Leak Evidence = Triable Fact Issue

leaky faucetIn a time of much furor about “leaks” to the media, the Fifth Court addressed a more traditional form of “leak” in Allen v. State Farm Lloyds, reversing a directed verdict for the insurer in a coverage dispute about a homeowners’ “Water Damage Endorsement.” In a detailed opinion, the Court found that the plaintiffs’ experts made legitimate, non-conclusory points about whether home damage was caused by plumbing leaks, and thus whether “deterioration” occurred within the meaning of the Endorsement. In a footnote, the Court also reminds of the importance of moving to strike allegedly improper expert testimony, and continuing to assert the original objection as the testimony unfolds at trial. No. 05-16-0018-CV (Aug. 1, 2017) (mem. op.)

Harm, found.

alpha omegaAlpha Omega alleged that a law firm breached its responsibilities as an escrow agent. In ts findings of fact and conclusions of law, the trial court said: “11. Alpha Omega, Inc. did not prove by a preponderance of the credible evidence that a fiduciary relationship existed between it and the Defendants.” The Fifth Court disagreed, and then found harm because the trial court “did not evaluate the remaining elements of fiduciary breach under the proper legal standards” and “there was some evidence of the remaining elements of fiduciary breach, such that the trial court could have reached the opposite result had it not erred in finding 11.” Accordingly, it reversed and remanded. Alpha Omega CHL, Inc. v. Min, No. 05-15-00124-CV (June 16, 2016) (mem. op.)

A Quantum of Meruit

quantumA high-profile fee dispute led to holdings that (1) an attorney can recover in quantum meruit in connection with an oral contingent fee agreement, notwithstanding the other legal problems with such agreements; (2) legally sufficient evidence of the attorney’s “valuable compensable global settlement services” supported the verdict on his quantum meruit theory; (3) claimed error on the narrow scope of a fiduciary duty instruction was not preserved without a specific objection to the scope issue; and (4) the trial court did not abuse its discretion in refusing a spoliation instruction, when evidence showed that the destruction of the relevant emails resulted from a routine upgrade process.  Shamoun & Norman, LLP v. Hill, No. 05-13-01634-CV (Jan. 26, 2016).  The Court rendered judgment on quantum meruit.

How much precision does a summary judgment motion need?

precision chartDefendant won summary judgment, with a combination of no-evidence and traditional grounds, on fraudulent transfer claims.  Renate Nixdorf v. Midland Investors LLC, No. 05-14-01258-CV (Dec. 8, 2015) (mem. op.)  The Dallas Court of Appeals reversed, finding problems with what defensive matters were appropriately addressed by a no evidence summary judgment motion and what specific transactions were at issue, as well as proof of “reasonably equivalent value” that was conclusory.

Mistaken Nomenclature Negates Default Judgment

Deutsche Bank has won a restricted appeal to set aside a no-answer default judgment. The petition named the defendant as “DEUTSCHE BANK NATIONAL TRUST COMPANY, herein sued in its capacity as the Trustee for the Morgan Stanley ABS Capital 1 Inc., Trust 2006-NC5, Mortgage Pass Through Certificates, Series 2006-NC5.” But the clerk’s office issued a citation addressed to “Deutsche Bank National Trust Company as Trustee Company,” and that name was also used on the affidavit of service. Because the citation was addressed to the wrong party, the attempted service of process was invalid and the default judgment had to be set aside.

Deutsche Bank Nat’l Trust Co. v. Kingman Holdings, LLC, 05-14-00855-CV

Restricted Appeal Sets Aside Damages for Backyard Debacle

Sylvester Davis sued TexPro Construction Group after the contractor failed to complete a backyard construction project. When TexPro failed to file an answer, Davis sought and obtained a partial default judgment on liability. TexPro then answered, but Davis moved forward with a hearing to establish damages. TexPro did not appear at the hearing, and the trial court awarded judgment for $117,230 in compensatory damages, treble damages under the DTPA and $350,000 in exemplary damages. After blowing through the deadlines for an ordinary appeal, TexPro hired new counsel and filed a restricted appeal. The Court of Appeals held that there was no error on the face of the record just because TexPro’s registered agent had been served at a location different from the address listed on the citation. The Court also held that there was no error in the trial court’s decision to move forward with the damages hearing, since the filing of TexPro’s answer did not negate the previously-signed default judgment on liability. However, Davis’ testimony on damages was the full amount of the money paid to TexPro, without accounting for the value of the work that TexPro had actually performed. Because his affidavit testimony was conclusory in alleging that the work done was valueless, the Court of Appeals reversed and remanded for a new trial on damages.

TexPro Constr. Group, LLC v. Davis, No. 05-14-00050-CV

Land Rush Leads to Double-Leasing and a Viable Fraud Claim

JPMorgan, as Trustee of the Red Crest Trust, signed a letter of intent for Orca Assets to lease oil and gas properties in the Eagle Ford Shale. Unfortunately, JPMorgan had leased those same properties to GeoSouthern Energy six months earlier. GeoSouthern recorded its lease three days after Orca signed the letter of intent with JPMorgan, but Orca did not conduct any forward-looking title searches after the letter of intent. Orca proceeded to sign the leases a month later and promptly recorded them. GeoSouthern then contacted JPMorgan about the duplicate leases, and the bank promptly offered to refund Orca’s $3.2 million lease payment. Instead, Orca sued for $400 million in lost profits. At a Rule 166 pretrial conference, the trial court dismissed all of Orca’s claims, ruling that the leases unambiguously disclaimed any warranties, and that Orca could not establish justifiable reliance as a matter of law. The Dallas Court of Appeals reversed in part, holding that the disclaimers in the leases foreclosed Orca’s breach of contract claim, but not fraud and negligent misrepresentation.

Under the express language of the contractual disclaimer, Orca was to be “without recourse” under the lease if title to the oil and gas interests failed. That was sufficient to negate contract liability for JPMorgan’s failure to convey good title, but not fraud and negligent misrepresentation. Noting that the leases did not also include any provisions disclaiming reliance on any extra-contractual representations, the Court held that Orca could proceed with claims based on an oral representation that the properties in question were “open” for lease. In the course of that holding, the Court analyzes a number of other recent fraudulent inducement cases, leaving the distinct impression that courts are going to continue drawing some pretty narrow distinctions in the wake of the Texas Supreme Court’s Italian Cowboy opinion.

Orca Assets, G.P., LLC v. JPMorgan Chase Bank, N.A., No. 05-13-01700-CV


I Accept Your Offer and Ask for More

The appeal of an oil and gas dispute has led to a multi-million dollar swing in favor of the appellants. The district court had granted a $14 million summary judgment in favor of the seller of oil and gas interests located in New Mexico. The fact scenario is somewhat complex, but the essence seems to be that Three Rivers Operating Co. offered to sell its interests in five properties to MRC Permian Co. pursuant to a preferential purchase right provision in their joint operating agreement. MRC accepted that proposal, for a purchase price of just under $7 million, and further wrote that it was exercising a preferential right to purchase “one hundred percent (100%) of Three Rivers’ interest in the land comprising the Contract Area . . . .” Three Rivers responded to say that there were actually 10 properties for sale for approximately $14 million. MRC then wrote back that it was ready to move forward on Three Rivers’ original offer, but Three Rivers nevertheless concluded that MRC had agreed to buy all ten properties. On cross-motions for summary judgment, the district court entered judgment for Three Rivers, requiring MRC to specifically perform the $14 million deal. The Court of Appeals reversed and rendered judgment for MRC that there was only a $7 million contract for the original five properties.

Three Rivers argued that the initial $7 million offer had been made under a mistaken interpretation of the preferential purchase right clause, and that MRC did not accept that offer in any event because its acceptance letter was actually a counteroffer to buy all of Three Rivers’ interests covered by the JOA. The Court of Appeals disagreed, holding that MRC did not condition its acceptance of the $7 million offer on Three Rivers’ assent to sell any additional properties. So long as it is clear that the acceptance is positive and unequivocal, a contract is formed regardless of whether the offeree makes additional requests at the same time. And when Three Rivers offered to sell all 10 of its properties, that was not an acceptance of an offer by MRC to purchase “100%” of Three Rivers’ interests. MRC had not stated the essential terms of a contract, including purchase price, nor did MRC’s letter indicate any acceptance of a prior offer by MRC. Instead, Three Rivers’ $14 million offer letter was an independent offer of its own, and MRC did not accept it in the manner specified by Three Rivers. The Court of Appeals therefore reversed the trial court’s judgment, rendered judgment for MRC on the $7 million contract, and remanded for consideration of MRC’s costs and attorney fees.

MRC Permian Co. v. Three Rivers Operating Co., No. 05-14-00353-CV

On Barratry Remedies

The Court of Appeals has reversed a summary judgment in favor of the attorney defendants in a civil barratry case. The plaintiffs were victims of a pipeline explosion. Their case against the pipeline company eventualy settled, and the lawyers collected their 40% contingency fee. But the plaintiffs learned that they had actually been solicited by a private investigator working for their attorneys, so they sued to rescind the fee agreement and recover their contingency fees. The Court of Appeals agreed that rescission was an available remedy for barratry, and that the attorney defendants had not established their former clients would be unable to make counter-restitution for the benefits they had received from the lawyers.

Neese v. Lyon, No. 05-13-01597-CV

Mandamus Granted to Correct Denial of Dismissal on Special Exceptions

The Dallas Court of Appeals has granted mandamus to correct a trial court’s failure to grant special exceptions and dismiss the plaintiff’s claims against the settlor of a royalty trust. The Court held that a beneficiary of the trust had no authority to interfere with the trustee’s exercise of discretionary powers, concluding that the trustee acted within its discretion by refusing to sue the settlor on claims that were precluded by the terms of the trust instruments. Citing the “practical and prudential” mandamus standard of In re Prudential, the Court of Appeals held that mandamus relief was appropriate because allowing the plaintiff to proceed to trial on behalf of the trust would defeat the trustee’s right to control such litigation. But while the settlor of the trust was dismissed from the lawsuit, and the plaintiff could not sue the trustee on behalf of the trust, the Court held that the plaintiff should have the opportunity to amend her petition to sue the trustee solely on her own behalf.

In re XTO Energy, Inc., No. 05-14-01446-CV