Let’s proceed directly to the takeaways from Fort Apache Energy, Inc. v. Short OG III, Ltd., et al, a Southern District of Texas bankruptcy district court opinion. (Gray Reed partners Jim Ormiston, Gabe Vick and Kristen Kelly represented Short OG III)
The other guy’s operations will not extend your lease beyond the primary term.
Texas law does not allow an oil and gas lessee to rely on a cotenant’s production to extend the term of the lease. Fort Apache and Short et al owned competing leases on 112 acres in Tyler County. The Southern Star lease expired because Fort Apache did not operate on the land during the primary term and could not rely on its lack of operations to extend the lease. Fort Apache testified that it was not economically viable to drill its own well on already developed land and it had no intention to develop the lease. The fact that an operation is uneconomical is not a reason to justify a lack of production. As cotenant Fort Apache had equal rights and access to produce.
If you sue me, I have standing to assert lease expiration
Fort Apache argued without success that Short et al lacked standing to challenge a motion for summary judgment on expiration of the Southern Star lease because they were not third-party beneficiaries or contracting parties. Their standing was derived from their defense against Fort Apache’s trespass claim.
No trespass by a cotenant
A cotenant has the right to possess land to extract minerals and only owes an accounting of the proceeds less reasonable costs in production and marketing. Short et al, as owners of a competing lease, did not trespass because they were cotenants. Fort Apache’s trespass claim failed because it did not offer evidence to show that Short et al dispossessed it from the land.
Reliance on repudiation?
A lessee who never intends to drill a well cannot rely on its lessor’s repudiation of an oil and gas lease.
In this limited space I will try (sub-optimally) to do justice to the maze of facts and events behind this ruling. Let’s just say, generally speaking, the following happened:
Hranivitz, Sr. and McBride each owned half of the land and signed competing leases. People died. Their descendants and successors signed some leases and ratified others, some with authority and some without, some timely and some not. More people died, leading to a legal tug of war over who had legal title to the property and the right to dispose of it: the administrator of the estate or the testamentary trustee?
Fort Apache sued alleging seven assorted causes of action: Short et al counterclaimed.
Working interest owner (with Short et al) Aztec filed for bankruptcy. The working interest owners’ counterclaims and third-party claims are still pending in a baknruptcy adversary proceeding.
The Bankruptcy Court issued an opinion that the Southern Star lease was superior to the Miller lease and ratification of the Miller lease was void, but at the time the prevailing lease might have expired.
Conclusion, for now
Short et al’s claim for expiration of the Southern Star lease prevails. Because Fort Apache never conducted operations on the lease after trying and failing to negotiate a joint development agreement with Short et al., the lease expired. Fort Apache’s partial summary judgment motion on trespass is denied.
Your musical interlude.
Child support can be a delicate subject, to say the least. While some people get distracted by sending payments to their former spouse or co-parent, it is important to remember that child support is put in place to help ensure that both parents are providing financial support to their child. After all, both parents have a legal responsibility to provide such support to a child that is their own. While child support is often ordered in situations where parents are not married or are no longer married, you may be wondering whether or not child support is mandatory in Texas.
Child support is not mandatory to be ordered in all cases, but a child support order is often put in place in most cases. For those parents involved in a child support case, it is critical to keep in mind the fact that all orders made by the court are done so with the best interest of the child in mind. Because of this, parents may mutually agree to not paying or receiving child support payments, but the judge may order child support anyways.
Texas has child support guidelines in place that are established by the Texas Family Code and are meant to assist the family courts in calculating how much child support is to be owed by one or both parents. While parents can agree to pay above and beyond what the court establishes as the necessary child support payments, they cannot agree to pay less. Should the parents reach an agreement on child support payment amounts and timing of payments, it must be approved by the court.
Generally speaking, the parent who spends less time with the child, the non-custodial parent, will be ordered to pay child support to the custodial parent. The paying parent is referred to as the “obligor.” The recipient of these payments is referred to as the “obligee” parent. Many factors go into considering when child support should be ordered and how much should be ordered. Need and ability to pay are two of the primary factors. A parents need for the payments to support the child and the other parent’s ability to pay will be central to the child support calculation. Other relevant factors will include the expenses of the child. The medical needs and expenses of the child will often be central to the calculation of support.
In sum, parents may agree that no child support needs to be paid and the court may approve this arrangement. If the best interest of the child dictates that child support should be paid, the court will order otherwise. Before agreeing to no child support, however, parents should consider the problems that can come from such an arrangement. Child support can be a good way to help ensure both parents are remaining financially responsible for their child.
For some 10-15 years, employers have been trying to save some money by transforming traditional employees into independent contractors. Different entities use different tests to determine whether an employee is truly an independent contractor. I previously wrote about the various tests here. One commonly used test is that employed by the Texas Workforce Commission. The TWC test looks at:Who tells the employee how to do the job: a true independent contractor determines himself how he will accomplish a given task. Training: who provides the training: a true independent contractor provides his own training. Integration: the services of an independent contractor are easily separated from that of the larger employer. Services rendered personally: a true independent contractor can assign the task to a subordinate and need not perform the service personally. Hiring, supervising: an independent contractor can hire, select, pay the workers himself. Continuing relationship. The work of an independent contractor is usually of a definite time period. It does not continue in perpetuity. Set hours of work: an independent contractor sets his own hours. Full time required: an independent contractor need not work for the employer exclusively. Location of services: an independent contractor performs the work where he chooses. Order of sequence. An independent contractor is concerned only with the final product. The sequence in which the work is performed do not concern him Oral or written reports: an independent contractor is usually not required to submit regular reports or updates. Payment by hour, week or month: an independent contractor is generally paid by the job, not by a set time period. Payment of business & travel expense: an independent contractor is normally paid for his/her business and travel expenses. Tools & equipment: an independent contractor provides his own tools. Significant investment: an independent contractor has a significant investment in his business. An employee has little or no investment in the business for whom the work is performed. Profit or loss: an independent contractor can realize a profit or loss from one job depending on the result. Working for more than one firm at a time: an independent contractor often works for more than one business at a time. Making service available to the public: an independent contractor generally makes his services available to the public at large. An independent contractor may hang a shingle or advertise his services. Discharge without liability: if the work satisfies the contract terms, an independent contractor cannot be fired without incurring liability for breach of contract. Right to quit without liability: an independent contractor is legally responsible for job completion. If he quits, he becomes liable for breach of contract.
These are 20 factors in the TWC test. The other tests also include many different factors. But, generally, the courts look to a few factors more than most: right to hire/fire; providing one’s own tools and equipment for the work; freedom to take on other work; how integral is the work to the business; and how the employee is paid are probably the most important factors.
If the work to be performed is so integral to what the business does, the courts are less likely to see the work as a true independent contractor. For example, if a bakery hires someone to bake a certain type of pastry, that worker is likely to be viewed an an employee. But, if the same Baker hires someone to install a new electrical lamp, that work will be seen as not integral to the sort of work normally performed by that bakery.
See the TWC website here for more information.
Previously, such as here, I have written about how Batson/Edmonson challenges could be used with respect to people with disabilities not being allowed to serve on juries. The interesting thing about Batson and its civil equivalents is that whenever I have asked litigators if they have encountered the situation of using Batson to prevent exclusion of persons with disabilities from serving on juries, they tell me they have not. On November 7, 2022. The Court of Appeals of the State of California, Second Appellate District, in Unzueta v. Akopyan, a published decision, here, holds that under California law people who associate with persons with disabilities have a right to be free from discrimination in jury selection. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that trial court erred in denying the Batson/Wheeler challenges; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Plaintiff alleged in her complaint that the defendant, the anesthesiologist during the birth of her child, negligently administered an epidural injection resulting in the paralysis of plaintiff’s right leg below the knee. Plaintiff lost at trial and appealed. On appeal, the appellate court held that the trial court erred in denying Batson/Wheeler (Wheeler is the California equivalent of Batson), challenges and said that the trial court had to revisit each of the challenged jurors to see if impermissible discrimination had occurred. If such impermissible discrimination occurred, the trial court was to reinstate the judgment. On remand, defendant’s attorney asserted that two of the prospective jurors were excluded because they had a family member who was disabled and the attorney feared the family member’s disability would cause the particular juror to be biased in favor of the plaintiff. One of the prospective jurors had a child with a disability. The other prospective juror had a husband who was disabled, unable to work, and had an outstanding Worker’s Compensation matter. The trial court found those justifications to be race neutral and plaintiff appealed saying that excluding the two prospective jurors based upon the disabilities of their family members was by itself discrimination based upon protected characteristics and therefore impermissible.
Court’s Reasoning That Trial Court Erred in Denying the Batson Challenges
While peremptory challenges are a long-standing feature of both the civil and criminal systems in America, the exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the 14th amendment to the U.S. Constitution. It also violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community under the California Constitution. The prohibition against the exercise of peremptory challenges to include prospective jurors on the basis of group bias applies to both civil and criminal cases. Excluding evening a single prospective juror for reasons impermissible under Batson/Wheeler requires reversal. The three-step process for evaluating a Batson/Wheeler motion works like this: 1) the party objecting to the strike must establish a prima facie case by showing facts sufficient to support an inference of discriminatory purpose; 2) if the objector succeeds in establishing a prima facie case, the burden shifts to the proponent of the strike to offer a permissible nonbiased justification for the strike; and 3) if the proponent does offer a nonbiased justification, the trial court must decide whether that justification was genuine or instead whether impermissible discrimination impact motivated the strike. At the second step of the Batson/Wheeler analysis, the party exercising the peremptory challenge cannot justify an allegedly impermissible challenge with a different impermissible justification (i.e. that two of the six jurors had family members with disabilities). In other words, getting past the second step is not going to happen if what is happening is the substitution of an impermissible justification for another. When the trial court makes a sincere and reasoned effort to evaluate the proffered reasons for the strike, the reviewing court defers to its conclusions on appeal and examines only whether substantial evidence supports them. Batson/Wheeler challenges are subject to independent review on appeal. The United States Supreme Court has extended Batson/Wheeler motions to prevent the exercise of peremptory challenges to those based upon gender. The California Constitution prohibits the use of peremptory challenges on account of bias against an identifiable group distinguished on racial, religious, ethnic, or similar grounds. In 2000, California legislature expanded the list of groups subject to a Batson/Wheeler motion to race, color, religion, sex, national origin, sexual orientation, or similar grounds. In 2015, the California legislature expanded the list further by referencing §11135 of the Government Code, which specifically references mental disability, physical disability, genetic information, and medical condition among other things. §11135(d) also applies to people who associate with a person who is perceived or has any of the characteristics listed in the Government Code. Taking the 2000 and 2015 amendments together, means using peremptory challenges to exclude prospective jurors on the basis a person with whom the juror is associated with has a disability is impermissible. In a footnote, the court noted that it was clear from the legislative history that the intent of the 2000 and 2015 amendments was to align the limitations on peremptory challenges with California law prohibiting other forms of discrimination by the state, a state agency, or entities funded by the state. No dispute exists that the justification for excluding two of the jurors was their association with family members with disabilities. In fact, the attorney on remand focused specifically on the disability of the family members. The trial court in ruling on the motion likewise relied on the disability of the family members.
While I received my J.D. degree from the University of San Diego (I also have an LL.M. in health law from Depaul), I never took the California bar. So, I am not licensed in California. Much of this decision turns on California law. When it comes to the rights of people with disabilities in California, it is important to get a California licensed attorney involved, particularly with California’s Unruh Act often being in play. As the court points out in a footnote, the United States Supreme Court and federal courts have yet to expand Batson/Wheeler to peremptory challenges based on a prospective juror’s disability. In fact, the two cases cited in the footnote by the court are cases that I have mentioned in blog entries previously here and here. The court also notes that the California Supreme Court has not addressed the application of Batson/Wheeler to jurors based upon their disability or the disability of a family member. The Second Court of Appeals talks about sole cause and it also talks about permissible reasons motivating a strike. The use of both terms in its opinion raises the question of whether Batson/Wheeler challenges in California turn on sole cause or motivating factor (I am not a licensed attorney in California). At the federal level, it would seem after Bostock v. Clayton County, Georgia, that sole cause would not be the standard. While the United States Supreme Court has not specifically weighed in on whether Batson and its civil progeny, Edmondson, applies to persons with disabilities, a plain reading of Tennessee v. Lane, which we have discussed many times, such as here, would suggest that the only logical conclusion is that Batson does apply. A plain reading of Bostock v. Clayton County, Georgia, which we discussed here, also suggests that Batson challenges would be in play for the LGBTQ community as well. The case serves as an important reminder that state laws can go further than federal laws. The disadvantage of Batson is that it relies on attorneys to make the challenge. The prospective juror has no ability to do it themselves.
Editor’s Note: In this blog series, we are getting to know the members of the Texas Young Lawyers Association Board of Directors. TYLA, commonly called the “public service arm” of the State Bar of Texas, works to facilitate the administration of justice, foster respect for the law, and advance the role of the legal profession in serving the public. All TYLA programs are accomplished through the volunteer efforts of its board and committee members, with the cooperation of local affiliate young lawyers associations. Learn more at tyla.org.
Name: Russell Shrauner
Employer/Organization: The Carlson Law Firm
Practice Area(s): Personal Injury
Why did you join the TYLA board? I joined the Texas Young Lawyers Association board because I wanted to get involved in the many service and education projects the Texas Young Lawyers Association takes on. Having volunteered on a project that addressed the challenges of substance use and mental health in the legal profession, I saw firsthand how meaningful the Texas Young Lawyers Association’s projects can be.
What advice would you give to other TYLA members who are looking for ways to grow professionally? I think TYLA members looking to grow professionally should get involved in the local legal community. The meetings and events hosted by your local bar and local TYLA affiliate are great opportunities to network.
Before joining the TYLA board, what is your favorite experience with community or public service? I think my favorite experience would be in 2019 when my office at the Carlson Law Firm took the entire Children’s Home of Lubbock—a foster care community—to see Aladdin at the movie theater as one of my favorite experiences was going to a movie in the summer. That relieving jolt of cold air after being in the hot sun, chugging lemonade, tossing pieces of popcorn up for your friends to see who could catch it—there’s just something really nostalgic about it. It wasn’t until we took those kids in foster care to see a summer movie that I realized how much I took that experience for granted. Seeing them be carefree and watching them have that experience—some of them for the first time—was really special.
What was your favorite movie, TV show, musical artist, or song from high school/college? Game of Thrones.
Editor’s Note: State Bar of Texas President Laura Gibson sent the following message to members on Wednesday.
It is the duty of the State Bar of Texas to improve and advance the quality of legal services to the public, and foster integrity and ethical conduct in the legal profession. The attorney grievance system is vital to these efforts; however, the workings of the system aren’t always well understood.
In an effort to provide our members more information, I recently moderated a CLE webinar titled “What Every Lawyer Should Know About the Attorney Grievance System.” It is now available to all members to watch on demand, for free, at texasbarcle.com for 1.25 hours of MCLE ethics credit.
The structure of the State Bar enables Texas lawyers to have an independent, confidential, and fair system for handling attorney grievances. The Texas attorney discipline system is governed by the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure. The ethics rules define proper conduct for purposes of professional discipline. The procedural rules provide the mechanism by which grievances are processed, investigated, and prosecuted.
From the presentation you will learn about the Commission for Lawyer Discipline, which oversees the grievance system; the Office of Chief Disciplinary Counsel’s role in administering the system; the role of the District Grievance Committees; and the additional processes of checks and balances that ensure all parties are treated fairly. You will also hear from Seana Willing, the chief disciplinary counsel, and Scott Rothenberg, a Bellaire attorney who currently serves as panel chair of the District 4 Grievance Committee, who so graciously joined me as panelists.
I hope you take the time to view the presentation. It is very informative and insightful and could save you some time navigating the grievance process.
Introduction When it comes to proving that a decedent lived in a specific county in Texas, there are a few things you’ll need to do. First, you’ll need to gather any and all documentation that would show where the decedent resided at the time of their death. This could include things like a lease agreement, […]
The post How to Prove That a Decedent Lived in a Specific Texas County appeared first on Kreig LLC.
"For him, cases are not political," said one former colleague.
"I feel like my family home was desecrated by Elizabeth and the lawyers," said Alex Shultz, father of whistleblower Tyler Shultz and son of George Shultz, former Theranos board member and U.S. secretary of state, in an impromptu statement to the court.
With a flipped House of Representatives, data privacy attorneys wonder whether the wait for a comprehensive federal data privacy bill might have just gotten longer—or if the process might start all over.
"Throughout his career, Jack Smith has built his reputation as an impartial and determined prosecutor," Garland said of the life-long prosecutor.
Solicitor General Elizabeth Prelogar told the justices that the injunction issued by the U.S. Court of Appeals for the Eighth Circuit "leaves millions of economically vulnerable borrowers in limbo."
The Texas Board of Legal Specialization, or TBLS, announced the appointment of Cynthia Graham as its new board chair on November 17. Graham will lead the board, which is responsible for overseeing the administration of the board certification program, enhancing the value of board certification, and increasing its public awareness.
“Welcoming Cynthia as board chair of our organization is an honor as she brings more than 30 years of experience across various family law areas,” said TBLS Executive Director Leo Figueroa in a press release. “Her experience serving on several large and influential boards, such as the State Bar of Texas Board of Directors and the State Bar of Texas Family Law Council, will bring tremendous value to TBLS.”
Graham has been certified in family law by TBLS since 2002. She opened her own law office in 1994 and has been serving the Panhandle community for the past 30 years with various family law services, including custody matters, property cases, contested divorces, and collaborative dissolutions. Graham has also served on the Collaborative Divorce Texas Board of Directors.
“I am honored to be asked to serve as the TBLS Board Chair,” said Graham in a press release. “Becoming board certified is one of the biggest highlights of my legal career as it truly enhanced my practice. And now as board chair, I get to help further enhance the program for more than 7,000 board certified attorneys in the state. Thank you for this opportunity to serve TBLS.”
To learn more about TBLS, go to tbls.org.