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The allegedly overlapping fraud and contract claims in Benge General Contracting v. Hertz Electric were as follows: “Appellees’ breach-of-contract counterclaim was based on ‘enforceable agreements’ under which appellees agreed to provide ‘electrical contracting and painting services at several jobsites in North Texas’ in exchange for BGC’s promise to compensate appellees for the services.” “Their fraud counterclaim, as stated in appellees’ fourth amended counterclaims, was based on Dennie’s reliance [on] Benge’s allegedly false representation that he would pay for work performed by appellees ‘in exchange for the signing of lien releases.’ Appellees alleged that appellants knew the representations were false when…
The peculiar treatment of attorneys’ fee awards against LLCs in contract cases, by the now-repealed version of CPRC § 38.001, led to the resolution of a novel issue in Benge General Contracting, LLC v. Hertz Elec., LLC: “Absent mandatory, or at least persuasive, authority applying the alter-ego theory to hold an LLC’s members liable for attorney’s fees that could not be incurred by the LLC, we must abide by the plain statutory language. Accordingly, we conclude that the trial court abused its discretion in awarding attorney’s fees, and we sustain appellants’ first issue.” No. 05-19-01506-CV (Sept. 7, 2021) (mem. op.).…
Judge Gregg Costa memorably described the McDonnell-Douglas burden-shifting framework as “the ‘kudzu’ of employment law.” Nall v. BNSF Railway Co., 917 F. 3d 335 (5th Cir. 2019) (Costa, J., specially concurring). The painstaking majority and dissenting opinions in Addante v. Univ. of Tex. at Dallas, No. 05-20-00376-CV (Sept. 8, 2021) illustrate the amount of detail work required to evaluate a complex retaliation case and deserve study by anyone who practices in that area in state court. The post Pleadings, Declarations, and Kudzu appeared first on 600 Commerce.…
In a supersedeas-bond dispute, the Fifth Court held: “When Real Parties withdrew the deposit without the court’s authorization, they assumed the risk that their withdrawal might be improper and that the court might require them to redeposit the funds. Moreover, Real Parties received the full benefit of having the partition-and-sale order superseded during the years that the order was on appeal. The trial court may determine whether equity requires ordering Real Parties to return the supersedeas to the court’s registry for the court to determine the amount of Relators’ damages during the appeal.” In re Pelley, No. 05-21-00314-CV (Aug.…
After the Texas Supreme Court (again) signaled that it preferred to review mask-mandate cases after intermediate court review of a temporary injunction record, the Fifth Court granted a motion to expedite the Dallas mask case, and it is moving on the following schedule: The post Movin’ Masks appeared first on 600 Commerce.…
The successful party in an arbitration obtained confirmation of the award before the trial court ruled on the other party’s special appearance. The Fifth Court reversed, citing TRCP 84 and 120a as well as its own precedent: “Jayco was entitled to have its special appearance adjudicated prior to any decision on the merits.  The rules of civil procedure give a trial court no discretion to hear a plea or pleading, including a motion to confirm an arbitration award, before hearing and determining a special appearance.”  Jayco Hawaii LLC v. Viva Railings, LLC, No. 05-20-00528-CV (Aug. 25, 2021) (mem. op.)…
Prime argued that fraudulent inducement tolled limitations on its fraud claims, citing an email in which the defendant said: “I ask that you extend this [deadline] to at least 90 days or some other requirement so we have the chance to find another investor, do the paperwork, and get his funding.” The Fifth Court disagreed, stating that the “request to extend the time to ninety days by itself is simply not a representation, promise, or an agreement that would extend the accrual of a cause of action.” Prime United Petroleum Holding Co., LLC v. Malameel, LLC, No. 05-20-00032-CV (Aug.…
Footnote 3 in the recent en banc majority opinion from Steward Health Care System v. Saidara suggests a promising special exception in cases with general allegations about unfair competition: Appellants do not specify the branch of “unfair competition” they allege. See, e.g., James E. Hudson, III, A Survey of the Texas Unfair-Competition Tort of Common-Law Misappropriation, 50 BAYLOR L. REV. 921, 924–26 (1989) (noting Texas common law recognizes three branches of unfair competition: palming off, trade-secret misappropriation, and common-law misappropriation); RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 40 cmt. a (AM. LAW INST. 1995) (stating that unfair competition includes torts for misappropriation,…
The panel majority in Winstead PC v. Moore concluded that the TCPA applied to two of three tort claims by a client against his legal counsel, holding that they implicated the firm’s right of petition, while the third did not have a sufficient connection to the exercise of that right. No. 05-20-00050-CV (Aug. 20, 2021). A dissent would have applied the TCPA to all claims and, from there, concluded that the plaintiff failed to meet its burden. The post Agents, Attorneys, and the TCPA appeared first on 600 Commerce.…