Friday, March 26, 2010
RES JUDICATA EFFECT OF DIVORCE DECREE
Res judicata is an affirmative defense. Tex. R. Civ. P. 94. The party claiming the defense must prove: (1) the claims asserted in this case arise out of the same subject matter of the previous suit, (2) the claims asserted in this suit were litigated or could have been litigated through the exercise of due diligence in the previous suit, (3) there is a final judgment in the prior lawsuit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). We take the transactional approach to res judicata. Id. Under that approach, the subject matter of a suit is based on the factual matter that make up the gist of the complaint. Id. at 630. Any claim that arises out of those facts should be litigated in the same lawsuit. Id. Res judicata applies to the property division in a final divorce decree, just as it does to any other final judgment, barring subsequent collateral attack even if the divorce decree improperly divided the property. Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990).
SOURCE: De Acetis v. Whitley (Tex.App.- Houston [14th.] Mar. 25, 2010) (real estate dispute stemming from divorce, enforcement of property division by contempt, res judicata based on divorce proceeding)
Tuesday, March 23, 2010
EXPRESS CONTRACT AND QUASI-CONTRACTUAL THEORIES OF RECOVERY INCOMPATIBLE AND MUTUALLY EXCLUSIVE
[R]ecovery under the theory of quantum meruit is prohibited if an express contract covers the services or materials for which the claimant seeks recovery. Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 402-03 (Tex. App.-Dallas 2006, no pet. ).
Here, the jury found the parties had an agreement that covered the services and materials in this case. In its responsive brief, Builders Carpet asserts that Truly v. Austin, 744 S.W.2d 934, 937 (Tex. 1988), provides for an exception that allows “a breaching plaintiff to recover in quantum meruit” in building or construction contracts. Here, however, the jury found Builders Carpet did not breach the contract; consequently, the exception does not apply. Because Builders Carpet cannot recover under a quantum meruit theory as a matter of law, the jury's answers to those questions were immaterial and should have been disregarded. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994) (“A question is immaterial when it should not have been submitted, or when it was properly submitted but has been rendered immaterial by other findings.”); Basic Cap. Mgmt. v. Dynex Comm'l, Inc., 254 S.W.3d 508, 513 (Tex. App.-Dallas 2008, pet. granted ) (same).
Generally speaking, when a valid, express contract covers the subject matter of the parties' dispute, there can be no recovery under a quasi-contract theory, such as unjust enrichment. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); DeClaire v. G & B Mcintosh Family Ltd. P'ship, 260 S.W.3d 34, 49 (Tex. App.-Houston [1st Dist.] 2008, no pet.). This is because parties should be bound by their express agreements, and when a valid agreement already addresses the matter, recovery under an equitable theory is generally inconsistent with the express terms of the agreement. Conoco, 52 S.W.3d at 684; see also Edwards v. Mid- Continent Office Distribs., L.P., 252 S.W.3d 833, 837 (Tex. App.-Dallas 2008, pet. denied) (“The doctrine of unjust enrichment applies the principles of restitution to disputes that are not governed by a contract between the parties.”).
The Texas Supreme Court, however, has recognized an exception to this rule when overpayment was made under a valid contract. Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 469-70 (Tex. 1998).
SOURCE: 05-08-01149-CV (Dallas Court of Appeals) (3/16/10)
No Statutory Attorney's Fees under the Declaratory Judgments Act (DJA) in the absence of proper declaratory judgment claim independent of other cause of action
A party cannot use the Uniform Declaratory Judgments Act to obtain an otherwise impermissible attorney's fee. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). It is an abuse of discretion to award attorney's fees under the Uniform Declaratory Judgments Act when the statute is relied upon solely as a vehicle to recover attorney's fees. Tex. State Bd. of Plumbing Exam'rs v. Assoc. Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d 750, 753 (Tex. App.-Austin 2000, pet. dism'd); see also City of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 392 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (party may not use declaratory judgment action to seek same relief afforded under another of its causes of action to obtain otherwise impermissible attorney's fees). In a declaratory judgment action, a “court may award costs and reasonable and necessary attorney's fees as are equitable and just.” Id. at § 37.009.
SOURCE: 05-08-01715-CV (Dallas Court of Appeals) (3/18/10)
A plaintiff who files a health care liability claim must file an expert report within 120 days of filing suit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009). The only way to extend the 120-day deadline for filing the report is by written agreement of the parties. Id. Section 74.001(a)(13) defines a health care liability claim as a "cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract." Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon 2005). An expert report must provide the expert's opinion as to the applicable standard of care and how the care provided failed to meet the standard of care and explain the relationship between that failure and the claimed injury. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) . If a claimant fails to timely file an expert report, the trial court shall dismiss the claim with respect to the physician or health care provider with prejudice to the refiling of the claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).
A health care liability claim cannot be recast as another cause of action in an attempt to avoid the expert report requirement. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). We look to the underlying nature of a claim to determine whether it constitutes a health care liability claim. Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex. App.-Dallas 2005, no pet.). If an act or omission complained of is an inseparable part of the rendition of health care services, the claim is a health care liability claim. Id. Whether a claim is a health care liability claim under section 74.351 is a question of law and is reviewed de novo. Id.
In her amended petition, [Plaintiff] asserted claims for medical malpractice, fraudulent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, violations of the Texas Health and Safety Code, assault and battery, and civil rights violations. The focal point of each of her claims is her treatment while hospitalized at Green Oaks. She complains of Dr. Carson's decision to administer Haldol against her wishes, the manner in which her concerns over the medication were or were not conveyed to Dr. Carson, the threat of physical violence if she refused the medication, the lack of obtaining prior consent, the delay in her treatment for severe side effects suffered as a result of the Haldol, and her inability to obtain something to write with to work on her religious exercises. The essence of each of [Plainitiff's] claims is negligence in the rendition of health care services. The fact that some of the alleged acts were done knowingly or indifferently does not change the nature of the claim. See Lee v. Boothe, 235 S.W.3d 448, 452 (Tex. App.-Dallas 2007, pet. denied).
[Plaintiff] also contends and we agree that a patient receiving either voluntary or involuntary mental health services has the right to refuse medication. However, administration of a psychoactive medication may be given without consent in certain circumstances. See Tex. Health & Safety Code Ann. § 576.025(a)(1) (Vernon Supp. 2009). She relies upon Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) to support her contention that medication given without consent constitutes a battery. The supreme court held, however, that failure to obtain consent does not automatically result in liability. Id. at 838. Expert testimony is still necessary to determine whether there were reasons for providing medical care without consent that do not breach any applicable standard of care. Id. Thus, [Plainitiff's] battery claim still necessitates an expert report.We conclude that each of [Plainitiff's] claims constitutes a health care liability claim. SOURCE: 05-08-01392-CV (Dallas Court of Appeals 3/22/2010)
Wednesday, March 17, 2010
MAKING A LEGALLY ENFORCEABLE DEAL: CONTRACT FORMATION EXPLAINED
In its simplest terms, a contract is established when proven by a preponderance of the evidence that an offer is accepted, accompanied by consideration. See Domingo v. Mitchell, 257 S.W.3d 34, 39-40 (Tex.App.-Amarillo 2008, pet. denied). To determine whether there was an offer and acceptance, and therefore a "meeting of the minds," courts use an objective standard, concerning what the parties did and said, not their subjective states of mind. See Komet v. Graves, 40 S.W.3d 596, 601 (Tex.App.-San Antonio 2001, no pet.).
"Meeting of the minds" describes the mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract. Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex.App.-Dallas 1999, pet. denied). Where this element is contested, as here, the determination of the existence of a contract becomes a question of fact. Hallmark v. Hand, 885 S.W.2d 471, 476-77 (Tex.App.-El Paso 1996, writ denied).
Further, parties may agree to the material terms of a contract but leave other matters open for later negotiation; it is only when an essential term is left open for future negotiation that no binding contract exists. Kelly v. Rio Grande Computerland Group, 128 S.W.3d 759, 766 (Tex.App.-El Paso 2004, no pet.); Komet v. Graves, 40 S.W.3d at 602.
Written contracts may also consist of multiple documents; City of Houston v. Clear Channel Outdoor, Inc., 233 S.W.3d 441, 445 (Tex.App.-Houston [14th Dist.] 2007, no pet.), and writings may be considered together if they pertain to the same transaction. City of Keller, 168 S.W.2d at 811. See Jones v. Kelley, 614 S.W.2d 95, 98 (Tex. 1981) (separate instruments executed at the same time, for the same purpose, and in the course of the same transaction are to be considered as one instrument and construed together).
In addition, if one party signs a contract, the other may accept by his or her acts, conduct, or acquiescence in the terms of the contract. DeClaire v. G. & B. McIntosh Family Ltd. P'ship, 260 S.W.3d 34, 44 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (collected cases cited therein).
SOURCE: 07-08-0344-CV - 3/12/2010 (Amarillo Court of Appeals)
EXISTENCE OF A VALID CONTRACT UNDER TEXAS LAW
The essential elements of a breach of contract claim are (1) the existence of a valid contract, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the plaintiff was damaged as a result of the breach. Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Parties form a binding contract when there is (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) consent by each party to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
For an agreement to be enforceable, there must be a meeting of the minds with respect to its subject matter and essential terms. Id. at 556. A “meeting of the minds” is a mutual understanding and assent to the expression of the parties’ agreement. See Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex. App.—Dallas 1999, pet. denied). To determine whether there was an offer and acceptance, and therefore a “meeting of the minds,” courts use an objective standard; they consider what the parties did and said, not the parties’ subjective states of mind. See Komet v. Graves, 40 S.W.3d 596, 601 (Tex. App.—San Antonio 2001, no pet.).
SOURCE: 14-08-01098-CV (3/16/10) (Fourteenth Court of Appeals in Downtown Houston Texas)
Sunday, March 14, 2010
Elements of Quantum Meruit Claim (alternative to breach-of-contract cause of action for services rendered)
Tuesday, March 2, 2010
CIVIL ACTION TO RESOLVE TITLE DISPUTE
A suit to quiet title, sometimes referred to as a suit to remove a cloud from title, is an equitable action that may be used to establish that an adverse party's claim to property is invalid or unenforceable. See Angell v. Bailey, 225 S.W.3d 834, 838 n.6 (Tex. App.-El Paso 2007, no pet.) ("A cloud on title exists when an outstanding claim or encumbrance is shown, which on its face, if valid, would affect or impair the title of the owner of the property."); see also In re Stroud Oil Props., Inc., 110 S.W.3d 18, 25-26 (Tex. App.-Waco 2002, orig. proceeding); Wright v. Matthews, 26 S.W.3d 575, 578 (Tex. App.-Beaumont 2000, pet. denied); Bell v. Ott, 606 S.W.2d 942, 952-53 (Tex. Civ. App.-Waco 1980, writ ref'd n.r.e.). "
A suit to quiet title or to remove a cloud can be maintained only by a person owning an interest in the property involved." Bell, 606 S.W.2d at 953. The plaintiff in a suit to quiet title then "must allege right, title, or ownership in himself or herself with sufficient certainty to enable the court to see he or she has a right of ownership that will warrant judicial interference." Wright, 26 S.W.3d at 578.
SOURCE: 03-08-00372-CV (Austin Court of Appeals) (2/26/10)
Monday, March 1, 2010
A constructive trust is a legal fiction, a creation of equity to prevent a wrongdoer from profiting from her wrongful acts. Procom Energy, L.L.A. v. Roach, 16 S.W.3d 377, 381 (Tex. App.-Tyler 2000, pet. denied). Such trusts are remedial in character and have the broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice. Id.; see also Hubbard v. Shankle, 138 S.W.3d 474, 485 (Tex. App.-Fort Worth 2004, pet. denied).
ELEMENTS OF CONSTRUCTIVE TRUST
To obtain a constructive trust, the proponent must prove (1) the breach of a special trust, fiduciary relationship, or actual fraud; (2) unjust enrichment of the wrongdoer; and (3) tracing to an identifiable res. Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex. App.-Dallas 2006, no pet.); Hubbard, 138 S.W.3d at 485.
A constructive trust is a relationship with respect to property, subjecting the person by whom the title to the property is held to an equitable duty to convey it to another on the ground that her acquisition or retention of the property is wrongful and that she would be unjustly enriched if she were permitted to retain the property. Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736 (Tex. App.-San Antonio 2007, pet. denied) (quoting Talley v. Howsley, 142 Tex. 81, 86, 176 S.W.2d 158, 160 (1943)).
DISCRETIONARY EQUITABLE REMEDY
Whether a constructive trust should be imposed at all is within the discretion of the trial court. Troxel, 201 S.W.3d at 297; Hubbard, 138 S.W.3d at 485. The proponent of a constructive trust must strictly prove the elements necessary for the imposition of the trust. Troxel, 201 S.W.3d at 297; Hubbard, 138 S.W.3d at 485.
SOURCE: 12-07-00022-CV (Tyler Court of Appeals) (2/26/10)
Under the Texas Theft Liability Act, an individual, corporation, or other "person" who commits theft is liable for the damages resulting from the theft. Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001-.005. Theft is defined as "unlawfully appropriating property or unlawfully obtaining services" as described by certain sections of the penal code. Id. § 134.002. The section at issue here is section 31.03, which states (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. (b) Appropriation of property is unlawful if: (1) it is without the owner's effective consent; (2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or (3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another. Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2009).
SOURCE: 05-08-01521-CV (Dallas Court of Appeals) (2/26/10)
Hollis Osborne WILCOTS, Appellant,
Arecie Wilcots WIGGINS, Good Street Baptist Church Federal Credit Union, and Linda Shanklin, Appellees.
Standard of Review
(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner's effective consent;
950*950 (2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or
(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.
LIMITED POWER OF ATTORNEY
I, Hollis Osborne Wilcots, residing at Hughes Unit ... Hereby appoint Arecie Wilcots Wiggins ... as my attorney-in-fact ("Agent") to exercise the power and discretions described below.
My Agent shall have power and authority to act on my behalf to receive and disperse [sic] the following:
In the matter of closing settlement of the estate of Mae Belle Davis, disbursement of proportioned share of deceased mother's (Charlene Davis Wilcots) estate inheritance in the amount of $6,829.81 shall be disbursed in the following manner:
1. $2,500.00 to be placed in a financial institute savings account for me....
2. $1,500.00 paid to Arecie Wilcots Wiggins as contribution to repair updates to my father's house....
3. $2,829.81 to be sent to my account at the Texas Department of [C]riminal Justice inmate trust fund.
Conduct any business with any banking or financial institution with respect to, disbursement matters of the estate of Mae Belle Davis, limited to making deposits, negotiating or endorsing any checks or other instruments with respect to any such checks, money matters or vouchers payable to me by any person, firm, and/or corporation.
Purform [sic] any act necessary to deposit, negotiate, or transfer any moneytary [sic] funds, notes or draft of the United [S]tates of America, including U.S. Treasury securities.
This Limited Power of Attorney shall become effective immediately and shall continue until the matter of closing settlement of the estate of Mae 951*951 Belle Davis and disbursement of funds received has been completed as aforementioned above. This Limited Power of Attorney may be revoked by me at any time by providing written notice to my agent.
The power of attorney is signed by Wilcots, dated, and notarized.
MOTION FOR DEFAULT JUDGMENT
Wednesday, February 24, 2010
Was a contract validly formed? A "meeting of the minds" as a component of offer and acceptance as essential elements of contract-formation
PROVING FORMATION OF A BINDING CONTRACT
To prevail on a breach-of-contract claim, a plaintiff must prove (1) a valid contract existed between the plaintiff and the defendant, (2) the plaintiff tendered performance or was excused from doing so, (3) the defendant breached the terms of the contract, and (4) the plaintiff sustained damages as a result of the defendant’s breach. West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.—Houston [14th Dist] 2008, no pet.).
In its motion for summary judgment, ConocoPhillips asserted the evidence conclusively negated the existence of a valid contract because the parties did not have a meeting of the minds; i.e. offer and acceptance.
Among other elements, a party must prove offer and acceptance to demonstrate existence of a valid contract. DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260 S.W.3d 34, 44 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555–56 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
A “meeting of the minds” is “merely a mutuality subpart of the offer and acceptance elements.” Domingo v. Mitchell, 257 S.W.3d 34, 40 (Tex. App.—Amarillo 2008, pet. denied). Although whether the parties intended to be bound is often a question of fact, it may be determined as a matter of law. See Foreca, S.A. v. GRD Devel. Co., 758 S.W.2d 744, 746 (Tex. 1988).
SOURCE: WTG Gas Processing, LP v. ConocoPhillips Company (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Seymore)(breach of contract and tortious-interference claims, no contract formed, meeting of the minds on material terms, statute of frauds, summary judgment affirmed)
Monday, February 1, 2010
IMPLIED CONTRACT VS. EXPRESS CONTRACT
“A contract implied in law, or a quasi-contract, is distinguishable from a true contract because a quasi-contract is a legal fiction, an obligation imposed by law regardless of any actual agreement between the parties.” Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 386 (Tex. App.—Fort Worth 2003, pet. ref’d); see Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000).
SOURCE: Underwood Graves v. Logan (Tex.App.- Houston [1st Dist.] Jan. 28 2010)(no express contract or implied duty for creditor to promptly provide pay-off statement for real estate note found; breach of contract claim brought by maker after sale of real estate fell through accordingly fails)
Monday, January 25, 2010
Monday, January 18, 2010
DTPA ELEMENT: Consumer Status of Complainant
Consumer status is an essential element of a DTPA claim. Rivera v. S. Green Ltd. P’ship, 208 S.W.3d 12, 21 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (citing Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995)).
CONSUMER DEFINED FOR PURPOSES OF DTPA CLAIM
A consumer is an individual who seeks or acquires goods or services by purchase or lease. Id.; Tex. Bus. & Com. Code Ann. § 17.45(4) (Vernon Supp. 2009) (“‘Consumer’ means an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or entity with assets of $25 million or more.”).
Whether a plaintiff is a consumer under the DTPA is a question of law for the court to decide. Rivera, 208 S.W.3d at 21.
SOURCE: Cash Rent-A-Car v. Old American County Mutual Fire Ins. Co. No. 01-09-00021-CV (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)
IS A BORROWER A CONSUMER UNDER THE DTPA DEFINITION? - IT DEPENDS
PROVING A CAUSE OF ACTION FOR COMMON-LAW FRAUD AND NEGLIGENT MISREPRESENTATION - WHAT ARE THE ESSENTIAL ELEMENTS UNDER TEXAS LAW?
In order to prove fraud, a party must show that (1) a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). Fraud by nondisclosure is a subcategory of fraud. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997).
In order to prove negligent misrepresentation, a plaintiff must show that (1) the defendant made a representation in the course of its business, or in a transaction in which it has a pecuniary interest, (2) the defendant supplied “false information” for the guidance of others in their business, (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information, and (4) the plaintiff suffered a pecuniary loss by justifiably relying on the representation. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 n. 24 (Tex. 2002) (citing Fed. Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991)).
SOURCE: Cash Rent-A-Car v. Old American County Mutual Fire Ins. Co. (Tex.App.- Houston [1st Dist.] Jan. 14, 2009) (Jennings)(conversion, trespass, fraud, negligent misrepresentation, breach of contract and bailment agreement, violations of the Texas Theft Liability Act, the Texas Deceptive Trade Practices Act (“DTPA”), and the Texas Insurance Code)
The elements of a conversion claim are (1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff’s rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Khorshid, Inc. v. Christian, 257 S.W.3d 748, 758–59 (Tex. App.—Dallas 2008, no pet.).
Statutory Cause of Action under Texas Theft Liability Act (alt. to conversion)
Under the Theft Liability Act, a person who commits theft by unlawfully appropriating property with intent to deprive the owner of property is liable for the resulting damages. Tex. Civ. Prac. & Rem. Code Ann. §§ 134.002(2), 134.003(a) (Vernon 2005); Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009). Appropriation of property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).
Common-law Trespass Claim
“Trespass to personalty is an injury to, or interference with, possession of the property, unlawfully, with or without the exercise of physical force.” Russell v. Am. Real Estate Corp., 89 S.W.3d 204, 210 (Tex. App.—Corpus Christi 2002, no pet.) (citing Jamison v. Nat’l Loan Investors, L.P., 4 S.W.3d 465, 469 n.2 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)). Destruction of, or injury to, personal property, regardless of negligence, may be a trespass. Id.SOURCE: Cash Rent-A-Car v. Old American County Mutual Fire Ins. Co. No. 01-09-00021-CV (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)