Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Thursday, January 12, 2012

Sworn account suit under TRCP 185 not available for any and all types of claims involving an unpaid account

Suit for unpaid electrical power service may be brought as sworn account, but claim for early termination fee required proof of breach of the underlying contract, according to an opinion issued by Houston's First Court of Appeals today.   
Rule 185 of the Texas Rules of Civil Procedure, entitled Suit on Account, provides:
When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath. A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be. No particularization or description of the nature of the component parts of the account or claim is necessary unless the trial court sustains special exceptions to the pleadings.
The elements of a suit on a sworn account claim are thus (1) the sale and delivery of merchandise or performance of services; (2) that the amount of the account is “just,” that is, the prices charged are pursuant to an express agreement, or in the absence of an agreement, that the charges are usual, customary, or reasonable; and (3) that the outstanding amounts remain unpaid. E.g., Powers v. Adams, 2 S.W.3d 496, 499 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
Rule 185 is a procedural tool that limits the evidence necessary to establish a prima facie right to recovery on certain types of accounts.” Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 234 (Tex. App.—Houston [1st Dist.] 2008, no pet.). “Rule 185 applies only to ‘transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing . . . .’” Id. (quoting Meaders v. Biskamp, 316 S.W.2d 75, 78 (Tex. 1958) (emphasis in original)). “It does not apply to transactions between parties resting upon a special contract.” Id. (quoting Meaders, 316 S.W.2d at 78).
The trial court’s $29,615.04 award was made up of $12,994.18 for unpaid electrical service and a $16,620.86 early termination fee. A suit on a sworn account applies to the sale of electric service. See generally Rimco Enters., Inc. v. Texas Elec. Serv. Co., 599 S.W.2d 362, 365 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.).
While the defendants dispute here that the electric service charges were reasonable, accurate, or just, Affordable Power’s petition attached an affidavit, made on the affiant’s personal knowledge, attesting that:
Attached to this affidavit is the final bill and/or invoice that was sent to the listed customer. The final invoice was based on an open account with the customer for goods and/or services rendered. The final invoice is part of our systematic records, based on goods and/or services provided to the customer. A true and correct copy of the Contract Agreement with the listed customer and Terms of Service is attached as Exhibit “1” of this Petition.
The final invoice accurately reflects charges for goods and/or services provided. The amount of the account is just and true, it is due, the prices were charged according to a written contract with the customer and the charges are usual, customary and reasonable. The just and true amount of $29,615.04 plus interest, is currently due having been unpaid by the customer. This amount includes all lawful offsets, payments and credits.
Because this affidavit meets the requirements to establish a prima facie case under Rule 185, the defendants’ failure to file a verified denial would have precluded them from disputing the $12,994.18 charges for electrical service on Affordable Power’s suit on a sworn account at trial. See Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985).
For the reasons further explained below, however, we nonetheless remand Affordable Power’s claim based on unpaid electrical services to the trial court because judgment on that claim is not “separable without unfairness to the parties” from the judgment on Affordable Power’s breach of contract claim related to the termination fee, which is not supported by legally sufficient evidence. Tex. R. App. P. 44.1(b); Iron Mountain Bison Ranch, Inc. v. Easley Trailer Mfg., Inc., 42 S.W.3d 149, 162 (Tex. App.—Amarillo 2000, no pet) (“Given the intertwined nature of appellee’s promissory estoppels theory and its other theories, we remand the promissory estoppel issue for a new trial in the interest of justice.”).

Collateral Estoppel - The doctrine, its purpose, and its elements when invoked as a defense


LAWYER LINGO: What is collateral estoppel?
Collateral estoppel, or issue preclusion, prevents the relitigation of identical issues of fact or law that were actually litigated and essential to the final judgment in a prior suit. Texas Dep't of Public Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001); Barr, 837 S.W.2d at 628.
The doctrine is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by preventing any relitigation of an ultimate issue of fact. Petta, 44 S.W.3d at 579; Sysco Food Servs., 890 S.W.2d at 801.
A party seeking to assert the bar of collateral estoppel must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. John G. & Marie Stella Kenedy Mem'l Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Indem. Ins. Co. v. City of Garland, 258 S.W.3d 262, 271 (Tex. App.-Dallas 2008, no pet.).

Strict mutuality of parties is no longer required. Petta, 44 S.W.3d at 579; Richards v. Comm'n for Lawyer Discipline, 35 S.W.3d 243, 249 (Tex. App.-Houston [14th Dist.] 2000, no pet.). It is only necessary that the party against whom collateral estoppel is being asserted was a party or in privity with a party in the first action. Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990).

“People can be in privity in at least three ways: (1) they can control an action even if they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they can be successors in interest, deriving their claims through a party to the prior action.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996); see also State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 886 (Tex. App.-Dallas 2001, pet. denied).
SOURCE: DALLAS COURT OF APPEALS - 05-10-00410-CV - 1/8/12 

What is "Money Had and Received"? It does not sound like a cause of action, but ...

...it functions as one under Texas case law precedents:
Assumpsit For Money Had And Received
According to legal historians, assumpsit was developed to redress circumstances involving unjust enrichment or an implied promise to pay what in good conscience defendant was bound to pay the plaintiff. Tri-State Chem., Inc. v. Western Organics, Inc., 83 S.W.3d 189, 193-94 (Tex. App.-Amarillo 2002, pet. denied). Over time, assumpsit was divided into various categories. Id. at 194.
Money had and received is a category of general assumpsit to restore money where equity and good conscience require refund. Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.-El Paso 1997, no writ). “The question, in an action for money had and received, is to which party does the money, in equity, justice, and law, belong.
All plaintiff need show is that defendant holds money which in equity and good conscience belongs to him.” Staats v. Miller, 150 Tex. 581, 584, 243 S.W.2d 686, 687-88 (1951) (quoting 58 C.J.S., Money Received § 4a). A cause of action for money had and received is “less restricted and fettered by technical rules and formalities than any other form of action. It aims at the abstract justice of the case, and looks solely to the inquiry, whether the defendant holds money which . . . belongs to the plaintiff.” Id. (quoting United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 402-03 (1934)).
A cause of action for money had and received is not premised on wrongdoing, but “looks only to the justice of the case and inquires whether the defendant has received money which rightfully belongs to another.” Amoco, 946 S.W.2d at 164. Such an action may be maintained to prevent unjust enrichment when a party obtains money which in equity and good conscience belongs to another. Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 860 (Tex. App.-Fort Worth 2005, no pet.); J.C. Penney Co., Inc. v. Pitts, 139 S.W.3d 455, 457 n.4 (Tex. App.-Corpus Christi 2004, no pet.) (citing Staats, 243 S.W.2d at 687). In short, it is an equitable doctrine applied to prevent unjust enrichment. Everett, 178 S.W.3d at 860; Hunt v. Baldwin, 68 S.W.3d 117, 132 (Tex. App.-Houston [14th Dist.] 2001, no pet.).
To prove a claim for money had and received, a plaintiff must show that a defendant holds money which in equity and good conscience belongs to him. Edwards v. Mid- Continent Office Distrib., L.P., 252 S.W.3d 833, 837 (Tex. App.-Dallas 2008, pet. denied). In defending against such a claim, a defendant may present any facts and raise any defenses that would deny a claimant's right under this theory. Best Buy Co. v. Barrera, 248 S.W.3d 160, 162 (Tex. 2007) (per curiam); Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 807 (Tex. App.-Dallas 2011, no pet.).
A recovery under assumpsit for money had and received does not “depend on the parties' agreement or intent but rather the law's presumption of a promise of compensation if one receiving another's money would thereby be unjustly enriched.”Amoco, 946 S.W.2d at 164.
Generally, when a valid, express contract covers the subject matter of the parties' dispute, there can be no recovery under a quasi-contract theory. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 828 (Tex. App.-Dallas 2010, no pet.). The quasi-contractual action for money had and received is a cause of action for a debt not evidenced by a written contract between the parties. See Edwards, 252 S.W.3d at 836; see also Amoco, 946 S.W.2d at 164.
SOURCE: DALLAS COURT OF APPEALS - 05-10-00410-CV - 1/10/12

Wednesday, January 11, 2012

Litigating insurer's duty to defend policy-holder


An insurer has a duty to defend when a third party sues the insured on allegations that, if taken as true, potentially state a cause of action within the coverage terms of the policy. GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 310 (Tex. 2006). Even if the allegations are groundless, false, or fraudulent, the insurer is obligated to defend. Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 491 (Tex. 2008). The duty to defend is independent from the duty to indemnify and can exist even when no obligation to indemnify is ultimately found. Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex. 1997).

THE EIGHT CORNERS RULE: Pleadings and Policy - Four corners each  
In determining whether an insurer has a duty to defend, we follow the eight-corners rule, also known as the complaint-allegation rule: ―an insurer’s duty to defend is determined by the third-party plaintiff’s pleadings, considered in light of the policy provisions, without regard to the truth or falsity of those allegations.‖ Zurich, 268 S.W.3d at 491 (quoting GuideOne, 197 S.W.3d at 308). When applying the eight-corners rule, we  construe the allegations in the pleadings liberally. Nat’l Union Fire Ins. Co. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997). We resolve all doubts regarding the duty to defend in favor of the insured. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002). If the pleadings do not contain factual allegations sufficient to bring the case clearly within or without the coverage terms, the general rule is that the insurer is obligated to defend if there is any potential claim under the pleadings that falls within the coverage of the policy. Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 141 (citing Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex. 1965)); Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 (Tex. 1994). In the case of ambiguity in the underlying petition, the court may not read facts into the pleadings, look outside the pleadings, or ―imagine factual scenarios which might trigger coverage.‖ Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 142. However, the eight-corners rule does not require us to ignore those inferences logically flowing from the facts alleged in the petition. Gen. Star Indem. Co. v. Gulf Coast Marine Assocs., Inc., 252 S.W.3d 450, 456 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 645 (Tex. 2005) (inferring a profit motive from the insured’s leasing of her property for limestone mining even though the pleadings made no reference to any pecuniary interest)). A liability policy obligates the insurer to defend the insured  against any claim that potentially could be covered. Heyden Newport Chem. Corp., 387 S.W.2d at 26.

The limited nature of eviction proceedings in justice court (and appeals from them)

Forcible Detainer dispute can easily become moot because the only issue is the right to current possession of the premises  
The only issue in a forcible detainer action is the right to immediate possession, not the merits of title to the property. See Tex. R. Civ. P. 746; Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 785 (Tex. 2006). If a defendant in a forcible detainer action is no longer in possession of the premises, then an appeal from the forcible detainer judgment is moot unless the defendant asserts "a potentially meritorious claim of right to current, actual possession of the [premises]." The pendency of a claim to title to the property does not prevent the court in the forcible detainer action from determining that the plaintiff has the superior right to immediate possession of the property. Wilhelm v. Fed. Nat. Mortg. Ass'n, 349 S.W.3d 766, 768 (Tex. App.-Houston [14th Dist.] 2011, no pet.); see also Villalon v. Bank One, 176 S.W.3d 66, 70 (Tex. App.-Houston [1st Dist.] 2004, pet. denied) (mortgagee established right to immediate possession in forcible detainer action following its purchase of property at foreclosure sale, despite allegations of failure to comply with Fair Debt Collection Practice Act).
Forcible Detainer Action [per Supreme Court of Texas]
The only issue in a forcible detainer action is the right to actual possession of the premises. TEX. R. CIV. P. 746; see also TEX. PROP. CODE § 24.001. Some courts of appeals have held that if a tenant fails to post a supersedeas bond pursuant to Texas Property Code Section 24.007, the appellate court lacks jurisdiction.[1] Other courts of appeals have concluded that if a tenant vacates the premises, (1) the tenant's appeal is moot because the court can no longer grant effectual relief,[2] or (2) the issue of possession is moot, but the court can still consider issues unrelated to possession.[3] At least one court of appeals has concluded that a tenant's appeal is not moot even though the tenant vacated the premises.[4]

Read more on moot appeal in eviction case from Houston …

Tuesday, January 10, 2012

Default on installment plan or re-payment schedule

Accrual of claim when periodic payments are required and not made under a contract and acceleration does not apply.

When the debtor/obligor defaults on a payment or re-payment schedule involving periodic installments, each missed payment gives rise to separate cause of action. Therefore, a claim for earlier missed installment payments may be time-barred, whereas a claim for more recent ones may be within the limitations period.

The limitations period for breach of contract claims is four years. TEX. CIV. PRAC. & REM. CODE ANN. § 16.051 (West 2008); Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). "Limitations begins to run upon accrual of the cause of action." Barker v. Eckman, 213 S.W.3d 306, 311 (Tex. 2006). A breach of contract claim accrues when the contract is breached. Stine, 80 S.W.3d at 592. When recovery is sought on an obligation payable in installments, the statute of limitations runs against each installment from the time it becomes due. Hollander v. Capon, 853 S.W.2d 723, 726 (Tex. App.-Houston [1st Dist.] 1993, writ denied).

SOURCE: DALLAS COURT OF APPEALS - 05-10-00252-CV – 1/3/12 [Name of Plaintiff replaced with “PLANTIFF”]

Monday, January 9, 2012

What is a "cause of action" in Texas courts?

Dallas Court of Appeals cites definitions of "cause of action" in med-mal case:
“[C]ause of action” has been interpreted to mean “a fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.” In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) (orig. proceeding) (internal quotations and citations omitted).  And “cause of action” has also been defined as “[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Id. (quoting Black's Law Dictionary 235 (8th ed. 2004)).
SOURCE: DALLAS COURT OF APPEALS - 05-10-01388-CV  - 1/6/12

Recovery of costs by plaintiff or defendant

As a general rule, the successful party to a suit shall recover of its adversary all costs incurred in the suit. TEX. R. CIV. P. 131. The allocation of costs is within the trial court's discretion and, absent an abuse of discretion, cannot be overturned on appeal. Labor v. Warren, 268 S.W.3d 273, 278 (Tex. App.—Amarillo 2008, no pet.) (citing Madison v. Williamson, 241 S.W.3d 145, 157 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)). Section 31.007(a) of the Texas Civil Practice and Remedies Code prescribes that:

Each party to a suit shall be responsible for accurately recording all costs and fees incurred during the course of a lawsuit, if the judgment is to provide for the adjudication of such costs. If the judgment provides that costs are to be borne by the party by whom such costs were incurred, it shall not be necessary for any of the parties to present a record of court costs to the court in connection with the entry of a judgment.
TEX. CIV. PRAC. & REM. CODE ANN. § 31.007(a) (West 2008). "Although somewhat vague as to procedure," section 31.007(a) "clearly does not require a formal presentation of evidence of a party's costs during trial." Varner v. Howe, 860 S.W.2d 458, 466 (Tex. App.—El Paso 1993, no writ). "All that seems to be required is that the successful party present . . . an itemized list of costs and fees incurred during the lawsuit." Id.; see Labor, 268 S.W.3d at 279.

Wednesday, December 21, 2011

No Medical Malpractice Lawsuit without Expert Report

In the course of tort reform, the Texas legislature required that each medical malpractice lawsuit be accompanied by an expert report to vouch for its non-frivolousness. The required report must cover several elements and has been the subject of much appellate litigation. The stakes are high, because failure to file the report entails dismissal. Failure to file an adequate expert report, or failure to file it timely, usually has dire consequences likewise.

When a plaintiff brings a healthcare liability claim, section 74.351 requires the plaintiff to serve each health care provider defendant with an expert report that “provides a fair summary of the expert’s opinions . . . regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relations between that failure and the injury, harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(a) and 74.351(r)(6).

If a plaintiff timely files an expert report, the defendant may move to challenge its sufficiency. Id. § 74.351(a); Palacios, 46 S.W.3d at 877. The trial court must dismiss the case with prejudice if the court finds that the report does not represent a good-faith effort to comply with the statute. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Palacios, 46 S.W.3d at 877 (discussing predecessor statute).

An expert report represents a good faith effort to comply with section 74.351 if it provides enough information to inform the defendant of the specific conduct called into question by the plaintiff and provides a basis for the trial court to determine that the claims made by the plaintiff have merit. Palacios, 46 S.W.3d at 879. The report need not marshal all of the plaintiff’s proof, but it must address all three statutory elements—standard of care, breach and causation. See id. at 878. The report must link the expert’s conclusions to the facts upon which those conclusions rest. See Jelinek, 328 S.W.3d at 539 (citing Bowie Mem’l Hosp., 79 S.W.3d at 52). An expert report that omits any of the statutory requirements is not a good faith effort. Palacios, 46 S.W.3d at 879. In reviewing the sufficiency of a report, we look only within the four corners of the document. Id. at 878.

Section 74.351(c) permits a trial court to grant a medical malpractice plaintiff a thirty day extension if an expert report “has not been served within the period specified by Subsection (a) because elements of the report are found deficient.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). If the claimant receives notice of the court’s ruling after the initial 120-day deadline has passed, then the extension runs from the date the plaintiff first received notice. Id.


We review the trial court’s decision on a section 74.351 motion to dismiss for abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (addressing predecessor statute to section 74.351). The trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (quoting Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51–52 (Tex. 2002)).

SOURCE: HOUSTON COURT OF APPEALS - 01-11-00136-CV - 12/14/11

A bare assertion of causation does not meet the requirements of section 74.351(r)(6), because “[a]n expert report cannot simply opine that the breach caused the injury.” Jelinek, 328 S.W.3d at 539. No “magical words” such as “reasonable medical probability” demonstrate that the report complies with section 74.351(r)(6). See Bowie Mem’l Hosp., 79 S.W.3d at 53; Regent Care Ctr. of San Antonio II, Ltd. P’ship v. Hargrave, 300 S.W.3d 343, 347 (Tex. App.—San Antonio 2009, pet. denied) (finding single sentence addressing causation did not demonstrate good-faith effort to comply with Act). Rather, to satisfy the element of causation, an expert must explain the basis of her statements and link her conclusions to the facts of the case. Jelinek, 328 S.W.3d at 539; Bowie Mem’l Hosp., 79 S.W.3d at 52.

Tuesday, December 20, 2011

Deed construction analogous to contract construction; so is admissibility of parol evidence to interpret or clarify deed

The construction of a deed is ordinarily a question of law. See Terrill v. Tuckness, 985 S.W.2d 97, 101 (Tex. App.—San Antonio 1998, no pet.) (noting that rules of contract construction ordinarily apply to construction of deeds). Our primary concern in construing a deed is to ascertain the parties’ true intent as expressed in the instrument. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991); CenterPoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177 S.W.3d 425, 430 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). “Because ‘once a dispute arises over meaning, it can hardly be expected that the parties will agree on what meaning was intended,’ courts use canons of construction to help ascertain the parties’ intent.” French v. Chevron U.S.A., Inc., 896 S.W.2d 795, 797 (Tex. 1995) (quoting Southland Royalty Co. v. Pan Am. Petroleum Corp., 378 S.W.2d 50, 59 (Tex. 1964) (Calvert, C.J., concurring)). The “four corners” rule requires us to ascertain intent from the entire instrument. See French, 896 S.W.2d at 797. We must strive to harmonize all of the deed’s parts, construing the deed to give effect to all of its provisions. Luckel, 819 S.W.2d at 462; CenterPoint Energy, 177 S.W.3d at 430.


Extrinsic evidence of intent is admissible only if the deed is ambiguous on its face. See Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 283 (Tex. 1996); CenterPoint Energy, 177 S.W.3d at 431 (“A court may consider the parties’ interpretations of the contract through extrinsic or parol evidence only after a contract is first determined to be ambiguous.”).

The decision whether the deed is ambiguous is also a question of law. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); see also CenterPoint Energy, 177 S.W.3d at 430. To make this determination, we look at the deed as a whole in light of the circumstances existing when the parties entered into their agreement. See CenterPoint Energy, 177 S.W.3d at 430. If the deed is worded in such a way that it can be given a definite or certain legal meaning, then it is not ambiguous and the court will be confined to the writing. See id. at 30-31. A mere disagreement about the proper interpretation of a deed, however, does not make the deed ambiguous; the instrument is ambiguous only if, after application of the rules of construction, the deed is reasonably susceptible to more than one meaning. Brown v. Havard, 593 S.W.2d 939, 942 (Tex. 1980); Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (Tex. 1951).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-01002-CV - 12/15/11

Monday, December 19, 2011

Collateral attack on judgment - can it work?

Judgments—except judgments void for lack of jurisdiction—are not subject to collateral attack; they may only be challenged on direct attack by appeal. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). A collateral attack, unlike a direct attack, seeks to avoid the effect of a judgment in a later proceeding not instituted for the purpose of modifying or vacating the judgment, but instituted in order to obtain some relief that the judgment currently stands as a bar against. Henderson v. Chambers, 208 S.W.3d 546, 550 (Tex. App.—Austin 2006, no pet.) (holding that wife’s suit based on fraud claim was collateral attack on prior judgment); see Kendziorski v. Saunders, 191 S.W.3d 395, 408 (Tex. App.—Austin 2006, no pet.) (“A collateral attack . . . ‘is an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose.’”) (quoting Employers Cas. Co. v. Block, 744 S.W.2d 940, 943 (Tex. 1988)). “[T]he prohibition against collateral attack extends to claims that false swearing or fraud of a party to the judgment renders it voidable.” In re Cantu, 961 S.W.2d 482, 486 (Tex. App.—Corpus Christi 1997, no writ) (citing Glenn v. Dallas Cnty. Bois D’Arc Island Levee Dist., 268 S.W. 452 (Tex. 1925); Kaphan v. Fid. & Deposit Co. of Md., 564 S.W.2d 459, 462 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.)).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-01151-CV - 12/14/11
RELATED LEGAL CONCEPTS: res judicata and collateral estoppel 

Is it res judicata? (lawyer lingo)

Yes, it's Latin, and it is an affirmative defense that may thwart a (second) lawsuit.  
Res judicata prevents parties and those in privity with them from relitigating a case that a competent tribunal has adjudicated to finality. Ingersoll–Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999).

Res judicata bars claims or defenses that could have been litigated in the earlier suit but were not. Id. at 206–07. “The doctrine is intended to prevent causes of action from being split, thus curbing vexatious litigation and promoting judicial economy.” Id. at 207.

Under the doctrine of res judicata, a party is precluded from litigating a claim in a pending action if: (1) in a previous action, a court of competent jurisdiction rendered a final determination on the merits of a claim; (2) the parties that litigated the prior claim are identical to or in privity with the parties litigating the pending claim; and (3) the pending claim (a) is identical to the prior claim or (b) arises out of the same subject matter as the prior claim and could have been litigated in the previous action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).
SOURCE: HOUSTON COURT OF APPEALS - 01-10-01151-CV - 12/14/11

Mandamus Practice 101 - Petition requirements ignored

It is almost impossible for pro-se (pro-per) litigants to be successful in Texas Courts of Appeals. The sole case decided by the First Court of Appeals last Friday is no exception. But at least the author of the panel opinion went to the trouble of explaining what was wrong with the mandamus petition. That cannot be taken for granted, as cases are on occasion disposed of by what are essentially one- or two-liner "opinions" that amount to nothing more than a declaratory sentence announcing denial.

Relator, Charles W. Bishop, II, has filed a pro se petition for writ of mandamus in this court. See Tex. Gov’t Code § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. Relator complains that respondent* has not ruled on his "Declaration for Entry of Default."

Mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010); In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) ("We grant the extraordinary relief of mandamus only when the trial court has clearly abused its discretion and the relator lacks an adequate appellate remedy."). We have previously stated, "A party seeking mandamus relief must show that (1) the trial court had a legal duty to act, (2) there was a demand for performance, and (3) there was a refusal to act." In re Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979)).

When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling on that motion is a ministerial act, and mandamus may issue to compel the trial court to act. See Safety–Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding); see also Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992).

To establish that the trial court refused to rule on a pending motion, the relator must provide a record demonstrating that he asked the trial court for a ruling on his motion and that the trial court refused to rule. See Barnes v. State, 832 S.W. 2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); see also Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). The trial court is not required to consider a motion unless it is called to its attention. Smith, 263 S.W.3d at 96. The mandamus record must show that the motion was presented to the trial court and that the trial court refused to rule on it. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App—Amarillo 2001, orig. proceeding).

According to relator, he filed his "Declaration for Entry of Default" in the trial court on September 21, 2011. He contends that he sent a letter to the trial court on November 1, 2011 requesting that it rule on his Declaration for Entry of Default. Relator also asserts that on November 14, 2011 he filed his "Motion Objecting to the Court’s Refusal to Rule." Relator attaches copies of these documents to his mandamus petition but does not provide a file-stamped copy of these documents or any other documentation to show that his Declaration for Entry of Default, or the other documents appended to his mandamus petition, have been filed and are pending before the trial court.

Nor does the record show that the trial court has actually been made aware of the Declaration for Entry of Default or refused to rule on it, as relator claims. See In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see also Smith, 263 S.W.3d at 96; Barnes, 832 S.W. 2d at 426. Lastly, we note that relator’s Declaration for Entry of Default does not request the trial court to render a default judgment or to grant any other affirmative relief to relator; rather, it simply contains a statement or "declaration" by relator that the defendants in the trial court have failed to answer or defend against his suit.

All petitioners for writ of mandamus, including those acting pro se, must furnish a record sufficient to support the claim for mandamus relief. See Barnes, 832 S.W.2d at 426; see also Walker, 827 S.W.2d at 837. Here, relator has not provided us with a record showing that the trial court received a motion requesting relief, was made aware of it, was asked to rule on it, and refused to rule. See Davidson, 153 S.W.3d at 491; see also Barnes, 832 S.W.2d at 426. Accordingly, we deny the petition for writ of mandamus. See Tex. R. App. P. 52.8(a).

Laura Carter Higley


Panel consists of Justices Keyes, Higley, and Massengale.

01-11-01048-CV - 12/16/11