Tuesday, May 23, 2017

LLC Member Withdrawal: How to Get out of Your Limited Liability Company

Originally published by Vethan Law.

how to withdraw from llc
If you are a member of a limited liability company and wish to leave the membership voluntarily, you cannot simply walk away.

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Homeowners Association Files Bad Faith Insurance Lawsuit

Originally published by Jeff Raizner.

Raizner Slania filed a lawsuit on behalf of a local homeowners association against Mid-Century Insurance Company after its hail damage claim was wrongfully denied.

April 2016 Bexar County Hailstorm

On April 12, 2016, a severe hailstorm swept through Bexar County causing significant damage to the roofs, interiors, and exteriors of condominiums contained in over 50 separate buildings managed by the policyholder homeowners association . Immediately upon discovering the damage, the homeowners association filed a hail damage insurance claim with Mid-Century to cover the cost of the repairs and other damages.

In response to the claim, Mid-Century assigned adjusters, consultants, and agents to the plaintiff’s file that were inadequate and improperly trained. Specifically, the claim was assigned to two adjusters, both of whom were not properly trained to handle this type of claim and failed to perform an adequate evaluation of the damage.

After a haphazard investigation of the property, the adjuster prepared an estimate of damages to the structure that grossly undervalued and ignored obvious damages to the property. Mid-Century relied solely on the adjusters’ investigation to determine what amounts, if any, to pay on the plaintiff’s claim. Mid-Century and the adjusters represented to the plaintiff that certain damages were not covered under the policy when in fact they were.

Mid-Century denied and grossly underpaid the plaintiff’s claim. In addition, Mid-Century continued to deny and delay timely payment of the damages it did accept. This caused the plaintiff to suffer significant economic impact, worry, distress, and continuing economic and physical damage.

Mid-Century Operated In Bad Faith

Our client cites numerous violations of the Texas Insurance Code, including failure to effectuate a prompt, fair, and equitable settlement of a claim, failure to implement reasonable standards for investigation of a claim, and violations of the Deceptive Trade Practices-Consumer Protection Act (DTPA).

Bad Faith Insurance Lawsuit Attorneys

Unfortunately for Texas policyholders, bad faith insurance practices are rampant. For policyholders whose claims have been wrongfully denied by their insurance company, the only way to seek full compensation is with the help of an experienced bad faith insurance lawsuit attorney. At Raizner Slania, our attorneys can help you get what you rightfully deserve under your policy. Contact us today to schedule a free consultation to discuss your case.

The post Homeowners Association Files Bad Faith Insurance Lawsuit appeared first on Raizner Slania LLP.

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Record on Appeal, Defamation, & Ancient Cauldrons: Opinions, May 23, 2017

Originally published by mkhtx.

The First District Court of Appeals released one family law opinion this morning and two published opinions that I just found interesting and wanted to share with you, even though they are not related to family law.

Allen v. Porter, No. 01-16-00823-CV, concerns retroactive child support, but is really a reminder to obtain a record when appealing. The mother’s sole issue on appeal was that the trial court erred in not awarding retroactive child support from the date of the child’s birth. But the mother did not produce a record on appeal which, the Court said, “makes it impossible for the appellate court to determine that the trial court abused its discretion in making the ruling.” The Court affirmed the trial court.

In Johnson v. Phillips, No. 01-15-00173-CV, Houston attorney Michael Phillips wrote a book (Monster in River Oaks) about his own client Dinesh Shah’s sordid infiltration and lengthy abuse of the Johnson family. The family sued Phillips (and his law firm and publisher) for defamation, alleging the book libeled them. Phillips’ motion for summary judgment argued the book constituted a fair report of the 2008 trial. The trial court agreed and granted the summary judgment and the Court of Appeals affirmed.

The published opinion in Hatzenbuehler v. Essig, No. 01-16-00515-CV, has easily the most interesting first paragraph of a special appearance case ever:

This appeal from a special appearance arises out of a dispute between German citizens concerning the provenance of a cauldron discovered in a Bavarian lake. Josef Hatzenbuehler sued Jens Essig, alleging that Essig and others falsely represented the cauldron to be of ancient Celtic origin. With Essig’s assistance, Josef purchased the cauldron at a Swiss bankruptcy sale. Josef alleged that he later discovered that the cauldron was likely created by the Nazis in the 1940’s, making it significantly less valuable.

When Hatzenbuehler sued Essig in Harris County, the trial court granted Essig’s special appearance. And the Court of Appeals affirmed.

 

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Texas Subsurface Trespass Law Clarified

Originally published by Charles Sartain.

Yellow KEEP OUT Barrier TapeCo-author Chance Decker

We know that in Texas the mineral owner has the right to explore for and produce the minerals. What does that leave for the surface owner? In Lightning Oil Company v. Anadarko E&P Onshore, LLC the Texas Supreme Court tells us he owns the right to possess the specific place or space where the minerals are located. Absent pooling or some other contractual arrangement, with that comes the right to grant (for a price) or deny an off-lease operator the right to drill through the mineral estate to reach minerals under an adjacent tract.

Facts

  • Anadarko entered into a lease with the State of Texas for the mineral estate underlying the Chaparral Wildlife Management Area in South Texas. The lease required Anadarko to drill from off-site locations when prudent and feasible.
  • Anadarko entered into a Surface Use and Subsurface Easement Agreement with the surface owner of the adjacent tract, Briscoe Ranch, which permitted Anadarko to place wells on the Briscoe Ranch to access the minerals under the Chaparral. To do that, Anadarko’s well-bore would pass through the Briscoe Ranch subsurface.
  • The mineral estate under the Briscoe Ranch was leased by Lightning, who was not a party to the Surface Use and Easement Agreement.
  • Lightning sued Anadarko for trespass and tortious interference, and sought to enjoin Anadarko from drilling. Lightning claimed that the Briscoe Ranch, as a mere surface owner, could not consent to drilling through Lightning’s mineral estate.

Lightning argued (without success)

  • The holder of the dominant mineral estate has the right to exclude others from passing through it; to hold otherwise would transform a mineral lease into a “mere license to hunt for minerals.”
  • Anadarko’s activities would interfere with Lightning’s ability to develop its minerals.
  • Anadarko’s well-bore would remove at least some minerals, and removal of even that small volume is an actionable trespass.

The court said

The court noted two basic principles:

  • The surface owner owns all non-mineral molecules, i.e., the mass of earth that undergirds the surface estate.
  • The mineral owner is only entitled to a “fair chance to recover the oil and gas in place or under” the surface estate.
  • The rights conveyed by a mineral lease do not include the right to possess the specific place or space where the minerals are located.

The result

  • Lightning, as mineral owner, has no right to exclude others from traversing through the subsurface. Anadarko will not commit trespass by doing so with the surface owner’s permission.
  • Lightning produced no evidence that Anadarko’s activities would interfere with Lightning’s development of its mineral estate.
  • Though Anadarko’s activities would necessarily remove some minerals, that small volume is not large enough to be actionable.

There’s always an exception

The court left open the possibility that a mineral owner could prevent pass-through drilling if it can show that such activity would either (i) unreasonably interfere with the mineral estate owner’s development of the estate or (ii) remove or destroy a sizeable quantum of minerals.

A musical interlude.

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Client Development Coaching: Why Some Potential Rainmakers are Overlooked

Originally published by Cordell Parvin.

You likely have potential rainmakers in your firm that you are overlooking. You might even have concluded these lawyers are not motivated to make rain.

I have learned from coaching lawyers that there is more than one way to be be motivated. I will show you by telling you the tale of two lawyers. For purposes of this discussion, I will call one of them Sandra and the other one Jill. I bet you know lawyers who are like each of them.

Sandra is a go getter. She is very upbeat and has high energy. She is obviously highly motivated and very focused on her goals. She is very positive and very competitive. She is creative and willing to take risks on client development, but sometimes she is not very strategic using her time. She sets stretch goals and achieves them. When she achieves a goal she is highly charged. If she finds anything she believes she will not do well, she simply does not try doing it.

Jill, is much different. While she is highly motivated, she is not as positive. She does well and succeeds because she does not want to look like she doesn’t know something. She likes to say that she fears that her clients may come to realize that she is not the expert that she appears to be. She is very focused and not easily distracted. She is very detail oriented. She values getting it right more than getting it done quickly. She struggles with being a perfectionist. When she achieves a goal instead of being charged up, she is actually relieved.

Winston Churchill said it well:

The pessimist sees difficulty in every opportunity. The optimist sees the opportunity in every difficulty.

Sandra is the optimist and Jill the pessimist. Some law firm leaders or marketing professionals may believe that Sandra will easily become a rainmaker and Jill will never become a rainmaker.

I am sharing this story simply to tell you that both can become successful rainmakers, but  you cannot coach and motivate them the same way. If you try and use the power of positive thinking with Jill, it will not motivate her.

So, how would you motivate Jill to become a rainmaker in your firm? If you want some ideas read: Getting Others to Embrace Risk by Heidi Grant Halvorson. If you want even more ideas, read her book.

The post Client Development Coaching: Why Some Potential Rainmakers are Overlooked appeared first on Cordell Parvin Blog.

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Objectively unreasonable removal

Originally published by David Coale.

A business named “Renegade Swish” sued Wright in Texas state court for breach of an employment agreement. Wright counterclaimed for violations of the FLSA. For reasons not explained in the opinion, Swish then nonsuited its contract claims, moved to realign the parties so it would be the new defendant, and removed the case to federal court based on federal jurisdiction. The Fifth Circuit held that Swish lacked an objectively reasonable basis for removal, citing both precedent (primarily, Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002)), and the text of 28 U.S.C. § 1441(a), which refers to removal by “defendants.” The Court did not credit Swish’s reliance on the pending motion to realign, declining to “invite federal courts to dream of counterfactuals when actual litigation has defined the parties’ controversy,” and rejected the cases cited by Swish as not presenting a meaningful conflict: “As compared to [a controlling case]m where the disagreement among the courts was ‘hotly contested,’ any disagreement here is tepid and lopsided.” Renegade Swish v. Wright, No. 16-11152 (May 22, 2017).

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Western District Grants Summary Judgment

Originally published by Thomas J. Crane.

 

In a recent decision, the Western District of Texas granted the employer’s motion for summary judgment in a case alleging discrimination based on gender (male), age (age 55), race (Hispanic) and disability (morbid obesity). In his EEOC complaint, the employee also alleged national origin. As I have mentioned here before, it is very unwise to allege more than one basis of discrimination. It is not impossible that persons would discriminate based on multiple reasons, but it does look like the employee is throwing everything out there that might work. Lawsuits, especially in federal court, need to be based on more than “maybe” reasons. In Beltran v. Union Pacific RR. Co., No. 15-CV-1019 (W.D. Tex. 2017), the plaintiff argued age, national origin (Hispanic, and disability when it responded to the employer’s motion for summary judgment. He argued he had reported racial slurs at work in the past, but provided no details. He pointed out the obvious fact that he was replaced by someone in his 20’s.

But, most of his efforts were devoted to arguing that his disability played a role in his termination. And, that focus largely attacked the drug test to which Mr. Beltran was subjected. The employer argued that Mr. Beltran was  fired because he failed a drug test. The plaintiff responded that prior to his termination, he had passed some 55 drug tests over the prior 4 years. The plaintiff pointed to testimony from a doctor saying that the prescription medication he was taking likely caused a “false positive” on his test. During the lawsuit, the plaintiff moved that the judge allow a re-test of the same sample. The judge ordered the re-test to proceed. The parties knew the re-test could result in the same result, which it did.

Regarding summary judgment, the court noted that it does not matter whether the drug test was valid or not. Even if the third re-test had produced a different result, that would still not create a fact so as to avoid summary judgment. Citing Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991), the court noted that the existence of competing evidence about the objective truth of a fact supporting the employer’s preferred reason does not in itself make it reasonable to believe the employer was not truly motivated by its proffered reason. The plaintiff presented evidence that the doctor certifying the initial drug test had a felony conviction did not create a fact issue either. The court was saying that just because the drug test had issues does not indicate the employer did not sincerely believe the results were genuine. Something more would be needed to show that Union Pacific had doubts about the drug test.

The employee also argued that the employer had shifted its explanation over time. But, said the court, the shift was not perceptible to it. So, the judge granted the motion for summary judgment. See the decision here.

And, we are reminded that it is never wise to allege too many bases for discrimination.

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