Don’t Hop to DWOP

Enxeco Inc. v. Staley reversed a dismissal for want of prosecution, observing: “[T]he rules of judicial administration provide that civil non-jury cases should be brought to trial or final disposition within twelve months from the defendant’s appearance date. The administrative rules expressly recognize, however, that in complex cases or special circumstances ‘it may not be possible to adhere to these standards.'” (citations omitted). Here, such circumstances were presented by lengthy motion practice about forum and capacity issues. The Court gave little weight to plaintiff’s decision to not pursue discovery, noting that no rule compelled it to do so. No. 05-15-01047-CV (Jan. 9, 2017) (mem. op.)

Arbitration — what is “this Agreement”?

dumbledore-memeHeath’s employment agreement incorporated a confidentiality agreement, which in turn required arbitration of “any controversy, dispute or claim arising out of or in any way related to or involving the interpretation, performance or breach of this Agreement . . .” The Fifth Court noted that phrases such as “any controversy” are viewed, by federal and state courts, as “broad arbitration clauses capable of expansive reach.” It rejected the argument that the term “this Agreement” referred only to the confidentiality agreement, even though that agreement had a merger clause, because the arbitration clause refers to both claims “arising out of” and “in any way related to” the agreement. The Court also noted that the employment and confidentiality agreement were executed at the same time, and that its holding would apply fully to Heath’s tort claims as well. Advocare GP LLC v. Heath, No. 05-16-0049-CV (Jan. 5, 2017) (mem. op.)

Ambiguity defeats summary judgment

Directional Signs on a Signpost on White Background

The trial court granted summary judgment for the employer (oddly enough, a labor union) in a dispute arising from an employee’s benefits. The Fifth Court reversed, finding ambiguity in the underlying disability policy (noting, in particular, its interplay with separately-drafted legal instruments about the employment relationship – a recurring issue in disputes about arbitration clauses), and also finding related fact issues about whether the contract was unilateral or bilateral, and whether the employee had exhausted administrative remedies. The opinion recaps the major authorities about the role of contractual ambiguity in a summary judgment analysis. Videtich v. Transport Workers Union of Am., No. 05-15-01449-CV (Dec. 29, 2016) (mem. op.)

How to Merge

merge-ahead-signNations Renovations successfullly sued Hong in quantum meruit for unpaid construction work, and successfully defended against misrepresentation claims. The Fifth Court affirmed based on contract terms. As to the quantum meruit claim, it noted: “Because the four items [at issue] are listed only as recommendations and the other items of Extra Work claimed by Nations are not mentioned in the Contract, we conclude the Extra Work is not covered by the Contract. Therefore, the trial court properly submitted the quantum meruit question to the jury.” As to the misrepresentation claims, applying Italian Cowboy, the Court found this disclaimer of reliance to be effective: “17. ANY REPRESENTATIONS, STATEMENTS, OR OTHER COMMUNICATIONS NOT WRITTEN ON THIS CONTRACT ARE AGREED TO BE IMMATERIAL and not relied on by either party and do not survive the execution of this contract.” Hong v. Nations Renovations LLC, No. 05-15-01036-CV (Dec. 29, 2016) (mem. op.)

Contract not proved up; arbitration not required.

brasher_smithsonian_obvIn Heritage Numismatic Auctions v. Stiel, a dispute about the the sale of rare coins, the Fifth Court affirmed the denial of a motion to compel arbitration, finding that the relevant documents were not adequately proved up by the sponsoring affidavit. The witness “did not testify that the documents in Exhibit F were ‘true and correct’ copies of the contracts or otherwise state that they were the originals or exact duplicates of the originals.” While the affidavit began with the phrase, “The facts contained herein are true and correct,” the Court held that “[t]he trial court could interpret this statement as asserting the factual averments in the affidavit were true and correct but not asserting the documents in Exhibit F were the originals or exact duplicates of the originals as required by Rule 902(10)(B)(2).” Finally, from a general description of the documents as “the various Terms and Conditions . . . ,” the Court held that “[t]he trial court could have concluded that [the witness’s] statement did not constitute testimony that the documents in Exhibit F were the originals or exact copies of the contracts.” No. 05-16-00299-CV (Dec. 16, 2016) (mem. op.)

No benefit from benefits lawsuit

dpfpsquarelogo_copyIn a technical but financially critical decision, Eddington v. Dallas Police & Fire Pension System, the Fifth Court held that adjustments to the future interest rate paid on accounts established under a pension plan, sponsored by the beleaguered Dallas Police & Fire Pension system, did not violate the prohibition on benefit reductions contained in article XVI, section 66 of the Texas Constitution. No. 05-15-00839-CV (Dec. 13, 2016). Of general interest, a component of its analysis reviewed when a federal Fifth Circuit opinion about state law matters will be followed in state court.

Mandamus: Try, Try Again.

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

When is enrichment unjust?

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