 452-455 (Tex. App.— Houston [14th Dist.] 2016, pet. denied); Choice! Power, L.P. v. Feeley, No. 01-15-00821-CV, 2016 WL 4151041, *8-11 (Tex. App.—Houston [1st Dist.] Aug. 4, 2016, no pet.). 2) In re Michelin N. Am., Inc., No. 05-15-01480-CV, 2016 WL 890970 (Tex. App.—Dallas March 9, 2016, mand. granted); In re Robinson Helicopter Co., No. 01-15-00594-CV, 2015 WL 4623939 (Tex. App.— Houston [1st Dist.] Aug. 4, 2015, mand. denied). 3) No. 15–0046, 2016 WL 2993929, *7 (Tex. May 20, 2016). 4) See Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016) (a reasonableness test applies). 5) In re Chris Elliott, No. 03-16-00231-CV, 2016 WL 5887349, *7 (Tex. App.—Austin Oct. 7, 2016, no pet.). 6) City of Dallas v. Sanchez, 494 S.W.3d 722 (Tex. 2016). 7) 495 S.W.3d 455 (Tex. App.—Corpus Christi May 9, 2016, no pet.). 8) 450 S.W.3d 524 (Tex. 2014). BRIAN P. LAUTEN is a commercial trial lawyer in the Dallas office of Deans & Lyons. He is certified in civil trial law by the Texas Board of Legal Specialization and in civil trial advocacy and pretrial practice by the National Board of Trial Advocacy. Lauten is a member of the American Board of Trial Advocates.
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