Forcible Detainer ... Huh? What?

What do lawyers and landlords mean by "forcible detainer"?

It's what leads to eviction; -- the failure to move out when the renter or previous owner no longer has the right to be in the house or in the apartment ("premises"), and denies the rightful owner the right to have control over it ("possession"). A forcible detainer action is an eviction suit, whose purpose is to get a justice of the peace to order the occupant(s) out of the habitation. The landlord or property manager will typically also ask for any unpaid rent.   

Forcible detainer occurs when a person, who is a tenant at sufferance, refuses to surrender possession of real property after his right to possession has ceased. See TEX. PROP. CODE ANN. § 24.002; ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527, 530 (Tex. App.-El Paso 1994, writ denied).

A forcible detainer action is "a summary, speedy, and inexpensive" procedure for determining the right to immediate possession of real property where no claim of unlawful entry exists. Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 926-27 (Tex. App.-Dallas 2010, no pet.). To maintain the intended simplicity, the applicable rule of civil procedure, rule 746, provides that "the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated."[5] TEX. R. CIV. P. 746; Williams, 315 S.W.3d at 927. In other words, entitlement to possession of premises is decided "without resorting to an action upon the title." Rice v. Pinney, 51 S.W.3d 705, 710 (Tex. App.-Dallas 2001, no pet.) (quoting Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (Tex. 1936)). Proof of the existence of a landlord-tenant relationship establishes a plaintiff's entitlement to possession. Pinney, 51 S.W.3d at 712. 

SOURCE: DALLAS COURT OF APPEALS - 05-12-00899-CV - 7/10/2013

Application of Law to Facts

[Former home owner's] issue on appeal mirrors his argument to the trial court. He does not dispute that (1) he defaulted on the loan, (2) the property was sold at foreclosure, (3) GMAC purchased the property at the foreclosure sale and subsequently conveyed it to FNMA, (4) he did not surrender possession of the property upon demand, and (5) the home equity agreement provided that, upon sale of the property and his failure to surrender, a tenancy at sufferance was created, which established a landlord-tenant relationship, and which established FNMA's entitlement to possession. See id. Rather, he disputes the validity of the foreclosure sale in light of the automatic bankruptcy stay, which addresses the merits of the title. Because [former home owner's] issue as to the merits of the title may not be raised in a forcible detainer action, we resolve his sole issue against him. See Williams, 315 S.W.3d at 927.  

Suit on sworn account is not a cause of action, but a different way to plead a common-law suit on account

San Antonio Court of Appeals reiterates that a sworn account is not a cause of action in its own right, but instead a procedural vehicle to present a prima facie case. The benefit of a prime facie case under Rule 185 are lost when the defendant files a sworn denial. When that happens, the plaintiff must prove the suit on account under the ordinary evidentiary standards (i.e. those applicable to a trial on the merits, or for summary judgment).  

NATURE OF SWORN ACOUNT SUIT (TRCP 185)

A suit on a sworn account is not an independent cause of action. Southern Mgmt. Servs., Inc. v. SM Energy Co., No. 14-12-00377-CV, 2013 WL 793153, at *2 (Tex. App.-Houston [14th Dist.] Mar. 5, 2013, no pet. h.). "It is based instead on Rule 185, which affords a procedural right of recovery in certain contract disputes." Id.; see also Pine Trail Shores Owners Ass'n v. Aiken, 160 S.W.3d 139, 144 (Tex. App.-Tyler 2005, no pet.) (noting Rule 185 is not a rule of substantive law and suit on sworn account is not a cause of action).
   

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-12-00029-CV – 6/5/2013
   

ADDITIONAL SWORN ACCOUNT CLIPS:

 

Under rule 185 of the Texas Rules of Civil Procedure, when an action is founded on an open account on which a systematic record has been kept and is supported by an affidavit, the account shall be taken as prima facie evidence of the claim, unless the party resisting the claim files a written denial under oath. See Tex. R. Civ. P. 185; Panditi v. Apostle, 180 S.W.3d 924, 926 (Tex. App.-Dallas 2006, no pet.).

SUBSTANTIVE ELEMENTS OF SWORN ACCOUNT (common-law suit on account) 
   

 

SUBSTANTIVE SWORN ACCOUNT ELEMENTS

 

The essential elements to prove a sworn account are: (1) that there was a sale and delivery of merchandise or performance of services; (2) that the amount of the account is just, that is, that the prices were charged in accordance with an agreement or were customary and reasonable prices; and (3) that the amount is unpaid. Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 773 (Tex. App.-Corpus Christi 2001, no pet.). See also Cass v. Stephens, 156 S.W.3d 38, 70 (Tex. App.-El Paso 2004, pet. denied); Burch v. Hancock, 56 S.W.3d 257, 264 (Tex. App.-Tyler 2001, no pet.); Tex. R. Civ. P. 185.   

SALES TRANSACTION REQUIRED

A "sale and delivery of merchandise or performance of services" is one of the elements essential to prove a sworn account. Adams, 41 S.W.3d at 773.

A "sale" consists in the passing of title from the "seller" to the "buyer" for a price. Tex. Bus. & Com. Code Ann. § 2.106(a) (Vernon 1994). "Buyer" means a person who buys or contracts to buy goods. Tex. Bus. & Com. Code Ann. § 2.103(a)(1) (Vernon Supp. 2006). "Seller" means a person who sells or contracts to sell goods. Id. § 2.103(a)(4). Unless otherwise agreed by the parties, title to goods passes to the buyer at the time and place of delivery. Tex. Bus. & Com. Code Ann. § 2.401(b) (Vernon Supp. 2006).

SOURCE: DALLAS COURT OF APPEALS - 05-06-00216-CV - 2/23/2007

Credit card debt claim as breach of contract (breach of cardmember or account agreement) in Texas courts

FINANCIAL INSTITUTION'S LEGAL THEORY FOR COLLECTION OF CREDIT CARD DEBT IN TEXAS COURTS: BREACH OF CONTRACT

In Texas, collection of the amount due under a credit card agreement is treated as a claim for a breach of contract. In re Tran, 351 B.R. 440, 445 (Bankr. S.D. Tex. 2006), aff'd, 369 B.R. 312 (S.D. Tex. 2007); see Tully v. Citibank (South Dakota), N.A., 173 S.W.3d 212, 215-20 (Tex. App.-Texarkana 2005, no pet.).

ELEMENTS OF BREACH OF CONTRACT CLAIM  

To recover for breach of contract, a plaintiff must show (1) the existence of a valid contract, (2) the plaintiff performed or tendered performance, (3) the defendant breached the terms of the contract, and (4) the plaintiff suffered damages as a result of the defendant's breach. Transworld Leasing Corp. v. Wells Fargo Auto Fin., LLC, No. 04-12-00036-CV, 2012 WL 4578591, at *3 (Tex. App.-San Antonio 2012, pet. denied); McLaughlin, Inc. v. Northstar Drilling Tech., Inc., 138 S.W.3d 24, 27 (Tex. App.-San Antonio 2004, no pet.).

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

CONTRACT FORMATION, MATERIAL TERMS (CREDIT AND REPAYMENT TERMS), AND BREACH  

 

Parties form a binding contract when the following elements are present: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party's consent to the terms; and (5) the execution and delivery of the contract with the intent that it be mutual and binding. Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 236 (Tex. App.-Houston [1st Dist.] 2008, no pet.).

 

To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the parties. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). The material terms of a contract must be agreed upon before a court can enforce the contract. Id. A breach of contract occurs when a party to the contract fails or refuses to do something he has promised to do. West v. Triple B Services, LLP, 264 S.W.3d 440, 446 (Tex. App.-Houston [14th Dist.] 2008, no pet.).  

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-12-00080-CV – 6/12/2013

Hooper v. Generations Community Federal Credit Union

Credit Union failed to prove breach-of-contract claim by failing to submit the contract under which it sought to hold the customer liable, and failing to show breach of specific terms.

 

We conclude the record discloses the complete absence of evidence of the third element of the Credit Union's breach of contract claim, i.e., that Hooper breached the terms of an agreement with the Credit Union. In the absence of evidence that Hooper failed or refused to do something he promised to do under an agreement, the Credit Union failed to prove its breach of contract claim. See Pioneer Land & Cattle Co. v. Collier, No. 07-12-00320-CV, 2013 WL 2150814, at *6 (Tex. App.-Amarillo 2013, no pet. h.) (concluding the trial court did not err in granting a no-evidence summary judgment on the plaintiff's breach of contract claim when there was no evidence of the first, third, or fourth elements of the claim). We, therefore, hold the evidence was legally insufficient to support the trial court's judgment. Hooper's second issue is sustained.
 

Physical vs. psychological pain as elements of damages in tort case

physical pain and mental anguish as separate elements of damages  

Courts have held that physical pain and mental anguish are in fact separate and distinct elements of damage for personal injuries. See SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248 (Tex.App.-Texarkana 2005, no pet.); Leyendecker v. Harlow, 189 S.W.2d 706, 711 (Tex.Civ.App.-Galveston 1945, writ ref'd w.o.m.); see also Sw. Tex. Coors, Inc. v. Morales, 948 S.W.2d 948, 954 (Tex.App.-San Antonio 1997, no writ) (Green, J., concurring).

SOURCE:  EL PASO COURT OF APPEALS - 08-10-00261-CV – 2/15/2012 

Nowak also points out that the Texas Pattern Jury Charges place physical pain and mental anguish together as one element of damages. The pattern charges serve as a guide only and are not binding on trial courts. See Styers v. Schindler Elevator Corp., 115 S.W.3d 321, 325-26 (Tex.App.-Texarkana 2003, pet. denied). Given that physical pain and mental anguish are separate elements of damage, the court did not abuse its considerable discretion in submitting them that way, rather than following the pattern charge.

We also note that the jury was instructed to "[c]onsider each element separately" and not to "award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any." The Texas Supreme Court has approved this type of instruction. See Golden Eagle, 116 S.W.3d at 770-71. Unless the record indicates otherwise, we presume the jury followed the instruction. See id. at 771.

SOURCE:  EL PASO COURT OF APPEALS - 08-10-00261-CV – 2/15/2012 

How do parties enter into a legally binding arbitration agreement?

ELEMENTS OF ARBITRATION AGREEMENT

The elements of a valid arbitration agreement are: (1) an offer; (2) acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party's consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex. App.-Houston [14th Dist.] 2005, no pet.). 
   
The term "meeting of the minds" refers to the parties' mutual understanding and assent to the expression of their agreement. Principal Life Ins. Co. v. Revalen Dev., LLC, 358 S.W.3d 451, 454 (Tex. App.-Dallas 2012, pet. denied). Contracts require mutual assent to be enforceable. Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (per curiam). Evidence of mutual assent in written contracts generally consists of signatures of the parties and delivery with the intent to bind. Id. Whether the parties reached an agreement is a question of fact. Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 72 (Tex. App.-Houston [14th Dist.] 2010, pet. denied).

 

Arbitration clauses generally do not require mutuality of obligation so long as adequate consideration supports the underlying contract. In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 233 (Tex. 2008) (orig. proceeding) (per curiam). When an arbitration agreement is part of a larger, underlying contract, the remainder of the contract may constitute sufficient consideration for the arbitration provision. In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex. 2006) (orig. proceeding). 
   
Stand-alone arbitration agreements require binding promises from both sides as they are the only consideration rendered to create a contract. In re Advance PCS Health L.P., 172 S.W.3d 603, 607 (Tex. 2005) (orig. proceeding) (per curiam). 
  
A promise is illusory if it does not bind the promisor, as when the promisor retains the option to discontinue performance. In re 24R, Inc., 324 S.W.3d 564, 567 (2010) (orig. proceeding) (per curiam). When illusory promises are all that support a purported bilateral contract, there is no mutuality of obligation and, therefore, no contract. Id. An arbitration agreement is not illusory unless one party can avoid its promise to arbitrate by amending the provision or terminating it altogether. Id.

SOURCE: HOUSTON COURT OF APPEALS - 14-12-00263-CV – 2/2/2013 

ELEMENTS OF CONTRACT-FORMATION GENERALLY  

To create an enforceable contract, there must be (1) an offer, (2) acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. See Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 72 (Tex. App.-Houston [14th Dist.] 2010, pet. denied). "Meeting of the minds" describes the mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract. See Potcinske v. McDonald Property Investments, Ltd., 245 S.W.3d 526, 530 (Tex. App.-Houston [1st Dist.] 2007, no pet.) Mutual assent concerning material, essential terms is a prerequisite to formation of a binding contract. See id.

Declarations as a form of judicial relief (under the DJA)

Declaratory relief under the DJA (Declaratory Judgments Act)
   

CLAIMS UNDER THE TEXAS VERSION OF THE UNIFORM DECLARATORY JUDGMENTS ACT (UDJA)

Under the declaratory judgment act, "[a] person interested under a . . . written contract. . . may have determined any question of construction or validity arising under the . . . contract . . . and obtain a declaration of rights, status, or other legal relations thereunder." See Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 2008). 

A declaratory-judgment proceeding is "an additional remedy and does not supplant any existing remedy, but is intended as a speedy and effective remedy for the determination of the rights of the parties when a real controversy has arisen." Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713 (Tex. 1945). A declaratory-judgment action "is appropriate when a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought." Texas Health Care v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex. App.-Austin 2002, pet. denied). 
  
A declaratory-judgment action may not be used to obtain an advisory opinion. Transportation Ins. Co. v. WH Cleaners, Inc., 372 S.W.3d 223, 227 (Tex. App.-Dallas 2012, no pet.) (explaining that declaratory-judgment action is proper only when justiciable controversy exists). In other words, the declaratory-judgment statute does not empower courts to comment on "hypothetical or contingent situations, or to determine questions not then essential to the decision of an actual controversy." Texas Health Care, 94 S.W.3d at 846.

SOURCE: AUSTIN COURT OF APPEALS - 03-10-00784-CV - 01/4/2013

Claim of third-party beneficiary status: two types under Texas law

THIRD-PARTY BENEFICIARY LAW

A third party may recover on a contract made between other parties only if the parties intended to secure some benefit to that third party, and only if the contracting parties entered into the contract directly for the third party's benefit. Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002). The mere fact that a person might receive an incidental benefit from a contract does not give that person a right of action to enforce the contract. Id. In determining whether a third party can enforce a contract, the intention of the contracting parties is controlling. S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex.2007). The intention to confer a direct benefit to a third party must be clearly and fully spelled out, or enforcement by the third party must be denied. Id. Courts may not create third-party beneficiary contracts by implication. Stine, 80 S.W.3d at 589. There is a presumption in Texas against third-party beneficiary agreements. Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex.2011).

WHO QUALIFIES AS A THIRD-PARTY BENEFICIARY?

Texas recognizes two forms of third-party beneficiary: creditor and donee.

A party is a creditor beneficiary if no intent to make a gift appears from the contract (which would make the party a donee beneficiary), but performance will satisfy an actual or asserted duty of the promisee to the beneficiary. Lomas, 223 S.W.3d at 306; Esquivel v. Murray Guard, Inc., 992 S.W.2d 536, 543 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).[4] This duty may be an indebtedness, contractual obligation, or other legally enforceable commitment to the third party. Esquivel, 992 S.W.2d at 544. The promisee must intend that the beneficiary will have the right to enforce the contract. Id.

SOURCE: HOUSTON COURT OF APPEALS - Nos. 14-10-00821-CV, 14-10-00856-CV, 14-10-01145-CV – 5/17/12 375 - Garcia v. Bank of America Corporation, 375 S.W.3d 322 (2012)

How do Texas courts resolve disagreements about what the contract means or requires?

CONTRACT-CONSTRUCTION PRINCIPLES EMPLOYED BY COURTS WHEN ANALYZING CONTRACT PROVISIONS

"The construction of an unambiguous contract is a question of law for the court," which we review de novo. Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011). "A contract is not ambiguous simply because the parties disagree over its meaning." Dynegy Midstream Servs., Ltd. P'ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). Rather, a contract is ambiguous only when "its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation." Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). "When discerning the contracting parties' intent, courts must examine the entire agreement and give effect to each provision so that none is rendered meaningless." Tawes, 340 S.W.3d at 425.

When performing this review, no single provision will be given controlling effect; instead, all of the provisions must be considered in light of the whole agreement. Id. "In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument." Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). Accordingly, we "give contract terms their plain and ordinary meaning unless the instrument indicates the parties intended a different meaning." Apache Corp., 294 S.W.3d at 168.

STANDARD OF REVIEW ON APPEAL

The construction of a contract is a question of law that we review de novo in light of the entire agreement. See Chrysler Ins. Co. v. Greenspoint Dodge of Houston, Inc., 297 S.W.3d 248, 252-53 (Tex. 2009).

Contract construction is a question that we review de novo, and when performing that task, we review the entire contract. See Greenspoint Dodge of Houston, Inc., 297 S.W.3d at 252-53.

SOURCE: AUSTIN COURT OF APPEALS - 03-10-00784-CV - 01/4/2013

The interpretation or construction of an unambiguous contract is a matter of law to be determined by the court. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). When interpreting a contract, our primary concern is to ascertain and give effect to the intent of the parties as expressed in the agreement. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006). To discern this intent, we examine and consider the entire writing in an effort to harmonize and give effect to all of its provisions so that none will be rendered meaningless. Id. No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument. Id. Interpretation of an insurance policy is governed by the same rules of construction applicable to other contracts. Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995).

SOURCE: HOUSTON COURT OF APPEALS - Nos. 14-10-00821-CV, 14-10-00856-CV, 14-10-01145-CV – 5/17/12 375 -  Garcia v. Bank of America Corporation, 375 S.W.3d 322 (2012)

Presumption of good faith in pleadings and sanctions for groundless suit and harrassment by litigation

GOOD FAITH IN PLEADINGS AND IMPOSITION OF SANCTIONS UNDER CHAPTER 10 OF THE CPRC AND/OR RULE 13 OF THE TRCP 

Chapter 10 of the Civil Practices and Remedies Code provides that the signing of a pleading or motion constitutes a certificate by the signatory that, to the best of the signatory's knowledge, "each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." Low v. Henry, 221 S.W.3d 609, 614-15 (Tex. 2007) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 10.001(3) (West 2002)). Each allegation and factual contention in a pleading or motion must have, or be likely to have, evidentiary support after a reasonable investigation. Id. at 615. A trial court may impose sanctions against a party if the court finds that the party has failed to comply with this requirement. Nolte, 348 S.W.3d at 269 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(a) (West 2002)).

Rule 13 of the Rules of Civil Procedure allows a court to impose sanctions on a party, counsel, or both for pleadings, motions, or other papers signed and filed that are groundless and brought in bad faith or for the purpose of harassment. Loeffler v. Lytle Indep. Sch. Dist., 211 S.W.3d 331, 348 (Tex. App.-San Antonio 2006, pet. denied). The rule defines "groundless" as having no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. TEX. R. CIV. PROC. 13. Groundlessness turns on the legal merits of a claim. Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179, 184 (Tex. App.-Texarkana 2011, no pet.). A claim without evidentiary support is groundless for purposes of Rule 13, as it has no basis in fact or law. Nath v. Texas Children's Hosp., 375 S.W.3d 403, 427 (Tex. App.-Houston [14th Dist.] 2012, pet. filed). To determine if a pleading was groundless, the trial court uses an objective standard: did the party and counsel make a reasonable inquiry into the legal and factual basis of the claim? Loeffler, 211 S.W.3d at 348; see Robson, 267 S.W.3d at 405. The court will look to the facts available to the litigant and the circumstances at the time the suit was filed. Robson, 267 S.W.3d at 405. There must have been a reasonable inquiry, which means the amount of examination that is reasonable under the circumstances. Robson, 267 S.W.3d at 406 (citing Monroe v. Grider, 884 S.W.2d 811, 817 (Tex. App.-Dallas 1994, writ denied)).

In deciding whether a pleading was filed in bad faith or for the purpose of harassment, the trial court must consider the acts or omissions of the represented party or counsel, not merely the legal merit of a pleading or motion. New York Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 205 (Tex. App.-Dallas 1993, no writ.); see Davila v. World Car Five Star, 75 S.W.3d 537, 544 (Tex. App.-San Antonio 2002, no pet.). The party moving for sanctions must prove the pleading party's subjective state of mind. Thielemann v. Kethan, 371 S.W.3d 286, 294 (Tex. App.-Houston [1st Dist.] 2012, pet. denied) (citing Mattly v. Spiegel, Inc., 19 S.W.3d 890, 896 (Tex. App.-Houston [14th Dist.] 2002, no pet.)). Bad faith does not exist when a party merely exercises bad judgment or is negligent; rather bad faith is the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes. Thielemann, 371 S.W.3d at 294. A party acts in bad faith if he has been put on notice that his claim may be groundless and he does not make reasonable inquiry before pursuing the claim further. See Robson, 267 S.W.3d at 407; Monroe, 884 S.W.2d at 818 (concluding public policy supports lesser standard for bad faith under Rule 13 than under DTPA). A court may therefore find bad faith where a party asserts a claim with knowledge that the evidence fails to support the claim. Nath, 375 S.W.3d at 427. "Harass" is used in a variety of legal contexts to describe words, gestures, and actions that tend to annoy, alarm, and verbally abuse another person. Thielemann, 371 S.W.3d at 294 (citing Elkins v. Stotts-Brown, 103 S.W.3d 664, 669 (Tex. App.-Dallas 2003, no pet.)).

Courts must presume that pleadings are filed in good faith, and the burden is on the party moving for sanctions to overcome that presumption. GTE Commc'n Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). Under some circumstances, the trial court may be able to make such a determination by taking judicial notice of items in the case file. Texas-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 139 (Tex. App.-Texarkana 2000, no pet.). Circumstantial evidence will suffice to allow a trial court to infer bad faith and improper motive. Dike, 343 S.W.3d at 194. A party cannot avoid Rule 13 sanctions by claiming he was not actually aware of the facts making his claim groundless when he had not made reasonable inquiry, nor by claiming he was not acting with malicious or discriminatory purpose in bringing the claim. Robson, 267 S.W.3d at 407.

The imposition of sanctions is within the sound discretion of the trial court, and we set aside the order only upon a clear showing of abuse of discretion.[2] Low, 221 S.W.3d at 614; see Tanner, 856 S.W.2d at 730. The determination whether the court's imposition of sanctions constitutes an abuse of discretion requires an examination of the entire record. Loeffler, 211 S.W.3d at 347. A trial court abuses its discretion in imposing sanctions only if it bases the order on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Id. at 347-48. An appellate court, therefore, will view the conflicting evidence in the light most favorable to the trial court's ruling and will draw all reasonable inferences in favor of the trial court's judgment. Id. at 348.

SOURCE: SAN ANTONIO COURT OF APPEALS – 04-11-00444-CV – 3/20/2013 

Statute of frauds not self-executing, must be invoked to serve as defense in lawsuit

STATUTE OF FRAUDS AS AFFIRMATIVE DEFENSE:
MUST BE INVOKED BY THE PLEADINGS  

The statute of frauds is an affirmative defense to the enforcement of a contract which must be pleaded or it is waived. TEX. R. CIV. P. 94; Swinehart v, Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., 48 S.W.3d 865, 875 (Tex. App.-Houston [14th Dist.] 2001, pet. denied).

SOURCE: HOUSTON COURT OF APPEALS – 14-11-00895-CV – 4/30/2013

Because [the Defendant sued on guaranty] failed to plead the statute of frauds as an affirmative defense to the personal guarantee agreement, we conclude that [he] has waived it. See Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 776 (Tex. App.-Corpus Christi 2001, no pet.) (holding the appellant waived the statute of frauds to enforcement of a personal guarantee). 

Testimony, affidavit about contract likely useless in court if it violates the Parol Evidence Rule

Parol Evidence Rule

Parol evidence may not be used to vary or contradict the express or implied terms of an unambiguous written agreement absent a showing of fraud, accident, or mutual mistake. Toler v. Sanders, 371 S.W.3d 477, 481 (Tex. App.-Houston [1st Dist.] 2012, no pet.); Hudson Buick, Pontiac, GMC Truck Co. v. Gooch, 7 S.W.3d 191, 198 (Tex. App.-Tyler 1999, pet. denied). Evidence admitted in violation of the parol evidence rule is incompetent and without any probative force. Johnson v. Driver, 198 S.W.3d 359, 364 (Tex. App.-Tyler 2006, no pet.).

SOURCE: HOUSTON COURT OF APPEALS – 14-11-00895-CV – 4/30/2013

Equitable estoppel based on inconsistent positions taken in court

First he claims this, then he claims that ...

EQUITABLE ESTOPPEL BASED ON INCONSISTENT POSITIONS IN LITIGATION

The elements of equitable estoppel arising from inconsistent positions taken in judicial proceedings are (1) a party takes a clearly inconsistent positions in the same or separate proceedings; (2) the position first asserted was successfully maintained or upheld; (3) the other party relied on the position first asserted; (4) adoption of the later position would result in injury or prejudice to the adverse party; and (5) where more than one action is involved, there is an identity of parties. Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 639 (Tex. App.-Houston [1st Dist.] 2010, pet. denied); In re Estate of Loveless, 64 S.W.3d 564, 578 (Tex. App.-Texarkana 2001, no pet.).

 

SOURCE: HOUSTON COURT OF APPEALS – 14-11-00895-CV – 4/30/2013

[Defendant asserting the defense] bears the burden of proving estoppel, and the failure to prove any one or more of the elements is fatal. See Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 640 (Tex. App.-Tyler 2004, no pet.).

Right to control details of work for purposes of respondeat superior liability of employer

RIGHT OF CONTROL FOR PURPOSE OF RESPONDEAT SUPERIOR LIABILITY

Under the doctrine of respondeat superior, an employer may be vicariously liable for the negligence of its agent or employee who was acting within the scope of employment even though the employer did not personally commit a wrong. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541-42 (Tex. 2002).

But a person or entity that hires an independent contractor is generally not vicariously liable for the tort or negligence of that person. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). The right of control is the "supreme test" for determining whether a master-servant relationship exists. See Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996).

In determining whether a worker is an employee or independent contractor, the focus is on who had the right to control the details of the work. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993). An independent contractor is one who, in pursuit of an independent business, undertakes specific work for another using his or her own means and methods without submitting to the control of the other person as to the details of the work. Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App.-Fort Worth 2009, pet. denied).

We may consider several factors in determining the extent of the right of control: (1) the independent nature of the person's business; (2) the person's obligation to furnish necessary tools, supplies, and material to perform the job; (3) the right to control progress of the work, except as to final results; (4) the time for which the person is employed; and (5) the method of payment, whether by time or by the job. See Tex. A&M Univ. v. Bishop, 156 S.W.3d 580, 584-85 (Tex. 2005). However, to trigger vicarious liability, the right to control must extend to the specific activity from which the injury arose. Exxon, 867 S.W.2d at 23; Farlow, 284 S.W.3d at 911-12; Ely v. Gen. Motors Corp., 927 S.W.2d 774, 778 (Tex. App.-Texarkana 1996, writ denied).

A contract expressly providing that a person is an independent contractor is determinative of the relationship absent evidence that the contract is a mere sham or subterfuge designed to conceal the true legal status of the parties or that the contract has been modified by a subsequent agreement between the parties. See Bell v. VPSI, Inc., 205 S.W.3d 706, 713 (Tex. App.-Fort Worth 2006, no pet.); Id. (citing Newspapers, Inc. v. Love, 380 S.W.2d 582, 588-90 (Tex. 1964)). Evidence that the parties did not intend for an independent contractor relationship can come from the contract itself or from extrinsic evidence. See Farlow, 284 S.W.3d at 911.

The right to control is ordinarily a question of fact, but whether a contract gives a right to control is generally a question of law. See id. at 912

 

SOURCE: DALLAS COURT OF APPEALS - 05-10-00724-CV – 2/21/2013

Here, like in the Ely decision, the "activity" causing appellants' injuries was the test drive. See Ely, 927 S.W.2d at 778-79. See also Victoria Electric Cooperative, Inc. v. Williams, 100 S.W.3d 323, 327 (Tex. App.-San Antonio 2002, pet. denied). As we have already noted, to trigger vicarious liability, the right to control must extend to the specific activity from which the injury arose. Exxon, 867 S.W.2d at 23; Farlow, 284 S.W.3d at 911-12; Ely, 927 S.W.2d at 778. The referenced sections of the Center Agreement, however, provide no evidence of BMW NA's control of the test drive. Having determined the Center Agreement did not provide an agency relationship, we turn to appellants' argument that extrinsic evidence demonstrates BMW NA's agency relationship with Classic BMW and Homer. See Farlow, 284 S.W.3d at 911 (evidence parties did not intend an independent contractor relationship can come from extrinsic evidence).

In their brief, appellants assert that "[i]t is undisputed that [BMW NA] required salesmen like Homer to submit to its training and that it controlled how many of [Classic BMW's] salesmen were trained in particular areas or subjects." However, merely making recommendations is no evidence of a right of control. See Shell Oil Co. v. Khan, 138 S.W.3d 288, 294 (Tex. 2004). Furthermore, although BMW NA required Classic BMW to train its salespeople, the evidence, similar to that in the Ely case, establishes BMW NA was not responsible for hiring, training, and supervising Homer. See Ely, 927 S.W.2d at 778. Rather, Classic BMW's management team was responsible. In addition, the evidence before us shows BMW NA was not involved in the test drive, the injury-producing event. See Victoria Electric Co., 100 S.W.3d at 327.

Still, in an effort to demonstrate BMW NA's control, appellants refer us to evidence that BMW NA representatives would visit Classic BMW, select a topic for the visits, and then require Classic BMW's employees to sit down with him and evaluate its performance with relation to that topic. Our review of the record shows Smerek testified that examples of such topics included: customer satisfaction, sales, market share, service, service sales, warranty, warranty indexes, parts sales, and wholesale parts sales. Appellants also argue control was asserted through these visits when the representative reviewed Classic BMW's records to ensure it was in compliance with BMW NA's requirements under the Center Agreement. However, again, the evidence cited by appellants fails to establish BMW NA's control related to the injury-producing activity itself. See id.

Rather, the evidence shows that: (1) Classic BMW is an independently owned dealership that is not and has never been owned by BMW NA and (2) BMW NA did not play any role in the hiring of Homer, in training Homer on how to conduct test drives, or in supervising Homer's activities at Classic BMW. Thus, appellants have provided no summary judgment evidence that BMW NA had the right to control Homer or Classic BMW during the act resulting in appellants' injuries, namely the test drive. See Exxon, 867 S.W.2d at 23; Farlow, 284 S.W.3d at 911-12; Ely, 927 S.W.2d at 778. Because BMW NA has established the absence of an essential element of appellants' vicarious liability cause of action based on an agency relationship, BMW NA was entitled to summary judgment. See Ely, 927 S.W.2d at 779. We overrule appellants' second issue.

 

Res ipsa loquitur and HCLC expert report requirement

Dallas Court of Appeals says that pleading res ipsa loquitur does not suspend expert report requirement applicable to health care liability claims. Dismissal of suit was proper because no timely report was filed.

RES IPSA LOQUITUR [the thing speaks for itself}

Res ipsa loquitur is not a separate cause of action from negligence; it is a rule of evidence by which the jury may infer negligence. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990); Broxterman v. Carson, 309 S.W.3d 154, 158 (Tex. App.-Dallas 2010, pet. denied). It applies to situations in which (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence, and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Haddock, 793 S.W.2d at 951. Further, it applies only when "the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, requiring no expert testimony." Id.

The legislature specifically limited the applicability of the doctrine in health care claims only to those cases in which the doctrine had been applied by Texas appellate courts as of August 29, 1977. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.201. The categories where appellate courts have typically applied the doctrine in health care claims are (1) negligence in the use of mechanical instruments, (2) operating on the wrong portion of the body, and (3) leaving surgical instruments or sponges within the body. Broxterman, 309 S.W.3d at 158-59.

SOURCE: DALLAS COURT OF APPEALS - No. 05-11-01039-CV – 4/2/2013

Sherman v. Healthsouth Specialty Hospital, Inc dba Healthsouth Dallas Rehab Hospital

We express no opinion on whether the use or non-use of a seatbelt for purposes of strapping a wheelchair in a van would fall within any of the three categories because even if the doctrine applies to Sherman's claims, section 74.351 still requires her to file an expert report. See Garcia v. Marichalar, 198 S.W.3d 250, 255-56 (Tex. App.-San Antonio 2006, no pet.). As previously noted, section 74.351's expert report requirement is a procedural threshold "over which a claimant must proceed to continue a lawsuit." Murphy, 167 S.W.3d at 838; Garcia, 198 S.W.3d at 255. While section 74.201 allows for the limited applicability of res ipsa loquitur in health care liability cases, it is not "an exception to section 74.351's expert report requirement." Garcia, 198 S.W.3d at 255 (citing Hector v. Christus Health Gulf Coast, 175 S.W.3d 832, 838 (Tex. App.-Houston [14th Dist.] 2005, pet. denied)). Nor was the section intended to allow Sherman to simply plead the doctrine as a way to eliminate the procedural requirement of an expert report at the commencement of the litigation. Hector, 175 S.W.3d at 839. Consequently, we overrule Sherman's second issue.

CONCLUSION

We conclude Sherman's petition alleges health care liability claims under chapter 74 and she therefore was required to serve an expert report. We also conclude the requirement that she file an expert report at the commencement of her suit is a procedural requirement that is not eliminated by pleading the doctrine of res ipsa loquitur. Because Sherman did not file an expert report within 120 days of filing suit, the trial court did not err in granting HealthSouth's motion to dismiss. Accordingly, we affirm the trial court's order.

Cites for elements of negligent misrepresentation cause of action and list thereof

Negligent Misrepresentation

The elements of a negligent misrepresentation cause of action are:

 1. the defendant made a representation to the plaintiff in the course of defendant's business or in a transaction in which the defendant had an interest;

 2. the defendant supplied false information for the guidance of others;

 3. the defendant did not exercise reasonable care or competence in obtaining or communicating the information;

 4. the plaintiff justifiably relied on the representation; and

 5. the defendant's negligent misrepresentation proximately caused the plaintiff's injury.

McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999); Miller v. LandAmerica Lawyers Title of El Paso, 362 S.W.3d 842, 845 (Tex.App.-El Paso 2012, no pet.). The type of false information contemplated in a negligent misrepresentation case is a misstatement of existing fact, not a promise of future conduct. Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); Airborne Freight Corp., Inc. v. C.R. Lee Enterprises, Inc., 847 S.W.2d 289, 294 (Tex.App.-El Paso 1992, writ denied).

SOURCE: EL PASO COURT OF APPEALS - 08-11-00069-CV – 3/20/2013