Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

Need a little legal ammo? Search for caselaw on legal theories and defenses here:

Thursday, November 3, 2011

Sovereign immunity bars lawsuits against government except in case of consent (immunity waiver)


Under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent. City of Houston v. Williams, No. 09-0770, 2011 WL 923980, at *3 (Tex. Mar. 18, 2011) (citing Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006)).
Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the state, including counties, cities, and school districts. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)); Learners Online, Inc. v. Dallas Indep. Sch. Dist., 333 S.W.3d 636, 641-42 (Tex. App.-Dallas 2009, no pet.).

Like sovereign immunity, governmental immunity has two components: immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether. Tooke, 197 S.W.3d at 332. Governmental immunity from suit deprives a trial court of subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. See Miranda, 133 S.W.3d at 225-26.
“[E]ven if the State acknowledges liability on a claim, immunity from suit bars a remedy until the Legislature consents to suit.” Learners Online, 333 S.W.3d at 642 (quoting Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006)). The plaintiff bears the burden of pleading facts affirmatively demonstrating waiver of immunity from suit. See, e.g., City of Irving v. Seppy, 301 S.W.3d 435, 443 (Tex. App.-Dallas 2009, no pet.). 

SOURCE: DALLAS COURT OF APPEALS – 05-11-00480-CV – 11/3/11

WBA: Good-faith report to what whistleblower believed to be appropriate law-enforcement agency or regulator

The Texas Whistleblower Act is contained in chapter 554 of the Texas Government Code. See Tex. Gov't Code Ann. §§ 554.001-.010. Section 554.002 of the Whistleblower Act provides
(a) A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. 
(b) In this section, a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:
(1) regulate under or enforce the law alleged to be violated in the report; or         

(2) investigate or prosecute a violation of criminal law. 

Id. § 554.002.

Pursuant to section 554.0035 of the act, “[s]overeign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.” Id. § 554.0035.        
Under section 554.002, a conclusion that a governmental entity to whom a report is made is not authorized to regulate under, enforce, investigate, or prosecute the law at issue is not determinative as to whether a whistleblower action can be maintained. Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002).
A party may obtain Whistleblower Act protection if he in good faith believed such governmental entity was an appropriate law enforcement authority as the statute defines the term. Id. In the context of section 554.002(b), “good faith” means (1) the employee believed the governmental entity was authorized to regulate under or enforce the law alleged to be violated in the report, or investigate or prosecute a violation of criminal law; and (2) the employee's belief was reasonable in light of the employee's training and experience. Id. at 321.
SOURCE: DALLAS COURT OF APPEALS - 05-11-00480-CV  - 11/3/11 

Wednesday, November 2, 2011

Attorney's fees in a contract dispute: Who can recover fees under CPRC Chapter 38?

Attorney's fees not available for successful defense of breach-of-contract claim under Chaper 38 of the Civil Practice and Remedies Code or in case where the Plaintiff does not recover damages. Prevailing defendant may recover fees if the contract authorizes fees to the prevailing party regardless of whether that party is the plaintiff or the defendant.


Chapter 38 of the Texas Civil Practice and Remedies Code allows recovery of attorneys’ fees in breach of contract cases in addition to the amount of a valid claim. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2008). In order to recover fees, a party must (1) prevail on the breach of contract claim, and (2) recover damages. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 666 (Tex. 2009); Mustang Pipeline Co., 134 S.W.3d at 201; Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). The requirement of damages is implied from the statute’s language, “in addition to the amount of a valid claim,” the claimant must recover some amount on that claim. MBM Fin. Corp., 292 S.W.3d at 666.
Generally, a party seeking attorneys’ fees must show that the fees were incurred on a claim that allows recovery of such fees and must segregate fees incurred among different claims or separate parties. See Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex. 1997); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991), modified on other grounds by Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313–14 (Tex. 2006). When, however, the claims are “dependent upon the same set of facts or circumstances and thus are ‘intertwined to the point of being inseparable,’ the party suing for attorneys’ fees may recover the entire amount covering all claims.” Sterling, 822 S.W.2d at 11 (citing Gill Sav. Ass’n v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex. App.—Houston [14th Dist.] 1989), aff’d in part & modified in part on other grounds, 797 S.W.2d 31 (Tex. 1990)).

How long does a notice of LIS PENDENS remain in effect?


The purpose of filing a lis pendens is twofold—to protect the rights the filing party claims in the property disputed in the lawsuit and to put those interested in the property on notice of the lawsuit. Collins v. Tex Mall, L.P., 297 S.W.3d 409, 418 (Tex. App.—Fort Worth 2009, no pet.).
A lis pendens notice, however, operates only during the pendency of the lawsuit and terminates with the judgment, in the absence of appeal. Hartel v. Dishman, 145 S.W.2d 865, 869 (Tex. 1940); Collins, 297 S.W.2d at 418.

SOURCE: TEXARKANA COURT OF APPEALS - 06-10-00091-CV – 11/2/11 

Because the lis pendens terminates with the judgment, it was not necessary for the trial court to declare the lis pendens void. It was not, however, error to do that which was unnecessary, but was the result of the judgment.

Non-compliance with terms of settlement agreement

Options when other party does not comply with settlement agreement

When a claim is released for a promised consideration that is not given, the claimant may either pursue rights under the release, or treat the release as rescinded and recover on the underlying claim. Murray v. Crest Constr., 900 S.W.2d 342, 344 (Tex. 1995); see also Hernandez v. LaBella, No. 14-08-00327-CV, 2010 WL 431253 (Tex. App.—Houston [14th Dist.] Feb. 9, 2010, no pet.) (mem. op.) (repudiation or anticipatory breach of settlement agreement permits nonbreaching party to elect not to proceed with settlement agreement); BACM 2001-1 San Felipe Rd. Ltd. P’ship v. Traflagar Holdings I, Ltd., 218 S.W.3d 137, 146 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (on failure of debtor to perform under executory accord, creditor may treat accord as repudiated and may choose to claim rights under the original cause of action or the accord); Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 247 (Tex. App.—Amarillo 1994, no pet.) (if settlement agreement breached, nonbreaching party may treat agreement as repudiated and claim rights either under the agreement or the underlying cause of action).
Whether a party has breached a contract is a question of fact to be determined by the trier of fact. Allied Capital Partners, L.P. v. PTRI, 313 S.W.3d 460 (Tex. App.—Dallas 2010, no pet.).


Statutory waivers of immunity enjoyed by governmental entities

Governmental and Sovereign Immunity & Statutory Exceptions Thereto (immunity waivers)
In Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003), the court explained:

Courts often use the terms sovereign immunity and governmental immunity interchangeably. However, they involve two distinct concepts. Sovereign immunity refers to the State's immunity from suit and liability. In addition to protecting the State from liability, it also protects the various divisions of state government, including agencies, boards, hospitals, and universities. Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts.
Id. at 694 n.3 (citations omitted). The plaintiff bears the burden to plead facts that affirmatively demonstrate that governmental immunity has been waived and that the court has subject-matter jurisdiction. McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 464 (Tex. App. -Dallas 2009, pet. denied).
The Texas Legislature has created exceptions to the doctrine of governmental immunity which are applicable under certain conditions. See Harris Cnty. v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994). Whether a governmental unit is immune from liability for a particular claim depends entirely upon statute. Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The Texas Tort Claims Act provides that governmental units are liable for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011). The Tort Claims Act recognizes liability for two types of dangerous conditions of real property, premise defects and special defects. Id. at § 101.022.
If a claim arises from a premise defect, the governmental unit owes to the claimant only the same duty as a private person owes to a licensee on private property. Id. at § 101.022(a). That duty requires that a landowner not injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh'g). Actual knowledge of the dangerous condition is required. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). Constructive knowledge of the defect is insufficient. Id.
If a claim arises from a special defect, the governmental unit owes the same duty to warn that a private landowner owes an invitee. Id.; Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). That duty requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware. Payne, 838 S.W.2d at 237. In The University of Texas at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010), the court discussed the considerations relevant to a determination that a condition is a special defect:
The Legislature does not define special defect but likens it to conditions "such as excavations or obstructions on highways, roads, or streets." Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); see also County of Harris v. Eaton, 573 S.W.2d 177, 178-80 (Tex. 1978) (construing "special defect" as including those defects of the same kind or class as those expressly mentioned in the statute). In Denton County v. Beynon, we reaffirmed that conditions can be special defects "only if they pose a threat to the ordinary users of a particular roadway." 283 S.W.3d 329, 331 (Tex. 2009) (citing State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992)). Whether a condition is a special defect is a question of law. City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam). In deciding this question, we have previously considered characteristics of the class of special defect, such as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle's ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway. See Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam). The class of special defects contemplated by the statute is narrow.
SOURCE: DALLAS COURT OF APPEALS - 05-11-00509-CV - 10/26/11
Appellants argue the tall vegetation located in the easement along Sundown Road is a special defect, or in the alternative a premise defect from which their claim arose. Accordingly, we first address whether the tall vegetation constituted a special defect for purposes of section 101.022(b) of the Tort Claims Act. As emphasized by the court in Hayes and in Denton County v. Beynon, 283 S.W.3d 329, 332 (Tex. 2009), the special defect class is narrow. The defect must "pose a threat to 'ordinary users' in the manner that an excavation or obstruction blocking the road does." Beynon, 283 S.W.3d at 332; see also Hayes, 327 S.W.3d at 116. The court in Beynon also explained that its statement in Payne that excavations and obstructions "present an unexpected and unusual danger to ordinary users of roadways" did not create an additional element that could be proven to establish a special defect. Beynon, 283 S.W.3d at 331, n.11. Rather, the "unexpected and unusual danger" language was used "to describe the class, not to redefine it." Id. As noted in Sipes v. Texas Dep't of Transp., 949 S.W.2d 516, 521 (Tex. App.-Texarkana 1997, writ denied), "grass and weeds growing along an East Texas highway in July are neither unexpected nor unusual." Several courts have concluded vegetation obstructing a motorist's view is not a special defect. See Anderson v. Anderson Cnty., 6 S.W.3d 612, 615-16 (Tex. App.-Tyler 1999, pet. denied) (collecting cases).

Tuesday, November 1, 2011

Waiver: Right to appeal may be waived as part of settlement agreement


Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with that right. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003); Lang v. Lee, 777 S.W.2d 158, 164 (Tex. App.-Dallas 1989, no writ). Waiver can be established by an express renunciation of a known right. Jernigan, 111 S.W.3d at 156. In determining if waiver has in fact occurred, the court must examine the acts, words, or conduct of the parties and it must be "equivocally manifested" that it is the intent of the party to no longer assert the right. Robinson v. Robinson, 961 S.W.32d 292, 299 (Tex. App.-Houston [1st Dist.] 1997, no writ).

SOURCE: DALLAS COURT OF APPEALS - 05-10-01098-CV - 10/31/11

At the conclusion of the settlement hearing, the court asked appellant, "And you are agreeing that you understand that you are not-no longer going to prosecute the appeal that you currently have and will not appeal or attempt to appeal any other orders of this court that will be issued as a result of this settlement agreement?" Appellant agreed and said she understood. We conclude appellant unequivocally manifested her intent to waive her right to appeal the issues she now raises on appeal. Cf. Recognition Commc'ns, Inc. v. Am. Auto Ass'n, Inc., 154 S.W.3d 878, 885 (Tex. App.-Dallas 2005, pet. denied) (holding statement by attorney established party's intent to waive right to appeal a specific juy finding but did not waive party's right to appeal as to the entire case). Accordingly, appellant's second and third issues are overruled.

SOURCE: DALLAS COURT OF APPEALS - 05-10-01098-CV - 10/31/11

Sunday, October 30, 2011

Elements of Judicial Estoppel

Judicial estoppel “precludes a party from adopting a position inconsistent with one that it maintained successfully in an earlier proceeding.” Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008). This doctrine requires that: (1) a sworn, inconsistent statement be made in a prior judicial proceeding; (2) the party making the statement gained some advantage by it; (3) the statement was not made inadvertently or because of mistake, fraud, or duress; and (4) the statement was deliberate, clear, and unequivocal. Galley v. Apollo Associated Servs., Ltd., 177 S.W.3d 523, 528–29 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also Pagosa Oil & Gas, L.L.C. v. Marrs & Smith P’ship, 323 S.W.3d 203, 218 (Tex. App.—El Paso 2010, pet. denied) (holding same).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00766-CV - 10/27/11

When is a plaintiff/creditor entitled to pre-judgment interest under Texas law?

Prejudgment interest is recoverable as a matter of right when an ascertainable sum of money is found due and payable at a definite date before judgment. Jarrin v. Sam White Oldsmobile Co., 929 S.W.2d 21, 24 (Tex. App.—Houston [1st Dist.] 1996, writ denied); see, e.g., Henry Bldg., Inc. v. Milam, No. 05-99-01400-CV, 2001 WL 246882, at *3–4 (Tex. App.—Dallas Mar. 14, 2001, pet. denied) (holding that trial court erred by awarding contractor six-percent-per-year prejudgment interest instead of one and one-half percent per month prejudgment interest under section 28.004(b)).

A general prayer for prejudgment interest sufficiently invokes a statutory right to such interest. Benavidez v. Isles Constr. Co., 726 S.W.2d 23, 25 (Tex.1987); Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 441 (Tex. App.—Houston [1st Dist.] 2000, no pet.). Because the plaintiff is entitled to prejudgment interest based on a prayer for general relief alone, a plaintiff need not specifically plead prejudgment interest if the claim falls within the scope of a statute authorizing pre-judgment interest. Olympia Marble & Granite, 17 S.W.3d at 441; see e.g. Talley Constr. Co. v. Rodriguez, 01-03-01147-CV, 2006 WL 908180 (Tex. App.—Houston [1st Dist.] Apr. 6, 2006, no pet.) (holding that trial court did not err in awarding claimant eighteen percent per year in pre-judgment interest under section 28.004(b) because claimant’s pleading included prayer for general relief).
SOURCE: HOUSTON COURT OF APPEALS   - 01-10-00704-CV - 10/27/11

The Finance Code provides that the consumer credit commissioner shall determine the postjudgment interest rate to apply to money judgments. TEX. FIN. CODE ANN. § 304.003(c)(2). The interest rate published by the consumer credit commissioner for judgments issued in May 2010 was five percent per year.

Workplace injury claim by employee not covered by employer's Workers Comp (nonsubscriber)

In order for an employee to recover from an employer who is a non-subscriber under the Texas Worker’s Compensation Act, the employee must establish negligence on the part of the employer. Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 310 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A negligence cause of action has three elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. Id. The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
The existence of duty is a question of law for a court to decide from the facts surrounding the occurrence in question. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Siegler, 899 S.W.2d at 197; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). “The existence of duty is a question of law when all of the essential facts are undisputed, but when the evidence does not conclusively establish the pertinent facts or the reasonable inferences to be drawn therefrom, the question becomes one of fact . . . .” Mitchell v. Missouri-Kansas, Texas R.R. Co., 786 S.W.2d 659, 662 (Tex. 1990) (quoting Bennett v. Span Indus., Inc., 628 S.W.2d 470, 474 (Tex. App.—Texarkana 1981, writ ref’d n.r.e.)); see also Sanders v. Herold, 217 S.W.3d 11, 15 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Mitchell).
An employer has a duty to “warn an employee of the hazards of employment and provide needed safety equipment or assistance.” Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, 568 (Tex. 2007). An employer has a “duty to warn or caution an employee of a danger” when (1) ‘the employment is of a dangerous character requiring skill and caution for its safe and proper discharge,” and (2) “the employer is aware of the danger and has reason to know the employee is unaware.” Nat’l Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.). However, an employer is not an insurer of its employees’ safety. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). An employer therefore does not owe a duty “to warn of hazards that are commonly known or already appreciated by the employee.” Jack in the Box, 221 S.W.3d at 568–¬69 (quoting Elwood, 197 S.W.3d at 794). In looking to the scope of this duty, the employee’s age and experience should be considered. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 412 (Tex. 2009).
“Where an employer provides its employee with at least one safe way to perform her assigned tasks and the employee chooses to perform the task by a different method, thereby injuring herself, the employer is not liable.” Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544, 548 (Tex. App.—Texarkana 1996, writ denied) (citing Great Atl. & Pac. Tea Co. v. Lang, 291 S.W.2d 366, 367–68 (Tex. Civ. App.—Eastland 1956, writ ref’d n.r.e.)). When, however, there is evidence that the employer failed to instruct its employees on how to perform their jobs while avoiding known safety risks, an employer may still be liable. See id.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00867-CV - 10/20/11

Friday, October 21, 2011

What is trespass, legally speaking? How about a nuisance?


Trespass to real property is an unauthorized entry upon the land of another, and may occur when one enters—or causes something to enter—another’s property. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 11 n.29 (Tex. 2008); Glade v. Dietert, 295 S.W.2d 642, 645 (Tex. 1956). "[E]very unauthorized entry upon land of another is a trespass even if no damage is done or injury is slight." Coastal Oil, 268 S.W.3d at 12 n.36 (quoting McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex. Civ. App.—Beaumont 1934, writ ref’d) (alteration in original)).

A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004); see also Burditt v. Swenson, 17 Tex. 489 (1856).

The common definition of damage is "loss due to injury: injury or harm to person, property, or reputation." WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 571 (2002).

SOURCE: TEXAS SUPREME COURT - 10-0669 - 10/21/11 - Barnes v. Mathis (Tex. 2011)
(per curiam opinion


The Texas Property Code provides in part, "A trespass to try title action is the method for determining title to lands, tenements, or other real property." TEX. PROP. CODE ANN. § 22.001(a) (West 2014). 

"To prevail in a trespass-to-try-title action, a plaintiff must usually (1) prove a regular chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned." Wilhoite v. Sims, 401 S.W.3d 752, 760 (Tex. App.-Dallas 2013, no pet.).  

Parties to a contract obligated to cooperate to facilitate compliance, performance under the contract

CONTRACT LAW: Texas courts recognize implied duty to cooperate
A duty to cooperate is implied in every contract in which cooperation is necessary for performance of the contract. This implied duty requires that a party to a contract may not hinder, prevent, or interfere with another party's ability to perform its duties under the contract. Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 770 (Tex. App.--Dallas 2005, pet. denied); Bank One, Tex., N.A. v. Stewart, 967 S.W.2d 419, 435 (Tex. App.—Houston [14th Dist.] 1998, pet. denied); Hallmark v. Hand, 833 S.W.2d 603, 610 (Tex. App.—Corpus Christi 1992, writ denied).

Additionally, when one party to a contract, by wrongful means, prevents the other party from performing, such an action by the party at fault constitutes a breach of contract. The effect of such a breach is not only to excuse performance by the injured party, but also to entitle it to recover for any damage it may sustain by reason of the breach. Smith v. Lipscomb, 13 Tex. 532, 538 (1855); Arceneaux v. Price, 468 S.W.2d 473, 474 (Tex. Civ. App.—Austin 1971, no writ); S.K.Y. Inv. Corp. v. H. E. Butt Grocery Co., 440 S.W.2d 885, 889–90 (Tex. Civ. App.—Corpus Christi 1969, no writ).


Admissibility of testimony [parol evidence] regarding contract terms

When may a court consider parol evidence (testimony as to terms) when interpreting and enforcing a contract?

MERGER OR INTEGRATION CLAUSE generally bars parol evidence

Generally, a written instrument presumes that all prior agreements relating to the transaction have been merged into it and it will be enforced as written and cannot be added to, varied, or contradicted by parol testimony. See Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Wilkins v. Bain, 615 S.W.2d 314, 315 (Tex. Civ. App.—Dallas 1981, no writ).

This rule is particularly applicable where the written contract contains a recital that it contains the entire agreement between the parties or a similarly worded merger provision. See Weinacht v. Phillips Coal Co., 673 S.W.2d 677, 679 (Tex. App.—Dallas 1984, no writ).


However, in case of an incomplete instrument, an exception to the parol evidence rule applies, even though fraud, accident, or mistake is not shown. Robertson, Inc. v. Webster, 679 S.W.2d 683, 688 (Tex. App.—Houston [1st Dist.] 1984, no writ) (concluding oral agreement regarding time of delivery of pickup truck to customer was not inconsistent with terms of agreement between car dealer and customer, for purposes of determining whether dealer's false representations regarding the delivery date were actionable under the Deceptive Trade Practices - Consumer Protection Act, notwithstanding the presence of a merger clause in the sales order form, where the instrument itself referred to"delivery" numerous times and yet contained no delivery date).


ALSO RELEVANT: parol evidence rule, ambiguous vs. unambiguous contracts, definiteness of contractual terms

Thursday, October 20, 2011

Double recovery barred under the one-satisfaction rule

Under Texas rules of civil procedure, it is permissible to plead even inconsistent theories of recovery in the alternative, but dual recovery on different legal theories is precluded if there was only a single injury.   
Pursuant to Texas Rules of Civil Procedure, Rule 48, a party may plead "as many separate claims or defenses as he has regardless of consistency." The "one satisfaction rule" provides that a plaintiff cannot obtain more than one recovery for the same injury. Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184–85 (Tex.1998); Borden v. Guerra, 860 S.W.2d 515, 528 (Tex. Civ. App.—Corpus Christi 1993, writ dism’d by agr.) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991)). This rule is based on the principle that, with only one injury, "there can, in justice, be but one satisfaction for that injury." Id. When a plaintiff pleads alternate theories of liability, a judgment that awards damages based upon both theories does not amount to a double recovery if the theories of liability arise from two separate and distinct injuries, and there has been a separate and distinct finding of damage on both theories of liability. Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 367 (Tex. 1987); Berry Prop. Mgmt, Inc. v. Bliskey, 850 S.W.2d 644, 664–66 (Tex. App.—Corpus Christi 1993, writ dism’d by agr.).

An impermissible double recovery occurs when there is only one injury, the theories of liability are mutually exclusive, or there are no separate damages findings based on the alternate theories of liability. See Southern Cty. Mut. v. First Bank & Trust, 750 S.W.2d 170, 173–174 (Tex. 1988); Birchfield, 747 S.W.2d at 367. When confronted with a situation of double recovery, the affirmative defense of election of remedies, under certain circumstances, bars a person from pursuing two inconsistent remedies. See generally Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850–52 (Tex. 1980).9 The Bocanegra court articulated the following test for the election doctrine to bar relief: (1) one successfully exercises an informed choice; (2) between two or more remedies, rights, or states of facts; (3) which are so inconsistent as to; (4) constitute manifest injustice. Id.; Medina, 927 S.W.2d at 600.



We hold that the damages awarded to White constitute two separate and distinct injuries, with separate and distinct findings of damages on different theories of liability. See Birchfield, 747 S.W.2d at 367. Further, White’s damages are not so inconsistent as to constitute a manifest injustice. See Bocanegra, 605 S.W.2d at 850. We overrule Washington Mutual’s third issue.

Denial of Crime Victim's Compensation Claim by the AG - Judicial Review Suit

Tex. Code Crim. Proc. Ann. ch. 56, subch. B (Vernon 2006 & Supp. 2010)

Judicial review of denial of claim by the Attorney General is available, but subject to tight deadline.

Deadline for Judicial Review  

If the attorney general denies a crime victim’s compensation claim, the claimant may obtain judicial review of that decision. Article 56.48(a) provides in relevant part:
Not later than the 40th day after the attorney general renders a final decision, a claimant or victim may file with the attorney general a notice of dissatisfaction with the decision. Not later than the 40th day after the claimant or victim gives notice, the claimant or victim shall bring suit in the district court having jurisdiction.

The Texas Administrative Code contains similar language pertaining to these claims:
Not later than the 40th day after the victim or claimant gives the OAG notice of dissatisfaction with the OAG’s final decision from the hearing, the victim or claimant has a right to bring suit in a district court having jurisdiction over the matter

The attorney general’s position is that the 40-day period within which the claimant is to file his lawsuit starts to run when he files his first notice of dissatisfaction. Louis, on the other hand, claims that a claimant may amend his notice of dissatisfaction as many times as he likes so long as he files the amended notices within forty days after the attorney general enters a final decision. Louis maintains that the 40-day period within which a claimant is to file his lawsuit does not begin to run until the claimant files his last amended notice of dissatisfaction. If the attorney general is correct, then Louis filed his petition for judicial review late. If Louis is correct, then he timely filed his lawsuit for judicial review, and the trial court erred when it granted the attorney general’s plea to the jurisdiction.

SOURCE: EASTLAND COURT OF APPEALS - 11-09-00315-CV - 10/6/11

The trial court found that Kelvin E. Louis’s petition for judicial review of the attorney general’s decision to deny his claim as a crime victim was not timely filed. It therefore granted the attorney general’s plea to the jurisdiction. We affirm.

Availability of declaratory relief under the Texas version of the UDJA

When is declaratory relief available under the Declaratory Judgments Act (DJA), when not? 

A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, or ordinance, contract or franchise and obtain a declaration of rights, status, or other legal relations thereunder. Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 2008).
The purpose of the Declaratory Judgments Act is "to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Tex. Civ. Prac. & Rem.Code Ann. § 37.002(b) (West 2008). It is "remedial" and "is to be liberally construed." Id.
The Declaratory Judgments Act cannot be used to obtain an advisory opinion, which Texas courts lack subject-matter jurisdiction to give. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993).
Declaratory judgment is appropriate only when a real controversy exists between the parties and the entire controversy may be determined by the judicial declaration. Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004); OAIC Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 745 (Tex. App.-Dallas 2007, pet. denied). The Act does not give a litigant the right to try a case piecemeal. United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 858 (Tex. 1965); SW Airlines Co. v. Tex. High-Speed Rail Auth., 863 S.W.2d 123, 125 (Tex. App.-Austin 1993, writ denied).
Ripeness is a requirement of justiciability. Perry v. Del Rio, 66 S.W.3d 239, 249 (Tex. 2001); Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). The ripeness doctrine conserves judicial time and resources for real and current controversies, rather than abstract, hypothetical, or remote disputes. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); TCI West End, Inc. v. City of Dallas, 274 S.W.3d 913, 918 (Tex. App.-Dallas 2008, no pet.). The doctrine prohibits suits involving "uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all." Patterson, 971 S.W.3d at 442. A case is not ripe if its resolution depends on contingent facts or upon events that have yet to come to pass. See id. at 443.
A defendant may not use a declaratory judgment to prematurely adjudicate defenses to liability that may not yet exist. Cf. Calderon v. Ashmus, 523 U.S. 740 (1998) (under federal constitution, party may not use a declaratory judgment to get advance ruling on an affirmative defense); see also Cohen v. Orthalliance New Image, Inc., 252 F. Supp.2d 761, 766 (N.D. Ind. 2003) (assessing the success of a defense to a potential claim (breach-of-contract or otherwise) is generally the type of hypothetical question federal courts endeavor to avoid).
SOURCE: DALLAS COURT OF APPEAL - 05-10-00655-CV - 10/19/11


A declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). "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. If declaratory relief will not terminate a controversy between parties and would be irrelevant at the time judgment is rendered, a declaratory judgment will amount to no more than an advisory opinion, which the trial court lacks power to provide. Kenneth Leventhal & Co. v. Reeves, 978 S.W.2d 253, 259 (Tex. App.—Houston [14th Dist.] 1998, no pet.).


"Agent" who contracts faces personal liability if purported principal does not exist

Supposed agent's signature on contract entails personal liability when the purported principal does not actually exist  
AGENT & PRINCIPAL: Consequences of contract formation when the principal is fictitious
[As a purported agent of a nonexistent principal a person] would be personally liable for any contract he made on behalf of that company. See Carter v. Walton, 469 S.W.2d 462, 471 (Tex. Civ. App.—Corpus Christi 1971, writ ref’d n.r.e.) ("As a general rule, one who contracts as an agent in the name of a nonexistent or fictitious principal, or a principal without legal status or existence, renders himself personally liable on the contracts so made.") (quoting 3 Am. Jur. 2d Agency § 295 (1962)); see also Restatement (Third) of Agency § 6.04 (2006) ("Unless the third party agrees otherwise, a person who makes a contract with a third party purportedly as an agent on behalf of a principal becomes a party to the contract if the purported agent knows or has reason to know that the purported principal does not exist or lacks capacity to be a party to a contract").
SOURCE: HOUSTON COURT OF APPEALS - 14-10-01077-CV - 10/20/11
AGENTS AND PRINCIPALS: Who is liabile on the contract?
In general, a person making a contract with another as agent for a disclosed principal does not become a party to the contract; but an agent of a disclosed principal will be held personally liable if the agent substitutes the agent‘s own responsibility for that of the principal, or pledges the agent‘s own responsibility in addition to that of the principal. Collins v. Guinn, 102 S.W.3d 825, 835 (Tex. App.—Texarkana 2003, no pet.); A to Z Rental Ctr. v. Burris, 714 S.W.2d 433, 435 (Tex. App.—Austin 1986, writ ref‘d n.r.e.). In order to avoid personal liability, an agent must disclose both the fact that the agent is acting in a representative capacity and the identity of the principal. Wynne v. Adcock Pipe & Supply, 761 S.W.2d 67, 69 (Tex. App.—San Antonio 1988, pet. denied). The agent is not relieved of the responsibility to disclose this information merely because the third party has the means of discovering the principal‘s identity. Id. Actual knowledge of the real principal, not suspicion, is the test. Hideca Petroleum v. Tampimex Oil Int’l, 740 S.W.2d 838, 842 (Tex. App.—Houston [1st Dist.] 1987, no writ).  

Enforceability of contractual forum selection in Texas

Contractual choice of forum for litigation 
Forum-selection clauses are generally enforceable and presumptively valid. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (per curiam). A trial court abuses its discretion in refusing to enforce the clause unless the party opposing enforcement clearly shows (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3) enforcement would contravene a strong public policy of the forum where the suit was brought, or (4) the selected forum would be seriously inconvenient for trial. Id. The burden of proof is heavy for the party challenging enforcement. Id.
SOURCE: HOUSTON COURT OF APPEALS - 14-10-01077-CV - 10/20/11

RELATED LEGAL TERMS: venue, mandatory and permissive venue, motion to transfer venue