Thursday, October 30, 2014

Justice Jim Sharp - Master of Judicial Intemperance and Featured Speaker at Houston NORML Event - Halloweed 2014 (pre-election update)

Incumbent Jim Sharp looking for some weed-minded votes? 


Ever so often you get a member of the judiciary who does not give a rodent's posterior about the essential elements of a cause of action, established precedent, or the rules of civil and appellate procedure for that matter, and instead rules according to his whim; -- be it to play favorites or simply to show a disfavored litigant or attorney who is boss with the power of say-so.

Jim Sharp, desk-top jurist of Houston, fits that description.    

Not only has Sharp enriched the legal lexicon with gutter slang and locutions far more suitable for inclusion in the Urban Dictionary than the latest edition of Black's, as documented in cringe-inducing detail by both the Commission on Judicial Conduct and a Special Court of Review;

Not only has Sharp seen fit to boost his stature by mounting his desk for the benefit of the readership of the local paper that might not otherwise appreciate his grandeur (see picture).
The Emperor hath clothes, but what about propriety
and judicial decorum? 

He has also left his unseemly blots on the state's body of caselaw with holdings wacky enough to make one wonder whether he is fit to be a lawyer, not to mention a justice lording over the trial courts: How about holdings to the effect that a breach-of-contract plaintiff does not have to prove the contract; that deemed admissions can support a judgment even though the requests for admissions were never served; that an appellant failed to preserve error for appellate review of an award of attorneys fees even though the appeal was from a post-answer default judgment,  which - by definition - means that the party was not present in court to make objections, which -- under long-standing precedent -- does not preclude him or her from challenging the sufficiency of the evidence on appeal; that a superseded pleading can be considered on appeal even though it was rendered inoperative by the amendment in the trial court; that the reviewing court is not bound by the trial court's findings of fact; and that a suit against a debt collector for wrongful garnishment of social security benefits under the FDCPA and the Texas Debt Collection Act/DTPA is jurisdictionally barred merely because the plaintiff also included a challenge to the constitutionality of the garnishment statute and had not notified the Texas Attorney General of that argument.

Justice Sharp felt no compunction about using his authority as a member of the First Court of Appeals in a bid to obtain special treatment for a teen-aged girl caught shop lifting, did not feel constrained to direct a fusillade of insults at county employees who refused to acquiesce to his meddling, and has not felt constrained by established precedent and rules of procedure in his work on the court of appeals either.

As his peers are loath to police one of their own, especially when those harmed by the aberrant jurisprudence are -- to use Sharp's derogatory diction - mere hillbillies -- the job of stopping a wayward jurist on an ego trip from inflicting even more damage, and from continuing to make a mockery of rules and precedent, will be left to the voting public, come election day.

Justice Jim Sharp wants to be re-elected despite public reprimand by Judicial Conduct Commission
Justice Jim Sharp wants your vote despite having been reprimanded by the State Commission on Judicial Conduct 
CASES: FIRST COURT OF APPEALS: 01-11-00320-CV - 8/27/2013; 01-13-00986-CV and 01-12-01000-CV 8/26/2014 (All opinions by Justice Jim Sharp aka James Patrick Sharp, Jr.)

Friday, October 17, 2014

Legal sufficiency of evidence to support credit card debt claim: Proof of contract terms required


In a bench trial in which no findings of fact or conclusions of law are requested by the parties or filed by the trial court, we imply all findings of fact necessary to support the judgment. See, e.g., BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). When the appellate record includes the reporter's and clerk's records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency in the appropriate appellate court. Id. We review the sufficiency of the evidence supporting the findings by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); see Dittman v. Cerone, No. 13-11-00196-CV, 2013 WL 5970356, at *3 (Tex. App.-Corpus Christi Oct. 31, 2013, no pet.) (mem. op. on reh'g).

The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in the light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.

To recover for breach of contract, a plaintiff must show: (1) the existence of a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the terms of the contract; and (4) the plaintiff suffered damages as a result of the defendant's breach. Woodhaven Partners, Ltd. v. Shamoun & Norman, LLP, 422 S.W.3d 821, 837 (Tex. App.-Dallas 2014, no pet.); Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 235-36 (Tex. App.-Houston [1st Dist.] 2008, no pet.); McLaughlin, Inc. v. Northstar Drilling Tech., Inc., 138 S.W.3d 24, 27 (Tex. App.-San Antonio 2004, no pet.).

Thus, in this case, Pharia had the burden to prove each element of a breach of contract claim at trial. See Preston State Bank v. Jordan, 692 S.W.2d 740, 744 (Tex. App.-Fort Worth 1985, no writ) (affirming a take-nothing judgment in a suit to recover a credit card debt when the bank failed to present evidence of the contract between the bank and the credit card holder).

Parties form a binding contract when the following elements are present: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party's consent to the terms; and (5) the execution and delivery of the contract with the intent that it be mutual and binding. Williams, 264 S.W.3d at 236. To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the parties. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). The material terms of a contract must be agreed upon before a court can enforce the contract; the interest rate is a material term. Id.


As noted, the only evidence offered by Pharia of a valid contract was two pages reflecting a copy of a Bank of America cardholder agreement in print so small that the copies are rendered illegible. 

Although the "Affidavit of Indebtedness and Assignment" by Halpin states that the balance due on Uribe's account is "$2,789.70 plus interest per the terms of the agreement between the defendant and the original creditor at the rate of 28.99% per annum," there is no evidence establishing Uribe's specific obligations under the agreement or that Uribe agreed to the interest rate asserted by Halpin. 

Also, there is no evidence explaining how the $2,789.70 balance stated by Halpin became the $4,285.31 balance claimed by Pharia. The several account statements and several pages of text that appear to be a card member agreement were in Spanish, and Pharia provided no translation of the documents. See TEX. R. EVID. 1009(a) (providing that English translations of foreign-language documents are admissible in certain circumstances, not applicable here). 

We conclude that, although there is evidence of a credit-card agreement of some kind, there was no evidence proving the terms of that agreement or Uribe's intent to be bound by a specific agreement. See Williams, 264 S.W.3d at 236 (holding evidence was insufficient to establish the terms of a valid contract as a matter of law where creditor failed to produce actual credit-card agreement or any other document that established the agreed terms, including the applicable interest rate or method for determining finance charges); Tully v. Citibank (S.D.), N.A., 173 S.W.3d 212, 216-17 (Tex. App.-Texarkana 2005, no pet.) (holding evidence insufficient to show interest rate charged was agreed on where the only evidence was the rates specified in monthly statements); Jordan, 692 S.W.2d at 744 (holding evidence insufficient to establish a contract where creditor failed to introduce contract or its terms and conditions); see also Hooper v. Generations Cmty. Fed. Credit Union, No. 04-12-00080-CV, 2013 WL 2645111, at *3 (Tex. App.-San Antonio June 12, 2013, no pet.) (mem. op.) (reversing judgment for creditor where cardholder agreement was not offered into evidence and there was no evidence establishing debtor's specific obligations under an agreement); Colvin v. Tex. Dow Employees Credit Union, No. 01-11-00342-CV, 2012 WL 5544950, at *6 (Tex. App.-Houston [1st Dist.] Nov. 15, 2012, no pet.) (mem. op.) (reversing summary judgment for creditor where creditor failed to offer the original agreement, monthly statements, or other evidence establishing how it calculated its alleged damages); Martin v. Federated Capital Corp., No. 01-12-00116-CV, 2012 WL 4857835, at **2-3 (Tex. App.-Houston [1st Dist.] Oct. 11, 2012, no pet.) (mem. op.) (reversing summary judgment for creditor where creditor's evidence failed to explain how it calculated its damages); Ayers v. Target Nat'l Bank, No. 14-11-00574-CV, 2012 WL 3043043, at **2-4 (Tex. App.-Houston [14th Dist.] July 26, 2012, no pet.) (mem. op.) (reversing summary judgment for creditor where creditor failed to present cardholder agreement and a portion of the form language on the credit-card application was illegible and form language was in Spanish); Wande v. Pharia, No. 01-10-00481-CV, 2011 WL 3820774, at *5 (Tex. App.-Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem. op.) (reversing summary judgment for creditor where creditor presented the cardholder agreement but important portions of the agreement were illegible, including a section entitled "Finance Charges," and creditor presented no evidence regarding the calculations it used to arrive at claimed outstanding balance); Jaramillo v. Portfolio Acquisitions, LLC, No. 14-08-00938-CV, 2010 WL 1197669, at **5-6 (Tex. App.-Houston [14th Dist.] March 30, 2010, no pet.) (mem. op.) (holding evidence insufficient to establish a valid contract where card member agreement was entered into evidence, but many of its material terms were missing; "This court and its sister court have drawn a distinction between cases where a card member agreement is entered into evidence and where there is no card member agreement.").

Considering the evidence in the light most favorable to the challenged finding, see City of Keller, 168 S.W.3d at 822, we conclude that no reasonable fact-finder could have found the evidence sufficient to establish the existence of a valid contract. See Williams, 264 S.W.3d at 236; T.O. Stanley Boot Co., 847 S.W.2d at 221. The evidence was therefore legally insufficient to establish the existence of a valid contract. We sustain Uribe's second issue.


Because we hold the evidence insufficient to establish the existence of a valid contract, we reverse the trial court's judgment and render judgment that Pharia take nothing.  

SOURCE: CORPUS CHRISTI COURT OF APPEALS - 13-13-00551-C - 7/17/2014 (Uribe v Pharia) 

Thursday, October 16, 2014

Two types of mechanic's liens under Texas law


Texas law recognizes two possible types of mechanic's liens: (1) a constitutional lien and (2) a statutory lien. TEX. CONST. art. XVI, § 37; TEX. PROP. CODE ANN. 53.001 (West 2007). "[A] constitutional lien requires a person to be in privity of contract with the property owner."

Article XVI, Section 37 of the Texas Constitution provides,
Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.
TEX. CONST. art. XVI, § 37.
Trinity Drywall Sys., LLC v. Toka Gen. Contrs., Ltd., 416 S.W.3d 201, 209 (Tex. App.-El Paso 2013, pet. filed); see Gibson v. Bostick Roofing & Sheet Metal Co., 148 S.W.3d 482, 493 (Tex. App.-El Paso 2004, no pet.). The same privity of contract with the property owner is required to establish a statutory lien that encumbers the owner's property. See TEX. PROP. CODE ANN. § 53.021(a)(2) (West Supp. 2013) (A person has a statutory lien if "the person labors . . . or furnishes the labor or materials under or by virtue of a contract with the owner or the owner's agent. . . ."); TEX. PROP. CODE ANN. § 53.001(7) (defining "Original Contractor" as "a person contracting with an owner either directly or through the owner's agent").

"[W]here the contract for labor, materials or construction is not made with the owner or his duly-authorized agent, a lien may not be fixed on his property." Gibson, 148 S.W.3d at 494; see 2811 Assocs., Ltd. v. Metroplex Lighting & Elec., 765 S.W.2d 851, 853 (Tex. App.-Dallas 1989, writ denied).

SOURCE: TEXARKANA COURT OF APPEALS - No. 06-14-00022-CV - DENCO CS CORPORATION v. BODY BAR - 9/26/2014 (the mechanic's lien affidavit was not filed until after
the sale of the property).

Smith's lien affidavit listed Bre Thorne as the owner of the property sought to be encumbered. Yet, there is no evidence in the record establishing that either Regency (who was the owner of the premises at the time the contract for improvements was entered) or Bre Thorne (the subsequent owner) contracted with Denco or that Body Bar was the agent of either at the time it entered into the contract for improvements or when Denco's additional charges supposedly accrued.

Because there was no evidence that Denco was in privity of contract with the owner of the premises, it was not entitled to a constitutional lien against Bre Thorne's fee interest in the property. "[I]f a lessee contracts for construction, the mechanic's lien attaches only to the leasehold interest, not to the fee interest of the lessor." Diversified Mortg. Investor v. Lloyd D. Blaylock Gen. Contractor, Inc., 576 S.W.2d 794, 805 (Tex. 1978); see Bannum, Inc. v. Mees, No. 07-12-00458-CV, 2014 WL 2918436, at **3-4 (Tex. App.-Amarillo Jun. 24, 2014, no pet. h.) (mem. op.); Terraces at Cedar Hill, L.L.C. v. Gartex Masonry & Supply, Inc., No. 05-10-00226-CV, 2011 WL 1050852, at *2 (Tex. App.-Dallas Mar. 24, 2011, pet. denied) (mem. op.). Thus, the affidavit laying claim to statutory and constitutional mechanic's liens—which were not limited to Body Bar's leasehold interest—did not validly encumber the property.[12] Because the liens were not perfected, Denco was not entitled to foreclosure.


"A person who files an affidavit must send a copy of the affidavit by registered or certified mail to the owner or reputed owner . . . not later than the fifth day after the date the affidavit is filed with the county clerk." TEX. PROP. CODE ANN. § 53.055(a) (West 2007). "A party must comply with chapter 53 to perfect a lien under the statute." Addison Urban Dev. Partners, LLC v. Alan Ritchey Materials Co., LC, No. 05-13-00122-CV, 2014 WL 2946019, at *4 (Tex. App.-Dallas July 1, 2014, no pet. h.) (citing Morrell Masonry Supply, Inc. v. Lupe's Shenandoah Reserve, LLC, 363 S.W.3d 901 (Tex. App.-Beaumont 2012, no pet.); TEX. PROP. CODE ANN. § 53.051). 

Here, Denco admitted that it failed to comply with Section 53.055(a). However, substantial compliance with Chapter 53 is sufficient, and "[c]ases interpreting the mechanic's and materialman's lien statutes counsel against invalidating a lien on a purely technical basis." Id. (citing Ready Cable, Inc. v. RJP S. Comfort Homes, Inc., 295 S.W.3d 763, 765 (Tex. App.-Austin 2009, no pet.)).  


Wednesday, October 15, 2014

Proving arbitrability (arbitration agreement)


The burden of establishing an arbitration agreement's existence is evidentiary and runs with the party seeking to compel arbitration. Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 836 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding). A strong presumption in favor of arbitration attaches "only after the party seeking to compel arbitration proves that a valid arbitration agreement exists." J.M. Davidson, Inc., v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). "No party is under a duty to arbitrate unless by clear language he has previously agreed to do so; and it must clearly appear that the intention of the parties was to submit their dispute to an arbitration panel and to be bound by the panel's decision." Webb v. Investacorp, 89 F.3d 252, 259 (5th Cir. 1996), quoting Massey v. Galvan, 822 S.W.2d 309, 316 (Tex.App.-Houston [14th Dist.] 1992, writ denied).

"[A]n employer attempting to enforce an arbitration agreement must show the agreement meets all requisite contract elements." Webster, 128 S.W.3d at 228. "[O]rdinary principles of state contract law determine whether there is a valid agreement to arbitrate." Inland Sea, Inc. v. Castro, 420 S.W.3d 55, 58 (Tex.App.-El Paso 2012, pet. denied).

The elements of a valid contract, including contracts to arbitrate, are (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Paragon Indus. Applications, Inc. v. Stan Excavating, L.L.C., 432 S.W.3d 542, 547 (Tex.App.-Texarkana 2014, no pet.). "[T]he trial court may summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery, and stipulations." Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992). "However, if the material facts necessary to determine the issue are controverted, by an opposing affidavit or otherwise admissible evidence, the trial court must conduct an evidentiary hearing to determine the disputed material facts." Id.We review the question of whether a valid arbitration exists de novo. In re ReadyOne Industries, Inc., 294 S.W.3d 764, 768 (Tex.App.-El Paso 2009, orig. proceeding) (existence of valid arbitration agreement is a question of law).


We review the question of whether a valid arbitration exists de novo. In re ReadyOne Industries, Inc., 294 S.W.3d 764, 768 (Tex.App.-El Paso 2009, orig. proceeding) (existence of valid arbitration agreement is a question of law).

SOURCE: EL PASO COURT OF APPEALS - No. 08-13-00167-CV - 9/17/2014