Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Friday, March 26, 2010

Property Division in Divorce Decree & Res Judicata


Res judicata is an affirmative defense. Tex. R. Civ. P. 94. The party claiming the defense must prove: (1) the claims asserted in this case arise out of the same subject matter of the previous suit, (2) the claims asserted in this suit were litigated or could have been litigated through the exercise of due diligence in the previous suit, (3) there is a final judgment in the prior lawsuit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). We take the transactional approach to res judicata. Id. Under that approach, the subject matter of a suit is based on the factual matter that make up the gist of the complaint. Id. at 630. Any claim that arises out of those facts should be litigated in the same lawsuit. Id. Res judicata applies to the property division in a final divorce decree, just as it does to any other final judgment, barring subsequent collateral attack even if the divorce decree improperly divided the property. Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990). 

SOURCE: De Acetis v. Whitley (Tex.App.- Houston [14th.] Mar. 25, 2010) (real estate dispute stemming from divorce, enforcement of property division by contempt, res judicata based on divorce proceeding) 

Tuesday, March 23, 2010

One-satisfaction rule

The one-satisfaction rule prohibits a plaintiff from recovering twice for a single injury. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000); Vanasek v. Underkofler, 50 S.W.3d 1, 10 (Tex. App.-Dallas 1999), rev'd on other grounds, 53 S.W.3d 343 (Tex. 2001). The rule applies when several defendants commit the same act, as well as when defendants commit technically differing acts that result in a single injury. Casteel, 22 S.W.3d at 390; Vanasek, 50 S.W.3d at 10. The fact that more than one defendant may have caused the injury or that there may be more than one theory of liability does not modify this rule. Sterling, 822 S.W.2d at 8; see Galle, Inc. v. Pool, 262 S.W.3d 564, 573-74 (Tex. App.-Austin 2008, pet. denied). Whether the rule applies is determined not by the cause of action, but by the injury. See Sterling, 822 S.W.2d at 7-8. SOURCE: 05-08-00916-CV (Dallas Court of Dallas) (3/10/10)

Express contract precludes quantum meruit, unjust enrichment claim


[R]ecovery under the theory of quantum meruit is prohibited if an express contract covers the services or materials for which the claimant seeks recovery. Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 402-03 (Tex. App.-Dallas 2006, no pet. ).

Here, the jury
found the parties had an agreement that covered the services and materials in this case. In its responsive brief, Builders Carpet asserts that Truly v. Austin, 744 S.W.2d 934, 937 (Tex. 1988), provides for an exception that allows “a breaching plaintiff to recover in quantum meruit” in building or construction contracts. Here, however, the jury found Builders Carpet did not breach the contract; consequently, the exception does not apply. Because Builders Carpet cannot recover under a quantum meruit theory as a matter of law, the jury's answers to those questions were immaterial and should have been disregarded. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994) (“A question is immaterial when it should not have been submitted, or when it was properly submitted but has been rendered immaterial by other findings.”); Basic Cap. Mgmt. v. Dynex Comm'l, Inc., 254 S.W.3d 508, 513 (Tex. App.-Dallas 2008, pet. granted ) (same).

Generally speaking, when a valid, express contract covers the subject matter of the parties' dispute, there can be no recovery under a quasi-contract theory, such as unjust enrichment. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); DeClaire v. G & B Mcintosh Family Ltd. P'ship, 260 S.W.3d 34, 49 (Tex. App.-Houston [1st Dist.] 2008, no pet.). This is because parties should be bound by their express agreements, and when a valid agreement already addresses the matter, recovery under an equitable theory is generally inconsistent with the express terms of the agreement. Conoco, 52 S.W.3d at 684; see also Edwards v. Mid- Continent Office Distribs., L.P., 252 S.W.3d 833, 837 (Tex. App.-Dallas 2008, pet. denied) (“The doctrine of unjust enrichment applies the principles of restitution to disputes that are not governed by a contract between the parties.”).

The Texas Supreme Court, however, has recognized an exception to this rule when overpayment was made under a valid contract. Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 469-70 (Tex. 1998).

SOURCE: 05-08-01149-CV (Dallas Court of Appeals) (3/16/10)

When attorney's fees are not available under the UDJA (Texas Declaratory Judgments Act)

No Statutory Attorney's Fees under the Declaratory Judgments Act (DJA) in the absence of proper declaratory judgment claim independent of other cause of action 
A party cannot use the Uniform Declaratory Judgments Act to obtain an otherwise impermissible attorney's fee. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). It is an abuse of discretion to award attorney's fees under the Uniform Declaratory Judgments Act when the statute is relied upon solely as a vehicle to recover attorney's fees. Tex. State Bd. of Plumbing Exam'rs v. Assoc. Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d 750, 753 (Tex. App.-Austin 2000, pet. dism'd); see also City of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 392 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (party may not use declaratory judgment action to seek same relief afforded under another of its causes of action to obtain otherwise impermissible attorney's fees). In a declaratory judgment action, a “court may award costs and reasonable and necessary attorney's fees as are equitable and just.” Id. at § 37.009.

SOURCE: 05-08-01715-CV (Dallas Court of Appeals) (3/18/10)

What is res ipsa loquitur in the med-mal context?

RES IPSA LOQUITUR (the thing speaks for itself) The rule of res ipsa loquitur allows an inference of negligence, absent direct proof, only when injury would ordinarily not have occurred but for negligence, and the defendant's negligence is probable. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 604 (Tex. 2004). The application of the doctrine of res ipsa loquitur is specifically limited in health care liability claims to "those cases to which it has been applied by the appellate courts of this state as of August 29, 1977." Tex. Civ. Prac. & Rem. Code Ann. § 74.201 (Vernon 2005). The three categories where appellate courts have typically applied the doctrine in medical malpractice cases are (1) negligence in the use of mechanical instruments, (2) operating on the wrong portion of the body, and (3) leaving surgical instruments or sponges within the body. Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex.1990). SOURCE: 05-08-01392-CV (Dallas Court of Appeals 3/22/2010) In her third issue, [Plaintiff] claims that the doctrine of res ipsa loquitur applies alleviating the need for an expert report.

A plaintiff who files a health care liability claim must file an expert report within 120 days of filing suit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009). The only way to extend the 120-day deadline for filing the report is by written agreement of the parties. Id. Section 74.001(a)(13) defines a health care liability claim as a "cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract." Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon 2005). An expert report must provide the expert's opinion as to the applicable standard of care and how the care provided failed to meet the standard of care and explain the relationship between that failure and the claimed injury. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) . If a claimant fails to timely file an expert report, the trial court shall dismiss the claim with respect to the physician or health care provider with prejudice to the refiling of the claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).

A health care liability claim cannot be recast as another cause of action in an attempt to avoid the expert report requirement. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). We look to the underlying nature of a claim to determine whether it constitutes a health care liability claim. Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex. App.-Dallas 2005, no pet.). If an act or omission complained of is an inseparable part of the rendition of health care services, the claim is a health care liability claim. Id. Whether a claim is a health care liability claim under section 74.351 is a question of law and is reviewed de novo. Id.

In her amended petition, [Plaintiff] asserted claims for medical malpractice, fraudulent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, violations of the Texas Health and Safety Code, assault and battery, and civil rights violations. The focal point of each of her claims is her treatment while hospitalized at Green Oaks. She complains of Dr. Carson's decision to administer Haldol against her wishes, the manner in which her concerns over the medication were or were not conveyed to Dr. Carson, the threat of physical violence if she refused the medication, the lack of obtaining prior consent, the delay in her treatment for severe side effects suffered as a result of the Haldol, and her inability to obtain something to write with to work on her religious exercises. The essence of each of [Plainitiff's] claims is negligence in the rendition of health care services. The fact that some of the alleged acts were done knowingly or indifferently does not change the nature of the claim. See Lee v. Boothe, 235 S.W.3d 448, 452 (Tex. App.-Dallas 2007, pet. denied).

[Plaintiff] also contends and we agree that a patient receiving either voluntary or involuntary mental health services has the right to refuse medication. However, administration of a psychoactive medication may be given without consent in certain circumstances. See Tex. Health & Safety Code Ann. § 576.025(a)(1) (Vernon Supp. 2009). She relies upon Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) to support her contention that medication given without consent constitutes a battery. The supreme court held, however, that failure to obtain consent does not automatically result in liability. Id. at 838. Expert testimony is still necessary to determine whether there were reasons for providing medical care without consent that do not breach any applicable standard of care. Id. Thus, [Plainitiff's] battery claim still necessitates an expert report.

We conclude that each of [Plainitiff's] claims constitutes a health care liability claim. SOURCE: 05-08-01392-CV (Dallas Court of Appeals 3/22/2010)