The Twelfth Court of Appeals recently held that lack of consideration is an affirmative defense that must be plead.  In this case involving a will contest, the court reversed an order granting a no-evidence motion for summary judgment on the basis that the agreement at issue lacked consideration.  The court ruled that consideration for a written instrument is presumed.  The Court also held, however, that lack of consideration is an affirmative defense.  Thus, the court concluded, it was improper for a movant to utilize a no-evidence motion regarding a claim on which the movant has the burden of proof.  The court’s opinion in Burges v. Mosley can be found here. 

In my opinion, there is a problem with treating lack of consideration as an affirmative defense.

Continue Reading Lack of Consideration Revisited

Attorney’s Fees for travel time are recoverable under Chapter 38 of the Texas Civil Practice and Remedies Code, according to the San Antonio Court of Appeals.   In Wilkerson v. Atascosa Wildlife Supply, Atascosa sought recovery of attorney’s fees inclusive of $5,500 for travel time.  Atascosa offered evidence that the travel time was reasonable and necessary considering the distance traveled.  The evidence also showed that he billed only one-half of his rate for 36 hours of the travel time in which he was driving and not actively working on the case.  After the trial court granted Atascosa’s attorney’s fees, Wilkerson appealed.

The court of appeals observed that it could find no Texas case precluding an award of attorney’s fees that includes travel time.  Based upon the evidence presented, the court concluded that there was nothing in the record showing the award of attorney’s fee for travel time was unreasonable or arbitrary and the court affirmed the judgment.  The court’s opinion may be found here.  Wilkerson has now been filed in the Texas Supreme Court.  The docketing information can be found here.

The Houston (Fourteenth) Court of Appeals recently held that a trial court abuses its discretion if it conditions a trial setting on the payment of sanctions.  Here, after a plaintiff and his attorney were sanctioned $45,000 and $5,000, respectively, they challenged the sanctions order by mandamus.  In its memorandum opinion, the court of appeals began by holding that because the plaintiff and his attorney did not claim that the sanctions threatened their ability to continue the litigation, they had an adequate remedy by appeal and, thus, were not entitled to mandamus relief with respect to the sanctions.

In addition to awarding sanctions, however, the order set the trial for the "next available trial date following payment of the fees in full as ordered herein."  Citing precedent, the court held that "[a] sanctions award that impedes the prosecution of the case warrants extraordinary relief."  Accordingly, the court of appeals conditionally granted mandamus and ordered the trial court to delete the language in the sanctions order that conditioned the trial setting on the payment of sanctions.  The court’s opinion in In re Gawlikowski can be found here. 

The Dallas Court of Appeals has held that "an allegation that a provision in a contract is void, unenforceable, or unconscionable is a matter in the nature of an avoidance and must be pleaded."

In Parks v. Developers Surety & Indemnity Co., Developers Surety and Indemnity Company sued Robert Parks, Jo Ann Parks, and Brinkman Construction on a written indemnity agreement, which had been executed in connection with a surety bond Developers issued on a construction project for the City of Fort Worth.  Developers filed a motion for summary judgment asserting that it conclusively established that the defendants were jointly and severally liable for $371,245.81.  The trial court granted Developers’ motion for summary judgment and the defendants appealed.

On appeal, the appellants (formerly defendants) argued for the first time that a provision in the indemnity agreement providing that evidence of an itemized statement of claims or loss paid is prima facie evidence, was unconscionable and void.  The court of appeals first holds that the trial court was entitled to rely upon the contract provision because it was part of the summary judgment record and it did not have to be specifically brought to the trial court’s attention.  The court also holds that the appellants’ allegation that the contract provision was void, unenforceable, or unconsctionable is a matter in the nature of avoidance and must be affirmatively pleaded under Civil Procedure Rule 94.  Because it was not raised in response to the motion for summary judgment, the court holds that it could not be considered.  The court’s opinion may be found here.

This result regarding the affirmative defense is probably correct, however, I question the citation to Shoemake v. Fogel, Ltd., which is an old case of mine.  I didn’t recall the particular ruling referenced by the Dallas Court of Appeals opinion, so I went back to look at it and refresh my memory.   Shoemake involved a failure to plead parental immunity as an affirmative defense and the Supreme Court actually holds that a failure to affirmatively plead parental immunity does not waive the defense.  In fact, the opinion expressly states "Rule 94’s requirement of pleading is not absolute."  To the extent the opinion is applicable, it probably supports the opposite conclusion from the one reached in the Parks opinion.

At least that’s how the Texas Supreme Court’s version of Matthew 7:13 reads.  In a per curiam opinion, the Court recently demonstrated its vigilance in policing overly-broad discovery orders.  In this product liability case, the plaintiff sought all documents of consumer complaints regarding "the sidestep on any model backhoe."  John Deere objected to the request as overly broad.  The trial court narrowed the request to models with step assemblies similar to the allegedly defective model, but did not impose a reasonable time limit.  The Court reaffirmed that discovery orders compelling production must set reasonable time limits and that "[a]n order that compels overly broad discovery is an abuse of discretion for which mandamus is the proper remedy."  Accordingly, the Court granted the petition and vacated the trial court’s discovery order to the extent it failed to set a reasonable time limit.  The Court’s opinion in In re Deere & Company can be found here. 

The Appellate Law Section of the Dallas Bar Association will have its final meeting of the year on Thursday, December 17th, at noon at the Belo Mansion.  Kirsten M. Castañeda of Locke Lord Bissell & Liddell will present an United States Supreme Court Update.  Also, as this is the annual business meeting, election of officers for 2010 will take place.

 

In the recent case, Rodriguez v. Crutchfield, decided by the Dallas Court of Appeals, we learn the importance of clearly evaluating all the parties we think may have liability and the importance of considering the statute of limitations in that evaluation.

In the case, Richard Rodriguez, a temporary worker driving a forklift for Dallas Transfer Warehouse Co. was injured on February 4, 2005, while unloading a trailer owned by P & H Transportation.  The accident happened when P & H employee/driver, Milton Crutchfield, pulled the trailer away from the dock causing the forklift which Rodriguez was operating to fall.  Rodriguez received workers compensation beneifts from ALEA North American Insurance Co. 

ALEA then sued Crutchfield and P & H for subrogation.  Rodriguez, on the same date, sued Dallas Transfer and the cases were consolidated.  Crutchfield was never served.  Dallas Transfer got out on summary judgment (presumably under the exclusive remedy provision of the workers comp statute) and ALEA nonsuited Dallas Transfer and  P & H.

On April 22, 2008, Rodriguez attempted to amend his petition and sue Crutchfield and P & H.  The trial court granted summary judgment in favor of Crutchfield and P & H based on the statute of limitations.  The Dallas Court of Appeals affirmed as to Crutchfield because he was never served within the limitations period and Rodriguez did not comply with the due diligence requirement for service.  The Court also granted summary judgment as to P & H because the only claims against it were brought by ALEA and were dismissed with prejudice on January 30, 2008.  Texas law holds that when a case has been refiled following dismissal, the statute of limitations is calculated at the date of refiling, which in this case was well after the limiations period passed. 

It’s surprising that Rodriguez did not sue Crutchfield and P & H when it sued Dallas Transfer.  Once a plaintiff collects workers compensation, it’s hard for them to avoid the exclusive remedy provision, which bars negligence suits against employers.  Moreover, it appears from the case that if Rodriguez had a negligence claim against anyone, it would be P & H and Crutchfield.  Only subrogation claims were filed against P & H and Crutchfield.  This case demonstrates the need to anticipate suing all parties at the outset of litigation and to be weary of the statute of limitations if you do not.

You can read the opinion HERE.

 

Governor Perry has made two recent appointments to our intermediate appellate courts.

Today, he appointed Lana Myers to the Fifth District Court of Appeals at Dallas.  Myers has served as an administrative judge for the Dallas County Criminal Criminal courts.  Myers will fill the place on the court that opened up when Justice Carolyn Wright was appointed to Chief Justice of the Dallas Court of Appeals.  The Governor’s press release regarding the appointment may be viewed here.

The Governor also appointed Tracy Christopher to the Fourteenth District Court of Appeals at Houston.  Christopher was previously Judge of the 295th District Court of Harris County.  Christopher fills the place on that court, which opened up when the Governor appointed Justice Guzman to the Texas Supreme Court.  To view the Governor’s press release regarding this appointment, see this link.

Both justices will stand for election in 2010.

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.