Fifth Circuit Applies FBAR NonWillful Penalty Per Account and Not Per Form (11/30/21)

In United States v. Bittner, ___ F. 4th ___ (5th Cir. 11/30/21), here, the Court held that the FBAR nonwillful penalty in 31 USC § 5314 and the underlying regulations  31 CFR §§ 1010.306 and 1010.350 applies on a per account rather than a per form basis, so that, in this case where Bittner had a financial interest in well over 25 accounts per year for each of three years, the per account penalties aggregated $1.77 million.

The Bittner opinion, a unanimous opinion, conflicts with the panel majority opinion in United States v. Boyd, 991 F.3d 1077 (9th Cir. 2021), but draws heavily on Judge Ikuta’s dissenting opinion in Boyd.  See CA9 Holds in Boyd that Nonwillful FBAR Civil Penalty Is Per Form Rather Than Per Account When Correct Delinquent FBA`R Is Filed (Federal Tax Crimes Blog 3/24/21; 3/31/21)), here

Bittner may petition for certiorari, but the Supreme Court may want the issue to bubble around a bit more in the Circuits to see if a consensus can be reached, with all courts then moving to the consensus view.  Alternatively, the Court might take certiorari to resolve the conflict, treating this as one of the few “tax” (or tax-related) cases it must take every year.  It does not appear to me that either of the two alternatives the Court takes would create that much mischief, an affliction the Court not uncommonly exhibits in tax cases.

The Bittner opinion also affirms the district court’s rejection of the reasonable cause defense to the nonwillful penalty.  The court applied the reasonable cause definition for penalties in the IRC, requiring “ordinary-business-care-and-prudence definition of reasonable cause.”  On the standard, the Court concluded that the reasonable cause exception as interpreted applies to the nonwillful penalty.  The Court rejected Bittner’s argument that the defense was inherently factual, at least on the facts in his case, so that it should not be decided on summary judgment.  The Court held, in effect, that there were no contested facts relevant to the application of the penalty and the reasonable cause defense, so that summary judgment against Bittner was proper.

The Court held:

Turning to the merits of Bittner’s defense, having considered all pertinent facts and circumstances, we conclude that Bittner did not exercise ordinary business care and prudence in failing to fulfill his reporting obligations. We have emphasized that when assessing reasonable cause, “[t]he most important factor is the extent of the taxpayer’s effort to assess his proper liability.” Brinkley v. Comm’r, 808 F.3d 657, 669 (5th Cir. 2015) (quoting Klamath, 568 F.3d at 548). Bittner conceded he put no effort into ascertaining and fulfilling his reporting obligations. He testified he never even inquired about them, and when asked why, he answered, “Why should I?,” “I didn’t feel like it,” and “Why? We’re in Romania.” The onus was on Bittner to find out what he was supposed to do, and yet he admittedly did nothing. Cf. Boyle, 469 U.S. at 249 (noting “Congress intended to place upon the taxpayer an obligation to ascertain the statutory deadline and then to meet that deadline”).

As the district court observed, “Bittner was undoubtedly a sophisticated business professional.” Bittner, 469 F. Supp. 3d at 729. He held interests in dozens of companies, negotiated purchases of Romanian government assets, transferred his assets into holding companies, and concealed his earnings in “numbered accounts.” He even once inquired about tax obligations “as a Romanian citizen . . . own[ing] property in Brussels” before purchasing investment properties. Bittner’s business savvy makes his failure to inquire about his reporting obligations even more unreasonable. See, e.g., Jarnagin, 134 Fed. Cl. at 378 (“A reasonable person, particularly one with the sophistication, investments, and wealth of the [plaintiff], . . . would have sought advice regarding [his] obligation to file [an FBAR].”).

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Latest & Greatest – Contracts: The Essential Business Desk Reference

Contracts come in many forms. From the contract you sign when getting your car serviced to the agreement you sign when leasing a new apartment, contracts are a part of doing business, no matter how large or small the transaction. Yet, many people sign these documents not fully understanding the meaning of the words and phrases used or the import of those terms. Whether you are the owner of a small business or a customer, you need to understand what you are signing. Attorney Richard Stim hopes to dispel some of the mysteries surrounding contract language with his book, Contracts: The Essential Business Desk Reference. An A to Z guide defining common contract terms, Contracts: The Essential Business Desk Reference will help the reader understand not only contract terms and the types of contracts but also learn some fundamentals about contracts including negotiating strategies, what happens when a breach occurs, and how to amend or modify a contract. Readers will also find examples of contract provisions and sample clauses to use when drafting their own agreements. Whether you are a lawyer, a small business owner, or otherwise a party to a contract, Contracts: The Essential Business Desk Reference will help you understand the agreement you are executing.

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Self-Serving Affidavit Doctrine Rejected

Every few years, we have to re-litigate the so-called self-serving affidavit doctrine. I have written about that silly doctrine here and here. The self-serving affidavit more or less, provides that a person making a claim myst have some evidence to corroborate his/her factual statement. That does not make much sense. The U.S. Supreme Court expressly overruled the Fifth Circuit in Tolan v. Cotton, 134 S.Ct. 1861 (2014), because the Fifth Circuit disregarded competent testimony from a witness who also happened to be the plaintiff. And in Salazar v. Lubbock County Hospital District, No. 20-10322 (5th Cir. 12/7/2020), the Fifth Circuit again rejected the plaintiff’s testimony about her job performance because it was not corroborated. The Fifth Circuit has been making decisions which are best left to the jury.

This issue of which affidavits matter and which ones do not matters only because federal court litigation has become so mired in summary judgment practice. If the courts would reserve summary judgment for the lawsuits with little or no merit, this would not even be an issue.

Logical Fallacy

In the case of Guzman v. Allstate Assurance Co., No. 20-11247, 2021 WL 522810 (5th Cir. 11/10/2021), the Fifth Circuit re-visits the self-serving doctrine again. But, this the time the appellate court overrules the lower court because the lower court applied that old fallacy. In this case, Allstate denied insurance coverage for a deceased male, because he allegedly smoked. On his application for life insurance, Saul Guzman said he did not smoke. But, on his medical records, many of them described Saul as a smoker. But, Saul’s wife, Mirna, and his sister, Martha, both said Saul did not smoke. They testified via affidavits as part of Allstate’s motion for summary judgment. The lower court found the two affidavit to be self-serving.

The appellate court disagreed. The higher court noted that in a lawsuit, the two sides will always be interested in the outcome. “Inevitably,” evidence offered by one side or the other regarding summary judgment will appear to be self-serving. But, such evidence should not be discounted on that basis alone. Self-serving may affect the weight to be given that testimony. But, the particular weight some evidence ought to carry is a decision for the jury, not the court. The court then pointed to some prior Fifth Circuit decisions which found self-serving affidavits were not sufficient, but those cases actually involved affidavits which were conclusory, vague or lacked personal knowledge.

First-Hand Knowledge

In this case, Martha’s and Mirna’s affidavits were based on first-hand knowledge.  The two affidavits include fact based information, not conclusions. Competent testimony suffices for purposes of summary judgment.

Too, Allstate received medical records from Saul before his death which described him as a non-smoker. One of the three records in Allstate’s possession described Saul as a former smoker. All this is enough, said the Fifth Circuit, to deny summary judgment and let the jury decide the matter. See the decision here.

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What Can I Do If My Child Suffered a Birth Injury in a Hospital?

So many people look forward to starting a family; and, thankfully science has provided us with more options than ever to make that happen. While we can document each ultrasound, each belly growth, each milestone along the way during pregnancy, all of this is done looking forward to childbirth and the miraculous arrival of our new family member. Unfortunately, not all birth experiences go as planned, with some deviating from a carefully arranged birth plan while others veer into truly perilous territory. If the unthinkable comes to pass and your baby is injured during childbirth, you may be wondering what you can do if your child suffered a birth injury in a hospital.

Types of Birth Injuries

Birth injuries are usually physical and occur when a child is born. Not every single birth injury is avoidable, but many are. While sadly, many types of injuries can occur during pregnancy and childbirth, some of the most common types of birth injuries include:

• Forceps or vacuum injury: During childbirth, when a baby becomes stuck, a medical provider may use forceps and/or a vacuum to assist with delivery. When those devices are used incorrectly or in the wrong circumstances, injuries will follow.
• Head and/or brain injury: A baby that suffers a head or brain injury may require lifelong medical care and never be able to function as it should have.
• Fracture of clavicle or collarbone: A broken collarbone is the most common birth injury resulting from medical malpractice. These injuries are particularly common when a baby’s shoulders are stuck behind the mother’s pelvis, known as shoulder dystocia.
• Facial nerve injury: When a baby’s facial nerves are injured during birth – also known as Bell’s palsy – this is most commonly caused by rough treatment by doctors, the use of forceps, or other types of medical negligence. While many children do recover control over their facial movements, some are affected for life.
• Cerebral Palsy: CP limits a child’s muscle control and often comes with delays in speech and other developmental milestones. This condition has no cure.
• Oxygen deprivation: Hypoxia occurs when a baby does not receive sufficient oxygen. The severity of the resulting damage depends on how long the baby’s brain was deprived of oxygen. A hypoxic event during childbirth is very serious and can even lead to death.
• Spinal cord injury: A baby’s spine can be damaged by a rough delivery, often with devastating results such as loss of movement in one limb or even paralysis.
• Erb’s Palsy: Paralysis of the arm, shoulder, or hand caused by an injury to the brachial plexus nerves during labor.

What Constitutes Childbirth Medical Malpractice

While birth injury claims do fall under the umbrella of medical malpractice, they are handled differently in Texas in several important ways. First of all, since the injured party is a minor, they are not bound by the normal two-year statute of limitations for personal injury cases – they have until they reach age 18 plus two years to file a lawsuit related to their birth injury. Waiting that long has serious drawbacks, including the potential loss or destruction of evidence such as hospital records, medical bills, and healthcare professional notes, not to mention the inability to have the baby examined by a professional at the precise time the injury occurred. In addition to having an extended statute wherein an injured child can file a lawsuit, birth injury claims are also not subject to the Texas damages caps placed on other types of medical negligence cases. This means that a birth injury in a hospital can provide for your child’s medical and other needs for life if handled appropriately by an experienced trial lawyer, whereas other victims of medical malpractice in Texas have their damages capped at $250,000 in many cases regardless of how severe the bad act or the resulting injury.

Doctors and nurses and other medical professionals are only human and do make mistakes, so what actually rises to the level of constituting birth injury malpractice? There are four elements a plaintiff must prove to hold a negligent party responsible for birth injury damages:

1. Duty: The plaintiff must prove that the party or parties who injured the child owed that child a legal duty of care. A person delivering healthcare services in a hospital owes their patients a duty of care to provide the quality of medical services consistent with those of a reasonable provider similarly situated.
2. Breach: If your medical provider’s care was not up to the standard of their legal duty, this means they breached their standard of care to the patient. A medical provider breaches their duty when they act or fail to act in a way that a reasonable or and prudent party would not have acted in the same situation.
3. Cause: The legally obligated medical provider’s breach of their duty of care must have been the actual cause of the birth injury. Causation is the link between the defendant’s breach and your child’s injuries and is often proven through the use of expert testimony.
4. Harm: While doctors can make mistakes, in order for those mistakes to be actionable, they must cause damages. Birth injury damages include physical injuries, pain and suffering, a lifetime of medical care, medical bills, and other economic losses, and more.

Houston Birth Injury Lawyers

If your child suffered a serious birth injury as the result of a delivery room or other hospital error, The Krist Law Firm will fight for justice for you, your child, and your family. You can call our experienced Houston birth injury lawyers at 281-283-8500 today for a free consultation. You may also contact us by email for answers to your questions and a lawyer’s thoughts regarding your concerns.

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Denial of Discovery and Mandamus

“The denied discovery was necessary to develop a defense that goes to the heart of ExxonMobil’s case—that the providers’ rates were unreasonable. Additionally, the effects of the trial court’s denial of discovery will evade review by any higher court because the discovery ExxonMobil cannot obtain is from third parties, the providers, and thus cannot be included in the appellate record. Under these circumstances, we conclude that ExxonMobil lacks an adequate remedy on appeal.” In re ExxonMobil Corp., No. 20-0849 (Nov. 19, 2021) (applying In re K & L Auto Crushers, LLC, 627 S.W.3d 239 (Tex. 2021) (orig. proceeding).

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Fired Edward Jones Broker Ronald Molo Accused of Defrauding Senior Customers

Joliet, Illinois Financial Advisor Faces Criminal Charges For Wire Fraud

Ronald Terrence Molo, a former Edward Jones broker, is accused of misappropriating customers’ funds and costing at least three older clients $778,000 in investment losses. He was suspended by the Financial Industry Regulatory Authority (FINRA) beginning October 25, 2021, after he failed to respond to the self-regulatory organization’s request for more information. 

On November 23, 2021, the Securities and Exchange Commission (SEC) filed civil charges against Molo, and the United States Attorney’s Office for the Northern District of Illinois filed criminal charges against him for wire fraud.   

Continue Reading ›

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What makes a mother unfit in the eyes of Court and CPS?

When it comes to unpleasant experiences as a parent, few can match that of being contacted by Child Protective Services. Child Protective Services, or CPS, can become involved in your life if your child is suspected of having been abused or neglected by an adult. The person who may have engaged in abuse or neglect may have been you, your spouse, partner, another adult living in your household, or a stranger to you. You may have been aware of the incidents in question or CPS may be providing you with brand new information. Either way, when CPS knocks on your door or gives you a phone call it is a serious situation. 

The question that you need to ask yourself as a CPS case becomes part of your life is how do you act in the best interests of your child while protecting your rights as a parent. Without question, the desire on your part to move past this case as quickly as possible will be understandable. However, the reality is that CPS cases can and oftentimes do take some time to complete. In many cases, CPS will become involved in your life for months at a time. Therefore, the chances of a quick and easy resolution are minimal at best. As a result, your best bet is to figure out how to operate within the case and discover how you will be viewed by CPS as a parent.

Without a doubt, there is only So much you can do to prove to CPS that you are a fit parent. The definition of a fit parent can change depending on the context that you are in or even the persons involved. However, that does not mean that you do not have to cooperate with the investigation or that the consequences of a CPS case cannot be significant for you and your family. Rather, understanding what is at stake in your case and what the possible consequences are needs to be the first place you begin to collect information.

An overview of a Texas CPS case

CPS cases in Texas follow a specific timeline in terms of how your case will progress through their system. If CPS removes your child from your home without your agreeing to it then this information becomes incredibly important as far as providing you with a basic timeline. That’s not to say that CPS will certainly take your child out of your home but that this is a possibility. When we are talking about your child being removed from your house it is a serious situation that you need to have a firm basis of knowledge on. With that said, let’s jump into the timeline of a CPS case so you can know what to expect in a case involving your child. 

The first step in a CPS case occurs when your child is removed from your home. In truth, this does not happen with every or even most CPS cases. Rather, CPS will only remove your child from your home if a CPS caseworker finds that there is a present danger of serious harm to your child if he or she remains in your home, you are unable to keep the child safe from harm, and that there is no alternative to removal that could keep your child safe. If all of these conditions are met then your child will be removed from your home. 

Importantly, if CPS does remove your child from your home before a hearing is held then CPS would need to keep the child safe until a hearing can be held. This must occur within three days after your child is removed. This hearing is a crucial step in the process given that the judge in the hearing will be asked to determine whether the above three factors exist and whether it is warranted to continue to keep your child outside of the home.

A full two weeks after the removal of your child from your home then the court will do one of two things. The first would be to enter temporary orders regarding your child or to return your child to your home. If your child is not returned to your house then CPS will be named as the temporary managing conservator. Furthermore, the court will set forth guidelines regarding your rights as a parent to visit your child, make decisions on behalf of your child as well as any services that you need to complete to have your child returned to your home.

The services will be provided to you by CPS. It could be that you need to begin taking substance abuse classes or therapy. These are treatments that are a lifetime in nature and will not be completed by the time your CPS case is over with. However, to show your CPS caseworker that you are serious about the nature of the case, attending classes or therapy is essential for you to be able to get your child back in your home. 

At two months after the removal of your child, you will be required to attend what is known as a status hearing. The judge will check back in with the parties in this hearing to see where everyone is in terms of completing any parenting plans or social services (you), and how your child is faring with living outside the home. Court Appointed persons who will work with your child by conducting interviews and inquiring as to their well-being. This person is likely a volunteer who is appointed by the court to work directly with your child on matters related to his physical or mental well-being. Remember that the judge will not be able to personally investigate matters related to your child’s situation with CPS. therefore, this person’s perspective will be important.

Importantly, you will be able to present testimony in this hearing and be represented by an attorney. The stakes are extremely high in these formats and you should seriously consider hiring an experienced family law attorney to help guide you during this time. When the outcome could be that your child is removed from your home permanently you want to make sure that you are doing everything possible to prevent this from occurring with your child. Hiring an experienced family law attorney is probably the best place you can start and the most worthwhile effort you can make when it comes to protecting your child and your rights as a parent.

From there, you will not be in court until six months after your child has been removed from your home. The reason for this is that Child Protective Services will allow you during this time to complete any steps necessary to have your child returned home to you through attending counseling, fixing any dangerous conditions in your house, and generally performing due diligence to ensure that your child is not abused or neglected. Four months would seem to be sufficient in terms of taking steps to better your life in that of your child.

At this initial permanency hearing the court will decide as far as whether or not to return your child to you, place your child with a nonparent or relative, look to your compliance with any temporary orders, and generally determine if your child is on the right course as far as Their living situation is. These are all extremely important questions that the judge will be Not answering. Therefore, you need to be able to comply with any plans but you participated in creating. These sorts of family-based social services are critical to better your life as a parent and your child’s life. Do not expect a judge to look favorably upon a situation where you are not abiding by temporary orders are planning that you participated in the creation of.

At the 9 month mark of your case, a permanency hearing will be held for a second time. This will be the same review that was conducted at the six-month permanency hearing that we just finished describing. After that point, every four months after the six-month point will involve another permanency hearing. This is at a bare minimum. If the court believes that it is in the best interest of your child then it can hold hearings even more frequently. What this should tell you is that You will be given ample opportunity to make impressions app and the judge that you were doing what it takes to get your child back. Please note that what it takes for today’s blog post will mean different things for different people. However, you know what those particular circumstances are for your case it will have the ability to progress in your performance of those requirements. Your child and their relationship with you hangs in the balance.

At one year after your child has been removed from your home, the CPS court must enter a final order or dismiss your case. The final order will either return your child to you, place permanent conservatorship rights in another person such as a relative, appoint CPS as the permanent conservator of your child or terminate your relationship with your child on a legal basis. The court can extend the period to do this by an additional 180 days but in all likelihood, this is the final step in your case. That one year you can expect to have a great deal of knowledge about your case and what it means to get your child back in your home. Whether or not you were able to do what was necessary to have your child returned home to you is a different matter altogether.

As you can see, while a CPS case may be lengthy that does not mean that you will not have an idea of what steps are next in the process. Rather, the one thing you can say about a CPS case is that they do follow a plan and timeline. you will have a clear set of expectations laid out for you and if you are intentional about accomplishing the goals set for you in your parenting plan then the chances of your child being returned home to you are significantly higher than you would have in a circumstance where you are not intentional with your goal setting or following the plan that you created for yourself with CPS. take solace in this and understand that the more you follow the plan from the beginning of a case the greater the likelihood of your case ending sooner rather than later.

What does it mean to be an unfit parent?

This was the question that we posed at the beginning of today’s blog posts and I wanted to answer it now that we know what a CPS case looks like. Ultimately, being an unfit parent is in the eye of the beholder as far as CPS is concerned. Your definition of being unfit may differ dramatically from what CPS determines to be an unfit parent. However, since CPS will be in charge of deciding on this you can safely assume that their opinion matters a great deal when it comes to this determination. For that matter, we should pay special attention to 2what factors they will be looking to and what you can do to help prevent being found to be an unfit parent.

The definition of being an unfit parent is fairly broad in terms of the factors that are considered. Even parents who are going through divorce cases or child custody cases come into contact with questions about their fitness as a parent. We know that parents in many different settings tried to look for additional vantages when it comes to being assigned Cassidy, possession, and conservatorships rights. Asserting that your Co-parent is an unfit parent or drawing into question their fitness as a parent can be a way for you to be assigned greater rights and duties or more time with your kids.

When it comes to a CPS case, Bing deemed an unfit parent can mean your child is removed from your home temporarily while you work on whatever issues are impacting you as a parent and caregiver. In the extreme, your ability to maintain a legal relationship with your child can be impacted five whether or not you are found to be a fit parent. When it comes to a situation like this where a broad definition is utilized to determine fitness then you should pay close attention to what qualities and attributes are looked at in terms of fitness as a general concept.

The most fundamental question that a family court will ask regarding your fitness as a parent will be whether or not you are committed to ensuring the best interests of your child. This is a standard that is utilized by family courts across the United States. For the most part, what is in the best interest of my child is also in the best interests of your child. However, you should consider you are specific circumstances and whether they impact this determination. For example, does your child have special needs or conditions that may require additional time more attention from you? If so, this will certainly be a factor that a court would consider when determining your fitness as a parent.

Next, your child’s emotional development will be considered when determining your fitness as a parent within the context of a CPS case. For example, whether or not you provide a loving and nurturing environment for your child will be an important factor in determining whether or not you can lookout for the best interests of your child. From my experience, this would mean not putting your child in a position where he or she is likely to encounter abusive or neglectful persons as well as supporting their basic mental health.

The bottom line is that as a parent involved in a CPS case there is a bit of a presumption of guilt rather than a presumption of innocence. This is not necessarily fair but it is the reality of being involved in a CPS case. You can look at it as having to establish your innocence when you are being presumed guilty. This is difficult not only for you but also for your child. Rather than leaving to chance all of the circumstances surrounding fitnesses apparent and the opinions of Child Protective Services, you are best off by adjusting to the pace have a CPS case and learning how you will be viewed by CPS. The better prepared you can be the greater success you are likely to have in any CPS case. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.

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McDonald v. Longley plaintiffs seek U.S. Supreme Court review

Plaintiffs attorneys in the McDonald v. Longley case filed a petition for a writ of certiorari with the U.S. Supreme Court on November 24.

In September, the State Bar Board of Directors approved changes to bar rules and policies to comply with the U.S. 5th Circuit Court of Appeals panel opinion in the case. The bar has been working with the district court as part of the case’s remedies phase.

Go here to read a case timeline, see all the filings in the case, and find a summary of similar litigation against other mandatory bars.

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Former Chief Justice Ann Crawford McClure honored with 2021 Pope Award

Chief Justice Ann Crawford McClure

The Texas Center for Legal Ethics announced that former Chief Justice Ann Crawford McClure of the Eighth Court of Appeals in El Paso will receive the Chief Justice Jack Pope Professionalism Award.

The TCLE presents the Pope Award to a judge or attorney who personifies the highest standards of professionalism and integrity in appellate law. The award is named for former Texas Supreme Court Chief Justice Jack Pope, one of the Texas Center for Legal Ethics’ founders and the first individual to receive the Award in 2009.

Chief Justice McClure served on the committee that drafted the Texas Standards for Appellate Conduct, the first set of ethical guidelines in the country that applied specifically to appellate lawyers. She was the only sitting appellate justice on that committee and played an active role in the drafting process. Under her leadership, the El Paso Court of Appeals was the first court to adopt the standards, and she authored the first appellate opinion to cite the standards.

“Chief Justice McClure exemplified the highest standards of professionalism as a practicing lawyer and as an appellate justice. In both roles she made immense contributions to legal ethics in Texas,” appellate attorney Kevin Dubose said in a news release. Dubose is immediate past chair of the Texas Center for Legal Ethics Board of Trustees.

The award will be presented to Chief Justice McClure by Texas Supreme Court Chief Justice Nathan Hecht at the Annual Texas Supreme Court Historical Society John Hemphill Dinner on Friday, December 3 in Austin.

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Jury questions presented in big products case

In an echo of Toyota Motor Sales v. Reavis, 627 S.W.3d 713 (Tex. App.–Dallas 2021, pet. filed), the Fifth Court found that the plaintiff’s expert testimony in a significant car-accident case was sufficient to create legitimate jury issues on the topics of (1) “human factors” testimony about design defect, (2) a mechanical engineer’s testimony about a safer alternative design, and (3) proximate cause. American Honda Motor Co. v. Milburn, No. 05-19-00850-CV (Nov. 24, 2021) (mem. op.).

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No fraudulent misjoinder – at least, not today

A Louisiana-based defendant removed a class action brought by an individual citizen of Louisiana, contending that a co-defendant’s “non-diverse Louisiana citizenship could be disregarded because the [statutory] claims against [the co-defendant] were ‘improperly and egregiously misjoined’ with the assignment-based bad faith claim against the removing defendant.”

This concept — called “fraudulent misjoinder” and reliant upon state-law procedural rules — is distinct from the traditional concept of “improper joinder” (a/k/a “fraudulent joinder”), which focuses on the viability of the claim against the nondiverse defendant.

The panel majority in Williams v. Homeland Ins. Co., written by Judge Haynes and joined by Judge Ho, soundly rejected removal based on fraudulent misjoinder, emphasizing the doctrine’s practical consequences: “Adopting the fraudulent misjoinder doctrine will dramatically expand federal jurisdiction, putting the federal district courts in this circuit in the position of resolving procedural matters that are more appropriately resolved in state court—all without a clear statutory hook.” No. 20-30196 (Nov. 30, 2021).

A concurrence by Judge Ho emphasized the importance of the statutory text in rejecting the doctrine; a dissent by Judge Jones focused on “the unusual circumstances here, which bespeak obvious joinder machinations undertaken to avoid federal court.” (both opinions are in the above link). The trio of opinions suggests that this case may receive serious consideration for en banc review.

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Dallas Police Tout Reductions in Violent Crime from Hotspot Policing

Dallas police have struggled to contain a rise in violent crime in the city in recent years. However, a new initiative to target crime hotspots in the city appears to be having a positive impact.

In November, Dallas City Council members Monday praised progress from Chief Eddie Garcia’s violent crime plan as the police department announced an expansion that will target a notorious Dallas location, NBC 5 reported.

Garcia announced violent crime in Dallas has fallen by 11% since May when his plan was implemented, including falls in homicide, robbery, and aggravated assault.

However, some high crime neighborhoods continue to concern police including a Northeast Dallas apartment complex on Audelia near Walnut Hill Lane. NBC 5 reported a Dallas police sergeant was shot in the hand in November when he responded to a burglary call at the complex. Police arrested the alleged shooter.

“The actions of early this morning are indicative of the work that these men and women are doing constantly for this city,” Garcia said, “I think while we remain cautiously optimistic, we aren’t doing touch-down dances. This is a journey, not a destination.”

Garcia has identified the next stage in his crime reduction strategy. He said the initiative called Place Network Investigations will start at two locations including 11700 Ferguson Road near LBJ Freeway.

The areas have a reputation for drugs and violent crime. In 2018, a security guard ended up paralyzed after a shooting at the Texaco store on Ferguson Road near 635 which has a long history of crime.

NBC reported former Dallas Police Chief U. Renee Hall chose the Texaco location to launch a new camera program intended to reduce crime in the area.

Garcia plans to bring his PNI program to Ferguson Road and an apartment complex area at 3550 E. Overton Road in Southern Dallas.

The PNI program will survey neighbors and may entail solutions from other city departments rather than law enforcement alone.

Dallas police are considering other methods of increasing surveillance. The department has highlighted a plan to add more drones to monitor public safety situations. NBC-5 noted a downside of intense police attention on crime hot spots is slower response times to 911 emergency calls, which is reflected on the public safety dashboard. Garcia said he hopes the city will add more officers to help improve response times in the city. Dallas, like many other police departments, has been hit by a manpower shortage.

Violent crime rates have spiked in Dallas and other Texas cities in recent years.  Austin recorded a 68% year-on-year rise in homicides earlier this year.

Violent crime is also rising in Houston and Fort Worth. Violent crime alarms the public and law enforcement. These crimes often lack witnesses and miscarriages of justice can and do occur. If you have been charged with a violent crime, please contact our Dallas-based criminal defense team at (214) 720-9552.

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What Happens When Someone Makes a Report to CPS?

Anyone can report suspected child neglect or abuse to child protective services (CPS). In this instance, CPS examines the information surrounding the alleged neglect or abuse. If warranted, CPS moves forward with an investigation into the claim. 

A CPS investigation is a serious matter. During the investigation, CPS can consult with a child, caregiver, and other parties. If CPS finds a child is a victim of neglect, abuse, or both, it tries to remove his or her caretaker from the home. As a last resort, CPS may remove the child from the home. 

When Should You Report Someone to CPS?

There are three reasons to report someone to CPS:

• Physical abuse. A child shows signs of injury. Or, there is an immediate threat of violence to a child. 

• Sexual abuse. A child displays certain behavioral signs that indicate possible sexual abuse. These signs can include flinching or raising the hands in a defensive manner. 
• Neglect. A child is found living alone in a dangerous environment and/or is forced to spend long periods of time without proper care. 

It is not an individual’s responsibility to determine if child abuse or neglect has occurred. Conversely, an individual should report signs of abuse or neglect to CPS. In doing so, an individual can help CPS determine if it should investigate the situation and intervene.

What Happens If Someone Files a CPS Report Against You?  

CPS screens every report that comes its way. if a report is deemed invalid, it will be “screened out.” Conversely, if a report is “screened in,” CPS can further investigate it.

A CPS report is screened out if there is a lack of information. In this instance, CPS lacks adequate information to launch an investigation. Furthermore, CPS can find information included in a report to be inaccurate. CPS can also discover that this information does not meet its criteria for child abuse or neglect. 

Comparatively, a CPS report is screened in if there is suspected child abuse or neglect within a specific time period according to state law. This period usually ranges from 24 to 48 hours or up to five days. 

What Happens During a CPS Investigation in Texas?

CPS can work on its own or in conjunction with the police to perform an investigation. In addition, the investigation may require CPS to interview a child, the parent or guardian suspected of abuse or neglect, and other parties. 

If CPS finds abuse or neglect has occurred, it takes steps to remove a child from immediate harm. CPS then determines what follow-up actions are required to keep a child safe. 

CPS can remove a child from their home. However, CPS only does so after it confirms a child is not safe at home due to their parent or guardian’s inability to prevent harm or provide insufficient care.

Get Help to Combat Child Abuse and Neglect Charges

Kids who experience child abuse and neglect are approximately nine times more likely to become involved in criminal activity, according to the most recent research from the U.S. Department of Health and Human Services. Child abuse and neglect charges can result in substantial penalties. Worst of all, they can force parents to lose custody of their children. 

If you are facing child abuse and neglect charges, help is available. At this point, an attorney may be able to help you reduce or eliminate your charges. Contact a Houston defense attorney to explore your legal options today. 

The post What Happens When Someone Makes a Report to CPS? appeared first on Law Office of David A. Breston.

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The Taxation of “Staking”

The meteoric rise of Proof-of-Stake (PoS) systems in 2021 have put a spotlight on “staking,” a process where users “stake” their crypto assets to become a validator of blocks within a PoS network. Stakers, however, face an uncertain tax regulatory landscape with respect to the taxation of their activities on PoS systems. Should tokens that stakers receive as rewards for validating blocks be treated as ordinary income? When should the rewards taxed, upon receipt or when the tokens are ultimately sold? Unfortunately, the IRS has offered limited guidance to answer these and other fundamental questions. Drawing on Notice 2014-21, the only significant IRS guidance on cryptocurrencies issued to date, this blog posting will offer a roadmap for stakers on how their activities should be taxed.

Background

PoS networks are decentralized, meaning there is no central authority or intermediary to referee financial transactions conducted through their systems. In the absence of a trusted third party, decentralized platforms must rely on a consensus mechanism to ensure that transactions recorded across the blockchain (i.e., blocks) are both current and accurate. PoS systems achieve this consensus through a group of participants, known as validators, to create and attest to blocks of transactions. To become a validator, users must “stake” their crypto assets to the network. When a transaction is submitted to the network, a validator will be chosen randomly, based on their percentage of staked crypto assets, to create a new block of transactions to the blockchain. Users that are not chosen will attest to the validity of the transactions within the selected validator’s proposed block. Validators are rewarded with tokens from the PoS platform for creating new blocks and for attesting to proposed blocks. Conversely, validators can lose their staked crypto assets if they fail to validate or attest blocks or otherwise act maliciously on the network. This carrot and stick approach encourages validators to add new blocks to the blockchain and act in good faith, which ultimately protects the integrity of the network.

Notice 2014-21 and Staking

Taxpayers have taken a wide range of positions on how and when the receipt of tokens should be taxed. On one hand, some practitioners take the view that stakers are essentially performing services – that is, validating and attesting blocks – in exchange for tokens. As such, the receipt of tokens should be treated as ordinary income and taxed at fair market value upon receipt. Still, other taxpayers have characterized staking as a return of investment on the staked crypto assets, similar to stocks or other investments. Thus, the staker would only recognize income (or loss) upon his or her sale of the reward tokens, with such gain or loss subject to capital tax rates.

As mentioned above, the IRS has not provided specific guidance to answer these questions. Nevertheless, tax practitioners can draw certain inferences from the Service’s treatment of mining activities and receipt of cryptocurrencies in exchange for services in Notice 2014-21. For context, mining differs from staking in that the former is used in Proof-of-Work networks and involves solving complex mathematical puzzles to validate blocks in exchange for reward tokens. The Notice treats miners as recognizing gross ordinary income upon the receipt of reward tokens, with such income equal to the fair market value of the tokens at the time of receipt. The miner also recognizes a capital gain or loss when the tokens are ultimately sold. The Notice also extends this treatment to any service performed in exchange for virtual currency.

Given the Service’s positions in the Notice, the more conservative position would be to characterize stakers as recognizing gross ordinary income upon the receipt of the reward tokens. Although staking differs in a few material respects from mining, both activities involve the creation and validation of blocks in a network. In this regard, the “staking” of crypto assets should be treated as a price of admission to become a validator rather than an investment asset that can generate a capital return.

Another related consideration is the deductibility of expenses related to staking operations. In the absence of clear IRS guidance, the answer seems to lie in whether a taxpayer’s staking activities rise to a trade or business. Standard considerations such as the time and effort spent, the continuity and regularity of the activities, and a profit motive would presumably come into play in making this determination. If a taxpayer’s staking activities do constitute a trade or business, any ordinary and necessary expenses related to staking operations are deductible. On the other hand, if the activities are viewed by the IRS as a hobby, any staking-related expenses are disallowed under tax reform legislation passed by Congress in 2017. Similarly, taxpayers engaging in staking for investment purposes are limited to certain investment-related expenses (within limits) and cannot deduct ordinary business expenses.

Ultimately, the lack of definitive IRS guidance has created uncertainty on how staking activities should be treated for federal tax purposes. Nevertheless, existing IRS guidance, most notably Notice 2014-21, and traditional tax principles provide some clarity into the taxation of staking activities. That being said, given the uniqueness and growing sophistication of staking transactions, more detailed direction from both the Service and Congress should be forthcoming.

The post The Taxation of “Staking” appeared first on Freeman Law.

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Ex-Raymond James Broker Guilford Nergard Is Accused of Making Unauthorized Trades

Ex-Mesa, Arizona Financial Advisor Has Been Named in Multiple Customer Disputes

Ex-Raymond James broker, Guilford Ward Nergard, is facing at least one still pending customer dispute in which the claimant is alleging unauthorized trading.

This is not the only time that Nergard has been accused of broker misconduct. He was suspended by the Arizona Corporation Commission Securities Department from April through June 2021 over allegations that he made discretionary trades with customers without the required authorizations. 

Continue Reading ›

The post Ex-Raymond James Broker Guilford Nergard Is Accused of Making Unauthorized Trades appeared first on Investor Lawyers Blog.

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News of Interest for Deaf, deaf, and HOH Communities

Hope everyone had a great Thanksgiving weekend.

A couple of housekeeping matters. First, my daughter and I will be heading out to a college that she got into for admitted students day. So, my schedule is really compact this week, and I am not sure I will be able to get up a full blog entry. Also, tomorrow is the oral argument in Cummings, which asks the question whether §504 of the Rehabilitation Act allows for emotional distress damages. It also turns out that oral argument will be heard in a rather complicated Medicare reimbursement case that in part asks the question as to how much currency Chevron deference will continue to get. That question, the continuing viability of Chevron deference, certainly has relevance to what we talk about in our blog. My plan is to print out the transcript for both arguments and then blog on them as my next full blog entry.

So, for this week we have a short one. I am the lead plaintiff in a case against LawPractice CLE, a CLE provider based entirely on the web. Unfortunately, when I tried to access a seminar, I did not have access to captioning or to dial in. Eventually, that led to a lawsuit. The claim in the lawsuit is not that law practice CLE is a place of a public accommodation, but rather that §309 of the ADA mandates that such a provider provide its CLE to Deaf, deaf, and HOH individuals via captioning . Today, we received a denial of the motion to dismiss (see this law360 article, subscription required), and I wanted to pass that along here.

Will be back next week with a longer blog entry discussing two different Supreme Court arguments that go off on 11/30.

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What happens if you don’t go through probate?

Being appointed the executor of someone’s estate is a tremendous responsibility. You have been named as the person whose role it is to execute the estate plan of another person after they have passed away. Not only are there legal responsibilities to engage in but also moral duties that you will likely feel that you need to uphold. In short, it is no small task to be asked to act as the executor of an estate and to ultimately accept that responsibility. 

Going through probate means that you would have needed to have asked a probate court to grant you the authority to distribute assets to beneficiaries under the will. Additionally, if the person whose will you are acting as an executor under has any debts that need to be paid then those creditors have first dibs to receive payment before any beneficiaries. For many people who expected to receive money or property under a will, this can come as quite a shock. For most estates, even ones that have a will, it will be necessary to go through probate. While it can be time-consuming and somewhat expensive it is a way to ensure that you have fulfilled all your legal duties as executor.

I have run into situations where a person who has accepted the responsibility to act as the executor now is having second thoughts. If you find yourself in this position then I would recommend that you read along during the rest of today’s blog post. Even if you have other activities that you would prefer to engage in it is not wise to forego probate just because it seems easier or less stressful for you to do so. Rather, it would pay to learn about the challenges and consequences of not going to probate court and what that means for you as the executor of a person’s will and their estate. 

Do you have a choice to go through probate? It depends

In most situations when you are serving as the executor of a person’s estate, it will be required for you to go through probate to abide by the law, the wishes of the deceased individual as well as the priority order of any creditors. For most people, it will be necessary to go through the probate process because most people have a degree of assets and/or debts that need to be acted upon. Very few people have no property and no debts. If you find yourself in a position where your deceased person’s will lists no property or debts, then you may be able to avoid filing for probate. 

In all other circumstances, you should understand that probate is the only legal way to transfer the assets of the deceased individual for whom you are acting as executor. Probate court provides the legal authority to change the name on the titles to vehicles, homes, and other assets if need be. Imagine a beneficiary of the deceased person not being able to move into or sell a home that they had been promised in a will because you did not go through the probate process. You place yourself in a position of liability for not having done so. 

On the flip side, with all these types of property remaining in the name of your deceased person that means that his or her estate will incur penalties, taxes, and other costs associated with property in their name. Unless you are in a position to pay these bills yourself then you should work to ensure that title to these properties and assets can be transferred efficiently. Otherwise, these sums can build over time into large figures. 

Another element to this discussion is that creditors in many cases will stop pursuing a debt or obligation after a person passes away. This is especially true if the creditor becomes aware of the reality that the deceased person’s estate has no property and no means to pay them. In other words- do not be surprised if many creditors leave the estate alone once you begin the probate process. This can key them into the fact that your person’s estate has no funds to pay them and that they had the best look to the next debtor for payment rather than trying to no avail to receive payment from your deceased individual’s estate. 

One of the key points to understanding how a will works is that you must be willing to execute the terms of your will- no matter what. Of course, there are limitations to this rule that center around working within the confines of the law. If the will asks you to do anything illegal then you should not follow through with that instruction. On the other hand, if your mother passes away and leaves all her property to your cousin then your role as her executor is to probate the will and pay your cousin their fair share. The failure to do so will result in extreme legal consequences. 

A run-down of the consequences of not probating a will 

The main purpose of acting as the executor of a person’s estate is to be able to execute on the person’s wishes as contained in the will itself. If you are unable to do so then you may as well have not even served as such. With that said, if you do not go through the probate process then the deceased person’s assets will not legally be transferred over to the heirs or beneficiaries. Keep in mind that you can physically transfer property to the people but that does not mean that you are doing so legally. If you transfer several pieces of property but have yet to pay creditors then you are going to run into some trouble. Going through probate means that you will be much more certain to have followed the law as far as doing what has to be done. 

Part of the purpose of having a will is to be able to move property along with when you pass away. This not only benefits the other people but it benefits the deceased person as well. Consider what happens if you are the executor for a person’s estate and you are being told to transfer property to their siblings after he or she passes away. If you do not go through probate and do not transfer the property not only are you breaking the law by not following the will but you are also causing the deceased person’s estate to incur taxes and fees associated with the property in the meantime. That money will need to be paid by someone before the property can be transferred especially if a lien is placed on the property. 

Another aspect of not probating a will is that the deceased person’s creditors will have no clue that he or she has passed away. This is significant if only because they will continue to pursue the debts in their normal fashion. Sending letters, making phone calls and the like are appropriate as long as they are legal in Texas. However, they are not only unpleasant after a person has passed away but are unlikely to wind up getting them their money. However, the probate process allows you to notify any creditors of the deceased person about their passing in hopes of allowing them to come forward and attempt to collect on their loans. 

Part of accepting the responsibility of acting as the executor of this person’s will means that you accept the responsibility if something goes wrong. Not following the plans laid out in the will as far as distributing property is a big “no-no.” Not only are you harming this person’s estate but also the lives of the beneficiaries. There are legal consequences for holding onto the will and not going through probate. Whatever expenses may be incurred by the individual’s estate or the heirs of the deceased person may become your responsibility. 

The above paragraph is almost a best-case scenario. Consider that if you do not go through probate not due to lack of knowledge but out of wanting to benefit yourself somehow then you may be prosecuted for doing so. Putting your interests ahead of the deceased person is a crime in and of itself once it gets to the point where this is being done to benefit you financially. Rather than doing something like this, you should learn ahead of time what the consequences are so the thought won’t even cross your mind. 

Going to probate court- what to expect

Skipping out on probate court is not a great idea. This is the minimum that you should have learned by this stage of today’s blog post. With that said, let’s consider what it means to go into court for a probate matter like executing on a will. If you have never acted as the executor of a will before then you probably have no clue what to expect in a probate courtroom.

The will needs to be filed before going to probate. It is not a bad idea to file the will even if you do not need to go through probate. In that case, you would file the will and inform the court that your deceased person’s estate has no property and therefore has no need to be probated. Otherwise, file the will along with the necessary court fees/costs to begin the probate process. The judge will need to refer to the will to interpret any portions that may be unclear or to ensure that you and the court are following the person’s wishes. 

A situation that may be relevant to you that we have not discussed as of yet is what happens if you are not the executor of a deceased person’s will but know who is. If the executor does not come forward with the will to probate then you may be in a tough position especially if you stand to have property distributed to you. Is it possible for you to force the person’s hand in this case or are you in a position where you are stuck with not being able to receive the property that you are entitled to under the terms of this will?

In that case, you can file a petition with the probate court to compel the person to move forward and file the will for probate. The court can then force the executor or the person who has possession of the will to file and begin the probate process. Do not sit idly by and allow someone to essentially hold onto the property that is yours. 

If we have not been explicit in defining what probate court is and what its purpose is, let’s go ahead and do so right now. Probate court is a venue where you can settle a deceased person’s estate by doing two things in particular: paying that person’s creditors and distributing property to their heirs or beneficiaries. The key to this discussion is that you want creditors to know what is happening so they can either collect under the terms set forth by the court or can leave the scene and stop trying to collect on their debts owed to them. 

As we have already discussed, it is incredibly important for you to move property along for the deceased person. The slower this process goes the likelihood increases that you will have to pay expenses and fees associated with the deceased’s account still owning them. This can and should be avoided by filing the will for probate as soon as you can, and then notifying creditors of the deceased’s passing once given the go-ahead by the probate court judge. 

You will then attend hearings in probate court on behalf of the deceased person. These settings will allow people who may wish to contest the will to do so. Someone may have an issue with your being named as executor under the will and the hearing will allow them to contest your formal appointment as executor.

Once all of the challenges are done and over with (if they ever were filed in the first place), the court will then need to establish that the will is valid. In Texas, there must be two witnesses who sign the will along with the person whose will it is. These folks will likely need to attend the probate court hearing to verify that the will is the same one that they witnessed having been signed previously. If the will is successfully challenged and/or found to be invalid, then the probate court will divide property amongst the person’s heirs using the laws of intestate distribution in Texas. 

A will would normally supersede these intestacy laws but if the will is invalid then these laws become very relevant to be aware of. If the deceased person is married then much of the separate property and all community property is transferred to this person (a life estate in the community estate, that is.) Children, grandchildren, parents, and siblings are other common sources of property transferred if the will is declared invalid. 

Next, creditors of the deceased individual would need to be notified. They likely will be given a specific period by which they must state a claim against the estate of the deceased person. An important responsibility of the probate court will be to inventory and appraise the property contained in that person’s life. Cars, homes, bank accounts are places where the court may look to when determining the number of assets you owe and what order they must go in as far as trying to satisfy the debts that you owed. 

Most of the work that you do as an executor will be done outside of court. When you go to court you will do so for routine issues that do not involve much planning or drama within the courtroom. Mainly you are charged with acting as an executor in the initial hearing once approved by the court. Depending on the circumstances of your case, the judge may request a bond to protect the beneficiaries under the will. 

If all goes according to plan you will not need to go back to court for some time. It may be months before you need to set foot again in a probate courtroom. Any other details of the estate can be tied up by you at this time. You will have been empowered by the court to act as a personal representative of the deceased person and have greater authority to act in this way than had you never attended probate court in the first place. Once the creditors have been paid and the tax bills are current then you will be able to distribute property. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed probate law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of probate and estate planning and also to learn how your family’s circumstances may be impacted by the filing of a probate case.  

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2022 Texas Medicaid Income and Asset Limits

MERP information | Visit our Homepage

Medicaid & Elder Law eBook

Thinking Beyond Tomorrow reviews the law, provides understandable insights, and gives strategies to help you or your loved one qualify for Medicaid benefits.

Written by Attorneys Paul Premack and Benjamin Premack. Available as an eBook ($9.99) or as a paperback book ($39.99).

Thinking Beyond Tomorrow answers your questions about:

Qualifying for Medicaid and VA benefits

Protecting Assets and the homestead from MERP

Planning for & managing medical care

Life Support & Death with Dignity

Wills, Living Trusts, Survivorship Rights and avoiding Probate

Pet Trusts and Gun Trusts

Managing finances during disability

Family and Marital Property Issues

Minimizing Federal Estate Taxes

Settling an Estate and being an Executor

Take a look at the Kindle eBook (Windows, Kindle, iPhone, or Android)

Take a look at the Nook eBook (Windows, Nook, iPhone, or Android)

​Take a look at the Google Play eBook (Windows, iPhone, or Android)

View a free sample from the eBook

Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington.

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Ag Law in the Field Podcast: Episodes 101-110

We just keep rolling along with our Ag Law in the Field Podcast episodes.  Our show continues to grow in popularity and we appreciate those of you who are listeners!

If you aren’t familiar with Ag Law in the Field or with podcasts in general, don’t panic.  This is simply another resource that I have available for you to learn more about Texas agricultural law.  Each episode is audio-only, and I interview an ag lawyer about a specific topic.  The best part...you can listen for free!  In the last 110 episodes, as you can imagine, we’ve covered a lot of ground as far as topics go.  If you’d like to see what we have available, you can check us out on your favorite podcast app, or just click here.  You can scroll down through the different topics and click the black triangle play button to listen.

In case you’d like to see our prior episode summaries, here they are:  Episodes 1-10, click here; Episodes 11-20, click here; Episodes 21-30, click here;  Episodes 31-40, click here; Episodes 41-50, click here; Episodes 51-60, click here; Episodes 61-70, click here; Episodes 71-80, click here; Episodes 81-90, click here; Episodes 91-100, click here.

Okay, now let’s get to our recap of the last ten episodes!

Episode #101: Mary-Thomas Hart (PFAS and Agriculture)  After hearing Mary-Thomas discuss this important environmental and its potential impact on agriculture at last year’s American Agricultural Law Association Conference, I knew I had to have her on the show.

Episode #102:  Dr. Blake Bennett (TX Property Tax Exemptions)  Dr. Bennett, based in Dallas, is the AgriLife expert on property taxes.  On this episode, he walked us through the various property tax exemptions available to landowners and how they work.

Episode #103:  Stephanie Bradley Fryer (Working with the FSA/NRCS Office) In this two-part series looking at how to deal with your local Farm Service Agency and National Resources Conservation Service, Stephanie Fryer was the perfect guest given her vast experience in this arena.  Not only is she a producer who deals with these offices, she is also a former FSA County Executive Director and an attorney.  Her insights and tips were really helpful.

Episode #104: Dr. Bart Fischer (Common FSA/NRCS Programs)  Dr. Fischer was a great follow up to Stephanie, and in this episode he walked us through many of the most common programs at the FSA and NRCS office.  I’d highly recommend this program to anyone curious about what programs may be available.

Episode #105:  Greg Phillips (Heirs’ Property)  Heirs property results when a landowner dies without a will.  This can leave the person’s heirs with a host of legal issues for generations, and Greg Phillips is are the forefront of working on these issues in Texas.

Episode #106:  Adrienne DeSutter (Agriculture + Mental Health Awareness Month)  If you have been here for a while, you know that mental health and agriculture is an issue near and dear to my heart.  For Mental Health Awareness Month, I was thrilled to welcome Adrienne DeSutter–a farmer, counselor, and mental health advocate, join me to talk about this important issue.

Episode #107:  Jesse Richardson (Interstate Water Wars at the US Supreme Court)  Jesse Richardson is a fan favorite on the podcast and he loves nothing more than talking about water law.  This was a great episode where we discussed three interstate water disputes and their potential implications.

Episode #108:  Parks Brown (Texas Oil and Gas Update) This episode with Parks Brown kicked off another two-part series where we looked at current hot topics in energy law.  Specifically, here we discussed the current oil and gas market and looked at a number of recent Texas appellate court decisions in this arena.

Episode #109:  Parks Brown (Renewable Energy Update) This episode continues our discussion of energy hot topics, but here we focus on solar and wind energy.  Parks gives us some great information for anyone considering a solar or wind lease.

Episode #110: J Pete Laney (2021 Texas Legislature Recap) Our friend J Pete Laney joins us after every Texas Legislature to give us a recap of the key bills related to agriculture.  This session, we had a long list of bills to discuss, so you do not want to miss this episode!

The post Ag Law in the Field Podcast: Episodes 101-110 appeared first on Texas Agriculture Law.

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Evidence of Separate Property in Texas Divorce Cases

Texas law presumes that property possessed by a spouse during or on dissolution of the marriage is community property.  Tex. Fam. Code § 3.003.  The presumption can only be rebutted by clear-and-convincing evidence the property is separate. In a recent case, a husband challenged the characterization and distribution of property in his divorce.

The parties got married in 2008 and separated in 2018.  The wife moved into her own apartment and filed for divorce in March 2018.

The wife submitted an inventory and appraisement, a copy of her student-loan activity, and a proposed property division.  The husband also submitted an inventory and appraisement, as well as account statements and receipts.

Trial Court Divides Community Estate

The court awarded each party a vehicle, 50% of the joint bank accounts, 50% of the community interest in certain investments, the bank accounts in their own names, and the personal effects and household goods and furnishings in their respective possession. Each party was also ordered to pay the debts each incurred since the separation.  The court also ordered each to pay certain specific debts.

The husband appealed, arguing the trial court erred in attributing certain debts to him.  He also argued the court awarded his separate property to the wife.

Husband Argues Wife Received “Double Recovery”

The husband argued the wife got a “double recovery” when she was awarded one of the vehicles while he was ordered to pay certain debts.  He testified they had taken out a loan against his 401k and used it to pay off the vehicle loan and other debts.  He argued the court’s order gave her a $20,000 increase in her share of the community property while simultaneously reducing her debt by $20,000.

He testified the 401k loan occurred at the end of 2017 and the debts were paid in 2018.  The appeals court found this meant community funds paid off a community debt. Furthermore, the trial court did not issue findings of fact and conclusions of law. The appeals court therefore had to presume the trial court had resolved any conflicts in the evidence when it divided the estate.  The appeals court found no abuse of discretion related to the husband’s double-recovery argument.

Husband Argues His Separate Property Improperly Divided

The husband also argued the court awarded his separate property to the wife.  He specifically argued the court had erred when it awarded a certain bedroom set and bar stools to the wife.  The trial court had not made specific findings or orders relating to personal property, but instead gave each party the personal and household property in their possession.  There was testimony that some of the husband’s separate property was in the wife’s possession. The husband argued he had provided receipts that showed those items were his separate property and the wife had not presented any contradictory evidence.  She argued that he had not overcome the presumption the items were community property by clear and convincing evidence.

The wife argued the husband had not included a “bedroom set” or “bar stools” in his inventory. He had also listed certain furniture, including a “panel bed,” “dresser,” and “mirror,” as community property.  Furthermore, the husband did not list any separate assets or liabilities, though he did state under the community-property itemization that the wife had possession of some of his separate property.  He did not, however, identify that property.

The appeals court found the husband’s inventory did not constitute a judicial admission and was at most a quasi-admission. Quasi-admissions are evidence, but are not conclusive.  The trier of fact determines the weight they are given.

The husband testified that, before the marriage, he had acquired the bedroom set and bar stools that were now in the wife’s possession. He also testified he had bought another bed in 2006. The husband offered receipts into evidence that showed the barstools were purchased in March 2002.  He also submitted receipts showing a bed with panels and a tall chest were bought from Ethan Allen in 2007.  He had an undated receipt showing another bed, chests, and mirror were also bought from Ethan Allen.

Appeals Court Finds Husband’s Testimony and Evidence Insufficient

The appeals court found the husband’s evidence was contradictory. The wife conceded some items had been purchased by the husband before the marriage.  She testified the bedroom set was in her possession, but said the children were using it. There was no testimony identifying which furniture was part of the “bedroom set” the husband sought to have characterized as separate property. The appeals court also noted the husband only briefly mentioned that the bar stools were in the wife’s possession and that there was no further testimony about them.

The appeals court found the husband had not provided clear-and-convincing evidence.  The receipts he provided listed multiple items, and his request was vague and did not specifically identify the items.  There were inconsistencies in the husband’s inventory. The appeals court found no abuse of discretion related to the characterization of the property and the property division.

The trial court also rejected the husband’s argument the court abused its discretion when it did not reduce his child support obligation by the cost of health insurance.

The appeals court affirmed the trial court’s judgment.

Proving Separate Property is Crucial – Retain the Diligent Attorneys at McClure Law Group to Help Secure Your Separate Property

This case illustrates the importance of having strong evidence of property’s separate character.  If you are anticipating a divorce with disputes over property, a skilled Texas divorce attorney can work with you to identify the evidence needed to present a strong case.  Call McClure Law Group at 214.692.8200 to set up an appointment to discuss your case.

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Not final.

“[A]ppellants assert that the order disposes of all issues based, in part, on language at the end of the order stating that ‘[a]ll other relief not expressly provided for herein is DENIED.’ The Texas Supreme Court, however, has specifically rejected such language as an indicator of an order’s finality, concluding that when, as here, no conventional trial on the merits has occurred, an order is final for purposes of appeal only if it ‘actually disposes of every pending claim and party’ or ‘clearly and unequivocally states’ it finally disposes of all parties and claims. Because the order here leaves the amount of attorney’s fees, expenses, and costs to be determined, it is not final and appealable.” Page v. 3838 Oak Lawn, No. 05-21-00859-CV (Oct. 29, 2021) (mem. op.) (applying Lehman v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001)). My LPHS colleagues Sam Hardy and Dan Polese represented the successful movant in this matter.

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These affidavits are not conclusory

In a coverage dispute between two excess carriers, the Fifth Circuit observed: “At bottom, the allocation issue depends upon the sufficiency of Great American’s summary judgment evidence. To support its allocation theory and establish that the covered claims were worth at least $7 million, Great American submitted the affidavits of (1) Brent Anderson, Liberty Tire’s attorney in the Underlying Litigation, and (2) Carol Euwema, Great American’s lead adjuster for the relevant claims.” Great Am. Ins. Co. v. Employers Mut. Cas. Co. The trial court found those affidavits conclusive, but the Fifth Circuit disagreed; they provide good references for summary-judgment practice generally. No. 20-11113 (Nov. 17, 2021).

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Is it Time to Divorce? The Smart Way to Decide if NOW is the Right Time

Timing is everything, as they say. Making the right decision sometimes isn’t as important as making the right decision at the right time. Having a good thought but the thought coming too late or being premature in taking a specific action can be costly to you. When it comes to the world of divorce I certainly agree that timing is extremely important. When we learn about how people succeed in divorce, typically, the right timing plays a big role in their success. Having certain events lined up for themselves and their family take a negative experience like divorce and at least turn it into something productive and goal-oriented. 

Helping people make good decisions about divorce is what an attorney does. Your attorney is not there to make decisions for you, contrary to popular belief. Rather, your attorney is there to assist in helping you avoid the potholes and wrong turns that can come up so frequently in divorce. Do not underestimate how important it is to plan for divorce. This is true even if you consider your divorce to be straightforward and without much in the way of problem areas. I’ve seen people take a divorce that should be straightforward and turn it into a one-year-plus-long road trip through a rather unpleasant place. Rather, why not use today’s blog post as a jumping-off point towards learning whether or not now is a good time for you to get a divorce?

This is the time of year where many of our minds turned to family. Thanksgiving and Christmas are times of the year built for families and making memories. However, if your family life is not where you want it to be or you have seen problems arise in your household within your marriage then you may be weighing your options in terms of getting a divorce. Of course, getting a divorce means that you have to take into consideration a wide range of topics as well as the specific circumstances of your life. 

This is where a blog post like the one you are reading right now becomes interesting. The reason is that I know nothing about the specific circumstances of your life. I’m willing to guess that your life looks somewhat like mine and somewhat like many of the other people that I have helped get divorced over the years here in Southeast Texas. However, we all have circumstances that are unique and at present real-world challenges and opportunities that might not be in play for other people in even similar situations.

Therefore, I am not really in a position to give you specific advice about whether a divorce right now is what is best for you, your children, and your family as a whole period rather, ultimately that is a decision that you have to reach and be comfortable with. I would suggest meeting with one of the experienced family law attorneys with the law office of Brian Fagan before making a decision one way or the other. In that environment, one of our lawyers will be able to take the time to walk you through your circumstances and help you to identify areas that may lead you towards or farther away from divorce. These consultations are free of charge and there is no sort of commitment required of you to hire one of our lawyers. Simply contact us today to help gain some real-world perspective on your circumstances.

Is a holiday divorce right for you? 

I think getting a divorce during the holidays would be less than ideal. True, many people around us are going through a divorce right now. However, going through a divorce when it is the holidays is one thing but choosing to begin a divorce right now is an entirely different subject altogether. I think from an emotional perspective you may want to consider your options when it comes to immediately file for divorce. Many of us would consider getting a divorce right now to be something that can detract from whatever kind of holiday environment he wanted to encourage for your family more placing a financial burden on you and your family at the end of the year.

With all of that being said, I do not want to make it seem like there is no good reason to get a divorce during the holidays. This is especially true if there is violence on going in your home. If you are being abused by your spouse then it does not matter that this is the holiday season. You need to take steps towards learning more about the divorce process, filing for divorce, and then working to obtain an emergency protective order to prevent future incidents of abuse. While a piece of paper from a judge is far from a sure thing when it comes to preventing harm from occurring in your household it certainly beats not doing anything at all.

Otherwise, you need to examine your conscience in your heart in matters like this. I will readily admit that a family law attorney is not necessarily equipped to give tremendous advice when it comes to subjects like this. However, all of us have a voice inside of us it tells us when something is right and when something is wrong. If you have examined that voice closely, considered your alternatives, and collected information then now may be the right time for you to get a divorce. This could be especially true if you have no children in this time of year is no different for you than any other. In that case, filing for divorce at the end of 2021 can help you get a jump on those that are choosing to wait to file for divorce until the beginning of 2022.

The other thing that I would mention to you is that if you expect to file for divorce at the end of 2021 do not expect for divorce to be both kept a secret from your spouse and to allow your case to move forward. Bear in mind that once your divorce is filed it is merely a piece of paper at the courthouse until you serve notice upon your spouse. This means that your spouse will be formally notified of the divorce by a process server or constable. If your plan was to file for divorce now and simply wait until the beginning of 2022 to do anything with the divorce then that truly does not make much sense. 

If that was your plan, you were better off waiting to file for divorce until 2022. That way the holidays could be past you and you wouldn’t have any issues in terms of wanting to delay to avoid making a holiday season unnecessarily awkward. Imagine having relatives over then having them discuss with you the pros and cons of a divorce. Not exactly which you want to be spending your time doing. Additionally, if you already have plans to have family over for the holidays then I may be able to assume that the situation in your marriage is not all that dire. In that case, you may want to hold off on getting a divorce until after the holiday season has passed us by.

Deciding to get a divorce and the impact on your children

One of the most important factors to consider when it comes to whether now is the right time for you to get a divorce is about your kids. For any parent who goes through a divorce, time and time again I will be told that the most important consideration that they play about their case is their kids. Therefore, you should consider their best interests and think about whether now the best time is to get divorced. Here are some of the factors that you can consider when it comes to your kids in your divorce.

On one hand, you need to be able to consider the needs of your child regarding creating a stable and loving environment for them. However, the degree to which a divorce will impact that is truly in the eye of the beholder. This is an area where I can’t give you good advice when it comes to your specific circumstances because I don’t know them. Rather, you need to rely upon the needs of your own family to guide your decision-making. If right now does not make sense for your family to get a divorce, then you likely should hold off. It may be an awkward time for you to get a divorce. Then again, getting a divorce is somewhat like having kids: there is never going to be a perfect time to have kids and there’s never going to be a perfect time to get a divorce. 

One area that I would look to and focus on if I were you would be about conservatorships rights and duties. If you are experiencing some degree of problems with your spouse and you not seeing eye to eye on these subjects, then a divorce may be in the best interests of your children. For instance, if you all cannot agree on religion to raise your children in or how to approach the issue of your child receiving medical care then this may be a good time for you to consider getting a divorce. Putting your child between a rock and a hard place in terms of having their parents not agreeing on important subjects and not receiving the kind of care that they need.

Looking at things from the perspective of a parent who does not necessarily receive the sort of time with the kids that he or she may desire then a divorce may move you closer to the point of receiving a consistent schedule with your kids. For example, if you are a parent who has been denied possession of your children for an extended period then this is an absolute problem. Part of being a parent is the ability to spend time with your children. The fact that you were getting denied parenting time with your children speaks to the level of discord in your marriage. For that reason, we can look to a divorce as a way for you to get your conservatorships, custody, and possession rights in writing. At that stage, if you are denied time with your kids then at least you will have the ability to enforce a court order. Regardless, these are the type of issues that you should be looking to with your children as far as whether it is time to get a divorce. 

The great part about Texas divorces is that you can work through the issues of your case without having to resort to a trial. Saving your children from the back and forth of a contested divorce case is a great benefit for all involved. By there’s through informal negotiation or mediation you can work through the issues of your case with your spouse rather than having to resort to time with the judge. You can save yourself a great deal of time and stress if you can put your differences aside with your spouse and identify what is in the best interest of your children.

Issues related to property in a divorce

The other main area of divorce that I would recommend that you start to think about is property. Specifically, Texas is a community property state where it is presumed that all property at the time of your divorce is owned equally by you and your spouse. This is true regardless of who earned the money that was used to purchase the item. Income earned from most work activities during a divorce is also considered to be Community property. here are some of the most relevant topics related to community property that you should be thinking about at this time.

First, you need to make sure that you have a plan for after your divorce is over with. That plan should not necessarily be an assumption that you are going to receive spousal support for an ongoing. From your spouse. If you have not worked in some time then now may be the time to start to investigate careers, temporary jobs, or just something to keep your head above water after the divorce. Unless there is a recent history of domestic violence in the marriage you must have been married for longer than 10 years to have an opportunity to receive spousal maintenance. Texas has a high bar for awarding special maintenance and judges are more apt to award a disproportionate share of the community estate rather than two awards spousal maintenance.

With that being said, the fears over your long-term employment prospects should not be the primary concern that you have. Always keep in mind that you have options when it comes to subjects like meeting your four walls and providing for your children. Although you would not be the first person to stay in a marriage for financial reasons that obviously should not be your primary motivator. If this is a position that you find yourself in, I would recommend speaking with your attorney about the options that you have in the likelihood of receiving at least temporary spousal support. This sort of temporary support can help bridge the gap between where you are now and where you need to be in terms of a long-term career outlook.

Dividing up community property is the second part of this discussion. You should begin to focus your attention on collecting information about the property that each of you owns and determining whether it belongs in your community a state, the separate estate of your spouse, or your separate estate. After that, you can inventory and appraise the property. Inventorying just means making a list of all the properties in your life. And appraisement is simply your best guess as to what the property is worth.

Detailed examination results in you going through retirement accounts, life insurance policies, and things of this nature. A less detailed account could be simply taking photographs of the closets, dresser drawers, and cupboards in your home to verify that certain pieces of personal property do not simply grow legs and walk away during a divorce if you know what I mean. Either way, the best chance that you must prepare for a divorce as well as to determine if now is the right time for you to get divorced would be to contact one of the experienced family law attorneys with the Law Office of Bryan Fagan.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by a divorce or child custody case.

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