GADDY WELLS
Texas Lawyer
TEXAS CAUSES OF ACTION
DISCLAIMER

THE CONTENT OF THIS WEB PAGE IS NOT INTENDED TO BE AND SHOULD NOT BE RELIED UPON OR USED AS LEGAL ADVICE OR AS A SUBSTITUTE FOR PERSONAL CONSULTATION WITH A LICENSED ATTORNEY
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The most common causes of action under Texas law are listed below.  To see the elements of a cause of action, click on the cause of action.

1.   
ABUSE OF PROCESS
2.    ASSAULT
3.    BREACH OF CONTRACT
4.    QUANTUM MERUIT
5.    PROMISSORY ESTOPPEL
6.    SWORN ACCOUNT
7.    MONEY HAD AND RECEIVED
8.    INTERFERENCE WITH EXISTING CONTRACT
9.    INTERFERENCE WITH PROSPECTIVE
       CONTRACT
10.  BREACH OF DECEPTIVE TRADE PRACTICES
       ACT
11.  NEGLIGENCE
12.  NEGLIGENT MISREPRESENTATION
13.  BREACH OF IMPLIED WARRANTY OF
       MERCHANTABILITY
14.  BREACH OF IMPLIED WARRANTY OF FITNESS
       FOR PARTICULAR PURPOSE
16.  FRAUD
17.  CONVERSION
18.  BREACH OF FIDUCIARY DUTY
19.  INVASION OF PRIVACY
20.  DEFAMATION
21.  PREMISES DEFECT OR PREMISES LIABILITY
22.  TRESPASS TO REAL PROPERTY
23.  USURY
24.  FALSE IMPRISONMENT
25.  INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

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1.     ABUSE OF PROCESS


    The elements of a claim for the tort of abuse of process are

(1) There was an illegal, improper, or perverted use of the legal process, neither warranted nor authorized by the legal process,
(2) There was an ulterior motive or purpose in exercising such use, and
(3)  There was damage as a result of the illegal act.
    Graham v. Mary Kay, Inc., 25 S.W.3d 749, 756 (Tex.App.-Houston [14th Dist.] 2000, pet denied).

    Abuse of process is the malicious misuse or misapplication of legal process in order to accomplish an ulterior purpose. Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 378 (Tex.App.- Texarkana 1989, no writ).

    The critical aspect of this tort remains the improper use of the legal process after it has been issued. Graham v. Mary Kay, Inc., 25 S.W.3d 749, 756 (Tex.App.-Houston [14th Dist.] 2000, pet denied). 

    Abuse of process exists where the original process is used to accomplish an end other than that which the writ was designed to accomplish. Bossin v. Towber, 894 S.W.2d 25, 33 (Tex.App.- Houston [14th Dist.] 1994, writ denied).

    Where legal process is used for the purpose for which it is intended, even though accomplished by an ulterior motive, no abuse of process has occurred. Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 379 (Tex.App.-Texarkana 1989, no writ).

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2.      ASSAULT 

    The elements of assault are the same in both the criminal and civil context. Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 649 (Tex.App.- Houston [1st Dist.] 2005, pet. denied).

    A person commits an assault if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another;
(2) intentionally or knowingly threatens another with imminent bodily injury; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
    Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 649-50 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). (citing Tex. Pen.Code Ann. § 22.01(a)).

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3.     BREACH OF CONTRACT

    The essential elements of a breach of contract cause of action that must be prover are
(1) There is a valid contract;
(2) The plaintiff performed or tendered performance according to the terms of the contract;
(3) The defendant breached the contract; and

(4) The plaintiff sustained damages as a result of the breach.
    Valero Marketing & Supply v. Kalama International, 51 S.W.3d 345, 351 (Tex.App.- Houston [1st Dist.] 2001, no pet.).

   A valid contract is formed by an offer, an acceptance, a meeting of the minds, each party's consent to the terms, and, in the case of a written contract, execution and delivery of the contract with the intent that it be mutual and binding. Baroid Equipment, Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 17 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

   If an alleged agreement is so indefinite such it is impossible for a court to fix the legal obligations and liabilities of the parties, the agreement cannot constitute an enforceable contract. Shaw v. Palmer, 197 S.W.3d 854, 856 (Tex.App.-Dallas 2006, pet. denied).

  A court’s primary objective when interpreting a contract is to ascertain and give effect to the intent of the parties as it is expressed in the contract. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006).

   “To achieve this objective, courts should examine and consider the wording of the entire contract in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.2005).

    Whether a contract is ambiguous is a question of law for the court. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). “A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation.”  Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). 

  A court determines whether the contract is ambiguous by looking at the contract as a whole in light of the circumstances present when the parties entered the contract. Universal Health Services., Inc. v. Renaissance Women's Group, P.A., 121 S.W.3d 742, 746 (Tex.2003).

    If the contract is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex.2005). An unambiguous contract is construed according to the plain meaning of its express wording. Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex.1985). Unambiguous contracts are enforced as written. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996).

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4.     QUANTUM MERUIT

    Recovery under the equitable doctrine of quantum meruit requires proof of four elements or essential facts:
(1) The claimant furnished either valuable services or materials or both;
(2) The services and/or materials were furnished to the party sought to be charged;
(3) The services and/or materials  were accepted by the party sought to be charged,
(4) The services and/or materials were furnished and accepted under such circumstances that the party accepting the services and/or materials was reasonably notified that the plaintiff, in performing, expected to be paid by the party who accepted the services and/or materials.
    Heldenfels Brothers v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992).

    The proper measure of damages for a claim in quantum meruit is the reasonable value of work performed and the materials furnished. M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 625 (Tex.App.-Houston [1st Dist.] 1987, no writ).

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5.     PROMISSORY ESTOPPEL

    The elements of promissory estoppel are:
(1) A promise was made to a person;
(2) The promisor could foresee that the person would rely on the promise;
(3) The person did substantially rely on the promise to his detriment; and
(4) Injustice can be avoided only by the legal enforcement of the promise against the promisor.
    City of Beaumont v. Excavators & Constr., Inc., 870 S.W.2d 123, 136-37 (Tex.App.-Beaumont 1993, writ denied).

    When a claim of promissory estoppel is made to offset or bar a defense of the statute of frauds, the oral promise relied upon must be a promise to sign a written agreement that satisfies the statute of frauds. Nagle v. Nagle, 633 S.W.2d 796, 800 (Tex.1982).

    A complete agreement on the terms and wording of the written contract is required to permit the application of promissory estoppel to a statute of frauds defense.  EP Operating Co. v. MJC Energy Co., 883 S.W.2d 263, 269 (Tex.App.--Corpus Christi 1994, writ denied).

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6.     SWORN ACCOUNT

    A sworn account claim is a special form of breach of contract claim.  The elements of a sworn account claim are:
(1) There was a sale and delivery of merchandise or a performance of services on account;
(2) The amount of the account is just, that is, the prices charged are usual, customary, or reasonable, and
(3) There are outstanding amounts that remain unpaid.
    Texas Rule of Civil Procedure 185; Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex.App.- Houston [1st Dist.] 1997, no writ).

    Under Rule 185 of the Texas Rules of Civil Procedure, a plaintiff's petition on a sworn account must contain a systematic, itemized statement of the goods or services sold, must reveal offsets made to the account, and must be supported by an affidavit stating that the claim is, within the affiant's knowledge, “just and true.” Texas Rule of Civil Procedure 185; Andrews v. East Texas Medical Center-Athens, 885 S.W.2d 264, 267 (Tex.App.-Tyler 1994, no writ).

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7.    MONEY HAD AND RECEIVED

    A claim for money had and received arises when the defendant obtains money that  in equity and good conscience belongs to the plaintiff. It is an equitable doctrine applied to prevent unjust enrichment. Hunt v. Baldwin, 68 S.W.3d 117, 132 (Tex.App.-Houston [14th Dist.] 2001, no pet.).

    A cause of action for money had and received is not based on wrongdoing but, instead, “looks only to the justice of the case and inquires whether the defendant has received money that rightfully belongs to another.” Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex.App.-El Paso 1997, no writ).

    The question, in an action for money had and received, is to which party does the money, in equity, justice, and law, belong. All plaintiff need show is that defendant holds money which in equity and good conscience belongs to him. Staats v. Miller, 150 Tex. 581, 584, 243 S.W.2d 686, 687 (1951).

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8.   INTERFERENCE WITH EXISTING CONTRACT

    The elements of a claim of tortious interference with a contract are:
(1) There exists a contract that is subject to interference;
(2) There is a willful and intentional act of interference by the defendant; and
(3) The defendant’s intentional act of interference was a proximate cause of actual damages to the plaintiff.
               
    Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991).

    See the separate discussion of “proximate cause.”

    Virtually any type of contract is sufficient as the foundation of an action for procuring its breach.  Even an unenforceable contract may serve as the basis for a tortious interference claim if the contract is not void. Juliette Fowler Homes, Inc. v. Welch Associates, Inc., 793 S.W.2d 660, 664 (Tex. 1990). Terminable at will contracts may also serve as the basis for an action for tortious interference with contract. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex. 1989).

    Liability for tortious interference is based on the acts of an interfering third party.  Therefore, a party cannot tortiously interfere with its own contract.  Four Bros. Boat Works, Inc. v. Tesoro Petroleum Companies, Inc., 217 S.W.3d 653, 668 (Tex.App.-Houston [14 Dist.] 2006, pet.denied).   

    The existence of a contract at the time of the alleged interference is what separates tortious interference with contract from the more difficult to establish tortious interference with prospective contractual relations.

    The defendant can claim the affirmative defense of the privilege of legal justification or excuse in the interference of contractual relations.  Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991).  The defendant has the burden of proof of the legal justification or excuse. 

    Under the defense of legal justification or excuse, a person is privileged to interfere with another's contractual relations (1) if it is done in a bona fide exercise of his own rights, or (2) if he has an equal or superior right in the subject matter to that of the other party. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991).

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9.  INTERFERENCE WITH A PROSPECTIVE CONTRACT

    The elements of claim for tortious interference with prospective contract are:
(1) There must be a “reasonable probability” that the plaintiff would have entered into the prospective relationship or contract;
(2) An “independently tortious or wrongful” act by the defendant that prevented the relationship from occurring;
(3) The defendant did such act with a conscious desire to prevent the relationship from occurring, or knew that the interference was certain or substantially certain to occur as a result of the defendant's conduct; and
(4) The plaintiff suffered actual harm or damage as a result of the defendant's interference.
    Johnson v. Baylor University, 188 S.W.3d 296, 304 (Tex.App.-Waco 2006, pet denied).

    Recovery under tortious interference with contract requires that the alleged interfering party must be shown to have acted willfully and intentionally. COC Services., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 670 (Tex.App.-Dallas 2004, pet. denied).

    A willful act involves more than simple participation in some act with a breaching party. John Paul Mitchell Sys. v. Randalls Food Markets, Inc., 17 S.W.3d 721, 730 (Tex.App.-Austin 2000).

    The defendant must knowingly induce one of the contracting parties to breach its obligations. Browning- Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex.1993). There must be some act interfering with a contract or act persuading a party to a contract to breach; for example, offering better terms or other incentives. Davis v. HydPro, Inc., 839 S.W.2d 137, 139 (Tex.App.- Eastland 1992, writ denied).

    Liability for intentional interference may not be based on a simple finding that the defendant performed certain acts; there must be a finding that the defendant performed certain acts with the knowledge or belief that interference with a contract would result from that contract. Southwestern Bell Telephone Co. v. John Carlo Texas, 843 S.W.2d 470, 472 (Tex.1992).


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10.   BREACH OF DECEPTIVE TRADE PRACTICES ACT

    The elements of a cause of action for breach of the Deceptive Trade Practices Act (“DTPA”) [Chapter 17, Texas Business & Commerce Code] are
(1) The plaintiff was a consumer as defined in the DTPA;
(2) The defendant engaged in at least one of the false, misleading, or deceptive acts or practices listed in the DTPA;
(3) The plaintiff detrimentally relied on the false, misleading, or deceptive act or practice; and
(4) The defendant’s false, misleading, or deceptive act or practice was a producing cause of the plaintiff’s injury.
    Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996).

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11.     NEGLIGENCE

    The elements of a negligence cause of action are

(1) The defendant owed a legal duty to the plaintiff,
(2) The defendant breached that duty, and
(3) The breach was a proximate cause of the plaintiff's personal injury or property damages.

   D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002).

   The existence of a duty owed is a threshold consideration for a negligence claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995), and is a question of law for the court. Texas Home Management., Inc. v. Peavy, 89 S.W.2d 30, 33 (Tex.2002).

    If there is no duty, liability for negligence cannot exist. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). 

    There is a general common law duty for everyone to exercise reasonable care to avoid foreseeable injury to others.  El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987).

    Economic Loss Rule

    This rule of law precludes the recovery of economic damages in a negligence case where the parties are contractual strangers and there is no accompanying claim for damages to a person or property on the basis of a lack of duty by the defendant to the plaintiff. Damages resulting solely from economic harm are not recoverable in simple negligence actions.  Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 290 (Tex. App. Houston [14th Dist.] 2000, no pet. h.).

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12.  NEGLIGENT MISREPRESENTATION

    The elements of negligent misrepresentation are:
(1) The defendant provided information in the course of his business, or in a transaction in which he has a pecuniary interest;
(2) The information supplied was false;
(3) The defendant did not exercise reasonable care or competence in obtaining or communicating the information;
(4) The plaintiff justifiably relied on the information; and
(5) The plaintiff suffers damages proximately caused by his reliance on the false information.
    Larsen v Carlene Langford & Associates Inc.,  41 S.W.3d 245 (Tex.App.-Waco 2001 n.pet.h.)

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13.  BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

    The elements of breach of the implied warranty of merchantability under the Uniform Commercial Code (Tex. Bus. & Com. Code Sec. 2.314) are
(1) The plaintiff bought goods;
(2) The defendant was a seller of the goods bought by plaintiff;
(3) The goods were unmerchantable when they left defendant’s possession;
(4) The plaintiff notified defendant of the breach of the warranty of merchantability within a reasonable time after discovering such breach;
(5) The defendant’s breach was a proximate cause of plaintiff’s damages.
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14.    BREACH OF IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE

    The elements of a cause of action for a breach of the implied warranty of fitness for a particular purpose under the Uniform Commercial Code (Tex. Bus. & Com. Code Sec. 2.315) are as follows:
(1) The plaintiff was a buyer of goods;
(2) The defendant was a seller of the goods;
(3) The plaintiff had a particular purpose for the goods;
(4) At the time of contracting for the purchase of the goods, the defendant knew about plaintiff’s particular purpose for the goods;
(5) The plaintiff relied on the defendant's skill or judgment to provide suitable goods for the particular purpose;
(6) The defendant provided goods that were not fit for the plaintiff’s particular purpose;
(7) The plaintiff notified defendant of the breach of the warranty of merchantability within a reasonable time after discovering such breach;
(8) The defendant’s breach proximately caused damages to plaintiff.
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16.     FRAUD

    The elements of a cause of action for fraud by misrepresentation are
(1) A material representation was made to a person;
(2) The material representation was false;
(3) When the material representation was made;
(4) The speaker
(i) knew that the material repre- sentation was false, or
(ii) made the material representation recklessly without any knowledge of its truth and as a positive assertion;
(5) The speaker made the material representation with the intent that it should be acted upon by the person to whom the speaker made the representation;
(6) The person to whom the material representation was made acted in reliance upon the representation; and
(7) The person to whom the material representation was made suffered injury or damage.
    Stone v. Lawyers Title Insurance, 554 S.W.2d 183, 185 (Tex. 1977)

    The elements of a cause of action for fraud by nondisclosure are
(1) the defendant failed to disclose facts to the plaintiff;
(2) the defendant had a duty to disclose those facts;
(3) the facts were material;
(4) the defendant knew the plaintiff was ignorant of the facts and the plaintiff did not have an equal opportunity to discover the facts;
(5) the defendant was deliberately silent when it had a duty to speak;

(6) by failing to disclose the facts, the defendant intended to induce the plaintiff to take some action or refrain from acting;
(7) the plaintiff relied on the defendant's nondisclosure; and
(8) the plaintiff was injured as a result of acting without that knowledge.  
 

Reservoir Syst., Inc. v. TGS–NOPEC Geophysical Co., L.P., 335 S.W.3d 297, 306 (Tex.App.-Houston [14th Dist.] 2010, pet. denied)


    In addition, in order to make a claim for fraud of any kind, Plaintiff must show that it used reasonable diligence in the transaction.  The Texas Supreme Court has stated

    “[T]he party claiming fraud has a duty to use reasonable diligence in protecting his own affairs. ‘In an arm's-length transaction the defrauded party must exercise ordinary care for the protection of his own interests and is charged with knowledge of all facts which would have been discovered by a reasonably prudent person similarly situated. And a failure to exercise reasonable diligence is not excused by mere confidence in the honesty and integrity of the other party.’"

    Thigpen v. Locke, 363 S.W.2d 247, 251 (Tex. 1962).

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17.      CONVERSION

    The elements of a claim for conversion of personal property are
(1) The plaintiff owned, possessed, or had the right of immediate possession of the property,
(2) The defendant wrongfully exercised dominion or control over the property to the exclusion of and inconsistent with the plaintiff's rights,
(3) The plaintiff demanded return of the property, and
(4) The defendant failed to return it.
Ojeda v. Wal-Mart Stores, Inc., 956 S.W.2d 704, 707 (Tex.App.-San Antonio 1997, pet. denied).

     A plaintiff must prove damages before recovery is allowed for conversion. Generally, the measure of damages for conversion is the fair market value of the property at the time and place of the conversion. Prewitt v. Branham, 643 S.W.2d 122, 123 (Tex.1982).

    Damages for conversion are limited to the amount necessary to compensate the plaintiff for the actual losses proximately caused by the defendant's conversion. Multi-Moto Corp. v. ITT Commercial Fin. Corp., 806 S.W.2d 560, 566 (Tex.App.-Dallas 1990, writ denied).

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18.     BREACH OF FIDUCIARY DUTY

    The elements of a claim for breach of fiduciary duty are:
(1) There is fiduciary relationship between the plaintiff and defendant;
(2) The defendant breached his fiduciary duty to the plaintiff; and
(3)The defendant's breach proximately caused injury to the plaintiff or benefit to the defendant.
Jones v. Blume, 196 S.W.3d 440, 447 (Tex.App.- Dallas 2006, pet. denied).

    A fiduciary relationship may be formal or informal. Fiduciary duties arise as a matter of law in certain formal relationships, including attorney- client, partnership and trustee relationships. Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex.2005).

    An informal fiduciary relationship may arise where one person trusts in and relies upon another, whether the relationship is a moral, social, domestic, or purely personal one. Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex.2005).To impose an informal fiduciary relationship in a business transaction, a special relationship of trust and confidence must exist prior to, and separate from, the parties' agreement. Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex.1997).

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19.     INVASION OF PRIVACY

    A common law right to privacy exists under Texas law. Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex.1973). The Texas Constitution guarantees the sanctity of the home and person from unreasonable intrusion. Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex.1987).

    The elements of a claim for invasion of privacy are
(1) The defendant intentionally intruded on the plaintiff's solitude, seclusion, or private affairs; and
(2) The intrusion would be highly offensive to a reasonable person.
Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex.1993).
 

    When assessing the offensive nature of the invasion, courts have required that the intrusion be unreasonable, unjustified, or unwarranted.  Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex.1973).


  The elements of invasion of privacy by misappropriation are:
(1) The defendant appropriated the plaintiff's name or likeness for the value associated with it;
(2) The plaintiff can be identified from the publication; and
(3) There was some advantage or benefit to the defendant.
Express One International, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex.App.-Dallas 2001, no pet.).

    Liability for such an invasion of privacy will arise if the defendant appropriates, for its own benefit, the commercial standing, reputation, or other values associated with the plaintiff's likeness. Express One International, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex.App.-Dallas 2001, no pet.). Generally, an appropriation becomes actionable when the name or likeness is used “to advertise the defendant's business or product, or for some similar commercial purpose.” Express One International, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex.App.-Dallas 2001, no pet.).

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20.     DEFAMATION

    The elements of a defamation claim are
(1) The defendant published a statement;
(2) The statement was defamatory concerning the plaintiff;
(3) The defendant acted with  
         
(i) actual malice, if the plaintiff was 
          a public official or public figure, or
         (ii) negligence, if the plaintiff was a 
          private individual, regarding the truth 
          of the statement
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998).

    “Defamation” takes two forms: libel and slander. Slander is a false oral statement that is published to a third person without a legal excuse, which refers to an ascertainable person. Randall's Food Markets. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995).  Libel is written or printed defamation. Rogers v. Dallas Morning News, 889 S.W.2d 467, 472 (Tex.App.-Dallas 1994, writ denied).

    Defamatory statements are “published” if they are communicated orally, in writing, or in print to some third person capable of understanding their defamatory import and in such a way that the third person did so understand. Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 399 (Tex.App.- Houston [1st Dist.] 1993, writ dism'd w.o.j.).
   
    In this context, actual malice refers to the defendant's attitude toward the truth of what he said. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 573 (Tex.1998).  Actual malice means that the defendant made the statement knowing that it was false or with reckless disregard about whether the statement was false or not. HBO v. Harrison, 983 S.W.2d 31, 36 (Tex.App.-Houston [14th Dist.] 1998, no pet.).

    To establish recklessness, the plaintiff must prove the defendant “entertained serious doubts as to the truth of his publication.” WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 574 (Tex.1998).

    Two prerequisites must be met for the actual malice standard to apply.
(1) The plaintiff must be a public official for the purposes of the published statements, and
(2) The allegedly defamatory statements must relate to the plaintiff's official conduct.
  HBO v. Harrison, 983 S.W.2d 31, 36 (Tex.App.- Houston [14th Dist.] 1998, no pet.). 

   Regarding the first requirement, the determi- nation of whether an individual is a public official is a question of law for the court to decide. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998).  Not all governmental employees qualify as public officials, and there is no specific test for determining whether an individual is a public official. HBO v. Harrison, 983 S.W.2d 31, 36 (Tex.App.-Houston [14th Dist.] 1998, no pet.).


    Public official status does apply to governmental employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs and to an employee holding an office of such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees. HBO v. Harrison, 983 S.W.2d 31, 36 (Tex.App.-Houston [14th Dist.] 1998, no pet.). 

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21.   PREMISES LIABILITY

The owner, occupier or controller of a premises may be liable under only one of two independent theories of negligence for a personal injury on the premises: (1) negligence arising from an activity on the premises and (2) negligence arising from a premises defect. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997).

Negligent activity encompasses a malfeasance theory of negligence based on affirmative, negligent conduct by the owner, occupier or controller of the premises that occurs contemporaneously with and causes the injury to the person. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010).

Premises defect encompasses a nonfeasance theory of negligence based on the failure of the owner, occupier or controller to take measures to make the premises in question safe. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010).

The elements of a premises defect claim depends on the injured person’s status on the premises at the time of the incident as an invitee, licensee or trespasser. Scott & White Mem'l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex.2010).

The three types of status of persons injured on another’s premises are as follows:

1. Invitee - A person who enters a premises with the knowledge of the owner, occupier or controller of the premises and for the mutual benefit of both. American Industrial Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

2. Licensee - A person who enters and remains on a premises with the consent of the owner, occupier or controller of the premises and for his own convenience or on business with someone other than the owner. American Industrial Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex.App.- Houston [14th Dist.] 2001, pet. denied).

3. Trespasser - A person who enters and remains on a premises without the consent of the owner, occupier or controller of the premises. American Industrial Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex.App.- Houston [14th Dist.] 2001, pet. denied).

 Invitee

 The elements of a premises defect claim by an invitee are

 (1) Actual or constructive knowledge of a condition  on the premises by the owner or occupier;
(2) The condition posed an unreasonable risk of harm;
(3) The owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and

(4) The owner or occupier's failure to use reasonable care proximately caused the plaintiff's injury.

 CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.2000).

Licensee

 A plaintiff who is a licensee must establish the following elements in a premises defect case:

(1) A condition of the premises posed an unreasonable risk of harm to the licensee;
(2) The owner had actual knowledge of the defective condition;
(3) The licensee had no knowledge of the defective condition;
(4) The owner failed to exercise ordinary care to protect the licensee from danger; and
(5) The owner’s failure was a proximate cause of injury to the licensee
.

 State Department of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992).

Trespasser

Owners or occupiers of premises have a duty to refrain from injuring trespassers willfully, wantonly, or through gross negligence. Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 602-03 (1954). Trespassers must therefore take those premises as they find them. Texas Cities Gas Co. v. Dickens, 140 Tex. 433, 168 S.W.2d 208, 210 (1943).

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22.     TRESPASS TO REAL PROPERTY

   To recover for trespass to real property, a plaintiff must prove that

(1) The plaintiff owns or has a lawful right to possess real property,
(2) The defendant entered the plaintiff's land and the entry was
        (a) physical,
        (b) intentional, and
        (c) voluntary, and
(3) The defendant's trespass caused injury to the plaintiff.

  Pentagon Enterprises v. Southwestern Bell Telephone Co., 540 S.W.2d 477, 478 (Tex.App.- Houston [14th Dist.] 1976, writ ref'd. n.r.e.).

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23.     USURY

    The essential elements of a usurious transaction are

(1) A loan of money,
(2) An absolute obligation to repay the principal, and
(3) The exaction of a greater compensation than allowed by law for the use of the money by the borrower.
    Anglo-Dutch Petroleum International, Inc. v. Haskell, 193 S.W.3d 87, 96 (Tex.App.-Houston [1st Dist.] 2006, pet. denied).

    The purpose of the usury statute is to penalize those who intentionally charge an interest in excess of that allowed by law. Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708, 714 (Tex.App.- Corpus Christi 1998, pet. denied).

    When construing a contract under a usury claim, courts presume the parties intended a nonusurious contract.  Anglo-Dutch Petroleum International, Inc. v. Haskell, 193 S.W.3d 87, 96 (Tex.App.- Houston [1st Dist.] 2006, pet. denied).

    “Loan” means an advance of money that is made to or on behalf of an obligor, the principal amount of which the obligor has an obligation to pay the creditor. Tex.Fin.Code Ann. §301.002(a)(10).  “Interest” means compensation for the use, forbearance, or detention of money. Tex.Fin.Code Ann. § 301.002(a)(4). 

    “Usurious interest” means interest that exceeds the applicable maximum amount allowed by law. Tex.Fin.Code Ann. § 301.002(a)(17). If there is no “loan,” then any disputed amount charged cannot be characterized as interest, and without interest, there cannot be usury.  First USA Management., Inc. v. Esmond, 960 S.W.2d 625, 628 (Tex.1997).

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24.    
 FALSE IMPRISONMENT

    The elements of a cause of action for false imprisonment are:

    (1) a willful detention;
    (2) performed without consent; and
    (3) without the authority of law.

    Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995).

    A willful detention may be accomplished by violence, by threats, or by any other means restraining a person from moving from one place to another. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644-45 (Tex.1995). Where it is alleged that a detention is effected by a threat, the plaintiff must demonstrate that the threat was such as would inspire in the threatened person a just fear of injury to her person, reputation, or property. Id.

    Texas Penal Code

    § 20.02.  UNLAWFUL RESTRAINT.  (a)  A person commits an offense if he intentionally or knowingly restrains another person.
    . . . .
    (c)  An offense under this section is a Class A misdemeanor.


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25.    
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The elements of a cause of action for intentional infliction of emotional distress are:

  (1) the defendant acted intentionally or recklessly,
  (2) the conduct was extreme and outrageous,
  (3) the acts of the defendant caused the plaintiff to suffer emotional distress; and
  (4) the emotional distress suffered by the plaintiff was severe.

Kroger Tex. Ltd. Partnership v. Suberu, 216 S.W.3d 788, 796 (Tex.2006); Twyman v. Twyman, 855 S.W.2d 619 (Tex.1993). 

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