FREEDOM TO CONTRACT AND ANTI-TRUST RESTRICTIONS UNDER STATE LAW
Wednesday, February 27, 2013
FREEDOM TO CONTRACT AND ANTI-TRUST RESTRICTIONS UNDER STATE LAW
Tricky issue. Nonbreaching party has choices, but which is the best choice under the circumstances? Better consult an attorney promptly, lest the wrong choice is made unwittingly, unbenownst of the legal consequences in the event of subsequent litigation.
REPUDIATION OF CONTRACT - EXCUSE DEFENSE - PRIOR BREACH OTHER PARTY - ANTICIPATORY BREACH
Tuesday, February 26, 2013
Oral modification of contract or novation barred if original contract falls under the statute of frauds
STATUTE OF FRAUDS CONTINUES TO APPLY IF ORIGINAL CONTRACT WAS SUBJECT TO IT, THUS PRECLUDING VERBAL MODIFICATION OF TERMS
There can be no oral modification of an agreement that is required to be in writing under the statute of frauds. Columbia/HCA of Houston, Inc. v. Tea Cake French Bakery & Tea Room, 8 S.W.3d 18, 21 (Tex. App.-Houston [14th Dist.] 1999, pet. denied).
Monday, February 25, 2013
SOURCE: HOUSTON COURT OF APPEALS - 01-11-01034-CV – 2/21/2013
Mutual mistake as a defense – unilateral mistake likely won’t work, not to mention second thoughts about signing the contract
The defense is not available to undo a contract upon second thoughts about the wisdom of signing it, or after-the-fact regrets by one party.
Friday, February 22, 2013
Winchek v. American Express: Proof requirements for Breach of contract (breach of credit card agreement)
Winchek v. Amex is a much-cited case for the elements of a breach of contract claim under Texas law, and the elements of contract formation. The case involved a credit card account, but the articulation of the relevant law applies generally, whether contracts are signed or not. American Express cardmember agreements typically have a Utah choice-of-law provision, but that rarely becomes an issue in debt collection litigation in Texas courts, which are routinely resolved under Texas law.
Wednesday, February 20, 2013
Eviction (forcible detainer) vs. title dispute – Distinction has jurisdictional ramifications
A justice court in the precinct in which real property is located has jurisdiction over a forcible detainer suit but is expressly deprived of jurisdiction to determine or adjudicate title to land. See TEX. PROP. CODE ANN. § 24.004 (West 2000); TEX. GOV'T CODE ANN. § 27.031(a)(2),(b)(4) (West Supp. 2011). A forcible detainer suit may be appealed to the county court, in which trial is de novo. TEX. R. CIV. P. 749; Hong Kong, 229 S.W.3d at 433-34. A county court's appellate jurisdiction is confined to the limits of the justice court. Hong Kong, 229 S.W.3d at 433-34. Thus, a county court that conducts a de novo review of a forcible detainer action is restricted to the jurisdictional limits that existed in the justice court, regardless of other statutory grants of jurisdiction to the county court. Black v. Washington Mut. Bank, 318 S.W.3d 414, 417 (Tex. App.-Houston [1st Dist.] 2010, pet. dism'd w.o.j.).
Friday, February 15, 2013
ATTORNEY’S FEES ON BREACH-OF-CONTRACT CLAIM
A party may recover reasonable attorney's fees if its claim is for "an oral or written contract." TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (Vernon 2008).
AMOUNT TO BE REASONABLE
Thursday, February 7, 2013
Is a complaint about violation of a patient's medical privacy a med-mal claim? A new twist on scope of HCLC in Texas
So far so good; the provision mandating dismissal when an expert report is not timely filed is by now also pretty widely known, and has wrought havoc in the med-mal legal niche (at least on the plaintiffs' side).
But what is a health care liability claim? How far does the definition reach? There has been much litigation over that issue, and many cases have reached the Texas Supreme Court, usually with predictible results.
But here is a new twist: What if the state sues a doctor for violating a patient's privacy by releasing or discarding protected medical records carelessly? Is that an HCLC subject to the expert report requirement - and thus dismissal - when no report is filed?
Justices of the Corpus Christi Court of Appeals just had the opportunity to weigh in on the matter.
OPIONION EXCERPTS FROM HOLZMAN V. STATE OF TEXAS
SOURCE: CORPUS CHRISTI COURT OF APPEALS - 13-11-00168-CV - 1/31/2013
But that's not all.One justice dissented …
Monday, February 4, 2013
Under the ecclesiastical abstention doctrine courts refrain from injecting themselves into issues of internal governance of churches and religious congregations. The doctrine can be raised as a defense and is jurisdictional in nature. Accordingly, it can be asserted in a plea to the jurisdiction.
ECCLESIASTICAL ABSTENTION DOCTRINE
"The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern." McClure v. Salvation Army, 460 F.2d 553, 558-59 (5th Cir. 1972); see also Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S. Ct. 694, 706 (2012) ("According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions."); Dean, 994 S.W.2d at 395 (issue of a pastor's ouster is ecclesiastical in nature); Tran v. Fiorenza, 934 S.W.2d 740, 743 (Tex. App.-Houston [1st Dist.] 1996, no writ) (relationships between organized church and its ministers is church's lifeblood). "[C]ourts should not involve themselves in matters relating to the hiring, firing, discipline, or administration of clergy." Lacy v. Bassett, 132 S.W.3d 119, 123 (Tex. App.-Houston [14th Dist.] 2004, no pet.).
Instead of suing the church for its disciplinary actions, which would have provided the church with ecclesiastical immunity, the Williamses sued members of the church conducting their disciplinary trial and appeal. Ecclesiastical immunity would be an empty protection if a disgruntled member, denied the chance to sue the religious body, sued instead the members of the religious body who disciplined him. If disciplined members were able to sue the members of the church, as opposed to the church itself, there would be an inappropriate chilling effect on the ability of churches to discipline their members.