This article covers cases from Volumes 498 through 527 of the South Western Reporter (Third Edition) and federal cases during the same period that the authors believe are noteworthy to the jurisprudence on the applicable subject.
Continuing the history of recent Survey articles, the courts are continuing to deal with issues of standing on challenges to non-judicial foreclosures, particularly in the residential home sphere. Also, in the foreclosure context, cases on text messages for a change of address and retroactive appointment of substitutes have been addressed.
Contract interpretations, mostly in the debtor/creditor context, shed further insight on drafting techniques for the practitioner. The use of turnover order, email signatures (for which there is now a split of authority among Texas appellate courts), and third party beneficiary requirements are also addressed.
With the recent hurricane and flooding issues in Texas, a number of cases are instructive as to insurance coverage. Most importantly, perhaps, is the Texas Supreme Court’s clarification of the premises liability statute, including a matter of first impression on the second leg of the dual mandate of foreseeability and reasonableness for criminal act cases.
As in past years, the courts, particularly the Texas Supreme Court, gave practitioners practical guidance to assist with the interpretation of ambiguous contracts and the application of the statute of frauds. Although the statute of frauds has historically been one rarely dealt with by courts or practitioners, the issue seems to be arising with increasing frequency with each Survey period. This year, a relatively large number of cases before the courts hinged on application of the partial performance exception to the statute of frauds. These cases provide valuable guidance to practitioners, and are discussed in more detail below.
Unfortunately, in a notable Texas Supreme Court case, Shields Limited Partnership v. Bradberry, the supreme court did not provide the helpful guidance desired by practitioners with respect to waiver of non-waiver clauses. In fact, in the Shields case, the supreme court left practitioners hopelessly confused about the best way to draft a non-waiver provision to ensure that it would not later be waived by the parties. In Shields, the guidance offered by the supreme court can be boiled down to “we know it when we see it” which, unfortunately, leaves practitioners looking for a practical solution for their clients at a complete loss.
A number of illustrative cases dealing with conveyances and restrictions demonstrate the courts’ trend to avoid rules of interpretation and drafting, and focus on the entirety of the document to discern intent. Also, the supreme court strained to find home equity liens “not valid” until cured and avoid a running of limitations that might bar claims by borrowers. However, forfeiture is a remedy to be determined under the loan documents pursuant to a breach of contract cause of action. Practitioners should note changes to Texas Property Code Chapter 12, with the legislative addition of Section 12.0071, giving a meaningful effect to an expungement. This legislative change is prospective and arose in response to the supreme court limiting the effect of an expungement to the notice of lis pendens itself. Finally, the relatively new correction instrument statute has been refined as to what constitutes a non-material and material correction.
J. Richard White, et al., Real Property, 4 SMU Ann. Tex. Surv. 357 (2018)