ADEQUACY - or otherwise - OF PROPERTY DESCRIPTION TO SATISFY THE STATUTE OF FRAUDS
Thursday, May 24, 2012
Statute of Frauds as to real estate transactions: What kind of description of the property is sufficient?
Wednesday, May 23, 2012
As the Texas Supreme Court has explained, “[m]odern rules of procedure obviate the need to give parties two bites at the apple … to ensure that a claim receives full adjudication.” Barr, 837 S.W.2d at 631.
PS: If you came to this page through a search enging, but were looking for the other one-bite rule, here is a link: http://www.johnneeselaw.com/news/texas-dog-laws-understanding-the-one-bite-rule
Tuesday, May 22, 2012
In support of this argument, Morton cites to a line of cases from the Fifth Court of Appeals analyzing the similar statutory remedy of "restoration of consideration" under the DTPA. These cases hold that the DTPA remedy of "restoration of consideration" is "a statutory recognition" of the equitable remedy of rescission and restitution, as well as the common-law limitation that the complaining party "surrender any benefits received" before electing to avoid the contract and "recover that [which] he parted with." Smith v. Kinslow, 598 S.W.2d 910, 915 (Tex. App.-Dallas 1980, no writ); see also TEX. BUS. & COM. CODE ANN. § 17.50(b)(3) ("In a suit filed under this section, each consumer who prevails may obtain . . . orders necessary to restore to any party to the suit any money or property, real or personal, which may have been acquired in violation of this subchapter."). In other words, the Fifth Court of Appeals has held that the statutory remedy of "restoration of consideration" under the DTPA incorporates the common-law notice and tender requirements applicable to the equitable remedy of rescission and restitution. See, e.g., Nix, 681 S.W.2d at 835-36 (purchaser was not entitled to "restoration of consideration" under DTPA because limitation on remedy of rescission requires and record contained no evidence of "tender, or offer of tender" of value of benefits received from using the product approximately one month); see also Chubb Lloyds Ins. Co. of Tex. v. Andrew's Restoration, Inc., 323 S.W.3d 564, 580-81 (Tex. App.-Dallas 2010, pet. granted) (consumer was not entitled to "restoration of consideration" under DTPA because consumer failed to show that he complied with prerequisite of surrendering benefits received from other parties), aff'd in part, rev'd in part, —S.W.3d—, No. 10-0995, 2012 WL 1370851 (Tex. Apr. 20, 2012). Cf. Schenck v. Ebby Halliday Real Estate, Inc., 803 S.W.2d 361, 366-67 (Tex. App.-Tyler 1990, no writ) (jury's finding that consumer acted negligently or wrongfully constituted equitable bar to "restoration of consideration" under DTPA under equitable doctrine requiring claimant seeking equitable relief to have "unclean hands"). Morton argues that these cases from the Fifth Court of Appeals should guide our analysis of the similar statutory remedy of "cancellation and rescission" under subchapter D of chapter 5 of the Texas Property Code.
The Texas Supreme Court recently considered the position taken by the Fifth Court of Appeals and rejected it in Cruz v. Andrews Restoration, Inc., —S.W.3d—, No. 10-0995, 2012 WL 1370851, at *7-8 (Tex. Apr. 20, 2012). Reiterating its prior holding from Smith v. Baldwin, 611 S.W.2d 611, 616-17 (Tex. 1980), in which the court stated that "[t]he DTPA does not represent a codification of the common law" and was intended "to provide consumers a cause of action for deceptive trade practices without the burden of proof and numerous defenses encountered in a common law fraud or breach of warranty suit," the court held in Cruz: "[C]ompliance with [the] requirements [of notice and tender] is unnecessary under the DTPA. Instead, we adopt the Restatement approach and conclude that notice and restitution or a tender of restitution are not prerequisites to a remedy under [the DTPA] . . . ." Cruz, 2012 WL 1370851, at *8. This holding weighs against a conclusion that the statutory remedy of cancellation and rescission under the Texas Property Code incorporates the same common-law limitations.
With respect to the history and purpose of subchapter D of chapter 5, the following explanation illuminates our discussion:
In 1995, the Legislature amended chapter 5 of the Texas Property Code to address serious abuses in the acquisition of homes in the colonias. The colonias are substandard, generally impoverished, rural subdivisions that typically lack basic utilities and other infrastructure. Concentrated along the Texas border with Mexico, colonia residents almost always acquire residential lots through executory contracts called "contracts for deed" or "contracts for sale" . . . .
The Legislature found that purchasers had little legal protection under the contract-for-deed financing arrangement and no statutory right to critical information about the colonia property being purchased. Sellers have sold individual lots to two or more purchasers, sold lots without written contracts, and placed liens on lots subsequent to the sale without informing the purchasers and colonia residents. Colonia residents also complain that sellers frequently misrepresent the availability of water, sewer service, and other utilities, and that the residents are often not informed when property being sold lies in a flood plain or is otherwise unsuitable for habitation.
Although the Legislature considered a prohibition of contract-for-deed conveyances to end these abuses, it determined that many residents building homes in these areas need this method of financing because they do not have access to traditional mortgage financing. The contract-for-deed arrangement, however, allows low-income persons to purchase property and build homes on the property.
To address the fraudulent and abusive conduct, the Legislature amended the statute in 2001, substantially increasing the monetary penalties and applying the protections statewide.
Flores, 185 S.W.3d at 434-35 (Wainwright, J., concurring) (emphasis added, citations omitted). Subchapter D, therefore, provided new grounds to rescind a contract for deed that previously had been unavailable to purchasers at risk of being misled by incomplete disclosures regarding the nature of the purchased property. Accordingly, no common-law remedies were codified by the Legislature's enactment of subchapter D. In fact, to read the statute as incorporating common-law limitations into the statutory remedy would frustrate the very purpose of these sections, which were designed to "address the fraudulent and abusive conduct" of sellers. See id. at 435 (Wainwright, J. concurring). The Legislature could have included express limitations on the remedy of cancellation and rescission for these new grounds, but did not do so. We overrule Morton's Issue 4.
B. Equitable Defenses of Quasi-Estoppel and Laches
Morton argues in Issues 5-8 that the equitable defenses of quasi-estoppel and laches apply to the statutory remedy of cancellation and rescission, and that he established such defenses.
Common-law defenses may not be used to defeat claims brought under a statute that was not designed to be a codification of the common law.
SOURCE: FOURTEENTH COURT OF APPEALS - No. 14-11-00126-CV - 5/17/12 (substituted opinion)
SOURCE: FOURTEENTH COURT OF APPEALS - HOUSTON - No. 14-11-00126-CV - 5/17/12 (substituted opinion)
Opposing party may waive complaint about failure to segregate recoverable from unrecoverable fees by failing to object in a timely fashion
Because an award of attorney's fees must be authorized by statute or contract, a party presenting more than one claim in a single cause must segregate attorney's fees between claims for which attorney's fees are or are not recoverable. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006).
However, if no one objects to the fact that the attorney's fees are not segregated as to specific claims, the objection is waived. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (citing Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988)); Pitts & Collard, L.L.P. v. Schechter, —S.W.3d—, No. 01-08-00969-CV, 2011 WL 6938515, at *14 (Tex. App.-Houston [1st Dist.] Dec. 29, 2011, no pet. h.) (objection to request for attorney's fees "must be made before the trial court renders judgment"). Morton failed to object at the trial court that the Nguyens should be required to segregate their request for attorney's fees, and such failure waived this issue for appellate review. See Red Rock Props. 2005, Ltd. v. Chase Home Fin., L.L.C., No. 14-08-00352-CV, 2009 WL 1795037, at *6-7 (Tex. App.-Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.) (objection that attorney's fees were not segregated was not preserved in trial court); Fortenberry v. Cavanaugh, No. 03-07-00310-CV, 2008 WL 4997568, at *11-12 (Tex. App.-Austin Nov. 26, 2008, pet. denied) (mem. op.) (same); see also TEX. R. APP. P. 33.1(a)(1). We overrule Morton's Issue 16.
SOURCE: FOURTEENTH COURT OF APPEALS - HOUSTON - No. 14-11-00126-CV - 5/17/12 (substituted opinion)
EXCEPTION TO SEGREGATION REQUIREMENT IN CASE OF MULTIPLE PARTIES REPRESENTED BY SAME ATTORNEY
"When a lawsuit involves multiple claims or parties, the proponent of attorney's fees must segregate recoverable fees from those incurred by parties or on claims for which fees are not recoverable." Clearview Props., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 143 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) (citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006)). Attorney's fees that relate solely to a claim for which fees are unrecoverable must be segregated. Chapa, 212 S.W.3d at 313. The Supreme Court of Texas has held that attorney's fees are recoverable only as provided by contract or statute, and it "eliminated the exception for fees incurred solely on separate but arguably intertwined claims." Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007) (citing Chapa, 212 S.W.3d at 313). But the Supreme Court did not require that all fees be segregated even when incurred by co-defendants jointly represented by the same counsel and when such fees are incurred as a result of the same discrete tasks and work.
SOURCE: HOUSTON COURT OF APPEALS - 01-13-00855-CV – 12/30/2014
Saturday, May 19, 2012
A failure of consideration may be either partial or total. A total failure of consideration is ground for cancellation or recission of the contract. See Food Mach. Corp. v. Moon, 165 S.W.2d 773, 775 (Tex. Civ. App.-Amarillo 1942, no writ).
A partial failure of consideration will not invalidate the contract and prevent recovery thereon, but is a defense pro tanto. See Huff v. Speer, 554 S.W.2d 259, 263 (Tex. Civ. App.-Houston [1st Dist.] 1977, writ ref'd n.r.e.).
ADDITIONAL CASELAW SNIP ON CONSIDERATION AND FAILURE OF CONSIDERATION
A promissory note is issued for "value" if it is issued as payment of, or as security for, an antecedent claim against any person, whether or not the claim is due. Id.; see also Ward v. Vaughn, 298 S.W.2d 862, 866-67 (Tex. Civ. App.-Galveston 1957, no writ) (explaining that forbearance of antecedent debt was sufficient consideration for note).
Failure of consideration occurs when, "after an agreement has been reached, the promised performance fails." Bassett v. American Nat'l Bank, 145 S.W.3d 692, 696 (Tex. App.-Fort Worth 2004, no pet.) (holding that failure to pay amount promised by note constituted failure of consideration).
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