Recent Opinions
Employment. The plaintiff worked for the
Probation Department. On June 7, 2006, she was
terminated. Plaintiff filed suit contending that her
termination was in retaliation for her written
complaints in the previous two weeks about a gender-
based hostile working environment violative of the
Texas Commission on Human Rights Act. The Court
of Appeals affirmed a summary judgment for the
employer holding that there was no evidence that the
plaintiff was engaged in a protected activity. The Court
held that that there was no suggestion in her
complaints that her co-worker was motivated by
gender or other protected characteristics and,
therefore, it could not be inferred that she was
complaining of discrimination, a protected activity.
Because the plaintiff failed to produce evidence of a
prima facie case of retaliation, the burden did not shift
to the employer to demonstrate a legitimate
nondiscriminatory purpose for the termination.Martinez v. Wilson
County, et al, __ S.W.3rd __ (Tex. App. - San
Antonio 1/13/10). PDF
Trade Secrets. King signed an "Agreement
Concerning Propriety Information" at the inception of
his employment . He agreed not to
disclose "customer contacts, potential customers . . .
[and] prices" which he obtained during his
employment except for those "generally available
through publication." King later resigned and went to
work for a competitor. The employer sued King for
misappropriation of trade secrets and breach of
contract over his use of client-contact information and
pricing information specific to individual clients. The
Court of Appeals affirmed a summary judgment for
King holding that King's uncontradicted testimony that
he obtained the client contact information prior to his
employment defeated the trade secret and breach of
contract claims. Weighing the various factors
determinative of whether information qualifies as a
trade secret, the Court held that the customer-specific
pricing information did not rise to the level of a trade
secret and, further, was not protected from disclosure
by the contract. General Insulation
Company v. King, __ S.W.3rd __ (Tex. App.-
Houston [14th] 1/26/10). PDF
Insurance. On November 22, 2003, a bank
loaned $137,513, secured by a deed of trust, to
refinance a pre-existing mortgage on a home. A title
company issued the bank a mortgagee title insurance
policy in connection with the loan. Shortly thereafter
the homeowners filed bankruptcy. The bankruptcy
trustee instituted an adversary proceeding against the
bank alleging that the deed of trust was a preferential
transfer. The bank and the trustee entered into an
agreed judgment whereby the bank surrendered its
interest in the home and became an unsecured
creditor, ultimately receiving a $25,910.86
disbursement from the bankruptcy estate. Almost four
months after the entry of the agreed judgment, the
bank filed a claim on its title insurance policy for the
difference. The insurer denied the claim on the
grounds that the bank failed to comply with the notice-
of-suit provision in the policy. The bank filed suit on
the policy and the trial court granted the insurer a
summary judgment. The Court of Appeals affirmed
holding that the insurer was prejudiced as a matter of
law by the bank's failure to notify it of the adversary
proceeding because it was denied the opportunity to
defend against the claims of the bankruptcy trustee.
Washington
Mutual Bank v. Commonwealth Land Title Ins.
Co., __ S.W.3rd __ (Tex. App. - Corpus Christi
1/14/10).
Contracts/Damages. A buyer contracted to
purchase the sellers' home for $370,000 in July,
2002. In reliance on that agreement the sellers
contracted to buy a replacement home. When the
buyer decided not to buy the home, the sellers -
whose option period had expired - had to cancel their
purchase and lost their earnest money and inspection
fees on the replacement home. After the sellers sold
their home in October 2003 for $339,000 they brought
suit against the buyer for the difference in the two sale
prices and for their lost earnest money and fees. The
trial court found for the sellers. The Court of Appeals
reversed, holding that although the sellers were
entitled to recover the difference between the contract
price and the property's market value at the time of the
breach they had failed to prove the latter. The seller's
reliance on the subsequent sale price to establish the
property's market value fell short because they failed
to prove that the October 2003 sale occurred within
a "reasonable time" or that the October 2003 sales
price reflected the property's value at the time of the
buyer's breach more than a year earlier. The Court
held, however, that the sellers were entitled to recover
the earnest money, option fee and inspection costs
they lost when they had to break their contract for the
replacement house. Barry v. Jackson,
__S.W.3rd __ (Tex. App. -Austin 1/15/10). PDF
Contracts/UCC. A retailer bought tile and
laminate from a manufacturer. After the retailer
received complaints that the tile failed to adhere it
sought a return and reimbursement for the unsold tile.
The manufacturer brought suit for the unpaid balance
and the retailer counterclaimed. The trial court found
for the retailer and rendered judgment requiring the
manufacturer to pick up the unsold inventory and
reimburse the retailer for the cost of the unsold tile
and the warranty claims. The Court of Appeals
affirmed, holding that the retailer properly rejected or
revoked acceptance of the nonconforming tile within a
reasonable time. The Court held that, under the UCC,
a good is "defective" for purposes of rejection or
revocation when it fails to conform to the contract
between the parties. A product that breaches the
implied warranty of merchantability fails to conform to
the contract. In an action for breach of contract under
the UCC, lay testimony may be used to show a
product's defect or nonconformity. The trial court had
the equitable power to order the manufacturer to pick
up the goods from the retailer's warehouse. Courey International
v. Designer Floors of Texas, __ S.W.3rd __ (Tex.
App. - Austin 1/15/10). PDF
Contracts/Mediation. On January 25, 2008,
counsel for one of the plaintiffs in a lawsuit contacted
Attorney-Mediator Alan F. Levin to schedule a
mediation in a three party case. Everyone agreed on
February 8, 2008 as the mediation date. On January
29th Levin faxed a scheduling letter advising the
parties that if the mediation was cancelled without two
weeks advanced notice "the attorneys are responsible
to see that the mediator is promptly paid fifty percent
(50%) of the total mediation fee as an agreed
cancellation/rescheduling fee." There was
no signed agreement between the attorneys and the
mediator. When defense counsel advised that his
client would be unable to attend the mediation in
person, an attorney for one of the plaintiffs cancelled
the mediation. When defense counsel refused to pay
Levin $3,187.50 as a cancellation/rescheduling fee,
Levin brought this action against him for breach of
contract. The trial court granted summary judgment
for the attorney. The Court of Appeals affirmed. The
attorney's purported lack of objection to the terms of
the mediation did not indicate acceptance of same,
especially since the rules were sent after he agreed to
mediate and he never accepted the benefit of the
mediation services. There was no offer and
acceptance regarding the essential terms of the
mediation. The Levin Law
Group, P.C. v. Ernesto de Andre Sigmon, __
S.W.3rd __ (Tex. App. - Houston [14th] 1/21/10). PDF
Limitations. The plaintiff brought suit in an
automobile accident case near the end of the statute
of limitations period but did not serve the defendant
until approximately six months after limitations had
run. The jury found that the plaintiff was diligent in his
efforts to serve the defendant and otherwise found for
the plaintiff. The Court of Appeals reversed holding
that a four month gap between service attempts and a
failure to seek substituted service until six months
after limitations had run demonstrated, as a matter of
law, a lack of diligence in attempting service. Hull v. Vidaurri,
__ S.W.3rd __ (Tex. App. - Austin 1/22/10). PDF
Limitations/Laches. A law firm represented
the plaintiffs in a suit to partition land without a written
fee agreement. The lawsuit was settled partitioning
the surface estate. After the settlement the law firm
presented a fee agreement to the plaintiffs, which
most of them signed, giving the law firm a one-half
interest in the mineral rights of the partitioned property
as attorney's fees. The mineral deed to the law firm
was signed and recorded in December, 1975. In
March, 2008 the plaintiffs filed suit against the law
firm, seeking to recover the conveyed mineral
interests, pleading fraud, breach of fiduciary
duty, trespass to try title and an action to quiet title.
The Court of Appeals affirmed a summary judgment
for the law firm holding that the Plaintiffs' fraud and
breach of fiduciary duty claims - even if not barred by
limitations - were barred by laches. The Court held
that the title actions were barred by the four year
statute of limitations, rejecting the plaintiffs' claim that
the deed was procured in violation of the Disciplinary
Rules and was, therefore, void ab initio.. The
deed was merely voidable and subject to the four year
limitations bar. Garcia v. Garza,
__ S.W.3rd __ (Tex. App -- San Antonio 2/3/2010). PDF
Civil Procedure. The Texas Supreme Court
granted mandamus reaffirming its earlier decision
that a trial court must give a reason for granting a new
trial and that the statement "in the interest of justice
and fairness" alone does not discharge this
obligation. In re United Scaffolding,
Inc. __ S.W. 3rd __ (Tex. 1/15/09).
|
 |
|
|
Mediation Calendar
To facilitate scheduling, my mediation
calendar is now online. You can access it
from my website www.mcmediate.co
m
which also provides an e-mail link to
schedule or hold a date for mediation.
There are no travel or additional charges for
mediations within 100 miles of Austin.
|
In Closing
I am committed to providing you with the most
productive and professional mediation service
possible. I welcome your comments and your
suggestions about any and all aspects of the
mediation process.
Please use the Forward Email link below to
send this
newsletter to anyone you think might have an
interest in receiving it. If you are already
overwhelmed with e-mail and do not want to
receive
future issues, you may unsubscribe as indicated
below.
Best Regards,
Michael Curry
mcmediate.com
|
|
Recent Opinions Contd
Wills and Estates. A beneficiary of a trust
brought suit in district court against the trustee
seeking an accounting, removal of the trustee and
appointment of a successor and damages. The court
transferred the case to a county court at law. The
Texas Supreme Court held that under Tex. Prop. Code
§ 115.001(a) (2005) the county court at law had no
jurisdiction to decide the case; jurisdiction was vested
exclusively in the district court. Carroll v. Carroll, __S.W.3rd
__ (Tex. 1/15/10).
Long Arm Jurisdiction. Meristar, a non-Texas
entity, hired Diva, an Arizona corporation, as the
general contractor for a Houston hotel renovation. Diva
contracted with GIC, a Texas based subcontractor.
Disputes arose and Meristar filed suit against Diva
and GIC, among others. GIC filed a third party claim
against Diva's officers, who were Arizona residents,
alleging violations of the Texas Trust Fund Act and
fraud related thereto. The officers filed a special
appearance, which was denied by the lower courts.
The Texas Supreme Court reversed holding that GIC
failed to plead facts within the reach of the long-arm
statute because it did not allege that Diva's officers
committed any tortious acts in Texas. There were no
allegations that the false payment affidavits or
misrepresentations occurred in Texas. The affidavit of
GIC's president stating that one of the officers
promised him payment did not state where this
conversation occurred or make any connection with
Texas. Kelly et al v. General Interior
Construction, Inc. __ S.W.3rd __ (Tex. 1/15/10).
Medical Malpractice. Parents brought a
wrongful death action for the death of their daughter,
who died after a routine adenoidectomy, against
several health care providers. Prior to filing suit, the
parents failed to serve the required medical
authorization form. When the parents expert report
was filed after the 120 day deadline the defendants
sought to have the case dismissed. The parents
argued that the case had been abated due to their
failure to provide the required medical authorization,
and that, therefore, their report was timely. The Court
of Appeals rejected the argument, holding that that any
abatement caused by parents' failure to comply with
the statutory notice or authorization requirement did
not toll or extend the deadline for the serving of an
expert medical report. Because the report was not
timely filed, the parents were not entitled to the 30 day
extension statutorily allowed for deficient reports. The
Court rejected the parents claims that the MLIA did not
apply or was unconstitutional. Gulf Coast Medical
Center LLC et al v. Temple, et al, __ S.W. 3rd __
(Tex. App. - Corpus Christi 1/21/10). PDF
Medical Malpractice. The defendant physician
performed three gynecological cosmetic surgical
procedures on the plaintiff. She later filed a lawsuit
against the defendant alleging that he was negligent
in performing the procedures and tendered an expert
report. The Court of Appeals held that the trial court did
not abuse its discretion in determining the expert was
qualified to render an expert opinion. The Court
rejected the defendants argument that the fact that the
expert (who had been a chief of the OB/GYN
department at three hospitals) had not recently
performed the surgical procedures in question
disqualified him under TCPRC § 74.401(c)(2). Benson v. Hall,
__ S.W.3rd __ (Tex. Civ. App. Waco 2/3/2010). PDF
Personal Injury/Evidence/Costs. The plaintiff
was working on a vessel owned by the defendant
when he tripped and fell, injuring himself. He brought
suit seeking damages and maritime maintenance
and cure. The jury found the defendant
negligent and the ship unseaworthy. The judgment
awarded the plaintiff both medical expenses and cure.
The Court of Appeals, reversed in part, holding that the
past and future medical expenses and cure award
were duplicative and constituted a double recovery.
The Court rejected the argument that the
testimony of undisclosed witnesses was reversible
error, holding that defendant failed to establish
that "but for" the witnesses' testimony the jury
would not have found as it did. In the
absence of timely objections to testimony, the
defendant's appellate complaints that the plaintiff
violated the motion in limine failed because there was
no showing that an instruction to disregard could not
have cured any prejudice or that the evidence led to
the rendition of an improper judgment. The Court held
that the trial court did not err in including the costs for
daily trial transcripts and the interpreter's fees in the
award of court costs. Weeks Marine, Inc. v.
Barrera, __ S.W.3rd __ (Tex. App.-San Antonio
1/27/10). PDF
Arbitration. The plaintiffs bought homes from
Royce Homes and received 2-10 Home Buyer's
Warranties. Each warranty, and a separate arbitration
agreement that some of them signed, contained a
clause requiring arbitration with Construction
Arbitration Services (CAS). The homeowners did not
file claims under the 2-10 warranty but sued the
builder directly. Some of the plaintiffs requested CAS
to schedule an arbitration but it refused because the
plaintiffs had not made the request as part of a
warranty claim. The trial court granted the plaintiffs'
request to appoint an arbitrator. Both the trial court
and, later, the arbitrator refused the builder's request
to have CAS appointed as arbitrator or to have the
arbitration conducted following CAS procedures. The
plaintiffs prevailed in arbitration and the trial court
confirmed the award. The Court of Appeals affirmed.
The Court held, first, that the parties had not, through a
general choice-of-law clause, selected the Texas
Arbitration Act to the exclusion of the Federal
Arbitration Act. The Court held that the FAA permits
the trial court to appoint an arbitrator when the
selection process agreed to by the parties breaks
down and, accordingly, there was no abuse of
discretion. The Court also rejected the builder's
argument that the arbitration award demonstrated a
manifest disregard of the law and a gross mistake,
holding that the exclusive grounds for vacating an
arbitration award are set forth in the FAA and that
under recent U.S. Supreme Court precedent, any
common-law grounds for vacatur of an arbitration
award, such as manifest disregard of the law and
gross mistake, are now foreclosed. Royce Homes, LP.
et al v. Bates, et al., __ S.W.3rd __ (Tex. App. -
Hous. [1st] 1/21/10). PDF
Collections. Judgment creditor sought to
garnish funds in a bank account. The garnishment
papers were properly served on the bank but the
documents were not served on the debtor. After the
debtor filed a supersedeas bond the trial court
dissolved the writ but awarded the creditor and the
bank a portion of the money for attorney's fees and
costs. The Court of Appeals reversed holding that the
creditor's failure to serve all of the garnishment
documents on the debtor as required by TRCP 663a
deprived the court of jurisdiction over the funds and,
therefore, the trial court had no the authority to
disburse a portion of same to pay the costs and
attorneys' fees. Zeecon Wireless
Internet, LLC v. American Bank of Texas et al, __
S.W.3rd __ (Tex. App. - Austin 1/20/10). PDF
|
|
|
