Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

The Texas Supreme Court  recently reviewed an eminent domain, State v. Central Expressway Sign Associates, where the trial court excluded the state's expert report on the fair market value of real property because he failed to account for the revenue generated by the use of the property. 

Specifically, the State of Texas condemned a 3,950-square foot parcel of land in Dallas owned  by Central Expressway Sign Associates (CESA) that was needed to improve a highway interchange.  CESA leased the land to Viacom Outdoor, Inc., which in turn managed a billboard on the property.  The sign allegedly generated $168,000 a year in advertising revenue. 

In a pretrial hearing, the trial court excluded the State's expert witness on the value of the property because it concluded the expert's failure to account for billboard advertising revenues in his appraisal made his report unreliable. 

On appeal, the Texas Supreme Court found that the expert did not improperly exclude the revenue generated by the billboard from his estimate.  The court noted that too many variables impact revenue in addition to actual location, including proper permits, constructing, lighting, and employing personnel to sell advertising space and to place and remove the advertisements.  Moreover, the court concluded that because the testimony was directly related to the central issue in the case, the state suffered harm when the trial court excluded its witness.  Thus, the court reversed and remanded for a new trial.

The opinion can be found HERE.

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Ever heard of the continuing contract doctrine?  It's the sister of the continuing tort doctrine.  Both operate as an exception to the statute of limitations that allows a claimant to recover for contract breaches that occur after the accrual date. 

But can the continuing contract doctrine apply to contracts other than an installment contract?

This issue was before the Dallas Court of Appeals in the case Spin Doctor Golf, Inc. v. Paymentech, L.P.

In the case, Paymentech dangled a zero reserve for processing and monthly funds earned from credit card sales to entice Spin Doctor to contractually hire it to process Spin Doctor's credit card needs.  Later, Paymentech imposed a $7,000 reserve and stopped depositing credits in Spin Doctor's account.  After Spin Doctor's sales increased substantially, Paymentech imposed a daunting $940,000 reserve.  The reserve prevented Spin Doctor from maketing its products, and thus, its sales went south.  As you can imagine, Spin Doctor sued Paymentech for breach of contract.  

Paymentech successfully moved for summary judgment on the 4 year statute of limitations because Spin Doctor discovered the $7,000 reserve back on April 13, 2001, but didn't sue until April, 20, 2005.  Spin Doctor appealed claiming the continuing contract doctrine preserved its breach of contract claim.       

Should the continuing contract doctrine apply?

Yes.  Paymentech had contracted to pay Spin Doctor monthly payments for its credit card sales.  Even though Paymentech allegedly breached the contract on April 13, Spin Doctor continued to perform.  As a result, the court decided to treat the contract as continuing in effect so that if Paymentech  failed to make the monthly payments as it agreed after April 13, each failure constituted a new breach.  Thus, all breaches going back four years from April 20, 2005 were actionable.

Here is the opinion.

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The Houston (First) Court of Appeals held that a plaintiff cannot restart the clock on the 120-day deadline to serve an expert report pursuant to Chapter 74.  The plaintiff nonsuited its case prior to the expiration of the deadline.  The plaintiff refiled the suit and filed an expert report within 120-days of the new filing.  Relying on a prior decision, the court held:

"[A]llowing a plaintiff to re-start the period for serving an expert report by non-suiting his claim and then subsequently refiling the same claim effectively expands the expert report peiod well beyond 120 days, which is inconsistent with the policies and goals of the statute.

Consequently, the court of appeals affirmed the dismissal of the plaintiff's case.  The Court of Appeals' opinion in Runcie v. Estate of Dorothy Runcie can be found at this link. 

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