Texas Commercial Litigator

Legal Updates Empowering You and Your Business

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COVID–19 Contractual Defense of Force Majeure

March 26, 2020

In Texas, like most states, performance under a contract containing a force majeure clause may be excused by acts of god or other exigent circumstances defined by the clause. Force majeure is a creature of contract and will only be applicable to the extent expressed in the contract. “The scope and effect of a “force majeure ” clause depends on the specific contract language, and not on any traditional definition of the term.” Virginia Power Energy Mktg.,…

Texas Commercial Litigator

Texas Court of Appeals Holds Workers Compensation Nonsubscribing Workers Compensation Employer Liable for Employee’s Injuries Sustained in Fall from Ladder

By Dane Patrick

February 9, 2020

Texas Court of Appeals Holds Workers Compensation Nonsubscribing Workers Compensation Employer Liable for Employees Injuries Sustained in Fall from Ladder The benefit to Texas employers in maintaining workers compensation insurance is that they are shielded from liability to employees injured on the job. In exchange, employees are entitled to recover workers compensation benefits for injuries sustained on the job without having to prove that their employer was at fault. If an employer fails to maintain…

Texas Commercial Litigator

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

By Dane Patrick

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

Legal Updates Empowering You and Your Business

COVID–19 Contractual Defense of Force Majeure

Texas Court of Appeals Holds Workers Compensation Nonsubscribing Workers Compensation Employer Liable for Employee’s Injuries Sustained in Fall from Ladder

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

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