Declaratory Judgment Act Lawsuit in Texas

The purpose of the Declaratory Judgments Act is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (Vernon 2008); see Bonham State Bank, 907 S.W.2d at 467; Indian Beach Property Owners’ Ass’n v. Linden, 222 S.W.3d 682, 699 (Tex. App.—Houston [1st Dist] 2007, no pet.). The statute is remedial and to be liberally construed. A declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties, and a declaration will resolve the controversy. Bonham State Bank, 907 S.W.3d at 467; Fort Bend County v. Martin-Simon, 177 S.W.3d 479, 482–83 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A trial court has discretion to enter a declaratory judgment so long as it will serve a useful purpose or will terminate the controversy between the parties. Bonham State Bank, 907 S.W.3d at 467 (citing James v. Hitchcock Independent School Dist., 742 S.W.2d 701, 704 (Tex. App.—Houston [1st Dist.] 1987, writ denied).

Justiciable controversy is when parties have a dispute or controvery over an issue to a point of the necessity of a referees' interpretation. In this case, Texas courts are afforded the judicial review of such ripe controversies. See Ainsworth v. Oil City Brass Works, 271 S.W.2d 754, 760–61 (Tex. App.—Beaumont 1954, no writ) (holding that an action for declaratory judgment lies when the fact situation manifests the presence of “ripening seeds of a controversy”).

Moreover, a declaratory judgment can be a proper method to determine that a party performed under a contract. See Martin-Simon, 177 S.W.3d at 483–84 (holding that judgment was proper to determine that plaintiff paid her taxes). See also, Indian Beach, 222 S.W.3d at 700 (holding that whether the plaintiffs’ construction of a fence was in compliance with deed restrictions applicable to their property was not a purely factual dispute but related to their status with regard to the fence and deed restrictions, and was a proper subject for declaratory judgment). There are numerous other cases where a claim under the Declaratory Judgment Act would be proper, but the key underlying threshold would be a justiciable controversy. That is a controversy ripe for a court to referee or decide.

Employment Retaliation Claims in Texas

To prove a retaliatory discharge claim in Texas, the employee must show that the employer's action would not have occurred when it did had the employee's protected conduct; for example, filing a workers' compensation claim, or filing an EEOC claim -- not occurred. See Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005). Circumstantial evidence and reasonable inferences from the evidence can establish the causal connection. See Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996). If the employee can establish a causal link, the employer must rebut the alleged retaliation by showing that there was a legitimate reason for the discharge.

Although not elements of retaliation, circumstantial evidence offered to establish a causal link may include:
(1) knowledge of the compensation claim by those making the decision on termination;
(2) expression of a negative attitude toward the employee's injured condition;
(3) failure to adhere to established company policies;
(4) discriminatory treatment in comparison to similarly situated employees; and
(5) evidence that the stated reason for the discharge was false.

See Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222, 228 (Tex. App.--Beaumont 2004, no pet.).

Just And Right Division of Marital Property in Texas

In a divorce proceeding, the trial court "shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Texas Family Code Ann. § 7.001.

Trial courts have wide latitude and discretion in dividing community property. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). When dividing community property, the trial court may consider many factors, including:

1. each party's earning capacity,

2. abilities,

3. education,

4. business opportunities,

5. physical health,

6. financial condition,

7. age, and

8. size of separate estates,

9. any future needs for support,

10. expected inheritance,

11. custody of any children,

12. reimbursements,

13. gifts to a spouse during marriage,

14. fault in the breakup of the marriage,

15. length of the marriage,

16. attorney's fees,

17. a spouse's dissipation or waste of the marital or community estate, and

18. any tax consequences.

See, Texas Family Code Ann. § 7.008 (Vernon 2006) (tax consequences); Murff, 615 S.W.2d at 699; Hailey v. Hailey, 176 S.W.3d 374, 380 (Tex. App.--Houston [1st Dist.] 2004, no pet.); Alsenz v. Alsenz, 101 S.W.3d 648, 655 (Tex. App.--Houston [1st Dist.] 2003, pet. denied); Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.--Houston [1st Dist.] 1993, pet. denied); Baccus v. Baccus, 808 S.W.2d 694, 700 (Tex. App.--Beaumont 1991, no writ); Massey v. Massey, 807 S.W.2d 391, 398 (Tex. App.--Houston [1st Dist.] 1991, writ denied).

Motions to Enforce Agreements Incident to Divorce in Texas

In the case of Pettit v. Pettit, 704 S.W.2d 921, 924-25 (Tex. App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.), the plaintiff brought suit against the defendant, her ex-husband, in a motion to enforce an agreement incident to divorce. The Agreement ordered that the marital domicile of the parties, which was the defendant's separate property, be sold. The defendant lived in the domicile from the inception of the Agreement to the time of suit. The trial court ruled in the plaintiff's favor, appointing a receiver to make the sale and ordering that the proceeds be divided between the parties. On appeal, the Houston Court of Appeals affirmed the decision of the trial court, despite the defendant's argument that the Agreement did not specify that he was the one required to sell the property.

Employment Discrimination in Texas

Under the Texas Commission on Human Rights Act (the Act), an employer may not discriminate against or discharge an employee based on “race, color, disability, religion, sex, national origin, or age.” Texas Labor Code § 21.051. By adopting the Act, the Legislature “intended to correlate state law with federal law in employment discrimination cases.” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (quoting Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003)). Therefore, courts look to federal law to interpret the Act’s provisions. Id.; Wal-Mart, 121 S.W.3d at 739; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000).

To establish a violation of the Act, a plaintiff must show that he or she was:

(1) a member of the class protected by the Act,

(2) qualified for his or her employment position,

(3) terminated by the employer, and

(4) treated less favorably than similarly situated members of the opposing class.

See Monarrez, 177 S.W.3d at 917; see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).

Texas courts have held that stray remarks are insufficient to establish discrimination and statements made remotely in time by someone not directly connected with termination decisions do not raise a fact issue about the reason for termination. See M.D. Anderson, 28 S.W.3d at 25; see also Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 607-08 (5th Cir. 2007); Elgaghil v. Tarrant County Junior Coll., 45 S.W.3d 133, 140 (Tex. App.—Fort Worth 2000, pet. denied).

Statements and remarks may serve as evidence of discrimination only if they are:

(1) related to the employee’s protected class,

(2) close in time to the employment decision,

(3) made by an individual with authority over the employment decision, and

(4) related to the employment decision at issue. Arismendez, 493 F.3d at 608.

In determining whether the individual making the remark had authority over the employment decision, consideration is not limited to statements by the person who officially made the decision. Id. at 608; Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000). Discriminatory reamrks by a person other than the decision-maker may be imputed to an employer if evidence indicates that the person in question possessed leverage or exerted influence over the decision-maker. Russell, 235 F.3d at 226-27.

Gifts of Property During Marriage in Texas

A gift is a voluntary transfer of property to another made gratuitously and without consideration. Hilley v. Hilley, 161 Tex. 569, 575, 342 S.W.2d 565, 569 (1961); Panhandle Baptist Found., Inc. v. Clodfelter, 54 S.W.3d 66, 72 (Tex. App.-Amarillo 2001, no pet.). The elements of a gift are:

(1) the intent to make a gift;

(2) delivery of the property; and

(3) acceptance of the property.

Sources: Clodfelter, 54 S.W.3d at 72; Roberts v. Roberts, 999 S.W.2d 424, 432 (Tex. App.-El Paso 1999, no pet.).

A spouse may make a gift of separate property to the other spouse. Roberts, 999 S.W.2d at 432. A deed for property from one spouse as grantor to the other spouse as grantee creates a presumption the grantee spouse received the property as separate property by gift. Raymond v. Raymond, 190 S.W.3d 77, 81 (Tex. App.-Houston [1st Dist.] 2005, no pet.); Roberts, 999 S.W.2d at 432. The presumption may be rebutted by proof the deed was procured by fraud, accident, or mistake. Raymond, 190 S.W.3d at 81; Roberts, 999 S.W.2d at 431.

Separate vs. Community

Whether property is separate or community in Texas is determined by its character at the inception of the party's title or ownership. Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001). In other words, the date of purchase of the property determines its status as to whether Texas considers the property as separate or community to the marriage estate. Inception of title is when a party first has a claim of right to the property by virtue of when title is ultimately vested. Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (op. on reh'g); Smith v. Smith, 22 S.W.3d 140, 145 (Tex. App.CHouston [14th Dist.] 2000. no pet.) (op. on reh'g). There is an underlying presumption under Texas law that property purchased during marriage is community. To overcome the community presumption, the spouse claiming property as his separate property has the burden to trace and clearly identify that property as separate. Zagorski, 116 S.W.3d at 316; Smith, 22 S.W.3d at 144. Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Zagorski, 116 S.W.3d at 316; Smith, 22 S.W.3d at 144.

Intentinal Infliction of Emotional Distress in Texas

Intentional Infliction of Emotional Distress

In rare instances nowadays, to recover damages for intentional infliction of emotional distress, a plaintiff must establish that:

(1) the defendant acted intentionally or recklessly;

(2) the defendant’s conduct was extreme and outrageous;

(3) the defendant’s actions caused the plaintiff emotional distress; and

(4) the emotional distress suffered by the plaintiff was severe.

See the case of Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740-41 (Tex. 2003); Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000). In Texas, intentional infliction of emotional distress is a “gap-filler” tort, created to permit recovery in “those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). In other words, it was never intended as an easier and broader way to allege claims already addressed by our civil and criminal laws, nor was it intended to replace or duplicate existing statutory or common law remedies. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 817-18 (Tex. 2005); Hoffmann-La Roche, Inc., 144 S.W.3d at 447.

Thus, if the gravamen of a plaintiff’s complaint is another tort, a claim for intentional infliction of emotional distress claim will not succeed regardless of whether the plaintiff succeeds on, or even makes the alternate claim. Hoffmann-La Roche, Inc., 144 S.W.3d at 448; see also Creditwatch, Inc., 157 S.W.3d at 817 (“As [the plaintiff’s] complaints are covered by other statutory remedies, she cannot assert them as intentional infliction claims just because those avenues may now be barred.”); Louis v. Mobil Chem. Co., 254 S.W.3d 602, 610 (Tex. App.—Beaumont 2008, pet. filed) (“Where the gravamen of the complaint is really another tort, intentional infliction of emotional distress is unavailable.”); Conley v. Driver, 175 S.W.3d 882, 887 n.4 (Tex. App.—Texarkana 2005, pet. denied) (explaining that intentional infliction of emotional distress tort “cannot be used as an alternative to some other, more conventional tort [that] fits the facts but might be subject to some structural impediment”).

Where does this leave this cause of action? Well in essence, and in Texas anyway, it should stand alone as a single cause of action.

Proving Defamation Claims in Texas

To prove a cause of action for defamation in Texas, a plaintiff must prove that:

(1) the defendant published a statement of fact,

(2) the statement was defamatory,

(3) the statement was false,

(4) the defendant acted negligently in publishing the false and defamatory statement, and

(5) the plaintiff suffered damages as a result.

See Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 382 (Tex. App.-Houston [1 Dist.] 2005, no pet.) (citing WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)); see also Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2005).

An essential element of defamation or libel is that the alleged defamatory statement must be a statement of fact rather than opinion. Also, the statement must be false. In other words, if the statement is true, then it's really not a defamatory statement.

Termination of Parental Rights in Texas

A parent's rights to the companionship, care, custody, and management of his or her children are constitutional interests far more precious than any property right. Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).

While parental rights are of constitutional magnitude, they are not absolute. Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

In a termination case, the State seeks not just to limit parental rights but to end them permanently and to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit. TEXAS FAMILY CODE ANN. Sec.161.206(b) (Vernon Supp. 2007); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

Texas courts strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at 20-21; In re E.M.N., 221 S.W.3d 815, 820 (Tex. App.CFort Worth 2007, no pet.). In proceedings to terminate the parent‑child relationship brought under section 161.001 of the family code, the petitioner (typically the State of Texas) must establish one ground listed under subdivision (1) of the statute and must also prove that termination is in the best interest of the child. TEXAS FAMILY CODE ANN. ' 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by clear and convincing evidence. TEXAS FAMILY CODE ANN. '' 161.001, 161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the beyond the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.CFort Worth 2006, pet. denied). It is defined as the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.@ Texas Family Code Ann. Sec. 101.007 (Vernon 2002).

Texas Property Tax Appeals

Relevant to property tax disputes or contests, Section 42.21 of the Tax Code requires a party bringing an appeal of an appraisal review board decision to file a petition for review in district court within forty-five days after a party receives notice that a final appealable order was entered. Tex. Tax Code Ann. § 42.21(a) (Vernon 2008). The failure to file the petition for review timely deprives the trial court of jurisdiction over the claim. See the case of Appraisal Rev. Bd. v. Int'l Church of Foursquare Gospel, 719 S.W.2d 160, 160 (Tex. 1986) (per curiam); Gregg County Appraisal Dist. v. Laidlaw Waste Sys., Inc., 907 S.W.2d 12, 16 (Tex. App.-Tyler 1995, writ denied).

Seeking Status Quo on Community Property in a Divorce

In high net worth divorce cases, there is always the risk of one spouse wasting or squandering away community property or assets including cash. In such cases consider seeking a court ordered temporary injunction to keep the community property's status quo.

The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The decision to grant or deny a temporary injunction lies within the trial court's sound discretion. On appeal, a higher court may not substitute judgment for that of the trial court unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. If the trial court does not enter written findings of fact and conclusions of law, the higher court will presume all findings necessary to support the trial court's ruling and affirm if there is any legal theory supported by the record. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). The trial court does not abuse its discretion if some evidence reasonably supports its decision. Butnaru, 84 S.W.3d at 211 (citing Davis, 571 S.W.2d at 862).

The status quo is the last actual, peaceable, noncontested status which preceded the pending controversy. Transport Co. of Tex. v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 553-54 (1953). The applicant must plead and prove three elements to obtain a temporary injunction: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204.

To be entitled to a temporary injunction, the applicant must plead a cause of action and show a probable right to recover on that cause of action and a probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2004); Argyle ISD v. Wolf, 234 S.W.3d 229, 236 (Tex. App.CFort Worth 2007, no pet.); Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 857 (Tex. App.CFort Worth 2003, no pet.). A probable right of recovery is shown by alleging a cause of action and presenting evidence tending to sustain it. See Argyle ISD, 234 S.W.3d at 236; Fox, 121 S.W.3d at 857. An injury is irreparable if damages would not adequately compensate the injured party or if they cannot be measured by any certain pecuniary standard. Fox, 121 S.W.3d at 857; see also Butnaru, 84 S.W.3d at 204.

The purpose of a temporary injunction is to preserve the status quo until a trial on the merits. See Butnaru, 84 S.W.3d at 204; Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Fox, 121 S.W.3d at 857. A Status quo is defined as the last, actual, peaceable, noncontested status which preceded the pending controversy. Fox, 121 S.W.3d at 857; Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 577 (Tex. App.CAustin 2000, no pet.) (quoting Transport Co. of Tex. v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 553-54 (1953)).

Prejudgment Interest in Family Law & Divorce Cases

In the case of Bufkin vs. Bufkin, the trial court awarded one spouse, “...prejudgment interest, measured from [the Divorce Date] at the rate of 8.25% per annum simple interest, in the sum of One Hundred Twenty Four Thousand Five Hundred Seventy Nine and 12/100 Dollars ($124,579.12).” However, on review by the higher Texas Supreme Court under "abuse of discretion" standards, Wilmer-Hutchins Indep. School Dist v. Smiley, 97 S.W.3d 702, 706 (Tex.App.-Dallas 2003, pet. denied), the Supreme court reasoned that courts do have the equitable power to award prejudgment interest. Perry Roofing Co. v. Olcott, 744 S.W.2d 929 (Tex.1988); Rio Grande Land & Title Co. v. Light, 758 S.W.2d 747 (Tex. 1988) (per curiam). However, where prejudgment interest is sought at common law as an element of the damages, a plaintiff must plead for it. Benavidez, 726 S.W.2d at 25 (citing Republic Nat. Bank v. Northwest Nat. Bank, 578 S.W.2d 109, 117 (Tex. 1978)). A prayer for general relief does not suffice. Id.; Vidor Walgreen Pharm. v. Fisher, 728 S.W.2d 353 (Tex. 1987)(per curiam). In the case of Bufkin, only a general relief prayer was originally sought in the original pleadings, and thus the prejudgment interest was reversed for abuse of discretion by the trial court in awarding prejudgment interest.

There are two separate bases for an award of prejudgment interest: an enabling statute, or general principles of equity. Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998); Granite Const. Co. v. Mendoza, 816 S.W.2d 756 (Tex.App.-Dallas 1991, writ denied). If the claimant's or Petitioner's recovery is predicated on a statutory right, he/she is not required to plead a claim for prejudgment interest. City of Houston v. Fletcher, 166 S.W.3d 479, 493 (Tex.App.-Eastland 2005, pet.denied); Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 441 (Tex.App.-Houston[1 Dist.] 2000, no pet.)(citing Benadividez v. Isles Const. Co., 726 S.W.2d 23, 25 (Tex. 1987)). Until its repeal in 1997, Article 5069-1.06 of the Texas Revised Civil Statutes provided for prejudgment interest in contract cases. Tex. Rev. Civ. Stat. Ann. Art. 5069-1.03 (Vernon 1987 & Supp. 2007). The statute now governing prejudgment interest is the Texas Finance Code. Tex. Fin. Code Ann. §§ 301.001-304.302 (Vernon 2006); de la Garza v. de la Garza, 185 S.W.3d 924, 927-29 (Tex. App.-Dallas 2006, no pet.). The Finance Code provides for the recovery of prejudgment interest in cases involving extensions of credit, wrongful death, personal injury, property damage or condemnation. Tex. Fin. Code Ann. §§ 302.002, 304.101, 304.201 (Vernon 2006).