Ellison • Keller A T T O R N E Y S A T L A W Preparing your Damages Case/Defense Texas Lawyer In-House Counsel Summit November 20, 2013 T racey N. Ellison Kelley M. Keller Debra D. Hovnatanian 5120 Woodway Dr., Suite 6019 Houston, Texas 77056 713-266-8218. Considerations.
Ellison • KellerA T T O R N E Y S A T L A WPreparing your Damages Case/DefenseTexas Lawyer In-House Counsel SummitNovember 20, 2013Tracey N. EllisonKelley M. KellerDebra D. Hovnatanian5120 Woodway Dr., Suite 6019Houston, Texas 77056713-266-8218
Onyung v. Onyung, No. 01-10-00519-CV, 2013 Tex. App. LEXIS 9190 (Tex. App.—Houston [1st Dist.] July 13, 2013, pet. denied).
Jury awarded the plaintiff damages for mental anguish arising from the defendant’s breach of fiduciary duty as the plaintiffs’ lawyer in a series of business transactions. The defendant asserted that damages for mental anguish were not recoverable on an award of purely economic damages. 2013 Tex. App. LEXIS 9190, at *44-45. The court found that there was no evidence in the record “demonstrating that [plaintiff] experienced an emotional response meeting the legal standard for mental anguish,” an accordingly held that the evidence was legally insufficient to support a finding that the plaintiff “experienced a high degree of mental pain and distress that disrupted her daily routine as a result of” the defendants’ conduct. Id. at *48.
Drury Southwest, Inc. v. Louie Ledeaux #1, Inc., No. 04-12-00837-CV, 2013 Tex. App. LEXIS 13345 (Tex. App.—San Antonio Oct. 30, 2013, no pet.).
Landlord tenant dispute following landlord’s lock-out of a restaurant following a default in payment. The jury found in favor of the tenant on several alternative theories. The tenant elected to recover under the DTPA. In an earlier appeal, the court of appeals reversed the award of actual damages under the DTPA as outside of the range of evidence and remanded the case to the trial court to allow the tenant to make a re-election of remedies. On remand, the tenant elected to recover on its fraud theory. 2013 Tex. App. LEXIS 13345, at **6-7.
The court held that the evidence supported a finding of fraud based on misrepresentations made during the lease negotiations to induce the tenant into agreeing to lease the premises and that there was legally sufficient evidence to support an award for out-of-pocket expenses incurred in reliance on the misrepresentations. Id. at **13-16. “[A]s long as the award is within the range of damages supported by the evidence, the reviewing court is not permitted to speculate about how the jury actually arrived at its award.” Id. at *17.
The court reviewed the award of exemplary damages under the criteria set by Tex. R. Civ. P. § 41.001 et seq. and held that the evidence supported a finding that the landlord’s fraudulent conduct resulted in a failed venture for the tenant and that legally sufficient evidence supported an award of exemplary damages. Id. at **18-23.The court further found that the award was not excessive. Id. at **24-29.
Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.—Dallas 2013, no pet.).
The court held that although a pre-injury release met the express negligence test for releasing claims arising from the defendant’s negligence, it did not cover gross negligence claims “and did not preclude proof of claims for negligence and actual damages.”
Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78 (Tex. App.—Houston [14th Dist.] 2013, pet denied).
Apartment complex guests sued a number of defendants for malicious prosecution, false imprisonment, and assault after towing company employees beat the guests with a flashlight given to them by the apartment security guard. The jury found for the plaintiffs on the false imprisonment and assault claims. The court held that there was legally sufficient evidence of malice by the towing company employees and upheld an award of exemplary damages.
In re Nalle Plastics Family L.P., 406 S.W.3d 168 (Tex. 2013).
The court held that attorneys’ fees incurred in prosecuting a claim are not “compensatory damages” or “costs” and so are not to be included in the calculation of a supersedeas bond.
Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013).
Wrongful death action in which the court considered the “viability of the ‘unlawful acts doctrine’ as an affirmative defense in light of Texas’s proportionate responsibility scheme and the statutory affirmative defense” of assumption of the risk provided in Tex. Civ. Prac. & Rem. Code § 93.001.
Under common law, the unlawful acts doctrine precluded a recovery by a plaintiff if it was shown that at the time of the injury, the plaintiff was engaged in an illegal act that contributed to the injury.
The court held that “the Legislature’s adoption of the proportionate responsibility scheme in Chapter 33 of the Civil Practice and Remedies Code evidenced its clear intention that a plaintiff’s illegal conduct not falling within a statutorily recognized affirmative defense be apportioned rather than barring recovery completely.”