essence claim in Texas

2019Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex. 1962).

2016See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex. 1962).

2020Breach of Fiduciary Duty In the context of an attorney-client relationship, “the essence of a claim for breach of fiduciary duty involves the ‘integrity and fidelity’ of an attorney . . . .” Kimleco Petrol., 91 S.W.3d at 923 (quoting Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)).

2010McGuire, Craddock, Strother & Hale, P.C. v. Transcont’l Realty Investors, Inc. , 251 S.W.3d 890, 894 (Tex. App.—Dallas 2008, pet. denied); Kimleco Petroleum, Inc. v. Morrison & Shelton , 91 S.W.3d 921, 923 (Tex. App.—Fort Worth 2002, pet. denied).

2020“An attorney breaches his fiduciary duty when he benefits improperly from the attorney-client relationship by, among other things, subordinating his client’s interest to 9 his own, retaining the client’s funds, engaging in self-dealing, improperly using client confidences, failing to disclose conflicts of interest, or making misrepresentations to achieve these ends.” Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no pet.) (citing Goffney, 56 S.W.3d at 193 ).

2019Sometimes, the prevailing party on a breach of fiduciary duty claim may receive monetary relief without proving it suffered monetary damages.58 Upon finding that a breach of fiduciary duty occurred, a trial court may order a forfeiture of some or all of an otherwise reasonable fee if a “clear and serious” breach of a fiduciary duty occurred.59 When a forfeiture of fees is the remedy that has been sought, the factfinder must resolve “whether or when the misconduct complained of 57 Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no pet.) (“The essence of a claim for breach of that d

2010McGuire, Craddock, Strother & Hale, P.C. v. Transcont’l Realty Investors, Inc. , 251 S.W.3d 890, 894 (Tex. App.—Dallas 2008, pet. denied); Kimleco Petroleum, Inc. v. Morrison & Shelton , 91 S.W.3d 921, 923 (Tex. App.—Fort Worth 2002, pet. denied).

2010McGuire, Craddock, Strother & Hale, P.C. v. Transcont’l Realty Investors, Inc., 251 S.W.3d 890, 894 (Tex.App.-Dallas 2008, pet. denied); Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 923 (Tex.App.-Fort Worth 2002, pet. denied).

2015Ernst, Inc. v. Manhattan Construction Comp. of Texas, 559 F.2d 268, 269 (5th Cir. 1977). 22. ″Merely initiating litigation, without more, does not effect a waiver″ because no actual prejudice results from that isolated action.

1995Co., 559 F.2d 268, 269 (5th Cir.1977) (“[Prejudice ... is the essence of waiver.”), with National Found, for Cancer Research v. A.G.

2008See Somervell, 169 S.W.3d at 728 .

2008See Somervell, 169 S.W.3d at 728 .

2008Id. at 544 ; see also Smalling v. Gardner, 203 S.W.3d 354, 363 (Tex. App.–Houston [14th Dist.] 2005, pet. denied) (“[T]he court’s focus is whether the essence of the claim asserted by the plaintiff involves departures from accepted standards of medical care.”).

2008Id. at 544 ; see also Smalling v. Gardner, 203 S.W.3d 354, 363 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (“[T]he court’s focus is whether the essence of the claim asserted by the plaintiff involves departures from accepted standards of medical care.”).

2015In deciding whether Ollie’s safety-related claim was an HCLC, the Texas Supreme Court explained that “the essence of the claim center[ed] on the failure of [defendant] to act with the proper degree of care to furnish a dry floor, warn her of the hazards of a wet bathroom floor, or some similar failure to act.” Id. at 527 ; see also Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541 , 543–44 (Tex. 2004) (explaining that court is not bound by manner in which plaintiff’s pleadings characterize claim in determining whether claim is an HCLC).

2008Id. at 544 ; see also Smalling v. Gardner, 203 S.W.3d 354, 363 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (“[T]he court’s focus is whether the essence of the claim asserted by the plaintiff involves departures from accepted standards of medical care.”).

2018See id.

2001Id. at 771-72 .

2020Breach of Fiduciary Duty In the context of an attorney-client relationship, “the essence of a claim for breach of fiduciary duty involves the ‘integrity and fidelity’ of an attorney . . . .” Kimleco Petrol., 91 S.W.3d at 923 (quoting Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)).

2019Sometimes, the prevailing party on a breach of fiduciary duty claim may receive monetary relief without proving it suffered monetary damages.58 Upon finding that a breach of fiduciary duty occurred, a trial court may order a forfeiture of some or all of an otherwise reasonable fee if a “clear and serious” breach of a fiduciary duty occurred.59 When a forfeiture of fees is the remedy that has been sought, the factfinder must resolve “whether or when the misconduct complained of 57 Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no pet.) (“The essence of a claim for breach of that d

2009See Mosher, 400 S.W.2d at 404 .

2009See Mosher , 400 S.W.2d at 404 .

2008See City of Keller , 168 S.W.3d at 816 .

2008See City of Keller, 168 S.W.3d at 816 .

2006Nov.9, 2005) (despite claim of alleged misuse of handcuffs and leg irons, "all of plaintiff's damages arise out of the claimed instance of excessive force"); Holland v. City of Houston, 41 F.Supp.2d 678, 713 (S.D.Tex. 1999) ("Where the essence of a claim under the TTCA arises from an intentional tort, allegations of negligence are insufficient to avoid the § 101.057 exception to liability."); Huong v. City of Port Arthur, 961 F.Supp. 1003, 1008-09 (E.D.Tex.1997) ("Plaintiffs cannot circumvent the intentional tort exception to waiver of municipal liability by simply pleading negligence when the

2006Nov.9, 2005) (despite claim of alleged misuse of handcuffs and leg irons, "all of plaintiff's damages arise out of the claimed instance of excessive force”); Holland v. City of Houston, 41 F.Supp.2d 678, 713 (S.D.Tex. 1999) ("Where the essence of a claim under the TTCA arises from an intentional tort, allegations of negligence are insufficient to avoid the § 101.057 exception to liability.”); Huong v. City of Port Arthur, 961 F.Supp. 1003, 1008-09 (E.D.Tex.1997) ("Plaintiffs cannot circumvent the intentional tort exception to waiver of municipal liability by simply pleading negligence when the

2017See Diversicare, 185 S.W.3d at 848 .

2008In Diver-sicare, the essence of the claim was that the health care provider’s lapses in professional judgment allowed the claimant to be injured by another. 185 S.W.3d at 851 .

2024“Texas courts have consistently applied the privilege to claims arising out of communications made in the course of judicial proceedings, regardless of the label placed on the claim,” and “the privilege should be extended beyond defamation when the essence of a claim is damages that flow from communications made in the course of a judicial proceeding.” Laub v. Pesikoff, 979 S.W.2d 686 , 690–91 (Tex. App.—Houston [1st Dist.] 1998, pet. denied.).

2016See Laub v. Pesikoff, 979 S.W.2d 686, 691 (Tex. App.—Houston [1st Dist.] 1998, writ denied) (applying privilege to husband’s claims against wife’s psychotherapists who offered affidavits in divorce proceeding regarding wife’s mental state; finding that claims for tortious interference with contract, civil conspiracy, and intentional infliction of emotional distress in addition to libel and slander were barred by judicial privilege because “the essence of each of these claims is that [husband] suffered injury as a result of the communication of allegedly false statements during a judicial proce

2024See Mireskandari v. Casey, 636 S.W.3d 727 , 739 (Tex. App.—Dallas 2021, pet. denied) (stating judicial-proceedings privilege did not apply because the essence of the plaintiff’s claim “was not damages but declaratory relief”); Deuell, 508 S.W.3d at 690 (noting judicial-proceedings privilege applies to other torts “when the essence of a claim is damages that flow from communications made in the course of a judicial proceeding” and the “party seeks damages that flow from alleged reputational harm, regardless of the type of claim alleged”).

2020See, e.g., Kennedy v. Gulf Coast Cancer & Diagnostic Ctr. at Se., Inc., 326 S.W.3d 352, 360 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“The essence of a claim for breach of fiduciary duty focuses on whether an attorney obtained an improper benefit from representing the client.”).

2019Sometimes, the prevailing party on a breach of fiduciary duty claim may receive monetary relief without proving it suffered monetary damages.58 Upon finding that a breach of fiduciary duty occurred, a trial court may order a forfeiture of some or all of an otherwise reasonable fee if a “clear and serious” breach of a fiduciary duty occurred.59 When a forfeiture of fees is the remedy that has been sought, the factfinder must resolve “whether or when the misconduct complained of 57 Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no pet.) (“The essence of a claim for breach of that d

2019Sometimes, the prevailing party on a breach of fiduciary duty claim may receive monetary relief without proving it suffered monetary damages.58 Upon finding that a breach of fiduciary duty occurred, a trial court may order a forfeiture of some or all of an otherwise reasonable fee if a “clear and serious” breach of a fiduciary duty occurred.59 When a forfeiture of fees is the remedy that has been sought, the factfinder must resolve “whether or when the misconduct complained of 57 Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no pet.) (“The essence of a claim for breach of that d

2019Sometimes, the prevailing party on a breach of fiduciary duty claim may receive monetary relief without proving it suffered monetary damages.58 Upon finding that a breach of fiduciary duty occurred, a trial court may order a forfeiture of some or all of an otherwise reasonable fee if a “clear and serious” breach of a fiduciary duty occurred.59 When a forfeiture of fees is the remedy that has been sought, the factfinder must resolve “whether or when the misconduct complained of 57 Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no pet.) (“The essence of a claim for breach of that d

2019Sometimes, the prevailing party on a breach of fiduciary duty claim may receive monetary relief without proving it suffered monetary damages.58 Upon finding that a breach of fiduciary duty occurred, a trial court may order a forfeiture of some or all of an otherwise reasonable fee if a “clear and serious” breach of a fiduciary duty occurred.59 When a forfeiture of fees is the remedy that has been sought, the factfinder must resolve “whether or when the misconduct complained of 57 Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no pet.) (“The essence of a claim for breach of that d

2019See Tenneco, 925 S.W.2d at 643 (a party’s express renunciation of a known right can establish waiver); Sedona, 995 S.W.2d at 196 (discussing waiver of claims in a bid form).

2017See In re Commitment of Fisher, 164 S.W.3d 637 , 656 n.17 (Tex. 2005) (citing Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 , 461 n.5 (Tex. 1997)).

2017See In re Commitment of Fisher, 164 S.W.3d 637 , 656 n.17 (Tex. 2005) (citing Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 , 461 n.5 (Tex. 1997)).

2016PNK replies that it did not materially breach the contract because (1) “the evidence conclusively shows that Mobilelink accepted and/or operated all four stores that were the subject of the contract,” (2) “Mobilelink accepted the late performance and waived the time is of the essence clause,” and (3) “the evidence shows that the parties agreed that Mobilelink would make [the October 2013 rent] payments and that although Mobilelink issued the checks, PNK made the payments to the landlords” for those rents.1 A. Applicable law If “one party to a contract commits a material breach of that contract

2016But “[i]f the non-breaching party continues to insist on performance by the party in default, the 1 Because we hold that PNK did not materially breach the lease, we do not address its alternative argument that Mobilelink did not preserve this issue because it only argued material breach in its counterclaims, not as an affirmative defense. 6 previous breach by the breaching party is not an excuse for nonperformance by the non-breaching party and the contract continues in full force.” New York Party Shuttle, LLC v. Bilello, 414 S.W.3d 206, 216 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

2016See Laub v. Pesikoff, 979 S.W.2d 686, 691 (Tex. App.-Houston [1st Dist.] 1998, writ denied) (applying privilege to husband’s claims against wife’s psychotherapists who offered affidavits in divorce proceeding regarding wife’s mental state; finding that claims for tortious interference with contract, civil conspiracy, and intentional infliction of emotional distress in addition to libel and slander were barred by judicial privilege because “the essence of each of these claims is that [husband] suffered injury as a result of the communication of allegedly false statements during a judicial proce

2016See Laub v. Pesikoff, 979 S.W.2d 686, 691 (Tex. App.—Houston [1st Dist.] 1998, writ denied) (applying privilege to husband’s claims against wife’s psychotherapists who offered affidavits in divorce proceeding regarding wife’s mental state; finding that claims for tortious interference with contract, civil conspiracy, and intentional infliction of emotional distress in addition to libel and slander were barred by judicial privilege because “the essence of each of these claims is that [husband] suffered injury as a result of the communication of allegedly false statements during a judicial proce