Error Preservation in Texas Civil Cases, May 16, 2020

May 16, 2020

Dear All:

I know all of you are aware of the ransomware attack on the e-facilities of the Office of Court Administration.  From all reports, OCA and the courts are working diligently to bring all the courts fully back online, but in the meantime the ransomware attack has definitely affected the abilities of the appellate courts to function.  More and more courts–specifically, as of this writing, the Fort Worth, San Antonio, Dallas, and Corpus Christi Courts– are able to take advantage of the alternate website set up by OCA, www.txcourts.net, to post their opinions (https://www.txcourts.net/orders), and it looks like to me that Lexis, and I suspect Westlaw, have been able to pick up those opinions.

We don’t have much in the way of error preservation decisions this week, but we do have one court of appeals case (a pretty helpful one, as reflected in the following Table of Contents), and one case from the Texas Supreme Court.  I also thought I would give you the benefit of my limited efiling experience with the Fort Worth Court this last week, to sort of spread the word that the system is working, the courts are processing their work, and they continue to focus on getting the crucial work done.

Table of Contents

The San Antonio Court held that a response to a summary judgment motion preserved a complaint that there was evidence of gross negligence

The Supreme Court reminded us of the necessity to comply with any timeliness requirements established in other rules and statutes

Defamation Mitigation Act

Here is my experience with efiling in the Fort Worth Court this past week, which reflects the system still works–if you call a court’s clerk, you can find out how it works on your case

The Blurbs

Here is a guide, in which the San Antonio Court held that a response to a summary judgment motion preserved a complaint that there was evidence of gross negligence :

Summary Judgment: “Osburn’s live petition alleged the “Defendants allowed the dog to remain on the premises, when they knew, or by the exercise of reasonable diligence should have known, that the dog was an unreasonably dangerous condition,” and “[p]ermitting the dog to remain on the premises under such circumstances constituted actual conscious indifference to the rights, safety, and welfare of” Osburn. The Bakers’ no-evidence motion alleged “no evidence exist[s] that Defendants acted with a conscious indifference towards the right[s], safety, and welfare of others.” Osburn’s summary judgment response alleged “[s]trict liability and [g]ross negligence are proper because Defendants knew of the dangerous propensities exhibited by their dog and they failed to do anything to warn Plaintiff of such danger,” and “Defendants were aware of the dangerous nature of the dog and that they should have taken extra precautions so as to avoid injury to” Osburn. Osburn presented evidence that Mrs. Baker was so worried about Bady’s habit of “nipping at people” that she wanted to put him up during Osburn’s visit, but decided against doing so on [*11] the advice of her husband.

We conclude Osburn properly responded to the gross negligence allegations in the Bakers’ no-evidence summary judgment motion and presented evidence showing that they acted with conscious indifference. See Tex. R. Civ. P. 166a(i). We further conclude Osburn preserved his challenge to the gross negligence portion of the trial court’s summary judgment order on appeal. See Tex. R. App. P. 38.1. Osburn presented some evidence that Mrs. Baker believed Bady was so dangerous that he needed to be put away to protect Osburn. Osburn also presented evidence that, despite this knowledge, the Bakers did not put Bady away. That is some evidence the Bakers acted with conscious indifference towards Osburn’s rights, safety, and welfare. See Turner v. Duggin, 532 S.W.3d 473, 487 (Tex. App.—Texarkana 2017, no pet.) (concluding owners’ failure to secure dog even though they knew it had dangerous propensities constituted some evidence of gross negligence). We therefore hold the trial court erred in granting a no-evidence summary judgment in favor of the Bakers on Osburn’s gross negligence claim.” Osburn v. Baker, No. 04-19-00568-CV, 2020 Tex. App. LEXIS 3916, at *10-11 (Tex. App.—San Antonio May 13, 2020)

The Supreme Court reminded us of the necessity to comply with any timeliness requirements established in other rules and statutes:

Defamation Mitigation Act: “TMZ argues that Jones failed to make a “timely and sufficient request” as required by Section 73.055(a)(1) of the DMA and, in fact, did not comply with the statute at all. We disagree. Bressi’s communications with TMZ constitute a Request; TMZ actually understood Jones to have made a Request; and if Jones’s timely communications with TMZ were not “sufficient” under the Act, TMZ’s failure to timely challenge sufficiency as required by Section 73.058(c) waived any insufficiency complaints.” Warner Bros. Entm’t v. Jones, No. 18-0068, 63 Tex. Sup. Ct. J. 990, 2020 Tex. LEXIS 397, at *13 (May 8, 2020)

Here is my experience with efiling in the Fort Worth Court this past week, which reflects the system still works–if you call a court’s clerk, you can find out how it works on your case:

The Second Court continues to do what it can in the absence of a fully functioning network, with a focus on getting the crucial work done. Here is what I can add, on a personal basis:

  • The good news is that eFileandServe still works.
    • For example, this week, I filed an unopposed (thank you, David Keltner and Jody Sanders) motion for a briefing extension in the Second Court, which eFileTexas notified me had been submitted.
  • The  Second Court continues to do what it can in the absence of a fully functioning network, with a focus on getting the crucial work done.
    • To continue with my motion for extension of time, while I did not get an e-notification that it had been filed, the morning after e-submitting it I called the Clerk’s office, just to make sure the motion had been filed. The Deputy Clerk assured me that, if eFileTexas reflected that it had been submitted, the Clerk’s office either had or would receive it, and they would print it and route it by hand to where it needed to go at the Court.
    • Sure enough, toward the end of the day after esubmitting the motion, I received (by fax) a copy of the Order from the Second Court granting the extension.
  • Different courts of appeals have been affected differently by the network outage, and so they will differ as to how they get their work done. But it is my impression they are all doing the best they can with what they have, and OCA continues to scrub all of its e-facilities with the hopes of launching a new network as soon as safely possible.

All for now.  I hope this helps.  Y’all stay safe and well.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

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