Tortious Interference With Contract Claims in Texas–Fort Worth, Texas Contracts Law Attorneys

Reversed and Remanded and Opinion Filed January 28, 2015

In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01285-CV CREST INFINITI II, LP, Appellant V. TEXAS RV OUTLET AND TURN KEY RECOVERY, Appellees On Appeal from the County Court at Law No. 1 Collin County, Texas Trial Court Cause No. 1-860-2012

MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Francis Crest Infiniti II, LP appeals the trial court’s take-nothing judgment in favor of Texas RV Outlet and Turn Key Recovery.

In two issues, Crest claims the evidence established as a matter of law Crest was entitled to judgment on its tortious interference with a contract and conversion claims, or alternatively, the trial court’s conclusion to the contrary is against the great weight and preponderance of the evidence. Crest also contends it was entitled to attorney’s fees. Appellees did not file a brief. We reverse the trial court’s judgment and remand for further proceedings consistent with this opinion. Billy Whitaker bought an Infiniti M45 from Texas RV Outlet, financing the purchase through Texas RV Outlet’s finance company. In November 2011, Whitaker took his car to Crest for maintenance and repair work. After receiving an estimate of the cost, Whitaker approved the –2– work. Although a Crest employee contacted Whitaker when the work was completed, Whitaker did not pay for the work or pick up his car. Nearly three weeks later, at the request of Texas RV Outlet, Turn Key Recovery repossessed Whitaker’s car for nonpayment, removed it from the Crest lot, and towed it to Texas RV Outlet. When Texas RV Outlet refused to return the vehicle, and ultimately sold it, Crest sued for tortious interference with a contract and conversion and sought attorney’s fees. The trial court ordered Crest take nothing and filed findings of fact and conclusions of law, including that appellees did not convert property owned by Crest, Crest did not have a lien on the car, and Crest did not sustain any actual damages. In its first issue, Crest contends the trial court’s judgment was contrary to the law and manifestly wrong and unjust because the undisputed evidence shows Crest had a lien under section 70.001 of the property code, Crest’s lien had priority over that held by Texas RV Outlet, Crest had possession of the car and appellees converted the car when they towed it from Crest’s car lot without permission. We review a trial court’s findings of fact under the same legal and factual sufficiency of the evidence standards used when determining if sufficient evidence exists to support an answer to a jury question. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).

When the appellate record contains a reporter’s record, as it does in this case, findings of fact are not conclusive on appeal if the contrary is established as a matter of law or if there is no evidence to support the findings. Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.―Dallas 2008, pet. denied). A party challenging the sufficiency of the evidence supporting an adverse finding on which the appealing party had the burden of proof must show the matter was established as a matter of law, or the trial court’s failure to make the finding was against the great weight and preponderance of the evidence. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). –3– Conversion is the unauthorized and wrongful assumption and exercise of dominion and control over the owner’s or possessor’s property to the exclusion of, or inconsistent with, the owner/possessor’s rights. See Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971); see French v. Moore, 169 S.W.3d 1, 14 (Tex. App.―Houston [1st Dist.] 2004, no pet.) (conversion not restricted to owners of property but may also be brought by aggrieved party possessing or having right of immediate possession of property). Conversion is designed to protect against interference with a person’s possessory interest in personal property. Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981); see also Killian v. Trans Union Leasing Corp., 657 S.W.2d 189, 192 (Tex. App.―San Antonio 1983, writ ref’d n.r.e.) (conversion “is concerned with possession, not title”). To establish a claim for conversion of personal property, a plaintiff must prove: (1) it owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff’s rights; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Khorshid, Inc. v. Christian, 257 S.W.3d 748, 758−59 (Tex. App.―Dallas 2008, no pet.). Chapter 70 of the Texas Property Code provides that a worker “who by labor repairs a vehicle” has a lien on the vehicle and may retain possession of the vehicle pending payment of the amount due under a contract for the repairs. TEX. PROP. CODE ANN. § 70.001 (West 2014).

A possessory mechanic’s lien has priority over a seller’s perfected security interest in an automobile. Gulf Coast State Bank v. Nelms, 525 S.W.2d 866, 869−70 (Tex. 1975). At trial, Chance Simpson, a Crest service advisor, said Whitaker brought his car in for service, and Simpson completed a work order detailing the problems Whitaker was experiencing. Whitaker also presented a warranty to cover the work, but Simpson said it was an “after market” –4– warranty (not issued by Crest or the factory) and did not cover the repairs. James Saliva, the service manager at Crest, spoke with Whitaker before the repairs were made and offered him a 10% discount; he also offered to trade in the Infiniti on a newer model. Whitaker approved the work order, and on December 2, Crest completed the work, which totaled $5,925.81. When Crest offered the exhibit with the work estimate and the actual repair amount, appellees did not object. Simpson said they called Whitaker, but he did not pay for the repairs nor did he claim his vehicle. On December 21, 2011, a Crest technician called Saliva and told him a tow company was taking Whitaker’s car. Saliva went to the area on Crest’s property where all the completed cars are placed awaiting customer pick up and saw the Turn Key Recovery tow truck with Whitaker’s car leaving the property. Saliva got in his car and tried to chase the truck but due to traffic was unable to stop it; he also “tried calling them with my cellphone as I was driving.” When he returned to Crest, he called Turn Key Recovery and Texas RV Outlet and demanded the return of the car; however, neither company returned the car or paid for the repairs. Saliva described the Crest lot where Whitaker’s car was as the staging area holding “all of the completed cars for customers to pick up.” The lot is not public property but is Crest private property. Saliva stated that the lot was not locked during hours of operation in order to allow customers to easily retrieve their cars and to comply with fire code regulations. But “the whole property is locked down and guarded by security after hours.” Saliva also said the property had “No Trespass” signs posted on the wall that were visible to all. Lenny Zak, the owner of Texas RV Outlet, said Whitaker bought the car and, after making only one payment, defaulted on the remainder of the payments. Turn Key Recovery repossessed Whitaker’s car at Zak’s request. Zak said he did not believe they had broken the law because Texas RV Outlet had the lien on the car title. He conceded Turn Key Recovery was –5– acting as Texas RV Outlet’s agent. When asked if he knew about mechanic’s liens and the right of a dealership or auto shop to retain possession of a vehicle until payment for work is made, he replied, “I don’t know about that.” This evidence shows Crest performed $5,925.81 worth of repairs and maintenance on Whitaker’s car at Whitaker’s request and authorization; as a result, Crest had a possessory mechanic’s lien in that amount for the work performed on the car; Turn Key Recovery, acting as Texas RV Outlet’s agent, took control over the car to the exclusion of Crest without Crest’s permission or authorization; Crest demanded return of the property; and Texas RV Outlet refused and sold the car. Given this undisputed evidence, the trial court erred by concluding Crest did not have a lien on the car, appellees did not convert the car which Crest possessed at the time, and Crest did not sustain $5,925.81 in actual damages. See Gulf Coast State Bank, 525 S.W.2d at 869. Appellees spent considerable time at trial discussing Crest’s security, including why the lot remained unlocked during regular business hours, and even suggested addition measures Crest could have taken to protect its property from appellees.

In short, Crest was faulted for failing to prevent appellee Turn Key Recovery from entering its lot and “peaceably” towing the car. While a possessory lien held by a mechanic or repairman may be lost upon the voluntary delivery of the vehicle to the owner, we conclude it was not lost when appellees trespassed and took the car from Crest’s private lot without permission or authority. We sustain Crest’s first issue. In its second issue, Crest contends it was entitled to attorney’s fees under Chapter 70 of the property code and asks this Court to award the same. Section 70.008 of the property code provides, in relevant part, “The court in a suit concerning possession of a motor vehicle . . . and a debt due on it may award reasonable attorney’s fees to the prevailing party.” TEX. PROP. CODE –6– ANN. § 70.008 (West 2014). The statute does not restrict the award of attorney’s fees to one suing on a debt who wishes to retain possession of a vehicle. Elite Towing v. LSI Fin. Grp., 985 S.W.2d 635, 645 (Tex. App.―Austin 1999, no pet.); Kollision King, Inc. v. Calderon, 968 S.W.2d 20, 24 (Tex. App.―Corpus Christi 1998, no pet.). Crest’s right of possession of the vehicle and the debt secured by the possessory lien were at issue in this case. And because Crest established as a matter of law that Texas RV Outlet and Turn Key Recovery, as its agent, converted the vehicle, Crest is the prevailing party.

We sustain Crest’s second issue to the extent it seeks a determination of whether attorney’s fees may be awarded to Crest in this case. See Elite Towing, 985 S.W.2d at 645 (prevailing party entitled to attorney’s fees); Kollision King, Inc., 968 S.W.2d at 24 (same); Seureau v. Mudd, 515 S.W.2d 746, 749 (Tex. Civ. App.—Houston [14th Dist.] 1974, writ ref’d, n.r.e.) (within trial court’s discretion to award attorney’s fees to prevailing party). We reverse the trial court’s judgment that Crest take nothing and remand this case to the trial court to (1) render judgment in favor of Crest in the amount of $5,925.81 on its claim for conversion and (2) determine the amount of attorney’s fees, if any, to be awarded to Crest as the prevailing party.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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Collections and Foreign Judgments, Contracts and Commercial Litigation

Final Pay for Commissions and Bonuses Under the Texas Pay Day Law–Fort Worth, Texas Employment Defense Attorneys

According to the Texas Workforce’s interpretation and analysis, a common problem is that of what happens with an employer’s duty to pay commissions and bonuses once an employee has left the company. The answer depends upon the terms of the commission or bonus agreement. Commission pay agreements are enforceable whether they are oral or in writing, and agreements can be established with a showing of a pattern or practice of paying commissions in a certain way. Thus, the advice to have a clear, signed written wage agreement applies with particular force to commissions. Changes to written agreements must be in writing. A good agreement will avoid the risks of ambiguity by clearly setting out how commissions are earned, when and under what circumstances they are paid, whether “chargebacks” are made and under what circumstances, and what happens to commissions from sales in progress at the time of work separation. Similarly, a bonus agreement should specify exactly how a bonus is earned, how it is calculated, when it is paid, whether it is discretionary in any way (as to the amount, timing, or ability of the company to cancel the bonus altogether under certain conditions), and what happens to a bonus that is not determined or paid out until after an employee has left the company. If the commission or bonus agreement provides for payment of commissions and bonuses in any way after an employee has separated from employment, the deadline for such a payment would be based upon the wording of the agreement. Prior draws against commissions may be offset against the final pay; under 40 T.A.C. § 821.26(d), “[d]raws against commissions or bonuses may be recovered from the current or any subsequent pay period until fully reconciled.” The key to protecting the company’s interests is to spell out in a clear, written agreement exactly how, when, and under what circumstances commissions and bonuses will be paid, and then follow the written agreement to the letter, because that is how TWC will enforce the agreement in the event of a wage claim concerning such payments.

 

The Texas Family Code provides that garnishment for support obligations apply to certain post-termination lump-sum payments such as a bonus, commission, or payout of accrued leave (see Texas Family Code § 158.215): if such a lump-sum payment is $500 or more, the employer must notify the Attorney General’s office (do it in writing or electronically – see https://portal.cs.oag.state.tx.us/wps/portal/WageWithholdingResponsibilities#lumpsum) before making the payment so that that agency can determine whether a support deduction should be made. The agency then has ten days after that date to notify the employer about its duty to make the support deduction; if no such notification occurs, the employer may make the payment without the deduction. If, however, the agency informs the employer that the support order would apply to the lump-sum payment, the employer would need to make the deduction. Since such a garnishment would be pursuant to a court order, it would not have to be authorized in writing by the employee.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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Employment Law Defense

Traffic Signals and Governmental Immunity Under the Texas Tort Claims Act– Fort Worth, Texas Insurance Defense Attorneys

THE CITY OF GRAPEVINE, TEXAS v. AMY SIPES AND TANA (TREVINO) WADDELL

IN THE SUPREME COURT OF TEXAS============No. 04-0933============

City of Grapevine, Texas

Petitioner,

v.

Amy Sipes and Tana (Trevino) Waddell

Respondents

====================================================

On Petition for Review from the

Court of Appeals for the Second District of Texas

====================================================

Argued February 15, 2006

Chief Justice Jefferson delivered the opinion of the Court.

Under the Texas Tort Claims Act, a governmental unit retains immunity for claims based on the absence of a traffic signal unless the absence is not corrected by the governmental unit within a reasonable time after notice. Tex. Civ. Prac. & Rem. Code 101.060(a)(2). The trial court held that this provision immunized the City of Grapevine from liability based on its alleged negligence in failing to install a traffic signal within a reasonable time after initially deciding to do so. The court of appeals disagreed and reversed in part the trial court s judgment. Because we conclude that absence, as used in subsection (a)(2), requires a prior presence, we reverse in part the court of appeals judgment and render judgment dismissing the case for lack of subject matter jurisdiction.

I

Factual Background

The City of Grapevine and Grapevine Mills, L.L.C. ( Mills ) entered into an agreement pursuant to which Mills would build the Grapevine Mills Mall (the Mall ). To accommodate increased traffic, the City planned to widen a nearby road, Business 114, from two lanes to five, as part of what was termed the Northwest Highway Expansion Project. The City hired an engineering firm to create a traffic control plan for the project; the resulting plan required a permanent traffic signal at the intersection of Business 114 and State Highway 26. The plan did not call for a temporary traffic signal during construction, however.

Because the intersection became a high accident site during construction, the City asked the Texas Department of Transportation (TxDOT) to erect a temporary traffic signal on the state-owned right-of-way. TxDOT responded that funding was inadequate for such a signal, so the City began to raise the necessary monies itself. The City hired a private consultant to prepare a warrant study justifying the need for a temporary signal, and on October 29, 1997, City officials met to coordinate its construction; the City planned to begin installation by November 7. The signal was not installed, however, until December 5.

On November 28, the day after Thanksgiving, Amy Sipes and her daughter, Tana Trevino Waddell, were traveling northbound on 114, heading to the newly opened Grapevine Mills Mall. At the intersection of 114 and 26, Sipes stopped at the temporary stop sign, but alleges that her vision was obstructed by concrete barriers, a road closed sign, and barrels. As Sipes inched her vehicle forward, it was struck by a truck driven by Jerry Gaston, who had been traveling eastbound on Northwest Highway. Both Sipes and Waddell sustained injuries.

Sipes, individually and as next friend of her daughter, sued the City and others for damages from injuries sustained in the accident. The City pleaded governmental immunity and moved for summary judgment on that and other bases.[1] Sipes responded, alleging in part that the City had notice of a dramatic increase in vehicular accidents at the intersection, and that the absence of a traffic signal or a four-way stop, where a permanent signal was provided for, waived the City s immunity pursuant to section 101.060. The trial court granted the City s motion and severed the claims. Sipes appealed.

The court of appeals reversed and remanded the trial court s judgment in favor of the City on the traffic signal issue, but affirmed the remainder of the judgment. 146 S.W.3d 273, 284-85. The court held that, while the City exercised discretion in deciding to install a temporary traffic signal at the intersection, a question of material fact exists concerning whether the City properly implemented its decision by installing the temporary traffic signal within a reasonable time thereafter. Id. at 281. We granted the City s petition for review.[2] 49 Tex. Sup. Ct. J. 259 (Jan. 20, 2006).

II

Discussion

The Tort Claims Act

The Texas Tort Claims Act (TTCA) waives immunity for personal injuries and deaths proximately caused by a condition or use of personal or real property if a governmental unit would, were it a private person, be liable. Tex. Civ. Prac. & Rem. Code 101.021(2). This use-of-property waiver, with which we have long grappled,[3] is an exception to the general rule of governmental immunity. Today we construe an exception to the exception: the waiver s non-application to claims arising from the absence, condition, or malfunction of a traffic or road sign, signal or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice. Id. 101.060(a)(2). Specifically, we must decide whether and under what conditions the absence of a traffic light may give rise to a governmental unit s liability under the TTCA.

Section 101.060, entitled Traffic and Road Control Devices, identifies three exceptions to the TTCA s waiver of immunity provisions:

(a) This chapter does not apply to a claim arising from:

(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit;

(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice; or

(3) the removal or destruction of a traffic or road sign, signal, or warning device by a third person unless the governmental unit fails to correct the removal or destruction within a reasonable time after actual notice.

Id. 101.060(a)(1)-(3) (emphasis added); see also State v. Gonzalez, 82 S.W.3d 322, 326 327 (Tex. 2002).

Sipes agrees that the City s initial decision to install a traffic signal was discretionary, but contends that, once the City made that decision, it faced liability for negligently implementing it. The court of appeals agreed. 146 S.W.3d at 279-81. That court noted that governmental units may be liable for negligent implementation of discretionary acts, and that [s]ection 101.060 reiterates this principle within the specific context of traffic control devices. Id. at 279-80. The court held that, once the city makes the decision to install a traffic control device, it has no discretion but to do so within a reasonable time, and [i]f the traffic control device is not installed after the policy decision is made to do so, then it would constitute absence under section 101.060(a)(2). Id. at 280 (citations omitted). Thus, the court concluded that the Act waives immunity when the city exercises its discretion in deciding to install a traffic control device but does not implement that decision within a reasonable amount of time. Id. (citing Tex. Civ. Prac. & Rem. Code 101.060(a)(2); City of Fort Worth v. Robles, 51 S.W.3d 436, 442 (Tex. App. Fort Worth 2001, pet. denied)).

We have not previously construed the term absence as used in subsection 101.060(a)(2). But see Gonzalez, 82 S.W.3d at 325 (using the phrase the signs absence to describe two stop signs that were removed after being in place); Alvarado v. City of Lubbock, 685 S.W.2d 646, 649 (Tex. 1985) (holding that a speed-limit sign posting the wrong speed limit constituted the absence of or condition of a traffic sign ).[4] As noted by the parties, our courts of appeals have differed in their interpretation of the term. At least one has determined that an absence refers to a sign or warning device that was in place at one time but was subsequently removed, see Tex. Dep t of Transp. v. Sanchez, 75 S.W.3d 24, 27 (Tex. App. San Antonio 2001, pet. denied) (quoting City of San Antonio v. Schneider, 787 S.W.2d 459, 468 (Tex.App. San Antonio 1990, writ denied)), while others have held that an absence occurs when a governmental unit exercises its discretion in deciding to install a traffic signal, but then fails to implement the decision within a reasonable time. See, e.g., Zambory v. City of Dallas, 838 S.W.2d 580, 583 (Tex. App. Dallas 1992, writ denied); see also Tex. Dep t of Transp. v. Bederka, 36 S.W.3d 266, 272 (Tex. App. Beaumont 2001, no pet.) ( [T]he non-discretionary implementation of the policy decision to install a different device . . . would be the absence of a particular traffic device under 101.060(a)(2) . . . . ); Reyes v. City of Houston, 4 S.W.3d 459, 462 (Tex. App. Houston [1st Dist.] 1999, pet. denied). As one court summarized: Courts of appeals have interpreted subsection 101.060(a)(2) to mean that immunity is waived for the absence of a warning sign . . . if the absence is due to the disappearance of an installed sign or the failure to install a sign [within a reasonable time] after the governing body authorized its installation. Ihlo v. State, 71 S.W.3d 494, 496 (Tex. App. Austin 2002, no pet.)(emphasis added)(employing both definitions to conclude that warning signs were not absent); see also Robles, 51 S.W.3d at 442 (utilizing both definitions to conclude that stop signs were not absent); Sanchez, 75 S.W.3d at 27 (applying first definition but recognizing the second); 19 William V. Dorsaneo III, Texas Litigation Guide 293.12[9][b][ii] (2005) (noting dual definition).

Accordingly, we must decide whether an absence, as used in (a)(2), requires a prior presence, or whether it includes the failure to install a traffic signal within a reasonable time after the decision is made to do so. We begin by examining the statutory context within which absence is placed. See Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998) (stating that a court must . . . view a statute s terms in context ). Subsection (a)(1), which immediately precedes (a)(2), retains immunity for the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit. Tex. Civ. Prac. & Rem. Code 101.060(a)(1) (emphasis added). In subsection (a)(1), therefore, the Legislature expressed its intent that a governmental unit remains immune for an initial placement decision, provided it was the result of a discretionary act. If (a)(2) s absence included not just signs that were previously present, but those that had not yet been placed, it is difficult to imagine what would remain of (a)(1) s immunity retention. See Robles, 51 S.W.3d at 441 ( To hold that subsection (a)(2) s absence requirement also applied to traffic signals that had not been installed would nullify subsection (a)(1)[, which] . . . exempts a governmental unit from liability for the failure to initially install a traffic sign or signal as long as its failure . . . was the result of a discretionary action. ).

Indeed, characterizing a failure to initially install a traffic signal as an absence would contravene the Legislature s intent to immunize governmental units from claims based on the failure to initially place signals, provided such failures were the result of discretionary acts. When the City first installs a traffic signal is no less discretionary than whether to install it. The timing of implementation could be affected by the governmental unit s balancing of funding priorities, scheduling, traffic patterns, or other matters; to impose liability for the failure to timely implement a discretionary decision could penalize a governmental unit for engaging in prudent planning and paralyze it from making safety-related decisions. This sort of planning and execution is precisely the type of discretionary act for which the TTCA retains immunity. See Tex. Dep t of Transp. v. Garza, 70 S.W.3d 802, 807 (Tex. 2002) (noting that Legislature intended only a limited waiver of immunity in the TTCA). Thus, when subsections (a)(1) and (a)(2) are read together, (a)(2) logically applies only to those traffic signals that have already been installed.

We used similar reasoning in interpreting the term condition, one of the trilogy of words ( absence, condition, or malfunction ) used in (a)(2) to describe situations in which a governmental unit may face liability for claims involving traffic signals. In Gonzalez, vandals had removed stop signs at an intersection, and a fatal collision occurred soon thereafter. Gonzalez, 82 S.W.3d at 326-27. We considered whether the vandals theft of the stop signs was a condition of the signs (and therefore governed by (a)(2)) or a removal or destruction of the signs (and thus covered by (a)(3)). Id. at 328-30. We concluded it was the latter:

Gonzalez cannot characterize TxDOT s failure to make certain discretionary decisions affecting a stop sign s susceptibility to repeated vandalism as a failure to correct the sign s condition under subsection (a)(2) in order to sue under the Act. . . . To do so would contradict the Legislature s express intent to impose liability in cases involving a third person vandalizing a traffic sign only if the State fails to correct the vandalized sign after receiving actual notice [pursuant to (a)(3)].

Id. at 329.

Both subsections (a)(2) and (a)(3) refer, among other things, to the government s failure to replace a missing traffic device. In (a)(3), the statute provides a safe harbor if the government corrects a traffic device s removal; the safe harbor is provided in (a)(2), if the government corrects the absence of the device. Compare Tex. Civ. Prac. & Rem. Code 101.060(a)(2) with (a)(3). Logically, correct in (a)(3) must be predicated on the prior existence of a traffic device, because it modifies that device s removal, and a failure to correct waives immunity only after the governmental unit has been put on actual notice, presumably of a change in the device s status. So, at least with respect to (a)(3), the Legislature used the word correct to refer to replacing a device that has been removed. The question here is whether correct in (a)(2) similarly requires replacement of a preexisting device after its disappearance. We hold that it must. With respect to the cause of a traffic device s non-presence, there is only one material difference between the subsections. Subsection (a)(3) refers to a third person s intervention, whereas the cause in (a)(2) is not so qualified. Both subsections, however, reflect the Legislature s intent to waive a governmental unit s immunity only if it has been placed on notice of some change in status and fails to correct it within a reasonable time. A traffic signal that never existed as in this case cannot serve to put a governmental unit on notice of something needing correction. Both removal and absence, therefore, presuppose a preexisting device.

Subsection (a)(2) s other terms reinforce this conclusion. We have noted that the Legislature intended liability for a condition to attach only after a traffic signal is in place, as the term implies not just any condition, but only something wrong with the traffic sign or signal such that it would require correction . . . after notice. Garza, 70 S.W.3d at 807 (noting [t]he Legislature s placement of condition in between absence and malfunction, coupled with the language that recants section 101.060(a)(2) s retention of immunity when the condition is not corrected after notice ). Similarly, the Legislature s use of the term malfunction further evidences that (a)(2) was intended to apply only to existing traffic signals, as a signal must be in place before it can malfunction and require correction. See Robles, 51 S.W.3d at 442 ( A traffic . . . signal cannot malfunction if it has never been installed. ).

This interpretation comports with (a)(2) s waiver of immunity only for governmental units that fail to correct problems within a reasonable time after notice. Tex. Civ. Prac. & Rem. Code 101.060(a)(2). This language requires the State to maintain traffic signs in a condition sufficient to perform their intended traffic-control function. Gonzalez, 82 S.W.3d at 327 (emphasis added) (construing (a)(2)). Maintenance involves ongoing caretaking; traffic signs that have not yet been installed cannot be maintained.

It is undisputed that the City s initial decision to install the traffic signal was discretionary. Unquestionably, therefore, the City would have retained immunity had it decided not to install the traffic signal. See Tex. Civ. Prac. & Rem. Code 101.060(a)(1). It makes little sense to waive immunity for a governmental unit that decides to install a signal and is endeavoring to do so. Considering the plain meaning of the statutory terms, the interplay between subsections (a)(1), (a)(2), and (a)(3), and the context within which absence is used in subsection (a)(2), we conclude that an absence requires a prior presence; that is, it does not apply to a governmental unit s initial installation of, or failure to initially install, a traffic signal. To the extent other opinions have held differently, we disapprove them.[5]

III

Conclusion

We reverse in part the court of appeals judgment and render judgment dismissing the case for lack of subject matter jurisdiction. See Tex. R. App. P. 60.2(c).

______________________________

Wallace B. Jefferson

Chief Justice

OPINION DELIVERED: June 16, 2006
[1] The City also contended that Trevino did not give statutorily required notice and that the City s placement of traffic control devices to the left of the intersection (which Sipes alleged obstructed her vision) did not proximately cause the accident. 146 S.W.3d at 277, 281-84.

[2] Sipes did not file a petition for review.

[3] See, e.g., Tex. Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 589-93 (Tex. 2001) (Hecht, J., concurring); id. at 593 95 (Enoch, J., dissenting); Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 301-03 (Tex. 1976) (Greenhill, C.J., concurring)

[4] In Tex. Dep t of Transp. v. Garza, 70 S.W.3d 802, 807 (Tex. 2002), we described the sign at issue in Alvarado as present[ing] a condition within the meaning of the . . . Act.

[5] See Ihlo v. State, 71 S.W.3d 494, 495-96 (Tex. App. Austin 2002, no pet.); Tex. Dep t of Transp. v. Bederka, 36 S.W.3d 266, 271-72 (Tex. App. Beaumont 2001, no pet.); City of Fort Worth v. Robles, 51 S.W.3d 436, 443 (Tex. App. Fort Worth 2001, pet. denied); Reyes v. City of Houston, 4 S.W.3d 459, 462 (Tex. App. Houston [1st Dist.] 1999, pet. denied); Zambory v. City of Dallas, 838 S.W.2d 580, 583 (Tex. App. Dallas 1992, writ denied).

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Insurance Defense Litigation

Stautory Law on Damages in Texas Civil Litigation–Texas Insurance Defense Attorneys

TEXAS CIVIL PRACTICE AND REMEDIES CODE



TITLE 2. TRIAL, JUDGMENT, AND APPEAL




SUBTITLE C. JUDGMENTS




CHAPTER 41. DAMAGES






This section was amended by the 84th Legislature. Pending publication of the current statutes, see S.B. 735, 84th Legislature, Regular Session, for amendments affecting this section.




Sec. 41.001. DEFINITIONS. In this chapter:


(1) “Claimant” means a party, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff, seeking recovery of damages. In a cause of action in which a party seeks recovery of damages related to injury to another person, damage to the property of another person, death of another person, or other harm to another person, “claimant” includes both that other person and the party seeking recovery of damages.


(2) “Clear and convincing” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.


(3) “Defendant” means a party, including a counterdefendant, cross-defendant, or third-party defendant, from whom a claimant seeks relief.


(4) “Economic damages” means compensatory damages intended to compensate a claimant for actual economic or pecuniary loss; the term does not include exemplary damages or noneconomic damages.


(5) “Exemplary damages” means any damages awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages are neither economic nor noneconomic damages. ‘Exemplary damages’ includes punitive damages.


(6) “Fraud” means fraud other than constructive fraud.


(7) “Malice” means a specific intent by the defendant to cause substantial injury or harm to the claimant.


(8) “Compensatory damages” means economic and noneconomic damages. The term does not include exemplary damages.


(9) “Future damages” means damages that are incurred after the date of the judgment. Future damages do not include exemplary damages.


(10) “Future loss of earnings” means a pecuniary loss incurred after the date of the judgment, including:


(A) loss of income, wages, or earning capacity; and


(B) loss of inheritance.


(11) “Gross negligence” means an act or omission:


(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and


(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.


(12) “Noneconomic damages” means damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages.


(13) “Periodic payments” means the payment of money or its equivalent to the recipient of future damages at defined intervals.


Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 13.02, eff. Sept. 1, 2003.




Sec. 41.002. APPLICABILITY. (a) This chapter applies to any action in which a claimant seeks damages relating to a cause of action.


(b) This chapter establishes the maximum damages that may be awarded in an action subject to this chapter, including an action for which damages are awarded under another law of this state. This chapter does not apply to the extent another law establishes a lower maximum amount of damages for a particular claim.


(c) Except as provided by Subsections (b) and (d), in an action to which this chapter applies, the provisions of this chapter prevail over all other law to the extent of any conflict.


(d) Notwithstanding any provision to the contrary, this chapter does not apply to:


(1) Section 15.21, Business & Commerce Code (Texas Free Enterprise and Antitrust Act of 1983);


(2) an action brought under the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code) except as specifically provided in Section 17.50 of that Act;


(3) an action brought under Chapter 36, Human Resources Code; or


(4) an action brought under Chapter 21, Insurance Code.


Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Amended by Acts 1989, 71st Leg., ch. 380, Sec. 5, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1129, Sec. 16, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 260, Sec. 9, eff. May 30, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 4.01, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 204, Sec. 13.03, eff. Sept. 1, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 806 (S.B. 563), Sec. 18, eff. September 1, 2005.




Sec. 41.003. STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES. (a) Except as provided by Subsection (c), exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from:


(1) fraud;


(2) malice; or


(3) gross negligence.


(b) The claimant must prove by clear and convincing evidence the elements of exemplary damages as provided by this section. This burden of proof may not be shifted to the defendant or satisfied by evidence of ordinary negligence, bad faith, or a deceptive trade practice.


(c) If the claimant relies on a statute establishing a cause of action and authorizing exemplary damages in specified circumstances or in conjunction with a specified culpable mental state, exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the damages result from the specified circumstances or culpable mental state.


(d) Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages.


(e) In all cases where the issue of exemplary damages is submitted to the jury, the following instruction shall be included in the charge of the court:


“You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unanimous.”


Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 13.04, eff. Sept. 1, 2003.




Sec. 41.004. FACTORS PRECLUDING RECOVERY. (a) Except as provided by Subsection (b), exemplary damages may be awarded only if damages other than nominal damages are awarded.


(b) Exemplary damages may not be awarded to a claimant who elects to have his recovery multiplied under another statute.


Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 13.05, eff. Sept. 1, 2003.




Sec. 41.005. HARM RESULTING FROM CRIMINAL ACT. (a) In an action arising from harm resulting from an assault, theft, or other criminal act, a court may not award exemplary damages against a defendant because of the criminal act of another.


(b) The exemption provided by Subsection (a) does not apply if:


(1) the criminal act was committed by an employee of the defendant;


(2) the defendant is criminally responsible as a party to the criminal act under the provisions of Chapter 7, Penal Code;


(3) the criminal act occurred at a location where, at the time of the criminal act, the defendant was maintaining a common nuisance under the provisions of Chapter 125, Civil Practice and Remedies Code, and had not made reasonable attempts to abate the nuisance; or


(4) the criminal act resulted from the defendant’s intentional or knowing violation of a statutory duty under Subchapter D, Chapter 92, Property Code, and the criminal act occurred after the statutory deadline for compliance with that duty.


(c) In an action arising out of a criminal act committed by an employee, the employer may be liable for punitive damages but only if:


(1) the principal authorized the doing and the manner of the act;


(2) the agent was unfit and the principal acted with malice in employing or retaining him;


(3) the agent was employed in a managerial capacity and was acting in the scope of employment; or


(4) the employer or a manager of the employer ratified or approved the act.


Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.




Sec. 41.006. AWARD SPECIFIC TO DEFENDANT. In any action in which there are two or more defendants, an award of exemplary damages must be specific as to a defendant, and each defendant is liable only for the amount of the award made against that defendant.


Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Renumbered from Civil Practice & Remedies Code Sec. 41.005 by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.




Sec. 41.007. PREJUDGMENT INTEREST. Prejudgment interest may not be assessed or recovered on an award of exemplary damages.


Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Renumbered from Civil Practice & Remedies Code Sec. 41.006 by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.




Sec. 41.008. LIMITATION ON AMOUNT OF RECOVERY. (a) In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages.


(b) Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of:


(1)(A) two times the amount of economic damages; plus


(B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or


(2) $200,000.


(c) This section does not apply to a cause of action against a defendant from whom a plaintiff seeks recovery of exemplary damages based on conduct described as a felony in the following sections of the Penal Code if, except for Sections 49.07 and 49.08, the conduct was committed knowingly or intentionally:


(1) Section 19.02 (murder);


(2) Section 19.03 (capital murder);


(3) Section 20.04 (aggravated kidnapping);


(4) Section 22.02 (aggravated assault);


(5) Section 22.011 (sexual assault);


(6) Section 22.021 (aggravated sexual assault);


(7) Section 22.04 (injury to a child, elderly individual, or disabled individual, but not if the conduct occurred while providing health care as defined by Section 74.001);


(8) Section 32.21 (forgery);


(9) Section 32.43 (commercial bribery);


(10) Section 32.45 (misapplication of fiduciary property or property of financial institution);


(11) Section 32.46 (securing execution of document by deception);


(12) Section 32.47 (fraudulent destruction, removal, or concealment of writing);


(13) Chapter 31 (theft) the punishment level for which is a felony of the third degree or higher;


(14) Section 49.07 (intoxication assault);


(15) Section 49.08 (intoxication manslaughter);


(16) Section 21.02 (continuous sexual abuse of young child or children); or


(17) Chapter 20A (trafficking of persons).


(d) In this section, “intentionally” and “knowingly” have the same meanings assigned those terms in Sections 6.03(a) and (b), Penal Code.


(e) The provisions of this section may not be made known to a jury by any means, including voir dire, introduction into evidence, argument, or instruction.


(f) This section does not apply to a cause of action for damages arising from the manufacture of methamphetamine as described by Chapter 99.


Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Renumbered from Civil Practice & Remedies Code Sec. 41.007 and amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 643, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, Sec. 13.06, eff. Sept. 1, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.03, eff. September 1, 2007.


Acts 2009, 81st Leg., R.S., Ch. 309 (H.B. 533), Sec. 2, eff. June 19, 2009.




Sec. 41.009. BIFURCATED TRIAL. (a) On motion by a defendant, the court shall provide for a bifurcated trial under this section. A motion under this subsection shall be made prior to voir dire examination of the jury or at a time specified by a pretrial court order issued under Rule 166, Texas Rules of Civil Procedure.


(b) In an action with more than one defendant, the court shall provide for a bifurcated trial on motion of any defendant.


(c) In the first phase of a bifurcated trial, the trier of fact shall determine:


(1) liability for compensatory and exemplary damages; and


(2) the amount of compensatory damages.


(d) If liability for exemplary damages is established during the first phase of a bifurcated trial, the trier of fact shall, in the second phase of the trial, determine the amount of exemplary damages to be awarded, if any.


Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.




Sec. 41.010. CONSIDERATIONS IN MAKING AWARD. (a) Before making an award of exemplary damages, the trier of fact shall consider the definition and purposes of exemplary damages as provided by Section 41.001.


(b) Subject to Section 41.008, the determination of whether to award exemplary damages and the amount of exemplary damages to be awarded is within the discretion of the trier of fact.


Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 13.07, eff. Sept. 1, 2003.




Sec. 41.0105. EVIDENCE RELATING TO AMOUNT OF ECONOMIC DAMAGES. In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.


Added by Acts 2003, 78th Leg., ch. 204, Sec. 13.08, eff. Sept. 1, 2003.




Sec. 41.011. EVIDENCE RELATING TO AMOUNT OF EXEMPLARY DAMAGES. (a) In determining the amount of exemplary damages, the trier of fact shall consider evidence, if any, relating to:


(1) the nature of the wrong;


(2) the character of the conduct involved;


(3) the degree of culpability of the wrongdoer;


(4) the situation and sensibilities of the parties concerned;


(5) the extent to which such conduct offends a public sense of justice and propriety; and


(6) the net worth of the defendant.


(b) Evidence that is relevant only to the amount of exemplary damages that may be awarded is not admissible during the first phase of a bifurcated trial.


Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.




Sec. 41.012. JURY INSTRUCTIONS. In a trial to a jury, the court shall instruct the jury with regard to Sections 41.001, 41.003, 41.010, and 41.011.


Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.




Sec. 41.013. JUDICIAL REVIEW OF AWARD. (a) Except as provided for in Subsection (b), an appellate court that reviews the evidence with respect to a finding by a trier of fact concerning liability for exemplary damages or with respect to the amount of exemplary damages awarded shall state, in a written opinion, the court’s reasons for upholding or disturbing the finding or award. The written opinion shall address the evidence or lack of evidence with specificity, as it relates to the liability for or amount of exemplary damages, in light of the requirements of this chapter.


(b) This section does not apply to the supreme court with respect to its consideration of an application for writ of error.


Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.




Sec. 41.014. INTEREST ON DAMAGES SUBJECT TO MEDICARE SUBROGATION. (a) Subject to this section, postjudgment interest does not accrue on the unpaid balance of an award of damages to a plaintiff attributable to any portion of the award to which the United States has a subrogation right under 42 U.S.C. Section 1395y(b)(2)(B) before the defendant receives a recovery demand letter issued by the Centers for Medicare and Medicaid Services or a designated contractor under 42 C.F.R. Section 411.22.


(b) Postjudgment interest under this section does not accrue if the defendant pays the unpaid balance before the 31st day after the date the defendant receives the recovery demand letter.


(c) If the defendant appeals the award of damages, this section does not apply.


(d) This section does not prevent the accrual of postjudgment interest on any portion of an award to which the United States does not have a subrogation right under 42 U.S.C. Section 1395y(b)(2)(B).


Added by Acts 2013, 83rd Leg., R.S., Ch. 870 (H.B. 658), Sec. 1, eff. September 1, 2013.


 


Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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Texas Contract Law and It’s Basic Elements–Fort Worth, Texas Contracts Law Attorneys

			

	
	

		





HOW TO FORM A CONTRACT IN TEXAS


 As a general rule, parties form a binding contract when the following elements are

present:  (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of the

minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent

that it be mutual and binding.  Id. at 555-56.


The material terms of a contract must be agreed upon before a court can enforce a contract. See Williams v.

Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 235 (Tex. App.-Houston [1st. Dist] 2008, no

pet.); see also T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). The interest rate

is a material term. See Williams, 264 S.W.3d at 235; T.O. Stanley Boot Co., 847 S.W.2d at 221.


“Meeting of the minds” describes the mutual understanding and assent to the agreement regarding the

subject matter and the essential terms of the contract.  Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex.

App.- Dallas 1999, pet. denied).  Mutual assent, concerning material, essential terms, is a prerequisite to

formation of a binding, enforceable contract.  T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221

(Tex. 1992).  In determining the existence of an oral contract, the court looks to the communications between

the parties and to the acts and circumstances surrounding these communications.  Palestine Water Well

Servs., Inc. v. Vance Sand & Rock, Inc., 188 S.W.3d 321, 325 (Tex. App.- Tyler 2006, no pet.).


The elements required for establishing the existence of written and oral contracts are usually the same.


See Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555 (Tex. App.- Houston [14th Dist.] 2002, no pet.).


SOME TEXAS APPELLATE CASE LAW


08-0586

PATRICK REINHARDT v. JOE WALKER; from Brazoria County; 14th district (14‑07‑00304‑CV, ___ SW3d

___, 06‑12‑08)(Proof of Agreement, limitations, damages, reasonable cost of repairs.)


08-0609

BRENDA MITCHELL v. BETTY DOMINGO; from Lubbock County; 7th district (07‑07‑00038‑CV, 257 SW3d

34, 05‑21‑08, pet denied Dec 2008)(contract formation)(we conclude she presented more than a scintilla of

evidence to raise a genuine issue of material fact on whether the parties entered into a valid oral contract

and whether Mitchell breached the contract, thereby defeating Mitchell’s no-evidence summary judgment.

Simultaneously, accepting as true the evidence favorable to Domingo and indulging every reasonable

inference in her favor, we conclude the summary judgment evidence raised a genuine issue of material fact

defeating Mitchell’s entitlement to summary judgment as a matter of law. We hold that the summary judgment

in favor of Mitchell based on Domingo’s breach of contract claim was improvidently granted. Resultantly, we

sustain issues one and two.

Accordingly, the trial court’s judgment is reversed and the cause is remanded to the trial court for further

proceedings.


OPINION


Presenting two issues, Appellant, Betty Domingo, challenges the trial court’s order granting summary

judgment in favor of Appellee, Brenda Mitchell. Specifically, by her first issue, she maintains the trial court

erred in granting Mitchell’s no-evidence summary judgment because she presented more than a scintilla of

competent evidence in support of every element of her breach of contract claim. By issue two, she contends

the trial court erred in granting Mitchell’s traditional motion for summary judgment because genuine issues of

material fact exist. We reverse and remand.


Background Facts


According to the summary judgment evidence, beginning in 2004, Domingo and Mitchell, who were co-

workers and friends, played the Texas Lottery on numerous occasions. Their arrangement included an

agreement to pool their money to purchase tickets and split all winnings equally. At times, Mitchell would

purchase the tickets without requiring advance payment from Domingo and Domingo would promptly

reimburse Mitchell, win or lose.


On March 9, 2006, Cindy Skidmore sent an e-mail to Mitchell asking if she was interested in joining a lottery

group. After enlisting a select group of friends and co-workers, including Mitchell, Skidmore formed LGroup,

a Texas Limited Partnership, for the purpose of pooling money to play the lottery. On March 23rd, she sent a

follow-up e-mail to members of the group notifying them of a meeting on March 30th at a local restaurant to

pay and select numbers for the April 2006 drawings. The e-mail also provided, “[i]f there is someone else you

want to invite (& you feel pretty sure they won’t drop out) let me know.” Mitchell did not ask Skidmore if

Domingo could participate in the April 2006 drawings.


Domingo alleges that sometime after the March 23rd e-mail, Mitchell invited her and Cindy Ruff, another co-

worker, to participate in the lottery group for April 2006, specifically, Lotto Texas and Mega Millions. Ruff

declined the offer due to insufficient funds. When Domingo inquired about how much her contribution would

be, Mitchell offered to cover for her and be reimbursed at a later time.


On March 30th, Mitchell and other members of the group met at a restaurant to pay their share for the April

2006 tickets and contribute their numbers. Domingo was not present at this meeting. It was determined that

each member of the group owed $17. Mitchell paid her contribution, but did not contribute for Domingo’s

share. According to Mitchell’s deposition testimony, she did not have enough money with her to pay for her

share and also advance $17 for Domingo to participate. Footnote


On April 29, 2006, one of the tickets purchased by the group won. After choosing the cash value option, the

winnings totaled $20,925,315.23. Domingo’s exclusion from a share of the winnings eventually prompted her

to consult an attorney because Mitchell had told her she would cover her share of the tickets. She filed suit

against Mitchell and the LGroup for breach of contract and also alleged violations of the Texas Revised

Partnership Act. Footnote   Mitchell filed a combination no-evidence and traditional motion for summary

judgment and without specifying a ground, the trial court granted summary judgment in favor of Mitchell.


By her no-evidence motion, Mitchell alleged there was no evidence of a valid contract because:


(1) she never made a valid offer to Domingo;


(2) Domingo never tendered a valid acceptance;


(3) she and Domingo never reached a “meeting of the minds” regarding the essential terms of the contract;

and


(4) Domingo never tendered sufficient consideration.


Domingo responded to the no-evidence motion by asserting there was sufficient evidence of an offer,

acceptance, meeting of the minds, and consideration to defeat the motion.


By her traditional motion, Mitchell alleged she was entitled to summary judgment as a matter of law on the

breach of contract claim because Domingo did not present evidence of a valid, enforceable contract.

Specifically, she contended the summary judgment evidence disproved:


(1) she made a valid offer to Domingo;


(2) Domingo tendered a valid acceptance; and


(3) they reached a “meeting of the minds.”


Mitchell also alleged that any oral agreement violated the Statue of Frauds because Domingo was seeking to

enforce a promise to answer for the debt of another. Domingo responded that Mitchell did not conclusively

establish the absence of a genuine issue of material fact regarding the elements of a contract. She also

asserted that the agreement was not a promise to answer for the debt of another and thus, did not violate

the Statute of Frauds.


By two issues, Domingo challenges the no-evidence and traditional summary judgment motions that resulted

in summary judgment being rendered against her. In reviewing the issues, we apply the following standards

of review.


No-Evidence Motion for Summary Judgment


In a no-evidence summary judgment motion, the movant contends that there is no evidence of one or more

essential elements of the claims for which the non-movant would bear the burden of proof at trial. Tex. R. Civ.

P. 166a(i). The trial court must grant the motion unless the non-movant produces competent summary

judgment evidence raising a genuine issue of material fact on the challenged elements. Id. See Hamilton v.

Wilson, __ S.W.3d __, No. 07-0164, 2008 WL 820717, at *1 (Tex. March 28, 2008); Morgan v. Anthony, 27 S.

W.3d 928, 929 (Tex. 2000). The non-moving party is “not required to marshal its proof; its response need

only point out evidence that raises a fact issue on the challenged elements.” Tex. R. Civ. P. 166a(i), Notes

and Comments (1997). We review the summary judgment evidence in the light most favorable to the party

against whom summary judgment was rendered, crediting evidence favorable to that party if reasonable

jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc.

v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). See

also Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).


Traditional Motion for Summary Judgment


In reviewing a traditional motion for summary judgment, this Court applies these well established rules:


1. The movant for summary judgment has the burden of showing that there is no genuine issue of material

fact and that it is entitled to judgment as a matter of law.


2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence

favorable to the non-movant will be taken as true.


3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its

favor.


See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997), citing Nixon v. Mr. Property

Management, 690 S.W.2d 546, 548-49 (Tex. 1985).


For a party to prevail on a traditional motion for summary judgment, he must conclusively establish the

absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.

R. Civ. P. 166a(c). Summary judgment is proper if the movant disproves at least one element of each of the

non-movant’s claims or establishes every element of an affirmative defense to each claim. American

Tobacco, 951 S.W.2d at 425; Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).

Once the movant has established a right to summary judgment, the non-movant has the burden to respond

to the motion for summary judgment and present to the trial court any issues that would preclude summary

judgment. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); City of Houston v. Clear Creek Basin Authority,

589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.–Houston [1st

Dist.] 1996, writ denied). Issues that the non-movant contends preclude the granting of a summary judgment

must be expressly presented to the trial court by written answer or other written response to the motion and

not by mere reference to summary judgment evidence. McConnell v. Southside School Dist., 858 S.W.2d

337, 341 (Tex. 1993)


Where, as here, a party files a combination traditional and no-evidence motion for summary judgment, we

first review the trial court’s judgment under the more stringent “no-evidence” standard of Rule 166a(i). See

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); East Hill Marine, Inc. v. Rinker Boat Co., Inc.,

229 S.W.3d 813, 816 (Tex.App.–Fort Worth 2007, pet. denied). If the non-movant fails to produce more than

a scintilla of evidence under that burden, then we need not analyze whether the non-movant’s proof satisfied

the burden under a traditional summary judgment review pursuant to Rule 166a(c). Ridgway, 135 S.W.3d at

600.


I.        Analysis of Elements of a Contract


Domingo sued Mitchell for breach of contract. The basis for Mitchell’s no-evidence motion was that there

was no evidence of the elements of a valid contract between herself and Domingo. The burden then shifted

to Domingo to present more than a scintilla of evidence to raise a fact issue on whether the parties formed a

contract. The grounds for Mitchell’s traditional motion was that there was no disputed material fact issue

regarding the elements of offer, acceptance, and meeting of the minds, and there was no writing to indicate

the existence of an agreement, in violation of the Statute of Frauds.


A. Contract


The threshold question is whether Mitchell and Domingo entered into a contract. For a contract to exist,

there must be an offer, acceptance, and consideration. See Harco Energy, Inc. v. Re-Entry People, Inc., 23 S.

W.3d 389, 392 (Tex.App.–Amarillo 2000, no pet.). The existence of an oral contract may be proved by

circumstantial evidence as well as direct evidence. Harris v. Balderas, 27 S.W.3d 71, 77 (Tex.App.–San

Antonio 2000, pet. denied). In determining the existence of an oral contract, courts look at the

communications between the parties and the acts and circumstances surrounding those communications.

Palestine Water Well Services, Inc. v. Vance Sand and Rock, Inc., 188 S.W.3d 321, 325 (Tex.App.–Tyler

2006, no pet.). To determine whether there was an offer and acceptance, and therefore a “meeting of the

minds,” courts use an objective standard, considering what the parties did and said, not their subjective

states of mind. See Komet v. Graves, 40 S.W.3d 596, 601 (Tex.App.–San Antonio 2001, no pet.).


B. Breach of Contract


The elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or

tendered performance by the plaintiff; (3) breach by the defendant; and (4) damages sustained by the

plaintiff as a result of that breach. Southwell v. University of Incarnate Word, 974 S.W.351, 354-55 (Tex.App.–

San Antonio 1998, pet. denied).


C. Offer


To prove that an offer was made, a party must show (1) the offeror intended to make an offer, (2) the terms

of the offer were clear and definite, and (3) the offeror communicated the essential terms of the offer to the

offeree. KW Const. v. Stephens & Sons Concrete Contractors, Inc., 165 S.W.3d 874, 883 (Tex.App.–

Texarkana 2005, pet. denied).


D. Acceptance


An acceptance must be identical to the offer; otherwise, there is no binding contract. Long Trusts v. Griffin,

144 S.W.3d 99, 111-12 (Tex.App.–Texarkana 2004, pet. denied).


E. Meeting of the Minds


A “meeting of the minds” is not an independent element of a valid contract. It is merely a mutuality subpart of

the offer and acceptance elements. A “meeting of the minds” is a mutual understanding and assent to the

expression of the parties’ agreement. See Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex.App.–Dallas

1999, pet. denied). If evidence of the parties’ mutual agreement consists of their conduct and course of

dealing with one another, their mutual agreement may be inferred from the circumstances, in which case the

contract is “implied” as opposed to “express.” Double Diamond, Inc. v. Hilco Elec. Co-op., Inc., 127 S.W.3d

260, 267 (Tex.App.–Waco 2003, no pet.). An implied contract involves an inference from circumstantial

evidence and is a question of fact. Id.


F. Consideration


A contract must be based on valid consideration. See Texas Gas Utilities Co. v. Barrett, 460 S.W.2d 409,

412 (Tex. 1970). Consideration is a bargained for exchange of promises that consists of benefits and

detriments to the contracting parties. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991). “It

is quite elementary that the promise of one party is a valid consideration for the promise of the other party.”

See Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101, 1105 (1923). A contract that

lacks consideration lacks mutuality of obligation and is unenforceable. Fed. Sign v. Tex. So. Univ., 951 S.W.

2d 401, 409 (Tex. 1997); Belew v. Rector, 202 S.W.3d 849, 854 n.4 (Tex.App.–Eastland 2006, no pet.).

Mutual promissory obligations by the parties to the agreement furnishes sufficient consideration to constitute

a binding contract. Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex.App.–Houston [1st Dist.] 2000, no pet.).


II. Analysis of Elements of the Contract as Between Mitchell and Domingo


Mitchell alleges she did not make an offer to Domingo, but if she did, some of the material terms of the offer

were lacking, making the contract invalid. She argues that price had not been agreed to and that Domingo

failed to submit numbers for the drawings, which was an essential element of the agreement. In response,

Domingo asserts that a reasonable price can be implied. She also asserts that submitting numbers was not

an essential term of the agreement. We agree with Domingo.


When all other elements of a contract have been met, a court may imply a reasonable price. See Buxani v.

Nussbaum, 940 S.W.2d 350, 353 (Tex.App.–San Antonio 1997, no writ), citing Bendalin v. Delgado, 406 S.W.

2d 897, 900 (Tex. 1966). According to Domingo’s affidavit, she was an experienced lottery player and

estimated that playing Lotto Texas and Mega Millions for the month of April 2006 would have cost

approximately $20 to $25. According to the evidence, Mega Millions was played every Tuesday and Friday

and Lotto Texas was played every Wednesday and Saturday. Looking at a calendar for April 2006 at $1 per

ticket, there were eight drawings for Mega Millions and nine drawings for Lotto Texas, for a total cost of $17

per participant. Thus, a reasonable price could have been implied.


Whether a term forms an essential element of a contract depends primarily upon the intent of the parties.

Potcinske v. McDonald Property Investments, Ltd., 245 S.W.3d 526, 531 (Tex.App.–Houston [1st Dist.] 2007,

no pet.), citing Neeley v. Bankers Trust Co. of Texas, 757 F.2d 621, 628 (5th Cir. 1985). The question is

whether the parties regarded the term as a vitally important ingredient of their bargain. Id.


Mitchell contends that submitting numbers was an essential term of the agreement and that without Domingo

complying, there was no valid contract. However, the evidence suggests that submitting numbers for the April

drawings was not an essential element of the contract. Copies of e-mails established that different numbers

were selected on the day after the LGroup met for dinner to decide on a price and submit numbers. Members

of the LGroup were also notified by e-mail and given a deadline of noon on April 1st in which to pick different

numbers. Thus, any numbers submitted at the meeting on March 30th were an uncertainty as they were

subject to being changed and thus, could not have been regarded by the parties as an essential element of

the contract.


According to Domingo, she and Mitchell frequently participated in lottery pools with co-workers. They

occasionally covered for each other and when Mitchell would advance Domingo’s share, Domingo would

promptly reimburse her. Shondra Stewart and Ellen Clemons, co-workers of Domingo and Mitchell, both gave

deposition testimony that Cindy Ruff, another co-worker, claimed she was present when Mitchell agreed to

cover for Domingo’s share of the April 2006 lottery tickets.


Mitchell testified that while she and Ruff were involved in a conversation about the lottery pool on the day

after the LGroup met to discuss the April drawings, Domingo entered and asked Mitchell “why didn’t you pay

my – did you pay my money?” Mitchell responded, “no, I didn’t have enough money last night.” Although she

did not tell Domingo she was excluded because she had not been invited to play with the LGroup, she did

testify that she did not cover for Domingo because she had not been invited to play for the April drawings.

Ruff testified that she recalled Domingo asking Mitchell why she did not cover her for the April drawings.


Domingo testified that she asked Mitchell “when do we need to pay our money for the April drawing?”

Mitchell then informed her that she did not put in for her because she did not have enough money to pay for

both of them. Mitchell added that the group was already set for April and instead invited Domingo to play for

the May 2006 drawings.


This summary judgment evidence, coupled with Mitchell and Domingo’s conduct and course of prior dealings

with one another, is sufficient to raise a genuine issue of material fact concerning the offer and acceptance

elements of the alleged contract between Mitchell and Domingo.


Regarding the element of consideration, the evidence shows that Mitchell agreed to advance Domingo’s

share of the lottery tickets and Domingo agreed to reimburse Mitchell. This exchange of promises is sufficient

consideration to create a binding contract. See Iacono, 16 S.W.3d at 94.


 


Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]
		
	






	
	
		
		Collections and Foreign Judgments, Construction Law, Contracts and Commercial Litigation			
	

	
	
				
				

			
							
				

					
				 			
				

			
	

				
The Texas Theft Liability Act–Fort Worth, Texas Business Law Attorneys

			

	
	

		
TEXAS CIVIL PRACTICE AND REMEDIES CODE




TITLE 6. MISCELLANEOUS PROVISIONS




CHAPTER 134. TEXAS THEFT LIABILITY ACT






Sec. 134.001. SHORT TITLE. This chapter may be cited as the Texas Theft Liability Act.


Added by Acts 1989, 71st Leg., ch. 2, Sec. 4.05(a), eff. Aug. 28, 1989.




Sec. 134.002. DEFINITIONS. In this chapter:


(1) “Person” means an individual, partnership, corporation, association, or other group, however organized.


(2) “Theft” means unlawfully appropriating property or unlawfully obtaining services as described by Section 31.03, 31.04, 31.06, 31.07, 31.11, 31.12, 31.13, or 31.14, Penal Code.


Added by Acts 1989, 71st Leg., ch. 2, Sec. 4.05(a), eff. Aug. 28, 1989. Amended by Acts 1999, 76th Leg., ch. 858, Sec. 4, eff. Sept. 1, 1999.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 10 (S.B. 953), Sec. 2, eff. September 1, 2013.




Sec. 134.003. LIABILITY. (a) A person who commits theft is liable for the damages resulting from the theft.


(b) A parent or other person who has the duty of control and reasonable discipline of a child is liable for theft committed by the child.


Added by Acts 1989, 71st Leg., ch. 2, Sec. 4.05(a), eff. Aug. 28, 1989.




Sec. 134.004. SUIT. A suit under this chapter may be brought in the county where the theft occurred or in the county where the defendant resides.


Added by Acts 1989, 71st Leg., ch. 2, Sec. 4.05(a), eff. Aug. 28, 1989.




Sec. 134.005. RECOVERY. (a) In a suit under this chapter, a person who has sustained damages resulting from theft may recover:


(1) under Section 134.003(a), from a person who commits theft, the amount of actual damages found by the trier of fact and, in addition to actual damages, damages awarded by the trier of fact in a sum not to exceed $1,000; or


(2) from a parent or other person who has the duty of control and reasonable discipline of a child, for an action brought under Section 134.003(b), the amount of actual damages found by the trier of fact, not to exceed $5,000.


(b) Each person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney’s fees.


Added by Acts 1989, 71st Leg., ch. 2, Sec. 4.05(a), eff. Aug. 28, 1989.


Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.


Martindale AVtexas[2]

		
	






	
	
		
		Collections and Foreign Judgments, Contracts and Commercial Litigation			
	

	
	
				
				

			
							
				

					
				 			
				

			
	

				
A Few Texas BBQ Joints to Hit on the Way to the Courthouse–Texas Civil Litigation Attorneys

			

	
	

		
























Franklin Barbecue

Austin

Established: 2009

Although Aaron Franklin has only been in the business for six years, his brisket has already earned him some of the culinary world’s highest honors. franklinbarbecue.com


Kreuz Market

Lockhart

Established: 1900

One of the original Texas barbecue temples, Kreuz is still marvelously minimalist. No forks, sauce, or plates. Just great flavor. kreuzmarket.com


La Barbecue

Austin

Established: 2012

Pit master John Lewis is a lanky, bespectacled perfectionist who welds his own barbecue pits, stuffs his own sausage, and holds his brisket to exacting standards. labarbecue.com


Pecan Lodge

Dallas

Established: 2010

Like many Texas joints, Pecan Lodge is all about the meat: Brisket, pork and beef ribs, pulled pork, and sausage, served glistening with fat and accompanied by pickles and raw onion. pecanlodge.com


Snow’s BBQ

Lexington

Established: 2003

Brisket, pork ribs, chicken, pork steak, and sausage. Saturdays only, starting at 8:00 a.m. Show up around noon, and 79-year-old pit master Tootsie Tomanetz might already be sold out. snowsbbq.com


Vera’s Backyard Bar-B-Que

Brownsville

Established: 1955

Texas health codes have been hard on traditional cow’s-head barbacoa, cooked on mesquite coals in an underground pit. Luckily, Vera’s has been grandfathered in—ojos and all. 956-546-4159


 




Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]




















		
	






	
	
		
		Texas Tidbits: Past and Present			
	

	
	
				
				

			
							
				

					
				 			
				

			
	

				
Historical Texas: The 3rd Texas Cavalry Regiment

			

	
	

		
THIRD TEXAS CAVALRY, ARIZONA BRIGADE. On May 29, 1862, Lt. Col. John Robert Baylor received authorization from the Confederate War Department to raise “five battalions of Partisan Rangers of six companies each” for what would become known as the Arizona Brigade. The government would pay volunteers a bounty, but expected them to furnish their own arms, equipment, and horses. The purpose of the brigade would be to retake the southwestern territories for the Confederacy, and its ranks would be made up of Texans recently returned from fighting in Arizona and territorial volunteers who had joined the Confederate command at Mesilla. George Madison, former deputy sheriff of Tucson, organized one of the battalions with companies from Burnet, San Saba, and Bell counties. Company B, organized in the San Antonio area, reenlisted many Arizona veterans as well as members of the local Tejano community. When Colonel Baylor lost command of the brigade because his controversial policies toward the Apaches in Arizona became public, Maj. Gen. John Magruder reorganized the small incomplete battalions into three regiments. Madison’s Battalion became part of the Third Texas Cavalry, Arizona Brigade. Three additional companies known as Coast Guards because they had served in defense of the Galveston area for over a year also joined the Third. Hendricks’s company from Denton, Woods’s company from Robertson and Milam counties, and the Arizona Scouts completed the regiment. For promotion to colonel of the Third Texas Cavalry, Arizona Brigade, General Magruder chose a member of his own staff, a thirty-year-old Virginian, Capt. Joseph Phillips.


Phillips’s regiment left for Louisiana on April 24, 1863, and was accompanied by Col. Barton W. Stone‘s Second Texas Partisan Rangers. They were assigned to Col. James Major‘s Second Texas Cavalry Brigade. In their first action, the Third Cavalry raided the town of Plaquemine and seized three steamers, two steam flats, approximately 100 bales of cotton, and a quantity of commissary stores. In June they took part in the assault on Fort Butler, a Union earthwork at Donaldsonville. Colonel Phillips fell dead in an unsuccessful attempt to breach the walls of the fort. George Madison, wounded in the assault, took command of the regiment. Through the rest of 1863 they continued to operate in the bayou country and took part in battles at Stirling’s Plantation and Bayou Bourbeau.


In December1863 the regiment returned to Texas and made camp at Galveston to assist in the defense against a Union expedition advancing up the coast from Brownsville. They remained in Galveston until March 1864, when the Second Texas Cavalry Brigade again marched into Louisiana to take part in the Red River campaign. During the campaign, they fought in battles at Mansfield, Pleasant Hill, Monett’s Ferry, and Yellow Bayou. When Gen. Nathaniel Banks‘s Union forces began its retreat across the Atchafalaya River, Madison’s regiment followed to harass the enemy and engaged the Union rear guard in several skirmishes. In September 1864 the regiment marched to Arkansas with the cavalry brigade and returned to Texas in December. They remained in the Houston area until the surrender of the Trans-Mississippi Department on May 26, 1865. The regiments that had once formed Major’s brigade assembled and mustered out of service at Hempstead. Under the conditions of surrender, the men retained their side arms, personal baggage, and their horses. George Madison, so often described as a daring and courageous commander, completely disappeared following the surrender of his regiment.


BIBLIOGRAPHY:


Alwyn Barr, “Texas Losses in the Red River Campaign, 1864,” Texas Military History 3(Summer 1963). George W. Baylor, John Robert Baylor: Confederate Governor of Arizona (ed. Odie B. Faulk [Tucson, Arizona: Arizona Pioneers’ Historical Society, 1966]). Confederate Muster Rolls for Lane’s, Stone’s, Baylor’s, and Phillips’s Texas Cavalry, Military Records Section, National Archives and Records Service, Washington. Correspondence File, Virginia Historical Society, Richmond, Virginia (Joseph Phillips). Morgan Wolfe Merrick, From Desert to Bayou:The Civil War Journal and Sketches of Morgan Wolfe Merrick (ed. Jerry Thompson [El Paso: Texas Western Press, 1991]). Official Records of the Union and Confederate Navies in the War of the Rebellion (30 vols.,Washington: GPO, 1894–1922). Regimental Returns for Lane’s, Stone’s, Baylor’s, and Phillips’s Texas Cavalry, Military Records Section, National Archives and Records Service, Washington. Richard Taylor, Destruction and Reconstruction: Personal Experiences of the Late War (New York: Appleton, 1879; rpt., Alexandria, Virginia: Time-Life Books, 1983). The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (Washington: GPO, 1880–1901).


James Matthews

When


See related articles by:


Civil War


General


Military Units


Citation


The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this article.


James Matthews, “THIRD TEXAS CAVALRY, ARIZONA BRIGADE,” Handbook of Texas Online (http://www.tshaonline.org/handbook/online/articles/qkt15), accessed February 11, 2015. Uploaded on April 11, 2011. Modified on June 8, 2011. Published by the Texas State Historical Association.


 


From <https://www.tshaonline.org/handbook/online/articles/qkt15>


 


Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.


Martindale AVtexas[2]
		
	






	
	
		
		Texas Tidbits: Past and Present			
	

	
	
				
				

			
							
				

					
				 			
				

			
	

				
How TWC Expects Employers to Respond to a Wage Claim Under Texas Payday Law–Fort Worth, Texas Employment Attorneys

			

	
	

		






















TWC administers the Texas Payday Law, which allows for the investigation of an employee’s claim of unpaid wages. Wage problems often can be cleared up by discussing them with your employee.


An employee can submit a wage claim up to 180 days after the date the claimed wages originally became due for payment. If part of the employee’s unpaid wages were due within 180 days, a claim can be submitted for only that part.








How to Respond to a Wage Claim




After we receive a wage claim, we will mail you a copy of the wage claim along with an Employer Response to Wage ClaimPDFform. That form provides important information about your responsibilities as an employer.


Submit your response no later than 14 days after the date the response form was mailed to you.


Mail or fax your completed response form, along with any information necessary to support the response.


Texas Workforce Commission

Labor Law Section

101 E 15th Street, Rm 124T

Austin, Texas 78778-0001


Fax: 512-475-3025


If your address or phone number changes, it is your responsibility to notify Labor Law in writing immediately.


If you have questions regarding the wage claim process, call the TWC Labor Law Section at 800-832-9243 or 512-475-2670.








Wage Claim Investigation Process




TWC takes the following steps on a wage claim:


    

  • When we receive a wage claim, we mail an acknowledgement letter to the employee making the claim. The acknowledgement letter provides a brief overview of the wage claim process and notice of receipt of a claim.
    • 

  • We notify the employer by mail that a wage claim was filed and request a response from the employer. We send the employer an employer response form with a photocopy of the claim and any attachments submitted.
    • 

  • Once the wage claim investigation begins, an investigator may contact either party for additional information as needed.
    • 

  • Based on the investigation, TWC makes a decision in the case in the form of a Preliminary Wage Determination Order and notifies the employee and employer by mail. If either the employee or the employer disagrees with the decision, each has rights to appeal.
    • 









Appealing a Wage Claim Decision




To appeal our wage claim decision, the appealing party must send a written request or submit an appeal online within 21 days from the date of the Preliminary Wage Determination Order decision notice. If you submit your appeal by fax, then the appeal date is the date and time TWC received the appeal.








Collection Action




TWC‘s Labor Law Collections Unit takes collection action on Preliminary Wage Determination Orders and appeal decisions once those rulings have become final.  Collection authority is established under the Texas Payday Law and Payday Rules.  Labor Law Collections staff do not have the authority to alter wage claim rulings.  If an employer did not receive notice of a ruling, disagrees with that ruling and did not get an opportunity to appeal that ruling, the employer may request an appeal as noted above.




See: http://www.twc.state.tx.us/businesses/how-respond-wage-claim-under-texas-payday-law








Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]












		
	






	
	
		
		Employment Law Defense			
	

	
	
				
				

			
							
				

					
				 			
				

			
	

				
Random Texas Workers’ Compensation Law Considerations from TDI–Fort Worth, Texas Workers’ Compensation Attorneys

			

	
	

		
    

  1. In workers’ compensation cases in Texas, an injury or illness is covered, without regard to fault, if it was sustained in the course and scope of employment, i.e., while furthering or carrying on the employer’s business; this includes injuries sustained during work-related travel.
    2. 

  2. Injuries are not covered if they were the result of the employee’s horseplay, willful criminal acts or self-injury, intoxication from drugs or alcohol, voluntary participation in an off-duty recreational activity, a third party’s criminal act if directed against the employee for a personal reason unrelated to the work, or acts of God.
    3. 

  3. Injured workers must file injury reports within thirty days of the injury, must appeal the first impairment rating within 90 days of its issuance, and must file the formal paperwork for the workers’ compensation claim within one year of the injury. If the work-related nature of the injury or illness was not immediately apparent, those deadlines run from the date on which the employee should have known the problem was work-related.
    4. 

  4. Three main types of benefits exist: medical benefits, income benefits, and death benefits – each type is statutorily defined and limited.
    5. 

  5. The law places a heavy emphasis on return-to-work programs, since all studies show that recovery is faster and more efficient if an employee has some kind of useful work to do.
    6. 

  6. An employee’s refusal of suitable light-duty work can stop the payment of workers’ compensation benefits.
    7. 

  7. A job injury can involve other laws as well, such as the FMLA and the ADA – in multiple-law situations, whatever law provides the greatest protection should be applied (see “Medical Leave-Related Laws”).
    8. 

  8. Chapter 451 of the workers’ compensation law prohibits discrimination or retaliatory action against employees who have filed workers’ compensation claims or are somehow in the process of doing so – stray remarks can be harmful to a company’s legal position in a Chapter 451 lawsuit, so never let anyone with your company be heard talking about a claim in terms of it being a problem, since any negative remarks can be twisted and spun to make the employer look as if it intended to retaliate against the claimant.
    9. 

  9. Design your paid leave policies to avoid “benefits stacking”, i.e., the combining of workers’ compensation and leave-related benefits in such a way that the employee ends up getting more than 100% of his or her regular wage each week – for a sample policy, see “Limits on Leave Benefits” in “The A to Z of Personnel Policies” at the TDI website, for which credit for these thoughts is due.
    10. 

  10. Employees on workers’ compensation do not have to be allowed to continue accruing leave or other benefits, but should be treated at least as favorably as other absent employees in that regard.
    11. 

  11. Loss of health insurance benefits while on workers’ compensation leave is a COBRA-qualifying event.
    12. 

  12. If a workers’ compensation claimant files an unemployment claim, he or she will be disqualified from unemployment benefits unless the workers’ compensation benefits are for “permanent, partial disability”, which translates to “impairment income benefits” under the current law – in addition, the claimant’s medical ability to work would be in question and should be raised by the employer as an issue in its response to the unemployment claim.
    13. 



See http://www.twc.state.tx.us/businesses


Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]
		
	






	
	
		
		Workers' Compensation Defense