Texas law

/Texas law

Types of Damages in Texas

What damages can I recover in my collection lawsuit?

Actual damages, the Texas collection lawyer seeks damages called “compensatory damages”, awarded to compensate for an injury or to repair a wrong. Actual damages may be either economic or non-economic and do not include exemplary damages. Economic damages compensate for actual economic or pecuniary loss, and non-economic damages are awarded to compensate for physical pain and suffering, mental and emotional pain or anguish, disfigurement, physical impairment, loss of companionship in society, inconvenience, loss of enjoyment of life, injury to reputation, and all other non-pecuniary losses, other than exemplary damages.

How do I allege damages in my lawsuit?

In pleading damages, Plaintiff should plead sufficient facts, in order to give Defendant fair and adequate notice of the damages sought and enough information for Defendant to prepare a defense. Horizon v. Auld 34 SW3d 887 (Tex. 2000). For pleading purposes, actual damages are classified as either direct or consequential. Direct damages are also sometimes called “general damages”, and consequential damages called “special damages”. General damages are further defined as: those that are the necessary and usual result of the Defendant’s wrongful acts. Plaintiff need not plead general damages. Special damages are those that result naturally but not necessarily from Defendant’s wrongful acts. Special damages must be foreseeable, not too remote or uncertain, and must be plead. Although general damages do not need to be specifically plead, if Plaintiff pleads special damages, but not general damages, then Plaintiff’s right to recover general damages may be waived. Weingartens, 461 SW2d 260 (Houston 1970). Also see Texas Rule 56 which requires special damages to be plead.

How do I come up with the “amount” of damages?

Although under Texas Rules, a Plaintiff is not required to plead the measure of damages, and need only allege sufficient facts to stated cause of action from which the court and determine the proper measure of damages, the new Texas Rules of Civil Procedure requires certain pleading requirements or the court may kick back the petition. Under Rule 47, if Plaintiff is pleading unliquidated damages, Plaintiff must only plead that they are within the jurisdictional limits of the court. Nominal and exemplary damages are considered special damages, and must be specifically pleaded. (read the new Rule 47, or your pleading will be kicked back by the Court Clerk to be refiled).

What if I think of more damages after the trial is over?

Under the One Satisfaction Rule, even though a party is entitled to sue and seek damages on alternative theories of liability, Rule 48, the One Satisfaction Rule prevents a Plaintiff from receiving a double recovery under a multiple theories of liability, regardless of the number of theories of liability pleaded Galle, Inc. v. Pool 262 SW3d 564 (Austin 2008). Therefore, a judgment which awards damages on more than one theory may stand only if the theories arise from separate and distinct injuries, and such damage findings are entered on each theory. Under the One Satisfaction Rule, several recent cases have addressed the number of theories of liability pleaded: Lundy v. Masson, 260 S.W.3d 482 (Houston 2008); Birchfield v. Texarkana Memorial, 747 S.W.2d 361 (Tex. 1987). In the Lundy case, the Plaintiff received what amounted to a double recovery, because the attorney did not distinguish between damages which were cause by fraud, and damages which were caused by Defendant’s breach of fiduciary duty. Again, the court’s focus is the judgment awarding damages on more than one theory. The court looks at if the theories arise from separate and distinct injuries, have separate and distinct damages been testified about, and if so, the appellate court will not overrule a judgment which lists and itemizes the separate damages for the separate theories of liability.

Under the Collateral-Source Rule, payments made to, or benefits conferred upon, a Plaintiff from sources other than the Defendant, are not credited against the Defendant’s liability, even if they cover all or some of the damages for which Defendant is liable. This rule, therefore, is an exception to the One Satisfaction Rule. Taylor v. American 132 SW3d 613 (Houston 14th 2004) The policy of this rule is to make the Defendant completely responsible for its wrongful actions, even if it may sometimes result in a windfall for the Plaintiff. The courts consider it more appropriate that the Plaintiff benefit from a windfall than the Defendant. This rule applies to both contract and tort actions. The Texas legislature tried to repeal certain aspects of the Collateral-Source rule in 2003, but none of the proposed amendments passed. The Collateral-Source rule is actually a rule of evidence. Therefore, it prevents a Defendant from introducing evidence of benefits which were received by the Plaintiff from outside sources. One exception to the evidence rule would be if evidence of Collateral-Source benefits are offered for impeachment purposes, in response to Plaintiff’s testimony, that is inconsistent with the receipt of benefits. Examples of this rule include evidence of receipt of insurance benefits, governmental assistance, tax deductions, or gratuitous services.

Aren’t we talking mostly about damages under a contract?

Another rule for measuring damages for contractual injuries is called Expectancy Damages, also known as Benefit of the Bargain. Generally, Plaintiff can recover damages for its expectation interest in the contract. These damages give Plaintiff the benefit of its bargain on the theory that it puts Plaintiff in the same economic position it would have occupied had the contract been performed. Sharifi v. Steen 370 SW3d 126 (Dallas 2012). The loss in value of the Defendant’s performance is sometimes characterized as Plaintiff’s anticipated receipts under the contract. Because the difference between what Plaintiff expected, and what Plaintiff actually received can be demonstrated in several different ways, no single formula can be written to cover every type of breached contract. To prove Expectancy Damages, Plaintiff can offer its own testimony, or the testimony of an expert witness, about the loss in value or consequential losses.

What about my lost profits?

Lost profits are a category of damages that a Plaintiff can recover if it can show damages that were lost as the natural and probable consequence of the breach. These anticipated profits cannot be recovered if they depend on uncertain and changing conditions such as market fluctuations or business risks, or if there is no evidence introduced from which profits can be estimated. Hernandez v. Sovereign 343 SW3d 162 (Dallas 20111) Plaintiff’s evidence should also allow for any expenditure it would have had to make in completing the contract. Lost profits must be specifically pleaded. Lost profit evidence must show the amount of the loss by competent evidence and with reasonable certainty. ERI Consulting v. Swinnea 318 SW3d 867 (Tex. 2010).

 

Defenses- Part 1

LAW OFFICES OF SAM EMERICK, P.C.

Feb. 4, 2018

 

Today’s blog will center on some of the defenses available in a breach of contract action, concerning Texas collections cases. The first area we will address often seen by Texas collection attorneys is the defense of ‘waiver’. A Waiver is defined as an intentional relinquishment of a known right and is either made expressly or indicated by conduct, that is inconsistent with an intent to claim the right. Several recent Texas Supreme Court cases construing “waiver” are as follows:

  1. Ulico Cas. Vs. Allied Pilots, 262 S.W.3d 773 (Tex. 2008);
  2. Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2003)
  3. Perry Holmes v. Cull, 258 S.W.3d 580 (Tex. 2008)

Of course, the defense of waiver is fact-specific, with the court looking, not usually for an express statement by a Plaintiff that he has waived a claim, but really, conduct indicating that Plaintiff has waived his rights. One way to indicate an intent to claim a right, thereby waiving the right, would be the Plaintiff’s prolonged silence or inaction, in asserting a known right. Martin v. Birenbaum, 193 S.W.3d 677 (Tex. App. – Dallas 2006, pet. denied).

The Plaintiff’s intent is the primary factor in determining waiver, and in the absence of a clear intent expressed in words, acts, or conduct, waiver will be implied only to prevent fraud or inequitable consequences. Stowers v. Harper, 376 S.W.2d 34 (Tex. App. – Tyler 1964, writ ref’d n.r.e.).

Also, a Plaintiff may affirm a contract which has been breached, thereby waiving Plaintiff’s claim for breach of the contract, in one of two ways, such as:

  1. Showing a conscious intent to waive its claim, or
  2. Plaintiff acting to induce the Defendant’s detrimental reliance, thereby creating an estoppel situation.

There are several different fact scenarios which do not necessarily constitute waiver in Texas. The first would be Plaintiff accepting Defendant’s late performance. Another case out of the Tyler Court of Appeals held that when Plaintiff accepted late payments from Defendant, this did not clearly and unequivocally show that Plaintiff intended to relinquish its rights on prompt payment. Also in breach of contract situations, if a Plaintiff continues to perform after Defendant breaches, that is not necessarily a waiver situation. Also, where Plaintiff honestly tries to induce the Defendant to continue to perform Defendant’s obligation on the contract, this will not necessarily show a clear intent by Plaintiff to waive its rights.

We have much more to cover next week so please stay tuned for Part 2 on Defenses.

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

 

 

QUANTUM MERUIT – I didn’t get a contract signed; can I still sue for the services I provided?

Today’s Blog addresses the Texas debt collections issue of QUANTUM MERUIT—an equitable theory of recovery, intended to prevent unjust enrichment, when there is AN IMPLIED AGREEMENT TO PAY FOR SERVICES RECEIVED. In re Kellogg Brown 166 SW3d 732 (Tex. 2005), also Barnett v. Coppell 123 SW3d 804 (Dallas, 2003). If an express written agreement covers the transaction in dispute, quantum meruit cannot be brought or used by the Texas collections attorney, because QM is an independent theory that does not arise from a contract.

The elements of QM are as follows: 1- Plaintiff provided valuable services or materials; 2- the services or materials were provided for Defendant; 3- Defendant accepted the services or materials; 4- Defendant had reasonable notice that Plaintiff expected compensation for the services or materials furnished Excess Underwriters v. Frank’s casing Crew 246 SW3d 42 (Tex. 2008). Upon a jury trial concerning QM, the Texas Pattern Jury Charge can be found at PJC 101.42.

Q- what are some Texas cases denying quantum meruit damages?

A few cases have addressed situations where QM was not available. The first was LTS Group v. Woodcrest 222 SW3d 918 (Dallas 2007, no pet.) where the Dallas Court correctly ruled that “the expectation of a future business advantage or business opportunity, cannot form the basis of a cause under QM”. However, LTS was decided because of the inadequate proof provided by the furnisher of the services. The furnisher, LTS, only testified, when asked about the basis for its opinion as to the value of the services provided, that ‘most brokers get about 4%.’ The Court said that testimony constituted “no evidence” of the value of the services provided nor was it any evidence of the reasonable value of the work provided, and also quoted the M.J. Sheridan case 731/620 (Houston 1st 1987).

Word to the wise in Dallas commercial collections actions would be, make sure you prove up your QM damages, thoroughly. The LTS cases, above, was later cited by the Houston 1st Dist. case of Green Garden v. Schoenmann 2010 Tex App. LEXIS 8887 (Nov. 2010). In Green it was argued that a QM recovery is not available when a party provides services “merely in hopes of obtaining a future business relationship”. The Houston Court however, stated the Tx. Supreme Court view that “in certain circumstances, a party who provides services with an expectation of entering into a future business agreement may seek recovery of the value of said services” under QM if there is sufficient evidence of the remainder of the QM elements. Vortt Exploration v. Chevron 787 SW2d 942, (Tex. 1990). InVortt, the Tx. Sup. Ct. also noted that the parties had been negotiating for 4 years to reach a joint operating agreement, and services were provided only in the expectation that such agreement would be reached. Under those circumstances a QM claim was allowed.

Also, if the service provider provides the services, for the provider’s own benefit, no QM claim will be allowed. Again, the services, and evidence about them, must be provided to the Defendant.

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

 

Recovering Your Attorney’s Fees – Conclusion

In most cases, Plaintiff proves his attorney’s fees by offering expert testimony. Failure to timely designate Plaintiff’s attorney as an expert witness may result in exclusion of the expert attorney fee testimony unless the party can show good cause or lack of unfair surprise. Usually, the party’s trial attorney is qualified the give expert testimony, but an attorney who has not worked on the case may testify, if that attorney establishes that they are knowledgeable about the case and work involved and testifies that they reviewed the file including pleadings, discovery, time sheets, and discuss the case with the trial attorney. A recent Dallas Court of Appeals opinion on this subject is Arthur Gallagher v. Dieterich (Oct. 2008). In Gallagher, the Dallas Court noted that evidence of each of the Anderson factors is not required to support the award of attorney’s fees, and the expert is not required to have personal knowledge of the matters about which the attorney testifies. In this case, the attorney testified that he reviewed the former attorney’s file, his level of experience, the type of work he did not the case, the number of hours worked and the billing rate and testified that the fees were reasonable and necessary. The appellate court concluded that that testimony was sufficient to support the attorney’s fees award.

Also useful is what’s called the Lode Star calculation, under which the determination of what constitutes reasonable attorney’s fees is a two-step process:

  1. The court determines the number of hours spent and the hourly rate and multiplies them.
  2. Then the Lode Star figure can be adjusted upward or downward, using the Johnson or Anderson factors.

Importantly, when a prevailing Plaintiff seeks attorney’s fees under Chapter 38, attorney’s fees are mandatory. The Texas Supreme Court has held that in a suit on sworn account, an award of no attorney’s fees is improper. In Smith v. Patrick above, the Supreme Court of Texas said that if an award is proper under sec. 38.001(8), the court has no discretion to not award attorney’s fes. A mandatory fee award is also mandatory under certain insurance code actions, property code actions, the Texas DTPA, the Probate Code, and under the Texas Debt Collection Act. Under the Debt Collection Act, a finding that Plaintiff’s suit was brought in bad faith or for the purpose of harassment, attorney’s fees for the Defendant are mandatory. Awards are discretionary, however, under the Declaratory Judgment Act, suits affecting a parent-child relationship, motor vehicle claims under the Property Code and other. Pre-Judgment interest is not allowed on attorney’s fees. Usually the award should be to the party, not directly to the attorney. The fees award should assess fees against the party, not against that party’s attorney.

As a defense to payment of fees, Defendant is not liable for Plaintiff’s attorney’s fees if, after Plaintiff presented its claim, Defendant timely tendered payment for the just amount owed but Plaintiff refused to accept it. Fees are also not recoverable if Plaintiff made an excessive demand and Defendant must affirmatively plead and prove that Plaintiff’s demand was excessive and must request and obtain findings on the essential elements of an excessive demand.

There is no requirement that the demand for payment be made prior to the time suit is filed see Palestine Water, above.

Attorney’s fees are also recoverable under theories of equity, known as the common-fund doctrine, or the attorney’s fees as damages theory. Under the common-fund doctrine, those who receive the benefits of a lawsuit should bear the fair share of the expenses. When a few succeed in securing a benefit for the group, the entire group should then share the cost of securing the benefit. Under the attorney’s fees as damages theory, Plaintiff may recovery attorney’s fees as actual damages event thought there is not statutory or contractual basis for recovery such as malicious prosecution cases, or legal malpractice cases.

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

 

Recovering Your Attorney’s Fees – Part 2

Regarding the element that Plaintiff must prevail, Plaintiff must secure favorable findings on both liability and damages. If Plaintiff secures a favorable finding on liability, but with no damage award, Plaintiff has not been considered to prevail and it not entitled to attorney’s fees. Plaintiff is not required to obtain a net recovery, however, before recovering attorney’s fees. On this point, the successful Plaintiff is entitled to attorney’s fees even when the entire amount the Plaintiff is awarded is entirely offset by damages awarded to Defendant.
For recovery, Plaintiff must have incurred reasonable attorney’s fees, and the fees must be reasonable. The general rule is for Plaintiff to prove the usual and customary attorney’s fees for the claim and once proved; the fees are presumed to be reasonable under Chapter 38. This presumption can be rebutted by competent evidence. In 1997, the Texas Supreme Court decided Arthur Anderson v. Perry Equipment, 945 S.W.2d 812 (Tex. 1997), and adopted eight (8) factors to be used to determine the reasonableness of attorney’s fees. These factors have been taken from the Texas Disciplinary Rule of Professional Conduct which states that the list is not exclusive. The eight factors used by Anderson are as follows:

1. The time and labor required, the novelty and difficulty of the questions involved and the skill required to perform the legal services properly
2. The likelihood that acceptance of the particular employment will preclude other employment by the attorney
3. The fee customarily charged in the locality for similar legal services
4. The amount involved and results obtained
5. The time limitations imposed by the client or circumstances
6. The nature and length of the professional relationship with the client
7. The experience, reputation and ability of the attorney performing the services
8. Whether the fee is fixed or contingent on results obtained, i.e. the uncertainty of collection before the legal services are rendered

The Anderson factors are not exclusive, however, and other matters may be considered including the entire record, evidence presented on reasonableness, the common knowledge of attorneys and judges, the relative success of the parties, the client’s interest at stake, and the responsibility imposed upon the attorney. Also, a Chapter 38 claim, a trial court without receiving evidence, can take judicial notice of the usual and customary fees for the claim in the content of the file, assuming again that recovery is based upon a Chapter 38 claim.

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

 

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