Common law marriage in Texas - It's actually called informal marriage and now governed by statute (Tex. Family Code)

    
The requirements to prove an informal -- commonly called common-law  marriage -- have been codified. So, there is now a statutory basis for "common-law" marriage, just no marriage license. But formal registration is possible. 
  

ELEMENTS OF COMMON-LAW MARRIAGE IN TEXAS

  

“Common law marriages have been recognized in Texas since 1847.”2 Russell v. Russell, 865 S.W.2d 929, 931 (Tex. 1993) (citing Tarpley v. Poage’s Adm’r, 2 Tex. 139, 149 (1847)). A common law marriage has three requirements: (1) the parties agreed to be married; (2) the parties lived together as husband and wife in Texas after they agreed to be married; and (3) the parties represented to others that they were married. TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006); Russell, 865 S.W.2d at 932; Palacios v. Robbins, No. 04-02-00338-CV, 2003 WL 21502371, *3 (Tex. App.—San Antonio July 2, 2003, pet. denied) (mem. op.). All three elements must exist at the same time. Palacios, 2003 WL 21502371, at *3.

“Informal marriage” is the statutory term used to describe what is colloquially known as a common law marriage. See TEX. FAM. CODE ANN. § 2.401 (West 2006).

To establish an agreement to be married, “the evidence must show the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). The agreement to be married may be established by direct or circumstantial evidence. Russell, 865 S.W.2d at 933. The testimony of one of the parties to the marriage constitutes direct evidence the parties agreed to be married. See Eris, 39 S.W.3d at 714; In re

Estate of Giessel, 734 S.W.2d 27, 32 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). The conduct of the parties and evidence of cohabitation and representations to others may constitute circumstantial evidence of an agreement depending upon the facts of the case. See Russell, 865 S.W.2d at 933; Eris, 39 S.W.3d at 714. Cohabitation need not be continuous. See Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.—San Antonio 1987, no writ) (holding evidence sufficient to establish cohabitation where husband worked in Nigeria but lived with wife each time he returned to Texas). As with all of the elements of common law marriage, cohabitation is determined on a case-by-case basis. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981).

The statutory requirement of “represent[ing] to others” is synonymous with the judicial requirement of “holding out to the public.” Compare TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006) with Claveria, 615 S.W.2d at 166. “‘Holding out’ may be established by the conduct and actions of the parties.” Eris, 39 S.W.3d at 715. “Spoken words are not necessary to establish representation as husband and wife.” Id. Written references to the marriage or to a party as “spouse” are evidence of “holding out.” See Claveria, 615 S.W.2d at 167 (holding recorded deed in which parties represented they were married was evidence of common law marriage); Persons v. Persons, 666 S.W.2d 560, 563 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) (holding reference to one party as “spouse” in credit application was evidence of holding out).
  

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00332-CV - 4/18/12

Carmen’s affidavits were not sham affidavits and were sufficient to raise a fact issues on each element of her claim that she and Francisco had an informal marriage. Accordingly, the summary judgment is reversed and the cause is remanded to the trial court. Additionally, we hold the trial court erred in expunging Carmen’s second notice of lis pendens.

Liz who? Liz what? - Lis Pendens ...

Lis pendens is Latin for pending lawsuit. The typical usage in English is "notice of lis pendens", -- a document putting interested parties (potential buyers of property) on notice that a particular piece of real estate is involving in litigation that is currently ongoing. 

LIS PENDENS IS NOT A CAUSE OF ACTION
 

A lis pendens may be filed during the pendency of an action involving title to real property, the establishment of an interest in real property, or an enforcement of an encumbrance against real property. TEX. PROP. CODE ANN. § 12.007 (West 2009). The purpose of a lis pendens is to put parties interested in a particular tract of land on notice as to the facts and issues involved in a suit or action concerning that particular tract. In re Jamail, 156 S.W.3d 104, 108 (Tex. App.—Austin 2004, orig. proceeding.); In re Collins, 172 S.W.3d 287, 292–93 (Tex. App.—Fort Worth 2005, orig. proceeding); Garza v. Pope, 949 S.W.2d 7, 8 (Tex. App.—San Antonio 1997, no writ). 
  
A lis pendens is not an independent claim, Collins v. Tex Mall, L.P., 297 S.W.3d 409, 419 (Tex. App.—Fort Worth 2009, no pet.), and has no existence separate and apart from the litigation of which it gives notice. Taliaferro v. Smith, 804 S.W.2d 548, 550 (Tex. App.—Houston [14th Dist.] 1991, no writ). Under Texas law, a lis pendens does not prevent a sale of the property; it merely places a purchaser on notice that a person other than the title holder claims an interest in the property. Group Purchases, Inc. v. Lance Inv., Inc., 685 S.W.2d 729, 731 (Tex. App.—Dallas 1985, writ ref’d n.r.e.). A lis pendens notice operates during the pendency of the lawsuit and terminates with the judgment, in the absence of appeal. Berg v. Wilson, 353 S.W.3d 166, 180 (Tex. App.—Texarkana 2011, pet. denied); see also Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865, 869 (1940); Collins, 297 S.W.3d at 418.

Section 12.0071 of the Texas Property Code provides the statutory authority for expunging a lis pendens. TEX. PROP. CODE ANN. § 12.0071 (West Supp. 2011). Section 12.071 provides in part

(a) A party to an action in connection with which a notice of lis pendens has been filed may:

(1) apply to the court to expunge the notice; and

(2) file evidence, including declarations, with the motion to expunge the notice.

(b) The court may:

(1) permit evidence on the motion to be received in the form of oral testimony; and

(2) make any orders the court considers just to provide for discovery by a party affected by the motion.

(c) The court shall order the notice of lis pendens expunged if the court determines that:

(1) the pleading on which the notice is based does not contain a real property claim;

(2) the claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim; or

(3) the person who filed the notice for record did not serve a copy of the notice on each party entitled to a copy under Section 12.007(d).

(d) Notice of a motion to expunge under Subsection (a) must be served on each affected party on or before the 20th day before the date of the hearing on the motion.

TEX. PROP. CODE ANN. § 12.0071 (West Supp. 2011). The record does not reflect that any party to the underlying action filed a motion to expunge the second lis pendens, nor do the children argue one was filed. It appears from the record the trial court sua sponte, only four days after the second lis pendens was filed, ordered the second lis pendens expunged.

Section 12.0071 allows a party to file a motion requesting the trial court expunge a notice lis pendens, but the statute requires that the motion be served on each affected person on or before the 20th day before a hearing on the matter. No party filed a motion and Carmen was not provided twenty days’ notice that the trial court was considering expunging the lis pendens. We hold the trial court erred in expunging the lis pendens sua sponte and without proper notice to each affected party.

  

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00332-CV - 4/18/12

Does employee who does book-keeping have a fiduciary duty?

  
EXISTENCE OF FIDUCIARY DUTY AS ELEMENT OF BREACH OF FIDUCIARY DUTY CLAIM
  

A fiduciary duty is an extraordinary duty which will not be lightly created. Gillum v. Republic Health Corp., 778 S.W.2d 558, 567 (Tex. App.-Dallas 1989, no writ). Fiduciary duties arise as a matter of law in certain formal relationships, including attorney-client, partnership, and trustee relationships. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998).

 

Appellees do not argue that there was a formal fiduciary relationship between the parties; rather, they argue an informal, confidential relationship existed between appellant and Woube and appellant and S-W Transportation.

   

In some circumstances, informal relationships may also give rise to a fiduciary duty. See Crim Truck & Tractor v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992). These informal relationships, termed “confidential relationships,” may arise “where one person trusts in and relies upon another, whether the relation is a moral, social, domestic, or merely personal one.” Id. A confidential relationship exists in those cases in which “influence has been acquired and abused, in which confidence has been reposed and betrayed.” Id. (quoting Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 507 (Tex. 1980)).

  

A person is justified in placing confidence in the belief that another party will act in his best interest only where he is accustomed to being guided by the other party's judgment and advice and there exists a long association in a business relationship as well as a personal friendship. Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 304 (Tex. App.-Dallas 2009, no pet.). “The existence of the fiduciary relationship is to be determined by the actualities of the relationship between the persons involved.” Id. (quoting Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1963)). Although we recognize the existence of a confidential relationship is ordinarily a question of fact, when the issue is one of no evidence, it becomes a question of law. Crim Truck, 823 S.W.2d at 594.

  

SOURCE: DALLAS COURT OF APPEALS - 05-10-01119-CV – 4/19/12 (finding no fiduciary duty and reversing judgment for plaintiff)   

  

Real Estate Transactions: What degree of specificity is required to satisfy the statute of frauds?

  
STATUTE OF FRAUDS GOVERNING CONVEYANCE OF REAL ESTATE, PURCHASE-OPTION CONTRACTS
 

Under the applicable statute of frauds, a contract for the sale of real estate is not enforceable unless it, or a memorandum of it, is in writing and signed by the person to be charged with the contract.  Tex. Bus. & Com. Code Ann. § 26.01(a), (b)(4) (Vernon 2009).  For a contract concerning the conveyance of real estate to satisfy the statute of frauds, “the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.”  Wilson v. Fisher, 188 S.W.2d 150, 152 (Tex. 1945).  This applies to a purchase option in a contract.  See Matney v. Odom, 210 S.W.2d 980, 981–82 (Tex. 1948) (applying statute of frauds analysis to purchase option in contract).  Whether a contract falls within the statute of frauds is a question of law.  Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

  

The purpose of a description in a written conveyance is not to identify the land, but to afford a means of identification.  Jones v. Kelley, 614 S.W.2d 95, 99–100 (Tex. 1983).  While we apply a strict application of the statute of frauds, we allow for a liberal construction of the words describing the land.  Gates v. Asher, 280 S.W.2d 247, 248 (Tex. 1955).   

  

A metes-and-bounds description is not required to satisfy the statute of frauds.  Tex. Builders v. Keller, 928 S.W.2d 479, 481 (Tex. 1996).  Similarly, a plat in a recorded property description is not required.  Nguyen v. Yovan, 317 S.W.3d 261, 269 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).  Nor does the description of the property require “[c]onviction beyond all peradventure of doubt.”  Gates, 280 S.W.2d at 249; see also Templeton v. Dreiss, 961 S.W.2d 645, 659 (Tex. App.—San Antonio 1998, pet. denied) (holding mathematical certainty not required).  Instead, only proof within “reasonable certainty” is required.  Gates, 280 S.W.2d at 249.

  

“If enough appears in the description so that a party familiar with the locality can identify the premises with reasonable certainty, it will be sufficient.”  Id. at 248–49.  Generally speaking, a property can be identified with reasonable certainty if it identifies the general area of the land and “contains information regarding the size, shape, and boundaries.”  Reiland v. Patrick Thomas Props., Inc., 213 S.W.3d 431, 437 (Tex. App.—Houston [1st Dist.] 2006, pet. denied); accord Fears v. Tex. Bank, 247 S.W.3d 729, 736 (Tex. App.—Texarkana 2008, pet. denied).

  

“[W]hen construing a conveyance, the court does not look at terms in isolation; rather, it must give effect to all parts of the conveyance and construe the document as a whole.”  Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 789 (Tex. 1995).  When a contract includes a map of the property to be conveyed as a part of its description of the property, this is included in the analysis of whether the description satisfies the statute of frauds.  Matney, 210 S.W.2d at 984; U.S. Enters., Inc. v. Dauley, 535 S.W.2d 623, 628 (Tex. 1976).  “Whether a map is helpful in remedying descriptive defects of the contract depends on whether the missing details are shown on the map.”  U.S. Enters., 535 S.W.2d at 628.

   

While parol evidence may be considered under certain circumstances, it cannot be used to supply the “essential elements” of the contract.  Wilson, 188 S.W.2d at 152.  In contrast, it can be used to “explain or clarify the essential terms appearing in the” contract.  Id. 

   

If it does not sufficiently describe the land to be conveyed, a conveyance of an interest in real property is void and unenforceable under the statute of frauds.  Nguyen, 317 S.W.3d at 267.

SOURCE: HOUSTON COURT OF APPEALS – NO. 01-11-00328-CV   -- 4/19/12

(“The property description contained with the sublease is not so vague or ambiguous as to render its boundaries indeterminable.  Additionally, the record shows that a surveyor, using the information contained in or referenced by the sublease, was able to identify the property with reasonable certainty.  Accordingly, we hold that the trial court erred by determining, as a matter of law, that the property subject to the sublease’s purchase option could not be identified with a reasonable certainty.”) 

Third-Party-Beneficiary Status Under Force-Placed Insurance Policies (Hurricane Ike litigation)

       
Insurance contracts are subject to the same rules of construction as ordinary contracts.  ArchonInvs., Inc. v. Great Am. Lloyds Ins. Co., 174 S.W.3d 334, 338 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex. 1997)).  When a policy permits only one reasonable interpretation, we construe it as a matter of law and enforce it as written.  Id. (citing Upshaw v. Trinity Cos., 842 S.W.2d 631, 633 (Tex. 1992)).  When construing an insurance policy, “[w]e must strive to effectuate the policy as the written expression of the parties’ intent.”  Id. (citing State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995)). To discern the intent of the parties to a contract, the court examines and considers the entire writing to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless, no single provision taken alone will be given controlling effect, and all the provisions will be considered with reference to the whole instrument.  In re Serv. Corp. Int’l, 355 S.W.3d 655, 661 (Tex. 2011).If the term to be construed is unambiguous and susceptible of only one construction, we “give the words in the policy their plain meaning.”  Archon, 174 S.W.3d at 338 (citing Devoe v.Great Am. Ins., 50 S.W.3d 567, 571 (Tex. App.—Austin 2001, no pet.)).
  

In determining whether a third party can enforce a contract, we look only to the intention of the contracting parties.  Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894, 900 (Tex. 2011); MCI Telecomms.Corp. v. Tex. Utils.Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999); Union Pac. R.R. Co. v. Novus Int’l, Inc., 113 S.W.3d 418, 421 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).  The fact that a person might receive an incidental benefit from a contract to which he is not a party does not give that person a right to enforce the contract. Basic Capital Mgmt., 348 S.W.3d at 899–900; MCI Telecomms., 995 S.W.2d at 651; Union Pac., 113 S.W.3d at 421.  A third party may recover on a contract made between other parties only if the contracting parties intended to secure a benefit to the third party and only if the contracting parties entered into the contract directly for the third party’s benefit. Basic Capital Mgmt., 348 S.W.3d at 900; MCITelecomms., 995 S.W.2d at 651; Union Pac., 113 S.W.3d at 421.  The third party must show that he is either a donee or a creditor beneficiary of the contract, and not one who is only incidentally benefitted by its performance.  MCITelecomms., 995 S.W.2d at 651; Union Pac., 113 S.W.3d at 421.  A party is a donee beneficiary if the promised performance will, when rendered, come to him as pure donation.  MCITelecomms., 995 S.W.2d at 651; Union Pac., 113 S.W.3d at 421.  If that performance will come to him in satisfaction of a legal duty owed to him by the promisee, such as an “indebtedness, contractual obligation or other legally enforceable commitment,” he is a creditor beneficiary.  MCITelecomms., 995 S.W.2d at 651; Union Pac., 113 S.W.3d at 421.

  

 “We glean intent from what the parties said in their contract, not what they allegedly meant.”  Union Pac., 113 S.W.3d at 421.  We will not create a third-party beneficiary contract by implication.  Basic Capital Mgmt., 348 S.W.2d at 900; MCITelecomms., 995 S.W.2d at 651; Union Pac., 113 S.W.3d at 422; see also Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011) (“[I]n the absence of a clear and unequivocal expression of the contracting parties’ intent to directly benefit a third party, courts will not confer third-party beneficiary status by implication.”).  As the Texas Supreme Court held in MCITelcommunications,

   

The intention to contract or confer a direct benefit to a third party must be clearly and fully spelled out or enforcement by the third party must be denied.  Consequently, a presumption exists that parties contracted for themselves unless it “clearly appears” that they intended a third party to benefit from the contract.

   

995 S.W.2d at 651;see alsoBasic Capital Mgmt., 348 S.W.3d at 900 (quoting same).

   

Due to the presumption against finding third-party beneficiaries to contracts, courts will generally deny third-party-beneficiary claims unless:  (1) the obligation of the bargain-giver is fully spelled out, (2) it is unmistakable that a benefit to the third party was within the contemplation of the contracting parties, and (3) the contracting parties contemplated that the third party would be vested with the right to sue for enforcement of the contract.  Union Pac., 113 S.W.3d at 422.  We resolve all doubts against conferring third-party-beneficiary status.  Tawes, 340 S.W.3d at 425; see also First Union Nat’l Bank v. Richmont Capital Partners I, L.P., 168 S.W.3d 917, 929 (Tex. App.—Dallas 2005, no pet.) (“If there is any reasonable doubt as to the intent of the contracting parties to confer a direct benefit on the third party, then the third-party beneficiary claim must fail.”).

    

Texas’s third-party beneficiary policy was recently examined and explained by the Texas Supreme Court in Basic Capital Management.348 S.W.3d 894.  In that case, Basic managed real estate investment trusts, including American Realty Trust, Inc. (“ART”) and Transcontinental Realty Investors, Inc. (“TCI”).  Id. at 896.  Basic and Dynex signed a Commitment, in which Dynex agreed to loan funds to “single-asset, bankruptcy-remote entities” (“SABREs”) owned by ART and TCI if Basic would “propose other acceptable SABREs to borrow $160 million over a two-year period.”  Id. at 896–97.  The issue on appeal was whether ART and TCI could recover damages from Dynex for its alleged breach of the Commitment as third-party beneficiaries to the Commitment.  Id. at 898.

   
The supreme court reasoned that, because the intention to confer a direct benefit to a third party must be clearly and fully spelled out in the contract for that party to have standing as a third-party beneficiary, “a presumption exists that parties contracted for themselves unless it clearly appears that they intended a third party to benefit from the contract.”  Id. at 900.Although only Dynex and Basic had signed the Commitment, “Dynex knew that the purpose of the Commitment was to secure future financing for ART and TCI, real estate investment trusts that Basic managed and in which it held an ownership interest.”  Id.  Not only was Basic not intended to be the borrower, but the Commitment expressly required that the borrowers be SABREs acceptable to Dynex, and Dynex knew that Basic would not own the SABREs.  Id.  The court concluded that this requirement was for Dynex’s benefit, since SABREs are designed to provide more certain recourse to collateral in the event of default.  Id.  The court pointed out that “SABRE-borrowers provided a mechanism for ART and TCI to hold investment property directly but in a way that would provide Dynex greater security.”  Id.  Thus, “if Dynex and Basic did not intend the Commitment to benefit ART and TCI directly, then the Commitment had no purpose whatsoever.”  Id.  Moreover, the Commitment “clearly and fully spelled out the benefit to ART and TCI because their role was basic to Dynex’s and Basic’s agreement.”  Id. at 901.  The court concluded, “The Commitment itself, and the undisputed evidence regarding its negotiation and purpose, establish that ART and TCI were third-party beneficiaries.”  Id.
   

Although Texas state courts have addressed whether a party may be a third-party beneficiary in the general insurance policy context, they have not addressed the specific issue of whether a homeowner-borrower qualifies as a third-party beneficiary under a force-placed insurance policy entered into between the insurance company and the mortgage company.  See, e.g., Paragon Sales Co. v. N.H. Ins. Co., 774 S.W.2d 659, 660–61 (Tex. 1989) (holding distributor presented some evidence that it was third-party beneficiary of indemnity contract between insurance company and public motor carrier).  As a result of Hurricanes Dolly, Katrina, and Rita, however, some federal courts within the Fifth Circuit Court of Appeals’ jurisdiction, primarily in Louisiana, have addressed this issue and have reached differing conclusions as to the homeowner’s third-party-beneficiary status according to the specific terms of the policy and the facts of the case.

   

When deciding whether a homeowner-borrower is a third-party beneficiary under a force-placed insurance policy, the federal courts applying state law, like the Texas courts, have looked to the language of the policy to determine whether any of the provisions clearly confer a direct benefit upon the borrower.  Thus, the Fifth Circuit has found third-party beneficiary status to exist (1) when the policy, although only listing the mortgage company as a named insured, contains a subrogation clause providing that the homeowner-borrower will not be liable to the insurance company for any loss paid to the insured and (2) when the policy contains a provision allowing for temporary housing expenses to be paid to the homeowner-borrower.  See Palma v. Verex Assurance, Inc., 79 F.3d 1453, 1457–58 (5th Cir. 1996) (subrogation clause case decided under Texas law).  In Palma, the Fifth Circuit held that the inclusion of the subrogation clause within the insurance policy demonstrated a clear intention on the part of the contracting parties to benefit the homeowner-borrower.  Seeid.at 1458 (“[The subrogation clause] is written for the sole benefit of the borrower. . . .  We also find that the insurance contract was actually made, in part, for the benefit of Palma [the borrower].”); see also Henderson v. Certain Underwriters at Lloyds, London, Civil Action No. 09-1320, 2009 WL 3190710, at *3 (E.D. La. Sept. 30, 2009) (slip op.) (noting that plaintiff’s standing was limited solely to seeking temporary housing expenses because this was only clause in policy providing direct benefit to borrower).
   

Primarily, the federal district courts have focused on whether the policy contains one of two specific clauses that may benefit the borrower:  (1) an “excess loss” or “residual payment” clause or (2) a clause providing that the insurer will adjust all personal property losses with, and pay any such proceeds to, the borrower.  A common excess loss clause provides as follows:

   

We will adjust all losses with you [the mortgagee and named insured].  We will pay you but in no event more than the amount of your interest in the “insured location.”  Amounts payable in excess of your interest will be paid to the “borrower” unless some other person is named by the “borrower” to receive payment . . . .

  

See, e.g., Turner v. Gen. Ins. Co. of Am., Civil Action No. 5:09cv00057-DCB-JMR, 2009 WL 3247302, at *3 (S.D. Miss. Oct. 7, 2009) (slip op.).  If the policy provides coverage for personal property, the insurance policy may include a clause providing that the insurer will adjust all losses to personal property with the homeowner-borrower and will pay the borrower any proceeds for such loss, unless the borrower has named another person to receive payment.  Id.

   

A number of courts in the cases in which there were force-placed policies with such clauses have found third-party-beneficiary status for homeowners under the terms of the particular policy.  For example, in Lee v. Safeco Insurance Co. of America, the United States District Court for the Eastern District of Louisiana held that the excess loss clause, which “clearly stipulate[d] that the portion of any loss payment exceeding the value of [the mortgagee’s] interest in the property will be paid directly to [the homeowner-borrower],” manifested a “clear intent to benefit the borrower.”  Civil Action No. 08-1100, 2008 WL 2622997, at *4 (E.D. La. July 2, 2008) (not designated for publication); see Turner, 2009 WL 3247302, at *4; Beck v. State Farm Fire &Cas. Co., No. 2:07 CV 1998, 2008 WL 4155301, at *2 (W.D. La. Sept. 5, 2008) (not designated for publication) (finding third-party-beneficiary status when policy contained excess loss clause and provision allowing for adjustment of personal property losses with and payment of such losses to borrower); Navarrete v. Gen. Ins. Co. of Am., Civil Action No. 07-4865, 2008 WL 659477, at *2 (E.D. La. Mar. 7, 2008) (not designated for publication) (same); Peters v. Safeco Gen. Ins. of Am., Civil Action No. 07-5612, 2008 WL 544226, at *1 (E.D. La. Feb. 25, 2008) (not designated for publication) (same); Martin v. Safeco Ins. Co., Civil Action No. 06-6889, 2007 WL 2071662, at *3 (E.D. La. July 13, 2007) (not designated for publication) (same); see also Hickman v. Safeco Ins. Co. of Am., 695 N.W.2d 365, 370–71 (Minn. 2005) (holding same when policy contained excess loss clause, coverage for personal property, provision that insurer would adjust personal property losses with borrower and would pay borrower, and provision allowing borrower to seek arbitration of appraisal of covered loss).

  

The Eastern District of Louisiana has also held, however, that a homeowner-borrower was not a third-party beneficiary to an insurance policy containing an excess loss clause when the claimed damages did not exceed the mortgagee’s interest in the property, as required by the terms of the policy for her to be considered an additional insured.  Graphia v. Balboa Ins. Co., 517 F. Supp. 2d 854 (E.D. La. 2007).  In Graphia, the policy provided that the borrower “shall be considered an additional insured with respect to any residual amounts of insurance over and above [the mortgagee’s] insurable interest.”  Id. at 857.  The borrower claimed damages of $56,542.91, and she presented evidence that the balance remaining on her loan was $110,000.  Id.  The court noted that there was “no amount ‘due for the loss’ that exceeds [the mortgagee’s] insurable interest.”  Id.  The court concluded, “The contract does manifest a clear intention to benefit Graphia, but only to the extent that she has an insurable interest in the property.  The contract evidences no intent to give plaintiff personal rights in the insurance coverage for losses that do [not] exceed the mortgagee’s insurable interest.”  Id. at 858.  Because her losses did not exceed the mortgagee’s interest in the property, Graphia received only an incidental benefit from this policy and, therefore, could not enforce the contract.  Id.; cf. Mingo v. Meritplan Ins. Co., No. 2:06 CV 1914, 2007 WL 4292026, at *3 (W.D. La. Dec. 4, 2007) (not designated for publication) (denying insurer’s motion to dismiss for lack of standing because parties disputed amount of loss and record did not reflect either amount of mortgage or mortgagee’s interest in property).

  

The federal courts have also found the force-placed homeowner not to be a third-party beneficiary when the homeowner did not receive a direct benefit from the policy under the policy’s own terms.  Specifically, the federal courts have denied third-party beneficiary status when the insurance policy states (1) that it does not provide coverage for loss of use, personal liability, or personal property, (2) that the mortgagee is the sole insured, (3) that the policy is intended to protect the mortgagee’s interest only and not the borrower’s, or (4) that all losses will be adjusted with and made payable to the named insured, the mortgage company.  See Williams v. Certain Underwriters at Lloyd’s of London, 398 Fed. App’x 44, 48–49 (5th Cir. 2010) (not designated for publication) (policy specified that mortgagee was sole insured and all benefits were payable directly to mortgagee); Lumpkins v. Balboa Ins. Co., 812 F. Supp. 2d 1280, 1283–84 (N.D. Okla. 2011) (policy provided no coverage for contents, personal effects, personal living expenses, fair rental value or liability and stated that contract was only with named insured and only intended to protect named insured’s interest); Barrios v. Great Am. Assurance Co., Civil Action No. H-10-3511, 2011 WL 3608510, at *4 (S.D. Tex. Aug. 16, 2011) (slip op.) (policy specified that, unless homeowners coverage was specifically added by endorsement, homeowner-mortgagor was not insured under policy); Williams v. Fid. Nat’l Ins. Co., Civil Action No. 07-4428, 2009 WL 2922310, at *3 (E.D. La. Sept. 8, 2009) (not designated for publication) (policy specified that, despite insurable interests of homeowner, only mortgagee was insured under policy); Simpson v. Balboa Ins. Co., Civil Action No. 2:08cv281KS-MTP, 2009 WL 1291275, at *3–4 (S.D. Miss. May 7, 2009) (policy provided no coverage for loss of use, personal liability, or personal property and no right of borrower to participate in claim adjustment); Jones v. Proctor Fin. Ins. Corp., Civil Action No. 06-9503, 2007 WL 4206863, at *3 (E.D. La. Nov. 21, 2007) (not designated for publication) (policy provided no coverage for personal property, and adjustment of and payment for loss would be made solely to mortgagee); Paulk v. Balboa Ins. Co., No. 1:04CV97, 2006 WL 1994864, at *3 (S.D. Miss. July 14, 2006) (not designated for publication) (same); see also Scheaffer v. Balboa Ins. Co., 1 So. 3d 756, 759 (La. Ct. App. 2008) (notice of premium informed borrower that he was not insured under policy, that he was not entitled to receive proceeds, and that policy protected only mortgagee’s interest).  Mere payment of the force-placed-policy premiums by the homeowner-borrower, without more, does not necessarily confer third-party-beneficiary status on the borrower.  See Scheaffer, 1 So. 3d at 760; Lee, 2008 WL 2622997, at *3 (“Mere payment or reimbursement of insurance premiums by a plaintiff to an insurance provider does not create a right to recovery under an insurance policy when the plaintiff is not the named insured and is nowhere named in the policy.”).

  

SOURCE: HOUSTON COURT OF APPEALS - NO. 01-10-00740-CV and NO. 01-10-01150-CV – 4/19/12

Enforceability of Forum Selection Clauses in Texas

   
CONTRACTUAL CHOICE OF TEXAS AS FORUM FOR LITIGATION
  

Forum selection clauses are enforceable in Texas if the parties have contractually consented to submit to the exclusive jurisdiction of Texas. See In re Cornerstone Healthcare Holding Group, Inc., 348 S.W.3d 538, 540 (Tex. App.-Dallas 2011, orig. proceeding); Falk & Fish, L.L.P. v. Pinkston's Lawnmower & Equipment., Inc., 317 S.W.3d 523, 525 (Tex. App.-Dallas 2010, no pet.); My Café-CCC, Ltd. v. Lunchstop, Inc., 107 S.W.3d 860, 864 (Tex. App.-Dallas 2003, no pet.). We review a trial court's ruling concerning the validity and enforceability of a forum selection clause for an abuse of discretion. See Cornerstone, 348 S.W.3d at 540; Falk, 317 S.W.3d at 526. A trial court does not abuse its discretion if it bases its decision on conflicting evidence. My Café, 107 S.W.3d at 864.

  

SOURCE: DALLAS COURT OF APPEALS - 05-10-01385-CV – 4/2/12

 
Read additional opinion excerpts ….

Is misappropriation of trade secrets actionable under the TTLA? [Texas Theft Liability Act]

   

TRADE SECRETS & Texas Theft Liability Act Claim

Is the misappropriation of trade secrets actionable under the TTLA?

  

The Texas Theft Liability Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001-.005.

The Texas Theft  Liability Act imposes civil liability for, among other actions, “unlawfully appropriating property” as described by Texas Penal Code section 31.05. Id. §§ 134.002(2), 134.003.

Under penal code section 31.05(b), a person commits theft of trade secrets if, without the trade-secret owner's consent, he knowingly: (1) steals a trade secret; (2) copies an article representing a trade secret; or (3) communicates or transmits a trade secret. Tex. Penal Code Ann. § 31.05(b) (West  2011).
 

A person who sustains damages resulting from the unlawful appropriation of property under section 31.05 may recover actual damages, as well as additional damages not to exceed $1,000 and  attorney's fees. Tex. Civ. Prac. & Rem. Code Ann. § 134.005.

SOURCE: DALLAS COURT OF APPEALS – 05-11-00409-CV – 4/11/12

CASE CITE: Twister B.V. v. Newton Research Partners, LP, 364 S.W.3d 428 (Tex. App.-Dallas 2012, no pet.) 

Read more from the opinion …

364 S.W.3d 428 (2012)

TWISTER B.V., Appellant,
v.
NEWTON RESEARCH PARTNERS, LP, Appellee.

No. 05-11-00409-CV.

Court of Appeals of Texas, Dallas.

April 11, 2012.

432*432 Jennifer Heather Davidow, Phillip B. Dye, Jr., Vinson & Elkins, LLP, Houston, Tyler J. Bexley, Vinson & Elkins, LLP, Dallas, for Appellant.

Jim L. Flegle, Carol E. Farquhar, Corey Weinstein, Loewinsohn Flegle Deary, L.L.P., Dallas, for Appellee.

Before Justices O'NEILL, FRANCIS, and MURPHY.

OPINION

Opinion By Justice MURPHY.

Twister B.V. appeals the trial court's order denying its special appearance in a theft of trade secrets suit filed against it by Newton Research Partners, LP. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(7) (West 2008) (interlocutory appeal). We affirm.

BACKGROUND

Both Twister and Newton are involved in the business of natural gas processing. Twister is a Dutch private limited liability company located in the Netherlands town of Rijswijk. Twister was formed in 2001 by Shell International Exploration and Production B.V., a company of the Royal Dutch/Shell Group of Companies and an investment partner to "market innovative gas processing technologies to the global exploration and production market." One of Twister's products is a supersonic separator, which separates hydrocarbon liquids and water from natural gas. Twister's gas-processing technology was developed by Shell International and transferred to Twister at the time of its incorporation. A Shell International employee involved in the development of the technology, Cornelis Antonie "Kees" Tjeenk Willink, became Twister's Chief Executive Officer.

Newton, a Texas limited partnership, owns what it claims are confidential and proprietary trade secrets related to natural gas processing. The alleged trade secrets were developed by Michael Bloom and concerned technology used to separate and remove contaminants from natural gas. For descriptive purposes only, this information is referenced simply as the "trade secrets." Bloom was a limited partner in Newton and manager of Newton's general partner, Newton Research, LLC. Newton obtained ownership of the trade secrets through a series of assignments and agreements.

In 1997, Bloom disclosed the trade secrets to Shell E & P Technology Corporation, a division of Shell Exploration & Production Company, under a promise of confidentiality. According to Newton, Shell Exploration later violated that promise and shared the trade secrets with a Shell affiliate in the Netherlands and others, including Twister. Newton claims Twister then unlawfully used Newton's trade secrets in Twister's gas-separation products and that Twister marketed and sold those products in Texas and elsewhere.

Newton filed suit against Twister and other defendants^[1] in 2007, charging them with, among other things, stealing Newton's 433*433 trade secrets and violating the Texas Theft Liability Act. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 134.002(2), 134.003(a) (West 2011) (providing for civil liability for certain acts proscribed by the penal code, including theft of trade secrets). Newton also charged Shell Exploration with breaking contractual promises of confidentiality and breaching its fiduciary duty to Newton by unlawfully misappropriating Newton's trade secrets.

In response, Twister filed a special appearance with a supporting affidavit from Tjeenk Willink, who at that time was Twister's CEO and Chief Technology Officer. Tjeenk Willink stated in his affidavit that the technology used in Twister's gas-separation products was not derived from Newton's trade secrets; rather, it was based on technology developed by another company. Newton's response to Twister's special appearance included an affidavit from Bloom, as well as other documentary evidence. Bloom stated that after reviewing certain documents related to Twister's technology and products, he concluded the technology he developed and disclosed to Shell Exploration was being used by Twister in its products. Newton's other evidence related to Twister's marketing and product sales in Texas. Twister later filed an amended special appearance with a supplemental affidavit from Tjeenk Willink in which he explained the extent of Twister's marketing and sales projects in Texas.

The trial court heard argument on the special appearance in October 2008. The parties relied on their documents on file and offered no live testimony; thus, the record consists of the affidavits and other documents attached to the special appearance and response. The trial court did not rule on Twister's special appearance at this hearing or at a second special appearance hearing held one year after the first.^[2] Nearly a year and a half later, in March 2011, the trial court orally denied Twister's special appearance at a hearing on a motion to modify a prior discovery order. The trial court subsequently signed its order denying Twister's first amended special appearance on March 30, 2011. The trial court did not specify the basis for its ruling in the order and did not issue fact-findings or legal conclusions.

DISCUSSION

Eviction Suit after Foreclosure – Does the tenant have any protection, rights?

   
FORCIBLE DETAINER ACTIONS – SUIT FOR POSSESSION OF PROPERTY [not suit over title or to resolve dispute over ownership interests]

   

A forcible detainer action is a procedure to determine the right to immediate possession of real property where there was no unlawful entry. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.-Dallas 2001, no pet.). It is intended to be a speedy, simple, and inexpensive means to obtain possession without resort to an action on the title. Scott v. Hewitt, 90 S.W.2d 816, 818-19 (Tex. 1936); Rice, 51 S.W.3d at 709. To maintain simplicity, the applicable rule of procedure provides that “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.

  

Accordingly, the only issue in a forcible detainer action is which party has the right to immediate possession of the property. Rice, 51 S.W.3d at 709. Whether a sale of property under a deed of trust is invalid may not be determined in a forcible detainer action but must be brought in a separate suit. Scott, 90 S.W.2d at 818; Rice, 51 S.W.3d at 710 (quoting Scott).

   

The Protecting Tenants at Foreclosure Act of 2009. See Pub. L. No. 111-22, 123 Stat. 1632, sec. 702 provides that, following a foreclosure, the immediate successor in interest pursuant to the foreclosure sale has the right demand that the tenant vacate the residence with ninety days' notice. Id

  

Any defects in the foreclosure process or with appellee's title to the property may not be considered in a forcible detainer action. Shutter, 318 S.W.3d at 471; Williams, 315 S.W.3d at 927.
  

SOURCE: DALLAS COURT OF APPEALS - 05-11-00067-CV – 4/11/12    
  

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Quasi-estoppel - What is it? When does it apply?

 
QUASI ESTOPPEL CASELAW SNIP (2016)

Quasi-estoppel is a term applied to certain legal bars, such as ratification, election, acquiescence, or acceptance of benefits. Steubner Realty 19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex. App.-Houston [14th Dist.] 1991, no writ). The long-standing doctrine "precludes a [person] from asserting, to another's disadvantage, a right inconsistent with a position previously taken." Lopez v. Muñoz, Hockema & Reed, L.L.P.,22 S.W.3d 857, 864 (Tex. 2000); see Schauer v. Von Schauer, 138 S.W. 145, 149-50 (Tex. Civ. App.-Austin 1911, writ ref'd) ("Where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title, or right, he cannot afterwards assume a position inconsistent with such act, claim or conduct to the prejudice of another." (internal quotations omitted)). And "[t]he doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one [in] which [s]he acquiesced." Lopez, 22 S.W.3d at 864; see alsoAtkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex. App.-Corpus Christi 1994, writ denied); Vessels v. Anschutz Corp., 823 S.W.2d 762, 765-66 (Tex. App.-Texarkana 1992, writ denied). Unlike equitable estoppel, quasi-estoppel does not require a showing of a false representation or detrimental reliance. Steubner Realty 19, Ltd., 817 S.W.2d at 164.

SOURCE: HOUSTON COURT OF APPEALS - 01-14-00705-CV - 1/21/2016  
Here, however, Metzger did not raise his estoppel issue in the probate court, and he did not request a jury question on the issue. Because Metzger did not raise this issue at trial, he did not preserve it for appellate review. See TEX. R. APP. P. 33.1(a); TEX. R. CIV. P. 94 ("[A] party shall set forth affirmatively . . . estoppel. . . ."), 278, 279; see also Ray v. T.D., No. 03-06-00242-CV, 2008 WL 341490, at *8 (Tex. App.-Austin Feb. 7, 2008, no pet.) (mem. op.) ("As the party with the burden of proving quasi-estoppel, [appellant's] failure to seek findings and conclusions regarding that theory waives it."). We overrule Metzger's second issue.

QUASI-ESTOPPEL (legal doctrine)

  

“Quasi-estoppel precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken.”  Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). “The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit.” Id. “Thus, quasi-estoppel forbids a party from accepting the benefits of a transaction and then subsequently taking an inconsistent position to avoid corresponding obligations or effects.”  Eckland Consultants, Inc. v. Ryder, Stilwell Inc., 176 S.W.3d 80, 87 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  “[T]here can be no estoppel from acceptance of benefits by a person who did not have knowledge of all material facts.”  Lindley v. McKnight, 349 S.W.3d 113, 133 (Tex. App.—Fort Worth 2011, no pet.)  (citing Frazier v. Wynn, 472 S.W.2d 750, 753 (Tex. 1971)).

This equitable doctrine operates as an affirmative defense. Hamilton v. Morris Res., Ltd., 225 S.W.3d 336, 346 (Tex. App.—San Antonio 2007, pet. denied). 

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00739-CV – 4/5/12

Statutory Waiver of Immunity of Local Governments to Certain Contract Claims

Governmental Immunity

Governmental immunity protects political subdivisions of the State, including cities, from lawsuits for money damages, unless their 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). Immunity from suit is jurisdictional and bars suit, whereas immunity from liability is not jurisdictional and protects political subdivisions from judgments. Id. Governmental immunity is waived only by clear and unambiguous language indicating the Legislature’s intent to do so.Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex. 2010).

Waiver of Immunity for Certain Contract Claims

Local Government Code section 271.152, which waives a local governmental entity’s immunity from suit for certain contract claims, provides:

A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.

Tex. Loc. Gov’t Code Ann. § 271.152 (Vernon 2005). This statute defines a “[c]ontract subject to this subchapter” as “a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity.” Id. § 271.151(2) (Vernon 2005). The total amount of money which may be awarded under this section is “the balance due and owed by the local government entity under the contract,” any amount owed for change order or additional work the governmental entity directed it to perform, and interest as allowed by law. Id. § 271.153(a) (Vernon Supp. 2011).The purpose of this section is to “limit the amount due by a governmental agency on a contract once liability has been established, not to foreclose the determination of whether liability exists.” Kirby Lake, 320 S.W.3d at 840.

The jurisdictional elements for a claim of waiver of immunity based on section 271.152 are as follows: (1) the party against whom the waiver is asserted must be a “local governmental entity”;(2) the entity must be authorized by statute or the Constitution to enter into contracts; and (3) the entity must in fact have entered into a contract that is “subject to this subchapter.” City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011).

SOURCE: HOUSTON FIRST COURT OF APPEALS – 01-10-00240-CV – 4/5/12

Election of Remedies Requirement does not bar TTCA suit against governmental unit

 
First Court of Appeals rejects City of Houston’s position, citing earlier precedent and opinions of other courts of appeals that have followed it.

 
City of Houston v. McMahon, No. 01-11-01037-CV (Tex.App.- Houston [1^st Dist.] Apr. 12, 2012, no pet. h.)

 
MEMORANDUM OPINION

The City of Houston (“the City”) appeals the trial court’s interlocutory order denying its plea to the jurisdiction.[1]  In its sole issue, the City contends that the trial court erred in denying its plea because it has immunity pursuant to subsection (b) of the election-of-remedies provision of the Texas Tort Claims Act.[2] 

In accordance with this Court’s opinion in City of Houston v. Esparza, we affirm the trial court’s order denying the City’s plea to the jurisdiction.  See No. 01–11–00046–CV, 2011 WL 4925990, at *6 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (op. on reh’g).

Background Summary

Greta McMahon, Individually and as Next Friend of Kelsey McMahon, sued the City and its employee, Bradley Wyatt Nugent.  The petition alleges that Greta McMahon and Kelsey McMahon were riding in a car hit by a vehicle driven by Nugent, who was operating his vehicle in the scope of his employment with the City.  McMahon alleges that Nugent’s negligent and careless conduct caused the collision.  As a result of the collision, McMahon claims that she and Kelsey suffered personal injuries.

The City filed a motion to dismiss all of McMahon’s claims against Nugent.  In its motion, the City asserted, “Because plaintiff has sued both the Houston and its employee, Nugent, this Court must immediately dismiss Nugent on Houston’s motion[.]”  The City cited Tort Claims Act subsection 101.106(e), which provides, “If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by a governmental unit.” [3]  The City asserted, “The language of the statute requiring dismissal of the employee on the filing of a motion by the governmental unit is mandatory.”

The trial court granted the City’s motion, dismissing Nugent from the suit.

The same day the trial court signed the order dismissing Nugent, the City filed a plea to the jurisdiction.  In its plea, the City cited Tort Claims Act subsection 101.106(b), which provides that the “filing of a suit against any employee of a governmental unit . . . immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.”[4]  The City asserted, “By filing suit against Nugent regarding the same subject matter, [McMahon] perfected [the City’s] section 101.106(b) immunity, defeating this Court’s subject-matter jurisdiction.”  In response, McMahon cited this Court’s opinion in Esparza in which we held that filing a suit against both the governmental unit and its employee invokes subsection (e) and results in an involuntary election of the governmental unit as the exclusive defendant, should the government or its employee choose to file a motion to dismiss on behalf of the employee.[5] 

The trial court denied the City’s plea to the jurisdiction.  The City now appeals the trial court’s order, raising one issue.

Standard of Review and Related Legal Principles

Governmental immunity from suit defeats a trial court’s subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction.  See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999).  We review de novo a trial court’s ruling on a jurisdictional plea.  Miranda, 133 S.W.3d at 226; see Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex. App.—Dallas 2007, pet. denied). 

The issue presented in this appeal requires us to interpret Tort Claims Act section 101.106.  “The meaning of a statute is a legal question, which we review de novo to ascertain and give effect to the Legislature’s intent.”  Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).  In construing statutes, our primary objective is to give effect to the legislature’s intent as expressed in the language of the statute.  Galbraith Eng’g Consultants, 290 S.W.3d at 867; see also Tex. Gov’t Code Ann. § 312.005 (Vernon 2005).  “Where text is clear, text is determinative of that intent.”  Entergy Gulf States, 282 S.W.3d at 437.  “This general rule applies unless enforcing the plain language of the statute as written would produce absurd results.”  Id.  We presume the legislature intended a just and reasonable result when it enacted the statute.  City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008).  We read a statute as a whole, interpreting and giving effect to each of its parts.  See State ex. rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)). 

Analysis

In its sole issue, the City asserts that the trial court erred in denying its plea to the jurisdiction because subsection 101.106(b) grants it immunity and bars any suit by McMahon against it arising from the automobile accident with Nugent.  McMahon responds that the City’s position is contrary to our holding in Esparza, 2011 WL 4925990, at *6.  We agree with McMahon. 

Sovereign and governmental immunity exist to protect the State and its political subdivisions from lawsuits and liability for money damages because such lawsuits hamper governmental functions by interfering with the appropriate use of tax resources.  See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008).  Even so, the State, and likewise its political subdivisions, may be sued when the legislature has statutorily waived immunity.  See id. 

The Torts Claim Act establishes a limited waiver of immunity and authorizes suits to be brought against governmental units in certain defined circumstances and with certain restrictions.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–109 (Vernon 2011 & Vernon Supp. 2011); Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).  With respect to a statutory waiver of immunity, as in the Tort Claims Act, we interpret the waiver narrowly, because the legislature’s intent to waive immunity must be clear and unambiguous.  Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655 (Tex. 2008) (citing Tex. Gov’t Code Ann. § 311.034 (Vernon 2005)).  Relevant to this case, the Act waives governmental immunity to the extent that liability arises from the “use of a motor-driven vehicle or motor-driven equipment.”  See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A) (Vernon 2011).

The City does not presently dispute that section 101.021 generally waives its immunity for personal injury claims arising from an accident involving the use of a motor vehicle, such as that asserted by McMahon.  Nonetheless, the City claims that, under the procedural posture of this case, its immunity remains intact pursuant to Tort Claims Act section 101.106.[6]  That statute, entitled “Election of Remedies,” provides, in relevant part, as follows:

(a)      The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.

(b)     The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.

                    . . . .

(e)      If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

          . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2011).

In Esparza—a case with a similar factual and procedural background to this case—the City made the same argument it makes here: a plaintiff who sues both the governmental employee and the governmental unit cannot maintain suit against either.  See Esparza, 2011 WL 4925990 at *3.  More particularly, the City contends that if a plaintiff, such as McMahon, originally sues both a governmental unit and its employee then, on the governmental unit’s motion, the employee must be dismissed under subsection (e) and the plaintiff’s remaining suit against the governmental unit must be dismissed under subsection (b).  According to the City, the employee is dismissed under subsection (e) and the governmental unit is immune from suit under subsection (b). 

As pointed out by McMahon, we rejected the City’s argument in Esparza.  See id. at *4, 6.  We reasoned that requiring dismissal of the claims against the governmental unit when a plaintiff sues both the governmental unit and its employee would render subsection (e) “superfluous, and its language, which does not mention dismissal of the governmental unit, would be incongruent.”  Id. at *6.  We held that the filing of a suit against both the governmental unit and its employee invokes subsection (e) and results in the plaintiff’s involuntary election of the governmental unit as her exclusive defendant, should the government or its employee choose to file a dismissal motion on behalf of the employee.  See id.  Under those circumstances, subsection (a) forever bars the claimant from pursuing her claims against the government employee, the non-elected defendant; but, subsection (b) does not simultaneously prohibit the claimant from pursuing her claims against the governmental unit, her elected defendant.  See id. at *5–6.  In sum, “[W]hile a claimant who erroneously fails to make an election has an election foisted upon her by operation of the statute, her inartful drafting does not, alone, bar her claims against both the employee and the employer.”  Id. at *6.  

Following our precedent in Esparza, we conclude that subsection (b) does not provide immunity when a claimant sues both a governmental unit and its employee.[7]  See id. at *4, 6; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e).  If she has otherwise complied with the jurisdictional requisites of the Tort Claims Act, McMahon is not barred by subsection (b) from pursuing her claims against the City, her elected defendant.[8]  See Esparza, 2011 WL 4925990, at *10.  We hold that the trial court properly denied the City’s plea to the jurisdiction.

We overrule the City’s sole issue.

Conclusion

We affirm the trial court’s order denying the City’s plea to the jurisdiction.

                                                                      Laura Carter Higley

                                                                      Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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[1]         See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2011).
[2]         See id. § 101.106(b) (Vernon 2011).  
[3]         See id. § 101.106(e).
[4]         Id. § 101.106(b).
[5]         City of Hous. v. Esparza, No. 01–11–00046–CV, 2011 WL 4925990, at *6 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (op. on reh’g).
[6]         The Supreme Court of Texas has stated that that “section 101.106 is an immunity statute.”  Newman v. Obersteller, 960 S.W.2d 621, 623 (Tex. 1997).  The supreme court reiterated this position in Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011).  There, the court, citing Newman, stated that section 101.106 is a statute which confers immunity.  Id. at 371 n.9 (citing Newman, 960 S.W.2d at 623).  
[7]         The City is critical of our opinion in Esparza.  Since its issuance, we have relied on and reaffirmed the reasoning of Esparza in a number of opinions.  See, e.g., Metro. Transit Auth. v. Light, No. 01–11–00747–CV, 2012 WL 252187, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 26, 2012, no pet.) (mem. op.); City of Hous. v. Tsaig, No. 01–11–00432–CV, 2012 WL 170606, at *3 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, (no pet.) (mem. op.); Tex. Dept. of Aging and Disability Servs. v. Johnson, No. 01–11–00526–CV, 2012 WL 27728, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.); City of Hous. v. Marquez, No. 01–11–00493–CV, 2011 WL 6147772, at *3 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.) (mem. op.); City of Hous. v. McClain, No. 01–11–00194–CV, 2011 WL 6015697, at *2 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, pet. filed) (mem. op.); City of Hous. v. San Miguel, No. 01–10–01071–CV, 2011 WL 5429048, at *2–3 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no pet.) (mem. op.).  Here, we again reaffirm Esparza and apply its holding.  We also note that two of our sister courts have relied on our reasoning in Esparza to reject the same argument made by the City in this case.  In Texas Tech University Health Sciences Center v. Villagran, the Amarillo Court of Appeals relied on Esparza in reaching the following holding: “[W]hen a claimant sues both the governmental unit and its employee together, the overall statutory scheme of section 101.106 requires that the trial court dismiss the employee upon the governmental unit’s motion, leaving the governmental unit to defend suits that otherwise comport with the Tort Claims Act’s jurisdictional constraints.”  No. 07–11–0257–CV, 2012 WL 967366, at *7 (Tex. App.—Amarillo Mar. 22, 2012, no pet. h.).  The San Antonio Court of Appeals also adopted our holding in Esparza, commenting, “Esparza’s construction achieves the legislature’s goals: it reduces litigation costs by determining the elected defendant at the outset, protects government employees in the course and scope of employment by allowing them to be immediately dismissed, and gives the plaintiff’s election—whether by pleading or operation of statute—irrevocable consequences.”  Tex. Dept. of Public Safety v. Deakyne, No. 04–11–00271–CV, 2012 WL 726916, at *7 (Tex. App.—San Antonio Mar. 7, 2012, no pet. h.).
[8]         The City has not challenged McMahon’s compliance with the Tort Claims Act jurisdictional requirements, other than the election-of-remedies provision.  See Esparza, 2011 WL 4925990, at *10 n.22.