Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of November 2, 2015.

NOTE:  Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Alexander v. Kent, No. 02-13-00469-CV (Nov. 5, 2015) (Gardner, J., joined by Dauphinot and Walker, JJ.).

Held:  Even though Alexander, the president and sole stockholder of K.B. Alexander Co. of Texas, Inc. (KBA), was not a party to the construction contract between KBA and Kent and did not sign the monthly payment applications in his individual capacity, Alexander was individually liable for the fraudulent statements made in the payment applications. The language in the payment applications submitted by KBA to Kent—certifying that to the best of KBA's "knowledge, information, and belief . . . all amounts have been paid by the Contractor for Work for which previous Certificates of Payment were issued"—were statements actionable for fraud, and Kent's reliance on this language when making the payments requested by the payment applications was justifiable. Kent did not have equal access to KBA's records that might have precluded his fraud action against Alexander. The lack of evidence establishing that Alexander had no intent to perform the construction contract when it was executed is irrelevant because Kent did not allege or attempt to prove fraud in the inducement of the construction contract. The evidence was legally and factually sufficient to support the $20,061.32 in actual damages the trial court awarded to Kent. However, the evidence was legally and factually insufficient to support $22,249.97 in attorney's fees and the $3,000 in additional bankruptcy counsel fees awarded by the trial court. Attorney's fees are not recoverable in a common-law fraud action, and the additional bankruptcy counsel fees were not reliance damages, were not shown to have been caused by Alexander's fraud, and were not supported by expert testimony or any other evidence establishing that they were reasonable or necessary.

In re Cox, No. 02-15-00132-CV (Nov. 5, 2015) (orig. proceeding) (op. on reh'g en banc) (Walker, J., joined by Livingston, C.J.; Dauphinot, Gardner, Meier, and Gabriel, JJ.; Sudderth, J., dissents with opinion, joined by Charles Bleil, Senior Justice, Retired, Sitting by Assignment).

Held: Because Respondent misapplied well-settled law concerning the disqualification of special prosecutor Cary Piel to the undisputed facts presented at the disqualification hearing, and because Relator possesses no adequate remedy at law concerning Respondent's denial of her motion to disqualify Piel, Relator has shown that she is entitled to mandamus relief concerning the disqualification of Piel.

Dissent:  Respondent heard conflicting evidence at the hearing on Relator's disqualification motion, and deference must be given to the trial court's factual determinations that are supported by evidence, as they are in this case. Upon proper application of the standard of review, the record does not support the majority's conclusion that Piel and Eric Erlandson "co-counseled in this very case."  Therefore, because Respondent's decision was not so arbitrary and unreasonable that it amounted to a clear and prejudicial error of law, Relator has not shown that she is entitled to mandamus relief.