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The Mundy Firm

Injunction Law

Mar 14, 2013 — by Jeff Mundy
Tags: Civil Procedure

Trial courts possess the inherent power to modify final injunctive orders to enforce a judgment or accommodate changed conditions. We apply a two-step inquiry when reviewing the grant or denial of a such a motion. First, we must consider whether the evidence shows actual changed circumstances. 

Absent changed circumstances, a trial court lacks the authority to modify a final, permanent injunction. Id. Second, if relevant circumstances have changed, we must determine whether the trial court abused its discretion in ruling upon the requested modification.

Modification of an injunction may be appropriate when changed circumstances render an injunction "unnecessary or improper." We have said that "[w]hen the issue is whether changed circumstances warrant a modification of prior injunctive orders, a balancing of equities is not only appropriate but is also required." 

Real Estate Agent Fee Law

Mar 13, 2013 — by Jeff Mundy
Tags: Contract Law

RELA provides a party may not maintain an action to recover a commission for the sale or purchase of real estate unless the promise or memorandum on which the action is based is in writing. TEX. OCC. CODE ANN. § 1101.806(c). Strict compliance with RELA is required; an agreement to pay a real estate commission must be in writing to be enforceable. Lathem v. Kruse, 290 S.W.3d 922, 925 (Tex. App.--Dallas 2009, no pet.).

Vicarious Liability & Negligent Undertaking

Mar 7, 2013 — by Jeff Mundy
Tags: Personal Injury

Under the doctrine of respondeat superior, an employer may be vicariously liable for the negligence of its agent or employee who was acting within the scope of employment even though the employer did not personally commit a wrong. But a person or entity that hires an independent contractor is generally not vicariously liable for the tort or negligence of that person.  The right of control is the "supreme test" for determining whether a master-servant relationship exists. 

Texas law generally imposes no duty to take action to prevent harm to others absent certain special relationships or circumstances. However, one who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other's person or property will not be injured thereby. 

An employer has a duty to adequately hire, train, and supervise employees.

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