Mandamus: Try, Try Again.

th8Yes, it arose in the unusuth8al procedural posture of a Rule 736 home equity loan foreclosure, and no, it is not the recommended practice. That said, the relators in the case of In re: Priester successfully convinced the Fifth Court to reverse direction and, on rehearing, grant a writ of mandamus in their favor “[i]n light of the more developed record and clarified arguments . . . .” No. 05-16-00965-CV (Nov. 21, 2016) (mem. op.)

When is enrichment unjust?

enrichment_logoWhile affirming a relatively straightforward judgment in a home loan dispute, the Fifth Court observed: “The unjust enrichment doctrine applies principles of restitution to disputes where there is no actual contract and is based on the equitable principle that one who receives benefits which would be unjust for him to retain ought to make restitution.” Ihde v. First Horizon Home Loans, No. 05-15-01084-CV (Nov. 28, 2016) (mem. op.) (emphasis added) A counterpoint in this practical but rarely-visited area of remedies law appears in City of Harker Heights v. Sun Meadows Land Ltd., 830 S.W.2d 313, 317 (Tex. App.–Austin 1992, no writ), which observes: “An action for money had and received may be founded upon an express agreement or one implied in fact, but it is not dependent upon either.” (emphasis added).

An interest-ing case . . .

interesting-memePlaintiffs won a lawsuit against their landlord about the handling of their security deposit. The Fifth Court affirmed, reversing only as to prejudgment interest. While the parties’ lease said that “[a]ny person who is a prevailing party in any legal proceeding brought under or related to the transaction described in this lease is entitled to recover prejudgment interest,” the plaintiffs recovered based on section 92.109(a) of the Property Code, which allows recovery of statutory penalties in the event of a landlord’s bad faith retention of the security deposit. Because “[p]rejudgment interest does not apply to statutory penalties imposed for wrongdoing,” and the underlying statute did not provide for recovery of prejudgment interest, the interest award could not stand. Frazin v. Sauty, No. 05-15-00879-CV (Nov. 6, 2016) (mem. op.)

The first rule of confidential settlements is: we don’t talk about confidential settlements


GDL Masonry Supply, Inc. v Lopez and Rapid Masonry Supply, Inc. (November 2, 2016) is a handy opinion to hand your clients after they sign a settlement agreement requiring confidentiality.  It is a risk too many clients do not take seriously enough (see, e.g., “Girl costs father $80,000 with ‘SUCK IT’ Facebook post“).

In GDL, the Dallas Court of Appeals affirmed summary judgment in favor of Rapid, the plaintiff, who refused to pay under a settlement agreement because GDL failed to satisfy the confidentiality requirements of the agreement.  The facts were too common.  GDL brought suit against Rapid, which settled by way of an agreement that required confidentiality and Rapid to make a series of $10,000 payments totaling $60,000 to GDL.  GDL then told a third party that Rapid had stolen from it, that GDL won the lawsuit, and that Rapid owed GDL money as a result. When Rapid discovered what GDL said about their litigation, it sued asserting that it had no obligation to make the remaining settlement payments and also seeking attorney’s fees for breach of the confidentiality language.  The trial court granted summary judgment to Rapid, holding that the confidentiality provision was breached, that Rapid had no obligation to make further payments, and awarding attorney’s fees.

GDL’s argument on appeal did not deny the disclosure of the settlement, but instead challenged the materiality of the confidentiality provision.  The Dallas Court of Appeals made swift work in rejecting this argument, noting that the settlement agreement itself stated that the confidentiality paragraph “is a material provision of this Agreement and that any breach of the terms and conditions of [the paragraph] shall be a material breach of this Agreement.”  The Court held that the contract’s language was binding.

GDL Masonry Supply, Inc. v Lopez and Rapid Masonry Supply, Inc.

Appealed too soon –

toosoonA classic example of a “too soon” appeal appears in Bolden v. Fidelity Nat’l Title: “In the original petition, appellee sought both damages for breach of warranty of title and attorney’s fees. The trial court signed a default judgment awarding damages for TexasBarToday_TopTen_Badge_VectorGraphicbreach of warranty of title. The default judgment is silent as to appellee’s claim for attorney’s fees. Because the claim for attorney’s fees remains pending, the judgment is not final.” No. 05-16-00398-CV (Oct. 14, 2016) (mem. op.)

No findings, no mandamus

th8The relator in the case of In re: Schindler Elevator complained that the trial court “refused to issue findings of fact and conclusions of law explaining the court’s reasoning for denying relator’s motion for leave to designate responsible third parties.” The Fifth Court found no abuse of discretion, noting that the RTP proceeding was not a “trial” within the meaning of the applicable rule, and that the relator had a remedy by direct appeal. No. 05-16-01172-CV (Oct. 10, 2016) (mem. op.)

Invoices and contracts – four years – oh my.

6501602_origIf ever a case illustrated a trap for the unwary, it is IDA Engineering v. PBK Architects, in which the plaintiff sued exactly four years after the termination of its contractual relationship. Unfortunately, the invoices upon which its damage claim relied were issued before the contract termination, and the contracts contained this language about payment: “Invoices will be issued monthly, per TexasBarToday_TopTen_Badge_VectorGraphicpercentage of completion or per phase and will be due upon issuance date.” (emphasis added). Accordingly, the claim was barred by limitations.  No. 05-15-01418-CV (Oct. 4, 2016) (mem. op.)

No jurisdiction, no mandamus

th8Axiomatic, but like many other basic mandamus concepts, worth remembering:

  1. If the trial court does not have jurisdiction to rule on relator’s motion, the motion cannot be categorized as “properly filed” for purposes of a potential writ of mandamus to compel a ruling;
  2. And if the the trial court does not have jurisdiction to rule on the motion, “it logically follows that it does not have a ministerial duty to rule on the motion.”

In re: Guzman, No. 05-16-01109-CV (Sept. 29, 2016) (mem. op.)