Sam Emerick

/Sam Emerick

About Sam Emerick

Mr. Emerick, a seasoned collection lawyer in Dallas, and owner of the Law Offices of Sam Emerick, P.C. helps creditors obtain payments on loans and debts. Mr. Emerick delivers prompt, efficient and tangible results to creditors. The Law Offices of Sam Emerick help creditors who are frustrated attempting to collect debt. Many times, creditors believe that they will be able to resolve the problem on their own; a letter requesting payment, a phone call asking for an explanation, or a proposed meeting. Unfortunately, these measures rarely produce any tangible results.

Recovering Your Attorney’s Fees

From an adverse party, as permitted by statute, contract, or equity. Smith v. Patrick 296 SW3d 545 (Tex. 2009). To recover attorney’s fees, Plaintiff must establish the following:

  1. Plaintiff pled for attorney’s fees
  2. Plaintiff’s recovery of attorney’s fees is authorized either by statute or by a contract between Plaintiff and Defendant, or under principles of equity
  3. Plaintiff was represented by an attorney
  4. Plaintiff complied with the Today’s blog covers specific subjects with regard to recovery of attorney’s fees by the successful party, conditions precedent to recovery
  5. Plaintiff was entitled to attorney’s fees and incurred or may incur attorney’s fees which were reasonable and necessary

Attorney’s fees are recoverable under the Tex. Civ. Prac. & Rem. Code, Chapter 38; which generally is stated as the basis for recovery for services rendered, labor performed, materials furnished, sworn account or oral or written contract, and the like; that Plaintiff is represented by an attorney, presented the claim to Defendant but Defendant has not tendered payment within 30 days after presentment, and Plaintiff prevails. Palestine Water Well v. Vance 188 SW3d 321 (Tyler 2006). The attorney should state in the Petition that it seeks attorney’s fees under Chapter 38 and the attorney should consider adding a statement that the claim was presented and Defendant did not pay it, and always, that all conditions precedent have been performed or have occurred. There is some discussion regarding the deadline under Chapter 38, for Plaintiff to present its demand to Defendant. There is general agreement that it is not necessary for Plaintiff to present its demand 30 days before filing suit. See Palestine Water, above. The Corpus Christi and Houston Courts of Appeals seem to hold that the deadline for Plaintiff to make its demand is 30 days before rendition of judgment but other courts hold that the 30 day deadline is 30 days before trial, according to the San Antonio, Texarkana, and 14th District Appellate Courts. The word “tender” is used in a statute, and means that to avoid liability for attorney’s fees, the Defendant must make an unconditional offer to pay an amount not less than what it due. The tender deadline is also 30 days after Plaintiff presents its claim. These elements should always be considered in commercial collections litigation as well as Dallas collection litigation. In Medical City Dallas v. Carlisle, the Court that tht attorney’s fees are recoverable under both written and oral contract, or breach of express warranty or implied warranty. 251 SW3d 55 (Tex. 2008).

Contact Us

If you have any questions about this topic, or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us: sam@samemerick.com

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate

 

What sort of defenses should I expect? What damages can I recover?

Q- what sort of defenses should I expect him to try?

Defenses sometimes asserted include Limitations, unclean hands, voluntary payment by Plaintiff, or pleading that the money is stolen money, even from a good-faith purchaser for value. Texas Bank v. Custom Leasing 498 SW2d 243 (Tyler 1973), and also ‘Unclean hands’, may include factors showing that Plaintiff’s conduct indicate a lack of good faith, or lack of ordinary care. Where Defendant shows that Plaintiff paid with full knowledge, with no acts of fraud or duress, ‘voluntary payment’ is a valid defense.

Q- what damages can I recover?

You can seek return of the property, plus actual damages. These actuals are the measure necessary to fully compensate Plaintiff for all injuries sustained, not merely the market value. Reuber Chevrolet v. Grady Chevrolet (Dallas 2009). Also recoverable are the ‘loss of value’ which includes fair market value plus interest at the highest legal rate. Khorshid v. Christian (Dallas 2008). Here, Plaintiff recovers for the time period, while he was deprived of it’s use. In some cases the ‘intrinsic value’ of the property not returned is an additional measure of damages. Lost profits are also recoverable; courts consider the particular circumstances of each case here. Bures v. 1st National (Corpus Christi 1991). Plaintiff must prove Defendant had notice of the lost profits; generally ‘Lost Profits’ is a larger subject for another Blog post.

Contact Us

If you have any questions about this topic, or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us: sam@samemerick.com

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate

 

Defendant has my property, how do I get it returned under ‘Conversion’?

A related cause of action is ‘conversion’, generally described as a Plaintiff who owned or possessed or had the right to immediate possession of personal property, with Defendant wrongfully exercising dominion over it, with Plaintiff suffering injury. Earlier, this theory was called suing “in detinue” or “in trover”, although we do not use these any longer, it merely being called ‘conversion’. Green International v. Solis 951 SW2d 384 (Tex. 1997).

Ownership of property may be proved by evidence that Plaintiff purchased the property, or under the UCC, Plaintiff can have legal possession of property. Intern’l Freight v. American Flange (San Antonio 1999); Ward v. Shriro (Dallas 1978).

Establishing that the property was personal property includes showing that it was money, being a specific chattel, or a specific deposit in a bank. This is opposed to a ‘general deposit’ in a bank, which is how funds are usually deposited, where a specific deposit would be a deposit accompanied by an agreement that an identical deposit will be paid out for specific purpose. Since it is still the property of the depositor, it can be concerted. This theory is usually applied to a suit against a bank that improperly applies funds on deposit. Also, a security deposit can be converted, and insurance policy proceeds can be converted. Stock certificates can be converted, and legal instruments such as titles, such as to an automobile, can be converted.

Confidential information such as trade secrets or customer lists can be converted. Chandler v. Mastercraft (Ft. Worth 1987). A conversion also occurs when a party exercises dominion and control over the collateral property subject of a security agreement. Crutcher v. Continental (El Paso 1994). Mineral interests, oil and gas, severed from the realty become personal property and can be converted. Santanna Nat. Gas v. Hamon (Austin 1997). If property that is a fixture’ is severed from the property, is becomes personal property and can be converted.

Settlement funds that are paid and meant to be paid to the carrier, as a reimbursement, can be converted. In one collections case, the carrier successfully sued for reimbursement against the third-party tortfeasor, the injured employee, and the employee’s attorney. Estrada v. Wausau 985 SW2d 480 (San Antonio 1998). Animals can be converted, but not wild animals since they cannot be confined.

Some property is not subject to a conversion claim, such as intangible property, such as a trade name, or a mis-directed email communication, or real property, or fixtures. Plaintiff must show that ‘wrongfully acquired possession’ means that the property was taken without the owner’s consent. Lone Star Beer v. 1st National (El Paso 1971). Plaintiff must also show that he demand return if Defendant originally took possession legally. Usually however, demand by Plaintiff is not necessary if Defendant’s acts amount to a clear repudiation of Plaintiff’s rights, and a demand would be useless. Also, Plaintiff must show that the acts were the proximate cause of injury to Plaintiff.

Contact Us

If you have any questions about this topic, or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us: sam@samemerick.com

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate

 

 

Defendant is Holding My Money; How Do I Get it Back?

This cause of action, in Texas collections, used to be called ‘assumpsit’. It is an equitable claim that usually should be pleaded in the alternative to another claim such as ‘conversion’ which will be discussed later.

This theory is usually applied to prevent unjust enrichment, and is based on a debt not evidenced by a writing, such as contract, promissory note, etc. So we’re talking here about an oral agreement. The theory asks whether Defendant is holding money that belongs to Plaintiff, and therefore, for Dallas collections lawyers, it is less restricted to technical rules and formalities. Staats v. Miller 243 SW2d 686 (Tex. 1951). If the money, in good conscience and equity belongs to Plaintiff, Plaintiff prevails in ‘money had and received’.

Whether Defendant has obtained the money wrongfully is irrelevant to this inquiry, wrongfulness is not the premise, but instead, the question asks whether Defendant received money, and that Plaintiff is the owner of the money, so it rightfully belongs to Plaintiff.

Q- what is what he is holding, is not exactly ‘cash’?

“Money” as used here, includes actual money itself, but also the equivalent of money such as property received as money and/or property converted into money before the lawsuit. Thus, the proceeds of a sale are included, including where parties agree beforehand to divide up proceeds from a sale, or, if property is on consignment. Very often, in Texas collections actions, this is an appropriate theory to collect on a dishonored check. It is also used when money has been paid by mistake. Also refunds being held; Tanglewood v. City of Texarkana 996 SW2d 330 (Texarkana 1999).

Damages recoverable include the amount of money being withheld, obviously, but also, upon proof of fraud and/or malice, exemplary damages are recoverable. Injunctive relief is also available, costs and interest, but not attorney’s fees. Edwards v. Mid-Continent (Dallas 2008); also Nowak v. Los Patios (San Antonio 1995).

Contact Us

If you have any questions about this topic, or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us: sam@samemerick.com

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate

 

How I would Expect an Interferer to Defend the Charge? And What Damages Can be Recovered?

 

Q- How I would expect an interferer to defend the charge?

A Defendant sued for tortious interference may try to defend himself by alleging that the damages were actually Plaintiff’s fault. Southwestern Bell v. John Carlo 813 SW2d 613 (Houston 14th Dist 1991). Here, Defendant alleges that the Plaintiff’s own acts or omissions caused, or contributed to, Plaintiff’s injuries. Defendant may also asset an affirmative defense of privilege, or legal justification. A Defendant alleging privilege, says that he is exercising his own rights in good faith, or has a right that is equal to or greater than that of the contracting parties to the contract. Also, to be considered, is the potential of defense that the Defendant intentionally causing a person not to perform a contract, may not be liable for interference, if he is giving truthful information or honest advice within the scope of a request for advice.

Defendant may also assert the defense of justification. Defendant may be justified in interference if the Defendant is exercising his own legal rights or a good faith claim to a colorable legal right even if he ultimately proves to be mistaken. In the case of Calvillo vs. Gonzalez 922 S.W. 2nd 928, 929 (Tex. 1996) the Defendant’s exclusive contract to operate and staff an anesthesia department gave him the legal right to prevent the hospital from contracting with another anesthesiologist. This is a justification case. On the issue on whether the Defendant has a good faith claim to a colorable legal right, “good faith” means having an objectively well-grounded and justifiable belief of a right. “Colorable legal right” is defined as an appearance of a right that would lead others, without inquiry, to suppose the right exists. Defendant may also plead mitigation of damages to reduce the damages. Bennett v. Computer 932 SW2d 197 (Amarillo 1996).

Q- What sort of damages can be recovered?

Damages, such as lost benefits of the contract, are recoverable, where the court measures the pecuniary loss of the benefit of the contract. The standard measure of actual damages for tortious interference with existing contract is measured the same as for breach of contract, in other words, putting the Plaintiff in the same economic position that he would have been in had the contract been performed. In Boyles vs. Thompson, 585 S.W.2d 821, 835 (Tex. Civ. App-Ft. Worth 1979, no Writ), the tortious interference damages were calculated as the exact amount that the Plaintiff would have earned had the contract been completed. Also, tortious interference damages in the context of businesses generally fall under the categories of Plaintiff’s lost profits, requiring reasonable certainty as to the damages without speculation, and in the evidence of a precise calculation of those anticipated profits, Plaintiff may introduce evidence of Defendant’s profits, which can obviously relate to the profits Plaintiff may have made. In addition, Plaintiff may allege and recover exemplary damages, plus interest and court costs, but attorney’s fees are not available unless otherwise permitted under a difference statute or law.

Contact Us

If you have any questions about contract interference, or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us: sam@samemerick.com

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate

 

What is Meant by ‘Intent to Interfere’? And how does the Court look at whether the act actually ‘caused’ an injury?

Q- what is meant by ‘intent to interfere’?

Plaintiff also has the burden to show that the intent to interfere amounted to a knowing inducement or hindrance. This would be established by the Defendant intentionally inducing or causing a third party to breach its contract. The Supreme Court analyzing intentional interference is Clements vs. Withers 437 S.W. 2d 818, 820 (Tex.1969). Also, a Defendant can be liable by either preventing the performance of, or by making the performance impossible or more burdensome, difficult, or expensive. In a Houston (1st District) appellate case from 1984, Hughes vs. Houston N.W. Med. Ctr., Defendant was liable for interfering, in that his interference delayed a closing of a sale which made a certain transaction less valuable.

Q- how does the Court look at whether the act actually ‘caused’ an injury?

The last elements of proximate cause, and injury, are more straight-forward. The proximate cause element is usually a question of fact and, of course, includes cause-in-fact and foreseeability. Cause-in-fact is also called “but-for causation”, and asks whether the negligent act or omission, was a substantial factor in bringing about the injury, and whether the injury would have occurred without the act or omission. The foreseeability aspect asks whether a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. In interference cases, Plaintiff proves that the Defendant actually took an active part in persuading the party to breach its contract, and that mere proof that Defendant benefitted somehow from the broken contract, however, is not sufficient. On the issue of damages, oftentimes expert testimony will be used to determine value before and after the interference.

Contact Us

If you have any questions about contract interference, or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us: sam@samemerick.com

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate

 

What kind of ‘interference’ with a contract is the Court looking for?

The next element that Defendant willfully and intentionally interferred, contains several elements also. First, the Defendant must be a stranger to the contract, in order to tortiously interfere with it. A Defendant cannot tortiously interfere with its own contract. In the corporate context, a corporate agent, accused of interfering with the corporation’s contract, must be proven to have willfully and intentionally served his own personal interest at the corporation’s expense. Powell Indus v. Allen 985 SW2d 455 (Tex. 1998). It has been held in Texas that a corporate agent’s mixed motives, i.e. that benefit both himself and the corporation are insufficient to establish such liability. Obviously, it is for the corporation to complain about the agent’s actions. The Texas Supreme Court case of Holloway vs. Skinner (Tex.1995) is often quoted as authority in tortious interference cases. On the issue of corporate agency interference, the Holloway case stands for the proposition that it is a close question whether to require a Plaintiff to prove or the Defendant to disprove, that Defendant interfered with the contract for personal reasons, but for reasons discussed in the case, the Supreme Court felt that the burden was better placed on the Plaintiff to prove that the agent acted willfully and intentionally to serve his own personal interests. It will also be Plaintiff’s burden to prove that the interferring Defendant had actual knowledge of the contract, or had knowledge of facts and circumstances that would lead a reasonably prudent person to believe there was a contract in which Plaintiff had a protectable interest. A Defendant ignorant of the contract’s existence, therefore, cannot interfere with the contract.

Next, Plaintiff must show Defendant’s interference. Such intentional is only actionable if it is intentional. Such intent is said to be an intent to interfere, i.e. to cause a breach of contract. This is different than requiring proof that the Defendant intended to injure, but requires that Defendant wanted to cause the consequences of his act or, in other circumstances, that certain consequences were substantially certain to result from his acts. Greenville Automatic v. Automatic Propane Dallas 2015).

Contact Us

If you have any questions about contract interference, or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us: sam@samemerick.com

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate

Intentional Interference with an Existing Contract

This series of blogs will discuss the tort of Intentional Interference with an existing Contract. This is slightly different than the tort of Intentional Interference with Prospective Business Relations, however. The elements of an action for tortious interference with an existing contract are as follows:

  1. Plaintiff had a valid contract

  2. Defendant willfully and intentionally interfered with the contract

  3. The interference proximately caused injury to Plaintiff

  4. Actual damages were incurred as a result

Prudential Insur. V. Financial 29 SW3d 74 (Tex. 2000); Holloway v. Skinner 898 SW2d 793 (Tex. 1995).

Q- does not the contract allegedly interfered with have to have to be a valid contract?

The first element of valid contract seems rather obvious, the existence of a valid contract, however, there are always twists and turns even in this element. For instance, Defendant cannot be liable for tortiously interfering with a void contract. Contracts that are illegal or against public policy are void, and not considered contracts at all. A contract is illegal if the performance of the contract will result in a violation of a law or statute, or if the contract is contrary to public policy, or if the contract is an agreement to use the subject matter for an unlawful purpose. An example of a contract against public policy, would be one where a contract is an unreasonable restraint of trade and, therefore, unenforceable on public policy grounds.

The above void contract should be distinguished from voidable contracts, however. A contract may be the subject of an interference cliam even though it is unenforceable, i.e. voidable, between the contracting parties. Voidable contract examples would be contracts voidable because of the statute of frauds, or lack of mutuality, or because one of the parties was a minor, or because of formal defects in the contract, because of unconscionability concerns, or because conditions precedent had not occurred, and the like. A Defendant cannot for those reasons stated, interfere with a performance of a contract before the contract is voided. A Defendant may also tortiously interfere with a terminable-at-will contract. Juliette Fowler Homes v. Welch 793 SW2d 660 (Tex. 1990).

Contact Us

If you have any questions about business disparagement or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us: sam@samemerick.com

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate

I was about to get a contract signed, but another company then ‘interfered’; can I sue that other company that caused the contract to not be entered into?

Closely related, is a cause of action based upon tortious interference with prospective relations. Under this theory, there will be shown a reasonable probability that the creditor would have entered into a business relationship with a third person, but the Defendant intentionally interfered with such relationship and such conduct was independently tortious or unlawful, also proximately causing actual damages to Plaintiff. In this situation, often the Plaintiff will establish that it had a business relationship that had not yet been reduced to contract or some continuing business relationship, that was not formalized by a written contract. Defendant need not prove that the contract would have been made ‘but for’ the interference. Coinmatch v. Aspenwood 417 SW3d 909 (Tex. 2013). The Restatement of Torts, gives examples of prospective contracts subject to tortious interference claims such as:

  1. Obtaining employment or employees
  2. The opportunity to buy or sell land or services
  3. Relations leading to potentially profitable contracts
  4. Options to renew or extend contracts

Again, for Texas debt collections lawyers, the creditor will show that the Defendant intentionally interfered with the formation of a relationship, with actual knowledge of the business relationships.

Contact Us

If you have any questions about business disparagement or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us: sam@samemerick.com

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate

What do I need to show, to prove someone knows they are interfering with my business?

Switching gears a bit from fraud is the cause of action for “tortious” interference with existing contract. The general elements of such cause of action are as follows:

  • A valid contract
  • 2) that the Defendant willfully and intentionally interfered with,
  • 3) proximately causing injury to Plaintiff and
  • 4) the Plaintiff incurred actual damage or loss.

The Plaintiff, obviously, must show it had a valid contract, not some other contract such as an unenforceable contract, or a terminable contract. The Plaintiff will plead and prove that the Defendant willfully and intentionally interfered with that contract. Browning v. Reyna 865 SW2d 925 (Tex. 1993). The Defendant may try to defend that he is a stranger to the contract, as the Defendant cannot tortiously interfere with its own contract. In these collection matters, the creditor or factor will establish that the Defendant either had actual knowledge of the contract, and that the Plaintiff was interested in it, or, the Defendant has knowledge of certain facts and circumstances that would lead a reasonably prudent person to believe there was a contract in which the creditor had an interest. In proving the Defendant’s interference with the contract, the Plaintiff will need to establish that such Defendant’s interference was intentional. Such interference does not necessarily require an intent to injure Plaintiff but it does require an intent to interfere. Greenville v. Automatic 465 SW3d 778 (Dallas 2015). A Defendant may be held liable if it is shown that such Defendant intentionally induced a third party to breach a contract with a creditor, or that the Defendant prevented performance by Defendant, by making the performance impossible, or more burdensome, difficult, or expensive. In this situation, the creditor in a tortious interference claim can recover damages for lost benefits under the contract, its lost profits, which must be proved by the creditor, as not a precise calculation of anticipated profits, but lost profits must be proved with reasonable certainty. Browning, above at p. 549. In certain cases, a Plaintiff can also recover exemplary damages, but not attorney’s fees. Plaintiff’s attorney should take enough time with his client, to show the Court, that the anticipated amount of lost profits is capable of being reasonably easy to calculate, not just speculation.

Contact Us

If you have any questions about business disparagement or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us: sam@samemerick.com

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate