contractual privilege in Texas

2026See Tex. Code Crim. 7 In Speth, the Court of Criminal Appeals stated, “An award of community supervision is not a right, but a contractual privilege.” 6 S.W.3d at 534 . 8 Black refers us to several civil cases to support his modification and novation arguments.

2024A defendant who benefits from the contractual privilege of probation, the granting of which does not involve a systemic right or prohibition, must complain at trial to conditions he finds objectionable.9 In Gutierrez v. State, we recognized a narrow exception to the Speth waiver rule.10 A waiver will not occur for a condition “that the criminal justice system simply finds intolerable” and “is therefore, by definition, not even an option available to the parties.”11 In Gutierrez, the condition of probation at issue was a requirement that Gutierrez either obtain legal status to remain in this co

2021However, despite this strong presumption in favor of arbitration, that policy “cannot serve to stretch a contractual clause beyond the scope intended by the parties or allow modification of the plain and unambiguous provisions of an agreement.” Belmont Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 356 (Tex. App.— Houston [1st Dist.] 1995, no writ); see also Branch Law Firm, L.L.P. v. Osborn, 447 S.W.3d 390, 397 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Osornia v. AmeriMex Motor & Controls, Inc., 367 S.W.3d 707, 712 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

2019Although both Texas and federal policy strongly favor arbitration, that policy “cannot serve to stretch a contractual clause beyond the scope intended by the parties or allow modification of the plain and unambiguous provisions of an agreement.” Belmont Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 356 (Tex. App.—Houston [1st Dist.] 1995, no writ); see also Branch Law Firm, L.L.P. v. Osborn, 447 S.W.3d 390, 397 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Osornia v. AmeriMex Motor & Controls, Inc., 367 S.W.3d 707, 712 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

2025See id.; Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 , 303 (2010) (“We have applied the presumption favoring arbitration, in FAA . . . cases, only where it reflects, and derives its legitimacy from, a judicial conclusion that arbitration of a particular dispute is what the parties intended because their express agreement to arbitrate was validly formed and (absent a provision clearly and validly committing such issues to an arbitrator) is legally enforceable and best construed to encompass the dispute.”); Osornia v. AmeriMex Motor & Controls, Inc., 367 S.W.3d 707, 712 (Tex. App.—

2021However, despite this strong presumption in favor of arbitration, that policy “cannot serve to stretch a contractual clause beyond the scope intended by the parties or allow modification of the plain and unambiguous provisions of an agreement.” Belmont Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 356 (Tex. App.— Houston [1st Dist.] 1995, no writ); see also Branch Law Firm, L.L.P. v. Osborn, 447 S.W.3d 390, 397 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Osornia v. AmeriMex Motor & Controls, Inc., 367 S.W.3d 707, 712 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

2019Although both Texas and federal policy strongly favor arbitration, that policy “cannot serve to stretch a contractual clause beyond the scope intended by the parties or allow modification of the plain and ambiguous provisions of an agreement.” IKON Office Sol., Inc. v. Eifert, 2 S.W.3d 688, 697 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

2015See IKON Office Solutions, Inc., 2 S.W.3d at 697 .

2009In this regard, we note that the policy favoring arbitration “cannot serve to stretch a contractual clause beyond the scope intended by the parties.” Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.W.2d 225, 230 (Tex. App.–Houston [14th Dist.] 1993, writ denied).

2009In this regard, we note that the policy favoring arbitration "cannot serve to stretch a contractual clause beyond the scope intended by the parties." Babcock & Wilcox Co. v. PMAC, Ltd. , 863 S.W.2d 225, 230 (Tex. App.-Houston [14th Dist.] 1993, writ denied).

2024A defendant who benefits from the contractual privilege of probation, the granting of which does not involve a systemic right or prohibition, must complain at trial to conditions he finds objectionable.9 In Gutierrez v. State, we recognized a narrow exception to the Speth waiver rule.10 A waiver will not occur for a condition “that the criminal justice system simply finds intolerable” and “is therefore, by definition, not even an option available to the parties.”11 In Gutierrez, the condition of probation at issue was a requirement that Gutierrez either obtain legal status to remain in this co

2014A defendant who benefits from the contractual privilege of probation, the granting of which does not involve a systemic right or prohibition, “must complain at trial to conditions he finds objectionable.” Id.; compare Gutierrez v. State, 380 S.W.3d 167, 177 (Tex.Crim.App.2012) (principles of waiver do not apply to conditions that violate an absolute prohibition or systemic requirement because those conditions are not subject to “ordinary principles of waiver or procedural default”).

2023In other words, “[e]ven the exceptionally strong policy favoring arbitration cannot justify requiring litigants to forego a judicial remedy 8 when they have not agreed to do so.” Carr v. Main Carr Dev., LLC, 337 S.W.3d 489, 496 (Tex. App.—Dallas 2011, pet. denied) (citing E.E.O.C. v. Waffle House Inc., 534 U.S. 279 , 293– 94 (2002).

2021“Even the exceptionally strong policy favoring arbitration cannot justify requiring litigants to forego a judicial remedy when they have not agreed to do so.” Carr v. Main Carr Dev., LLC, 337 S.W.3d 489, 496 (Tex. App.—Dallas 2011, pet. denied); Daniel K.

2017See Perry Homes v. Cull, 258 S.W.3d 580, 607 (Tex. 2008) (“If arbitrators simply misinterpret a contractual clause such as the reimbursement clause, that type of error is not one which will justify setting aside an award.”); Denbury Onshore, LLC v. Texcal Energy S. Tex., L.P., 513 S.W.3d 511, 520 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“Because the parties bargained for the arbitrator’s construction of their agreement, an arbitral decision even arguably construing or applying the contract must stand, regardless of a court’s view of its (de)merits.”); Patel v. Moin, No. 14- 15-00851-CV,

2017See Perry Homes v. Cull, 258 S.W.3d 580, 607 (Tex. 2008) (“If arbitrators simply misinterpret a contractual clause such as the reimbursement clause, that type of error is not one which will justify setting aside an award.”); Denbury Onshore, LLC v. Texcal Energy S. Tex., L.P., 513 S.W.3d 511, 520 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“Because the parties bargained for the arbitrator’s construction of their agreement, an arbitral decision even arguably construing or applying the contract must stand, regardless of a court’s view of its (de)merits.”); Patel v. Moin, No. 14- 15-00851-CV,

2017Thus, “[a] defendant who benefits from the contractual privilege of community supervision . . . must complain at trial to conditions he finds objectionable.” Id.; Ledet v. State, 177 S.W.3d 213, 221 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (holding appellant who failed to object to conditions of community supervision at trial or file motion for new trial could not object to conditions for first time on direct appeal).

2013Thus, “[a] defendant who benefits from the contractual privilege of probation . . . must complain at trial to conditions he finds objectionable.” Id.; Ledet v. State, 177 S.W.3d 213, 221 (Tex. App.—Houston [1st Dist.] 2005, 3 pet. ref’d) (holding appellant who failed to object to conditions of community supervision at trial or file motion for new trial could not object to conditions for first time on direct appeal).

2015Ed. 2d 403 (2010); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 , 126 S. Ct. 8 The homeowners concede that the arbitrator and not a court decides a contractual defense to the contract as a whole as opposed to a contractual defense to just the arbitration provision.

2015See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 , 126 S. Ct. 1204 , 163 L.

2013Said another way, Elkins has not demonstrated as a matter of law that the Jaegers and Beckmans gave, in the words used in Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975), “knowing and express oral or written consent to the dangerous activity or condition.” Elkins has not shown its entitlement to summary judgment under the contractual doctrine of assumed risk. 3 We note that the record contains evidence that the tour guide requested another employee of Elkins to bring him brake fluid during the tour because the jeep’s brakes were not working.

2013Said another way, El-kins has not demonstrated as a matter of law that the Jaegers and Beckmans gave, in the words used in Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex.1975), “knowing and express oral or written consent to the dangerous activity or condition.” Elkins has not shown its entitlement to summary judgment under the contractual doctrine of assumed risk. 3.

2010He notes the well-settled principle "that evidentiary sufficiency challenges do not require objection to be considered on appeal." (Appellant's Brief, p. 2.) This Court has stated in the past that "[a]n appellate court must always address challenges to the [legal] sufficiency of the evidence." McFarland v. State , 930 S.W.2d 99 at 100 (Tex. Crim.

2010He notes the well-settled principle “that evidentiary sufficiency challenges do not require objection to be considered on appeal.” (Appellant’s Brief, p. 2.) This Court has stated in the past that “[a]n appellate court must always address challenges to the [legal] sufficiency of the evidence.” McFarland v. State, 930 S.W.2d 99 at 100 (Tex.Crim.App.1996) (citing Texas Rule of Appellate Procedure 90(a), now Rule 47.1, and Garza v. State, 715 S.W.2d 642 (Tex.Crim.App.1986)).

2015Id.; seeDeLanney, 809 corporation, seeFawcett, 55 S.W.3d at 220 ; in S.W.2d at 494 n. 1 ("[S]ome contracts involve special relationships that may give rise to duties enforceable as Page 32 torts...."). "[A] plaintiff is not precluded from asserting a tort cause of action solely because his damages are certain circumstances in which a majority shareholder in a analogous to the damages sought in a contractual claim." closely held corporation dominates control over the Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663 , 674 business, Hoggett, 971 S.W.2d at 488 n. 13; and in closely held corporati

2003Id.; see DeLanney, 809 S.W.2d at 494 n. 1 (“[S]ome contracts involve special relationships that may give rise to duties enforceable as torts.... ”). “[A] plaintiff is not precluded from asserting a tort cause of action solely because his damages are analogous to the damages sought in a contractual claim.” Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 674 (Tex.App.-Houston [1st Dist.] 1996, no writ).

2012Id. having to defend a contract claim at the same time and before the same jury that would consider evidence that the insurer had offered to settle the dispute). 4 Paddon further argues that Allstate’s offer of $850 “constitutes bad faith in itself.” He alleges that “the only purpose, then, in tendering such an offer is to provide a basis later for the insurer to sever and abate the bad faith claims.” However, if the insurance company offers a settlement amount so low as to constitute “bad faith in itself,” then the insured can introduce evidence of the settlement offer in the trial of the bad

2009See Akin , 927 S.W.2d at 630 .

2026See Hernandez, 622 S.W.3d at 868 (“[A]bsent a specific contractual requirement to do so, a general contractor has no affirmative duty to take action upon learning of an independent contractor’s employee’s unsafe conduct.”); see also Chapa, 11 S.W.3d at 157 .

2021See Chapa, 11 S.W.3d at 157 .

2022Norton v. State, 434 S.W.3d 767, 772 (Tex.App.—Houston [14th Dist.] 2014, no pet.).

2018“A defendant who benefits from the contractual privilege of probation, the granting of which does not involve a systemic right or prohibition, must complain at trial to conditions he finds objectionable.” Speth, 6 S.W.3d at 535 ; see also Norton, 434 S.W.3d at 772 .

2021However, despite this strong presumption in favor of arbitration, that policy “cannot serve to stretch a contractual clause beyond the scope intended by the parties or allow modification of the plain and unambiguous provisions of an agreement.” Belmont Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 356 (Tex. App.— Houston [1st Dist.] 1995, no writ); see also Branch Law Firm, L.L.P. v. Osborn, 447 S.W.3d 390, 397 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Osornia v. AmeriMex Motor & Controls, Inc., 367 S.W.3d 707, 712 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

2019Although both Texas and federal policy strongly favor arbitration, that policy “cannot serve to stretch a contractual clause beyond the scope intended by the parties or allow modification of the plain and unambiguous provisions of an agreement.” Belmont Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 356 (Tex. App.—Houston [1st Dist.] 1995, no writ); see also Branch Law Firm, L.L.P. v. Osborn, 447 S.W.3d 390, 397 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Osornia v. AmeriMex Motor & Controls, Inc., 367 S.W.3d 707, 712 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

2018A party that prevails on a contractual claim can recover its fees and expenses, even if they were incurred in collateral proceedings like arbitration." Id. at 842-43 .

2018See In re Gulf Expl. , 289 S.W.3d at 842-43 ("A party that prevails on a contractual claim can recover its fees and expenses, even if they were incurred in collateral proceedings like arbitration.").

2019See id.

2013“To determine whether a claim falls within the scope of the agreement, courts must ‘focus on the factual allegations of the complaint, rather than the legal causes of action asserted.’” In re Rubiola, 334 S.W.3d at 225 (quoting Prudential Sec.

2019Corp., 872 F.2d 692, 701 (5th Cir. 1989)); see also MeadWestvaco Corp. v. Way Serv., Ltd., No. 09-15-00014-CV, 2016 WL 421303 , at *9 (Tex. App.—Beaumont Feb. 4, 2016, no pet.) (mem. op.); Bank of Am., N.A. v. Hubler, 211 S.W.3d 859, 865 (Tex. App.—Waco 2006, pet. granted, judgm’t vacated w.r.m.).

2007Absent a contractual clause specifically excluding a “statutory claim to an award of attorney’s fees” under Chapter 38, “no valid waiver can occur because the party giving up the right does not know what he or she is relinquishing.” Id.