Saturday, November 14, 2009
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)
Tuesday, November 10, 2009
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).
Monday, November 9, 2009
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)
Sunday, November 8, 2009
Friday, November 6, 2009
"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)
Wednesday, November 4, 2009
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)
Monday, November 2, 2009
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)