Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Saturday, March 21, 2015

A forcible detainer action is a limited-purpose proceeding in Justice Court

A forcible detainer action is a procedure to determine the right to immediate possession of real property where there was no unlawful entry. TEX. PROP. CODE ANN. § 24.002(a)(2) (West 2014); TEX. R. CIV. P. 510.1;[1] Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.-Dallas 2001, no pet.). It is intended to be a speedy, simple, and inexpensive means to obtain possession without resort to an action on the title. Scott v. Hewitt, 90 S.W.2d 816, 818-19 (1936); Rice, 51 S.W.3d at 709. The trial court must adjudicate the right to actual possession of the property. TEX. R. CIV. P. 510.3(e).

All other claims, including questions of title, validity of a foreclosure, counterclaims, and suits against third parties are not permitted. Id. Those claims must be brought in separate suits. Id. Accordingly, the only issue in a forcible detainer action is which party has the right to immediate possession of the property. Rice, 51 S.W.3d at 709. Whether a sale of property under a deed of trust is invalid may not be determined in a forcible detainer action but must be brought in a separate suit. Scott, 90 S.W.2d at 818; Rice, 51 S.W.3d at 710 (quoting Scott).


To prevail on its forcible detainer action, [the plaintiff has to] to prove (1) it owned the property by virtue of a foreclosure sale deed, (2) Defendant became a tenant at sufferance when the property was sold under the deed of trust, (3) Trans-Atlas gave Defendant notice to vacate the premises, and (4) Defendant refused to vacate the premises. See Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568-69 (Tex. App.-Dallas 2008, pet. dism'd w.o.j.); see also PROP. § 24.002 (West 2014).


A forcible detainer suit is brought in justice court. PROP. § 24.004(a) (West 2014). The decision of the justice court may be appealed to the county court. TEX. R. CIV. P. 510.10(a). The appeal is by trial de novo, which is "a new trial in which the entire case is presented as if there had been no previous trial." TEX. R. CIV. P. 510.10(c). In the county court, a party may "plead, prove and recover his damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal." TEX. R. CIV. P. 510.11.

The validity of a foreclosure sale may not be determined in a suit for forcible detainer but must be brought in a separate suit. TEX. R. CIV. P. 510.3(e); Scott, 90 S.W.2d at 818-19; Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.-Dallas 2010, no pet.). Defects in the foreclosure process or with Trans-Atlas's title are not relevant in the suit before us. See Williams, 315 S.W.3d at 927.

SOURCE: DALLAS COURT OF APPEALS - 05-14-00126-CV - 3/12/2015  

Statute of Frauds as to Real Estate - Was the Property Sufficiently Identified?


Statute of Frauds and Enforeability of Asserted Right of First Refusal  

A contract for the sale of real property must comply with the statute of frauds. TEX. BUS. & COM. CODE ANN. § 26.01(a)(4) (West 2009). An option to purchase contained in a real estate lease is a contract for the sale of real property that must comply with the statute of frauds. See Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980, 982 (1948). Likewise, a right-of-first-refusal on the sale of real property is unenforceable unless it satisfies the statute of frauds. See Reiland v. Patrick Thomas Props., Inc., 213 S.W.3d 431 (Tex. App.-Houston [1st Dist.] 2006, pet. denied); Jones v. Brown, No. 04-99-00775-CV, 2000 WL 1056028 (Tex. App.-San Antonio Aug. 2, 2000, no pet.)(not designated for publication).


A contract for the sale of real property satisfies the statute of frauds only if the property description is "so definite and certain upon the face of the instrument itself, or in some other writing referred to, that the land can be identified with reasonable certainty." Matney, 210 S.W.2d at 982. When the contract at issue is an option contained within another document, it is the property to be conveyed pursuant to the option that must be identified with reasonable certainty. See Matney, 210 S.W.2d at 982; Ardmore, Inc. v. Rex Group, Inc., 377 S.W.3d 45, 57 (Tex. App.-Houston [1st Dist.] 2012, pet. denied). Whether the property description in a writing is sufficient to comply with the statute of frauds is a question of law. Dixon v. Amoco Prod. Co., 150 S.W.3d 191, 194 (Tex. App.-Tyler 2004, pet. denied).

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-12-00363-CV - 3/20/2013  

The Hasketts' motion for summary judgment asserted the right-of-first-refusal is unenforceable because the description of the property subject to the right-of-first-refusal fails to furnish any means by which the property referred to can be identified with reasonable certainty. The Hasketts submitted uncontroverted summary judgment evidence that the property is located at 470 S. Main and consists of 0.557 acres, more or less, and a building that is approximately 8,210 square feet. They argue there is no information in the four corners of the lease by which the 5188 square feet "premises" in the lease could be located out of the entire property at 470 S. Main. Further, the lease does not refer to any other document from which the specific identity and location of the property subject to the right-of-first-refusal could be ascertained.

OTR first argues that the lease sufficiently describes the property to be conveyed under the right-of-first-refusal as the property being leased ("approximate[ly] . . . 5188 square feet [at] 407 S. Main Street [in] Boerne, Kendall County, Texas 78006"). It argues that anyone familiar with Boerne could identify the property referred to from the address, the identity of the owners, and identity of the lessee. We disagree. The address in the description of the premises in the lease is incorrect and the lease does not identify the owner of the property, only the lessor. See Matney, 210 S.W.2d at 983 ("It will not necessarily be inferred that he owned the land simply because he signed the lease contract as lessor."). More importantly, "a deed purporting to convey land, which describes it only by quantity and as being part of a larger tract, with nothing whereby to identify what specific portion of the larger tract is intended to be conveyed, is void for uncertainty of description." Matney, 210 S.W.2d at 983 (quoting Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, 705 (1935)); See Texas Builders v. Keller, 928 S.W.2d 479, 481-82 (Tex. 1996) (holding description of property as "58,333 square feet . . . at 12050 Rojas" is insufficient to identify the property with reasonable certainty where the property at that address contained 100,000 square feet and nothing in document identifies which part of the property is being referred to); Hereford v. Tilson, 145 Tex. 600, 200 S.W.2d 985, 988-89 (1947) (holding that where lease provided lessee option to purchase part of property at given location, but it could not be determined what part of the property was included without resort to parol evidence, option violated statute of frauds and would not be enforced).

OTR argues alternatively that the "premises" referred to in the right-of-first-refusal is the entire property—the land and building—at 470 S. Main, and that the property is sufficiently described by identifying the street address and the owner. We again disagree. First, nothing in the lease itself suggests the parties to lease were referring to different things when they used "premises" as opposed to "Premises." To make its argument, OTR resorts to parol evidence regarding the parties' intent. However, this intent was not expressed in the lease. Even if parol evidence established the parties knew and understood what property was intended to be conveyed, the knowledge and intent of the parties will not give validity to a contract with an insufficient property description on its face. Reiland, 213 S.W.3d at 437 (citing Morrow v. Shotwell, 477 S.W.2d 538, 540 (Tex. 1972)).

If we assume that "premises," as used in the right-of-first-refusal, refers to the entire property at 470 S. Main, the property description in the lease is still insufficient to comply with the statute of frauds. A property description consisting of a street address may be sufficient under the statute of frauds if the document also contains a statement of ownership and it is shown that the party to be charged owns only one property fitting the property description in the contract. Moudy v. Manning, 82 S.W.3d 726, 728-29 (Tex. App.-San Antonio 2002, pet. denied); see Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, 223-24 (1949) (holding statement of ownership in the body of the instrument is considered part of the property description). When the description of the property to be conveyed is of doubtful sufficiency, ownership is an important element. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 154 (1945). The lease does not expressly identify the owner of the property and contains no statement of ownership. Ownership cannot be inferred from the mere fact that a person is a lessor of the property or contracts to sell it. Matney, 210 at 983; Wilson, 188 S.W.2d at 154. Nor may it be supplied by parol evidence. Id. The mere description of the property by its address, without any statement of ownership is insufficient.

We hold the Hasketts met their burden to establish that the statute of frauds applies to the right-of-first-refusal and the property description is insufficient as a matter of law to comply with the statute of frauds, rendering the right-of-first-refusal unenforceable.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-12-00363-CV - 3/20/2013  


The statute of frauds is an affirmative defense, and it is waived if not pled. TEX.R.CIV.P. 94; Phillips v. Phillips, 820 S.W.2d 785, 791 (Tex. 1991).  

Friday, March 20, 2015

An action for trespass to try title ... means what?

An action for trespass to try title is "the method for determining title to lands, tenements, or other real property and the exclusive remedy for resolving competing claims to property." Parker v. Hunegnaw, 364 S.W.3d 398, 401 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Tex. Prop. Code Ann. § 22.001). To succeed, a plaintiff must establish the superiority of his title and cannot prevail merely on the weakness of the defendant's title. Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004). Because Plaintiffs have alleged a valid claim for wrongful foreclosure, fraud, and promissory estoppel, each of which substantiate a superior claim to title (taking all of Plaintiffs' allegations as true), and request return of title as one form of relief, the district court erred in dismissing Plaintiffs' action for trespass to try title.

SOURCE: FIFTH CIRCUIT: Guajardo v. JP Morgan Chase Bank, NA, Court of Appeals, 5th Circuit Jan 12, 2015

Declaratory Judgments Action - When is it proper?


A declaratory judgment is a remedial measure that determines the rights of the parties and affords relief from uncertainty with respect to rights, status, and legal relations. See Halliburton Energy Servs., Inc. v. Axis Tech., LLC, 444 S.W.3d 251, 262 (Tex. App.-Dallas 2014, no pet.) (citing Ysasaga v. Nationwide Mut. Ins. Co., 279 S.W.3d 858, 863 (Tex. App.-Dallas 2009, pet. denied)). The Texas Uniform Declaratory Judgments Act is contained in chapter 37 of the Texas Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-37.011.

Under section 37.004(a) of the declaratory judgments act, "[a] person interested under a deed . . . may have determined any question of construction or validity arising under the instrument . . . and obtain a declaration of rights, status, or other legal relations thereunder." Id. § 37.004(a). Further, the act provides in part, "[n]otwithstanding Section 22.001, Property Code, a person described by Subsection (a) may obtain a determination under this chapter when the sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties." Id. § 37.004(c). Additionally, section 37.009 of the act states, "In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Id. § 37.009.

Section 16.033 of the Texas Civil Practice and Remedies Code provides in part,

A person with a right of action for the recovery of real property or an interest in real property conveyed by an instrument with one of the following defects must bring suit not later than two years after the day the instrument was filed for record with the county clerk of the county where the real property is located:

. . . .
(6) acknowledgment of the instrument in an individual, rather than a representative or official, capacity;
(7) execution of the instrument by a trustee without record of the authority of the trustee or proof of the facts recited in the instrument;
(8) failure of the record or instrument to show an acknowledgment or jurat that complies with applicable law; or
(9) wording of the stated consideration that may or might create an implied lien in favor of the grantor.

Id. § 16.033(a) (West 2002). Section 16.003 does not apply to a forged instrument. Id. § 16.033(b).

A bona fide purchaser is "[a] person who acquires property in good faith, for value, and without notice of any third-party claim or interest." Fletcher v. Minton, 217 S.W.3d 755, 758 (Tex. App.-Dallas 2007, no pet.); see also TEX. PROP. CODE ANN. § 13.001 (West 2014). Status as a bona fide purchaser is an affirmative defense to a title dispute. Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001). However, the protection usually afforded to a bona fide purchaser for value without notice does not apply when such purchaser's claim is dependent upon a forged instrument. Bellaire Kirkpatrick Joint Venture v. Loots, 826 S.W.2d 205, 210 (Tex. App.-Fort Worth 1992, writ denied).
SOURCE: DALLAS COURT OF APPEALS - No. 05-13-01581-CV - 1/21/2015

Thursday, March 12, 2015

Judicial Extension of Limitations Period - American Star Energy and Minerals Corporation v Stowers (Tex Feb. 27, 2015)


A cause of action accrues when facts come into existence that authorize a claimant to seek a judicial remedy. At least that has been the general rule. On February 27, 2015, the Texas Supreme Court created an exception, and thereby revived a creditor's claim that had been dismissed as time-barred by the court below. 

A claim against a partner to enforce the partner's liability for partnership debt, says the Court, does not accrue when the underlying claim accrues even though the partner may be sued in addition to the partnership.
Acknowledging that the Texas Legislature has not defined accrual for this type of claim, though it has done so for other types of claims, and even citing the residual statute of limitations in the Civil Practice and Remedies Code (4 years), the Court nevertheless effectively extended the "statute" of limitations for a claim against the partner to many more years (depending on how fast the claim against the partnership is brought and how fast it is litigated to judgment) by holding that the claim for enforcement of the partners' liability on partnership debt does not accrue until judgment is entered against the partnership (plus an additional 90 days, unless an exception applies). 

It gives a whole new meaning to statutory construction: Extending the "statute" of limitations beyond the four year statute of limitations for breach of contract claims (and the residual statute of limitations for like number of years) by creating an exception to the general rule of accrual that other plaintiffs have to live by. 

American Star Energy and Minerals Corporation v Stowers (Tex Feb. 27, 2015)(Opinon by Jeff Brown).

Coverage of this case elsewhere:
Texas High Court Extends Limitations Period for Unpaid Partnership Liabilities
SCOTX rules on limitations period against partners: American Star Energy and Minerals Corp. v. Stowers


No. 13-0484.
Supreme Court of Texas.

Argued October 14, 2014.
Opinion delivered: February 27, 2015.
JUSTICE BROWN delivered the opinion of the Court.

In this case we must decide whether Texas partnership law requires a plaintiff seeking to enforce a partner's liability for a partnership debt to sue the partner within the limitations period on the underlying claim against the partnership. Here, a judgment creditor attempted to collect from a partnership after litigating a contract claim for over a decade and a half, only to find the partnership insolvent. When the creditor sought a judgment against the individual partners, the trial court ruled the limitations period began when the underlying cause of action accrued. Because that period had passed, limitations precluded pursuit of the partners' assets. The court of appeals affirmed. 

We hold today that the limitations period against a partner generally does not commence until after final judgment against the partnership is entered. Because this action was brought within that period, we reverse the court of appeals' judgment.