Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Tuesday, March 3, 2015

Contract Construction as explained by the Texas Supreme Court (2015)

 
CONTRACT CONSTRUCTION 
 
"In construing contracts, we must ascertain and give effect to the parties' intentions as expressed in the document." Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000). We attempt to harmonize all contractual provisions by "analyzing the provisions with reference to the whole agreement." Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam). We "construe contracts from a utilitarian standpoint bearing in mind the particular business activity sought to be served," and, when possible and proper, we avoid a "construction which is unreasonable, inequitable, and oppressive." Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987). If, through the use of relevant rules of construction, the contract can be given a definite meaning, we construe it as a matter of law. Frost Nat'l Bank, 165 S.W.3d at 312.

HOOKS v. SAMSON LONE STAR, LIMITED PARTNERSHIP, No. 12-0920 (Tex. January 30, 2015)

SOURCE: TEXAS SUPREME COURT HOOKS v. SAMSON LONE STAR, LIMITED PARTNERSHIP, No. 12-0920 (Tex. January 30, 2015) 


Wednesday, February 4, 2015

Elements of proof in wrongful foreclosure case and measure of damages


ELEMENTS OF CAUSE OF ACTION FOR WRONGFUL FORECLOSURE  

The elements of a wrongful-foreclosure claim are: (1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and the grossly inadequate selling price. Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.-Corpus Christi 2008, no pet.).

SOURCE: FORT WORTH COURT OF APPEALS - 02-14-00034-CV - 2/15/2015 

MEASURE OF DAMAGES IN WRONGFUL FORECLOSURE SUIT 

"A plaintiff seeking damages for wrongful foreclosure must show that (1) an irregularity in the foreclosure sale (2) caused the plaintiff damages." Houston Omni USA Co. v. Southtrust Bank Corp., No. 01-07-00433-CV, 2009 WL 1161860, at *6 (Tex. App.-Houston [1st Dist.] Apr. 30, 2009, no pet.) (mem. op.) (citing Univ. Sav. Ass'n v. Springwoods Shopping Ctr., 644 S.W.2d 705, 706 (Tex. 1982)). The "correct measure of damages" for wrongful foreclosure is "the difference between the value of the property in question at the date of foreclosure and the remaining balance due on the indebtedness." C & K Invs. v. Fiesta Grp., Inc., 248 S.W.3d 234, 254 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (citing Farrell v. Hunt, 714 S.W.2d 298, 299 (Tex. 1986)).

SOURCE: HOUSTON COURT OF APPEALS - 01-13-00855-CV – 12/30/2014  


Tuesday, February 3, 2015

Statute of frauds as to loans for more than $50,000


THRESHOLD DOLLAR AMOUNT FOR STATUTE OF FRAUDS IN LOAN CONTRACTS 

The statute of frauds provides that a "loan agreement in which the amount involved in the loan agreement exceeds $50,000 in value is not enforceable unless the agreement is in writing and signed by the party to be bound or . . . [his] authorized representative." TEX. BUS. & COM. CODE § 26.02(b). The statute also provides that in such a loan agreement, the financial institution must give the debtor the following notice:

This written loan agreement represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.

Id. § 26.02(e). This notice "must be in type that is boldface, capitalized, underlined, or otherwise set out from surrounding written material so as to be conspicuous." Id. "Generally, if a contract falls within the statute of frauds, then a party cannot enforce any subsequent oral material modification to the contract." SP Terrace, L.P. v. Meritage Homes of Tex., LLC, 334 S.W.3d 275, 282 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (citing Dracopoulas v. Rachal, 411 S.W.2d 719, 721 (Tex. 1967)).

SOURCE: HOUSTON COURT OF APPEALS - 01-13-00855-CV – 12/30/2014  

 Statute of Frauds: Tex. Bus. & Com. Code § 26.01 and 26.02 

In this case, both the deed of trust and the promissory note executed in 2001 are subject to the statute of frauds as contracts involving a loan agreement in excess of $50,000 in value. Tatum argues that the statute of frauds does not bar evidence of a subsequent oral modification because the deed of trust does not include the statutory language. However, the statute specifies that the language about the nullity of oral agreements may be contained in "a separate document signed by the debtor . . . or incorporated into one or more of the documents constituting the loan agreement." TEX. BUS. & COM. CODE § 26.02(e). In this case, the statutory notice appears in boldface, capitalized type at the bottom of the promissory note that Tatum signed. Thus, the terms of the promissory note prohibit enforcement of a subsequent oral modification.

In Ellen v. F.H. Partners, LLC, No. 03-03-00310-CV, 2010 WL 4909973 (Tex. App.-Austin Dec. 1, 2010, no pet.) (mem. op.), the court of appeals held that a subsequent oral statement by a bank representative could not be enforced as a contract. After Sonny Ellen defaulted on a $500,000 mortgage for the purchase of real property, he approached the note holder's loan officer and asked for time to refinance or sell the property before the initiation of foreclosure proceedings. Ellen, 2010 WL 4909973, at *1. Ellen contended that the loan officer said such delay was "doable," which he interpreted as a promise to delay foreclosure. Id. But the property was sold at a foreclosure auction, and Ellen sued for promissory estoppel. Id. at *2. The court of appeals affirmed the trial court's take-nothing summary judgment. The appellate court held that because the loan agreement included a signed, written notice of invalidity of oral statements and because the loan agreement was subject to the statute of frauds, Ellen could not enforce an oral modification to the loan agreement. Id.

The same logic applies to this appeal: because the promissory note was subject to the statute of frauds and it included the statutory notice of invalidity of oral statements, any oral modification to Tatum's loan is unenforceable. See id.

Nevertheless, Tatum argues that his contract claims are not barred by the statute of frauds because the partial-performance exception applies.

PARTIAL PERFORMANCE EXCEPTION TO STATUTE OF FRAUDS AS BAR  

Partial performance of a contract is an equitable exception to the statute of frauds. See Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439 (Tex. App.-Dallas 2002, pet. denied); Resendez v. Maloney, No. 01-08-00954-CV, 2010 WL 5395674, at *7 (Tex. App.-Houston [1st Dist.] Dec. 30, 2010, pet. denied) (mem. op.). "Under the partial performance exception to the statute of frauds, contracts that have been partly performed, but do not meet the requirements of the statute of frauds, may be enforced in equity if denial of enforcement would amount to a virtual fraud." Exxon, 82 S.W.3d at 439. Virtual fraud means that due to reliance on a contract, a party has suffered a substantial detriment for which he has no adequate remedy, and the other party would reap an unearned benefit if permitted to invoke the statute of frauds. See id. However, the acts constituting partial performance must be unequivocally referable to the agreement and corroborative of the fact that a contract actually was made, such that they serve no purpose other than to fulfill the particular agreement sought to be enforced. Id. Otherwise, they do not tend to prove the existence of the otherwise unenforceable agreement relied upon by the plaintiff. Id. at 439-40.

SOURCE: HOUSTON COURT OF APPEALS - 01-13-00855-CV – 12/30/2014  


Friday, January 16, 2015

Common-law marriage in Texas - Elements of Proof


ESSENTIAL ELEMENTS OF AN INFORMAL MARRIAGE IN TEXAS 

It's commonly called common-law marriage, but the legal term is informal marriage. As a further complication, an informal marriage can be made formal by registration, but often an informal marriage is claimed after one of the "spouses" has died, i.e. when an inheritance-dispute arises, or some related matter that is affected by spouse-status. At that time the alleged spouse is no longer available to clarify the matter; not to mention that it's too late for registration. In any event, the issue of whether a legal marriage existed often only becomes an issue once the alleged spouse is deceased, i.e. in the context of a dispute over the estate. 

In a recent case of this nature, one of the two Houston Court of Appeals recites the elements of an informal marriage and states that it is a fact question. That can make for interesting issues at trial, such as the meaning of the deceased's reference to the surviving significant-other as his "old lady". Did that mean wife, or just girl friend? The opinion does not delve into the question of whether "old lady" and "girl" (as in girl friend) can be reconciled, or are mutually exclusive. Nor does it resolve the semantic issues regarding the "old lady" appellation. It does not address whether testimony about what the dead man called his companion is hearsay either, but it does recite the elements of proof, and that's what is important for the purposes of this blawg:   


An informal or common-law marriage exists in Texas if the parties (1) agreed to be married, (2) lived together in Texas as husband and wife after the agreement, and (3) there presented to others that they were married. See Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006); Mills v. Mest, 94 S.W.3d 72, 73 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). The existence of an informal marriage is a fact question, and the party seeking to establish the existence of the marriage must prove the three elements by a preponderance of the evidence. Weaver v. State, 855 S.W.2d 116, 120 (Tex. App.-Houston [14th Dist.] 1993, no pet.). An informal marriage does not exist until the concurrence of all three elements. Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.-Houston [1st Dist.] 2001, pet. denied).

SOURCE:  FOURTEENTH COURT OF APPEALS - No. 14-13-00816-CV - 1/8/2015  

The resolution of the conflicting evidence turned on witness credibility and the weight given to the evidence. It was within the trial judge's purview to resolve these conflicts. Small, 352 S.W.3d at 284; see, e.g., In re Estate of Walker, No. 02-08-00371-CV, 2009 WL 1996301, at *4 (Tex. App.-Fort Worth July 9, 2009, no pet.) (mem. op.). The trial court resolved the conflicting evidence by finding that [person claiming to be the wife] and the decedent had not entered into an informal marriage. After viewing all of the evidence, we cannot say the evidence supporting the trial court's findings is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Therefore, the evidence is factually sufficient to support the trial court's findings.




Wednesday, December 31, 2014

Cases cited for breach-of-contract elements in 2014


FIRST COURT OF APPEALS IN HOUSTON

The essential elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach. E.g., N. & W. Ins. Co. v. Sentinel Inv. Grp., LLC, 419 S.W.3d 534, 539 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

SOURCE: FIRST COURT OF APPEALS IN HOUSTON - 01-13-00855-CV - 12/30/2014 

DALLAS COURT OF APPEALS 

The elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 838 (Tex.App.-Dallas 2014, no pet.).

ASSIGNABILITY OF CONTRACTS

Generally, all contracts are assignable. See Crim Truck & Tractor Co. v. Navistar Int'l Transp. Co., 823 S.W.2d 591, 596 (Tex. 1992); In re FH Partners, L.L.C., 335 S.W.3d 752, 761 (Tex. App.-Austin 2011, no pet.).

CORPUS CHRISTI COURT OF APPEALS

To prevail on a breach of contract action, the plaintiff must prove the following elements: (1) a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach. See Keszler v. Mem'l Med. Ctr. of E. Tex., 105 S.W.3d 122, 128 (Tex. App.-Corpus Christi 2003, no pet.).

TEXARKANA COURT OF APPEALS

"The elements of a breach of contract claim are (1) the existence of a valid contract, (2) the plaintiff's performance or tendered performance, (3) the defendant's breach of the contract, and (4) damages as a result of the breach." Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 658 (Tex. App.-Dallas 2012, no pet.).




Tuesday, December 30, 2014

Conversion (2014 case law)


CONVERSION - DEFINITION AND ELEMENTS OF PROOF 

Conversion is the wrongful exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner's rights. Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971). A plaintiff suing for conversion must prove that (1) the plaintiff owned, possessed, or had the right to immediate possession of personal property; (2) the defendant exercised dominion and control over the property in an unlawful and unauthorized manner, (3) the defendant refused plaintiff's demand for return of the property; and (4) the plaintiff suffered injury. Cluck v. Mecom, 401 S.W.3d 110, 116 (Tex. App.-Houston [14th Dist.] 2011, pet. denied); Robin Singh Educ. Servs., Inc. v. Test Masters Educ. Servs., Inc., 401 S.W.3d 95, 97 (Tex. App.-Houston [14th Dist.] 2011, no pet.).

SOURCE: HOUSTON COURT OF APPEAL - 14-13-00113-CV - 7/15/2014


Constructive Trust (2014 caselaw snips)


THE EQUITABLE REMEDY OF CONSTRUCTIVE TRUST 

A constructive trust is an equitable remedy created by the courts to prevent unjust enrichment. Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736 (Tex. App.-San Antonio 2007, pet. denied) (internal citations omitted).

"A constructive trust is a relationship with respect to property, subjecting the person by whom the title to the property is held to an equitable duty to convey it to another, on the ground that his acquisition or retention of the property is wrongful and that he would be unjustly enriched if he were permitted to retain the property." Id. (quoting Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158, 160 (1943)).

As an equitable remedy, the decision to impose a constructive trust, along with its scope and application, is within the trial court's discretion. Id.; see Carr v. Weiss, 984 S.W.2d 753, 767 (Tex. App.-Amarillo 1999, pet. denied) (suggesting a jury finding is not necessary to support imposition of a constructive trust).

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00239-CV - 8/29/2014




Monday, December 29, 2014

Suit to Quiet Title - Elements of Proof


SUIT TO QUIET TITLE REQUIREMENTS

To prevail in a suit to quiet title, a plaintiff must prove: (1) he has an interest in a specific property; (2) title to the property is affected by a claim by the defendant; and (3) the claim, although facially valid, is invalid or unenforceable. See, e.g., Vernon v. Perrien, 390 S.W.3d 47, 61 (Tex. App.-El Paso 2012, pet. denied); see also U.S. Nat'l Bank Ass'n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *3 (Tex. App.-Houston [1st Dist.] Dec. 30, 2011, no pet.) (mem. op.).

"[T]o contest a bank's foreclosure of a deed of trust, a party must, at the time of the foreclosure, either (1) be the mortgagor under the deed of trust or be in privity with the mortgagor, or (2) have an ownership interest in the property affected by the foreclosure." Ursic v. NBC Bank S. Tex., N.A., 827 S.W.2d 334, 336 (Tex. App.-Corpus Christi 1991, writ denied) (citing Goswami v. Metropolitan Sav., 751 S.W.2d 487, 489 (Tex. 1988)). And the plaintiff must recover on the strength of his own title, not on the weakness of his adversary's title. Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex. App.-Corpus Christi 2001, no pet.) (citing Alkas v. United Sav. Ass'n of Tex., Inc., 672 S.W.2d 852, 857 (Tex. App.-Corpus Christi 1984, writ ref'd n.r.e.)).

He "must allege right, title or ownership in himself with sufficient certainty to enable the court to see that plaintiff has a right of ownership that will warrant judicial interference." Ellison v. Butler, 443 S.W.2d 886, 888-89 (Tex. Civ. App.-Corpus Christi 1969, no writ); see Wright v. Matthews, 26 S.W.3d 575, 578 (Tex. App.-Beaumont 2000, pet. denied). The plaintiff has the burden of supplying the proof necessary to establish his superior equity and right to relief. Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 387-88 (Tex. App.-Houston [1st Dist.], pet. denied) (op. on reh'g); Ellison, 443 S.W.2d at 888-89.

SOURCE: CORPUS CHRISTI COURT OF APPEALS - Nos. 13-12-00474-CV, 13-12-00753-CV - 2/13/2014


Sunday, December 28, 2014

The One Satisfaction Rule in Texas


THE ONE SATISFACTION RULE IN TEXAS 

"The one satisfaction rule applies to prevent a plaintiff from obtaining more than one recovery for the same injury." Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991); see also Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). Under this rule, a plaintiff is entitled to one recovery for damages suffered when multiple defendants commit the same act as well as when multiple defendants commit technically different acts resulting in a single injury. Casteel, 22 S.W.3d at 390. A court can grant summary judgment based on the one satisfaction rule. See El Paso Natural Gas Co. v. Berryman, 858 S.W.2d 362, 363 (Tex. 1993) (per curiam).

The one satisfaction rule is grounds for granting summary judgment when (1) the one satisfaction rule applies, (2) the credit sought by the defendant entirely sets off the maximum compensatory liability claimed by the plaintiff, and (3) punitive damages are not at issue. Cohen v. Arthur Andersen, L.L.P., 106 S.W.3d 304, 309-10 (Tex. App.-Houston [1st Dist.] 2003, no pet.).

SOURCE: FOURTEENTH COURT OF APPEALS HOUSTON - No. 14-13-00113-CV - 7/15/2014

PUNITIVE DAMAGES ARE A DIFFERENT MATTER 

"The `one satisfaction rule' is usually inapplicable to punitive damage awards because punitive damages do not concern compensation; they are, instead, intended to punish the wrongdoer and to deter future similar acts." Universal Servs. Co. v. Ung, 882 S.W.2d 460, 467 (Tex. App.-Houston [14th Dist.] 1994), rev'd on other grounds, 904 S.W.2d 638 (Tex. 1995); see Casteel, 22 S.W.3d at 391 ("A nonsettling defendant cannot receive credit for settlement amounts representing punitive damages."); Ratner v. Sioux Natural Gas Corp., 719 F.2d 801, 804 (5th Cir. 1983) ("The purpose of the [one satisfaction] rule is to ensure that a plaintiff receives no more than full compensation for his loss. A plaintiff awarded punitive damages has been given the right to receive more than `one satisfaction.'" (citations omitted)). Punitive damage calculations are based on the award of compensatory damages, not the amount actually recovered. See Tex. Civ. Prac. & Rem. Code Ann. § 41.004(a) (West 2008); Gilcrease v. Garlock, Inc., 211 S.W.3d 448, 458 (Tex. App.-El Paso 2006, no pet.). Consequently, a plaintiff would be entitled to recover punitive damages based on an award of compensatory damages even though his ability to recover compensatory damages is entirely offset by a credit based on the one satisfaction rule. See Gilcrease, 211 S.W.3d at 458-59.

Saturday, December 27, 2014

Standing as consumer under the DTPA


WHO MAY SUE UNDER THE DECEPTIVE TRADE PRACTICES ACT? 

To have standing to sue under the DTPA, a party must be a consumer. TEX. BUS. & COM. CODE ANN. § 17.50(a). To be a consumer under the DTPA, a party must show that he sought or acquired goods or services by purchase or lease. Id. § 17.45(4) (defining "consumer"). And he must show that the goods or services purchased or leased form the basis of the complaint. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351 (Tex. 1987); Kennedy v. Sale, 689 S.W.2d 890, 892 (Tex. 1985).

The purpose of making misrepresentations actionable under the DTPA "is `to ensure that descriptions of goods or services offered for sale are accurate.'" Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 480 (Tex. 1995) (quoting Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex. 1980)). The DTPA does not require the consumer to be the person who actually purchased or leased the services. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996) ("Privity of contract with a defendant is not required for the plaintiff to be a consumer."); Kennedy, 689 S.W.2d at 892-93 (DTPA's language does not require "that the consumer must himself be the one who purchases or leases" the goods or services).

SOURCE: DALLAS COURT OF APPEALS - 05-12-01607-CV - 5/5/2014

McLeod does not cite authority for his argument that Gyr cannot establish standing to sue because he received the money he used to acquire McLeod's services from other people and did not personally lose "a dollar." Gyr testified, however, that he acquired McLeod's legal services for the purpose of filing an N-400 application to become a naturalized United States citizen, and his complaint arises from false representations made in connection with the purchase of those services. Regardless of the source of the funds or Gyr's obligation to repay them, Gyr is a consumer under the DTPA and has standing to sue McLeod. See Kennedy, 689 S.W.2d at 892-93; Bus. Staffing, Inc. v. Viesca, 394 S.W.3d 733, 742-43 (Tex. App.-San Antonio 2012, no pet.).  

Friday, December 26, 2014

When must attorney's fees be segregated?


FEE SEGREGATION REQUIREMENT

Where a party seeks attorney's fees in a case where some claims permit the recovery of fees and others do not, the party must segregate and exclude the fees for services related to the claims for which fees are not recoverable unless the discrete legal services advanced both the recoverable claim and the unrecoverable claim. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006).

GENERAL RULE AND EXCEPTION TO RULE

The general rule is that a party seeking to recover attorney's fees in a suit involving multiple claims or parties has a duty to segregate the fees owed. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10-11 (Tex. 1991). A recognized exception to the duty to segregate arises when the attorney's fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their "prosecution or defense entails proof or denial of essentially the same facts." Id. at 11 (quoting Flint & Assocs. v. Intercont'l Pipe & Steel, Inc., 739 S.W.2d 622, 624-25 (Tex. App.-Dallas 1987, writ denied)). When the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are intertwined to the point of being inseparable, the party suing for attorney's fees may recover the entire amount covering all claims. See id. at 11-12.

CASES:

Amerada Hess Corp. v. Wood Group Prod. Tech., 30 S.W.3d 5, 14 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (remanding where no evidence presented to support exception to duty to segregate)

Oadra v. Stegall, 871 S.W.2d 882, 888 (Tex. App.-Houston [14th Dist.] 1994, no writ) ("We have reviewed the entire record and after such review conclude that the attorney's fees in this case were not capable of segregation. The testimony in the record supports the finding that the issues and parties in this case were so intertwined that they were inseparable.").

SOURCE: FOURTEENTH COURT OF APPEALS - Nos. 14-13-00086-CV, 14-13-00088-CV - 5/15/2014

EXCEPTION WHEN SAME COUNSEL REPRESENTS PARTIES ON SAME ISSUES/CLAIMS 

"When a lawsuit involves multiple claims or parties, the proponent of attorney's fees must segregate recoverable fees from those incurred by parties or on claims for which fees are not recoverable." Clearview Props., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 143 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) (citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006)). Attorney's fees that relate solely to a claim for which fees are unrecoverable must be segregated. Chapa, 212 S.W.3d at 313. The Supreme Court of Texas has held that attorney's fees are recoverable only as provided by contract or statute, and it "eliminated the exception for fees incurred solely on separate but arguably intertwined claims." Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (citing Chapa, 212 S.W.3d at 313). But the Supreme Court did not require that all fees be segregated even when incurred by co-defendants jointly represented by the same counsel and when such fees are incurred as a result of the same discrete tasks and work.

SOURCE: HOUSTON COURT OF APPEALS - 01-13-00855-CV – 12/30/2014 





Wednesday, December 24, 2014

Causation and Foreseeability in legal malpractice action


Causation — Foreseeability

The causation element of a professional negligence claim is met when a jury is presented with pleading and proof that establishes a direct causal link between the actions of the attorney, the injury suffered, and the damages awarded. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex. 1995).

Proximate cause consists of two elements — cause in fact and foreseeability — neither of which can be established by mere conjecture, guess, or speculation. Akin, Gump, 299 S.W.3d at 122; Doe, 907 S.W.2d at 477. Cause in fact is established by proof that the negligent act or omission was a substantial factor in bringing about the injury and without which the harm would not have occurred. Akin, Gump, 299 S.W.3d at 122; Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).

The test for foreseeability is whether "the actor, as a person of ordinary intelligence, should have anticipated the dangers that [his] negligent conduct created for others." Byrd, 891 S.W.2d at 701 (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 550 (Tex. 1985)). Generally, a third party's criminal conduct is a superseding cause which relieves the negligent actor from liability. Byrd, 891 S.W.2d at 701; Nixon, 690 S.W.2d at 550. However, the actor's negligence will not be excused where the criminal conduct is a foreseeable result of the actor's negligence. Byrd, 891 S.W.2d at 701; Nixon, 690 S.W.2d at 550.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00239-CV - 8/29/2014