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

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.

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.

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.

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, Zillow.com 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

 

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.

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.

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

 

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.

 

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.

In this bill of review concerning an eviction for unpaid rent, the Court of Appeals found, among other things, that the trial court did not abuse its discretion by not holding a hearing on a motion for new trial.  The Court explained that “a trial court is required to conduct a hearing on a motion for new trial only when the motion presents a question of fact upon which evidence must be heard.”

Carson v. El Capitan Apartments

In this insurance coverage lawsuit, the Court of Appeals held that the insurer had no duty to defend the appellant in the lawsuit brought against them for conversion under  when the appellant sold their home’s former (foreclosed-upon) owner’s personal property at a garage sale.  According to the Court, the removal and purported sale of the personal property was “intentional and deliberate,” and thus failed to qualify as an “occurrence” covered by the policy.

Drew v. Texas Farm Bureau Mut. Ins. Co.

In this memorandum opinion on an attempt to satisfy a judgment, the Court of Appeals held that the judgment creditor could obtain the income paid to appellant, an attorney, by his law firm pursuant to a turnover order issued by the trial court.  Although the appellant argued that this income was “exempt” under the relevant statute because he essentially acted as an independent contractor, the Court rejected this argument given that the appellant failed to offer any evidence concerning right of control.

Karlseng v. Wells Fargo, N.A.

In this car accident case, the defendant moved for summary judgment on statute of limitations grounds.  While the plaintiff claimed that a typo in the original petition precluded the process server from locating the defendant before the limitations period expired, the Court of Appeals found that the plaintiff had no explanation for the delay in serving the defendant because the defendant’s correct address, telephone number, driver’s license number, and license plane number were available in the police report describing the accident that is the basis for the lawsuit.

Quezada v. Fulton

In this breach of contract claim, the defendant answered the petition with a general denial, but then failed to show up at trial.  During the subsequent “prove-up” hearing, the plaintiff offered as its only evidence the contract between the parties.  Based on this evidence alone, the trial court entered judgment and awarded the plaintiff $55,000 in damages.  On appeal, the Court held that the award of damages was improper because the plaintiff did not offer proof of each element of her claim, including damages.

Correa v. Salas

In this memorandum opinion, the Court of Appeals affirmed the trial court’s dismissal of the plaintiff’s breach of contract claim.  According to the Court, the plaintiff failed to present evidence that the defendant breached the contract at issue and thus affirmed the trial court’s decision to grant defendant’s no evidence motion for summary judgment.

Alonso v. Alliance AFT

In this restricted appeal, the plaintiff carried out service on the defendant, a bank with a registered agent in New York, solely though service of process upon the Texas Secretary of State.  On appeal, the Court agreed with the defendant that such service was improper because the plaintiff failed to strictly comply with CPRC 17.028, which permits service upon a financial institution by service to “the president or a branch manager at any office located in the state.”

Bank of N.Y. Mellon v. Redbud 115 Land Tr.

In this breach of contract suit, the parties disputed the meaning of “sale” in a real estate brokerage contract.  The City of Dallas purchased a portion of the Premises for a public drainage project, but it was disputed whether the City would have taken steps to exercise its power of eminent domain if it had not purchased the Premises.  The Court concluded that the language of the contract was clear in its definition of “Sale,” and that the City did not compel the transfer of the land.  Thus, the broker was entitled to the fee under the contract.

TFO Realty, LLC v. Smith

In this malicious prosecution case, the Court of Appeals reversed the jury’s award of actual and punitive damages because the evidence introduced at trial was legally insufficient to support the jury’s verdict.  Among other things, the Court found that the defendant did not “initiate the prosecution” by bringing a formal charge to initiate the prosecution.  Instead, the defendant simply provided a “Voluntary Statement” that the law enforcement officer used to formally charge the plaintiff.  Thus, the Court found that the plaintiff could not establish the legal requirement that the defendant “initiated or procured” the underlying criminal prosecution.

Lermon v. Minyard Food Stores, Inc.

In this breach of contract case decided under New York law, the Court of Appeals found (among many other things) that the fact that the contract required the parties to close the underlying distressed debt trade “as soon as practicable” did not mean that “time was of the essence.”  Thus, the Court held that the defendants failure to close the trade within 60 days did not constitute a breach.

Highland Credit Opportunities CDO, L.P. v. UBS AG

In this restricted appeal of a default judgment, the Court found (among other things) insufficient evidence to support damages on a suit for breach of contract and on a sworn account.  The Court based its holding on the fact that there was contradictory information among the petition, the documents attached to the petition, and the business records filed.  In particular, the Court noted that there was no evidence of any amount owed by the defendant to the plaintiff.

Diaz v. Multi Service Tech. Solutions Corp.

In this breach of contract action, the Court of Appeals held that Texas’ four-year statute of limitations barred the defendant’s counterclaim.  The breach of contract counterclaim was based on the plaintiff’s failure to provide account documents within 10 days of the date of the agreement, which was June 28, 2007.  Because the defendant made no legal argument to toll the date of the agreement, the Court held that all of the defendant’s claims under the agreement at issue were barred as a matter of law.

Santander Consumer USA, Inc. v. Palisades Collection, LLC

Victor Enterprise, Inc. filed and won a forcible detainer action to collect rent from his tenant, Clifford Holland, for August 2009.  While that action was appealed by Holland, VEI filed another forcible detainer to collect rent for December 2009, which he also won, but the county court signed an order suspending execution of the writ of possession.  VEI then filed a third forcible detainer action to collect rent for January 2010, which he also won, but the county court enjoined VEI from “initiating, prosecuting, or executing any litigation, action or writ that seeks possession of or eviction of the defendant form his residence.”   In the meantime, Holland sought (and obtained) a temporary restraining order in county court requiring VEI to cease prosecuting actions against Holland and to prohibit any sheriff or constable from executing any writ against Holland.  On appeal, the Court granted VEI’s request for mandamus, noting that “the county court lacks jurisdiction to interfere with the enforcement of the justice court’s unappealed judgments.” It also found that, given the history of this case, “the writ will issue instanter.”

In re Victor Enters., Inc.

Three roommates signed a residential lease for a house in Plano, but a month into the lease one of the parties moved out and stopped paying rent.  Her two former roommates sued her for breach of contract.  The Court of Appeals upheld the trial court’s determination that the plaintiffs had established an implied contract to lease the house jointly based on the acts and conduct of the three roommates.

Pettigrew v. Reeves

 

In this breach of contract claim, the trial court granted summary judgment on the grounds that the plaintiff had not satisfied the conditions precedent contained in the agreement.  The employment agreement at issue was to hire the plaintiff as President and CEO of the Dallas Housing Authority, but the agreement contained a condition that provided the agreement remained “nonbinding unless signed by the Chairman of the Board of Commissioners of the [DHA] and approved by the Board of Commissioners.”  The Court of Appeals rejected the plaintiff’s argument that a factual issue precluded summary judgment because the Board of Commissions told him, prior to executing the agreement, that they had already approved it.  The Court of Appeals, however, rejected this argument, and affirmed the trial court’s holding because “if the conditions stated in the letter agreement were satisfied before the agreement was presented to [the plaintiff], there would be no need to include such language in the agreement.”

Killingsworth v. Housing Authority

In this petition for for writ of mandamus, the Court of Appeals denied the relator’s petition to vacate the trial court’s order denying leave to file a fourth amended answer and counterclaim.  The Court found that although amendments of a “formal, procedural nature” typically will not result in surprise or prejudice, in this instance the proposed amendment “would have reshaped the case in a way that would require the Court to reopen discovery.”

In re City of Dallas

In this breach of contract case, the majority opinion found that the appelle’s no-evidence summary judgment motion was legally insufficient to support the trial court’s summary judgment because it “fails to challenge or even mention a single element of any of [the] claims as to which there is no evidence.”

The dissent, however, disagreed, noting that “a party may challenge a specific element in a breach-of-contract case by filing a no-evidence motion asserting there is no evidence of breach of contract.”  In the dissent’s view, appelle’s motion makes this assertion.

Coleman v. Prospere

Coleman v. Prospere (dissent)

In this memorandum opinion, the Court directed the trial court to vacate its order disqualifying defense counsel.  Although the plaintiff argued that the counsel for defendant should be disqualified because he was a potential witness, the Court of Appeals found no evidence establishing what was “essential” about his testimony or how the plaintiff would be prejudice if he were not permitted to testify.

In re VSDH Vaquero Venture, Ltd.

In this decision, the Court of Appeals found that the plaintiffs’ claims were barred by the doctrine of res judicata because those claims should have been litigated in a prior lawsuit brought by one of the plaintiff against the same defendants.  Although one of the plaintiffs in the second suit was not a party to the initial litigation, the Court nevertheless applied res judicata to both plaintiffs because the “new” plaintiff was a one person professional association populated entirely by the previous plaintiff.  Thus, the parties were in privity with one another, and res judicata barred the claim.

Hill v. Tx-An Anesthesia Mgmt. P.A.

In this memorandum opinion, the court found insufficient the sheriff’s affidavit of service, because the affidavit merely stated that the recipient “was served.”  According to the Court, “[b]ecause the return does not state the manner of service, it does not strictly comply with [TRCP] 107, which requires the officer’s return state ‘the manner of delivery of service.'”

U.S. Bank v. Pinkerton Consulting & Investigations

In this fraud case, the Court of Appeals rejected the plaintiff’s argument that its fraud claim should survive summary judgment because the defendant failed to disclose information that it “should have known”  According to the Court, a fraud claim based on a failure to disclose theory requires that the defendant actually knew the information because “[t]here is . . . no duty if a defendant fails to disclose material facts it ‘should have known.'”

Dontos v. Banco Popular

In this legal malpractice case, the Court rejected the plaintiff’s expert opinion as based on invalid assumptions.  The expert opined that the value of sale of an interest in certain oil and gas wells would have been $960,000 greater in April 2008, when the interest should have sold but for a law firm’s malpractice.  Among other faulty assumptions, the Court noted that the expert wrongly assumed that (1) the later sale, in September 2008, was a simple asset sale, when, in fact, it involved a partial settlement of a lawsuit; (2) the projections of actual drilling costs, as opposed to actual results, were the proper measure of costs; and (3) that wells would have been drilled at a certain specified rate.

Thompson & Knight v. Patriot Exploration LLC

In this lawsuit against guarantors on promissory notes, the Court addressed, among other issues, the standard for adequate summary judgment affidavits.  The appellants argued that the two affidavits supporting appellee’s motion for summary judgment demonstrated that the witness lacked personal knowledge.  The majority opinion, however, found that the affidavits properly reflected the witness’ personal knowledge because the witness asserted that (1) he had personal knowledge of the matters in the affidavit; (2) his job responsibilities included “servicing and collection of indebtedness” owed by appellant; (3) he was the custodian of records familiar with appellee way of maintaining its books and records (which he had reviewed); and (4) appellee’s business records support the statements in the affidavit.

Bagwell v. Ridge at Alta Vista Investments I, LLC

The dissenting opinion pointed out that these affidavits were defective because appellee was not the original lender on the loans, and nothing in the affidavits demonstrated that he had any personal knowledge of the events occurring before the loans were acquired in January 2010.

Bagwell v. Ridge at Alta Vista Investments I, LLC (dissent)

 

In this interlocutory appeal of a motion to compel arbitration, the Court held that the broad arbitration provision at issue (“[a]ny dispute, claim or controversy arising out of or relating to [the agreement] or breach, termination, enforcement, interpretation or validity thereof” must be arbitrated) required the trial court to grant the defendants’ motion to compel arbitration.  Moreover, because the provision itself stated that “the determination of the scope or applicability of this Agreement to arbitrate” must be determined by an arbitrator, the Court found that the responsibility for establishing whether the provision even applies rests with the arbitration proceeding.

Seven Hills Commercial LLC v. Mirabal Custom Homes, Inc.

In this case, the appellee was sued for, among other things, aiding and abetting an alleged misappropriation of trade secrets.  The Court of Appeals held that, even if the appellant could establish the underlying tort of trade secret misappropriation, the claim would still fail.  According to the Court, a cause of action for aiding and abetting exists for a “specific and narrow purpose:  to deter antisocial or dangerous behavior.”  Examples of this type of behavior included “drag racing or similar conduct posing a high degree of risk to others.”  The Court found that misappropriation of trade secrets does not qualify as sufficiently antisocial or “deviant” to support an aiding and abetting cause of action.

West Fork Advisors v. Sungard Consulting

In this breach of lease case, the appellant argued that the appellee’s damages expert opinion was unreliable and erroneous because it relied on a hypothetical market rent study.  During trial, appellant objected to the relevance of the of the market rent study, but the trial court did not rule on the objection.  The expert then testified in detail about each component of her calculation without objection from appellant about her methodology.  The Court of Appeals, however, found that because the appellant had “failed to object to the expert’s testimony on the basis of improper methodology before or during trial and obtain a ruling form the court,” appellant waived any error.

Transcontinental Realty v. Wicks

 

 

 

 

In this garnishment action, the Court of Appeals permitted the appellant, as lessor, to recover past due rent under a commercial lease against a sub-lessee.  Among many other issues, the Court rejected the appellee’s argument that the sub-lease was invalid because it was obtained without the landlord’s consent, as required by the lease.  On this point, the court held that “this limitation is for the benefit of the landlord” and that sub-lessee “cannot take advantage of their own wrongs.”

Tenet Health Sys. Hosps. Dallas Inc. v. N. Tex. Hosp. Physicians Gp. P.A.

 

The appellant (brother to appellee) claimed the probate court lacked personal jurisdiction over him.  Appellee asserted that the appellant’s individual assistance to the parties’ quadriplegic mother in a probate matter in 2008 (the appellant’s only contact with Texas) required the court to exercise jurisdiction over her brother.  The Court held, however, that at the time he assisted his mother in the prior lawsuit, the appellant was not serving as trustee of the Trust at issue in the present lawsuit, and thus his contact with the state was in a separate, individual capacity.

Stauffer v. Nicholson

 

In this mortgage foreclosure-related lawsuit, the appellants challenged the trial court’s decision to grant summary judgment on a no-evidence basis.  The Court of Appeals, however, affirmed the trial court’s decision because the appellees did not present any evidence to overcome each of the appellees’ no-evidence grounds.  The Court rejected the appellant’s argument “[b]ecause they have not challenged on appeal all possible grounds upon which summary judgment could have been granted.”

Puricelli v. Saxon Mortgage Services`

In this challenge to an arbitration award, the Court of Appeals rejected the losing party’s attempt to vacate the arbitration award on grounds of “manifest disregard” for the law or “gross mistake” by the arbitrators because the appellant failed to submit a record of the arbitration proceedings.  According to the Court, “without a record of the arbitration proceedings showing the evidence or the law that was presented to the arbitrators, we cannot conclude the arbitrators manifestly disregarded the law or committed a gross mistake.”

Beech Street Corp. v. Baylor Health Care Sys.

This breach of contract case addressed a loan guarantor’s contractual duty to defend the lender in a fraud lawsuit.  The Court was asked to interpret a duty to defend provision that conditioned the duty on the “occurrence” of fraud, when the pending lawsuit at issue had to this point only raised “allegations” of fraud.  According to the Court, the duty to defend is a contractual duty depending on the precise terms of the contract.  Thus, the Court refused to rewrite the section at issue to replace the word “occurrence” with “allegation.”  Because the pending fraud claim only involved fraud “allegations” at this point, the defendant owed no duty to defend.

Myers v. Hall Columbus Lender LLC

In this age discrimination employment claim, the Court of Appeals reversed the trial court’s grant of summary judgment for the defendant.  According to the Court, there was conflicting evidence about the defendant’s reason for firing the plaintiff.  Although the defendant claimed that the downturn in the economy forced them to fire the plaintiff, the plaintiff argued that, at the time of his termination, he was working on projects that would have required another year to complete.  This conflict created a sufficient fact issue for the plaintiff to survive summary judgment.

Stillwell v. Halff Assocs., Inc.

Addressing a motion to compel arbitration, the Court of Appeals found that a provision in the defendant’s employee handbook did not require arbitration because that provision stated, in part, that “[b]inding arbitration requires the employee and [defendant] to commit to resolution of all eligible issues and be bound by the decision of the arbitrator.”  According to the Court, this language established that the parties had not already agreed to arbitrate, but rather that they must still make the decision if a dispute arises in the future.

Texas Health Resources v. Kruse

In this restricted appeal, the defendant argued that the trial court erred in entering a default judgment against it in the absence of evidence establishing mental anguish damages.  Because the trial court received testimony of the plaintiffs physical injuries form a slip and fall, and no testimony on mental anguish, and because there was no way to distinguish between the award of mental anguish damages and those awarded for past physical pain, the judge’s award of $20,000 constitutes error on the face of the record.

Center Operating Co. v. Duncan

In this breach of settlement action, the plaintiff won almost $10,000 in damages, but the trial court awarded him zero dollars in attorneys’ fees.  On appeal, the Court found that attorneys’ fees were proper under section 38.001(8), so the trial court had no discretion to deny them.  The Court noted that one of the factors in determining the reasonableness of attorneys’ fees is the amount of damages awarded, and remanded the determination to the trial court.

Garcia v. Solorio

In this breach of contract case, the Court of Appeals found that the defendant had not breached the stock purchase contract because the parties’ agreement required the plaintiff to tender his stock into escrow account before the defendant’s obligation to purchase the stock accrued.  Since the plaintiff never placed his stock into escrow (a condition precedent according to the Court), the defendant’s obligation to perform under the contract was excused.

Sadeghi v. Gang

Alan Ritchey Materials Co., a construction materials supplier, contracted to supply  materials to make concrete for a subdivision development.  Ritchey provided the general contractor with over $100,000 worth of sand, but was never paid, so it filed a materialman’s lien on the property.  The property owner argued that the lien was not proper because more sand was delivered to the project than was required to complete the job and, as a result, under the statute, Ritchey could not prove that it “furnished goods . . . for a specific job.”  However, the Court found, among other things, that the evidence in this case established that the sand was delivered to the general contractor in connection with project and, given the liberal interpretation courts have given to the lien statute, the fact that some materials may not have been used is irrelevant to the analysis.

Addison Urban Development Partners, LLC v. Alan Ritchey Materials Co.

 

The defaulting defendant in this case claimed that the plaintiff’s service through the Secretary of State was defective because the plaintiff did not establish reasonable diligence in its failed efforts to effect service via registered mail and personal delivery.  The Court of Appeals found that the plaintiff exercised reasonable diligence in both of its prior attempts to carry out service.  Regarding registered mail, the record established that the plaintiff paid the clerk and arranged to have the defendants served by certified mail, return receipt requested at the defendant’s registered address.  When the mailing was returned with the notation that it was undeliverable and could not be forwarded, the plaintiff had sufficiently exercised reasonable diligence.  Regarding personal service, the plaintiff sent a process server to defendant’s registered address, but neither plaintiff’s business nor its registered agent were there.  According to the Court, this was enough since “[t]he statute does not require efforts to find the registered agent at any place other than at the entity’s registered office.”

Katy Venture Ltd. v. Cremona Bistro Corp.

In 2005, Brad Keiller, an investor in adult entertainment clubs all over the world, came to Dallas to explore the purchase of Texas Show Girls, a club owned and operated by Curtis Wise.  Following negotiations, the parties signed a share purchase agreement in which Wise warranted that Keiller could rely on Wise’s representations that, among other things: (1) the club’s lease was in good standing and not in default; and (2) the club had only one pending investigation by the Texas Alcoholic Beverage Commission.  As it turned out, neither of these representations were true.  The club’s lease had been terminated and the purported single pending TABC investigation was actually 12 separate charges (for, among other things, underage drinking, prostitution, lewd conduct, and drug use) consolidated into a single action that was going to result in the termination of the club’s liquor license.  On appeal, the Court upheld the jury’s $704,480.45 fraud verdict based on these facts, finding that Keiller had presented sufficient evidence to establish his fraud claim.

Wise v. SR Dallas, LLC

In this contract dispute, the Court of Appeals applied the standard set forth by the Texas Supreme Court in Hathaway v. General Mills, Inc., 711 S.W.2d 227 (Tex. 1986), to the modification of an at will sales representative agreement.  In Hathaway, the Supreme Court stated that “to prove a modification of an at will employment contract, the party asserting the modification must prove two things: (1) notice of the change; and (2) acceptance of the change.”  The notice must be unequivocal and, if so, continued employment constitutes acceptance of the change.  The Court found in this case that, although the plaintiff “unequivocally denied” agreeing to or negotiating any modifications to his commission, the defendants letter outlining the modification contained no equivocation and there was no dispute that the plaintiff continued working.

Hampden Corp. v. Remark, Inc.

In this class action concerning certain practices of a life insurance settlement company, the Court of Appeals upheld a decision to certify the case as a class action.  The defendants challenged the decision on several grounds, including that the trial court purportedly failed to consider “the res judicata risks” of certifying a class action on absent class members.  The Court, however, rejected this argument, pointing to facts in the record showing that the trial court considered the other pending lawsuits.  The Court also pointed to the certification order which specifically limits the class to the narrow focus of the lawsuit and which directed that class members should be given notice of their right to opt out of the class.

Life Partners, Inc. v. McDermott

The Court of Appeals affirmed the trial court’s grant of a no evidence motion for summary judgment in which the defendant, a lumber company, was alleged to have breached its contract to build a swimming pool for plaintiff.  The Court found that, although there were cracks alleged in the built pool, nothing in the plaintiff’s affidavit identifies a contractual obligation that the defendant failed to perform.

Lopez v. Metro Lumber Indus.

Addressing the trial court’s denial of the defendant’s motion to compel arbitration, the Court of Appeals held the following language insufficient to require arbitration of this dispute over a trust agreement: “We request that any questions or disputes that may arise during the administration of this trust be resolved by mediation and if necessary, arbitration.”  According to the Court, the trust agreement elsewhere established that the trust would be subject to the jurisdiction of a court if interested parties, such as the appellees, filed a legal proceeding.  Thus, the Court establish that the “request” for arbitration was “precatory, not mandatory.”

Dentist, Stephen Chu, ordered dental supplies form the plaintiff, accepted the shipment, but refused to pay the balance.  The plaintiff sued Dr. Chu individually and his dental practice, Stephen Chu, DDS, MSD, PA d/b/a Smile Again Orthodontics” for breach of contract and account stated.  Dr. Chu, however, declared bankruptcy and was subsequently nonsuited.  The Court found that a series of invoices addressed to “Stephen Chu DDS” could not establish, on summary judgment, that ” Stephen Chu, DDS, MSD, PA d/b/a Smile Again Orthodontics” was a party to the contract.

Chu v. Schein

In this breach of warranty case, the Court upheld the trial court’s summary judgment dismissal because the contract at issue did not contain an express warranty.  Although the plaintiff argued that the contract listed the services the defendant was to provide, the Court found that “[t]he mere identification of what services are to be performed is not, without more, an express warrant that those services are to be performed to any particular standard or quality.”

Staton Holdings v. Tatum LLC

This negligence lawsuit arises from a prior medical malpractice lawsuit in which Darwin Flores sued his doctor for causing him to suffer monocular vision.  This doctor hired appellees, an investigative firm, to surreptitiously record Flores to show the true extent of his injury.  On the videotape, the defendants mistakenly included video of a man rollerblading (who they determined was not Flores), and informed the doctor’s counsel that it was in fact not the plaintiff.  Flores lost his malpractice trial (though it’s unclear whether the rollerblading videotape was played or had anything to do with the loss).  Nevertheless, he followed up by suing the investigators for creating a “misleading perception” of him.  He is seeking $1 billion dollars in damages.

On appeal, the Court rejected Flores’ argument that a “private detective who conducts surveillance on an adversary owes his adversary a duty to refrain from circulating work product that the private detective knows can be used as fake evidence.”  Instead, the Court pointed out the undisputed fact that there was no relationship between appellees and Flores, let alone one that would impose a duty of care.

Flores v. Intelligence Servs. of Tex., Inc.

In this insurance dispute, the United States Youth Soccer Association (“USYSA”) sought coverage form its liability insurer for claims filed against it by the National Association of Competitive Soccer Clubs (“NACSC”).  The NACSC alleged that USYSA had violated the bylaws of the governing board for soccer in the United States, the USSF, by discriminating against certain youth soccer players who want to play for both organizations.  The Court upheld the insurers denial of coverage based on the policy exclusion that precludes coverage for claims based on a breach of contract.  Employing the “eight corners” rule, the Court found that the allegations in the underlying lawsuit relate to breaches of the USSF bylaws, policies rules and regulations, which, in the Court’s view, constituted a breach of contract.

Arch Ins. Co. v. U.S. Youth Soccer Ass’n

The plaintiff, a licensed real estate broker, sued the vice president of a real estate property management company for tortious interference based on the defendant’s involvement in the refusal to provide the plaintiff with a commission for a property he allegedly had the exclusive right to sell.  Because the promise to pay a commission was not in writing, however, the plaintiff was limited by statute to a “cause of action among brokers for interference with business relationships.”  The Court of Appeals found that the defendant was not a licensed real estate broker and that the plaintiff admitted that the defendant did not act as a broker.  Thus, the Court found that the plaintiff’s claim was barred under the Real Estate License Act and affirmed the trial court’s decision.

Murphy v. Williams

The McGonagles bought property in Granbury, Texas subject to a dedication instrument involving the city’s historic district.  At closing, the McGonagles also purchased a title insurance policy.  The McGonagles later tried to resell the property, but couldn’t because  of the dedication instrument, so they sued the title insurance company, who had denied coverage.  The Court agreed with the title insurers, holding, among other things, that a dedication does not fall with the scope of title insurance coverage because it is not a tax, assessment or lien on real property.

McGonagle v. Stewart Title Guaranty Co.

Mr. Spicer, an organist formerly employed  by the Pleasant Valley United Methodist Church, challenged on constitutional grounds the statutory exemption of unemployment benefits for ex-employees of religious organizations.  The Court of Appeals rejected Spicer’s arguments, holding that the religious exemptions in the Texas unemployment laws do not violate Establishment Clause because, among other things, these laws demonstrate neither sponsorship of nor hostility towards religion.

Spicer v. Texas Workforce Comm’n

The plaintiff in this case sought to collect on promissory notes it had obtained from a failed bank.  After a bench trial that included only one witness and three exhibits, however, the trial court rendered a take nothing judgment against the plaintiff.  The Court of Appeals agreed with the trial court because the only two documents indicating the amount allegedly owed under the notes were unsigned “Prenegotiation Agreements.”  Moreover, these documents, even if they were signed, do not establish specific amounts due and owing; instead stating that the parties “believe” that “approximately” certain amounts are owing on the notes.

RES-TX Boulevard v. Boulevard Builders

After having lost on summary judgment, the plaintiff filed an amended petition, omitting all but one defendant, and then appealed the decision.  The Court of Appeal found that, because the plaintiff had omitted these parties from his amended petition, his claims against these defendants were not preserved and dismissed the appeal.

Pipes v. Hemingway

In this insurance coverage dispute, the plaintiff argued that he did not fall with in the policy’s exclusions because the phrase “domestic employee” was ambiguous.  According to the plaintiff “domestic employee” could refer to either employees who work in a household or employees who are citizens of the United States.  The court rejected this argument, holding that the language of the policy combined with the regulatory framework unambiguously establish that “domestic employee” refers to household employees.

West v. S. County Mut. Ins. Co.

In this negligent misrepresentation case, Guarantee Company of North America sued Weaver and Tidwell LLP for issuing negligent audit reports on which Guarantee relied when issuing performance bonds.  The central issue on appeal was whether the two-year statute of limitations for negligent misrepresentation actions barred Guarantee’s claim.  The Court held that “a person suffers legal injury from faulty professional advice when the advice is taken.”  Thus, the claim in this suit accrued as soon as Weaver’s alleged misrepresentation induced Guarantee to act; that is, when Guarantee issued its first bond in reliance on the faulty audit, which was more than two years before it filed suit.  While Guarantee argued that the discovery rule applied to toll the statute of limitations, the Court refused to apply the discovery rule here because Guarantee did not obtain findings on when it knew or should have known of the facts that gave rise to its cause of action.

Weaver and Tidlwell v. Guaranty Co. of N. Am.

In this inverse condemnation action, the City of Dallas claimed that the case against it should be dismissed for lack of subject matter jurisdiction.  The Court of Appeals held that fact issues precluded dismissal because the plaintiff had alleged, among other things, that the City has: (1) prevented him from developing his property in order to reduce the City’s cost of acquiring that property in the future; (2) closed a street near his property, potentially reducing the plaintiff’s investment-backed expectation; and (3) refused to act on plaintiff’s application to build a privately funded bridge to connect to his property.

City of Dallas v. Millwee-Jackson JV

 

Former NBA point guard Allen Iverson (aka “the answer“) was sued for breach of contract because he failed to show up to an all-star game party in Dallas at which he had allegedly agreed to make an appearance.  Iverson filed a pro se answer asserting a general denial and various affirmative defenses, but failed to show up for trial. The trial court rendered a default judgment.  On appeal, the Court made clear that, because Iverson had answered, the plaintiff had to prove each element of its claim.  The Court then found that the plaintiff failed to establish the existence of a contract because it did not produce an actual written contract or provide any substantive testimony about the contract’s formation.

Iverson v. Dolce Mktg. Group

In this breach of contract claim, the plaintiff moved for summary judgment and establish its standing in an affidavit from one of its employees concerning the acquisition of the lease at issue.  The defendant objected to the affidavit, arguing that it did not reflect the employees personal knowledge.  The Court of Appeals rejected the defendant’s argument and upheld the trial court’s grant of summary judgment because, according to the court, the plaintiff’s affidavit satisfied the personal knowledge requirements by stating that the affiant (1) was responsible for negotiating the acquisition of the lease; (2) reviewed the “books, records and documents” of the company from which the plaintiff acquired the lease; (3) affirmed that he verified the accuracy of those records after the sale; and (4) incorporated the records concerning of the acquired lease (from the previous owner) into the plaintiff’s records.

Nat’l Health Resources v. TBF Financial

Although the non-competition agreement at issue in this case contained a choice-of-law provision designating that Texas law would apply, the trial court applied California law to determine the plaintiff’s claims.  The Court of Appeal, however, reversed the trial court’s decision on this point, because Texas did, in fact, have a “substantial relationship to the parties or the transaction” at issue.  Specifically, although the defendant, a former executive of plaintiff (a Texas company) moved to California after being hired, the evidence established that he (1) had an office in Texas at which he often worked; (2) negotiated the contract, at least in part, in Texas; and (3) performed the contract (in part) in Texas.

Ennis, Inc. v. Dunbrooke Apparel Corp.

Thomas Ellis owned a unit in The Renaissance on Turtle Creek.  He sued the condominium association after it had fined him numerous times for playing loud music and harassing his upstairs neighbors.  The condominium counterclaimed to recover the $13,405 dollars he owed and to foreclose on the continuing assessment lien it held on Ellis’ unit.  The trial court granted the condominium’s summary judgment motion, and the Court of Appeals upheld this decision on appeal because “no fact issue was raised by Ellis’s arguments in his summary judgment response.”

Ellis v. Renaissance on Turtle Creek Condo. Ass’n

After Charles Reese was terminated two years into his five-year term as pastor for the Faith Cumberland Presbyterian Church, he brought suit against his former employer for breach of contract and intentional infliction of emotional distress seeking, among other things, lost wages, punitive damages and attorney’s fees.  Citing the U.S. Supreme Court’s recent holding in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132, S. Ct. 694 (2012), the Court of Appeals upheld the trial court’s dismissal of the suit on First Amendment grounds.  Quoting Hosanna-Tabor, the Court found that if it were to “second guess the Church’s decision to terminate Reese it would deprive the Church of its right to shape its own faith and mission by imposing an unwanted minister.”

Reese v. Gen. Assembly

In this breach of contract case, the defendant asserted that the plaintiff lacked standing to pursue its claim because the plaintiff’s owner filed for bankruptcy individually.  According to the defendant, the bankruptcy trustee would have been the only party with standing to prosecute the claim.  The Court rejected this argument, however, because the lawsuit was filed two years before the plaintiff filed for bankruptcy and, more importantly, the plaintiff (a coroporation) never itself filed for bankruptcy.  Thus, the plaintiff could establish standing.

Keane Landscaping v. Divine Group

In this derivative suit, the plaintiff sought a temporary injunction stopping officers of the defendant company who had each been granted a promissory note in lieu of salary (which note was then in default) giving them the right to foreclose.  Although the trial court granted the temporary injunction, the Court of Appeals held that the mere existence of unexercised contractual rights does not give rise to the “imminent harm” required to sustain a temporary injunction, reversing the trial court’s decision.

Schmidt v. Richardson

In this whistleblower suit against Dallas County, the County filed a plea to the jurisdiction based on sovereign immunity.  The plaintiff, a former deputy constable, complained of illegal activity and retaliation in his employment division to the Dallas County Commissions Court.  The County contended, however, that this entity does not fall within the confines of the Whistleblower Act and, therefore, the plaintiff did not have an objective good faith belief that he was reporting the misdeeds to an appropriate law enforcement body.  While the Court found that “an appropriate law enforcement authority must be actually responsible for regulating under or enforcing the law allegedly violated,” it nevertheless remanded the proceedings to the trial court because the record did not show that evidence was presented about the plaintiff’s good faith belief that the Commissioners Court was the appropriate body.  This was particularly true given that some of the County’s jurisdictional arguments were newly raised on appeal.

Dallas County v. Logan

In November 2012, a Union Pacific train collided with a flatbed trailer carrying veterans and their spouses during a Veteran’s Day parade in Midland, Texas.  The plaintiffs filed their personal injury/wrongful death suit in Dallas County.  Union Pacific moved to transfer venue back to Midland County because its principal place of business in Texas is not in Dallas, but rather Harris County and, thus, the only proper venue is in Midland where the accident occurred.  The trial court denied Union Pacific’s motion to transfer.  The Court of Appeals disagreed, however, holding that Union Pacific’s “principal office” in Texas was not in Dallas because, although some management occurred in that office, the plaintiffs failed to establish that the Union Pacific employees in the Dallas office had “comparable authority” to the executives in Harris County.

Union Pac. RR Co. v. Stouffer

A roofer died after falling from the rooftop on one of his jobs.  His estate sued the general contractor for negligence, claiming that the general contractor maintained a duty to ensure the roofer operated with all proper safety equipment.  The Court of Appeals upheld the trial court’s grant of summary judgment in the general contractor’s favor because it found that the general contractor did not owe the roofer, a sub-contractor, a duty to ensure he performed his job safely.  According to the Court, “a general contractor’s duty of reasonable care is commensurate with the control it retains over the subcontractor.” Because the general contractor here did not maintain either contractual or actual control over how the roofer performed his job, it did not owe him any duty to ensure his safe work habits.

Gonzalez v. VATR Construction

 

 

In 2007, LG Auto Laundry sold a .8-acre tract to Shammy Man Auto Wash, with Shammy Man purchasing the land by means of a mortgage from Millennium State Bank.  At the same time, LG and Shammy signed a ground lease permitting LG to possess .06 acres of the property containing a cell phone tower.  LG and Millennium signed a Subordination, Non-Disturbance and Attornment Agreement (SNDA) providing that, in the event of foreclosure, LG’s possession of the leased property would not be disturbed.  Shammy defaulted, but before Millennium could foreclose, the FDIC took over Millennium and transferred the assets to the State Bank of Texas.  The plaintiff purchased the property  from the State Bank of Texas and filed this lawsuit to establish that the foreclosure extinguished LG’s ground lease.

Although a valid foreclosure on a lien terminates leases, here the ground lease specifically stated that it was subordinate to Millennium’s deed, but the SNDA provided that LG’s possession would survive the foreclosure.  However, because the FDIC took over Millennium, federal law prohibited LG from enforcing the SNDA.  As a result, the Court found that the plaintiff acquired the land free and clear of LG’s lease.

Kimzey Wash v. LG Auto Laundry

In this slip-and-fall litigation, the defendant moved for an order declaring the plaintiff a vexatious litigant, which the trial court granted.  The Court of Appeals held that the trial court abused its discretion in finding the plaintiff vexatious because, while he had, indeed, brought a number of prior lawsuits (thus satisfying one prong standard), the plaintiff could establish a reasonable probability of success in the pending litigation.  Thus, the defendants could not satisfy the second prong of the two-prong test.

Amir-Sharif v Quick Trip Corp

Benica Brown’s former employer, Digital Intelligence Systems (“DIS”) sued her in Dallas county, where she was employed in DIS’s Dallas office, even though Brown’s employment agreement with DIS  (which DIS drafted) specified Virginia as the exclusive forum to resolve any disputes between the parties.  The Court conditionally granted mandamus relief, holding that the trial court abused its discretion when it refused to dismiss the action based on the forum selection clause in the employment agreement.  The Court specifically rejected DIS’s argument that Virginia would be an inconvenient forum because DIS “certainly could have foreseen that it would be required to litigate against Brown in Virginia, especially given that it drafted the employment agreement containing that requirement and required Brown to sign it.”

In re Brown

Although the contract at issue in this breach of contract matter included an arbitration provision, the defendant went ahead and actively litigated the case by, among other things, filing a motion for summary judgment, propounding affirmative discovery, deposing expert witnesses and attending mediation.  Then, after 19 months of active litigation (and 4 months before trial), the defendant invoked the arbitration provision in the agreement and moved to compel arbitration.  The Court found that the defendant had waived arbitration by substantially invoking the judicial process.

Ideal Roofing v. Armbruster

Donald and Ida Mae Card owned the headstone that once marked the grave of Lee Harvey Oswald.  During the 1980s, the Cards gave the headstone to Ida Mae’s sister and brother-in-law for safekeeping.  The Cards, in turn, gave the  marker to their son, Johnny Ragan.  Donald and Ida Mae died, and ownership of the Oswald gravestone passed to their children, who demanded it back from the Ragans.  As it turns out, the Ragans had sold it to an Illinois resident, Wayne Lensing, who had arranged for its exhibition at a museum in Illinois.  The Card children sued to get the headstone back.   Lensing filed a special appearance challenging the court’s personal jurisdiction.  The Court found that the plaintiffs had sufficiently alleged jurisdiction because they established that Lensing had committed several relevant acts in Texas, including flying to Fort Worth to take possession of the headstone.  Accordingly, the Court upheld the trial court’s finding of personal jurisdiction.

Lensing v. Card

In this forcible detainer case, the defendant objected to the entry into evidence of the deed at issue.  While stipulating to the deed’s existence, the defendant argued that the court should exclude the deed’s recitals because they were hearsay.  The Court of Appeals rejected this argument and pointed to Texas Rule of Evidence 803(15), which provides a hearsay exception to “a document purporting to establish or affect an interest in property.”  Because the Court found that the recitals were “germane to the purpose of the document,” it affirmed the trial court’s decision to admit the deed in its entirety.

Mason v. Wells Fargo Bank

Unaware that the law prohibited the creation of a professional association between doctors and non-doctors, the plaintiff, Andrew Small (a medical doctor) formed a joint practice with the Parker brothers (two chiropractors).  The association operated for several years, but ended in 2003.  After the relationship ended, Small sought to establish that he should have been paid more under the the entity’s articles or association, so he brought suit.  The Court of Appeals, however, rejected Small’s claim because, under Texas law, it is illegal for a doctor to jointly own a professional association with non-doctors.  Accordingly, the Court voided the contract on the ground that “a contract to do a thing which cannot be performed without violation of the law is void.”

Small v. Parker Healthcare

Several landowners entered into an easement agreement with the City of Celina so the City could build a sewer to a local high school.  Among other things, the City agreed to replace the top soil along the easement after the sewer was installed.  When the original top soil was not replaced, the landowners sued for inverse condemnation.  The Court of Appeals found that the agreement’s top soil provision was not intended to act as a condition subsequent.  Because the takings claim was based on the landowners assertion that breach of a condition subsequent voided the easement, the Court found that the trial court erred in denying the City’s plea to the jurisdiction.

City of Celina v. Dickerson

Jeffrey Bay sued Regions Bank for breaching an escrow agreement.  According to Bay, Regions was to serve as escrow agent for his $500,000 investment and was only to carry out the investment if it received an opinion from counsel affirming that the described investment was either registered securities or exempt from registration.  Regions argued that it did receive such a letter prior to releasing the funds, but the Court of Appeals held that the only letter it did receive describing the securities at issue did not provide the opinion required by the escrow agreement.  Instead, the letter merely stated that the offering was “designed” to be exempt from securities registration.  The Court thus held that Bay had offered sufficient evidence to show Regions breached the escrow agreement.

Regions Bank v. Bay

The defendants here were two executives of a California-based party-planing company that contracted in with a Texas company to throw a Super Bowl party before the 2011 Super Bowl in Dallas.  While the details on what happened at the party are unclear, the party apparently did not go well, so the plaintiff sued these two executives for breach.  After the trial court granted the defendants’ special appearance based on the fiduciary shield doctrine, the plaintiff appealed, arguing that the fiduciary shield doctrine applies only in cases where the plaintiff asserts general jurisdiction over the defendants, and here the plaintiff asserted specific jurisdiction over the executives.  The Court rejected this argument and affirmed the trial court’s decision.

Stull v. LaPlant

In this memorandum opinion, the Court found that the trial court’s temporary injunction preventing the defendants from disclosing, among other things, “techniques,”  “materials,” “confidential information” and “proprietary information,” was not specific enough to meet the  requirements of TRCP 683, which requires that an injunction shall “describe in reasonable detail . . . the acts sought to be restrained.”

Ramirez v. Ignite Holdings

Pursuant to a contract with Chapman Custom Homes, Duncan Plumbing installed the plumbing in a house Chapman was building in Frisco, Texas.  But a year-and-a-half later, those pipes sprung a leak and damaged the house.  The Court of Appeals, however, found that Chapman could not recover for negligence because the economic loss rule bars such a tort claim where a contract governs the parties’ relationship.  The Court rejected Chapman’s argument that the economic loss rule only bars recovery for damages to the “plumbing system itself” (while its damages based on injuries to the entire home), because “the only duty [Chapman] alleged Dallas Plumbing breached was its contractual duty.”

Chapman Custom Homes v. Dallas Plumbing Co.

McKinney Aerospace was in the business of airplane repair.  In 2006, Boyington Capital Group came to McKinney for repairs on its airplane.  During negotiations, McKinney’s executive vice president, Randall Haler, told Boyington Capital, that McKinney was in “very fine legally financial shape.”  As it turns out, McKinney was on the verge of bankruptcy and failed to repair the plane.  It had also used Boyington’s initial payments to hold off creditors, so it could not return those funds to Boyington.  Boyington sued McKinney and Haler for, among other things, fraud, conversion, breach of fiduciary duty and breach of the Texas Theft Liability Act.  The jury found for Boyington.

On appeal, Haler argued that there was insufficient evidence to establish a claim under the TTLA against him. The Court of Appeals disagreed, upholding the jury’s finding and pointing out that “by misrepresenting the financial condition of McKinney Aerospace and spending money it received from Boyington on payments other than those related to repairing Boyington’s plane, Haler unlawfully appropriated Boyington’s property with the intent to deprive Boyington of its money.”  However, the Court of Appeals reversed the trial court’s grant of attorney’s fee to Boyington because Boyington did not segregate and exclude the fees for services that relate to its claims for which fees are not recoverable.

Haler v. Boyington Capital Group

With its motion for summary judgment, the plaintiff submitted affidavits testifying to, among other things, the terms of an unsigned lease agreement with its former tenant, a law firm.  The defendant generally objected to these affidavits as inadmissible hearsay, but failed to specify which portions of the affidavits contained the hearsay.  The Court of Appeals held that, although an affidavit containing hearsay may not support summary judgment, the opposing party must make “specific objections to each component part of a particular piece of evidence to preserve error on appeal.”  Because the defendant simply objected that “the Affidavits contain inadmissible hearsay,” the Court of Appeals held that they had not specifically objected to the allegedly inadmissible statements and concluded that the trial court properly considered the affidavits.

Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd.

Following a number of recent waiver cases, the Court of Appeals held that the appellees waived their contractual right to offset when they agreed that “Guarantor waives, to the fullest extent permitted by applicable law, the benefit of any statute of limitations or other defenses affecting its liability hereunder.”  The Court rejected appelles’ argument that this language was not specific enough to waiver their rights under section 51.003.

Compass Bank v. Manchester Platinum Mgmt.

Based on a report from a confidential informant, the Texas Department of Family and Protective Services investigated Robert Mason for allegations that he hit his ten-year-old daughter three times.  The investigation determined that, based on the available evidence, the alleged abuse did not occur.  But Mason suspected that the informant was David Glickman, the Rabbi of a congregation with which Mason associated, so he sued Glickman for defamation.  Because the TDFPS had redacted its report (as required by Texas law) to conceal the name of the informant, Mason could not establish that Glickman was the one who made the allegedly defamatory statement.  Under a Texas Family Code provision, however, Mason moved the trial court to order disclosure of the unredacted report, arguing that disclosure was essential to the administration of justice.  The trial court denied the motion and granted Glickman’s no-evidence motion for summary judgment.  The Court of Appeals agreed, holding that disclosure of the report was not essential to the administration of justice.  Further, the court rejected Mason’s stated goal of discouraging reports of suspected child abuse since the statute exists to encourage child abuse reporting, regardless of whether the allegations are ultimately confirmed.

Mason v. Glickman

Bob Montgomery Chevrolet, a car dealership doing business entirely in Kentucky, entered into an agreement with Dent Zone, a dent repair service, to allow Dent Zone to operate out of Montgomery’s dealership in exchange for a cut of Dent Zone’s take.  After some negotiation, the parties signed an agreement that included the following language: “Additional benefits, qualifications and details of the [relationship] are available for your review at our website:  http//.linxmanager.com./pdf.CRCTermsconditions.pdf.”  The terms and conditions on that website included a minimum six-month contractual term, a Texas choice-of-law provision, and a forum-selection clause requiring any suit between the parties to be brought in Dallas, Texas.  One month after signing the agreement, Montgomery ended its relationship with Dent Zone.  Dent Zone sued Montgomery for breach of contract in Dallas, and Montgomery filed a special appearance, which the trial court denied.

On appeal, Montgomery insisted that the terms and conditions linked to in the agreement were not part of the contract, while Dent Zone argued that the terms were incorporated by reference.  The Court of Appeals agreed with Montgomery, explaining that for a contract to incorporate another document by reference that contract must demonstrate the parties’ intent to incorporate all or part of the referenced document.  Turning to the language of the agreement, the Court found that the phrase “Additional benefits, qualifications and details of the [relationship] are available for your review at our website” was informative only and   does not suggest that the parties intended the terms and conditions to become part of their agreement.

Bob Montgomery Chevrolet v. Dent Zone Cos.

PAM Transport’s truck driver, James Herdo, allegedly backed into one of Stevens Transport’s semi-tractors.  Stevens sued PAM for negligence because it claimed Herdo failed to keep a proper “lookout” when he was backing the truck up.  The trial court found that Stevens had established that Herdo’s negligence proximately caused the collision and granted Stevens’ motion for summary judgment.  The Court of Appeals disagreed, holding that the mere occurrence of an accident does not establish negligence.  Instead, Stevens had to prove conclusively that Herdo’s failure to keep a lookout proximately caused the accident, not simply that Herdo backed into Steven’s tractor.

PAM v. Stevens

Orr is the trustee of a trust of which Wall is a beneficiary.  Wall sued Orr in Kentucky for actions he took as trustee.  The case was sent to arbitration, and the arbitrators Wall’s claim that the trust must distribute $63,000 to her.  But the arbitrators did grant Orr’s counter motion to permit him to give a cashier’s check for $63,000 made out to Wall to the arbitrators until Wall signed a release.  A Kentucky trial court confirmed the order.  Several years later, Wall filed suit in Collin County, Texas, claiming she is still owed the $63,000 despite the fact that she never signed the release.  The Court of Appeals upheld the trial court’s conclusion that Orr wins on the affirmative defense of claim preclusion because the transactional nucleus of facts between the two cases were essentially identical.  Wall argued that her claim in this suit was that the requirement that she sign a release constitutes a breach of fiduciary duty, which was not litigated in the prior suit.  The court rejected this argument.

Wall v. Orr

On July 6, 2012, the trial court in this case signed an order denying the defendant’s special appearance.  The defendant then moved for reconsideration of that denial on August 9, which the trial court subsequently denied on September 24.  On October 15, the defendant appealed the second denial.  On appeal, the Court of Appeals concluded that it lacked jurisdiction to hear the appeal because, under the rules, the defendant’s notice of interlocutory appeal was due by July 26, or twenty days after the trial court denied the first special appearance. The Court explained that permitting appeals twenty days after a motion for reconsideration would essentially eliminate the twenty-day requirement.

Pahl v. Swaim

Several former Dallas municipal judges brought this lawsuit challenging the 2012 municipal judge selection process, claiming that the Mayor and the City Council violated the city code by asking nominees to comment in writing on legislative proposals by an ad hoc legislative committee and by interviewing additional candidates without justification.  The Court of Appeals, however, concluded that these former judges lack standing to sue because they seek only a declaration that the City Council violated the law.  The Court found that the judges lacked any personal stake in the outcome of the case because (1) they disclaimed any intent to challenge the appointment of their successor judges; (2) they do not seek to be reinstated as judges; and (3) they deny that they are challenging the legitimacy of any ordinance.

Rawlings v. Gonzalez

In August 2002, after Kroupa and WIlliams had been living together in a common law marriage for a number of years, Williams took out a home equity loan on the parties’ residence without telling Kroupa.  Kroupa discovered the home equity loan the following month, in September 2002.  Several years passed, and Kroupa and Williams finalized their divorced in 2007 and Kroupa received the residence as part of that proceeding.  In 2008, Kroupa filed a petition seeking to have the home equity loan declared as void.

On appeal, the Court looked to the Texas Constitution’s 1998 amendment concerning home equity loans to determine whether Kroupa could prevail.  Under that amendment , Kroupa argued that the home equity line was void because she did not sign the written agreement or consent to it as the Texas Constitution required.  In response, Williams and Wachovia (the holder of the lien) insisted that Kroupa’s claim was barred by the applicable statute of limitations.  Examining the Texas Constitution and the line of cases discussing this specific provision, the Court found that becuase the lien here was voidable and not void, the statute of limitations applied.  The Court then found that, because Kroupa discovered the lien in September in 2002, and because she filed her lawsuit in September 2008, her suit was barred by the four-year statute of limitations.

Williams v. Wachovia Mortgage Corp.

In this forcible detainer action, the defendant disputed the validity of the foreclosure sale in light of an automatic bankruptcy stay that had been issued. The Court noted, however, that under Texas Rule of Civil Procedure 746, the only issue that may be adjudicated in a forcible detainer action is the right to actual possession.  Accordingly, because the validity of of the foreclosure sale in light of a bankruptcy stay goes to the merits of the title, the Court held that this issue may not be raised in a forcible detainer action and rejected the defendant’s argument.

Stonebreaker v. FNMA

At a trial involving, among other things, counterclaims for breach of contract, the counterclaimant forgot to submit a jury question on the issue of damages. Because the jury agreed with the counterclaimant for all other elements of the breach of contract claim, the counterclaimant moved for judgment and requested that the trial court find that damages for the breach of contract established as a matter of law. The trial court did not expressly rule on the motion for judgment, but instead rendered a take-nothing judgment on  the counterclaim.

On appeal, the Court addressed several issues, including whether the counterclaimants had waived any objection to the jury charge on appeal.  The Court explained that, under the Texas Rules of Civil Procedure “[w]hen an element of a claim is omitted from the jury charge without objection and no written findings are made by the trial court on that element then the omitted element is deemed to have been found by the court in such a manner as to support the judgment.”  Based on this, the Court concluded that the counterclaimants did not waive their claim for damages by failing to submit a jury question on that element of their claim and that they had also not waived argument concerning the legal and factual sufficiency of the trial court’s “deemed finding.”

Alfia v. Overseas Service Haus

Amy Self sued Tina King and Elizabeth Tucker for  injuries she received in a car accident purportedly caused by King.  On March 21, the trial judge sent a letter to all counsel requiring them to sign and return the enclosed scheduling order by April 8, 2011, or the court would place the matter on its dismissal docket.  Self failed to comply with this requirement and the court notified the parties of a dismissal hearing on April 21.  When Self failed to appear at this hearing, the court issued an order of dismissal.  In July 2011, Self moved to vacate the order of dismissal because, she argued, neither she nor her attorney had received notice of the scheduling order or the dismissal hearing.  The trial judge stated that, although the court lacked jurisdiction to reinstate the case, she would deny the motion to reinstate if she had jurisdiction to do so.  On appeal, the Court found that Self failed to address all possible grounds for the dismissal of the case, which was required because “[i]f a dismissal order does not state the grounds for the dismissal, a plaintiff seeking reinstatement must negate all possible grounds.”

Self v. King

In 2006, Dr. Tran bought medical equipment on eBay for $14,580 using his Citibank credit card.  When the equipment arrived, Dr. Tran found that it was missing a key component so he contacted Citibank to dispute the purchase.  In response, Citibank issued two chargebacks: one in October 2006 for $4,580 (which the seller accepted) and one in November 2006 for the remaining $10,000 (which the seller did not accept).  Among other things, Tran sued Citibank for breach of an oral agreement to “timely” issue the credit card chargebacks together.  The Court of Appeals found that Tran had not put forward any evidence showing that Citibank agreed to issue the chargebacks “by a certain date, within a certain time frame, or at the same time.”  Thus, the Court held that the oral contract alleged by Dr. Tran failed for indefiniteness.

Citibank v Tran

The trial court awarded the appellees over $360,000 in attorney’s fees in a commercial dispute concerning the sale of a business under an asset purchase agreement.  On appeal, the Court addressed the requirement that, when a party seeks attorney’s fees in a case involving several claims, some of which permit the recover of fees and some of which don’t, “the party must segregate and exclude the fees for services related to the claims for which fees are not recoverable.”  In this case, the appellees argued that they could not segregate fees because their tort claims (which don’t provide for attorney’s fees) arose from the same transactions and facts as their contract claims (which do).  The Court disagreed and found that “[b]ecause there is not a de minimis exception to the requirement to segregate recoverable attorney’s fees from non-recoverable and there was evidence of unsegregated non-recoverable attorney’s fees included in the amount awarded by the trial court, a new trial on attorney’s fees is required.”

CTMI v. Fischer

 

In this car accident case, the defendant moved for summary judgment on the ground that the suit was barred by the two-year statute of limitations.  In response, the plaintiff argued that, under CPRC 16.063, the out-of-state trips she took over the past two years tolled the statute of limitations for the time period she was outside of Texas.  On appeal, the Court rejected the plaintiff’s argument, finding that section 16.063 was intended to apply to “Texas creditors faced with individuals who enter Texas, contract a debt, depart, and then default on the debt.”  Here, the plaintiff remained a Texas resident for the entire two-year statue of limitations, and, during that period, would have had no difficulty in serving the defendant with process.

A dissenting opinion argued that the majority’s reading of the section 16.063 “has rendered the statute meaningless and effectively repealed the statute.”

Liptak v. Brunson (majority)

Liptak v. Brunson (dissent)

Gautam and Shweta Daftary leased office space for their dental practice from the Henry S.  Miller real estate firm (“HSM”).  Among other disputes with HSM, the Dafatarys argued that they were constructively evicted from their office space when a excessively loud dance studio moved into the the office next door. Although HSM contended that the Dafatarys took too long to leave the premises to support a constructive eviction claim, the Court of Appeals upheld the jury’s finding that 13 months is a reasonable amount of time to expect a dental practice to move offices.

Daftary v. Prestonwood Markey Square

After their fathers’ death, Brenda Levitz and Thomas Sutton sued each other over the distribution of his estate. They settled this dispute during a mediation, but 4 months later Levitz moved to set aside the settlement.  Levitz argued that sleep deprivation combined with medications and fibromyalgia made it so that she didn’t have the requisite capacity to enter into the settlement during the mediation. Sutton moved to compel a medical evaluation of his sister, and amended his petition to include a claim for breach of the settlement agreement, seeking, among other things, specific performance. After a bench trial, the trial judge found that Levitz had had the requisite capacity the day she signed the settlement agreement and granted Sutton’s motion to for specific performance. Levitz moved for a new trial, which the court denied.

On appeal, the Court found that the trial judge could not grant specific performance as a remedy because specific performance is a remedy for a breach of contract claim only. In granting this remedy, the trial court only decided whether a binding contract existed between the brother and sister, it did not address whether Levitz had breached the agreement. Because a breach of contract claim requires proof of a valid contract, performance or tendered performance, breach and damages, “a determination that an agreement is enforceable . . . does not equate to a determination that a party is entitled to specific performance.” The Court of Appeals therefore reversed the trial court’s judgment and remanded the case for further proceedings.

Levetz v. Sutton

Voltaix is a New Jersey company that manufactures a specialty gas used in the semiconductor and solar energy industries.   Voltaix alleged that two of its former employees at its New Jersey plant stole its trade secrets, moved to Texas, and started a competing company based in Texas named Metaloid Precursors.   Voltaix sued these employees, their new company, and John Ajongwen (the chairman and a major investor in Metaloid) in Texas for, among other things, misappropriation of trade secrets.  Ajongwen, however, filed a special appearance because, in his view, he was a New Jersey resident with no minimum contacts in Texas.  The trial court agreed.

The Court of Appeals affirmed the trial court’s decision.  It found that Ajongwen came to Texas only one time, for half a day, to oversee set up of the plant’s water purification system and to conduct a safety inspection of the plant.  Because neither of these events had any connection with the trade secret misappropriation allegations, the court held Texas courts lacked personal jurisdiction over Ajongwen in this suit.

Voltaix LLC v Ajongwen

Karen Smith sued Brown Consulting & Associates, her employer, for injuries she sustained during the course of her employment.  BCA never appeared, and the trial court entered  default judgment in Smith’s favor.   On appeal, BCA argued that Smith failed to properly serve it, and that the default judgment should be voided.  The Court of Appeals agreed with BCA, finding that the affidavit Smith submitted in suport of her rule 106(b) motion for substitute service of process was defective for two reasons.  First, the affidavit did not contain a statement that BCA’s address was the usual place of business of the defendant or its registered agent.  Second, the affidavit did not contain a statement that the address is a place where the registered agent could probably be found.  Because the Court strictly construes the rules governing service when a default judgment is entered, it reversed the trial court’s entry of default judgment and remanded the case for further proceedings.

Brown Consulting v. Smith

Though we usually restrict ourselves to business related cases here at 600 Commerce, this criminal case was too interesting to ignore, so enjoy:

After William Youkers pleaded guilty to assaulting his pregnant girlfriend, he subsequently failed to abide by the his community supervision requirements. Youkers made a bunch of excuses for his failure to comply, but ultimately the trial judge sentenced him to eight years in prison. Youkers moved for a new trial, arguing that the trial judge’s undisclosed Facebook “friendship” with the father of his girlfriend biased the court’s decision.  During the hearing on Youkers’ motion for a new trial, the judge testified that he knew the father only because both had run for public office in the same election cycle, and nothing more.  Despite this fleeting relationship, the father had, through this Facebook friendship, sent a message to the judge, asking him to go easy on Youkers. The judge replied by telling the father that the communication was improper and that he didn’t even read the entire message once he figured out what it was about.  The judge then put a copy of the Facebook message in the court file and told the lawyers for both sides about it.  No other messages were exchanged.

On appeal, the Court noted that no Texas case has ever before addressed this topic.  It then explained that, as a general matter, “judges are not prohibited from using social media.”  Following the ABA’s commentary on this subject, the Court advised that simply being a  Facebook friend with someone does not provide any evidence of the degree of the parties’ relationship in the real world, and that further context is needed to determine whether bias exists.  On the facts in this case, the Court found that there was no suggestion of bias and that the trial judge acted just as he should have upon receiving the message.  The Court therefore sustained his denial of Youkers’ motion for a new trial and moved on to other issues.

Youkers v. State

After receiving a number of unresolved or unanswered complaints over several years, the Better Business Bureau (“BBB”) gave the Lloyd Ward & Associates (“Ward”) an “F” rating.  Ward was not happy about this and sued the BBB for libel, slander, and negligence, seeking an injunction preventing the BBB from including Ward in its listing service.  The BBB moved to dismiss on constitutional and other grounds, but the trial court denied their motion.

On appeal, the Court referred to its related opinion in another BBB-related lawsuit, which held that the BBB’s rating service provided a service to the marketplace and, thus, qualified as a matter of public concern under the Texas Citizens Participation Act (“TCPA”).  Because the TCPA applied to the BBB’s ratings, the burden shifted to Ward to establish “by clear and specific evidence” a prima facie case for each element of his claims.  But in his arguments on appeal Ward never presented any evidence for his case, instead relying entirely on the argument that the TCPA did not apply at all.  The Court therefore found that Ward failed to meet his burden and reversed the trial court’s decision.

Better Business Bureau v. Ward

Defendant Lafayette Escadrill Inc. lost on summary judgment for its breach of contract claim of wrongful termination against its former contract counterparty, CCU.  The Court of Appeals upheld the trial court’s decision on res judicata grounds because Lafayette previously had the opportunity to raise the wrongful termination as a counterclaim in a prior litigation (which it also lost) in which CCU sued Lafayette for breach of contract.  According to the Court, the wrongful termination counterclaim should have been raised in the earlier suit because it was “fully mature” as soon as CCU terminated the contract in accordance with the contract’s provisions.

Lafayette Escadrille Inc v City Credit Union

In the mid-1990s, Hydroscience Technologies, Inc. (“HTI”) sold shares of its preferred stock to Hydroscienc, Inc. (“HSI”).  HTI alleges that in 2001, in order to settle an unrelated dispute between Whitehall Corporation (HSI’s parent corporation) and itself, Whitehall orally agreed during a mediation session to transfer the HTI shares held by HSI back to HTI.  But the parties never reduced this agreement to writing and HSI never transferred the original stock certificate back to HTI.  The parties didn’t raise the question of HSI’s stock ownership  again until 2010, when HSI, as purported shareholder, requested to inspect the books and records of HTI.  When HTI refused, HSI filed a lawsuit seeking a declaratory judgment that HSI remained an HTI shareholder.  After the trial court granted HSI’s motions for summary judgment, HTI appealed.

The Court of Appeals addressed a number of issues in its opinion.  Most relevant, however, was its holding that while delivery of a stock certificate was not required to show a transfer of stock, the fact that HSI still possessed the certificate establishes its ownership unless HTI can present evidence of the stock transfer agreement the parties purportedly came to during the 2001 mediation.  But the Court found that HTI could not demonstrate that intent because, under Texas law, HTI is prohibited from using as evidence statements of the parties during a mediation session.  It explained that “to allow HTI to used alleged discussions from the mediation regarding the stock would undermine the very purpose of confidentiality in the mediation process.  Parties must not be allowed to use evidence from mediation to dispute terms of a settlement agreement, particularly years later, as is the case here.”  According to the Court, to hold otherwise would chill the overall purpose of mediation.   Thus, because the final 2001 settlement agreement did not show the stock transfer agreement, and because HTI could not show that the parties had orally agreed to make such a transfer, the Court upheld the trial court’s ruling.

Hydroscience Technologies, Inc. v. Hydroscience, Inc.

 

 

Natalie Holmes, a graduate student at SMU, has taken and failed twice the graduate comprehensive exam (“GCE”)–which she needed to pass to receive her Master’s Degree in Music Education.  After both tests, Holmes appealed the results to SMU’s internal academic appeals board as either “arbitrary and capricious” or “beyond the scope of the coursework.”  SMU offered Holmes the chance to re-take the exam a third time, but Holmes refused and instead insisted that SMU giver her the degree as well as monetary damages.  While her second appeal remained pending, Holmes sued SMU for breach of contract, fraud and DTPA violations.  SMU moved to dismiss the case for lack of subject matter jurisdiction, arguing that Holmes had failed to exhaust her administrative appeal rights before bringing suit.  The trial court agreed with SMU and dismissed the case.

The Court of Appeals, however, reversed the trial court, finding that SMU had failed to submit any evidence to establish that Holmes was required to proceed through an administrative appeal before bringing suit.  According to the Court, SMU’s only evidence was a “short and conclusory” affidavit that did not address the appeals process, and this was not enough to establish that the trial court lacked jurisdiction.

Holmes v SMU

When Emily Hairston was a high school sophomore, the women’s soccer coach at Southern Methodist University, Brent Erwin, sought to recruit her to play on SMU’s team when she graduated. In May 2007, Erwin verbally offered Hairston a “100%” scholarship if she came to play at SMU. Over the next few years, Hairston and the coach communicated about the SMU soccer program, and Erwin even encouraged Hairston to try to graduate early from high school, which Hairston did. Hairston enrolled at SMU in early 2009, and joined the women’s soccer team. In February 2009, Hairston was told that she needed to pay $25,000 in tuition for that semester. Surprised, Hairston spoke with Erwin, who informed her that she did not, in fact, have an athletic scholarship. After some further discussion, Erwin and her father sued SMU and Erwin for, among other things, breach of contract. The trial court dismissed the case in SMU’s favor on summary judgment.

On appeal, the Court found that the statute of frauds barred Hairston’s breach of contract claim in at least two ways. First, to the extent Hairston claimed the scholarship was for all four years of her college career at SMU, the oral agreement could not be performed within a year of acceptance and, thus, had to be in writing under the statute of frauds. Alternatively, the Court noted that Hairston purported to accept the offer in May 2007, when she was a sophomore in high school. Because she could not have realistically enrolled in SMU within a year of her sophomore year of high school, the statute of frauds required the contract to be in writing. As a result, the Court affirmed the trial court’s decision.

Hairston v. SMU

In 2001, the Dunmores bought two adjacent lots (Lots 8 & 9) in Lancaster, Texas from Rolene Long, but the Deed of Trust, the Warranty Deed and other related documents only referenced Lot 9.   Eight years later, in 2009, a slew of local taxing authorities sued Long to collect back taxes on Lot 8, which they assumed she had just failed to pay.  The Dunmores and Chicago Title Insurance (the title insurer for the 2001 transaction) were joined in the lawsuit, and the Dunmores filed cross-claims against Chicago Title for breach of contract, negligence, DTPA violations, and breach of fiduciary duty.  As of the appeal, these two were the only parties left in the lawsuit.

The trial court granted Chicago Title’s motion for summary judgment on its statute of limitations’ affirmative defense, and the Dunmores appealed. The Court of Appeals affirmed the trial court’s decision.  In doing so, it held that the four-year statute of limitations for the Dunmores’ causes of action had run and that the Dunmores could not be rescued by their argument that the limitations period was tolled because Chicago Title’s mistakes were undiscoverable.  To the contrary, the Court of Appeals made clear that they were charged with knowledge of the contents of those legal documents as of 2001, and, as such, the mistake was not inherently undiscoverable.

Dunmore v Chicago Title Ins Co

In 1998, the McNutt Group leased one of its properties in downtown Dallas to Landry’s Crab Shack for a 20-year term.  Ten years later, Landry’s assigned its lease to Cadillac Bar, in accordance with the lease provisions that allowed such an assignment.  As part of the transaction, McNutt signed an estoppel certificate, thereby giving its consent to the assignment.  Cadillac Bar paid rent for a year, but then stopped.  McNutt sued Landry’s and Cadillac Bar for breach, and Landry’s sued Cadillac Bar.  Each of the parties moved for summary judgment, which the court (1) granted with respect to McNutt; (2) denied with respect to Cadillac Bar; and (3) did not rule on with respect to Landry’s.  Cadillac Bar appealed.

On appeal, Cadillac Bar argued that Landry’s couldn’t assert a breach of contract claim because the parties didn’t perform all the conditions associated with the assignment, and thus there was no assignment in the first place.  Specifically, Cadillac Bar claimed that McNutt conditioned his assent to the assignment on (1) having the estoppel certificate signed by all parties and (2) his receipt of attorney fees, neither of which ever actually happened.  The court of appeals rejected this argument, holding that the Cadillac Bar could not take advantage of conditions McNutt had imposed on his own consent to the assignment because those conditions were for McNutt’s sole benefit.  Thus, the court found that “Cadillac Bar cannot avoid its own obligations under the Lease by identifying what is, at most, McNutt’s waived injury.”  The court also explained that the doctrine of quasi-estoppell also thwarted Cadillac Bar’s argument.  Under this doctrine, Cadillac Bar couldn’t now assert that an assignment never occurred when, previously, it had benefited from the assignment.

Cadillac Bar v Landry’s

When the trial court granted summary judgment against Tiffiney Cottledge on a breach of contract claim brought against her, Ms. Cottledge decided to appeal the ruling pro se.  Her main argument on appeal consisted of a complaint that the evidence does not support the trial court’s ruling, and that the trial court was biased in its findings.  On her first argument, the Court found that the appellee had presented seven exhibits supporting his motion for summary judgment and Cottledge did not present any discussion or analysis about why the exhibits could not support the trial court’s ruling.  On her second argument, the Court found that the issue was inadequately briefed because Cottledge failed to include appropriate citations to the record or to applicable authorities.  According to the Court, “[o]ur appellate rules have specific briefing provisions that require appellant to state concisely her complaint and provide an understandable, succinct, and clear argument for why her complaint has merit in fact and law, and cite and apply applicable law together with appropriate record references.”

Cottledge v. Roberson

Gregory Strange worked at HRsmart for over 5 years designing and developing software designed to help companies manage human resources.  As part of his employment with HRsmart, Strange signed a non-competition agreement in which he consented not to work for a competing business for one year following his termination of employment.  The agreement defined “competing business” as one “which provides the same or substantially similar products and services” as HRsmart.  Shortly after he left HRsmart, Strange and another former co-worker developed a new program called ClearVision, which was a human resources program aimed at small businesses with less than 200 employees.  In developing this new program, Strange felt that he had not run afoul of his non-competition agreement because, in his view, HRsmart did not aim to serve small businesses.  HRsmart, of course, disagreed and sued Strange.  The trial court granted HRsmart’s request for a temporary injunction, and, later, HRsmart’s motion for summary judgment.  Strange appealed.

On appeal, Strange pointed out all of the differences between the products designed and marketed by HRsmart and what Strange sought to do with ClearVision.  First, ClearVision sought to serve a niche market of “micro businesses” with less than 200 employees, whereas HRsmart targeted businesses with more than 500 employees.  Second, ClearVision was “less function” and could not be “configured,”but HRsmart’s products were “fully customizable.”  Finally, ClearVision is a single product, while HRsmart includes seven interconnected HR modules.  On this record, the Court of Appeals concluded that fact questions exist regarding whether HRsmart actually competes with ClearVision, and reversed and remanded the trial court’s decision.

Strange v. HRsmart

The Dallas City Code contains certain provisions governing the activities of “Alternative Financial Establishments.”  Under this section of the code, these establishments are defined to include “car title loan business[es], check cashing business[es], or money transfer business[es]” but not businesses that “provide financial  services that are accessory to another main use.”  Last year, the City informed Texas EZPAWN that its loan service business qualified as an alternative financial establishment under the code.  EZPAWN disagreed and filed a lawsuit seeking a declaration that its loan services business did not fall within the code’s definition.  The City filed a plea to the jurisdiction, arguing that governmental immunity barred EZPAWN’s suit and that the Uniform Declaratory Judgments Act did not apply because the governmental immunity waiver in that ordinance only applies to suits challenging the validity of a ordinance whereas EZPAWN’s suit merely seeks a construction or interpretation of the ordinance.   The Court of Appeals agreed with the City, finding that the UDJA does not waive the City’s governmental immunity because EZPAWN did not seek to invalidate the provision.  It therefore reversed the trial court’s judgment and dismissed the petition with prejudice.

City of Dallas v Texas EZPawn

In this suit by Compass Bank to recover money owed under a promissory note, Compass moved for summary judgment.  To support its motion, Compass submitted an affidavit by a custodian of records attaching copies of the note and the trial court granted summary judgment.  The Court of Appeals, however, overturned the trial court’s ruling because it found Compass’s affidavit could not satisfy the personal knowledge requirement.  In particular, “[t]he affidavit did not demonstrate whether [the affiant] was employed by Compass, what her job position and responsibilities were, or how her job duties gave her personal knowledge of the facts.”

Vince Poscente Int’l v. Compass Bank

 

 

In this appeal of a trial court’s confirmation of an arbitration award, the Court of Appeals rejected the argument that the trial court should not have confirmed the award because the arbitrators did not permit appellant to obtain the discovery necessary for him to adequately assert his rights.  In so holding, the Court found that the appellant failed to provide the trial court with a complete record of the arbitration proceedings and thus could not establish that the discovery he sought was, in fact, relevant to his claim.

Goldman v Buchanan

In 2004, the Byers family hired Jered Custom Homes (“JCM”) to build their home.  Since Brad Byers worked for an engineering firm, he had his own company design the foundation. To protect itself, JCM included a provision in its contract with the Byerses that Brad Byers and his firm would be entirely responsible for the design and sufficiency of the foundation and that the Byerses would be responsible for all necessary soil and subsoil tests.  Two years later, the Byerses sold their home to appellant, Kay Yost.  Shortly after moving in, however, Yost noticed that the locks installed in the doors no longer fit.  Yost hired a series of inspectors, and ultimately concluded that the house’s foundation had suffered cracking caused by issues with its design with an estimated cost of repair of $524,563.  Yost sued JCM for damages associated with the house, but JCM moved for a no evidence summary judgment and the court granted it, ordering that Yost take nothing.

On appeal, the Court agreed with the trial judge’s decision.  Yost argued that the affidavits of her two experts provided sufficient evidence to survive summary judgment.  But the Court of Appeals found that nothing in the expert reports presented any evidence that JCM itself was negligent in constructing the house’s foundation in accordance with the design prepared by Byers’ employer.  Indeed, although Yost’s expert report stated that it is customary practice in the home construction industry for a geotechnical report to be obtained and reviewed, “he does not state who should review it or utilize its information.”  Nevertheless, the Court reversed the trial judge’s decision on Yost’s claim for breach of the implied warranty of habitability because Yost’s failure to produce documents evidencing that the how was not uninhabitable did not constitute a judicial admission.

Yost v. Jered Custom Homes

Timothy Brown, a professional golfer, started a company and then sold it to Golf & Tennis Pro Shop, Inc. (“GTPS”).  Brown then worked for GTPS for a while, but the relationship deteriorated and he left the company shortly thereafter.  Brown, however, remained bound by a non-compete agreement with GTPS.  Still, he entered into discussions with Jeff Blankinship to pursue a similar idea to his former company, but this time apart from GTPS.  As Brown negotiated a contract with Blankinship, Brown had his lawyer, Gary Blanscet, review the agreement.  Blanscet required changes to the agreement to reflect Brown’s prior dealings with GTPS.  Blankinship signed the revised agreement without reading it and, a week later, found out about GTPS.  Blankinship sued Brown and Blanscet for, among other things, fraud and negligent misrepresentation.  The trial court granted Blanscet’s no evidence summary judgment motion.  Later, the jury found in favor of Blankinship as against Brown.  Blankinship appealed the trial court’s summary judgment decision concerning Blanscet.

On appeal, the Court found that Blankinship could not establish the reliance element of his causes of action because, among other things, Blankinship admitted at trial that he never read the contract before he signed it.  Blankinship tried to argue that Blanscet had a duty to him under the Texas Rules of Professional Conduct not to make any misrepresentations, but the Court of Appeals found that a non-client cannot rely on an attorney’s representation unless the attorney invites that reliance, such as when the attorney issues an opinion letter or some other type of evaluation.  Because that was not the case here, the Court upheld the trial court’s grant of summary judgment in favor of Blanscet.

Blankinship v. Brown

In July 2008, the Dean Group entered into a standard listing agreement agreement to sell Metal Systems, Inc, including the real estate owned by Metal Systems.  TDG sued Metal Systems in May 2010 for breach of contract and quantum meruit, and the trial court dismissed these claims on summary judgment.  TDG appealed.  On appeal, Metal argued that the contract claim failed because TDG could present no evidence of a valid, enforceable contract on the ground that the listing agreement included real estate and TDG presented no evidence that it held the real estate licenses required by the Texas Real Estate License Act.  The Court agreed, finding that TDG did not “allege, prove, or create a fact issue that it was a real estate license holder at the time the Agreement was signed.”  It therefore upheld the trial court’s dismissal.

Dean A. Smith Sales v. Metal Systems

This breach of contract case arises out of an inverse condemnation action filed by Continental Foods against the state of Texas.  In that action, Continental alleged that the state had acquired property for a highway expansion and did not compensate it for its loss of value under its lease with Rossmore Enterprises.  The Court of Appeals ruled that the lease’s language stated that the lease terminated upon condemnation, leaving Continental with no compensable interest to protect.  Continental then sued Rossmore arguing that its landlord had breached the lease in two ways: (1) by not requiring the state to proceed with the condemnation in a Special Commissioner’s hearing so Continental could receive compensation and (2) by not tendering to Continental its share of the condemnation proceeds.  Rossmore moved for summary judgment on the ground that the doctrine of collateral estoppel barred Continental’s claim because its right to condemnation had already been decided.  The Court of Appeals disagreed, holding that “[n]othing in our prior opinion determined the parties’ obligation under the Master Lease before condemnation.”  Accordingly, Continental’s claim was not barred by collateral estoppel.

Continental Foods v. Rossmore Enterprises

Turner Brothers Trucking sued Kristal Baker, S/W Quality Hay and others in 2007 for breach of contract, fraud, and DTPA violations, among other things.  The suit stemmed from the brokerage agreement between Baker and Turner Brothers under which Turner would invoice customers, receive payment and pay Baker a commission.  S/W Quality was one of Baker’s customers who refused to pay Turner a commission.  Turner won on summary judgment and was awarded damages and attorneys fees.  But in March 2010, Turner sought an application for turnover so it could join the former managers and members of S/W Quality because those managers purportedly paid for and received life insurance proceeds with company funds. Turner thought this money should be available for creditors like itself.  The court agreed with Turner and required S/W to turnover two computers, a tractor and a pickup truck, but refused to appoint a receiver to pursue legal claims against S/W’s managers.

On appeal, Turner challenged the court’s refusal to appoint a receiver as well as its conclusion that Turner was not entitled to attorneys’ fees.  The Court of Appeals upheld the trial court’s refusal to appoint a receiver to go after the manager of S/W because, it held, “Texas courts do not apply the turnover statute to non-judgment debtors.”  The Court, however, reversed the trial court’s holding on attorneys fees, noting that “a judgment creditor who obtains turnover relief is entitled to reasonable costs, including attorneys’ fees.”

Turner Bros v Baker

 

Charles Searock sued his former employer, Tactical Air Defense Services, Inc. and Gary Fears, for, among other things, breaching his employment contract.  After the defendants filed an answer and participated in discovery, their attorney withdrew as counsel and they didn’t show up for trial.  The trial court entered a post-answer default, but Fears and TADS moved for a new trial because, they claim, they never got notice of the trial date.  This motion was denied. The Court of Appeals reversed the trial court because affidavit evidence proved that neither Fears nor TADS received notice of the trial setting.  Moreover, the notice of trial provided to counsel for Fears and TADS before he withdrew cannot be imputed to them because the record lacked evidence indicating that the withdrawing counsel took efforts to inform his clients of the trial date before he withdrew.

Tactical Air Defense v. Searock

In this case (Gonerway v. Corrections Corporation of America, et al.), the plaintiff–an inmate at the privately run correctional facility run by defendant CCA–claimed that defendants negligently failed to provide adequate medical care when she developed an severe eye infection as a result of the cosmetic contact lenses she wore while she was incarcerated.  CCA moved for summary judgment, which the trial court granted.  The Court of Appeals affirmed the trial court’s ruling, finding that CCA’s contract with the Texas Department of Criminal Justice did not give rise to a duty to provide medical care to inmates because that duty was outsourced to another entity, the Correctional Managed Health Care Committee. The Court also rejected Gonerway’s additional claim that CCA owed her a duty to insure that she received timely medical care because Gonerway’s own testimony indicated that CCA did, in fact, provide care shortly after it was informed of Gonerway’s complaints.

Gonerway v. CCA, No. 05-11-01524-CV

In this forcible detainer action, Jackqueline McDaniel (the mortgagee in default) challenged the trial court’s decision to grant HSBC’s (the purchaser at the foreclosure auction) possession of the premises because, according to McDaniel, HSBC did not present any evidence of its landlord-tenant relationship with her. But HSBC had introduced the deed of trust and the foreclosures sale deed, and together these instruments demonstrated that (1) the landlord-tenant relationship, which arose following McDaniel’s default and (2) evidence that HSBC purchased the property at a public auction. Thus, HSBC established its right to immediate possession of the property and the Court of Appeals affirmed the trial court’s judgement.

McDaniel v HSBC Bank

 

AdvoCare employed Plaintiffs as distributors to sell its products.  Under this distribution arrangement, these distributors earned commissions based on products sold both to consumers and to other distributors “down line.”   But AdvoCare could choose not to renew these distributorships every year, and it retained the right to terminate its distributors if they breached certain conditions.  When AdvoCare terminated each of the Plaintiffs for failing to comply with these very conditions, Plaintiffs brought claims for breach of contract, fraud, unjust enrichment, and for violations of the Deceptive Trade Practices Act.  The jury found for the Plaintiffs on the DTPA claim only.

AdvoCare appealed because, it argued, the Plaintiffs were not “consumers,” and the DTPA expressly limits recovery to situations where (1) consumers acquired goods or services by purchase or lease and (2) the goods or services purchased or leased form the basis of the complaint.  Examining the record, the Court of Appeals found that Plaintiffs’ claim rested almost entirely on the wrongful termination of their distributorships.  Indeed, the Court pointed out that “the sole basis for the claimed damages is the value of each distributorship as of the date AdvoCare terminated their distributorships.”  Because “[n]either the termination nor the lost value is tied to any alleged defective product or service,” the DTPA claim fails.

Advocare International LP v. Ford, et al. No. 05-10-00590-CV

Upon dismissing appellant’s groundless DTPA claim, the trial court awarded appellee $42,500 in attorney’s fees.  On top of that, the trial court ruled that appellant had to deposit $36,000 to supersede the judgment.  This ruling was based on the trial courts finding that the attorney’s fees it awarded to appellee were compensatory damages requiring a supersedeas bond. The Court of Appeals disagreed, holding that attorney’s fees are not compensatory damages and thus do not necessitate the identified security.

Lopez v. RS Clark, No. 05-12-00868-CV

On cross-motions for summary judgment, the trial court granted summary judgment for the appellant on count one and for apellee on counts two and four, but said nothing about counts three and five other than invoking a Mother Hubbard clause in the order, which reads: “All relief requested and not expressly granted herein is hereby denied.”   With its order, the trial court granted appellee permanent injunctive relief, exonerated appellee’s bond, and taxed costs against appellant.

On appeal, the Court avoided the substantive issues and only addressed its own jurisdiction.  Following Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), the Court held that the trial court’s order was not “final” because it neglected to address claims three and five, and because the Mother Hubbard clause and the permanent injunction did not suffice to render those claims final.

Auroura Loan Services v. Aurora Loan Services, LLC

Just before trial, Victor Enterprises Incorporated (“VEI”) moved for recusal.  The trial judge, however, denied the motion as untimely.  The case proceeded to trial, and the judge entered a final judgment in favor of Defendant, Clifford Holland.  The Court of Appeals reversed the recusal decision and voided the judgment.  Turning to the text of TRCP 18a, the Court unequivocally found that “in the event a recusal motion is filed, a trial judge must promptly enter one of two orders which are permitted:  recusal or referral.”  Because the trial judge denied the motion as untimely, she did not follow either of the two permitted courses.  Thus, she did not comply with Rule 18a and abused her discretion.

Victor Enterprises v. Clifford Holland, No. 05-10-01592-CV

FedEx sued Smith Protective Services for breaching the parties’ services agreement after thieves cut holes in the fences on its property and looted several of its trucks. The trial court found that Smith had, indeed, breached the parties’ agreement. It found that the thieves had cut two holes in the shipping terminal’s perimeter fence over a period of two days (with a third cut several days later), through which the thieves entered and “off-loaded” valuable cargo by hand. FedEx investigated, finding that, while the contract purportedly required it, none of the guards present during the heist knew that one of their duties was to conduct patrols. FedEx also opined that the thieves knew about this failure and took advantage of it.

On appeal, Smith challenged the conclusion that the parties’ contract required its guards to patrol the premises. The court of appeals, however, pointed to express language in the contract along with testimony by several FedEx employees to refute this claim, and, accordingly, upheld the trial court’s findings of fact and conclusions of law.

Smith Protective Services v FedEx, No. 05-11-00715-CV

In this divorce proceeding, the parties negotiated and signed (but did not file with the Court) a Final Divorce Decree.  Over the next year, the parties continued to negotiate the Final Decree even though they had already finalized and signed a prior version.  These additional negotiations broke down and the parties could not arrive at a new agreement, so one party filed the previously signed version with the court, which the judge accepted.

When the trial court refused to set aside the Final Decree, this appeal followed, with the party challenging the Final Decree arguing that the agreement did not meet Rule 11’s requirements because it was not filed before it was signed by the trial judge.  The Court of Appeals disagreed, holding that “[a]lthough rule 11 requires the writing to be filed as part of the record, the rules does not state when the writing must be filed.”  According to the Court, Rule 11 only requires the agreement to be filed before it is sought to be enforced.

Markarian v Markarian, No. 05-11-01076-CV

In this shareholder challenge to the pending merger of MetroPCS, Deutsche Telekom and T-Mobile, the plaintiffs sought a TRO enjoining the defendants’ use of several “deal protection devices,” including “Poison-Pill Lock-Up” and “Force-the-Vote” provisions.  The trial court granted the TRO, agreeing with the plaintiffs that these deal protection devices irreparably harmed shareholders by, among other things, warding off other potential acquirers.  Defendants petitioned for a writ of mandamus to vacate the TRO because the trial court failed to address their motion to dismiss or stay the action based on the forum-selection clause in MetroPCS’s bylaws, which mandated Delaware as the proper forum.  The Court of Appeals found that because the motion to dismiss or stay was filed before the request for a TRO, the trial court abused its discretion by granting injunctive relief without first ruling on the forum-selection clause issue.  Citing the Texas Supreme Court’s holding in In re AutoNation, the Court of Appeals found that “subjecting  a party to trial in a forum other than that agreed upon and requiring an appeal to vindicate the rights granted in a forum-selection clause” warrants mandamus.  Accordingly, the Court vacated the TRO and stayed the case until the motion to dismiss could be decided.

In re MetroPCS, No. 05-12-01577-CV

In this Memorandum Opinion, the Court of Appeals addressed whether it may exercise jurisdiction over an order granting an interlocutory summary judgment order for permanent injunctive relief, but which did not dispose of the defendant’s counterclaims. The Court refused to exercise jurisdiction, holding that “[a] summary judgment that fails to dispose of all claims, even if it grants a permanent injunction, is interlocutory and unappealable.”  Notably, however, the court pointed out that the appellant could have tried to challenge the injunction as actually being an appealable temporary injunction, but the appellant had not attempted to use that procedure.

Young v. Golfing Green Homeowners Ass’n, Inc., No. 05-12-00651

This appeal arises from a jury verdict in favor of three brothers who were hit by a tractor-trailer while they were changing a flat tire on the side of the freeway. Among other things, the jury awarded damages for lost wages and loss of earning capacity.

On appeal, the central issue was whether federal law preempts the ability of undocumented workers, like the plaintiffs, to recover lost wages. The defendants argued that the federal Immigration Reform and Control Act preempts the lost wages jury award because the U.S. Supreme Court has determined that the “IRCA has preempted the field of regulation of employment of illegal aliens.” Arizona v. United States, 132 S.Ct. 2492 (2012). The court, however, rejected this argument, holding instead that “Congress’s power to regulate immigration cannot imply that every state law that might impact or touch on an undocumented alien is necessarily preempted.” It further held that nothing in the IRCA indicates that Congress intended this statute to supersede state law on this issue.

Grocers Supply, Inc. v. Cabello, No. 05-10-00843-CV

Texas Pallet Operations, LP rented commercial property form Ostrovitz & Gwinn, LLC  (“O&G”).  As required by the lease, Texas Pallet obtained property insurance from First Specialty Insurance Company.  In 2006, a fire damaged the property and O&G sought payment from First Specialty for the loss.  But First Specialty refused because, it argued, O&G was not a party to the insurance contract.  O&G sued, and the trial court dismissed the case on summary judgment.

On appeal, O&G’s primary argument was that dismissal was unwarranted because it had standing to enforce the insurance contract as a third-party beneficiary.  Specifically, O&G contended that the “Loss Payable Provisions” of the policy identified O&G by name as a “Loss Payee,” thus solidifying its status as a third-party beneficiary.  The Court disagreed.  Assessing the policy’s express language, the Court found that “the policy does not clearly and fully demonstrate an intention by [Texas Pallate] and First Specialty to contract for the direct benefit of [O&G].”  It then proceeded to rejected the other issues raised by O&G and affirm the trial court’s decision.

Ostrovitz and Gwinn, LLC v. First Specialty Insurance Co., No. 05-11-00143-CV

RTKL, an architecture firm, worked for Woodmont Investment Co., a real estate developer.    In a prior case, Woodmont sued RTKL, seeking a declaratory judgment that it did not owe RKTL its remaining fees because the services agreement between the parties was invalid. That case settled for $700,000, with $140,000 to be paid to RTKL up front and the rest to be paid to it in monthly installments of $10,000.  As the parties negotiated the settlement, it was determined that the entity paying the settlement would be Woodmont TCI Group XIII, LP (“XIII”), another Woodmont-related entity that developed one of the properties for which  RTKL provided services.  Several months after the settlement agreement was signed, however, XIII filed for bankruptcy.

When RTKL realized the XIII had no cash to pay the settlement it sued TCI (XIII’s parent) for fraud and breach of the settlement agreement.  TCI moved for summary judgment on the breach of contract claim, which the trial court granted, and the jury found in TCI’s favor on the fraud claim.  RTKL appealed the denial of summary judgment.   The Court of Appeals examined the language of the release entered into as part of the settlement and found that TCI, as XIII’s parent, fell within its terms.  It then found that the release included the claim related to the settlement agreement.  Accordingly, the court affirmed the trial court’s summary judgment decision.

RTKL Associates v. Transcontinental Realty Investors, Inc., No. 05-11-00786-CV

In 2008, CNC hired Sunshine Jespersen to work as a leasing agent and provide on-site management services to Sweetwater Ranch Apartments.  Apparently seeking a shorter commute, Sunshine took advantage of a rent discount provided as an employment perk and moved into the Sweetwater Ranch Apartments.  But the job turned out to be arduous, requiring long work weeks and excessive overtime.  And, shortly after starting, Sunshine discovered she was pregnant with twins.  The parties dispute what happened next.  According to Sunshine, her doctor told her she needed to work less, so she asked for a reduction in hours.  When her boss demurred, she either quit (according to CNC) or asked for three weeks of medical leave (says Sunshine).  Sunshine then sought to come back, but CNC apparently had already filled her position.  While the facts surrounding the termination/resignation/rehiring are muddy, what is clear is that CNC/Sweetwater tried to raise her rent because she was no longer entitled to the employee rent discount.  Sunshine did not like this and tried to move out, but as she was trying to move out CNC/Sweetwater changed the locks, posted a notice of abandonment, and charged Sunshine for cleaning and repairing the apartment.

Sunshine sued.  She claimed pregnancy and disability discrimination, and that CNC/Sweetwater breached the lease by locking her out.  The trial court, however, rejected her motion for summary judgment and granted CNC/Sweetwater’s corresponding motion.  On appeal, the Court found that Sunshine had produced no direct evidence of pregnancy discrimination.  It also found that she produced no indirect evidence of discrimination because she could not show that she was replaced by someone outside the protected class since one of her replacements was, in fact, pregnant.  The court also upheld the trial court’s decision on the breach of the lease, finding that, under the lease’s terms, she had abandoned the apartment because she had previously moved out most of her belongings.

Sunshine Jespersen v. Sweetwater Ranch Apartments

In this Memorandum Opinion, the appellant, a director of a bankrupt company, was found liable for the amount the bankruptcy court required his company to distribute to a creditor.  Strangely, this personal liability was based on Chapter 171 of the Tax Code, which provides that if a corporation forfeits its “corporate privileges” for failure to pay its franchise taxes, each director or officer of the corporation is liable for any debt of the corporation.  While the appellant argued that this provision only applied to tax liabilities, the Court of Appeals affirmed the trial court’s decision and held that “[n]othing in the wording of this statute suggests that personal liability of officers and directors is limited to the tax liability.”

Yigal Bosch v. Cirro Group, Inc., No. 05-11-01625-CV

Green Mountain Oil and Gas Corporation sought to “flip” its oil leases by assigning them to EOG Resources at a higher price than it had paid for them.  After it had signed the assignment, however, EOG discovered that the lease assignments created an additional overriding royalty that reduced the mineral estate amount.  Because the leases included a draft–and because each draft provided that if the draft was not paid within 20 banking days, the bank was to return it to the payee and all further obligations of the parties would terminate–EOG decided to decline payment of each of the drafts and terminate the contract.   Green Mountain sued, seeking enforcement of the assignment.  The Court of Appeals, however, found that, under the terms of the draft, “EOG had an absolute right not to pay the draft.”  Accordingly, it did not breach the contract when it declined the draft regardless of whether EOG’s agent had established good title.

Green Meadow Oil & Gas Corp. v. EOG Resources, Inc., No. 05-11-00291-CV

In this Memorandum Opinion, the Court of Appeals addressed who has the authority to determine whether arbitration should be compelled: a court or an arbitrator.  The Court noted that, while, as a general matter, the courts decide whether the parties have agreed to arbitrate an particular issue, “the parties may agree to submit the substantive issue of arbitrability to arbitration.”  In this case, the relevant arbitration provision included the following clause: “Whether such Dispute will be subject to arbitration will likewise be determined in such arbitration as will the determination as to whether all procedural conditions precedent to arbitration have been satisfied.”  According to the Court, this provision presents “clear an unmistakable evidence of the parties’ intent to delegate arbitrability to the arbitrator.”  The Court, however, expressed no opinion on whether the plaintiffs’ claims actually should be submitted to arbitration because that, of course, was an issue for the arbitrator to decide.

Continuum Health Services, LLC v. Sheila Cross, No. 05-11-01520-CV

Richardson Hospital Authority (“RHA”) hired Plaintiff, Placidus Duru, as a nursing assistant.  But when Duru was indicted for sexually abusing a patient, the hospital terminated him.  Four years later, when the prosecution dismissed the criminal case against Duru, he turned around and sued RHA for malicious prosecution, business disparagement, breach of contract and unjust enrichment.  RHA moved to dismiss these claims for lack of subject matter jurisdiction, but the trial court denied their motion for all claims except malicious prosecution.  The Court of Appeals reversed the trial court’s decision to dismiss the business disparagement, breach of contract and unjust enrichment claims (the malicious prosecution claim’s dismissal was not appealed), finding that the Texas Tort Claims Act did not waive the sovereign immunity enjoyed by RHA, a public institution, because Duru’s pleadings “affirmatively negate jurisdiction.”

Richardson Hospital Authority v. Placidus Duru, No. 05-12-00165-CV

Carment Llerena, a former bookkeeper and secretary for Defendant North Texas Trucking, sued her former employer for negligence and fraud related to her termination.  The jury found North Texas liable and rendered judgment in Llerena’s favor, and the trial court overruled North Texas’s motion for judgment notwithstanding the verdict.  On appeal, however, the Court of Appeals reversed the trial court’s decision and found that Llerena should instead take nothing from North Texas on both claims.

The Court’s opinion turned on two issues.  First, the Court rejected Llerena’s fraud claim. While Llerena argued that she was fraudulently induced to accept a job with defendant based on North Texas’ representation that it had workers’ compensation insurance, the Court found that she had presented no evidence of “what she would have received had North Texas provided workers’ compensation insurance.”  Second, the Court rejected Llerena’s contention that her former employer caused her to work in unsafe conditions that led to her carpal tunnel syndrome, finding instead that she presented “no evidence that any modification of her work environment or work requirements would have prevented or lessened her injury.”

North Texas Trucking v. Carmen Llerna, NO. 05-10-01061-CV