September 2013 Headnotes

Dallas Bar Association

HEADNOTES

Focus Real Estate/Construction Law

September 2013 Volume 38 Number 9

Dallas Bar Association Dear Fellow Dallas Area Attorney: You may have received a complim entary issue of our Headnotes publ ication last year at this time as a non-member of the Dallas Bar Association (DBA). If not, I hope you enjoy reading this issue and if you are not a current DBA member, I hope you choose to beco me a member today!

I would like to share the following special offer with those of you who are not currently a DBA member. Join the DBA during the month of September and you will receive 16 months of membership for the price of 12 months. To access the online application, go to www.dallasbar.org and click on the Membership tab and Join the DBA! You can see an extensive list of all our member benefits on page 8, but a few I would like to highlight are:

From left: Rob Crain and Chris Lewis

CrainuLewis Kicks Off Equal Access to Justice Campaign with Lead Gift

By Alicia Hernandez

CrainuLewis, L.L.P. has kicked off the 2014 Equal Access to Justice Campaign with a very generous lead gift of $25,000.

CrainuLewis partners Rob Crain, a personal injury lawyer, and Chris Lewis, a criminal defense attorney, have donated more than $70,000 since 2005 to the Equal Access to Justice Campaign benefiting the Dallas Volunteer Attorney Program. Their contributions directly benefit people in our community who cannot afford to hire a lawyer and have nowhere but DVAP to turn to for legal help.

CrainuLewis’ commitment to DVAP is a natural extension of their professional experiences. “As personal injury and criminal defense lawyers, we oftentimes find ourselves representing the underdogs—individuals who would simply be outgunned without legal representation. DVAP clients are in the same boat. Their rights are lost in the legal system if they are unrepresented,” said Mr. Crain.

The Dallas Volunteer Attorney Program (DVAP) recruits, trains, and supports volunteer attorneys in providing free legal help to needy people in Dallas. CrainuLewis’ contribution will go a long way to helping many people in need during 2014, including people like Julie* and her son Jacob*.

Julie had primary possession of four-year-old Jacob, and shared custody of him with Jacob’s father.

Shortly after meeting Jacob for the first time and spending a summer visit with the child, Jacob’s dad refused to return him to Julie and filed a complaint alleging abuse and neglect with Child Protective Services. After no finding of any wrongdoing, CPS closed the case, but Julie still could not get the father to return Jacob to her.

Julie, in desperation, asked the

police to help several times, but they simply told her to stop harassing the father and that she needed to go back to court to get her child back. With limited money and nowhere else to turn, Julie came to DVAP for help.

Volunteer attorney Geri R. Wyatt accepted Julie’s case, immediately filed a Petition for Writ of Habeas Corpus with a Writ of Attachment, and set the case for a hearing. The outcome was a joyous victory for Julie and Jacob. The judge granted the Habeas, the child was ordered to the courtroom, and mother and son were finally reunited after being separated for nearly eight months. Without the help of DVAP and Mr. Wyatt, Julie may have never recovered her son.

Julie’s story is one of many great examples of how attorneys make a difference in the lives of their pro bono clients. “We are passionate about protecting people’s rights and defending their freedoms” said Mr. Lewis. “Supporting DVAP clients and the volunteers who are committed to serving them is both a responsibility and a privilege for us.”

For more information on the Campaign or the Dallas Volunteer Attorney Program, please contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org. Recognition levels and donor benefits are available. In addition, all individual donors at the $1,000 level and above and all firm and corporate donors at the $5,000 level and above will be recognized in an ad in the Dallas Morning News on December 15, 2013 and in Texas Lawyer in January or February 2013. *Note – The client’s name has been changed to protect his confiden HN tiality.

Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at ahernandez@dallasbar.org.

FREE CLE HOURS – The Dalla s Bar Association is the 2nd larg est provider of CLE courses in the state of Texas (See Page 2 for CLE courses).  COLLEGIALITY – Meet with other lawyers who practice in your field in our specialized Sections and to network and atten d CLE courses that relate directly to your practice  MAKING A DIFFERENCE – Join one of our many Committees to work with other lawyers who are committed to providing legal services to the poor, volu nteering within the community, and mentoring othe r lawyers  DIVERSITY – Meet, mentor, and collaborate with lawyers of all ages, races, religions, and backgrounds to strengthen the fabric of our diverse legal com munity. 

As a DBA Member, you will be able to take advantage of thes e valuable opportunities to learn, network and make a diffe rence. To find out more about the benefits of being a DBA member, please visit www.dallasba r.org, or contact our Membership Coordinator, Kim Watson, kwatson@dallasbar.org or (214) 220-7414.

If you are already a DBA member, I hope you join today and look forw Sincerely,

thank you very much for your cont

inued support!

ard to seeing you soon at Belo Man

sion, DBA headquarters!

Sally L. Crawford President Dallas Bar Association 2101 Ross Ave. ▪ Dallas ▪ TX

▪ 75201 ▪ (214) 220-7414

Miami Herald Vice President/Executive Editor Aminda Marqués Gonzalez to be Keynote Speaker at Philbin Awards

by Jessica D. Smith

This year marks the 30th anniversary of the Stephen Philbin Awards Luncheon, which was started in 1983 by the Dallas Bar Association to recognize local news journalists for their excellence in legal reporting. Come help us celebrate this year’s event on Monday, October 7, 2013 at the Belo Mansion.

The luncheon is a way to honor not only the local media, but also the memory of Stephen Philbin who lost his battle with leukemia in 1982. A long-time member of the Dallas Bar Association and a partner with Locke, Purnell, Boren, Laney & Neely, at the time of his death, Mr. Philbin was a leading authority on media law in Texas. He advised major publications and broadcast companies on libel law, regulations and licensing of broadcast properties, and fair comment rulings.

In honor of his contributions to media law

in the Dallas area, the Philbin and Brock families, acting through the Dallas Bar Foundation, fund the annual Philbin Awards, with the DBA Media Relations Committee coordinating the event.

Entries range from major TV news networks and affiliates to radio stations to both print and on-line news from the area’s large Aminda Marqués Gonzalez metro newspapers, magazines and suburban publications.

The winners will be announced at the Stephen continued on page 22

Inside 5

Shonn Brown and Aaron Tobin Named Co-Chairs of Campaign

13 What You Need to Know about the Commercial Eviction Process 17 Flow-Down Indemnity Clauses in Construction Contracts 21 Defective Construction Work Claims In Texas

2014 DBA COMMITTEE PREFERENCES Please take a minute to submit your committee preferences online. Submit your preferences by Friday, October 11. Please note, if you are on a 2013 Committee you must still sign up again if you wish to continue to serve on a Committee in 2014. You will not be automatically assigned to Committees.

2 He a d n o t e s l D a l l a s B a r A s s o ciation

Calendar

September Events

Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. Dallas Asian American Bar Association

FRIDAY CLINICS

SEPTEMBER 6-BELO Noon

Septem ber 2013

5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.

“Current Issues in Use of (and Litigation Involving) LLCs,” Prof. Elizabeth Miller. (MCLE 1.00)*

5:30 p.m. Bankruptcy & Commercial Law Section

Topic Not Yet Available

SEPTEMBER 13-NORTH DALLAS** Noon

“Enforceability of Forum Selection and Choice of Law Provisions,” Christianne L. Edlund and Maral Kilejian. (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 Underwood Perkins, P.C. RSVP to kzack@dallasbar.org.

THURSDAY, SEPTEMBER 12

SEPTEMBER 20-BELO Noon

“Professionalism and Service from the GC Perspective: What We Expect From the Lawyers We Hire,” John Ansbach, Regina Montoya, Dena DeNooyer Stroh and Monica W. Latin, Moderator. (MCLE 1.00)*. RSVP to kzack@dallasbar.org.

MONDAY, SEPTEMBER 2

DBA Offices Closed in Observance of Labor Day

TUESDAY, SEPTEMBER 3 Noon

Corporate Counsel Section Topic Not Yet Available

Morris Harrell Professionalism Committee

DAYL Attorneys Serving Troops

6:00 p.m. DAYL Board of Directors Meeting

WEDNESDAY, SEPTEMBER 4 9:00 a.m. Solo & Small Firm Section

“Turning 65: What You Need to Know if You or Your Clients Are Turning 65.”

(MCLE 7.00, Ethics 1.00)* Sponsored by the DBA Solo & Small Firm Section, Probate, Trust & Estate Section, Senior Lawyers’ Committee and DAYL Elder Law Committee.

Noon Employee Benefits & Executive Compensation Section

“End of Year Planning,” Jared Pope. (MCLE 1.00)*

DAYL Judiciary Committee

THURSDAY, SEPTEMBER 5 Noon

Construction Law Section “Architect / Engineer Liability,” Richard Capshaw. (MCLE 1.00)*

Family Law Section Board Meeting

Admissions & Membership Committee

Tort & Insurance Practice Section “Out of Reach: The Scope of ‘Arising Out Of’ Policy Terms, Conditions and Exclusions,” Beth Bradley, Neil Rambin and David Taubenfeld. (MCLE 1.00)*

Entertainment Committee

Legal Ethics Committee

Dallas Bar Foundation Board of Directors Meeting

DAYL Lawyers Promoting Diversity Committee

Christian Legal Society

DAYL Animal Welfare Committee

Dallas Gay and Lesbian Bar Association

Christian Lawyers Fellowship

3:30 p.m. DBA Board of Directors Meeting

Friday Clinic-North Dallas** “Enforceability of Forum Selection and choice of Law Provisions,” Christianne L. Edlund and Maral Kilejian. (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 Underwood Perkins, P.C. RSVP to kzack@dallasbar.org.

Government Law Section “Concrete Ways to Improve Your Legal Drafting,” Chris Bowers. (MCLE 1.00)*

Trial Skills Section “Expert Witnesses - The View from the Trenches,” Rob Radcliff. (MCLE 1.00)*

Transition to Law Practice Committee “Satisfaction, Fulfillment, Wellness and Happiness for the Beginning Lawyer.”

(Ethics 1.00)*

FRIDAY, SEPTEMBER 20 Noon

Noon

Labor & Employment Law Section “Independent Contractor Misclassification – Recent Initiatives and Trends,” James Culp, Rob Friedman and Derek Braziel, Moderator.

(MCLE 1.00)*

Noon

Computer Law Section “Enterprise Software Licensing,” Julie Machal-Fulks. (MCLE 1.00)*

Securities Section “Ethical and Liability Concerns for Corporate/Securities Counsel,” Prof. Marc Steinberg. (Ethics 1.00)*

TUESDAY, SEPTEMBER 24 11:00 a.m. D allas Women Lawyers Association Noon

Probate, Trust & Estate Law Section “Arbitration Clauses in Estate Planning,” Bill Pargaman. (MCLE 1.00)*

Juvenile Justice Committee “Traffick911: Learn About Domestic, Minor Sex Trafficking in the United States, Texas and Local Area,” (MCLE 4.00)* RSVP to ahernandez@dallasbar.org.

Courthouse Committee

Community Service Fund Board of Directors Meeting

DAYL Aid to the Homeless Committee

American Immigration Lawyers Association

DAYL Freedom Run Committee

7:45 a.m. Dallas Area Real Estate lawyers Discussion Group

St. Thomas More Society

11:30 a.m. H ouse Committee Walk Through

TUESDAY, SEPTEMBER 17

6:00 p.m. Dallas Hispanic Bar Association

WENDESDAY, SEPTEMBER 25

Friday Clinic-Belo “Current Issues in Use of (and Litigation Involving) LLCs,” Prof. Elizabeth Miller.

(MCLE 1.00)*

Noon

Family Law Section “Bias: Shades of Testimony,” Dr. John Zervopoulos, Phd. (MCLE 1.00)*

Noon

Judiciary Committee “Effective Retention, Use and Protection of Expert Witnesses” (MCLE 1.00)*

Senior Lawyer Committee “Securities Fraud Enforcement: Behind the Scenes,” Dennis Roossien. (MCLE 1.00)*

Friday Clinic-Belo “Professionalism and Service from the GC Perspective: What We Expect From the Lawyers We Hire,” John Ansbach, Regina Montoya, Dena DeNooyer Stroh and Monica W. Latin, Moderator. (MCLE 1.00)*.

RSVP to kzack@dallasbar.org.

MONDAY, SEPTEMBER 23

MONDAY, SEPTEMBER 16

WEDNESDAY, SEPTEMBER 11

MONDAY, SEPTEMBER 9

Antitrust & Trade Regulation Law Section “Issues in Mergers of Hospitals, Managed Care Organizations, and Physician Practices,” Sean May and Monica Noether.

(MCLE 1.00)*

Noon

Alternative Dispute Resolution Section “AAA Update on Expansion of Mediation,” Harry Hernandez. (MCLE 1.00)*

Bench Bar Conference Committee

International Law Section Topic Not Yet Available

Public Forum Committee

Community Involvement Committee

Real Property Law Section “Recent Revisions to the Mechanic’s Liens Statutes,” Steve E. Kennedy. (MCLE 1.00)*

DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.

Speakers Committee

DAYL Elder Law Committee

22ND ANNUAL DBA BENCH BAR CONFERENCE September 26-28 at Horseshoe Bay Marriott Resort CLE Topics Include:

Minority Participation Committee

Publications Committee

6:00 p.m. Home Project Committee

FRIDAY, SEPTEMBER 6 Noon

Business Litigation Section “A New Law School on the Horizon: the UNT Dallas College of Law,” Judge Royal W. Furgeson, Jr. (MCLE 1.00)* Mergers & Acquisitions Law Section “What Does it Mean and Does it Matter?

Common Recurring M&A Provisions and Issues,” Scott Cohen and Alain Dermarkar.

(MCLE 1.00)*

Media Relations Committee

Law in the Schools & Community Committee

Noon

TUESDAY, SEPTEMBER 10 Noon

Appellate Law Section “The View from a Career in the Trenches: A Trial Lawyer’s Perspective on Appellate Counsel,” Jim Cowles. (MCLE 1.00)*

CLE Committee

FRIDAY, SEPTEMBER 13

1:00 p.m. Tax Law Section

“Tax Aspects of Settlements and Judgments,” Robert W. Wood. (MCLE 1.00)*

Noon

Noon

6:00 p.m. J.L. Turner Legal Association

Peer Assistance Committee

THURSDAY, SEPTEMBER 19



Here Come the Feds—What’s New in the Northern District



Update from the State Courts



It's a Generational Thing: How to Communicate Effectively In Today's Age-Diverse Courtrooms and Legal Workplaces



5:00 p.m. DVAP Family Law Nuts & Bolts. MCLE 4.00, Ethics 0.50. To register, www2. dallasbar.org/eventregistration/dvap2. aspx.

WEDNESDAY, SEPTEMBER 18 Noon

Energy Law Section “Employment in the Energy Sector: Key Terms in Employment Agreements and Workplace Policies,” Steven E. Clark and Zac Duffy. (MCLE 1.00)*

Health Law Section “Telemedicine: Legal Considerations,” Shelly Carlin and Scott Schardt. (MCLE 1.00)*

Law Day Committee

REGISTER NOW at

Pro Bono Activities Committee

www.dallasbar.org or 214-220-7403

Non-Profit Law Study Group

And breakouts covering apps for litigators, dealing with difficult clients and a young lawyer Q&A with the Judges

Events/Activities: Plan to Stay Friday Night!

Sporting Clays, Board Games, Bike Ride, Tennis, Golf and more!

More than 6 hours CLE, including 1.00 hour ethics. | Casual Attire Only!

5:00 p.m. DVAP Family Law Nuts & Bolts. MCLE 4.00, Ethics 0.50. To register, www2. dallasbar.org/eventregistration/dvap2. aspx.

5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.

Noon

Magna Carta Discussion Group “Magna Carta: The Promise of the Great Charter and Its Dependence on Ethical Lawyers,” Dr. David Upham. (MCLE 1.00)*

Sports & Entertainment Law Section “Immigration for Athletes and Entertainers,” Steven M. Ladik. (MCLE 1.00)*

Minority Participation Committee “How to Get the Best of Your Experience During the Texas Minority Counsel Program”

DVAP New Lawyers Luncheon. Contact reed-brownc@lanwt.org for more information.

DAYL Equal Access to Justice Committee

Municipal Justice Bar Association

THURSDAY, SEPTEMBER 26 Noon

Criminal Law Section Topic Not Yet Available

Environmental Law Section “Topic Not Yet Available

FRIDAY, SEPTEMBER 27 Noon

Intellectual Property Law Section “Patent Litigation Topic,” Judge David Folsom. (MCLE 1.00)*

DAYL CLE Committee

MONDAY, SEPTEMBER 30 Noon

Legal Ethics Committee “Disqualification Motions,” Kelli Hinson.

(Ethics 1.00)*

DAYL Solo & Small Firm Committee

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.

Sept e mb e r 2 0 1 3

D al l as Bar A ssoci ati on l Headnotes 3

INTEGRITY. INTENSITY. INTUITION.

AUBREY CONNATSER (CENTER) MANAGING MEMBER CHRISTINE POWERS (LEFT) ASSOCIATE ATTORNEY ABBY GREGORY (RIGHT) ASSOCIATE ATTORNEY

T

HE ATTORNEYS OF CONNATSER FAMILY LAW remain committed to results-oriented, focused, creative problem solving. We harness these

n DIVORCE

n PATERNITY DETERMINATION

n CHILD CUSTODY AND VISITATION

n PRE- AND POSTMARITAL AGREEMENTS

n COMPLEX PROPERTY SETTLEMENTS

n MODIFICATIONS

n ASSET TRACING

n COLLABORATIVE LAW

elements in every divorce, child custody matter, pre- and post-marital agreement, modification, and collaborative law matter. INTEGRITY drives

Our experience, ingenuity and tenacity in the

our uncompromised ethics and professionalism.

courtroom combined with our exceptional

INTENSITY keeps us focused on our clients’ goals.

negotiating skills enable us to successfully

INTUITION guides us to achieve those goals.

finalize matters in every legal arena. Our

These concepts take on entirely different meanings for a high net worth businessperson facing complex property decisions, a stay-

HONORS EARNED

BY AUBREY CONNATSER:

clients look to us for clear direction, insight and compassion during tumultuous times.

We never fail to deliver.

2004, 2009-11, 2013

at-home spouse with a special needs child,

Connatser attorneys are moms, wives, sisters,

grandparents hoping to bring equilibrium to

daughters, business colleagues and friends,

a family or a same-sex couple with adopted or

but most of all we are keen strategists who use

natural children.

each facet of our own lives to improve outcomes for those we represent.

2011-14

AUBREY M. CONNATSER, PLLC 2000 McKinney Avenue, Suite 1700, Dallas, Texas 75201

214 306-8441 www.connatserfamilylaw.com info@connatserfamilylaw.com

4 He a d n o t e s l D a l l a s B a r A s s o ciation

Septem ber 2013

Headnotes

President's Column

…. And Justice for All By sally crawford

“Justice for all” may be the cornerstone of our democracy, yet as a nation and as a profession we struggle constantly to make it a reality. We casually recite this simple phrase which ends the Pledge of Allegiance, but we should not take it for granted. What do we even mean when we say “justice for all”? Does it mean that we have a right to representation when our liberty is at stake? Or do we mean that everyone should have access to counsel and to our courts to redress what they perceive to be an injustice? My guess is that the average person in the street would say the latter, especially when it impacts them. I think they would tell you that they deserve to have their day in court to address any wrong they have suffered or to defend their rights. Whether they have been arrested for a crime, have been denied the return of a security deposit on an apartment, have been wrongfully terminated, have been denied custody of a child or child support, desire to adopt a step-child, need a guardian for a disabled child or parent, need their veterans benefits, need to clear title to a home, need to file bankruptcy, or need a divorce from an abusive spouse, they need help that only the judicial system can provide. That is justice.

While the list of civil legal needs goes on and on, the help needed is not always available. Unlike in a criminal case, no one is entitled to the appointment of an attorney in a civil matter, but not everyone has the wherewithal to hire an attorney to gain access to the legal system. In fact, today there are more and more people in Texas who fall at or below the Federal poverty guidelines. These folks, along with many people in the so-called middle class, are barely getting by.

And while they may have overwhelming legal needs, legal assistance is not available to them because they cannot afford it. So as it turns out, “justice” may not be for “all”—it may only be for those who have the money to pay for it.

So what is the answer, what can we do and why should we care? First, as a profession I believe we have a professional, moral and ethical obligation to help those in need of legal assistance who cannot afford it. If we are going to maintain the rule of law in which we rightfully have such great pride, we need to insure that access to the legal system is available to everyone, not just a fortunate few. We can do this by providing pro bono legal services and by supporting those organizations that do. There are many organizations in Dallas that help the poor with a variety of needs, and I am extremely proud to report that the Dallas Bar Association, in conjunction with Legal Aid of NorthWest Texas, is working hard to insure that legal aid is available to those less fortunate in our community.

Many, although not all, of you are familiar with the Dallas Volunteer Attorney Program (DVAP), which is a partnership between the Dallas Bar Association and Legal Aid of NorthWest Texas. Through the collaborative effort of the Bar and Legal Aid, more than 2,600 cases were handled by volunteer lawyers last year for low income individuals and families who were involved in a wide range of varying civil legal matters. With a staff made up of employees from both the DBA and Legal Aid, DVAP recruits, trains, coordinates, mentors and assists thousands of volunteer lawyers annually in screening and handling these cases. DVAP organizes and staffs legal clinics throughout the city on a weekly basis and works closely with the volunteer lawyers and the courts to insure that DVAP clients receive high quality, civil legal aid year in and year out.

In spite of the efforts of DVAP, many low income people in our community go without the civil legal aid that they need. According to Legal Services Corporation, a national

organization, for every person who receives civil legal aid in this country, one is turned away. Happily the statistics for DVAP are more encouraging. While many perspective clients are turned away because they do not meet the guidelines (financial, subject matter, conflicts, etc.), less than 20 percent of those who applied and qualified for legal aid last year were turned away by DVAP due to insufficient resources. But there is no doubt that there are thousands more who qualify for and need legal aid that DVAP did not reach. The poverty population in Dallas County has more than doubled since the 2000 census, and neither DVAP nor Legal Aid can keep up with the demand. When you consider that there are over a million people in Dallas County who could qualify for legal aid and just under 5,000 applied to DVAP for assistance last year, you know that there are a lot of unmet legal needs among the poor in Dallas. And while the need is ever growing, the resources available to fund civil legal aid are shrinking.

To help fund DVAP, in 1997 the DBA and Legal Aid initiated a joint fundraising campaign known as the Equal Access to Justice Campaign. What an appropriate name! As a result of the campaign, DVAP has been able to continuously increase its services to the poor in Dallas County. The campaign has grown each year and, since 1997, has raised in excess of $8.5 million to fund DVAP. The funds raised in the campaign help pay for the fifteen full time staff members who work for DVAP, as well as the overhead costs associated with operating the program. Even though the campaign raises a larger amount of money each year, it is not enough to cover the total cost of the program. Both the Bar and Legal Aid contribute additional funds to meet the expenses of DVAP. Through the years many notable Dallas attorneys have chaired the campaign, including many presidents of the Dallas Bar (including myself in 2005). This year the campaign is being co-chaired by Shonn Brown, of Gruber Hurst Johansen Hail Shank LLP, and Aaron Tobin, of Anderson Tobin, and Wayne Watts, the General Counsel for AT&T, has agreed to be Honorary Chair of the Campaign. It is quite a task to chair this campaign and requires great dedication and many, many long hours. Shonn and Aaron are more than up to the task and, as you can see from the articles on the campaign contained in this issue of Headnotes, they are already hard at work. The campaign becomes more and more sophisticated each year and now features multiple phone banks and various divisions chaired by numerous Bar leaders. The campaign is also ably assisted by the staff of both the DBA and Legal Aid. For many years the campaign has included a car raffle and this year is no exception. The campaign and the raffle are both kicking off this month and will continue through the 2014 inaugural, which will take place on January 11, 2014.

Surprisingly, even though the campaign and raffle raised over $800,000 last year, a very small percentage of Dallas lawyers (approximately 4 percent of our membership) donated to the campaign. Through the generosity of many firms and some large individual contributions, the campaign has always been a success and I am certain it will meet its goal this year of $750,000. Having said that, there is still a long way to go to meet the civil legal needs of the poor in Dallas County. It would be a dream come true if every lawyer would make a contribution, no matter how large or how small, to the campaign to demonstrate our support and commitment to “justice for all” in our community. Just as we are proud of providing outstanding pro bono service to the poor in Dallas, it would be a tremendous source of pride if we could boast that all of our lawyers supported the Equal Access to Justice Campaign. Your contribution can help HN make that a reality.

Philbin Awards Luncheon ~ Celebrating 30 Years!

Tickets Now Available!

KEYNOTE SPEAKER Aminda Marqués Gonzalez VP/Executive Editor of The Miami Herald and Pulitzer Prize Board Member EARLY BIRD RATE: TICKETS: $40 | TABLES OF 10: $400 AFTER SEPT. 13: TICKETS: $45 | TABLES OF 10 $450

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: Sally L. Crawford President-Elect: Scott M. McElhaney First Vice President: Brad C. Weber Second Vice President: Jerry C. Alexander Secretary-Treasurer: John A. Goren Immediate Past President: Paul K. Stafford Directors: A. Shonn Brown (At-Large), Rob Crain (Chair), Wm. Frank Carroll, Hon. King Fifer (Judicial At-Large), Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst (Vice Chair), Michele Wong Krause, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Karen McCloud, Christina McCracken (At-Large), Mandy Price (President, J.L. Turner Legal Association), Sarah Rogers (President, Dallas Association of Young Lawyers), Mary Scott, Scott Stolley, Diane M. Sumoski, Robert L. Tobey, Aaron Tobin and Jennifer Wang (President, Dallas Asian American Bar Association).

Advisory Directors: Tatiana Alexander (President-Elect, J.L. Turner Legal Association), Mey Ly (President-Elect, Dallas Association of Young Lawyers), Sakina Rasheed (PresidentElect, Dallas Asian American Bar Association) and Elisabeth A. Wilson (President-Elect, Dallas Hispanic Bar Association).

Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Lawrence Boyd, Frank Carroll, Andy Payne, Tino Ramirez and Ike Vanden Eykel 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: Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Dawn Fowler and Lea Dearing Vice-Chair: Jared Slade Members: Timothy Ackermann, Kevin Afghani, Vincent Allen, Natalie Arbaugh, Favad Bajaria, Matthew Baker, Martha Beard-Duncan, Jody Bishop, Lisa Blackburn, Jason Bloom, Eric Blue, Bobby Braxton, Kandice Bridges, William Brown, Eliot Burriss, Stacie, Cargill, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, Walter Dean, David Dodds, Adam Dougherty, David Dummer, Paul Garrett, Megan George, Jenny Givens, Jennifer Gjesvold, Melanie Glover, James Gourley, Virginia Greenberg, Jerry Hall, Susan Halpern, William Hammel, Jeremy Hawpe, Zachary Hilton, Kelli Hinson, Zachary Hoard, Tyler Hokanson, James Holbrook III, Ezra Hood, Mary Louise Hopson, Dyan House, Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Yoon-Joo Jung, Adam Kielich, Robert Kisselburgh, Lissa Kivett, Michelle Koledi, Susan Kravik, Shruti Krishnan, Norman Lofgren, Mallory Loudenback, Sixuan Lu, Margaret Lyle, Andrew Mayo, Ashley Mayya, Jennifer McCollum, Scott McElhaney, Elizabeth McShan, John McShane, Paige Montgomery, Nick Nelson, Yvette Ostolaza, Seth Phillips, Kirk Pittard, Irina Plumlee, Laura Anne Pohli, Robert Ramage, Gabriel Reyes, Morgan Richards, Carl Roberts, Richard Salgado, Brendan Sansivero, Brooke Schultz, Isabel Segarra, Yon Sohn, Thad Spalding, Paul K. Stafford, Jacob Stasny, Jeanette Stecker, John Stevenson, Scott Stolley, Brian Stork, Michael Sukenik, Billye Summers, Christine Tamer, Kristopher Tate, Robert Tobey, Pryce Tucker, David Urteago, Peter S. Vogel, Suzanne Westerheim and Andrew Wirmani 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 Coordinator: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law Related Education Coordinator: Kimberlynn Taylor-Corbin 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 Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Andrew Musquiz, Carmen Perales Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2013. 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.

Monday, October 7 | Noon | Belo | For tickets, log on to www.dallasbar.org

Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260.

POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

Sept e mb e r 2 0 13

D al l as Bar A ssoci ati on l Headnotes 5

Shonn Brown and Aaron Tobin Named Co-Chairs of Campaign Wayne Watts Named Honorary Chair

by Jessica D. Smith

A. Shonn Brown and Aaron Z. Tobin have been named Co-Chairs of the 2013-2014 Equal Access to Justice Campaign benefiting the Dallas Volunteer Attorney Program (DVAP) and Wayne Watts, of AT&T, has been named Honorary Chair.

“Shonn and Aaron will make a great team to lead this year’s Equal Access to Justice Campaign and we are really excited to have Wayne as our Honorary Chair. AT&T has long been a strong advocate and major donor to the Campaign and both Shonn and Aaron have been involved in the Campaign for many years. Wayne, AT&T, Shonn and Aaron are all dedicated to the mission of providing legal aid to those less fortunate in our community. I am looking forward to working with all of them and to another successful Campaign,” said DBA President Sally Crawford.

Mr. Watts, Senior Executive Vice President and General Counsel of AT&T, is a member of the Texas Access to Justice Commission, which strives to expand civil legal aid resources to low-income Texans. He also received the Business Leaders Award from Legal Aid of NorthWest Texas at the 12th Annual Women’s Advocacy Awards in May 2012. Under his leadership, the legal department of AT&T is a finalist in the Pro Bono category for the General Counsel Forum Magna Stella Award.

In addition, he is a member of the Development Board at the University of Texas at Arlington and the advi-

sory boards of the SMU Dedman School of Law and the Salvation Army’s Dallas/Fort Worth Metroplex Command.

“I am happy to be a part of this endeavor,” Wayne Watts said Mr. Watts. “It is imperative for our legal community to ensure those who are less fortunate have access to legal services, and the DVAP Campaign for Equal Access to Justice plays a large part in this goal.”

Ms. Brown, a partner with Gruber Hurst Johansen Hail Shank LLP, has been a dynamic supporter for the Campaign for many years, not only donating personally, but also serving as Co-Chair of the Corporate Division in 2012-13.

She has been active in the Dallas Bar for many years and currently serves as a Director-At Large on the Board of Directors, Chair of the Pictorial Directory Committee, Vice Chair of the Mentoring Committee, and Board Advisor to the Minority Participation Committee and the Franchise & Distribution Law Section. In 2012, she served on the DBA Board as its Secretary-Treasurer.

In addition to various roles with other service organizations, including DAYL, J.L. Turner Legal Association and the Patrick E. Higginbotham Inn of Court, Ms. Brown has also been recognized as a Super Lawyer in Texas Monthly, and one of the Best Lawyers in Dallas by D Magazine, Ms. Brown also was honored in the statewide “Multicultural Power 100” list published by the Texas Diversity Council in 2010.

“Having the opportunity to co-chair the campaign to financially support

legal services to those who need it most combines two of my passions for service: community and the bar,” said Ms. Brown.

“Every year the need for legal services to the low-income A. Shonn Brown community increases and I have observed the Dallas Bar rise to the occasion of funding those needs in a grand way, which makes me proud of our Bar. While our efforts have been mighty, there remains a lack of resources, and individuals are still unfortunately turned away. We can’t quantify the satisfaction and reward for giving, but we all know it exists. I hope that Aaron and I can continue to count on our friends, colleagues and supporters to dig deep in supporting this effort and make this year’s campaign at least as equally successful as prior campaigns.”

An accomplished trial lawyer and founding partner of the firm Anderson Tobin PLLC, Aaron Z. Tobin has been active in the Dallas Bar for many years. He currently serves on the Board of Directors and is Vice Chair of the Finance, Professionalism and Bench Bar Conference Committees, as well as the Board Advisor to the Appellate Law and Real Property Law Sections.

In the past few years, he has Chaired the Media Relations and Public Forum Committees, among others. In 2012 he was awarded a DBA Presidential Citation for his work with the Public Forum Committee.

Mr. Tobin has been named one of the Best Lawyers in Dallas by D Magazine and a Rising Star on multiple occasions in Texas Monthly by Texas Super Lawyers. In addition to his legal service,

his Dallas community service includes serving as Co-Chair of the Affair of the Art for the Junior Associates Group of the Dallas Museum of Art and serving on the Junior Asso- Aaron Z. Tobin ciates, Steering Committee, as well as serving as a volunteer with Big Brothers, Big Sisters of North Texas.

“It is a privilege to practice law in Dallas, Texas. Along with that privilege comes a responsibility that we have as practitioners to our profession, our Bar and most importantly our community,” said Mr. Tobin. “Dallas is a community of great strength, character and resources, but we have our challenges. More than a quarter of Dallas County residents qualify for legal aid due to low income. The Dallas Bar’s previous campaigns have made tremendous strides raising millions of dollars for legal aid. There is still more that we can do as nearly eighty percent of those that qualify for legal aid in Dallas County go without assistance.

“Year in and year out this Campaign brings out the best that we have to offer as a profession to our community. I am excited about the opportunity to work with Shonn, our fellow committee members, our colleagues in the Bar and our friends in the community to continue to help those who need it most have the access to justice they without question deserve.”

The Campaign will culminate at the Inaugural of 2014 DBA President Scott McEl HN haney on January 11, 2014.

Jessica D. Smith is the Communications/Media Director of the Dallas Bar Association. She can be reached at jsmith@dallasbar.org.

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Septem ber 2013

Candor with the Court: No better Way to Proceed

by Joseph M. Cox

A lawyer only has one career. It should be remembered that practicing law is a profession in which a lawyer’s reputation will be built up (and torn down) throughout the course of one’s long career.

Because you only have one reputation, you should take special care in developing one of utmost candor with the court.

Rule 3.03 of the State Bar Rules, Rules of Professional Conduct—“Candor Toward the Tribunal” — is our guide to candor with the court. This Rule sets forth that a lawyer should not knowingly “(1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (5) offer or use evidence that the lawyer knows to be false.”

I believe all lawyers know that they should not make false statements or withhold unprivileged facts from the court, but I do not believe most lawyers understand the duty and obligation to cite controlling authority on a legal issue even if the opposing lawyer does not cite it. It is unacceptable for a lawyer to hope that the opposing lawyer will not find the case that is right on point. Likewise, it is not ok for the lawyer to turn a blind eye to controlling authority.

A lawyer’s duty is to cite the controlling authority, even if it hurts your client, and then argue to the court why the controlling authority does not apply to the facts of the case at hand. While zealous advocacy should be applauded, being a zealous advocate does not entitle the lawyer to forget or ignore her obligations to the court and this great profession. And, when a lawyer cites to the controlling authority that her opposing counsel failed to cite, judges will gain a new respect for that lawyer and remember her for many years to come.

Judge Royal Furgeson has this to say about candor with the court. “Straightforward candor with the court always enhances credibility and respect, espe-

cially when it acknowledges some imperfection in the lawyer’s argument or admits to contrary authority. I say ‘straight-forward’ because some lawyers try to feign candor by talking around the question, which is not candor at all.”

Judge Carlos Cortez remembers very well when a lawyer cited adverse controlling authority when his opposing counsel failed to cite the controlling case. This lawyer cited the controlling authority and then argued why the controlling authority did not apply. As Judge Cortez states, “A lawyer can gain so much respect from the Court when he or she cites controlling adverse authority. It is refreshing and it shows that there are lawyers out there who know their ethical obligations. Candor with the court is vital to the profession and vital to the court. The court needs to know the controlling law out there so that the court can consider it and make an appropriate ruling.”

Judge Barbara Lynn gives this advice, “It is unfortunate if lawyers think they can pull the wool over the court’s eyes.

The judge will long remember the lawyer that cites adverse authority and then distinguishes it. Likewise, the judge will long remember the lawyer that does not cite

relevant case law. It is better for the lawyer to cite adverse case law than for the court to find it on its own—and assume that the court will find it.”

Finally, Judge Craig Smith summed candor with the court in this manner, “I believe that all the judges at the courthouse put candor at the top of the list for qualities of a lawyer. Being well prepared is also important but if you are less than candid with the court this will come to light sooner or later. A lawyer’s reputation is his or her greatest asset. Once damaged, it is very difficult to repair.”

I found only one reported Texas case that referenced candor with the court.

This case involved sanctions against a lawyer for misstating facts and, thereby, failing to have candor with the court.

Do you think this lawyer will be viewed highly by the court? May you always have candor with the court and may your long career be marked with distinction and honor. Honor to yourself, honor to the profession and honor to the judicial sys HN tem.

Joseph M. Cox is a partner at Bracewell & Giuliani, LLP and the former judge of the 160th Judicial District Court of Dallas County, Texas. He can be reached at joe.cox@bgllp.com.

The Trial of Lee Harvey Oswald

Justice in Education Symposium

at the Central Jury Room, George L. Allen, Sr. Courts Building, 600 Commerce Street

Monday, October 21~ 8:30 a.m. ~ Belo Mansion

Participants include:

The Jack Lowe Sr. Award for Community Leadership will be presented during the luncheon.

Friday, October 25, 2013 • 2:00 p.m. to 5:00 p.m.

Toby Shook, of Shook, Gunter & Wirskye, Defense Attorney Judge Martin Hoffman, of the 68th District Court, Presiding Judge Bill Wirskye, of Shook, Gunter & Wirskye, Prosecutor

Registration $35, includes lunch.

Contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org

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D al l as Bar A ssoci ati on l Headnotes 7

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Focus

Septem ber 2013

State Bar President’s Update

DBA State Bar President’s Update

by Lisa Tatum

One of the highlights of summer at the State Bar of Texas is Annual Meeting, which was held this year at the Dallas Anatole June 20-21. The conference was quite a success in large part due to the contributions and participation of the Dallas legal community.

In a short amount of time, we covered massive amounts of ground, from networking with old colleagues and learning 10 things we didn’t know about the U.S. Supreme Court (thank you, Justice Samuel Alito) to swearing in new officers and directors and witnessing a mock trial of Lee Harvey Oswald for the assassination of President John F. Kennedy (which ended in a hung jury). We had two intense days full of CLE programming and celebrated one of the largest 50-Year Lawyer groups in recent history. I want to thank the Dallas-based Annual Meeting Committee Chairs Beverly Godbey and Robert Witte along with each you for your valuable time and ongoing support. I hope that you will continue to be involved with the bar throughout the year.

As we look toward the fall and the start of a new academic year, I would like to bring to your attention one of my presidential initiatives focused on civics education. I was first. Vote for me! is a remarkable tool for Texas elementary school educators and students. The two-pronged multimedia project brings to light firsts in U.S. history that are part of the Texas Essential Knowledge and Skills (TEKS) standards for social studies in kindergarten through fifth grade.

The website component features historic

figures talking about their significance and contributions to society via 30-second animated spots. Students learn about U.S. presidents, judges and other consequential people who are role models, and they get to vote on which character they want their fictional school to be named after. E-reader books in both English Lisa Tatum and Spanish are also available. Following the TEKS curriculum, teachers can actually use this book over and over again—Constitution Day, Fourth of July, Black History Month, Women’s History Month—whatever the focus. Enabling teachers to talk about those characters with students means that we are constantly reinforcing this aspect of civics and giving them something that truly fills a void. To access the education tools, go to TexasBar.com/ iwasthefirst.

In addition to providing information, tools, and educational programs for the public, the bar also provides benefits and resources for attorneys.

For example, to help lawyers searching for new career opportunities, the bar offers the Texas Bar Career Center, which provides a searchable database of job opportunities, distributes an electronic Job Flash highlighting new job postings, and allows users to post their résumés and sign up for job alerts. The State Bar of Texas also provides free tools to make the business of practicing law more manageable. Casemaker, a free legal research engine, was enhanced in 2013 and now

features a faster search engine, a more user-friendly interface, and a customizable way to save searches. Law Practice Management and Office in a Flash provide support for attorneys on how to start and maintain a law office. TexasBarCLE is the state’s premiere CLE provider and offers many ways for attorneys to fulfill their MCLE requirements and continue learning, including live courses tailored for new attorneys as well as seasoned lawyers; online classes, webcasts, and MP3s approved for MCLE credit; reference works and practice manuals developed by TexasBarBooks; and showcase seminars at the State Bar Annual Meeting. Visit TexasBarCLE.com or contact TexasBarCLE to learn more about free online classes and articles as well as reduced

cost CLE and scholarships. Often forgotten is the Member Discount Program, which offers bargains and discounts on services and goods, including clothing, computers, gifts, and professional liability insurance providers.

The bar really is here to serve you.

We are in a place and time where increased member investment and greater engagement can have a significant and positive impact on our association and community. It is up to each of us to make our profession and our association better. Together we can address the issues facing us as lawyers, meet the legal needs of Texas citizens, and take care of our clients. Join the conversations. Together, let’s make a difference. I look forward to hearing from HN you.

DVAP’s Finest Sandy Fusco

Sandy Fusco is an associate in the Complex Commercial Litigation section at Weil, Gotshal & Manges LLP. Earlier this year, she worked as the Weil Gotshal Lend-a-Lawyer full-time at DVAP for three months while her firm continued to pay her salary. She assisted with client interviews at several clinics, including South Dallas, West Dallas, the Veterans’ Clinic and Wills Clinics, and worked on a variety of contested matters including probate, divorce, child custody, paternity and consumer cases. Currently, she is representing a father who is trying to obtain custody of his son and successfully obtained a temporary restraining order preventing the mother from placing the child up for adoption against her client’s wishes. In addition, the father was able to visit his newborn son in the hospital thanks to Sandy’s legal assistance. Sandy had this to say: “Working as Weil’s Lend-a-Lawyer to DVAP was absolutely fantastic. I really appreciate the courtroom experience and direct client contact I have gotten. But the best part is making a difference in my clients’ lives!” Thank you for all you do, Sandy!

Pro Bono: It’s Like Billable Hours for Your Soul.

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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

Septem ber 2013

New IRS Section 6050W: What is it, and How it Affects Attorneys

by Tracey Gavin

If you are a law firm processing credit cards, you are now subject to the newest IRS requirement—Section 6050W.

What is 6050W?

Effective Jan. 2012, The Housing and Economic Recovery Act of 2008 required the IRS to collect a 1099-K from credit card processors (LawPay, First Data) and 3rd party payment aggregators (PayPal, Square) for merchant credit and debit card transactions. This means the gross dollar amount of all transactions is now reported on a special 1099-K, regardless of returns or processing fee deductions.

What about my IOLTA?

In the case of attorneys, Section 6050W does not make a distinction between credit card transaction deposits made to a trust or IOLTA bank account and an attorney’s operating bank account. This has many attorneys concerned the IRS will view these transactions incorrectly as income. However, there are two important items to note: (1) the new 1099-K is only intended to

be “informational,” and (2) your processor should include a merchant industry code on your 1099-K identifying you as a law firm or provider of legal services.

The reporting requirements under section 6050W require credit card processors to report to the IRS on Form 1099-K the total gross amount of payment card transactions processes for each client over the calendar year, without reduction to account for amounts deposited into IOLTAs. Although there are few instructions from the IRS informing taxpayers on how to account for discrepancies between 1099-Ks issued to them and amounts reported on the taxpayer’s return, it is clear that the IRS does not intend the Form 1099-K to match net, taxable, or even gross income. Thus, the amount shown on the Form 1099-K will not in all instances be required to be reported as income.

Match or Mis-Match?

In addition to the gross volume reporting, Section 6050W also requires processors to verify and match your federal tax ID and legal name to IRS records. Due to technology limitations with most Visa & MasterCard proces-

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sors, merchant statements are usually limited to only 25-35 characters. As such, many law firms’ merchants have either abbreviated their name or used an acronym for their merchant account.

If this is the case, you will need to contact your processor to assure that your legal name on your merchant statement exactly matches the legal name you use to file your tax returns.

Painful Penalty

In 2013, the IRS may begin imposing a 28 percent withholding penalty on all credit card transactions if the merchant information on file is not an exact match with their records.

Due to the steep withholding penalty, it is imperative that you confirm the information on your 1099-K. While the IRS requires your processor to send a notification, in the case of a mismatch, the ultimate liability lies squarely with you and your firm.

No Need for Alarm

The intent of Section 6050W is to assist the IRS in identifying businesses not filing accurate tax returns. The IRS appears to be targeting businesses most likely to omit or avoid reporting correct

tax information.

Referring to the 1099-K, IRS FAQ documentation states, “Separate reporting of these transactions is not required.”

For more information visit www.irs.gov/ uac/General-FAQs-on-New-PaymentCard-Reporting-Requirements.

Summary

While the new 6050W requirement requires your Tax ID and name match what is on file, the new rule should have minimal impact on your business.

The benefits of accepting credit cards are far more impactful. Offering your clients flexible payment options while getting paid quickly and securely far outweighs any potential obstacles.

For more information visit www.

IRS.gov or consult directly with your tax advisor.

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MCLE 3.00 | 1.00 Ethics each evening Sponsored by the DBA Family Law Section and DVAP

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Dal l as Bar A ssoci ati on l Headnotes 11

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

Septem ber 2013

Real Estate/Construction Law

Do Not Forget Your Certificates of Merit!

by Jason L. Cagle and Nick S. Brooks

An owner discovers its newly built structure has a problem and believes the design may be partially or entirely to blame. In a dispute with an architect or engineer outside the construction context, the plaintiff would file suit based on fact allegations rather than including any evidence to support the claims. The plaintiff might eventually retain experts to evaluate the cause of the problems during the discovery process. But in any case involving problems arising out of the provision of professional services by an architect or engineer, Texas law requires the plaintiff to provide a certificate of merit with the original petition. Failure to file an adequate certificate of merit or, even worse, failing to file one at all, can result in dismissal of the petition.

Under Chapter 150 of the Texas Civil Practice and Remedies Code, a certificate of merit is a sworn statement from a licensed architect or licensed

professional engineer. The certificate of merit is not valid unless it shows the professional making the sworn affidavit: (1) is competent to testify; (2) has the same professional license or registration as the defendant; and (3) is knowledgeable in the defendant’s area of practice based on the professional’s knowledge, skill, experience, education, training and practice.

Chapter 150 requires the certificate of merit to specifically set out the negligent acts, or other acts or omissions, for each theory of recovery for which damages are sought. It is not just required in cases involving negligence, but rather must be filed in all suits arising out of the provision of professional services regardless of the claims asserted. The certificate must also set forth the factual basis for each claim. Some courts require certificates of merit to state facts supporting each element of all claims. In others, the certificate of merit need not address claims such as a breach of contract

or breach of warranty, under the reasoning that allegations of professional errors and omissions are sufficient.

When in doubt of which standard will be applied, plaintiffs should err on the side of caution and include facts supporting all claims.

Practically speaking, obtaining a certificate of merit requires the plaintiff to gather a significant amount of information regarding the causes of its problems much sooner than normal.

Without such information, the architect or engineer issuing the certificate of merit may not have enough facts to support his or her opinion.

While the engineer or architect issuing the certificate of merit must practice in the same field as the defendant, the affidavit does not need to state that specifically. Courts have interpreted the requirement broadly, and generally do not require that engineer or architect to practice in the same sub-specialty as the defendant.

If the certificate of merit fails to

SEP T EMBER 16 TH – 17TH 2013 HILTO N R IV ER SI DE , N E W ORLE ANS, L A

meet the requirements of Chapter 150, the court must grant a motion to dismiss on this basis from the defendant.

Architects and engineers are wellaware of their rights under the law and often seek dismissal where certificates lack sufficient detail or (as is common) are not filed at all. Defendants should be aware, however, that it is possible to waive their right to seek dismissal for failure to file an adequate certificate of merit. Courts evaluate whether such waivers have occurred based on a totality of the circumstances.

The court may dismiss all claims to which the certificate of merit is insufficient and may elect to dismiss those claims with prejudice. Even if dismissal is without prejudice, it can cause significant problems if the case was filed near the end of the limitations period.

Moreover, the Courts of Appeal disagree on whether a plaintiff may cure issues raised in a motion to dismiss by filing or amending the certificate of merit. In other words, a plaintiff may only get one chance to get the certificate right.

Certificates of merit can require a plaintiff to expend significant costs at an early stage in the litigation process.

The penalties can be severe if the plaintiff does not include sufficient information to meet statutory requirements. As such, they can be a trap for the unwary HN in construction cases.

Jason L. Cagle and Nick S. Brooks are attorneys at Griffith Davison & Shurtleff, P.C. They can be reached at jcagle@ gndlaw.com and nbrooks@gndlaw.com, respectively.

Celebrating 31 Years!

DVAP’s Pro Bono Awards Celebration Save the Date: Wednesday, October 30, 5:30 p.m.

The Pavilion at the Belo Mansion Hosted by the Dallas Volunteer Attorney Program

A legal and practical workshop for the oil and gas industry at large. Attorneys and those involved in operations and land activities throughout Louisiana are encouraged to attend this educational event.

Louisiana CLE accreditation: 11.5 CLE credits, including 1 CLE Ethics and 1 CLE Professionalism.

Texas CLE accreditation: 10 CLE credits, including 2 CLE Ethics.

AAPL Accreditation: 11 RL/RPL continuing education credits, 11 CPL recertification credits, which includes 1 Ethics credit.

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Thursday, September 12, at 6:30 p.m. at Dallas City Hall Plaza Benefitting the Assist The Officer Foundation Paying tribute to the victims and heroes of 9/11.

Register Online at www.freedomrun.com Organized by the Dallas Association of Young Lawyers.

Sept e mb e r 2 0 13

Focus

D al l as Bar A ssoci ati on l Headnotes 13

Real Estate/Construction Law

What You Need to Know about the Commercial Eviction Process

by Karen L. Hart

Texas landlords have a statutory right to lockout commercial tenants delinquent in paying rent. However, Texas landlords must follow lease and statutory requirements. Commercial landlords and tenants may find themselves engaged in eviction proceedings where lockout is improper, insufficient, or impracticable. This article provides a basic overview of commercial lockout and eviction procedures in Texas.

A landlord failing to follow lease terms, including any default notices, or statutory lockout procedures, which require posting written notice on the tenant’s front door stating the name and address or telephone number of the individual or company from which a new key may be obtained upon payment of rent, may end up in a tenant tussle over wrongful lockout, which may result in the tenant regaining possession of the premises, termination of the lease, loss of rent claims and claims for damages against the landlord.

Claims for damages for wrongful lockout may be brought separately from, or along with, a suit for reentry, if the claim is within the $10,000 justice court jurisdictional limit. The justice court in the precinct where the premises are located has exclusive jurisdiction over the reentry suit. A writ of reentry may be issued ex parte on a temporary basis until final hearing on the sworn reentry complaint.

Faced with unfeasible lockout or a writ of reentry, an eviction suit may be necessary. Statutory forcible detainer proceedings are intended to provide a fast, simple, and inexpensive method

of regaining possession of property from an uncooperative tenant. The justice courts have exclusive jurisdiction over forcible detainer actions. If within jurisdictional limits, a breach of lease claim for rent owed may be filed along with the eviction suit, or it may be filed separately in district or county court.

A forcible detainer action only determines the right to immediate possession of real property if there is no unlawful entry (e.g., trespassing).

Forcible detainer suits do not resolve title issues.

Unless a shorter or longer notice period is contracted, a landlord is required to give the tenant at least three days written notice to vacate before filing a forcible detainer suit. In the absence of an attorneys’ fee provision in the lease, notice to vacate and demand for possession must be provided to the tenant at least 11 days before filing suit to evict to secure attorneys’ fees in the eviction action.

The sworn complaint for forcible detainer must describe the property claimed and state facts sufficient to show entitlement to possession. The citation must command defendant’s appearance before the court not more than ten days or less than six days from the date of service.

If the defendant fails to appear, default judgment may be rendered on possession and unpaid rent sought.

With payment of the jury fee, a jury trial may be demanded on or before five days from the citation service date. Otherwise, the case is tried to the justice. The parties may represent themselves or be represented by their authorized agents. Corporations are

not required to be represented by an attorney in justice court.

A prevailing landlord is entitled to judgment for possession of the premises and a writ of possession. A writ of possession may not be issued before the sixth day after the date on which the judgment for possession is rendered, unless a possession bond has been filed and approved.

The sheriff or constable executing the writ of possession shall post written warning on the front door of the leased premises notifying the tenant that the writ has been issued and will be served on or after a specific date and time stated, not sooner than 24 hours after the warning is posted. Upon execution of the writ, the officer shall deliver the premises to landlord, instruct the ten-

ant and all persons claiming under tenant to leave, and, if they fail to comply, physically remove them and instruct the tenant to remove or allow the landlord to remove all personal property from the premises. The officer may use reasonable force in executing a writ of possession, but may not require the landlord to store the tenant’s property.

The final judgment entered by the justice court may be appealed exclusively to the county court. Appeal must be perfected within five days after the judgment is signed by filing an appeal bond with the justice court.

The county court proceedings are de HN novo.

Karen L. Hart is a partner at Bell Nunnally & Martin LLP, and can be reached at karenh@bellnunnally.com.

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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

Septem ber 2013

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Se pt e mb e r 2 0 1 3

Dal l as Bar A ssoci ati on l Headnotes 15

Column Ethics

Multiple Client Representation in Texas: Which Ethics Rule Applies?

by Prof. Fred C. Moss

You have been asked to represent Kompany and its CEO in a lawsuit.

After speaking with the chair of Kompany’s board and the CEO, you sense that the board and the CEO have rather different ideas about how the suit should be handled. You would like to represent each of them, but do not want to get into the middle of a spat between co-clients. Can you? What decisions, what disclosures must you make; what waivers must you receive?

You turn to the Texas Disciplinary Rules of Professional Conduct for guidance. You read rule 1.06, the general conflict of interests rule. Then you notice rule 1.07, “Conflict of Interest: Intermediary.” Which rule applies?

The question is important because rule 1.07 requires a great more “due diligence” than rule 1.06 before accepting the joint representation.

For example, after wading through rule 1.06 and its 18 comments, you appear to be required to: 1. Determine whether the two parties interests are “materially and directly adverse,” or reasonably may become so; 2. Reasonably believe neither client will be adversely affected by joint representation; and 3. Get consent from both clients after full disclosure of the existence, nature, implications, and possible advantages and disadvantages of joint representation, such as that you will have to withdraw from representing both clients if an irresolvable conflict arises, unless both consent to your continued representation of one.

However, according to rule 1.07, before you can be an “intermediary” between clients, you must: 1. Reasonably believe: a. You can be impartial to both clients; b. The matter can be resolved in both clients’ best interests; c. Each client is able to make informed decisions; and d. Neither client will suffer material prejudice if the intermediation is unsuccessful; and 2. Consult with each client on the “implications” of common representation, including: a. Its limiting effect upon the lawyer-client privilege; b. If an irresolvable conflict arises, you must withdraw from representing both clients unless both agree otherwise; c. You must be impartial toward both clients, and as a result, d. Each client will have to assume greater responsibility for making decisions than if separately represented; and 3. Get written consent from both.

You are puzzled. While you have been asked to represent the company and its CEO individually in a lawsuit, you foresee clearly that in the process you will have to intermediate some disagreements between the two. Which rule must you follow?

Guidance is provided by Texas Ethics Opinion 512 (58 Tex.B.J. 1147, June 1995). Opinion 512 interpreted the rules as covering two different species of multiple representation. Rule 1.06, it held, covers representation of multiple clients against a common

adversary, as in a lawsuit or a business transaction. Rule 1.07, on the other hand, applies when two or more clients “seek to consummate a transaction or resolve a dispute among themselves.” Examples implicating rule 1.07 include assisting clients in forming or reorganizing a business, arranging a property distribution in settling an estate, or “mediating a dispute between clients.” Another example, found paradoxically in a comment to rule 1.06, is the preparation of wills for family members.

While Opinion 512’s interpretation is helpful, the distinction is not easily applied. Every joint representation may demand intermediation between the clients. Must a lawyer engage in rule 1.07’s expanded due diligence before undertaking every joint representation? Is it ever safe to undertake only rule 1.06’s limited due diligence?

It is clear rule 1.07 is intended to apply to intermediation between prospective co-clients and existing coclients, and that for existing co-clients, rule 1.07’s greater due diligence is required only when a dispute arises.

But, rule 1.07 requires consent to

the intermediation to be in writing.

(Rule 1.06 does not require written consents.) Must the lawyer present a written disclosure/waiver to disputing co-clients to sign after the lawyer has been representing them for years against a common foe? Is it only when a dispute arises that the lawyer must disclose that she must be impartial toward all and that they individually must assume greater decision-making responsibility? Is it only then that the lawyer must reveal that there is no lawyer-client privilege between co-clients and that the lawyer cannot keep one client’s secrets from the others?

Since this makes little practical sense, prudent lawyers should ignore the implications of Opinion 512 and follow the dictates of rule 1.07 before EVERY joint representation, whether it is against a common adversary, to mediate a dispute between clients, or HN both.

Fred Moss is Professor of Law (Emeritus) at S.M.U.’s Dedman School of Law, where he taught legal ethics. A member of the State Bar’s Committee on the Texas Disciplinary Rules of Professional Ethics, the views expressed are his alone.

He can be reached at fmoss@mail.smu.edu.

Thank You, Bar None Sponsors!

The Dallas Bar Foundation salutes and thanks John Horany for being a Bar None XXVIII Star sponsor and supporting the Sarah T. Hughes Diversity Scholarships.

16 H e a d n o t e s l D a l l a s B a r A s s o ciation

Septem ber 2013

Welcome Back!

Welcome back to the newly renovated Belo Mansion. With so many excellent Committee and Section events to take advantage of, which one will you attend.

DVAP, DAYL, TYLA and the SBOT Family Law Section presented a “How to Do a Pro Bono Divorce” CLE with speakers throughout the afternoon, including Emily Miskel,of KoonsFuller, P.C. The DBA Energy Law Section hosted its’ Annual Review of Oil & Gas Law symposium, which was sponsored by Eagle Land Services. Section officers attending included: (left to right) Michael Goldman, Roger Beecham, Rhodes Hamilton, Jordyn J. Christian-Gingras and Ryan Sears.

At a recent board meeting, 2012-2013 Campaign Chair Michael Hurst (right) presented the final Campaign check to Joel Winful, CEO of Legal Aid of NorthWest Texas.

(Left to right) Julie Kaplan Griffis, SLIP Co-Chair, DBA President Sally Crawford, DBA Immediate Past President Paul K. Stafford and Erin Peirce, SLIP Co-Chair at the Summer Law Intern Program year-end event.

The DBA Trial Skills Section presented a CLE on “iPad Skills for Trial Lawyers,” with (left to right) Quentin Brogdon, Robert Tobey and Tom Mighell.

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Sept e mb e r 2 0 13

Focus

Dal l as Bar A ssoci ati on l Headnotes 17

Real Estate/Construction Law

Flow-Down Indemnity Clauses in Construction Contracts

by William “Bill” Gardner

Like all contracts, construction contracts involve the proper allocation of risk.

Owners typically require indemnity from general contractors for certain events. In turn, general contractors often employ “flow-down” clauses to transfer those indemnity obligations to subcontractors performing the work.

A “flow-down,” “flow-through” or “pass-through” clause is a contractual provision that incorporates by reference the terms of the prime contract into the subcontract. A typical flow-down clause reads: “Subcontractor assumes all obligations and responsibilities that the Contractor assumes toward the Owner for Subcontractor’s part of the Work.” Limitless variations on the wording of a flow-down exist. Some flowdown clauses list the prime contract as an exhibit or addendum to the agreement between the prime contractor and subcon-

tractor.

In theory, a general flow-down clause causes all obligations and duties owed of the general contractor to “flow-down” to the subcontractor. However, in complex construction litigation, the issue of whether a flow-down clause can effectively bind a subcontractor to an indemnity provision of the prime contract frequently arises.

Texas courts generally apply flow-down clauses to obligations directly related to the scope, quality and character of the subcontractor’s work. However, when faced with the argument that a flow-down clause incorporates an upper-tier indemnity provision into a lower-tier contract, courts most often strictly construe the flow-down clause, making it ineffectual to support indemnity between the lower-tier parties.

Mere reference to another document does not incorporate the entire document when the language used in the clause

does not indicate the parties’ intent to do so. No particular language is required to incorporate a document by reference. All that is necessary is that the parties’ intent is plainly expressed. Therefore, to effectively flow indemnity obligations to a subcontractor, the subcontract should specifically reference or incorporate the indemnity obligation to demonstrate the parties’ intent to be bound.

For example, in LeBlanc v. Gulf Bitulithic Co., a subcontractor signed a subcontract containing a clause binding it “to the terms of the general conditions, drawings, specifications, addenda and alternates and to assume toward the Contractor all the obligations and responsibilities that the Contractor assumed…toward the Owner, insofar as they are applicable to the Sub-Contractor.” Because the terms of the prime contract were incorporated only as they were applicable to the sub-contractor, the Twelfth District Court of Appeals found that the parties did not intend to incorporate all provisions of the prime contract.

Because the prime contract’s administrative indemnity clause had no relation to the subcontractor’s work, the Court found that the indemnity obligation was not effectively incorporated into the subcontract and no indemnity obligations were owed to the general contractor.

Even if indemnity obligations are intended to flow-down to a subcontractor, enforceable indemnity provisions must comply with Texas’ new anti-indemnity act. This legislation is codified as Chapter 151 of the Texas Insurance Code and is referred to colloquially as the “Texas Anti-Indemnity Act.” The Act generally prohibits upstream parties from receiving indemnification from downstream parties (such as a subcontractor) when the

upstream party, (such as a general contractor) is negligent.

The Act applies to original construction contracts entered into on or after January 1, 2012. The Act’s application to a particular construction contract is determined by when the parties entered into the “original contract.” If the prime agreement is entered into before January 1, 2012, then the Act is inapplicable to subcontracts entered into later in 2012.

However, the Act does not apply to all construction contracts. Section 151.105 lists twelve exclusions that render the Act inapplicable. While a complete discussion of the Act’s exclusions is beyond the scope of this article, two stand out. First, the Act does not apply to construction contracts for a single-family house, townhouse, duplex, or land development related thereto. Second, the Act does not apply to municipal public works projects.

Finally, section 151.103 contains a separate statutory exclusion for employee injury and death claims. Section 151.103’s exclusion states that the Act does not apply to agreements requiring the indemnification of a party for a claim of bodily injury or death of an employee of the indemnitor or its subcontractor of any tier. Therefore the indemnity regime for wrongful death and injury claims for an indemnitor’s employees remains unchanged by the Act. Accordingly, contractors must ensure that the intent to bind subcontractors to flow-down indemnity provisions is evident in their subcontracts and that indemnity provisions in construction contracts comply with the Texas Anti HN Indemnity Act. William “Bill” Gardner is an associate at Macdonald Devin, P.C. and can be reached at bgardner@macdonalddevin.com.

18 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

Septem ber 2013

Real Estate/Construction Law

Protecting Owners against Lien Affidavits

by Michael L. Hood

A mechanic’s lien filed against an owner’s property can cause chaos for the owner. It may cloud title or put the owner in default of lender restrictions.

There are two often overlooked provisions of the Texas Property Code to protect an owner from liens: (1) the “summary lien removal” procedure; and (2) the “bond around” payment bond.

Summary lien removal. When a lien claimant files suit to foreclose a lien, or an owner files suit to declare a lien invalid, the owner may file a motion with the court to remove the lien. Texas Property Code Section 53.160 sets out the procedure. A verified motion must state the legal and factual basis for objecting to the lien. There are 7 grounds on which the owner can object and have the lien removed, such as the lien claimant did not follow the form, filing or notice requirements relating to a lien affidavit. There are also grounds for removal relating to statutory retainage and homestead property.

The motion can be heard on 21 days’ notice. At the hearing, the owner has the burden of proof on most of the grounds.

Following the hearing, the court promptly determines whether the owner is entitled to have the lien removed. If the court determines that the owner is entitled to have the lien removed, the court will order the removal of the lien.

In that case, the court also must set the amount of the bond that the lien claimant must provide in order to stay removal. If the lien claimant timely and properly files the bond with the clerk, the court must stay the removal order.

If the lien claimant fails to provide the bond within 30 days, the owner can obtain a certified copy of the order and a certificate from the clerk that no bond has been filed and record those two instruments in the real property records.

When that is done, the lien is removed and extinguished as to any creditor or subsequent purchaser for valuable consideration.

Because the order removing the lien is not a final judgment, the litigation

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between the owner and the lien claimant may continue. If the claimant does not furnish the bond in a timely fashion, but nonetheless obtains a final judgment that establishes the validity of the lien, the lien claimant may file a certified copy of the judgment with the county clerk. When the judgment is filed, the lien is revived, and the lien claimant is entitled to foreclose on the lien. However, the lien is not revived as to creditors or purchasers for value who obtain their interest in the property after the lien was removed but before the final judgment reviving the lien was filed with the county clerk. Attorney’s fees are recoverable in a proceeding to declare that a lien is invalid as the court deems “equitable and just.”

“Bond around” payment bond. Texas Property Code Sections 53.171-.175 provide that an owner may file a “bond around” payment bond to “discharge” a lien already filed. The bond must be filed with the county clerk in which the property is located and properly served upon the lien claimant. The bond must

describe the property, refer to the lien, and be double the amount of the lien referred to in the bond (unless the lien exceeds $40,000, in which case the bond must be the greater of 1 1/2 times the lien amount or $40,000 plus the lien amount), payable to the lien claimant, executed by the party filing the bond as principal and an authorized corporate surety, and conditioned that the principal and surety will pay the lien claimant as if its lien had been proven to be a valid. The owner must provide proper notice of the bond to the lien claimant. The county clerk records the bond, the notice and a certificate of mailing in the real property records. The lien claimant must file suit on the bond within one year after the bond notice is served or after the underlying claim became enforceable. Similar to the lien removal action, attorneys’ fees are recoverable in actions involving “bond around” bonds as the court deems HN “equitable and just.”

Michael Hood is a partner at Haynes and Boone, LLP. He can be reached at michael.hood@haynesboone.com.

Professionalism Tip Re-read the Dondi opinion, 121 F.R.D. 284 (N.D. Tex. 1988), the Dallas Bar Association Guidelines of Professional Courtesy and the Lawyer’s Creed adopted by the Dallas Bar Association, and take inventory of how these standards are being applied in your practice. Strive always to apply these standards, and the fundamental duties of personal dignity and professional integrity in your practice as a lawyer.

Provided by the DBA Professionalism Committee

Sept e mb e r 2 0 13

Focus

Dal l as Bar A ssoci ati on l Headnotes 19

Real Estate/Construction Law

Lending to a Series LLC

by Gordon Russell and Michael Attaway

The Series LLC is a relatively new form of business entity in Texas. It was added to the Texas Business Organizations Code in 2009. Because the Series LLC is new, many attorneys and bank officers are unfamiliar with the opportunity and risks a Series LLC presents.

A “Series LLC” is literally different constituent “Series” within the structure of a single LLC. The Series LLC itself is the “Parent”, which is formed by filing a certificate of formation.

After the Parent is formed, members of the Parent can create the individual Series with no additional public filing.

Instead, the individual Series can be automatically created under the operating agreement when a new asset is purchased.

Each Series is treated as a separate legal entity with its own assets and liabilities. Accordingly, it functions in the same manner as a number of traditional, single asset LLCs created by the same members. Individual Series may separately enter into contracts, buy and sell property, borrow money, and do anything else a traditional LLC can do.

Most importantly for lenders, creditors of one Series may not reach the assets of any other Series or the Parent. Series LLCs often take advantage of their structure by making the Parent a shell management company with no assets.

A Series LLC limits a creditor’s access to a borrower’s assets and credit by placing assets in a separate Series, therefore, lending to a Series LLC can be perilous. Accordingly, a lender must take steps to protect itself. Those

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steps are (a) careful due diligence, (b) appropriate representations and warranties regarding corporate structure, (c) where appropriate, a legal opinion of borrower’s counsel, and (d) guaranties of the Parent and its principals or sponsors.

A lender should ensure all loan documents are entered into with the specific Series with which the lender intends to contract. In doing so, the lender must determine which Series actually owns the collateral that will secure the debt and whether that Series has sufficient assets and cash flow to repay the loan.

Determining the assets of a specific Series may be difficult. There is no required public filing when the Parent creates a Series, therefore, there are no public records that can be used to determine the existence of a Series.

Accordingly, the lender must look to the borrower or borrower’s counsel for this information.

The lender must be diligent in obtaining and analyzing objective proof of ownership. The best proof of ownership is a contract, bill of sale, or deed. In order for the asset to be protected from creditors, the bill of sale or deed must transfer the asset to a specified Series. If it does not, it becomes a general asset of the Parent as a whole and may be reached by a creditor of any Series.

The lender should obtain representations and warranties designed to protect against the risks posed by the Series LLC. It should require the borrowing Series to warrant it is the owner of the collateral and any other assets that will secure repayment of the loan.

law

Further, the loan documents should include clear restrictions on transfer of any property between the Series.

The risks inherent in lending to a Series LLC described above also emphasize the importance of guaranties from the sponsor or principals of the borrower and of the Series LLC Parent of all extensions of credit to a Series LLC and to individual Series.

The challenges of lending to a Series LLC are compounded because the lender will be negotiating with the Parent. Because the Parent generally has no assets, contracting with it can be fatal. Accordingly, it is fundamental that the lender require actual proof of ownership of assets before making a

loan. If the lender does not ascertain proof and the Parent management does not understand how a Series LLC works with respect to ownership of the collateral and other assets and obligations to repay debt, a lender could have a claim against an entity with no assets.

There is fashion in the law as elsewhere. The Series LLC is the next big thing in business entity selection. But beware of new shiny things: a Series LLC can become a Trojan horse for HN lenders.

Gordon Russell is a partner and Michael Attaway is an associate at Kane Russell Coleman and Logan PC. They can be reached at grussell@krcl.comand mattaway@krcl.com, respectively.

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20 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

Septem ber 2013

Real Estate/Construction Law

The Texas Trend Toward Strict Enforcement of Construction Contracts

by Neal J. Suit

While no construction contract is identical, many are often, and understandably, form-driven. However, in light of the trend in Texas to strictly enforce certain clauses in construction contracts, particular care needs to be taken in negotiating and drafting construction contracts.

Perhaps the most glaring example of the trend toward strict enforcement of construction contracts is the recent change in treatment of no damages for delay clauses. Texas courts traditionally have permitted certain common law defenses, many of which include an intentional misconduct component, to bar enforcement of the no delay damages clause.

However, in the 2012 case of Port Authority of Houston v. Zachry Construction Corp., a Houston appellate court found that it was error for the trial court to have allowed the jury to even consider

these common law exceptions. Noting the parties’ freedom to contract and that the clause at issue expressly contemplated that there would be no compensation for the contractor even for delays caused by the owner, the Court enforced the no damages for delay clause. This holding resulted in a reversal of a judgment in excess of $20 million.

It is important to note that, as of the drafting of this article, Zachry is pending before the Texas Supreme Court, which has requested briefing on the merits.

While practitioners wait for the Texas Supreme Court’s opinion, they should appropriately modify their approach to drafting delay damages clauses based on Zachry’s holding and counsel their clients regarding the same.

At least for the moment, there is substantial doubt raised as to whether any common law exceptions can be applied to prevent enforcement of a no delay damages clause. Under the current regime, owners should seek no damages

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for delay clauses with broad application, including for delays caused by the owner.

Even if owners are unable to secure blanket no damages for delay clauses, owners can attempt to negotiate only limited exceptions to these clauses, such as limiting the remedies available for delays to only time extensions or those direct costs incurred due to the delay.

Conversely, a contractor, if it accepts the inclusion of a no delay for damages clause, still can minimize its risk. For example, contractors can seek to define what types of delay are within the scope of the clause, whether it is the exclusion of delays caused by anyone other than the contractor or specifying that “unforeseen delays” are excluded from the scope of the clause. Contractors can also specify that certain events are distinct from delays and are compensable events.

These events would include changed site conditions or discovered errors or omissions in design documents and specifications. Finally, a contractor, if left with no choice but to accept a broad scope no delay damages clause, can seek to increase the contract award as recognition of the risk being allocated to the contractor.

In another example of the recent Texas trend toward strict enforcement of construction contract terms, in August 2012 the appellate court in Cajun Constructors, Inc. v. Velasco Drainage affirmed a trial court’s dismissal of a suit because of the failure to comply with certain notice provisions. The contract at issue required Cajun, the contractor, to give written notice to the project’s engineer of any claim or dispute. Ultimately, the engineer would render a decision on the

claim. If the decision were adverse to the contractor, it could only bring suit if it first notified the owner and the engineer of its intent to appeal the engineer’s decision.

In Cajun Constructors, the trial court ultimately dismissed Cajun’s breach of contract claim because it failed to provide the notice to the owner and the engineer of its intent to appeal the engineer’s decision before filing suit. While the contractor argued the only condition precedent to the filing of a suit was the engineer’s decision, the trial court deemed this notice provision a condition precedent to the contractor initiating its lawsuit and thus dismissed the suit.

This result provides another reminder that parties must carefully draft and fully understand the terms of their construction contract because courts will typically enforce it as written. Obviously, some clauses, such as notice provisions or change order processes, are more likely to contain specific procedural steps. In these cases, parties should, whenever possible, recognize and follow the specific contractual hoops they must jump through, even if technical or burdensome, or else risk losing their claims related to that aspect of the contract.

Depending on one’s perspective, the trend toward strict enforcement either exalts the freedom of contract or ignores common sense and equity. In either case, parties to construction contracts in Texas cannot expect courts to look past the specific, bargained-for terms, even if the result in particular circumstances could HN be considered draconian.

Neal Suit, a partner at Carrington Coleman Sloman & Blumenthal, LLP, can be reached at nsuit@ccsb.com.

Sept e mb e r 2 0 1 3

Focus

D al l as Bar A ssoci ati on l Headnotes 21

Real Estate/Construction Law

Defective Construction Work Claims In Texas

by Jason R. Kennedy

Defective work claims in commercial construction tend to be complicated because of the subject matter and the number of parties that are typically involved. The first two of the many difficult questions that a project owner must answer are who can it sue, and what causes of action are available?

A defective work claim can arise out of a failure to follow plans and specifications, defects in workmanship, or defects in products or materials. The causes of action available to the owner can include breach of contract, breach of express or implied warranties, and negligence, depending on where the owner and defendant are in the construction chain and whether there is privity of contract between them. Construction defects can also arise from design errors by the owner’s design professionals, but defective design claims are outside the scope of this article.

Of course, the owner’s first and most direct route to recover its damages is by way of a breach of contract claim against the general contractor.

If the defect was caused by a failure to follow plans and specifications, such failure is a breach of contract. In addition, a defect in workmanship is also a breach of contract. Most construction contracts expressly provide that the contractor has a duty to perform the work in a good and workmanlike manner, and if a contract does not do so, Texas law will imply such a duty.

Whether an owner can sue the general contractor for breach of contract for defective construction materials

or products will depend upon the language of the contract. Almost all construction contracts today do include a duty to supply materials that are free from defects. If the general contract lacks such provision, however, an owner’s only recourse may be against the seller, distributor or manufacturer of the materials under a negligence theory or UCC implied warranties.

Construction contracts also often include express warranties, and may refer to the duties to perform in a good and workmanlike manner and to provide materials that are free from defects as “warranties.” Of course, whether such obligations are a “contractual duty” or a “warranty” is a distinction without a difference, because express warranties are creatures of contract and the breach of any express warranty is, in essence, a breach of contract. Many express warranties attempt to limit the time within which claims must be brought, but any contract clause attempting to limit such time to less than two years is void under Texas law.

The general contractor, if faced with having to answer alone for all damages, almost always adds numerous subcontractors and suppliers to the suit and seeks participation from them in any settlement or judgment. Nevertheless, a wise project owner will bring direct claims against subcontractors and suppliers who may be responsible for the construction defects, rather than rely on the general contractor to bring in responsible parties, or depend on the general contractor’s or its insurance carrier’s ability or willingness to pay damages. A cause of action for breach of contract is not typically available for

such purpose, but negligence may be.

That said, in construction defect cases, the economic loss rule has been applied to preclude tort claims when: (1) The tort claims are brought to recover economic losses when those losses are the subject matter of a contract (and both plaintiff and defendant are in the same contractual chain), or (2) The tort claims are brought to recover economic losses against the manufacturer or seller of a defective product where the defect damages only the product and does not cause “personal injury” or damage to “other property.”

However, where a subcontractor’s sub-standard work or a seller/manufacturer’s defective product lead to injury to other parts of the project other than the subcontractor’s own work or to the product itself—e.g., where the subcontractor’s defective window installation or the seller/manufacturer’s defective windows themselves allow water

to intrude and damage the interior of the project—then an owner may be able to claim damages in negligence directly against the subcontractor or seller/manufacturer. However, different Courts of Appeals have come to different conclusions in similar cases, and so the outcome is uncertain.

Finally, in cases involving defective products, all parties in the construction contract chain may assert claims against the seller, distributor, and manufacturer pursuant to the UCC implied warranties of merchantability and fitness for particular purpose provided by the Texas Business & Commerce Code, as privity of contract is not required for such claims. However, a project owner should bear in mind that such warran HN ties can be disclaimed.

Jason R. Kennedy is a partner at Thomas, Feldman & Wilshusen, L.L.P. in Dallas and can be reached at jkennedy@tfandw.com.

Probate Law Symposium 2013 October 2, Noon- 4:00 p.m. at Belo Social Hour, with Cash Bar Available: 4:00 to 5:00 p.m.

Fee: $50 or free for those agreeing to assist a future DVAP client.

MCLE 4.00, Including Ethics For a registration form, contact reed-brownc@lanwt.org Questions? Contact steven@lemonshallbauer.com

Sponsored by DVAP and DAYL Elder Law Committee

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22 H e a d n o t e s l D a l l a s B a r A s s o ciation

In the News

Septem ber 2013

Miami Editor to Keynote Philbins

September

FROM THE DAIS

Regional Director of the National Bar Association during the annual convention on July 28. She is responsible for Texas, Mississippi, Louisiana and the Canal Zone. She was also reappointed as Co-Chair of the Council of Chairs for the State Bar of Texas for 20132014.

Joel N. Crouch, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke to the Brazos Valley Chapter/TSCPA. Anthony P. Daddino, of the firm, spoke at a national Accounting Continuing Professional Education Network broadcast. Alan Davis spoke at the 2013 Graduate Texas Trust School sponsored by the Wealth Management & Trust Division of the Texas Bankers Association. Josh O. Ungerman spoke in New York at the NYU 5th Annual Tax Controversy Forum, and at a national Accounting Continuing Professional Education Network broadcast, and also spoke at the Tax Alliance Conference 2013.

MOVE

Felicia Finston, of Wilkins Finston Law Group LLP, spoke at the South Texas College of Law Employment Law seminar.

Megan Carter and J. Michael Thomas have joined Gardere Wynne Sewell LLP as Associates.

Audrey Moorehead, of the Law Offices of Audrey Moorehead, PLLC, spoke at the L. Clifford Davis Legal Association (formerly, Tarrant County Black Bar Association) on the topic: The Successful and Ethical MultiCounty Practice of Law.

Megan Dredla Hoyt has joined Thompson & Knight LLP as Counsel.

KUDOS

Sonja J. McGill, of JC Penney Corporation, Inc., has been accepted as a member of the 2013-2014 Leadership Dallas class for the Dallas Regional Chamber of Commerce.

Darin Klemchuk, of Klemchuk Kubasta LLP, has been selected to participate in a new quarterly educational Internet radio podcast titled, Law Review.

Cheryl Camin Murray, of Winstead PC, has been accepted to the Dallas Regional Chamber 2014 Leadership Dallas Class.

Audrey Moorehead, of the Law Offices of Audrey Moorehead, PLLC, was elected as

Lewis A. Lefko has formed Law Office of Lewis A. Lefko, 15305 Dallas Parkway, Suite 300, Addison, TX 75001.

Angela Hunt and Jennifer J. Spencer have joined Farrow-Gillespie & Heath LLP, as Partners.

Jody Rudman has joined Kendall Law Group as Partner.

Lee Baldwin has relocated her office to Law Office of Lee Baldwin, 4054 McKinney, Ste. 310, Dallas, TX 75204.

continued from page 1

Philbin Awards Luncheon on Monday, October 7, at the Pavilion at the Belo Mansion. The luncheon is open to judges and lawyers and all members of the media.

The keynote speaker for the luncheon is Aminda Marqués Gonzalez, Executive Editor and Vice President of The Miami Herald—the second woman and first Hispanic to hold the position. Ms. Gonzalez began her journalism career in 1986 as a reporter. She covered everything from the Hialeah Santeria case that made its way to the U.S. Supreme Court to the migrant workers in South Dade. In 2002, Ms. Gonzalez left The Miami Herald to become the Miami Bureau Chief for People Magazine, handling national breaking news, enterprise and celebrity coverage in the southeastern United States, the Caribbean and Latin American.

She returned to The Miami Herald in 2007 to work on the launch of a local entertainment website, Miami. com. As an editor, Ms. Gonzalez

helped run government coverage and oversaw the city desk, state desk and Neighbors as Deputy Metro Editor.

In 2011, she helped lead the paper to a Pulitzer Prize finalist for their coverage of the Haiti earthquake. Overall, The Miami Herald has won 20 Pulitzers. In 2012, Mindy was elected to the Pulitzer Prize Board.

A graduate of the University of Florida, Ms. Gonzalez, lives in Davie, Florida with her husband and their two children.

DBA members can reserve their seats now for the 2013 Stephen Philbin Awards Luncheon on Monday, October 7. To receive the early bird rate of $40 per ticket or $400 per table of 10, register by September 13.

After September 13, tickets increase to $45; and tables of 10 can be purchased for $450. No walk-ins will be allowed. Don’t miss this exciting event! Purchase your ticket by logging on to www.dallasbar.org or by contacting Judi Smalling at jsmall HN ing@dallasbar.org.

Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.

Matthew R. Davis has joined The Law Office of Natalie Gregg as Associate.

Brad J. Robinson has joined Hartline Dacus Barger Dreyer LLP as Associate.

Dana Harbin has joined Brousseau Graham & Massingill, PC. Bart A. Starr has joined Winstead PC as Shareholder.

K. Patrick Babb has joined David, Goodman & Madole, P.C. as Associate.

Estate, Trust and Guardianship Litigation

innovative adj. Creating value out of new ideas, new services, or new ways of doing things.

Ford+Bergner LLP has always strived to find innovative solutions to meet our clients’ estate, trust, and guardianship litigation needs.

As those needs have changed in recent years to involve commercial and oil & gas issues, we have added resources to handle those needs. The recent addition of Richard F. Bergner represents one of those innovative solutions as he offers significant experience in commercial and oil & gas matters to the firm’s clients. As a result, Ford+Bergner LLP continues to offer its clients aggressive

Ford+Bergner LLP

representation in estate, trust and guardianship litigation matters while also offering the expertise of a seasoned lawyer to advise those clients on the commercial and oil & gas issues that may be a driving concern in the litigation.

Ford Bergner LLP Don D. Ford III | Managing Partner Board Certified in Estate Planning and Probate Richard F. Bergner | Partner

5151 San Felipe • Suite 1950 Houston, TX 77056 T: 713.260.3926 • F: 713.260.3903

www.fordbergner.com

Ford+Bergner Headnotes Ad 2.indd 1

901 Main St. • Suite 6300 Dallas, TX 75202 T: 214.389.0887 • F: 214.389.0888

Ford+Bergner LLP

3/11/13 5:00 PM

Sept e mb e r 2 0 1 3

Classifieds

D al l as Bar A ssoci ati on l Headnotes 23

September

EVENT

8000 or email kim@buholzlaw.com.

The End of Civil Rights in America?

Reflections on the Future of Economic Justice from the Perspectives of Law and Religion Jointly Sponsored by the SMU Dedman School of Law and SMU Perkins School of Theology. Friday, September 6, 9:45 a.m. – 4:00 p.m. Karcher Auditorium, Room #100, Storey Hall – 3315 Daniel Avenue SMU Dedman School of Law. Cost: $20 for Lunch and Parking. An application to the State Bar of Texas for 4.5 hours CLE credit and 1 hour Ethics is pending. To request a copy of the program, email: lmontes@smu.edu.

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, valuation 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 Drug/Alcohol Expert - Pharmacy Professor; 33 years’ experience consulting, teaching, researching prescription, illegal, overthe-counter drugs, alcohol, drug testing.

Trial and deposition experience specializing in drug-related domestic, civil, criminal cases. Reviews, summaries, depositions, discovery, trials. Allison Welder, Ph.D. (361) 542-5636; allisonannewelder@yahoo.com; www.welderconsulting.com.

OFFICE SPACE

Office Space - Nicely decorated in North Dallas has 2 window attorney offices available to share with a Board Certified Family Law specialist. Great location and easy access from eith LBJ or Central Expressway. Attractive reception area, free covered parking, large conference room, copier, high-speed Internet, phones, kitchen and free health club. (214) 580-

Downtown AV preeminent law firm has two window offices available for lease with secretarial station (if needed), reception area, conference room, elevator exposure and kitchen. Please call Mark or Vicki at (214) 752-0400.

Downtown Dallas – Office available, located in the historic KATY Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, wifi, fax and copier available for tenants use. No lease required. Please inquire at (214) 7481948.

North Central at Meadow Road. Thinking about leaving your law firm and looking for office space? Officing on your own and looking for new space? Consider officing with PlusAssociates LLP, a Multidisciplinary Professional Services Group of Firms. If your area of practice complements those that are currently provided at PlusAssociates LLP, this may be the perfect place for you. Our current firms provide the following services: Tax Planning, Tax Return Preparation and Asset Protection (Bruce E. Bernstien & Associates, P.C.), Commercial Collections, Wills and Trusts (Law Office of James R. Alexander), IRS Controversies, Wills and Trusts (Law Office of Stanton D. Goldberg), Financial Planning, Investments, Insurance, Estate Planning and Retirement Planning (Lora J. Hoff Financial Planning - CFP), International Trade and Sourcing (H Ethos, Inc. - Jie Hao), Hedge Fund Investment (Equity Momentum Management LLC - Barry Davidson), Real Estate Investments (Trendview Real Estate Services - Carl Cross), Commercial Litigation (Cole & Cole, P.C. - Robert R. Cole, Jr.), Systems, Network, Technology Design, Engineering, Integration, Maintenance and Troubleshooting (Protocol Systems - Mike Armbruster), Bookkeeping (Kenneth C. Fisher, LLC), Family Law (McAngus Law, Rob McAngus), and Estate Planning, Probate, Wills and Trusts (John Paul Kelly, PC).

Several offices are available with conference rooms, kitchen, fax machine, copier, scanner, phone service, high-speed Internet service, email service, voicemail, free covered parking and Dart Station nearby. Meadow Park office building is at Meadow Road and North Central Expressway. Join us and take advantage of being associated with a growing group of firms with many opportunities for referral of clients to your firm. Call (214) 706-0837.

Park Cities/Central Expwy – Law firm has up to 3 window offices in Class A building for lease. Great location at 8080 Central Expwy.

11th Annual Family Law Section Golf Tournament October 25, 9:00 a.m. Stevens Park Golf Club

at Caruth. Spectacular views of downtown and Park Cities. Elevator exposure and expensive finish out. Large conf. room and kitchen. Secretarial space, high speed scanner/copier, broadband, extra storage and other amenities available. Call John (214) 546-6337 or (214) 292-4202.

Available Immediately - Uptown Dallas Office Space Law office seeks to sublease to attorney or non-attorney businesses.

Shared amenities, free visitor parking and convenient to DART rail. Contact dallasuptownoffice47@gmail.com.

North Dallas. Law firm located at Lincoln Centre has one partner size office, one small office and two cubicles available.

Located at Tollway and LBJ; two conference rooms; break room/kitchen; copiers; postage machine. Email: dallasipfirm@gmail.com for more information.

North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. Several offices available in different sizes, all with accompanying mahogany secretarial carrel.

All have access to three conference rooms, copier, postage meter, high speed Internet, phones and two kitchens. Receptionist services also available. Please call Brittanie at (972) 934-4100.

Small law firm with transactional and litigation practice seeks relationship with established attorney(s) having portable complementary practice, and/or office sharing. Firm is located in a downtown Dallas Class A building minutes away from courthouse with partner/associate offices, conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/ postage/facsimile and related amenities. Contact Laura at (214) 922-9265.

POSITION AVAILABLE

AV- Rated, well-established midsize law firm seeks lateral partners with portable business for its downtown Dallas office. Successful candidates will be equipped with drive, energy, leadership potential and high professional standards. The firm, which has been a distinguished part of the North Texas law community for over 30 years, offers the opportunity for a practice in virtually any area. The firm will consider flexible financial arrangements for individuals seeking support to expand their current book of business.

The firm features an excellent reputation, great benefits and strong colleague support in a friendly and professional atmosphere.

Send resume to: Dallas Bar Association, Box 13–08, 2101 Ross Avenue, Dallas, Texas 75201.

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.

IP Patent and Prosecution Associate Needed. Law firm and great place to work, seeking intellectual property associate with a minimum of 3 years patent and prosecution experience for its downtown Dallas office.

The candidate should have a Bachelor’s degree in electrical engineering. Fluency in Mandarin Chinese is a bonus. Admission before the USPTO is required. The preferred candidate will also be experienced in drafting discovery requests, legal memoranda and briefs, researching legal issues, document production and deposition outline preparation for patent cases. The successful candidate must also have a good work ethic, ability to meet deadlines, and the desire to develop their own personal client base. Interested candidates please forward a resume and writing sample to resumes@solidcounsel.com.

Unique Law Firm Opportunity. Love practicing law but hate the administrative hassle? Want to keep more of your fee income?

Bring your self-supporting client base and join a dozen first class business and family law attorneys in our Campbell Centre I offices.

Be your own boss, share referrals and be more productive while we deal with the website, billing, staff, IT issues, etc. Pay your very affordable share of overhead; then take home what you earn. For more information about Palmer & Manuel contact Steve Palmer or Rebecca Manuel at (214) 242-6444. www.pamlaw.com; spalmer@pamlaw.com.

SERVICES

Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089.

Foreign Legal Consultant. Nodgar E.V. Piranian. Admitted to the practice of law in Argentina. 4925 Greenville Avenue, 2nd Floor, Dallas, Texas 75206. Email: nodgarnp@gmail.com. phone: (214) 507-7025.

Oil and Gas Buyer. Buying royalty interests, overriding royalty interests and non-operating working interests. Send descriptive information to royalty@coromandelenergy.com for a prompt and fair evaluation. Owner is SBOT and DBA member.

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.

Founding Member of NAPPS

To register, or for more information, contact Chris Farish at (214) 373-9100 or chris@quaidandquaid.com Registration due by October 11.

Teach the Law to Dallas ISD Students Nov. 18-22 Volunteers are needed to teach in Middle School and High School classrooms this fall. Times and class sizes vary by school. Curriculum will be made available. Sign-up no later than November 5. Please email your contact information and available volunteer date(s)/times to: ktaylor@dallasbar.org

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24 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€

Septem ber 2013