Texas Commercial Litigator

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Surviving Spouse Prohibited from Deeding Community Estate Property to Third Party while Estate Administration Pending before Probate Court

December 7, 2019

In Texas, when a person who leaves a will passes away, the decedent’s estate vests immediately in the devisees under the will, subject to payment of the decedent’s debts. But what are the rights of the surviving spouse in his or her community property interest in the decedent’s property? This issue was recently addressed by a recent El Paso Court of Appeals decision. ( See Matter of Estate of Abraham, 583 S.W.3d 374, 377 (Tex.…

Texas Commercial Litigator

Factoring Company Does End Run around Texas Construction Trust Fund Act

By Dane Patrick

December 5, 2019

A factoring company is not subject to liability under the Texas Construction Trust Fund Act for misapplication of construction funds, according to at least one Texas Court of Appeals. Dakota Util. Contractors, Inc. v. Sterling Commercial Credit, LLC, 583 S.W.3d 199, 201 (Tex. App.—Corpus Christi 2018, pet. denied). Although, the Court indicated that this holding may frustrate the purpose of the Act to protect subcontractors and materialmen from the risk of nonpayment, the Court found…

Texas Commercial Litigator

Court Strikes Executor’s and Trustee’s Defenses for Violations of Court Orders and Abuse of the Discovery Process

By Dane Patrick

November 9, 2019

Introduction. Family estate disputes over trusts and wills often bring out the worst in the parties as was exemplified in the recent case of ESTATE OF FELIPE A. RADELAT, DECEASED, 02-17-00264-CV, 2019 WL 5792652, at *1 (Tex. App.—Fort Worth Nov. 7, 2019, no pet. h.). In this case, Lourdes Radelat sued her mother and brother, appellants Ana and Andrew Radelat, over their handling of an estate matter. The appellants’ defenses to the suit included that the…

Texas Commercial Litigator

Texas Citizens Participation Act (anti-SLAPP statute) Amended as of September 2019

By Dane Patrick

November 3, 2019

The Texas Citizens Participation Act (TCPA), our state’s version of an anti-SLAPP (Strategic Lawsuits Against Public Participation) statute has been amended in an attempt to narrow its scope. It was originally enacted to protect free speech such as a Facebook posting by a concerned citizen about a company polluting the environment, which might trigger the filing of a lawsuit by the polluter to silence the citizen expressing their concerns. In that situation, the TCPA provided…

Texas Commercial Litigator

Business Purchasing Defective Ethane Pumps Not Required to Give Seller Opportunity to Cure Defects

By Dane Patrick

October 28, 2019

It can be tricky to preserve your rights to recover damages for breach of warranty involving goods, including expensive commercial equipment, as exemplified in a recent Houston Court of Appeals case. Equistar Chemicals, LP v. ClydeUnion DB, Ltd., 579 S.W.3d 505, 509 (Tex. App.—Houston [14th Dist.] 2019, pet. filed). In this case, Equistar Chemicals, LP purchased pumps from ClydeUnion DB, Limited used for transporting ethane from one location to another. However, the pumps were defective…

Texas Commercial Litigator

Construction Project Manager not Liable for Independent Contractor Employee’s Job Injuries

By Dane Patrick

October 21, 2019

The El Paso Court of Appeals has held that the project manager of a commercial construction project was not liable for the injuries sustained by another contractor’s employee. Diaz v. R & A Consultants, 579 S.W.3d 460, 464 (Tex. App.—El Paso 2019, no pet. h.). In this construction accident case, the court was asked to decide, in essence, whether one contractor owed a duty to another contractor’s employes. The construction project involved the abatement of…

Texas Commercial Litigator

Texas Automobile Insurers Must Act in Good Faith in Investigating and Paying Uninsured Motorist Claims

By Dane Patrick

October 18, 2019

The San Antonio Court of Appeals recently held that an automobile insurer can be held liable to its policyholder for attorney fees and extracontractual damages if it breaches its duty of good faith in failing to reasonably investigate or timely pay an uninsured motorist claim. State Farm Mut. Auto. Ass’n v. Cook, 04-18-00729-CV, 2019 WL 4453763 (Tex. App.—San Antonio Sept. 18, 2019, no pet. h.). In Texas, an automobile insurance carrier must offer a policyholder…

Texas Commercial Litigator

Court Holds “As Is” Clause Does Not Bar Homebuyer’s Fraudulent Inducement Claim Against Seller

By Dane Patrick

August 11, 2019

Introduction. In Ivy v. Garcia, Buyer sued Sellers for fraudulently inducing Buyer into entering a contract and buying Sellers’ defective home. 03-18-00545-CV, 2019 WL 3756483 (Tex. App.—Austin Aug. 9, 2019, no pet. h.). Sellers filed a motion for summary judgment on the basis that the as-is clause in the purchase contact barred Buyer’s claims as a matter of law. The trial court granted the motion for summary judgment and the Austin Court of Appeals reversed.…

Texas Commercial Litigator

Another Texas Court of Appeals Dismisses Construction Claims Filed Against Architects

By Dane Patrick

July 23, 2019

Introduction. The failure of the plaintiff in a construction lawsuit to properly address the unique procedural and evidentiary issues involved may result in the dismissal of the plaintiff’s claims. This is exactly what happened to the plaintiff in a recent case filed in San Antonio, Texas against an architectural firm when the plaintiff failed to attach an affidavit known as a certificate of merit to the lawsuit. Studio E Architecture and Interiors, Inc., Appellant v.…

Texas Commercial Litigator

Multi-Million Dollar Judgment against IBM Reversed by Texas Supreme Court

By Dane Patrick

June 25, 2019

Introduction. The Texas Supreme Court reversed a judgment rendered against IBM originally in the amount of $21 million because Lufkin Industries disclaimed its reliance upon IBM’s misrepresentations in the written contract between the parties. Int’l Bus. Machines Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224 (Tex. 2019), reh’g denied (May 31, 2019). Background. Lufkin manufactures machinery and equipment used in the energy industry. It needed to upgrade its business-operations computer-software system. After several meetings with…

Texas Commercial Litigator

Legal Updates Empowering You and Your Business

Blog Authors

Surviving Spouse Prohibited from Deeding Community Estate Property to Third Party while Estate Administration Pending before Probate Court

Factoring Company Does End Run around Texas Construction Trust Fund Act

Court Strikes Executor’s and Trustee’s Defenses for Violations of Court Orders and Abuse of the Discovery Process

Texas Citizens Participation Act (anti-SLAPP statute) Amended as of September 2019

Business Purchasing Defective Ethane Pumps Not Required to Give Seller Opportunity to Cure Defects

Construction Project Manager not Liable for Independent Contractor Employee’s Job Injuries

Texas Automobile Insurers Must Act in Good Faith in Investigating and Paying Uninsured Motorist Claims

Court Holds “As Is” Clause Does Not Bar Homebuyer’s Fraudulent Inducement Claim Against Seller

Another Texas Court of Appeals Dismisses Construction Claims Filed Against Architects

Multi-Million Dollar Judgment against IBM Reversed by Texas Supreme Court

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