Dallas Bar Association
HEADNOTES
Focus Real Property/Construction Law
April 2015 Volume 40 Number 4
Magna Carta: Symbol of Freedom Under Law Keynote Speaker Justice Eva Guzman
to preside over the 309th Family Court in Harris County. In 2001, she was appointed to the Houston-based Fourteenth Court of Appeals, which serves a ten-county area. Justice Guzby Eugenie Robichaux Rogers man was appointed to the Supreme Court of Perhaps the first document embodying the Texas in 2009 and subsequently elected to a concept of the rule of law, Magna Carta occu- full term of service in 2010, making her the pies a unique place in history as the starting first Hispanic woman elected to state-wide point and inspiration for many indispensable office in Texas. In over a decade of service as rights, including due process, habeas corpus an appellate judge, she has ruled on over 2,000 and trial by jury. Its most famous civil and criminal appeals and has provision proclaims: “No free authored hundreds of published man shall be seized or imprisoned, opinions. or stripped of his rights or posJustice Guzman is deeply sessions . . . except by the lawful committed to the principles of judgment of his equals or by the freedom under law that will be law of the land.” Since the sealthe topic of this year’s Law Day. ing of Magna Carta in 1215, its She serves as the Texas Supreme principles have been considered Court’s liaison to the Commisamong the most important guarsion on Judicial Conduct, the antees of freedom and equality. Texas Access to Justice FoundaThese principles have tration and the Texas Access to Jusversed continents, generations tice Commission. She also serves and civilizations as an inspiraas Chair of the Supreme Court’s tion for democracy. Across the Permanent Judicial Commission Atlantic, Magna Carta’s concepts Honorable Eva Guzman for Children, Youth and Famiwere further refined and explored by many of lies. Justice Guzman is a member of the Board this country’s most important political think- of Trustees for The Center for American and ers and leaders, including Thomas Paine, Ben- International Law and a member of the Board jamin Franklin and Thomas Jefferson. Their of Trustees of her alma mater, South Texas ideas, inspired by Magna Carta, ultimately were College of Law. In 2014, Justice Guzman was memorialized in the formative documents of honored by South Texas College of Law with American government. In 1948, Eleanor Roo- its Alumni Impact Award. Justice Guzman also sevelt introduced the Universal Declaration serves on the Board of Visitors of Duke Uniof Human Rights as “the international Magna versity School of Law. She has been an elected Carta of all men everywhere” when speaking member of the American Law Institute since to the United Nations Assembly. Nelson Man- 2005 and has served as adjunct faculty at the dela, in his famous Statement from the Dock University of Houston Law Center and the in the Rivonia trial of 1964, identified Magna American Bar Association Family Law Trial Carta as a seminal document inspiring his Advocacy Institute. beliefs in the ideals of a democratic, free society. Justice Guzman has been recognized by As we mark the 800th anniversary of Magna numerous organizations for her devotion to the Carta, the Dallas Bar Association invites you to law and her achievement in the profession. In participate in Law Day, May 1, 2015, celebrat- 2014, she received both the Women and the ing this year’s theme—“Magna Carta: Symbol Law Section of the State Bar of Texas Sara T. of Freedom Under Law.” The words of the Law Hughes Lawyers of Achievement Award and Day theme are drawn from the inscription on the Association of Women Attorneys’ “Prethe Magna Carta Memorial at Runnymede, mier Women in the Law Modern Trailblazer” which the ABA erected in 1957. Please join us award. The National Hispanic Bar Association to commemorate the “Great Charter of Liber- honored Justice Guzman with its Latina Judge ties” and reflect on our great heritage of liberty, of the Year Award in 2009. justice and equality under law. Justice Guzman is honored to be a part of the This year, the Dallas Bar Association will DBA’s celebration of Law Day. The luncheon continue its tradition of celebrating Law Day begins at noon on Friday, May 1, at the Belo with a luncheon honoring the judiciary, featur- Mansion. Doors open at 11:45 a.m. Tickets are ing keynote speaker the Honorable Eva Guz- $40 per person or $400 per table and are available man, Justice of the Supreme Court of Texas. online at www.dallasbar.org. For more informaJustice Guzman is a graduate of the Uni- tion, contact Mary Ellen Johnson at mjohnson@ HN versity of Houston and South Texas College of dallasbar.org or (214) 220-7474. Law. She also holds an LL.M. from Duke University School of Law. Justice Guzman’s career Eugenie Robichaux Rogers is an associate with Baker & McKenzie LLP on the bench began in 1999 when she was and a member of the DBA’s Publications Committee. She can be reached appointed by then-Governor George W. Bush at eugenie.rogers@bakermckenzie.com.
Focus
Real Property Law
Temporary vs. Permanent Injury to Real Property by Andrew Cox
In Wheeler, Inc. v. Enbridge Pipelines (East Texas), L.P., 57 Tex. Sup. Ct. J. 1465, 2014 WL 4252273, (Tex. Aug. 29, 2014), the Texas Supreme Court has brought much-needed clarity to a relatively murky area of real property law: whether an injury to real property is temporary or permanent. On their ranch in Shelby County, the Wheeler family conveyed an underground pipeline easement to Enbridge. The easement required the pipeline to be installed by underground boring, but Enbridge’s construction contractor mistakenly cut down several hundred feet of trees and bulldozed the ground. The Wheelers sued Enbridge for breach of contract and trespass. Following a jury trial, the trial court entered judgment for the Wheelers for damages representing the cost to restore the ranch to its pre-injury condition. The court of appeals reversed the judgment, holding that the Wheelers waived their damages claim by failing to request a jury question whether the injury to the ranch was temporary or permanent. The Supreme Court reversed, holding that whether an injury to real property is temporary or permanent is a question of law. The Supreme Court concluded that the injury to the Wheelers’ ranch was permanent, and that the appropriate measure of damage was the intrinsic value of the destroyed trees. The Supreme Court articulated several legal principles that should give greater guidance to practitioners and litigants in analyzing real property injury cases. It affirmed that the measure of damage depends on whether the injury is temporary or permanent. In cases of temporary injury, the landowner is generally entitled to recover the cost of restoration or replacement, plus loss of use of the property in the interim. By contrast, where the injury is considered permanent, the proper measure of damage is normally the property’s loss in market value. The court recognized the so-called “economic feasibility exception.” This exception applies when the injury to land is temporary but the cost of repairs exceeds the diminution of the property’s value to the point where repairs are not economical. The injury is therefore deemed permanent, and the loss in market value becomes the measure of damage. The court clarified that these rules apply in property injury cases
based on contractual as well as tort liability. Importantly, the court held that whether an injury to land is temporary or permanent is a question of law, with the caveat that disputed underlying facts relevant to the determination may be submitted to the jury. The court also fashioned wellneeded definitions for permanent and temporary injuries to land. It defined an injury to real property as permanent if “(a) it cannot be repaired, fixed, or restored, or (b) even though [it can], it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated.” By contrast, it defined an injury to real property as temporary if “(a) it can be repaired, fixed, or restored, and (b) any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty.” One holding that appears to raise more questions than it answers involves the “intrinsic value of trees” measure of damage. The court held that this measure of damage applies where the injury is permanent, but the land has sustained no, or merely nominal, diminution in market value. The court explained that “the intrinsic value of a tree lies in its ‘ornamental (aesthetic) value and its utility (shade) value.’” The jury found the intrinsic value of the Wheelers’ trees was $288,000, and the cost to restore the ranch to its pre-injury condition was $300,000. The court forbade recovery of the latter sum under the economic feasibility exception, but allowed recovery of the former under the intrinsic value of trees exception. It is at least questionable whether the court’s application of the intrinsic value of trees exception was inconsistent with its application of the economic feasibility exception. The court also did not clarify precisely how intrinsic value damages may be proved. Nevertheless, the Wheeler decision should assist litigants and courts to analyze whether a property injury is temporary or permanent in a broad range of cases, whether the property involved is a rural ranch or urban lot, and whether the theory of liability is HN based in contract or tort. Andrew Cox is a partner at Burford & Ryburn, L.L.P. He can be reached at acox@brlaw.com
Inside 7 Improving the Landowner’s Odds in Eminent Domain Cases 11 Considerations for Hiring a Forensic Genealogist 13 8 Ways to Reduce Your Ad Valorem Tax Liability
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2 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2015
Calendar April Events FRIDAY CLINICS
APRIL 10-NORTH DALLAS** Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
“What in the World is an FLP?” Christian S. Kelso, Esq. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org.
APRIL 17-BELO Noon
11:30 a.m. D allas Bar Foundation Fellows Luncheon. Recipient: Jim Cowles. Tickets $65/Tables $650. For more information contact ephilipp@dallasbar.org.
Employee Benefits & Executive Compensation Section “The Henkel Case: ERISA Claims for Failure to Properly Withhold Taxes and a Review of the Tax Withholding Rules,” Jim Griffin. (MCLE 1.00)* Solo & Small Firm Section “Handling TROs and Temporary Injunctions in Dallas County District Courts,” David Vassar. (MCLE 1.00)*
Juvenile Justice Committee
DAYL Judiciary Committee
THURSDAY, APRIL 2 Noon
Construction Law Section “Three Years Into It: The Effect of Chapter 151 on Indemnity and Additional Insured Status,” Patrick Wielinski. (MCLE 1.00)*
Family Law Section Board Meeting
FRIDAY, APRIL 3
DBA Offices Closed in Observance of Good Friday
MONDAY, APRIL 6
Tax Law Section “An Interview With, and Best Practices from, a Texas Tax Legend: Robert Davis.” (MCLE 1.00)*
TUESDAY, APRIL 7 Noon
Family Law Section “CPS Policies and Procedures,” Gauthami Vemula. (MCLE 1.00)*
Tort & Insurance Practice Section “Texas Trial Legends Honoree Panel Discussion,” moderated by Hon. Craig Smith. (MCLE 1.50)*
Noon
Alternative Dispute Resolution Section “Your Next Mediation Strategy: Ethical Concerns, Emerging Trends, and Empirical Outcomes,” Don Philbin. (Ethics 1.00)*
Real Property Law Section “Where Are We Now That the TRCCA Has Ridden Off Into the Sunset,” J. Paulo Flores. (MCLE 1.00)*
Peer Assistance Committee
Bench Bar Conference Committee
Summer Law Intern Program Committee
DAYL ACE Committee
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.
Corporate Counsel Section “Wait – What? These Rules Apply to Me? But I’m a Business Attorney, Not a Litigator: Selected Ethical Issues for the Texas Business Lawyer,” Russ Coleman and Tim Denker. (Ethics 1.00)*
Noon
8:00 a.m. Intellectual Property Section (at La Zaranda) “Navigating Ethical Dilemmas Faced by Patent Prosecutors,” moderated roundtable discussions and breakfast. (Ethics 1.00)* La Zaranda, 5000 Belt Line Rd., Suite 850, Dallas. 11:30 a.m. H ouse Committee Walk Through
Sports & Entertainment Law Section “Fighting to Make Movies: From ‘Rocky’ to ‘The Karate Kid’ and Beyond, a Hollywood Veteran Shares His Techniques for Bringing Sports Stories to the Screen,” Oscarwinning director John Avildsen and Sally Helppie. (MCLE 1.00)*
DAYL Foundation Board Meeting
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt. org.
Noon
Criminal Law Section “Helping Clients to TDCJ and After,” Christina Melton Crain. (MCLE 1.00)*
Legal Ethics Committee
South Dallas Clinic “Nuts & Bolts of Criminal Law,” Stephanie Luce and Joseph Mongaras, Jr. (MCLE 1.00)* At UNT Dallas, 7400 University Hills Blvd, Room #138. Park in lot in front of 7400 University Hills Blvd. RSVP to kzack@dallasbar.org.
DAYL Lawyers Promoting Diversity
DAYL Solo & Small Firm CLE. For more information contact cherieh@dayl.com.
Environmental Law Section “Regulating Pot to Save the Polar Bear: Energy and Climate Impacts of the Marijuana Industry,” Prof. Gina Warren. (MCLE 1.00)*
Entertainment Committee “Art Law Update: Survey of Juris Artis,” Jamie Baker, Melissa Eckhause, Andrea Perez and Bill Richmond, moderator. (MCLE 1.00)* Sponsored by the Entertainment Committee.
Noon
Energy Law Section “Common Carrier Legal Issues in the Wake of Denbury,” Marty Averill. ( MCLE 1.00)*
Health Law Section “Environmental Issues Facing Hospitals, Energy Issues and Risks, and Managing Your Needs in an Uncertain Time for Grid Reliability,” Scott Deatherage. (MCLE 1.00)*
Law Day Committee
Non-Profit Law Study Group
Christian Lawyers Fellowship St. Thomas More Society
6:00 p.m. Home Project Committee
WENDESDAY, APRIL 15
6:00 p.m. J.L. Turner Legal Association
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
FRIDAY, APRIL 10
THURSDAY, APRIL 16
Friday Clinic—North Dallas** “What in the World is an FLP?” Christian S. Kelso, Esq. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org. Trial Skills Section “Intergen Advocacy: Communicating With and Persuading the Generations,” Domenic Gianna. (MCLE 1.00)* Professionalism Committee “Raising the Bar: The Positive Impact of Professionalism and Civility in Municipal Courts and Beyond,” Hon. Michael Acuna, Rachel Jones, Randle Scott, Barry Sorrels and Shereen El Domeiri, moderator. (Ethics 1.00)*
Noon
Appellate Law Section “Hitting Close to Home: Appeals of Attorney’s Fee Awards,” Philip Durst. (Ethics 1.00)*
Judiciary Committee “It’s a Generational Thing: How to Communicate Effectively in Today’s AgeDiverse Courtrooms,” John Ansbach. (MCLE 1.00)*
Minority Participation Committee
DAYL Animal Welfare Committee
DAYL Get Involved Luncheon
Christian Legal Society
Dallas Gay & Lesbian Bar Association
FRIDAY, APRIL 17 Noon
Mother’s Day Brunch At the Pavilion at the Belo Mansion
J
Noon
THURSDAY, APRIL 23
9:00 a.m. Jeff Coen Family Law Nuts & Bolts Video CLE (MCLE 6.00; Ethics 2.00)* To register contact perkinsa@lanwt.org.
Mergers & Acquisitions Section “Tort Law’s Continued Intrusion into the M&A Agreement: What To Do About It If Anything,” David Gail and Glenn West. (MCLE 1.00)*
Publications Committee
WEDNESDAY, APRIL 22
WEDNESDAY, APRIL 8
DAYL Elder Law Committee
Business Litigation Section “How to Screw Up a Mediation,” John Degroote, Chris Nolland and John Shipp. (MCLE 1.00)*
Law in the Schools & Community Committee
Noon
International Law Section “The Foreign Corrupt Practices Act and Its Ever More Demanding DOJ and SEC Enforcers: A Report From the Battlefront,” Wes Loegering. (MCLE 1.00)*
Government Law Section “The Promised Land or Land of the Lost?: Day-to-Day Real Estate Issues in a City Attorney’s Office,” Debra A. Drayovitch. (MCLE 1.00)*
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
6:00 p.m. DAYL Board of Director’s Meeting
7:45 a.m. Dallas Area Real Estate lawyers Discussion Group
TUESDAY, APRIL 14
Noon
THURSDAY, APRIL 9
5:30 p.m. Bankruptcy & Commercial Law Section “Bankruptcy Appeals Are No Picnic: A Dozen Things To Pack In Your Basket,” David Parsons and David Klinger. (MCLE 1.00)*
Noon
Noon
DAYL Freedom Run Committee
MONDAY, APRIL 13
“Public Health Emergencies,” Judge Clay Jenkins, Cheryl Camin Murray, Lon Williams and Evie Lalangas, moderator. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
WEDNESDAY, APRIL 1
Noon
Sunday, May 10, 2015
oin us for a culinary tour at the beau�ful Pavilion at the Belo Mansion as you celebrate Mother’s Day. Dine in the ballroom or on the exquisite terrace overlooking the Arts District and enjoy complimentary champagne and mimosas. A boun�ful selec�on of fresh fruit, breakfast breads, chilled seafood sta�on, carved prime rib, omelets and freshly made pancakes and waffles, a variety of pies, cakes and sweets and the ever‐popular children’s buffet. Serving hours from 10:30 a.m. to 2:30 p.m. | Adults: $39.00; Children 6-12: $13.00 Garage parking available ( from Olive Street ) Taxes, gratuities and parking not included Reservations Required by May 6. Credit Card to hold reservation. No-shows will be billed. Call: ( 214 ) 220-0239 or e-mail jgreer@dallasbar.org. Limited seating. Sponsored by the DBA Entertainment Committee.
Friday Clinic-Belo “Public Health Emergencies,” Judge Clay Jenkins, Cheryl Camin Murray, Lon Williams and Evie Lalangas, moderator. (MCLE 1.00)* RSVP to kzack@dallasbar. org. Pro Bono Activities Committee
MONDAY, APRIL 20 Noon
Labor & Employment Law Section “Employment ADR Processes,” Elizabeth Carter and Cecilia H. Morgan. (MCLE 1.00)*
3:30 p.m. DBA Board of Directors Meeting
FRIDAY, APRIL 24
8:45 a.m. Dallas Minority Attorney Program Learn more about business development and practice management for the solo, small firm and minority attorney. RSVP to ahernandez@dallasbar.org. (MCLE 7.00)* Noon
Intellectual Property Law Section “Teva’s Prescription To Cure What Ails Claim Construction – A Bench-Bar Brainstorming Session,” Judge Rodney Gilstrap, Judge Barbara M.G. Lynn, Don Puckett, Bruce Sostek and Scott Breedlove, moderator. (MCLE 1.00)*
DAYL CLE Committee
SATURDAY, APRIL 25
3:00 p.m. DAYL Crawfest: Claws for a Cause at Four Corners Brewery. Tickets online at www. daylcrawfest.com.
MONDAY, APRIL 27 Noon
Computer Law Section “Overview of the Latest, Cutting-Edge Cyber-Attack Vectors,” Chad Pinson. (MCLE 1.00)*
Securities Section “Caution - Speed Bumps Ahead: the Outlook for SEC Enforcement in 2015,” Kit Addleman and Tim Newman. (MCLE 1.00, Ethics .25)*
DAYL Solo & Small Firm Committee
TUESDAY, APRIL 28 Noon
Probate, Trusts & Estates Law Section “Case Law Update,” Prof. Gerry Beyer. (MCLE 1.00)*
American Immigration Lawyers Association
6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, APRIL 29 Noon
DAYL Equal Access to Justice Committee
Municipal Justice Bar Association
THURSDAY, APRIL 30 Noon
Collaborative Law Section “Structured Negotiations: Skipping the Lawsuit – Dispute Resolution for Disability Rights and Beyond,” Lainey Feingold. (MCLE 1.00)*
6:00 p.m. J.L. Turner Foundation Meeting
1:00 p.m. DBA Pro Bono Golf Tournament at Brookhaven Country Club, Dallas, TX
TUESDAY, APRIL 21
FRIDAY, MAY 1
Noon
Franchise & Distribution Law Section “Insomnia, Inc.: Why Your In-House Counsel Can’t Sleep—and How You Can Help,” John Gessner, Christine Johnson and Kelvin Sellers. (MCLE 1.00)*
11:45 a.m. Annual Law Day Luncheon Keynote speaker: Justice Eva Guzman, Supreme Court of Texas. To purchase tickets, visit www.dallasbar.org, or contact mjohnson@dallasbar.org.
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
April 2 0 1 5
D al l as Bar A ssoci ati on l Headnotes 3
R
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4 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2015
Headnotes
President's Column
Is Bigger Really Better? Brad Weber
I have worked at the same law firm my entire legal career. Back in 1986, when I was a summer law clerk, it was a 65-lawyer firm called Rain Harrell Emory Young & Doke. The following summer “Rain Harrell” merged with “Locke Purnell” to form one of the then-largest firms in the Southwest—Locke Purnell Rain Harrell—with a head count of more than 180 lawyers. Over the next 28 years, the “Locke” firm went through three other significant mergers, the latest of which occurred earlier this year when Locke Lord merged with Edwards Wildman Palmer to form a combined firm with more than 1,000 lawyers in 23 cities around the world. The growth of law firms over the past 25 years has been dramatic. Back in 1991, the largest law firm in Dallas was Johnson & Gibbs with 216 lawyers. It ranked among the largest law firms in the U.S. at that time. By the year 2014, there were 14 law firms that each had more than 1,000 U.S. lawyers, and another 68 firms that each had between 500 and 1,000 U.S. lawyers. These head counts do not even include the hundreds of additional lawyers that these firms employ in offices outside the U.S. The reasons for this rapid growth are numerous, including the benefits that flow from expanding geographic footprints into different legal markets, the desire to add groups of lawyers with portable business, and the ability to provide clients with full-service expertise in virtually all areas of the law. For me personally, the growth of Locke Lord has resulted in many “referrals” of antitrust matters from lawyers in our other offices, which provides me with additional opportunities to represent clients from all over the world. But the increased size of law firms also can result in disadvantages, including multi-tiers of management, bureaucratic office procedures, and lawyers who feel they have little or no input into firm decisions. The explosive growth that many law firms have experienced is not unique among the professions. Other professional organizations also have gone through dramatic growth in recent years, including those in medicine and religion, though not necessarily for the same reasons that law firms have strived to grow. This fascinating phenomenon of “mega” law firms, hospital systems, and churches will be the focus of a half-day program at this year’s Conference of the Professions. For those of you not familiar with the Conference of the Professions, it is an annual program co-sponsored by the Dallas Bar Association, the Dallas County Medical Society, SMU Dedman School of Law, the SMU Maguire Center for Ethics & Public Responsibility, SMU Perkins School of Theology and UT Southwestern Medical Center. Now in its 29th year, the Conference brings together members of law, medicine, and theology in the Dallas area to discuss common challenges—ethical and otherwise—facing those professions. I have been fortunate to serve on the Steering Committee for the 2015 Conference, and despite the early 7:30 a.m. start time for our planning meetings, it has turned out to be one of my more enjoyable duties as DBA President. The title of this year’s Conference is “Supersizing the
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Professions: Ethical Issues Facing Mega-Churches, Law Firms and Medical Practices.” The program is scheduled on April 17, 2015, from 8:30 a.m. until noon, at the Texas Scottish Rite Hospital for Children, 2222 Wellborn Street, Dallas, Texas 75219. The keynote speaker will be Dr. Jonathan L. Walton, a scholar of American religion and a Professor at the Harvard Divinity School. Dr. Walton also is a minister at Harvard’s Memorial Church and an expert on televangelism and the growth of mega-churches in the U.S. In addition to Dr. Walton, the Conference will include a panel discussion that focuses on ethical and practical issues facing large law firms, healthcare systems, and faith-based congregations. The panelists include Rabbi David Stern, the Senior Rabbi at Temple Emanu-El, the largest synagogue in the South/Southwest; and Dr. Jim Walton, the CEO of Genesis Physicians Group and the current President of the Dallas County Medical Society. The moderator for the discussion will be Professor Maribeth Kuenzi, an Assistant Professor of Management and Organization at the SMU Cox School of Business. For anyone interested in attending the Conference of the Professions, the cost is $20 for professionals and free for students, which includes a breakfast. You can get more information and register for the Conference at www.eventbrite.com/e/29th-annual-conference-of-the-professions-tickets-10175405913. The topic of mega-professional organizations got me thinking about mega-bar associations, and the Dallas Bar Association certainly qualifies as one. Thanks to the hard work of DBA Membership Coordinator Kim Watson and the Admissions & Membership Committee, the Dallas Bar Association currently has 11,400 members, which makes it the largest local bar association in the State of Texas based on membership numbers. Another number related to our size, which I find even more remarkable, is our membership “penetration” percentage. Based on demographic records from the State Bar of Texas, 68 percent of the licensed lawyers in Dallas County are members of the Dallas Bar Association. To put this into perspective, the penetration percentages for the other large local bar associations in Texas range between 47 percent and 57 percent of all the licensed lawyers in their counties. Because of the DBA’s increased size, we are able to provide services and benefits that many other bar associations cannot provide. These include a wide array of committees and sections that focus on the needs and interests of all lawyers in the Dallas community. Our increased size also results in increased diversity among our members. This includes not only racial diversity, but also diversity based on gender, age, firm size and area of practice. In addition, the DBA benefits financially from its size. Increased membership means increased dues revenue, which helps to fund the operation of our magnificent Belo Mansion and the many philanthropic programs we support. The issue of whether large law firms are better than small law firms certainly is open to debate. Both have their advantages and disadvantages. When it comes to the Dallas Bar Association, though, I think the answer is clear—bigger HN is better.
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Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873
The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.
OFFICERS President: Bradley C. Weber President-Elect: Jerry C. Alexander First Vice President: Rob D. Crain Second Vice President: Michael K. Hurst Secretary-Treasurer: Victor D. Vital Immediate Past President: Scott M. McElhaney Directors: Wes Alost, A. Shonn Brown, Jonathan Childers (President, Dallas Association of Young Lawyers), Laura Benitez Geisler (Chair), Hon. Harlin “Cooter” Hale (Judicial At-Large), Hon. Martin Hoffman, Krisi Kastl, Michele Wong Krause, Monica Lira (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud, Cheryl Camin Murray (At-Large), Courtney Barksdale Perez (At-Large), Bill Richmond (President, Dallas Asian American Bar Association), Ebony Rivon (President, J.L. Turner Legal Association), Mary Scott, Diane M. Sumoski, Robert L. Tobey (Vice-Chair) and Aaron Tobin Advisory Directors: Stephanie Gause (President-Elect, Dallas Association of Young Lawyers), Rocio Cristina Garcia (President-Elect, Dallas Hispanic Bar Association), Emmanuel Obi (President-Elect, J.L. Turner Legal Association), and Monika Sanford (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Wm. Frank Carroll, Leon Carter, John Jansonius and Florentino A. Ramirez HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Tina DeRobertis, Annette Planey, Jessica D. Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Jared Slade and Meghan Hausler Vice-Chairs: Paul Clevenger and Keith Pillers Members: Timothy Ackermann, Jerry C. Alexander, Vincent Allen, Natalie Arbaugh, Jody Bishop, Lisa Tomiko Blackburn, Jillian Bliss, Jason Bloom, Andrew Botts, Lance Caughfield, Chhunny Chhean, Stephen Clarke, Shannon Conway, Joel Crouch, David Dummer, Christopher Elam, Alexander Farr, Daniel Felz, Dawn Fowler, Robin Ghio, Basheer Ghorayeb, Kimberly Gonzalez, Andrew Gould, Susan Halpern, Jeremy Hawpe, Zachary Hilton, Ezra Hood, Mary Louise Hopson, Michael K. Hurst, Ashley Johnson, Amanda Kelley, Sara Krumholz, Margaret Lyle, Thomas Maddrey, Orly Mazur, Jodi McShan, Ethan Minshull, Paige Montgomery, Jessica Nathan, Jeffrey Novel, Eugene Olshevskyy, Mason Parham, Aimee Pingenot, Kirk Pittard, Laura Anne Pohli, Lisa Prather, Michelle Reed, David Ritter, Carl Roberts, Lantis Roberts, Eugenie Robichaux, Joshua Sandler, Chandrika Shori, Micah Skidmore, Stefan Smith, Bradley Smyer, Thad Spalding, Elizabeth Stanley, John Stevenson, John Ting, Paul Tipton, Pryce Tucker, Peter Vogel, Tracey Wallace, Brad Weber, Philip Worley DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Kimberlynn Taylor Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karina Sanchez, Monique Scott Program Assistant: Patsy Quinn Secretary: Ellie Pope Copyright Dallas Bar Association 2015. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@ dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion.
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April 2 0 1 5
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Real Property/Construction Law
Considerations Before the Next Outbreak by Mark McPherson
While the media rightly focused on the people infected with Ebola during the limited outbreak in Dallas last October, environmental lawyers became curious about the affected properties. In cases of infectious diseases, the government has the statutory right to take control of contaminated real property, decontaminate it as it sees fit and deliver it back to the owner or, in the case of personal property, destroy it. At the government’s discretion, the property owner may be liable for the decontamination or disposal costs. What rights do owners have when their real and personal property is, or may be, contaminated with a highly infectious disease, such as Ebola, and the related biohazardous waste? The answer is relevant not just to future outbreaks of any type of infectious disease, but also to forms of bioterrorism that intentionally unleash infectious disease. Here is how a case begins. A test result indicates someone (a Carrier) has tested positive for the Ebola virus. Officials begin tracing who the Carrier has contacted and where the Carrier has been during the time they were contagious. The Carrier’s residence is decontaminated, as is Dallas Presbyterian Hospital after treating each Carrier. Identifying other properties or objects for decontamination is more subjective. The standard is reasonable cause to believe that property is or may be infected or contaminated with a communicable disease. Other properties are cleaned when the tracing process indicates the likely presence of the Carrier’s bodily fluids, such as the Carrier’s workplace or a retail store.
Do not interfere with a property investigation. The Commissioner of the Texas Department of State Health Services, an employee of that Department or a health authority (e.g., the Dallas County Department of Health) has the right to enter, inspect and investigate property suspected to be contaminated with an infectious disease. Interference with this activity is a Class A misdemeanor crime. If a person refuses to voluntarily cooperate, the health authority can issue a compliance order. If a person fails or refuses to comply with a compliance order, the authority can file a lawsuit in local district court and obtain a court order mandating compliance. If the authority files a lawsuit, the defendant must pay all expenses of implementing control measures, plus court costs, storage and other justifiable expenses. The court may require the defendant to execute a bond in an amount set by the court to ensure the performance of any control measures, restoration or destruction ordered by the court. But owners have certain rights and opportunities to protect their property. Texas law authorizes a person investigating a property for contamination to take samples of materials present on the premises, including soil, water, air, unprocessed or processed foodstuffs, manufactured clothing, pharmaceuticals and household goods. The person who takes a sample may reimburse or offer to reimburse the owner for the materials taken, for the amount of the actual monetary loss to the owner. Document what is taken and its value. The government must also offer a corresponding sample of material to the
person in control of the premises for independent analysis. These independent analyses may become key evidence very helpful to owners for several reasons. First, an owner may want to obtain a release of the property from quarantine sooner than the government may otherwise want. There is a process available to pursue this release, but owners will need evidence, and analyses of samples may be key. Second, an owner may want to select a different decontamination process than the government initially determines. Third, an owner may need to prove that technically feasible control measures are available. A health authority may order the person who owns or controls the property: (1) to destroy the property, other than land, in a manner that disinfects or decontaminates the property to prevent the spread of infec-
tion or contamination; (2) if the property is land, to securely fence the perimeter of the land or any part of the land that is infected or contaminated; or (3) to securely seal off an infected or contaminated structure or other property on land to prevent entry into the infected or contaminated area until the department or health authority authorizes entry into the structure or property. Owners may need to defend against efforts to impose one of these three control measures. Some U.S. city had to be the first to confront an infectious disease outbreak, and the silver lining for Dallas is that our disaster relief and health services leaders began to learn how to balance enforcement with compassion and HN practicality. Mark McPherson is a solo practitioner whose practice focuses on environmental law. He can be reached at mark@ texasenvironmentallaw.com.
2015 Conference of the Professions Supersizing the Professions: Ethical Issues Facing Mega-churches, Law Firms and Medical Practices Friday, April 17, 2014, 8:00 - 11:30 a.m. at Texas Scottish Rite Hospital, Dallas Keynote Speaker: Jonathan Walton, Ph.D., D.Min, Harvard Professor Religion and Society Panelists: David Stern, Jim Walton and Maribeth Kuenzie, moderator Fee: $20/per person. Register online at: www.eventbrite.com/e/ 29th-annual-conference-of-the-professions-tickets-10175405913?ref=eweb
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
A pri l 2015
Real Property/Construction Law
The Ominous Certificate of Merit for Professional Service Claims by Melanie Okon and Kevin Muenster
Chapter 150 of the Texas Civil Practice and Remedies Code requires a party asserting claims “arising out of the provision of professional services” by a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices to file with their complaint an affidavit commonly known as a “Certificate of Merit” (COM). This affidavit must be signed by an individual that (1) is licensed or registered in Texas, (2) is competent to testify, (3) holds the same professional license or registration as the defendant, (4) is knowledgeable in the area of practice of the defendant and offers testimony based on the affiant’s knowledge, skill, experience, education, training, and practice, and (5) is actively engaged in the practice of architecture, engineering or surveying. The affidavit must also specifically set forth, for each theory of recovery alleged, the negligence or other action, error or omission of the licensed or registered professional involved in providing the professional service rendered and the factual basis for each such claim. The purpose of a COM is to provide a
basis for the trial court to determine—at the outset of the case—whether a party’s claims are frivolous. However, a COM is not required in every case in which a licensed or registered professional is named as a defendant. For example, a suit against an engineer operating a side business of mowing lawns premised upon an act done in the course of providing those services does not require a COM under the statute. Rather, it is only when the suit “implicates a [professional’s] education, training, and experience in applying special knowledge or judgment” that a COM is required. In determining the nature of a party’s claims with respect to Chapter 150, Texas courts compare the substantive allegations against the professional to the applicable statutory definition of the “practice of architecture” or “practice of engineering” to determine whether a COM is required. When a COM is required, it is crucial that the COM fully comply with the statute and be timely filed. However, in describing the “factual basis” of a claim, a plaintiff is not required to “marshal all of its evidence,” explain the law to the trial court or provide “operative facts other than the professional errors and omissions” committed by the defendant. Similarly, a COM does not have to identify “how or why” the
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errors occurred. Instead, the statute simply requires a COM to “describe the facts giving rise to the claim.” Finally, nothing in Chapter 150 requires a COM to address causation nor does it preclude a defendant from later challenging the sufficiency of the plaintiff’s evidence or the admissibility of the affiant’s opinions should the affiant be designated as a testifying expert. (Signing a COM does not automatically render an affiant a testifying expert.) As for timing, the statute requires that the COM be filed contemporaneously with the plaintiff’s original petition unless the statute of limitations will expire within 10 days of the date the petition is filed, and the plaintiff alleges he is unable to secure a COM within that period of time. In those cases, the plaintiff generally has 30 days from the filing of suit to supplement his pleadings with a COM. The true teeth of the statute can be found in Section 150.002(e), which mandates dismissal of any action when the COM requirements are not met. Texas courts have unequivocally warned that a plaintiff’s “failure to file a certificate of merit with the origi
nal petition cannot be cured by [a subsequent] amendment.” However, Texas courts are currently split as to whether the failure to comply with the COM statute requires a dismissal with or without prejudice. The San Antonio Court has held that a dismissal is effectively with prejudice, thereby precluding a plaintiff from curing COM deficiencies by simply re-filing a previously dismissed action. The Dallas Court of Appeals has ruled the opposite: that a dismissal may be without prejudice and a plaintiff can re-file a subsequent action following dismissal. Under the statute, any order granting or denying a motion to dismiss is immediately appealable as an interlocutory order. The failure to comply with the COM requirements in cases involving licensed or registered professionals can be devastating to a plaintiff’s case. Therefore, a working familiarity of the requirements of Chapter 150 is a must for every practitioner representing cli HN ents in the construction arena. Melanie Okon and Kevin Muenster are partners in the law firm of Estes Okon Thorne & Carr PLLC and can be reached at mokon@ estesokon.com and kmuenster@estesokon.com, respectively.
SAVE THE DATE! LAW JAM 5
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A pril 2 0 1 5
Focus
D al l as Bar A ssoci ati on l Headnotes 7
Real Property/Construction Law
Improving the Landowner’s Odds in Eminent Domain Cases by Tyler Milton, Matt Hurt and Jody Sodd McSpadden
It is probably lazy to say that eminent domain is like poker, but in some ways it is. And, like poker, eminent domain litigation can be a game of probabilities, with the odds beginning largely in the condemnor’s favor. Start with the understanding that appraisals can be quite subjective as the same taking will result in a wide range of value opinions. Therefore, attorneys and their experts play a critical role in counseling condemnee landowners. Last year, of the 1,482 properties that were, according to the Federal Highway Administration, acquired for Texas highways, only 22 percent were acquired by condemnation. Presumably, if most properties are acquired before condemnation is initiated, they are likely acquired for values that are at or near the condemnor’s appraisal. That result satisfies the condemnor’s obvious goal of acquiring the properties as quickly and cheaply as possible to the detriment of the condemnee, who must choose between accepting a low appraisal or defending a condemnation lawsuit. Thus, most landowners accept the low appraisal and take the money. It is unfortunate because, where the right questions are asked, the odds of materially increasing the landowner’s recovery (even when including litigation costs) can be shifted in favor of the landowner. Assuming the taking is Constitutional, the most important question is: what is the highest and best use of the property? “Highest and best use” means the lawful use that will result in the greatest financial return from the property over a period of time. For example, you could not contend that a 70-story office tower is the
highest and best use of vacant property in Mansfield; but, in 2008, you might have asserted that the property was best used as a valuable drill site given the prolific gas production in that area. The significance of highest and best is that it drives market data selection and eventual compensation opinion. The highest and best use of an improved tract will often be the existing use. On the other hand, the highest and best use of an unimproved tract requires more thought: • Is the property more valuable as a single, larger tract or as multiple, smaller tracts? • Is the size of the tract that should be valued for purposes of the condemnation something less than the entire property? • Does the highest and best use differ from the local municipality’s future land use plan or current zoning? In analyzing the property remaining after the taking (the “remainder”), a landowner’s team must be assiduous in comparing the property’s pre-taking functionality with that of the remainder: • Is the remainder’s shape as functional as the property’s pre-taking shape? • Is there sufficient access to the remainder? • Do drainage or grade issues result from the taking? • Is there sufficient separation between any buildings and the new right of way? • Does the remainder conform to the zoning in all respects? • Does the remaining parking satisfy market demand (irrespective of zoning)? As you analyze non-highway takings for projects like natural gas pipeline or overhead electric transmission easements, there are even more questions a landowner must resolve:
• Is the condemnor’s written approval required before constructing improvements within the easement? (it almost always is) Is this approval in the condemnor’s sole discretion? (many times, yes) • Will a post-taking, separate encroachment agreement be required (in addition to the original easement agreement) if the owner wants to construct improvements (e.g., landscaping, utility crossings, parking lots, or driveways) within the easement? (often, yes) • What are the condemnor’s separate encroachment/construction requirements? • Are parking lots allowed within the easement? • Will the condemnor condition approval of any encroachments/improvements within the easement on the landowner’s agreement to indemnify the condemnor? If so, will the landowner be required to indemnify the condemnor against damages resulting from the condemnor’s own acts and omissions? (sometimes)
• Who will pay to repair the landowner’s improvements constructed within the easement after the taking should they be damaged by the condemnor? (often, the landowner) Continuing with the poker analogy, any settlement made without the answers to these questions can leave the landowner busted and without compensation sufficient to offset the damage caused by the taking. Conversely, when the landowner resolves the questions above, among others, before reaching an accord with the condemnor, she will better understand the full scope of the taking and improve her odds at increasing her compensation. Put another way, the landowner would be in a better position to imitate the imitable Kanye West, who wrote, “I ain’t play the hand I was HN dealt; I changed the cards.” Tyler Milton, Matt Hurt and Jody Sodd McSpadden are partners at Dawson & Sodd, LLP, and may be reached at tyler@dawsonsodd.com, matt@dawsonsodd.com and jody@ dawsonsodd.com, respectively.
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Kleiman Lawrence Baskind Fitzgerald LLP
Attorneys and Counselors 214-265-7400 phone 8350 North Central Expressway, Suite 650, Dallas TX 75206
Representing commercial and residential builders, owners, homeowners, contractors, subcontractors, sureties and suppliers in construction transactions and disputes, including mediation, arbitration and litigation. David Kleiman and Laird Lawrence, the firm’s construction/surety lawyers, both: • Are past chairs of the Dallas Bar Construction Law Section • Currently serve as neutrals on the American Arbitration Association’s construction roster • Have been recognized for many years as “Texas Super Lawyers” • Are A/V rated by Martindale-Hubbell
From drafting contracts to responding to bond claims to litigating multi-party construction disputes, David and Laird are the “go-to” attorneys.
www.klbf.com Kleiman Lawrence Baskind Fitzgerald LLP is a certified Women’s Business Enterprise.
8 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2015
Drafting Orders and Judgments: Two Simple Principles By Stacy Obenhaus
Be precise and keep it simple. Those are two solid, practical principles for drafting proposed orders and judgments in a civil case. First, be precise, so that all parties and future courts can readily determine the specific relief granted. For a typical order, you do this by: (a) using the exact title of the motion being granted (and perhaps add a docket number or date of filing), (b) plainly stating that the motion was granted, or denied, or granted in part as follows . . . ; and (c) separately, specifically setting out the precise relief being granted—e.g., that the trial setting of August 12 is continued, and the trial is now set for November 15; that defendant Alamo Corporation, within 10 days from the date this order is signed, shall serve sworn answers to Plaintiff ’s First Set
of Interrogatories Nos. 12, 14, and 22; that Lone Star Company shall recover nothing on its fraud claims. There are many advantages to being precise. You might be in a case where multiple parties have filed separate motions, cross-motions, and amended motions for summary judgment. Unless the order names the motion by its exact title and date, the order may deny the wrong motion. If the order fails to specify the discovery requests to be answered, you may have difficulty enforcing disobedience by contempt. These mistakes usually do not occur with final judgments, because lawyers are usually pretty focused at that point on being specific about the relief. It is the run-of-the-mill discovery or procedural orders that get lost in the shuffle, or drafted at the last minute. One way to address this problem is this habit: always draft a proposed order, even
if local rules do not require one, and always draft it first, before you start drafting your motion. That practice can often help you focus your thinking on your motion, too. When you have finished the latter, go back to the proposed order to see if you are hitting the target, or if you need to rethink the relief you are requesting. Second, keep it simple. Generally, you want your signed order or judgment to be easy to read, easy to use. So if it is just a procedural order, then use a shortened caption. Try to keep it all on one or two pages, which you can do if you eliminate legalese, and do not say the same thing over and over. For example, there is no need to say all this—from a recent proposed judgment I reviewed: “Lone Star Corporation shall have and recover from Alamo Company and Alamo Company shall pay to Lone Star Corporation the sum of $ . . .” You recover the same amount of money if the judgment says: “Lone Star Corporation shall recover $ . . . from Alamo Company.” And the order or judgment does not need to say: “ordered, adjudged and decreed.” The court’s order will be just as effective if it says, simply: “This court rules as follows: . . .” and goes on to state what motion was granted or denied, and what relief is being granted. But if you do feel the need to say “ordered, adjudged and decreed,”
then just say it once! Eliminate needless recitals—i.e., where the record adequately reflects what occurred. So do not recite who appeared at the hearing and argued, if the reporter’s record will show that. Indeed, to be an effective order the order does not necessarily have to have any recitals. In fact, recitals can get you in trouble if you are careless with them. If the order’s recital says the court considered a paper filed after some deadline, the usual result is an implied ruling granting leave to file that paper late. If a summary judgment order recites the court considered “the evidence filed herewith” the court is generally deemed to have impliedly overruled any objections to that evidence. There is no question that some orders and judgments cannot be made simple. Declaratory relief may be too complicated; a temporary restraining order must state the reasons for its issuance; corporate defendants can have long names; multiple plaintiffs cannot always recover jointly, etc. But if the order or judgment spells out with sufficient precision the relief granted or denied, you do not need a lot of language to make an effective order. So be precise, and you can keep HN it simple. Stacy Obenhaus is a senior attorney at Gardere Wynne Sewell LLP. He can be reached at sobenhaus@gardere.com.
Professionalism Tip I will advise my client of proper and expected behavior. Find the complete Creed online at http://txbf.org/texas-lawyers-creed/. Excerpt from the Texas Lawyers Creed
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A pril 2 0 1 5
D al l as Bar A ssoci ati on l Headnotes 9
Vouching-In: Shifting Liability to Reluctant Indemnitors by J. Keith Webb
What is a party to do when sued or engaged in arbitration on a claim for which it is entitled to indemnity, but is unable to join the indemnifying party to that proceeding? In such a case, preclusive effect may be extended to the nonparty on the ground that it should have participated in the original action. Vouching-in is a mechanism whereby a defendant in a proceeding may notify a nonparty, the vouchee, that a suit is pending against the defendant and that, if liability is found, the defendant will look to the vouchee for indemnity and hold it to the findings in that suit. The vouching mechanism is typically employed only where there is no basis for impleader and no jurisdiction over the third-party defendant, or in arbitrations. Texas law recognizes the procedure of vouching-in under certain circumstances. To successfully vouch in a party, the defendant must notify the would-be vouchee: (a) of the pendency of the suit against him; (b) that if liability is found, the defendant will look to the vouchee for indemnity; (c) that the notice constitutes a formal tender of the right to defend the action; and (d) that if the vouchee refuses to defend, it will be bound in any subsequent litigation between them to the factual determinations necessary to the original judgment. If successfully vouched in and the vouchee rejects defense of the primary defendant, the vouchee may not contest the validity of the primary defendant’s liability to the injured party and may only contest whether notice was sufficient, whether it had a duty to indemnify, and whether the prior judgment was obtained by fraud or collusion. In the second suit, the primary defendant, now plaintiff, has a prima facie case by proving only that he sent a proper vouching notice, that the judgment or award was against him in the earlier action, and that the vouchee has a duty to indemnify him. The vouchee is precluded only as to issues that are the same in both actions. The requirements for successfully vouching in a nonparty suggest obvious risks of conflicting interests that might weigh against invocation of the procedure. For instance, an indemnitor should not be bound by proceedings in which the indemnitee had an incentive to guide any possible defeat in the direction of grounds that would support indemnification and
away from alternative grounds that would not. A conflict of interest exists whenever alternative theories are available, one of which would not support a claim of indemnification. Vouching binds the indemnitor only if the indemnitee adequately represented its interests and if there are not such procedural differences in the later proceeding as to require redetermination of the dispute. The Restatement Second of Judgments, section 57 defines “conflict of interest” in the context of vouching in as existing “when the injured person’s claim against the indemnitee is such that it could be sustained on different grounds, one of which is within the scope of the indemnitor’s obligation to indemnify and another of which is not.” In the event such a conflict exists, the indemnitor cannot properly be called on to take control of the defense of the action. Accordingly, when the claim against the indemnitee is one as to which he and the indemnitor have a conflict of interest, the indemnitor is not estopped in a subsequent action on the indemnity obligation to dispute the existence or extent of the indemnitee’s liability to the injured person. There are two qualifications to this proposition. First, if the indemnitee actively defends the action against him, it is fair to treat him as representing the indemnitor for purposes of determination of issues as to which the two of them do not have a conflict of interest. Second, when the indemnitor has an independent obligation to provide the indemnitee a defense of an action related to the indemnity obligation, the indemnitor who therefore defends the indemnitee should be precluded as to issues determined in the action as to which there is no conflict of interest. Otherwise, however, the indemnitor is not estopped to contest the existence or extent of the liability of an indemnitee whom he could not defend because of the conflict of interest between them. In effect the vouching rules enable a primary defendant to avoid the dilemma of inconsistent judgments by removing that risk from himself and placing a new risk upon the indemnitor. The viability of this procedure, however, is limited in cases where conflicts of interest raise significant due process concerns. HN J. Keith Webb is a shareholder with The Miller Law Firm. He may be contacted at kwebb@tmlfpc.com.
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Meyling “Mey” Ly
Meyling “Mey” Ly is an associate at Littler Mendelson, P.C., where she counsels and defends business clients in employment matters. Her passion for pro bono work comes from being a firstgeneration American whose parents owned and operated their own business, and gave her contracts to read at an early age. Her first exposure to DVAP was assisting with intake at DVAP legal clinics as a law student. Since becoming a licensed attorney, Mey has handled several matters through DVAP, including divorces and drafting wills. She served as Pro Bono Coordinator for her firm, where she coordinated DVAP CLEs and volunteering as a group at clinics. She is also a regular volunteer at DVAP clinics, including the East Dallas Clinic and Veterans’ Clinic. Thank you for all you do, Mey!
Robert Don Collier M a n a g i n g Pa r t n e r MEA DOW S
COLLIER
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
A pri l 2015
State Bar President’s Update
State Bar of Texas Spring Update By Trey Apffel
Welcome to spring! As I start the final two months of my term as State Bar president, I am grateful to Headnotes for this chance to update you on my initiatives and the latest bar news. For the State Bar of Texas, spring is election season. This month, our members will choose between Randy Howry, of Austin, and Frank Stevenson, of Dallas, for the office of president-elect, while Texas Young Lawyers Association members will elect Sam Houston, of San Antonio, or John Shaw, of Fort Worth, as TYLA president-elect. Also, 10 elected members of the State Bar board will see their terms expire in June, including Dallas’s Lawrence Boyd in District 6, Place 2. I encourage you to visit texasbar.com/ election to read about the candidates and to vote online or by mail. Completed ballots will be accepted starting April 1 and
ending at 5 p.m. April 30. The American Bar Association Midyear Meeting came to Houston in February, and I was thrilled to see so many Texas attorneys among the attendees, speakers and awards recipients. Dallas’s Kim Askew, of K&L Gates, a former chair of the State Bar board, made all of us proud with an inspiring acceptance speech at the 2015 Spirit of Excellence Awards, where she was honored for her work in promoting diversity in the legal profession. Fifth Court of Appeals Justice Douglas Lang and Mark Sales, both former Dallas Bar Associa- Trey Apffel tion presidents, also spoke at the conference on the importance of mentoring new lawyers. The Dallas Bar’s successful
25 Years of Mock Trial Service Mock Trial Chair, Steve Gwinn, left, presents the “Outstanding Years of Service Award” to former CoChair Steven Russell for 25 years of volunteer work with the Texas High School Mock Trial Program. The award was given at the State Mock Trial Awards Luncheon, held on Saturday, March 7, at Belo.
Transition to Law Practice Program was the inspiration for the statewide Transition to Practice Program, and I commend your bar for its groundbreaking work in this critical area. The Dallas Bar is also a vital advocate for pro bono work through programs such as the Campaign for Equal Access to Justice and the Dallas Volunteer Attorney Program. The State Bar shares a strong commitment to pro bono, and in that spirit I invite you to the Champions of Justice Annual Gala, which the State Bar is cosponsoring with the Texas Access to Justice Commission on April 7 in Austin. Proceeds support civil legal services to low-income Texans and veterans. For more information, visit texasatj.org. I am pleased to share that the State Bar of Texas Legal Access Division and the Disability Issues Committee have created the Communication Access Fund, a program that reimburses lawyers for auxiliary services such as sign language interpreters to help attorneys effectively communicate with clients who have disabilities. Visit texasbar.com/probono to learn more about the program and the State Bar’s other legal access projects. We are also making progress on my presidential initiatives, which focus on improving communication with and among our members. We are hard at work on refreshing the look and feel of texasbar.
com. I have seen an early draft of the new State Bar homepage, and it goes a long way toward simplifying the design and making it easier for our members to find what they are looking for. Also, our new members-only social networking platform, Texas Bar Connect (connect.texasbar.com), continues to grow in test mode with six State Bar sections participating. We continue to add new participants as we approach a formal launch at the State Bar Annual Meeting. This year’s Annual Meeting is June 18-19 at the Henry B. Gonzalez Convention Center in San Antonio. Judging from the schedule, it’s shaping up to be another great CLE program. Keynote speakers include Evan Smith, editor in chief and CEO of The Texas Tribune; Judge Ken Starr, president and chancellor of Baylor University; and trial lawyer Fred Bartlit Jr., who successfully represented President George W. Bush in Bush v. Gore. The deadline for early registration and hotel reservations is May 18. Register to attend by visiting texasbar.com/annualmeeting. In closing, I believe that the oath we take as lawyers, and the right to access to justice that we defend daily, are what set our profession apart from all others. I have been proud to represent you, my colleagues, as 2014-2015 State Bar president, and I look forward to continue standing by your side as we work together to strengthen HN the legal profession. Trey Apffel is president of the State Bar of Texas and the founder and owner of Apffel Law Firm in Galveston. He may be reached via email at statebarpresident@texasbar.com.
Art Law Update: Survey of Juris Artis Tuesday, April 9, Noon at Belo
When I grow up…! Dallas ISD Career Day speakers needed to answer questions about career options. This is also a great opportunity to talk about the Magna Carta 800th Anniversary in recognition of Law Day. The time commitments and class sizes vary. Sign up at: www.signupgenius.com/go/10c0548afac2fabfb6-disd For questions, contact Kimberlynn Taylor at ktaylor@dallasbar.org.
Panelists: Andrea Perez, Kessler Collins, P.C. Jamie Baker, Thompson, Coe, Cousins & Irons, LLP Melissa Eckhause, Adjunct Law Professor at Texas A&M University School of Law and Instructor at the Art InsƟtute of Fort Worth Bill S. Richmond, Gruber Hurst Johansen Hail Shank LLP, moderator MCLE 1.00 · Presented by the DBA Entertainment Committee Contact rthornton@dallasbar.org for more information.
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Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Real Property/Construction Law
Considerations for Hiring a Forensic Genealogist by Wanda I. Smith
Genealogy has become one of America’s favorite pastimes in recent years, and millions of paid subscribers have turned companies like Ancestry.com into booming billion dollar businesses. The marketplace is flooded with practitioners ranging from casual hobbyists to fulltime professionals incorporating cutting-edge techniques like DNA testing into their research. An emerging specialty is forensic genealogy which is genealogical research, analysis and reporting in cases with legal implications. Attorneys are faced with many questions, as well as ethical considerations, when trying to choose from a confusing array of education, experience, and credentials found in the pool of people calling themselves forensic genealogists. This article covers what distinguishes forensic genealogists from other types of genealogists, when a forensic genealogist should be engaged, special credentials the hiring attorney should look for, and ethical considerations that should be considered.
Differences
Forensic genealogists are trained to undertake research on identity and kinship of persons, but with a special focus on finding living descendants, typically to resolve legal ownership of property or to determine kinship for some other legal reason. The end product of a forensic project is a formal, source-cited written report or affidavit, suitable for submission in a court proceeding. This report or affidavit contains certified copies of original documents, such as birth and death certificates along with other types of supporting records. While the typical family genealogist runs a family tree from living people back to their ancestors, forensic genealogists often
research in the opposite direction—from a known decedent to living heirs. Attorneys should ensure that their hiring practices regarding forensic genealogists are in full compliance with all laws of their jurisdiction, as many jurisdictions prohibit investigation into the identity and whereabouts of living persons unless the work is performed by an attorney or licensed private investigator.
Practice Areas
Forensic genealogists can assist attorneys in many different fields to resolve questions of kinship and heirship. Real estate and mineral title issues often need to be researched through several generations to locate living heirs. Immigration attorneys may need to establish kinship to a U.S. citizen or help a client apply for dual citizenship. Probate attorneys and executors may need to find lost and missing heirs. Family law attorneys may have a client who is adopted or is a child aging-out of the foster care program who wants to find his or her biological family. Attorneys may need expert review of another genealogist’s work or an expert witness. Proactive attorneys handling guardianships, wills, estates and trusts may want to include genealogical documentation as part of their client’s pre-planning process for the future distribution of property. There are dozens of different legal reasons a client may need a formal report to prove who they are and how they are related to others.
Credentials
evaluate dozens of applications on an annual basis. Applicants who successfully obtain professional credentials from any of these organizations find that it requires years of rigorous training, specialized education, successful completion of multistage tests and adherence to strict ethical standards. CAFG is the only credentialing organization specifically for forensic genealogists, and those persons so credentialed can be identified by ForensicGenealogistCredentialedSM, or more commonly, the post nominal of FGCSM. Membership in other types of organizations such as the Association of Professional Genealogists (APG) requires only a promise to adhere to their ethical standards and payment of a membership fee before becoming a “professional” genealogist. There are outstanding genealogists among their membership, but no easy way to identify them without laborious inquiry.
Other Ethical Considerations
In Texas and most other jurisdictions it is against public policy for an expert
witness to appear under a contingency fee agreement because they have an interest in the outcome. CAFG’s ethical standards forbid contingency work because the forensic genealogist may be called as an expert witness to explain or defend their work. This same prohibition prevents most heir-search firms from appearing as expert witnesses. Furthermore, attorneys should consider whether it is in the best interest of their clients to use an heir-search firm that will charge a 35 percent or more contingency fee and be unavailable as an expert witness, or to pay a forensic genealogist’s hourly rate and have their expert available to testify.
Conclusion
Attorneys hiring forensic genealogists should take into consideration education, experience, credentials, public policy, laws of their jurisdiction, and other ethical considerations before making a hiring HN decision.
Wanda I. Smith, J.D., FGCSM can be reached at info@ ProfessionalAncestryResearch.com.
Elm Fork Sporting Clays Course Event Saturday, May 30, 2015 at 9:30 a.m. Cost: $150 (pay at event)
Genealogical credentialing organizations such as the Council for the Advancement of Forensic Genealogy (CAFG), the Board for Certification of Genealogists® (BCG) and the International Commission for the Accreditation of Professional Genealogists (ICAPGen)
Elm Fork Shooting Range, 10751 Luna Road, Dallas Entry includes instructions, range gun use (if necessary), targets, ammunition, golf cart use, eye and ear protection, snacks and lunch. For more information, contact rthornton@dallasbar.org. Hosted by the Entertainment Committee
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How do you join? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments may qualify for the DBA 100 Club if all attorneys are a member of the Dallas Bar Association. To join the 2015 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2015 DBA 100 Club membership list! What are the perks? Our 2015 DBA 100 Club members will be recognized in Headnotes, the 2016 DBA Pictorial Directory and receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November.
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12 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
A pri l 2015
Real Property/Construction Law
Negligent Subcontractors Can Be Sued Directly by Jason L. Cagle and Nick S. Brooks
A subcontractor performing construction work makes an error that causes significant damage to the owner’s building. What options does the owner have to recover for repairs? It could enforce its construction contract with the general contractor. But several courts had prohibited the owner from asserting negligence claims directly against the subcontractor, citing the economic-loss rule. The Texas Supreme Court recently clarified that the economic-loss rule cannot be used as a defense in this context. The Court held that the economic-loss rule does not apply, and that the owner may assert negligence claims directly against the subcontractor. Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 445 S.W. 3d 716 (Tex. 2014) (per curiam). Generally, the economic-loss rule holds that failure to exercise reason-
able care while performing a duty arising out of a contract does not give rise to a tort claim if the only losses or damages are economic. Rather, the sole remedy is for breach of contract. Economic losses include, for example, damages for inadequate value, costs to repair the subject of a contract, and lost profits. Texas courts have applied the economic-loss rule to bar tort claims between parties in contractual privity with one another, as well as between contractual strangers. Of course, the economic loss rule is a nuanced and complicated doctrine that has been explored thoroughly elsewhere. The scope and size limitations of this article do not allow for a comprehensive discussion. Before the recent decision, there was some uncertainty over whether an owner could assert negligence claims directly against a subcontractor whose defective work caused property damage. The owner’s construction contract typi-
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cally required the general contractor to repair property damage caused by defective work performed by its subcontractors. Subcontractors argued, with some success, that this contractual obligation brought the property damage within the economic benefit of the owner’s bargain with the general contractor. They contended that the economic-loss rule limited the owner to its contract claims against the general contractor, and allowed only the general contractor to assert direct claims against the subcontractors. This uncertainty was recently resolved. In Chapman Custom Homes, a plumbing subcontractor working on a new home failed to perform its work with reasonable care, resulting in leaks that caused significant property damage. The court of appeals affirmed summary judgment for the subcontractor on the owner’s negligence claim, finding that the owner failed to allege any duty independent of the plumber’s contract with the general contractor. The Texas Supreme Court disagreed, pointing out that the subcontractor had a common-law duty to perform its work with reasonable care and skill that went along with its contractual duties. Having undertaken to perform plumbing work on the owner’s property, the subcontractor assumed an implied duty not to flood or otherwise damage the owner’s property while performing the work. This common-law duty was independent of the contract. The damages caused by its breach extended beyond the losses of any anticipated economic benefit under the plumbing subcontract. Thus, it is now clear that a contractor performing construction work owes the
owner a common-law duty to perform its work with reasonable care and skill to avoid causing damage to property outside the scope of the contractor’s work. This duty is in addition to any contractual duties that might otherwise be owed. The scope of the Court’s ruling could be limited to property damage outside the contractor’s scope of work. Had the plumber merely damaged its own plumbing work, for example, the costs to install replacement plumbing could fall within the loss of economic benefit contemplated by the subcontract. Flooding damage to the owner’s residence, on the other hand, causes losses outside of the subcontract’s expected benefit, such as costs to repair property damage and loss of the beneficial use of the property. Having the option to assert claims directly against subcontractors could help owners exercise much greater control over construction-defect lawsuits. Under the right facts, an owner could bring any responsible subcontractors into the lawsuit at the same time as the general contractor. The owner would have direct control over the timing and content of pleadings against the subcontractors, rather than being forced to rely on the general contractor to assert claims. This could allow the owner to avoid the delay and expense of thirdparty practice, to obtain discovery more quickly from the subcontractors, and to involve the subcontractors (and possibly their insurance carriers) in settlement negotiations at an earlier stage in the HN litigation. Jason L. Cagle and Nick S. Brooks are attorneys at Griffith Davison & Shurtleff P.C. They can be reached at jcagle@griffithdavison. com and nbrooks@griffithdavison.com, respectively.
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Focus
D al l as Bar A ssoci ati on l Headnotes 13
Real Property/Construction Law
8 Ways to Reduce Your Ad Valorem Tax Liability by Amy J. Stowe
Property taxes in Texas constitute one of the single biggest yearly expenses for property owners. Property owners should consider whether the property taxes being paid are excessive or unequal, as defined by the Texas Constitution, Texas Tax Code and case law, by considering: 1. What property is subject to Ad Valorem Taxation? All non-public real property and all personal property used in the production of income is subject to ad valorem taxation. Tex. Tax Code §§11.01, 11.02; Art. 1 § 8 Texas Constitution. Intangible property is not subject to taxation. Non-taxable property can be unintentionally included with taxable property by appraisal districts when using a sale of property. But what does the purchase price consist of? It might consist of real property (land and improvements). It might include business personal property (computers, desks, machinery, equipment and inventory). It might also include intangibles (good will). Many times the purchase price does not only reflect property which is subject to ad valorem taxation. It is important to know what property you own and what is being taxed. Further, real and business personal property are taxed separately. Many times, value for the same property can be found in both accounts resulting in double taxation. 2. Is your property unique? Is it leased? Are there access issues? Are there environmental issues? Does the income cover the expenses of owning the property? Are all rendered assets still owned as of January 1st? All these issues affect market value. 3. Do exemptions apply? If property
is exempt, it cannot legally be taxed. An exemption application must be filed with the appraisal district to achieve tax exempt status. Once granted, no further action is required. Texas does not favor exemptions; therefore, qualification is scrutinized. Exemption examples are: homestead; disabled veterans; charitable or religious organizations; historic sites; off shore drilling equipment; pollution control property; and tangible personal property in transit (Freeport Exemption), to name a few. 4. Does special valuation apply? Special valuation is a statutory formula applied to the market value to determine the assessed value. Special valuation is commonly confused with exempt property since special valuation property’s tax is a fraction of its market value. One common example is agricultural land. A true exemption means no ad valorem taxes are due. Examples of special valuation are: Dealer Motor Vehicle Inventory, Dealer’s Heavy Equipment Inventory, Oil and Gas Interests and Timber Land. 5. How is the property used? This is especially important with airplanes as not all airplanes are taxable. Airplanes not used in the production of income over $500 are not taxable. For an airplane used in the production of income, an allocation application and rendition must be filed each year. Based on its operation, it might qualify for either business or commercial allocation, significantly reducing the tax liability. 6. What is the property’s true market value? Appraisal districts are responsible for appraising all property within their jurisdiction. By statute, appraisal of property is not required every year. Many
appraisal districts appraise property under a mass appraisal technique, which applies certain factors over entire categories of property to determine a uniform value across or within district boundaries. Based on market conditions, physical characteristics or economic issues related to the operation of the property, a reduction in the assessed value might be warranted for a specific property. 7. Has the property’s value been protested? There are a number of factors that affect a property’s assessed value. One of those factors is how other similarly situated property is assessed. When similar properties appropriately adjusted are compared to your property, the property might not be equally and uniformly assessed and a reduction in assessed value may be warranted. This can also work against the taxpayer. 8. What is the process? There are 254
appraisal districts in Texas. Notices of assessed value are mailed annually by the applicable appraisal district by May 1st. Protests must be filed with the Appraisal Review Board (ARB) for the appraisal district that issues the notice within 30 days of receipt of the same (generally by May 30th). The ARB should then set the protest for hearing. Once the hearing is held, the ARB will issue its Order, and the taxpayer has 60 days from receipt of the Order to file suit in District Court or appeal to the State Office of Administrative Hearings. Otherwise, the suit is time barred. A complete list of property tax code deadlines can be found on the Texas Comptroller’s website: www.window.state.tx.us/taxinfo/proptax/taxcalen HN dar/index.html. Amy Stowe is an attorney at Jeffrey L Hooper PLLC and can be reached at amy.stowe@hooperpllc.com.
Annual Evening Ethics Fest Thursday, May 7, at the Belo Mansion Check-In and Dinner begins at 4:45 p.m. Program begins at 5:30 p.m. (3.00 Ethics) DBA members: $65 early registration | $95 late registration Non-members: $135 early registration | $155 late registration To register, log on to www.dallasbar.org. For more information contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org. Sponsored by the DBA Legal Ethics Committee
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2015
Tips when Accepting Credit Cards by Tracey Gavin
In the world of merchant accounts, law firms are unique business entities. Unlike a restaurant or retail store, law firms have special considerations when dealing with credit cards and client funds. Whether you are considering accepting credit cards or already offer an electronic payment option, using state-of-the-art technology will ensure you are paid quickly and securely. Some other tips to ensure a successful transition to the modern ways of getting paid as a law firm merchant: 1. Protect your trust and IOLTA accounts. Do not allow your merchant provider access to your trust account. Most merchant agreements will require you to give access to this account in the event of a charge back or fraud. There are merchant services specific to law firms that correctly protect and safeguard your trust accounts. 2. Avoid storing credit card information. If you bill clients on a monthly basis, you will potentially need the ability
Column
to recharge their credit cards. Accepting credit cards through a secure web-based solution will allow you to avoid keeping sensitive credit card information within the walls of your office. Modern law firms are quickly moving away from the traditional credit card machines, which sometimes require paper storage of client credit card numbers. This also limits the liability and risk to your firm of credit card information falling into the wrong hands. 3. Communicate to your clients. Let clients know what your payment expectations are on the front end by including due dates, late fees, and payment options as part of your fee agreement. It is much easier to establish these guidelines while your client is new and eager to get started. More importantly, continue to communicate to your clients what payment options you provide by including credit card logos or adding “Major Credit Cards Accepted” to your invoices and website. Clients will commonly look for an attorney who provides credit card options. Even popular
legal websites such as Martindale-Hubbell have specific search criteria to find attorneys who accept credit cards. 4. Use the technology you have. Once you make the decision to accept credit cards, be sure to use the payment option that best suits your needs. Depending on your area of practice—and, more importantly, where you interact with your client—there are different choices to accept payment. For example, there are many options to accept credit cards with smart phones, including iPads and laptops. 5. Let your clients do the work. By taking time to establish payment options on your website, clients can run their own credit cards. Not only does this provide a convenience to clients, but it frees up the time you otherwise would spend processing credit card payments. This also allows you to avoid ever seeing credit card numbers, eliminating any responsibility to accept, store, shred, or protect credit card numbers. 6. PCI compliance. When you accept
credit cards in your office, you also accept the responsibility of protecting cardholder data. Be sure your merchant solution is PCI compliant. PCI-DSS is the payment card industry’s security guidelines for merchants. More information can be found on the PCI Security Standards Council website, www.pcisecuritystandards.org.
About LawPay
The LawPay program, is a custom payment solution designed for attorneys. The LawPay program complies with ABA and state requirements for managing client funds. As a member benefit of the Dallas Bar Association, law firms save up to 20–25 percent off standard credit card fees. If you are currently accepting credit cards, we encourage you to compare your current processor with LawPay. To learn more contact (866) 376-0950 or HN www.LawPay.com/dallasbar.
Tracy Gavin is the Marketing Director for LawPay. She can be reached at tgavin@affinipay.com.
In The News
FROM THE DAIS
Jerry Selinger, of Patterson & Sheridan, LLP, was a panel member on the President’s Forum during the American Intellectual Property Law Association 2015 mid-winter meeting. He also presented at the UNC Journal of Law and Technology 2015 Symposium. David Moseley, of Glast, Phillips & Murray, P.C., spoke at the 2015 HospitalityLaw.com Symposium in Houston.
KUDOS
ber’s Leadership Dallas Alumni Association. Marcus Brown, of Winstead PC, has been elected to serve as the chair of the board of directors for Mental Health America of Greater Dallas. Brad Nitschke, of Jackson Walker L.L.P., has been elected to Partner. Don Glendenning, of Locke Lord Edwards LLP, has been selected for BTI Consulting Group’s 2015 Client Service All-Star Team.
Bridget Moreno Lopez, of Linebarger Goggan Blair & Sampson, LLP, has been appointed Managing Partner of the Dallas Office.
Peter Kraus, of Waters & Kraus, L.L.P., has been appointed by U.S. Senator Harry Reid to serve on the Federal Judicial Center Foundation Board.
Sherry L. Travers, of Littler Mendelson, P.C., has been named a 2014 recipient of the Class Representative Outstanding Service award by the Dallas Regional Cham-
Michael Bailey and Joseph Callister, of Wick Phillips, have been elected Partner. Charolette F. Noel, of Jones Day, has
been elected to membership in the Fellows of the Texas Bar Foundation. Kevin J. Keith, Jason M. Katz and Victoria M. Yarkho, of Hiersche Hayward Drakely & Urbach, have been promoted to Shareholder. Devon D. Sharp, of Munsch Hardt Kopf & Harr, P.C., has been promoted to Shareholder.
ON THE MOVE
John Schneider joined NewLAWu.s. Dustin Mauck and Mike Regitz have formed the new firm of RegitzMauck PLLC, 1700 Pacific Ave., Suite 1280, Dallas, TX 75201. (214) 414-3813. Mary Anne Wyly joined The Miller Law Firm as Associate. Stefan A. Ginnard joined The Bassett Firm as Associate.
Lea Dearing joined Berman Fink Van Horn P.C. as a Principal.
Robin Bechtold joined Lewis Brisbois Bisgaard & Smith LLP as Associate.
Sabina Bramlett and Patricia Z. Jones joined Fox Rothschild LLP as Partner and Associate, respectively.
Douglas C. Bracken and Mark L. Hill joined Scheef & Stone, L.L.P. as Partners. Brenda Neuwirt joined the firm as Associate.
Dawn Fowler has launched her new firm, Dawn E. Fowler PC, 2208 Routh Street, Dallas, TX 75201 Phone: (214) 871-9100. Justin Scroggs joined Cutler-Smith, PC as Associate.
News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@ dallasbar.org
MAKE AN INVESTMENT IN DALLAS - HIRE A SUMMER INTERN! Lend your support in 2015 to making a better workforce in Dallas. Hiring an intern provides the training and mentoring needed to close the workforce skills gap and bridge the opportunity divide. Part-time or Full-time-4-wks or 8wks available!
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Classifieds
Dal l as Bar A ssoci ati on l Headnotes 15
April
EXPERT WITNESS
Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com.
FOR SALE
Share Platinum Level Mavericks and Stars tickets at American Airlines Center: 2 seats in row 2 plus an Audi garage parking pass for each game. Tickets are selected by draft, with minimum purchase of 10 games per partner; each partner picks his/her own games (all games except opening night and playoffs included in the package). Call (214) 5604212 or email rwamre@AdvocateMag.com for information.
OFFICE SPACE
Central Expressway | Park Cities – Varying sized offices and cubicles are available for rent. Office with several long-established law practices. Perfect for Solo practitioners
and 2-to-3 partner groups. Your space comes with turnkey services, amenities and updated technology at affordable pricing. For pictures, floorplan and greater detail, please visit us at www.MeadowsLawCenter.com or call (214) 368-7880 Ext 4413.
ment which includes administrative stations, conference room, kitchen, copier, phone system, reserved garage parking, on-site restaurant and other amenities. Why not have quality of life while you practice? Please call (214) 750-1600 for details.
Prime Uptown Location. Two office spaces, @ 17x12 and 9x12, shared amenities, Uptown. Lemon and Cole Ave. Call (214) 276-6014.
Uptown / State & Thomas Area: Large upstairs professional office in historic home. Smaller office also available. Other occupants are family law attorneys. Monthly lease plus percentage of utilities, includes parking and use of conference rooms. Call: (214) 871-9100.
Downtown Dallas – Arts District. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/ facsimile and related amenities. Contact Laura at (214) 922-9265. Private office space and suites for lease in Richardson. Excellent Location off Spring Valley two blocks east of I-75. Perfect space for Attorneys/CPA’s/Title Company/Insurance Agent/Architects. Available January 1, 2015. Amenities Include: Receptionist service, Use of standard conference room, Complimentary coffee service, Full kitchen, Copier/scanner available for an added charge. Flexible lease terms. All utilities included. Free parking and 24/7 access. Additional information available please send email to: janice@NacolLawFirm.com. Pearlstone Suites in the West End of downtown Dallas are unique new law offices combined with professional law firm marketing services to help attorneys launch or grow a solo practice or small firm. Suites include these amenities at no additional cost: Direct dial phone with personalized voicemail and call forwarding, highspeed Internet access, IT support, law office reception, on-site building security, conference rooms, kitchen and coffee service, fitness center, building directory listing, all utilities and CAM charges. Marketing services available include websites, branding, brochures, strategy, coaching and more. Pre-leasing discounts available until June 30. Visit www.PearlstoneSuites.com or call (214) 446-3943. Park Cities / Central Expressway – Upscale law firm has Class A office space with highend finish-out available. Located at 8150 Central Expressway in Dallas. Up to 3 partner offices, 6 associate offices, and 6 interior offices available. Access provided to 2 conference rooms, large boardroom and kitchen, as well as office amenities/equipment such as phone, Internet, copier, etc. Free surface and garage parking. Please contact Chelsea at (214) 367-6000.
Michelle E. Chesney, Principal
We are a full-service boutique real estate brokerage and consulting firm that specializes in property tax appeals for the greater Dallas area. Property tax values are released on May 1st and protests must be filed by June 1st. If you or your clients have protest concerns, please contact us for a no obligation consultation.
214.613.6083 mechesney@prestonbend.com
www.prestonbend.com
Walnut Glen Tower (Walnut Hill/Central). FREE RENT. Tasteful, bright, spacious offices in Class A building with views of downtown over lake with fountain. 16-story glass atrium with glass elevators and waterfall. Practice in a relaxed yet professional 4-lawyer environ-
JEFF COEN FAMILY LAW NUTS & BOLTS VIDEO CLE Wednesday, April 22, 2015 9:00 a.m. to 3:30 p.m. at Belo MCLE 6.00 | 2.00 Ethics Sponsored by the DBA Family Law Section and DVAP To register, contact Chris Reed-Brown at reed-brownc@lanwt.org.
POSITION AVAILABLE
Health Law Attorney Needed. Experience in healthcare regulatory and payment matters - Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is selfmotivated and will participate in marketing & seminar presentations. Please email resume to markskennedylaw@msn.com. Growing Texas law firm seeks motivated and entrepreneurial-minded business transactional attorney with an existing book of business or opportunities to immediately develop local clients. We are looking for resourceful individuals who want to be part of a unique team of lawyers and work on a wide variety of business, banking, real estate, and international transactions. Tired of working long hours for a salary and discretionary bonus or ignoring new business because there is nothing in it for you? Our compensation package allows ultimate flexibility with regard to income and work load and lets you control your income. Send resume and cover letter/ video correspondence clip outlining practice area experience and why you are ready to take the lead in a different kind of firm, to Employment@StrangeLegal.com. Steckler LLP is seeking a part-time (2030 hours/week) paralegal or legal assistant with 3-5 years litigation experience in personal injury. Our office is on Hillcrest Blvd., just south of I-635. Working from home is an option. Applicant must be organized and have a positive attitude. Responsibilities include: (i) communicating with clients; (ii) drafting and e-filing pleadings; (iii) scheduling depositions, mediations, and hearings; and (iv) ordering medical records. Interested applicants should e-mail their resume directly to lance@StecklerLaw.com. No phone inquiries. Salary: DOE. Oklahoma City law firm has opening for a Texas oil and gas title attorney with minimum of five years’ experience examining title to land in Permian Basin, Eagleford, and/or East Texas. Competitive salary and profit sharing opportunities commensurate with experience. Excellent health, dental, and retirement benefits. Must be willing to relocate to Oklahoma City. Please forward resumes to lmunson@MunsonRitter.com. A privately owned, Texas based hotel development firm seeks a paralegal with 3-10 years real estate and corporate experience. Please apply online at careers.newcrestimage.com or send resume to Elise.Rutig@ NewcrestImage.com. Emmert & Parvin, LLP is seeking the addition of 2-3 attorneys with established practices in commercial litigation, family law and probate. Our compensation formula has no billable hours requirements and allows you to set your hours. Contact Chris Parvin for more information at chris@EmmertParvin.com. Live and Practice Law Efficiently. If you are tired of paying high overhead, spending hours on the roads fighting traffic, or spending countless hours on administration, read on. We are an AV-Rated litigation firm in Collin County—an easy drive from the northern suburbs—looking for a strong
lawyer to share in our goal of maintaining low firm overhead, high quality clients, and spending more time with our families. We handle the firm administration, office and collegial atmosphere; you practice law along with high quality partners and people. Some portable business is necessary. If interested please email us at info@SaundersWalsh.com. Legal Aid of NorthWest Texas (“LANWT”) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org.
POSITION WANTED
Real Estate and Finance Attorney. Over fifteen years major firm experience representing lenders, buyers and sellers of commercial real estate, including multi-state portfolios. Full or part time. Willing to maintain own insurance. Dallas area. Prefer real estate section of law firm. cpant@verizon.net. Experienced Trial and Probate Attorney for Contract or of Counsel Engagements. AV rated trial lawyer, UT law grad, large firm background, and over 30 years’ first chair trial and deposition experience available for lead counsel or co-counsel engagements in business, real estate, municipal or probate matters. Refer a single case or establish an of counsel arrangement. I maintain my own office in Preston Center with staff and insurance. Reply to: Dallas Bar Association, Box 15_02, 2101 Ross Avenue, Dallas, Texas 75201.
SERVICES
Helping trial lawyers win cases. Attorney with outstanding research and writing skills available for hourly projects. (972) 2438444; www.trialassistance.com. Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1-800-760-9890 or 214-720-9890 for a friendly and quick analysis and response. Transfer Pricing Expert. William Seeger, PhD, is an economist with 23 years of experience, IRS and Big Four, providing Economic consulting services, Transfer Pricing Documentation, International Tax Planning advice, and Dispute Resolution guidance and strategy. His Dispute Resolution experience includes IRS field audits, Appeals, Competent Authority, and Advanced Pricing Agreements. Former Partner, PwC and KPMG, and Dallas District Industry Economist. Contact Dr. Seeger at Quantecon Consulting, (972) 422-9170 or visit www.QuanteconConsulting.com Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
16 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
A pri l 2015
Two Practices, One Mission, Helping People.
ROB CRAIN (left) | Catastrophic Personal Injury CHRIS LEWIS (right) | Criminal Defense
At Crain Lewis, we represent people when life takes an unexpected turn. With 37 collective years of trial experience, our firm is dedicated to providing the highest quality legal representation. We take pride in the fact that many of our cases are referred to us by fellow attorneys and former clients. Please call us when there is a need for personal injury or criminal defense representation. We would be honored to assist you and your family.
Crain Lewis, L.L.P. 3400 Carlisle St., Suite 200 | Dallas, TX 75204 | 214.522.9404
www.CrainLewis.com