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Originally published by Joanna Herzik.
To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.
9. To err is human. To disagree on an appraisal award is not grounds to set it aside. – Anne-Marie Abarado of Hanna & Plaut, L.L.P. in Austin
7. What Would Your Law Firm Be Like If You Gave Associates “Fed Ex” Days? – Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas
6. Can Adults Consent To A Fistfight in Texas? Not Exactly. – Brandon Barnett of Barnett Howard & Williams PLLC @BHWLAWFIRM in Fort Worth
4. Texas Supreme Court Finds no Cause of Action for Intentional Interference with Inheritance – Sim Israeloff of Cowles & Thompson @CowlesThompson in Dallas
3. Three’s a crowd: The latest Texas Supreme Court ruling and its effect on non-parent standing – Ryan Segall of O’Neil Wysocki, P.C. in Dallas
2. Fifth Circuit Reminder: Words Matter in Employment Contracts, Restrictive Covenants – Joe Ahmad of Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. in Houston
1. Grow Your Small Law Firm’s Business with Content Marketing – Amy Boardman Hunt of Muse Communications, LLC @MuseCommLLC
Originally published by Adam Faderewski.
The Texas Criminal Defense Lawyers Association, or TCDLA, will host readings of the Declaration of Independence across the state in recognition of the Fourth of July.
The readings, which will take place in over 100 Texas counties on July 3, have been sponsored by TCDLA for several years. Some of the gatherings will also include a reading of the Bill of the Rights.
“This is an opportunity for every Texas community—large and small—to stand and support the documents that make us what we are: free and brave Americans. I hope people will show up at their local courthouses to witness this very patriotic annual events,” said TCDLA President Mark Snodgrass in a press release.
Most of the readings are scheduled for 9 a.m. July 3. For a full list of readings and more information, go to the TCDLA website.
Originally published by tiffany.dowell.
Happy Friday! My husband and I just returned from a little vacation in the California wine country.
Although we had a great time in Napa, I made sure to keep up with the ag law news this week so I could share some of the biggest stories with you all.
*Justice Kennedy announces retirement. Perhaps the biggest news this week was that US Supreme Court Justice Anthony Kennedy announced he will retire during the Court’s summer break. Immediately, talk turned to speculation over who President Trump might nominate as his replacement, and whether that nomination would be confirmed before the mid-term elections this fall. Particularly interesting for agriculture is that it was Justice Kennedy who wrote the plurality opinion in the Clean Water Act case of Rapanos, which gave us the “significant nexus” test that the 2015 WOTUS rule was based upon. How this plays out will be interesting to see. [Read article here.]
*US Supreme Court remands Florida v. Georgia back to Special Master for additional consideration. Just before Justice Kennedy’s big announcement became public, the US Supreme Court issued its final opinions of the term, including a 5-4 decision in Florida v. Georgia, a water law case pitting two states against each other in a battle over water in the Apalachicola-Chattahoochee-Flint River Basin. The Special Master had recommended that the case be dismissed, as Florida failed to prove by clear and convincing evidence that its injury could be adequately redressed by an order from the Court in this case. The Supreme Court did not accept this recommendation, deciding instead that the Special Master applied too strict of a standard in reaching this determination, and remanding the case back to him for additional consideration. [Read opinion here.]
*IA Supreme Court upholds Right to Farm Act. Last Friday, the Iowa Supreme Court issued an opinion in Honomichl v. Valley View Swine, LLC, affirmed the constitutionality of the state’s Right to Farm Act. In this case, plaintiffs were homeowners who owned their property prior to a hog farm being built nearby. They sued for nuisance, and the farm contended the Right to Farm Act prohibited the claims. The court reaffirmed a three-part test under the statute to analyze the applicability of the defense. [Read summary of decision here.]
* North Carolina governor vetoes Right to Farm Amendment, Legislature overrides veto. You may recall last week that the North Carolina legislature passed an amendment to the state’s Right to Farm Law. This week, Governor Roy Cooper vetoed that bill. Cooper noted that while agriculture is vital to North Carolina’s economy, so are property rights vital to people’s homes and businesses. [Read article here.] But then, in a twist, the North Carolina House and Senate vote to override the veto, passing the bill into law. [Read article here.]
*Curbing suicide rates in rural America. Ag Web published an article earlier this month looking at suicide rates across the country. The rates are highest across the West and in rural parts of the nation. The article offers tips and resources to help. [Read article here.]
Originally published by Michael Buonocore.
Most insurance policies are voluminous, trying to encompass everything from what is covered to what is not. They included with some profound confusion between covered and uncovered situations. So, what happens when you suffer what you believe to be is a covered loss and the insurance company denies the claim? Adjusters cite to your policy…… Continue Reading
Originally published by Lowell Brown.
Editor’s note: State Bar of Texas President Joe K. Longley sent the following message to members on Thursday.
This week I traveled to the border to learn how we can promote access to justice and the rule of law related to the separation of immigrant families. I met with a number of dedicated attorneys and organizations that are working long hours and pouring all of their energies into ensuring that children and parents are reunited and that legal rights are protected through due process of law.
I’m saddened to report that many children are still separated from their parents.
Attorneys who visited an adult detention facility recounted women sobbing immediately upon being asked whether their children had been taken away. Others described struggling to explain legal rights to detained children whose sole desire was to be back with their parents. These accounts are from pro bono and legal aid attorneys who are accustomed to working with clients in difficult situations; they said the sorrow they witnessed at these facilities was on a wholly different level.
Your State Bar of Texas exists, in part, to aid the courts in carrying on and improving the administration of justice and to advance the quality of legal services to the public. In that spirit, the State Bar is compiling a list of volunteer trainings and opportunities at texasbar.com/volunteer for those who would like to get involved in reuniting children with their parents.
By far, the greatest need is for Spanish-speaking immigration attorneys to volunteer their time at the border. Many organizations are also seeking monetary donations. The State Bar will continually update the volunteer webpage as resources and information develop.
In my presidential inaugural address last Friday in Houston, I said we are uniquely equipped to address the problems vexing our nation—including the current family separation crisis. This is not about politics. It’s about access to justice. The people involved in this crisis may not be citizens, but they are still entitled to due process in a land that values the rule of law.
Joe K. Longley
President, State Bar of Texas
Originally published by Guest Blogger Van VanBebber.
Death, drugs, and depression have gained gradual attention within the legal profession. Only a decade or two ago, few would even expel a whisper concerning these issues. But news organizations and films increase needed attention by providing a glimpse into a world most do not understand.
In The New York Times last summer (July 15, 2017), Eilene Zimmerman crafted a sensitive account with incisive current research of the hidden rise of drug abuse and depression in the legal profession. She told the compelling story that concluded in the overdose death of her former husband, a lawyer in a big-city practice.
Living in a constant state of stress, “[he] obsessed about the competition, about his compensation, about the clients, their demands and his fear of losing them … [and he] hated the combative nature of the profession,” in which, “you are financially rewarded for being hostile.” Through his career, he often said, “I can’t do this forever.”
After being the one to find his body, she extensively researched the relevant issues, citing reports that “lawyers also have the highest rate of depression of any occupational group in the country” and that law students shift focus to status and competition and that they shed their idealism away from “helping and community-oriented values to extrinsic, rewards-based values.”
Issued just months after her former husband’s overdose, a study by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs noted that nearly 75 percent of responding attorneys skipped the questions on drug use. The lead researcher opined they were afraid to answer. That study, released in 2016, further found that 28 percent of lawyers suffer depression.
Conducting this research to heal her children’s broken hearts, Zimmerman concluded from her analysis, “I firmly believe that law-firm culture, particularly at big firms, has to become more compassionate and more aware of the signs that one of their own is struggling.” But she also recognized how this is “complicated by an entrenched culture of privacy combined with an allegiance to billable hours.” Cleaning out her former husband’s personal effects, Zimmerman found his list of final New Year’s resolutions, written just months before his death, with the word “quit” printed in red ink.
In a recent New York Law Journal (March 28, 2018), Joseph Milowic III lays bare his own personal bouts of depression as a partner in one of the largest national firms, bravely admitting openly what few only whisper. Milowic sensed his “lack of energy and motivation only seemed to get worse … [and felt] consumed by an endless loop of anxiety and negativity … [L]osing interest in everything. I questioned the purpose of my work and even life. What was the point of it all? Why spend so many hours working at a job that seems so pointless?”
Though lost, he found help … and then “meaning in things again.”
These media reports paint a grim picture from lived experience across the nation. The big screen has also portrayed the legal profession through various characters.
In one such portrayal, Roman J. Israel, Esq., Denzel Washington breathes life into his lawyer character as a socially awkward legal savant. From beginning to end, Israel struggles with his ideals of the nobility of law to achieve a just world and the frustrations of making a decent living. Nearly broken by that confrontation, Israel laments he’s “tired of doing the impossible for the ungrateful.” After about 30 years in this small practice, Israel loses everything: his senior partner dies, his law firm shutters, his job disappears, his tenuous financial security evaporates, and his fight for human rights and justice collapses—worst of all his belief in humanity falters and his whole purpose for living now seems a lie.
Sound familiar? In the film, Israel—under duress—takes a wrong turn to “get mine” for materialistic pursuits. But soon he is overcome with guilt and seeks to make things right, becoming the sacrificial lamb, atoning for his transgressions, even unto death.
These stories—fictional and real—share a kind of commonality wrought by the law profession, exposing the malaise among many lawyers. Great legal minds solve problems for clients every day, and it’s time to turn that immense talent toward the more difficult problem seemingly inherent within the legal profession. These same stories—and studies and statistics easily found during research—confirm a widespread dilemma, thus no one need feel alone. Brain drain, broken dreams, lost love, and shattered lives needn’t be normalized or perpetuated.
When this is recognized, we can turn for help. For ourselves or our colleagues, we may start by reaching out to the Lawyers’ Assistance Programs of the state bars. Click here to see a list of LAP programs across the country. The Texas Lawyers’ Assistance Program, or TLAP, provides confidential assistance 24/7 at (800) 343-8527 (TLAP). For more information, go to tlaphelps.org.
Van VanBebber is an attorney, CPA, and writer on cultural trends, professional ethics, and cross-functional thinkers, with a forthcoming book on related issues.
Originally published by D. Todd Smith.
Think about what Texas appellate practice was like a decade ago. Courts required paper filings, and filing fees were paid by check. Appellate records existed only in paper form. Briefs had to be completed in time for the right number of copies to be made and either hand-delivered or dropped in the mail to ensure timely filing and service. Making an after-hours post-office run to ensure the “mailbox rule” was satisfied was not unusual. Accomplishing work while traveling generally meant lugging around paper files and a laptop and relying on a slow and unreliable internet connection.
Fast forward to 2018. Our courts have gone digital in nearly all respects. A large, multi-volume appellate record is reduced to a searchable PDF file. eFileTexas.gov allows us to timely file and serve briefs until 11:59 p.m. on the due date. High-speed internet has become widespread, and the devices through which we access digital information have become increasingly sophisticated and powerful.
Except for the occasional oral argument or other court appearance, a modern-day appellate lawyer should be able to work productively from anywhere in the world. With help from one of my digital mentors, Ernie Svenson, my next few posts will overview some of the hardware, software, and best practices that allow appellate counsel to serve clients safely, securely, and efficiently from almost anywhere.
Image courtesy of Flickr by Kai Hendry.
Originally published by mkhtx.
This morning the Fourteenth Court of Appeals released two memorandum opinions, In re Lehman, No. 14-17-00042-CV, on premarital agreements, and Miller v. Miller, No. 14-17-00293-CV, on fraud on the community.
In In re Lehman, wife appealed the trial court’s granting of summary judgment as to whether she voluntarily signed the premarital agreement. The day before their wedding in 2005, the parties executed a PMA which provided no CP would accumulate during the marriage. Attached to the agreement were schedules of their SP prior to marriage. Ten years later, wife filed for divorce. Husband sought summary judgment on the enforceability of the PMA. After a hearing, the trial court granted summary judgment. Wife’s sole issue on appeal is whether the trial court erred in holding wife failed to raise a genuine issue of material fact as to whether she voluntarily signed the PMA. The wife stated in her affidavit that she lived with the husband prior to marriage and that the husband provided the majority of the financial support for her and her two daughters and that she was unable to support herself at the time the PMA was signed. She could not afford her own lawyer when the PMA was signed so the husband paid for her lawyer to advise her on the PMA. She claimed in an affidavit that when she was presented with the PMA, she was not able to opt out of signing it because she had been unable to improve her situation and “just could not make the grade.” She claimed the husband would not have married her but for the PMA being signed and that she was concerned about her children and did not want to “be out on the street.” The court found she did not meet her burden of establishing a fact issue on voluntariness.
In Miller v. Miller, husband appealed the trial court’s reconstitution of the marital estate. Husband and wife married in 1969 and had three children (who were all adults at the time of the divorce). Husband is a doctor and wife worked at his clinic, which had five locations throughout Texas. In 2007, the parties undertook a business plan to increase their real estate property, accumulating significant property and debt. In addition to their large medical business, husband was responsible for creating a warren of business entities which primarily dealt in real estate. Unfortunately, in 2010, husband suffered a stroke which resulted in him being unable to work for a lengthy period. Wife became his sole caregiver but it was exhausting and trying for her. During his recovery, Husband was abusive to the wife. Their marriage began to deteriorate. Meanwhile, wife sold some of their real estate to cover expenses. In 2012, wife attempted suicide and then shortly thereafter filed for divorce. At some point before trial, one of the Millers’ business partners was indicted for misappropriating funds from a former employer. Despite the indictment, husband continued to trust the partner with the management of one of their development companies.
The bench trial was held over twelve days spanning nearly a year (!), from June 3, 2015 to May 18, 2016, during which time the community estate changed which resulted in updated proposed property divisions. A final decree was signed on December 20, 2016. Husband’s MNT was denied. The trial court’s FF/CL included findings that the wife had little to no future earnings capacity, that she suffers from severe depression, husband was obstructionist during the divorce, he failed to pay court-ordered support, he had the ability to earn substantial income after the divorce, wife was awarded property with little risk, such as cash and retirement accounts, husband was awarded most of his medical practice, and that husband committed fraud on the community to the tune of $189,672.34. The court awarded 49.28% of the community to wife and 50.72% to husband.
For some reason, the case was transferred from the Austin Court of Appeals to the 14th, meaning the 14th would use Austin’s precedents.
Husband’s issues on appeal included the trial court erred by finding the fraud on the community estate, arbitrarily reconstituting the estate absent evidence of damages, ordering a business not party to the divorce to pay wife, and making an unequal property division in a no-fault divorce.
In his first issue, husband made a number of complaints as to the trial court’s fraud finding:
(1) the presumption of fraud on the community never arose because the community character of the property never changed; (2) the disposition of community property was fair to Linda; (3) no fiduciary duty existed between Terry and Linda during the divorce; (4) Linda was uninformed by personal choice in the matters of the community estate; and (5) the community estate remained monetarily whole.
Husband alleged no presumption of constructive fraud arose because community funds were merely transferred to various entities within the community estate for the purpose of maintaining and preserving the community estate and thus the evidence was legally and factually insufficient. At trial, wife presented evidence of a lot of transactions among the various real estate and clinic entities, some of which were in the six figures. The trial court determined that the amount owed to the community estate was $189,672.34, but did not specify the basis for this amount. The COA found that husband’s testimony did not provide clear and compelling explanations for a number of sizable transactions. Also, husband continued to allow the indicted business partner to manage one of their companies, which was valued at over $1 million. The COA also cited other evidence at trial before finding that the trial court, as trier of fact, had sufficient evidence before it to make the determination it did.
Husband also argued that he rebutted the presumption of constructive fraud because most, if not all, of the community estate (worth about $7.6m) was his special community property and that gave him the right to control and dispose of it subject to his sole management. But the COA noted that the spouse’s disposition of his special CP must still be fair to the other spouse and the disposing spouse has the burden of showing the fairness of the dispositions. Husband testified that after his stroke he, inter alia, relied on the advice of professionals and business partners. However, the credibility of his testimony was subject to the trial court’s determination and the trial court could reasonably give husband’s testimony on this point less weight.
Husband also argued that during the divorce, which spanned four years, he did not owe wife a fiduciary duty and thus did not commit fraud on the community. The COA countered that fraud on the community is not an independent tort, but is part of the division of the estate. Courts have recognized fraud on the community when the wrongful disposition of CP occurs during the divorce.
Husband argued that wife testified at trial that she stayed out of the financial affairs even though she had access and means to learn about and participate in the management of property and thus she was “uninformed by personal choice” in matters of the community estate and therefore the trial court erred in finding constructive fraud. The COA noted husband failed to cite any authorities to support this argument. Additionally, there was conflicting evidence concerning the level of wife’s desire to be involved in their business affairs and thus the issue was a matter for the trial court to resolve. But even so, “We are aware of no Texas case holding that the law imposes a requirement of diligence on the non-managing spouse, particularly when a relationship of trust and confidence exists between spouses as to that portion of the community property controlled by the managing spouse.”
Finally, husband argued the trial court abused its discretion in reconstituting a community estate based on assets that were not lost and a community estate that remained “monetarily whole.” Husband argued that during the marriage, he reduced the community’s indebtedness and increased the value of retirement funds. He argued wife did not present evidence that husband engaged in any action that was fraudulent or in breach of his fiduciary duty. The COA found the trial court was within its discretion to not accept husband’s “self-serving testimony” at trial. Husband’s first issue was overruled.
In his second issue, husband argued the trial court erred in finding actual fraud, but as the trial court found only that husband had committed “actual or constructive fraud” and the COA affirmed the constructive fraud finding, it did not need to reach husband’s second issue.
In his third issue, husband alleged wife failed to establish any damages caused by his fraud on the community. This argument, the COA held, is essentially the same as his argument that the community remained monetarily whole and rejected it.
In his fourth issue, husband argued that the trial court erred by including an order in the decree requiring the clinic, which was not a party to the divorce, to pay wife $100,000. The COA found he did not raise this issue at the trial court level and it was thus waived. But even on the merits, the COA noted that the decree does not order the clinic to do anything; it requires husband to make a payment of $100,000 from a bank account in the name of the parties for clinic business (which was a community asset).
In his fifth issue, husband argued the trial court abused its discretion in making a “grossly disproportionate division” in wife’s favor when no fault grounds were proven or found in the trial court’s ruling. As you recall, wife was awarded 49.28% of the community estate and husband was awarded 50.72%. For some reason, husband argued that the values adopted by the court actually result in a 59/41 division but, the COA said, he “does not explain the basis of his conclusion that the trial court’s division actually resulted in a 59-41 division.” The issue was overruled and the trial court was affirmed in full.
Originally published by Beth Graham.
The Supreme Court of the United States has granted certiorari in another arbitration case. In Henry Schein, Inc. v. Archer and White Sales, Inc., No. 17-1272, a dental equipment distributor, Archer, filed a lawsuit against a dental equipment manufacturer and distributor along with its wholly-owned subsidiaries alleging the companies committed federal and state antitrust violations. The case was referred to a magistrate judge and the defendants filed a motion to compel arbitration based on a dealer agreement that Archer entered into with a predecessor in interest for one of the companies.
Following a hearing, the magistrate judge issued a Memorandum Order holding that: (1) the incorporation of the AAA Rules in the arbitration clause clearly evinced an intent to have the arbitrator decide questions of arbitrability; (2) there is a reasonable construction of the arbitration clause that would call for arbitration in this dispute; and (3) the Grigson equitable estoppel test, which both sides agree is controlling in their dispute, required arbitration against both signatories and non-signatories to the Dealer Agreement.
The district court vacated the magistrate judge’s order and held that the court could decide the question of arbitrability, and that the dispute was not arbitrable because the plain language of the arbitration clause expressly excluded suits that involved requests for injunctive relief. The court declined to reach the question of equitable estoppel.
On appeal, the Fifth Circuit affirmed the district court’s decision stating “it had the authority to rule on the question of arbitrability and the claims at issue were not arbitrable.” The defendants then filed a petition for certiorari with the U.S. Supreme Court.
On Monday, the Supreme Court agreed to consider the dispute in the upcoming October 2018 term. The Question Presented in the case is:
Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”
The high court’s opinion will resolve a split among the Circuit Courts of Appeal regarding whether a court may decide the issue of arbitrability in situations where the arbitration claim is groundless.
Please stay tuned to Disputing for future developments in this case!
H/T to Mark Kantor.
Originally published by Drew York.
Before Duncey’s Caps, Inc. hired Bud Dunop as its new human resources manager in 2018, all of Duncey’s human resources issues were handled by Dot Uris. One of Dot’s responsibilities was to have all new employees complete their new hire paperwork, which included an agreement for the employee and Duncey’s to arbitrate any employment-related disputes. The arbitration agreement included a signature block for Dot to sign on behalf of Duncey’s. Instead of signing each employee’s agreement, Dot just placed it in the employee’s file.
One day Don “Crash” Gordon broke his foot when he walked around the corner of the warehouse and stepped into a bucket that another Duncey’s employee placed on the floor. Crash filed a lawsuit against Duncey’s when it failed to cover his medical bills. Duncey’s attorney filed a motion to compel arbitration, attaching a copy of the arbitration agreement that Crash signed but Dot did not. Will Duncey’s be able to get this lawsuit sent to arbitration?
Yes. Recently, the U.S. Court of Appeals for the Fifth Circuit reversed the lower court’s order compelling arbitration where the arbitration agreement that was only signed by the employee. The court was persuaded by three issues present in the arbitration agreement itself:a statement in the agreement that read “by signing this agreement the parties are giving up any right they may have to sue each other,” a clause prohibiting modifications unless they are “in writing and signed by all parties,” and a signature block for the employer.
Because the arbitration agreement contained language that the parties (not just the employee) needed to sign it to give it effect and the employer failed to sign, the Fifth Circuit invalidated the agreement and found that the agreement had not been executed according to its terms.
The employer argued that it wasn’t required to sign the agreement because the arbitration agreement included a clause informing the employee that continued employment constituted acceptance of the arbitration agreement. That argument was based on similar language the Texas Supreme Court relied on in forcing an employee to arbitrate where the agreement was not signed by either party. The federal court of appeals rejected that argument, finding the arbitration agreement before it was flawed because the execution element necessary to create an enforceable agreement was missing. The court also disagreed that the language about continued employment bound the employee to arbitrate. Unlike the language in the case before the Texas Supreme Court, here the language said continuation of employment served as “consideration” for the agreement, not that commencing work constituted acceptance and bound the parties to arbitrate.
Based on this case law, the court should deny Duncey’s motion to compel arbitration.
Employers who read the federal court of appeals decision, or this blog, are probably reviewing their form employment agreement right now, and for good reason. Words in agreements matter. If the language indicates that both parties must sign the arbitration agreement to be enforceable, then employers need to ensure that someone signed for the company.
Shout out to Fred Gaona, a member of Gray Reed’s employment law section, who recently wrote a client alert on this issue.