COA.TX

Fraudulent Inducement (Tex and Tex.App.-Houston cites)

2012-01-20T13:44:00.000-06:00

THE NATURE OF FRAUDULENT INDUCEMENT AS A CAUSE OF ACTION & THE ELEMENTS THEREOF

A contract is subject to avoidance on the ground that it was induced by fraud. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 331 (Tex. 2011); see also Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1998) (“As a rule, a party is not bound by a contract procured by fraud.”). Even a written contract containing a merger clause can be avoided for fraud in the inducement, and the parol evidence rule does not stand in the way of proof of such fraud. Italian Cowboy, 341 S.W.3d at 331. Indeed, “the law long ago abandoned the position that a contract must be held sacred regardless of the fraud of one of the parties in procuring it.” Dallas Farm Mach. Co. v. Reeves, 307 S.W.2d 233, 239 (Tex. 1957).

ELEMENTS OF FRAUD

The elements of fraud are: (1) that the speaker made a material misrepresentation (2) that he knew was false when he made it or that he made recklessly without any knowledge of its truth and as a positive assertion (3) with the intent that the other party act upon it and (4) that the other party acted in reliance on the misrepresentation and (5) suffered injury thereby. Italian Cowboy, 341 S.W.3d at 337. A representation is material if “a reasonable person would attach importance to [it] and would be induced to act on the information in determining his choice of actions in the transaction in question.” Italian Cowboy, 341 S.W.3d at 337.

ESSENTIAL ELEMENTS OF FRAUDULENT INDUCEMENT ADDITIONALLY INCLUDE PROOF OF CONTRACT TO WHICH ASSENT WAS PROCURED BY FRAUD

Fraudulent inducement is a particular species of fraud that arises only in the context of a contract and requires the existence of a contract as part of its proof. Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001); Clark v. Power Mktg. Direct, Inc., 192 S.W.3d 796, 799 (Tex. App.—Houston [1st Dist.] 2006, no pet.). That is, with a fraudulent inducement claim, the elements of fraud must be established as they relate to an agreement between the parties. Haase, 62 S.W.3d at 798–99.

THE RELIANCE ELEMENT

Fraud requires a showing of actual and justifiable reliance. Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010). In evaluating justification, the court considers whether, “given a fraud plaintiff’s individual characteristics, abilities, and appreciation of facts and circumstances at or before the time of the alleged fraud[,] it is extremely unlikely that there is actual reliance on the plaintiff’s part.” Id. (quoting Haralson v. E.F. Hutton Grp., Inc., 919 F.2d 1014, 1026 (5th Cir. 1990)). In the commercial context, the Texas Supreme Court has emphasized that “commercial tenants are entitled to rely on the fact that a landlord will not actively conceal material information.” Italian Cowboy, 341 S.W.3d at 339.

SOURCE: HOUSTON COURT OF APPEALS - NO. 01-09-00728-CV - 1/19/12

Sworn account suit under TRCP 185 not available for any and all types of claims involving an unpaid account

2012-01-12T15:45:00.002-06:00

Suit for unpaid electrical power service may be brought as sworn account, but claim for early termination fee required proof of breach of the underlying contract, according to an opinion issued by Houston's First Court of Appeals today.

SUIT ON A SWORN ACCOUNT

Rule 185 of the Texas Rules of Civil Procedure, entitled Suit on Account, provides:

When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath. A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be. No particularization or description of the nature of the component parts of the account or claim is necessary unless the trial court sustains special exceptions to the pleadings.

The elements of a suit on a sworn account claim are thus (1) the sale and delivery of merchandise or performance of services; (2) that the amount of the account is “just,” that is, the prices charged are pursuant to an express agreement, or in the absence of an agreement, that the charges are usual, customary, or reasonable; and (3) that the outstanding amounts remain unpaid. E.g., Powers v. Adams, 2 S.W.3d 496, 499 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

“Rule 185 is a procedural tool that limits the evidence necessary to establish a prima facie right to recovery on certain types of accounts.” Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 234 (Tex. App.—Houston [1st Dist.] 2008, no pet.). “Rule 185 applies only to ‘transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing . . . .’” Id. (quoting Meaders v. Biskamp, 316 S.W.2d 75, 78 (Tex. 1958) (emphasis in original)). “It does not apply to transactions between parties resting upon a special contract.” Id. (quoting Meaders, 316 S.W.2d at 78).

SOURCE: HOUSTON COURT OF APPEALS - FIRST DISTRICT - 01-11-00027-CV - 1/12/12

The trial court’s $29,615.04 award was made up of $12,994.18 for unpaid electrical service and a $16,620.86 early termination fee. A suit on a sworn account applies to the sale of electric service. See generally Rimco Enters., Inc. v. Texas Elec. Serv. Co., 599 S.W.2d 362, 365 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.).

While the defendants dispute here that the electric service charges were reasonable, accurate, or just, Affordable Power’s petition attached an affidavit, made on the affiant’s personal knowledge, attesting that:

Attached to this affidavit is the final bill and/or invoice that was sent to the listed customer. The final invoice was based on an open account with the customer for goods and/or services rendered. The final invoice is part of our systematic records, based on goods and/or services provide to the customer. A true and correct copy of the Contract Agreement with the listed customer and Terms of Service is attached as Exhibit “1” of this Petition.

The final invoice accurately reflects charges for goods and/or services provided. The amount of the account is just and true, it is due, the prices were charged according to a written contract with the customer and the charges are usual, customary and reasonable. The just and true amount of $29,615.04 plus interest, is currently due having been unpaid by the customer. This amount includes all lawful offsets, payments and credits.

Because this affidavit meets the requirements to establish a prima facie case under Rule 185, the defendants’ failure to file a verified denial would have precluded them from disputing the $12,994.18 charges for electrical service on Affordable Power’s suit on a sworn account at trial. See Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985).

For the reasons further explained below, however, we nonetheless remand Affordable Power’s claim based on unpaid electrical services to the trial court because judgment on that claim is not “separable without unfairness to the parties” from the judgment on Affordable Power’s breach of contract claim related to the termination fee, which is not supported by legally sufficient evidence. Tex. R. App. P. 44.1(b); Iron Mountain Bison Ranch, Inc. v. Easley Trailer Mfg., Inc., 42 S.W.3d 149, 162 (Tex. App.—Amarillo 2000, no pet) (“Given the intertwined nature of appellee’s promissory estoppels theory and its other theories, we remand the promissory estoppel issue for a new trial in the interest of justice.”).

SOURCE: HOUSTON COURT OF APPEALS - FIRST DISTRICT - 01-11-00027-CV - 1/12/12

Collateral Estoppel - The doctrine, its purpose, and its elements when invoked as a defense

2012-01-12T00:36:00.002-06:00

LAWYER LINGO: What is collateral estoppel?

Collateral estoppel, or issue preclusion, prevents the relitigation of identical issues of fact or law that were actually litigated and essential to the final judgment in a prior suit. Texas Dep't of Public Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001); Barr, 837 S.W.2d at 628.

POLICY RATIONALE

The doctrine is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by preventing any relitigation of an ultimate issue of fact. Petta, 44 S.W.3d at 579; Sysco Food Servs., 890 S.W.2d at 801.

ESSENTIAL ELEMENTS OF COLLATERAL ESTOPPEL AS A DEFENSE

A party seeking to assert the bar of collateral estoppel must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. John G. & Marie Stella Kenedy Mem'l Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Indem. Ins. Co. v. City of Garland, 258 S.W.3d 262, 271 (Tex. App.-Dallas 2008, no pet.).

THE ISSUE OF IDENTITY OF PARITES, PRIVITY

Strict mutuality of parties is no longer required. Petta, 44 S.W.3d at 579; Richards v. Comm'n for Lawyer Discipline, 35 S.W.3d 243, 249 (Tex. App.-Houston [14th Dist.] 2000, no pet.). It is only necessary that the party against whom collateral estoppel is being asserted was a party or in privity with a party in the first action. Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990).

PRIVITY

“People can be in privity in at least three ways: (1) they can control an action even if they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they can be successors in interest, deriving their claims through a party to the prior action.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996); see also State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 886 (Tex. App.-Dallas 2001, pet. denied).

SOURCE: DALLAS COURT OF APPEALS - 05-10-00410-CV - 1/8/12

What is "Money Had and Received"? It does not sound like a cause of action, but ...

2012-01-12T00:20:00.001-06:00

it functions as one under Texas case law precedents:

ASSUMPSIT - MONEY HAD AND RECEIVED [MHnR] AS A THEORY OF RECOVERY / REIMBURSEMENT / RESTITUTION

Assumpsit For Money Had And Received

According to legal historians, assumpsit was developed to redress circumstances involving unjust enrichment or an implied promise to pay what in good conscience defendant was bound to pay the plaintiff. Tri-State Chem., Inc. v. Western Organics, Inc., 83 S.W.3d 189, 193-94 (Tex. App.-Amarillo 2002, pet. denied). Over time, assumpsit was divided into various categories. Id. at 194.

Money had and received is a category of general assumpsit to restore money where equity and good conscience require refund. Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.-El Paso 1997, no writ). “The question, in an action for money had and received, is to which party does the money, in equity, justice, and law, belong.

All plaintiff need show is that defendant holds money which in equity and good conscience belongs to him.” Staats v. Miller, 150 Tex. 581, 584, 243 S.W.2d 686, 687-88 (1951) (quoting 58 C.J.S., Money Received § 4a). A cause of action for money had and received is “less restricted and fettered by technical rules and formalities than any other form of action. It aims at the abstract justice of the case, and looks solely to the inquiry, whether the defendant holds money which . . . belongs to the plaintiff.” Id. (quoting United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 402-03 (1934)).

AN EQUITABLE REMEDY
A cause of action for money had and received is not premised on wrongdoing, but “looks only to the justice of the case and inquires whether the defendant has received money which rightfully belongs to another.” Amoco, 946 S.W.2d at 164. Such an action may be maintained to prevent unjust enrichment when a party obtains money which in equity and good conscience belongs to another. Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 860 (Tex. App.-Fort Worth 2005, no pet.); J.C. Penney Co., Inc. v. Pitts, 139 S.W.3d 455, 457 n.4 (Tex. App.-Corpus Christi 2004, no pet.) (citing Staats, 243 S.W.2d at 687). In short, it is an equitable doctrine applied to prevent unjust enrichment. Everett, 178 S.W.3d at 860; Hunt v. Baldwin, 68 S.W.3d 117, 132 (Tex. App.-Houston [14th Dist.] 2001, no pet.).

To prove a claim for money had and received, a plaintiff must show that a defendant holds money which in equity and good conscience belongs to him. Edwards v. Mid- Continent Office Distrib., L.P., 252 S.W.3d 833, 837 (Tex. App.-Dallas 2008, pet. denied). In defending against such a claim, a defendant may present any facts and raise any defenses that would deny a claimant's right under this theory. Best Buy Co. v. Barrera, 248 S.W.3d 160, 162 (Tex. 2007) (per curiam); Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 807 (Tex. App.-Dallas 2011, no pet.).

A recovery under assumpsit for money had and received does not “depend on the parties' agreement or intent but rather the law's presumption of a promise of compensation if one receiving another's money would thereby be unjustly enriched.”Amoco, 946 S.W.2d at 164.

EXPRESS CONTRACT NORMALLY PRECLUDES RECOVERY UNDER ALTERNATIVE EQUITABLE THEORIES

Generally, when a valid, express contract covers the subject matter of the parties' dispute, there can be no recovery under a quasi-contract theory. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 828 (Tex. App.-Dallas 2010, no pet.). The quasi-contractual action for money had and received is a cause of action for a debt not evidenced by a written contract between the parties. See Edwards, 252 S.W.3d at 836; see also Amoco, 946 S.W.2d at 164.

SOURCE: DALLAS COURT OF APPEALS - 05-10-00410-CV - 1/10/12

Litigating insurer's duty to defend policy-holder

2012-01-11T15:04:00.000-06:00

COVERAGE DISPUTE – INSURANCE COMPANY'S DUTY TO DEFEND

An insurer has a duty to defend when a third party sues the insured on allegations that, if taken as true, potentially state a cause of action within the coverage terms of the policy. GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 310 (Tex. 2006). Even if the allegations are groundless, false, or fraudulent, the insurer is obligated to defend. Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 491 (Tex. 2008). The duty to defend is independent from the duty to indemnify and can exist even when no obligation to indemnify is ultimately found. Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex. 1997).

THE EIGHT CORNERS RULE: Pleadings and Policy - Four corners each

In determining whether an insurer has a duty to defend, we follow the eight-corners rule, also known as the complaint-allegation rule: ―an insurer’s duty to defend is determined by the third-party plaintiff’s pleadings, considered in light of the policy provisions, without regard to the truth or falsity of those allegations.‖ Zurich, 268 S.W.3d at 491 (quoting GuideOne, 197 S.W.3d at 308). When applying the eight-corners rule, we construe the allegations in the pleadings liberally. Nat’l Union Fire Ins. Co. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997). We resolve all doubts regarding the duty to defend in favor of the insured. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002). If the pleadings do not contain factual allegations sufficient to bring the case clearly within or without the coverage terms, the general rule is that the insurer is obligated to defend if there is any potential claim under the pleadings that falls within the coverage of the policy. Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 141 (citing Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex. 1965)); Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 (Tex. 1994). In the case of ambiguity in the underlying petition, the court may not read facts into the pleadings, look outside the pleadings, or ―imagine factual scenarios which might trigger coverage.‖ Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 142. However, the eight-corners rule does not require us to ignore those inferences logically flowing from the facts alleged in the petition. Gen. Star Indem. Co. v. Gulf Coast Marine Assocs., Inc., 252 S.W.3d 450, 456 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 645 (Tex. 2005) (inferring a profit motive from the insured’s leasing of her property for limestone mining even though the pleadings made no reference to any pecuniary interest)). A liability policy obligates the insurer to defend the insured against any claim that potentially could be covered. Heyden Newport Chem. Corp., 387 S.W.2d at 26.

SOURCE: HOUSTON COURT OF APPEALS – 14^TH DISTRICT - 14-11-00049-CV – 1/5/12

Appellant GEICO General Insurance Company challenges the trial court’s summary judgment in favor of Austin Power on a breach of contract claim relating to an insurer’s duty to defend. Because we find that the pleadings in the underlying lawsuit allege claims that potentially fall within coverage under the insurance policy, we affirm the judgment of the trial court.

[…]

Unlike the insured in Pine Oak and in the other cases on which GEICO relies, Austin Power’s coverage claim does not depend upon extrinsic evidence or on facts that are not encompassed within the factual allegations in the underlying suit. Here, the allegations themselves, when construed liberally in favor of the insured, are sufficient to state a claim that is potentially within coverage. The plaintiffs in the underlying suit alleged facts that supported an inference of coverage and that were ―sufficient to permit proof on a trial‖ of the truth of the inference. See Heyden Newport Chem. Corp., 387 S.W.2d at 26. The allegations in the Bradley petition, when construed liberally in favor of Austin Power, support the inference that Weldon’s injury potentially occurred during the policy period, and therefore the claim is potentially covered. This is sufficient to trigger GEICO’s duty to defend the suit. See Gen. Star Indem. Co., 252 S.W.3d at 456.

We accordingly overrule the sole issue presented on appeal and affirm the trial court’s judgment.

SOURCE: HOUSTON COURT OF APPEALS – 14^TH DISTRICT - 14-11-00049-CV – 1/5/12

The limited nature of eviction proceedings in justice court (and appeals from them)

2012-01-11T14:58:00.001-06:00

EVICTION SUITS ARE DIFFERENT

Forcible Detainer dispute can easily become moot because the only issue is the right to current possession of the premises

The only issue in a forcible detainer action is the right to immediate possession, not the merits of title to the property. See Tex. R. Civ. P. 746; Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 785 (Tex. 2006). If a defendant in a forcible detainer action is no longer in possession of the premises, then an appeal from the forcible detainer judgment is moot unless the defendant asserts "a potentially meritorious claim of right to current, actual possession of the [premises]." The pendency of a claim to title to the property does not prevent the court in the forcible detainer action from determining that the plaintiff has the superior right to immediate possession of the property. Wilhelm v. Fed. Nat. Mortg. Ass'n, 349 S.W.3d 766, 768 (Tex. App.-Houston [14th Dist.] 2011, no pet.); see also Villalon v. Bank One, 176 S.W.3d 66, 70 (Tex. App.-Houston [1st Dist.] 2004, pet. denied) (mortgagee established right to immediate possession in forcible detainer action following its purchase of property at foreclosure sale, despite allegations of failure to comply with Fair Debt Collection Practice Act).

SOURCE: HOUSTON COURT OF APPEALS – 14^th DIST – 1/5/12

Forcible Detainer Action [per Supreme Court of Texas]

The only issue in a forcible detainer action is the right to actual possession of the premises. TEX. R. CIV. P. 746; see also TEX. PROP. CODE § 24.001. Some courts of appeals have held that if a tenant fails to post a supersedeas bond pursuant to Texas Property Code Section 24.007, the appellate court lacks jurisdiction.[1] Other courts of appeals have concluded that if a tenant vacates the premises, (1) the tenant's appeal is moot because the court can no longer grant effectual relief,[2] or (2) the issue of possession is moot, but the court can still consider issues unrelated to possession.[3] At least one court of appeals has concluded that a tenant's appeal is not moot even though the tenant vacated the premises.[4]

Read more on moot appeal in eviction case from Houston …

This appeal arises from a judgment signed December 9, 2010, in a de novo appeal from the justice court in a forcible detainer action. The county court at law awarded possession of appellant's residence to the mortgage holder following a foreclosure. Appellant did not supersede the judgment, and a writ of possession was executed on November 29, 2011, evicting appellant from the property. See Tex. Prop. Code § 24.007.

On December 2, 2011, appellee filed a motion to dismiss the appeal as moot. See Tex. R. App. P. 42.3(a); see also FDIC v. Nueces Cty., 886 S. W.2d 766, 767 (Tex. 1994) (holding that mootness doctrine limits courts to deciding cases in which an actual controversy exists). Appellant has not responded to the motion.

[law governing forcible detainer – see blog post above]

Because appellant is no longer in possession of the property and he does not assert a potentially meritorious claim of right to current, actual possession of the property, his appeal is moot. See Marshall, 198 S.W.3d at 787; Wilhelm, 349 S.W.3d at 769.

Appellee's motion is granted. Accordingly, we vacate the county court's judgment and dismiss this appeal as moot. See Marshall, 198 S.W.3d at 790.

Motion Granted; Judgment Vacated, Appeal Dismissed.

SOURCE: HOUSTON COURT OF APPEALS – 14^th DIST – 1/5/12

Default on installment plan or re-payment schedule

2012-01-10T01:08:00.000-06:00

Accrual of claim when periodic payments are required and not made under a contract and acceleration does not apply.

BREACH OF A CONTRACT REQUIRING PAYMENT IN INSTALLMENTS ENTAILS MULTIPLE CAUSES OF ACTION

When the debtor/obligor defaults on a payment or re-payment schedule involving periodic installments, each missed payment gives rise to separate cause of action. Therefore, a claim for earlier missed installment payments may be time-barred, whereas a claim for more recent ones may be within the limitations period.

The limitations period for breach of contract claims is four years. TEX. CIV. PRAC. & REM. CODE ANN. § 16.051 (West 2008); Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). "Limitations begins to run upon accrual of the cause of action." Barker v. Eckman, 213 S.W.3d 306, 311 (Tex. 2006). A breach of contract claim accrues when the contract is breached. Stine, 80 S.W.3d at 592. When recovery is sought on an obligation payable in installments, the statute of limitations runs against each installment from the time it becomes due. Hollander v. Capon, 853 S.W.2d 723, 726 (Tex. App.-Houston [1st Dist.] 1993, writ denied).

SOURCE: DALLAS COURT OF APPEALS - 05-10-00252-CV – 1/3/12 [Name of Plaintiff replaced with “PLANTIFF”]

Limitations

Because we have concluded that a fact issue exists on McPeak's individual liability under the Employment Contract as a promoter, we must address PLAINTIFF's contention that the trial court erred in its ruling that PLAINTIFF's claims for all but the last two installment payments were barred by limitations. The limitations period for breach of contract claims is four years. TEX. CIV. PRAC. & REM. CODE ANN. § 16.051 (West 2008); Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). "Limitations begins to run upon accrual of the cause of action." Barker v. Eckman, 213 S.W.3d 306, 311 (Tex. 2006). A breach of contract claim accrues when the contract is breached. Stine, 80 S.W.3d at 592. When recovery is sought on an obligation payable in installments, the statute of limitations runs against each installment from the time it becomes due. Hollander v. Capon, 853 S.W.2d 723, 726 (Tex. App.-Houston [1st Dist.] 1993, writ denied).

PLAINTIFF contends, however, that different rules govern the Employment Agreement. He relies on Lichtenstein v. Brooks, 12 S.W. 975 (1889), overruled on other grounds by Dixie Glass Co. v. Pollak, 347 S.W.2d 596 (Tex. 1961), Davis Apparel v. Gale-Sobel, 117 S.W.3d 15 (Tex. App.-Eastland 2003, no pet.), Intermedics, Inc. v. Grady, 683 S.W.2d 842 (Tex. App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.), and US MCT, Inc. v. Brodsky, No. 05-98-00204-CV, 2001 WL 1360301 (Tex. App.-Dallas Nov. 7, 2001, no pet.) (not designated for publication). PLAINTIFF argues that under these cases, limitations did not begin to run on his breach of contract claim until demand for payment had been made and refused, or until the expiration of the contract term. He contends that the Employment Agreement is not a contract requiring periodic installment payments,[9] but rather is a "continuing contract" for which limitations did not run until the end of the contract term. We disagree, for two reasons.

First, the cases cited by PLAINTIFF do not support his arguments that a continuing contract, and specifically an employment agreement, cannot be governed by the rules for contracts requiring periodic installments. Lichtenstein does not address the issue presented here, that is, when PLAINTIFF's cause of action accrued. Instead, Lichtenstein establishes that there is only one cause of action for wrongful termination under an employment contract, which accrues on the date of the breach rather than separately with every subsequently-missed salary payment. See Lichtenstein, 12 S.W. at 975 (employee's "right to recover the loss occasioned by the breach . . . arises at once" [emphasis added]). Although the court in Lichtenstein refers to bringing suit "after the expiration of the time that the contract was made for," id., the statement was made in the context of the court's ruling (later rejected in Pollock) that the employee could not recover any anticipatory damages that might accrue after the date of trial. Id. at 975-76. To maximize the recoverable damages, the employee might wait as long as possible to bring suit. But the court limited its discussion by stating that the employee could bring suit "at any time before the cause of action is barred by the statute of limitations," and its analysis was made in the context of its holding that the cause of action accrued upon breach. See id.

In the Intermedics case, the parties entered into oral agreement under which Grady was to perform consulting services for Intermedics in return for a $20,000 annual salary and 17,000 shares of Intermedics stock. 683 S.W.2d at 844. Unlike PLAINTIFF's claims in this lawsuit, Grady brought a lawsuit only for the promised shares of stock, not to recover his annual salary. Id. In response to Intermedics's assertion that limitations barred Grady's claims, the court discussed the law applicable to "continuing contracts," and stated that the limitations period for a continuing contract "does not usually commence until the contract is fully performed." Id. at 845. The court discussed these rules as they applied to Grady's claim for the shares of stock, and determined that limitations did not bar the claim. See id. at 845-47. In its discussion, the court in Intermedics recognized an exception to the "continuing contracts" rule: "However, if the terms of an agreement call for periodic payments during the course of the contract, a cause of action for such payments may arise at the end of each period, before the contract is completed." Id. at 845. Here, the trial court found that the language of the Employment Agreement contemplated periodic payments and determined that limitations began to run on the due date for each payment. This conclusion is consistent with the court's reasoning in Intermedics. See id.

PLAINTIFF also relies on Intermedics for the proposition that a demand is required before limitations begins to run. Intermedics, however, involved an oral contract where there was no agreement as to when the promised stock would be issued. See id. at 845. In Slusser v. Union Bankers Insurance Co., 72 S.W.3d 713, 717-18 (Tex. App.-Eastland 2002, no pet.), the court distinguished Intermedics on this ground, concluding that no demand was required where a written contract provided when commissions were to be paid. PLAINTIFF contends a demand is required under paragraph 4(1) of the Employment Agreement:

4. Invoicing and Payment

(1) Invoices must be submitted with copies of approved backup documents and such invoice and backup must be submitted by [PLAINTIFF] to [HSI] on the dates specified for payment set out in Schedule "B" hereto or as soon as possible thereafter. [HSI] shall be entitled to set off any amount owed by [PLAINTIFF] to [HSI] against any amount owing to [PLAINTIFF] under this Contract.

Because invoices are required, PLAINTIFF argues, no breach of the contract occurred until he submitted his invoice in 2004. We disagree. Paragraph 4(1) clearly states that invoices are due "on the dates specified for payment in Schedule `B' hereto or as soon as possible thereafter." The time each payment is due is not changed by paragraph 4(1); in fact, paragraph 4(1) appears to contemplate that an invoice may be submitted after payment has been made pursuant to Schedule B.

The other two cases relied on by PLAINTIFF do not compel the conclusion that PLAINTIFF's cause of action under the Employment Agreement accrued at the end of the contract term rather than at the time each payment was due. In Davis Apparel, 117 S.W.3d at 17-19, the court cited the rule for continuing contracts, but limited the plaintiff's recovery to commission payments due within the limitations period, as the trial court did here. See id. ("[W]here the terms of an agreement call for fixed, periodic payments, a separate cause of action arises for each missed payment."). In the Brodsky case, we noted the rule that under a continuing contract, a party may wait until the end of the contract term to sue. See Brodsky, 2001 WL 1360301 at *8.[10] We concluded a fact issue existed as to when the cause of action accrued under the terms of the contract between the parties, which would turn on "when, if ever, Brodsky became a defaulting venturer rather than a noncontributing venturer." Id. We did not decide or discuss whether limitations should be determined under the rules for contracts requiring periodic payments. When we were presented with that question in Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354, 363 (Tex. App.-Dallas 2009, pet. denied), we concluded that the parties' agreement constituted a continuing contract so that limitations did not run from the date of the initial breach.[11] We did not hold, however, that limitations ran at the end of the contract term, but rather concluded that only payments that became due within the limitations period could be recovered. Id. We stated, "a suit for the breach of a contract requiring payment in periodic installments may include all payments due within the four-year statute of limitations period, even if the initial breach was beyond the limitations period," but "[r]ecovery of any payment more than four years overdue is barred." Id. at 362.

We reject PLAINTIFF's arguments that his cause of action did not accrue until the end of the contract term for a second reason. Here, the language of both contracts supports the trial court's interpretation that HSI's obligation to pay PLAINTIFF arose each year. The Employment Agreement states that PLAINTIFF will be paid $50,000 Canadian "in arrears per annum," while the Agreement for Sale of Shares provides that PLAINTIFF will receive "an annual fee" of $50,000 Canadian "per year." Neither agreement supports PLAINTIFF's contention that a single lump-sum payment of $500,000 was due at the end of the contract term after he submitted an invoice. The trial court's ruling that the agreements "unambiguously require that payment for each calendar year period of service be made during the following calendar year, the first payment thus becoming due in 1995 (for services rendered in 1994) and the final payment becoming due in 2004 (for services rendered in 2003)" is supported by the agreements' express language. We agree with the trial court that because PLAINTIFF did not bring suit until December 3, 2007, "claims for all but the final two annual payments (for services allegedly provided in 2002 and 2003) are barred by the statute of limitations."

CONCLUSION

Because PLAINTIFF raised a genuine issue of material fact whether McPeak is liable as a promoter, we reverse the summary judgment in part and remand the cause for further proceedings.

We affirm the trial court's judgment in all other respects.

AFFIRM in part and REVERSE and REMAND in part.

SOURCE: DALLAS COURT OF APPEALS - 05-10-00252-CV – 1/3/12 [Name of Plaintiff replaced with “PLANTIFF”]

What is a "cause of action" in Texas courts?

2012-01-09T21:18:00.001-06:00

Dallas Court of Appeals cites definitions of "cause of action" in med-mal case:

“[C]ause of action” has been interpreted to mean “a fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.” In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) (orig. proceeding) (internal quotations and citations omitted). And “cause of action” has also been defined as “[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Id. (quoting Black's Law Dictionary 235 (8th ed. 2004)).

SOURCE: DALLAS COURT OF APPEALS - 05-10-01388-CV - 1/6/12

Two cases from this Court provide guidance on the issue of whether a new expert report was required here to address the new allegations concerning Peloza's physical conditions at the time of the surgeries. In Methodist Charlton Medical Center v. Steele, 274 S.W.3d 47, 50 (Tex. App.-Dallas 2008, pet. denied), we concluded that the statute requires a report for each health care liability claim. We also concluded that because the reports did not address the “claims for negligent hiring, supervision, training, and retention, the trial court was required to dismiss [those claims] upon appellants' request.” Id. And more recently in Hollingsworth, we agreed with appellee in that case when she stated “that expert reports are not required to address every action or omission mentioned in the pleading, and that no authority requires reports to 'replicate point-by-point each and every factual allegation in a petition' . . . .” 2011 WL 3805541, at *10. We also said, “However, an expert's report must address each theory of negligence raised by the plaintiff to avoid dismissal of that theory.” Id. (citing Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex. App.-Fort Worth 2003, pet. denied)). Consequently, we need to determine whether the new allegations regarding Peloza's physical conditions constitute a new cause of action for health care liability or a new theory of negligence.

To make that determination, we look to the Texas Medical Liability Act. It defines a “health care liability claim” as “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, . . . which proximately results in injury to or death of a claimant . . . .” Tex. Civ. Prac. & Rem. Code Ann. § 74.001(13) (West 2011). Additionally, “cause of action” has been interpreted to mean “a fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.” In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) (orig. proceeding) (internal quotations and citations omitted). And “cause of action” has also been defined as “[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Id. (quoting Black's Law Dictionary 235 (8th ed. 2004)).

Here, [patient / med-mal plaintiff] alleged that she suffered an injury proximately caused by Peloza's negligence while performing three surgeries on her cervical spine. She alleged that several different acts and failures to act were negligent and also that Peloza's carpal tunnel syndrome and hip condition caused or contributed to those negligent acts or failures to act. Based on these pleadings, we conclude that the new allegations regarding Peloza's physical conditions do not state a new cause of action or a new theory of negligence and do not require a new expert report. We further conclude that the trial court did not abuse its discretion by denying appellants' motion to dismiss the new allegations regarding Peloza's physical conditions.
We resolve this subpart of appellants' first issue against them. Because of our resolution of this issue, we do not need to decide the remaining issues.

SOURCE: DALLAS COURT OF APPEALS - 05-10-01388-CV - 1/6/12

Recovery of costs by plaintiff or defendant

2012-01-09T20:59:00.001-06:00

RECOVERY OF COSTS BY PREVAILING PARTY IN LAWSUIT

As a general rule, the successful party to a suit shall recover of its adversary all costs incurred in the suit. TEX. R. CIV. P. 131. The allocation of costs is within the trial court's discretion and, absent an abuse of discretion, cannot be overturned on appeal. Labor v. Warren, 268 S.W.3d 273, 278 (Tex. App.—Amarillo 2008, no pet.) (citing Madison v. Williamson, 241 S.W.3d 145, 157 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)). Section 31.007(a) of the Texas Civil Practice and Remedies Code prescribes that:

Each party to a suit shall be responsible for accurately recording all costs and fees incurred during the course of a lawsuit, if the judgment is to provide for the adjudication of such costs. If the judgment provides that costs are to be borne by the party by whom such costs were incurred, it shall not be necessary for any of the parties to present a record of court costs to the court in connection with the entry of a judgment.

TEX. CIV. PRAC. & REM. CODE ANN. § 31.007(a) (West 2008). "Although somewhat vague as to procedure," section 31.007(a) "clearly does not require a formal presentation of evidence of a party's costs during trial." Varner v. Howe, 860 S.W.2d 458, 466 (Tex. App.—El Paso 1993, no writ). "All that seems to be required is that the successful party present . . . an itemized list of costs and fees incurred during the lawsuit." Id.; see Labor, 268 S.W.3d at 279.

SOURCE: CORPUS CHRISTI COURT OF APPEALS - 13-10-00694-CV – 12/1/11

No Medical Malpractice Lawsuit without Expert Report

2011-12-21T13:13:00.001-06:00

In the course of tort reform, the Texas legislature required that each medical malpractice lawsuit be accompanied by an expert report to vouch for its non-frivolousness. The required report must cover several elements and has been the subject of much appellate litigation. The stakes are high, because failure to file the report entails dismissal. Failure to file an adequate expert report, or failure to file it timely, usually has dire consequences likewise.

HEALTHCARE LIABILITY CLAIMS: MED-MAL EXPERT REPORT REQUIREMENT

UNDER SECTION 74.351 OF THE CIVIL PRACTICE AND REMEDIES CODE

When a plaintiff brings a healthcare liability claim, section 74.351 requires the plaintiff to serve each health care provider defendant with an expert report that “provides a fair summary of the expert’s opinions . . . regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relations between that failure and the injury, harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(a) and 74.351(r)(6).

If a plaintiff timely files an expert report, the defendant may move to challenge its sufficiency. Id. § 74.351(a); Palacios, 46 S.W.3d at 877. The trial court must dismiss the case with prejudice if the court finds that the report does not represent a good-faith effort to comply with the statute. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Palacios, 46 S.W.3d at 877 (discussing predecessor statute).

An expert report represents a good faith effort to comply with section 74.351 if it provides enough information to inform the defendant of the specific conduct called into question by the plaintiff and provides a basis for the trial court to determine that the claims made by the plaintiff have merit. Palacios, 46 S.W.3d at 879. The report need not marshal all of the plaintiff’s proof, but it must address all three statutory elements—standard of care, breach and causation. See id. at 878. The report must link the expert’s conclusions to the facts upon which those conclusions rest. See Jelinek, 328 S.W.3d at 539 (citing Bowie Mem’l Hosp., 79 S.W.3d at 52). An expert report that omits any of the statutory requirements is not a good faith effort. Palacios, 46 S.W.3d at 879. In reviewing the sufficiency of a report, we look only within the four corners of the document. Id. at 878.

Section 74.351(c) permits a trial court to grant a medical malpractice plaintiff a thirty day extension if an expert report “has not been served within the period specified by Subsection (a) because elements of the report are found deficient.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). If the claimant receives notice of the court’s ruling after the initial 120-day deadline has passed, then the extension runs from the date the plaintiff first received notice. Id.

STANDARD OF REVIEW ON APPEAL

We review the trial court’s decision on a section 74.351 motion to dismiss for abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (addressing predecessor statute to section 74.351). The trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (quoting Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51–52 (Tex. 2002)).

SOURCE: HOUSTON COURT OF APPEALS - 01-11-00136-CV - 12/14/11

A bare assertion of causation does not meet the requirements of section 74.351(r)(6), because “[a]n expert report cannot simply opine that the breach caused the injury.” Jelinek, 328 S.W.3d at 539. No “magical words” such as “reasonable medical probability” demonstrate that the report complies with section 74.351(r)(6). See Bowie Mem’l Hosp., 79 S.W.3d at 53; Regent Care Ctr. of San Antonio II, Ltd. P’ship v. Hargrave, 300 S.W.3d 343, 347 (Tex. App.—San Antonio 2009, pet. denied) (finding single sentence addressing causation did not demonstrate good-faith effort to comply with Act). Rather, to satisfy the element of causation, an expert must explain the basis of her statements and link her conclusions to the facts of the case. Jelinek, 328 S.W.3d at 539; Bowie Mem’l Hosp., 79 S.W.3d at 52.

A report does not represent a good-faith effort to comply with section 74.351(r)(6) and is conclusory if it simply contends that a doctor’s breach caused injury to a person that the doctor never treated. See Jelinek, 328 S.W.3d at 538. Because Dr. Poindexter’s report does not satisfy the statutory test with respect to Rajan’s conduct, the trial court had no option but to conclude that the expert report is deficient in that respect. See Palacios, 46 S.W.3d at 879–80. Conclusion

Because Dr. Poindexter’s expert report does not sufficiently address the causation elements that Chapter 74 requires, the report does not meet the section 74.351(r)(6) standards. Accordingly, we reverse the trial court’s order and dismiss the Stockdales’ claims against Rajan with prejudice.

SOURCE: HOUSTON COURT OF APPEALS - 01-11-00136-CV - 12/14/11

Deed construction analogous to contract construction; so is admissibility of parol evidence to interpret or clarify deed

2011-12-20T00:03:00.000-06:00

CONSTRUCTION OF A DEED - A LEGAL QUESTION, RATHER THAN A TRIABLE ISSUE OF FACT, BUT THERE MAY BE EXCEPTIONS

The construction of a deed is ordinarily a question of law. See Terrill v. Tuckness, 985 S.W.2d 97, 101 (Tex. App.—San Antonio 1998, no pet.) (noting that rules of contract construction ordinarily apply to construction of deeds). Our primary concern in construing a deed is to ascertain the parties’ true intent as expressed in the instrument. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991); CenterPoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177 S.W.3d 425, 430 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). “Because ‘once a dispute arises over meaning, it can hardly be expected that the parties will agree on what meaning was intended,’ courts use canons of construction to help ascertain the parties’ intent.” French v. Chevron U.S.A., Inc., 896 S.W.2d 795, 797 (Tex. 1995) (quoting Southland Royalty Co. v. Pan Am. Petroleum Corp., 378 S.W.2d 50, 59 (Tex. 1964) (Calvert, C.J., concurring)). The “four corners” rule requires us to ascertain intent from the entire instrument. See French, 896 S.W.2d at 797. We must strive to harmonize all of the deed’s parts, construing the deed to give effect to all of its provisions. Luckel, 819 S.W.2d at 462; CenterPoint Energy, 177 S.W.3d at 430.

PAROL EVIDENCE RULE GENERALLY APPLIES UNLESS THERE IS AMBIGUITY

Extrinsic evidence of intent is admissible only if the deed is ambiguous on its face. See Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 283 (Tex. 1996); CenterPoint Energy, 177 S.W.3d at 431 (“A court may consider the parties’ interpretations of the contract through extrinsic or parol evidence only after a contract is first determined to be ambiguous.”).

The decision whether the deed is ambiguous is also a question of law. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); see also CenterPoint Energy, 177 S.W.3d at 430. To make this determination, we look at the deed as a whole in light of the circumstances existing when the parties entered into their agreement. See CenterPoint Energy, 177 S.W.3d at 430. If the deed is worded in such a way that it can be given a definite or certain legal meaning, then it is not ambiguous and the court will be confined to the writing. See id. at 30-31. A mere disagreement about the proper interpretation of a deed, however, does not make the deed ambiguous; the instrument is ambiguous only if, after application of the rules of construction, the deed is reasonably susceptible to more than one meaning. Brown v. Havard, 593 S.W.2d 939, 942 (Tex. 1980); Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (Tex. 1951).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-01002-CV - 12/15/11

Collateral attack on judgment - can it work?

2011-12-19T23:55:00.000-06:00

COLLATERAL ATTACKS GENERALLY NOT PERMITTED- RULE AGAINST COLLATERAL ATTACKS MAY THUS PROVIDE A DEFENSE

Judgments—except judgments void for lack of jurisdiction—are not subject to collateral attack; they may only be challenged on direct attack by appeal. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). A collateral attack, unlike a direct attack, seeks to avoid the effect of a judgment in a later proceeding not instituted for the purpose of modifying or vacating the judgment, but instituted in order to obtain some relief that the judgment currently stands as a bar against. Henderson v. Chambers, 208 S.W.3d 546, 550 (Tex. App.—Austin 2006, no pet.) (holding that wife’s suit based on fraud claim was collateral attack on prior judgment); see Kendziorski v. Saunders, 191 S.W.3d 395, 408 (Tex. App.—Austin 2006, no pet.) (“A collateral attack . . . ‘is an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose.’”) (quoting Employers Cas. Co. v. Block, 744 S.W.2d 940, 943 (Tex. 1988)). “[T]he prohibition against collateral attack extends to claims that false swearing or fraud of a party to the judgment renders it voidable.” In re Cantu, 961 S.W.2d 482, 486 (Tex. App.—Corpus Christi 1997, no writ) (citing Glenn v. Dallas Cnty. Bois D’Arc Island Levee Dist., 268 S.W. 452 (Tex. 1925); Kaphan v. Fid. & Deposit Co. of Md., 564 S.W.2d 459, 462 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.)).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-01151-CV - 12/14/11
RELATED LEGAL CONCEPTS: res judicata and collateral estoppel

Is it res judicata? (lawyer lingo)

2011-12-19T23:45:00.001-06:00

Yes, it's Latin, and it is an affirmative defense that may thwart a (second) lawsuit.

RES JUDICATA

Res judicata prevents parties and those in privity with them from relitigating a case that a competent tribunal has adjudicated to finality. Ingersoll–Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999).

Res judicata bars claims or defenses that could have been litigated in the earlier suit but were not. Id. at 206–07. “The doctrine is intended to prevent causes of action from being split, thus curbing vexatious litigation and promoting judicial economy.” Id. at 207.

Under the doctrine of res judicata, a party is precluded from litigating a claim in a pending action if: (1) in a previous action, a court of competent jurisdiction rendered a final determination on the merits of a claim; (2) the parties that litigated the prior claim are identical to or in privity with the parties litigating the pending claim; and (3) the pending claim (a) is identical to the prior claim or (b) arises out of the same subject matter as the prior claim and could have been litigated in the previous action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-01151-CV - 12/14/11

Mandamus Practice 101 - Petition requirements ignored

2011-12-19T20:30:00.000-06:00

It is almost impossible for pro-se (pro-per) litigants to be successful in Texas Courts of Appeals. The sole case decided by the First Court of Appeals last Friday is no exception. But at least the author of the panel opinion went to the trouble of explaining what was wrong with the mandamus petition. That cannot be taken for granted, as cases are on occasion disposed of by what are essentially one- or two-liner "opinions" that amount to nothing more than a declaratory sentence announcing denial.

MEMORANDUM OPINION

Relator, Charles W. Bishop, II, has filed a pro se petition for writ of mandamus in this court. See Tex. Gov’t Code § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. Relator complains that respondent* has not ruled on his "Declaration for Entry of Default."

Mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010); In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) ("We grant the extraordinary relief of mandamus only when the trial court has clearly abused its discretion and the relator lacks an adequate appellate remedy."). We have previously stated, "A party seeking mandamus relief must show that (1) the trial court had a legal duty to act, (2) there was a demand for performance, and (3) there was a refusal to act." In re Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979)).

When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling on that motion is a ministerial act, and mandamus may issue to compel the trial court to act. See Safety–Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding); see also Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992).

To establish that the trial court refused to rule on a pending motion, the relator must provide a record demonstrating that he asked the trial court for a ruling on his motion and that the trial court refused to rule. See Barnes v. State, 832 S.W. 2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); see also Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). The trial court is not required to consider a motion unless it is called to its attention. Smith, 263 S.W.3d at 96. The mandamus record must show that the motion was presented to the trial court and that the trial court refused to rule on it. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App—Amarillo 2001, orig. proceeding).

According to relator, he filed his "Declaration for Entry of Default" in the trial court on September 21, 2011. He contends that he sent a letter to the trial court on November 1, 2011 requesting that it rule on his Declaration for Entry of Default. Relator also asserts that on November 14, 2011 he filed his "Motion Objecting to the Court’s Refusal to Rule." Relator attaches copies of these documents to his mandamus petition but does not provide a file-stamped copy of these documents or any other documentation to show that his Declaration for Entry of Default, or the other documents appended to his mandamus petition, have been filed and are pending before the trial court.

Nor does the record show that the trial court has actually been made aware of the Declaration for Entry of Default or refused to rule on it, as relator claims. See In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see also Smith, 263 S.W.3d at 96; Barnes, 832 S.W. 2d at 426. Lastly, we note that relator’s Declaration for Entry of Default does not request the trial court to render a default judgment or to grant any other affirmative relief to relator; rather, it simply contains a statement or "declaration" by relator that the defendants in the trial court have failed to answer or defend against his suit.

All petitioners for writ of mandamus, including those acting pro se, must furnish a record sufficient to support the claim for mandamus relief. See Barnes, 832 S.W.2d at 426; see also Walker, 827 S.W.2d at 837. Here, relator has not provided us with a record showing that the trial court received a motion requesting relief, was made aware of it, was asked to rule on it, and refused to rule. See Davidson, 153 S.W.3d at 491; see also Barnes, 832 S.W.2d at 426. Accordingly, we deny the petition for writ of mandamus. See Tex. R. App. P. 52.8(a).

Laura Carter Higley

Justice

Panel consists of Justices Keyes, Higley, and Massengale.

SOURCE: HOUSTON COURT OF APPEALS - FIRST DISTRICT -
01-11-01048-CV - 12/16/11

Texas Supreme Court releases gusher of new opinions, including an oil-and-gas related one

2011-12-16T13:52:00.009-06:00

Some of the new opinions contain points of law relevant to this blawg (e.g., governmental immunity & prospective injunctive relief exception, limitations tolling theories, availability of declaratory relief), but can't be digested on the run. In the meantime, here is a list with excerpts (mostly introductory paragraphs and conclusions) from the Court's opinions in the 11 cases:

TEX. SUP. CT. UPDATE: TABLE OF CASES DECIDED DECEMBER 16, 2011 (and one opinion on motion for rehearing)

[Case style with opinion snippets and procedural history, i.e. case in the court below]
[Photos added 12/20]

City of Dallas v. Parker, No. 07-0288 (Tex. Dec. 16, 2011)(public employment, immunity of governmental entities)

Seal of the City of Dallas in front of Cityhall

This appeal involves issues of governmental immunity from suit. With the exception that this matter is a class action, which does not affect our analysis or conclusions, and one argument that we address separately, the material facts, procedural background, issues, and arguments presented are similar to those we considered in City of Dallas v. Albert, ___ S.W.3d ___ (Tex. 2011). Thus, our conclusions and holdings are the same as those in Albert.

In addition to arguments made in Albert and addressed above, the Officers in this case assert that the City’s immunity from suit is waived because the suit implicitly involves the validity of pay resolutions adopted by the city council. See TEX. CIV. PRAC. & REM. CODE § 37.006(b) (“In any proceeding that involves the validity of a municipal ordinance . . . the municipality must be made a party . . . .”). However, the Officers’ pleadings do not support this contention. Their pleadings reference the ordinance as having become a term of their employment contracts and two resolutions as possible bases for calculating their damages. They do not question the validity of either the ordinance or a resolution.

We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.

CITY OF DALLAS v. DAVID S. MARTIN AND GEORGE G. PARKER, ET AL.; from Rockwall County; 5th district (05-03-01310-CV, 214 SW3d 638, 12-21-06) 2 petitions

The Court reverses the court of appeals' judgment and remands the case to the trial court.

Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice David Medina, Justice Paul Green, Justice Eva Guzman, and Justice Lehrmann joined.

Justice Willett delivered a dissenting opinion

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site

Lowell v. City of Baytown, TX, No. 07-1011 (Tex. Dec. 16, 2011)(firefighter litigation, governmental entities, no immunity to claim prospective injunctive relief brought against government official in official capacity)

Petitioners are firefighters for the City of Baytown. They sued the City, claiming that it improperly calculated pay for certain assignments in violation of the Firefighter and Police Civil Services Act. The firefighters sought declaratory and injunctive relief, as well as “all pay and benefits lost as a result of Defendant’s failure to properly pay Plaintiffs during temporary assignment of higher-classified duties.” The firefighters also requested prejudgment interest on back pay, attorney’s fees, costs, and postjudgment interest. The City filed a jurisdictional plea asserting governmental immunity, which the trial court granted.

The court of appeals also reversed the trial court’s judgment dismissing the firefighters’ claims for prospective declaratory and injunctive relief, holding that such claims did not implicate governmental immunity. Although the court of appeals correctly concluded that immunity does not preclude certain prospective claims, we recently held that such actions must be brought against the relevant government officials, rather than the governmental entity itself. See Heinrich, 284 S.W.3d at 373 (observing that “these suits cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity. This is true even though the suit is, for all practical purposes, against the state.”). Here, the firefighters named the City rather than city officials in their official capacity as Heinrich requires, but their pleading predated Heinrich.

A Question of Identifying to Proper Target

In addition to remanding to permit the firefighters to replead in light of chapter 271, our remand will also permit the firefighters to replead in light of Heinrich and seek appropriate relief, if any, against the relevant city officials.
Accordingly, we grant the firefighters’ petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings consistent with this opinion. TEX. R. APP. P. 59.1, 60.2(d).

KEITH LOWELL, ET AL. v. CITY OF BAYTOWN, TEXAS; from Harris County; 1st district (01-04-00548-CV, 264 SW3d 31, 08-09-07)

Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.

Per Curiam Opinion

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site

Oh, the Quirks of Federalism

Minton v. Gunn, No. 10-0141 (Tex. Dec. 16, 2011)(patent litigation)

This case arises out of patent infringement litigation. We consider whether federal courts possess exclusive subject-matter jurisdiction over state-based legal malpractice claims that require the application of federal patent law. The federal patent issue presented here is necessary, disputed, and substantial within the context of the overlying state legal malpractice lawsuit. Additionally, the patent issue may be determined without creating a jurisdictional imbalance between state and federal courts. We conclude that exclusive federal jurisdiction exists in this case. Accordingly, without reaching the merits of the legal malpractice claim, we reverse the court of appeals’ judgment and dismiss this case.

CONCLUSION: Because we determine that the application of the experimental use exception to the on-sale bar is a necessary, disputed, and substantial element of Minton’s state-based legal malpractice claim, and because the federal courts are capable of addressing this issue without disrupting the jurisdictional balance existing between state and federal courts, we hold that Minton’s claim has triggered exclusive federal patent jurisdiction. Accordingly, we do not reach the merits of Minton’s claims, and we reverse the court of appeals’ judgment and dismiss the case.

VERNON F. MINTON v. JERRY W. GUNN, INDIVIDUALLY, WILLIAMS SQUIRE & WREN, L.L.P., JAMES E. WREN, INDIVIDUALLY, SLUSSER & FROST, L.L.P., WILLIAM C. SLUSSER, INDIVIDUALLY, SLUSSER WILSON & PARTRIDGE, L.L.P., AND MICHAEL E. WILSON, INDIVIDUALLY; from Tarrant County; 2nd district (02-06-00443-CV, 301 SW3d 702, 10-08-09)

The Court reverses the court of appeals' judgment and dismisses the case.

Justice Paul Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Phil Johnson , and Justice Lehrmann joined.

Justice Eva Guzman delivered a dissenting opinion, in which Justice David Medina and Justice Willett joined.

(Justice Hecht not sitting)

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site


In Re SCI, No. 10-0155 (Tex. Dec. 16, 2011)(arbitration, procedure to select arbitrator)

This mandamus proceeding arises from an arbitration agreement governed by the Federal Arbitration Act (FAA). The parties entered into a contract for interment rights and services. The contract obligated the parties to arbitrate this dispute over the care and maintenance of the cemetery.

Everything with dignity -
including selection of arbitrators

The arbitration agreement provides that an arbitrator would either be selected by mutual agreement of the parties or appointed by the American Arbitration Association (AAA). The parties failed to agree to an arbitrator and the trial court appointed an arbitrator without allowing a reasonable opportunity to procure an appointment by AAA. We conclude that the trial court abused its discretion and conditionally grant the petition for writ of mandamus.

We conclude that the contract is not ambiguous on this point. If the parties cannot agree on an arbitrator, the contract requires that they use AAA to appoint the arbitrator.

IN RE SERVICE CORPORATION INTERNATIONAL AND SCI TEXAS FUNERAL SERVICES, INC. D/B/A MAGIC VALLEY MEMORIAL GARDENS; from Hidalgo County; 13th district (13-09-00681-CV, ___ SW3d ___, 02-17-10) stay order issued March 12, 2010, lifted

Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.

Per Curiam Opinion

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site

In re Service Corp. Inc., No. 10-0158 (Tex. Dec. 16, 2011)(appointment of arbitrator based on agreement on method, rather than selection by the trial court judge) (mandamus granted)

IN RE SERVICE CORPORATION INTERNATIONAL AND SCI TEXAS FUNERAL SERVICES, INC., JOINTLY D/B/A MONT META MEMORIAL GARDENS; from Cameron County; 13th district (13-10-00026-CV, ___ SW3d ___, 02-23-10)

Norma Sandoval and her sister, Nora Martinez, jointly filed suit against Service Corporation International (SCI) alleging fraud, deceptive trade practices, and other tort claims arising from their respective interment rights and services contracts for family burial plots at Mont Meta Memorial Park.1 The parties agree the dispute was required to be arbitrated pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16.

Grave Problems ....

... go to the arbitrator - But which one?

SCI asserts that the trial court’s appointment of an arbitrator interfered with the contractual rights of the parties and was not authorized by the Federal Arbitration Act. Without reaching the parties’ arguments as to which party or parties have the burden of approaching the AAA to appoint an arbitrator, we agree with SCI that the trial court’s appointment was an abuse of discretion from which there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). In a related case also decided today, In re Service Corp. International & SCI Tex. Funeral Services, Inc. d/b/a Magic Valley Memorial Gardens, we analyzed an identical arbitration provision. __ S.W.3d __ (Tex. 2011). Following the rationale in Magic Valley Memorial Gardens, we conclude the trial court abused its discretion by appointing an arbitrator instead of following the agreed-upon method of selection outlined in the contract.
As a matter of law, the two month delay in the selection of an arbitrator in this case, by itself, does not establish a lapse or failure of the parties to avail themselves of the contractual selection method. See 9 U.S.C. § 5; Magic Valley Memorial Gardens, __ S.W.3d __ (Tex. 2011). Accordingly, without hearing oral argument, we conditionally grant SCI’s petition for writ of mandamus and direct the trial court to vacate its prior order appointing David Calvillo as arbitrator. TEX. R.APP. P. 59.1, 52.8(c). We are confident the trial court will comply, and the writ will issue only if it fails to do so.

Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.

Per Curiam Opinion

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site


Etan Industries, Inc. v. Lehmann, No. 10-0318 (Tex. Dec. 16, 2011)(limitations bar, propriety of declaratory relief, award of attorney's fees on declaratory judgment claim, mootness doctrine)

Defendant Etan Industries, Inc. contends that the tort claims against it are barred by the two year statute of limitations. It also argues that the declaratory judgment against it was unwarranted.

We agree and accordingly reverse and render judgment for Etan.

We agree with Etan that the Lehmanns’ common-law tort claims were barred by limitations. Etan argues that the claims for declaratory judgment were moot because Etan had removed its lines from the Lehmanns’ properties prior to trial. We agree. We have recently noted that a request for declaratory judgment is moot if the claim presents “no live controversy.” Tex. A & M Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011).

ETAN INDUSTRIES, INC. AND ETAN INDUSTRIES, INC., D/B/A CMA CABLEVISION AND/OR CMA COMMUNICATIONS v. RONALD LEHMANN AND DANA LEHMANN; from Lee County; 3rd district (03-07-00539-CV, 308 SW3d 489, 03-26-10)

Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.

Per Curiam Opinion

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site


Shell Oil Co. v. Ross, No. 10-0429 (Tex. Dec. 16, 2011)(oil, gas and natural resources law, limitations and discovery rule, fraudulent concealment, accrual of cause of action, starting date for running of limitations)

The Courthouse clock had been ticking

This case involves a dispute concerning alleged underpayments of gas royalty. We must decide whether limitations barred a royalty owner’s claims against the operator of the field. We hold that the fraudulent concealment doctrine does not apply to extend limitations as a matter of law when the royalty underpayments could have been discovered from readily accessible and publicly available information before the limitations period expired. When, as in this case, the information was publicly available and readily accessible to the royalty owner during the applicable time period, a royalty owner who fails to take action does not use reasonable diligence as a matter of law. It has long been the law that the discovery rule does not apply to defer the accrual of royalty owners’ claims for underpayments when the injury could have been discovered through the exercise of due diligence. Accordingly, because the parties do not dispute that the pertinent information was readily accessible and publicly available, the royalty owner’s claims are time-barred as a matter of law.

Conclusion:
We hold that evidence conclusively established that Shell’s alleged fraud could have been discovered by the Rosses through the exercise of reasonable diligence. Accordingly, we reverse the court of appeals’ judgment and render judgment for Shell.

SHELL OIL COMPANY; SWEPI LP D/B/A SHELL WESTERN E&P, SUCCESSOR IN INTEREST TO SHELL WESTERN E&P, INC. v. RALPH ROSS; from Harris County; 1st district (01-08-00713-CV, ___ SW3d ___, 02-25-10)

The Court reverses the court of appeals' judgment and renders judgment.

Justice Lehrmann delivered the opinion of the Court.

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site


Americo Life, Inc. v. Myer, No. 10-0734 (Tex. Dec. 16, 2011)(selection of arbitrators on panel, neutrality of chosen arbitrator)

This case concerns an arbitration provision that allows each party to appoint one arbitrator to a panel, subject to certain requirements. At issue is whether Americo Life, Inc. waived its objection to the removal of the arbitrator it selected. The underlying dispute concerned the financing mechanism for Americo’s purchase of several insurance companies from Robert Myer.1 Pursuant to the financing agreement, Americo and Myer submitted their dispute to arbitration under American Arbitration Association (AAA) rules. The arbitrators found in favor of Myer, and Americo filed a The court of appeals is correct that Americo did not expressly state that arbitrators were not required to be neutral. 315 S.W.3d at 75–76. However, Americo argued that the AAA requirements did not apply, that the only applicable requirements were that they be knowledgeable and independent businesspersons or professionals, and that Figari met these qualifications. Americo properly preserved this argument. Therefore, without hearing oral argument, TEX. R.APP. P. 59.1, we reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings consistent with this opinion.

AMERICO LIFE, INC., AMERICO FINANCIAL LIFE AND ANNUITY INSURANCE COMPANY, GREAT SOUTHERN LIFE INSURANCE COMPANY, THE OHIO STATE LIFE INSURANCE COMPANY, AND NATIONAL FARMERS' UNION LIFE INSURANCE COMPANY v. ROBERT L. MYER AND STRIDER MARKETING GROUP, INC.; from Dallas County; 5th district (05-08-01053-CV, 315 SW3d 72, 10-22-09)

Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.

Per Curiam Opinion

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site


In re Jeffrey Cook, No. 10-0855 (Tex. Dec. 16, 2011)(reason for grant of new trial required, even if original judge replaced)(mandamus granted).

The relator asks us to decide whether a trial court abused its discretion when it issued an order granting a motion for new trial “based on all grounds in the motion.” While this case was pending, however, the judge who signed the order resigned, and we remanded the case pursuant to Texas Rule of Appellate Procedure 7.2(b). The successor trial judge then entered an order stating only that his predecessor’s ruling “should remain unchanged.” We recently held that a successor trial court’s order reaffirming the original trial court’s grant of a motion for new trial was “effectively an order refusing to enter judgment on the jury verdict and affects the rights of the parties no less than did the orders of the original judge,” and we concluded that the relator in that case was “entitled to know those reasons just as much as it would be entitled to know the reasons for the orders entered by the former trial judge.” In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 214 (Tex. 2009). Accordingly, we conditionally granted mandamus relief, directing the successor trial court to specify the reasons it refused to enter judgment on the jury verdict and ordered a new trial. Id. at 215. Because the successor trial court judge in this case did not state sufficient reasons for his ruling, contrary to our holding in In re Columbia, we conditionally grant relief.

Without hearing oral argument, TEX. R. APP. P. 52.8(c), we conditionally grant Jeffrey’s petition for writ of mandamus and direct the successor trial court to specify the reasons why it refused to enter judgment on the jury verdict. See In re Columbia, 290 S.W.3d at 215 (requiring reasons to be “clearly identified and reasonably specific”).

We are confident that the trial court will comply, and our writ will issue only if it does not.

IN RE JEFFREY COOK; from Tarrant County; 2nd district (02-10-00068-CV, ___ SW3d ___, 06-08-10)

Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.

Per Curiam Opinion

(Justice Lehrmann not sitting)

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site


Ryland Enterprise, Inc. v. Weatherspoon, No. 11-0189 (Tex. Dec. 16, 2011)(appellate procedure, timeliness of appeal, extension of deadline to file notice of appeal)

In this case we must decide whether the court of appeals erred in dismissing Ryland Enterprise, Inc.’s appeal as untimely. Because an arguable interpretation of our procedural rules allowed Ryland’s premature, pre-judgment motion for judgment notwithstanding the verdict (JNOV motion) to extend the appellate timetable to ninety days, the court of appeals erred in dismissing the appeal. Accordingly, pursuant to Texas Rule of Appellate Procedure 59.1 without hearing oral argument, we reverse the court of appeals’ judgment and remand the case to that court.

In the Texas Supreme Court, it's usually the corporate
defendants that get a break

On the facts of this case, an arguable interpretation of appellate rules 26.1(a) and 27.2 and civil rules 329b and 306c allowed Ryland’s motion, though filed pre-judgment, to nevertheless extend the appellate timetable to ninety days. Ryland’s sixty-fifth-day notice of appeal was therefore timely, and the court of appeals erred in dismissing the appeal. Pursuant to Texas Rule of Appellate Procedure 59.1, we reverse the court of appeals’ judgment without hearing oral argument and remand to that court for consideration of Ryland’s appeal.

RYLAND ENTERPRISE, INC. v. VICKIE WEATHERSPOON; from Harris County; 1st district (01-10-00715-CV, ___ SW3d ___, 01-27-11)

Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.

Per Curiam Opinion

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site


MOTIONS FOR REHEARING DENIED -- WITH OPINION -- IN:

Marsh USA, Inc. v. Cook, No. 09-0558 (Tex. Dec. 16, 2011) (opinion on rehearing)(noncompetes, consideration, enforceability)

We deny Rex Cook’s motion for rehearing. We withdraw our opinion of June 24, 2011 and substitute the following in its place.

In this case, we decide whether a covenant not to compete signed by a valued employee in consideration for stock options, designed to give the employee a greater stake in the company’s performance, is unenforceable as a matter of law because the stock options did not give rise to an interest in restraining competition. We hold that, under the terms of the Covenants Not to Compete Act (Act), the consideration for the noncompete agreement (stock options) is reasonably related to the company’s interest in protecting its goodwill, a business interest the Act recognizes as worthy of protection. The noncompete is thus not unenforceable on that basis. We reverse the court of appeals’ judgment and remand to the trial court for further proceedings.

Go or No Go? - The signals from
the judiciary can be a challenge

CONCLUSION: In this case, the covenant not to compete is “ancillary to or part of” an otherwise enforceable agreement because the business interest being protected (goodwill) is reasonably related to the consideration given (stock options). Section 15.50 requires that there be a nexus between the covenant not to compete and the interest being protected. TEX.BUS.&COM.CODE § 15.50(a). This requirement is satisfied by the relationship that exists here. We reverse the judgment of the court of appeals and remand to the trial court for further proceedings consistent with this opinion.

MARSH USA INC. AND MARSH & MCLENNAN COMPANIES, INC. v. REX COOK; from Dallas County; 5th district (05-08-00685-CV, 287 SW3d 378, 05-26-09)

The Court's opinion of June 24, 2011 is withdrawn and the opinion of this date is substituted. The concurring opinion by Justice Willet, the dissenting opinion by Justice Paul Green, and the judgment issued June 24, 2011, remain in place.

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site

SOURCE:
Supreme Court of Texas - Tex (2011) Opinions released December 16, 2011 (link to court here)

How to get attorney's fees awarded: What kind of evidence; is fee segregation required?

2011-12-15T17:47:00.002-06:00

PROVING LEGAL FEES and FEE SEGREGATION REQUIREMENT (per Dallas CoA)

As to attorney's fees, clear, direct, and uncontroverted evidence of attorney's fees is taken as true as a matter of law, especially when the opposing party has the means and opportunity to disprove the testimony. B&W Supply, Inc. v. Beckman, 305 S.W.3d 10, 20 (Tex. App.-Houston [1st Dist.] 2009, no pet.); see Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990).

If a claimant is entitled to recover attorney's fees for some but not all of his claims, he bears the burden of segregating his fees between claims for which they are recoverable and claims for which they are not. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006); A&L Eng'g & Consulting, Inc. v. Shiloh Apollo Plaza, Inc., 315 S.W.3d 928, 931 (Tex. App.-Dallas 2010, no pet.).

But a party is not required to segregate attorney's fees if “discrete legal services advance both a recoverable and unrecoverable claim,” thus causing the fees to become “so intertwined that they need not be segregated.” Chapa, 212 S.W.3d at 313-14. If legal fees are incurred to prosecute a claim for which fees are recoverable, the resulting fees are recoverable even if the services also support claims for which fees are not recoverable. Chapa, 212 S.W.3d at 313.

SOURCE: DALLAS COURT OF APPEALS - 05-10-00173-CV - 12/15/11

The Homebuyers' attorney stated his attorney's fees were $29,944.75, and he had deleted $5477.50 from his bills relating to the proceedings against Langford. The Homebuyers' attorney testified the remaining bills were for time spent on the Home-Sellers' case involving DTPA and fraud, and he was unable to separate those bills because they were so intertwined. The Homebuyers' attorney testified $24,467.25 would be a reasonable fee for the work he performed in this case. The Homebuyers' attorney was cross examined about both the time spent on the case and the segregation of fees. The Home-Sellers stipulated that the Homebuyers' attorney was qualified when he began his testimony regarding attorney's fees. The trial court heard all the evidence and awarded attorney's fees of $20,000. The record shows the attorney's fees associated with claims against Langford were segregated. Because the record shows the legal services advanced both the fraud and DTPA claims against the Home-Sellers, the fees were so intertwined that segregation was not necessary. See Chapa, 212 S.W.3d at 313. This record shows the Homebuyers presented competent evidence of out-of-pocket expenses, loss of fair market value, mental anguish damages, and attorney's fees. We therefore uphold the trial court's finding on these damages. See Fernandez, 15 S.W.3d at 651. We overrule the Home-Sellers' fourth issue.

We affirm the trial court's judgment.

SOURCE: FIFTH COURT OF APPEALS IN DALLAS, TX - 05-10-00173-CV - 12/15/11 (judgment in favor of buyers of vermin-infested home against sellers who did not make proper disclosure of termites affirmed; see prior post on this blog)

Unknowingly bought a termite-infested home in Texas? What cause of action provides relief?

2011-12-15T17:08:00.003-06:00

A case decided by the Dallas Court of Appeals today discusses fraud by non-disclosure and DTPA in a case involving sale of a termite-infested house.

FRAUD, MISREPRESENTATION, FAILURE TO MAKE DISCLOSURE OF DEFECTS IN CONNECTION WITH
SALE OF RESIDENCE

ELEMENTS OF FRAUD & FRAUDULENT NON-DISCLOSURE

The elements of a cause of action for fraud are: (1) that a material misrepresentation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). Fraud also occurs when a party fails to disclose a material fact within the knowledge of that party; the party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth; the party intends to induce the other party to take some action by failing to disclose the fact; and the other party suffers injury as a result of acting without knowledge of the undisclosed fact. New Process Steel Corp. v. Steel Corp. of Texas, 703 S.W.2d 209, 214 (Tex. App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.). A seller is charged with disclosing such material facts as to put a buyer exercising reasonable diligence on notice of the condition of the house. Cole v. Johnson, 157 S.W.3d 856, 860-61 (Tex. App.-Fort Worth 2005, no pet.).

Under certain circumstances, a buyer's independent inspection of the property may conclusively defeat two elements of a fraud claim: causation and reliance. A buyer's independent inspection precludes a showing of causation and reliance if it reveals to the buyer the same information that the seller allegedly failed to disclose. See Lesieur v. Fryar, 325 S.W.3d 242, 246-49 (Tex. App.-San Antonio 2010, no pet.).

SOURCE: DALLAS COURT OF APPEALS - 05-10-00173-CV - 12/15/11

DECEPTIVE TRADE PRACTICES ACT (Texas DTPA)

“The DTPA grants consumers a cause of action for false, misleading, or deceptive acts or practices.”Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996); see Tex. Bus. & Com. Code Ann. § 17.50(a) (West Supp. 2010); see also id. §§ 17.45(5), 17.46(b). The trial court found the Home-Sellers knowingly engaged in a misleading, deceptive act that the Homebuyers relied on to their detriment and which was a producing cause of damages to the Homebuyers. The elements of a DTPA claim are: (1) the plaintiff was a consumer; (2) the defendant either engaged in false, misleading or deceptive acts (i.e., violated a specific laundry-list provision of the DTPA) or engaged in an unconscionable action or course of action; and (3) the DTPA laundry-list violation or unconscionable action was a producing cause of the plaintiff's injury. Amstadt, 919 S.W.2d at 649; see Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995). In our review of a DTPA claim, we must liberally construe and apply the statute to promote the underlying goals of the statute, which include protecting consumers against false, misleading, and deceptive business practices and unconscionable actions. See Tex. Bus. & Com. Code Ann. § 17.44(a) (West 2002); Latham v. Castillo, 972 S.W.2d 66, 68 (Tex.1998).

WHAT DAMAGES CAN BE RECOVERED UNDER THE DTPA?

A consumer who prevails on a claim under the DTPA may obtain the amount of economic damages found by the trier of fact. Tex. Bus. & Com. Code Ann. § 17.50(b)(1) (West Supp. 2010). If the trier of fact finds that the conduct of the defendant was committed knowingly, the consumer may also recover damages for any mental anguish found by the trier of fact. Id. A prevailing party shall be awarded reasonable and necessary attorney's fees and any other relief which the court deems proper. Id. §§17.50(d); 17.50(b)(4).

An award of mental anguish damages will survive a legal sufficiency challenge when the plaintiffs have introduced direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs' daily routine. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Direct evidence of mental anguish may be in the form of the parties' own testimony, that of third parties, or experts. Id. There must also be some evidence to justify the amount awarded, and the amount awarded must be fair and reasonable. Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).

Direct evidence of mental anguish may be in the form of the parties' own testimony, that of third parties, or experts. Parkway, 901 S. W. 2d at 444.

SOURCE: DALLAS COURT OF APPEALS - 05-10-00173-CV - 12/15/11

BUYERS vs. SELLERS

of termite-infested home

Firth Court of Appeals affirms judgment for Buyers
in unsuccessful appeal by Sellers

Rick and Kathy [Home-Sellers] appeal the trial court's judgment awarding Jerry and Connie [Homebuyers] damages on their claims arising out of their purchase of a termite-infested house from the Home-Sellers. In four issues, the Home-Sellers argue the evidence is factually insufficient to support the trial court's judgment, and the trial court erred by (1) declining to make findings of fact and conclusions of law, (2) rendering judgment in favor of the Homebuyers when the evidence was factually insufficient to support the judgment, (3) failing to grant the Home-Sellers' motion for judgment as a matter of law, and (4) awarding judgment for out-of-pocket expenses, loss of fair market value, mental anguish, and attorney's fees. We affirm the trial court's judgment.

NOTE: The court of appeals' opinion refers to the parties by their real names; they have here been replaced with functional labels

In the summer of 2006, the Homebuyers, interested in purchasing a property in Sherman, were driving through a residential neighborhood when they saw a for sale sign in front of the Home-Sellers' home. The Homebuyers stopped and got out to look at the house, and the Home-Sellers came out and offered to give them a tour of the house. During the tour, the Home-Sellers discussed the remodeling they had done to the house. The Homebuyers decided to buy the house and offered $125,000, which the Home-Sellers accepted. The Homebuyers hired James Langford to do a home and termite inspection before the closing. The Homebuyers and Home-Sellers were all present at the time of the inspection. In the seller's disclosure statement, the Homebuyers had seen the Seller's disclosure that the house had been “sprayed and treated in spring for termite[s]. Outside only.” The Home-Sellers had told the realtor that it was “for maintenance purposes only.” During the inspection, Langford asked where the termites were. Rick Seller did not respond to Langford's question, and Langford asked, “Where did you spray?” Rick Seller said “it was outside, out down around the old storage building.” Connie Home-Buyer “felt a concern” and asked Rick Seller if there were any termites or if there had ever been any termites. Rick Seller said no. The sale proceeded to closing.

The Homebuyers began moving into the house and found termites on September 1, 2006, nine days after closing. At that time, the interior of the home appeared freshly painted. Connie Home-Buyer set a box down and bumped into a picture and a dry erase board that the Home-Sellers had left in the kitchen. The dry erase board and picture fell down, revealing a hole in the wall behind each one. Connie Home-Buyer began removing the wallpaper in the kitchen because she knew she was “going to have to redo it” and “get that hole fixed in the kitchen.” When Connie Home-Buyer removed the “very first piece of wallpaper” she discovered what she recognized were termite holes.

The Homebuyers hired a licensed exterminator and termite inspector, Roy Reed, to perform an inspection on September 8, 2006. In the den ceiling, Reed immediately identified an area where the termites had already eaten the wood, and it was “not even wood anymore, [it was] caulk.” Reed pushed up with his thumb on the ceiling and “termites just showered down on him.” Reed told Connie Home-Buyer “what pictures to take as he was going through the inspection,” and the photos were admitted at trial. The inspection revealed termite infestation in the house, and the Homebuyers “never unpacked.” The Homebuyers got estimates on repairing the termite damage, but they could not afford to make the repairs, and they decided to move. The Homebuyers rented a place to live and sold the house approximately eight months later for $74,000, a thousand dollars less than they owed the bank. In July 2007, the Homebuyers sued the Home-Sellers and Langford. The Homebuyers settled their claims against Langford. Following a bench trial, the trial court entered judgment in favor of the Homebuyers, and this appeal followed.

In their first issue, the Home-Sellers argue the trial court erred in failing to make findings of fact and conclusions of law. Contrary to the Home-Sellers' assertion, the record contains the trial court's letter to the parties making findings that (1) the Home-Sellers engaged in a misleading, deceptive act that the Homebuyers relied on to their detriment and which was a producing cause of damages to the Homebuyers; (2) the Home-Sellers engaged in such conduct knowingly; and (3) the Home-Sellers committed fraud against the Homebuyers. The trial court went on to find the Homebuyers were entitled to benefit of the bargain damages, out of pocket expenses, mental anguish damages, “additional damages permitted by the DTPA,” and attorney's fees.

After the trial court files its original findings of fact and conclusions of law, any party may file a request for specified additional or amended findings or conclusions with the clerk of the court. Tex. R. Civ. P. 298;Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 408 (Tex. App.-Dallas 2006, no pet.). The failure of a party to request additional or amended findings or conclusions waives the party's right to complain on appeal about the presumed finding. Gentry, 188 S.W.3d at 408. The Home-Sellers failed to request additional or amended findings and therefore have waived any complaint. We overrule the Home-Sellers' first issue.

In their second issue, the Home-Sellers argue the evidence is factually insufficient to support the trial court's judgment. The Home-Sellers argue the evidence is factually insufficient to show they made false material representations to the Homebuyers or their acts were a substantial factor in bringing about an injury to the Homebuyers.

[section on factual sufficiency challenge omitted]

The trial court found the Home-Sellers committed fraud against the Homebuyers. The elements of a cause of action for fraud are: (1) that a material misrepresentation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). Fraud also occurs when a party fails to disclose a material fact within the knowledge of that party; the party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth; the party intends to induce the other party to take some action by failing to disclose the fact; and the other party suffers injury as a result of acting without knowledge of the undisclosed fact. New Process Steel Corp. v. Steel Corp. of Texas, 703 S.W.2d 209, 214 (Tex. App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.). A seller is charged with disclosing such material facts as to put a buyer exercising reasonable diligence on notice of the condition of the house. Cole v. Johnson, 157 S.W.3d 856, 860-61 (Tex. App.-Fort Worth 2005, no pet.).

“The DTPA grants consumers a cause of action for false, misleading, or deceptive acts or practices.”Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996); see Tex. Bus. & Com. Code Ann. § 17.50(a) (West Supp. 2010); see also id. §§ 17.45(5), 17.46(b). The trial court found the Home-Sellers knowingly engaged in a misleading, deceptive act that the Homebuyers relied on to their detriment and which was a producing cause of damages to the Homebuyers. The elements of a DTPA claim are: (1) the plaintiff was a consumer; (2) the defendant either engaged in false, misleading or deceptive acts (i.e., violated a specific laundry-list provision of the DTPA) or engaged in an unconscionable action or course of action; and (3) the DTPA laundry-list violation or unconscionable action was a producing cause of the plaintiff's injury. Amstadt, 919 S.W.2d at 649; see Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995). In our review of a DTPA claim, we must liberally construe and apply the statute to promote the underlying goals of the statute, which include protecting consumers against false, misleading, and deceptive business practices and unconscionable actions.See Tex. Bus. & Com. Code Ann. § 17.44(a) (West 2002); Latham v. Castillo, 972 S.W.2d 66, 68 (Tex.1998).

Here, Rick Seller testified that, at the time he filled out the seller's disclosure form, he knew that in 2004 he had found live and dead termites in the garage and the “freezer room,” a room connected to the house. The Home-Sellers called Barry Walker to treat the termites. Walker advised them to treat the entire house for termites. The termites came back in the spring of 2005, and Walker treated them again. In spring 2006, a few months before the sale of the house to the Homebuyers, termites appeared again in the garage and freezer room, and Walker treated them. The Home-Sellers did not disclose any of these treatments in the garage and freezer room attached to the house. Instead, the Seller's disclosure stated that the house had been “sprayed and treated in spring for termite[s]. Outside only.”

Connie Home-Buyer testified Rick Seller said at the time of the inspection that he sprayed for termites “outside, out down around the old storage building.” Connie Home-Buyer “felt a concern” and asked Rick Seller if there were any termites or if there had been any termites at the property. Rick Seller said no. Connie Home-Buyer testified she would not have closed on the house if she had known the Home-Sellers (1) had seen a swarm of termites outside the house in the spring of 2004, (2) had a professional treat the house for termites in 2004, and (3) had a recurrence of termites in 2005 and had a professional come out and treat the house. We conclude this evidence was factually sufficient to support the trial court's determination that the Home-Sellers made false material representations to the Homebuyers, and their acts were a substantial factor in bringing about an injury to the Homebuyers. See Plas-Tex, Inc., 772 S.W.2d at 445. Further, the evidence was factually sufficient to show the Homebuyers acted in reliance on the Home-Sellers' misrepresentations. See In re FirstMerit Bank, N.A., 52 S.W.3d at 758; Amstadt, 919 S.W.2d at 649.

In their third issue, the Home-Sellers argue the trial court erred in failing to grant their “motion for verdict as a matter of law” on the Homebuyers' fraud and DTPA claims. See Footnote . Specifically, they argue “the Homebuyers' reliance on their own professional inspection negates the element of reliance.”

Under certain circumstances, a buyer's independent inspection of the property may conclusively defeat two elements of a fraud claim: causation and reliance. A buyer's independent inspection precludes a showing of causation and reliance if it reveals to the buyer the same information that the seller allegedly failed to disclose. See Lesieur v. Fryar, 325 S.W.3d 242, 246-49 (Tex. App.-San Antonio 2010, no pet.). Relying on Dubow v. Dragon, 746 S.W.2d 857 (Tex. App.-Dallas 1988, no writ), the Home-Sellers argue the Homebuyers' careful inspection of the property in this case negated the element of reliance. Based on the facts presented in Dubow, this Court concluded that “the [buyers'] 'careful' inspection of the house's condition constituted a new and independent basis for the purchase which intervened and superseded the [sellers'] alleged wrongful act.” Id. at 860. But the crucial fact in Dubow was not the buyers' procurement of an independent inspection; it was their express and exclusive reliance on the “professional opinions” they received to renegotiate the sales contract that resulted in the sale of the house. Id.; see Fernandez v. Schultz, 15 S.W.3d 648, 652 (Tex. App.-Dallas 2000, no pet.). In this case, there is no evidence that the Homebuyers relied solely on the opinion of their inspector in making their decision to purchase the house. See Fernandez, 15 S.W.3d at 652. Also, the contract here was never renegotiated in reliance on the inspection. See id. In fact, the testimony shows the Homebuyers' decision to buy the property would have been materially affected if the Home-Sellers had told them on the seller's disclosure form about the prior termites in the home. See id.

Although it may be true that their inspector's failure to discover the termites inside the house was a producing cause of the Home-Buyer's damages, there nevertheless may be more than one producing cause of damages in a case. Fernandez, 15 S.W.3d at 653. Here, the Home-Sellers' failure to disclose their knowledge of the termites was also a producing cause of the Homebuyers' damages. Id. Had the Home-Sellers informed the Homebuyers about the termites, they could have required their inspector to look more deeply for signs of termite damage. Id. Further, the evidence shows the Home-Sellers actively concealed the presence of the termites, thus making it more difficult for the inspector to discover them. Id. Accordingly, we conclude the Homebuyers' procurement of an independent inspection did not supersede the Home-Sellers' actions as a producing cause of damages. See id.We overrule the Home-Sellers' third issue.

In their fourth issue, the Home-Sellers argue the trial court erred in awarding “out-of-pocket” expenses, loss of fair market value, mental anguish damages, and attorney's fees. Specifically, the Home-Sellers argue the Homebuyers failed to present competent evidence to support any damages. In reviewing a contention of no evidence to support a trial court's finding, we must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Fernandez, 15 S.W.3d at 651. If there is more than a scintilla of evidence to support the finding, it must be upheld. Id.

A consumer who prevails on a claim under the DTPA may obtain the amount of economic damages found by the trier of fact. Tex. Bus. & Com. Code Ann. § 17.50(b)(1) (West Supp. 2010). If the trier of fact finds that the conduct of the defendant was committed knowingly, the consumer may also recover damages for any mental anguish found by the trier of fact. Id. A prevailing party shall be awarded reasonable and necessary attorney's fees and any other relief which the court deems proper. Id. §§17.50(d); 17.50(b)(4).

A property owner is qualified to testify to the market value of his property. Redman Homes v. Ivy, 920 S.W.2d 664, 669 (Tex. 1996). This evidence is probative if it is based on the owner's estimate of market value and not some intrinsic or other value such as replacement cost. Id. The Home-Sellers argue a property owner has to show some familiarity with market value. Connie Home-Buyer testified she researched the market value of the property through a realtor and determined the property had to be sold in “as-is” condition. Jerry Home-Buyer testified he paid $125,000 for the house and, after the termites were discovered, he was able to sell the house for only $74,000. Connie Home-Buyer testified she had owned six houses in the past as real estate investments and sold the properties after remodeling them. Thus, the record shows the Homebuyers' testimony concerning market value was based on their estimates of market value and not some intrinsic or other value. See id.

As to out-of-pocket expenses, Jerry Home-Buyer testified he and Connie incurred expenses of $13,250 to rent a home because the house they bought from the Home-Sellers was uninhabitable, $652 to maintain insurance on the house, $404 for renters' insurance, $610.96 in moving costs, and $2401.89 in taxes. Connie Home-Buyer testified she had owned six houses “as a home investor.” She got bids to repair the house, but the bids were limited in scope to the damage visible at the time. The bids ranged from $40,000 to $60,000. The Homebuyers decided to sell the house and placed an advertisement in the newspaper. A realtor told the Homebuyers that the house had to be sold “as-is.” In eight months of trying to sell the house, the Homebuyers received only three calls from “interested” parties, and only two people looked at the house. One person made an offer of $74,000, and the Homebuyers accepted the offer.

An award of mental anguish damages will survive a legal sufficiency challenge when the plaintiffs have introduced direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs' daily routine. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Direct evidence of mental anguish may be in the form of the parties' own testimony, that of third parties, or experts. Id. There must also be some evidence to justify the amount awarded, and the amount awarded must be fair and reasonable. Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).

The Home-Sellers cite the standard that “the evidence must show a high degree of mental pain and distress that is more than worry, anxiety, vexation, embarrassment or worry,” citing Houston Livestock Show & Rodeo, Inc. v. Hamick, 125 S. W. 3d 555 (Tex. App.-Austin 2003, no pet.). They argue that the evidence from Connie Home-Buyer showed she experienced stress, lost a little weight, felt anxiety because of her husband's drinking, and refused to take any anti-anxiety medicine. The Home-Sellers also cite Jerry Home-Buyer's testimony that some of his wife's anxiety was directly related to his issues with alcohol.

Direct evidence of mental anguish may be in the form of the parties' own testimony, that of third parties, or experts. Parkway, 901 S. W. 2d at 444. Connie Home-Buyer testified she and her husband put their life savings into a home they could neither live in nor afford to repair. She testified that it destroyed them financially. Connie Home-Buyer related how her husband had maintained his sobriety for twelve years but began drinking again because of this stress. She convinced him to go to the doctor, who prescribed medication. Jerry Home-Buyer has continued to take prescription medication for the last two years. Connie Home-Buyer testified she was unable to eat for three months after this occurred, she threw up everything she ate, and she lost fifteen pounds. Under cross examination, she stated her husband's relapse was caused by the loss of the house, and she was under a lot of mental anguish and a lot of mental pain. Jerry Home-Buyer testified how very hard emotionally this had been and that this was his only relapse in his sobriety. Evidence that Jerry Home-Buyer maintained his sobriety for twelve years and then relapsed under the financial stress of losing his home and life savings, together with evidence Connie Home-Buyer shared in this loss and was unable to eat, is evidence of much more than mere worry, anxiety, vexation, embarrassment, or anger. We conclude the evidence was sufficient to establish the nature, duration, and severity of their mental anguish. See Parkway, 901 S. W. 2d at 444.

[section on law governing award of attorney's fees and segregation requirement omitted]

The Homebuyers' attorney stated his attorney's fees were $29,944.75, and he had deleted $5477.50 from his bills relating to the proceedings against Langford. The Homebuyers' attorney testified the remaining bills were for time spent on the Home-Sellers' case involving DTPA and fraud, and he was unable to separate those bills because they were so intertwined. The Homebuyers' attorney testified $24,467.25 would be a reasonable fee for the work he performed in this case. The Homebuyers' attorney was cross examined about both the time spent on the case and the segregation of fees. The Home-Sellers stipulated that the Homebuyers' attorney was qualified when he began his testimony regarding attorney's fees. The trial court heard all the evidence and awarded attorney's fees of $20,000. The record shows the attorney's fees associated with claims against Langford were segregated. Because the record shows the legal services advanced both the fraud and DTPA claims against the Home-Sellers, the fees were so intertwined that segregation was not necessary. See Chapa, 212 S.W.3d at 313.

This record shows the Homebuyers presented competent evidence of out-of-pocket expenses, loss of fair market value, mental anguish damages, and attorney's fees. We therefore uphold the trial court's finding on these damages. See Fernandez, 15 S.W.3d at 651. We overrule the Home-Sellers' fourth issue.

We affirm the trial court's judgment.

DAVID L. BRIDGES

JUSTICE

________________________________________

Footnote: Although the Home-Sellers also argue the trial court erred in denying their motion for judgment on the Homebuyers' negligent misrepresentation claims, the Homebuyers did not assert a claim for negligent misrepresentation, and the trial court's judgment did not award relief on a negligent misrepresentation claim. While the Homebuyers' original petition alleged certain negligence claims against Langford, all claims against Langford were dismissed prior to trial.

________________________________________

SOURCE: DALLAS COURT OF APPEALS - 05-10-00173-CV - 12/15/11

Statute of frauds as to sale of land, real property, may not always nix claim of ownership in the absence of a deed

2011-12-14T15:57:00.001-06:00

Conveyance of land normally requires a proper written instrument (deed), but there are exceptions. Moreover, the statute of frauds is an affirmative defense subject to waiver.

TEXAS STATUTE OF FRAUDS AS TO REAL ESTATE TRANSACTIONS AND
EXCEPTIONS TO ITS STRICT APPLICATION

Under Texas law, oral contracts to convey land are not void, but unenforceable if the party against whom enforcement is sought raises the statute of frauds as a defense. Joiner v. Elrod, 716 S.W.2d 606, 608-09 (Tex. App.—Corpus Christi 1986, no writ).

To relieve a parol sale of land from the operation of the statute of frauds, three things are necessary: (1) payment of the consideration, whether it be in money or services; (2) possession by the vendee; and (3) the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. Hooks v. Bridgewater, 111 Tex. 122, 126-27, 229 S.W.2d 1114, 1116-117 (1921).

This is also called the doctrine of partial performance. See Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex. 1992) (“Under the doctrine of partial performance as applied to the statute of frauds, an oral contract for the purchase of real property is enforceable if the purchaser: (1) pays the consideration; (2) takes possession of the property; and (3) makes permanent and valuable improvements on the property with the consent of the seller, or, without such improvements, other facts are shown that would make the transaction a fraud on the purchaser if the oral contract was not enforced.”).

SOURCE: CORPUS CHRISTI COURT OF APPEALS - 13-10-00490-CV – 12/1/11

In this case, the trial court found (and appellant has not challenged) that: (1) appellees paid more than 90% of the total consideration to purchase the property from a third party and to obtain a free and clear title to the property by repaying the purchase money note, while decedent paid less than 10%; (2) appellees have had possession and have resided on the property since 1993; (3) appellees made substantial permanent improvements on the property with decedent’s consent; and (4) under the circumstances presented, the transaction would be a fraud upon appellees if it were not enforced. The foregoing provides a sufficient basis for the trial court to have concluded that the statute of frauds did not apply based on the doctrine of partial performance. Accordingly, appellant cannot establish the premise of her first issue (i.e., the applicability of the statute of frauds), and the issue is therefore overruled.

SOURCE: CORPUS CHRISTI COURT OF APPEALS - 13-10-00490-CV – 12/1/11

Legal action to divide land (partition suit) has some particularities

2011-12-14T15:40:00.002-06:00

Partition suit involving jointly-owned land is exception to the rule that a lawsuit can only result in one final and appealable judgment (barring severance of claims).

SUIT FOR PARTITION OF LAND HAS SOME QUIRKS

Partition serves to divide property owned by co-tenants and concerns possession, not title. See Barham v. McGraw, 342 S.W.3d 716, 719 (Tex. App.—Amarillo 2011, pet. filed); Dierschke v. Central Nat’l Branch of First Nat’l Bank of Lubbock, 876 S.W.2d 377, 380 (Tex. App.—Austin 1994, no writ) (stating that an owner of a non-possessory interest cannot compel partition). Thus, to prevail in a suit for partition, “a plaintiff need only establish that he owns an interest in the property and has a right to possession of a portion thereof.” Trevino v. Trevino, 64 S.W.3d 166, 171 (Tex. App.—San Antonio 2001, no pet.). In order to have a partitionable, “possessory interest” in a given piece of property, one must have an equal “right to possession” with the other joint owners. Savell v. Savell, 837 S.W.2d 836, 838-40 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (must have right to present possessory interest); Brelsford v. Scheltz, 564 S.W.2d 404, 406 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref'd n.r.e.); Lichtenstein v. Lichtenstein Bldg. Corp., 442 S.W.2d 765, 767-68 (Tex. Civ. 5 App.—Corpus Christi 1969, no writ) (party seeking the partition must have an equal right to possession with the other joint owners). The trial court shall order partition if it “determines that the whole, or any part of such property is susceptible of partition.” TEX. R. CIV. P. 761.

TWO FINAL JUDGMENTS

A partition case, unlike other proceedings, has two final judgments, and the first one is appealable as a final judgment. Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980). The first decree determines the interest of each of the joint owners or claimants, all questions of law affecting the title, and appoints commissioners and gives them appropriate directions. Ellis v. First City Nat'l Bank, 864 S.W.2d 555, 557 (Tex. App.—Tyler 1993, writ denied); see also TEX. R. CIV. P. 760, 761.

The second decree approves the report of the commissioners and sets aside to the parties their separate shares. Ellis, 864 S.W.2d at 557. In addition to determining the basic issues of partitionability in kind and the fractional interest of the parties, the trial court also has the power during the initial stage of the partition proceeding to adjust all equities between the parties. Yturria v. Kimbro, 921 S.W.2d 338, 342 (Tex. App.—Corpus Christi 1996, no writ); see also Snow v. Donelson, 242 S.W.3d 570, 572 (Tex. App.—Waco 2007, no pet.) (“The trial court applies the rules of equity in determining the broad question of how property is to be partitioned”).

Proof is made to the fact finder at trial of the existence and value of improvements to the property at the time of partition and of other equitable considerations that may warrant awarding a particular portion of the property to one of the parties. Price v. Price, 394 S.W.2d 855, 858 (Tex. Civ. App.—Tyler 1965, writ ref’d n.r.e.). The general rule is that where improvements have been made upon the property sought to be partitioned, the improved portion will be allotted to the part owner who has made the improvements if this can be done without prejudice to the other owners. Id.
It is well-established that the trial court has the power during the initial stage of the partition proceeding to adjust all equities between the parties. Yturria, 921 S.W.2d at 342; see also Snow, 242 S.W.3d at 572 (“The trial court applies the rules of equity in determining the broad question of how property is to be partitioned.”).

SOURCE: CORPUS CHRISTI COURT OF APPEALS - 13-10-00490-CV – 12/1/11

Whether a contract is clear or ambiguous makes a difference when it comes to litigation

2011-12-14T12:46:00.001-06:00

The question whether there is ambiguity in contractual language impacts the admissibility of evidence outside the contract itself, which could otherwise not be considered under the parol [not parole] evidence rule. But often the parties disagree on whether ambiguity exists and the judge must make the call.

CONTRACT AMBIGUITY – OR ABSENCE THEREOF -- AND ITS IMPLICATIONS

Whether an agreement is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances existing at the time the contract was entered. Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983); Ganske v. Spence, 129 S.W.3d 701, 707 (Tex. App.—Waco 2004, no pet.).

An ambiguity does not arise simply because the parties interpret the contract differently. Seagull Energy E & P, Inc. v. Eland Energy, 207 S.W.3d 342, 345 (Tex. 2006); Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000). A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Eland Energy, 207 S.W.3d at 345.

If the agreement can be given a certain or definite legal meaning or interpretation, it is not ambiguous, and we will construe it as a matter of law. Coker, 650 S.W.2d at 393. Moreover, a court will not change a contract merely because the court or one of the parties comes to dislike its provisions or thinks that something else is needed. Calpine Producer Servs., L.P. v. Wiser Oil Co., 169 S.W.3d 783, 787 (Tex. App.—Dallas 2005, no pet.).

We are not allowed to rely on parol evidence to ascertain the meaning of an unambiguous agreement. See Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (“Parol evidence is not admissible for the purpose of creating an ambiguity. Only where a contract is first determined to be ambiguous may the courts consider the parties’ interpretation . . . and admit extraneous evidence to determine the true meaning of the instrument.”).

SOURCE: WACO COURT OF APPEALS - 10-11-00257-CV – 12/7/11
RELATED LEGAL TERMS: contract construction, contract interpretation, ambiguous vs. unambiguous contractual provisions, parol evidence rule, 4-corners rule

TTCA Notice of Claim Requirement for suit under the Tort Claims Act

2011-12-13T23:53:00.002-06:00

Texas Tort Claims Act: Waiver of immunity allows for suits against governmental defendants that would otherwise be jurisdictionally barred, subject to requirement that timely notice be given in writing or governmental entity have actual notice. But what amounts to actual notice?  A recent opinion by the Austin Court of Appeals discusses supreme court precedent on the issue:

Absent a waiver, governmental entities are generally immune from suits for damages. University of Tex. Sw. Med. Ctr. v. Estate of Arancibia, 324 S.W.3d 544, 546 (Tex. 2010). Such immunity deprives a trial court of subject-matter jurisdiction. Miranda, 133 S.W.3d at 224. The Texas Tort Claims Act ("the Act") provides a limited waiver of governmental immunity "to the extent of liability created by [the Act]." Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (West 2011); Tex. Gov't Code Ann. § 311.034 (West Supp. 2011). To take advantage of this waiver, claimants must provide a governmental entity with sufficient notice of their claims. Tex. Civ. Prac. & Rem. Code Ann. § 101.101.

In its sole point of error, the County alleges that because it did not receive the required statutory notice of Gough's claim, its plea to the jurisdiction should not have been denied. See Colquitt v. Brazoria County, 324 S.W.3d 539, 543 (Tex. 2010) (per curiam).

Under the Act, a party seeking to impose liability must provide a governmental entity formal, written notice not later than six months after the day the incident giving rise to the claim occurred, reasonably describing (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a); Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995). However, the formal notice requirement does not apply "if the governmental unit has actual notice of the death, injury, or property damage claimed." Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c). The purpose of the Act's notice provision is to ensure prompt reporting of claims to allow governmental units time to guard against unfounded claims, settle claims, and prepare for trial. Cathey, 900 S.W.2d at 341. In this case, the parties agree that Gough did not present the County with formal notice within six months of the accident. Accordingly, their dispute centers on whether the County received actual notice of Gough's claim.

The Texas Supreme Court interpreted the Act's actual notice provision in Cathey v. Booth. Id. at 340-41. In that case, the appellants urged that a hospital had actual notice of their negligence claims by virtue of its medical records of the stillbirth of their child. However, the court rejected that interpretation of actual notice, which would "require[] only that a governmental unit have knowledge of a death, an injury, or property damage." Id. at 341 (emphasis added). The court asserted that such an interpretation would force defendants such as hospitals "to investigate the standard of care provided to each and every patient that received treatment" and would therefore "eviscerate the purpose of the statute." Id. The court held that actual notice to a governmental entity "requires knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved." Id.

SOURCE: AUSTIN COURT OF APPEALS - 03-11-00164-CV – 12/ 9/11

Concho County, Texas v. Gough (Tex.App.- Austin, Dec. 9, 2011, no pet. h.)

Appellant Concho County ("the County") brings this interlocutory appeal from the trial court's denial of its plea to the jurisdiction in a personal injury suit brought by Billy Randall Gough, temporary administrator of the estate of Gary August Gough, under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, .101 (West 2011). We affirm the order denying the plea to the jurisdiction.

The County's interpretation of actual notice would effectively narrow "awareness of alleged fault" to the point of requiring awareness of liability. "Fault, as it pertains to actual notice, is not synonymous with liability; rather, it implies responsibility for the injury claimed." University of Tex. Sw. Med. Ctr., 324 S.W.3d at 550. In this case, an allegation of such responsibility was clearly communicated. The pleadings affirmatively demonstrate that the County had knowledge of Gary Gough's allegations in satisfaction of the actual notice requirements of the Texas Tort Claims Act; we therefore hold that governmental immunity was waived and the trial court's exercise of subject-matter jurisdiction was proper. We overrule the County's sole issue on appeal.

CONCLUSION

Because we hold that actual notice was received under section 101.021 of the civil practice and re medies code, we affirm the trial court's order denying the County's plea to the jurisdiction.

SOURCE: THIRD COURT OF APPEALS OF TEXAS - 03-11-00164-CV – 12/ 9/11

BACKGROUND

The basic facts in this case are undisputed. Before dawn on September 29, 2008, Gary August Gough walked onto the roadway of U.S. Highway 87 in Eden, Texas, and was struck by an oncoming Ford F-150 pickup truck.⁽¹⁾ The driver of the vehicle was Concho County Sheriff Richard Doane, who then contacted the county police dispatch by radio to report that he had struck a pedestrian. An officer from the Texas Department of Public Safety (DPS), Trooper Rob Manley, evaluated the scene and authored a report identifying Gary Gough's failure to yield the right of way as the cause of the accident. Gary Gough suffered injuries from the impact and was transported from the scene for treatment.⁽²⁾

Subsequent to this incident, the parties exchanged a series of communications. On October 15, 2008, counsel for Gary Gough submitted an open records request to the Concho County Attorney for "all county cell phone records for Richard Doane and all other sheriff personnel for September 28, 29, and 30, 2008." On October 28, an attorney for the County wrote a letter to Gary Gough stating that an independent investigation found Gary Gough's negligence to have caused the accident and demanding that he pay $2,663.14 for repairs to the sheriff's vehicle. Then, on November 3, another attorney for the County responded in writing to Gary Gough's open records request, stating, "Because the requested information relates to an incident that the County anticipates will form the basis of litigation . . . this information is being withheld." Finally, on December 11, the same attorney for the County wrote in another letter to Gary Gough's counsel that "Concho County's election to withhold the requested documents pursuant to the litigation exception is based, in part, on statements made by you regarding bringing a lawsuit on behalf of your client Gary Gough."

On September 28, 2010, as Temporary Administrator of Gary Gough's estate, Gough sued the County for the negligent operation of Doane's vehicle under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (providing for governmental liability if property damage, personal injury, or death is proximately caused by an employee's negligence and "arises from the operation or use of a motor-driven vehicle"). The County filed a plea to the jurisdiction asserting governmental immunity. It alleged that Gough failed to comply with the notice of the Texas Tort Claims Act as required for a waiver of such immunity. See id. § 101.101. After a hearing, the trial court denied the County's plea to the jurisdiction. This interlocutory appeal followed.

Concho County, Texas v. Gough (Tex.App.- Austin, Dec. 8, 2011, no pet. h.)

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Whether a trial court has subject-matter jurisdiction is a question of law that we review de novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007). In reviewing a plea to the jurisdiction, an appellate court does not look to the merits of the case except to the extent required to resolve the jurisdictional inquiry. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). If the pleadings neither affirmatively demonstrate the trial court's jurisdiction nor affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate jurisdiction, a plea to the jurisdiction may be granted without allowing an opportunity to amend. Id. at 227. Unless a pleaded fact is challenged and negated, it must be taken as true for purposes of determining subject-matter jurisdiction. See City of Austin v. Leggett, 257 S.W.3d 456, 462 (Tex. App.--Austin 2008, pet. denied); see also University of Texas v. Poindexter, 306 S.W.3d 798, 806 (Tex. App.--Austin 2009, no pet.).

DISCUSSION

Absent a waiver, governmental entities are generally immune from suits for damages. University of Tex. Sw. Med. Ctr. v. Estate of Arancibia, 324 S.W.3d 544, 546 (Tex. 2010). Such immunity deprives a trial court of subject-matter jurisdiction. Miranda, 133 S.W.3d at 224. The Texas Tort Claims Act ("the Act") provides a limited waiver of governmental immunity "to the extent of liability created by [the Act]." Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (West 2011); Tex. Gov't Code Ann. § 311.034 (West Supp. 2011). To take advantage of this waiver, claimants must provide a governmental entity with sufficient notice of their claims. Tex. Civ. Prac. & Rem. Code Ann. § 101.101. In its sole point of error, the County alleges that because it did not receive the required statutory notice of Gough's claim, its plea to the jurisdiction should not have been denied. See Colquitt v. Brazoria County, 324 S.W.3d 539, 543 (Tex. 2010) (per curiam).

Before the hearing on the plea to the jurisdiction in this case, Gough filed a petition alleging that the County was properly placed on notice of his claims. Gough claims that one month after the accident, on October 28, 2008, the County made demand on Gary Gough for the damage to the sheriff's vehicle from the collision. On November 3, 2008, an attorney for the County cited the litigation exception in denying an open records request by Gary Gough's counsel. Finally, Gough claims that on December 11, 2008, in another response by the County to the open records request, the same attorney acknowledged statements by Gary Gough's counsel regarding a lawsuit on his behalf. According to the copy of that letter attached to the petition, "the County's election to withhold the requested documents pursuant to the litigation exception [was] based, in part, on comments by [Gary Gough's attorney] regarding bringing a lawsuit on [his] behalf."

The County does not dispute any of these pleaded facts. See Leggett, 257 S.W.3d at 462. Accordingly, Gough's pleadings affirmatively demonstrate each factor set forth in Cathey. The County had knowledge that Gary Gough was injured and that he and the County were the parties involved. In addition, the County had knowledge that it was alleged to be at fault in producing or contributing to Gary Gough's injury. Its explicit recognition that a lawyer for Gary Gough made statements about suing on his behalf affirmatively demonstrates that the County knew of actual allegations by Gary Gough that the County's fault produced his injuries.

Nevertheless, the County claims that Gough's allegations fail to satisfy the requirements of the actual notice provision because the County had no subjective awareness of its fault in producing or contributing to Gough's alleged injuries. The County argues that it had no subjective awareness of fault because it relied on the DPS officer's report indicating that only Gary Gough's negligence was to blame. We recognize that the requirement in Cathey of knowledge of alleged fault is met when a governmental unit is subjectively aware of its fault in producing or contributing to a claimant's injury. Texas Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 347 (Tex. 2004) (superseded on other grounds). However, we need not decide whether the record demonstrates that Concho County had subjective awareness of fault. We hold that because the County had knowledge of an actual allegation of fault against it, no demonstration of subjective awareness of fault is required.

The County's reasoning misconstrues the requirements for actual notice under the Act. It relies heavily on language introduced by the Texas Supreme Court when it clarified the second of Cathey's elements in Texas Department of Criminal Justice v. Simons. In that case, the court grappled with determining the minimum requirement for establishing knowledge of alleged fault. The court reasoned that the bar must not be set too high for any claimant to clear, nor too low to preserve any occasion for formal notice, writing:

By holding in Cathey that "actual notice to a governmental unit requires knowledge of . . . the governmental unit's alleged fault producing or contributing to the death, injury, or property damage," we did not mean that the governmental unit was required to know that the claimant had actually made an allegation of fault. Such knowledge would be tantamount to the notice required by section 101.101(a), only less formal, making the "actual notice" exception in subsection (c) virtually insignificant. On the other hand, Cathey cannot fairly be read to suggest that a governmental unit has actual notice of a claim if it could or even should have learned of its possible fault by investigating the incident. Interpreted so broadly, subsection (c) would become the rule, leaving subsection (a) as the exception for situations where the governmental unit was wholly unaware that any incident had occurred at all . . . .

Simons, 140 S.W.3d at 347. Accordingly, the court defined the outer boundaries of "knowledge of alleged fault" by reference to its original intent in setting forth the second of Cathey's actual notice requirements. That intent, the court wrote, was to provide governmental units with "knowledge that amounts to the same notice to which it is entitled by section 101.101(a)." The court then reasoned:

That includes subjective awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the claimed injury. If a governmental unit has this subjective awareness of fault, along with the other information to which it is entitled under section 101.101(a), then requiring formal, written notice in addition would do nothing to further the purpose of the statute--which is, "to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial."

Id. (emphasis added) (quoting Cathey, 900 S.W.2d at 341).

In light of this reasoning, the County is mistaken in framing subjective awareness of fault as required, not merely sufficient, to demonstrate actual notice to a governmental unit. The court's acceptance of subjective awareness of fault as an avenue for meeting Cathey's second element did not foreclose all other avenues, such as showing that a governmental unit had knowledge of an actual allegation of fault. Cf. Colquitt, 324 S.W.3d at 542 (citing Cavazos v. City of Mission, 797 S.W.2d 268, 271 (Tex. App.--Corpus Christi 1990, no writ) ("In Cavazos, the court of appeals held that a lawsuit, served on the governmental unit within six months of the incident, constituted actual notice under the [Act]."). Instead, the court recognized that awareness of an actual allegation would be too much to require every claimant to prove and subjective awareness of fault would be a less stringent alternative still consistent with the purposes of the statute.

Furthermore, in these circumstances, it would not further the purpose of the Act's notice provisions to require that a governmental unit have subjective awareness of fault. As the court in Cathey stated, "The purpose of the notice requirement is to ensure prompt reporting of claims to facilitate the government's ability to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial." 900 S.W.2d at 341. In general, a party may begin gathering information necessary to prepare for settlement or trial from the moment it knows of an allegation of fault against it, whatever its subjective belief regarding the merit of that allegation. Cf. University of Tex. Sw. Med. Ctr., 324 S.W.3d at 550 (declining to require knowledge of a breach of standard of care for actual notice that hospital's error contributed to patient's death). Where a governmental unit is actually made aware of an allegation of fault, even by less than formal means, the purpose of the statute is met; requiring formal written notice in such circumstances would do nothing to further that purpose. See Simons, 140 S.W.3d at 347.

Moreover, as the court explained in Simons, the purpose of the "knowledge of alleged fault" requirement is to ensure the government is provided with "knowledge that amounts to the same notice to which it is entitled" by formal notice. Id. The formal notice provision requires a claimant to inform the government of the damage or injury claimed, the time and place of the incident, and the incident. None of these elements require a showing that the government subjectively believes it is at fault.

CONCLUSION

Because we hold that actual notice was received under section 101.021 of the civil practice and remedies code, we affirm the trial court's order denying the County's plea to the jurisdiction.

________________________________________

Diane M. Henson, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed

Filed: December 9, 2011

1. Gary Gough has since died for reasons unrelated to the injuries he suffered in this accident. For clarity, we will refer to him by first and last name, while "Gough" will refer to Temporary Administrator Billy Randall Gough, the plaintiff-appellee in this case.

2. The parties disagree about the timing and circumstances surrounding the accident. In his First Amended Original Petition, Gough alleges that the accident occurred at approximately 5:00 a.m. and the sheriff did not request any help or report the accident until 6:30 a.m. The County, however, contends that the accident occurred at 6:34 a.m. and that EMS was at the scene within five minutes. Gough also contends that the sheriff was speeding and failing to use his headlights at the time of the accident.

Concho County, Texas v. Gough (Tex.App.- Austin, Dec. 8, 2011, no pet. h.)

Venue for Real Estate Litigation: In which county are lawsuits involving disputes over land to be filed and litigated?

2011-12-13T22:22:00.001-06:00

Where should disputes over land -- or interests in land -- be taken to court? Does it depend on where the real estate is located, where the opposing party and/or owner lives or has its office, or on some other facts or circumstances? The CPRC has a rule on it.

VENUE FOR REAL ESTATE LITIGATION

Section 15.011 of the Texas Civil Practice and Remedies Code applies to: (1) actions for recovery of real property or for recovery of an estate or interest in real property; (2) actions for partition of real property, (3) actions to remove encumbrances from the title to real property; (4) actions for recovery of damages to real property; and (5) actions to quiet title to real property. TEX. CIV. PRAC. & REM. CODE ANN. § 15.011. Any of these specified types of actions must be brought in the county in which part or all of the property is located. Id.

MANDAMUS RELIEF AVAILABLE TO ENFORCE MANDATORY VENUE

A party may file a petition for writ of mandamus to enforce the mandatory venue provisions of chapter 15 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (West 2002).

Under section 15.016 of the Texas Civil Practice and Remedies Code, an action governed by any other statute prescribing mandatory venue must be brought in the county required by that statute. See id. § 15.016 (West 2002).

Section 115.002 of the Texas Property Code is a mandatory venue statute, so it is enforceable by mandamus. See TEX. PROP. CODE ANN. § 115.002 (West 2007); TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.016, 15.0642; In re Transcon. Realty Investors, 271 S.W.3d 270, 271 (Tex. 2008) (orig. proceeding); In re Tex. Dep’t of Transp., 218 S.W.3d 74, 76 (Tex. 2007) (orig. proceeding). In the case of mandatory venue, relators are not required to show that appeal is an inadequate remedy. In re Transcon. Realty Investors, 271 S.W.3d at 271.

SOURCE: CORPUS CHRISTI / EDINBURG COURT OF APPEALS - 13-11-00707-CV – 12/3/11

Employment Discrimination claims under state law (Texas Labor Code, formerly TCHRA): Complaint must be timely filed with TWC

2011-12-13T21:55:00.001-06:00

Deadline for filing administrative charge against employer with the Texas Workforce Commission’s Civil Rights Division is rather unforgiving. Missed deadline generally precludes law suit, i.e. will typically result in dismissal if the complaining employee goes ahead and files a lawsuit anyhow.

EMPLOYMENT DISCRIMINATION CLAIM UNDER STATE LAW - ADMINISTRATIVE PROCEDURE

Under Chapter 21 of the Texas LaborCode, a person must file a complaint with the TWC [Texas Workforce Commission] no later than the 180th day after the allegedly unlawful employment practice took place. See TEX. LAB. CODE ANN. § 21.202 (West 2006). If the complaint is untimely, the commission must dismiss it. Id.

When does the 180-day period start to run?

Furthermore, ―[t]he limitations period begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition.‖ Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996). During the claims process, the TWC investigates allegations and determines whether there is ―reasonable cause to believe the employer violated the Texas anti-discrimination law,‖ in order to promote resolution. City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008).

These detailed administrative procedures are mandatory pre-requisites for a plaintiff to bring a chapter 21 action to court. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804–05 (Tex. 2010) (noting that administrative remedies and procedures must be exhaustedprior to litigation of statutory employment claims); see also Lueck v. State, 325 S.W.3d 752, 762 (Tex. App.—Austin 2010, pet. filed). If a complainant fails to comply with these administrative procedures, the courts are deprived ofsubject-matter jurisdiction. Lopez, 259 S.W.3d at 154.

SOURCE: CORPUS CHRISTI - EDINBURG COURT OF APPEALS - 13-10-00379-CV – 12/8/11

[Plaintiff] argues that because his EEOC complaint was timely filed with the federal agency, and suit was brought well within the ninety days to file suit required by the EEOC, the trial court has jurisdiction over his causes of action. Again, we disagree. Not only did [Plaintiff] file suit in state court before the EEOC even took action on his complaint, but also an EEOC right to sue letter cannot be substituted for a TWC right-to-sue letter. See Jones v. Grinnell Corp., 235 F.3d 972, 974 (5th Cir. 2001). We agree with the Grinnell Court that to hold otherwise would ―upset the intricate interplay between the federal and state anti-discrimination agencies.‖ Id. at 975.

IV. CONCLUSION

We affirm the trial court’s granting of Del Mar’s plea to the jurisdiction.

SOURCE: THIRTEENTH COURT OF APPEALS - CORPUS CHRISTI / EDINBURG - 13-10-00379-CV – 12/8/11

Party’s own attorney may testify, file affidavit (on legal fees and their reasonableness) ...

2011-12-13T12:52:00.000-06:00

Although an interested witness, a party’s attorney may testify on attorneys‘ fees. Fee affidavit may suffice for award of fees by summary judgment – especially when the opposing party does not file a counter-affidavit.

FEE AFFIDAVIT IN SUMMARY JUDGMENT CONTEXT

Although the reasonableness of attorney’s fees often is a fact issue, "[w]ell-settled law recognizes that the affidavit of an attorney representing a claimant constitutes expert testimony that will support an award of attorney’s fees in a summary judgment proceeding." Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 513 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Tex. R. Civ. P. 166a(c).

Thus, an affidavit filed by the movant’s attorney that sets forth his qualifications, his opinion regarding reasonable attorney’s fees, and the basis for his opinion will be sufficient to support summary judgment, if uncontroverted. In re Estate of Tyner, 292 S.W.3d 179, 184 (Tex. App.—Tyler 2009, no pet.) (citing Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex. App.—San Antonio 1999, pet. denied)).

SOURCE: HOUSTON COURT OF APPEALS - FOURTEENTH DISTRICT - 14-11-00048-CV – 12/13/11; Case style: Delcor USA, Inc. v. Texas Industrial Specialties, Inc.

Attorney’s fee affidavit found sufficient

Here, [ Attorney ] Walter states in her affidavit that (1) she has been licensed in the State of Texas since 1988, practices predominantly in Harris County and the surrounding counties, and is familiar with the attorney’s fees charged in this type of matter; (2) TISI incurred fees of $4,800 for drafting, reviewing, and filing the original petition, arranging service of the citation, drafting and finalizing requests for disclosure, requests for production, and interrogatories, reviewing Delcor’s discovery responses, negotiating a

possible settlement and preparing a proposal, and preparing the motion for summary judgment and attending the hearing; and (3) the fees are ―reasonable and necessary for the prosecution of this case.‖

[ Appellant ] complains that the affidavit does not delineate how much time was spent on each task, how many hours were spent on the entire case, or the hourly rate Walter believes is reasonable. Although fact finders may use such evidence to determine if a fee is reasonable, these particular details are not required to establish a reasonable attorney’s fee as a matter of law. See McGlown v. Ashford Park Homeowners Ass’n, Inc., No. 01-08-00619-CV, 2009 WL 1635310, at *3 (Tex. App.—Houston [1st Dist.] June 11, 2009, no pet.) (mem. op.). Similarly, it is better practice for attorneys to identify the factors relevant for determining the reasonableness of their fee, but this practice is not required for a court to award reasonable attorney’s fees. Cf. Garcia v. Gomez, 319 S.W.3d 638, 641–42 (Tex. 2010) (reversing the trial court’s denial of reasonable attorney’s fees under Section 74.351 of the Civil Practice and Remedies Code because the attorney’s testimony about his qualifications, familiarity with similar cases, and brief statement about the ―the

FN: See Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (identifying factors).

reasonable and necessary attorney’s fee‖ was non-conclusory and ― some evidence‖ to support the award, though it was ―not conclusive‖).

Walter’s affidavit is clear, positive, and direct; it is otherwise credible and free

from contradictions and inconsistencies; and Delcor could have, but did not, contradict it

by presenting evidence of its own. We hold that Walter’s affidavit adequately supports

the award of attorney’s fees on summary judgment in this case because it establishes

Walter’s qualifications to opine on a reasonable fee, her familiarity with attorney’s fees

typically charged in these types of matters, the legal services actually rendered to TISI,

and her opinion that the fees are reasonable and necessary for the services rendered. See

In re Estate of Tyner, 292 S.W.3d at 184–85 (affirming summary judgment for attorney’s

fees when the affiant stated he was a licensed attorney, was familiar with the reasonable

and necessary fees charged in similar matters, had personal knowledge of the services

rendered, and the fees were reasonable, necessary, and customary); Haden, 332 S.W.3d at

513–15 (affirming summary judgment when the affiant described his qualifications,

stated that the affiant was familiar with the fees charged for these types of cases in the

geographic area, listed the services rendered, and identified some of the nonexclusive

factors for calculating a reasonable attorney’s fee); see also Pham v. Inwood N.

Homeowners’ Ass’n, Inc., No. 14-96-00380-CV, 1997 WL 211637, at *2 (Tex. App.—

Houston [14th Dist.] May 1, 1997, no writ) (not designated for publication) (stating that

the attorney’s affidavit would support a summary judgment for attorney’s fees in the

absence of controverting evidence when the affiant stated she was an attorney in the

geographic area and familiar with the usual and customary fee charged in this type of

litigation, listed the services rendered, and opined that the fee was reasonable)

SOURCE: HOUSTON COURT OF APPEALS - FOURTEENTH DISTRICT - 14-11-00048-CV – 12/13/11; Delcor USA, Inc. v. Texas Industrial Specialties, Inc.

Unpaid equipment rental charges not collectible through sworn account suit, Houston CoA says

2011-12-13T12:32:00.001-06:00

SUIT ON EQUIPMENT LEASE NOT VIABLE AS SWORN ACCOUNT UNDER RULE 185

Houston Court of Appeals again states (albeit in a footnote) that failure to pay rental charges for loaned equipment is not actionable as a sworn account under Tex. R. Civ. P. 185 because when goods are merely leased, there is no sale through which title passes.

[The Fourteenth Court of Appeals ] has held that a party may not recover under a sworn account theory when the underlying transaction involved equipment rentals. See, e.g., AKIB Constr., Inc. v. Neff Rental, Inc., No. 14-07-00063-CV, 2008 WL 878935, at *1–3 (Tex. App.—Houston [14th Dist.] Apr. 3, 2008, no pet.) (mem. op.) (reversing summary judgment for plaintiff because a sworn account claim cannot be based on leased goods). See generally 1 Tex. Jur. 3d Accounts & Accounting § 80 (2004) (discussing the inapplicability of a sworn account claim for transactions not passing title to personal property from one party to another).

SOURCE: HOUSTON COURT OF APPEALS - FOURTEENTH DISTRICT - 14-11-00048-CV – 12/13/11