Saturday, May 19, 2012
SOURCE: DALLAS COURT OF APPEALS - 05-10-01161-CV – 5/16/12
Friday, May 18, 2012
Tim Cole Act Compensation Claim for Innocents who ended up in jail as a result of wrongful conviction - In re Allen (Tex. 2012)
In re Billy Frederick Allen (Tex. May 18, 2012) (State Comptroller ordered to pay compensation to exonerated former inmate, who was wrongfully convicted and imprisoned)
EXCERPT FROM PRIOR TEXAS SUPREME COURT OPINION
[No] Legal standing to complain: Texas Supreme Court nixes citizen's suit to challenge balloting process that favors political parties as unconstitutional
SUPREMES SAY WOULD-BE ELECTION-SYSTEM REFORMER WHO TOOK A STAND AGAINST PARTISAN BALLOTING DID NOT HAVE STANDING
Honorable Hope Andrade v. [Average Joe tax-paying Citizen] Don Veneable (Tex. May 18, 2012)
Don Venable seeks to enjoin Dallas County from identifying candidates’ political party affiliations and providing a “straight-party” option on general election ballots. We must decide whether Venable has standing to pursue these claims. Because Venable has no interest distinct from that of the general public and has not established taxpayer standing under Williams v. Lara, 52 S.W.3d 171, 179 (Tex. 2001), we reverse in part the court of appeals’ judgment and render judgment dismissing Venable’s claims against Secretary of State Hope Andrade.
SOURCE: TEXAS SUPREME COURT - Honorable Hope Andrade v. Don Veneable, No. 11-0008 (Tex. May 18, 2012) Petition for Review from Dallas County; 5th district (05‑10‑00303‑CV, ___ SW3d ___, 11‑15‑10)
Thursday, May 17, 2012
CAN YOU SUE A CREDITOR FOR PREDATORY LENDING?
ELEMENTS OF Wrongful Foreclosure UNDER TEXAS LAW
|Wrongful Foreclosure Claim - Dismissal of Claim Reversed by the Fifth Circuit in 2015|
Wrongful Foreclosure - One more case from a federal district court
Friday, May 11, 2012
CONDEMNATION OF LAND PROCEDURE IN TEXAS
Under the Texas Constitution, governmental entities are required to adequately compensate landowners when real property is taken for public use. Tex. Const. art. I, § 17; Cnty. of Bexar v. Santikos, 144 S.W.3d 455, 459 (Tex. 2004).
SOURCE: DALLAS COURT OF APPEALS - 05-10-00601-CV – 5/9/2012
Failure to state a claim / cause of action as a basis for dismissal in the absence of a specific rule comparable to the federal rule
THE TEXAS WAY TO CHALLENGE PLEADINGS & PROCURE DISMISSAL: SPECIAL EXCEPTION
Wednesday, May 9, 2012
TEXAS UNIFORM FRAUDULENT TRANSFER ACT (TUFTA)
TUFTA section 24.005(a) provides that a transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or within a reasonable time after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation (1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: (a) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
(b) intended to incur, or believed, or reasonably should have believed the debtor would incur, debts beyond the debtor's ability to pay as they became due. Tex. Bus. & Com. Code Ann § 24.005(a)(1), (2) (West 2009).
The judgment creditor has the burden to prove the fraudulent transfer by a preponderance of the evidence. Walker v. Anderson, 232 S.W.3d 899, 913 (Tex. App.--Dallas 2007, no pet.); G.M Houser, Inc. v. Rodgers, 204 S.W.3d 836, 842 (Tex. App.--Dallas 2006, no pet.). It is the creditor's burden to offer evidence addressing the elements of fraudulent transfer as to each transfer. Walker, 232 S.W.3d at 913; G.M Houser, 204 S.W.3d at 843.
“Ordinarily, whether the transfer was made with the actual intent to defraud creditors is a fact question.” Walker, 232 S.W.3d at 914. Direct proof of a fraudulent intent is often unavailable, so circumstantial evidence may be used to prove fraudulent intent. Id.; G.M. Houser, 204 S.W.3d at 842; Mladenka v. Mladenka, 130 S.W.3d 397, 405 (Tex. App.--Houston [14th Dist.] 2004, no pet.). TUFTA section 24.005(b) sets out a non-exclusive list of “badges of fraud” to be considered in determining whether a transfer was made with actual intent to defraud. Walker, 232 S.W.3d at 914; G.M. Houser, 204 S.W.3d at 842. They include:
(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the property transferred after the transfer;
(3) the transfer or obligation was concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(5) the transfer was of substantially all the debtor's assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and
(11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
Tex. Bus. & Com. Code Ann § 24.005(b). Under TUFTA, “reasonably equivalent value” is defined as including, “without limitation, a transfer or obligation that is within the range of values for which the transferor would have sold the assets in an arm's length transaction.” Id. § 24.004. Value is determined as of the date of the transfer. Mladenka, 130 S.W.3d at 407.
An individual badge of fraud is not conclusive but a concurrence of many badges of fraud in the same case can make a strong case of fraud. See G.M. Houser, 204 S.W.3d at 843; see also Tex. Sand Co. v. Shield, 381 S.W.2d 48, 53 (Tex. 1964). While evidence of a transfer to an insider is one factor to consider in determining actual intent to defraud, that fact alone does not support a conclusion the transfer constitutes a fraudulent transfer. See G.M. Houser, 204 S.W.3d at 843. Fraudulent intent is deduced from facts and circumstances that “the law considers as mere badges of fraud and not fraud per se,” so “these must be submitted to the trier of fact, which draws the inference as to the fairness or fraudulent characterization of the transaction.” Flores v. Robinson Roofing & Const. Co., Inc., 161 S.W.3d 750, 755 (Tex. App.--Fort Worth 2005, pet. denied).
SOURCE: DALLAS COURT OF APPEALS - 05-10-01510-CV - 5/8/2012
Doyle did not present any evidence contesting the value of KBI's Ford F-150, Dodge Dakota, or its computer, office furniture, and equipment. She also failed to present evidence regarding the value, if any, of KBI's goodwill, or that any goodwill of KBI was transferred to Elegant without reasonably equivalent value in exchange for the transfer or obligation. As the fact finder, the trial court was the judge of the weight and credibility of Bains's testimony, so we defer to the trial court's determination. After reviewing the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support the trial court's findings that Bains did not conspire with Elegant or engage in any fraudulent transfer to Elegant. We overrule Doyle's first issue.
Suit to enforce guaranty agreement upon default on promissory note or other contract by maker or obligor
NATURE OF GUARANTY AND ELEMENTS OF CLAIM BASED ON IT
WHAT IS A GUARANTY AGREEMENT?
“A guaranty creates a secondary obligation whereby the guarantor promises to answer for the debt of another and may be called upon to perform once the primary obligor has failed to perform.” Dann v. Team Bank, 788 S.W.2d 182, 183 (Tex. App.-Dallas 1990, no writ).
ELEMENTS OF PROOF
To recover under a guaranty, a claimant must prove (1) the existence and ownership of the guaranty agreement, (2) the terms of the underlying contract by the holder, (3) the occurrence of the conditions upon which liability is based, and (4) the guarantor's failure or refusal to perform the promise. Marshall v. Ford Motor Co., 878 S.W.2d 629, 631 (Tex. App.-Dallas 1994, no writ).
SOURCE: DALLAS COURT OF APPEALS - 05-10-00693-CV - 5/8/2012
ENFORCEMENT OF JUDGMENTS:
Is the Defendant entitled to a hearing when the Plaintiff requests that the Court sign a Turnover Order?
Houston Court of Appeals says 'No'.
However, due process does not require that a complainant who has been granted an opportunity to be heard and has had his day in court should, after a judgment has been rendered against him, have further notice and hearing before supplemental proceedings are taken to reach his property in satisfaction of the judgment against him. See Endicott–Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 288, 45 S. Ct. 61, 62–63 (1924); In re Guardianship of Bays, 355 S.W.3d 715, 720 (Tex. App.—Fort Worth 2011, no pet.).
The turnover statute itself does not require notice and a hearing. See TEX. CIV. PRAC. & REM. CODE ANN. § 31.002; Sivley v. Sivley, 972 S.W.2d 850, 861 (Tex. App.—Tyler 1998, no pet.). In the absence of a statutory requirement, it is not essential that a complainant be given notice before the issuance of an execution against his tangible property; after the rendition of the judgment, he must take notice of what will follow, no further notice being necessary to advance justice. Endicott–Johnson Corp, 266 U.S. at 288, 45 S. Ct. at 62–63; In re Guardianship of Bays, 355 S.W.3d at 720.
We overrule issues 25 and 26.
SOURCE: HOUSTON COURT OF APPEALS - 01-09-00545-CV - 5/3/12
On August 10, 2009, Seeman moved for post-judgment relief under the Texas Turnover Statute, and apparently, a hearing was held on his motion on August 14, 2009. In issues 25 and 26, Cantu complains that he did not receive notice of the hearing and that the turnover was erroneously granted ex parte.
Res judicata defense requires proof of the prior judgment in suit between the same parties or their privies
RES JUDICATA UNDER TEXAS AND FEDERAL LAW
The supreme court has admonished that, “[c]ertainly in courts of law, a claimant generally cannot pursue one remedy to an unfavorable conclusion and then pursue the same remedy in another proceeding before the same or a different tribunal.” Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 86 (Tex. 2008). “Res judicata bars the relitigation of claims that have been finally adjudicated or that could have been litigated in the prior action.” Id. (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992)).
ELEMENTS OF RES JUDICATA UNDER TEXAS LAW
For res judicata to apply under Texas state law, the following elements must be present: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the same parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). Thus, a party may not pursue a claim determined by the final judgment of a court of competent jurisdiction in a prior suit as a ground of recovery in a later suit against the same parties. Tex. Water Rights Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771 (Tex. 1979).
Because [party] argues that the issues here were first decided in a federal tribunal, federal law controls the determination of whether res judicata will bar the later state court proceeding. See Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex. 1990).
ELEMENTS OF RES JUDICATA UNDER FEDERAL LAW
Similar to Texas law, under federal law, res judicata will apply if: (1) the parties are identical in both suits; (2) the prior judgment is rendered by a court of competent jurisdiction; (3) there is a final judgment on the merits; and (4) the same cause of action is involved in both cases. Id.
SOURCE: HOUSTON COURT OF APPEALS - 01-11-00096-CV - 5/9/12
[Appellant] has not brought forth a prior final judgment on the merits of any issue that is the subject of the underlying litigation. Thus, he failed to raise a fact issue on res judicata. We need not reach [Appellee's] other arguments about why res judicata does not apply.
THE DOCTRINE OF JUDICIAL ESTOPPEL IN TEXAS COURTS
The doctrine of 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) (quoting 2 Roy W. McDonald & Elaine G. Carlson, Texas Civil Practice § 9.51 at 576 (2d ed. 2003)).
RATIONALE FOR THE DOCTRINE, JURISPRUDENTIAL PURPOSE
The doctrine is not strictly speaking estoppel, but rather is a rule of procedure based on justice and sound public policy. Id.; Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 295 (1956). Its essential function “is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage.” Pleasant Glade Assembly of God, 264 S.W.3d at 6; Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 650 (Tex. App.—El Paso 1997, writ denied); Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003) (noting basis for estoppel is the assertion of a position clearly inconsistent with a previous position accepted by the court); Tenneco Chems., Inc. v. William T. Burnett & Co., 691 F.2d 658, 665 (4th Cir.1982) (finding “the determinative factor is whether the appellant intentionally misled the court to gain an unfair advantage”).
WHEN DOES IT APPLY? - ELEMENTS OF JUDICIAL ESTOPPEL
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 - 01-10-01016-CV - 5/2/12
The species of judicial estoppel alleged in this case is “based on the principle that a party should not be permitted to abuse the judicial process by obtaining one recovery based first on affirming a certain state of facts, and then another recovery based on denying the same set of facts.” Metroflight, Inc. v. Shaffer, 581 S.W.2d 704, 709 (Tex. Civ. App.—Dallas 1979, writ ref’d n.r.e).
Because the doctrines of double recovery and judicial estoppel do not entitle Ormiston and Allied to judgment as a matter of law, the trial court erred in granting a directed verdict in their favor. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.
LEGAL TERMS: judicial estoppel, equitable estoppel