Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Tuesday, July 8, 2014

Federal civil rights violations and statute of limitations


What is the limitations period for Section 1983 and 1985 claims? 

"Although there is no federal statute of limitations for civil rights violations alleged under [section] 1983, `courts construing [section] 1983 "borrow" the forum state's general personal injury limitations period.'" Bell v. Children's Protective Servs., 547 Fed. Appx. 453, 456 (5th Cir. 2013) (quoting Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998) (internal citations omitted)); Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994); see Prado v. City of Fredericksburg Police Dept., No. A-12-CA-123-LY, 2012 WL 566440, at *2 (W.D. Tex. Feb. 21, 2012), subsequently dism'd, 515 Fed. Appx. 262 (5th Cir. 2013), cert. denied, 134 S. Ct. 218 (U.S. 2013). "While state law determines the statute of limitations, federal law controls when a cause of action accrues, and it begins to run `from the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.'" Bell, 547 Fed. Appx. at 456 (quoting Helton v. Clements, 832 F.2d 332, 334-35 (5th Cir. 1987)). Texas's general personal injury limitations period is two years. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West, Westlaw through 2013 3d C.S.)).

Section 1985 of United States Code tile 42 provides a civil remedy to citizens who have been deprived of federally guaranteed rights by conspirators acting under "color of law." Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 371 (1979); see Taylor v. Anderson, No. A-13-CV-464-LY, 2014 WL 547032, at *3 (W.D. Tex. Feb. 10, 2014). As with civil rights claims brought under section 1983, to determine the applicable statute of limitations period for civil rights actions brought under section 1985, we look to the "general statute of limitations governing personal injuries in the forum state." Price v. City of San Antonio, Tex., 431 F.3d 890, 892 (5th Cir. 2005); Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1987). Under Texas law, civil rights actions brought under section 1985 "are deemed analogous to Texas tort actions" and are subject to a limitations period of two years. Helton, 832 F.2d at 334; see Anderson, 2014 WL 547032, at *4; see also TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a).

Section 1986 assesses liability against persons who have knowledge of conspiracies listed in section 1985 and neglect or refuse to prevent such conspiracies. See 42 U.S.C.A. § 1986. Section 1986 claims are subject to a one-year statute of limitations. Id.

SOURCE:Corpus Christi Court of Appeals. No. 13-13-00378-CV - June 19, 2014

Friday, May 2, 2014

Prevailing party status for attorney fee award purposes


WHEN IS A PARTY A PREVAILING PARTY SO AS TO BE ENTITLED TO HAVE THE OPPONENT PAY HIS OR HER ATTORNEY'S FEES UNDER STATUTE OR CONTRACT? 

Under the American Rule, attorney's fees are recoverable only if authorized by statute or by contract. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). If authorized by contract, the parties may agree on the standard that will govern the attorney's fee award, even if that standard conflicts with Chapter 38 of the Texas Practice and Remedies Code. Intercontinental Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex. 2009). If the contract provides that attorney's fees will be awarded to the prevailing party, the trial court must determine which party is "prevailing." To prevail, a party "must obtain actual and meaningful relief, something that materially alters the parties' legal relationship." Id. at 652 (citing Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). More simply, a party prevails when it "prevails upon the court to award it something, either monetary or equitable." Id. at 655.

Did the Defendant "win" (prevail) when the Plaintiff filed a nonsuit? 

In Epps v. Fowler, 351 S.W.3d 862, 869 (Tex. 2011), the Texas Supreme Court construed an attorney's fee provision in a standard real estate contract to determine whether a defendant is a prevailing party when the plaintiff properly nonsuits his claims. Guided by the Fifth Circuit's decision in Dean v. Riser, 240 F.3d 505 (5th Cir. 2001), the Court held that when a plaintiff nonsuits the claims in his lawsuit with prejudice, the defendant is considered the prevailing party because the plaintiff is barred by res judicata from re-asserting the same claims. Epps, 351 S.W.3d at 869.

When the plaintiff nonsuits his claims without prejudice, however, the Court refused to adopt such a per se approach. Id. at 869. The Court noted that a defendant would generally not be a prevailing party when the plaintiff nonsuits without prejudice because the nonsuit "works no such change in the parties' legal relationship; typically, the plaintiff remains free to re-file the same claims seeking the same relief." Id. The Court also observed, however, that "it is logical to conclude that the parties intended to award attorney's fees to compensate the defendant when the plaintiff knowingly pursues a baseless action," id. at 869, and to "`discourage the litigation of frivolous, unreasonable, or groundless claims' when a `calculating plaintiff . . . voluntarily withdraws his complaint' to escape a disfavorable judicial determination on the merits." Id. (quoting Riser, 240 F.3d at 510) (citations omitted). Accordingly, the Court held a defendant may be a prevailing party only "if the trial court determines, on the defendant's motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits." Id. at 870.

The Epps Court provided some guidance to trial courts when determining whether a nonsuit was taken to avoid an unfavorable ruling on the merits. A trial court "should rely as far as possible on the existing records and affidavits, and resort to live testimony only in rare instances." Id. Looking to federal case law, the Court identified the following factors which could support such a determination, including: (1) the timing of a plaintiff's nonsuit when filed only after the defendant files a potentially dispositive motion such as a motion for summary judgment; (2) a plaintiff's unexcused failure to respond to requests for admission or other discovery that could support entry of an adverse judgment; (3) a plaintiff's failure to timely identify experts or other critical witnesses; and (4) the existence of other procedural obstacles, such as the plaintiff's inability to join necessary parties. Id. at 871.

Implied in each of these factors is that the plaintiff's nonsuit was necessary to avoid an unfavorable ruling because the plaintiff's claims were weak or without merit. Indeed, the Epps Court explained that the purpose of the rule was to discourage the plaintiff from pursuing weak claims that should be abandoned and not to penalize a plaintiff for nonsuiting when that is "precisely what should be done". Id. at 869 (citing Riser, 240 F.3d at 510). For instance, a plaintiff who nonsuits only after "discovery reveals previously unknown flaws in the plaintiff's claims" likely has not done so to avoid an unfavorable ruling on the merits. Rather, the decision "may well reflect a legitimate litigation strategy that `reveals nothing about the merits of a plaintiff's case [and thus] does not warrant a conclusion that a defendant in such a case has prevailed . . . .'" Id. at 868 (quoting Riser, 240 F.3d at 510). Accordingly, the Epps Court held that "evidence that the suit was not without merit when filed may indicate that the defendant has not prevailed and is therefore not entitled to attorney's fees." Id. at 871.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00777-CV - 4/23/2014



Thursday, May 1, 2014

Rule 11 Agreement must be in writing and filed with the court


WHAT REQUIREMENTS DOES RULE 11 AGREEMENT HAVE TO SATISFY TO BE ENFORCEABLE?

A Rule 11 agreement must be in writing and signed and filed with the court unless it is made in open court. See TEX.R.CIV.P. 11. The filing requirement creates the imprimatur of a court record. ExxonMobil Corporation v. Valence Operating Company, 174 S.W.3d 303, 309 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). A settlement agreement must comply with Rule 11 to be enforceable. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995); Broderick v. Kaye Bassman International Corp., 333 S.W.3d 895, 904-05 (Tex.App.-Dallas 2011, no pet.).

While Rule 11 requires the writing to be filed in the court record, it does not say when it must be filed. Padilla, 907 S.W.2d at 461.

WHEN A PARTY CHANGES ITS MIND AFTER SIGNING RULE 11 - REVOCATION OF CONSENT

A party has the right to revoke its consent to a Rule 11 agreement at any time before the rendition of judgment. Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983). Withdrawal of consent must be effectively communicated to the trial court. Baylor College of Medicine v. Camberg, 247 S.W.3d 342, 346-47 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); First Heights Bank, FSB v. Marom, 934 S.W.2d 843, 845 (Tex.App.-Houston [14th Dist.] 1996, no writ). Ordinarily, when one party withdraws consent to a Rule 11 agreement, another party can still seek to enforce it as a contract through an amended pleading or a counterclaim. Ford Motor Company v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009); Padilla, 907 S.W.2d at 461; see Kanan v. Plantation Homeowner's Association Inc., 407 S.W.3d 320, 334 (Tex.App.-Corpus Christi 2013, no pet.h.)(Where consent to a Rule 11 agreement has been withdrawn, a court may enforce it through a separate breach of contract claim). Generally, these rules are applied in cases where the trial court rendered judgment pursuant to a Rule 11 agreement and one party is claiming that it withdrew its consent to the agreement.

ENFORCEMENT OF RULE 11 AGREEMENT

A trial court has a ministerial duty to enforce a valid Rule 11 agreement. Fortis Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex. 1996); In re Guardianship of White, 329 S.W.3d 591, 592 (Tex.App.-El Paso 2010, no pet.).

Rule 11 agreements are contracts relating to litigation and are subject to general rules of contract construction. Trudy's Texas Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 (Tex.App.-Austin 2010, no pet.). Our primary objective in construing a written contract is to ascertain and give effect to the intentions the parties have objectively manifested in the written instrument. Trudy's Texas Star, 307 S.W.3d at 914, citing Frost National Bank v. L & F Distributors, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005). Contract terms are given their plain, ordinary, and generally accepted meanings, and contracts are to be construed as a whole in an effort to harmonize and give effect to all provisions of the contract. Trudy's Texas Star, 307 S.W.3d at 914, citing Valence Operating Company v. Dorsett, 164 S.W.3d 656, 663 (Tex. 2005). If a contract can be given a certain or definite legal meaning or interpretation, it is not ambiguous and is construed as a matter of law. Trudy's Texas Star, 307 S.W.3d at 914, citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).

SOURCE: EL PASO COURT OF APPEALS -No. 08-13-00069-CV - 4/23/2014 

SIGNATURE REQUIRED - EITHER PARTY OR PARTY'S ATTORNEY, OR BOTH 

Rule 11 provides that "no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record." TEX. R. CIV. P. 11. A Rule 11 agreement may be signed by attorneys for the parties, or the parties themselves. See TEX. R. CIV. P. 11; see also Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 297 (Tex. App.-Austin 2000, pet. denied) (Rule 11 agreement may be signed by party or party's attorney). Thus, a settlement agreement satisfies the requirements of Rule 11 if it is (1) in writing, (2) signed by the parties or their attorneys, and (3) filed with the court or entered in open court prior to a party seeking enforcement. See TEX. R. CIV. P. 11. 

HOUSTON COURT OF APPEALS - No. 01-13-00176-CV -3/13/2014




Wednesday, April 2, 2014

Abuse of Process as a tort under Texas law

 

The tort of abuse of process

The elements of an abuse-of-process claim are (1) the defendant misused a regularly issued process—e.g., "the issuance of a citation or a writ"—for a purpose not lawfully warranted by that particular process, (2) the defendant had an ulterior motive or purpose for misusing the process, and (3) the plaintiff sustained damage from the irregularity. Detenbeck v. Koester, 886 S.W.2d 477, 480 (Tex. App.-Houston [1st Dist.] 1994, no writ); Tandy Corp. v. McGregor, 527 S.W.2d 246, 249 (Tex. App.-Texarkana 1975, writ ref'd n.r.e.); see also Pittsburgh SNF, LLC v. PharMerica E., Inc., 2:10-CV-363-JRG-RSP, 2012 WL 4509753, at *2 (E.D. Tex. July 19, 2012), report and recommendation adopted, No. 2:10-CV-363-JRG-RSP, 2012 WL 4508127 (E.D. Tex. Sept. 28, 2012) (listing examples of processes). The focus is on the use of the process once it is properly obtained, not on the motive for originally obtaining the process. See Detenbeck, 886 S.W.2d at 480-81; Tandy, 527 S.W.2d at 249 ("An action for abuse of process presupposes an originally valid and regular process, duly and properly issued."); cf. Bossin v. Towber, 894 S.W.2d 25, 33 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (explaining that malicious prosecution, by contrast, focuses on party's actions and malice in getting process issued); Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207-08 (Tex. 1996) (malicious prosecution case).

A suit for abuse of process must be based on an allegation that the other party misused process for a collateral purpose:

Some definite act or threat not authorized by the process . . . is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.

Blackstock v. Tatum, 396 S.W.2d 463, 468 (Tex. Civ. App.-Houston 1965, no writ); cf. Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex. App.-El Paso 1984, writ ref'd n.r.e.) (seeking exemplary damages as means to extort settlement not abuse of process because process was used for intended purpose to require answer to petition). The process must be used to "compel[] a party to do a collateral thing which he would not be compelled to do" otherwise. See Detenbeck, 886 S.W.2d at 480; Blanton, 681 S.W.2d at 878; Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 378-79 (Tex. App.-Texarkana 1989, no writ) (citing RESTATEMENT (SECOND) OF TORTS § 682, cmt. b (1977)).

SOURCE: HOUSTON COURT OF APPEALS - 01-13-00463-CV - 3/27/2014

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