Aquaplex, Inc. v. Rancho La Valencia, Inc., No. 08-0280 (Tex. Oct. 30, 2009) (DB)
Over at the Reverse and Render blog, Mike Northrup has a post about the Texas Supreme Court’s recent Aquaplex decision.
This was a commercial fraud case in which the defendant disputed intent, causation, and damages.
On the causation question, the Court looked to evidence of intent. In particular, discussing the filing of a lis pendens notice, the Court noted that the intent behind the filing was to stop the sale of property.
But the post at Reverse and Render wonders if letting evidence of that intent also prove the causation element of fraud “collapses” the fraud tort down into something too easy to prove:
It is unclear how this holding fits with prior precedent holding that evil motive or intent does not necessarily establish a cause of action. This opinion should give concern to those who file lis pendens. The purpose of lis pendens is give initial notice of a claim to property. According to the Aquaplex decision, the filing of a lis pendens might well constitute a complete claim for fraud.
Like Mike, I would also be surprised if the Court mean to loosen the requirement that causation be shown to support fraud damages. I think it’s more likely that this is an example of a complex fact pattern being difficult to squeeze into its per curiam opinion. With that in mind, it could be a mistake to rely too much on Aquaplex when crafting your next jury charge.
2 responses so far ↓
1 Kendall Gray // Nov 12, 2009 at 10:50 am
In my view, this problem of unforeseen consequences to the substantive law is one of the biggest problems with the per curiam opinion. In the effort to be brief, the Court simplifies itself into unintentional error or confusion. Better to reserve the PC for the truly simple case that is largely procedural and completely bound by prior precedent.
2 Don Cruse // Nov 13, 2009 at 10:28 am
I agree with your sentiments. I just don’t know if the criticism of this opinion is really attributable to the Court’s internal process for handling per curiams.
From my (admittedly very quick) review of the briefs, neither party treated causation as a first-class issue. There isn’t even a subheading (or sub-subheading) that places focus on the element of causation.
When the Court was deciding whether to take up this petition and to draft an opinion, it was faced with a choice whether to speak to this element on its merits, to send this narrow issue back down, to decide it was waived in the briefing… or just to deny review of the petition. The Court chose the first option.
I’m not involved in this case, so I can’t really speak to the facts here.
But from an appellate strategy perspective, the question is how should Respondents best try to explain to the Court that there is a side issue that might impede the Court from reaching the juicy main question?
In the U.S. Supreme Court, the Respondent would point it out, explain how it undermines the petitioner’s claim on an unrelated ground (calling it either a “vehicle problem” or an “alternate ground to affirm”), and have reason to believe that the Court was too busy to really concern itself with fixing any incidental error in the case.
But the Texas Supreme Court takes up a significantly larger percentage of its petitions than the U.S. Supreme Court does. Perhaps as a natural result, it seems more willing to correct errors or perceived injustices in particular cases than its federal counterpart.
The challenge for Respondents is trying to find a good vocabulary to talk about truly legitimate reasons why the Texas Supreme Court should deny review — whether they are procedural “vehicle problems” or (as might be true here) relatively boring alternate grounds for affirmance that could obviate the need to make new law.
That’s what I’ll be thinking about in the wake of this opinion.