SUING AND DEFENDING AGAINST FRAUD HONORABLE DAVID E. KELTNER, Fort Worth Kelly Hart & Hallman FRANCISCO GUERRA, IV, San Antonio The Watts Law Firm State Bar of Texas CAUSES OF ACTION April 17-18, 2008 Dallas May 15-16, 2008 Houston CHAPTER 11
DAVID E. KELTNER KELLY HART & HALLMAN LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: 817.878.3560 Telecopier: 817.878.9760 E-mail: david.keltner@khh.com AFFILIATIONS: Partner: Kelly Hart & Hallman LLP (2007 present) Partner: Jose, Henry, Brantley & Keltner, L.L.P. (1996 2006) Partner: Haynes and Boone, L.L.P. (1990 1996) (Chair of Appellate Section) Justice: Texas Court of Appeals, Fort Worth (1986 1990) EDUCATION: Southern Methodist University School of Law; Juris Doctor, 1975 Trinity University; Bachelor of Arts, 1972 BOARD CERTIFICATIONS: Civil Appellate Law Personal Injury Trial Law PROFESSIONAL ACTIVITIES: Chair, Board of Directors State Bar of Texas (1999 2000) Chair, Litigation Section of the State Bar of Texas (1991 1992) Chair, College of the State Bar of Texas (1990 1992) American Board of Trial Advocates, Board of Trustees (1995 1998) Fellow, American Academy of Appellate Lawyers
Francisco Guerra, IV Frank Guerra, IV. was born in McAllen and raised in Starr County, Texas. He received his Bachelor of Arts degree in Political Science from Texas A&M University in 1992. While at Texas A & M, he was a member of the Corps of Cadets, and served as Commander of Squadron 15 and Commander of the elite Ross Volunteer Company. Mr. Guerra then obtained his Doctor of Jurisprudence from the University of Texas School of Law in 1996. While at the University of Texas, he served as Intern to the Honorable Justice John Cornyn, Supreme Court of Texas, in 1995, and Intern/Research Assistant to the late Charles Alan Wright. He was also an officer on the Board of Advocates and was a member of the ATLA Mock Trial Regional Champion, State Finalist, and National Quarter Finalist Teams in 1995 and 1996. He was subsequently inducted as a National Member of The Order of Barristers. After graduating from law school, he joined the law firm of Allen, Stein, Powers, Durbin & Hunnicutt, where he practiced insurance defense and civil litigation law. He managed the Rio Grande Valley Office of Allen, Stein & Durbin from 1999 to 2001. Mr. Guerra joined the San Antonio office of Watts Law Firm, L.L.P. in 2001, where he practices primarily product liability, commercial and civil litigation. Mr. Guerra also served on the Malpractice, Premises & Products Pattern Jury Charge Committee for the State Bar of Texas and is Board Certified in Personal Injury Trial Law. He was co-counsel with Mikal Watts in Garza vs. Holiday Inn, Castro vs. Ford, and Garcia vs. Ford, in which the jury rendered verdicts of $5,800,000, $18,000,000, and $31,000,000. Mr. Guerra was chosen as a Texas Super Lawyer in 2003, 2006 and 2007, as a Texas Rising Star in 2004. He was also chosen as one of the Best Lawyers in San Antonio in 2005, 2006 and 2007. He is licensed to practice in the state courts of Texas, and the United States District Courts for the Northern, Southern, Eastern, and Western Districts of Texas. Frank is the TTLA Vice President of Membership and is a member of the State Bar of Texas, American Bar Association (ABA), the Attorney Information Exchange Group (AIEG), the Association of Trial Lawyers of America (ATLA), San Antonio Young Lawyers Association, and the Bexar County Bar Association. He is fluent in written and spoken Spanish.
Suing and Defending Against Fraud Chapter 11 SUING AND DEFENDING AGAINST FRAUD By: Honorable David E. Keltner and Francisco Guerra, IV. 1. Scope. We will discuss the elements of proof, defenses and potential damages for both common law and statutory fraud. We will also discuss practical strategies and observations from both the Plaintiff and Defendant perspective. This outline is meant to cover subject areas only. The presentation may deviate from the order of presentation. 2. COA reference. Both common law and statutory fraud are covered in Chapter 12 of the Causes of Action book. 3. Common Law Fraud A. Elements of Proof i. Defendant made representation to plaintiff (directly or indirectly) ii. Representation was material (reasonable person) iii. Representation was false (fact, opinion, promise of future performance, by conduct) iv. Representation made knowingly or recklessly v. Intent that Plaintiff rely on representation vi. Plaintiff relied on representation (actual or justifiable reliance) vii. Representation caused injury (direct and consequential damages) B. Remedies i. Actual Damages 1. Actual damages 2. Benefit of the bargain damages ii. Exemplary Damages (clear and convincing evidence) iii. Equitable remedies C. Defenses i. Limitations (4 years from date of representation) ii. Proportionate Responsibility/Plaintiff Fault iii. No Contract iv. Statute of frauds v. Ratification vi. Knowledge of Falsity vii. Religious belief viii. Contractual disclaimer ix. No exemplary damages for constructive fraud x. Plaintiff s lack of care not a defense xi. Plaintiff had constructive notice not a defense xii. First amendment not a defense 1
Suing and Defending Against Fraud Chapter 11 4. Fraud by Nondisclosure (Created by a DUTY to disclose) A. Elements of Proof i. Concealed facts ii. Duty to disclose iii. Material information iv. Defendant s knowledge v. Deliberate silence vi. Defendant s intent vii. Plaintiff s reliance viii. Plaintiff s injury B. Defenses (Same as common law fraud + Plaintiff had knowledge of concealed facts 5. Statutory Fraud A. Transaction involving real estate or stock; B. During the transaction, the defendant; i. Made a false representation of fact ii. Made a false promise or iii. Benefited by not disclosing C. The false representation or promise was made for the purpose of inducing the plaintiff to enter into a contract; D. The plaintiff relied on the false representation or promise by entering into the contract; and E. The reliance caused the plaintiff injury. F. Remedies i. Actual Damages 1. Actual damages 2. Benefit of the bargain damages ii. Exemplary Damages (clear and convincing evidence) iii. Equitable remedies iv. Interest v. Court Costs vi. Attorney & other fees G. Defenses i. Limitations ii. Disclaimer of reliance iii. Statute of Frauds iv. Sovereign Immunity v. No defense proportionate responsibility 2
Suing and Defending Against Fraud Chapter 11 6. General Comments Plaintiff 7. General Comments - Defendant 3