Brian P. Lauten 2017-12-20 04:51:38
In commercial litigation and business tort cases, the caselaw continues to evolve in five areas of interest: (1) breach of fiduciary duty; (2); legal malpractice; (3) the Texas Citizens Participation Act (anti-SLAPP statute); (4) forum selection clauses and forum non conveniens; and (5) lost profits. Breach of Fiduciary Duty In First United Pentecostal Church of Beaumont v. Parker,1 the Texas Supreme Court clarified that the remedy the plaintiff seeks in a breach of fiduciary duty case determines whether proof of causation and actual damages are required. The court held that proof of causation and actual damages are not required in a breach of fiduciary duty case where the remedy sought is equitable forfeiture and disgorgement; whereas, the plaintiff must still prove causation in the situation where the plaintiff seeks actual damages.2 Legal Malpractice In a notable legal malpractice case decided this term, the Supreme Court was asked to adopt the “substantial factor” causation test. The court refused to do so in Rogers v. Zanetti,3 stating plainly that “but-for” causation and “suit-within-a-suit” causation is required when the malpractice is germane to the underlying case. Rogers requires the plaintiff to reconstruct “[w]hat should have happened if the lawyer had not been negligent.”4 Rogers extends causation linearly to such a degree that some may argue there is no meaningful way for the plaintiff to reasonably recreate that which may have happened in the underlying trial—but did not happen—because the lawyer’s negligence got in the way. The Anti-SLAPP Statute In Hersh v. Tatum,5 the Supreme Court had to determine whether the Texas Citizens Participation Act (anti-SLAPP statute) applies to a plaintiff’s claim when the defendant denies ever having made a statement that could be protected. The court held that the anti-SLAPP statute applied to the plaintiff’s claim even though the defendant denied ever having made a statement at all because the statute’s applicability is governed by the plaintiff’s pleadings—not the defendant’s admissions or denials on the merits of the claim.6 Forum Selection Causes and Forum Non Conveniens A new trend may be gleaned from the Supreme Court’s decision in In re Oceanografia,7 where a several-year delay seeking mandamus relief did not result in waiver. The doctrines of laches and waiver no longer appear to be a tenable position in defeating a motion to dismiss based on either forum selection or forum non conveniens. Lost Profits In Horizon Health Corp. v. Acadia Healthcare Co., Inc.,8 the court held that the plaintiff must prove that it would have actually been awarded the contracts it did not obtain absent the defendant’s misconduct. In other words, it may be legally insufficient to show that a defendant breached a fiduciary duty that resulted in a precipitous decline in business. Notes 1) 514 S.W.3d 214 (Tex. Mar. 17, 2017). 2) Id. at 220-22. 3) 518 S.W.3d 394 (Tex. April 28, 2017). 4) Id. at 411. 5) 526 S.W.3d 462 (Tex. Sep. 22, 2017). 6) Id. at 466-467. 7) 494 S.W.3d 728 (Tex. July 1, 2016). 8) 520 S.W.3d 848 (Tex. Mar. 1, 2017). BRIAN P. LAUTEN is a triple board certified business and commercial trial lawyer, who has argued before the United States and Texas Supreme courts. Lauten is a partner in Deans & Lyons in Dallas.
Published by State Bar of Texas. View All Articles.
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