Attorney’s Fee Award on Summary Judgment Reversed

Among other issues in this case, the Court reversed the trial court’s award of $15,000 in attorney’s fees on summary judgment.  The moving party submitted an affidavit that $53,714 was the reasonable amount of fees for the legal services rendered, but the opponent submitted an affidavit in which their expert stated that a reasonable fee would be no more than $15,000.  Because neither party offered uncontroverted evidence of an amount certain, the trial court improperly made a factual finding in awarding $15,000 in fees.

Myers v. HCB Real Holdings, LLC

Insurance Fraud Claim Upheld

In this insurance fraud case, the Court of Appeals rejected the insured argument that the insurer could not have relied on fraudulent representations as a matter of law because the insurer conducted its own investigation into the claim.   The Court found that the plaintiff could show reliance because the defendant had undertaken a “systematic campaign to hinder or hamper the investigation” by, among other things, “covering up the physical evidence that the roof was not damaged when or as [the defendant] claimed, by directing employees to lie to [the insurer’s] claims specialist, and by creating fraudulent invoices to support his claimed cost of repair.”

Fulgham v. Allied Prop. & Cas. Ins. Co.

If the (Latex) Glove Fits, You Must Indemnify

In this products liability case, a distributor of latex gloves sought statutory indemnity from the manufacturer of those gloves.  The Court of Appeals found that the manufacturer was liable under Section 82.002 of the Texas Civil Practice and Remedies Code to the distributor for litigation costs expended in defending two products liability lawsuits related to the gloves brought by healthcare workers because those expenses were “related to” the manufacturer’s gloves, even though other manufacturer’s gloves were at issue in the lawsuit.

United Med. Supply Co. v. Ansell Healthcare Prods., Inc.

Buyer Who Did Not Negotiate Price Was Not Taken to the Cleaners

In this complex fraud case involving the purchase of a dry cleaning business, the Court of Appeal upheld the trial court’s granting of a directed verdict in the defendant’s favor because, among other things, the plaintiff did not identify a fraudulent statement.  The plaintiff alleged that, in the course of purchasing a dry cleaning business, the defendant purportedly asserted that the price offered to the plaintiff was “fair, reasonable, and supported by a valid appraisal.”  However, the court found that there was no evidence that the defendant made any such statement.  Indeed, the plaintiff testified that she did not negotiate the price of the business and was simply told that the price of $1.6 million was a take-it-or-leave-it number.

Kwik Indus., Inc. v. Rock Prairie Holdings, Ltd.

Statute of Limitations Not Tolled in Negligent Appraisal Lawsuit

In this action for negligent appraisal, the Court of Appeals found that the two-year statute of limitations for negligence actions had not been tolled by the discovery rule because the homebuyer knew, before closing, of information indicating the value of the property was much less than what he had offered to pay for it.  Specifically, the appraiser had indicated that the house was worth $295,000 (or $10,000 less than what the plaintiff had offered to pay for it).  More importantly, showed that the property was $100,000 less than what the buyer had offered.  Despite these two indications that should cause a reasonable person to investigate further, the plaintiff did not bring suit until three years later, when he had hired another appraiser to provide an estimate of the property’s value and found out that the property was, in fact, worth much less than he had paid.

Bruning v. Hollowell


Business Risk Exclusion Precludes Water Damage Coverage

In this insurance coverage case, the Court of Appeals construed the “business risk exclusion” to preclude coverage for water damage to a townhome complex that the insured was building.  A business risk exclusion is a typical provision in commercial general liability insurance policies that is used to exclude coverage for “certain risks relating to the repair or replacement of the insured’s faulty work or products or defects in the insured’s work or product itself.”  The reason behind including such exclusion is simple:  the insured should be able to control the quality of the goods and services it supplies.  In this case, the Court found that the exclusion precluded coverage because the evidence established that property damage at issue occurred during the construction of the townhome complex.

Dallas Nat’l Ins. Co. v. Calitex Corp.

You’ve Had Enough Time for Discovery If You Announce Ready for Trial

In this case involving a plaintiff’s purchase of a condominium allegedly containing “harmful indoor mold,” the plaintiff insisted that the trial court erred by (among other things) granting the defendants’ no-evidence motions for summary judgment without permitting adequate time for discovery.  The Court of Appeals held that adequate time for discovery had, indeed, passed since the plaintiff had announced ready for trial several times prior to the defendants’ motions were filed In addition, the plaintiff had previously agreed not to seek additional discovery and did not explain what additional discovery was necessary.  Thus, the Court concluded that the plaintiff had failed to show that the trial court abused its discretion when it determined that there had been adequate time for discovery.

Manautou v. Ebby Haiilday Real Estate, Inc.

Specific References to Evidentiary Record Required on No Evidence MSJ Response

In this fraud and aiding and abetting breach of fiduciary duty case, the court addressed  the defendant’s no evidence motion for summary judgment.  The court held that the plaintiff had not properly responded to the no evidence motion because it merely stated the elements of the aiding and abetting claim in its response brief, without specifically “pointing out” any evidence to support the contention that the defendant “knowingly assisted” in the breach of fiduciary duty.  Although the plaintiff attached a “large amount of evidence” to its response, the court noted that the plaintiff’s response required specific references to the evidence that would support each element of the claim.

MaximusAlliance Partners, LLC v. Faber


Note Not Negotiable

In this suit to collect on a promissory note, the Court of Appeals found that the six-year statute of limitations to sue on a “negotiable instrument” did not apply because the note at issue was not, in fact, negotiable.  According to the Court, because the note represented a revolving line-of-credit, permitting the borrower to prepay all or any portion of the amount due without incurring any prepayment penalty, the note did not contain an unconditional promise to pay a sum certain for a fixed amount and was therefore non-negotiable.  Thus, the Court found that the six-year statute of limitations for negotiable instruments did not apply and affirmed the trial court’s decision.

Bank of Am., N.A. v. Alta Logistics, Inc.


Negligent Hiring Theory Requires Physical Injury

In this negligent hiring case, the plaintiff bought a truck that she later discovered had been stolen.  The Court of Appeals upheld the trial courts grant of summary judgment in favor of defendants because the economic loss rule barred recovery of economic damages based on a claim of negligent hiring.  Instead, such a claim requires proof of physical injury from the negligent hiring, which the plaintiff could not establish.

Clark v. PFPP L.P.