RW TEX-LAW Feeds

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T-Mobile's $350M Settlement Scrutinized as New Cyberattack Emerges

One day after T-Mobile announced a new cyberattack, a federal judge heard arguments on Friday whether to approve a $350 million data breach settlement.

     
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Alex Jones' Texas Attorney Dodges Sanctions Despite Misconduct

"The respondent is reaping the benefit here of an impressive number of important mitigating factors," the judge wrote.

     
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Austin, Zelenskyy Call on Contact Group to Redouble Efforts

Now is not the time to slack off. Now is the time to dig deep and aid Ukraine in its existential struggle against Russian invaders, Secretary of Defense Lloyd J. Austin III told members of the Ukraine Defense Contact Group.
(Originally posted by Jim Garamone)
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Austin to Convene Meeting on Ukraine Defense

Secretary of Defense Lloyd J. Austin III will convene another meeting of the Ukraine Defense Contact Group to discuss current and future efforts to provide support to Ukraine in maintaining its sovereignty.
(Originally posted by C. Todd Lopez)
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(Podcast) Energy Law Round Up – Production in Paying Quantities

Tune into the second installment of our special, multipart series on production in paying quantities.

(Originally posted by Thomas G. Ciarlone, Jr.)
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State Bar of Texas announces caselaw alert partnership with Fastcase

Fastcase and the State Bar of Texas are extending their partnership to provide all active State Bar members with free access to Fastcase caselaw alerts in 13 practice areas.

Since 2014, State Bar of Texas members have received unlimited access to Fastcase’s nationwide legal research content service as a bar member benefit. In renewing their long-term association with Fastcase, State Bar of Texas and Fastcase leaders committed to building out the member benefit to provide additional resources.

The expanded Texas Case Law Alerts partnership provides bar members with daily alerts and case summaries in 13 practice areas including family law, business law, and personal injury law by drawing on Texas trial and appellate courts.

Earlier this year, State Bar of Texas member access was expanded to include briefs, pleadings, motions, and orders sourced by Docket Alarm and within the Fastcase platform.

Bar members can access the additional resources by signing up on the Texas Case Alerts sign-up page (fastcase.com).

(Originally posted by Staff)
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State Bar of Texas announces caselaw alert partnership with Fastcase

Fastcase and the State Bar of Texas are extending their partnership to provide all active State Bar members with free access to Fastcase caselaw alerts in 13 practice areas.

Since 2014, State Bar of Texas members have received unlimited access to Fastcase’s nationwide legal research content service as a bar member benefit. In renewing their long-term association with Fastcase, State Bar of Texas and Fastcase leaders committed to building out the member benefit to provide additional resources.

The expanded Texas Case Law Alerts partnership provides bar members with daily alerts and case summaries in 13 practice areas including family law, business law, and personal injury law by drawing on Texas trial and appellate courts.

Earlier this year, State Bar of Texas member access was expanded to include briefs, pleadings, motions, and orders sourced by Docket Alarm and within the Fastcase platform.

Bar members can access the additional resources by signing up on the Texas Case Alerts sign-up page (fastcase.com).

(Originally posted by Staff)
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Austin Meets New German Defense Minister Ahead of Contact Group Gathering

Secretary of Defense Lloyd J. Austin III and newly appointed German Defense Minister Boris Pistorius discussed Russia's war with Ukraine, NATO issues and the U.S.-German defense relationship during a meeting in Berlin.
(Originally posted by Jim Garamone)
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Austin Arrives in Germany Focused on Efforts to Help Ukraine

Secretary of Defense Lloyd J. Austin III is meeting with his new German counterpart in Berlin as a prelude to the Ukraine Defense Contact Group meeting at Ramstein Air Base.
(Originally posted by Jim Garamone)
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Distribution Center Deemed “Principal Office” Under Venue Statute

Deere & Co. v. Bernal

Dallas Court of Appeals, No. 05-22-00916-CV (January 17, 2023)
Justices Pedersen (Opinion, linked here), Goldstein, and Smith

Bernal had a fatal accident in Comanche County, Texas while he was operating a tractor manufactured by Deere. Bernal’s next of kin sued Deere and Bernal’s employer in Dallas County. They pleaded venue was proper in Dallas County under section 15.002(a)(3) of the Civil Practice and Remedies Code, which provides for venue in a county where at least one defendant has a “principal office.” Plaintiffs alleged that Deere has a principal office in Dallas County. Deere moved to transfer venue, denying that it had a principal office in Dallas County and arguing the case should be transferred to Comanche County, where the accident occurred, or Lamar County, where Bernal’s employer purportedly had its principal office. The trial court denied the motion to transfer, and Deere brought an interlocutory appeal.

When a defendant challenges venue, the plaintiff has the burden of presenting a prima facie case that venue is proper in the county in which it brought the lawsuit. Any venue facts pleaded by the plaintiff and not specifically denied by the defendant are treated as true. As to venue facts the defendant has specifically denied, the plaintiff must submit affidavits and documents authenticated by its affidavits to support its pleaded venue facts. Deere specifically denied the plaintiffs’ pleaded venue facts, so the plaintiffs had the burden of establishing a prima facie case that Deere had a principal office in Dallas County.
The venue statute defines “principal office” as the “a principal office of the corporation … in this state in which the decision makers for the organization within this state conduct the daily affairs of the organization.” A principal office must have decision makers for the company who have at least substantially equal authority and responsibility to other company officials in Texas. The plaintiffs submitted evidence that Deere operates a 230,000-square-foot regional distribution center in Dallas County that distributes parts to dealers in several states. The manager of the distribution center supervises over fifty-five employees, including several employees who themselves have supervisory responsibilities, and the manager does not report to anyone above him in Texas. The court of appeals concluded that these facts established that the Dallas County distribution center was “a principal office” in Texas and therefore affirmed the trial court’s denial of the motion to transfer.
(Originally posted by Carrington Coleman)
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Texas NPRI Not Diminished by Pooling Ratification

 

Co-author Brittany Blakey

The takeaway from Hahn v. ConocoPhillips Company is that in Texas a NPRI holder may not diminish his rights by ratifying pooling of an oil and gas lease unless there are provisions explicitly purporting to do so.

 Kenneth and brother George each owned ½ of the surface estate of a tract and ¼ of the mineral estate. Siblings and Charles owned the rest. Kenneth and George partitioned the tract into Tract A and Tract B. Kenneth sold his interest in Tract A to the Gipses, excepting  ¾ of the minerals, which belonged to his three siblings, as well as this NPRI:

“ … a … [1/2] non-participating interest … (Same being an undivided [1/2] of [Kenneth’s 1/4] or an undivided [1/8] royalty)…”.

The Gipses entered into an oil and gas lease with Conoco, reserving a ¼ royalty. Conoco then pooled Tract A into the Maurer Unit B, which Kenneth ratified, and Kenneth and the Gipses executed a stipulation of their interests in Tract A, stating that “it was the intent of the parties in the deed from [Kenneth] to [the Gipses] . . . that the interest reserved was a one-eighth (1/8) ‘of royalty’ … .”

Kenneth then leased his ¼ interest in Tract B to Conoco, which was also pooled into the Maurer Unit B. Kenneth was advised by Conoco that it would “no longer be crediting him with his ¼ mineral interest in Tract B.” Based on the 2002 partition deeds, Conoco believed Kenneth conveyed all of his surface and mineral rights in Tract B to George, and George conveyed all of his surface and mineral rights in Tract A to Kenneth.

Prior Appeal

Kenneth sued the Gipses and Conoco to confirm his ownership in Tracts A and B. The Court of Appeals in 2015 determined that the parties had these interests:*

Owner Tract A Tract B
George 0% surface or mineral interest 100% surface & ¼ mineral interest
Kenneth 0% surface and 1/8 fixed NPRI 0% surface and ¼ minerals
Gipses 100% surface, ¼ minerals less Kenneth’s 1/8 NPRI 0% surface or minerals

After the case was remanded to the trial court a royalty calculation dispute arose. Conoco and Kenneth disagreed as to whether Kenneth’s NPRI should be reduced by the Gipses’ ¼ lessors’ royalty. Stated another way, Conoco argued that notwithstanding the court’s conclusion that Kenneth reserved a fixed 1/8 NPRI in Tract A, his ratification of the Gips lease transformed his fixed NPRI into a floating one. Therefore, said Conoco, Kenneth was to receive 1/8 × 1/4 of the royalties.

On Appeal

The appellate court disagreed. In Texas, pooling effects a cross-conveyance among the owners of minerals under the tracts of royalty or minerals in a pool so that they all own undivided interests under the unitized tract in the proportion their contribution bears to the unitized tract.”

Also, an executive lacks the power to pool a NPRI absent the NPRI owner’s consent, such as by ratification. If the NPRI owner ratifies, the lease effects a cross-conveyance of interests and a pooling of his or her royalty interests.

By ratifying the lease Kenneth agreed to nothing more than subjecting his fixed 1/8 NPRI to Tract A’s tract participation factor in Maurer Unit B. The court rejected Conoco’s assertion that Kenneth could not ratify the Gips lease for pooling purposes only, distinguishing prior Texas case law on ratifications and NPRIs.

The effect of Kenneth’s ratification of the Gips lease was only to bind him to the lease’s pooling provision. Therefore, Kenneth was due his fixed 1/8 royalty from Tract A.

For you trial lawyers, the court also addressed the “law of the case” doctrine.

*We ignore the other two siblings for this report.

Jeff Beck RIP.

 

(Originally posted by Charles Sartain)
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MUDdy waters

The main issue in Hanover Ins. Co. v. Binnacle Devel., LLC was the interpretation of a Texas Water Code provision about MUDs (“municipal utility districts”) — yes, “MUDdy waters.” Resolution of that issue led to a short discussion as to whether a key contract provision was a damage-limitation clause or a liquidated damages clause, and the Fifth Circuit said:

The damages clause is entitled “LIQUIDATED DAMAGES FOR DELAY/ECONOMIC DISINCENTIVE” and expressly provides for “liquidated damages in the amount of $2,500 for each [] calendar day” of delay. This provision does not, in substance, set a mere limitation of liability or delimit damages to “an agreed maximum.” 24 WILLISTON ON CONTRACTS § 65:6 (4th ed.). Rather, the clause provides that Hassell is liable for the liquidated damages of $2,500 for every day the Projects are late. Looks like a liquidated-damages provision to us.

No. 21-40662 (Jan. 12, 2023).

The post MUDdy waters appeared first on 600 Camp.

(Originally posted by David Coale)
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Summary Judgment Response Needs Evidence

In all employment lawsuits, the employer will move for summary judgment or seek dismissal of the case. Even when the facts are very strong, the employer wants to “take a swing” at summary judgment. It should be obvious that the employee must then point to specific facts which show that a trial is necessary. Summary judgment is not supposed to involve weighing the evidence. It is supposed to address the question whether there are sufficient minimal facts to justify having a trial. So, what happens if the plaintiff’s lawyer responds to the summary judgment motion not with actual evidence, but instead relies only on the Complaint? In such instances, the plaintiff will lose. That is what happened in Webb v. City of Huntsville, No. 17-CV-03829 (S.D. Tex. 8/10/2020). In this case, Kimberly Webb sued the City of Huntsville, saying she was fired after she complained about sexual harassment and sexual assault by her supervisor.

Why would the employee’s attorney rely solely on the Complaint? The Complaint is nothing more than a list of allegations. It is not supported by any witness or piece of evidence. Why would the plaintiff’s attorney overlook this very critical response? We will see.

New Evidence

The plaintiff lost. The judge initially granted the motion for summary judgment. Later, the employee obtained new counsel. The new plaintiff’s lawyer submitted a motion asking for reconsideration. He claimed the employee had located new evidence. In the motion for reconsideration, the plaintiff, Ms. Webb, showed that her former law firm had changed attorneys three times within five months. She had kept up to date with the lawsuit. She prompted the attorney when the response to the motion for summary judgment was due. She  even provided an outline of evidence to use in the response. The court noted Plaintiff’s proactive assistance to her attorney. The court found this was sufficient to show the attorney may have erred, but the client did her part.

Regarding the “new evidence,” the judge rightly noted that the new testimony was not actually new. The witness was available prior to the motion for summary judgment. But, the old attorney simply failed to depose that witness. The judge did, however, allow the new attorney to submit an amended response to Defendant’s motion for summary judgment. But, the Judge did not allow discovery, which meant the plaintiff could not depose the helpful witness.

So, in the end, after many months, the Court granted summary judgment. The evidence was still the same, but now, at least the plaintiff’s attorney was able to craft an actual argument based on the limited evidence available. And, it is critical to our system of justice that every person feel s/he had their day in court. Ours is an adversarial system of justice. If one adversary fails, then the entire system fails.

(Originally posted by Thomas J. Crane)
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Sponsored Content: 5 Steps to Kickstart Your Firm’s Cash Flow in 2023

The new year is here, and we want to help legal professionals like you increase profitability, crush all your goals, and make this year the one when you finally get back to what you do best – being a lawyer.

Streamline current billing practices

To understand your current finances and maintain a consistent cash flow, you’ll want to set processes to ensure that clients understand how much and when they will be expected to pay for your services. Consider implementing the following:

Set clear expectations upfront Send invoices out on time Follow up on unpaid invoices promptly Set up automated billing to be sent at the same time each month

Analyze client retention

Consider tracking these metrics to understand your clients on a deeper level:

The average number of cases closed The average fee per client Number of lawyers per client Active clients New client acquisitions Client satisfaction ratings (surveys or reports) Client retention rates Stars in reviews Qualitative Data (long-form reviews from clients)

You can use payment software, like LawPay, or a practice management software, like MyCase, to help pull this data. Once you understand how potential clients are entering your firm, if they are converting to paying customers, and if they are sticking with your firm for the long haul, you can build a strategy based on your short-term and future goals for your firm.

Make networking a priority

Networking is one of the ways you can quickly grow your firm’s reach—partner with other companies and professionals to provide a holistic solution for potential clients and create a cross-promotion network.

Start small, committing to inviting one colleague or even a successful professional from a different industry out for coffee or lunch. You can also consider writing thank you notes or notes of encouragement to counsel you are friendly with. Slip in a business card before you seal and send it off!

Campaign for referrals

If you want to get your clients raving about your service, you have to delight them. Go above and beyond for your customers not just by achieving goals with them, but maintaining consistent communication, creating a streamlined onboarding, and offering flexible payment and billing methods. Then, you can make your case for why they should tell their network about your great work.

Establish yourself as a thought leader

You can increase your credibility with current and prospective clients if you focus on sharing your unique perspective on legal trends and services. Online platforms like your website, blogs, and social media have exponentially expanded your opportunities to communicate directly with current and potential clients. Utilizing these platforms can allow you to make a case for using your business and share niche knowledge and trends to set you apart from your competitors and bring more clients into your practice.

US: Leave your payments and billing to LawPay, and you can handle the rest. As a special offer for State Bar of Texas members: sign up for LawPay by January 31 and pay no monthly fees for 3 months! Get started >>

 

 

(Originally posted by Guest Blogger)
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Court Lacked Jurisdiction to Enter Declaratory Judgment Because It Was Uncontested

In re Banigan

Dallas Court of Appeals, No. 05-22-01084-CV (January 12, 2023)
Chief Justice Burns and Justices Partida-Kipness and Smith (Opinion, linked here)

After her husband filed for divorce in 2021, Cynthia Banigan moved to vacate a 2015 declaratory judgment establishing that the parties’ agreed partition of community property was valid and enforceable. The husband had filed the declaratory judgment action on the same day the partition agreement was signed. In her response, the wife confirmed the facts set forth in the petition and expressed her consent to entry of an order declaring the partition agreement to be valid. At the hearing, the husband testified as to the validity of the agreement, and the wife testified that she agreed with everything the husband had said.

The wife’s tune changed, of course, after the husband filed for divorce six years later. She argued that she did not voluntarily sign the partition agreement and that it was unconscionable. The trial court referred the matter to arbitration based on an arbitration provision in the partition agreement.
The wife then filed a mandamus proceeding arguing the declaratory judgment was void for lack of subject matter jurisdiction. The Dallas Court of Appeals agreed, holding there was no justiciable controversy between the parties when the trial court entered the declaratory judgment. The Uniform Declaratory Judgments Act allows a person interested under a written contract to have determined any question of construction or validity arising under the contract and to obtain a declaration of “rights, status, or other legal relations.” But a declaratory judgment is only appropriate if (1) a justiciable controversy exists as to the rights and status of the parties and (2) the controversy will be resolved by the declaration sought. Lack of a justiciable controversy results in a lack of subject matter jurisdiction. Because the wife confirmed the facts set forth in the petition, consented to the entry of the declaratory judgment, and “agreed with Husband’s position entirely” at the hearing, there was no live controversy between the parties. The trial court therefore lacked jurisdiction to enter the requested order, and so the Court of Appeals vacated the declaratory judgment as void.
(Originally posted by Carrington Coleman)
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Austin to Convene Ukraine Defense Contact Group Session

Secretary of Defense Lloyd J. Austin III and Army Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, will host another session of the Ukraine Defense Contact Group at Ramstein Air Base, Germany.
(Originally posted by Dave Vergun)
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State Bar committee survey seeks to develop mentorship for people with disabilities, caregivers

The State Bar of Texas Disability Rights and Issues Committee is asking members of the legal community to take a short survey as it works to create a mentorship program.

The committee’s goal is to facilitate mentorship for people with disabilities and for those who are caregivers of people with disabilities, specifically within the legal profession.

The committee created a short survey to help pair mentors and mentees is circulating the survey throughout the legal community in hopes of connecting colleagues within the profession. To take the survey, click here.

The committee was created in 1992 to study the concerns of Texas lawyers with disabilities, as well as clients and members of the public, and make recommendations to the State Bar Board of Directors concerning ways in which the role of people with disabilities in Texas can be enhanced by improvement in programs and initiatives sponsored by the State Bar.

(Originally posted by Staff)
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Evaluating the Impact of Unmarried Couples Breaking Up in Texas

The question of what will happen with your property after you and your significant another break up is a major concern for non-married, cohabitating persons in Texas. The laws that apply to Texans who are married when it comes to property division do not also apply to nonmarried persons. As a result, if you are living with your boyfriend or girlfriend you should pay attention to the information contained in this blog post. This is especially true if you all have been living together for an extended period and have accumulated property together- be it personal property, real property, or anything in between.

If you find that you have questions regarding this subject matter, then you are not alone. The subject of property division is complex for married people getting divorced in Texas. While you may never have gone through a marriage ceremony you and your significant other may be married through something called common law marriage. We will discuss these details later in this blog post. In the meantime, if you have questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. We offer free-of-charge consultations six days a week in person, over the phone, and via video six days a week.

Consequences of cohabitating with your unmarried partner 

It probably would not surprise you to learn that it is not out of the ordinary for people in a relationship to live together though they are not married. You can do some quick internet research to determine how common this type of living arrangement is but you will likely find that it is at least as common for people under 40 to live with a partner who is not their spouse as it is for people under 40 to be married and living together. It is also common in this period for children to be born to unmarried persons. What used to be considered taboo or abnormal generations ago is no longer the case.

The difficulty that comes with this type of living arrangement is that it can feel to you that you and your significant other are in just as a committed relationship as married people even if you are not married. The fact that you have been living together, had children, and love each other may give you the impression or the feeling that your relationship is “basically” a marriage and as a result what married people go through in a divorce when it comes to property division is what you will go through as well.

It may surprise you to learn that this is not the case. The community property laws of Texas apply to married persons, not adults who are living together- no matter the nature of their relationship. The reality is that the State of Texas considers adults in a non-marriage relationship to be roommates and nothing more. Think of the circumstances that would surround you and a roommate who decided to move out of your home and go your separate ways. Would you think about going through a legal case to divide up the blender or other personal property in the home? Probably not.

Even though your relationship with your significant other may emotionally feel much more significant than a roommate situation, the law does not hold the same opinion. Rather, you are likely to find that you and your significant other can move out of the home that you share at any time with little to no legal ramifications. Additionally, if you own property with that person it is difficult to make a case that he or she is taking your property upon leaving. Buying a blender, mattress, or area rug with your boyfriend means that if you break up he may take that rug with him to his new apartment. Your legal recourses may be limited in terms of your being able to get the rug back, too.

The key to this discussion is that spouses are protected by the community property laws of Texas. For married people to end a relationship means that they have to go through a divorce. When married people move out of the family home and go their separate ways that do not end their marriage. However, if you and your boyfriend move out of your home and go your separate ways the relationship is over however you define the relationship. It is not dissimilar from a high school break up where you and your boyfriend would eat lunch at separate tables and associate with different friends. Adult relationships can be amorphous and ill-defined as the high school relationships we had back in school.

What you need to ask yourself is how you and your significant others define your relationship. This sounds a lot like high school, as well, for what it’s worth. Remember talking to friends about whether your significant other considers you their boyfriend/girlfriend? Ultimately the answer to that question may have required you to have a defined relationship conversation with him or her. For sixteen-year-old, you, finding out that the boy you had been hanging out with did not consider you to be his girlfriend may have been a hurtful moment but it at least provided clarity. You knew that the two of you were not dating or “together.”

By the same token, you need to figure out the type of relationship that you are currently involved in as an adult. You would think that adults would know whether they are married or not but life is not always that simple. What may have started as a dating relationship may have evolved. You started dating a guy and then moved in together after that. Moving in together led to you two having kids and doing a lot of domestic/martial duties together. What started as a fun and carefree relationship has shifted to something much more serious. You share a home, pay bills together, and are co-parents to a child.

It’s almost as if the two of you were married but did not know it. That is not the strangest thought to have considering your circumstances and the way that you have been living your life over the past years. Rather than brushing off this type of thought you and your significant other may have been “more married” than you would have thought. Before you laugh this off as something as silly as saying that you were “sort of” pregnant, bear with me here for a moment.

Common law marriage in Texas

Not all marriages begin with a formal ceremony, exchanging of “I do’s” and the kissing of a bride. Rather, what you and your significant other need to start thinking about is whether your relationship is a marital relationship. Common law marriages are legitimate marriages in Texas. However, because you and your partner did not go through with a marriage ceremony then the details need to be established before you’re knowing whether you are married or not. Let’s walk through the elements of a common-law marriage so that you can determine whether you are married or “playing house” with a significant other.

There are three criteria that we need to walk through regarding common-law marriage in Texas. Note that all three of these criteria must be met simultaneously for the two of you to be in a common-law marriage. First, you and your partner need to hold yourself out to others that you are married. The way that this could occur can take on a life of its own within your household. Sometimes people just up and decide to start calling their partner/significant other their husband or wife. Do you introduce your significant other as your wife? Do you tell people that you are married? If you both are engaging in this type of behavior, then you are holding yourself out to others as you are married. If I were to ask your four closest friends/family members if you and your partner were married or not what would they say? This is a strong indication that the two of you hold yourselves out as being married to other people.

Next, we would need you and your partner to live together as a married couple. This is not as easily established as you may think. Married people live together in the sense that they own a home or rent a home together. Both their names are on the rental agreement, mortgage, deed, or combination thereof. Even if both names are not on the documents, they both contribute to the home financially. When repairs are needed their community income is used to make those repairs. The down payment to the home as well as the mortgage payments come from community income. Both spouses have skin in the game as far as their finances are concerned.

You need to consider what your living arrangements are like with your partner. Do you all have one place to live? This is a key indicator of whether you are cohabitating. If you have an apartment that you stay in sometimes or if your partner goes to stay with her mom for a week at a time this would not be cohabitating. This would be sleeping over which is not the same thing. Often cohabitating takes on an added seriousness when you and your partner have children. At that point, you may decide that the stability of staying in the same house is what matters for your kids. You may also be in a position where you can no longer afford to pay the rent on that second apartment and have to suck it up and live together full-time.

As far as evidence of cohabitating is concerned, you can see if both you and your partner receive mail at the home where you are living. Even if you are cohabitating it can appear that you are not if your partner gets their mail at another address. I mention this point because, at a certain stage, you may have to present evidence to a court that you are cohabitating if you need to establish a common-law marriage. Being able to come up with evidence showing that you either are or are not in a cohabitating situation can be extremely important depending upon what side of the argument you are on.

Last, you need to agree with your partner that you are married. This needs to be a meeting of the situation of the mind where you have a conversation that we are married. Acting like you are married will not satisfy this agreement. Deciding that you may as well be married considering that you have children and live together does not constitute an agreement to be married. Rather, you and your partner need to be in lockstep with one another that you are married to one another. Take out a ring and propose a pinky promise, spit shake- whatever it is that you and your partner decide to do it is fine. However, the result must be that you two agree that you are married moving forward.

Inevitably this can come down to he said, she said type of disagreement later on about whether the two of you agreed to be married. You may explicitly remember a conversation at the dinner table where you both agreed to be married to one another. On the other hand, your partner may not remember the conversation that way. In this type of situation, you would need some additional evidence to show that your recollection was accurate. If you believe that you had this conversation in May 2022 and can produce tangible evidence that your spouse filled out an application for a car loan as Mrs. So-So using your last name rather than as Ms. So-So using her maiden name then you probably have a stronger case to argue that you all agreed to be married.

What happens when you and your partner decide to go your separate ways?

The question that we need to address in closing out today’s blog post is what exactly happens when you and your spouse/partner decide to call it a day when it comes to your relationship. If you and your partner cannot agree on whether or not you are common law married then this is likely to be a subject that a court needs to answer for you. For instance, if you file for divorce from your spouse and your spouse answers back that she is not your spouse and is instead a girlfriend then this would be a point of contention, to say the least. A judge would likely need to hear from both you and your spouse as to what evidence exists in support of your particular positions. This is why I mentioned a few words earlier about evidence that you may need to keep handy to prove that you are in a common-law marriage and not just a dating/romantic relationship.

At the end of the court hearing if you are determined to be in a common law marriage then you would go through a divorce just like people who were married by a judge or a priest would. There is no common law divorce that allows you to get out of your marriage just as easily as you entered into the marriage. Signing up for a common law marriage means signing up for a typical divorce that you undoubtedly are familiar with if you have read the blog for the Law Office of Bryan Fagan before.

Creating what is known as a postnuptial agreement is a great idea for you and your spouse if you have entered into a common-law marriage. A post-nuptial agreement is just like a prenuptial agreement. The only difference is that the post-nuptial agreement is created after you and your spouse have gotten married. One of the great benefits of a post-nuptial agreement is that you and your spouse can state what happens to your community property and your separate property if you get a divorce. This is a great way to sidestep the issues that many people experience in trying to divide marital property in a divorce.

If you are not in a common law marriage but rather are cohabitating with a boyfriend or girlfriend then you should also consider the creation of a cohabitation agreement. This agreement specifically states that the two of you are not in a common-law marriage. That way your assets and debts will not become the responsibility of the other person under any circumstances if you choose to end your relationship. The attorneys with the Law Office of Bryan Fagan can assist you in drafting either type of agreement depending on your particular circumstances.

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 a child custody case.

(Originally posted by Bryan Fagan)
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You Can Still be Subject to Place of Public Accommodation Rules Even if You are Not a Place of Public Accommodation

Hockey, Ice Hockey, Puck, Hockey Stick

Picture of Hockey helmet, puck, and stick (brown and black colors).

 

As readers know, I have long been interested in the intersection of the ADA and sports. Many of my blog entries cover that topic. The very first edition of Understanding the ADA back in 2000 had a whole chapter on it. The subsequent editions of my book always had a chapter on it. As far as the book goes, think of my blog like as updating the book in real time from week to week. The case of the day, M.U. v. Team Illinois Hockey Club, Inc. and the Amateur Hockey Association of Illinois, Inc., here, is one such case. I had the complaint in my pipeline for quite a long time. Yesterday, I decided to try and figure out whatever happened to that case. When I did that I found out that the case had been appealed to Appellate Court of Illinois and that the Appellate Court of Illinois, Second District issued a decision on August 19, 2022. The decision bears discussing because it covers a lot of topics that we have covered before. By way of explanation, the ¶ is what appears in every Illinois opinion. Several years ago, Illinois went to an Internet-based citation system and the ¶ is how you cite to a particular case. As usual, the case is divided into categories and they are: facts; Team Illinois is not a place of public accommodation; Team Illinois is not a place of public accommodation but it doesn’t matter; plaintiff properly pled that the Amateur Hockey Association of Illinois aided and abetted discrimination; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff is a high school student and long-time player of hockey in organized hockey leagues and teams. She is also a person with a disability, in that she suffers from anxiety and depression. She has received professional medical and mental health support, and her medical providers approved and encouraged her hockey playing as a means to support her mental health. Over the years, plaintiff’s mental health has benefited from the physical activity, structure, and social connections that come with playing on a hockey team.

 

¶ 4 Prior to the 2019-20 hockey season, plaintiff participated in public tryouts for, and later joined, the “Girls 14U [hockey] team” operated by Team Illinois. Team Illinois is an Illinois nonprofit corporation that operates youth hockey teams as part of AHAI, which is the governing body in Illinois for USA Hockey. Team Illinois offers a variety of activities and services, including club hockey teams, practices, clinics, workouts, team meals, travel opportunities, sessions to review game tape, coaching, and opportunities to play in hockey games and tournaments before family, friends, hockey scouts, and the general public. Relatedly, AHAI is an Illinois nonprofit corporation and affiliate of USA Hockey. It regulates and controls youth hockey leagues and teams throughout the state, including Team Illinois.

 

¶ 5 Team Illinois “leases and operates the Seven Bridges Ice Arena” (Seven Bridges) in Woodridge, in addition to other related facilities, for its activities and services. Seven Bridges is open to the public and includes “an ice rink with space for spectators, locker rooms, training facilities, concessions, offices for Team Illinois, and other related facilities.” Most of Team Illinois’s activities, such as hockey tryouts, practices, and games, are held at Seven Bridges. – 2 – 2022 IL App (2d) 210568

 

¶ 6 On November 13, 2019, just prior to hockey practice, plaintiff and her mother informed plaintiff’s coach, Larry Pedrie, that plaintiff struggled with mental health and suicidal thoughts. Plaintiff’s mother also informed Pedrie that plaintiff had the support of mental health providers and she expressed that hockey was an important and supportive aspect of plaintiff’s life.

 

¶ 7 The next day, November 14, 2019, Pedrie spoke to Mike Mullally, who is both a member of AHAI’s board of directors and a director of the central district for USA Hockey. Together, they “agreed *** to banish [plaintiff] from Team Illinois until she was able to participate 100% in Team Illinois Activities.” Pedrie then called plaintiff’s parents and informed them that, due to her suicidal thoughts, depression, and anxiety, plaintiff was prohibited from participating in Team Illinois activities and events until she could be “cleared by a doctor to return to 100% of Team Illinois activities.”

 

¶ 8 Team Illinois likewise “prohibited [plaintiff] from [having] any contact with Team Illinois players,” and it sent an e-mail to the other players and their parents directing them to have no contact with plaintiff. The e-mail stated that plaintiff was removed from any involvement and communication with her teammates until she was back to “the positive, happy, smiling kid that we all know she is.” On November 16, 2019, Pedrie reiterated in an e-mail that plaintiff was prohibited from Team Illinois activities until she could “take part 100% in all team activities,” including team strength training sessions and practices, as well as attend all games and all other team functions, such as meals, meetings, and video sessions. Two days later, on November 18, 2019, plaintiff’s parents had a telephone call with Mullally, who “confirmed that he and [Pedrie] had *** decided to exclude [plaintiff] from hockey” and “reaffirmed the 100% participation requirement as AHAI’s position for when [plaintiff] could return to hockey.” – 3 – 2022 IL App (2d) 210568

 

¶ 9 Plaintiff was barred from Team Illinois activities until December 11, 2019—after her parents obtained counsel and threatened litigation. In all, plaintiff was prohibited from Team Illinois activities for just under one month. She completed the 2019-20 hockey season with Team Illinois and thereafter began playing hockey for a different youth hockey team within AHAI’s purview.

 

¶ 10 On April 9, 2020, plaintiff filed a charge of discrimination with the Illinois Department of Human Rights (Department), asserting that defendants subjected her to discriminatory treatment because of her disability. In February 2021, after an investigation, the Department dismissed the charge because it found that the claim lacked substantial evidence.

 

¶ 11 On April 20, 2021, plaintiff timely filed a three-count complaint against defendants, alleging disability discrimination in violation of the Act and seeking damages and injunctive relief. See id. § 7A-102(D)(3) (providing that, if the Department concludes that the charge lacks substantial evidence, the complainant may “seek review of the dismissal order before the [Human Rights] Commission or commence a civil action in the appropriate circuit court”). Counts I and II alleged that Team Illinois violated the Act by denying her the full and equal enjoyment of Team Illinois facilities (including Seven Bridges) and services because of her disability or, in the alternative, that she was denied those things because she was perceived by Team Illinois to have a disability. Count III alleged that AHAI, through Mullally, “aided, abetted and/or conspired” with Team Illinois to violate the Act.

 

 

II

Court’s Reasoning That Team Illinois Is Not a Place of Public Accommodation

 

775 ILCS 5/5-101 describes what is a place of public accommodation under the Illinois Human Rights Act (the list is identical to what is seen in 42 U.S.C. §12181(7) except that it adds public conveyances on air, water, or land as an additional category). Neither a youth hockey team nor any type of Sports Association organization is specifically enumerated and what is a place of public accommodation in the Illinois Human Rights Act. When a statute lists several classes of persons of things but provides that the list is not exhaustive, the class of unarticulated person or things is interpreted as those other such named persons or things. Places of public accommodation in §5-101(A) relate to physical, tangible places. Article 5 of the Act prohibits the denial or refusal of the full and equal enjoyment not of public accommodation but rather of a public place of accommodation. While the term “place,” is not defined, it is assumed that the legislature intended for it to have its ordinary and popularly understood meaning. When one looks at the dictionary, dictionaries repeatedly define place in terms of spatial location. Therefore, a straightforward reading of §5-102(A) reveals that it concerns the facilities, goods, and services offered by a physical place, rather than some entity that is abstract or intangible. All but one of the categories (public conveyances on air, water, or land), set forth specific examples followed by a general residual or catchall clause. Those examples share a distinctive and unquestionable attribute as they all concern tangible physical places. Even the residual clauses that follow the specific examples are couched in terms of physical location. In the clauses that use the term “establishment,” dictionaries make clear that establishment is also a physical place. In a footnote, the court notes that several federal courts have distinguished between places of public accommodation and membership organizations in finding that the membership organizations are not places of public accommodations. The biggest difference between Team Illinois and the entities listed as places of public accommodation in the Illinois Human Rights Act is that Team Illinois is not itself a physical place. As such, that feature alone is enough to exempt Team Illinois, the organization, from the definition of a place of public accommodation. In another footnote, the court notes that the various U.S. Courts of Appeals are divided on whether a public accommodation must be a physical place. The First, Second, and Seventh Circuits hold that a public accommodation is not limited to physical structures. On the other hand, The Third, Fifth, Sixth, and Ninth Circuits hold that a public accommodation must be or have a connection to a physical place.

 

II

Team Illinois Is Not a Place of Public Accommodation but it Doesn’t Matter

 

Federal authority is clear that athletic organizations are subject to civil rights laws if the exercise sufficient control over a place of public accommodation by, for example, leasing or operating the venue where its public sporting events are held. The controlling case is PGA Tour v. Martin, here , where the Supreme Court held that the PGA Tour was subject to title III of the ADA because the events occurred at golf courses, which are specifically enumerated as a place of public accommodation under the ADA. Additionally, the PGA Tour leased and operated the golf courses for qualifying rounds and tours. The court said that as a leasing entity and operator of golf courses the PGA Tour could not discriminate against any individual in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of those courses. In Martin, the Supreme Court explained that the privileges offered by the PGA Tour at golf courses were: 1) the privilege to observe the competition; and 2) the privilege to compete in it. The Supreme Court stated that although the latter privilege is more difficult and more expensive to obtain than the former, it is nonetheless a privilege that the PGA Tour makes available to members of the general public. Therefore, because the golfer qualified to play in the tour, the ADA prohibited the PGA Tour from denying him equal access because of his disability. In other words, the ADA prohibited the PGA Tour from discriminating against not only the spectators at its advanced but also the competitors themselves. Martin stated in broad terms that even though the PGA Tour was a private organization and not itself a place of public accommodation, it was nevertheless subject to the ADA as a leasing entity and operator of a place of public accommodation-the golf course. Martin is directly on point to this case: 1) Team Illinois is a membership organization holding competitive sporting events at a place of public accommodation; 2) Seven Bridges, which is where the events are held, is a place of public accommodation under the Illinois Human Rights Act because it is of the type of activity like a golf course, which is specifically listed as a place of public accommodation; and 3) while Team Illinois is not a place of public accommodation, it is subject to the Illinois Human Rights Act because it barred plaintiff on the basis of her disability from participating in Team Illinois events, such as hockey games and tournaments, that were held at a place of public accommodation that Team Illinois leased and operated. Team Illinois by virtue of its lease and operation of a place of public accommodation offer the general public at least three distinct services: 1) watching Team Illinois competition; 2) open tryout turn membership on the team; and 3) the opportunity to actually play in competitive hockey games as a member of the team if selected. As in Martin, while earning a spot to play in competitive athletics for Team Illinois is distinctly more difficult and expensive than simply watching the team play, it nevertheless is a privilege that Team Illinois makes available to the public at Seven Bridges-a place of public accommodation. It doesn’t matter that profit is not involved because the Martin decision did not turn on profit aspirations. In fact, profit aspirations were not even mentioned in Martin. Martin teaches that once a place constitutes a place of public accommodation, the service allegedly denied to the plaintiff need not have been available to the general public. Therefore, the fact that Team Illinois is selective in choosing its members is not important because a facility does not lose its status as a place of public accommodation merely because entry to the field of play during athletic competitions is limited. Here, the plaintiff earned a place on Team Illinois roster and therefore, Team Illinois cannot then deny her on the basis of her disability the privilege of participation at athletic events held at place of the public accommodations, such as Seven Bridges. Federal courts have relied on Martin to hold that other athletic organizations open to the public and tied to places of public accommodations are subject to the ADA (NCAA and a youth football Association for example).

 

III
Plaintiff’s Claim Alleging That the Amateur Hockey Association of Illinois Aided and Abetted Discrimination Was Properly Pled

 

Plaintiff adequately allege facts to support that the Amateur Hockey Association of Illinois through a board member aided and abetted Team Illinois and violating the Illinois Human Rights Act. Specific allegations were made that Team Illinois and the board member spoke and agreed to exclude plaintiff from Team Illinois until she was able to fully participate in its activities. That conversation was confirmed in a subsequent phone call that also reaffirmed the 100% participation requirement at the American Hockey Association of Illinois’s position for when plaintiff could return to Hockey. The joint decision is sufficient for a showing that the American Hockey Association of Illinois knowingly and substantially assisted in violating the Illinois Human Rights Act.

 

IV

Thoughts/Takeaways

 

The Illinois Protection and Advocacy organization, Equip For Equality, filed an amicus brief for the plaintiff. This organization does tremendous work on behalf of people with disabilities in Illinois. I continually am mystified by how plaintiff attorneys in cases where a question exists whether a place of public accommodation must be a physical place ignore the Supreme Court decision in South Dakota v. Wayfair, which we discussed here. As mentioned in that blog entry, the Supreme Court literally has 23 different statements strongly suggesting that a place of public accommodation need not be a physical place. The Illinois Human Rights Act, similar to Texas, applies to public conveyances on air, water, or land as an additional category. With respect to air, there are serious preemption issues that arise thanks to the Airline Deregulation Act and that can get quite complicated (I have consulted on several such cases like that). Per Martin, you do not have to be a place of public accommodation to be subject to the laws governing places of public accommodation when it comes to disability discrimination if you are using a place of public accommodation to carry out your activities. I do look for the Supreme Court to eventually step in to try to figure out whether a place of public accommodation must be a physical place. I’m not optimistic that Congress will step in to clarify that. As far as what the Supreme Court will do, impossible to say. I will be completely befuddled if the plaintiff in such a case did not bring up South Dakota v. Wayfair. We discussed PGA Tour v. Martin a bit in this blog entry, There was also a 100% participation requirement of volunteer. We discussed here how 100% return to work policies are no longer kosher. 100% participation or return to work policies are a really bad idea. It was not accurate for the court to say that all the plates of the public accommodations listed in the Illinois Human Rights Act concern physical places. Like 42 U.S.C. §12181(7), travel is also listed, which many courts have said over the years was not necessarily a physical place even at the time the ADA was enacted. Also, while the categories in both the Illinois human rights act and in 42 U.S.C. §12181(7) are exclusive, specific entities listed are not. We discussed the applicability of the ADA to a youth football Association here. In November 2022, the Illinois Supreme Court agreed to hear the case. I wasn’t able to find easily when it will be argued.
(Originally posted by William Goren)
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The Pitfalls of Vendor Contracts

When your company does business with vendors for goods or services, you need clear and well-drafted contracts to govern these relationships. Otherwise, you may be risking future headaches that could include supply disruptions and lawsuits. There are a number of situations and pitfalls arising out of poorly written vendor contracts you must act to prevent. Sloppy contract drafting or a lack of foresight could doom your company to legal troubles. The best way to avoid problems with vendor contracts is to have an experienced attorney draft and review your contracts. In the meantime, here are some common pitfalls businesses may face with a vendor contract negotiation.

Signing an Unclear Contract

Both you and the vendor may think you know exactly what you are contracting for, but what actually appears on paper will control the business relationship. The contract must clearly state the rights and obligations of each of the parties. When there are ambiguities or the contract is missing terms, you may end up in a business dispute.

Your contract must clearly state what each party will do or not do as part of the contract. Each party to a contract must be giving the other something of value for the contract to be valid.

If there is any disagreement among the parties over what the contract says, a court will first look to the clear language of the document. The problem occurs when there is missing language or the existing language is unclear. Then, there is a host of uncertainty that is introduced. A court may use one of a number of methods of contractual interpretation, and the end result may be something that you never intended in the first place. If you are the party that drafted the contract originally, the court may interpret any ambiguity in the other party’s favor. Make sure to have well-defined terms because every word in a contract matters. If the contract is vague, the situation could become entirely unpredictable. Just because you may have intended certain language to convey a certain meaning does not mean that it would be read that way by a judge.

Not Having a Clear Disputes or Termination Clause

You do not want to be indefinitely tied to a vendor that cannot get the job done. If the vendor is not performing the contract as agreed to by the parties, you need to have clear procedures that guide what happens next. Each contract should have a termination clause that allows your business to end the relationship if another party is not performing their obligations under the contract. In addition, the contract also needs a disputes clause that will govern what happens when the parties disagree. If you are dealing with a vendor, you may want to consider a clause that mandates arbitration in the event of a disagreement if it works to your advantage. Otherwise, you would want to make sure you have the right to sue and to do so in the forum of your choice.

Without a robust termination clause, you may end up stuck in a contract with a non-performing vendor. A termination clause lays out when a party may legally terminate the contractual relationship. At a given point, the vendor may be deemed to be in breach of contract, and the document may give you the right to end the relationship. Otherwise, any step you take to get out of the contract could be deemed your own breach.

Omitting Choice of Law or Jurisdiction Provisions

It is critical to spell out which state’s law governs your contract. If you are the one drafting the contract, you should choose your state’s law as the governing body. Otherwise, you may end up with an unintended outcome because another state’s law could apply to your contract and any resulting disputes.

In addition, you should specify where any court cases relating to the contract must be filed. Naturally, you will want the other party to agree to language that requires a lawsuit over the contract to be filed in a court with a location that is convenient for you, such as a court in the county where you operate your business. Without a choice of law and jurisdiction provision, you may end up being hauled into court in an inconvenient location far away from you.

Not Spelling Out Potential Damages

Your vendors’ nonperformance may cause significant disruptions for your business that go well beyond the money you are spending on their services. Although you may not be able to hold the vendor responsible for all of your consequential damages, you can use the terms of the contract to spell out the exact damages they must pay. You should consider using a liquidated damages provision to ensure your business is compensated appropriately for the vendor’s wrongdoing.

However, you need to be careful about which liquidated damages you specify in the contract. If the requirement is overly punitive, a court may not enforce it. There is a fine line you must tread when you put a liquidated damages provision in a contract. You should have it in there, but you cannot overreach.

Using Boilerplate Language

Some businesses may be tempted to use a standard contract for all of their vendors. While you do not need a customized contract for every single term, you do need to consider the unique and specific circumstances of your arrangement with each vendor. Trying to shove the proverbial square peg into the round hole could lead to a contractual dispute.

If there are specific and unique aspects of a particular relationship, they must be reflected in the language of your agreement. Too many businesses have made the mistake of overusing boilerplate documents and then paying the price for doing so down the road. Many managers are in a hurry to get a contract signed, so they will end up choosing the document they think looks best without much further review. It does not matter whether the boilerplate language seems completely applicable—this is the language the court will need to enforce or interpret if there is a dispute, so you should make sure it is appropriate for the relationship with the vendor it will control.

Forgetting About Regulations

Each business must consider the regulatory landscape in which it operates. No matter what your company does, it is always subject to both federal and state regulations. Further, you cannot have a contract for an illegal purpose, nor can you perform a contract when the purpose of it is impossible.

You need to have a general understanding of the regulations in effect at the time the contract is signed, but you should also be thinking about how those regulations may change in the future. Having an attorney review your contract before you sign it can give you an understanding of the regulatory landscape today—and how to avoid a problem if regulations change tomorrow. An attorney may flag an area where an applicable or future regulation could complicate or frustrate the purpose of your contract.

The Failure to Protect Your Intellectual Property

Your vendors may need access to some of your processes and trade secrets as part of their relationships with you and the work you hire them to do. Any vendor contract negotiation should have provisions that restrict how a vendor can use your business’ trade secrets and knowledge. You cannot just rely on patents and trademarks to protect you, because some intellectual property may not be patentable or trademarkable. Your business has worked hard to develop its knowledge, and you do not want someone to take it from you because you trusted them enough to form a business relationship with them.

The attorneys at Feldman & Feldman can help your business by drafting and reviewing vendor contracts. Investing in legal advice now can save you considerable expense and stress in the future. To learn more about our legal services, and how they can benefit your business, contact us today to speak to a Houston contract drafting lawyer.

The post The Pitfalls of Vendor Contracts appeared first on Feldman & Feldman.

(Originally posted by Cris Feldman)
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