Sunday, October 30, 2011

Elements of Judicial Estoppel

Judicial estoppel “precludes a party from adopting a position inconsistent with one that it maintained successfully in an earlier proceeding.” Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008). This doctrine requires that: (1) a sworn, inconsistent statement be made in a prior judicial proceeding; (2) the party making the statement gained some advantage by it; (3) the statement was not made inadvertently or because of mistake, fraud, or duress; and (4) the statement was deliberate, clear, and unequivocal. Galley v. Apollo Associated Servs., Ltd., 177 S.W.3d 523, 528–29 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also Pagosa Oil & Gas, L.L.C. v. Marrs & Smith P’ship, 323 S.W.3d 203, 218 (Tex. App.—El Paso 2010, pet. denied) (holding same).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00766-CV - 10/27/11

When is a plaintiff/creditor entitled to pre-judgment interest under Texas law?

Prejudgment interest is recoverable as a matter of right when an ascertainable sum of money is found due and payable at a definite date before judgment. Jarrin v. Sam White Oldsmobile Co., 929 S.W.2d 21, 24 (Tex. App.—Houston [1st Dist.] 1996, writ denied); see, e.g., Henry Bldg., Inc. v. Milam, No. 05-99-01400-CV, 2001 WL 246882, at *3–4 (Tex. App.—Dallas Mar. 14, 2001, pet. denied) (holding that trial court erred by awarding contractor six-percent-per-year prejudgment interest instead of one and one-half percent per month prejudgment interest under section 28.004(b)).

A general prayer for prejudgment interest sufficiently invokes a statutory right to such interest. Benavidez v. Isles Constr. Co., 726 S.W.2d 23, 25 (Tex.1987); Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 441 (Tex. App.—Houston [1st Dist.] 2000, no pet.). Because the plaintiff is entitled to prejudgment interest based on a prayer for general relief alone, a plaintiff need not specifically plead prejudgment interest if the claim falls within the scope of a statute authorizing pre-judgment interest. Olympia Marble & Granite, 17 S.W.3d at 441; see e.g. Talley Constr. Co. v. Rodriguez, 01-03-01147-CV, 2006 WL 908180 (Tex. App.—Houston [1st Dist.] Apr. 6, 2006, no pet.) (holding that trial court did not err in awarding claimant eighteen percent per year in pre-judgment interest under section 28.004(b) because claimant’s pleading included prayer for general relief).
SOURCE: HOUSTON COURT OF APPEALS   - 01-10-00704-CV - 10/27/11

The Finance Code provides that the consumer credit commissioner shall determine the postjudgment interest rate to apply to money judgments. TEX. FIN. CODE ANN. § 304.003(c)(2). The interest rate published by the consumer credit commissioner for judgments issued in May 2010 was five percent per year.

Workplace injury claim by employee not covered by employer's Workers Comp (nonsubscriber)

In order for an employee to recover from an employer who is a non-subscriber under the Texas Worker’s Compensation Act, the employee must establish negligence on the part of the employer. Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 310 (Tex. App.—Houston [1st Dist.] 2007, no pet.). 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. Id. The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
The existence of duty is a question of law for a court to decide from the facts surrounding the occurrence in question. 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 existence of duty is a question of law when all of the essential facts are undisputed, but when the evidence does not conclusively establish the pertinent facts or the reasonable inferences to be drawn therefrom, the question becomes one of fact . . . .” Mitchell v. Missouri-Kansas, Texas R.R. Co., 786 S.W.2d 659, 662 (Tex. 1990) (quoting Bennett v. Span Indus., Inc., 628 S.W.2d 470, 474 (Tex. App.—Texarkana 1981, writ ref’d n.r.e.)); see also Sanders v. Herold, 217 S.W.3d 11, 15 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Mitchell).
An employer has a duty to “warn an employee of the hazards of employment and provide needed safety equipment or assistance.” Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, 568 (Tex. 2007). An employer has a “duty to warn or caution an employee of a danger” when (1) ‘the employment is of a dangerous character requiring skill and caution for its safe and proper discharge,” and (2) “the employer is aware of the danger and has reason to know the employee is unaware.” Nat’l Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.). However, an employer is not an insurer of its employees’ safety. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). An employer therefore does not owe a duty “to warn of hazards that are commonly known or already appreciated by the employee.” Jack in the Box, 221 S.W.3d at 568–¬69 (quoting Elwood, 197 S.W.3d at 794). In looking to the scope of this duty, the employee’s age and experience should be considered. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 412 (Tex. 2009).
“Where an employer provides its employee with at least one safe way to perform her assigned tasks and the employee chooses to perform the task by a different method, thereby injuring herself, the employer is not liable.” Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544, 548 (Tex. App.—Texarkana 1996, writ denied) (citing Great Atl. & Pac. Tea Co. v. Lang, 291 S.W.2d 366, 367–68 (Tex. Civ. App.—Eastland 1956, writ ref’d n.r.e.)). When, however, there is evidence that the employer failed to instruct its employees on how to perform their jobs while avoiding known safety risks, an employer may still be liable. See id.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00867-CV - 10/20/11

Friday, October 21, 2011

What is trespass, legally speaking? How about a nuisance?


Trespass to real property is an unauthorized entry upon the land of another, and may occur when one enters—or causes something to enter—another’s property. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 11 n.29 (Tex. 2008); Glade v. Dietert, 295 S.W.2d 642, 645 (Tex. 1956). "[E]very unauthorized entry upon land of another is a trespass even if no damage is done or injury is slight." Coastal Oil, 268 S.W.3d at 12 n.36 (quoting McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex. Civ. App.—Beaumont 1934, writ ref’d) (alteration in original)).

A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004); see also Burditt v. Swenson, 17 Tex. 489 (1856).

The common definition of damage is "loss due to injury: injury or harm to person, property, or reputation." WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 571 (2002).

SOURCE: TEXAS SUPREME COURT - 10-0669 - 10/21/11 - Barnes v. Mathis (Tex. 2011)
(per curiam opinion


The Texas Property Code provides in part, "A trespass to try title action is the method for determining title to lands, tenements, or other real property." TEX. PROP. CODE ANN. § 22.001(a) (West 2014). 

"To prevail in a trespass-to-try-title action, a plaintiff must usually (1) prove a regular chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned." Wilhoite v. Sims, 401 S.W.3d 752, 760 (Tex. App.-Dallas 2013, no pet.).  

Parties to a contract obligated to cooperate to facilitate compliance, performance under the contract

CONTRACT LAW: Texas courts recognize implied duty to cooperate
A duty to cooperate is implied in every contract in which cooperation is necessary for performance of the contract. This implied duty requires that a party to a contract may not hinder, prevent, or interfere with another party's ability to perform its duties under the contract. Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 770 (Tex. App.--Dallas 2005, pet. denied); Bank One, Tex., N.A. v. Stewart, 967 S.W.2d 419, 435 (Tex. App.—Houston [14th Dist.] 1998, pet. denied); Hallmark v. Hand, 833 S.W.2d 603, 610 (Tex. App.—Corpus Christi 1992, writ denied).

Additionally, when one party to a contract, by wrongful means, prevents the other party from performing, such an action by the party at fault constitutes a breach of contract. The effect of such a breach is not only to excuse performance by the injured party, but also to entitle it to recover for any damage it may sustain by reason of the breach. Smith v. Lipscomb, 13 Tex. 532, 538 (1855); Arceneaux v. Price, 468 S.W.2d 473, 474 (Tex. Civ. App.—Austin 1971, no writ); S.K.Y. Inv. Corp. v. H. E. Butt Grocery Co., 440 S.W.2d 885, 889–90 (Tex. Civ. App.—Corpus Christi 1969, no writ).


Admissibility of testimony [parol evidence] regarding contract terms

When may a court consider parol evidence (testimony as to terms) when interpreting and enforcing a contract?

MERGER OR INTEGRATION CLAUSE generally bars parol evidence

Generally, a written instrument presumes that all prior agreements relating to the transaction have been merged into it and it will be enforced as written and cannot be added to, varied, or contradicted by parol testimony. See Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Wilkins v. Bain, 615 S.W.2d 314, 315 (Tex. Civ. App.—Dallas 1981, no writ).

This rule is particularly applicable where the written contract contains a recital that it contains the entire agreement between the parties or a similarly worded merger provision. See Weinacht v. Phillips Coal Co., 673 S.W.2d 677, 679 (Tex. App.—Dallas 1984, no writ).


However, in case of an incomplete instrument, an exception to the parol evidence rule applies, even though fraud, accident, or mistake is not shown. Robertson, Inc. v. Webster, 679 S.W.2d 683, 688 (Tex. App.—Houston [1st Dist.] 1984, no writ) (concluding oral agreement regarding time of delivery of pickup truck to customer was not inconsistent with terms of agreement between car dealer and customer, for purposes of determining whether dealer's false representations regarding the delivery date were actionable under the Deceptive Trade Practices - Consumer Protection Act, notwithstanding the presence of a merger clause in the sales order form, where the instrument itself referred to"delivery" numerous times and yet contained no delivery date).


ALSO RELEVANT: parol evidence rule, ambiguous vs. unambiguous contracts, definiteness of contractual terms

Thursday, October 20, 2011

Double recovery barred under the one-satisfaction rule

Under Texas rules of civil procedure, it is permissible to plead even inconsistent theories of recovery in the alternative, but dual recovery on different legal theories is precluded if there was only a single injury.   
Pursuant to Texas Rules of Civil Procedure, Rule 48, a party may plead "as many separate claims or defenses as he has regardless of consistency." The "one satisfaction rule" provides that a plaintiff cannot obtain more than one recovery for the same injury. Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184–85 (Tex.1998); Borden v. Guerra, 860 S.W.2d 515, 528 (Tex. Civ. App.—Corpus Christi 1993, writ dism’d by agr.) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991)). This rule is based on the principle that, with only one injury, "there can, in justice, be but one satisfaction for that injury." Id. When a plaintiff pleads alternate theories of liability, a judgment that awards damages based upon both theories does not amount to a double recovery if the theories of liability arise from two separate and distinct injuries, and there has been a separate and distinct finding of damage on both theories of liability. Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 367 (Tex. 1987); Berry Prop. Mgmt, Inc. v. Bliskey, 850 S.W.2d 644, 664–66 (Tex. App.—Corpus Christi 1993, writ dism’d by agr.).

An impermissible double recovery occurs when there is only one injury, the theories of liability are mutually exclusive, or there are no separate damages findings based on the alternate theories of liability. See Southern Cty. Mut. v. First Bank & Trust, 750 S.W.2d 170, 173–174 (Tex. 1988); Birchfield, 747 S.W.2d at 367. When confronted with a situation of double recovery, the affirmative defense of election of remedies, under certain circumstances, bars a person from pursuing two inconsistent remedies. See generally Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850–52 (Tex. 1980).9 The Bocanegra court articulated the following test for the election doctrine to bar relief: (1) one successfully exercises an informed choice; (2) between two or more remedies, rights, or states of facts; (3) which are so inconsistent as to; (4) constitute manifest injustice. Id.; Medina, 927 S.W.2d at 600.



We hold that the damages awarded to White constitute two separate and distinct injuries, with separate and distinct findings of damages on different theories of liability. See Birchfield, 747 S.W.2d at 367. Further, White’s damages are not so inconsistent as to constitute a manifest injustice. See Bocanegra, 605 S.W.2d at 850. We overrule Washington Mutual’s third issue.

Denial of Crime Victim's Compensation Claim by the AG - Judicial Review Suit

Tex. Code Crim. Proc. Ann. ch. 56, subch. B (Vernon 2006 & Supp. 2010)

Judicial review of denial of claim by the Attorney General is available, but subject to tight deadline.

Deadline for Judicial Review  

If the attorney general denies a crime victim’s compensation claim, the claimant may obtain judicial review of that decision. Article 56.48(a) provides in relevant part:
Not later than the 40th day after the attorney general renders a final decision, a claimant or victim may file with the attorney general a notice of dissatisfaction with the decision. Not later than the 40th day after the claimant or victim gives notice, the claimant or victim shall bring suit in the district court having jurisdiction.

The Texas Administrative Code contains similar language pertaining to these claims:
Not later than the 40th day after the victim or claimant gives the OAG notice of dissatisfaction with the OAG’s final decision from the hearing, the victim or claimant has a right to bring suit in a district court having jurisdiction over the matter

The attorney general’s position is that the 40-day period within which the claimant is to file his lawsuit starts to run when he files his first notice of dissatisfaction. Louis, on the other hand, claims that a claimant may amend his notice of dissatisfaction as many times as he likes so long as he files the amended notices within forty days after the attorney general enters a final decision. Louis maintains that the 40-day period within which a claimant is to file his lawsuit does not begin to run until the claimant files his last amended notice of dissatisfaction. If the attorney general is correct, then Louis filed his petition for judicial review late. If Louis is correct, then he timely filed his lawsuit for judicial review, and the trial court erred when it granted the attorney general’s plea to the jurisdiction.

SOURCE: EASTLAND COURT OF APPEALS - 11-09-00315-CV - 10/6/11

The trial court found that Kelvin E. Louis’s petition for judicial review of the attorney general’s decision to deny his claim as a crime victim was not timely filed. It therefore granted the attorney general’s plea to the jurisdiction. We affirm.

Availability of declaratory relief under the Texas version of the UDJA

When is declaratory relief available under the Declaratory Judgments Act (DJA), when not? 

A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, or ordinance, contract or franchise and obtain a declaration of rights, status, or other legal relations thereunder. Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 2008).
The purpose of the Declaratory Judgments Act is "to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Tex. Civ. Prac. & Rem.Code Ann. § 37.002(b) (West 2008). It is "remedial" and "is to be liberally construed." Id.
The Declaratory Judgments Act cannot be used to obtain an advisory opinion, which Texas courts lack subject-matter jurisdiction to give. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993).
Declaratory judgment is appropriate only when a real controversy exists between the parties and the entire controversy may be determined by the judicial declaration. Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004); OAIC Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 745 (Tex. App.-Dallas 2007, pet. denied). The Act does not give a litigant the right to try a case piecemeal. United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 858 (Tex. 1965); SW Airlines Co. v. Tex. High-Speed Rail Auth., 863 S.W.2d 123, 125 (Tex. App.-Austin 1993, writ denied).
Ripeness is a requirement of justiciability. Perry v. Del Rio, 66 S.W.3d 239, 249 (Tex. 2001); Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). The ripeness doctrine conserves judicial time and resources for real and current controversies, rather than abstract, hypothetical, or remote disputes. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); TCI West End, Inc. v. City of Dallas, 274 S.W.3d 913, 918 (Tex. App.-Dallas 2008, no pet.). The doctrine prohibits suits involving "uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all." Patterson, 971 S.W.3d at 442. A case is not ripe if its resolution depends on contingent facts or upon events that have yet to come to pass. See id. at 443.
A defendant may not use a declaratory judgment to prematurely adjudicate defenses to liability that may not yet exist. Cf. Calderon v. Ashmus, 523 U.S. 740 (1998) (under federal constitution, party may not use a declaratory judgment to get advance ruling on an affirmative defense); see also Cohen v. Orthalliance New Image, Inc., 252 F. Supp.2d 761, 766 (N.D. Ind. 2003) (assessing the success of a defense to a potential claim (breach-of-contract or otherwise) is generally the type of hypothetical question federal courts endeavor to avoid).
SOURCE: DALLAS COURT OF APPEAL - 05-10-00655-CV - 10/19/11


A declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). "To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute" Id. If declaratory relief will not terminate a controversy between parties and would be irrelevant at the time judgment is rendered, a declaratory judgment will amount to no more than an advisory opinion, which the trial court lacks power to provide. Kenneth Leventhal & Co. v. Reeves, 978 S.W.2d 253, 259 (Tex. App.—Houston [14th Dist.] 1998, no pet.).


"Agent" who contracts faces personal liability if purported principal does not exist

Supposed agent's signature on contract entails personal liability when the purported principal does not actually exist  
AGENT & PRINCIPAL: Consequences of contract formation when the principal is fictitious
[As a purported agent of a nonexistent principal a person] would be personally liable for any contract he made on behalf of that company. See Carter v. Walton, 469 S.W.2d 462, 471 (Tex. Civ. App.—Corpus Christi 1971, writ ref’d n.r.e.) ("As a general rule, one who contracts as an agent in the name of a nonexistent or fictitious principal, or a principal without legal status or existence, renders himself personally liable on the contracts so made.") (quoting 3 Am. Jur. 2d Agency § 295 (1962)); see also Restatement (Third) of Agency § 6.04 (2006) ("Unless the third party agrees otherwise, a person who makes a contract with a third party purportedly as an agent on behalf of a principal becomes a party to the contract if the purported agent knows or has reason to know that the purported principal does not exist or lacks capacity to be a party to a contract").
SOURCE: HOUSTON COURT OF APPEALS - 14-10-01077-CV - 10/20/11
AGENTS AND PRINCIPALS: Who is liabile on the contract?
In general, a person making a contract with another as agent for a disclosed principal does not become a party to the contract; but an agent of a disclosed principal will be held personally liable if the agent substitutes the agent‘s own responsibility for that of the principal, or pledges the agent‘s own responsibility in addition to that of the principal. Collins v. Guinn, 102 S.W.3d 825, 835 (Tex. App.—Texarkana 2003, no pet.); A to Z Rental Ctr. v. Burris, 714 S.W.2d 433, 435 (Tex. App.—Austin 1986, writ ref‘d n.r.e.). In order to avoid personal liability, an agent must disclose both the fact that the agent is acting in a representative capacity and the identity of the principal. Wynne v. Adcock Pipe & Supply, 761 S.W.2d 67, 69 (Tex. App.—San Antonio 1988, pet. denied). The agent is not relieved of the responsibility to disclose this information merely because the third party has the means of discovering the principal‘s identity. Id. Actual knowledge of the real principal, not suspicion, is the test. Hideca Petroleum v. Tampimex Oil Int’l, 740 S.W.2d 838, 842 (Tex. App.—Houston [1st Dist.] 1987, no writ).  

Enforceability of contractual forum selection in Texas

Contractual choice of forum for litigation 
Forum-selection clauses are generally enforceable and presumptively valid. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (per curiam). A trial court abuses its discretion in refusing to enforce the clause unless the party opposing enforcement clearly shows (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3) enforcement would contravene a strong public policy of the forum where the suit was brought, or (4) the selected forum would be seriously inconvenient for trial. Id. The burden of proof is heavy for the party challenging enforcement. Id.
SOURCE: HOUSTON COURT OF APPEALS - 14-10-01077-CV - 10/20/11

RELATED LEGAL TERMS: venue, mandatory and permissive venue, motion to transfer venue

Thursday, October 13, 2011

Agree to arbitrate ---> waive right to trial by jury (or to the bench, for that matter)

When a party agrees to have a dispute resolved through arbitration rather than a judicial proceeding, that party has waived its right to a jury trial. Massey v. Galvan, 822 S.W.2d 309, 318 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (holding appellants could not claim they were entitled to jury trial after they submitted to arbitration and arbitrators made an award appellants felt was in error).
We interpret arbitration agreements under traditional contract principles. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). We examine and consider the entire writing in an effort to harmonize potential conflicts between differing provisions and give effect to all the provisions of the contract so that none will be rendered meaningless. MCI Telecomms. Corp. v. Texas Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999); In re Premont Indep. Sch. Dist., 225 S.W.3d 329, 333 (Tex. App.—San Antonio 2007, orig. proceeding). No single provision taken alone will be given controlling effect. In re Premont Indep. Sch. Dist., 225 S.W.3d at 333.
If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). When a contract is not ambiguous, the contract should be enforced as written. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 862 (Tex. 2000)
SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00097-CV - 10/12/11 

Wednesday, October 12, 2011

Texas Whistleblower Act: Is an internal grievance always required prior to a whistle-blower lawsuit?


Initiation of internal grievance process with governmental employers generally required prior to lawsuit, but there may be rare exceptions....

The Texas Whistleblower Act provides that, "[a] state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." TEX. GOV’T CODE ANN. § 554.002(a). A governmental entity’s sovereign immunity is waived for violation of the Act. Id. at § 554.0035.


A plaintiff must allege the following elements of a claim under the Act: (1) she is a public employee; (2) she acted in good faith in making a report; (3) the report involved a violation of law; (4) the report was made to an appropriate law enforcement authority; and (5) she suffered retaliation as a result of making the report. County of Bexar v. Steward, 139 S.W.3d 354, 357-58 (Tex. App.—San Antonio 2004, no pet.).


The employee bears the burden of proof, except that if the suspension, termination or adverse personnel action occurs within 90 days of the employee’s report, then a rebuttable presumption arises that the employer’s action was because the employee made the report. TEX. GOV’T CODE ANN. § 554.004(a). It is an affirmative defense that the employer would have taken the action against the employee based solely on information, observation, or evidence unrelated to the employee’s report. Id. a § 554.004(b).
As a statutory prerequisite to the filing of suit under the Act, an employee must "initiate action under the grievance or appeal procedures" of the employer within 90 days after the employer’s alleged violation of the Act. Id. at § 554.006(a). The purpose of this prerequisite is to give the employer "the opportunity to correct its errors by resolving disputes before being subjected to the expense and effort of litigation." City of San Antonio v. Marin, 19 S.W.3d 438, 441 (Tex. App.—San Antonio 2000, no pet.), disapproved on other grounds by 159 S.W.3d 631 (Tex. 2005) (citing House Research Organization, Bill Analysis, Tex. H.B. 1405, 71st Leg., R.S. (1989)); Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 774 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.).   


Section 554.006 does not require exhaustion of the employer’s grievance or appeal procedures, but merely timely initiation, before suit may be filed. Univ. of Tex. Med. Branch v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005) (recognizing effect of 1995 amendment that requires only initiation of grievance by employee, not full exhaustion, and a 60 day waiting period for employer’s final decision on grievance; holding if employee’s suit is filed prematurely, proper remedy is abatement).
The statutory prerequisites to filing suit under the Act are mandatory and jurisdictional. Smith v. Univ. of Tex. Sw. Med. Ctr. of Dallas, 101 S.W.3d 185, 189 (Tex. App.—Dallas 2003, no pet.). However, the purpose of the Act is remedial and it should be liberally construed in favor of jurisdiction. Town of Flower Mound v. Teague, 111 S.W.3d 742, 752 (Tex. App.—Fort Worth 2003, pet. denied); Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 319 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00113-CV - 10/12/11
Leyva v. Crystal City, Texas (Tex.App.- San Antonio, 2011, no pet. h.)
Appeal from 293rd Judicial District Court of Zavala County

Conclusion. Because it is unclear whether the City’s grievance procedure applies to terminated employees, we hold the trial court erred in granting the City’s plea to the jurisdiction based on Leyva’s failure to initiate a grievance under the City’s procedures after her termination. See Miranda, 133 S.W.3d at 227-28. Because this issue is dispositive of the appeal, we need not reach Leyva’s second issue. Accordingly, the trial court’s order granting the City’s plea to the jurisdiction is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00113-CV - 10/12/11

RELATED CAUSES OF ACTION: Sabine Pilot wrongful termination claim against private employer (fired for refusing to commit illegal act); OTHER PAGES ON WHISTLEBLOWERS: Texas Supreme Court Whistleblower Decisions   

Forcible Detainer Action vs. Litigating title disputes and wrongful foreclosure


Jurisdiction to hear forcible detainer actions is vested in justice courts, and on appeal, to county courts for trial de novo. Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dis’m w.oj.) (op. on reh’g). A forcible detainer action is a procedure to determine the right to immediate possession of real property where there was no unlawful entry. Mekeel v. U.S. Bank Nat’l Ass’n, No. 08-10-00122-CV, — S.W.3d —, 2011 WL 3715936, at *2 (Tex. App.—El Paso Aug. 24, 2011, no pet. h.); Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 470 (Tex. App.—Dallas 2010, pet. dism’d w.o.j.).

A forcible detainer action is intended to be a speedy, simple, and inexpensive means to obtain possession without resort to an action on title. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006); Shutter, 318 3 S.W.3d at 470. To maintain simplicity, Rule 746 provides that, ―[i]n case of forcible entry or of forcible detainer . . . , the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated.
TEX. R. CIV. P. 746; see also Marshall, 198 S.W.3d at 785; Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568 (Tex. App.—Dallas 2008, pet. dism’d w.o.j.). To prevail, it is not necessary for the plaintiff to prove title to the property; rather, the plaintiff is only required to present sufficient evidence of ownership to demonstrate a superior right to immediate possession. Terra XXI, Ltd. v. AG Acceptance Corp., 280 S.W.3d 414, 417 (Tex. App.—Amarillo 2008, pet. denied); Villalon v. Bank One, 176 S.W.3d 66, 70 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.—Houston [14th Dist.] 1993, no writ).

However, when the issue of immediate possession requires resolution of a title dispute, neither the justice court nor the county court at law have jurisdiction to render a judgment for possession. Elwell, 267 S.W.3d at 568; Dormady, 61 S.W.3d at 557. Specifically, if the question of title is so intertwined with the issue of possession, then possession may not be adjudicated without first determining title. Villalon, 176 S.W.3d at 70; Dormady, 61 S.W.3d at 557.

In a forcible detainer action pursuant to section 24.002 of the Texas Property Code, the plaintiff is required to show that (1) it owned the property by virtue of a deed; (2) the defendant became a tenant-at-sufferance when the property was sold; (3) it gave proper notice to the defendant requiring him to vacate the premises; and (4) the defendant refused to vacate the premises. See Elwell, 267 S.W.3d at 568–69 (citing T
EX. PROP. CODE ANN. § 24.002 (West 2000)).

SOURCE: HOUSTON COURT OF APPEALS - 14-10-00698-CV - 10/11/11 Robert Bittinger v. Wells Fargo as Trustee for the Certificate Holders of Soundview Home Loan Trust 2007-OPT1, Asset-Backed Certificates Series 2007-OPT1--Appeal from County Civil Courtt at Law No 1 of Harris County (Judge R. Jack Cagle)

Thursday, October 6, 2011

Governmental immunity & local governmental entities


Governmental immunity protects political subdivisions of the state, including cities, from lawsuits for money damages, unless such immunity has been waived. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Governmental immunity, like sovereign immunity, involves immunity from suit and immunity from liability. Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008) (explaining that “both types of immunity afford the same degree of protection”). Immunity from suit is jurisdictional and bars suit, whereas immunity from liability is not jurisdictional and protects from judgments. Harris Cnty. Hosp. Dist., 283 S.W.3d at 842.


When governmental immunity is waived by the legislature, the waiver must use clear and unambiguous language indicating its intent do so. See Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex. 2010); Harris Cnty. Hosp. Dist., 283 S.W.3d at 842. A plaintiff bears the burden to affirmatively demonstrate the trial court’s jurisdiction by alleging a valid waiver of immunity, which may be either a reference to a statute or to express legislative permission. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999).

A municipality, like the City, has immunity only for its governmental acts, not its proprietary acts. East Houston Estate Apartments., L.L.C. v. City of Houston, 294 S.W.3d 723, 730 (Tex. App.—Houston [1st Dist.] 2009, no pet.). In the Texas Tort Claims Act, the legislature has noted that governmental functions “are those functions that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215 (Vernon 2011). On the other hand, a proprietary act is an act performed by a municipality in its discretion, primarily for the benefit of those within its corporate limits rather than for the general public. Id. § 101.0215(b). The legislature has expressly stated that governmental functions include fire protection, street construction and design, and parking facilities. Id. § 101.0215(a)(1), (25), (31).

The legislature has waived governmental immunity from suit for local governmental entities when they enter into certain contracts. See TEX. GOV’T CODE ANN. § 271.152. However, this Court has held that section 271.152’s waiver of immunity does not include claims founded in quantum meruit. City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 13 (Tex. App.—Houston [1st Dist.] 2007, no pet.)( section 271.152 waives sovereign immunity only for breach of contract and “lists no other claims, either in law or in equity”; therefore, section 271.152 does not apply to claims for quantum meruit ); see also H & H Sand & Gravel, Inc. v. City of Corpus Christi, No. 13-06-00677-CV, 2007 WL 3293628, at *3 (Tex. App.—Corpus Christi Nov. 8, 2007, pet. denied) (mem. op.) (holding that claims in equity, including waiver by acceptance of material and benefit and detrimental reliance, are not encompassed by section 271.152’s limited waiver). Furthermore, section 271.152(2) defines a “contract subject to this subchapter” as a “written contract.” Because a claim for promissory estoppel is not a claim on a written contract, immunity is not waived under section 271.152 for such a claim. The workers’ promissory estoppel and quantum meruit claims sound in equity, and they are simply not included in section 271.152’s limited waiver of governmental immunity. See Swinerton Builders, Inc., 233 S.W.3d at 13.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00490-CV - 8/25/11


The Texas Tort Claims Act waives a governmental entity’s immunity from suit on all claims for which it waives immunity from liability. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.025. It provides a limited waiver of immunity for: (1) property damage, personal injury, and death caused by the negligence of an employee if it arises from the operation or use of a motor-driven vehicle or equipment and (2) personal injury and death so caused by a condition or use of tangible personal or real property. Id. § 101.021 (Vernon 2011).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00490-CV - 8/25/11

RELATED LEGAL TERMS: sovereign and governmental immunity doctrines, waiver of immunity to sue and/or liability, governmental immunity vs. sovereign immunity vs. official immunity , Texas Tort Claims Act

Common-law tort of CONVERSION of property


To establish a claim for conversion, a plaintiff must prove the following elements: (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.  Ashdon, Inc. d/b/a Impression Bridal v. Gary Brown & Assocs., Inc., 260 S.W.3d 101, 116 (Tex. App.—Houston [1st Dist.] 2008, no pet.). 
SOURCE: HOUSTON COURT OF APPEALS - 01-10-00416-CV - 9/22/11
RELATED CAUSES OF ACTION: Claim under the Texas Theft Liability Act, civil theft, misappropriation  

IIED (tort law)

IIED: Cause of Action of Last Resort (so to speak) in Texas

Intentional infliction of emotional distress is a gap-filler tort: “judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).

Where the gravamen of a complaint is covered by another common-law or statutory tort, intentional infliction of emotional distress is not available. Id. This is true even if plaintiff does not assert the precluding claim in her petition—such as Chapter 21 of the Texas Labor Code in this instance—or asserts the displacing claim but does not prevail—such as Title VII of the Civil Rights Act of 1964 in this instance. See id. at 448.

Shell and Penilla argued that Garcia’s intentional infliction of emotional distress claims against them were precluded by Title VII and Chapter 21 of the Texas Labor Code. See 42 U.S.C. § 2000e-2; TEX. LAB. CODE ANN. § 21.051 (Vernon 2006).

The Texas employment discrimination statutes were modeled after Title VII with the purpose of executing the policies set forth in Title VII. Hoffman-La Roche, 144 S.W.3d at 445. Due to their similarity, federal cases analyzing Title VII may be cited as authority in cases relating to the Texas statutes. Id. at 446. Like the federal statute, Texas law provides, “An employer commits an unlawful employment practice if because of . . . sex . . . the employer . . . discriminates in any . . . manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.” TEX. LAB. CODE ANN. § 21.051(1). Also like the federal statute, Texas defines employer in this context as “a person who is engaged in an industry affecting commerce and who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” TEX. LAB. CODE ANN. § 21.002(8) (Vernon Supp. 2010).

Accordingly, for the purposes of this appeal, we draw no distinction between the federal and state statutes in determining whether they preclude Garcia’s intentional infliction of emotional distress claims.

The Texas Supreme Court recently held that a statutory sexual harassment claim precludes all common-law causes of action for the same injury. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 803 (Tex. 2010). Specifically, the court held, “Today’s question is whether employer liability for unwanted sexual touching by a coworker . . . is limited to a tailored [statutory] scheme that specifically covers employer liability for sexual harassment. We think the answer should be yes.” Id.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00773-CV - 9/8/11

Unconscionability: Should the court refuse to enforce the contract because it was unconscionable?


The unconscionability of a contract is a question of law for the court. Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 136 (Tex.App.—Waco 2005, pet. denied). In Texas, the party asserting unconscionability has the burden of proving both procedural and substantive unconscionability. Id.

To determine procedural unconscionability, courts examine “the contract formation process and the alleged lack of meaningful choice.” BDO Seidman, LLP v. J.A. Green Dev. Corp., 327 S.W.3d 852, 858–59 (Tex. App.—Dallas 2010, no pet.).

Substantive unconscionability, on the other hand, concerns the fairness in the contract provisions themselves. See In re Halliburton Co., 80 S.W.3d 566, 571 (Tex. 2002). The grounds for substantive unconscionability must be “sufficiently shocking or gross to compel the court to intercede, . . . and the same is true for procedural abuse—the circumstances surrounding the negotiations must be shocking.” McCalla, 167 S.W.3d at 136.

SOURCE: Houston Court of Appeals - 01-08-01029-CV - 9/22/11

Elements of Duress Defense

Essential elements to prove the applicability of this affirmative defense in bid to avoid contract
The elements of duress are: (1) a threat or action taken without legal justification; (2) the action or threat was of such a character as to destroy the other party’s free agency; (3) the threat or action overcame the opposing party’s free will and caused it to do that which it would not otherwise have done and that which it was not legally bound to do; (4) the restraint was imminent; and (5) the opposing party had no present means of protection. Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 443 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

SOURCE: Houston Court of Appeals - 01-08-01029-CV - 9/22/11

Fiduciary Duty and Constructive Fraud in the Context of Marriage


A fiduciary duty exists between a husband and a wife as to the community property controlled by each spouse. Knight v. Knight, 301 S.W.3d 723, 731 (Tex. App.—Houston [14th Dist.] 2009, no pet.). “The breach of a legal or equitable duty which violates this fiduciary relationship existing between spouses is referred to as „fraud on the community,‟ a judicially created concept based on the theory of constructive fraud.” Id. Any such conduct in the marital relationship is termed fraud on the community because, although not actually fraudulent, it has all the consequences and legal effects of actual fraud. Id. Such conduct tends to deceive the other spouse or violate confidences that exist as a result of the marriage. Id.

A presumption of constructive fraud arises when a spouse unfairly disposes of the other spouse‟s interest in community property. Jean v. Tyson-Jean, 118 S.W.3d 1, 9 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The burden is upon the disposing spouse or his donee to prove the fairness of a disposition of the other spouse‟s one-half community property. Id. In considering a claim of constructive fraud, the court may consider three factors: (1) the size of the gift in relation to the total size of the community estate; (2) the adequacy of the remaining estate; and (3) the relationship of the donor to the donee. Knight, 301 S.W.3d at 731.

SOURCE: HOUSTON COURT OF APPEALS - NO. 14-10-01081-CV - 10/4/11

Suit to enforce guaranty agreement against guarantor when the principal obligor defaults


A guaranty is a promise to a creditor by a third party to pay a debt on behalf of a principal in the event that the principal defaults on the original obligation. See Republic Nat’l Bank of Dallas v. Nw. Nat’l Bank of Fort Worth, 578 S.W.2d 109, 114 (Tex. 1978). A continuing guaranty covers a series of transactions, rather than just a single liability. See Sonne v. FDIC, 881 S.W.2d 789, 793 (Tex. App.—Houston [14th Dist.] 1994, writ denied); Mann v. NCNB Tex. Nat’l Bank, 854 S.W.2d 664, 667 (Tex. App.—Dallas 1992, no writ). It contemplates a future course of dealing between creditor and principal, and generally continues for an indefinite amount of time or until revoked. See Straus-Frank Co. v. Hughes, 156 S.W.2d 519, 520 (Tex. 1941); Blount v. Westinghouse Credit Corp., 432 S.W.2d 549, 553 (Tex. Civ. App.—Dallas 1968, no writ). Thus, with a continuing guaranty, the guarantor becomes liable for successive obligations as they accrue. Sonne, 881 S.W.2d at 793.


To support a claim on a guaranty, a party must show proof of (1) the existence and ownership of a guaranty contract; (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 by the guarantor. Lee v. Martin Marietta Materials Sw., Ltd., 141 S.W.3d 719, 720 (Tex. App.—San Antonio 2004, no pet.).


When construing a guaranty agreement, our primary goal is to ascertain and give effect to the intent of the parties. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Hasty v. Keller HCP Partners, L.P., 260 S.W.3d 666, 670 (Tex. App.—Dallas 2008, no pet.). The surest guide to the parties’ intent is the language used in the guaranty, and where the language is clear and unambiguous, we may not look to the subject matter or attending circumstances in order to give it a different construction. See Univ. Sav. Ass’n v. Miller, 786 S.W.2d 461, 462 (Tex. App.—Houston [14th Dist.] 1990, writ denied); Sw. Sav. Ass’n v. Dunagan, 392 S.W.2d 761, 767 (Tex. Civ. App.—Dallas 1965, writ ref’d n.r.e.).

SOURCE: HOUSTON COURT OF APPEALS - 14-10-00597-CV - 9/13/11 

RELATED LEGAL TERMS AND PHRASES: guarantors, personal guaranty, commercial guaranty, enforce guaranty agreement, suing guarantor of principal obligation upon default of principal obligor, borrower, creditor remedies