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Texas Commercial Causes of Action: Claims, Defenses and Remedies

  • ID: 3180874
  • Book
  • ALM Media, LLC
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Digital Guide to the Most Common Pleading Issues in Texas Business Litigation

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A desk reference to unfamiliar subjects and a starting point for analysis of any new commercial matter, Texas Commercial Causes of Action is a pleading guide for both plaintiffs and defendants in Texas business litigation.

Texas Commercial Causes of Action; Claims, Defenses and Remedies provides an overview of causes of action commonly employed in disputes, the elements of these common types of causes of action under Texas state law, corresponding defenses, damages and remedies, must-read cases and leading authorities.

Texas Commercial Causes of Action; Claims, Defenses and Remedies

  • Outlines essential elements of more than 100 causes of action and defenses, traced to the leading case law or statutory root.
  • Identifies recoverable damages, including attorney fees.
  • Explores the most important defenses.
  • Contains multiple chapters on best practices for presenting your pleading to the court.
  • Includes Searchable eBook with your print purchase at no extra cost.
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Section I: Texas Business And Contract Causes of Action

Chapter 1: Business Torts Litigation
1-1 Tortious Interference With Existing Contract
1-2 Tortious Interference With Prospective Business Relationship
1-3 Conversion
1-4 Common Law Fraud
1-5 Statutory Fraud
1-6 Fraud By Non-Disclosure
1-7 Negligent Misrepresentation
1-8 Antitrust - Contract, Combination, Or Conspiracy
1-9 Antitrust - Boycott
1-10 Antitrust - Price Fixing
1-11 Antitrust - Exclusive Dealing
1-12 Antitrust - Illegal Tying Arrangement
1-13 Antitrust - Territorial Restrictions
1-14 Antitrust - Monopolization
1-15 Antitrust - Attempted Monopolization
1-16 Antitrust - Predatory Pricing
1-17 Business Disparagement
1-18 Negligent Hiring
1-19 Negligence
1-20 Negligence Per Se
1-21 Intellectual Property - Common Law Trademark Infringement
1-22 Intellectual Property - Statutory Trademark Infringement/Texas Trademark Act
1-23 Intellectual Property - Misuse of a Tradename
1-24 Intellectual Property - Misappropriation of Trade Secrets

Chapter 2: Business Management Litigation
2-1 Officer And Director Liability - Breach of the Duty of Care
2-2 Officer And Director Liability - Breach of the Duty of Loyalty
2-3 Officer And Director Liability - Wrongful Distribution of Dividends
2-4 Officer And Director Liability - Liability for Securities Fraud
2-5 Officer And Director Liability - Liability As An Agent
2-6 Officer And Director Liability - State Revocation of Corporate Status
2-7 Shareholder Oppression
2-8 Derivate Shareholder Suits
2-9 Dissenting Shareholders Suits
2-10 Breach of Partnership Duty
2-11 Usurpation of Business Opportunity
2-12 Suit to Compel Inspection
2-13 Suit to Pierce the Corporate Veil
2-14 Dissolution of Partnership - Judicial Expulsion of Partner
2-15 Dissolution of Partnership - Judicial Winding Up of Partnership
2-16 Dissolution of Partnership - Wrongful Withdrawal of Partner

Chapter 3: Contract And Commercial Litigation
3-1 Breach of Contract
3-2 Actions On Negotiable Instruments - Actions to Enforce Instrument
3-3 Foreclosure On Security Interests
3-4 Fraudulent Transfer
3-5 Actions On Covenants Not to Compete
3-6 Dtpa Actions
3-7 Suit On Express Warranty of Goods
3-8 Suit On Express Warranty of Services
3-9 Suit On Implied Warranty of Merchantability
3-10 Suit On Implied Warranty of Fitness for a Particular Purpose
3-11 Suit On Implied Warranty of Title
3-12 Suit On Implied Warranty Against Infringement
3-13 Suit On Implied Warranty of Good & Workmanlike Service
3-14 Suit On Implied Warranty of Habitability
3-15 Suit On Implied Warranty of Suitability
3-16 Suit for Rescission
3-17 Quantum Meruit
3-18 Unjust Enrichment
3-19 Promissory Estoppel
3-20 Money Had And Received
3-21 Suit On a Sworn Account
3-22 Suit On An Account
3-23 Bailment Actions - Bailee’S Liability
3-24 Bailment Actions - Bailor’S Liability
3-25 Agency Actions - Agent’S Action Binding On the Principal
3-26 Agency Actions - Agent Personally Liable On Contract Between Principal And Third Party
3-27 Agency Actions - Agent Personally Liable for Breach of Duty
3-28 Unfair Collection Suits - Common Law Action for Unreasonable Collection Efforts
3-29 Usury
3-30 Unfair Collection Suits - Statutory Unfair Debt Collection
3-31 Unfair Collection Suits - Statutory Late Provisions of Credit-File Information
3-32 Unfair Collection Suits - Statutory Deceptive Use of Credit-Bureau Name

Chapter 4: Professional Liability And Fiduciary Litigation
4-1 Legal Malpractice
4-2 Accounting Malpractice
4-3 Design Malpractice
4-4 Dtpa Suits
4-5 Breach of Formal Fiduciary Duty
4-6 Breach of Informal Fiduciary Duty
4-7 Knowing Participation in Breach of Fiduciary Duty
4-8 Defenses
4-9 Leading Authority
4-10 Attorney Breach of Fiduciary Duty

Chapter 5: Insurance Litigation
5-1 Unfair Insurance Practices - Late Payment of Claim
5-2 Unfair Insurance Practices - Deceptive Insurance Practices
5-3 Insurance Bad Faith
5-4 Uim Coverage Claim
5-5 Declaratory Judgment On Policy - Coverage Claim
5-6 Declaratory Judgment On Policy - Duty to Defend
5-7 Stowers Claim
5-8 Workers’ Compensation

Chapter 6: Employment Litigation
6-1 Wrongful Discharge - Breach of Employment Agreement
6-2 Wrongful Discharge - Refusal to Perform An Illegal Act
6-3 Employment Discrimination
6-4 Suit for Retaliatory Treatment - Filing a Worker’S Compensation Claim
6-5 Discharge of Public Employee Whistleblower

Chapter 7: Oil And Gas Litigation
7-1 Action to Quiet Title
7-2 Trespass to Try Title
7-3 Declaratory Judgment Action
7-4 Forcible Entry And Detainer Action
7-5 Breach of Contract
7-6 Suit in Assumpsit
7-7 Breach of Fiduciary Duty
7-8 Trespass to Real Property
7-9 Tort Conversion
7-10 Private Nuisance
7-11 Public Nuisance
7-12 Slander of Title
7-13 Negligence
7-14 Fraud
7-15 Removal of Interference With Lateral Support
7-16 Breach of Implied Covenant to Protect Against Drainage
7-17 Breach of Implied Covenant to Market
7-18 Breach of Implied Covenant to Reasonably Develop
7-19 Inverse Condemnation
7-20 Takings

Chapter 8: Equitable And Extraordinary Relief
8-1 Temporary Injunction
8-2 Permanent Injunction
8-3 Mandatory Injunction
8-4 Rescission
8-5 Reformation
8-6 Specific Performance
8-7 Accounting
8-8 Constructive Trust
8-9  Sequestration
8-10 Attachment
8-11 Garnishment
8-12 Receivership
8-13 Declaratory Judgment
8-14 Forcible Entry And Detainer

Chapter 9: Causes of Action Expressly Not Recognized in Texas
9-1 Action Against Opposing Attorney
9-2 Confession of Judgment in Pre-Suit Instrument
9-3 Conspiracy to Breach Contract
9-4 Conversion of Real Property
9-5 Detrimental Reliance As Independent Tort Claim
9-6 Embracery (Jury Tampering)
9-7 Common Law Shareholder Oppression
9-8 Grossly Negligent Inducement of Contract
9-9 Invasion of Privacy (False Light)
9-10 Negligent Defense of Insured By Insurer
9-11 Negligent Infliction of Emotional Distress
9-12 Negligent Investigation of Employee Misconduct
9-13 Liability of Successor for Tortious Conduct of Predecessor
9-14 Wrongful Expulsion of Whistleblowing Partner
9-15 Perjury
9-16“Prima Facie Tort”
9-17 Retaliatory Discharge for Perception of Participation in Protected Activity
9-18 Retaliatory Discharge for Protected Act of Third Party
9-19 Spoliation of Evidence
9-20 Tortious Interference With Fiduciary Duty
9-21 Breach of Implied Warranty of Professional Services
9-22 Whistleblower Action: Protection of Private-Sector Employee
9-23 Oil & Gas Litigation - Implied Covenant to Further Explore

Section II: Pleading Damages

Chapter 10: Pleading Requirements Generally for Damages in Business Litigation
10-1 Necessity of Pleading Damage Amount Category
10-2 Necessity of Match Between Pleading And Proof of Damages
10-3 Effect of Pleading General Damages
10-4 Necessity of Pleading Special Damages
10-5 Distinguishing Between Direct And Consequential Damages
10-6 Interplay Between Pleadings And Requirements of Request for Disclosure

Chapter 11: Common Business Litigation Damages Models
11-1 Choosing the Right Damage Model
11-2 Benefit-Of-The-Bargain Damages
11-3 Out-Of-Pocket Damages
11-4 Restitution (Misappropriation) Damages
11-5 Contractual Damages And Remedies
11-6 Lost Profit
11-7 Loss of Value of a Business
11-8 Property Valuation And Damages
11-9 Other Pecuniary And Intangible Damages
11-10 Statutory Damages Specific to the Cause of Action
11-11 Equitable Remedies for Recovery of Monetary Funds
11-12 Exemplary Damages
11-13 Interest, Costs, And Attorney Fees

Chapter 12: Defensive Issues Relating to Damages
12-1 Mitigation of Damages
12-2 Issues of Excessive Or Double Recovery
12-3 Economic Loss Rule

Section III: Pleading Defenses

Chapter 13: Pleading Burdens
13-1 Distinguishing Pleading Burdens from Substantive Defenses
13-2 Due-Order-Of-Pleading Requirement
13-3 the General Denial
13-4 Verified And Special Denials
13-5 Affirmative Defenses
13-6 Inferential Rebuttal Defenses

Chapter 14: Special And Verified Denials
14-1 Lack of Capacity
14-2 Another Suit Pending Between Same Parties for Same Claim
14-3 Defect of Parties
14-4 Denial of Partnership Or Corporate Status
14-5 Denial of Execution of Written Instrument
14-6 Denial of Genuineness of Indorsement Or Assignment
14-7 Denial of Notice And Proof of Loss Or Claim
14-8 Denial of Assumed Name
14-9 Denial of Sworn Account
14-10 Denial of Condition Precedent
14-11 Failure Or Lack of Consideration
14-12 Usurious Contract

Chapter 15: Inferential Rebuttal Defenses
15-1 Sole Proximate Cause
15-2 Failure to Mitigate
15-3 Unavoidable Occurrence Or Sudden Emergency

Chapter 16: Affirmative Defenses
16-1 Pleading Rules And Their Effect
16-2 Payment
16-3 Accord And Satisfaction
16-4 Arbitration And Award
16-5 Release
16-6 Waiver
16-7 Res Judicata And Collateral Estoppel
16-8 Discharge in Bankruptcy
16-9 License
16-10 Assumption of the Risk And Contributory Negligence
16-11 Duress
16-12 Estoppel
16-13 Illegality
16-14 Failure of Consideration
16-15 Fraud
16-16 Statute of Frauds
16-17 Statute of Limitations
16-18 Laches

Chapter 17:  Statutes of Limitations And Repose
17-1 One-Year Statute of Limitations
17-2 Two-Year Statute of Limitations
17-3 Three-Year Statute of Limitations
17-4 Four-Year Statute of Limitations
17-5 Five-Year Statute of Limitations
17-6 Six-Year Statute of Limitations
17-7 Ten-Year Statutes of Limitations
17-8 Limitations Established Or Modified By Agreement
17-9 Commencement of Limitation Period
17-10 Suspending And Extending the Limitations Period
17-11 Satisfying the Statute of Limitations
17-12 Statutes of Repose

Chapter 18:  Proportionate Responsibility, Contribution, And Indemnity Proportionate Responsibility
18-1 Scope of Chapter 33
18-2 Determination of Percentage of Responsibility
18-3 Determining Amount of Recovery
18-4 Joint And Several Liability
18-5 Procedure for Designation of Responsible Third Parties
18-6 Contribution And Indemnity

Section IV: Special Pleading Issues

Chapter 19 - Texas Factual Pleading Standards
19-1 Necessity of Pleadings to Support the Charge
19-2 Texas Pattern Jury Charges And Other Sources for the Charge
19-3 the Texas “Fair Notice” Standard for Pleadings
19-4 Comparing Texas And Federal Pleading Requirements
19-5 Additional Pleading Requirements for Equitable Remedies

Chapter 20: Pleading Texas State Court Discovery Level
20-1 the Requirement to Plead Discovery Level
20-2 Considerations Before Pleading Level One
20-3 Considerations Before Pleading Level Two
20-4 Considerations Before Pleading Level Three
20-5 Responding to Pleading of Discovery Level

Chapter 21:  Pleading Subject Matter Jurisdiction in Texas State Trial Courts
21-1 the Subject Matter Jurisdiction of Texas Trial Courts
21-2 Pleading And Determining Amount in Controversy
21-3 Subject Matter Jurisdiction for Counter, Cross, And Third-Party Claims
21-4 Case Or Controversy Requirement
21-5 Ecclesiastical Disputes
21-6 Exclusive Jurisdiction Lying With Agency
21-7 Exclusive Jurisdiction in Federal Court
21-8 Sovereign Immunity
21-9 Attacking Subject Matter Jurisdiction
Chapter 22: Pleading Texas Venue
22-1 Presumptions Accorded to Pleaded Venue Facts
22-2 Overview of the Texas Venue Scheme
22-3 General Venue Options
22-4 Mandatory Venue Options
22-5 Permissive Venue Options
22-6 Derivative Venue Options
22-7 Pleadings Attacking And Supporting Venue

Chapter 23: Pleading Parties And Methods of Service
23-1 Pleading Requirements for Parties
23-2 Addressing the Mispleading of Parties
23-3 Pleading Personal Jurisdiction Over Non-Resident Defendants
23-4 Pleading Method of Service

Chapter 24: Texas Pleading Standards
24-1 Necessity of Pleadings to Support the Charge
24-2 Texas Pattern Jury Charges And Other Sources for the Charge
24-3 the Texas “Fair Notice” Standard for Pleadings
24-4 Comparing Texas And Federal Pleading Requirements
24-5 Additional Pleading Requirements for Equitable Remedies

Chapter 25: Pleading Choice of Law
25-1 General Principles Governing Choice of Law in Texas
25-2 Enforcing a Choice of Law Clause
25-3 Pleading And Proving Choice of Law

Chapter 26: Pleading to Avoid Or Compel Arbitration
26-1 Choice of Arbitration Law
26-2 Compelling Arbitration
26-3 Resisting Arbitration
26-4 Post Arbitration Proceedings

Chapter 27: Pleading to Resist Or Enforce a Forum Selection Clause
27-1 Enforcing a Forum Selection Clause
27-2 Resisting a Forum Selection Clause

Chapter 28: Pleading Removal And Remand
28-1 Removal Generally
28-2 Removal On Federal Question Grounds
28-3 Removal On Diversity of Citizenship Grounds
28-4 Cases Made Non-Removable By Statute
28-5 Removal Procedure
28-6 Remand

Chapter 29: Motions And Responses to Motions Attacking Pleadings
29-1 Motions to Dismiss Baseless Causes of Action
29-2 Special Exceptions
29-3 Pleas in Abatement

Chapter 30: Amendment of Pleadings
30-1 Distinguishing Between Amended And Supplemental Pleadings
30-2 Effect of Amendment On Superseded Pleadings
30-3 Time Limits for Amendment of Pleadings
30-4 Motion for Leave to Amend Pleadings
30-5 Trial Amendment to Pleadings
30-6 Trial By Consent
30-7 Post-Verdict Amendment of Pleadings

Chapter 31: Making And Supporting Motions for And Responses to Motions for Summary Judgment
31-1 the Traditional Motion for Summary Judgment
31-2 the No-Evidence Motion for Summary Judgment
31-3 Summary Judgment Evidence

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Jeremy Counseller is a Professor of Law at Baylor University School of Law, where he teaches Texas and federal procedure and evidence.  He previously served as a law clerk to the Honorable Reynaldo G. Garza of the United States Court of Appeals for the Fifth Circuit and as an associate in the trial section of Bracewell & Patterson, LLP (now Bracewell& Giuliani, LLP).

Jim Wren has more than 30 years of trial experience and has joined Baylor Law School’s  full-time teaching faculty. He is boardcertified in Civil Trial Law and in Personal Injury Trial Law (by the TexasBoard of Legal Specialization), and in Civil Trial Advocacy and Civil PretrialPractice (by the National Board of Trial Advocacy).

He has served as President of the National Board of Trial Advocacy (2009-2011), which is the ABA-accredited national certifying board for civil trial, criminal trial, and other legal specializations, and he is a member of the American Board of Trial Advocacy.  He is licensed for federal practice in the Western, Northern, Eastern and Southern Districts of Texas, and in the U.S.Court of Federal Claims. He continues to represent clients in in various other courts around the nation by special admission.

Professor Wren graduated with a J.D. cum laude from Baylor Law School in 1980. He added an M.A. in International Relations from the University of Kent at Canterbury in 1982. Prior to joining the Baylor Law School faculty, he served for many years as an adjunct professor teaching the Management of Complex Litigation course to third-year students. Jim currently serves as a tenured professor of law at Baylor teaching Practice Court, the civil procedure and advocacy program required for all third-year Baylor Law students. He was named as a Baylor University Outstanding Professor in 2012.

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