SMU Annual Texas Survey


This Article covers Real Property cases from Southwestern Reporter (Third) volumes 633 through 652 and federal cases during the Survey period that the authors believe are noteworthy to the jurisprudence on the applicable subject.

A number of significant cases, mostly from the Texas Supreme Court, have been handed down during this survey period. The due process requirements for the scope of inquiry for substituted service have been promulgated in MAP Resources. Additional procedural issues for service on financial institutions, which were decided differently by various state and federal courts, were resolved in Moss. The Texas Supreme Court provided helpful guidance on the measurement of consequential damages in Signature, and offered a cautionary tale to practitioners about the drafting of consequential damage waivers in James.

In another cautionary tale to practitioners, the Tyler Court of Appeals in Tiner addressed the enforceability of a fixed price 100-year option contract. Likewise, in Rancho Viejo, following guidance from the Texas Supreme Court, the San Antonio Court of Appeals narrowly interpreted a restrictive covenant to allow construction of a solid waste facility. The narrow interpretation of restrictive covenants was again reiterated by the Texas Supreme Court in JBrice.

The supreme court has also addressed, in a case of first impression, the issue of implied revocation of an outstanding offer in Tauch. In premises liability cases, it also discussed the “dual capacity” for successor liability in Eagleridge, and the “necessary use” doctrine in Sandridge. The Texas Attorney General issued guidance on the meaning of “person” for purposes of nonjudicial foreclosures.

Unfortunately, the limitations period for equitably subrogated lien claims, under Howard I and its prodigy, continued in Howard III. From a governance perspective, the Texas Supreme Court refined the fiduciary duties of directors in the Poe decision. Regulatory takings were addressed in Schrock, but with significant possible changes in jurisprudence raised in the concurring opinions. Additionally, the Texas Supreme Court jumped on the Dallas to Houston highspeed train project in defining an interurban electric railway.



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