Arbitration Clause Applies to Post-Employment Defamation

The alleged conduct of a prior employer after termination of the employee must be arbitrated pursuant to an arbitration agreement, according to the Fort Worth Court of Appeals. In Ensign Group, Inc., et al. v. Mammen, Cause No. 02-14-00317-CV (Tex. App.—Fort Worth May 14, 2015), Defendant terminated Plaintiff’s employment. When a prospective employer contacted Defendant for a reference for Plaintiff, Defendant allegedly stated that Plaintiff was “lazy” and was escorted out of the building by police. The prospective employer allegedly told Plaintiff that it would not offer her a position based on Defendant’s poor reference. Plaintiff sued Defendant for negligence, slander and tortious interference with prospective contract. Defendant moved to compel arbitration of Plaintiff’s claims on the basis of an arbitration agreement the parties entered into while Plaintiff was still an employee of Defendant. The agreement called for all claims, “whether or not” the claims arose out of Plaintiff’s “employment, remuneration or termination,” to be arbitrated under the Federal Arbitration Act. The agreement also stated that it would survive termination of the

Verified Denial Required to Dispute Existence of Contract

The failure to file a verified denial as to the existence of covenant not to compete, according to the Dallas Court of Appeals, prevents a party from later challenging the existence of that contract. In Greenville Automatic Gas Company v. Automatic Propane Gas and Supply, LLC, et. al.; Cause No. 05-13-01405-CV (Tex. App.—Dallas June 9, 2015), the Court held that the terms of an employment contract were settled by the absence of a verified denial of those terms. Defendant employed Plaintiff for approximately fifteen years as a route driver, delivering propane to Defendant’s customers. Defendant alleged Plaintiff signed a nine-page employment agreement that contained a covenant not to compete. After Plaintiff accepted a position with a competitor, Plaintiff filed a declaratory judgment action against Defendant seeking to establish his rights under the employment agreement. Plaintiff argued that the non-compete provisions of the employment agreement were unenforceable. Defendant filed a response to the petition as well as a counterclaim, attaching a copy of the employment agreement to its answer. Plaintiff did not timely

Procedural Irregularities with Certificate of Merit Require Dismissal of Suit

In yet another interlocutory appeal regarding procedural irregularities with a certificate of merit, the Dallas Court of Appeals reversed a trial court’s order and mandated dismissal of Plaintiff’s claims. In DHM Design v. Catherine Morzak, Cause No. 05-15-00103-CV (Tex. App.—Dallas June 19, 2015), Plaintiff sued the architect of record for bleachers at Breckenridge Park in Richardson, Texas after sustaining personal injuries from a fall at the park. Plaintiff alleged that the architect did not include sufficient contrasting color to distinguish between stairs and a seating area, preventing her from perceiving the change in depth of the risers between the stairs and the seating area. Plaintiff initially filed suit against the wrong architect, attaching a certificate of merit to her petition. The certificate alleged that the wrong architect had negligently designed the bleachers. Exactly two years after her fall, on the date the statute of limitations was set to expire, Plaintiff filed an amended petition, naming the correct architect of record for the bleachers as a Defendant. She attached the original certificate of

Painting Contractor Liable for Breach of Express Warranty

The Dallas Court of Appeals affirmed the trial court’s judgment that a commercial painting contractor breached its express warranty and is liable for $92,000 in damages. In Contemporary Contractors, Inc. v. WILC/MVL, LLP, et. al. (Tex. App—Dallas May 28, 2015), Cause No. 05-14-00411-CV, Plaintiff and Defendant entered into a contract for Defendant to replace and repair exterior wood on and to paint the exterior of an apartment complex in Grapevine, Texas. The contract contained the following express warranty: “All work described herein shall be warranted and guaranteed to be free from defects and failure and to perform as intended for a period of five years from completion.” About one year after the work was completed, Plaintiff began noticing issues with the exterior paint and asked Defendant to repaint the property. Defendant refused. Plaintiff hired another contractor to repair and repaint the complex for $92,000 and subsequently sued Defendant for breach of express warranty. The Dallas Court of Appeals interpreted the express warranty as having two parts, either of which, if violated, would

Amendment to Design Professional Anti-Indemnity Statute

In the recently concluded 2015 session, the Texas Legislature amended the anti-indemnity statute pertaining to engineers and architects performing work for certain types of governmental entities. The amendment prohibits a governmental entity from requiring an engineer or architect to defend it for claims based in whole or in part on the fault, breach or negligence of the governmental entity. The purpose of the amendment is to prevent governmental entities from requiring architects and engineers to muster a defense that otherwise falls outside of their professional liability insurance policies. The impacted governmental entities include municipalities, counties, school districts, conservation or reclamation districts, hospital districts or other political subdivisions of the state. The Governor signed the Bill on June 17, 2015 and the amended statute is effective September 1, 2015. The modified anti-indemnity provision, Texas Local Government Code section 271.904, splits out an architect’s and engineer’s indemnification and defense obligations, allows a governmental entity to seek recovery of attorney’s fees in proportion to the design professional’s liability, and imposes a statutory standard or care for design