Wednesday, October 16, 2013

Quasi-contract theories: Money had and received

Money Had and Received and Unjust Enrichment 
as theories of recovery under Texas law 
Unjust enrichment and money had and received are examples of quasi-contract theories. See Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); Merry Homes, Inc. v. Luc Dao, 359 S.W.3d 881, 883 (Tex. App.-Houston [14th Dist.] 2012, no pet.). A quasi-contract, or a "contract implied in law," is "not a contract at all but an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended." Bank of Am. v. Jeff Taylor LLC, 358 S.W.3d 848, 856 (Tex. App.-Tyler 2012, no pet) (quoting Fortune Prod. Co., 52 S.W.3d at 684).

Unjust enrichment occurs when the person sought to be charged has wrongfully secured a benefit or has passively received one that it would be unconscionable to retain. Villareal v. Grant Geophysical, Inc., 136 S.W.3d 265, 270 (Tex. App.-San Antonio 2004, pet. denied). "To prove a claim for money had and received, a plaintiff must show that a defendant holds money which in equity and good conscience belongs to him." MGA Ins. Co. v, Charles R. Chesnutt, P.C., 358 S.W.3d 808, 814 (Tex. App.-Dallas 2012, no pet.); accord Edwards v. Mid-Continent Office Distrib., L.P., 252 S.W.3d 833, 837 (Tex. App.-Dallas 2008, pet. denied).

SOURCE: DALLAS COURT OF APPEALS - 05-12-00534-CV - 6/19/2013 

Tuesday, October 15, 2013

Implied-in-fact Contract - Texas case law cite

An implied-in-fact contract "arises from the acts and conduct of the parties, it being implied from the facts and circumstances that there was a mutual intention to contract." Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972); accord Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 850 (Tex. 2009). 
A meeting of the minds is an essential element of an implied-in-fact contract. Tex. Ass'n of Counties Cnty. Gov't Risk Mgmt. Pool v. Matagorda Cnty., 52 S.W.3d 128, 133 (Tex. 2000). 

The court must look to the conduct of the parties to determine the terms of the contract on which the minds of the parties met. Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 75 (Tex. App.-Houston [14th Dist.] 2010, pet. denied); Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 557 (Tex. App.-Houston [14th Dist.] 2002, no pet.). The determination of a meeting of the minds is based on the objective standard of what the parties said and did, not on their subjective states of mind. Parker Drilling Co., 316 S.W.3d at 75; Lopez, 93 S.W.3d at 557.  

SOURCE: DALLAS COURT OF APPEALS - 05-12-00534-CV - 6/19/2013 

Monday, October 14, 2013

Legal instruments (notes, contracts) and the parol evidence rule

The nature of the parol evidence rule
The parol evidence rule functions to make the instrument sued on the sole repository of the legal transaction. Lawrence Gen. Corp. v. Anchor Post Prod. of Tex., Inc., No. 05-95-01771-CV, 1997 WL 78913 at *2 (Tex. App.-Dallas Feb. 26, 1997, no writ) (not designated for publication). In other words, the terms of the transaction must be derived from the writing alone. 

Where the instrument sued on is a professedly partial or incomplete agreement, however, the rule excluding parol evidence does not apply. Id.; see also Garner v. Redeaux, 678 S.W.2d 124, 128 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). An instrument is incomplete when it refers to terms or understandings not embraced in its provisions. Lawrence Gen. Corp., 1997 WL 78913 at *2.

SOURCE:  DALLAS COURT OF APPEALS -  No. 05-11-01536-CV - 6/7/2013 

Also see Anglo-Dutch Petroleum Int'l,352 S.W.3d at 451; Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.-Houston [1st Dist.] 2005, pet. denied) ("The parol evidence rule is not a mere rule of evidence, but a rule of substantive contract law. . . . Evidence violating the parol evidence rule has no legal effect and merely constitutes proof of facts that are immaterial and inoperative."). But the parol evidence rule
does not prohibit consideration of surrounding circumstances that inform, rather than vary from or contradict, the contract text. Those circumstances include . . . the commercial or other setting in which the contract was negotiated and other objectively determinable factors that give a context to the transaction between the parties.
Houston Exploration Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 469 (Tex. 2011) (internal citations omitted).

Friday, October 11, 2013

Mutual Mistake argument in contract dispute to avoid enforcement or liability

Mutual Mistake as affirmative defense in contract dispute

To establish the defense of mutual mistake in a written instrument, [Defendant] must plead and prove (1) the original agreement, and (2) a mutual mistake made in reducing the original agreement to writing. Peters v. Gifford-Hill & Co., 794 S.W.2d 856, 860 (Tex. App.-Dallas 1990, writ denied). 
The party asserting mutual mistake must prove what the true agreement was, but "his case is not made by proof that there was an agreement which is at variance with the writing. He must go further and establish the fact that the terms and provisions of the writing which differ from the true agreement made were placed in the instrument by mutual mistake." Id. (citing Sun Oil Co. v. Bennett, 84 S.W.2d 447, 451 (Tex. 1935)); see also Balboa Ins. Co. v. K&D & Assoc., 589 S.W.2d 752, 757 (Tex. Civ. App.-Dallas 1979, writ ref'd n.r.e.) (evidence must show both parties were acting under the same misunderstanding of the same material fact to establish mutual mistake). 
Mutual mistake is generally established from all of the facts and circumstances surrounding the parties, and the execution of the instrument. Simpson v. Curtis, 351 S.W.3d 374, 378 (Tex. App.-Tyler 2010, no pet.).

SOURCE:  DALLAS COURT OF APPEALS -  No. 05-11-01536-CV - 6/7/2013 

Thursday, October 10, 2013

What is equitable title versus legal title?

What is equitable title?

Equitable title is the present right to compel legal title. Smith v. Dass, Inc., 283 S.W.3d 537, 542 (Tex. App.-Dallas 2009, no pet.). Equitable title may be shown where the plaintiff proves it has paid the purchase price and fully performed the obligations under the contract. Cullins v. Foster, 171 S.W.3d 521, 533 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).

SOURCE:  DALLAS COURT OF APPEALS  -  No. 05-11-01536-CV - 6/7/2013 

Wednesday, October 9, 2013

Can causes of actions be assigned in Texas?

Can causes of action be assigned – General Rule and Exceptions

As a general rule, causes of action are freely assignable. City of Brownsville ex rel. Pub. Utils. Bd. v. AEP Tex, Cent. Co., 348 S.W.3d 348, 358 (Tex. App.-Dallas 2011, pet. denied). The Texas Supreme Court has recognized a few exceptions to this general rule, but it has not held that bill-of-review claims may not be assigned. See PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 92 (Tex.2004) (holding that "DTPA claims generally cannot be assigned by an aggrieved consumer to someone else"); State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 707-11 (Tex.1996) (discussing four circumstances in which claims cannot be assigned: legal-malpractice claims, Mary Carter agreements, assignments of a plaintiffs claim to a joint tortfeasor, and assignments of certain interests in an estate). The law generally prohibits the assignment of a claim only when the particular assignment presents specific dangers, such as jury confusion, the multiplication of disputes, and potential prejudice to the parties. See Gandy, 925 S.W.2d at 707-11. Unless the assignment of a bill-of-review claim like HSBC's would present similar dangers, the general rule of assignability ought to apply.

SOURCE:  DALLAS COURT OF APPEALS - No. 05-10-00676-CV – 6/15/2012

The policy of this State is to permit the assignment of a cause of action in the absence of policy reasons to forbid the particular kind of assignment. See generally Gandy, 925 S.W.2d at 705-11. We have not been presented with any reason to conclude that permitting the assignment of Fieldstone's bill-of-review rights to HSBC would be inimical to public policy. We conclude that HSBC is correct and that Fieldstone's right to bring a bill of review to challenge the underlying default judgment is assignable.

Tuesday, October 8, 2013

Contract ambiguity as an affirmative defense in a contract dispute


When asserting ambiguity as an affirmative defense, the pleading must set out the alleged ambiguous portion of the contract and the meaning or construction relied on by the party asserting ambiguity. See World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 680 (Tex. App.-Fort Worth 1998, pet. denied). 

SOURCE:  DALLAS COURT OF APPEALS  -  No. 05-11-01536-CV - 6/7/2013

Plaintiffs prevented from double-dipping on damages claims under the one-satisfaction rule


The one-satisfaction rule is the longstanding proposition that precludes a plaintiff from recovering twice for the same injury. Utts v. Short, 81 S.W.3d 822, 831 (Tex. 2002) (citing Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000)); Galle, 262 S.W.3d at 573. The rule applies when several defendants commit the same act and when multiple defendants commit technically different acts that result in a single injury. Crown Life, 22 S.W.3d at 390; Galle, 262 S.W.3d at 573. 
The one-satisfaction rule guards against a plaintiff's "receiving a windfall `by recovering an amount in court that covers the plaintiff's entire damages, but to which a settling defendant has already contributed.'" Galle, 262 S.W.3d at 573 (quoting Osborne v. Jauregui, 252 S.W.3d 70, 75 (Tex. App.-Austin 2008, pet. denied) (en banc)).

SOURCE: AUSTIN COURT OF APPEALS - 03-10-00499-CV – 8/23/2013