Jeffrey May v. Ticor Title Insurance
422 S.W.3d 93
| Tex. App. | 2014Background
- May Appellants sued Ticor for breach of contract and breach of the duty of good faith and fair dealing over lost mineral interests not listed as exceptions in title policies.
- Jury valued lease signing bonus and royalty per net mineral acre; trial court used these findings to compute lost interests under the policies, finding breach as a matter of law and denying attorney/expert fees.
- Ticor cross-appealed: challenged breach-of-contract judgment, costs, prejudgment interest start date, and litigation costs under Rule 167.
- Wynne/Jackson reserved an undivided one-half interest in minerals; policies did not reflect that reservation, triggering claim notices beginning Sept. 2008.
- Case history included consolidation, dismissal for want of prosecution, reinstatement, scheduling-order disputes, late designation of an expert (Lahr) for attorneys’ fees, and a March 6, 2011 judgment for $14,716.69 with prejudgment/postjudgment interest but no attorney fees.
- The appellate court reversed in part, remanding for recalculation of prejudgment interest start date and for determining appropriate litigation costs, while affirming the rest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract waiver and sufficiency | May Appellants breached contract; stipulations prove breach. | Ticor argues waiver via Rule 279 and no jury question on breach. | Breach established; waivers rejected; breach and good faith are separate. |
| Court costs | Costs properly awarded to May Appellants as prevailing party. | Costs improper since not wholly prevailing. | Court costs awarded to May Appellants; no abuse of discretion. |
| Prejudgment interest start date | Interest should accrue from filing date or 180 days after notice. | Trial court date should control; correct date misapplied. | Start date should be March 31, 2009 (date of filing); remand to recalculate. |
| Litigation costs under Rule 167 | Costs offset due to settlement offer should apply. | Costs should be offset if criteria met; may exceed half of damages. | Remand to determine appropriate litigation-cost offset; error to deny. |
| Rule 193.6 motion to designate Lahr as expert | Late designation should be allowed; no unfair prejudice. | Sanction warranted for noncompliance with scheduling orders. | Trial court did not abuse discretion in denying the motion; sanction affirmed. |
Key Cases Cited
- Bank of Tex. v. VR Electric, Inc., 276 S.W.3d 671 (Tex. App.—Houston [1st Dist.] 2008) (waiver when undisputed elements established)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (undisputed facts may support judgment as a matter of law)
- Cooper v. Cochran, 288 S.W.3d 535 (Tex. App.—Dallas 2009) (stipulations can prove an issue conclusively)
- Legacy Motors, LLC v. Bonham, 2007 WL 2693863 (Tex. App.—Fort Worth 2007) (stipulations function as proof on issues otherwise tried)
- Gillenwater, 285 S.W.3d 879 (Tex. App.—Corpus Christi 2009) (trial court may exclude late-designated expert; no unfair surprise)
- Town of Flower Mound v. Teague, 111 S.W.3d 742 (Tex. App.—Fort Worth 2003) (prejudgment interest accrues from defined dates)
- Hatfield v. Solomon, 316 S.W.3d 50 (Tex. App.—Houston [14th Dist.] 2010) (costs generally not include expert fees)
- Whitley v. King, 581 S.W.2d 541 (Tex. App.—Fort Worth 1979) (expert fees are not generally taxable costs)