Challenging a Default Judgment by equitable Bill of Review

   
Attacking a default judgment by Bill of Review petition when the time for a regular or restricted appeal has passed: Under what circumstances may the trial court set aside a default judgment by bill of review?  

     
NATURE OF BILL OF REVIEW AS A POST-JUDGMENT REMEDY AND CRITERIA THAT MUST BE SATISFIED TO WARRANT RELIEF   
    

A bill of review is an equitable proceeding in which a party seeks to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. See Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam); Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 407-08 (Tex. 1987).

To set aside a judgment by bill of review, “petitioner must ordinarily plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that he was prevented from making by the fraud, accident or wrongful act of his opponent, (3) unmixed with any fault or negligence of his own.” Transworld, 722 S.W.2d at 408. The residual four-year statute of limitations applies to bills of review. See Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (West 2008); Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998). Although a bill of review is an equitable proceeding, a perceived injustice alone is not sufficient to justify relief by bill of review. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam).

“Generally, bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies against a former judgment and, through no fault of its own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party.” Id.

A bill of review petitioner claiming non-service is relieved of showing a meritorious defense that was prevented by the fraud, accident, or wrongful act of his opponent, or a court official in the exercise of official duties. Caldwell, 154 S.W.3d at 96-97.

  

STANDARD OF REVIEW ON APPEAL

 

We review an order granting or denying a bill of review under an abuse of discretion standard. Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.-Dallas 2008, pet. denied). A trial court abuses its discretion if it reaches a decision that is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or applying the law to the facts. Id. at 840. A trial court abuses its discretion as to factual matters when it acts unreasonably or arbitrarily. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.-Dallas 2004, no pet.). The trial court does not abuse its discretion as to factual issues if there is some evidence of a substantive and probative character to support the decision. In re C.G.,
261 S.W.3d 842, 848 (Tex. App.-Dallas 2008, no pet.). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for reversal. In re L.A.F., 270 S.W.3d 735, 738 (Tex. App.-Dallas 2008, pet. denied). Sufficiency of the evidence is, however, a relevant factor to the appellate court's review. Id. In our review, we consider whether the trial court had sufficient evidence upon which to exercise its discretion and erred in application of that discretion. In re C.G., 261 S.W.3d at 848. When, as here, there are no findings of fact or conclusions of law, and none were requested, we assume the trial court made all necessary findings to support its judgment. See In re J.H., 264 S.W.3d 919, 924 (Tex. App.-Dallas 2008, no pet.). In our review of the record, we determine whether some evidence supports the judgment and implied findings and disregard entirely contradictory evidence. See id. (citing Niskar, 136 S.W.3d at 753-54). The judgment will be upheld on any legal theory supported in the evidence. Id.
   

SOURCE: DALLAS COURT OF APPEALS - 05-10-00363-CV – 11/10/11  

The American Rule (with respect to recovery of legal fees) given effect

   
Dallas Court of Appeals applies the American Rule in Trespass to Try Title Suit - rejects claim for recovery of legal fees under an equitable exception theory.   

The American Rule has been a part of Texas jurisprudence for over 100 years. See Akin, Gump, 299 S.W.3d at 120 (tracing the Rule's roots in Texas jurisprudence to 1896). Moreover, the supreme court has stated that “[a]bsent a contract or statute, trial courts do not have inherent authority to require a losing party to pay the prevailing party's fees.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006) (emphasis added). Texas's only equitable exception to the American Rule that we are aware of is the common-fund doctrine, see generally Allstate Ins. Co. v. Edminster, 224 S.W.3d 456, 457-58 (Tex. App.-Dallas 2007, no pet.) (applying common-fund doctrine), which Neumann acknowledges is not applicable to this case. Given the supreme court's faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack the inherent authority to award attorney's fees contrary to the Rule, we decline to adopt a new equitable exception to the Rule. Cf. Martin v. Clinical Pathology Labs., Inc., 343 S.W.3d 885, 892 (Tex. App.-Dallas 2011, pet. filed) (stating that Texas Supreme Court rather than intermediate court of appeals was proper tribunal to consider exceptions to state's strong employment-at-will doctrine).

   

Texas has long followed the American Rule, under which attorney's fees paid to prosecute or defend a lawsuit cannot be recovered in that suit absent a statute or contract that allows for their recovery. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 120 (Tex. 2009). There is a statutory scheme in place to govern trespass-to-try-title claims, see generally Tex. Prop. Code Ann. §§ 22.001-.045 (West. 2000), but it contains no provision authorizing a party to recover attorney's fees from the opposing side. We have held that the plaintiff in a trespass-to-try-title suit cannot recover attorney's fees. McAnally v. Friends of WCC, Inc., 113 S.W.3d 875, 881 (Tex. App.-Dallas 2003, no pet.); see also Barfield v. Holland, 844 S.W.2d 759, 771 (Tex. App.-Tyler 1992, writ denied) (trespass-to-try-title plaintiff could not recover attorney's fees by characterizing claim as one under Declaratory Judgments Act).

SOURCE: DALLAS COURT OF APPEALS - 05-10-00445-CV – 11/6/11

Sovereign immunity bars lawsuits against government except in case of consent (immunity waiver)

SOVEREIGN AND GOVERNMENTAL IMMUNITY - IMMUNITY FROM SUIT AND LIABILITY UNLESS WAIVER APPLIES

Under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent. City of Houston v. Williams, No. 09-0770, 2011 WL 923980, at *3 (Tex. Mar. 18, 2011) (citing Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006)).

 
Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the state, including counties, cities, and school districts. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)); Learners Online, Inc. v. Dallas Indep. Sch. Dist., 333 S.W.3d 636, 641-42 (Tex. App.-Dallas 2009, no pet.).

Like sovereign immunity, governmental immunity has two components: immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether. Tooke, 197 S.W.3d at 332. Governmental immunity from suit deprives a trial court of subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. See Miranda, 133 S.W.3d at 225-26.
        

“[E]ven if the State acknowledges liability on a claim, immunity from suit bars a remedy until the Legislature consents to suit.” Learners Online, 333 S.W.3d at 642 (quoting Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006)). The plaintiff bears the burden of pleading facts affirmatively demonstrating waiver of immunity from suit. See, e.g., City of Irving v. Seppy, 301 S.W.3d 435, 443 (Tex. App.-Dallas 2009, no pet.). 

SOURCE: DALLAS COURT OF APPEALS – 05-11-00480-CV – 11/3/11

WBA: Good-faith report to what whistleblower believed to be appropriate law-enforcement agency or regulator

     
TEXAS WHISTLEBLOWER ACT: WHAT IS PROTECTED?
  

The Texas Whistleblower Act is contained in chapter 554 of the Texas Government Code. See Tex. Gov't Code Ann. §§ 554.001-.010. Section 554.002 of the Whistleblower Act provides

 
(a) 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. 
 
(b) In this section, a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:
 
(1) regulate under or enforce the law alleged to be violated in the report; or         
(2) investigate or prosecute a violation of criminal law. 

Id. § 554.002.

Pursuant to section 554.0035 of the act, “[s]overeign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.” Id. § 554.0035.        
   
Under section 554.002, a conclusion that a governmental entity to whom a report is made is not authorized to regulate under, enforce, investigate, or prosecute the law at issue is not determinative as to whether a whistleblower action can be maintained. Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002).
 

A party may obtain Whistleblower Act protection if he in good faith believed such governmental entity was an appropriate law enforcement authority as the statute defines the term. Id. In the context of section 554.002(b), “good faith” means (1) the employee believed the governmental entity was authorized to regulate under or enforce the law alleged to be violated in the report, or investigate or prosecute a violation of criminal law; and (2) the employee's belief was reasonable in light of the employee's training and experience. Id. at 321.

  

SOURCE: DALLAS COURT OF APPEALS - 05-11-00480-CV  - 11/3/11 

Attorney's fees in a contract dispute: Who can recover fees under CPRC Chapter 38?

   
Attorney's fees not available for successful defense of breach-of-contract claim under Chaper 38 of the Civil Practice and Remedies Code or in case where the Plaintiff does not recover damages. Prevailing defendant may recover fees if the contract authorizes fees to the prevailing party regardless of whether that party is the plaintiff or the defendant.

CHAPTER 38 FEES ONLY AVAILABE IF CONTRACT DAMAGES ARE RECOVERED

Chapter 38 of the Texas Civil Practice and Remedies Code allows recovery of attorneys’ fees in breach of contract cases in addition to the amount of a valid claim. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2008). In order to recover fees, a party must (1) prevail on the breach of contract claim, and (2) recover damages. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 666 (Tex. 2009); Mustang Pipeline Co., 134 S.W.3d at 201; Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). The requirement of damages is implied from the statute’s language, “in addition to the amount of a valid claim,” the claimant must recover some amount on that claim. MBM Fin. Corp., 292 S.W.3d at 666.

  

SOURCE: TEXARKANA COURT OF APPEALS - 06-10-00091-CV – 11/2/11

   

FEE SEGREGATION REQUIREMENT

  

Generally, a party seeking attorneys’ fees must show that the fees were incurred on a claim that allows recovery of such fees and must segregate fees incurred among different claims or separate parties. See Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex. 1997); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991), modified on other grounds by Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313–14 (Tex. 2006). When, however, the claims are “dependent upon the same set of facts or circumstances and thus are ‘intertwined to the point of being inseparable,’ the party suing for attorneys’ fees may recover the entire amount covering all claims.” Sterling, 822 S.W.2d at 11 (citing Gill Sav. Ass’n v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex. App.—Houston [14th Dist.] 1989), aff’d in part & modified in part on other grounds, 797 S.W.2d 31 (Tex. 1990)).

   

SOURCE: TEXARKANA COURT OF APPEALS - 06-10-00091-CV – 11/2/11

How long does a notice of LIS PENDENS remain in effect?

LIS PENDENS TERMINATES WITH JUDGMENT  (unless appeal pending) 

The purpose of filing a lis pendens is twofold—to protect the rights the filing party claims in the property disputed in the lawsuit and to put those interested in the property on notice of the lawsuit. Collins v. Tex Mall, L.P., 297 S.W.3d 409, 418 (Tex. App.—Fort Worth 2009, no pet.).

A lis pendens notice, however, operates only during the pendency of the lawsuit and terminates with the judgment, in the absence of appeal. Hartel v. Dishman, 145 S.W.2d 865, 869 (Tex. 1940); Collins, 297 S.W.2d at 418.

SOURCE: TEXARKANA COURT OF APPEALS - 06-10-00091-CV – 11/2/11 

Because the lis pendens terminates with the judgment, it was not necessary for the trial court to declare the lis pendens void. It was not, however, error to do that which was unnecessary, but was the result of the judgment.

Non-compliance with terms of settlement agreement

  
Options when other party does not comply with settlement agreement

When a claim is released for a promised consideration that is not given, the claimant may either pursue rights under the release, or treat the release as rescinded and recover on the underlying claim. Murray v. Crest Constr., 900 S.W.2d 342, 344 (Tex. 1995); see also Hernandez v. LaBella, No. 14-08-00327-CV, 2010 WL 431253 (Tex. App.—Houston [14th Dist.] Feb. 9, 2010, no pet.) (mem. op.) (repudiation or anticipatory breach of settlement agreement permits nonbreaching party to elect not to proceed with settlement agreement); BACM 2001-1 San Felipe Rd. Ltd. P’ship v. Traflagar Holdings I, Ltd., 218 S.W.3d 137, 146 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (on failure of debtor to perform under executory accord, creditor may treat accord as repudiated and may choose to claim rights under the original cause of action or the accord); Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 247 (Tex. App.—Amarillo 1994, no pet.) (if settlement agreement breached, nonbreaching party may treat agreement as repudiated and claim rights either under the agreement or the underlying cause of action).

Whether a party has breached a contract is a question of fact to be determined by the trier of fact. Allied Capital Partners, L.P. v. PTRI, 313 S.W.3d 460 (Tex. App.—Dallas 2010, no pet.).

SOURCE: TEXARKANA COURT OF APPEALS - 06-10-00091-CV – 11/1/11

Statutory waivers of immunity enjoyed by governmental entities

Governmental and Sovereign Immunity & Statutory Exceptions Thereto (immunity waivers)
   
In Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003), the court explained:

Courts often use the terms sovereign immunity and governmental immunity interchangeably. However, they involve two distinct concepts. Sovereign immunity refers to the State's immunity from suit and liability. In addition to protecting the State from liability, it also protects the various divisions of state government, including agencies, boards, hospitals, and universities. Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts.
 
Id. at 694 n.3 (citations omitted). The plaintiff bears the burden to plead facts that affirmatively demonstrate that governmental immunity has been waived and that the court has subject-matter jurisdiction. McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 464 (Tex. App. -Dallas 2009, pet. denied).
  
The Texas Legislature has created exceptions to the doctrine of governmental immunity which are applicable under certain conditions. See Harris Cnty. v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994). Whether a governmental unit is immune from liability for a particular claim depends entirely upon statute. Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The Texas Tort Claims Act provides that governmental units are liable for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011). The Tort Claims Act recognizes liability for two types of dangerous conditions of real property, premise defects and special defects. Id. at § 101.022.
   
If a claim arises from a premise defect, the governmental unit owes to the claimant only the same duty as a private person owes to a licensee on private property. Id. at § 101.022(a). That duty requires that a landowner not injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh'g). Actual knowledge of the dangerous condition is required. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). Constructive knowledge of the defect is insufficient. Id.
   
If a claim arises from a special defect, the governmental unit owes the same duty to warn that a private landowner owes an invitee. Id.; Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). That duty requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware. Payne, 838 S.W.2d at 237. In The University of Texas at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010), the court discussed the considerations relevant to a determination that a condition is a special defect:
 
The Legislature does not define special defect but likens it to conditions "such as excavations or obstructions on highways, roads, or streets." Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); see also County of Harris v. Eaton, 573 S.W.2d 177, 178-80 (Tex. 1978) (construing "special defect" as including those defects of the same kind or class as those expressly mentioned in the statute). In Denton County v. Beynon, we reaffirmed that conditions can be special defects "only if they pose a threat to the ordinary users of a particular roadway." 283 S.W.3d 329, 331 (Tex. 2009) (citing State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992)). Whether a condition is a special defect is a question of law. City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam). In deciding this question, we have previously considered characteristics of the class of special defect, such as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle's ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway. See Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam). The class of special defects contemplated by the statute is narrow.
 
SOURCE: DALLAS COURT OF APPEALS - 05-11-00509-CV - 10/26/11
 
Appellants argue the tall vegetation located in the easement along Sundown Road is a special defect, or in the alternative a premise defect from which their claim arose. Accordingly, we first address whether the tall vegetation constituted a special defect for purposes of section 101.022(b) of the Tort Claims Act. As emphasized by the court in Hayes and in Denton County v. Beynon, 283 S.W.3d 329, 332 (Tex. 2009), the special defect class is narrow. The defect must "pose a threat to 'ordinary users' in the manner that an excavation or obstruction blocking the road does." Beynon, 283 S.W.3d at 332; see also Hayes, 327 S.W.3d at 116. The court in Beynon also explained that its statement in Payne that excavations and obstructions "present an unexpected and unusual danger to ordinary users of roadways" did not create an additional element that could be proven to establish a special defect. Beynon, 283 S.W.3d at 331, n.11. Rather, the "unexpected and unusual danger" language was used "to describe the class, not to redefine it." Id. As noted in Sipes v. Texas Dep't of Transp., 949 S.W.2d 516, 521 (Tex. App.-Texarkana 1997, writ denied), "grass and weeds growing along an East Texas highway in July are neither unexpected nor unusual." Several courts have concluded vegetation obstructing a motorist's view is not a special defect. See Anderson v. Anderson Cnty., 6 S.W.3d 612, 615-16 (Tex. App.-Tyler 1999, pet. denied) (collecting cases).

Waiver: Right to appeal may be waived as part of settlement agreement

   
WHAT IS WAIVER, LEGALLY SPEAKING?

Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with that right. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003); Lang v. Lee, 777 S.W.2d 158, 164 (Tex. App.-Dallas 1989, no writ). Waiver can be established by an express renunciation of a known right. Jernigan, 111 S.W.3d at 156. In determining if waiver has in fact occurred, the court must examine the acts, words, or conduct of the parties and it must be "equivocally manifested" that it is the intent of the party to no longer assert the right. Robinson v. Robinson, 961 S.W.32d 292, 299 (Tex. App.-Houston [1st Dist.] 1997, no writ).

SOURCE: DALLAS COURT OF APPEALS - 05-10-01098-CV - 10/31/11

At the conclusion of the settlement hearing, the court asked appellant, "And you are agreeing that you understand that you are not-no longer going to prosecute the appeal that you currently have and will not appeal or attempt to appeal any other orders of this court that will be issued as a result of this settlement agreement?" Appellant agreed and said she understood. We conclude appellant unequivocally manifested her intent to waive her right to appeal the issues she now raises on appeal. Cf. Recognition Commc'ns, Inc. v. Am. Auto Ass'n, Inc., 154 S.W.3d 878, 885 (Tex. App.-Dallas 2005, pet. denied) (holding statement by attorney established party's intent to waive right to appeal a specific juy finding but did not waive party's right to appeal as to the entire case). Accordingly, appellant's second and third issues are overruled.

SOURCE: DALLAS COURT OF APPEALS - 05-10-01098-CV - 10/31/11

Elements of Judicial Estoppel

WHAT IS JUDICIAL ESTOPPEL - WHEN DOES THE DOCTRINE APPLY?
  
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?

PRE-JUDGEMENT INTEREST
  
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
 
POST-JUDGMENT INTEREST

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)

LAW APPLICABLE TO WORKER’S COMPENSATION NON-SUBSCRIBING EMPLOYERS
  
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

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

TRESPASS AND NUISANCE DEFINED (Tex. 2011)

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) 

ELEMENTS OF TRESPASS TO TRY TILE ACTION 

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).

SOURCE: CORPUS CHRISTI/EDINBURG COURT OF APPEALS - 13-08-00263-CV - 10/20/11FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR WASHINGTON MUTUAL BANK v. DAVID MARION WHITE

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).

INCOMPLETE CONTRACT EXCEPTION

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).

SOURCE: CORPUS CHRISTI / EDINBURG COURT OF APPEALS - 13-08-00263-CV - 10/20/11

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