Integration Clause: Purpose and Effect of Merger Clause in Contracts

"ENTIRE AGREEMENT" CLAUSE & THE PAROL EVIDENCE RULE The purpose of an integration clause is to invoke the parol evidence rule when appropriate. Burleson State Bank v. Plunkett, 27 S.W.3d 605, 615 (Tex. App.-Waco 2000, pet. denied). An unambiguous contract will be enforced as written, and parol evidence will not be received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imparts. See David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008). SOURCE: 13-08-00264-CV (Thirteenth Court of Appeals) (November 12, 2009) (agreement contained an integration clause, providing that the written agreement constituted the entire agreement between the parties)

Enforcing unambiguous contract (breach of contract cause of action)

PROVING BREACH OF CONTRACT CAUSE OF ACTION (ambiguous vs. unambiguous contracts)

In order to succeed on a breach of contract claim, [Plaintiff] would have had to prove that: (1) a valid contract existed; (2) it performed or tendered performance; (3) [Defendant] breached the contract; and (4) [Plaintiff] sustained damages as a result of the defendant's breach. Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 771 (Tex. App.-Corpus Christi 2001, no pet.).

Netrana contends that it performed its obligations under the contract by "standing ready, willing, and able to perform professional services" and that TXU breached the guaranteed minimum payment provision of the contract. Thus, we look to the contract under our well recognized rules of contract construction to determine if a minimum payment provision existed in the amended agreement.

CONTRACT CONSTRUCTION RULES

In construing a written contract, the primary concern is to ascertain and to give effect to the parties' intentions as expressed in the document. Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005). We consider the entire writing and attempt to harmonize and to give effect to all of the contract's provisions. Id. at 312.

We construe contracts "'from a utilitarian standpoint bearing in mind the particular business activity sought to be served'" and "'will avoid when possible and proper a construction which is unreasonable, inequitable, and oppressive.'" Id. (quoting Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987)). "

The language in a contract is to be given its plain grammatical meaning unless doing so would defeat the parties' intent." Amtech Elevator Servs. Co. v. CSFB 1998-P1 Buffalo Speedway Office Ltd. P'ship, 248 S.W.3d 373, 379 (Tex.App.-Houston [1st Dist.] 2007, no pet.).

UNAMBIGUOUS CONTRACT CONSTRUED AS A MATTER OF LAW

If, after the pertinent rules of construction are applied, the contract can be given a definite or certain legal meaning, it is unambiguous, and we construe it as a matter of law. Frost Nat'l Bank, 165 S.W.3d at 312. However, if after such rules are applied, the meaning of the contract remains uncertain or is susceptible to more than one reasonable interpretation, it is ambiguous. Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex. 1983).

AMBIGUOUS CONTRACT CALLS FOR CONSIDERATION OF OTHER EVIDENCE TO ESTABLISH THE PARTIES' INTENT

If a contract is ambiguous, the contract's interpretation becomes a fact issue to be resolved by deciding the parties' true intent, for which the fact finder may consider extraneous evidence of intent. See Nat'l Union Fire Ins. Co., 907 S.W.2d at 520; Coker, 650 S.W.2d at 394-95.

Whether a contract is ambiguous is a question of law to be determined "by looking at the contract as a whole in light of the circumstances present when the contract was entered." Coker, 650 S.W.2d at 394.

SOURCE: 13-08-00264-CV (13th Court of Appeals) (Nov. 12, 2009)

Intentional Misrepresentation akin to Fraud

ELEMENTS OF INTENTIONAL MISREPRESENTATION TORT A claim of intentional misrepresentation has the same elements as a fraud claim. See Smith v. Tilton, 3 S.W.3d 77, 82 n.3 (Tex. App.-Dallas 1999, no pet.). The elements of a cause of action for fraud are: (1) that a material representation 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 suffered injury as a result. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). [Also see --> fraudulent misrepresentation] BREACH OF CONTRACT AND FRAUD DISTINGUISHED A promise to do an act in the future constitutes fraud only when made with no intention of performing the promise at the time the promise was made. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). NON-PERFORMANCE UNDER CONTRACT, WITHOUT MORE, NOT FRAUD The mere failure to perform a contract is not evidence of fraud. Id. Fraudulent intent may be established by either direct or circumstantial evidence, and the subsequent failure to perform the promise, while not alone dispositive, can be considered with other factors to establish intent. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434-35 (Tex. 1986). SOURCE: 13-08-00264-CV (Corpus Christi-Edinburg Court of Appeals)(11/12/09)

Fraud in a Real Estate Transaction (statutory cause of action)

Real Estate Fraud

Section 27.01 of the business and commerce code provides:

(a) Fraud in a transaction involving real estate . . . consists of a

(1) false representation of a past or existing material fact, when the false representation is

(A) made to a person for the purpose of inducing that person to enter into a contract; and

(B) relied on by that person in entering into that contract . . . .

Tex. Bus. & Com. Code Ann. § 27.01 (West 2009).

Statute of Frauds: Sale of Real Property, Real Estate Transactions

Statute of Frauds (Real Estate Sales Transaction) To be enforceable, a contract for the sale of real estate must comply with the statute of frauds. Tex. Bus. & Com. Code Ann. § 26.01(b)(4) (West 2009); Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978). Section 26.01 of the business and commerce code provides: (a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him. (b) Subsection (a) of this section applies to: . . . (4) a contract for the sale of real estate . . . . Tex. Bus. & Com. Code Ann. § 26.01. Whether a contract meets the requirements of the statute of frauds is a question of law. Bratcher v. Dozier, 346 S.W.2d 795, 796 (Tex. 1961); West Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 264 (Tex. App.--Austin 2002, no pet.). [T]he statute of frauds bars a fraud claim to the extent that the plaintiff seeks to recover as damages the benefit of a bargain that cannot otherwise be enforced because it fails to comply with the statute of frauds. Haase v. Glazner, 62 S.W.3d 795, 799 (Tex. 2001). This is because "the Statute exists to prevent fraud and perjury in certain kinds of transactions by requiring agreements to be set out in a writing signed by the parties. But that purpose is frustrated and the Statute easily circumvented if a party can use a fraud claim essentially to enforce a contract the Statute makes unenforceable. The statute of frauds may not bar a common-law fraud claim to the extent the plaintiff seeks out-of-pocket damages incurred in relying upon the defendant's alleged misrepresentations because "[w]ith respect to such damages, [the plaintiff] is not attempting to enforce the otherwise unenforceable contract. . . . These kinds of damages are not part of the benefit of any alleged bargain between the parties." Haase v. Glazner, 62 S.W.3d 795, 799-800 (Tex. 2001). We need not address the type of damages Joseph seeks because statutory real estate fraud requires the existence of a contract. SOURCE: 03-07-00197-CV (Austin Court of Appeals (11/6/09) (Because there is no enforceable contract that satisfies the statute of frauds, the trial court did not err in granting appellees' motion for summary judgment.)

Conversion and Civil Theft Claim Under Texas Statute

TEXAS THEFT LIABILITY ACT (relies on criminal code definition of theft) CIVIL STATUTORY CAUSE OF ACTION FOR THEFT (& ATTORNEYS FEES) The theft liability act creates liability for damages resulting from a theft and defines a theft as "unlawfully appropriating property or unlawfully obtaining services" as described in the penal code, and specifically includes section 31.03. Tex. Civ. Prac. & Rem. Code Ann. §§ 134.002-.003 (West 2005); Tex. Penal Code Ann. § 31.03 (West Supp. 2009). Referring to section 31.03, section 31.02 provides:

Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.

Tex. Penal Code Ann. § 31.02 (West 2003). CONVERSION - COMMON-LAW CAUSE OF ACTION Conversion is [...] a cause of action similar to theft or one means by which a person "unlawfully appropriates property with intent to deprive the owner of property." See id. § 31.03. Even though Karbach did not expressly allege a violation of the theft liability act in his original petition, he did allege conversion, and the district court granted summary judgment on that claim. As Karbach's amended petitions merely asserted the same claim in a different form, the district court's judgment was effective against Karbach's later-pleaded theft liability act claim. See Wortham, 179 S.W.3d at 202; Lampasas, 988 S.W.2d at 435-37. SOURCE: 03-06-00636-CV (3rd CoA - Austin) (Nov. 6, 2009)

Fraudulent Inducement Claim Is Similar to Fraud

FRAUDULENT INDUCEMENT (OF CONTRACT, ETC.) Fraudulent inducement is a type of fraud and, like any cause of action for fraud, requires (1) a material misrepresentation, (2) which was false, (3) which was either known to be false when made or was asserted without knowledge of its truth, (4) which was intended to be acted upon, (5) which was relied upon, and (6) which caused injury. See Formosa Plastics, 960 S.W.2d at 47; Texas S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893, 914 (Tex. App.--Houston [1st Dist.] 2007, pet. denied). FRAUDULENT INDUCEMENT AND FRAUD: SHARED ELEMENTS [C]ourts have held that a summary judgment motion--if directed at the element of one cause of action--can be effective against even subsequently pleaded claims if they share that same element. See Wortham v. Dow Chem. Co., 179 S.W.3d 189, 202 (Tex. App.--Houston [14th Dist.] 2005, no pet.); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 435-37 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Consequently, even though Karbach did not specifically use the term "fraudulent inducement" in his original petition, the district court's order granting summary judgment as to each of Karbach's claims, including fraud, was effective against his later-pleaded fraudulent inducement claim. Even considering the tri-party loan agreement as the basis of the fraudulent inducement claim, as we have discussed, our analysis does not change. SOURCE: 03-06-00636-CV (Third Court of Appeals - Austin) (11/6/09)

Trust Fund Act: Civil Liabilty for Misapplication of Construction Trust Funds

STATUTORY CAUSE OF ACTION UNDER THE TEXAS CONSTRUCTION TRUST FUND ACT The Texas Construction Trust Fund Act makes construction funds "trust funds" if the payments are made to a contractor or subcontractor or to an officer, director, or agent of a contractor or subcontractor, under a construction contract for the improvement of specific real property in this state. Tex. Prop. Code Ann. § 162.001 (West Supp. 2009). Beneficiaries of the trust fund include artisans, laborers, mechanics, contractors, subcontractors, or materialmen who furnish labor or material for the construction or repair of an improvement. Id. § 162.003 (West Supp. 2009). CIVIL LIABILITY FOR VIOLATION OF CONSTRUCTION TRUST FUND ACT A party who misapplies trust funds under the Trust Fund Act is subject to civil liability to trust fund beneficiaries whom the Act was designed to protect. Id. § 162.031 (West Supp. 2009); Dealers Elec. Supply Co. v. Scoggins Constr. Co., 52 Tex. Sup. Ct. J. 1088, 2009 Tex. LEXIS 475, at *16-17 (Tex. July 3, 2009). SOURCE: 03-06-00636-CV (Austin Court of Appeals (11/6/09)

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Elements of Suit on (Sworn) Account (Tex. R. Civ. P. 185)

ELEMENTS OF SUIT ON ACCOUNT IN TEXAS The elements of a cause of action on a sworn account are (1) a sale and delivery of the goods; (2) that the amount of the account is just, that is, that the prices are charged in accordance with an agreement or, in the absence of an agreement, they are the usual customary and reasonable prices for those goods; and (3) that the amount is unpaid. See Site Work Group, Inc., 171 S.W.3d at 513–14; PennWell Corp., 123 S.W.3d at 766. ELEMENTS IN SUIT ON ACCOUNT CAN BE PROVEN IN SUMMARY JUDGMENT WHEN DEFENDANT FILES A SWORN DENIAL AND THUS CONTROVERTS PLAINTIFF'S PRIMA-FACIE CASE “A defendant’s verified denial of the correctness of a plaintiff’s sworn account, in the form required by Rule 185, destroys the evidentiary effect of the itemized account and forces the plaintiff to put on proof of its claim.” Site Work Group, Inc. v. Chem. Lime Ltd., 171 S.W.3d 512, 513 (Tex. App.—Waco 2005, no pet.) (citing Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979)). However, even when a defendant verifies its sworn denial to a suit on a sworn account, a plaintiff may properly obtain a summary judgment on its sworn account claim by filing “legal and competent summary judgment evidence establishing the validity of its claim as a matter of law.” PennWell Corp. v. Ken Assocs., Inc., 123 S.W.3d 756, 765 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (citing United Bus. Machs. v. Entm’t Mktg., Inc., 792 S.W.2d 262, 264 (Tex. App.—Houston [1st Dist.] 1990, no writ)). SOURCE: 01-08-00890-CV (Houston Court of Appeals - 1st District) (11/5/09)

Tortious Interference with Prospective Business

PROVING TORTIOUS INTERFERENCE To establish tortious interference with a prospective business relationship, a plaintiff must prove (i) a reasonable probability that the plaintiff would have entered into a business relationship; (ii) an independently tortious or unlawful act by the defendant that prevented the relationship from occurring; (iii) the defendant did such act with a conscious desire to prevent the relationship from occurring or the defendant knew the interference was certain or substantially certain to occur as a result of the conduct; and (iv) the plaintiff suffered actual harm or damages as a result of the defendant's interference. See Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001); Baty v. Protech Ins. Agency, 63 S.W.3d 841, 860 (Tex. App.--Houston [14th Dist.] 2001, pet. denied). Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001); Bradford v. Vento, 48 S.W.3d 749, 757-58 (Tex. 2001); Richardson-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 475 (Tex. App.--Houston [1st Dist.] 2006, pet. denied); Bright v. Addison, 171 S.W.3d 588, 598 (Tex. App.--Dallas 2005, pet. denied); Baty v. Protech Ins. Agency, 63 S.W.3d 841, 860 (Tex. App.--Houston [14th Dist.] 2001, pet. denied). SOURCE: 03-09-00114-CV (Austin Court of Appeals) (11/06/09)

CONVERSION of personal property TORT in Texas

CONVERSION DEFINED

"The unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner's rights, is in law a conversion." Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971).

HOW TO PROVE CONVERSION OF PERSONAL PROPERTY

To establish a claim for conversion of personal property, a plaintiff must prove that: (1) the plaintiff owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. See Smith v. Maximum Racing, Inc., 136 S.W.3d 337, 341 (Tex. App.--Austin 2004, no pet.).

SOURCE: 03-09-00114-CV (Austin Court of Appeals) (11/6/09)

CONTRACT FORMATION: Meeting of the Minds on Essential Terms of Contract

ELEMENTS OF CONTRACT UNDER TEXAS LAW The elements of a valid contract are (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). The elements of written and oral contracts are the same and must be present for a contract to be binding. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555 (Tex. App.—Houston [14th Dist.] 2002, no pet.). For an agreement to be enforceable, there must be a meeting of the minds with respect to its subject matter and essential terms. Id. at 556. The determination of a meeting of the minds, and thus offer and acceptance, is based on the objective standard of what the parties said and did. Id. The execution of a contract includes the performance of all acts necessary to render it complete as an instrument. Verson Allsteel Press Co. v. Carrier Corp., 718 S.W.2d 300, 303 (Tex. App.—Tyler 1985, writ ref’d n.r.e.) (per curiam). The question of whether a contract contains all the essential terms for it to be enforceable is a question of law. Beal Banks, S.S.B. v. Schleider, 124 S.W.3d 640, 654 n.8 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). 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) (“Each contract should be considered separately to determine its material terms.”). SOURCE: 01-09-00030-CV (First Court of Appeals) (11/5/09)

Elements 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.” John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 20 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). SOURCE: 01-09-00030-CV Stewart & Stevenson, L.L.C. v. Galveston Party Boats, Inc. (Tex.App.- Houston [1st Dist.] Nov. 5,2009)

NEGLIGENCE: Negligent Creation of Dangerous Situation

Is there a legal duty to control the actions of others to prevent harm? - It depends. NEGLIGENCE WITH RESPECT TO ACTS OF THIRD-PARTIES

A cause of action for negligence arises when an actor breaches a legal duty and the breach proximately causes damages. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 246 (Tex. 2008). Texas law generally imposes no duty to control the acts of another person to prevent harm to third parties absent certain special relationships or circumstances. Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 331 (Tex. 2008); Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); see also Restatement (Second) of Torts § 315 (1965).

Examples of relationships that have been recognized as giving rise to a duty to control include employer/employee, parent/child, and independent contractor/contractee. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). A party who agrees to attempt to help someone else has a duty to provide that help without negligently harming the person in need. Torrington, 46 S.W.3d at 837-38; see also Restatement (Second) of Torts § 323. ⁽²⁾

A party who negligently creates a dangerous situation has a duty to attempt to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995) (citing Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942)). However, a mere bystander who did not create a dangerous situation generally is not required to intervene and prevent injury to others. See id.; see also Restatement (Second) of Torts § 314 ("The fact that [an] actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.").

Whether a legal duty exists is a question of law for the court. Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008). In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Phillips, 801 S.W.2d at 525.

Courts have also considered whether one party has superior knowledge of the risk, and whether a right to control the actor whose conduct precipitated the harm exists. Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993). Appellants do not cite any authority establishing a legal duty by individuals to control the actions of a companion who is under the influence of drugs or similar behavior-altering substances. ⁽³⁾ Therefore, to hold that there is a duty in this case, we must interpret an existing duty to include the behavior described in the plaintiffs' pleadings or recognize a new duty under Texas law.

SOURCE: 03-07-00251-CV (Austin Court of Appeals)(11/4/09)

Statute of Frauds: Conveyance of Mineral Interest

CONTRACT FOR SALE OF LAND OR INTEREST IN LAND MUST BE IN WRITING [C]ontracts for the sale of real estate are required to be written and signed by the party to be charged. Tex. Bus. & Com. Code Ann. §26.01(b)(4) (Vernon 2009). And, an agreement to convey a working interest in a mineral lease is such a contract. Exxon Corp. v. Breezevale, Ltd., 82 S.W.3d 429, 437 (Tex. App. –Dallas 2002, pet. denied); see also Long Trusts v. Griffin, 222 S.W.3d 412, 416 (Tex. 2006) (stating that a contract for the transfer or assignment of an interest in an oil and gas lease is a real property interest subject to the statute of frauds). So, any alleged oral agreement by Sofamco to convey the working interest Beverly demanded would be unenforceable. STATUTE OF FRAUDS MUST BE PLEADED BY DEFENDANT [T]he Statute of Frauds [is] an affirmative defense. See La Cour v. Lankford Co., Inc., 287 S.W.3d 105, 110 (Tex. App.–Corpus Christi 2009, pet. denied) (holding that a defendant who seeks to prove an affirmative defense via a motion for summary judgment has the burden to prove the elements of the defense). SOURCE: 07-08-0387-CV (Amarillo Court of Appeals) (10/30/09)

Declaratory Judgment under the Texas UDJA (DJA)

DECLARATORY RELIEF UNDER THE DECLARATORY JUDGMENTS ACT (DJA)

The Declaratory Judgments Act is a procedural device for deciding cases that are within the trial court's jurisdiction. State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994). The stated purpose of the Act is "to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Tex.Civ.Prac.&Rem.Code Ann. § 37.002(b)(Vernon 2008); Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995).

UNDER WHAT CIRCUMSTANCES IS DECLARATORY RELIEF WARRANTED?

A declaratory judgment is appropriate only where there is a justiciable controversy about the rights and status of the parties and the declaration will resolve the controversy. Bonham State Bank, 907 S.W.2d at 467.

To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute. Id. The Act does not empower courts to issue advisory opinions. Brooks v. Northglen Association, 141 S.W.3d 158, 164 (Tex. 2004).

ATTORNEY'S FEES AVAILABLE TO WINNER OR LOSER IN DECLARATORY JUDGMENT ACTIONS

In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just.

Tex.Civ.Prac.&Rem.Code Ann. § 37.009.

In a declaratory judgment action, the decision to grant or deny attorney's fees is solely within the discretion of the trial court. Neeley v. West Orange-Cove Consolidated Independent School District, 176 S.W.3d 746, 799 (Tex. 2005).

Under Section 37.009, a trial court may exercise its discretion to award attorney's fees to either the prevailing or the nonprevailing party. See Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 637-38 (Tex. 1996). The requirements that fees be reasonable and necessary are matters of fact, while the requirements that fees be equitable and just are matters of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).

SOURCE: 08-07-00074-CV (El Paso Court of Appeals) (10/28/09)

Accord and Satisfaction as Affirmative Defense to Debt Claim

WHAT IS "ACCORD AND SATISFACTION" AS A LEGAL CONCEPT? The affirmative defense of accord and satisfaction is a type of contractual modification that rests upon a new contract, express or implied, in which the parties agree to the discharge of the existing obligation by means of a lesser payment tendered and accepted. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969). A modification of a contract must satisfy the elements of a contract: a meeting of the minds supported by consideration. Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 228 (Tex. 1986). Whether a contract is modified depends on the parties' intentions and is a question of fact. Id. at 228-29. ACCORD AND SATISFACTION REQUIRES AGREEMENT ON MODIFICATION OF ORIGINAL CONTRACT AND CONSIDERATION The burden of proving modification rests on the party asserting the modification. Id. at 229. Because a valid accord and satisfaction depends upon an agreement, it "only occurs when the parties mutually assent to it," and their intention is a controlling element. McCarty v. Humphrey, 261 S.W. 1015, 1016 (Tex. Comm'n App. 1924, judgm't adopted). The trial court found that there was no mutual assent or “meeting of the minds” necessary for an accord and satisfaction. We defer to the trial court’s findings of fact that there was not sufficient intent that a new agreement was formed. We find that the trial court did not err in its finding of no accord and satisfaction as a matter of law and that this finding is not against the great weight of the evidence. SOURCE: 10-07-00362-CV (Tenth Court of Appeals-Waco) (10/28/2009)

Clean vs Unclean Hands Doctrine

UNCLEAN HANDS MAY PRECLUDE EQUITABLE RELIEF One who seeks equity must do equity and must come to court with clean hands. See Dunnagan v. Watson, 204 S.W.3d 30, 41 (Tex. App.—Fort Worth 2006, pet. denied); Flores v. Flores, 116 S.W.3d 870, 876 (Tex. App.—Corpus Christi 2003, no pet.). Whether equitable relief should be denied based on unclean hands is left to the discretion of the trial court. Dunnagan, 204 S.W.3d at 41; Flores, 116 S.W.3d at 876. Mustang argues that Sinclair has unclean hands because he purportedly owned the Carter liens through prior dealings with Carter and that he also solicited perjured testimony regarding whether he was ready, willing, and able to perform under the contract. WHEN IS INVOCATION & APPLICATION OF THE UNCLEAN HANDS DOCTRINE PROPER? The clean hands doctrine should not be applied unless the party asserting the doctrine has been seriously harmed and the wrong complained of cannot be corrected without the application of the doctrine. Dunnagan, 204 S.W.3d at 41. Even if we agreed that Sinclair had unclean hands, Mustang has made no claim or argument to this Court regarding any serious harm due to the misconduct, if any, of Sinclair. Therefore, Mustang’s claim of unclean hands must fail. SOURCE: 10-07-00362-CV (Waco Court of Appeals) (10/28/09)

Tortious (not tortuous) Interference with Business Relations (prospective)

BIZ TORTS: Tortious Interference with Business Relations (in the future - as opposed to interfering with existing contract) The elements of tortious interference with prospective business relations are: (1) a reasonable probability that the plaintiff would have entered into a contractual relationship; (2) an independently tortious or unlawful act by the defendant that prevented the relationship from occurring; (3) the defendant did the act with a conscious desire to prevent the relationship from occurring or with knowledge that the interference was certain or substantially certain to occur as a result of his conduct; and (4) the plaintiff suffered actual harm or damage as a result of the interference. See Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 414-15 (Tex. App.—Waco 2001, pet. denied). See also Finlan v. Dallas Indep. Sch. Dist., 90 S.W.3d 395, 412 (Tex. App.—Eastland 2002, pet. denied). LOST PROFIT DAMAGES - HOW TO PROVE THEM "Lost profits are damages for the loss of net income to a business measured by reasonable certainty." Miga v. Jensen, 96 S.W.3d 207, 213 (Tex. 2002). See also Bossier Chrysler Dodge II, Inc. v. Rauschenberg, 201 S.W.3d 787, 808 (Tex. App.—Waco 2006) rev'd in part, 238 S.W.3d 376 (Tex. 2007) (per curiam). "Net profits" is defined as "what remains in the conduct of a business after deducting from its total receipts all of the expenses incurred in carrying on the business." Turner v. PV Int'l Corp., 765 S.W.2d 455, 465 (Tex. App.—Dallas 1988, writ denied) (citing R. A. Corbett Transp., Inc. v. Oden, 678 S.W.2d 172, 176 (Tex. App.—Tyler 1984, no writ). WHAT DEGREE OF PRECISION IS REQUIRED TO ESTABLISH LOSS OF PROFITS? "Exact calculations" are not required to recover for lost profits. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 504 (Tex. 2001). "At a minimum [however], opinions or lost-profit estimates must be based on objective facts, figures, or data from which the lost-profits amount may be ascertained." Id. SOURCE: 10-07-00362-CV (Tenth Court of Appeals in Waco, TX) (Oct 28, 2009)

SPECIFIC PERFORMANCE REMEDY (breach of contract)

WHEN IS A PLAINTIFF ENTITLED TO SPECIFIC PERFORMANCE AS A REMEDY? The equitable remedy of specific performance may be awarded upon a showing of a breach of contract. Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530, 535 (Tex. App.—Dallas 2007, pet. denied). ELEMENTS REQUIRED FOR AWARD OF SPECIFIC PERFORMANCE However, a party seeking specific performance must plead and prove (1) compliance with the contract including tender of performance unless excused by the opposing party's breach or repudiation and (2) the readiness, willingness, and ability to perform at relevant times. DiGiuseppe v. Lawler, 269 S.W.3d 588, 593-94, 601 (Tex. 2008); see also 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 258 (Tex. App.—Dallas 2002, pet. denied). It is required that both elements be proved prior to an award of specific performance unless the requirement of tender is excused. DiGiuseppe, 269 S.W.3d at 599. SPECIFIC PERFORMANCE IN CONTEXT OF SALE OF REAL ESTATE "Generally speaking, it is a prerequisite to the equitable remedy of specific performance that the buyer of land shall have made an actual tender of the purchase price . . . [unless] actual tender would have been a useless act . . . ." DiGiuseppe, 269 S.W.3d at 594 (citing Wilson v. Klein, 715 S.W.2d 814, 822 (Tex. App.—Austin 1986, writ ref'd n.r.e.). See also McMillan v. Smith, 363 S.W.2d 437, 442-43 (Tex. 1962). The exception to the general rule that actual tender of performance is a prerequisite to obtaining specific performance is grounded in the notion that actual pre-suit tender of performance should be excused when it would be a "useless act, an idle ceremony, or wholly nugatory." DiGiuseppe, 269 S.W.3d at 594; Wilson, 715 S. W.2d at 822. The issue of whether a party to a contract is "ready, willing, and able" to perform presents a question of fact, not a question of law. See DiGiuseppe, 269 S.W.3d at 596. See also Holt v. Elliott Indus., Inc., 711 S.W.2d 435, 437 (Tex. App.—Fort Worth 1986, no writ). Additionally, whether a plaintiff would have performed his contractual obligations when they came due but for the defendant’s breach or repudiation of the contract is also a question of fact. DiGiuseppe, 269 S.W.3d at 600. SOURCE: 10-07-00362-CV (Waco Court of Appeals) (10/28/09)

Elements of Negligence Claim in Texas

WHAT DOES IT TAKE TO PROVE NEGLIGENCE? To prevail on its negligence claim, [Plaintiff] had to prove the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Thus, among the other elements of its negligence cause of action, [Plaintiff] had to show it was injured by [Defendant's] actions. See generally A.B.F. Freight Sys., Inc. v. Austrian Import Serv., Inc., 798 S.W.2d 606, 615 (Tex. App.-Dallas 1990, writ denied) (recognizing that establishing the fact of damage is a prerequisite to establishing the amount of damages to be awarded). SOURCE: 09-08-00083-CV (Beaumont Court of Appeals)(10/29/09)

ATTORNEY'S FEES: The American Rule (and its exceptions)

The American Rule with Regard to Fees: Loser Pays? - No, but there are plenty of exceptions It has long been the rule in Texas that attorney’s fees paid to prosecute or defend a lawsuit cannot be recovered in that suit absent a statute or contract that allows for their recovery. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006) (“Absent a contract or statute, trial courts do not have inherent authority to require a losing party to pay the prevailing party’s fees.”); Wm. Cameron & Co. v. Am. Sur. Co. of N.Y., 55 S.W.2d 1032, 1035 (Tex. Comm’n App. 1932, judgm’t adopted) (“It is settled law in this state that, unless provided for by statute or by contract between the parties, attorneys’ fees incurred by a party to litigation are not recoverable against his adversary either in an action in tort or a suit upon a contract.”); Sherrick v. Wyland, 37 S.W. 345, 345 (Tex. Civ. App. 1896) (“It has often been ruled, in this state and elsewhere, that fees of counsel, incurred in prosecuting a suit for or defending against a wrong, are not ordinarily recoverable as actual damages, because they are not considered proximate results of such wrong.”). The rule is known as the American Rule. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 602 (2001) (“[P]arties are ordinarily required to bear their own attorney’s fees—the prevailing party is not entitled to collect from the loser.”); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967). SOURCE: Akin, Gump, Strauss, Hauer & Feld, LLP vs. National Development and Research Corp. No. 07-0818 (Tex. Oct. 30, 2009) (Opinion by Phil Johnson) (legal malpractice, attorney's caused by malpractice recoverable as damages despite the American Rule)

When is a broken promise actionable as fraud, rather than merely as a breach of contractual obligation?

TEXAS SUPREME COURT FINDS OCCASION TO RESTATE FRAUD ELEMENTS: The elements of fraud are: (1) that a material representation 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) (citing Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998)). BROKEN PROMISES: BREACH OF CONTRACT VS. FRAUD "A promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time it was made.” Formosa Plastics, 960 S.W.2d at 48. “Proving that a party had no intention of performing at the time a contract was made is not easy, as intent to defraud is not usually susceptible to direct proof.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 305 (Tex. 2006) (citing Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986)). While breach of the contract alone is not evidence that a party did not intend to perform, “breach combined with ‘slight circumstantial evidence’ of fraud” is some evidence of fraudulent intent, enough to support a verdict. Id. “[A] party’s intent is determined at the time the party made the representation, [but] it may be inferred from the party’s subsequent acts after the representation is made.” Spoljaric, 708 S.W.2d at 434 (citing Chicago, T. & M.C. Ry. Co. v. Titterington, 19 S.W. 472, 474 (1892)). SOURCE: Aquaplex, Inc v. Rancho Law Valencia, Inc., No. 08-0280 (Tex. Oct 30, 2009) (per curiam) (fraud damages, proving amount of damages, remittiture by court of appeals or new trial)

Construction of Insurance Policy Is Analogous to Contract Interpretation

INTERPRETING INSURANCE POLICY IS A FORM OF CONTRACT CONSTRUCTION The interpretation of an insurance contract is generally subject to the same rules of construction as other contracts. Nat’l Union Fire Ins. Co. of Pittsburg, PA v. Crocker, 246 S.W.3d 603, 606 (Tex. 2008). Contract language that can be given a certain or definite meaning is not ambiguous and is construed as a matter of law. DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). The primary objective is to determine the parties’ intent as reflected in the policy’s terms, Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex. 2008), and our review of an unambiguous contract, like any other legal question, is de novo. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). SOURCE: Chrysler Ins. Co., v. Greenspoint Dodge of Houston, Inc., No. 08-0780 (Tex. Oct. 30, 2009)(per curiam)

The Defense of Substantial Truth to a Defamation Claim

DEFAMATION / LIBEL / SLANDER

AND (SUBSTANTIAL) TRUTH DEFENSE UNDER TEXAS LAW

To maintain a cause of action for defamation, a plaintiff must establish that the defendant (1) published a statement about the plaintiff; (2) that was defamatory; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. WFAA-TV v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Henriquez v. Cemex Management, Inc., 177 S.W.3d 241, 251 (Tex. App.--Houston [1st Dist.] 2005, pet. denied); Grotti v. Belo Corp., 188 S.W.3d 768, 774 (Tex. App.--Fort Worth 2006, pet. denied). "

ESTABLISHING TRUTH AND SUBSTANTIAL TRUTH TO DEFEAT DEFAMATION CLAIM

The truth of the statement in the publication on which an action for libel is based is a defense to the action." Tex. Civ. Prac. & Rem. Code Ann. § 73.005 (Vernon 2005).

A defendant may also defeat a libel claim by establishing the substantial truth of the statement. Grotti, 188 S.W.3d at 774 (citing McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990)).

SUBSTANTIAL TRUTH ANALYSIS LOOK FOR "GIST" OF THE COMPLAINED-OF STATEMENT

To determine if a publication is substantially true, "we consider whether the alleged defamatory statement was more damaging to the plaintiff's reputation, in the mind of the average person, than a truthful statement would have been," and "[w]e look at the 'gist' of the publication "to determine whether it is substantially true." Id. (citations omitted).

The defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient. Gustafson v. City of Austin, 110 S.W.3d 652, 656 (Tex. App.--Austin 2003, pet. denied); Howell v. Hecht, 821 S.W.2d 627, 631-32 (Tex. App.--Dallas 1991, writ denied).

SOURCE: 01-08-00856-CV (First Court of Appeals-Houston)(10/29/09) (ample evidence substantiating the "gist" of the complained-of statements contained in the internet article)(defamation claim barred by the affirmative defense of substantial truth)

Elements of common-law fraud claim in Texas

WHICH ELEMENTS HAVE TO BE PROVEN TO ESTABLISH A COMMON-LAW FRAUD CLAIM UNDER TEXAS LAW? To prevail on a fraud claim, a plaintiff must prove that (1) the defendant made a material representation that was false; (2) the defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied on the representation, which caused injury. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001); Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287 S.W.3d 771, 781 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). SOURCE: 01-07-01004-CV (1st CoA Houston)(10/29/09)

Claim for LIQUIDATED and UNLIQUIDATED Damages in Default Judgment Context

EFFECT OF DEFAULT BY DEFENDANT WHO WAS PROPERLY SERVED A defendant who defaults admits all allegations of facts except unliquidated damages. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Stoner v. Thompson, 578 S.W.2d 679, 684-85 (Tex. 1979). WHEN CAN DEFAULT JUDGMENT BE HAD FOR LIQUIDATED DAMAGES? When a plaintiff's claim is liquidated, and proven by an instrument in writing, the plaintiff may be awarded damages without the necessity of a hearing or the presentation of evidence. Burrows v. Bowden, 564 S.W.2d 474, 475 (Tex. Civ. App.-Corpus Christ 1978, no writ); Tex. R. Civ. P. 241. WHAT MAKES A CLAIM "LIQUIDATED"? A claim is liquidated if the amount of damages caused by the defendant can be accurately calculated from: (1) the factual, as opposed to conclusory, allegations in the petition, and (2) an instrument in writing. Freeman v. Leasing Assocs., Inc., 503 S.W.2d 406, 408 (Tex. Civ. App.-Houston [14th Dist.] 1973, no writ). A default judgment does not establish allegations pertaining to unliquidated damages. First Nat'l Bank of Irving v. Shockley, 663 S.W.2d 685, 689 (Tex. App.-Corpus Christi 1983, no writ). If damages are unliquidated or not proved by an instrument in writing, the court must hear evidence as to damages before a default judgment may be granted. Tex. R. Civ. P. 243. ATTORNEYS FEES ARE UNLIQUIDATED (BUT CAN BE PROVEN UP BY AFFIDAVIT) Attorney's fees are by their very nature unliquidated. The reasonableness of attorney's fees, in the absence of a contract therefore, is a question of fact and is an unliquidated demand for which the trial court entering a default judgment should hear evidence. First Nat'l Bank of Irving, 663 S.W.2d at 691. DEEMED ADMISSIONS MAY BE USED AS SUBSTITUTE FOR OTHER PROOF A trial court may be able to ascertain the amount of damages and attorney's fees in a default judgment based on a request for admissions. Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 813 (Tex. App.-Waco 2007, no pet.). A plaintiff may serve a request for admissions as part of its petition, and when the defendant fails to file an answer or other response, those requests are deemed admitted. Id. at 811-12 (citing Tex. R. Civ. P. 198.2(c)). Deemed admissions may be employed as proof, and once admissions are deemed admitted by operation of law and where the admissions fully support each element of a cause of action, including damages, they will fully support a judgment based thereon. This is because unanswered requests for admissions are deemed admitted without the necessity of a court order and any matter thus admitted is conclusively established as being true. Id. at 812-13 (citing Tex. Rs. Civ. P. 198.2(c), 198.3). Thus, the facts admitted may not be contradicted by evidence at the trial. Id. at 813 (citing Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989)). SOURCE: 05-07-01730-CV (Dallas Court of Appeals)(10/26/2009) (credit card debt suit)

Elements of Breach of Contract (breach of credit card agreement in debt collection suit)

BREACH OF CONTRACT ELEMENTS (UNPAID DEBT ON CREDIT CARD) The elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tender of performance; (3) breach by the defendant; and (4) damages resulting from the breach. Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex. App.-Houston [1st Dist.] 1995, no writ). REASONABLE ATTORNEY'S FEES IN ADDITION TO PROVEN AMOUNT OF DEBT Reasonable attorney's fees may be recovered, in addition to the amount of a valid claim and costs, if the claim is for a written contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008). See id. § 38.002 (providing for recovery procedure). SOURCE: No. 05-07-01730-CV (Tex.App.- Dallas Oct. 26, 2009)

What is a CASH PRICE VIOLATION (under the Texas Finance Code)?

CASH PRICE VIOLATION CLAIM UNDER THE TEX. FIN. CODE IN CONNECTION WITH PURCHASE OF CAR, TRUCK, MOTOR VEHICLE: When is it viable? When Not? A cash price violation occurs when a dealership establishes a cash price for the vehicle, but sells the vehicle for more than the price established. Collins v. Fred Haas Toyota, 21 S.W.3d 606, 607 (Tex. App.-Houston [1st Dist.] 2000, no pet.). The finance code defines cash price as the “price at which the retail seller offers in the ordinary course of business to sell for cash the goods or services that are subject to the transaction.” Tex. Fin. Code Ann. § 348.004(a) (Vernon 2006). The underlying purpose of a cause of action for a cash price violation is to prevent a dealership from charging a finance customer more than a cash customer for the same vehicle. Collins, 21 S.W.3d at 607. In Collins, the plaintiff entered into a financing agreement and purchased a car from the dealership. He later sued complaining of a cash price violation when he learned that on the same day that he purchased the car, the dealership advertised it for less than the price he had paid. Id. at 607. The trial court granted summary judgment for the dealership on the basis that an advertisement cannot establish a cash price unless it is relied upon. Id. The court of appeals reversed. The court held that reliance is not an element of a cash price violation. Id. at at 608. The cash price and the negotiated price agreed upon between the dealership and the buyer are not the same. The finance code provides that the retail installment contract must contain the “cash price of the retail installment transaction.” Tex. Fin. Code Ann. § 348.102(a)(5) (Vernon 2006). It is the negotiated price that the retail installment contract must contain, not the cash price that the dealership offered the vehicle in the ordinary course of business to all customers. As noted by the court in Collins, the cash price of the vehicle was the price the dealership “offered the vehicle in the ordinary course of business to all customers, not the price ultimately agreed on and stated in the contract.” Collins, 21 S.W.3d at 608. The trial court found a violation because the “negative equity that was rolled into this retail installment contract was not put in the proper location.” In his appellee's brief, Kuberski states “Bledsoe's inclusion of financed negative equity in Mr. Kuberski's contracted-for cash price violated the Texas Finance Code and federal disclosure requirements.” However, failure to separately disclose the negative equity is not relevant to a determination of a cash price violation. Moreover, the contracted-for cash price, alone, does not determine a cash price violation under the finance code. See Collins, 21 S.W.3d at 607. What qualifies as a "finance charge"? - Financing of Negative Equity to Pay off Loan on Trade-In Not Included The finance code does not define the term finance charge. The finance code provides that the disclosure requirements of Regulation Z under the Truth in Lending Act apply to retail installment contracts in Texas. See Tex. Fin. Code Ann. § 348.009 (Vernon 2006). Regulation Z defines finance charge as “any charge payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit.” 12 C.F.R. § 226.4 (2003). Negative equity does not fit within this definition. SOURCE: 05-08-00071-CV (Dallas CoA) (1/30/09) (no cash-price violation based on inclusion of financed negative equity for trade-in in loan for new truck) CITE: Bledsoe Dodge, L.L.C. v. Kuberski, 279 S.W.3d 839 (Tex. App.-Dallas 2009, no pet.)

Inherently undiscoverable injury for purposes of the DISCOVERY RULE (SoL Tolling Theories)

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: 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).[1] “ 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)

The DISCOVERY RULE in the context of a FIDUCIARY RELATIONSHIP and FIDUCIARY DUTY

WHEN DOES THE DISCOVERY RULE APPLY? EXISTENCE OF FIDUCIARY RELATIONSHIP AND FIDUCIARY DUTY IS RELEVANT A variation to the inherently undiscoverable element arises when applying the discovery rule to a fiduciary relationship. Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996); see also S.V. v. R.V. , 933 S.W.2d 1, 8 (Tex. 1996). In the fiduciary context, "a person to whom a fiduciary duty is owed is either unable to inquire into the fiduciary's actions or unaware of the need to do so." S V., 933 S.W.2d at 8. When a trustee breaches its duty to a beneficiary, the nature of the injury is considered inherently undiscoverable because of the fiduciary nature of the relationship. See id. However, the person owed a fiduciary relationship still must exercise reasonable diligence "when the fact of misconduct becomes [so] apparent it can no longer be ignored." (1) Id.; see also Computer Assocs. Int'l, 918 S.W.2d at 456; Slay v. Burnett Trust, 187 S.W.2d 377, 394 (Tex. 1945); G. Prop. Mgmt., Ltd. v. Multivest Fin. Servs. of Tex., Inc., 219 S.W.3d 37, 48-49 (Tex. App.--San Antonio 2006, no pet.). Because Jones owed fiduciary responsibilities to Polk Mechanical, the inherently undiscoverable requirement for applying the discovery rule is satisfied. See S V., 933 S.W.2d at 8. Moreover, the injury in this case is objectively verifiable as it can be objectively established through bank records and cancelled checks. See HECI Exploration Co., 982 S.W.2d at 886. Accordingly, we hold the discovery rule applied to Polk Mechanical's claim against Jones, and Jones was required to conclusively negate its application to be entitled to summary judgment. See Pustejovsky, 35 S.W.3d at 646. To conclusively negate the discovery rule, Jones was required to prove as a matter of law that there was no genuine issue of fact about when Polk Mechanical discovered or should have discovered the nature of the injury. See Potter, 137 S.W.3d at 704. Inquiries involving the discovery rule usually entail questions for the trier of fact because when a plaintiff knew or should have known of an injury is generally a fact question. Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998); Cadle Co. v. Wilson, 136 S.W.3d 345, 352 (Tex. App.--Austin 2004, no pet.). However, if reasonable minds could not differ about the conclusion to be drawn from the facts in the record, the start of the limitations period may be determined as a matter of law. Childs, 974 S.W.2d at 44; Cadle Co., 136 S.W.3d at 352; Zacharie v. U.S. Nat. Resources, Inc., 94 S.W.3d 748, 753 (Tex. App.--San Antonio 2002, no pet.). SOURCE: 04-08-00509-CV (4th Court of Appeals) (7/1/09, pet. denied Oct. 16, 2009)

The DISCOVERY RULE in the Context of Limitations (SoL)

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)

No RES JUDICATA where underlying judgment reversed or vacated

THE DEFENSE OF RES JUDICATA Res judicata bars a party from attempting to relitigate a claim or cause of action that a competent tribunal has finally adjudicated. Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999). For res judicata to apply, the following elements must be present: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the same parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008). FIRST ELEMENT OF RES JUDICATA DEFENSE: A PRIOR JUDGMENT ON THE MERITS Because of our holding that the motions for summary judgment in the first suit were erroneously granted, a prior final judgment on the merits does not exist on which Biela's and Alert can base their res judicata argument. Accordingly, the appellees cannot establish the first element of res judicata as a matter of law. The October 14, 2008 order granting summary judgment is therefore reversed, and the cause is remanded to the trial court for further proceedings. SOURCE: Nos. 04-08-00587-CV, 04-08-00857-CV (San Antonio Court of Appeals 6/10/09, pet. denied Oct 16, 2009)

Defamation claim based on job reference by former employer & qualified privilege, immunity defense

ELEMENTS OF DEFAMATION CLAIM To maintain a defamation cause of action, the plaintiff must prove that the defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). To prevail on its motion for summary judgment, a defendant must disprove at least one essential element of the plaintiff's defamation claim or establish all of the elements of an affirmative defense as a matter of law. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Montgomery, 669 S.W.2d at 310-11. Because it is dispositive, the first ground of Rosban's traditional summary judgment motion that we consider is the affirmative defense of immunity from Graham's defamation claim under the labor code. STATUTORY IMMUNITY FROM DEFAMATION LIABILITY FOR JOB REFERENCES "An employer may disclose information about a current or former employee's job performance to a prospective employer of the current or former employee on the request of the prospective employer or the employee." Tex. Lab. Code Ann. § 103.003 (West 2006). "Job performance" is defined as "the manner in which an employee performs a position of employment and includes an analysis of the employee's attendance at work, attitudes, effort, knowledge, behaviors, and skills." Id. § 103.002(3). Employers are immune from civil liability for making disclosures about current or former employees' job performance:

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)").

Effect of Absence of MATERIAL TERM from CONTRACT

OMISSION OF MATERIAL TERM WOULD RENDER CONTRACT UNENFORCEABLE A contract that lacks a material term is not an enforceable contract. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992) (stating that "[i] n order to be legally binding, a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook" and that "[w]here an essential term is open for future negotiation, there is no binding contract"); Sadeghi v. Gang, 270 S.W.3d 773, 776 (Tex. App.-Dallas 2008, no pet.) ("If a contract is not clear and certain as to all essential terms, it will fail for indefiniteness."); Miga v. Jensen, 25 S.W.3d 370, 376 (Tex. App.-Fort Worth 2000), aff'd in part and rev'd in part, 96 S.W.3d 207 (Tex. 2002). Thus, a party may defend a breach of contract action by asserting that the contract on which the claim is based is not enforceable as a matter of law and therefore cannot support a breach of contract action. See T.O. Stanley Boot Co., 847 S.W.2d at 221-22. NATURE OF THE LEGAL ARGUMENT THAT ESSENTIAL TERMS IS MISSING FROM THE CONTRACT SUED ON An assertion that the contract lacked a material term does not establish an independent reason why a plaintiff should not recover and is therefore not an affirmative defense. See Phillips v. Phillips, 820 S.W.2d 785, 791 (Tex. 1991) (stating that affirmative defense does not rebut facts asserted by plaintiff but rather seeks to establish independent reason why plaintiff should not recover). QUESTION OF LAW NOT FOR THE JURY TO DECIDE [T]he question of whether the contract contained all essential terms for it to be enforceable is a question of law. Beal Bank, S.S.B., 124 S.W.3d at 654 n.8; Am.'s Favorite Chicken Co., 929 S.W.2d at 622. [T]he jury's answer to the question is therefore not determinative. Alcorn v. Brown, 536 S.W.2d 80, 82 (Tex. Civ. App- Fort Worth 1976, writ ref'd n.r.e.); see also Se. Pipe Line Co., Inc. v. Tichacek, 997 S.W.2d 166, 172 (Tex. 1999) (noting that a jury's answer to a question may be disregarded if question calls for a finding on a question of law). Alcorn, 536 S.W.2d at 82 (stating that trial court may disregard jury's answer to erroneously submitted question of law). SOURCE: 02-07-00355-CV (Fort Worth CoA) (5/28/09, pet. denied 10/16/09) (finding that the contract for sale/purchase of interest in house boat at issue contained all the material terms necessary for it to be enforceable).

What are the essential, material TERMS of a CONTRACT

WHICH ELEMENTS ARE ESSENTIAL TO ENFORCEABILITY OF A CONTRACT? - IT DEPENDS ON THE NATURE (OBJECT) OF THE CONTRACT 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., 847 S.W.2d at 221 (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)

AGREEMENT and CONTRACT Distinguished

IS THERE A DIFFERENCE BETWEEN A CONTRACT AND AN AGREEMENT? TEXAS COURT OF APPEALS SAYS "Yes" Although sometimes used interchangeably, the terms "agreement" and "contract" are not synonymous. "Agreement" refers to "a manifestation of mutual assent on the part of two or more persons," whereas the term "contract" refers to "a promise or a set of promises for the breach of which the law gives a remedy." Restatement (Second) of Contracts '' 1, 3 (1981) (emphasis added); Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex. App.- Texarkana 1989, no writ) (noting that the term "agreement" is more broad than the term "contract" and that parties might have an agreement but not a contract). SOURCE: 02-07-00355-CV (Fort Worth Court of Appeals) (5/28/2009, pet. denied 10/16/09)