Monday, October 26, 2009
DEFERRING CLAIM ACCRUAL DATE THROUGH THE DISCOVERY RULE
The discovery rule is a very limited exception to limitations and is construed strictly. See Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1994) (“the discovery rule, in application, proves to be a very limited exception to statutes of limitation.”); S.V. v. R.V., 933 S.W.2d 1, 25 (Tex. 1996) (“exceptions to the legal injury rule should be few and narrowly drawn”). [U]nder Texas law, the discovery rule applies when “the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.” See Computer Assocs. Int'l, Inc., 918 S.W.2d at 456.
HOW IS 'INHERENTLY UNDISCOVERABLE' CONSTRUED AND APPLIED BY COURTS IN TEXAS?
As the Texas Supreme Court explained in Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734-35 (Tex. 2001): An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed limitations period despite due diligence. S.V. v. R.V., 933 S.W.2d 1, 7 (Tex.1996) (citing Altai, 918 S.W.2d at 456). “Inherently undiscoverable” does not mean that a particular plaintiff did not discover his or her particular injury within the applicable limitations period. Id. Instead, we determine whether an injury is inherently undiscoverable on a categorical basis because such an approach “brings predictability and consistency to the jurisprudence.” Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex.2001) (citing S.V. v. R.V., 933 S.W.2d at 6); see also HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998). Accordingly, the question [...] is not whether [parties] detected the alleged improper charges and resulting underpayment within the limitations period. Rather, we must decide whether theirs is “the type of injury that generally is discoverable by the exercise of reasonable diligence.” HECI, 982 S.W.2d at 886. The court also explained in Via Net, U.S. v. TIG Insurance Co., 211 S.W.3d 310, 314 (Tex. 2006), that whether an injury is inherently undiscoverable is a legal question “decided on a categorical rather than case-specific basis; the focus is on whether a type of injury rather than a particular injury was discoverable.” (Emphasis in original).
SOURCE: DALLAS COURT OF APPEALS - 05-07-01553-CV (Dallas CoA)(10/19/09)
SoL: When does a cause of action accrue? Under what circumstances can a later ACCRUAL DATE be claimed?
WHEN DOES AN ACTIONABLE CLAIM ACCRUE FOR LIMITATIONS PURPOSES?
Determining when a cause of action accrues typically is a question of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). “ As a general rule, a cause of action accrues and the statute of limitations begins to run when facts come into existence that authorize a party to seek a judicial remedy." Id. (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998), and Murray, 800 S.W.2d at 828). “In most cases, a cause of action accrues when a wrongful act causes a legal injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur." Knott, 128 S.W.3d at 221 (citing S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)).
WHEN DOES A LATER ACCRUAL DATE APPLY?
Accrual may be deferred if the cause of action (1) is not discovered as a result of fraud or fraudulent concealment; or (2) is “inherently undiscoverable." Kuzniar v. State Farm Lloyds, 52 S.W.3d 759, 760 (Tex. App.-San Antonio 2001, pet. denied) (en banc). [Party] did not plead these bases for deferring accrual of his cause of actions; did not assert them in his summary judgment response; and does not assert them on appeal. Therefore, [opposing party] was not required to negate these bases for deferring accrual in the trial court and they do not affect the analysis on appeal. See, e.g, Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006).
SOURCE: 14-08-00248-CV (14th Court of Appeals-Houston) (10/15/09)
Thursday, October 22, 2009
LIMITATIONS & DISCOVERY RULE: WHAT IS ITS EFFECT WHEN IT APPLIES?
"The discovery rule has been applied in limited categories of cases to defer accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to a cause of action." HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998).
WHEN DOES THE DISCOVERY RULE TOLL THE RUNNING OF LIMITATIONS?
The application of the discovery rule is generally limited to those cases where the nature of the injury is inherently undiscoverable and the evidence of the injury is objectively verifiable. Id. The applicability of the discovery rule is determined categorically, i.e., not based on whether the particular injury in the case at hand may not have been discovered but whether the injury is of a type that generally is discoverable by the exercise of reasonable diligence. Id.
SOURCE: (04-08-00509-CV (San Antonio Court of Appeals (7/1/09, pet. denied Oct. 16, 2009)
Tuesday, October 20, 2009
Monday, October 19, 2009
An employer who discloses information about a current or former employee under Section 103.003 is immune from civil liability for that disclosure or any damages proximately caused by that disclosure unless it is proven by clear and convincing evidence that the information disclosed was known by that employer to be false at the time the disclosure was made or that the disclosure was made with malice or in reckless disregard for the truth or falsity of the information disclosed. For purposes of this subsection, "known" means actual knowledge based on information relating to the employee, including any information maintained in a file by the employer or that employee. Id. § 103.004(a).
When a defendant seeks summary judgment based on qualified privilege, it is the defendant's burden to conclusively establish that his allegedly defamatory statement was made with an absence of actual malice. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).
In the defamation context, a statement is made with actual malice when it is made with knowledge of its falsity or with reckless disregard as to its truth. Id. at 646. Reckless disregard exists when "the defendant in fact entertained serious doubts as to the truth of his publication" or had a "high degree of awareness of . . . [the] probable falsity of his statements." Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002) (quoting Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989)).
Actual malice with regard to a defamatory statement involves a higher level of culpability than mere ill will or animosity. Akin v. Santa Clara Land Co., 34 S.W.3d 334, 341 (Tex. App.--San Antonio 2000, pet. denied). Negligence, failure to investigate the truth or falsity of the statements prior to publication, or failure to act as a reasonable prudent person is insufficient. Id. at 341-42.SOURCE: 03-07-00317-CV (Austin Court of Appeals) (10/14/09) (statement about former employee's refusal to take drug test not actionable) (evidence is sufficient to conclusively establish that [former employer's] statements were made without malice or reckless disregard for their truth or falsity. See New Times, Inc. v. Issacks, 146 S.W.3d 144, 164 (Tex. 2004) (affidavits from interested witnesses may negate actual malice as a matter of law if they are "clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and [able to be] readily controverted. Tex. R. Civ. P. 166a(c)").
Sunday, October 18, 2009
What terms are material or essential to a contract are determined on a contract-by-contract basis, depending on the subject matter of the contract at issue. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992) (stating that "[e]ach contract should be considered separately to determine its material terms" and that "[i]n a contract to loan money, the material terms will generally be: the amount to be loaned, maturity date of the loan, the interest rate, and the repayment terms").
ESSENTIAL TERMS OF CONTRACT FOR SALE
Three essential elements of a contract for sale are "(1) the thing sold, which is the object of the contract; (2) the consideration or price to be paid for the thing sold; and (3) the consent of the parties to exchange the thing for the price." Kelly v. Rio Grande Computerland Group, 128 S.W.3d 759, 767 (Tex. App.-El Paso 2004, no pet.); John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 20 (Tex. App.-Houston [1st Dist.] 2000, pet. denied).
ESSENTIAL TERMS OF CONTRACT FOR LOANING OF MONEY
In a contract to loan money, the material terms will generally be: the amount to be loaned, maturity date of the loan, the interest rate, and the repayment terms. T.O. Stanley Boot Co., 847 S.W.2d at 221.
RELATED CONCEPTS: missing, omitted material contract terms, indefiniteness of contract terms, meeting of the minds, agreement to agree, enforceability of contract.
SOURCE: 02-07-00355-CV (Fort Worth CoA) (5/28/09, pet. denied 10/16/09)
Saturday, October 17, 2009
Discharge Defense to Suit to Enforce Personal Guaranty - Material Alteration of Contract without Guarantor's Consent
AFFIRMATIVE DEFENSE OF DISCHARGE AGAINST ENFORCEMENT OF PERSONAL GUARANTY FOR LIABILITY EVIDENCED BY PROMISSORY NOTE
To be entitled to discharge from liability, the guarantor must prove: (1) a material alteration of the underlying contract; (2) made without the guarantor's consent; (3) which is to the guarantor's detriment. Vastine v. Bank of Dallas, 808 S.W.2d 463, 464-65 (Tex. 1991) (per curiam); Old Colony Ins. Co. v. City of Quitman, 163 Tex. 144, 352 S.W.2d 452, 455 (1961).
We review a trial court's conclusions of law as a legal question. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
DISCHARGE DEFENSE NOT ESTABLISHED
There is no evidence of any modification of the promissory note here. The evidence Byboth relies on concerns whether Wood breached the note, not whether it modified it. Moreover, the evidence also negates as a matter of law any damages resulting from the misapplication of the payments from 2-16 Holdings, Inc. It is undisputed that when Wood calculated the amount owed on the note at trial (or at least before judgment), it credited 2-16 Holdings, Inc. and Byboth with the amounts of the four payments. Byboth agreed that Wood was not seeking to recover under the guaranty more than 2-16 Holdings, Inc. owed under the terms of the promissory note. Therefore, any earlier misapplication of the payments due under the promissory note was corrected, and the judgment on the underlying obligation reflected the correction. Thus, the undisputed facts fail to show that Byboth should be discharged from liability.
SOURCE: 05-08-00915-CV (Dallas Court of Appeals) (5/21/09, pet. denied Oct 16, 2009)
|Material Alteration of Contract and Discharge Defense |
in Suit to Enforce Personal Guaranty
LIMITATIONS MUST BE PLED TO AVOID WAIVER
“In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of limitations . . . and any other matter constituting an avoidance or affirmative defense.” Tex. R. Civ. P. 94. Limitations is an affirmative defense that is waived if not pleaded. G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 544 (Tex. App.-Dallas 2005, no pet.).
DEFENSE OF LIMITATIONS IN ATTORNEY DISCIPLINARY ACTION / DISBARMENT ACTION
No attorney licensed to practice law in Texas may be disciplined for Professional Misconduct occurring more than four years before the time when the allegation of Professional Misconduct is brought to the attention of the Office of Chief Disciplinary Counsel, except in cases in which disbarment or suspension is compulsory.
ACCRUAL AND TOLLING OF STATUTE / DISCOVERY RULE
Limitations will not begin to run where fraud or concealment is involved until such Professional Misconduct is discovered or should have been discovered in the exercise of reasonable diligence by the Complainant.Tex. R. Disciplinary P. 15.06, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A-1 (Vernon 2005). Appellant argues that the mandatory nature of the language in rule 15.06, “No attorney . . . may be disciplined for Professional Misconduct occurring more than four years before . . . the allegation . . . is brought to the attention of the Office of Chief Disciplinary Counsel, “ makes it an absolute bar to discipline for conduct outside the limitations period.
EXAMPLES OF STATUTES OF LIMITATIONS THAT WERE WAIVED
[Texas courts of appeals] have held other statutes of limitations containing mandatory language could be waived. Tex. Fam. Code Ann. § 160.607(a) (Vernon 2008) (“a proceeding . . . to adjudicate the parentage of a child . . . shall be commenced not later than the fourth anniversary of the date of the birth of the child”); Miles v. Peacock, 229 S.W.3d 384, 387-88 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (family code § 160.607(a) waived by failure to plead limitations); see also Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (Vernon 2002) (“A person must bring suit on the following actions not later than four years after the day the cause of action accrues: . . . (3) debt . . . .”); Frazier v. Havens, 102 S.W.3d 406, 411-12 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (four-year statute of limitations waived by failure to plead it). Thus, the mandatory nature of the language does not preclude waiver.
SOURCE: 05-07-00428-CV (Dallas CoA) (3/17/09, pet. denied Oct 16, 2009)
Tuesday, October 13, 2009
IIED Tort Difficult to Establish in Employment Context in Texas: What Is Extreme and Outrageous Treatment of Employee?
Friday, October 9, 2009
Wednesday, October 7, 2009
Tuesday, October 6, 2009
Elements of Fraud Cause of Action
To recover on an action for fraud, the plaintiff must prove: (1) a material representation was made, (2) the representation was false, (3) when the speaker made the representation, he knew it was false or made it recklessly without knowledge of the truth as a positive assertion, (4) the speaker made it with the intention that it should be acted upon by the party, (5) the party acted in reliance upon it, and (6) the party thereby suffered injury. Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 385 (Tex. App.-Houston [14th Dist.] 2007, no pet.).
Allegation of fraud was conclusory and did not raise issue of fact to avert summary judgment; no evidence of specific false representation produced.
In his summary judgment motion, Manley argued there is no evidence to support any of the elements of fraud. Appellant alleges Manley engaged in fraud, conspiracy to defraud, and constructive fraud. He claims his signature on the final settlement agreement was procured by fraud because Manley did not explain the settlement agreement to him and he admittedly signed without reading the agreement. However, appellant fails to point to a specific false representation by Manley. Mere conclusory statements do not constitute effective summary judgment proof and need not be given the same presumptive force as allegations of fact. Abbott Laboratories, Inc. v. Segura, 907 S.W.2d 503, 508 (Tex. 1995). Moreover, appellant attached no evidence to his motion. See Tex. R. Civ. P. 166a(i) ("The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact."). Appellant's allegations of fraud amount to conclusory accusations and he presents no evidence raising a genuine issue of material fact on any element of his fraud cause of action. See Segura, 907 S.W.2d at 508. Specifically, appellant did not point to a single specific misrepresentation upon which he bases his claim. The trial court did not err in granting summary judgment on this claim.
SOURCE: 14-07-01085-CV (10/6/09) (14th Court of Appeals - Houston)
Monday, October 5, 2009
Ambiguous vs. Unambiguous Contract: Implications for Summary Judgment, Admissibility of Extrinsic, Parol Evidence
Friday, October 2, 2009
WHEN IS A CASE OR CLAIM RIPE FOR DISPOSITION BY SUMMARY JUDGMENT?
Summary judgment is appropriate when there is no genuine issue as to any material fact and judgment should be granted in favor of the movant as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005) (citing KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)).
DEFENDANT'S USE OF THE SUMMARY JUDGMENT PROCEDURE
Summary judgment may be granted on an affirmative defense. See Tex. R. Civ. P. 166a(c). A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. Diversicare, 185 S.W.3d at 846 (citing KPMG Peat Marwick, 988 S.W.2d at 748)); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003).
APPLICABLE EVIDENTIARY STANDARD AND SHIFT IN THE BURDEN OF PROOF
A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). If the movant establishes that the statute of limitations bars the action, the nonmovant must then present summary judgment evidence raising a fact issue in avoidance of the statute of limitations. Kang v. Hyundai Corp., 992 S.W.2d 499, 501 (Tex. App.-Dallas 1999, no pet.); Palmer v. Enserch Corp., 728 S.W.2d 431, 435-36 (Tex. App.-Austin 1987, writ ref'd n.r.e.).
PERSONAL INJURY CLAIMS: 2-YEAR SOL IN TEXAS
The statute of limitations expired before appellant filed suit against appellee. The limitations period for this cause of action was two years from the accrual of the cause. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp. 2008) (providing a two-year limitations period for personal injury claims).
Summary Judgment Based on the Statute of Limitations Was Proper Where Negligence Claim Based on Accident Accrued More Than 2 Years Prior to Date Amended Petition Named Additional Defendant (Movant)
In his response to appellee's motion for summary judgment and on appeal, appellant admits the motor vehicle accident occurred on April 15, 2006 and the statute of limitations applicable to a negligence cause of action that arose from the accident expired April 16, 2008. The record confirms on February 27, 2008, appellant filed suit against Insurance Depot, Inc. and on July 22, 2008, appellant filed his amended petition including the negligence claim against the newly- named appellee. We conclude that appellee established its defense of limitations as a matter of law, and the summary judgment in favor of appellee was proper in this case.
SOURCE: 05-09-00183-CV (Dallas Court of Appeals) (10/1/09)
The enforceability of a settlement agreement is determined in the same manner as any other written contract. Anderton v. Schindler, 154 S.W.3d 928, 932 (Tex. App.-Dallas 2005, no pet.). Whether an agreement is legally enforceable or binding is a question of law. Texaco, Inc. v. Penzoil Co., 729 S.W.2d 768, 814 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.).
WHAT IS REQUIRED TO MAKE A SETTLEMENT AGREEMENT ENFORCEABLE?
In order for a court to enforce a contract, the parties must agree to the essential terms of the contract. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). An agreement is unenforceable if it is so indefinite that a court cannot fix the legal obligations and liabilities of the parties. Moore v. Dilworth, 179 S.W.2d 940, 942 (Tex. 1944).
WHAT ARE ESSENTIAL TERMS OF A SETTLEMENT?
Our court has determined that essential terms for a settlement agreement are the amount of compensation and the liability to be released. Disney v. Gollan, 233 S.W.3d 591, 595 (Tex. App.-Dallas 2007, no pet.). See also Padilla v. LaFrance, 907 S.W.2d 454, 460-61 (Tex. 1995) (agreement was complete where terms included agreement to pay in exchange for settlement); CherCo Properties, Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d 262, 266 (Tex. App.-Fort Worth 1999, no pet.) (holding a settlement agreement that includes the terms of payment, and a statement that the parties would execute releases, contained all material terms). When essential terms are open for future negotiation, there is not a binding contract. T.O. Stanley, 847 S.W.2d at 221.
SOURCE: 05-08-01042-CV (Dallas CoA) (9/29/09) (agreement lacked essential term because compensation under the agreement was not yet clear)
A release and an indemnity agreement are different. An indemnity agreement is a promise by the indemnitor to safeguard or hold the indemnitee harmless against existing or future loss or liability, or both. MG Bldg. Materials, Ltd. v. Moses Lopez Custom Homes, Inc., 179 S.W.3d 51, 63 (Tex. App.--San Antonio 2005, pet. denied); see Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). An indemnity provision does not apply to claims between the parties to the agreement, but obligates the indemnitor to protect the indemnitee against claims brought by third parties. MG Bldg., 179 S.W.3d at 63. Thus, an indemnity agreement creates a potential cause of action in the indemnitee. Id.
A release, on the other hand, is an agreement by one party to surrender its own cause of action against the other party. Id. at 64; see Dresser Indus., 853 S.W.2d at 508. A release extinguishes any claim the releasor might have against the releasee without regard to the releasee's liability to third parties. MG Bldg., 179 S.W.3d at 64. A release is an affirmative defense and must be pled. Id.; see Tex. R. Civ. P. 94. Thus, typical release language is "release, discharge, relinquish," while typical indemnity language is "indemnify, save, protect, save/hold harmless." MG Bldg., 179 S.W.3d at 64.
SOURCE: SAN ANTONIO COURT OF APPEALS - 04-08-00302-CV (9/15/09)
A "meeting of the minds" is a phrase that nobody uses in ordinary discourse, or even in business correspondence. But that does not change the fact that the matter of "whether the minds met" can make or break a breach-of-contract claim when it ends up in court (or in arbitration, for that matter).
What does the "meeting of the minds" mean in the contracting context?
“Meeting of the minds” describes the mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract. Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex. App.—Dallas 1999, pet. denied). “The parties must agree to the same thing, in the same sense, at the same time.” Id.
The essential elements required, in writing, for the sale of real property are the price, the property description, and the seller’s signature. See Rus-Ann Dev., Inc. v. ECGC, Inc., 222 S.W.3d 921, 927 (Tex. App.—Tyler 2007, no pet.); Lynx Exploration & Prod. Co. v. 4-Sight Operating Co., 891 S.W.2d 785, 788 (Tex. App.—Texarkana 1995, writ denied).
Meeting of the Minds and enforceability of contracts
However, this does not mean that a contract containing these terms would remain enforceable if additional terms are incorporated into the agreement that are so indefinite that the court could not fix the legal obligation and liabilities of the parties. Lynx Exploration, 891 S.W.2d at 788.
Here, there is no dispute the Fines agreed to sell and the Pollards agreed to buy the real property that was the subject matter of the Commercial Contract. The parties agreed on all terms essential to that sale, including, but not limited to, the sales price, financing, payment of earnest money, inspection of the property, fees, and details regarding closing and possession of the property. We conclude Stephen did not conclusively establish that there was no meeting of the minds with regard to the contract.
Establishing and Disputing the Meeting of the Minds Element of a Contract Claim
Whether the parties have come to a “meeting of the minds” is measured objectively according to what the parties said and did. Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex. App.—San Antonio 1999, pet. denied). The parties’ subjective thoughts and beliefs do not control. Id. When the “meeting of the minds” element is contested, it is a question for the fact finder. Hallmark v. Hand, 885 S.W.2d 471, 476 (Tex. App.—El Paso 1994, writ denied).
SOURCE: 04-08-00745-CV (9/9/09) (San Antonio Court of Appeals)