Product liability claim vs negligence claim involving medical device

PRODUCT LIABILITY VS NEGLIGENCE (medical device) 

Normally, strict products liability and negligence are separate causes of action with different elements. Shaun T. Mian Corp. v. Hewlett-Packard, 237 S.W.3d 851, 857 (Tex. App.-Dallas 2007, pet. denied). However, here [PLAINTIFF] alleged no negligence other than conduct relating to whether the ventilator was unreasonably dangerous when sold. See id. As a result, [Plaintiff's] negligence theories are encompassed and subsumed in his defective product theories, and [Plaintiff's] burden at trial would be to prove injury resulting from a product defect. Id. Therefore, any error in disposing of [Plaintiff's] negligence claims cannot have caused the rendition of an improper judgment or prevented [PLAINTIFF] from properly presenting his case to this Court. See TEX. R. APP. P. 44.1(a); Hewlett-Packard, 237 S.W.3d at 857. [Plaintiff's] right to recover against Respironics stands or falls on the outcome of his products liability claims. Hewlett-Packard, 237 S.W.3d at 857. We thus affirm the trial court's judgment as to [Plaintiff's] negligence causes of action. Id.

STRICT LIABILITY 

Products liability imposes strict liability on the manufacturer of an unreasonably dangerous product that is a producing cause of a plaintiff's injuries. Id. The plaintiff must prove the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiff's injuries. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Hewlett-Packard, 237 S.W.3d at 858. A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858.

EXPERT TESTIMONY REQUIRED 

Generally, the requirements to prove a design defect in a products liability action necessitate competent expert testimony and objective proof that a defect caused the injury. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004); Champion v. Great Dane Ltd. Partnership, 286 S.W.3d 533, 538 (Tex. App.-Houston [14th Dist.] 2009, no pet.).

Here, [Plaintiff] failed to present expert testimony that the ventilator was defective when it left the hands of Respironics. See Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858.

Products liability theories 

Products liability theories: defective design, defective manufacturing, and defective marketing.

Products liability imposes strict liability on the manufacturer of an unreasonably dangerous product that is a producing cause of a plaintiff's injuries.  The plaintiff must prove the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiff's injuries. Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858. A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858. Generally, the requirements to prove a design defect in a products liability action necessitate competent expert testimony and objective proof that a defect caused the injury. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004); Champion v. Great Dane Ltd. Partnership, 286 S.W.3d 533, 538 (Tex. App.-Houston [14th Dist.] 2009, no pet.).

SOURCE: DALLAS COURT OF APPEALS - No. 05-11-01057-CV - 7/23/2014

See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

Under what circumstances is a contract construed as a matter of law, and extrinsic evidence precluded?

CONTRACT CONSTRUCTION AS A MATTER OF LAW 

If a written contract has a definite legal meaning, then a court should read the text and construe it as a matter of law without help from a jury. Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). When the words on the page suffice, a court should not look outside the document to decide what the parties agreed. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). The overriding objective is to "ascertain and give effect to the parties' intentions as expressed in the document." Frost Bank, 165 S.W.3d at 311-12.

However, if a contract is ambiguous, the court should accept parol evidence and can empanel a jury to decide, as an issue of fact, the "true intent of the parties." Coker, 650 S.W.2d at 394-95. A contract is ambiguous if it is open to more than one reasonable reading. Frost Bank, 165 S.W.3d at 312. Deciding whether a contract is ambiguous is itself an issue of law for the court. Webster, 128 S.W.3d at 229.

To determine whether a contract is ambiguous, courts apply standard rules of interpretation. Frost Bank, 166 S.W.3d at 312. These rules require an attempt to harmonize the contract as a whole. Id. An ideal harmonization will not treat any clause as a nullity, and courts generally presume that every provision was intended to have some effect. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). Words should be given their ordinary meaning unless it appears from context that they were used in a technical or different sense. Id. Courts should interpret contracts from a utilitarian perspective, keeping in mind the parties' business objectives. Frost Bank, 165 S.W.3d at 312. Absurd, inequitable, or oppressive interpretations are to be eschewed unless they prove unavoidable. Id.

SOURCE: HOUSTON COURT OF APPEALS - No. 01-12-00677-CV - 2/13/2014

The lease unambiguously does not require First Industrial to give Michelin advance notice of the amount of the policy's deductible. See R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980) ("If a written instrument is so worded that a court may properly give it a certain or definite legal meaning or interpretation, it is not ambiguous."). As the contract is unambiguous, our determination of its meaning is a legal conclusion. See Frost Bank, 165 S.W.3d at 312. The trial court correctly disregarded the jury's findings and entered judgment in favor of First Industrial.

ADDITIONAL CASE

See Gilbert Tex. Contr., L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118, 133 (Tex. 2010) ("If a contract as written can be given a clear and definite legal meaning, then it is not ambiguous as a matter of law.").

Can prevailing defendants get attorney's fees under the Texas Theft Liability Act (TTLA)?

Unlike other statutes that authorize recovery of attorney's fees as an exception to the American Rule, the Texas Theft Liability Act (TTLA) provides for an award of such fees to the prevailing party, which includes the party that successfully defends a statutory civil theft claim, not just the prevailing plaintiff. No showing of frivolousness is required. Dismissal with prejudice signifies success for fee purposes because it entails preclusive effect and thereby alters the relationship between the parties. 


THEFT LIABILITY ACT AND ATTORNEY FEE RECOVERY

Section 134.005(b) of the TTLA provides that "[e]ach person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney's fees." TEX. CIV. PRAC. & REM. CODE ANN. § 134.005(b). The award of fees to a prevailing party in a TTLA action is mandatory. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) ("Statutes providing that a party `may recover,' `shall be awarded,' or `is entitled to' attorney fees are not discretionary.").

The TTLA statute does not contain a definition of "prevails" to assist in determining who qualifies as a prevailing party. Courts have looked to the term's "ordinary" meaning to determine its scope for both statutory and contractual claims. See, e.g., Epps v. Fowler, 351 S.W.3d 862, 866 (Tex. 2011) (construing written contract to give meaning to undefined term "prevailed" while noting that phrase "prevailing party" is given its ordinary meaning and has been explicated through statutory interpretation by many courts).

Courts have held that the phrase "prevailing party" in section 134.005(b) of the TTLA includes both a plaintiff successfully prosecuting a theft suit and a defendant successfully defending against one. Peoples v. Genco Fed. Credit Union, No. 10-09-00032-CV, 2010 WL 1797266, at *7 (Tex. App.-Waco May 5, 2010, no pet.) (mem. op.); Brown v. Kleerekoper, No. 01-11-00972-CV, 2013 WL 816393, *5 (Tex. App.-Houston [1st Dist.] March 5, 2013, pet. filed) (mem. op.). A prevailing defendant is entitled to attorney's fees "without any prerequisite that the claim is found to be groundless, frivolous, or brought in bad faith." Air Routing Int'l Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 686 (Tex. App.-Houston [14th Dist.] 2004, no pet.). Thus, Equicap's status defending against a TTLA claim does not prevent recovery of attorney's fees.

Prevailing on portion of but not entire suit

In Moak v. Huff, No. 04-11-00184-CV, 2012 WL 566140, at *11 (Tex. App.-San Antonio Feb. 15, 2012, no pet.) (mem. op.), the defendant lost on the plaintiff's DTPA claim but successfully defended against the plaintiff's TTLA claim. Id., 2012 WL 566140, at *1. The defendant then sought an award of attorney's fees under the TTLA. Id., 2012 WL 566140, at *9. The plaintiff resisted, arguing that a person does not "prevail in a suit" unless he is the "party in whose favor a judgment is rendered" and is "vindicated by the judgment." Id., 2012 WL 566140, at *10. The plaintiff maintained that the defendant had to prevail on the entire suit to recover attorney's fees under the TTLA. Id.

The court of appeals disagreed, holding that "a person who prevails in a TTLA cause of action is entitled to recover the reasonable fees necessarily incurred prosecuting or defending that cause of action, even if the party is unsuccessful on other claims and counterclaims litigated in the same suit." Id., 2012 WL 566140, at *11; see Brown, 2013 WL 816393, at *5 (holding that defendant who successfully defended theft-of-property claim under TTLA was entitled to attorney's fees even if defendant did not prevail on other causes of action). Thus, Equicap's failure to obtain judgment on its breach-of-contract claim does not affect its recovery of attorney's fees as the prevailing party on the TTLA claim.

A defendant "prevails" if the plaintiff's claim is dismissed with prejudice

A party prevails if he "successfully prosecutes the action or successfully defends against it. . . ." Johns v. Ram-Forwarding, Inc., 29 S.W.3d 635, 637-38 (Tex. App.-Houston [1st Dist.] 2000, no pet.). A defendant who has the claims against him resolved by voluntary dismissal without prejudice generally is not considered a prevailing party or entitled to an award of attorney's fees. Cricket Commc'ns, Inc. v. Trillium Indus., Inc., 235 S.W.3d 298, 311 (Tex. App.-Dallas 2007, no pet.); Travel Music of San Antonio, Inc. v. Douglas, No. 04-00-00757-CV, 2002 WL 1058527, at *3 (Tex. App.-San Antonio May 29, 2002, pet. denied) (mem. op., not designated for publication). This is because a dismissal without prejudice does not materially alter the plaintiff's legal relationship with the defendant; the plaintiff is free to reassert his claims and may prevail against the defendant at a later date. See Epps, 351 S.W.3d at 869.

The legal relationship between a plaintiff and defendant does change, however, when the plaintiff's claims are dismissed with prejudice. Epps, 351 S.W.3d at 866-69. When a plaintiff's claims are dismissed with prejudice, the doctrine of res judicata prohibits the plaintiff from re-asserting his claims against that defendant in a later suit. Epps, 351 S.W.3d at 867; see Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991) (holding that dismissal with prejudice functions as final determination on merits); see also Williams v. TDCJ-Inst. Div., 176 S.W.3d 590, 594 (Tex. App.-Tyler 2005, pet. denied) (holding that dismissal with prejudice has full res judicata and collateral estoppel effect).

Res judicata attaches to a dismissal with prejudice even though the plaintiff's claims have not been fully litigated at trial. See Epps, 351 S.W.3d at 868-69. Res judicata applies because "a dismissal or nonsuit with prejudice is `tantamount to a judgment on the merits,'" and the effect of res judicata in that instance "works a permanent, inalterable change in the parties' legal relationship to the defendant's benefit: the defendant can never again be sued by the plaintiff or its privies for claims arising out of the same subject matter." Id. at 868-69.

The TTLA claim asserted against Equicap was dismissed with prejudice, but the basis for dismissal was specified as want of prosecution: "Accordingly, it is ORDERED and DECREED . . . that all claims by the Estate . . . are DISMISSED with PREJUDICE, for want of prosecution." See TEX. R. CIV. P. 165a (permitting dismissal of plaintiff's claims for want of prosecution).

A dismissal for failure to appear at trial or for want of prosecution should be without prejudice. See Att'y Gen. v. Rideaux, 838 S.W.2d 340, 342 (Tex. App.-Houston [1st Dist.] 1992, no writ) ("[A] trial court's authority to dismiss cases for want of prosecution does not confer upon it the authority to adjudicate and deny the merits of the dismissed claim."). An order dismissing a claim with prejudice when only dismissal without prejudice was appropriate can be challenged through a postjudgment motion. See El Paso Pipe & Supply v. Mountain States Leasing, Inc., 617 S.W.2d 189, 190 (Tex. 1981). While admittedly erroneous, a dismissal with prejudice that should have been without prejudice is not automatically void— it is merely voidable. Id.; Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863-64 (Tex. 2010) (holding that erroneous order dismissing case with prejudice for want of prosecution "must be attacked directly in order to prevent the order from becoming final. . . ."). A plaintiff must affirmatively challenge the order to avoid it becoming a final judgment. Joachim, 315 S.W.3d at 863-64 (citing El Paso, 617 S.W.2d at 190). If the plaintiff fails to challenge the error, the order of dismissal with prejudice becomes "a final determination on the merits for purposes of res judicata." Id. at 866.

The Estate did not challenge the dismissal of its TTLA claim with prejudice. Accordingly, the dismissal is treated as a final determination on the merits and res judicata applies. Joachim, 315 S.W.3d at 864, 866; El Paso, 617 S.W.2d at 190; see Mossler, 818 S.W.2d at 754; see also Williams, 176 S.W.3d at 594.

Because res judicata applies to the Estate's TTLA claim against Equicap, the parties' legal relationship has changed in a manner that materially benefited Equicap and, as such, permits Equicap to qualify as a prevailing party under the TTLA statute. See Epps, 351 S.W.3d at 868 (stating that "we have no doubt that a defendant who is the beneficiary of a nonsuit with prejudice would be a prevailing party."); cf. Doolin's Harley-Davison, Inc. v. Young, No. 06-05-00101-CV, 2006 WL 27983, at *3 (Tex. App.-Texarkana Jan. 6, 2006, no pet.) (mem. op.) (holding that defendant was not prevailing party because matter was dismissed without prejudice and plaintiff retained right to refile case).

Accordingly, the trial court was required to award to Equicap its attorney's fees related to defending against the TTLA claim. TEX. CIV. PRAC. & REM. CODE ANN. § 134.005(b) (providing that prevailing party on TTLA claim "shall be awarded" attorney's fees); Brown, 2013 WL 816393, at *5. We sustain Equicap's first issue and hold that the trial court erred by denying Equicap's timely request for attorney's fees under the TTLA, given that the trial court ordered dismissal with prejudice.

Remand to determine attorney's fees

We have held that Equicap is entitled to an award of attorney's fees on the TTLA claim because it prevailed through dismissal of the Estate's claim with prejudice. When an award of attorney's fees to a prevailing party is mandated by statute, the factfinder can decide to award zero attorney's fees only if the evidence (1) failed to prove (a) that the attorney's services were provided or (b) the value of the services provided; or (2) affirmatively showed that (a) no attorney's services were needed or (b) that any services provided were of no value. Recognition Commc'ns, Inc. v. Am. Auto. Ass'n, Inc., 154 S.W.3d 878, 891 (Tex. App.-Dallas 2005, pet. denied); Citibank (S.D.), N.A. v. Tran, No. 05-11-01423-CV, 2013 WL 3205878, at *6 (Tex. App.-Dallas Aug. 26, 2013, pet. denied) (mem. op.).

If there is any evidence in support of the award of fees, the factfinder does not have discretion to award no fees. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311-14 (Tex. 2006); see also Tran, 2013 WL 3205878, at *7 (holding that prevailing party could not be awarded zero attorney's fees by jury when attorney testified that he provided legal services and his testimony established that services had value); Glenn v. Pack, No. 02-09-00204-CV, 2011 WL 167254, at *7 (Tex. App.-Fort Worth Jan. 13, 2011, no pet.) (mem. op.) (holding that jury could not award zero attorney's fees on breach-of-contract counterclaim when attorney testified to some fee amount).

A prevailing party entitled to attorney's fees is required to "segregate fees between claims for which they are recoverable and claims for which they are not." Chapa, 212 S.W.3d at 311. Failure to segregate, though, does not result in the denial of any fee. Tran, 2013 WL 3205878, at *7 (holding that testimony of aggregate fee was some evidence of segregated fees and, therefore, supported remand); Glenn, 2011 WL 167254, at *7 ("[Party's] failure to segregate fees does not mean that he cannot recover any fees. . . ."). Rather, testimony of the full, unsegregated amount of the fee is treated as "some evidence" of the segregated fee amount, and remand is appropriate to determine the segregated fee amount due. Glenn, 2011 WL 167254, at *7; Wright v. McCusker, No. 04-99-00592-CV, 2000 WL 863099, at *2 (Tex. App.-San Antonio June 28, 2000, no pet.) (mem. op., not designated for publication).

Because the reasonableness of a fee award is a question of fact and Equicap produced some evidence of its fees, we remand for a new trial on attorney's fees.

Conclusion

Having sustained Equicap's first issue, we reverse the trial court's judgment denying attorney's fees and remand for a new trial on attorney's fees.

SOURCE: FIRST COURT OF APPEALS IN HOUSTON - No. 01-12-01133-CV - 7/1/2014

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

Incumbent Jim Sharp looking for some weed-minded votes? 

CALLING ALL HILLBILLIES: RE-ELECT JIM SHARP -- AT YOUR PERIL 

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

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

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

Not only has Sharp seen fit to boost his stature by mounting his desk for the benefit of the readership of the local paper that might not otherwise appreciate his grandeur (see picture).

The Emperor hath clothes, but what about propriety
and judicial decorum? 

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

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

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

Justice Jim Sharp wants your vote despite having been reprimanded by the State Commission on Judicial Conduct 

CASES: FIRST COURT OF APPEALS: 01-11-00320-CV - 8/27/2013; 01-13-00986-CV and 01-12-01000-CV 8/26/2014 (All opinions by Justice Jim Sharp aka James Patrick Sharp, Jr.)

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

CREDITOR MUST PROVE AGREEMENT ON SPECIFIC TERMS OF GOVERNING EXTENSION OF CREDIT 

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

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

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

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

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

SOURCE: Court of Appeals of Texas, Thirteenth District,Corpus Christi, Edinburg. - No. 13-13-00551-C - 7/17/2014

ASSIGNEE OF CREDIT CARD ISSUER FAILED TO PROVE THE CONTRACT TERMS

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

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

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

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

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

CONCLUSION

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

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

Two types of mechanic's liens under Texas law

CONSTITUTIONAL AND STATUTORY MECHANICS LIEN 

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

Article XVI, Section 37 of the Texas Constitution provides,
Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.
TEX. CONST. art. XVI, § 37.

Trinity Drywall Sys., LLC v. Toka Gen. Contrs., Ltd., 416 S.W.3d 201, 209 (Tex. App.-El Paso 2013, pet. filed); see Gibson v. Bostick Roofing & Sheet Metal Co., 148 S.W.3d 482, 493 (Tex. App.-El Paso 2004, no pet.). The same privity of contract with the property owner is required to establish a statutory lien that encumbers the owner's property. See TEX. PROP. CODE ANN. § 53.021(a)(2) (West Supp. 2013) (A person has a statutory lien if "the person labors . . . or furnishes the labor or materials under or by virtue of a contract with the owner or the owner's agent. . . ."); TEX. PROP. CODE ANN. § 53.001(7) (defining "Original Contractor" as "a person contracting with an owner either directly or through the owner's agent").

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

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

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

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

PERFECTION OF LIEN

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

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

SOURCE: TEXARKANA COURT OF APPEALS - No. 06-14-00022-CV - DENCO CS CORPORATION v. BODY BAR - 9/26/2014

Proving arbitrability (arbitration agreement)

WHO HAS THE BURDEN TO PROVE EXISTENCE OF VALID ARB AGREEMENT?

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

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

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

STANDARD OF REVIEW ON APPEAL

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

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

Federal civil rights violations and statute of limitations

What is the limitations period for Section 1983 and 1985 claims? 

"Although there is no federal statute of limitations for civil rights violations alleged under [section] 1983, `courts construing [section] 1983 "borrow" the forum state's general personal injury limitations period.'" Bell v. Children's Protective Servs., 547 Fed. Appx. 453, 456 (5th Cir. 2013) (quoting Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998) (internal citations omitted)); Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994); see Prado v. City of Fredericksburg Police Dept., No. A-12-CA-123-LY, 2012 WL 566440, at *2 (W.D. Tex. Feb. 21, 2012), subsequently dism'd, 515 Fed. Appx. 262 (5th Cir. 2013), cert. denied, 134 S. Ct. 218 (U.S. 2013). "While state law determines the statute of limitations, federal law controls when a cause of action accrues, and it begins to run `from the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.'" Bell, 547 Fed. Appx. at 456 (quoting Helton v. Clements, 832 F.2d 332, 334-35 (5th Cir. 1987)). Texas's general personal injury limitations period is two years. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West, Westlaw through 2013 3d C.S.)).

Section 1985 of United States Code tile 42 provides a civil remedy to citizens who have been deprived of federally guaranteed rights by conspirators acting under "color of law." Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 371 (1979); see Taylor v. Anderson, No. A-13-CV-464-LY, 2014 WL 547032, at *3 (W.D. Tex. Feb. 10, 2014). As with civil rights claims brought under section 1983, to determine the applicable statute of limitations period for civil rights actions brought under section 1985, we look to the "general statute of limitations governing personal injuries in the forum state." Price v. City of San Antonio, Tex., 431 F.3d 890, 892 (5th Cir. 2005); Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1987). Under Texas law, civil rights actions brought under section 1985 "are deemed analogous to Texas tort actions" and are subject to a limitations period of two years. Helton, 832 F.2d at 334; see Anderson, 2014 WL 547032, at *4; see also TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a).

Section 1986 assesses liability against persons who have knowledge of conspiracies listed in section 1985 and neglect or refuse to prevent such conspiracies. See 42 U.S.C.A. § 1986. Section 1986 claims are subject to a one-year statute of limitations. Id.

SOURCE: Corpus Christi Court of Appeals. - No. 13-13-00378-CV - June 19, 2014

Prevailing party status for attorney fee award purposes

WHEN IS A PARTY A PREVAILING PARTY SO AS TO BE ENTITLED TO HAVE THE OPPONENT PAY HIS OR HER ATTORNEY'S FEES UNDER STATUTE OR CONTRACT? 

Under the American Rule, attorney's fees are recoverable only if authorized by statute or by contract. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). If authorized by contract, the parties may agree on the standard that will govern the attorney's fee award, even if that standard conflicts with Chapter 38 of the Texas Practice and Remedies Code. Intercontinental Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex. 2009). If the contract provides that attorney's fees will be awarded to the prevailing party, the trial court must determine which party is "prevailing." To prevail, a party "must obtain actual and meaningful relief, something that materially alters the parties' legal relationship." Id. at 652 (citing Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). More simply, a party prevails when it "prevails upon the court to award it something, either monetary or equitable." Id. at 655.

Did the Defendant "win" (prevail) when the Plaintiff filed a nonsuit? 

In Epps v. Fowler, 351 S.W.3d 862, 869 (Tex. 2011), the Texas Supreme Court construed an attorney's fee provision in a standard real estate contract to determine whether a defendant is a prevailing party when the plaintiff properly nonsuits his claims. Guided by the Fifth Circuit's decision in Dean v. Riser, 240 F.3d 505 (5th Cir. 2001), the Court held that when a plaintiff nonsuits the claims in his lawsuit with prejudice, the defendant is considered the prevailing party because the plaintiff is barred by res judicata from re-asserting the same claims. Epps, 351 S.W.3d at 869.

When the plaintiff nonsuits his claims without prejudice, however, the Court refused to adopt such a per se approach. Id. at 869. The Court noted that a defendant would generally not be a prevailing party when the plaintiff nonsuits without prejudice because the nonsuit "works no such change in the parties' legal relationship; typically, the plaintiff remains free to re-file the same claims seeking the same relief." Id. The Court also observed, however, that "it is logical to conclude that the parties intended to award attorney's fees to compensate the defendant when the plaintiff knowingly pursues a baseless action," id. at 869, and to "`discourage the litigation of frivolous, unreasonable, or groundless claims' when a `calculating plaintiff . . . voluntarily withdraws his complaint' to escape a disfavorable judicial determination on the merits." Id. (quoting Riser, 240 F.3d at 510) (citations omitted). Accordingly, the Court held a defendant may be a prevailing party only "if the trial court determines, on the defendant's motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits." Id. at 870.

The Epps Court provided some guidance to trial courts when determining whether a nonsuit was taken to avoid an unfavorable ruling on the merits. A trial court "should rely as far as possible on the existing records and affidavits, and resort to live testimony only in rare instances." Id. Looking to federal case law, the Court identified the following factors which could support such a determination, including: (1) the timing of a plaintiff's nonsuit when filed only after the defendant files a potentially dispositive motion such as a motion for summary judgment; (2) a plaintiff's unexcused failure to respond to requests for admission or other discovery that could support entry of an adverse judgment; (3) a plaintiff's failure to timely identify experts or other critical witnesses; and (4) the existence of other procedural obstacles, such as the plaintiff's inability to join necessary parties. Id. at 871.

Implied in each of these factors is that the plaintiff's nonsuit was necessary to avoid an unfavorable ruling because the plaintiff's claims were weak or without merit. Indeed, the Epps Court explained that the purpose of the rule was to discourage the plaintiff from pursuing weak claims that should be abandoned and not to penalize a plaintiff for nonsuiting when that is "precisely what should be done". Id. at 869 (citing Riser, 240 F.3d at 510). For instance, a plaintiff who nonsuits only after "discovery reveals previously unknown flaws in the plaintiff's claims" likely has not done so to avoid an unfavorable ruling on the merits. Rather, the decision "may well reflect a legitimate litigation strategy that `reveals nothing about the merits of a plaintiff's case [and thus] does not warrant a conclusion that a defendant in such a case has prevailed . . . .'" Id. at 868 (quoting Riser, 240 F.3d at 510). Accordingly, the Epps Court held that "evidence that the suit was not without merit when filed may indicate that the defendant has not prevailed and is therefore not entitled to attorney's fees." Id. at 871.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00777-CV - 4/23/2014

CONTRACTUAL OR STATUTORY BASIS FOR ATTORNEY FEE CLAIM REQUIRED 

"As a general rule, litigants in Texas are responsible for their own attorney's fees and expenses in litigation." Ashford Partners, Ltd. v. ECO Res., Inc., 401 S.W.3d 35, 41 (Tex. 2012). "Under Texas law, a court may award attorney's fees only when authorized by statute or by the parties' contract." Peterson Grp., Inc. v. PLTQ Lotus Grp., L.P., 417 S.W.3d 46, 87 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (citing MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009)).

SOURCE: HOUSTON COURT OF APPEALS - 01-13-00855-CV – 12/30/2014

Rule 11 Agreement must be in writing and filed with the court

WHAT REQUIREMENTS DOES A RULE ELEVEN AGREEMENT 
HAVE TO SATISFY TO BE ENFORCEABLE?

A Rule 11 agreement must be in writing and signed and filed with the court unless it is made in open court. See TEX.R.CIV.P. 11. The filing requirement creates the imprimatur of a court record. ExxonMobil Corporation v. Valence Operating Company, 174 S.W.3d 303, 309 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). A settlement agreement must comply with Rule 11 to be enforceable. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995); Broderick v. Kaye Bassman International Corp., 333 S.W.3d 895, 904-05 (Tex.App.-Dallas 2011, no pet.).

Rule Eleven Agreements are named after Rule 11 of the
Texas Rules of Civil Procedure 

While Rule 11 requires the writing to be filed in the court record, it does not say when it must be filed. Padilla, 907 S.W.2d at 461.

WHEN A PARTY CHANGES ITS MIND AFTER SIGNING RULE 11 - REVOCATION OF CONSENT

A party has the right to revoke its consent to a Rule 11 agreement at any time before the rendition of judgment. Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983). Withdrawal of consent must be effectively communicated to the trial court. Baylor College of Medicine v. Camberg, 247 S.W.3d 342, 346-47 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); First Heights Bank, FSB v. Marom, 934 S.W.2d 843, 845 (Tex.App.-Houston [14th Dist.] 1996, no writ). Ordinarily, when one party withdraws consent to a Rule 11 agreement, another party can still seek to enforce it as a contract through an amended pleading or a counterclaim. Ford Motor Company v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009); Padilla, 907 S.W.2d at 461; see Kanan v. Plantation Homeowner's Association Inc., 407 S.W.3d 320, 334 (Tex.App.-Corpus Christi 2013, no pet.h.)(Where consent to a Rule 11 agreement has been withdrawn, a court may enforce it through a separate breach of contract claim). Generally, these rules are applied in cases where the trial court rendered judgment pursuant to a Rule 11 agreement and one party is claiming that it withdrew its consent to the agreement.

ENFORCEMENT OF RULE 11 AGREEMENT

A trial court has a ministerial duty to enforce a valid Rule 11 agreement. Fortis Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex. 1996); In re Guardianship of White, 329 S.W.3d 591, 592 (Tex.App.-El Paso 2010, no pet.).

Rule 11 agreements are contracts relating to litigation and are subject to general rules of contract construction. Trudy's Texas Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 (Tex.App.-Austin 2010, no pet.). Our primary objective in construing a written contract is to ascertain and give effect to the intentions the parties have objectively manifested in the written instrument. Trudy's Texas Star, 307 S.W.3d at 914, citing Frost National Bank v. L & F Distributors, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005). Contract terms are given their plain, ordinary, and generally accepted meanings, and contracts are to be construed as a whole in an effort to harmonize and give effect to all provisions of the contract. Trudy's Texas Star, 307 S.W.3d at 914, citing Valence Operating Company v. Dorsett, 164 S.W.3d 656, 663 (Tex. 2005). If a contract can be given a certain or definite legal meaning or interpretation, it is not ambiguous and is construed as a matter of law. Trudy's Texas Star, 307 S.W.3d at 914, citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).

SOURCE: EL PASO COURT OF APPEALS -No. 08-13-00069-CV - 4/23/2014 

SIGNATURE REQUIRED - EITHER PARTY OR PARTY'S ATTORNEY, OR BOTH 

Rule 11 provides that "no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record." TEX. R. CIV. P. 11. A Rule 11 agreement may be signed by attorneys for the parties, or the parties themselves. See TEX. R. CIV. P. 11; see also Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 297 (Tex. App.-Austin 2000, pet. denied) (Rule 11 agreement may be signed by party or party's attorney). Thus, a settlement agreement satisfies the requirements of Rule 11 if it is (1) in writing, (2) signed by the parties or their attorneys, and (3) filed with the court or entered in open court prior to a party seeking enforcement. See TEX. R. CIV. P. 11. 

SOURCE: HOUSTON COURT OF APPEALS - No. 01-13-00176-CV -3/13/2014

Abuse of Process as a tort under Texas law

 

The tort of abuse of process

The elements of an abuse-of-process claim are (1) the defendant misused a regularly issued process—e.g., "the issuance of a citation or a writ"—for a purpose not lawfully warranted by that particular process, (2) the defendant had an ulterior motive or purpose for misusing the process, and (3) the plaintiff sustained damage from the irregularity. Detenbeck v. Koester, 886 S.W.2d 477, 480 (Tex. App.-Houston [1st Dist.] 1994, no writ); Tandy Corp. v. McGregor, 527 S.W.2d 246, 249 (Tex. App.-Texarkana 1975, writ ref'd n.r.e.); see also Pittsburgh SNF, LLC v. PharMerica E., Inc., 2:10-CV-363-JRG-RSP, 2012 WL 4509753, at *2 (E.D. Tex. July 19, 2012), report and recommendation adopted, No. 2:10-CV-363-JRG-RSP, 2012 WL 4508127 (E.D. Tex. Sept. 28, 2012) (listing examples of processes). The focus is on the use of the process once it is properly obtained, not on the motive for originally obtaining the process. See Detenbeck, 886 S.W.2d at 480-81; Tandy, 527 S.W.2d at 249 ("An action for abuse of process presupposes an originally valid and regular process, duly and properly issued."); cf. Bossin v. Towber, 894 S.W.2d 25, 33 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (explaining that malicious prosecution, by contrast, focuses on party's actions and malice in getting process issued); Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207-08 (Tex. 1996) (malicious prosecution case).

A suit for abuse of process must be based on an allegation that the other party misused process for a collateral purpose:

Some definite act or threat not authorized by the process . . . is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.

Blackstock v. Tatum, 396 S.W.2d 463, 468 (Tex. Civ. App.-Houston 1965, no writ); cf. Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex. App.-El Paso 1984, writ ref'd n.r.e.) (seeking exemplary damages as means to extort settlement not abuse of process because process was used for intended purpose to require answer to petition). The process must be used to "compel[] a party to do a collateral thing which he would not be compelled to do" otherwise. See Detenbeck, 886 S.W.2d at 480; Blanton, 681 S.W.2d at 878; Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 378-79 (Tex. App.-Texarkana 1989, no writ) (citing RESTATEMENT (SECOND) OF TORTS § 682, cmt. b (1977)).

SOURCE: HOUSTON COURT OF APPEALS - 01-13-00463-CV - 3/27/2014

Suit-within-suit requirement in legal malpractice action against attorney by client alleging he lost case as a result of attorney’s error or negligence

   
Legal malpractice claim against attorney: the case-within-the-case causation element 

To prevail on a legal malpractice claim, a plaintiff must show that “(1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff’s injuries, and (4) damages occurred.” Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004); see also Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). If a legal malpractice case arises from underlying litigation, a plaintiff must prove that, but for the attorney’s breach of his duty, the plaintiff would have prevailed in the underlying case. Greathouse, 982 S.W.2d at 172.

Courts often refer to this causation aspect of the plaintiff’s burden as the “suitwithin-a-suit” requirement. See id. at 173. In general, one proves causation in a legal malpractice suit by expert testimony. See Alexander, 146 S.W.3d at 119–20.

SOURCE: FIRST COURT OF APPEALS - 01-13-00099-CV - 4/1/2014  (Borrell v. Robert Scott Wiliams and his law office)

Because Borrell has not adduced evidence to support a finding that he would have prevailed in the underlying case save for his lawyer’s malpractice, we hold that he has failed to raise a fact issue regarding the “case within a case” causation element of his claim against Williams. See Merrell Dow Pharm., 953 S.W.2d at 711; TEX. R. CIV. P. 166(i). Accordingly, the trial court properly granted a no-evidence summary judgment. See Merrell Dow Pharm., 953 S.W.2d at 711; TEX. R. CIV. P. 166(i).

What must the plaintiff show in a suit to quiet title?

SUIT TO QUIET TITLE REQUIREMENTS

To prevail in a suit to quiet title, a plaintiff must prove: (1) he has an interest in a specific property; (2) title to the property is affected by a claim by the defendant; and (3) the claim, although facially valid, is invalid or unenforceable. See, e.g., Vernon v. Perrien, 390 S.W.3d 47, 61 (Tex. App.-El Paso 2012, pet. denied); see also U.S. Nat'l Bank Ass'n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *3 (Tex. App.-Houston [1st Dist.] Dec. 30, 2011, no pet.) (mem. op.). "[T]o contest a bank's foreclosure of a deed of trust, a party must, at the time of the foreclosure, either (1) be the mortgagor under the deed of trust or be in privity with the mortgagor, or (2) have an ownership interest in the property affected by the foreclosure." Ursic v. NBC Bank S. Tex., N.A., 827 S.W.2d 334, 336 (Tex. App.-Corpus Christi 1991, writ denied) (citing Goswami v. Metropolitan Sav., 751 S.W.2d 487, 489 (Tex. 1988)).

Caselaw snippet from a 2015 federal district court opinion/order 

STRENGTH OF PLAINTIFF'S TITLE VS WEAKNESS OF OPPONENT'S

And the plaintiff must recover on the strength of his own title, not on the weakness of his adversary's title. Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex. App.-Corpus Christi 2001, no pet.) (citing Alkas v. United Sav. Ass'n of Tex., Inc., 672 S.W.2d 852, 857 (Tex. App.-Corpus Christi 1984, writ ref'd n.r.e.)). He "must allege right, title or ownership in himself with sufficient certainty to enable the court to see that plaintiff has a right of ownership that will warrant judicial interference." Ellison v. Butler, 443 S.W.2d 886, 888-89 (Tex. Civ. App.-Corpus Christi 1969, no writ); see Wright v. Matthews, 26 S.W.3d 575, 578 (Tex. App.-Beaumont 2000, pet. denied). The plaintiff has the burden of supplying the proof necessary to establish his superior equity and right to relief. Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 387-88 (Tex. App.-Houston [1st Dist.], pet. denied) (op. on reh'g); Ellison, 443 S.W.2d at 888-89.

SOURCE: CORPUS CHRISTI COURT OF APPEALS - Nos. 13-12-00474-CV, 13-12-00753-CV Burnett v Bank of New

Breach of Note Claim - Which elements must the lender / holder / assignee prove?

    
ELEMENTS OF BREACH OF PROMISSORY NOTE
 
“To collect on a promissory note, a plaintiff must establish: (1) the existence of the note in question, (2) the defendant signed the note, (3) the plaintiff is the owner and holder of the note, and (4) a certain balance is due and owing on the note.” Cadle Co. v. Regency Homes, Inc., 21 S.W.3d 670, 674 (Tex. App.—Austin 2000, pet. denied); see Clark v. Dedina, 658 S.W.2d 293, 295 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d).
 
OWNERSHIP OF NOTE AND RIGHT-TO-SUE ISSUE IMPLICATES THE MERITS OF THE CLAIM [not a standing issue in the jurisdictional sense]
 
“[T]he question of whether a party is entitled to sue on a contract is sometimes informally referred to as an issue of standing.” Ashford Partners, Ltd. v. Eco Res., Inc., No. 01-09-00809-CV, 2010 WL 2991118, at *3 (Tex. App.—Houston [1st Dist.] July 29, 2010, pet. filed); see Yasuda Fire & Marine Ins. Co. of Am. v. Criaco, 225 S.W.3d 894, 898 (Tex. App.—Houston [14th Dist.] 2007, no pet.). “Nevertheless, . . . the issue does not affect the court’s jurisdiction, [and] it is not truly one of standing, but one on the merits of the contract claim itself.” Ashford Partners, 2010 WL 2991118, at *3 (citing Criaco, 225 S.W.3d at 898). Because ownership of the promissory note was an essential element of Wells Fargo’s right to collect on it, see Cadle, 21 S.W.3d at 674; Clark, 658 S.W.2d at 295, the [...] District Court’s determination that Wells Fargo did not own the promissory note is a determination on the merits, not one of jurisdiction. See Ashford Partners, 2010 WL 2991118, at *3; Criaco, 225 S.W.3d at 898.
 
SOURCE: Houston Court of Appeals for the First District -  01-10-00020-CV 5/12/12

The Equitable Remedy of Constructive Trust

What is Constructive Trust as a form of relief in a lawsuit?

CONSTRUCTIVE TRUST DEFINED

A constructive trust is a legal fiction, a creation of equity to prevent a wrongdoer from profiting from her wrongful acts. Procom Energy, L.L.A. v. Roach, 16 S.W.3d 377, 381 (Tex. App.-Tyler 2000, pet. denied). Such trusts are remedial in character and have the broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice. Id.; see also Hubbard v. Shankle, 138 S.W.3d 474, 485 (Tex. App.-Fort Worth 2004, pet. denied).

 

ESSENTIAL ELEMENTS THAT MUST BE SATISFIED TO STAKE CLAIM FOR IMPOSITION OF A CONSTRUCT TRUST

 

To obtain a constructive trust, the proponent must prove (1) the breach of a special trust, fiduciary relationship, or actual fraud, (2) unjust enrichment of the wrongdoer, and (3) tracing to an identifiable res. Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex. App.-Dallas 2006, no pet.); Hubbard, 138 S.W.3d at 485. "`A constructive trust is a relationship with respect to property, subjecting the person by whom the title to the property is held to an equitable duty to convey it to another, on the ground that [her] acquisition or retention of the property is wrongful and that [she] would be unjustly enriched if [she] were permitted to retain the property.'" Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736 (Tex. App.-San Antonio 2007, pet. denied) (quoting Talley v. Howsley, 176 S.W.2d 158, 160 (Tex. 1943)).

SOURCE: SAN ANTONIO COURT OF APPEALS – No. 06-13-00043-CV – 2/20/2014