Originally published by John Council.
At first glance, the huge $89.6 million jury verdict Eric Penn and Zollie Steakley recently won against a trucking company seemed like an easy sell
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Originally published by Leiza Dolghih.
The Fifth Circuit Court of Appeals recently considered whether a travel agency’s noncompete agreement with its employee was enforceable under Texas law.
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Originally published by tiffany.dowell.
A recent case from the Texas Supreme Court offers a reminder about how disputes can arise from language used in a will when not carefully reviewed by an attorney. [Read full opinion here.]
Background
Vada Allen owned a 316 acre ranch in Robertson County. Upon her death, she was survived by her son, Bobby, and three grandchildren, Annette, Allison, and Stanley. Her will included the following provision:
Now Bobby, I leave the rest to you, everything, certificates of deposit, land, cattle, and machinery, Understand that the land is not to be sold but passed on down to your children, Annette Knopf, Allison Kilway, and Stanley Gray. Take care of it and try to be happy.
Bobby then conveyed the land in fee simple to Polasek Farms, LLC. At that point, two of his children (the third passed away previously), filed suit against Bobby, his wife, and Polasek Farms. The children argued that their grandmother’s will gave Bobby only a life estate, with the land passing to them upon Bobby’s death. Thus, he was unable to grant a fee-simple interest to Polasek as that was a greater interest than he held in the property.
Litigation
The trial court sided with Bobby and Polsak Farms, granting them summary judgment. The court held that the will granted fee-simple interest to Bobby and the language about the land not being sold but given to the children was an invalid disabling restraint. Thus, Bobby owned the land and his children had no interest in it.
The Waco Court of Appeals affirmed, finding that the land was bequeathed to Bobby and the language about passing the land down was merely an instruction to Bobby, rather than an actual gift to the children. One justice issued a dissenting opinion and would have found the language to be ambiguous, thereby refusing to grant summary judgment and letting the case proceed to trial.
Texas Supreme Court Opinion
“The cardinal rule of will construction is to ascertain the testator’s intent and to enforce that intent to the extent allowed by law. We look to the instrument’s language, considering its provisions as a while and attempting to harmonize them so as to give effect to the will’s overall intent. We interpret the words in a will as a layperson would use them absent evidence that the testator received legal assistance in drafting the will or was otherwise familiar with technical meanings.”
Under the law, a conveyance of land is presumed to be in fee simple, unless limited by express words. There are, however, no magic words that must be used to create a life estate. The Court explained that a life estate is created “where the language of the instrument manifests an intention on the part of the grantor or testator to pass a grantee or devisee a right to possess, use, or enjoy property during the period of the grantee’s life.”
Looking at the language in this case, the Court seemed to have no problem determining that Mrs. Allen intended to create a life estate. “We need only read the provision as a whole to see a layperson’s clearly expressed intent to create what the law calls a life estate.” The will granted the land to Bobby, subject to the limitations that he not sell it and he pass it down to his children. This, the Court held, represents the “essence of a life estate.”
The Court rejected the argument that the language about not selling the land was an invalid disabling restraint. The Court said that it was taking those words out of context to focus on only the limitation on selling rather than the entire clause. Instead, the language was a part of Mrs. Allen’s intent to grant a life estate.
Thus, the Court reversed the lower court decisions, holding that the will granted Bobby a life estate and his children the remainder interest. Because of this, Bobby’s attempt to convey fee simple ownership to Polsak Farms was invalid.
Take Aways
Drafting a will can be tricky business. Here, Mrs. Allen likely did not know the legal definition of “life estate” when she attempted to draft the provision in her will disposing of the ranch. This case offers a reminder that in order to ensure a testor’s wishes are carried out, and to avoid disputes over a will, having an attorney draft or at least review a will is extremely important. In this case, had Mrs. Allen sought out an attorney who had helped her craft language stating that she granted Bobby a life estate with remainder interest to his children, it’s possible that a family feud could have been avoided. Additionally, the legal fees that Mrs. Allen would have spent to have an attorney help with her will were likely minuscule compared to the legal fees spent by her family in taking this lawsuit to the Texas Supreme Court.
The post When Grandma’s Will Causes a Family Feud appeared first on Texas Agriculture Law.
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Originally published by Cordell Parvin.
I’ve been working as a legal recruiter for a couple of months, and one thing I have learned is I only want to place lawyers with firms when I know enough about the lawyer and know enough about the firm to believe the fit is one that both will thank me for later.
I posted this five years ago. Now, that I am helping law firms find the right candidates to join their firms, I wanted to share with you what I would look for in a potential candidate.
It’s the same thing I looked for when I was hiring lawyers to work with me in Construction Law.
Last week I posted: Want to know what it takes? I mentioned three main points:
Today, I want to share with you a concrete example. My daughter Jill posted something on Facebook that made clear to me she paid great attention to what I was teaching her when she was growing up.
She also inherited some important traits from her mother. Nancy does nothing just half-way. She was all-in when she went to college and became the first in her family to graduate. She was all-in when she ran the blood bank at the local hospital and the Red Cross. She was all in when she was running and bicycling. She was all in when she took up golf when she was 40 (and still is today). She was all-in when she recently took up needlepoint.
I am very proud of Jill. I also feel she has expressed what I hope lawyers I coach take away from our work together. I asked if I could share what she wrote with you and she gave me permission.
I earned two stripes on my belt at jiu jitsu today. I was a little upset because my knee is messed up and I couldn’t roll. I just keep telling myself that God did not grant me with natural athletic ability so I have to work harder than most of the guys. I will show up and train every day no matter how tired I am. My goal is not to earn a black belt (although I believe that will happen) or win any tournaments ( got to enter them first), but to be better than the jiu jitsu player I was yesterday. I am not competing against other guys but against myself and my own self doubt and my fear of failure. I can’t bench press as much as Réne (her husband) and I do not have the skill of more seasoned players, but I will win in the long run because I am going to work harder through the tears, blood and sweat and I believe my passion will help me to overcome my physical short comings. I will be the best I can be. No excuses! I will be better than I was yesterday. It’s me vs. me.
What are the main points for you? There are several in her short paragraph. I love coaching lawyers who have Jill’s attitude about striving and working hard each and every day. More importantly for you, I think the takeaways are:
Suppose you wanted me to help you find the right firm for you. I might ask you these questions:
The post Want to know what it takes? Here is a great example appeared first on Cordell Parvin Blog.
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Originally published by Sarah Scott.
It’s easy to understand why the poor jury charge so often gets short shrift in trials. Diligently preparing for witness examinations, checking and double checking exhibits, rehearsing your opening and closing statements until they are committed to memory but seem completely unrehearsed – all of these tasks are tremendously time-consuming. But (to borrow a football metaphor, this being Texas) lawyers who ignore the charge run the risk of fumbling at the one-yard line.
Why? Because the charge, unlike your masterful opening argument, actually goes back to the jury room. Done right, the charge can reinforce an argument that has been carefully structured and highlight themes you’ve presented throughout trial. Done wrong, it leaves the jury totally in the dark about what you’re asking them to do and cedes the narrative to the other side. Worse, error in the jury charge might mean that you have to do the whole trial over again, since it’s so much more likely than errors in other parts of the trial to require a new trial.
Here are some tips to getting the charge right, even if you’re armed with the most recent edition of the Texas Pattern Jury Charges.
1. Know the pleadings cold.
This one seems obvious, but after being involved in multiple jury trials it’s also a problem of surprising frequency. For example, if a plaintiff has used form pleadings and listed every possible type of damage, there may be multiple blanks they have failed to present evidence for. Similarly, you don’t want to get to a charge conference only to realize you didn’t plead contributory negligence. It’s vital to re-assess the pleadings as the trial progresses to determine which claims are going to stick – and which ones aren’t.
2. Understand what the disputed facts are.
This point is important for two reasons. First, it allows you to be more efficient and focused in your work; there is no need to develop evidence on employment status if everyone agrees that there is vicarious liability. More importantly, it allows you to save more time for the jury. Jurors appreciate when you respect their time by telling them about the questions they’ll actually need to answer, not when you waste hours developing expository information that serves no purpose. This also helps frame opening and closing arguments. Which leads to the next point.
3. Argue the charge during closing.
Again, something that should be obvious, but isn’t. Closing is your chance to help the jury make sense out of all the hours of testimony they’ve been sitting through. Themes and narratives are nice, but if you don’t tell the jury what you want them to write down on the charge, you’re missing a big opportunity to persuade them. Tell the jury what each question and damages blank actually means, and then tell them the evidence you presented (or that the other side didn’t) for each blank. That way, they go into the jury room with a ready justification for deciding in your favor. Be sure to answer each blank for each question with a brief summary of the evidence – one or two points are really all that’s necessary.
4. Know how to preserve error.
If the worst should happen and you end up having to present a charge to the jury that you know is wrong, don’t compound the issue by failing to preserve error. When it comes to charges, there are two avenues of preserving error: objections and requests. If you think the judge left out a relevant question, definition, or instruction, you’ve got to present a request for the missing question, definition or instruction in writing. Conversely, if you have a complaint about a defect in a question, definition, or instruction, you need to specifically object and describe the defect. This has to be done for each defect – no incorporation by reference or voluminous “form” objections are allowed. Finally, your requests and your objections must be separate.
Don’t be fooled – the jury charge can be one of the most challenging aspects of a jury trial. If the charge is well-thought-out and well-argued, though, it can also be one of the most effective tools to get the verdict you want.
The post Giving the Jury Charge its Due appeared first on Hanna Plaut.
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Originally published by Brenda Sapino Jeffreys.
Warren Harris, new president of the Houston Bar Association, said the bar’s first job should be to serve the needs of Houston lawyers.
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Originally published by Elizabeth Bolles.
Justice John Marshall was the first to flex SCOTUS’s Judicial Review muscle.
There is a commonly held, but incorrect, belief that Judicial Review in the United States began with Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). While this ruling marked the first time the Supreme Court held a law passed by Congress to be unconstitutional, the roots of Judicial Review in our land go even deeper, stemming beyond the Constitutional Convention, beyond Federalist No. 78, and even beyond 18th century British colonization in North America.
Jamestown, the first successful, permanent British settlement in North America, was established by the Virginia Company of London in 1607. Puritan separatists landed near Plymouth Rock in 1620. Judicial review existed in some form or another in 17th century England until William of Orange overthrew James II in 1688, but remained in the collective consciousness of the geographically separate North American colonists. By the time the Constitutional Convention rolled around in 1787, a majority of the newly formed states had already witnessed the power of Judicial Review exercised by their own supreme courts.
Despite dying in Greenwich Village in 1804, Alexander Hamilton can now be seen nightly on Broadway.
Though the Federalists and the Anti-Federalists argued over the level of power the Federal Judiciary should be able to wield over the co-equal Executive and Legislative branches, the record is clear that Judicial Review was a foregone conclusion on both sides, and the question was one of limitation. Jefferson fretted that the Judicial Branch would become the ultimate arbiters of what is or is not Constitutional, and would rule like oligarchs. Hamilton argued that the Judiciary was the weakest branch, and that its existence would ensure its own continued weakness by encouraging the Legislative and Executive Branches to preemptively conform their works to Constitutional restraints.
The 1953 Warren Court attempted to desegregate American schools through its Brown ruling.
While concern has always existed that judges would be able to enforce the opinions of a tyrannical minority, some scholars argue that centuries of Congressional intransigence has been offset by the Judiciary’s ability to apply majority consensus to the laws of the land when the other branches are unable to act. One example of this is Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), which aimed to desegregate American public schools. Majority opinion within the nation supported desegregation, but political considerations hamstrung both Congress and the President.
Learn more:
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Originally published by David Coale.
Before a lender may accelerate a debt (and later foreclose), Texas law requires that the lender send (1) notice of intent to accelerate, followed by (2) notice of acceleration. While “Texas courts have not squarely confronted whether a borrower is entitled to a new round of notice when a borrower re-accelerates following an earlier rescission,” the Fifth Circuit concluded “that the Texas Supreme Court would require such notice . . . Abandonment of acceleration ‘restor[es] the contract to its original condition.’ The Texas Supreme Court would likely conclude that Wilmington Trust acted ‘inconsistently’ by rescinding acceleration and then re-accelerating without notice.” Wilmington Trust v. Rob, No. 17-50115 (May 21, 2018).
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Originally published by lawschool academicsupport.
There’s a line in the movie “The Greatest Showman” that goes something like this: “Comfort is the enemy of progress.” Attributed to PT Barnum, that got me thinking. I began to wonder if comfort might also be the enemy of…
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Originally published by Chip Merlin.
The Texas Department of Insurance and Texas Insurance Commissioner issued two Consent Orders against contractors for the Unauthorized Practice of Public Adjusting. Two years ago I discussed trends of this issue in Unauthorized Practice of Public Adjusting Trends. Enforcement by Departments of Insurance over contractors was certainly one of the trends I contemplated. Contractors sometimes…… Continue Reading
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Originally published by William K. Berenson.
One of the reasons I love living in Texas is how nice people are. And I grew up in Nashville where folks were just as friendly.
Most of us drive responsibly and even go out of our way to help others get around.
But should there be a limit to our Southern hospitality if it endangers others?
What if a driver is slowing down for a red light and another driver signals to turn left. After Driver 1 waves Driver 2 across and he darts across, Driver 3 crashes into 2’s car. Which of the three people caused the collision to happen?
Multi-vehicle cases can be difficult. I just settled a lawsuit when my client was driving on a busy road at night in the rain. A young woman claimed that she was waved through and was therefore not responsible for causing the collision. I took her deposition, made her admit that she was in fact responsible, and successfully resolved the lawsuit.
This tactic of blaming other drivers is often raised in-car accident cases.
The driver who relies on other drivers is usually held to be at fault since he has a legal duty is to be aware of his surroundings. This duty cannot be delegated to another motorist.
Our roadways are designed to help us navigate safely on our own. Drivers have no obligation to help out other motorists and when they do so, they may be found liable if a car wreck results.
This is based on the voluntary undertaking doctrine. This applies when one who undertakes, gratuitously or for payment, to render services to another which he should recognize as necessary for the protection of the other’s person or things. He is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking. Restatement (Second) of Torts, 324A.
If you are injured in a car accident caused by another motorist, you have grounds for a civil suit. However when third parties are involved, voluntary undertaking can muddy the issues.
There are four things someone must prove in court to establish negligence:
Driving is the most dangerous activity we do. And while it may be refreshing to see a friendly wave from a fellow motorist, you should never proceed until you confirm for yourself that the coast is clear.
A serious car, truck, or motorcycle accident can change your life forever. And any crash will cause you injuries, financial problems, and stress.
At Berenson Injury Law, we fight aggressively to help you get the money you need to rebuild your life and pay your damages.
Call us at 817-885-8000 (toll-free at 1-888-801-8585) or contact us online to discuss your case in a free no-obligation meeting or conference.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Drew York.
Duncey’s Caps, Inc. hired Bud Dunop as its new human resources manager for 2018. Bud quickly determined that Duncey’s needed a formal employee policy handbook. Included within the handbook was an arbitration agreement requiring employees to arbitrate all claims against Duncey’s relating to the employee’s employment.
Bud then held training and review sessions with all Duncey’s employees. At the end of each session, each Duncey’s employee was required to log into a computer with their own self-created password. Once logged in, the employee was given the opportunity to fully review the handbook and the arbitration agreement. The employee was then required to click a box stating that he or she “acknowledges” receiving and reviewing the handbook, and that by clicking the box they “agreed” to abide by the handbook and the arbitration agreement. The employee was then required to enter their initials and click “submit.”
A few weeks later, one of Duncey’s employees who electronically acknowledged the handbook was injured on the job. The employee filed a lawsuit. Will Duncey’s be able to get this lawsuit sent to arbitration?
It can be. Electronic acknowledgments are no different than a signed, written document as long as the party seeking to enforce the acknowledgment proves the elements of a contract: offer, acceptance and consideration. We’ve discussed this issue before in another context – whether email exchanges can create a valid contract. Texas has adopted the Uniform Electronic Transactions Act, which allows parties to agree to conduct transactions by electronic means. But an exception in the UETA is that an enforceable agreement cannot be created electronically where the law otherwise requires it to be signed and in writing.
In several recent cases, employees have disputed that they electronically acknowledged an agreement with their employer. This raises an intriguing question: how do employers prove that an employee “signed” an agreement when there is no written signature? Employers should have the custodian of records responsible for the company’s electronic files testify that:
Another way to “failsafe” electronic agreements with employees is to include language that the employee’s continued employment beyond a certain date constitutes acceptance of the arbitration agreement’s terms. This language has been held sufficient to uphold the validity of the agreement, and could be the deciding factor if the employee specifically denies acknowledging the agreement the company seeks to enforce.
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Originally published by David Coale.
While 600Commerce does not ordinarily cover the Texas Supreme Court, the opinion in Lujan v. Navistar is of unusually broad interest to civil litigators. Navistar contended that Lujan made inconsistent statements about the ownership of a group of trucks, and that as a result, Lujan’s affidavit testimony on the point should be diregarded as a “sham.” The Texas Supreme Court agreed that this was a viable concept in state court summary judgment practice: “Most Texas courts of appeals have recognized the sham affidavit rule as a legitimate component of a trial judge’s authority under Rule 166a to grant summary judgment when no genuine issue as to any material fact exists. The rule has long been applied throughout the federal court system under Rule 56, which contains language nearly identical to Rule 166a. We agree with the majority view that a trial court’s authority to distinguish between genuine and non-genuine fact issues includes the authority to apply the sham affidavit rule when confronted with evidence that appears to be a sham designed to avoid summary judgment.” No. 16-0588 (April 27, 2018).b
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Originally published by Steven A. Meyerowitz, Esq., Director, FC&S Legal.
Texas Rule of Civil Procedure 169 creates an expedited actions process for lawsuits in which all claimants affirmatively plead that they seek only monetary damages aggregating $100,000 or less. That does not mean, however, that every case where a plaintiff seeks damages of that amount will be expedited.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Alyson Brown.
On May 14, the U.S. Supreme Court struck down a 25-year old federal law that largely outlawed sports betting outside Nevada.
In Murphy v. National Collegiate Athletic Association, the Supreme Court held the Professional and Amateur Sports Protection Act (PASPA) — which prohibited states from authorizing sports gambling — was unconstitutional. In ruling that the PASPA impermissibly violated New Jersey’s 10th Amendment Rights, the Supreme Court stated, “Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.”
New Jersey was already betting on this ruling and is well-positioned to permit legalized sports wagering within weeks. At least one New Jersey racetrack is reportedly ready to open betting windows by early June, and casino operators in New Jersey already have much of the infrastructure in place for legalized sports gambling. Other state legislatures will likely follow suit and enact state legislation to govern sports gambling on a state-by-state basis. Some estimates predict as many as 32 states will offer sports betting within five years, with New Jersey, Mississippi and others beginning as soon as next month.
Texas law currently prohibits sports gambling, and early responses from top Texas officials suggest there is little interest in repealing this prohibition.
What does this ruling mean for the workplace? Informal office wagering, such as Fantasy Football leagues and March Madness pools, is commonplace, although illegal in most states. According to a 2013 Vault Office Betting Survey, an estimated 70 percent of employees have participated in a betting pool in the workplace. An estimated 50 million Americans wager approximately $3 billion in office March Madness pools alone. More than 57 million people play fantasy sports, with the average player estimated to spend over $550 per year on league fees and other fantasy costs.
Even with the Supreme Court’s new ruling, sports wagering is still illegal in most states. Moreover, as states enact their own legislation governing sports betting, the applicable regulations and definitions governing establishments and gamblers will likely vary widely from state to state. Moreover, several federal laws potentially impact gambling in the workplace, including the Interstate Wire Act and The Racketeer Influenced and Corrupt Organizations Act. This patchwork of state and federal laws is confusing, and often contradictory, for employers.
How should employers respond? First, employers should be aware of the state laws governing sports gambling in each state of operation. Multi-state employers will be particularly challenged by the varied state laws to be enacted in the aftermath of the Supreme Court’s decision. As a best practice, employers should not officially sponsor fantasy sports league or tournament/game pools. Technology policies should define the scope of authorized use of company computers and prohibit use of company resources for sports gambling. Use of Internet firewalls can block fantasy sports or gambling sites.
Employers must be mindful that any policies must be applied uniformly to employees, e.g. if a white male employee is permitted to run his fantasy football league in the office, but a black female employee is disciplined for distributing a March Madness bracket, the female employee may point to her exclusion from workplace wagering as evidence of discrimination.
Currently, compulsive gambling is explicitly excluded from the definition of “disability” under the Americans with Disabilities Act. Good news for employers: you don’t have to let an employee run a fantasy football league out of his office to reasonably accommodate a gambling addiction.
Employees should be mindful of company policies regarding use of company computers or other devices for sports gambling. As with any excessive personal use of company resources, sports gambling — while legal in some states — can result in termination if done on company time using company computers.
Managers and employees alike should be aware of signs of problem gambling in the workplace: increased absenteeism, decreased productivity, requests for pay advances, borrowing money from co-workers, and preoccupation with gambling.
While nothing is a safe bet, being aware of the legal issues that arise with workplace sports gambling can increase an employer’s odds of maintaining productivity and reducing legal risk.
Clouse Brown PLLC helps employers, executives, and licensed professionals comply with state and federal laws affecting the workplace, including sports wagering and Internet/computer usage policies. For more information, contact Clouse Brown PLLC.
The post U.S. Supreme Court May Have Opened the Door to Sports Wagering, But Don’t Bet on Gambling in the Workplace appeared first on Clouse Brown.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Dilnaz Saleem.
A major obstacle facing oil and gas companies is locating, recruiting, and retaining global talent in light of the heightened attention and scrutiny
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Originally published by John Council.
A Dallas attorney has lodged a fraud suit against the online legal marketing company FindLaw, alleging he was duped into thinking they would create a unique website for his new law firm but instead provided one that was “cookie cutter and “unimaginative.
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