One of the elements of a fraud claim is reliance upon a misrepresentation made by the Defendant. This means that a Plaintiff must not only prove that the Defendant knowingly made a false representation of material fact, but also demonstrate that the Plaintiff in some...
What is Limitations? "Limitations" refers to the period within which a Plaintiff must file a lawsuit. Failure to file suit within the applicable limitations period can render the suit time-barred. The existence of limitations periods is grounded in the notion that...
WHAT IS A "NUISANCE" IN LEGAL TERMS? Under Texas law, a “nuisance” is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to a person of ordinary sensibilities attempting to use and enjoy it....
What is a Private Nuisance? In private nuisance, a defendant’s conduct substantially interferes with the use and enjoyment of real property owned by an individual or small group of persons. Private nuisance "may, for example, cause physical damage to the plaintiffs’...
These days, Mediation is ubiquitous in civil lawsuits. The local court rules of most Texas counties require mediation, and the state's policy has been made clear by statute: Sec. 154.002. POLICY. It is the policy of this state to encourage the peaceable resolution of...
HOW IS AN EASEMENT BY PRESCRIPTION ACQUIRED? A person can acquire a prescriptive easement if he uses someone else’s land in a manner that is adverse, open and notorious, continuous, and exclusive for the requisite ten-year period. Brooks v. Jones, 578 S.W.2d 669, 673...
Texas law recognizes multiple types of easements. One of the most nebulous of these is an easement by estoppel. Easements by estoppel are unique because they are implied (not affirmatively granted in writing or even verbally) by actions ("acquiescing behavior") --...
RAILROAD COMPANY's DUTY TO WARN Railroad companies have a general legal duty “to give adequate warning of approaching trains, given whatever obstructions or other conditions exist.” Mo. Pac. R.R. Co. v. Limmer, 299 S.W.3d 78, 92 (Tex.2009). Because “every railroad...
Why Study the Jury Charge? Before taking a case to trial, or even filing a lawsuit, it is critically important to understand the specific questions that jurors will be asked to answer. The juror's answers to the questions related to a specific claim or cause of action...
START FROM THE END, BEFORE YOU EVEN BEGIN My next several posts to this BLOG will explore the substance of the specific Questions that Texas juries are asked to decide in real estate lawsuits. Juries answer these questions at the very end of a civil lawsuit - after...
PERMANENT OR TEMPORARY INJURY - WHY IT MATTERS Injury resulting from damage to land is characterized as Permanent or Temporary. This is true whether the injured party asserts a claim for nuisance, trespass or water diversion/flooding under Section 11.086 of the Texas...
OBJECTIVE OF RES JUDICATA OR CLAIM PRECLUSION “The doctrine of res judicata, also known as claim preclusion, bars lawsuits that arise out of the same subject matter as a prior suit when, with the use of diligence, that subject matter could have been litigated in the...
REQUIRED PROOF FOR ADVERSE POSSESSION - TITLE THROUGH PASSAGE OF TIME & OTHER PROOF Under Texas law, adverse possession requires “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is...
REQUIRED SHOWING FOR TRESPASS CLAIM In order to prevail on a claim for Trespass to real property, a Plaintiff must show an unauthorized physical entry onto his property by some person or thing. Warwick Towers Council of Co-Owners v. Park Warwick, L.P., 298 S.W.3d...
Boundary disputes are common. So too, are survey discrepancies and disagreements among surveyors as to the precise location of property boundaries. SURVEYS NOT ALWAYS RELIABLE OR UNDERSTANDABLE Surveying is as much an "art" as it is a science. Surveying has...
Texas law protects an owner of land from damage -- even insignificant damage -- caused by runoff of water from a neighboring property. Both compensatory damages and injunctive relief are available. A landowner is not, however, entitled to relief simply because...
ARE MULTIPLE LAWSUITS BETTER THAN ONE? An important component of litigation strategy in disputes involving multiple parties or multiple claims involves deciding which claims and parties to include in a lawsuit. By extension, that strategy decision includes...
WHAT IS AN EXPRESS EASEMENT? An easement is a non-possessory interest in another's property that authorizes the holder to use that property for a particular purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002).Notably, an easement does not...
Has a neighboring landowner caused water to divert onto your property resulting in flooding or other damage? Erection of dams, walls, fences, channels, berms, culverts, and culverts can change the natural flow of rainwater or water courses, resulting in destructive...
https://www.youtube.com/watch?v=ONjT3AnNWNM HAVE YOU RECEIVED A SCARY LAWYER LETTER? Have you received an aggressive lawyer from a lawyer accusing you of terrible acts and threatening horrific things unless you pay a sum of money? How did reading the letter make you...
THE MEANING OF AN “AS IS” AGREEMENT IN REAL ESTATE When buyers of real estate in Texas contract to buy a property "as is," they agree to make their own appraisal of the bargain and to accept the risk that they may be wrong. Prudential Ins. Co. of Am. v. Jefferson...