Dallas Bar Association
HEADNOTES
Focus Real Estate/Environmental Law
April 2011 Volume 36 Number 4
The Revival of American Patriotism: A Celebration of the Legacy of John Adams Keynote Speaker Chief U.S. District Judge Sidney A. Fitzwater petition team. Judge Fitzwater has achieved a “Employed in the service of my remarkable career. Upon graduacountry abroad…, I first saw the tion from Baylor Law School, he Constitution of the United States joined Vinson & Elkins, LLP as an in a foreign country. I read it with associate in the Houston office. In great satisfaction, as the result of 1978, he relocated to Dallas and good heads prompted by good hearts, joined Rain Harrell Emery Young as an experiment better adapted to & Doke. In 1982, Judge Fitzwater the genius, character, situation and was appointed to the 298th Judirelations of this nation and country cial District in Dallas County and than any which had ever been pro- remained in that position until posed or suggested.” 1986. President RonJohn Adams expressed ald Reagan appointed his devotion to the Judge Fitzwater to the Constitution and its Northern District of everlasting principles Texas in 1986. At the of freedom and jusage of 32, Judge Fitztice in his inaugural water garnered disaddress before the cititinction as the youngzens of Philadelphia est federal judge. He on March 4, 1797. is still the youngAlthough American est life-tenured fedsociety has dramatieral judge. In 1997, cally evolved since Baylor Law School Adams’s presidency, awarded Judge Fitzwathe principles upon ter the Price Daniel which citizens derive Judge Sidney Fitzwater Distinguished Public and exercise their Service Award. This rights are the same. award is presented to an individual The 2011 American Bar Asso- who “exemplifies the spirit of selfciation Law Day theme—The Leg- less dedication to public service acy of John Adams, From Boston represented by the life and career to Guantanamo—celebrates the of the late Governor Price Daniel impact of Adams’s roles of politi- and reflects the true meaning of cal activist, philosopher, lawyer Baylor’s official motto, ‘Pro Eccleand president on the creation of sia, Pro Texana’ (For Church, For the American government and the State).” protection of American society. The DBA’s Law Day activities The American Bar Association has not only honor our judiciary, but highlighted Adams’s defense of a also strengthen community outBritish officer and soldiers allegedly reach efforts with local schools. responsible for civilian deaths in These activities include art and the notorious “Boston Massacre.” essay contests for elementary and Adams’s legal prowess has been middle school students, and mock regarded as “a lawyerly exemplar voire dire observation for high of adherence to the rule of law and school students. The 2011 Law defense of the rights of the accused, Day is certain to be a unique and even in cases when advocates may rewarding experience for all parrepresent unpopular clients and ticipants. become involved in matters that The Dallas Bar Association celgenerate public controversy.” ebrates John Adams’s legacy on May The Dallas Bar Association is 13. The luncheon will begin at noon pleased to celebrate the 2011 Law at the Belo Mansion. Tickets are $35 Day Luncheon Honoring the Judi- per person and parking is available ciary and welcome the keynote for in the Belo Mansion garage. For speaker, the Honorable Sidney more information, or to purchase A. Fitzwater, Chief Judge of the tickets, please contact Michelle Northern District of Texas. Judge Dilda at mdilda@dallasbar.org or Fitzwater received his law degree (214) 220-7474. HN from Baylor University in 1976. While in law school, Judge Fitz- Michelle A. Koledi is a civil litigator licensed in both New water was Associate Editor of the York and Texas state and federal jurisdictions, and a memBaylor Law Review and a member ber of the Dallas Bar Association Publications Committee. of the 1976 state moot court com- She can be reached at michellekoledi@yahoo.com. By Michelle A. Koledi
Don Glendenning—the 2011 Justinian Award Winner Carol is out to see it.” Over the years they have rubbed off on one another sufficiently that Don is When accused of being “modest,” Locke a less poor sport about traveling, and Carol has a Lord’s Dallas Office Managing Partner Don whole host of her own charitable involvements, Glendenning, whom the Dallas Lawyers Auxil- in addition to those she inherits from Don. Don currently serves as Co-Chair of the Camiary has named as its 2011 Justinian Award recipient, usually invokes a personalized version of paign for the New Parkland, Chair of ThanksGiving Square Foundation, Presithe classic Churchill quip by affirmdent of Scenic Texas and Scenic ing, “I have so much to be modest Dallas and is on the boards of the about.” Dallas Chamber of Commerce, the Growing up as the eldest of five Dallas Holocaust Museum, KERA, children in a long-time Celina, Parkland Foundation, TACA, Texas farming family of exceptional Texas Trees Foundation and the athletes, Don confesses that he was Tocqueville Cabinet of the United a considerable embarrassment to his Way. He is a Past Chairman of the family from the outset, with little Dallas Zoological Society, Past Presaffinity for farming and, tragically, ident of Human Rights Initiative of even less athletic ability. Worse North Texas, Past President of the still, he was “bookish.” So his family Rice University DFW Alumni, and resigned themselves to Don’s desire a former director of the National to attend Rice University and then Tree Trust. Stanford Law School, where he He is a recipient of the Antiserved on the law review. Don Glendenning Defamation League of Dallas He very nearly redeemed himself by marrying his fellow Stanford law student, Schoenbrun Jurisprudence Award, the Dallas Carol—a match that Don’s family all agreed was Zoological Society Good Egg Award, the Human far better than they ever thought he could do, Rights Initiative of North Texas Angel of Freewith which sentiment Don fully concurs. Carol dom and Distinguished Lifetime Service Awards and Don made Dallas their home immediately and the Legal Aid of NorthWest Texas Pro Bono after graduation from law school over 31 years Award. Don takes particular pleasure in the canago, and both still practice corporate law in the same firms they joined in 1979. Carol now serves do spirit that characterizes the Dallas business and philanthropic communities. Favorite civic as Chair of Strasburger & Price. While they have no children of their own, involvements have included participation in they have attracted a large family of official and the earliest years of the Human Rights Initiaunofficial godchildren. At one point, when Carol tive of North Texas’ creation of a new agency to realized that she and Don were designated in the secure asylum for the victims of torture, which wills of various friends to be the legal guard- soon came to be one of the most highly regarded ians for more than two dozen minor children, such organizations in the nation, and his over she began to impose parameters. Don concedes two decades of work toward the public-private that when it comes to friends, clients and causes, partnership for the Dallas Zoo, which was completed during his chairmanship. Currently, Don parameters do not come naturally to him. Carol and Don’s “personal elevator speech” Continued on Page 10 has been that “Don is out to save the world, and by Mary Blake Meadows
Patient Wishes Illuminated Through Advance Directives by Kimberly Wilson
The January 8, 2011, shootings near Tucson, Arizona, reminded many that the end of life can come sooner than expected. The events of that Saturday morning were likely followed by the struggles of family and friends of the deceased to determine the deceased’s wishes regarding funeral arrangements and other important decisions. Though each individual’s situation is unique, promoting end-of-life planning through dialogue and legal documentation can assist all involved in ensuring that the individual’s wishes are carried out in the final stages
Inside 5
Environmental Tax Incentives Applicable to Real Estate
7
EPA Asserts Fracking Contaminated Water Wells
9
Environmental Disclosures in Commercial Real Estate Sales
12
JT TEN Accounts and Texas Community Property
of life and beyond. The Fourth Annual National Healthcare Decisions Day is April 16, 2011. This day seeks to educate the public and medical providers on the importance of advance care planning, and inspire and empower them to act. End-oflife planning includes preparation of advance directives, consideration of power of attorney documentation, financial planning and funeral and burial planning. In Chapter 166 of the Health and Safety Code, Texas law provides for advance direcContinued on Page 10
Dallas Minority Attorney Program Friday, April 1 ~ 9:00 a.m. to 5 p.m. • (6.75 MCLE, including Ethics 1.00) ~ At the Belo Mansion ~ Reception immediately following program ~ * Business Development * Marketing * Office Management * Technology * Guardian Ad Litem & Other Court Appointments * Two Judges Panels In its 14th year, this FREE program is focused on business development for solo and small firm and minority lawyers. DMAP has been recognized by the ABA as an exceptional partnership program. (The only charge is for parking and lunch.) RSVP to AHernandez@dallasbar.org.
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
April Events
April 1– Belo
Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS
“Practicing Law and Wellness: Modern Strategies for Lawyers Dealing with Addiction and Depression,” Cameron Vann. (Ethics 1.00)*
April 8 – North Dallas**
Noon
“New Estate Tax: Planning and Probate for Non-Taxable Estates,” James V. Roberts (MCLE 1.00)* Two Lincoln Centre is located at 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 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. Thank you to our sponsor, Griffith Nixon Davison, P. C. (MCLE 1.00)*
April 15– Belo Noon
“Communicate Powerfully With Clients Without SAYING a Thing,” Martha Newman. (MCLE 1.00)*
FRIDAY, APRIL 1
9:00 a.m. Dallas Minority Attorney Program Learn more about business development and practice management for the solo, small firm and minority attorney. RSVP to Alicia Hernandez at ahernandez@dallasbar.org. (MCLE 6.75, including Ethics 1.00)* Noon
Friday Clinic – Belo “Practicing Law and Wellness: Modern Strategies for Lawyers Dealing with Addiction and Depression,” Cameron Vann. (Ethics 1.00*)
SATURDAY, APRIL 2
8:30 a.m. DBA Sporting Clays Shoot. Competition starts at 9:30 a.m. at Elm Fork Shooting Park, $150 per person. RSVP to rthornton@dallasbar.org.
MONDAY, APRIL 4 Noon
Tax Section “Basics of Tax Litigation,” Jonathan Blacker and Audrey Morris. (MCLE 1.00)*
Legal History Discussion Group “Saving Savannah: Law and the Struggle for Civil Rights in the South After the Civil War,” Prof. Jacqueline Jones. (MCLE 1.00)*
Peer Assistance Committee
TUESDAY, APRIL 5 Noon
Corporate Counsel Section “Commercial Contract Indemnities and Insurance Obligations – How Can You be in Two Places at Once When You’re Not Anywhere at All?,” Thomas Alleman. (MCLE 1.00)*
WEDNESDAY, APRIL 6 Noon
Tort & Insurance Practice Section “2011 Legends of the Bar,” featuring Lisa Blue, Royal Brin, Jim Coleman, Sylvia Demarest and Hon. Catharina Haynes, moderator. (Ethics 1.00)* Morris Harrell Professionalism Committee
DAYL Get Involved Luncheon. For more information contact cherieh@dayl.com.
5:30 p.m. Bar None Auditions. Annual variety show in June includes skits and songs poking fun at lawyers, the law and current events, and benefits the Sarah T. Hughes Diversity Scholarships at SMU Dedman School of Law. For more information, contact mhardwick@shacklaw.net. DAYL Board of Directors
Employee Benefits & Executive Compensation Section “Healthcare Update,” Jan Newsom. (MCLE 1.00)*
TUESDAY, APRIL 12 Noon
Business Litigation Section “Why Judges Make the Decisions They Do,” Prof. Jeffery Rachinski. (MCLE 1.00)*
Mergers and Acquisitions Section/Corporate Counsel Section “Reverse Break-Up Fees and Specific Performance: Anatomy and Analysis of Remedies for Buyer Breach,” Steve Kotran. (MCLE 1.00)
DAYL Equal Access to Justice Committee
Minority Participation Committee
DAYL Freedom Run Committee
Christian Legal Society
Dallas Gay & Lesbian Bar Association
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group Noon
Family Law Section “Is Your Client Urophobic, a Druggie or a Liar?,” Jim Turnage. (MCLE 1.00)* House Committee
LegalLine—Volunteers welcome. Second floor Belo.
Public Forum Committee
Summer Law Intern Program
5:15 p.m.
DAYL Judiciary Committee
5:30 p.m. Tort & Insurance Practice Section Mini-Seminar “Insurance Law Basics Mini-Seminar,” Ed Carlton, Saul Friedman, Lisa Songy and Robert Tobey. (MCLE 2.00, for Civil Trial, Consumer and Personal Injury Law). Free for DBA members. Cost for non-DBA members is $30. For more information, contact Lisa Songy at (214) 245-3063.
Municipal Justice Bar Association
Construction Law Section “Liability of Design Professionals,” Jeff Chapman. (MCLE 1.00)*
THURSDAY, APRIL 14
Family Law Section Board Meeting
Judiciary Committee “A Conversation With Civil Court Judge Ken Tapscott.” (MCLE 0.75)*
Noon
Intellectual Property Law Section “IP Issues Within the Wind Industry,” Paul Reidl. (MCLE 1.00)*
DAYL CLE Committee
St. Thomas More Society
Labor & Employment Law Section “EEOC General Council Meeting: Priorities of the Office of General Counsel for the U.S. Equal Opportunity Commission Under Its Current Leadership,” General Counsel Patrick David Lopez. (MCLE 1.00)*
FRIDAY, APRIL 8 Noon
Friday Clinic – North Dallas “New Estate Tax: Planning and Probate for Non-Taxable Estates,” James V. Roberts (MCLE 1.00)* Two Lincoln Centre is located at 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 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. Thank you to our sponsor, Griffith Nixon Davison, P. C. (MCLE 1.00)* International Law Section Council Trial Skills Section “Trying the Complex Case to Jury Verdict: What Works and What Doesn’t,” Tom Melsheimer. (MCLE 1.00)*
MONDAY, APRIL 11 Noon
Alternative Dispute Resolution Section “Neuroscience and Negotiation,” Kay Elkins-Elliott and John Stillwell. (MCLE 1.00)*
Real Property Law Section “Commercial Real Estate Market Overview for 2011 and the Effects of the Market on Legal Proceedings,” Jerry Alexander, Cynthia Jeter, Wes Snyder and Billy Gannon.
DAYL Foundation Board Meeting
THURSDAY, APRIL 21
WEDNESDAY, APRIL 13
Noon
LegalLine—Volunteers welcome. Second floor Belo.
Appellate Law Section “State of the Supreme Court,” Chief Justice Wallace B. Jefferson. (MCLE 1.00)*
THURSDAY, APRIL 7
5:15 p.m.
Noon
Solo & Small Firm Section “Choice of Entity Considerations in Forming a New Business,” Steven E. Clark. (MCLE 1.00)*
5:30 p.m. Bankruptcy & Commercial Law Section “Fifth Circuit Bankruptcy Update, Including Class Actions, Equitable Mootness and Gifting Clauses,” George Tarpley and Aaron Kaufman. (MCLE 1.00)*
4:30 p.m. Criminal Law Section “Wrongful Convictions: Causes and Solutions,” District Attorney Craig Watkins and Exonerees Billy Smith, James Woodard and Patrick Waller. Co-sponsored with the CLE and Public Forum Committees. For more information, contact Gary Udashen at (214) 468-8100. (MCLE 1.50)*
6:00 p.m. Home Project Committee
Government Law Section “Contract Claims: Fight the Good Fight,” Wm. Andrew Messer and Janet M. Spugnardi. (MCLE 1.00)*
6 p.m.
A pri l 2011
11:30 a.m. DAYL Barristers for Babies
3:30 p.m. DBA Board of Directors Meeting
FRIDAY, APRIL 22
DBA Offices Closed for Good Friday
MONDAY, APRIL 25 Noon
Computer Law Section Topic Not Yet Available
Securities Section “Recent Developments and Initiative at the State Securities Board,” Hon. Beth Ann Blackwood. (MCLE 1.00)*
Golf Tournament Committee
Transition to Law Practice Committee
DAYL Solo & Small Firm
TUESDAY, APRIL 26 Noon
Probate, Trusts & Estates Section “Will Contests,” Keith Staubus. (MCLE 1.00)*
Public Forum Committee
CLE Committee
Publications Committee
5:30 p.m. Corporate Counsel Section “Attorney-Client Privilege for In-House Counsel,” Kelli Hinson and Chris Scanlan. (MCLE 1.00)*
Christian Lawyers Fellowship
6:00 p.m. Dallas Hispanic Bar Association
6:00 p.m. J.L. Turner Legal Association
FRIDAY, APRIL 15
8:00 a.m. Federal Bar Association Noon
Friday Clinic – Belo “Communicate Powerfully With Clients Without SAYING a Thing,” Martha Newman. (MCLE 1.00)*
MONDAY, APRIL 18 Noon
Labor & Employment Law Section “Non-Compete Agreements,” Amanda Reichek. (MCLE 1.00)*
TUESDAY, APRIL 19 Noon
Franchise & Distribution Law Section “Appetite for Destruction: The Changing Landscape of Menu Labeling, Disclaimers and Food Claims,” David T. Denney. (MCLE 1.00)*
International Law Section “The Law of Treaties Under the Vienna Convention and the Restatement Third of Foreign Relations Law of the United States,” Professor James Paul George. (MCLE 1.00)*
Law in the Schools & Community Committee DAYL Animal Welfare Committee DAYL Elder Law Committee
WEDNESDAY, APRIL 20 Noon
Energy Law Section “Receivorship,” Travis L. Booher. (MCLE 1.00)*
Health Law Section “Healthcare Business Valuations Under Health Reform —Focus on Providers,” Don Barbo. (MCLE 1.00)*
Law Day Committee
Pro Bono Activities Committee
WEDNESDAY, APRIL 27
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group 11:30 a.m. Justinian Award Luncheon, honoring Charles W. Matthews. For reservations, contact the Dallas Bar Foundation at (214) 220-7487. Noon
Sports & Entertainment Law Section “The Super Bowl Seat Fiasco: A Plaintiff’s Perspective,” Trey Branham, III. (MCLE 1.00)*
Legal Ethics Committee
DVAP New Lawyer Luncheon For more information, contact Chris Reed-Brown at reed-brownc@lanwt.org.
THURSDAY, APRIL 28 Noon
Collaborative Law Section “International Academy of Collaborative Professionals,” Linda Solomon. (MCLE 1.00)*
Criminal Law Section “Exculpatory Evidence,” Gary Udashen. (MCLE 1.00)*
Environmental Law Section “Environmental Case Law Update—An Idiosyncratic View,” Carrick Brooke-Davidson. (MCLE 1.00)*
Mentoring Committee Senior Lawyers Committee “Preparing for the End of Your Law Practice: Whether You Expect It or Not,” Roger Sanders. (Ethics 1.00)* For more information or to RSVP, contact kzack@dallasbar.org.
FRIDAY, APRIL 29 Noon
Intellectual Property Law Section “Name Changes, Company Reorganizations and Joint Branding,” Janis Manning, Bill Chors, Philip Davison and David Cho, moderator. (MCLE 1.00)*
DAYL Lunch & Learn (MCLE 1.00)*. For more information contact cherieh@dayl.com.
DAYL Corporate Counsel CLE For more information, contact cherieh@dayl.com.
Non-Profit Law Study Group
DAYL Leadership Steering 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.
April 2 0 1 1
Focus
D al l as Bar A ssoci ati on l Headnotes 3
Real Estate/Environmental Law
Guideposts on Commercial Lease Defaults by Laura P. Sims
Many, if not most, attorneys with a commercial practice will field a lease default question at some point. Here are guideposts for evaluating and navigating the breach and default process.
Tenant Strategies
The tenant’s goal is generally to avoid a breach or minimize damages. If anticipating a future breach, the tenant should consider asking the landlord to modify problematic terms before the breach occurs. Modifications to reduce or defer rent, alter burdensome operating requirements, or relocate to more affordable space may better serve both parties in the long-term and are worth exploring. If the landlord will not consider modification or has delivered notice of breach, the tenant should promptly review its lease and correspondence to determine: (i) the nature of the claimed breach and required cure, (ii) applicable notices, cure periods and alternative dispute procedures, (iii) applicable late fees and default interest, (iv) rights and obligations to remove personal property and improvements, and (v) the scope of any liens, contractual or statutory, on a tenant’s personal property. Strategic thinking before repossession can save the tenant money. For example, putting the premises in required surrender condition could prevent paying surcharges and interest on the landlord’s cost to do so. Removing important personal property before repossession will preserve a tenant’s access to those items, limit the practical reach of the statutory lien for delinquent rent under Texas Property Code (TPC) § 54.021, and eliminate storage charges, but may constitute a separate breach of the lease. Scrutinize the notice posted and pro-
cess used by the landlord for any lock-out for non-compliance with TPC § 93.002 and § 93.003 or with conflicting requirements under the lease, which will control if present. The tenant’s remedies for breach of TPC § 93.002 include re-instatement of possession or termination (at tenant’s election) and damages equal to the lesser of actual damages, one month’s rent or $500. If the landlord holds a contractual lien on the tenant’s property, and the landlord fails to store and sell the same in compliance with the applicable provisions of the Texas Uniform Commercial Code (UCC), the tenant may be able to reduce default damages by the amount a commercially reasonable sale would have garnered or even counter-claim for conversion of its property.
Landlord Strategies
tenant’s right of re-entry upon full cure. If a landlord exceeds its remedies, it risks claims for wrongful termination and conversion. Texas courts have also disfavored termination or repossession for non-monetary or so-called “administrative” defaults (e.g., failure to provide proof of insurance), even if seemingly allowed under the lease. Exercising rights of repossession or termination for non-monetary breaches should be limited to material matters, such as a failure to operate or violation of another tenant’s exclusive use. If termination or repossession is the desired end, a tenant’s failure to reimburse the landlord for costs to cure non-critical breaches may create a monetary default that supports all remedies under the lease. The landlord should document any lock-out with video or a neutral witness and prepare an inventory of the contents.
The landlord’s goal is to maximize recovery and minimize liability by strict compliance with the lease and applicable statute. Although pre-lease diligence, including credit and reference checks, and a substantial security deposit may minimize losses, defaults do happen. Once a rent default occurs, deliver written notice without unreasonable delay. Be sure to comply strictly with notice and cure provisions, including acceptable notice delivery methods, and to review all amendments, correspondence and thirdparty agreements to confirm current addresses and which third-parties, such as guarantors and lenders, are entitled to notice. Texas common law does not authorize termination or repossession for breach, rather such rights exist only if set forth in the lease. That said, a tenant’s anticipatory breach (e.g., abandonment and failure to pay rent) may create the right to repossess. A rent default, however, entitles a landlord to lock-out per TPC § 93.002, subject to the
Requests by the tenant, employees or equipment lessors to recover personal effects or other property not covered by the landlord’s lien should generally be honored, subject to escort and prior identification of the items being removed. Finally, the landlord must mitigate damages arising after repossession and from default upon a tenant’s abandonment of the premises in violation of the lease (TPC § 91.006). The duty to mitigate does not require a landlord to take undesirable tenants or to ultimately succeed in reletting, but failure to list the premises for lease or to consider reasonable offers to lease may reduce recovery from the defaulting tenant. Laura P. Sims, a Partner at Crouch & Ramey, LLP, specializes in real estate development, asset management and leasing matters. She can be reached at lsims@crouchfirm.com.
Habitat Build Day
Members of the DBA Community Involvement Committee participated in a “build day” in February at Habitat for Humanity’s warehouse. To become involved or to donate, visit www. dbahp.com. Home dedication day is set for May 21.
Global Perspective. National Strength. Texas Spirit. Dykema is committed to being a leader in the Dallas market. We are pleased to welcome two remarkable lawyers to our growing Dallas team. Jeffrey R. Fine is an accomplished bankruptcy attorney focusing on large or complex Chapter 11 cases representing creditors, debtors, and creditor committees, and combining litigation skills with a wealth of experience to represent clients throughout the United States.
Jeffrey R. Fine
David G. Henry
David G. Henry is a renowned intellectual property lawyer whose practice focuses on trademark and copyright, patent litigation and enforcement, as well as licensing and technology transfer, representing clients throughout the United States and internationally. Both Jeff and David are well-recognized in the Texas legal community. Their arrival at Dykema is a strategic step in the expansion of our firm’s presence in the Dallas area. Please join us in welcoming them to the Dykema Dallas team.
Comerica Bank Tower 1717 Main Street Suite 4000 Dallas, TX 75201 Darrell E. Jordan Office Managing Member 214-462-6410
Contact Jeff at: 214-462-6455 jfine@dykema.com
Contact David at: 214-462-6439 dhenry@dykema.com
www.dykema.com Chicago . Dallas . Detroit . Los Angeles . Washington, D.C. Ann Arbor . Bloomfield Hills . Grand Rapids . Lansing . Lisle
4 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2011
Headnotes
President's Column
Honoring the Profession by BARRY SORRELS
We have a number exciting activities and events coming up in April and early May, and I have highlighted these following three because they show the variety of ways our membership can reach the community-at-large. Keep up the good work!
DBA Home Project
For the last 20 years, the Dallas Bar Home Project has partnered with Habitat for Humanity to sponsor the building of an entire house for a Dallas family. This makes the DBA Home Project the longest running “whole house” sponsor of the Dallas Area Habitat for Humanity, and it has provided housing for at least 70 people during that time. It is quite a testament to our membership that we have been able to establish and maintain this legacy of helping our community. The Home Project is an offshoot of the Community Involvement Committee, which is co-chaired this year by Paul Herring and Christina McCracken. The Dallas Bar Home Project is co-chaired by David Diaz and Brad Johnson. These lawyers are extremely passionate about their cause, and they are committed to building a great home in 2011 for a great family. This year, they started the build on February 26, 2011. Each Saturday until May 7, 2011, different groups of about 30 lawyers will work together to complete different home-building tasks. I would like to thank David and Brad for their time and efforts organizing and funding the Home Project. I would also thank all of you who have helped so far. This project would not be possible without hundreds of volunteers devoting over a thousand hours. It is an inspiring and fun project and I encourage you to join the work force. If you would like to participate in the Dallas Bar Home Project, there are a number of ways you can help. First, law firms and DBA sections can sponsor a build day. The DBA Home Project tries to arrange for 2 or 3 groups to sponsor each Saturday of the build. Generally, the sponsors will bring 10-15 lawyers to volunteer for the build and make a donation of $2,000-$5,000. This is an excellent opportunity not only for charity, but to build camaraderie among colleagues in a unique and memorable way. There are still days available for 2011. If your firm or section is interested in sponsoring a build day, please contact Brad Johnson, brad@ lbjlaw.com, or David Diaz, ddiaz@kbdtexas.com. Second, individual lawyers and law firms can donate money. The DBA Home Project must raise $60,000 in donations for the home build. Any donation is appreciated, and donations over $100 will be recognized in a special insert in Headnotes. If you would like to make a donation, please contact Teddi Rivas for details at trivas@dallasbar.org. Third, the DBA Home Project raises money through an online silent auction. The DBA Home Project is still seeking items to auction and would love for you to stop by their website and see what they have up for bid. Please visit the website for details about the project and to shop the silent auction at www.dbahp.com. The Home Project Committee will dedicate the home on May 21, 2011. This will be followed by a Wrap Party for DBA Home Project supporters and volunteers on May 25,
2011 to celebrate the successful completion of the build and announce the winners of the silent auction.
Public Forum—Dallas Mayoral Candidates
A very important and instrumental role of the Dallas Bar Association is carried out by the Public Forum Committee; that is the role of educating the public and our membership on topics involving civics and the judicial system. When this committee schedules an event, we open the doors of the Belo to the community and host a forum. Often, we invite local political candidates to debate or share their platforms. This year is no exception. On April 26, 2011 at noon, we will be hosting a public forum for the Dallas Mayoral Candidates. This is a big deal. I am very proud of the Public Forum Committee, chaired by Aaron Tobin and co-vice-chaired by Wes Alost and Eric Bowers, for their work in bringing the candidates of such an important local race to our home. Thank you to all the Committee members, including Cheryl Camin, Philip Kingston, and Kirk Pittard for your work on this committee and a special thank you to Rob Crain who came up with the idea to create this committee in 2005 and continues to remain closely involved in its activities. Although I expect a lot of our membership will be in attendance, I also expect there will be a number of people from our community who are not lawyers and who have never been to our home. I am looking forward to the opportunity to make everyone from the candidates to the laypersons in attendance feel welcome under our roof so we may continue to provide more public with events like this.
DBA Golf Classic
The 2011 DBA Pro Bono Golf Classic will be on May 5, 2011, at Cowboys Golf Club in Grapevine, Texas. It is a great course and will make for a fine day of friendly competition. This event is always a lot of fun for the participants, and, most importantly, the proceeds from the tournament will benefit one of our greatest services to the community, the Dallas Volunteer Attorney Program. The money raised at the tournament will provide our volunteer attorneys with the resources necessary to provide free legal services to those members of our community who could not otherwise afford them. Last year, the golf tournament raised $45,675, which translated to approximately 175 pro bono cases serviced by the Dallas Volunteer Attorney Program. Golf Tournament Committee Co-Chairs Nelson Akinrinade and Lindsay Goodner are hoping to increase that number this year. Go play golf for a good cause. If you are not a golfer or would like to contribute in other ways, there will be plenty of sponsorship opportunities at the course, including tees, flags, beverage carts, cabanas and contests. Please visit the website and sign up a team or find something to sponsor. I know it’s a mouthful, but I have included the website here: www.dallasbar.org/content/golf-tournament.
Thank you
The real treat of my position this year is that I have learned so much about the great things going on at the Dallas Bar Association. If you haven’t made it over to Belo yet this year, I would encourage you to come over and find out HN more about what’s happening at the DBA.
DNA EXONEREE FORUM: “WRONGFUL CONVICTIONS: CASES AND SOLUTIONS” WEDNESDAY, APRIL 20, 4:30-6:00 P.M. AT BELO MCLE 1.50
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: Barry Sorrels President-Elect: Paul K. Stafford First Vice President: Sally Crawford Second Vice President: Scott McElhaney Secretary-Treasurer: Sean Hamada Immediate Past President: Ike Vanden Eykel Directors: Brad C. Weber (Chair), Jerry C. Alexander (Vice Chair), Kim Askew (At-Large), Penny Brobst Blackwell (President, Dallas Association of Young Lawyers), Eric Blue (President, J.L. Turner Legal Association), Hon. Rob Canas ( Judicial At-Large), Wm. Frank Carroll, Rob Crain, Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst, Monica Latin (At-Large), Karen McCloud, Eunice Kim Nakamura (President, Dallas Asian American Bar Association), Mary Scott, Hon. Teresa Guerra Snelson (President, Dallas Hispanic Bar Association), Diane M. Sumoski; and Michele Wong Krause. Advisory Directors: Chip Brooker (President-Elect, Dallas Association of Young Lawyers, Victor N. Corpuz (President-Elect, Dallas Asian American Bar Association), Lori Hayward (President-Elect, J.L. Turner Legal Association) and Carlos Morales (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Christina Melton Crain, Beverly Bell Godbey, Robert R. Roby, Frank E. Stevenson, II 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 Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen and Timothy G. Ackermann Vice-Chairs: Lea N. Clinton and Natalie L. Arbaugh Members: H. Joseph Acosta, Kevin Afghani, Nelson Akinrinade, Vance L. Beagles, Jason Bloom, Barbara Boudreaux, Jeremy Camp, Noel Chakkalakal, Y.W. Peter Chen, Ryan Cosgrove, Sally Crawford, Weston Davis, Pat Driscoll, David Drummer, Dawn E. Fowler, Jennifer Gajak, Constance Hall, James Holbrook, Dyan House, Victor Johnson, Harold Jones, Adam Kielich, Michelle Koledi, Cherika Latham, Jamie McKey, Patrick McLain, Thomas L. Mighell, Clay Miller, Jennifer Mitchell, Heather Bailey New, Emmanuel Obi, Jenna Page, Kirk L. Pittard, Elizabeth Pletan, Irina B. Plumlee, Laura Anne Pohli, Robert Ramage, Juan Renteria, Bryon Romine, John Roper, Gregory W. Sampson, Mary Scott, Barry Sorrels, Thad Spalding, Paul K. Stafford, John C. Stevenson, Amy E. Stewart, Scott Stolley, Roxana Sullivan, Sherry Talton, Peter S. Vogel, Suzanne R. Westerheim, Elisabeth Wilson, Sarah Q. Wirskye, Sarah Woodell, Angela Zambrano and Viktoria Ziebarth 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: Michelle Dilda Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith 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, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas Data Entry/Office Support: Patsy Quinn Copyright Dallas Bar Association 2011. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.
Panelists include: • Dallas County District Attorney Craig Watkins • Exoneree Billy Smith, 20 years in prison • Exoneree James Woodard, 27 years in prison • Exoneree Patrick Waller, 16 years in prison For more information, contact Gary Udashen at (214) 468-8100. Hosted by the DBA Criminal Law Section & Public Forum Committee.
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 Associationís sole discretion. 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.
April 2 0 1 1
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Real Estate/Environmental Law
Environmental Tax Incentives Applicable to Real Estate by Jeff Dorrill and Erin Watkins
There are a myriad of federal and Texas tax breaks, as well as other incentives, designed to encourage Texas real estate developers to go green. Here’s a sampling of some of these incentives: Federal Income Tax Deduction for Cleaning Brownfields. Many former industrial properties remain unused or underutilized due to the high (or unknown) cost of cleaning possible contamination on such properties, generally known as “brownfields.” Section 198 of the Internal Revenue Code (IRC) allows taxpayers to fully deduct certain environmental cleanup costs at eligible properties in the year incurred (as opposed to capitalizing such costs over time). An eligible property is any property (i) that is held by the taxpayer for use in trade or business or for the production of income or is includable in the taxpayer’s inventory, (ii) at or on which there has been a release (or threat of release) or disposal of any petroleum products or other hazardous substances, and (iii) that is not listed on the Environmental Protection Agency’s National Priorities List. Additionally, taxpayers must obtain a statement from the applicable state agency (in Texas, the Texas Commission on Environmental Quality (TCEQ)) verifying the property’s eligibility. The deduction is currently set to expire December 31, 2011. Texas Litigation Relief for Cleaning Contaminated Sites. The TCEQ administers a Voluntary Cleanup Program (VCP), which provides, among other incentives, liability protection against claims by the state to encourage the cleanup of contaminated sites in Texas. Specifically, the
VCP protects non-responsible parties, including future lenders and landowners, against liability to the State of Texas for cleanup of sites. The party entering into the VCP must properly apply and be accepted into the program, agree to a schedule for the proposed cleanup and pay VCP oversight costs. Texas Property Tax Abatement for Cleaning Contaminated Sites. Texas Tax Code section 312.211 gives municipal and county tax units the right to grant property tax abatements with respect to the development or redevelopment of brownfield sites. Subject to certain conditions, these tax units may enter into a tax abatement agreement with a property owner who meets established cleanup requirements. Such agreement may exempt from taxation up to (i) 100 percent of the property’s value in the first year, (ii) 75 percent in the second year, (iii) 50 percent in the third year, and (iv) 25 percent in the fourth year. Texas Property Tax Incentive for Using Renewable Energy. Under Texas Tax Code section 11.27, taxpayers are entitled to a property tax exemption equal to the appraised value of the taxpayer’s property arising from the installation or construction of a solar- or wind-powered energy device primarily intended for the production and distribution of energy for on-site use. An example probably best explains how this exemption works. If a business were considering installing in a building a solar-powered heating device that would cost $500,000 and would add to the building’s value $500,000, the business would be entitled to a $500,000 property tax exemption because that is the amount by which the building’s appraised value
increased as a result of installing the solar-powered heating device. Federal Income Tax Credits for Renewable Energy. The advanced energy manufacturing tax credit is a significant potential tax credit available to manufacturing facilities. The credit equals 30 percent of a taxpayer’s investment establishing, re-equipping or expanding a manufacturing facility that produces certain renewable energy equipment and technologies (IRC § 48C). The alternative fuel vehicle refueling property credit applies to properties on which the owner installs a clean-fuel vehicle refueling facility. The credit is 30 percent of the cost of installing such facility (IRC § 30C). Federal Income Tax Deduction for Energy Efficient Retrofitting. Additionally, IRC section 79D offers a deduction of up to $1.80 per square foot to assist with the costs of constructing or retrofitting a commercial building with certain
energy efficient property. More Federal Green Incentives on the Horizon. It appears the country stands poised to continue moving in this direction. On February 3 of this year President Obama announced his “Better Buildings Initiative,” which will strive to make commercial buildings 20 percent more energy efficient over the next decade. In connection with this initiative, the President’s proposed budget includes new tax incentives for commercial building upgrades (including changing the section 79D deduction to a credit), more financing for energy efficiency retrofit loans for small businesses, and programs that incentivize organizational leaders to save energy through commitments to HN efficiency. Jeff Dorrill is a Partner and Erin Watkins is an Associate at Haynes and Boone, LLP. They can be reached at Jeff.Dorrill@ haynesboone.com and Erin.Watkins@haynesboone.com, respectively.
Law Day 2011
LAW DAY LUNCHEON
~ Honoring our State & Local Judiciary ~ Keynote Speaker: Honorable Sidney Fitzwater Friday, May 13 at noon (doors open at 11:45 a.m.) Tickets: $35. Tables of 10 are $350. Must be purchased in advance. For more information, visit www.dallasbar.org or contact Michelle Dilda at mdilda@dallasbar.org.
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2011
Judicial Profile: Hon. Doug Skemp by Harry Jones
Judge Doug Skemp shows up at County Criminal Court Number 3 every day. “The way to keep a clear docket is for the judge to show up every day. I’m on the bench by 8:30, usually.” Judge Skemp has always had very good attendance. In elementary school, he only missed four days and he never missed a day in middle or high school. During the recent snow, while downtown was empty, Judge Skemp put in a full day at the courthouse. His health may be one reason for his perfect attendance. Judge Skemp started running marathons at age 50 and has completed eight (including Dallas, Austin and Chicago) with a personal best of 4 hours, 16 minutes. He still makes the 9-mile circuit around White Rock Lake most weekends. The other reason Judge Skemp is at work every day is almost self-evident. Judge Skemp is enthusiastic about his job and loves the courtroom. “I love hearing cases. I love seeing good lawyers. I like ruling on objections,” he said. For over 30 years before he took the bench, Judge Skemp was either a solo or part of small practices. After graduating from Baylor Law School, he became Board Certified in Criminal Law and practiced as a criminal defense lawyer, going to trial
several times a year. “I liked criminal law, because I like the courtroom.” He also likes the criminal bar. “It’s a small group. Maybe 200 lawyers who handle 90 percent of the cases in Dallas.” He was never interested in law as a child. “I never met a lawyer until I went to my first class at Baylor.” Born in Great Falls, Montana, raised in Chicago by two teachers, he says his family knew no lawyers and never needed a lawyer. He was on track to be a history or government teacher. He completed his student teaching, but found himself managing a Dairy Queen when the job market tightened. Tired of fast food, he went to law school. Today, he has found a different way to teach—as a judge, he mentors young judges and attorneys. His advice to beginning advocates: “If you can be very prepared, but still be yourself, you can be good.” He finds that many lawyers try to copy someone else, and it never quite comes off as genuine. Judge Skemp is probably best known for his role with the Mental Health Competency Court. In the old days, incompetency cases were spread through the 13 misdemeanor courts of Dallas County, and incompetent defendants were held in jail without bond until they could be trans-
2011 DAABA Dragon Boat, Kite and Lantern Festival May 15 at Lake Carolyn in Las Colinas
This outdoor festival will feature a variety of food from all over Asia, remarks by North Texas mayors, cultural dance performances and several demonstrations and classes, all in celebration of Asian Heritage Month. In addition, DAABA will field a Dragon Boat team. To participate or for more information, contact Manson Ho at mho@walkersewell.com or log on to www.dfwdragonboatfestival.com.
presents
Although he does not yet have empirical data on the success of the program, he said,. “My gut tells me we have less repeat offenders.” He notes that this program has saved Dallas County over $300,000 a year, because the jails cost the county approximately $56 a day. Judge Skemp balances mercy with toughness. “I’ll meet you halfway, but not all the way,” he said. “I give everyone a chance to try. In misdemeanor court, I’m mostly dealing with young people, not hardened criminals. But if you show me you won’t try, then I won’t let you interfere with others who are trying to work in this program.” Married to Elizabeth Skemp, also a lawyer, Judge Skemp loves to read non-fiction, watch movies and is part of a group of lawyers who have Judge Doug Skemp faithfully followed the Texas Rangers for 30 years. His son may be followhave a dedicated competency prosecutor, ing in his footsteps, having passed the bar public defender and competency manager. and now practicing in San Antonio. His Good candidates, who are released on per- daughter is studying to be a social worker. Judge Skemp, the judge who shows up sonal recognizance, are assigned to one of our case managers, who visit them two or every day, is another lawyer who has quietly HN three times a week, put in specialized board- worked to make Dallas better. ing houses, with supervision, and they have a game plan to succeed. These individuals Harry Jones is a Board Certified shareholder with Littler Menthen come to Court twice a month where I delson, P.C. and a member of the DBA Publications Commitmonitor their progress.” tee. He can be reached at hdjones@littler.com. ferred to the hospital. Now, Judge Skemp’s special court handles all these proceedings, cutting the large costs involved with the old system. “Our goal is to regain competency and establish services in the community, so that competency is not lost,” he explained. “We
“The way to keep a clear docket is for the judge to show up every day.”
Join the Sports & Entertainment Law Section Do you read or write books? Do you go to the movies? Do you watch television? Do you play sports? Do you create or listen to music? Are you a fan of books, movies, television, sports or music? If so, then join the DBA Sports & Entertainment Law Section for only $20. This Section is open to all attorneys who practice in the substantive areas OR just enjoy learning more about them. Excellent CLE programs are presented the fourth Wednesday of each month at the Belo and there’s always time for networking.
Going Through the Motions:
Best Practices as Seen From the Bench
For more information, contact Sally Helppie at sally@advocatepictures.com.
JOIN THE DBA 100 CLUB Membership is Now Open! Judge Martin Hoffman
Judge Eric Moyé
Judge Craig Smith Judge Gena Slaughter
Join Texas Lawyer’s editorial department for a roundtable discussion with four Dallas County civil district judges as they candidly share their perspectives on writing and arguing motions. Don’t miss this opportunity to hear judges speak openly about their view from the bench.
May 12, 2011 • Belo Mansion & Pavilion — Dallas
The Dallas Bar Association 100 Club is a special membership recognition category that reflects a commitment to the advancement of the legal profession and the betterment of the community. To become a member of the DBA 100 Club, every attorney in your Dallas office must be a member of the Dallas Bar Association. Firms, government agencies, law schools and corporate legal departments with two or more lawyers that become a DBA 100 Club member will be listed in Headnotes and in the 2012 DBA Pictorial Directory, receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November. This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 400 FREE CLE programs offered each year, 29 substantive law Sections, numerous networking opportunities and community projects, plus many other member benefits as well as the opportunity to qualify for the DBA 100 Club.
8:30 a.m. Continental Breakfast • 9 a.m. Discussion
The DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. Please submit a request to our Membership Department for consideration.
Cost to AttenD
To become a 2011 DBA 100 Club member, please submit your request via email including a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2011 DBA 100 Club membership list!
Texas Lawyer subscribers: $30
•
Nonsubscribers: $40
Visit www.TexasLawyerEvents.com, Click on View From the Bench link. For more information, call 800.456.5484, ext. 7764.
If we receive your list by May 1, your firm will be included in the June, July and August DBA 100 Club listing in our Headnotes publication. Send in your list TODAY!
Don’t Miss Out on this Great Opportunity!
A pril 2 0 1 1
Focus
D al l as Bar A ssoci ati on l Headnotes 7
Real Estate/Environmental Law
EPA Asserts Fracking Contaminated Water Wells by James D. Payne
Controversy exists over whether hydraulic fracturing (“fracking”) of shale gas formations causes contamination of private water wells and public drinking water aquifers. Fracking is the pressurized injection of a mixture of sand, water and chemicals into geologic formations, such as coalbeds or shales, to form fractures in those formations to increase the volume of gas or oil that can be extracted. Some alarming allegations have been made about the potential hazards of fracking, including private well owners claiming they are able to light their well water on fire after fracking has taken place. The Barnett Shale, which underlies Fort Worth and surrounding counties, is in the middle of the fracking controversy. Indeed, several lawsuits have been filed recently alleging that fracking activities in the Barnett Shale have contaminated private water wells. The Environmental Protection Agency has become involved in the issue as well. On December 7, 2010, claiming authority under the Safe Drinking Water Act (SDWA), the EPA issued an Emergency Administrative Order against Range Production Company (Range) asserting that Range “caused or contributed” to the contamination of the Trinity Aquifer (a source of public drinking water) and private water wells. The contaminants identified by the EPA’s regional office are benzene, methane, toluene, ethane and propane. Among other things, the EPA ordered Range to identify gas flow pathways to the Trinity Aquifer, eliminate gas flow to the aquifer if possible, and remediate areas of the
aquifer that have been impacted. Range denies that it caused any contamination and has sued the EPA to force it to turn over data that the EPA claims links Range’s production activities with the alleged contamination. The EPA asserts that an isotopic fingerprint analysis of the methane obtained from a private water well drawing water from the Trinity Aquifer compared to an analysis of methane obtained from two of Range’s gas wells near the private water well indicate that both gas samples are “likely to be from the same source.” One of Range’s experts has likened the EPA’s analysis to trying to distinguish between birds and bats while using wings as the distinguishing characteristic. Both have wings, but they are not the same species. The EPA has been directed by Congress to carry out a study on the potential impacts of hydraulic fracturing on drinking water resources. The EPA has prepared a draft study plan, and, as of February 8, 2011, that draft plan was presented to EPA’s Science Advisory Board for review and comment. Initial research results are expected by the end of 2012 with a full report expected in 2014. The emergency order by the EPA is an unusual development in the hydraulic fracturing controversy for several reasons. First, the EPA issued its emergency order well ahead of any conclusions being drawn from the EPA’s hydraulic fracturing study, which is still in a formative stage. Also, the Texas Railroad Commission has conducted its own investigation into the alleged contamination and has not linked Range’s activities to any alleged contamination as of
the writing of this article. Finally, as a result of the Energy Policy Act of 2005, fracking was specifically excluded from EPA authority under the SDWA unless diesel is used as a component of fracking fluid. It is of note that the emergency order against Range does not mention fracking as the cause of any contamination. However, in an EPA news release issued at the same time as the emergency order, the EPA recognized fracking as one method of accessing natural gas and indicated that the EPA wants to “make sure natural gas development is safe.” The EPA’s emergency order against Range is coming under congressional scrutiny. On February 14, 2011, Senator Inhofe (R-OK), the ranking member on the Senate Environment & Public Works committee, sent a letter to the
EPA’s Inspector General requesting all EPA documents regarding the emergency order. Moreover, a recent agenda of the House Energy & Commerce Committee includes questions about the EPA’s use of its drinking water emergency authority in Texas. House Republicans have promised oversight of the order. Environmental litigation has already been initiated over allegations that hydraulic fracturing of the Barnett Shale causes contamination of drinking water supplies. The number of these cases, whether few or many, may depend upon the results of the EPA’s hydraulic fractur HN ing study expected in 2014. James Payne, a partner in Guida, Slavich & Flores, P.C., handles environmental litigation. He is the Secretary of the Environmental Law Section of the DBA. He can be reached at payne@gsfpc.com.
Justinian Award Luncheon Wednesday, April 27, 11:45 a.m. The Pavilion at the Belo Mansion
The Dallas Lawyers Auxiliary will present its prestigious Justinian Award to Don Glendenning, of Locke Lord Bissell & Liddell LLP. The Justinian Award is presented annually to a DBA member who has actively demonstrated a long-standing dedication to volunteer service in the Dallas community. Judges for the selection of the award are prominent Dallas civic leaders. Tickets: $100/person or $1,000 for a table of 10. Ethics 1.00 For reservations, contact Tina Gwinn at tina@gwinn.net or (214) 526-9828.
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8 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2011
How to Avoid PCI Non-Compliance Fees If your office accepts credit card payments, you should have received information from your merchant provider regarding the recent updates to PCI-DSS (Payment Card Industry Data Security Standard) compliance requirements. When you accept credit card payments, you also accept the responsibility of protecting cardholder information. As of July 1, 2010, any firm accepting credit was required to comply with the PCI security standards.* In addition to the requirements, if you have not become compliant, most major processors have implemented non-compliance fees. It may be helpful
to review a recent merchant statement for those charges which typically range from $15-$25 per month. To avoid noncompliance fees, you will need to take steps to become PCI-Compliant. You may have received calls regarding non-compliance fees or enticements to switch to other processors; however, use caution as these calls may just be ambush marketing techniques. Please check with your acquiring bank for specific deadlines and fees.
What is PCI?
In 2006, the major credit card brands (Visa, Mastercard, Discover, Ameri-
‘BAR NONE’ AUDITIONS Tuesday, April 5 ~ 5:30 to 7 p.m. ~ Belo Mansion Auditions for Bar None XXVI will take place April 5th in the Haynes & Boone ballroom at the Belo! All who audition will be cast. The Bar None show, to be held at the Greer Garson Theater June 15th - 18th, benefits the Sarah T. Hughes Diversity Scholarships. Those interested in being considered for a solo song or small chorus should bring sheet music; a pianist will be supplied. Those interested in being considered for featured dancing should be prepared to discuss their dance background with the show’s choreographer. Those interested in being considered for an acting role should be prepared to do a “cold” reading from a provided script.
Questions? Call Bar None’s Director, Martha Hardwick Hofmeister, at (214) 780-1400 or mhardwick@shacklaw.net.
can Express and JCB) formed a security council. The goal of the Security Council was to ensure the safe handling of cardholder data at all times and reduce credit card fraud by developing a standardized set of regulations for the entire credit card processing industry. The resulting Payment Card Industry Data Security Standard, Payment Application Data Security Standard and the PIN Transaction Security Standard work together to achieve that goal. Payment Card Industry Data Security Standards are focused on protecting credit card information at the merchant level by implementing basic procedures to protect card holder data. The new regulations will make protecting sensitive card information a priority, thus reducing identity theft and credit card fraud. Regardless of how many transactions you accept or process, PCI is an important step in protecting the security of merchant account. To ensure credit card transactions are secure through every step of the payment process, all parties in the payment industry are now required to be PCI Compliant.
major retailers that process in excess of 6 million Visa transactions per year. All merchants, regardless of credit card processing volume, must now comply with the regulations. Failure to meet requirements can result in security breaches, costly fines and forensic audits.
Credit Card Compliance for Attorneys
To help you through the PCI Compliance process, AffiniPay created a compliance program with all the tools you will need to meet that deadline. We understand the unique needs of businesses and wanted to make the compliance process as easy and painless for you as possible. Our program not only includes the Self Assessment Questionnaire, but also features unlimited support from PCI experts and a Security Policy Builder. You can get more information about the program or get started today by visiting www.pcicentral.com. For specific compliance questions, you may also contact Amy Airhart by emailing info@pcicentral.com or by calling (866) 376-0947.
You still need to do your part! About AffiniPay/ LawPay PCI Compliance is composed of two areas, how credit cards are processed through our systems and how you handle credit card information within the walls of your office. The security of your office is paramount for compliance. For example, do you store paper copies of credit card data in a secure way? Do you use a payment gateway or a terminal to process credit cards? These are practical security points addressed by the PCI-DSS and apply to any business that processes, stores or transmits credit card data (www.pcisecuritystandards.org). Until recently, most of the focus has been on
The LawPay Merchant Account, is a credit card processing for attorneys is a custom payment solution designed by AffiniPay. The LawPay Merchant Account complies with ABA and state requirements for managing client funds. As a member benefit of DBA, law firms save up to 20–25 percent off standard credit card fees. If you are currently accepting credit cards, we encourage you to compare your current processor with the LawPay Merchant Account. *Check with your merchant bank HN for deadlines and fees
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A pril 2 0 1 1
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Real Estate/Environmental Law
Environmental Disclosures in Commercial Real Estate Sales by Jill a. kotvis
Almost every commercial real estate transaction today involves potential environmental issues. The environmental issues can include aboveground storage tanks (AST), underground storage tanks (UST), buried solid waste, asbestos, mold, or historic uses or operations that may have led to soil or groundwater contamination. Disclosure of some of these issues by a seller of commercial real property is required under certain Texas and federal environmental statutes and regulations. USTs/ASTs. Texas UST regulations require sellers of property containing a UST or AST to provide to a purchaser a written notification of the tank owner’s obligations under the regulations relative to registration, UST compliance self-certification and construction notification or AST installation notification (30 TAC § 334.9). The following language is deemed sufficient to meet the disclosure requirements: • The USTs which are included in this conveyance are presumed to be regulated by the Texas Commission on Environmental Quality and may be subject to certain registration, compliance, self-certification, and construction notification requirements found in Title 30 Texas Administrative
Code, Chapter 334. • The ASTs which are included in this conveyance are presumed to be regulated by the Texas Commission on Environmental Quality and may be subject to certain registration, delivery, prohibition, installation notification, and other requirements found in Title 30 Texas Administrative Code, Chapter 334. The notification should also include the name and addresses of the seller and purchaser, the number of tanks, a description of each tank, the capacity, tank material, product stored, and the Facility I.D. number. Asbestos. Federal asbestos regulations require a building/facility owner to transfer to successive owners written records of any notifications communicated or received concerning the identification, location and quantity of asbestos or presumed asbestos containing materials (29 C.F.R. § 1926.1101(n) (6)). Mold. The Texas Mold Rules and authorizing statute (Texas Occupations Code § 1958(b)) require a seller to provide to a purchaser a copy of each Certificate of Mold Damage Remediation issued for the property during the preceding five years (25 TAC § 295.327(d)). Superfund. In order to maintain an innocent purchaser defense or other
defenses under the Texas “superfund” equivalent, a seller must disclose any release or threatened release of a hazardous substance known to seller during the time the seller owned the property (Texas Health and Safety Code § 361.275(g)). Similar provisions can be found in the federal “Superfund” statute (42 U.S.C. § 9601 (35)(C)). Other Texas Programs. Other Texas programs such as the Voluntary Cleanup Program, the Texas Innocent/Owner Program and the Texas Risk Reduction Program, and the Texas law on the use of land over closed municipal solid waste landfills, provide for filings in the property records. These filings act as notice to future owners of the environmental condition of the property and any engineering or land use controls or restrictions applicable to the property or necessary for an environmental closure to remain effective. Other States. Several states other than Texas have codified pre-sale environmental assessment obligations in property transfer statutes. The New Jersey Industrial Site Recovery Act goes one step further by imposing pre-conditions on the closure of industrial operations, conveyance of real estate on which such operations are located, and transfer of companies owning and operating such
real estate. And in 2010, the state of Washington enacted a new law that, for the first time in the U.S., requires sellers of commercial real estate to disclose a wide range of “environmental conditions” to prospective purchasers. General. Sellers are advised to disclose material facts involving the environmental condition of the property within their knowledge. The facts should not be embellished with opinion and should be provided only through existing environmental records and documentation (e.g., copies of permits, prior environmental reports) when possible. Sellers can further minimize environmental liability by allowing prospective purchasers an opportunity and sufficient time for a full environmental investigation, including soil and groundwater sampling. This area of law is changing rapidly with environmental issues now in the forefront in our daily lives and business transactions. It is important to timely consult an environmental lawyer on these issues and to review disclosure obligations in each state in which commercial real estate transactions are HN involved. Jill A. Kotvis is a solo practitioner practicing environmental law. She can be reached at jak1@nova1.net.
Insurance Law Basics Mini-Seminar
Speak to Dallas ISD Students!
Wednesday, April 13, 5:30 to 7:30 p.m. MCLE 2.00, including Ethics
Speak to Dallas ISD students during May 2011 in celebration of Law Week.
Topics & Speakers include: • An Update on Uninsured/Underinsured Motorist Coverage—Ed Carlton • Conditions of Coverage, the Examination Under Oath and Fraud —Saul Friedman and Lisa Songy • Ethical Issues in the Tripartite relationship—Robert Tobey
DISD schools are hosting various Career Days and speakers are requested. Speakers are encouraged to address the audience about Law Day, the rule of law or similar. The time commitments and class sizes vary.
For more information, contact Shelley Glazer at (214) 969-1236. Sponsored by the Tort & Insurance Practice Program
Sign-up by Friday, April 29 to Amy Smith at asmith@dallasbar.org.
Mel Wolovits
Ted M. Akin
Helping Parties Negotiate and Resolve
Great Walls of Conflict
Voted # 1 Best Individual Mediator/Arbitrator in Dallas - Texas’ Best Survey
H H H H H H H
Mel Wolovits at the Great Wall of China
•
Beijing, China
•
December 2009
Prepared • Creative • Tenacious 214.373.3777 MediateNegotiate.com
H 3023 Hester Avenue Dallas, Texas H 75205-3525 (214) 821-6370 H www.judgeakin.com
4,000+ Cases Mediated Full-Time Mediator for 21 Years 90%+ Settlement Rate 35 Years of Judicial Experience Justice Retired, 5th Court of Appeals of Texas Member - National Academy of Distinguished Neutrals Member - The Association of Attorney Mediators Distinguished Mediator - Texas Mediator Credentialing Association Panel - FINRA Dispute Resolution Panel - CPR: International Institute for Conflict Prevention & Resolution
Mediator H Arbitrator H Special Judge
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
Justinian Award continued from page 1
is particularly energized by the groundbreaking public-private partnership for the New Parkland Hospital. Carol and Don have a strict “no comment” rule about discussing their law firms with another, even forbidding that either inquire generally about the other’s day. Instead, they have a code. A “onecocktail” day is not too bad. A “threecocktail” day suggests that conversation of any kind should be minimized at least until after a first drink. Notwithstanding their lack of direct discussion of their firms and the clients that each serves (each knows of clients served by the other only if identified in the media or if they see the clients socially as a couple), Don says that of all his many relationships, his life partnership with Carol is by far the most important. “I’ve had the incomparable good fortune of getting to be married to my best friend; I’m even more excited to see her at the end of each day than I was when she agreed to marry me over 30 years ago,” he said. That sentiment has kept alive a practice that is not popular with Don’s male friends. Every day he is in town, Don has served Carol breakfast in bed since the first month they were married. Don says it’s not as entirely noble as it sounds. Given the demands of his practice (and a pretty active set of civic involvements), Don is never quite certain if he’s going to have to beg Carol’s indulgence for a very late dinner together—or to apologize for no dinner together at all. No matter how late he goes to bed, however, by definition, Don’s there for breakfast, “so I can at least claim to have joined Carol for one meal that day— not to mention that I have a long list of foibles to atone for.” These include one time in their earliest years of practice,
A pri l 2011
Patient Wishes before the advent of cell phones, that Don forgot to tell Carol that he would be with a working group from evening through mid-morning of the next day, and another time that Carol had to spend a night of their “vacation” in the bath tub of a London hotel to preserve client confidentiality for Don during a six-hour telephone call. Looking ahead, Don sees a lot of breakfasts in bed for Carol. Don joins a prestigious group of Justinian Award recipients which include: Al Ellis, George Bramblett, Hon. Ron Kirk, George W. Coleman, Sam P. Burford Jr., T. Michael Wilson, Michael M. Boone, John Andrew Martin, Robert Hyer Thomas, Jerry C. Gilmore, Darrell Jordan, Forrest Smith, Adelfa B. Callejo, Henry Gilchrist, P. Mike McCullough, Edward J. Drake, Harriet E. Miers, Hon. Louis A. Bedford, Jr., Vester T. Hughes Jr., Sidney Stahl and Marshall J. Doke Jr. Judges for the 2011 Justinian Award, who selected this year’s recipient, were Charles English, Pete Kline, John Poston, Howard Rachofsky and John Williams. Texas Supreme Court Chief Justice Wallace Jefferson will be the keynote speaker for the event. Chris Slaughter, President of Thanks-Giving Square, will give the invocation at the luncheon. Carolyn Raney, Kim Pearson and Julie Griffith are serving as co-chairs for the 29th Annual Justinian Award Luncheon. Carmen McTaggart is President of the Dallas Lawyers Auxiliary. Please make plans to join Don as he receives the 29th Justinian Award at 11:45 a.m. on Wednesday, April 27, in the Pavilion at the Belo Mansion. Tickets are $100 per person or $1,000 per table. Attendees are eligible for one hour of CLE Ethics credit. For reservations or additional information, please contact Tina Gwinn at (214) 526-9828 HN or at tina@gwinn.net.
continued from page 1
tives as an opportunity for patients to indicate treatment preferences for a time in the future when they become unable to make their wishes known. Such directives only apply if the patient is declared terminally or irreversibly ill and unable to particulate in decisionmaking. Advance directives can also be revoked at any time. An advance directive may identify whether or not an individual wants available life-sustaining treatment when suffering from a terminal condition from which they are expected to die within six months and, in addition, may request specific treatments. The directive may also designate a person to make treatment decisions with the patient’s physician if the patient does not have a medical power of attorney. In Texas, as of September 2009, patients can sign advance directives electronically using approved digital signatures. The Texas Hospital Association has identified advance directives and endof-life care as key issues for Texas hospitals in the 2011 legislative session. Texas law currently includes a process based on American Medical Association guidelines to address disagreements between patient surrogate decisionmakers and physicians about medical treatment near the end of life. Health and Safety Code Section 166.046 provides the procedure governing when an attending physician refuses to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient. There have been legislative attempts to require “treatment until transfer,” which in some cases would provide for indefinite treatment. Many healthcare providers believe that the “treat until transfer” change would cause an identi-
cal outcome for every case and would also create a mandate superseding the patient’s rights, as well as the physician’s responsibility to the patient. Currently, however, if a physician refuses to continue treatment based on a belief that it would be medically hopeless or futile, the hospital ethics committee reviews the decision and if the ethics committee agrees with the physician that treatment is futile, the family has 10 days to transfer the patient to another facility to continue treatment. The hospital has no statutory obligation to continue treatment after 10 days. Advance directives provide an independent voice for the patient during the ethics-committee process. This makes it less likely that physicians, chaplains, administrators and lawyers, who may have never met the patient, will be making choices for the patient without an understanding of the patient’s wishes. Yet the U.S. Agency for Healthcare Research and Quality noted in a 2003 article that less than 50 percent of the severely or terminally ill patients studied had an advance directive in their medical record. It is also important that healthcare providers know that an advance directive exists. The American Health Lawyers Association, a non-profit organization, distributed a DVD to members in 2009 titled “Loving Conversations.” The DVD contains vignettes which show mock family discussions about end of life planning. Watching all of the vignettes takes less than an hour and they are currently available to the public on YouTube. Additional resources regarding advance planning can be found at HN www.nhdd.org. Kimberly Wilson is a partner at Hermes Sargent Bates LLP, and a Texas liaison for National Healthcare Decisions Day. She can be reached at Kimberly.Wilson@hsblaw.com.
COMMUNITIES FOUNDATION OF TEXAS & SMU DEDMAN SCHOOL OF LAW PROFESSIONAL SEMINAR SERIES 2011
May 10, 2011
Works of Art and Collectibles: Tax Planning and Charitable Giving Featuring:
Ralph E. Lerner and Karen E. Carolan While collecting works of art and collectibles is intensely personal, donors seek assistance from their professional advisors when determining how and when to make a gift to a charitable organization. Join us for a lively discussion with Ralph E. Lerner and Karen E. Carolan as they share their collective knowledge and experience when working with the Internal Revenue Service surrounding art valuation for income, gift and estate tax planning purposes. Sponsored by:
RALPH E. LERNER
Ralph is counsel at Withers Bergman, LLP, practicing full time in the field of art law. He is a Fellow of the American College of Trusts and Estates Counsel and is a nationallyacclaimed speaker and writer on the topic of tax planning for collectors and artists.
KAREN E. CAROLAN
Karen is the Executive Director of the ADAA’s Appraisal Services Department and the former Director of the Office of Art Appraisal Services of the IRS and Chair of the Art Advisory Panel.
Communities Foundation of Texas Mabel Peters Caruth Center • 5500 Caruth Haven Lane
$75/person registration fee • Seating is limited Continental Breakfast—7:30 a.m. • Program—8 a.m. to 11:15 a.m. CLE/CPE/CFP 3-hour credit pending
To register or for more information visit www.cftexas.org, or call 214.750.4213
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Dal l as Bar A ssoci ati on l Headnotes 11
Americas High School Heads to State Mock Trial Competition by Jessica D. Smith
After a long legal battle and numerous performances on the courtroom floor, on Saturday, March 5, Americas High School of El Paso, Texas took home the title of State High School Mock Trial Champion. They beat 23 other teams and became the first team from El Paso to be crowned Texas High School Mock Trial State Champion. They will represent Texas at the National Mock Trial Championship in Phoenix, Arizona. The final round was presided over by U.S. District Judge Barbara M.G. Lynn at the Earle Cabell Federal Building. Amercias High School and Booker T. Washington Arts Magnet High School of Dallas went head-to-head, with the victory going to the team from El Paso. Teams rounding out the top four included St. Thomas Episcopal High School of Houston and Skyline High School of Dallas. Serving as “jurors” for the final event were Barry Sorrels, DBA President; Laura Benitez Geisler, DBA Director; Michele Wong Krause, DBA Director; Carlos Morales, DHBA President-Elect; Eunice Kim Nakamura, DAABA President; Steven Russell, DBA Mock Trial Committee Co-Vice Chair; and Brad Weber, DBA Chairman of the Board. Each year, the hypothetical case is written by Dallas attorneys on the Dallas Bar Association Mock Trial Committee, which is co-chaired this year by Steve Gwinn, of Suzanne I. Calvert & Associates, and Justice Lana Myers. Vice chairs are Prater Monning, of Monning & Wynne, L.L.P., and Steven Russell, of Russell & Wright, PLLC. This year’s hypothetical criminal case was Texoma v. Sitka Spruce, in which the defendant was charged with coercion of a public servant. On Saturday, March 5, an awards luncheon was held for the 24 teams who made it to the state competition. Awards presented included Outstanding Advocate, which went to Zach Fields of Americas High School, and Outstanding Witness, which was presented to Noelle Low of Booker T. Washington Arts High School. In addition, Decatur High School and St. Thomas Episcopal High School were awarded the Team Professionalism Award, which is voted
Americas High School beat its competition and was named the winner of the 32nd Annual Texas High School Mock Trial Competition on March 5 at the Earle Cabell Federal Courthouse.
on by the student’s mock trial peers. The Dallas Bar Association has sponsored and coordinated the Texas High School Mock Trial Program since its inception in the 1970s. Thousands of high school students from across the state participate each year in this highly motivating, energetic and challenging academic competition. The program provides a great way for students to gain an “insider’s view” of the judicial system. In addition, they gain confidence in public speaking and have a lot of fun at the same time. The program allows for students to participate in numerous roles associated with the trial process—from witness to defense attorney to plaintiffs’ attorney. In its 32-year history, the Texas High School Mock Trial Competition has had more than 120,000 participants and has awarded approximately $300,000 in scholarships at the local, regional and state levels. The Dallas Bar thanks the following contributors to the 2011 Texas High School Mock Trial: The Robert A. and Marianne S. Gwinn Family Foundation, Thomas P. Goranson, Peter G. Malouf, DBA Tort & Insurance Practice Section, DBA Business Litigation Section and the Dallas Bar Foundation. HN Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
The “jurors” who decided the final round of the Texas High School Mock Trial Competition included (standing) Eunice Kim Nakamura, DAABA President; Carlos Morales, DHBA PresidentElect; Brad Weber, DBA Chairman of the Board; and Laura Benitez Geisler, DBA Director. (seated) Barry Sorrels, DBA President; U.S. District Judge Barbara M.G. Lynn (who presided over the mock trial) and Michele Wong Krause, DBA Director.
Comments on Proposed Amendment to Local Civil Rules of U.S. District Court Unless modified after receipt of public comment the rules (found online at www.txnd.uscourts.gov) are effective September 1, 2011. Deadline for comments is June 1, 2011. Complete text of the order is available on the court’s Internet website at www.txnd.uscourts.gov.
CONSTRUCTION IN ARTS DISTRICT The Arts District is growing. To view construction plans and street closures, log on to: www.thedallasartsdistrict.org/news/ new-developments/construction-news
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Holmes v. Beatty: JT TEN Accounts and Texas Community Property by Joan Leslie
A recent Texas Supreme Court case, Holmes vs. Beatty, (52 Tex. Sup. Ct. J 967 (Tex. 2009), rehearing denied) puts a new twist on non-testamentary assets in estate law. In Holmes, a husband and wife amassed over 10 million dollars in brokerage accounts and securities certificates. The wife died first followed by her husband about nine months later. Both had children from previous marriages. Several accounts were at issue in the case, variously titled as “JT TEN.” If the JT TEN designations were insufficient to create survivorship interests then, as community property, only 50 percent would be retained as husband’s community property at wife’s death, and the remaining 50 percent belonging to wife at her death would pass under her Will to her children. If,
on the other hand, the accounts were valid survivorship accounts, then the wife’s 50 percent would vest automatically at her death in the husband, and at the husband’s death, 100 percent of the accounts would pass under his Will to his children. Before this case, Texas law held that the survivorship feature of joint accounts had to be expressly stated and was not automatic. Accordingly, both the probate and appellate courts here concluded that the acronym JT TEN, without more, could not create a right of survivorship. The lower courts also concluded that extrinsic evidence of the meaning purportedly assigned to the acronym JT TEN by the securities industry could not establish a right of survivorship of a joint Texas account. The Supreme Court concluded otherwise. Although the Supreme Court opin-
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ion did not discuss the facts in depth, the appellate court opinion sets forth the accounts including the language sufficient to create a right of survivorship under the first part of Texas Probate Code Section 452. Another account, referred to as the First Southwest account, did not. The First Southwest account agreement did not include any of the specific phrases listed in Section 452, and did not otherwise express that the account was held with a right of survivorship or state the intended disposition of the account upon one spouse’s death. Rather, the account stated only the acronym JT TEN next to the holder’s names in the account title. Additionally, it was undisputed that the account agreement provided no definition of JT TEN and that none had otherwise been provided. As none of the enumerated phrases under the first part of Section 452 was present, the Supreme Court was presented the opportunity to discuss policy behind the second part of Section 452. That part states that “…[a]n agreement that otherwise meets the requirements of this part, [ ] shall be effective [to create a right of survivorship in community property].” It concluded that the JT TEN designation was sufficient to establish the rights of survivorship. In reaching its conclusion, the Supreme Court analyzed trade usage, precedent and seminal treatises (albeit from 1768 and the United States Supreme Court). Although joint tenancy with automatic survivorship has never been
favored in Texas, and although most Texas banks have specific language in line with Texas Probate Code requirements, most nationwide banks and brokerage firms do not change their deposit agreements to specifically deal with each state’s probate laws. Contrary to Texas, most other states imply survivorship when just the words “joint tenancy” are used. In an ever-growing era of bank mergers, buyouts and takeovers, the majority of nationwide financial institutions are likely to pay over an account to a surviving joint tenant, short of a freeze notice or litigation, whether in line with Texas law or not. Whether one sees this as a “change” or simply an “extension” of the law, it is a reminder that estate planning encompasses not only the disposition of property through one’s Will, but also non-testamentary assets outside a person’s Will. Clients must be properly advised in coordinating these assets with their Will, especially if a client intends to dispose of such assets through their Will or they need to pass such assets through testamentary trusts under their Will. Although most Texas estate attorneys would not have predicted the Holmes conclusion, they should be aware that this holding could largely derail an otherwise finely-tuned HN estate plan. Joan Leslie practices estate planning, probate and guardianship at the Law Office of Jo Ann Bui Leslie and is Board Certified in Estate Planning and Probate Law. She can be reached at jbleslie@jbleslielaw.com.
Sponsored by the Solo & Small Firm Section June 1st, 8:45 a.m. to 5:00 p.m. at Belo Mansion Full day seminar on the nuts-and-bolts of law firm management, sponsored by Microsoft around the entire country. You can attend the morning or the afternoon or both. How to Start a Successful Law Firm (morning)—MCLE 3.00, including Ethics 1.00 and How to Grow a Successful Law Firm (afternoon)—MCLE 3.00, including Ethics 1.00 For more information, log on to www.dallasbar.org/content/solo-small-firm-section or www.howtomanageasmalllawfirm.com/onpurposetour
DVAP’s Finest Leah Lambert
Leah Lambert is an Associate at Patton Boggs LLP. She has been a DVAP volunteer attorney since 2005, and has focused mainly on estate planning and divorces. Leah appreciates the assistance of DVAP’s mentor attorneys, who are available to answer questions and help guide volunteer attorneys through the process. “The work I’ve done for DVAP is some of the most rewarding work I’ve done in my legal career. DVAP’s volunteer attorneys are able to make a significant impact on the lives of our clients, and the clients are genuinely appreciative of our services. For some of these clients, their visits with me are the only exposure they’ve ever had (and perhaps ever will have) with the legal profession. I try to make their experience with me as positive as possible. I doubt they realize how much I appreciate the opportunity to help them. It’s wonderful to actually see the difference I can make. DVAP attorneys change peoples’ lives for the better and that’s an amazing thing,” says Leah. Thanks for all you do, Leah!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
512.480.9074 / 1.800.252.9332 info@tlie.oRG www.tlie.org
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Focus
Dal l as Bar A ssoci ati on l Headnotes 13
Real Estate/Environmental Law
Authority Documentation in Real Estate Transactions by Harold A. Buell, Jr.
Most lawyers have some experience with “Authority Documentation.” It is the pile of documents, often an afterthought, that every buyer, seller and lender require of the opposing party to consummate the given transaction. Often the “Authority Documentation” consists of forms that are consistently re-used by practitioners with little attempt to adapt the forms to the particulars of the transaction. These documents, however, often include representations and grants of authority that create pitfalls potentially exposing parties to additional liability. The cautious practitioner must always keep in mind the scope of the transaction when reviewing authority documentation. First, one may wonder why authority documentation is needed in a real estate transaction. The Texas Property Code requires a conveyance of an estate in land that is for more than one year to be in a writing subscribed by the conveyor, or by the conveyor’s agent authorized in writing. This statute precludes an unauthorized agent from conveying land owned by its principal. And, to convey property by or through an entity, an individual person is required to sign on behalf of the entity, as its agent. Thus, viewed in light of the Texas Property Code,
there must be an individual person, authorized as an agent in writing, for an entity to convey real property. An individual agent, however, can exceed the agent’s actual authority. But Texas law provides a remedy for those situations, by allowing actions taken without actual authority to be subsequently ratified by a later written consent. By this statute, the directors or managing persons of an entity, through authority documents, give their consent to an individual person who acts as the agent for the entity in signing the conveyance documentation. The Texas Business Organizations Code, unless an entity’s governance documentation provides to the contrary, allows the directors or managing persons to take action without holding a meeting, providing notice, or taking a vote, so long as each of the directors or managing persons entitled to vote signs a written consent to the action. A lender, purchaser or seller, by requiring execution of authority documentation before closing, protects itself from the exposure that may result from the potential lack of authority of an individual purporting to be an agent of the applicable entity. Additionally, the authority documentation generally results in a reaffirmation and ratification of the prior actions taken by the individual person who has acted as
an agent for the entity, further limiting the potential exposure to a lender, purchaser or seller resulting from unauthorized acts of an agent. The typical consent form requires an entity and/or its officers to acknowledge and certify certain items are true and correct. Many of these items may be verified with little effort and carry little risk to those who execute the documentation. These items include representations, for example, that there are currently no proceedings pending for the dissolution of the entity or that all taxes and fees required to maintain the entity’s existence have been paid when due and are not currently delinquent. However, often upon further review, other more troublesome representations may require additional consideration before allowing a client representative to execute the authority documentation. For example, does the entity really want to “ratify, confirm, and approve” “any and all actions” that were taken by its officers or representatives prior to the adoption of these resolutions? Perhaps this ratification should be limited to the time frame relevant to the transaction at hand. In a lending transaction, the proposed authority documentation often results in a certain officer or representative being granted the power to nego-
tiate, purchase, sell, assign and transfer the property upon such terms and conditions as such person, in their sole discretion, deems necessary or advisable. Then, that power is coupled with the often-found representations that: (1) the authority document and representations therein may be relied upon in renewing and extending the entity’s obligations; and (2) the authority documentation supersedes and controls any provision in the entity’s governance documentation to the contrary. These covenants could create a continuing actual authority in the agent that is often overlooked. The practitioner who is dealing with an entity comprised of multiple individuals should carefully consider the interaction between such a grant of continuing actual authority and the unforeseen disputes between the individuals that may arise in the future. Taking the time to thoroughly review these documents to ensure any representations made, and authority granted, are limited to the scope required by the transaction can serve to avoid unanticipated consequences that can result from overly broad authority HN documents. Harold A. Buell, Jr. is a real estate and corporate law associate with Griffith Nixon Davison, PC. He can be reached at HBuell@gndlaw.com.
Judicial Investitures
The Judicial Investitures for Probate Judges Brenda Hull Thompson and Chris Wilmoth were held February 8 at Belo. In attendance were (left to right) Judge Jorge Solis, Judge Wilmoth, DBA President Barry Sorrels, Judge Thompson, Rhonda Hunter and Chief Justice Carolyn Wright.
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2011
Get Your CLE at Belo! As a DBA member you receive numerous FREE CLEs each month. Here are just a few of the CLEs and speakers you may have seen at Belo recently.
ABOVE: Tort & Insurance Practice Section with Eric Bowers, David Kent, Professor Bill Bridge, Justice Douglas Lang and Frank Guinta.
ABOVE: Criminal Law Section Chair Gary Udashen, Kevin Ross, DBA President Barry Sorrels and speaker Hon. Mike Snipes. LEFT: Construction Law Section Vice Chair Jeff Brannen, Chair Misti Beanland and guest speaker Mayor Tom Leppert. Hon. Nikki DeShazo presents Barkley Miller with the first Hon. Nikki DeShazo Pro Bono Award from the Probate, Trusts & Estates Section.
Do You Want to Refresh Your Spanish? Spanish for Lawyers is the Answer! 8-Week Course Summer 2011. Classes begin May 3. All courses are a continuation of spring semester. Class cost: $150 • Deadline to sign up: April 29, 2011 For more information, contact Teddi Rivas at TRivas@dallasbar.org or (214) 220-7447.
. . . . . . DBA In the News . . . . . .
During the past two months, your DBA has been highlighted in the following media:
Fox 4 News: DBA Director Kim Askew, Texas High School Mock Trial
ABA Journal: Community Involvement Committee’s School Supply Drive
Herald Democrat: MLK Award
American Airlines’ InsideCounsel: Pro Bono Awards Coppell Gazette: Legalline, Economy Forum Dallas Business Journal: Judiciary Committee, DBA President Barry Sorrels (Public Eye Section), Leon Carter receives MLK Award, Brad Weber elected Chair of the Board Dallasblog.com: DVAP Dallasisdblog: Jack Lowe Sr. Award dBusinessNews: Leon Carter receives MLK Award, Morris Harrell Professionalism Award, Economy Forum, Belo General Manager Kevin Brant Dallas Morning News: MLK Luncheon, Leon Carter receives MLK Award (subject of James Ragland column), Equal Access to Justice Campaign, Legalline, Economy Forum Dallasvoice.com: Legalline Digitaljournal.com: Leon Carter receives MLK Award Focus Daily News: Equal Access to Justice Campaign Fort Worth Business Press: Leon Carter receives MLK Award
KERA: Transition to Law Practice Program Mesquite News: Legalline, Economy Forum Newsblaze.com: Collaborative Law Section North Dallas Gazette: Legalline, Economy Forum Post Tribune: Legalline, Leon Carter receives MLK Award Pr-usa.net: Leon Carter receives MLK Award Prurgent.com: DBA Minority Attorney Award SBOTnewspaperclips.com: Leon Carter receives MLK Award TechNewsWorld.com: DBA President Barry Sorrels, DBA Past President Peter Vogel Texas Bar Journal: Stephen Philbin Award, Lisa Blue Baron donates $100,000 to DVAP Texas Daybook.com: Public Economy Forum Texas Lawyer: Leon Carter receives MLK Award, DBA 2011 Board of Directors, Brad Weber elected Chairman of the Board
In the News
Sports & Entertainment Law Section Chair Sally Helppie and special guest speaker Val Ackermann, President of the WNBA.
April
FROM THE DAIS
Jonathan K. Hustis, of Phillips & Reiter PLLC, spoke at the Entrepreneur Information Series sponsored by Baylor Angel Network. John Slavich, of Guida, Slavich & Flores, P.C., was a panelist at the National Brownfield Association Sustainable Communities Workshop in Austin, Texas. William R. (Trey) Cousins III, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke to the Estate Planning Council of Seattle, WA. Mary Wood and Kathryn Lyles, of the firm, spoke to the American Society of Women Accountants—Fort Worth Chapter.
KUDOS
Mark L. Hill, of Cowles & Thompson, P.C., has been promoted to Shareholder. Dena DeNooyer Stroh, of Gruber Hurst Johansen & Hail LLP, has been named Partner. Raymond Van Dyke, a solo practitioner, was a recent delegate at a World Intellectual Property Organization meeting in Geneva, appointed to the Washington, DC, Intergovernmental Group Advisory Board, and re-appointed the Greater Washington, DC, and Northern Virginia Chapter Chair of the Licensing Executives Society. Daniel H. Charest and Stephen Shackelford, Jr., of Susman Godfrey L.L.P., have been named Partners. Peter S. Vogel, of Gardere Wynne Sewell LLP, received the State Bar of Texas “Standing Ovation” award for contributions to the bar’s continuing legal education efforts in 2010. William G. Whitehill, of the firm, had his article published in The World Arbitration and Mediation Review. Virginia Alverson, Heather Forrest, Andrew Graham, Amy Roberts, and Debbie Robinowitz, of Jackson Walker L.L.P., have been elected Partners. Yvette Ostolaza, of Weil, Gotshal & Manges LLP, has been reappointed to a
one-year term as the State Bar of Texas liaison to the Texas Bar Foundation Board of Trustees. Charles M. Wilson, III, of Wilson & Lake, LLP, received the State Bar of Texas 2010 “Standing Ovation” Award for providing continuing legal education. Coyt (Randy) Johnston, of Johnston Tobey, P.C. received the State Bar of Texas 2010 “Standing Ovation” Award for contributions to the bar’s continuing legal education efforts. Jeffrey M. McPhaul, of Munck Carter, LLP, has been promoted to Partner.
ON THE MOVE
Caleb D. Trotter and Ufot F. Umana, Jr. have joined Munsch Hardt Kopf & Harr, P.C. as Associates. Steven W. Hopkins has joined Gruber Hurst Johansen & Hail LLP as an Associate. Kenneth P. Kula and Walter G. (Bob) Pettey, III have joined Kennedy Clark & Williams, PC. Jeffrey R. Fine has joined Dykema Gossett PLLC. Kirk A. Voss has joined the firm Carstens & Cahoon, LLP. Leighton Durham and Kirk Pittard, of Durham & Pittard, LLP, and Peter Kelly of a Houston firm, have formed Kelly, Durham & Pittard, L.L.P. with offices in Dallas and Houston. Christy L. Denison and Leigh P. Bradford have joined as Associate and Of Counsel, respectively. William T. McLain and Robert J. Reagan, of Reagan & McLain, have changed the firm name to Reagan McLain Lee & Hatch, LLP. LaKisha Pressley Lee has become a partner with the firm. John Dugdale has joined Burford & Ryburn, L.L.P. as Counsel. Ruth Ann Daniels and Amanda Inabnett have joined Looper, Reed & McGraw, P.C.
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Dal l as Bar A ssoci ati on l Headnotes 15
Classifieds
April
OFFICE SPACE
High-rise views at low-rise rates. Panoramic views from 63rd floor. Class-A downtown space close to courthouse, AVrated law firm. Access to large conference room, library, kitchen. Secretarial, clerical, reception available. Offices available with very nice secretarial stations. Negotiable. Call Kay (214) 761-6463. Walnut Glen Tower (Walnut Hill/Central) Beautiful, new, spacious offices in Class A building with views of downtown over lake with fountains. Lobby with glass elevators, 18-story atrium, waterfall, trees and true outdoors feeling indoors. Practice in a relaxed yet professional 4-lawyer environment which includes administrative stations, conference room, kitchen, copier, phone system, DSL, reserved garage parking, on-site restaurant and other amenities. Why not have quality of life while you practice? Please call (214) 750-1600 for details. 3 Months Free Rent! Preston Tower. Large window office. Secretarial area available. Shared amenities (kitchen, conference room, reception area, bathroom). Near Preston Center, 10 minutes from courthouse. Call (214) 369-1171 or e-mail herbhooks @aol.com. Single office with secretarial space available within small real estate law firm located at 4054 McKinney Avenue. No long term commitment and a monthly rate of $750.00. Shared conference and break room, furniture, copier, fax, DSL & phone equipment are available if needed. Call (214) 520-0600. Galleria area. Located at Spring Valley and Dallas Parkway. 14 x 14 and 10 x 14 window offices available. Receptionist, telephone system, Internet, copier, two
large conference rooms, kitchen, covered parking. Call Lilo (972) 490-0808. Window offices at Premier Place, with elevator exposure. Reception area, conference room, kitchen, Internet and telephone system. Share space with real estate and business law practice. $1,800/ month or $2,000/month for large office. Contact Robert McTaggart (214) 2651914 or Robert@McTaggartLaw.com. Downtown AV-rated law firm has one new window office with a secretarial space on the 25th floor with a great view. Call Mark or Vicki at (214) 752-0400. Time is Money! 3 miles from County Courthouse – 2 miles to downtown! Quality office space at lower than market prices – $18/sf. Includes electricity and free garage parking. 9 miles to Love Field Airport. Minutes to DART rail, Baylor University Medical Center, Dallas Arts District, SMU, Oak Lawn, West Village. Centrally located on major thoroughfares. Uptown Tower. 4144 N. Central Expressway. (972) 490-7348. Free rent-SMU (Yale)/Central. Partner office and secretarial space. Beautiful 12th floor view of SMU/Park Cities. Professionally decorated, beautifully furnished. Overflow business. Receptionist, elegant conference room, kitchen, DSL, door signage, restaurant, bank, parking, DART. Office $1,095.00/mo., secretarial space $300.00/mo. (214) 369-9888.
POSITION AVAILABLE
Well-established Texas law firm with offices throughout the state seeks commercial litigators and transactional attorneys, or practice groups, with 10+ years of experience. These positions are located principally in our Dallas and Houston offices.
Mail resume, in confidence, to D Loyd Legal Recruiting, P.O. Box 251, Addison, Texas 75001, or e-mail your response to dloyd@dloydlegalrecruiting.com.
court experience preferred. Must have excellent research and writing skills. Principals only. Contact employment@ godwinronquillo.com.
Well-established Dallas family law firm interested in adding an attorney with family law experience, board certified or interested in future board certification and with the desire and ability to generate business. Send your confidential inquiries to wholmes@texfamlaw.com.
Godwin Ronquillo PC is seeking an associate with 2 to 3 years’ experience in commercial litigation. Some family law background required. Candidate must have excellent credentials. Deposition, hearing and trial experience needed. Principals only. Contact employment@ godwinronquillo.com.
In connection with our expansion, Helms & Greene is seeking an employment litigation partner for its offices in Houston, Dallas or San Antonio. A minimum of fifteen years’ experience is required handling employment matters for management clients. Candidates should manage client relationships with carriers and corporations comparable to the organizations supported by the Firm. Compensation package will reward skills, relationships and experience. We would consider an employment litigation team. Additional Firm information may be obtained by visiting www.helmsgreene.com. Feel free to contact Steve Greene at sgreene@helmsgreene.com or (770) 206-3371. Godwin Ronquillo PC is seeking an associate with 4 to 6 years’ experience in commercial/civil litigation. Federal
SERVICES
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. Coauthor, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com 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. Place Your Ad Here! For affordable classified advertising rates call Judi Smalling at: (214) 220-7452.
Annual Evening Ethics Fest Thursday, May 12, The Pavilion at the Belo Mansion
Check-In and Dinner begins at 4:45 p.m. Program begins at 5:30 p.m. (3.00 Ethics) $65 DBA member early registration/$95 DBA member late registration $135 non-member early registration/ $155 non-member late registration Speakers include Justice Phil Johnson of the Texas Supreme Court, as well as local Dallas County Judges. Registration deadline: March 9, 5:00 p.m. For more information, log on to www.dallasbar.org or contact Alicia Hernandez at (214) 220-7499 or AHernandez@dallasbar.org.
DBA Annual Senior Lawyers Appreciation Dinner Wednesday, May 11 ~ The Belo Mansion Cocktails at 5:30 p.m. ~ Dinner at 6:30 p.m. Tickets $40 ~ Tables available $400 To RSVP or for more information regarding sponsorship opportunities, contact Kathryn Zack at kzack@dallasbar.org. Sponsored by the DBA Senior Lawyers Committee
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Sponsored by the DBA Legal Ethics Committee
Play Golf and Support Pro Bono Save the date for the 19th Annual Pro Bono Golf Classic, benefitting the Dallas Volunteer Attorney Program. Thursday, May 5, 2011 at Cowboys Golf Club Entertain clients with a golf game, while helping a family in need. Registration includes lunch, dinner and refreshments on the course. The tournament is a 4-person scramble format -- limited to the first 128 golfers. Lots of prizes, plus great goody bags, raffle and other fun games! Check-in and use of the practice range begins at 11 a.m. and shotgun start is at 1:30 p.m. A reception and awards dinner will follow the tournament at 5:30 p.m. Register online at www.dallasbar.org. For more information on sponsorships, contact Rhonda Thornton at rthornton@dallasbar.org.
PARKING OPTIONS AROUND BELO Please plan to arrive at your noon meetings early. Parking is limited at Belo during the noon hour. To view other parking options in the area, log on to: www.thedallasartsdistrict.org/ plan-your-visit/parking/index.htm
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
A pri l 2011
When fortune and family matter, invest in expertise.
GREG BEANE
R O B E RT EPSTEIN
K E L LY M C C LU R E CHRIS MEUSE
T H E M C C L U R E L AW G R O U P ,
A
100% F A M I LY L AW
PRACTICE,
is comprised of seasoned, high-
octane attorneys who deliver meaningful results when fortune and family matter. With decades of legal experience, Family Law Board Certified Attorney Kelly McClure and the team of attorneys and specialists at McClure Law Group serve clients in Dallas, Collin, Denton, and Tarrant counties, and nationwide. The McClure Law Group attorneys expertly navigate the complexities of divorce, division of assets, custody, pre- and post-marital agreements and modifications. Families committed to solutions outside the courtroom are competently guided to favorable outcomes with the Collaborative approach offered by the McClure Law Group; however, when litigation is necessary, the McClure Law Group attorneys’ powerhouse courtroom presence, finance and tax law acumen, state-of-the-art research tools, and extensive trial experience produce resolutions that protect their clients’ fortune and family.
We know fortune and family matter. We’ll fight for yours.
K E L LY HIGHLAND PARK/DALLAS telephone 2 1 4 . 6 9 2 . 8 2 0 0 8115 PRESTON ROAD, SUITE 270 DALLAS, TX 75225
M
C
CLURE
Fa m i l y L a w B o a r d C e r t i f i e d GREG BEANE
R O B E RT E P S T E I N
CHRIS MEUSE
www.m c c l u r e - l a w g r o u p . com
COLLIN COUNTY telephone 9 7 2 . 5 1 6 . 3 8 5 0 101 E. PARK BLVD., SUITE 600 PLANO, TX 75074