Defending a lawsuit on the basis of "res judicata"

RES JUDICATA DOCTRINE DEFINED

Res judicata precludes re-litigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

Res judicata is an affirmative defense. Tex. R. Civ. P. 94.

ELEMENTS OF RES JUDCIATA

The party asserting the defense must prove: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of 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. Amstadt, 919 S.W.2d at 652. We apply a transactional approach to res judicata. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). Under that approach, the subject matter of a suit is based on the factual matters that comprise the gist of the complaint. Id. at 630. Any claim that arises out of those facts should be litigated in the same action. Id.
SOURCE: Houston Court of Appeals - 14-10-00053-CV - 6/30/11


NATURE OF THE DEFENSE AND PROPER WAY TO ASSERT IT

The compulsory counterclaim rule and the doctrine of res judicata are affirmative defenses. Commint Technical Services, Inc. v. Quickel, 314 S.W.3d 646, 651 (Tex. App.—Houston [14th Dist.] 2010, no pet.). An affirmative defense, or “plea in bar,” operates to prohibit the assertion of a cause of action and involves the final disposition of a case. Tex. Underground, Inc. v. Texas Workforce Comm’n 335 S.W.3d 670, 675 (Tex. App.—Dallas 2011, no pet.) (citing Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354 (Tex. App.—San Antonio 1999, pet. denied); In re A.M., 936 S.W.2d 59, 62 (Tex. App.—San Antonio 1996, no writ)).

An affirmative defense is not typically disposed of in a preliminary hearing, such as a motion to dismiss. Tex. Underground, 335 S.W.3d at 675 (citing Martin, 2 S.W.3d at 354). Rather, an affirmative defense should be raised through a motion for summary judgment or proven at trial. Id. at 676; In re D.K.M., 242 S.W.3d 863, 865 (Tex. App.—Austin 2007, no pet.); see Montgomery Cnty. v. Fuqua, 22 S.W.3d 662, 669 (Tex. App.—Beaumont 2000, pet. denied) (“Affirmative defenses are ‘pleas in bar,’ and do not provide a justification for summary dismissal on the pleadings.”).


SOURCE: Houston Court of Appeals - 01-10-00476-CV - 6/30/11
 
SUMMARY JUDGMENT BASED ON AFFIRMATIVE DEFENSE SUCH AS RES JUDICATA

We review the trial court’s grant of summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex. 2004). A movant must establish its right to summary judgment by showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Joe, 145 S.W.3d at 157. We review a summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam). A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert. denied, 131 S.Ct. 1017 (2011); see Tex. R. Civ. P. 166a(b), (c).

SOURCE: Houston Court of Appeals - 14-10-00053-CV - 6/30/11

RELATED LEGAL DEFENSES, TERMS: collateral estoppel, claim and issue preclusion

The Economic Loss Rule

SIGNIFICANCE OF THE ECONOMIC LOSS RULE

Texas Supreme Court cite on economic loss rule:

The economic-loss rule generally precludes recovery in tort for economic losses resulting from the failure of a party to perform under a contract. Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 12 (Tex. 2007).

When the only loss or damage is to the subject matter of the contract, the plaintiff’s action is ordinarily on the contract. Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991).

SOURCE: Houston Court of Appeals - 14-10-00351-CV - 6/30/11


RELATED LEGAL CONCEPTS: breach of contract vs. tort, contractual obligations vs. obligations imposed by law, contract and non-contract causes of action

TCHRA: Age discrimination claims under state anti-discrimination statute (Chapter 21 Tex. Labor Code)

AGE DISCRIMINATION CLAIMS UNDER TEXAS LAW (Labor Code Chapter 21 claim)

Texas statute provides remedy against discriminatory employment practices like Tile VII; courts follow federal precedent in interpreting the Texas Commission on Human Rights Act [TCHRA]

Under the THCRA:
An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.
TEX. LAB. CODE ANN. § 21.051 (West 2006).

The TCHRA also provides:

(a) Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice, unless race, color, sex, national origin, religion, age, or disability is combined with objective job-related factors to attain diversity in the employer’s work force.

(b) In a complaint in which a complainant proves a violation under Subsection (a) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief except as otherwise provided by this subsection, and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a complaint under Subsection (a), but may not award damages or issue an order requiring an admission, reinstatement, hiring, promotion, or back pay.

Id. § 21.125. Because the TCHRA’s stated purpose is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” Texas courts apply analogous federal case law when interpreting the Texas statute. Id. § 21.001(1); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).

SOURCE: San Antonio Court of Appeals - 04-10-00730-CV - 6/22/11

OTHER RELEVANT CASE LAW EXCERPTS ON TCHRA EMPLOYMENT DISCRIMINATION CLAIMS

Texas law requires that a complaint of unlawful employment discrimination be filed with the Texas Commission on Human Rights within 180 days after the alleged unlawful employment action occurs. Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 83 (Tex.App.-Fort Worth 2003, pet. denied), citing Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); see Tex.Lab.Code Ann. § 21.202(a)(Vernon 2006). This limitations period is mandatory and jurisdictional. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991). That is, failure to timely file an administrative complaint deprives Texas trial courts of subject matter jurisdiction over a subsequent claim against the employer. See Cooper-Day, 121 S.W.3d at 83.

The Texas Commission on Human Rights Act (the "TCHRA," codified in Chapter 21 of the Texas Labor Code) makes it unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, or national origin. TEX. LAB.CODE ANN. § 21.051 (Vernon 2006). Before filing suit, a plaintiff must file a complaint with the TWC or EEOC and receive a notice of right to sue on the claims alleged. See id. §§ 21.201-202. Once that notice of right to sue is received, the plaintiff must then file suit within 60 days. Id. § 21.254. Texas courts have interpreted section 21.254 to mean that a plaintiff must file the suit and serve notice of the suit upon the proper parties within 60 days of receiving of notice of a right to sue from the TWC. See, e.g., Tarrant County v. Vandigriff, 71 S.W.3d 921, 924 (Tex.App.-Fort Worth 2002, pet. denied) ("The mere filing of a lawsuit is not sufficient to meet the requirements of `bringing suit' within the limitations period [of Chapter 21]; rather, a plaintiff must both file her action and have the defendant served with process.") (emphasis in original); Davis v. Educ. Serv. Ctr., 62 S.W.3d 890, 893 n. 4 (Tex. App.-Texarkana 2001, no pet.); Roberts v. Padre Island Brewing Co., 28 S.W.3d 618, 621 (Tex.App.-Corpus Christi 2000, pet. denied);

The limitations period begins when the employee is informed of the allegedly discriminatory employment decision. Tex.Lab.Code Ann. § 21.202(a); see Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); Specialty Retailers, 933 S.W.2d at 493. The date the allegedly discriminatory decision goes into effect, or the date on which the effect of such decision is realized by the employee, does not alter the commencement of the 180-day period. See Villareal v. Williams, 971 S.W.2d 622, 625 (Tex.App.-San Antonio 1998, no pet.), citing Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 928-29 (Tex. 1996)(Applying the Worker's Compensation Act); Specialty Retailers, 933 S.W.2d at 492-93 (Applying the TCHR); Cooper-Day, 121 S.W.3d at 83, 85. As the United States Supreme Court explained in its interpretation of the equivalent provision in Title VII, "`the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.'" Ricks, 449 U.S. at 258, 101 S.Ct. at 504.

"The [Texas Commission on Human Rights Act (CHRA)] . . . establishes a `comprehensive administrative review system,' under which the `exhaustion of administrative remedies is a mandatory prerequisite to filing a civil action alleging violations of the CHRA.'" Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004) (quoting Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485, 488 (Tex. 1991)). To comply with the exhaustion requirement, an employee must (1) file a complaint with the EEOC within 180 days of the alleged discriminatory act and (2) allow the EEOC to dismiss the complaint or resolve the complaint within 180 days before filing suit. Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513 (Tex. App. Waco 2004, pet. denied); see Tex. Lab. Code Ann. §§ 21.201-.202, 21.208 (Vernon 2006); see also Gallegos v. Johnson, No. 13-07-00603-CV, 2010 Tex. App. LEXIS 1330, at **37-38 (Tex. App.-Corpus Christi Feb. 25, 2010, no pet. h.) (mem. op.). A plaintiff's entitlement to a right-to-sue letter signals that she has satisfied the exhaustion requirement. See Rice, 131 S.W.3d at 512 (holding that "it is the entitlement to the right-to-sue letter that exhausts the complainant's administrative remedies," not its possession); City of Houston v. Fletcher, 63 S.W.3d 920, 923 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (explaining that "[t]he statute certainly supports an interpretation that the right-to-sue letter is notice of exhaustion, not actually part of exhaustion"); see also Gallegos, 2010 Tex. App. LEXIS 1330, at *38. Additionally, the suit must be filed no later than two years after the original complaint is filed. See Tex. Lab. Code Ann. § 21.256 (Vernon 2006); Rice, 131 S.W.3d at 513; see also Gallegos, 2010 Tex. App. LEXIS 1330, at **37-38.

Defamation damages: Putting a dollar value on impairment of good name and reputation as a result of libel or slander

PROVING DEFAMATION DAMAGES IN AN ACTION FOR LIBEL OR SLANDER 

General vs. specific damages 

Compensatory damages allowable for defamation are divided into two categories: general and special. Peshak v. Greer, 13 S.W.3d 421, 427 (Tex.App.-Corpus Christi 2000, no pet.).    


General damages include mental anguish, loss of reputation, and like damages that naturally flow from the defamation and are not easily susceptible to monetary valuation.  Id.  General damages are those conclusively presumed to have been foreseen by the defamer as a necessary and usual result of his or her wrongful act.  Fox v. Parker, 98 S.W.3d 713, 726 (Tex.App.--Waco 2003, pet. denied) (citing Arthur Anderson & Co. v. Parker Equip. Co., 945 S.W.2d 812, 816 (Tex. 1997)).

Defamation Per Se damages

"The law presumes a statement which is libelous per se defames a person, injures his reputation"; id., and causes mental anguish.  Ryder Truck Rentals, Inc. v. Latham, 593 S.W.2d 334, 337 (Tex.Civ.App.--El Paso 1979, writ ref'd n.r.e.) (general damages for injury to character, reputation, feelings, mental suffering or anguish, or other wrongs not susceptible to monetary valuation are presumed); Peshak, 13 S.W.3d at 427 ("In actions of libel per se, the law presumes the existence of some actual damages, requiring no independent proof of general damages.")  Because the damages are presumed, "there need be no inquiry in the [jury] charge about whether there was a defamation or about 'proximate cause' and injury (or the jury may be instructed to so find.”)  Fox, 98 S.W.3d at 726.      

            

Further, because the damages are purely personal and cannot be measured by any fixed rule or standard, the amount of general damages suffered in a defamation case is difficult to determine.  First State Bank of Corpus Christi v. Ake, 606 S.W.2d 696, 702 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.) (citing Bayoud v. Sigler, 555 S.W.2d 913 (Tex.Civ.App.--Beaumont 1977, writ dis'md)).  Thus, because of their uncertain nature, their measurement is generally left to the discretion of the finder of fact, subject only to a determination that the award was clearly excessive or the result of "passion, prejudice, or other improper influences."  See Morrill, 226 S.W.3d at 550 (citing Bolling, 671 S.W.2d at 549).  See also Tranum v. Broadway, 283 S.W.3d 403, 422 (Tex.App.--Waco 2008, pet. denied). 

SOURCE: Amarillo Court of Appeals - 07-09-00277-CV - 6/16/11

EXCERPTS FROM CITED CASE: Peshak v. Greer, 13 S.W.3d 421 (Tex.App.-Corpus Christi 2000, no pet.)


In both libel and slander the issues are whether the utterance was made, if it was false, if it damaged the complainant and if the speaker had any privilege. RESTATEMENT (SECOND) OF TORTS § 558 (1977); c.f.Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.). Whether the defendant intended to say or print the defamatory words is not an element of the cause of action unless privilege is involved. See Express Pub. Co. v. Lancaster, 2 S.W.2d 833, 834 (Tex.Comm.App. 1928) (holding defamation defendant is liable irrespective of his innocent motives in publishing the defamatory statement); Hornby v. Hunter, 385 S.W.2d 473, 476 (Tex.Civ.App.-Corpus Christi 1964, no writ) (holding that even innocent, mistaken publication still subjects defamer to liability); 50 Tex. Jur. 3d Libel & Slander, § 12, at 33 (1986) (noting that intent is not an element of defamation). We assume the words were intended because they were used. When the jury found Peshak defamed Greer and what he said was false, it found by inference that he intended to write the letters found to be defamatory.


The issue is whether exemplary damages may be awarded if the defamatory statement is made intentionally or willfully. Punitive damages are available in defamation cases based upon the same rules governing punitive damage awards for all torts. Nabours v. Longview Sav. & Loan Ass'n., 700 S.W.2d 901, 903 n. 1 (Tex.1985). The supreme court has held that a plaintiff must prove the statements were made maliciously to justify exemplary damages in a defamation case. See Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984). Civil Practice and Remedies Code section 41.003 provides that exemplary damages may only be awarded if the claimant proves by clear and convincing evidence that the harm resulted from fraud or malice. See TEX. CIV. PRAC. & REM.CODE ANN. § 41.003(a) (Vernon 1997).[1]


We hold that exemplary damages in a defamation case between private litigants that does not involve privilege can only be supported if the utterance was made with malice. That the statements were made willfully or intentionally will not justify exemplary damages.


This case does not involve a media defendant. The rule of Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), requiring fault in a defamation action against a publisher or broadcaster for a defamatory statement about a private individual, is not applicable. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).


Compensatory damages allowable for defamation are divided into two categories: general and special. General damages are mental anguish, injury to the reputation and the like that naturally flow from the libel and are not easily susceptible to monetary valuation. West Texas Utilities Co. v. Wills, 164 S.W.2d 405, 412 (Tex.Civ.App.-Austin 1942, no writ); Evans v. McKay, 212 S.W. 680, 685 (Tex.Civ. App.-Dallas 1919, writ dism'd); see also Leyendecker, 683 S.W.2d at 374.


In actions of libel per se, the law presumes the existence of some actual damages, requiring no independent proof of general damages. See Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.); Adolph Coors Co. v. Rodriguez, 780 S.W.2d 477, 488 (Tex. App.-Corpus Christi 1989, writ denied); City of Brownsville v. Pena, 716 S.W.2d 677, 682 (Tex.App.-Corpus Christi 1986, no writ); First State Bank v. Ake, 606 S.W.2d 696, 702 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.). The amount of general damages is very difficult to determine, and the jury is given wide discretion in its estimation of them. Evans, 212 S.W. at 685; Wills, 164 S.W.2d at 412.


LOST EARNINGS CAPACITY 


Lost earning capacity is a form of special damages, Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 11 S.W. 555, 558 (1889); Houston Belt & Terminal Ry. Co. v. Wherry, 548 S.W.2d at 743, 753 (Tex. Civ.App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.), and must be specifically stated and proved. Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 91 (Tex.App.-Corpus Christi 1992, writ dism'd w.o.j.); Vista Chevrolet, Inc. v. Barron, 698 S.W.2d 435, 441 (Tex.App.-Corpus Christi 1985, no writ). Although the amount of damages for lost earning capacity is largely within the discretion of the jury, Fowler v. Pedlar, 497 S.W.2d 399, 401 (Tex.Civ.App.-Houston [1st Dist.] 1973, no writ), the plaintiff is required to prove his lost earning capacity "with that degree of certainty to which the case is susceptible...." McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943).


RELATED LEGAL TERMS: defamation, libel, slander, reputational damage, damage to good name, reputation, business goodwill, standing in the community, mental, psychological, emotional distress, embarrassment

Official Immunity Defense [affirmative defense invoked by governmental defendants]

OFFICIAL IMMUNITY OF PUBLIC OFFICIALS, OFFERS, GOVERNMENT EMPLOYEES

The affirmative defense of official immunity "is based on necessity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation." Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004). The underlying policy is that officials should be afforded some leeway to err because "the risk of some error is preferable to intimidation from action at all." Id. at 424 (citing Wood v. Strickland, 420 U.S. 308, 319-21 (1975)). To that end, official immunity shields officials "from being forced to defend their decisions that were reasonable when made, but upon which hindsight has cast a negative light." Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2002). "Police officers' particular need for [official] immunity is well recognized: 'nowhere else in public service is official immunity more appropriate or necessary than in police work. In their routine work, police officers must be free to make split-second judgments . . . based on their experience and training, without fear of personal liability.'" Id. (quoting Travis v. City of Mesquite, 830 S.W.2d 94, 103 (Tex. 1992) (Cornyn, J., concurring)).

Elements of Official Immunity Defense: What does the Defendant have to establish?

An officer's actions are shielded by official immunity when the following elements are proven: (1) the officer was performing a "discretionary" function or duty, (2) within the scope of his authority, (3) in "good faith." Ballantyne, 144 S.W.3d at 422; Telthorster, 92 S.W.3d at 461; Chambers, 883 S.W.2d at 653. Consequently, to prevail on summary judgment based on Garner's official immunity from liability arising from his collision with Albarran, the City had the burden to conclusively establish that, with respect to Garner's actions from which his liability would arise: (1) Garner was performing a "discretionary" function, (2) within the scope of his authority, (3) in "good faith." See Telthorster, 92 S.W.3d at 461.

What is considered discretionary? 

"Discretionary" functions involve "personal deliberation, decision, and judgment," in contrast to "ministerial" acts, which "require obedience to orders or the performance of a duty to which the actor has no choice." Chambers, 883 S.W.2d at 654; see Commissioner of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849) ("where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed merely ministerial").

An act is also said to be ministerial if "the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." Chambers, 883 S.W.2d at 654 (quoting Rains v. Simpson, 50 Tex. 495, 501 (1878)). In determining whether a government employee's action is "discretionary" versus "ministerial," the proper focus is "on whether the officer is performing a discretionary function, not on whether the officer has discretion to do an allegedly wrongful act while discharging that function." Id. at 653 (emphases added).

Texas courts have recognized that a police officer's operation of a motor vehicle may be deemed a discretionary function in certain situations. These situations include an officer's deciding to undertake and conducting of a high-speed pursuit of a suspect, see Chambers, 883 S.W.2d at 655, and an officer's decision to violate traffic laws in order to quickly reach a scene of suspected criminal activity and assist another officer there, see Harless v. Niles, 100 S.W.3d 390, 398 (Tex. App.--San Antonio 2002, no pet.). See also City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695, 704 (Tex. App.--Austin 2005, no pet.) (manner of firefighters' driving in response to emergency call was discretionary function as matter of law); City of Houston v. Flaniken, 108 S.W.3d 555, 557 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (manner of operating ambulance in response to emergency situation was discretionary function as matter of law). Although these decisions sometimes speak in apparent circularities--e.g., a police officer performs a "discretionary" function when responding to an "emergency" because responding to an "emergency" entails discretion and judgment--their underlying principle seems to be that when a police officer is performing certain law enforcement functions involving discretion and judgment (e.g, pursuit and detention of suspects), it follows that this discretion and judgment can extend to whether and how the officer utilizes a motor vehicle in performing these functions. See Chambers, 883 S.W.2d at 654; Harless, 100 S.W.3d at 397-98; see also Hudson, 179 S.W.3d at 704; Flaniken, 108 S.W.3d at 557.

In Chambers, for example, an officer's high-speed pursuit of a suspect who ran a red light was held to be a discretionary function because the officer had to elect whether to undertake pursuit, and "[b]eyond the initial decision to engage in the chase, a high speed pursuit involves the officer's discretion on a number of levels, including, which route should be followed, at what speed, should back-up be called for, and how closely should the fleeing vehicle be pursued." 883 S.W.2d at 655. In Harless, officers proceeding to the scene of "suspicious activity" to assist a fellow officer similarly had discretion to determine, in the first instance, whether to respond to a report of ongoing criminal activity. 100 S.W.3d at 398. These circumstances required officers to respond using personal deliberation or exercise professional expertise, decision, or judgment. See id. at 397.

SOURCE: Austin Court of Appeals 03-10-00328-CV - 6/23/11

At-will employment & claims of fraud, fraudulent inducement, and breach of fiduciary duty

NO DETRIMENTAL RELIANCE ON PROMISE OF FUTURE EMPLOYMENT IN THE EMPLOYMENT-AT-WILL CONTEXT Both common-law fraud and fraudulent inducement require proof of detrimental reliance. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 179 (Tex. 1997). In the employment context, courts have held that an employee cannot establish justifiable reliance on alleged promises of continued employment when the employment is at-will. See, e.g., Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 379, 381 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding promissory estoppel and fraud claims were barred because of at-will employment); Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 379-80 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding status as at-will employee precluded claim for fraudulent inducement in wrongful termination lawsuit). As this court [14th CoA] stated in Collins v. Allied Pharmacy Management, Inc.: A promise to provide employment which is subject to termination at any time or for any reason does not provide any assurances about the employer’s future conduct, and does not provide a basis for detrimental reliance as a matter of law. 871 S.W.2d 929, 937 (Tex. App.—Houston [14th Dist.] 1994, no writ). We agree with the trial court that the same reasoning bars [ FORMER EMPLOYER-PLAINTIFF ] from claiming that it justifiably relied on promises or statements of intent by its at-will employee to remain employed. See Collins, 871 S.W.2d at 937-38 (“An employee may quit at any time, or may never start performance and suffer no liability. . . . [E]mployees are not indentured servants.”). BREACH OF FIDUCIARY DUTY The elements of a breach of fiduciary duty claim are (1) a fiduciary relationship between the plaintiff and defendant, (2) a breach by the defendant of his fiduciary duty to the plaintiff, and (3) an injury to the plaintiff or benefit to the defendant as a result of the defendant’s breach. Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). DETRIMENTAL RELIANCE NOT AN ELEMENT OF BoFD Unlike a fraud claim, a claim for breach of fiduciary duty does not require a plaintiff to establish reliance. See id. (listing elements of the claims). Consequently, the fact that at-will employment precludes [ PLAINTIFF ] from establishing justifiable reliance for purposes of its fraud claim on alleged statements by [ EMPLOYEE ] regarding future employment with [ DEFENDANT ] does not bar its breach of fiduciary duty claim. See Wilson, 305 S.W.3d at 74-75 (although similarity existed “in the abstract” between the elements of the two claims, claims had different elements and thus exception did not apply); see also Lundy, 260 S.W.3d at 506-07 (fraud and breach of fiduciary duty claims, although based on the same set of facts, were separate theories of liability for which plaintiff had to make an election of remedies). SOURCE: Houston Court of Appeals - 14-10-00513-CV - 6/28/11

Civil Conspiracy: What amounts to actionable civil conspiracy under Texas law?

CIVIL CONSPIRACY LEGALLY DEFINED

A civil conspiracy consists of a combination by two or more persons to accomplish an unlawful purpose or a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996).

ELEMENTS OF CIVIL CONSPIRACY CAUSE OF ACTION
The elements of civil conspiracy are (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

SOURCE: Houston Court of Appeals - 14-10-00513-CV - 6/28/11

Negligent Activity and Premises Defect Claim: Is there a difference?

CAUSE OF ACTION FOR NEGLIGENT ACTIVITY ON PREMISES The Texas Supreme Court has consistently recognized that negligent-activity claims and premises-defect claims involve two independent “theories” of recovery that fall within the scope of negligence. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214–15 (Tex. 2008) (distinguishing between “negligent-activity claim” or “theory” and “premises-condition claim” or “theory”); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997) (stating that there are “two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect”); see also Mayer v. Willowbrook Plaza Ltd. Partnership, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (stating that “[n]egligent activity and premises defect are independent theories of recovery”). Negligent activity claims and premises liabiltiy claims distinguished: Commission vs. omission Although “[t]he lines between negligent activity and premises liability are sometimes unclear,” the court has continued to recognize the distinction between these two claims, explaining that “negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). Activity as opposed to condition as cause of injury Recovery on a negligent-activity claim requires that the plaintiff have been injured by or as a contemporaneous result of the “activity itself” rather than by a “condition” created by the activity. Olivo, 952 S.W.2d at 527; Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). Although an owner or occupier generally does not owe a duty to ensure that an independent contractor performs its work in a safe manner, an owner or occupier “who retains a right to control the contractor’s work may be held liable for negligence in exercising that right” under the negligent-activity theory. Moritz, 257 S.W.3d at 214 (emphasis added). SOURCE: Houston Court of Appeals - 01-09-01089-CV - 6/23/11

Liability for Premises Defects & Independent Contractors

CATEGORIES OF PREMISES-DEFECT CLAIMS UNDER TEXAS LAW There are two types of premises defects for which an independent contractor’s employee may seek to hold a premises owner or general contractor liable. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997). Existing dangerous conditions on premises not created by the contractor The first category includes those defects that exist on a premises when a business invitee enters for business purposes or are created through some means unrelated to the activity of the injured employee or his employer. Id.; Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746 (Tex. 1973). When dangerous conditions do not arise through the independent contractor’s work activity, the owner or general contractor has a duty to inspect the premises and warn about the dangerous conditions of which the owner or general contractor knows or should know. Moritz, 257 S.W.3d at 214–15; Olivo, 952 S.W.2d at 527. An independent contractor is “under no duty to inspect the premises forconcealed dangers” because independent contractors may “anticipate” that the owner or general contractor “will discharge [its] duty to inspect the premises and warn of any dangerous condition which is not open and obvious.” Lamb, 493 S.W.2d at 746 (emphasis added); see also Moritz, 257 S.W.3d at 215 (stating that “[g]enerally, a landowner is liable to employees of an independent contractor only for claims arising from a pre-existing defect rather than from the contractor’s work, and then only if the pre-existing defect was concealed”). The rationale for this duty is that the owner or general contractor is in a “superior position to know of or discover hidden dangerous conditions on his premises.”[5] Lamb, 493 S.W.2d at 746 (emphasis added). [5] When a hidden, dangerous condition exists on a premises at the time an independent contractor enters, or when it “exists through some means other than the [independent contractor’s] work activity on the premises,” the owner’s or general contractor’s duty to an independent contractor and its employees “may be discharged by an adequate warning to the [independent contractor] or one supervising his work.” Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 747 (Tex. 1973). Independent contractors' work actitivity as cause of injury The second category of premises defects includes those defects an independent contractor, or its injured employee, create by its work activity. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Olivo, 952 S.W.2d at 527. When the independent contractor creates a dangerous condition, the owner or general contractor ordinarily has no duty to warn the independent contractor’s employees of the premises defect. Olivo, 952 S.W.2d at 527. The rationale for this rule is that an owner or general contractor normally has no duty to ensure that an independent contractor performs its work in a safe manner. Id. In explaining why, under the first category, the duty owed by a premises owner or general contractor to an independent contractor is limited to concealed hazards, the Texas Supreme Court has recently explained that because an independent contractor “owes its own employees a nondelegable duty to provide them a safe place to work, safe equipment to work with, and warn them of potential hazards,” a premises owner that “hires an independent contractor generally expects the contractor to take into account any open and obvious premises defects in deciding how the work should be done, what equipment to use in doing it, and whether its workers need any warnings.” Moritz, 257 S.W.3d at 216–17. The court reasoned that “[p]lacing the duty on an independent contractor to warn its own employees or make safe open and obvious defects ensures that the party with the duty is the one with the ability to carry it out.” Id. (emphasis added). In Moritz, an independent contractor, on a daily basis, loaded trailers with supplies from a General Electric warehouse. Id. at 213–14. Moritz, the independent contractor, sustained personal injuries in the course of securing the supplies after a rubber bungee cord that he was using broke and he fell off the side of a loading ramp. Id. Based upon the absence of handrails on the loading ramp, Moritz brought a premises-defect claim against GE. Id. at 215. The court, noting that the absence of handrails was “obviously a pre-existing condition and obviously not a concealed hazard,” concluded that GE had “no duty to warn Moritz that a ramp [that] he had been using for more than a year had no handrails.” Id. at 216. Although the court acknowledged that GE, as the premises owner, “had a duty to exercise care with respect to matters over which it exercised control,” it reasoned that Moritz’s premises-defect claim failed because GE “did not control where or how Moritz chose to secure his load.” Id. at 217. The court noted that “independent contractors are hired for special projects that often entail special expertise, and can be expected to use whatever equipment or precautions are necessary so long as a hazard is not concealed.” Id. (emphasis added). SOURCE: Houston Court of Appeals - 01-09-01089-CV - 6/23/11

TCHRA: Types of Discrimination Claims under Texas anti-discrimination act (employment)

TCHRA CLAIM [discrimination in employment under state law] [TCHRA=TEXAS COMMISSION ON HUMAN RIGHTS ACT] Because the TCHRA’s stated purpose is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” Texas courts apply analogous federal case law when interpreting the Texas statute. Id. § 21.001(1); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). There are two types of Title VII employment discrimination cases. Quantum Chem., 47 S.W.3d at 476. The first is the “pretext” case, in which the plaintiff claims the employer’s stated reason for the adverse action was a pretext for discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). In a pretext case, federal and Texas courts traditionally follow the McDonnell Douglas-Burdine framework for allocation of proof. E.g., Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 n.2 (5th Cir. 1999); Quantum Chem., 47 S.W.3d at 479–80; Claymex Brick & Tile, Inc. v. Garza, 216 S.W.3d 33, 35 (Tex. App.—San Antonio 2006, no pet.). Under the McDonnell Douglas-Burdine framework, the plaintiff-employee has the burden of producing evidence that raises an inference of discrimination. Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The plaintiff’s burden at this stage “is not onerous.” Quantum Chem., 47 S.W.3d at 477 (quoting Burdine, 450 U.S. at 253). A prima facie case of age discrimination requires proof that the plaintiff (1) is at least forty years of age; (2) was discharged; (3) was qualified for the position from which he was discharged; and (4) was replaced by someone under forty, replaced by someone younger, or was otherwise discharged because of age. Russo, 93 S.W.3d at 435. If the plaintiff makes this showing, the burden then shifts to the defendant-employer to articulate a “legitimate, nondiscriminatory reason” for the plaintiff’s discharge. Quantum Chem., 47 S.W.3d at 477 (quoting McDonnell Douglas, 411 U.S. at 802). If the defendant can articulate such a reason, the presumption of discrimination created by the plaintiff’s prima facie showing is eliminated, and the burden shifts back to the plaintiff to show the defendant’s stated reason was a pretext for discrimination. Id. The Texas Supreme Court has held that under the TCHRA, a plaintiff need only prove that age discrimination was “a motivating factor” in the termination decision. Id. at 480. The second type of employment discrimination case is the mixed-motive case, in which the plaintiff has direct evidence of discrimination in the employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 244–45 (1989). Whether a case will be classified as a pretext case or a mixed-motive case “depends entirely” on whether the plaintiff has direct evidence that discriminatory motives influenced the employer’s decision to terminate the plaintiff. Quantum Chem., 47 S.W.3d at 476. If the plaintiff has only circumstantial evidence that the employment decision was motivated by discrimination, the case will be classified as a pretext case “regardless of how many motives the employer had.” Id. at 477. SOURCE: San Antonio Court of Appeals - 04-10-00730-CV - 6/22/11

TCHRA Retaliation claim against Employer

RETALIATION CLAIM In an action for retaliation brought under the TCHRA [ Texas Commission on Human Rights Act, no Section 21 of the Labor Code ] , the plaintiff-employee must make a prima facie showing that: (1) he engaged in a protected activity, (2) an adverse employment action occurred, and (3) a causal link existed between the protected activity and the adverse action. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Protected activities include: (1) opposing a discriminatory practice; (2) making or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing. Id. (citing TEX. LAB. CODE ANN. § 21.055). If the plaintiff makes this showing, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. SOURCE: San Antonio Court of Appeals - 04-10-00730-CV - 6/22/11 AGE DISCRIMINATION CLAIM Under the THCRA: An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or (2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee. TEX. LAB. CODE ANN. § 21.051 (West 2006). The TCHRA also provides: (a) Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice, unless race, color, sex, national origin, religion, age, or disability is combined with objective job-related factors to attain diversity in the employer’s work force. (b) In a complaint in which a complainant proves a violation under Subsection (a) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief except as otherwise provided by this subsection, and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a complaint under Subsection (a), but may not award damages or issue an order requiring an admission, reinstatement, hiring, promotion, or back pay. Id. § 21.125. Because the TCHRA’s stated purpose is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” Texas courts apply analogous federal case law when interpreting the Texas statute. Id. § 21.001(1); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). SOURCE: San Antonio Court of Appeals - 04-10-00730-CV - 6/22/11

Suit on personal guaranty: Elements a creditor has to prove to recover from guarantor

LAW OF GUARANTY IN TEXAS 
  
When can a creditor sue the guarantor of a promissory note or contract? 
  
ELEMENT OF SUIT AGAINST GUARANTOR

To recover for breach of the guaranty agreement, [ Plaintiff ] had to establish (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 failure or refusal to perform the promise by the guarantor. Escalante v. Luckie, 77 S.W.3d 410, 416 (Tex. App.—Eastland 2002, pet. denied). A secured party is not required to dispose of the collateral through foreclosure before suing on the underlying obligation. Christian v. Univ. Fed. Sav. Ass’n, 792 S.W.2d 533, 535 (Tex. App.—Houston [1st Dist.] 1990, no writ). Where a guaranty agreement so provides, a lender need not liquidate its collateral before obtaining judgment against a guarantor. Fed. Deposit Ins. Corp. v. Coleman, 795 S.W.2d 706, 709-710 (Tex. 1990).

SOURCE: Eastland Court of Appeals - 11-09-00196-CV - 6/16/11
 
CITES AND CASELAW SNIPPETS ON ELEMENTS OF ACTION AGAINST GUARANTORS FROM OTHER TEXAS COURTS OF APPEALS 
   
Wiman v. Tomaszewicz, 877 S.W.2d 1, 8 (Tex. App.-Dallas 1994, no writ) (to recover on the guaranty of a note, a party must show proof of the existence and ownership of the guaranty contract, the terms of the underlying contract by the holder, the occurrence of the conditions upon which liability is based, and the failure or refusal to perform by the guarantor). In order to recover on a breach of guaranty agreement, the plaintiff 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 failure or refusal to perform the promise by the guarantor. Marshall v. Ford Motor Company, 878 S.W.2d 629, 631 (Tex.App.-Dallas 1994, no writ). 
   
A guaranty agreement is a person's promise to perform the same act that another person is contractually bound to perform. Simmons v. Compania Financiera Libano, S.A., 830 S.W.2d 789, 792 (Tex. App.-Houston [1st Dist.] 1992, writ denied). A guaranty creates a secondary obligation under which the guarantor promises to answer for the debt of the primary obligor if the primary obligor fails to perform. Garner v. Corpus Christi Nat'l Bank, 944 S.W.2d 469, 475 (Tex. App.-Corpus Christi 1997, writ denied). 
  
To recover under a guaranty agreement, a plaintiff must show (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 failure or the refusal to perform the promise by the guarantor. Byrd v. Estate of Nelms, 154 S.W.3d 149, 157 (Tex. App.-Waco 2004, pet. denied); Roye Enter., Inc. v. Roper, No. 02-04-00132-CV, 2005 WL 1791964, at *3 (Tex. App.-Fort Worth July 28, 2005, no pet.) (mem. op.); see also Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 107 (Tex. App.-Dallas 1987, writ ref'd n.r.e.) (stating that when a guaranty is in writing and signed by the guarantor, the guaranty's existence presumes consideration). 
  
 "To obtain summary judgment on a guaranty agreement, a party must conclusively prove: (1) the existence and ownership of the guaranty contract, (2) the performance of the terms of the contract by plaintiff, (3) the occurrence of the condition on which liability is based, and (4) guarantor's failure or refusal to perform the promise." Corona v. Pilgrim's Pride Corp., 245 S.W.3d 75, 80 (Tex.App.-Texarkana 2008, pet. denied). Barclay v. Waxahachie Bank & Trust Co., 568 S.W.2d 721, 723 (Tex.Civ. App.-Waco 1978, no writ). 
   
Recovery on a Promissory Note and Guaranty 
   
To recover for a debt on a promissory note, a party must establish that it is the legal holder of the note, the debtor's execution of the note, and that an outstanding balance is due and owing. Austin v. Countrywide Homes, 261 S.W.3d 68, 72 (Tex. App.-Houston [1st Dist.] 2008, pet. denied). To recover on the guaranty of a note, a party must show proof of the existence and ownership of the guaranty contract, the terms of the underlying contract by the holder, the occurrence of the conditions upon which liability is based, and the failure or refusal to perform by the guarantor. Wiman v. Tomaszewicz, 877 S.W.2d 1, 8 (Tex.App.-Dallas 1994, no writ). 

RELATED CAUSES OF ACTION: 

Suit for breach of note, default under promissory note, breach of contract, breach of residential or commercial lease agreement, personal guaranty agreement, corporate guaranty [not guarantee], suit for judicial forclosure of security interest in collateral, suit for deficiency judgment

Credit card debt collection: Legal Theories of Recovery

Causes of action invoked by card issuers and their assignees to collect credit card debt in Texas courts: 

BREACH OF CONTRACT [breach of credit card agreement or default under terms of agreement] 

To prevail on its breach of contract cause of action, Citibank had to prove the following essential elements: (1) the existence of a valid contract, (2) performance or tendered performance by Citibank, (3) breach of the contract by Owusu, and (4) damages sustained as a result of the breach. See Winchek v. American Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (op. on reh'g).

ACCOUNT STATED THEORY OF RECOVERY [recently approved by several courts of appeals -- but  not all - as viable for debt collection by financial institutions without requiring them to produce the underlying cardmember agreement] 

A party is entitled to relief under the common law cause of action for account stated where (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an amount due; and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness. See Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex. App.-Dallas 2008, no pet.). 

SOURCE: Dallas Court of Appeals - 05-10-00175-CV - 6/22/11

Lawyer lingo: What is laches?

   
INVOKING LACHES AS A DEFENSE IN CASE OF DELAY 
 
Laches is an equitable remedy akin to estoppel that requires a showing that the party asserting a claim has unreasonably delayed the assertion of that claim and, due to that delay, the opposing party has made a good faith change of position to his or her detriment. See City of Fort Worth v. Johnson, 388 S.W.2d 400, 403 (Tex. 1964); In re Laibe Corporation, 307 S.W.3d 314, 318 (Tex. 2010).
 
However, in its sovereign capacity, the State, unlike ordinary litigants, is not subject to the defense of laches. State v. Durham, 860 S.W.2d 63, 67 (Tex. 1993). 

SOURCE: Amarillo Court of Appeals - 07-10-0464-CV - 6/14/11
 
RECENT TEXAS SUPREME COURT OPINION ADDRESSING LACHES 
   
In re Laibe Corp., 307 S.W.3d 314 (Tex. 2010) Issuance of mandamus relief "is largely controlled by equitable principles," and equity "`aids the diligent and not those who slumber on their rights.'" Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.1993) (quoting Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793, 795 (1941)). To invoke the equitable doctrine of laches, the moving party ordinarily must show an unreasonable delay by the opposing party in asserting it rights, and also the moving party's good faith and detrimental change in position because of the delay. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80 (Tex.1989). Jackson Drilling has not demonstrated a detrimental change in position between the time the motion for reconsideration was denied in the trial court and the filing of the mandamus petition in the court of appeals. See In re E.I. du Pont de Nemours & Co., 92 S.W.3d 517, 524 (Tex.2002) (orig. proceeding) (rejecting argument that unreasonable delay barred mandamus relief, in part because "plaintiffs have failed to show how the delay has prejudiced them in any way"). Accordingly, without hearing oral argument, see TEX.R.APP. P. 52.8(c), we conditionally grant mandamus relief and direct the trial court to grant Laibe's motion to dismiss. We are confident that the court will comply, and the writ will issue only if it does not.
 
LACHES CASE LAW SNIPPETS FROM OTHER COURTS OF APPEALS 
  
Laches is an affirmative defense; therefore, the party asserting it has the burden of proving its essential elements. City of Fort Worth v. Johnson, 388 S.W.2d 400, 403 (Tex. 1964). Texas courts have recognized that "[t]he defense of laches is akin to that of estoppel". Id. Accordingly, Appellants must prove: "(1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay". Id. The City maintains that laches is inapplicable to a governmental entity. The Texas Supreme Court has "long held that a city cannot be estopped from exercising its governmental functions". City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 773 (Tex. 2006). One important reason for this rule "is that barring estoppel helps preserve separation of powers; legislative prerogative would be undermined if a government agent could—through mistake, neglect, or an intentional act— effectively repeal a law by ignoring, misrepresenting, or misinterpreting a duly enacted statute or regulation". Id. (citing Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 428 (1990)). A narrow exception exists, however, "where justice requires [the application of equitable estoppel], and there is no interference with the exercise of [the City's] governmental functions". City of Hutchins v. Prasifka, 450 S.W.2d 829, 836 (Tex. 1970). In such instances, the doctrine of estoppel "is applied with caution and only in exceptional cases where the circumstances clearly demand its application to prevent manifest injustice". Id. In Texas, "[t]he court, not the jury, determines whether the exception applies". Super Wash, 198 S.W.3d at 774. The Texas Supreme Court clarified recently that the exception is limited to instances where "city officials may have affirmatively misled the parties seeking to estop the city and . . . the misleading statements resulted in the permanent loss of their claims against the cities". Id. at 775. In short, the defense may be allow ed where justice requires estoppel and the party asserting the defense would otherwise be without a remedy. Id.
   
RELATED LEGAL CONCEPTS: equitable estoppel, unreasonable delay, lack of diligence, failure to prosecute

Filing lawsuit just before expiration of limitations but failing to serve Defendant promptly ....

AVOIDING LIMITATIONS

Diligence in serving the Defendant is critical 

When a plaintiff files suit within the limitations period, but obtains service on the defendant outside of the limitations period, the service may still be valid if the plaintiff exercised diligence in procuring service. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009); see also Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) ("[A] timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation.").
 
If a plaintiff diligently obtains service after the expiration of the statute of limitations, the date of service relates back to the date of filing. Proulx, 235 S.W.3d at 215. If a defendant affirmatively pleads the defense of limitations and shows that service occurred after the limitations deadline, the burden shifts to the plaintiff to prove diligence. Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216. The plaintiff must then present evidence regarding the efforts made to serve the defendant and "explain every lapse in effort or period of delay." Proulx, 235 S.W.3d at 216.
 
A plaintiff's explanation of the efforts in obtaining service may demonstrate a lack of diligence "as a matter of law" when "one or more lapses between service efforts are unexplained or patently unreasonable." Id. Although the clerk of the court has the duty, upon the plaintiff's request, to issue and deliver the citation as directed, and although a party "may ordinarily rely on the clerk to perform his duty within a reasonable time," the ultimate responsibility to ensure that citation was served on the defendant still rests with the plaintiff. Bilinsco Inc. v. Harris Cnty. Appraisal Dist., 321 S.W.3d 648, 652 (Tex. App.-Houston [1st Dist.] 2010, pet. denied) (quoting Boyattia v. Hinojosa, 18 S.W.3d 729, 733-34 (Tex. App.-Dallas 2000, pet. denied). A plaintiff "who wholly ignores her duty to have the citation served on the defendant during a lengthy period of time [in which] the citation remains with the clerk does not manifest a bona fide intention to have process served." Boyattia, 18 S.W.3d at 734. Any deficiency in the server's performance is imputed to [ Plaintiff ]. Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.-Corpus Christi 1994, no writ).

A court looks to "the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service." Proulx, 235 S.W.3d at 216; see also Mauricio v. Castro, 287 S.W.3d 476, 479 (Tex. App.-Dallas 2009, no pet.) ("Texas courts have consistently held that lack of diligence may be shown based on unexplained lapses of time between the filing of the suit, issuance of the citation, and service of process."). It is the responsibility of the one requesting service to see that service is properly accomplished. Tex. R. Civ. P. 99(a); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994). [ Plaintiff ] does not adequately explain her effort in procuring service during the more than four months after she filed suit and more than three months after the limitations period expired. See Boyattia, 18 S.W.3d at 734 (Plaintiff's failure to take any action during the clerk's three-month delay in delivering the citation constituted a lack of diligence as a matter of law.); Webster v. Thomas, 5 S.W.3d 287, 288-90 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (Plaintiff failed to use due diligence as a matter of law, in part, because evidence showed that during three month period from filing suit to issuance of citation, plaintiff called wrong clerk's office when inquiring about issuance of citation.). [ Plaintiff ]'s issue is overruled. The trial court did not err in granting summary judgment. The judgment is affirmed

SOURCE: Beaumont Court of Appeals - 09-10-00157-CV - 6/16/11

LEADING TEXAS SUPREME COURT CASE: Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) ("[A] timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation."); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990) (same).
 
CASELAW CLIPS FROM OTHER COURTS ON DILIGENCE IN SERVING THE DEFENDANT 

Due diligence requires that the plaintiff exercise "that diligence to procure service which an ordinarily prudent person would have used under the same or similar circumstances." Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.-Corpus Christi 1994, no writ). It also requires that the plaintiff diligently pursue service on the defendant. Hodge, 856 S.W.2d at 215. Although the question of diligence is generally a fact question, a plaintiff may demonstrate a lack of diligence as a matter of law, "when one or more lapses between service efforts are unexplained or patently unreasonable." Proulx, 235 S.W.3d at 216. 

In assessing diligence, the relevant inquiry is whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex.2007); see Tate v. Beal, 119 S.W.3d 378, 381 (Tex. App.-Fort Worth 2003, pet. denied). Generally, the question of the plaintiff's diligence 370*370 in effecting service is one of fact, and diligence is determined by examining the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service. Proulx, 235 S.W.3d at 216; see Webster v. Thomas, 5 S.W.3d 287, 289-90 (Tex.App.-Houston [14th Dist.] 1999, no pet.). 

If the plaintiff's explanation for the delay raises a material fact issue concerning the diligence of service efforts, the burden shifts back to the defendant to conclusively show why, as a matter of law, the explanation is insufficient. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975). Whether a plaintiff acted with due diligence is generally a question of fact. Eichel v. Ullah, 831 S.W.2d 42, 43 (Tex. App.-El Paso 1992, no writ). The question of due diligence may be answered as a matter of law only when a delay in service is "unexplained or patently unreasonable." Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007) (per curiam). Whether diligence is lacking as a matter of law is a conclusion of law to be reviewed de novo. See, e.g., Ashley v. Hawkins, 293 S.W.3d 175, 180-81 (Tex. 2009). We will uphold the trial court's conclusion of law if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Lack of diligence may be found even in the face of an offered explanation, if that explanation affirmatively establishes lack of reasonable diligence. Id. When a defendant has affirmatively pleaded the defense of limitations and shown that service was not timely, as International Fidelity has done here, the burden shifts to the plaintiff to prove diligence. Id. (citing Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990)). If the plaintiff's explanation for the delay raises a material fact issue concerning the diligence of service efforts, the burden shifts back to the defendant to conclusively show why, as a matter of law, the explanation is insufficient. Id. 
  
OLDER CASES ON DILIGENCE IN PROCURING SERVICE OF CITATION 
  
Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970) (holding lack of diligence existed as matter of law when respondents waited seventeen months after learning of improper service to correct it); Perkins v. Groff, 936 S.W.2d 661, 668 (Tex. App.-Dallas 1996, writ denied) (upholding summary judgment because there was "no explanation for the delay" in service); Liles v. Phillips, 677 S.W.2d 802, 809 (Tex. App.-Fort Worth 1984, writ ref'd n.r.e.) (holding lack of diligence existed as matter of law when appellee "offered no explanation whatsoever concerning the delay between filing suit and service of citation"); Allen v. Bentley Labs, Inc., 538 S.W.2d 857, 860 (Tex. Civ. App.-San Antonio 1976, writ ref'd n.r.e.) (upholding summary judgment finding lack of diligence as matter of law when appellant "did not plead or offer any excuse for the delay of almost six months in serving [appellee]"); Williams v. Houston-Citizens Bank & Trust Co., 531 S.W.2d 434, 436 (Tex. Civ. App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.) (upholding judgment finding lack of diligence as matter of law when appellee "offered no explanation of the delay between issuance of the first and second citations"); Buie v. Couch, 126 S.W.2d 565, 567 (Tex. Civ. App.-Waco 1939, writ ref'd) (holding, when appellee failed to ascertain whether the clerk had prepared citation, that "[s]uch conduct on his part, without any excuse therefore, is wholly inconsistent with due diligence and constitutes negligence as a matter of law"). Furthermore, case law supports the existence of a fact question when a plaintiff attempts timely service, but miscommunications or mistakes by the district clerk's office unknown to the plaintiff result in service being unsuccessful. See Hodge v. Smith, 856 S.W.2d 212, 217 (Tex. App.-Houston [1st Dist.] 1993, writ denied); Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126, 128 (Tex. App.-Texarkana 1986, no writ).

Types of Defamation in Texas: Libel vs Slander, Per Se vs. Per Quod

DEFAMATION DEFINED Defamation is generally defined as the invasion of a person's interest in his or her reputation and good name. Prosser & Keeton on Torts § 111, at 771 (5th ed. 1984 & Supp. 1988). TWO CATEGORIES DEPENDING ON MODE OF COMMUNICATION Defamation claims are divided into two categories depending on how the defamatory statement was communicated: libel for written communications and slander for oral communications.[5] LEGAL CLASSIFICATION OF DEFAMATION CLAIMS: Per se vs. per quod Defamation claims are also divided into two categories, defamation per se and defamation per quod, according to the level of proof required in order to make them actionable. Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex.App.--Austin 2007, pet. denied); Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.App.--Waco 2005, no pet.). Statements that are defamatory per quod are actionable only upon allegation and proof of damages. Texas Disposal, 219 S.W.3d at 580; Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex.App.--Corpus Christi 2003, no pet.). That is, before a plaintiff can recover for defamation per quod, he must carry his burden of proof as to both the defamatory nature of the statement and the amount of damages caused by the publication of that statement. Texas Disposal, 219 S.W.3d at 580; See also Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984); Peshak v. Greer, 13 S.W.3d 421, 426 (Tex.App.--Corpus Christi 2000, no pet.). By contrast, in cases involving defamation per se, damages are presumed to flow from the nature of the defamation itself and, in most situations, a plaintiff injured by a defamatory per se communication is entitled to recover general damages without specific proof of the existence of harm. Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002) ("Our law presumes that statements that are defamatory per se injure the victim's reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish."); Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501 (Tex.App--Houston [14th Dist.] 2008, pet. denied); but see Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-48, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (holding that, so long as they do not impose liability without fault, States are free to define for themselves the appropriate standard of liability in defamation suits where a private plaintiff sues a media defendant for speech involving a public issue). The United States Supreme Court later clarified that the constitutional requirements of Gertz do not prohibit the application of strict liability to defamation suits involving private-figure plaintiffs who sue nonmedia defendants for speech involving nonpublic issues. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760-61, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). In suits involving such situations, courts applying Texas law have applied strict liability in defamation per se causes of action. See Thomas-Smith v. Mackin, 238 S.W.3d 503, 509 (Tex.App.--Houston [14th Dist.] 2007, no pet.); Peshak v. Greer, 13 S.W.3d 421, 425-26 (Tex.App.--Corpus Christi 2000, no pet.); Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1334 (5th Cir. 1993). Because the decision whether an alleged defamatory statement is defamatory per se or per quod affects the level of proof required, that question is initially determined by the trial court as a matter of law. Turner v. KTRK TV, Inc., 38 S.W.3d 103, 114 (Tex. 2000); Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654-55 (Tex. 1987). A communication is considered libel per se when it is so obviously hurtful to the person aggrieved that no proof of its injurious character is required to make it actionable. Clark v. Jenkins, 248 S.W.3d 418, 437 (Tex.App.--Amarillo 2009, pet. denied), cert. denied, __ U.S. __, 130 S.Ct. 52, 175 L.Ed.2d 21 (2009); Houseman v. Publicaciones Paso Del Norte, S.A. de C.V., 242 S.W.3d 518, 524 (Tex.App.--El Paso 2007, no pet.). A false statement will typically be classified as defamatory per se if it injures a person in his office, profession, or occupation; Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex.App.--Houston [1st Dist.] 2006, no pet.); charges a person with the commission of a crime; Leyendecker, 683 S.W.2d at 374; or imputes to him a loathsome disease. Bolling v. Baker, 671 S.W.2d 559, 570 (Tex.App.--San Antonio 1984, no writ). Whether a given statement is reasonably capable of a defamatory meaning is a question to be decided by the trial court as matter of law. See Musser, 723 S.W.2d at 654-55. The trial court should construe the alleged defamatory communication as a whole in light of the surrounding circumstances based upon how a reasonable person of ordinary intelligence would perceive it, considering the surrounding circumstances and the context of the statement. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 153 (Tex. 2003), cert. denied, 545 U.S. 1105, 125 S.Ct. 2557, 162 L.Ed.2d 276 (2005); Turner, 38 S.W.3d at 114. This is an objective test, not a subjective one. New Times, Inc., 146 S.W.3d at 157. Thus, the parties' opinion of the statements, Musser v. Smith, 690 S.W.2d 56, 58 (Tex.App.--Houston [14th Dist.] 1985), aff'd, 723 S.W.2d 653 (Tex. 1987), or the defendant's intent in making the statements have no bearing on whether they are defamatory. Peshak, 13 S.W.3d at 426 ("We assume the words were intended because they were used.") "Common sense requires courts to understand the statement as ordinary men and women would"; Moore, 166 S.W.3d at 385, and the question whether a statement is defamatory per se is only submitted to the jury if the contested language is ambiguous or of doubtful import. See Denton Pub. Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970). Otherwise, it is an issue of law for the trial court to decide. Musser, 723 S.W.2d at 655. Therefore, according to this body of law, a written communication, made by a nonmedia defendant, concerning a private-figure individual and pertaining to a nonpublic issue, which is obviously hurtful to the aggrieved party in his profession or occupation, is libel per se. SOURCE: Amarillo Court of Appeals - 07-09-0277-CV - 6/16/11

DTPA Claim in Texas: What is actionable?

   
What can bad actors (businesses) be sued for by consumers? 
   
The DTPA prohibits “[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce.” TEX. BUS. and COMM. CODE ANN. § 17.46(a) (West 2011).
 
DTPA Violations Laundry list 
 
Section 17.46(b) contains a laundry list of specifically prohibited acts. Included in that laundry list are (1) “representing that goods or services have characteristics which they do not have,” (2) “representing that goods or services are of a particular . . . quality, . . . if they are of another, ” (3) “representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve,” (4) “representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve,” and (5) “failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.” Id. § 17.46(b)(5), (7), (12), (20) and (24). Actionable representations may be oral or written. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex. 2001). Intent to make a misrepresentation is not required to recover under section 17.46 (b)(5), (7), and (12). See id.
 
What damages are available? 
 
Under section 17.50(a), a DTPA plaintiff may recover “economic damages” for which the defendant’s misconduct was a producing cause. TEX. BUS. and COM. CODE ANN. § 17.50(a) (West 2011). Economic damages include both benefit-of-the-bargain damages similar to those recoverable for breach of contract and out-of-pocket damages. See W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 (Tex. 1988) (explaining that out-of-pocket and benefit-of-the-bargain are two measures of damages under the DTPA, and noting that a plaintiff may recover the greater of the two measures). Additionally, “recovery under the DTPA is not exclusively limited to only these two types of damages.” Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 754 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Rather, the consumer may recover its “total loss sustained . . . as a result of the deceptive trade practice,” including “related and reasonably necessary expenses.” Id.; see D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d at 662, 663–64 (Tex. 1998) (explaining that a plaintiff can recover, in addition to out-of-pocket-expenses, any loss otherwise suffered as a consequence of misrepresentations); Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 162 (Tex. 1992) (holding that DTPA damages include recovery for “lost capital investment”). In other words, the consumer is “permitted [to recover] other damages to ensure that the plaintiff is made whole.” Bynum, 836 S.W.2d at 162.
 
Mere Breach of Contract not a DTPA violation 
   
[W]hen a plaintiff’s claim arises solely from the failure of one of the parties to perform on a contract, a DTPA action is inappropriate. Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14 (Tex. 1996) (per curiam); see also Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W.3d 85, 92 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that proof of a failure to comply with contractual promises “cannot be used to support an action under the DTPA”). In Crawford, the plaintiff sought to escape this rule based on the defendant’s misrepresentations that it would perform under the contract. The court held, however, that a misrepresentation that is based on nothing more than a failure to perform a contractual promise cannot be the basis for a DTPA claim; otherwise, every breach of contract claim would be converted into a DTPA claim. Id.
 
SOURCE: Houston Court of Appeals - 01-10-00017-CV - 6/16/11

Elements of Negligence cause of action

What are the elements of a cause of action for negligence under Texas law? A negligence cause of action has three elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). No duty of care - No viable lawsuit based on negligence The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Mathis v. RKL Design/Build, 189 S.W.3d 839, 844 (Tex. App.—Houston [1st Dist.] 2006, no pet.). When does duty exist - when not? The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence at issue. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Siegler, 899 S.W.2d at 197; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). “The nonexistence of a duty ends the inquiry into whether negligence liability may be imposed.” Van Horn, 970 S.W.2d at 544. Generally, no duty exists to take action to prevent harm to others absent certain special relationships or circumstances. Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000). SOURCE: Houston Court of Appeals - 01-10-00078-CV - 6/9/11 RELATED LEGAL TERMS: negligent conduct, omission, failure to act, exercise care, tort claims, claims sounding in tort, no fiduciary relationship, duty of care

Legal Malpractice - Elements of claim by client against attorney

When is lously lawyering actionable? Elements of legal malpractice in Texas: To recover on a claim of legal malpractice a plaintiff must prove: (1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused the plaintiff’s injuries; and (4) damages occurred. Alexander v. Turtur & Associates, Inc., 146 S.W.3d 113, 117 (Tex. 2004); Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995). Privity, which refers to the contractual connection or relationship existing between attorney and client, is directly related to the existence of duty and is necessary for a plaintiff to have standing to bring a legal malpractice claim. Thompson v. Vinson & Elkins, 859 S.W.2d 617, 621 (Tex.App.--Houston [1st Dist.] 1993, writ denied). SOURCE: El Paso Court of Appeals - 08-10-00168-CV - 615/11 RELATED LEGAL TERMS: attorney malpractice, legal malpractice, grievance, professsional competence, incompetence, inadequate or incompetent legal representation, former client's suits against lawyer