“It is cheaper to kill a mare than it is to cripple her.”  This was considered the law in Texas until the recent Texas Supreme Court decision of J & D Towing, LLC v. Am. Alternative Ins. Corp., 478 S.W.3d 649, 652 (Tex. 2016) involving the question of first impression before the Texas Supreme Court of whether the owner of personal property totally destroyed by another’s negligence is entitled to recover loss of use damages in addition…

In Texas, a plaintiff filing a lawsuit pertaining to a construction project for damages arising out of the provision of services by licensed design professionals such as architects or engineers, must file an affidavit by a competent expert with the lawsuit supporting the claims against these professionals. Otherwise, the lawsuit will be dismissed. This issue was recently addressed by the Houston Court of Appeals in Texas Southern University v. Kirksey Architects, Inc., 2019 WL 922296 (Tex.App.-Hous.…

Introduction. The Texas Supreme Court recently reversed another multi-million dollar business fraud verdict in Mercedes-Benz USA, LLC v. Carduco, Inc., 16-0644, 2019 WL 847845, at *1 (Tex. Feb. 22, 2019). The court found that the underlying contract between the parties negated the fraud claim. Background. In this case, Carduco, Inc. entered into a Dealer Agreement with Mercedes-Benz USA, LLC (referred to in the agreement as “MBUSA”). The agreement identified Harlingen, TX as the dealership location and…

Introduction. The Texas Supreme Court has now held that contractual limitation of liability clauses barring  a party’s right to recover punitive damages are enforceable, even if one of the parties to the contract commits fraud.  Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 17-0578, 2019 WL 406075, at *8 (Tex. Feb. 1, 2019) Background. In the Bombardier case, the plaintiffs sued defendant for breach of contract, breach of warranty, and fraud. In 2010, plaintiffs purchased…

The Texas Supreme Court has finally put to rest the question of whether the implied warranty to repair or modify tangible goods or property in a good and workmanlike manner can only be brought by a consumer under the Texas Deceptive Trade Practices Act (DTPA) or whether it can be brought under the common law as well. The Court held it could in fact be brought under both, in Nghiem v. Sajib, 2019 WL 406123…

The equitable constructive trust. In Texas, a court acting in equity may impose a constructive trust upon property held by a party to a transaction that belongs to another. The Austin Court of Appeals recently used this remedy to impose a constructive trust upon life insurance proceeds that, under a divorce decree, should have passed to the decedent’s minor children. Factual background. “Kristi and Hugh divorced in February of 2013. The agreed final decree of…

If the Texas recreational-use statute applies, then a landowner’s liability is limited when a guest is injured on the owner’s property while engaged in recreation. (See Chapter 75 of the Texas Civil Practice & Remedies Code). In the recent case of Meredith  v. Chezem , 03-18-00256-CV, 2018 WL 6425017 (Tex. App.—Austin Dec. 7, 2018, no pet. h.), the Austin Court of Appeals overturned a judgment based upon a jury verdict finding that a landowner’s negligence proximately…