(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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).
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.
(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.
(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.
(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.
(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
(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.).
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).
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).
A plaintiff who is a licensee must establish the following elements in a premises defect case:State Department of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992).
(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.
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).
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
(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.).
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).
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.
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).