Albright v. Long

7 Citing cases

  1. Vance v. My Apartment Steak House of San Antonio, Inc.

    677 S.W.2d 480 (Tex. 1984)   Cited 164 times
    Holding that directed verdict was improper on element of damages because some evidence showed reasonable basis for determining party's loss, even though exact amount of damages could not be ascertained and there was substantial conflict in evidence with regard to exact cost of repairs

    It is a well accepted postulate of the common law that a civil litigant who asserts an affirmative claim for relief has the burden to persuade the finder of fact of the existence of each element of his cause of action. Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85, 89-90 (1954); Albright v. Long, 448 S.W.2d 564, 565 (Tex.Civ.App. — Amarillo 1969, no writ). Therefore, when Vance alleged facts entitling him to recover for his performance and his allegations were denied by Steak House, Vance was placed in the position of having to prove every fact essential to his case.

  2. Rent To Own, LLC v. CR-Fed Leasing, LLC

    No. 13-23-00563-CV (Tex. App. May. 23, 2024)

    Matthews v. Simmons, 589 S.W.2d 156, 159 (Tex. App.-Tyler 1979, no writ) (first citing Tex. Van Lines v. Templeton, 305 S.W.2d 646, 648 (Tex. App.-Dallas 1957, writ ref'd n.r.e.); and then citing Albright v. Long, 448 S.W.2d 564, 566 (Tex. App.-Amarillo 1969, no writ)); see Roby Indus., Inc. v. Maxwell Elecs. Corp., 409 S.W.2d 559, 561 (Tex. App.-Dallas 1966, pet. ref'd n.r.e.) ("Of course, Roby had the right to sue on three alternative causes of action.

  3. Bantuelle v. Williams

    667 S.W.2d 810 (Tex. App. 1984)   Cited 17 times
    In Bantuelle v. Williams, 667 S.W.2d 810 (Tex.App. — Dallas 1983, writ ref'd n.r.e.) the Williamses claimed that a deed signed by them and given to Bantuelle was actually a constitutionally prohibited mortgage on their homestead.

    A party may plead alternative theories of recovery, present the facts as they understand them to be, and recover under any one of their theories. Albright v. Long, 448 S.W.2d 564, 566 (Tex.Civ.App. — Amarillo 1969, no writ); Texas General Indemnity Co. v. Sheffield, 439 S.W.2d 431, 434-35 (Tex.Civ.App. — Houston [14th Dist.] 1969, writ ref'd n.r.e.). Bantuelle also argues that the Williamses' repeated testimony that they did not know they had signed a deed constituted an "express rejection" of their deed-as-mortgage theory.

  4. Matthews v. Simmons

    589 S.W.2d 156 (Tex. Civ. App. 1979)   Cited 8 times
    Reversing trial court order granting termination that also gave terminated parent visitation rights

    Lewis v. Hatton, 86 Tex. 533, 26 S.W. 50, 51 (1894); Rules 45 and 47, Tex.R.Civ.P. The appellee has complied with these requirements concerning her petition. Pleadings can be in the alternative, and a petition using the term "and/or" was not too indefinite to state a claim upon which relief could be granted. Texas Van Lines v. Templeton, 305 S.W.2d 646, 648 (Tex.Civ.App. — Dallas 1957, writ ref'd n. r. e.); Albright v. Long, 448 S.W.2d 564, 566 (Tex.Civ.App. — Amarillo 1969, no writ). The record reveals that the findings in the judgment and in part of Conclusion of Law No. I are stated in the alternative; they are not positive findings that either one of the alternatives occurred.

  5. Irwin v. Whirley

    538 S.W.2d 150 (Tex. Civ. App. 1976)   Cited 10 times
    In Irwin v. Whirley, 538 S.W.2d 150 (Tex.Civ.App. Waco 1976, no writ), plaintiff sued for specific performance of a contract of sale and real estate, seeking damages and also $5,000.00 for exemplary damages.

    Plaintiffs have no obligation to do anything. They sued for specific performance of their contract and alternatively for damages. They abandoned their plea for specific performance, and recovered on their alternative plea, as they had a right to do. Reynolds Bros. Inc., v. Dodson, (Tex.Civ.App., Corpus Christi) NWH, 380 S.W.2d 678; Rule 47 TRCP; Albright v. Long, (Tex.Civ.App., Amarillo) NWH, 448 S.W.2d 564. The findings upon which the $4,960 damages are based have not been attacked. Contentions 2 and 3 complain of the award of exemplary damages.

  6. Houston Sash Door v. Davidson

    509 S.W.2d 690 (Tex. Civ. App. 1974)   Cited 9 times
    Holding that "plaintiff, having two inconsistent remedies, only one of which could be granted, made his election; and, having made the election, he is bound thereby."

    Plaintiff was entitled to plead and prove inconsistent causes of action and seek alternative relief. Thus, his plea to overturn the foreclosure sale and his alternate prayer for damages caused by the alleged wrongful foreclosure were properly combined in a single suit. Rules 47 and 48, Texas Rules of Civil Procedure; McKenzie v. Carte, 385 S.W.2d 520, 526 (Tex.Civ.App., Corpus Christi, 1964, error ref. n.r.e.); Albright v. Long, 448 S.W.2d 564, 566 (Tex.Civ.App., Amarillo, 1969, no writ); Cantu v. Bage, 467 S.W.2d 680, 682 (Tex.Civ.App., Beaumont, 1971, no writ). In this case, plaintiff pleaded his alternative causes of action and defendants could not put him to an election thereon in the venue hearing. Texarkana Water Supply Corp. v. L. E. Farley, Inc., 353 S.W.2d 885, 889 (Tex.Civ.App., Houston, 1962, no writ); Monroe v. Mercer, 414 S.W.2d 756, 760 (Tex.Civ.App., Houston, 1967, error dism.).

  7. Cantu v. Bage

    467 S.W.2d 680 (Tex. Civ. App. 1971)   Cited 11 times

    We are not concerned here with the doctrine of an election of remedies since the two separate actions could have been prosecuted alternatively in one suit. Rules 47 and 48; McKenzie v. Carte, 385 S.W.2d 520, 526 (Tex.Civ.App. — Corpus Christi, 1964, error ref. n.r.e.); Albright v. Long, 448 S.W.2d 564, 566 (Tex.Civ.App. — Amarillo, 1969, no writ). In our blended system of law and equity, plaintiffs could pursue each of such remedies simultaneously in the same suit. University State Bank v. Gifford-Hill Con. Corp., 431 S.W.2d 561, 574 (Tex.Civ.App. — Fort Worth, 1968, error ref. n.r.e.).