June 2023 DBA Headnotes

Law Day Luncheon 2023

Akin Supports Pro Bono in Dallas

BY MICHELLE ALDEN

Focus Construction/Real Property Law

Drone Law Basics and Upcoming Changes

BY FRANK L. BROYLES

Uncrewed aircraft, commonly called “drones,” are becoming common place, and new and innovative uses for drones are cropping up almost daily. As an example, after substantial experience with drone delivery in Australia, Google Wing recently set up operations in Frisco, Texas and is currently using drones for short-range delivery of various consumer products. Agricultural use is typically listed as the number one reason for drone applications, while construction ranks from second to fourth. Primary uses for drones in construction are: inspection, surveying, inventory management, product delivery, security, and litigation support. The objective of this article is to provide a foundation for attorneys who have substantial construction experience, but little or no familiarity with rapidly developing drone law.

Drones are aircraft, and they are highly regulated by the Federal Aviation Administration (FAA). Significantly more restrictions are being implemented to promote the safe operation, and increased public acceptance, of drones for a growing variety of uses.

Drones flown for construction purposes in federal airspace must be registered with the FAA and flown by an FAA-licensed drone pilot who has passed a written drone law exam at an FAA testing center. When and how drones are

flown determine which regulations apply. State and local governments also are adopting various drone laws, but those laws cannot conflict with federal law.

Generally, drone attorneys and drone educators are more than willing to help, and they provide a great and timely maintained resource. For example, on his website, www.jrupprechtlaw.com , Johnathan Rupprecht, a drone attorney in Florida, maintains a list and summary of almost all drone cases, both criminal and civil, and it is an excellent research website.

Regulation of drones weighing less than 55 pounds typically falls under Part 107 of Title 14 of the Federal Code of Regulations, titled “Small Unmanned Aircraft Systems.” The basic prohibitions listed in Part 107 include flying at night, flying over people, flying over 400 feet above ground level or structures, flying in restricted airspace (e.g., commercial airports), and flying less than 500 feet below clouds. Those regulations, however, are not set in stone. Applications to the FAA for waivers and exemptions from Part 107 are available if a case can be made for safe operation.

A significant change in drone regulation is scheduled to become effective in September of this year. That change will require all drones that are not being flown in FAA-designated “Recognized Identification Areas,” or “FRIAs,”

continued on page 22

Akin is an elite law firm that helps clients anticipate what is next, and helps navigate a path to success. The attorneys of Akin pride themselves on supporting the community in which they live and work. This desire to give back to the Dallas community led the firm to step up with a generous gift of $26,000 to this year’s Equal Access to Justice (EAJ) Campaign. The firm has a long and distinguished history of contributing to the Campaign. Including this gift, Akin has donated more than $178,400 to legal aid for low-income people since 1997. The EAJ Campaign is the annual fundraising campaign that supports the Dallas Volunteer Attorney Program (DVAP). The firm’s gift makes it possible for DVAP to continue to provide legal aid in Dallas, keeping the doors to the courthouse and our overall justice system open to many more people.

“DVAP gives our firm the opportunity to reach those in our community most in need of free legal services,” said Steven Schulman, Pro Bono Partner. He joined the firm in 2006 as its first full-time pro bono partner, and he has seen participation in the pro bono practice increase substantially in every office and across every practice group. The firm’s lawyers now devote an average of more than 100 hours annually to pro bono client matters.

“With DVAP’s mentorship, my colleagues feel comfortable advising in areas outside of their normal practice. An investment funds lawyer can, for example, confidently help a low-income Dallas resident complete a will and other life-planning documents,” Steve added.

Akin attorneys have been volunteering at various DVAP legal clinics and accepting cases for full representation for years. Without volunteer attorneys stepping up to assist, access to justice would be out of reach for DVAP clients, who do not have the resources to hire private attorneys.

Longtime volunteer Nina Orendain, a member of Akin’s investment management practice in Dallas, focuses her pro bono work on cases for DVAP’s Spanish-speaking clients, thereby filling a critical need for assistance with estate planning, divorces, and name changes.

“I was raised in a family committed to social justice,” said Nina. “My par-

ents gave up their career aspirations to devote their lives to the Farmworkers’ Movement in California. Later, my parents remained committed to organizing farmworkers through the founding of the Texas Farm Workers Union in the Rio Grande Valley. At an early age, I saw how education and a profession such as the law could be used to help people improve many aspects of their lives. I also lived a life appreciative of volunteer service, including those who supported the Farmworkers’ Movement and the historic grape boycott of the 1960s. Through my childish view, I dreamt of becoming a ‘have’ while committing to never forget what it was like to be a ‘have not.’ I vowed that I would always help others in any way I could. I choose to use my legal and language skills to do that.”

Nina encourages other attorneys to become involved in pro bono, and has learned that while our legal system has a long way to go, “there are many Dallas attorneys and law firms committed to contributing to doing their part to make the legal system more accessible and equitable.” DVAP is grateful for Akin’s support of equal access to justice.

DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www.dallasvolunteer attorneyprogram.org. HN

On May 16, the DBA hosted its annual Law Day Luncheon, at which Vitalii Tarasiuk, Consul General of Ukraine to the Southwest, was the keynote speaker. Mr. Tarasiuk was interviewed by DBA President Cheryl Camin Murray on the topic of “Enforcing the Rule of Law in Ukraine.”

Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.

Steven Schulman

Programs and meetings are presented Virtually, Hybrid, or In-Person. Check the DBA Online Calendar (www.dallasbar.org) for the most up-to-date information. Programs in green are Virtual Only programs.

Calendar June Events

LGBTQ PRIDE MONTH

June is LGBTQ Pride Month. For additional resources, visit www.americanbar.org/groups/diversity/ sexual_orientation or www.lgbtbar.org. To find out more about the Dallas LGBT Bar Association, visit https://dlgbtba.org/. For more on the DBA’s Diversity Initiatives, log on to www.dallasbar.org.

JUNE 7

WEDNESDAY WORKSHOPS

Noon “ADA for Business Including Law Firms, Real Estate Owners and Developers, and Small Business Owner Clients,” Richard Hunt. (MCLE 1.00)*

JUNE 21

Noon “Breached! Preventing and Responding to Cyber Attacks,” Hayley Curry. (MCLE 1.00)*

THURSDAY, JUNE 1

Noon Construction Law Section

“Insurance Market Changes Impacting the Construction Industry,” Kevin Byrnes, Ryan Hyman, and Halima Shaw. (MCLE 1.00)* In person only

Admissions & Membership Committee Criminal Justice Committee. Virtual only

FRIDAY, JUNE 2

Noon DVAP Summer Associates Pro Bono

Luncheon Hon. Bonnie Goldstein, Cheryl Camin Murray, Jaha Thomas, and Jenae Ward. (MCLE 1.00)* To register, email martinm@lanwt.org. In person only

MONDAY, JUNE 5

Noon Tax Law Section “Topic Not Yet Available,” Adam Arikat. (MCLE 1.00)* In person only

TUESDAY, JUNE 6

1:00 Personal Parity Program

“Secret Strategies to Lessen Stress and Improve Success,” Tara Antonipillai. (MCLE 2.00)* To register, log on to dallasbar. org. Free for DBA members. Free for DBA members! $145 for non-members. Register at dallasbar.org. In person only

Tort & Insurance Practice Section

“What’s Coming:  Hot Topics for the 88th Legislative Session,” Mike Shipman. (MCLE 1.00)* Virtual only

Legal Ethics Committee. Virtual only

DWLA Board Meeting

6:00 p.m. DAYL Board Meeting

WEDNESDAY, JUNE 7

Noon Employee Benefits & Executive

Compensation Law Section

“Payroll Tax Implications of Remote and Hybrid Work Arrangements,” Gino Petrozzi.

(MCLE 1.00)* Virtual only

Solo & Small Firm/Science & Technology

Sections

“Tech Talk for Law Firm Owners,” Kathryn Childress, Shereen El Domeiri, and Alex Shahrestani. (MCLE 1.00, Ethics 0.50)*

Wednesday Workshop

“ADA for Business Including Law Firms, Real Estate Owners and Developers, and Small Business Owner Clients,” Richard Hunt. (MCLE 1.00)*

Allied Bars Equality Committee. Virtual only

Child Welfare & Juvenile Justice Committee.

Virtual only

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

THURSDAY, JUNE 8

Noon

Alternative Dispute Resolution Section Topic Not Yet Available

Law Student Professionalism Program

“A Program for Law Students & Recent Law Graduates.” Sponsored by Morris Harrell Professionalism Committee. More information at dallasbar.org. (MCLE 2.00)*

CLE Committee. Virtual only Publications Committee. Virtual only

FRIDAY, JUNE 9

Noon Minority Clerkship Luncheon

“The Fork in the Road Begins Here,” Ben Aguinaga, Andres Correa, Juanita DeLoache, Kenya Woodruff, and moderator Amy M.

Stewart. (Ethics 1.50)* Sponsored by the Minority Participation Committee. In person only

Government Law Section

“Practical Considerations when Asserting Qualified Immunity,” Chris Klement. (MCLE 1.00, Ethics 0.25)*

Trial Skills Section/DAYL

“Trial Skills Boot Camp: Voir Dire Techniques,” Quentin Brogdon, Julie Pettit, Hon. Monica Purdy, Kellye Raymond, and Victor Vital. At the George Allen Courthouse. Register at tinyurl. com/muhvnhr3.

MONDAY, JUNE 12

Noon Labor & Employment Law Section

“Preservation of Error and Other Appellate

Practice Issues for Labor & Employment Lawyers,” Hon. Amanda Reichek. (MCLE 1.00)*

Real Property Law Section

“Land Surveys for Commercial Real Estate and What Attorneys Need to Know,” Vince Macauda. (MCLE 1.00)*

Peer Assistance Committee. Virtual only

TUESDAY,

JUNE

13

Noon Business Litigation Section

“Artificial Intelligence and the Law: the Challenges and Opportunities Every Litigator Should Know,” Robert Hill and Meghan J. Ryan. (MCLE 1.00)*

Immigration Law Section

“Creative Immigration Solutions for NonCitizen Survivors of Crime,” Tricia Freshwater and Kathleen Klein. (MCLE 1.00)* In person only

Home Project Committee. In person only

6:00 p.m. Dallas LGBT Bar Board Meeting

JLTLA Board Meeting

WEDNESDAY, JUNE 14

Noon Bankruptcy & Commercial Section

“Hot Topics in Bankruptcy,” Sean Burns, Conor White, and Grayson Williams. (MCLE

1.00)* In person only

Family Law Section “Making The Hague Less Vague,” Natalie Webb. (MCLE 1.00)* Virtual only

Bench Bar Conference Committee. Virtual only

Public Forum Committee. Virtual only

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

7:30 p.m. Bar None: Where the Law Dads Sing at Greer Garson Theatre, SMU Campus. www. barnoneshow.com

THURSDAY, JUNE 15

9:00 a.m. Intellectual Property Law Section

“China IP Road Show: Strategies for Protecting Intellectual Property in China: What Texas Businesses Need to Know.” (MCLE

7.00)* In person only

Noon Appellate Law Section

“SCOTX and SCOTUS: An Examination of Each Court’s Reliance on the Other, with an Emphasis on History, Current Trends, and Data,” Jason Boatright. (MCLE 1.00)* In person only

4:00 p.m. DBA Board Meeting

6:00 p.m. Corporate Counsel Section “Disaster Preparedness,” John Ansbach, Rebecca Rodriguez, and Dena Stroh. (MCLE 1.00)* In person only at Maggiano’s Little Italy (6001 W. Park Blvd, Plano)

7:30 p.m. Bar None: Where the Law Dads Sing at Greer Garson Theatre, SMU Campus. www. barnoneshow.com

FRIDAY, JUNE 16

8:00 p.m. Bar None: Where the Law Dads Sing at Greer Garson Theatre, SMU Campus. www. barnoneshow.com

SATURDAY, JUNE 17

8:00 p.m. Bar None: Where the Law Dads Sing at Greer Garson Theatre, SMU Campus. www. barnoneshow.com

MONDAY, JUNE 19

No DBA events scheduled

TUESDAY, JUNE 20

Noon Education Law Study Group “Time Out: Let’s Talk Student Discipline,”

Amanda Bigbee. (MCLE 1.00)* Virtual only

Franchise & Distribution Law Section

“Hot Topics in Franchise Law: Year-in-Review and Implications for Outside and Corporate Counsel,” Sam Mallick and Wilson Miller. (MCLE 1.00)* Virtual only

International Law Section “National Security and Investment Act 2021 (NSIA) and Its Impact for U.S. Companies that Conduct Business in UK,” Nicolas Groffman, Clare Murphy, and Ruth Sheret. (MCLE 1.00)* Community Involvement Committee. Virtual only

WEDNESDAY, JUNE 21

Noon Energy Law Section “Oil & Gas and Securities Law,” John Fahy. (MCLE 1.00)* In person only

Health Law Section “Emerging Trends in IT and the False Claims Act,” Bill Mateja and Rachel Rose. (MCLE 1.00)* Virtual only

Wednesday Workshop “Breached! Preventing and Responding to Cyber Attacks,” Hayley Curry. (MCLE 1.00)*

Law in the Schools & Community Committee. Virtual only

Pro Bono Activities Committee. Virtual only 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

THURSDAY, JUNE 22

Noon Criminal Law Section “What You Need to Know About ALRs,” Michelle Andelman. (MCLE 1.00)*

Environmental Law Section

Topic Not Yet Available

Minority Participation Committee. Virtual only

6:00 p.m. DAYL Wine Tasting At Sammons Center for the Arts. Benefiting DVAP. More information at dayl.com

FRIDAY, JUNE 23

No DBA events scheduled

MONDAY, JUNE 26

Noon Securities Section

Topic Not Yet Available

TUESDAY, JUNE 27

Noon Equality Committee Book Club CLE

“Denial: Holocaust History on Trial by Deborah Lipstadt,” Sara-Abosch Jacobson, Prof. David Patterson, Pastor Dumisani Washington, moderators Gary Lawson and Charles Pulman. (DEI Ethics 1.00)* Virtual only

WEDNESDAY, JUNE 28

Noon Entertainment, Art & Sports Law Section “Going Viral: When Your Social Media Post Faces the Law,” Prof. Anthony Iliakostas. (MCLE 1.00)* Virtual only

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

THURSDAY, JUNE 29

7:00 p.m. Dallas LGBT Bar Association Let’s Get Proud event. Information

President’s Column The DBA Goes to Portugal

BY CHERYL CAMIN MURRAY

Summer is officially here. It is time for kids to be out of school, air conditioning to be on full blast, summer associates to be clerking at firms, and family and friends to take summer vacations. Speaking of vacations, I wrote this article from beautiful Portugal. The Dallas Bar Association sponsored a CLE trip to Portugal through CLE Abroad (www.cle-abroad.com).

If you like amazing excursions, incredible food, fabulous wine, wonderful history, and charismatic company—then this trip would be for you. My husband Blake, who is not a lawyer, joined me on this adventure. We had an amazing group of 34 other people traveling with us. Our travel companions included a U.S. Congressman, a former Dallas City Councilmember, a former Dallas County Judge, two former Chief Legal Officers, and attorneys from an array of specialties, backgrounds, and experience, as well as an equal number of non-lawyer significant others and family members.

We flew into Lisbon and then headed out for a walking tour of the city, followed up by a wine tasting and family style dinner of endless breads and seafood. The goal was to keep everyone moving, entertained, and awake until the local bedtime to put our sleep schedules on track after the first day overseas.

The following days we had experts present to us on a wide array of interesting and insightful topics such as the U.S.Portugal Trade Relations; billion-euro Portuguese soccer (locally known as futebol) industry; Portuguese women, leadership and law; Portugal’s role in the EU; the Portuguese legal system and Campus of Justice; domestic violence in Portugal and the role of victims in the Criminal Justice System; real estate opportunities in Portugal for foreign investors; whistleblowing and EU employment relations in Portugal; American expats in Portugal; and wine laws and regulations.

These programs took place in a variety of historical and entertaining venues. In addition, we visited amazing landmarks, monuments, museums, palaces, parks, castles, a monastery, and the University of Coimbra. We even stopped by our tour organizer’s house to see how the locals live.

Sprinkled throughout the trip were surprises, such as a speed-

boat tour, tuk-tuk rides, and a delicious meal served at a secret restaurant known as That Place That Does Not Exist. This voyage also included an abundance of premier cuisine, amazing wine and port tastings, riverfront views, and a live performance of Portuguese Fado music.

By the end of the trip the guests were acting like close friends who had known each other for decades. There was a consensus for this group to meet up again at a reunion and in 2024 at the next international venue to be selected by the 2023 DBA President-elect Bill Mateja

CLE Abroad was the company that organized this adventure from start to finish. Its founder is Dani Perez, an attorney by training, who is now a master of international travel. His organization arranges excursions all over the world that are truly enjoyable for not only attorneys, but also anyone who likes to learn about other cultures while having an incredible time. Dani was assisted by his wonderful team members Brigitte Schlemmer and Simona Segundo. Our guide, who was a wealth of Portuguese knowledge, was Silvia Fialho. I highly recommend CLE Abroad if you are looking for an extremely well-organized, high-quality, and hassle-free international travel experience that creates memories of a lifetime.

Before concluding, I should mention that at the Arts District Mansion on June 6 from 1:00 p.m. to 5:00 p.m. (with a happy hour reception thereafter), the DBA is hosting a program entitled Secret Strategies to Lessen Stress and Improve Success. Our presenter is Tara Antonipillai, the Founder of Cultivate. In this program, the audience will learn and apply the science of resilience, in addition to working on improving their well-being, job satisfaction, and career performance.

In addition, this year’s Bar None production is entitled “Where the Law Dads Sing.” It will take place June 14-17 from 7:30 p.m. to 9:00 p.m. at Greer Garson Theatre on SMU’s Campus. These lawyer producers, directors, writers, actors, dancers, and singers are working extremely hard to put on a very entertaining show that will bring a big smile to your face.

Please mark your calendars for these events. I look forward to hopefully seeing you soon.

Cheryl

Headnotes

The

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: Cheryl Camin Murray

President-Elect: Bill Mateja

First Vice President: Vicki D. Blanton

Second Vice President: Jonathan Childers

Secretary-Treasurer: Kandace Walter Immediate Past President: Krisi Kastl

Directors: Katie Anderson, Alison Ashmore (President, Dallas Women Lawyers Association), Lauren Black, Callie Butcher (President, Dallas LGBT Bar Association), Rob Cañas, Stephanie G. Culpepper (Vice Chair), Rocio Garcia Espinoza, Hilda Galvan, Carla Verena Green (President, Dallas Hispanic Bar Association), Amber Hamilton Gregg (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Nicole Muñoz Huschka (President, Dallas Association of Young Lawyers), Andy Jones, Jennifer King, Derek Mergele-Rust, Hon. Audrey Moorehead, Timothy Newman, Hon. Erin Nowell, Sarah Rogers (Chair), Janet Landry Smith (President, Dallas Asian American Bar Association), and Drew Spaniol

Advisory Directors: Stephanie Almeter (PresidentElect, Dallas Women Lawyers Association), Kristine Cruz (President-Elect, Dallas Asian American Bar Association), Trerod Hall (President-Elect, J.L. Turner Legal Association), Haleigh Jones (President-Elect, Dallas Association of Young Lawyers), Edward Loya Jr. (President-Elect, Dallas Hispanic Bar Association), and Elissa Wev (President-Elect, Dallas LGBT Bar Association)

Delegates, American Bar Association: Rhonda Hunter, Mark Sales

Directors, State Bar of Texas: Chad Baruch, Mary Scott, Paul Stafford, Robert Tobey, Aaron Tobin

HEADNOTES

Executive Director/Executive Editor: Alicia Hernandez

Communications/Media Director & Headnotes Editor: Jessica D. Smith

In the News: Judi Smalling

Display Advertising: Annette Planey, Jessica Smith

PUBLICATIONS COMMITTEE

Co-Chairs: Elisaveta (Leiza) Dolghih and Ted Huffman

Co-Vice-Chairs: Gracen Daniel and John Koetter

DBA & DBF STAFF

Executive Director: Alicia Hernandez

Accounting Assistant: Jessie Smith

Communications/Media Director: Jessica D. Smith

Controller: Sherri Evans

Events Director: Rhonda Thornton

Executive Assistant: Elizabeth Hayden

Executive Director, DBF: Elizabeth Philipp

LRS Director: Biridiana Avina

LRS Interviewer: Giovanna Alvarado

LRS Program Assistant: Marcela Mejia

Legal Education Coordinator: Viridiana Rodriguez

Director of Marketing: Mary Ellen Johnson

Membership Director: Shawna Bush

Publications Coordinator: Judi Smalling

Receptionist/CLE Coordinator: Araceli Rodriguez

Staff Assistant: Yedenia Hinojos

Texas High School Mock Trial & Law Related

Education Director: Melissa Garcia

DALLAS VOLUNTEER ATTORNEY PROGRAM

Director: Michelle Alden

Managing Attorney: Holly Griffin

Mentor Attorneys: Kristen Salas, Katherine Saldana

Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Carolyn Johnson, Suzanne Matthews, Andrew Musquiz, Alicia Perkins, Lorena Santillan

Program Assistant: Laci Payton

Community Engagement Coordinator: Marísela Martin

Secretary: Charnese Garrett

Copyright Dallas Bar Association 2023. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.

Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 800 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion.

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.

DBA WE LEAD: 5 Years of Empowering & Propelling Women Lawyers

BY MICHAEL K. HURST

Five years ago, the DBA committed to ameliorate the evident reality of gender disparity prevalent in the legal profession, particularly regarding the scarcity of opportunities, visibility, pay, and acknowledgment afforded to female attorneys compared to their male counterparts. The DBA’s initiative, WE LEAD, has proven to be a resounding triumph for over 140 distinguished participants of this pioneering program. Nevertheless, to again echo Helen Reddy’s poignant lyrics, we still have “a long long way to go, until I make my brother understand.”

A recent report from McKinsey has revealed a conspicuous dearth of women in leadership positions, indicating that despite possessing the same level of ambition as their male counterparts, they encounter obstacles that portend a more arduous climb to the upper echelons of their professions.

During my tenure as President of the DBA in 2018, I wrote about the inspiration for DBA WE LEAD and its importance to me and the profession. The unwavering advocacy for women’s rights that has been an integral part of my persona, and that of my siblings, was instilled in us from a young age by our mother, Dr. Adele Hurst, whose lifelong devotion to gender equality continues to inspire us.

My career has been unquestionably elevated and enriched by the female partners with whom I have worked in the trenches for the last 25 years, most notably: Mary Goodrich Nix, Hon. Tonya Parker, Dena DeNooyer Stroh, Shonn Brown, and Sara Chelette. By actively promoting and supporting women lawyers, I have become the attorney and leader I am today, enriched by a genderdiverse perspective, influence, and pre-

sentation that have been pivotal to my own successes.

The Creation of DBA WE LEAD

The idea behind DBA WE LEAD was the culmination of years of meticulous planning, innovation, evolution, and dedication. Collaborating closely with Shonn Brown and drawing from the visionary guidance and inspiration of leaders such as Ashlee Kleinert, and Ros Dawson, of the Texas Women’s Foundation, we arrived at a profound realization: high-performing women attorneys with 8 to 15 years of practice are all too often constrained and undermined by the entrenched biases and conventions of a profession historically dominated by men.

Our unwavering objective has been to

provide a dynamic platform of empowerment and education, carefully crafted to uplift and enhance 25-30 exceptionally qualified women each year. Our commitment to this cause stems from our recognition of the distinct challenges that women attorneys continue to face, and our steadfast belief that they deserve every opportunity to evolve into the formidable leaders they are destined to be.

Ophelia Camina, who originally oversaw the curriculum, has magnificently chaired the program thereafter, initially with Lisa Tomiko Blackburn. Many of the legal community’s great lawyers and leaders have served as mentors, planners, and speakers including: Dena DeNooyer Stroh, Hon. Harriet Miers, Hon. LizLang Miers, Hon. Tonya Parker, Hon. Karen Gren Scholer, Hon. Audrey Moorehead, Hilda Galvan, Laura Benitez Geisler, Lauren Leahy, Dan Kelly, Krisi Kastl, Sandra Phillips Rogers, Jane A. Rose, Julia Simon, Mary Scott, Amanda Cottrell, and many more.

Harriet Miers noted in 2018 that “DBA WE LEAD is of great importance in showing the organized Bar understands and is doing something very meaningful to address the challenges facing especially women lawyers in maximizing their ability to reach new heights of success in legal careers, including in achieving promotions in firms and corporate leadership positions and improving business development skills. This innovative program not only will help women lawyers by increasing their opportunities for leadership and financial success in the profession, but also

will help ensure our profession models the balance and fairness it should.”

The Results

The transformative impact of DBA WE LEAD cannot be overstated, having empowered over 140 outstanding women to seize their destiny and blaze new trails in the profession. Through our program, many of these remarkable women were able to gain the support and inspiration they needed to ascend to the highest echelons of the legal world. They have gone on to become partners, judges, and in-house counsel. Others have formed their own firms, transitioned from non-equity to equity partner, or made strategic lateral moves to firms with more auspicious platforms. The radiant pride and reverence that these remarkable women exhibit as graduates of DBA WE LEAD is unmistakable.

As the current class of 25 remarkable and accomplished women attorneys nears the conclusion of their DBA WE LEAD journey, they will emerge in December, emboldened with new tools, invaluable connections, and a vastly improved trajectory toward achieving their professional aspirations.

“Participating in DBA WE LEAD was a game changer for me, both professionally and personally. Through the curriculum and hands-on mentorship, I found the confidence to seek out career advancement opportunities and to develop business in an authentic way,” said Jennifer Ryback, Shareholder, McGuire, Craddock & Strother, P.C. and WE LEAD 2018 Alumni.

As we celebrate the successes of DBA WE LEAD, I implore other legal associations to consider implementing similar initiatives to promote gender diversity and equality in the profession. As legal professionals, it is not only our duty to improve opportunities for women attorneys but to also lead the charge against gender inequality in the broader community. Let us continue to harness the power of gender diversity to enrich our firms, clients, and communities alike. Furthermore, I urge male attorneys to join us in this fight as allies and advocates for women lawyers, offering mentorship, making client introductions, and providing meaningful opportunities for advancement. Together, we can create a more equitable and just future for all.

To find out more about DBA WE LEAD, contact Judi Smalling at jsmalling@dallasbar.org. HN

Michael K. Hurst, of Lynn Pinker Hurst & Schwegmann, was DBA President in 2018 and can be reached at mhurst@lynnllp.com.

Focus Construction/Real Property Law

Contractors & Adjacent Property: Spreading Neighborly Love

BY TATIANNA BRANNEN

Contractors and developers often get into disputes with neighboring landowners. Due to the complicated relationship between these parties, unique procedural issues often arise that require special consideration.

One reoccurring scenario in which disputes between neighbors may arise is when one landowner begins construction on a project that sits next to already developed land. Such construction may impact the neighboring landowner and give rise to claims for nuisance, trespass, negligence, breach of contract, fraud, breach of warranty, or property damage. If a neighboring landowner decides to file suit, it may decide to join the contractor performing the construction along with the landowner’s neighbor. One common basis for a claim against a contractor in this scenario is that a neighboring landowner is owed duties under the construction contract as a third-party beneficiary.

However, procedural issues may arise

when the construction contract includes an arbitration provision. Such a provision raises the question: Can a neighboring landownes be compelled to arbitrate its claims even though it is a nonsignatorie to the construction contract at issue? Several recent opinions from the Supreme Court of Texas suggest this result is a possibility.

One way a neighboring landowner may be compelled to arbitrate its claims is under the doctrine of direct-benefits estoppel. This doctrine applies in many types of disputes, including those involving the construction and real estate industries. The doctrine of direct-benefits estoppel applies to breach of contract claims in which a party seeks to assert a claim as a third-party beneficiary to a contract it did not sign. It prohibits a party from asserting that the lack of its signature on a written contract precludes enforcement of the contract’s arbitration clause when the party itself maintains that other provisions of the same contract should be exploited to its benefit. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732 (Tex. 2005).

Spanish for Lawyers

2023 Fall Session: August 15 - October 18

Held online via Google Meet/Video conference. Learn how to read, write, and speak Spanish at an adult continuing education level, wit h emphasi s o n lega l terminolog y a t the intermediat e an d advance d levels. Register online at www.dallasbar.org/spanishforlawyers

The Supreme Court of Texas recently clarified the scope of direct-benefits estoppel and the doctrine’s application in construction defect cases involving nonsignatories to a construction contract.

In two separate cases, the Supreme Court of Texas recently considered whether nonsignatory parties asserting a breach-ofcontract claim must arbitrate along with the signatory parties. The first case involved homeowners who sued their homebuilder for construction defects and fraud based on a construction contract containing a mandatory arbitration provision. The homeowners also asserted claims on behalf of their children. The children did not sign the construction contract at issue. The Supreme Court of Texas held that litigants who sue based on a contract subject themselves to its terms, including any arbitration clause within that contract. Taylor Morrison of Tex., Inc. v. Skufca, 660 S.W.3d 525 (Tex. 2023). The court further explained that if any plaintiff’s claims are based on a contract, then the plaintiff must arbitrate all claims that fall under the scope of the contract’s arbitration clause.

The court further held that a suit based on factually intertwined constructiondefect claims may be compelled to arbitration as the result of direct-benefits estoppel. Additionally, a court analyzing arbitrability must look at the causes of action asserted in the petition and whether they implicate the contract at issue. In Skufca, the Supreme

Court held that because the claims had to be determined by reference to the contract at issue, the claims were subject to directbenefits estoppel and therefore subject to the contract’s terms, including the arbitration clause.

Lastly, the Court clarified that nonsignatories may not avoid arbitration by amending their petition to allege only tort or other noncontractual claims. Direct-benefits estoppel also may apply when a nonsignatory seeks direct benefits from the contract outside of litigation. Because the nonsignatories lived in the home at issue and sued for factually intertwined construction-defect claims, they were required to arbitrate all their claims.

In a similar case, the Supreme Court of Texas applied direct-benefits estoppel to hold that nonsignatory family members living in a home that was the subject of a constructiondefect suit also were required to arbitrate their claims. Taylor Morrison of Tex., Inc. v. Ha, 660 S.W.3d 529 (Tex. 2023).

These two recent cases have expanded the scope of direct-benefits estoppel and have implications that reach wider than construction-defect cases. Any party involved in a suit involving third-party beneficiaries should carefully analyze its claims and procedural issues before filing suit to avoid being subject to a forum against its choosing. HN

Tatianna Brannen is an Attorney at Griffith Davison, P.C. and can be reached at tbrannen@griffithdavison.com.

BACKPACK DRIVE

BACKPACK DRIVE

The DBA Community Involvement Committee is partnering with Community Partners of Dallas to provide backpacks filled with school supplies to abused and neglected children.

Bring donations to the Arts District Mansion June 19- 30 or scan the QR code to purchase from the Amazon wishlist.

Questions? Contact Lauren Green at lagreen@bradley.com

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Real Estate

Property Law

When Disaster Strikes: What HOAs Need to Know About Expenses

BY KATE KILANOWSKI

Because of our aging communities and extreme weather events, residential Property Owners Associations across Texas are trying to figure out how to pay for the costly, unbudgeted maintenance and repairs of common areas, common elements, and other items that are generally an Association’s responsibilities. Such items may include screening walls, fences, siding, roofs, carports, garages, detention ponds, balconies, streets, lighting, trails, pools, and landscaping. This article will provide a brief overview of some of the legal issues and prerequisites that HOAs should consider before levying special assessments, increasing regular assessments, levying individual assessments, or approving loans.

First, consider whether your client is a Subdivision Association or a Condominium Association. A Condominium Association is an HOA that administers condominium development, while a Subdivision Association is an HOA that administers a subdivision development. Each of these HOAs is subject to various provisions of the Texas Property Code. If your client is a Condominium Association, know when its Declaration was recorded and whether Chapter 81 of the Texas Property Code applies.

As the HOA’s counsel, you should not assume anything. Just because the HOA has always called themselves a “condo” does not mean they are a condominium development. I have seen a developer of a subdivision development prepare and record bylaws invoking the Texas Uniform Condominium Act. Be wary of the client who insists it is neither a Subdivision Association nor a Condominium Association but, instead, a “Townhome Association.”

Next, determine which expenses are the HOA’s responsibility (often called a “common expense”) or the owner’s responsibility. Factors to consider are whether the money the HOA needs is for maintenance, repair, an insurable loss, an insurance deductible, or a capital improvement.

Maintenance and repair responsibilities can be different from insurance responsibilities, especially for condominiums. To determine the responsibility for each category of expense, an HOA’s counsel will need to analyze all of the HOA’s dedicatory instruments and, for a condominium

development, it should look to Chapter 82 of the Texas Property Code (and Chapter 81, if applicable).

Once you confirm that money needed is for an HOA common expense, you should determine, as appropriate, the HOA’s authority to increase assessments, levy assessments, obtain loans, or collateralize the Association’s rights to collect (or assign its rights to collect) assessments. With respect to Condominium Associations, their own dedicatory instruments may delineate such authority, but the Texas Property Code also grants certain powers and authorities to Condominium Associations. For example, Section 82.102(f) of the Texas Property Code specifically grants a Condominium Association, through its Board of Directors, the power by resolution to: (1) borrow money; and (2) assign as collateral for a loan authorized by the resolution: (A) the Association’s right to future income, including the right to receive assessments; and (B) the Association’s lien rights. Section 82.111(j) of the Texas Property Code provides that the cost of repair or replacement in excess of the insurance proceeds is a common expense, and the Board may levy an assessment to pay the expense in accordance with each owner’s common expense liability. Conversely, for Subdivision Associations, there is no statutory authority to levy special assessments, borrow money, or pledge assessments as collateral. If the Subdivision Association’s dedicatory instruments authorize its Board of Directors to levy a special assessment, increase assessments, or borrow money, Section 209.0051 of the Texas Property Code provides that the Board may not, unless done in an open meeting for which prior notice was given to owners, consider or vote on matters that include increases in assessments, levying of special assessments, or lending or borrowing money. If an HOA lacks the authority it needs to obtain the money it needs, consider amending the appropriate dedicatory instruments to obtain that authority.

In short, reading and understanding an HOA’s governing documents, as well as the pertinent statutes, are important steps toward appropriately obtaining the funds an HOA needs to do the things an HOA is supposed to do.

Kate Kilanowski is a Partner at Cagle Pugh Ltd., LLP. She can be reached at kate.kilanowski@caglepugh.com.

Dallas LGBT Bar Association: Proudly Moving Forward!

BY JAMES DEETS

In January of 1992, Dallas attorneys Lee Taft and Ed Ishmael grabbed lunch. They discussed the topic of a gay and lesbian bar association and agreed that it was long overdue. At the time, a group of gay and lesbian Dallas attorneys was already meeting infrequently in private homes as members of the Stonewall Legal Society, a safe place for LGBTQ+ attorneys to congregate and socialize during a time when discrimination and prejudice against LGBTQ+ people were still prevalent, and the legal profession was no exception.

Although Stonewall was a good place for the LGBTQ+ Dallas legal community to connect and share resources, Lee and Ed envisioned more visibility within the DBA for LGBTQ+ attorneys, finally coming to the realization that the benefits of creating a supporting network for the community far outweighed the risks. They decided that the best way to do that would be to form a study group as part of the DBA, which would allow the group to meet at the DBA Headquarters and publicize its meetings in Headnotes. eHeaH The first meeting of the study group in 1992 packed the room at the Mansion with over 20 attorneys, and the Gay and Lesbian Study Group was born.

In the early years, the organization faced some challenges, including difficulties in attracting members who feared being outed. However, as the LGBTQ+ rights movement gained momentum, the association grew in size and influence.

The study group continued until Rob Wiley , who was very active in the group, voiced his belief that Dallas should have a full-fledged Gay & Lesbian Bar Association. Mr. Wiley

thereafter organized the Association in 1999 and served as its first president.

This more formal group publicized itself by establishing a website. However, concerns of professional and personal persecution of its members caused the Dallas Gay & Lesbian Bar Association to abstain from formally incorporating as a business organization at that time.

After its founding, the organization became active in the legal communities of Dallas and beyond. The group hosted the Lavender Law Conference in 2001, an annual conference sponsored by the National LGBTQ+ Bar Association, and it was a great success!

As early as 2006, the organization began operating under the name Dallas LGBT Bar Association, and in the 16 years since it has sponsored 112 CLE presentations for its members, held regular meetings at the Arts District Mansion, and hosted regular events for

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its members and allies.

The Association has continued to become more and more active in the community. In December 2022, the organization held its inaugural “Visibility Ball,” a gala aimed at showcasing the programs and progress of the Dallas LGBTQ+ legal community. The second annual Visibility Ball is scheduled for November 18, 2023.

Other events slated for 2023 include the annual “Let’s Get Proud” pride party, scheduled for June 29. During Pride Month, the group will also participate in Dallas Pride on June 3; Dallas Wings Pride Night on June 9; Dallas Southern Pride on June 17; and Dallas Pride (#2) and Dallas Latino Pride in September. On August 23, the Association will host a Law Student Panel and Welcome Party for students at our local law schools. The Association will also launch a brandnew Legal Clinic later this year geared

toward helping LGBTQ+ community members to access much-needed legal services

The mission of the Association is to promote awareness in its community of issues pertinent to the lives of LGBTQ+ citizens, lawyers, legal professionals, and law students; celebrate their diversity and culture; advocate for inclusion and equality of all persons regardless of sexual orientation or gender identity; assist in research and further legal scholarship on concerns specific to the community; educate fellow lawyers on how to be inclusive of LGBTQ+ individuals in the community, work place, and legal academy; provide a safe space for members and allies to meet and form a sense of community; and show appreciation to allies of the community.

The Dallas LGBT Bar Association is currently led by President Callie Butcher ; President-Elect Elissa Wev ; Treasurer Sean Buckley ; Secretary Thomas McMillan ; Board Members Josh Dossey , Rachael Gearing , Loz Rocha , and Monica Uribe ; Student Directors Evonne Jefferson and Matthew Gamboa-Lutz , and Immediate Past President Nadia Haghighatian

The Dallas LGBT Bar Association currently has around 220 members. It continues to advocate for LGBTQ+ rights and promote diversity and inclusion in the legal profession and beyond. Membership is open to all attorneys, judges, legal professionals, and law students in Dallas County and surrounding counties, whether LGBTQ+ or an ally.

For more information, or to become involved in the Dallas LGBT Bar Association, visit www.dlgbtba.org. HN

James Deets is a Senior Director at Alvarez & Marsal Taxand, LLC and is a past Chair of the Publications Committee. He can be reached at jdeets@alvarezandmarsal.com.

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Elissa Wev

A Move into a Mansion

BY JESSICA D. SMITH

As one movie famously quoted: “If you build it, they will come.” This proved true with events that occurred over the next few years for the Dallas Bar Association (DBA).

Perhaps the biggest thing to happen to the DBA since its incorporation, happened in 1979. That was the year that the restoration of the Mansion was completed and the now 3,500+ member Association moved into its new headquarters, which housed the Dallas Bar Association and Dallas Bar Foundation (DBF) offices, and also the Dallas County Law Library. No other Bar in the country had a headquarters that could compare.

Not only did the move help increase membership numbers, but it also brought members of the public, students, and local leaders into the building as well.

The DBA had the chance to spotlight its new home soon after the move when it hosted the American Bar Association Annual Meeting, and when the Magna Carta came through town as part of a joint venture with the DBA, the Thanks-Giving Square Foundation, and the Dallas Episcopal Diocese. The venture was successful in bringing the historical document to

Dallas (one of the few stops in Texas), but it was also put on display at the new DBA Headquarters. In what could be considered another first, or at least an extremely rare moment, the priceless document was photographed being held by DBA President Bob Davis , John Estes , and other DBA members who were instrumental in bringing the Magna Carta to the city—this was very uncommon at the time. In fact, the

Looking Back on the DBA

a wonderful cross-section of not only our community but from all of North and East Texas. Everybody came, from the Blue Birds and the Cub Scouts to the august Dames and Barons of Magna Carta, Sunday school groups, families, students, even 70 members of a high school marching band from Grand Rapids, Iowa.”

To say the endeavor was a success would be an understatement.

Magna Carta group only allowed this picture to happen as a “mark of gratitude and respect to the Dallas Bar.”

The presentation of the Magna Carta was meant to be a public, educational event. And it had an even greater response than Bar leaders anticipated. According to the May 1980 Headnotes President’s Column by Mr. Davis, “Close to 3,000 people came to see it in those 2 days alone. The crowd was

Another DBA first happened in the late 1970s, which brought another new group of people to the DBA Headquarters—Dallas ISD (DISD) students. The DBA started a program called Law in a Changing Society, which was aimed at reaching students in DISD classrooms. Under the umbrella of that program, a mock trial was held. The response to the mock trial was so well received that the DBA knew it needed to look further into this program to see how it could be cultivated for other high school students. You will find out more in the July issue of Headnotes about how the mock trial program grew and became what it is today.

Undoubtedly, as the DBA continued to grow, it not only built on the foundation of its building, but also upon its membership, its programs, and its outreach. And, the DBA continues to do so today. HN

The Texas High School Mock Trial program, the first in the country, is created, and Dallas schools participate.

Restoration of the Belo Mansion is complete, and the 3,500+ member Association moves into the home on Ross Avenue. The Belo Mansion is now the new headquarters of the DBA, Dallas Bar Foundation, and Dallas County Law Library.

The Magna Carta is brought to Dallas and put on display at the DBA

The timeline continues in each issue of Headnotes this year. Look for part seven in the July issue.

Property Law

Beware: The Discovery Rule Will Not Always Save You

BY MARTIN CAMP

The Texas Supreme Court recently clarified the limits of the “discovery rule” that governs a party’s deadline for suing fiduciaries, such as real estate brokers. In Marcus Millichap Real Estate Investment Services of Nevada Inc. v. Triex Texas Holding LLC , No. 21-0913, decided January 13, 2003, the plaintiff (Triex) purchased a gas station and leased it back to the current operator (Taylor). Both the Seller, which was owned by Taylor, and Triex were represented in the deal by the Appellant (Broker). The ostensible reason for using only one broker was that the “agent told Triex that dual representation by Marcus & Millichap would be beneficial because it would allow for

greater disclosure of information about the property before the transaction.”

On December 1, 2012, Taylor defaulted on the lease. In February 2016, Triex brought suit for breach of contract, fraud and related torts against the selling parties and the tenant, but did not sue the Broker. A year later, during depositions, Triex began to suspect that the Broker had made misrepresentations by omitting key information about the sale and overvaluing the property to increase its commission. Triex amended its petition to add claims against the Broker. This was more than four years after the lease had been breached and eight years since the deal had closed. Triex claimed breach of fiduciary duty, fraud by nondisclosure, and conspiracy.

The Broker asserted that the claims

were time barred and moved for summary judgment. That motion was granted and the claims against the Broker were severed. Triex appealed and the Court of Appeals remanded, on just the breach of fiduciary duty claim, to allow Triex to amend its pleadings to assert that the discovery rule would allow a tolling of the statute of limitations on the claims. Triex amended the complaint, but the trial court again dismissed the action. On the second appeal, the appellate court once again remanded on the basis that there was a fact question about whether the discovery rule was applicable such that Triex should have the right to plead facts to support that claim.

The Supreme Court reversed. First, the Court reiterated that there is a 4-year statute of limitations for breach of fiduciary duty claims, even if the parties did not discover it or the damages did not occur within the 4-year period. Then the Court explained that the discovery rule is a narrow exception to the legal injury rule that “defers accrual of a cause of action until the plaintiff knew or exercising reasonable diligence, should have known the facts giving rise to the cause of action.” The issue is whether the injury, by its nature, is unlikely to be discovered in the period despite due diligence. The Court also acknowledged that, in the fiduciary context, an injury might be inherently undiscoverable because the parties who are owed the fiduciary duties are unable or do not know they should inquire.

Nevertheless, the Supreme Court refused to apply the discovery rule in Triex and reversed. The court’s rationale

was that the type of injury alleged was one that, with reasonable due diligence, Triex could have discovered. The Court rejected Triex’s fraudulent concealment argument, stating that even if fraud had occurred, that does not toll the statute forever. Once the default occurred under the lease, Triex should have been put on notice that something was amiss and it could have inquired.

What are the take-aways from this opinion? First, it is never a good idea to have a fiduciary, like a broker, or lawyer for that matter, simultaneously represent two adverse parties. Fiduciary duties run to each party, and to represent parties with directly conflicting positions is fraught with danger, as the Triex case shows. Second, there is no substitute for competent due diligence when buying property. Despite what the Broker may have said, Triex might have discovered the true financial situation of the company if it had not relied on the Broker’s representations and done more independent due diligence. And third, the adage of suing everyone, including the kitchen sink, is often wise advice, at least as long as you have a good faith claim. The Supreme Court faulted Triex for not doing due diligence when the default occurred and the decision to file suit was made. If Triex had made the proper inquiries and included the Broker in the original action, it might have survived summary judgment and received the opportunity to pursue claims against the Broker. HN

Martin Camp is the Assistant Dean for Graduate and International Programs and Professor of Practice at SMU Dedman School of Law and can be reached at mlcamp@smu.edu.

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Risks Associated with Agents & Brokers Serving on HOA Boards

BY CRAIG DOWIS AND KERRI PANCHUK

Property and homeowner associations (HOAs) often recruit real estate agents and brokers to serve on their Boards to ensure these groups are spearheaded by professionals with a solid understanding of real estate matters. However, stacking the decks of property associations and HOA boards with real estate agents and brokers can create significant litigation risk for these associations and the real estate agents serving on them. This is particularly true when real estate agents serve in the dual capacity as a condo (or HOA) association board member and a listing agent for properties located in the same communities.

An agent serving in a dual capac-

ity runs the risk of a property buyer later claiming that the agent had actual knowledge of undisclosed property conditions as a result of his or her role as a board member yet failed to disclose those conditions to the buyer. For example, if there was an old plumbing issue onsite that the property association had to partially repair, or if there were other repairs paid for or approved by the association, any real estate agent who is on the property association’s board may be confronted with claims that he or she possessed “insider” knowledge of a property’s condition and was required to disclose the condition or issue to a prospective buyer.

Generally, real estate agents and brokers in Texas are protected from liabil-

DBA/DAYL Moms in Law

Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is a no pressure, no commitment, informal, fun, support group for lawyer moms.

Join Moms in Law for lunch

Thursday, June 1, noon, at Ziziki’s (11661 Preston Rd., Ste. 309)

To RSVP, email Rebecca at rfitzgib@gmail.com.

Email cpleatherberry@gmail.com to join the Moms in Law email listserv.

MARTIN MERRITT

Health Law and Healthcare Litigation

“I highly recommend Martin As Co-Counsel in Healthcare Litigation Cases.”

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• Healthcare Trials/Hearings

Analysis of Illegal “kickback” contracts

• Enforceability of 15.50 Non-Competes

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• FBI, OIG, CMS Investigations

Medical License Revocations

Martin Merritt

Chair, DBA Health Law (2021)

President, Texas Health Lawyers Association

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Dir. (214) 952.1279

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ity if a seller fails to disclose a property condition or information about a prior repair within the confines of the Seller’s Disclosure Notice. This standard protects agents as long as the listing agent has no actual knowledge of the undisclosed condition. This rule is promulgated in Section 1101.805 (e) of the Texas Occupations Code, which states:

“A license holder is not liable for a misrepresentation or concealment of a material fact made by a party to a real estate transaction unless the license holder:

(1) knew of the falsity of the misrepresentation or concealment; and

(2) failed to disclose the license holder’s knowledge of the falsity of the misrepresentation or concealment.”

While nothing prevents an agent from serving in a dual role, agents and brokers selling properties in communities in which they also serve on affiliated association boards should create boundaries between their respective board roles and their work as listing agents and brokers.

There are also steps an agent can take to mitigate risks of a future buyer complaining about property disclosures at the time of sale. For example, an agent in this type of transaction should always encourage the use of a buyer’s independent inspection prior to closing. Texas courts have found that “a buyer’s independent inspection precludes a showing of causation and reliance if the buyer continued to complete the purchase after the inspection revealed the same information the seller allegedly failed to disclose.” With

proper disclosures made and an independent inspection, it will be more difficult for a buyer to establish liability against an agent and the broker even if they did serve on a condo or property owners association during the time of sale.

Finally, association board members or officers who accept property listings within an association’s respective community may want to separate themselves from any association business in which they could gain actual knowledge of property repairs or conditions tied to the properties they are trying to sell. Those serving in this dual role also may want to consider disclosing their role as part of the association to the seller early on to remove any appearance of a conflict of interest.

And, because the seller is ultimately responsible for disclosing property conditions, a listing agent should at all times ensure the seller alone fills out the Seller’s Disclosure Notice to ensure the agent is not later questioned about what material ultimately ends up on the disclosure form.

Agents are not prohibited from serving as condo or property owner association representatives while selling properties in the same community, but a little extra diligence may be needed to ensure they enact measures to keep both professional roles separate and without any appearance of an actual or perceived conflict. HN

Craig Dowis is a Partner at Thompson, Coe, Cousins & Iron LLP, and Kerri Panchuk is a Senior Attorney at the firm. They can be reached at cdowis@thompsoncoe.com and kpanchuk@ thompsoncoe.com, respectively.

2023 DBA 100 CLUB MEMBERS – THANK YOU!

The Dallas Bar Association is proud to recognize our 2023 DBA 100 Club members. The following firms, government agencies, organizations/schools and corporate legal departments have 100% membership in the DBA.

The DBA 100 Club is a distinguished membership recognition category that reflects a commitment to the advancement of the legal profession and involvement in the community. The DBA 100 Club consists of firms with two or more attorneys as well as corporate legal departments, organizations, law schools and government agencies that have 100% membership in the DBA. Recognition is free and given to the 2023 DBA 100 Club members at DallasBar.org, in our Headnotes publication, and at our Annual Meeting in the fall.

Please note that the DBA 100 Club is FREE recognition and open for renewal annually. We do not automatically renew an organization’s membership due to changes in attorney rosters each year.

It is not too late! To become a 2023 DBA 100 Club member, submit your request via email and include a list of all lawyers in your Dallas area office to Shawna Bush, sbush@dallasbar.org. Your list will be verified with our member records, and if eligible, your firm will be added to the 2023 DBA 100 Club!

If we receive your qualifying list by June 7, your firm will be included on the July and August DBA 100 Club recognition lists in Headnotes

DBA 100 Club Members as of May 12, 2023

2 to 5 Attorneys

Adair, Morris & Osborn, P.C.

Adam L. Seidel, P.C.

Adkins Lawyers, PLLC

Akere & Akere P.C.

Albert & Stowe, PLLC

Alexander Dubose & Jefferson LLP

Avant Law Firm

Balekian Hayes, PLLC

Brousseau Naftis & Massingill, P.C.

Brusniak Turner Fine LLP

Buether Joe & Counselors, LLC

Crain Brogdon LLP

Davis Stephenson, PLLC

Deandra Grant Law

Deans Stepp Law, LLP

Diana Brooks Law PLLC

Duke Seth, PLLC

Epstein Family Law, P.C.

Escoto Law, PLLC

Fisher & Welch, P.C.

Fuller Mediations

FurgesonMalouf Law PLLC

Gauntt Koen Binney & Kidd, LLP

Goldfarb PLLC

Grau Law Group, PLLC

Guida, Slavich & Flores, P.C.

Hahn Law Firm, P.C.

Hargrave Family Law

Henry Patent Law Firm PLLC

Herrera & Herrera

Hitchcock Evert LLP

Johnston Tobey Baruch, P.C.

Kastl Law, P.C.

Kinser & Bates, L.L.P.

Law Office of Andrew & Mark Cohn

Law Offices of Frank J. Wright, PLLC

Law Offices of Lustig and Hyman, P. C.

Law Offices of Richard A. Gump, Jr., P.C.

Lemons & Hallbauer, LLC

Leu & Peirce, PLLC

Lira Bravo Law, PLLC

Lisa Newman Law, PLLC

Send

Lyons & Simmons, LLP

M|C Criminal Law

Maduforo & Osimiri, P.L.L.C.

McCraw Law Group

McDowell Hetherington LLP

Mincey-Carter, PC

Norris & Weber, PLLC

Nowak & Stauch, PLLC

Pace & Pace, L.L.P.

Passman & Jones, P.C.

Prager & Miller, P.C.

Pyne & Prather, P.C.

Quaid Farish, LLC

Randall Greer PLLC

RegitzMauck PLLC

Rendall Sikes PLLC

Robinson & Hoskins, L.L.P.

Roquemore Skierski PLLC

Ross, Smith & Binford, PC

Sawicki Law

Schubert & Evans, P.C.

Scroggins Law Group, PLLC (Dallas)

Scroggins Law Group, PLLC (Frisco)

Shackelford, Bowen, McKinley & Norton, LLP (Fort Worth)

Sheils Winnubst, PC

Smith, Stern & Friedman, P.C.

Stewart Law Group PLLC

Stromberg Stock, PLLC

The Allen Law Group

The Alvarado & Ybarra Firm, PLLC

The Law Office of Ray R. Singh

The Nacol Law Firm, P.C.

Turley Law Firm

Vassallo & Salazar, P.C.

Verner Brumley Mueller Parker, P.C. (McKinney)

Woolley Wilson, LLP

6 or More Attorneys

Ackels & Ackels, L.L.P.

Angel Reyes - Reyes Browne Law

Bragalone Olejko Saad PC

Burke Bogdanowicz PLLC ByrdAdatto

Calabrese Budner LLP

Canterbury, PC

Carrington, Coleman, Sloman & Blumenthal, L.L.P.

Cavazos Hendricks Poirot, P.C.

Champion LLP

Cobb Martinez Woodward PLLC

Condon Tobin Sladek Thornton Nerenberg

Connatser Family Law

Cooper & Scully, P.C.

Cowles & Thompson, P.C. (Dallas)

Cowles & Thompson, P.C. (Plano)

David Allen Law Group

Deary Ray LLP

DeHay & Elliston, L.L.P.

Duffee + Eitzen LLP

Durham, Pittard & Spalding, LLP

Estes Thorne & Carr PLLC

Farrow-Gillespie Heath Wilmoth, LLP

Godwin Bowman PC

Griffith Barbee PLLC

Griffith Davison, P.C.

Hall, Render, Killian, Heath & Lyman, P.C.

Higier Allen & Lautin, P.C.

Holmes Firm PC

Kane Russell Coleman Logan, PC

Katie L. Lewis Family Law

Kershaw Anderson King, PLLC

Kilgore & Kilgore, PLLC

Klemchuk PLLC

Koning Rubarts LLP

Macdonald Devin Madden Kenefick Harris, P.C.

Matthews, Shiels, Knott, Eden, Davis & Beanland, LLP

Mayer LLP

McCathern, Shokouhi, Evans, Grinke (Dallas)

McCathern, Shokouhi, Evans, Grinke (Frisco)

McKool Smith P.C.

Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P.

Morgan, Lewis & Bockius LLP

Munsch Hardt Kopf & Harr, P.C.

Parsons McEntire McCleary PLLC

Peckar & Abramson, P.C.

Phillips Murrah PC

Platt Cheema Richmond PLLC

Richardson Koudelka, LLP

Riddle & Williams, P.C.

Rochelle McCullough LLP

Sargent Law, P.C.

Scheef & Stone, L.L.P. (Dallas)

Shackelford, Bowen, McKinley & Norton, LLP (Dallas)

Sheppard Mullin Richter & Hampton LLP

Staubus & Randall, L.L.P.

Steed Dunnill Reynolds Bailey Stephenson LLP

The Hartnett Law Firm

The Silvera Firm

Thiebaud Remington Thornton Bailey LLP

Tollefson Bradley Mitchell & Melendi, LLP

Touchstone Bernays

Verner Brumley Mueller Parker, P.C. (Dallas)

Winstead PC

Zelle LLP

Ziegler Gardner Bell, PLLC

Corporate Legal Departments

Borden Dairy Company

HomeVestors of America, Inc.

North Texas Tollway Authority

Rosewood Property Company

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Special Recognition

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Focus Construction/Real Property Law

Exceptions When the Relation-Back Doctrine Applies

BY KAREN ENSLEY

Of course, we all know the standard 1-, 2- and 4-year statutes of limitations and how to calculate those deadlines. However, there are several notable exceptions to those deadlines, two of which are addressed here.

The first and generally betterknown “relation-back” exception is found in TEX. CIV. PRAC. & REM. CODE § 16.069, which allows a defendant to assert what would otherwise be an untimely counterclaim or crossclaim provided it arises out of the same transaction or occurrence that is the basis of the plaintiff’s claim and is filed within 30 days of the date the defendant’s answer is due. The rationale for Section 16.069 is to prevent a plaintiff from waiting until the limitation period on an adversary’s claim expires, or is about to expire, before asserting their claim.

The test of whether the early pleading “relates back” is whether the claim in the amended pleading is based on and grows out of the previously alleged transaction or occurrence, or is wholly based on a new, distinct, or different transaction or occurrence. Unfortunately, the relation-back rule can be difficult to apply because the requisite analysis is both technical and fact-intensive.

One court found the responsive pleading was not time-barred in a suit asserting a wrongful cloud on title and seeking removal of a mechanic’s lien because the counterclaim of setoff for the value of the goods and services

that gave rise to the lien arose from the same transaction. In another case, a borrower’s counterclaim, which sought to void the warranty deed provided to a lender, was not a second, independent suit, but instead arose out of the same transaction or occurrence as the lender’s claim because each claim sought to clear title in one party’s name by voiding the other party’s interest.

A lesser-known application of the relation-back doctrine applies to amended or supplemental pleadings asserted after the 30-day deadline found in Section 16.069 has expired. Section 16.068 provides that a pleading that would, by itself, be otherwise time-barred will be considered timely, even if it asserts a new basis for recovery or defense, provided it is not wholly based on a new, distinct, or different transaction or occurrence. A defendant can rely on Section 16.068 to assert a claim or counterclaim that would otherwise be time-barred under 16.069, provided the claim “goes to the foundation” of the plaintiff’s claim or demand.

But Section 16.068 is broader than simply expanding the window of opportunity to assert a counterclaim or cross-claim. It applies to any claim that could be asserted in the litigation provided it ties back to a previous offensive or defensive pleading and does not rely on a new, distinct, or different transaction or occurrence.

Of course, this rule does not just apply to a single “transaction or occurrence,” but to a series of transactions or occurrences, including the lapse of time

of their connections and their logical relationships, to determine whether a common core of operative facts exists across the pleadings. Additionally, although notice is not expressly mentioned, courts also look to whether the opposing party has been put on notice of the claim or defense raised by the amended pleading.

For example, a plaintiff who obtained two separate loans originally sued the lender solely on the first loan. Plaintiff later asserted an amended petition adding claims arising from the second loan. The court found that the amended pleading—because it arose from a wholly separate transaction—as time-barred. Compare that finding to a breach of contract case that allowed an amended pleading asserting DTPA claims almost 10 years after the original petition was filed because the basis of the DTPA claim that arose from the defendant’s demand letter made the basis of the original pleading.

However, Section 16.069 applies to more than claims—it applies to parties as well. For example, the relation-back doctrine did not apply to a mother who brought suit in minor’s name, later seeking to add her own direct claims after the 2-year statute of limitations. The Court ruled that the statute of limitations ran on her claims because the defendant could not be said to have anticipated the additional pleading when suit was initially filed.

Thus, a claim which at first blush may look to be time-barred may be proper under Section 16.068 if it can be tied to a previous pleading or affirmative defense provided it does not rely on a new, distinct, or different transaction or occurrence. Carefully pleading these later-asserted claims is essential to give them the best chance of surviving a statute of limitations attack. HN

Karen Ensley is Managing Partner at Ensley Benitez Law, PC. She can be reached at karen@eblawtexas.com.

Allied Bars Equality Committee

2023 DEI Book Club – Book 2 Virtual CLE

“Denial: Holocaust History On Trial” by Deborah Lipstadt

Tuesday, June 27, 2023 at Noon | MCLE: 1.00 DEI Ethics

Speakers:

Sara-Abosch Jacobson Ph.D.

Dallas Holocaust and Human Rights Museum

Prof. David Patterson, Ph.D.

Ackerman Center for Holocaust Studies UTD

Pastor Dumisani Washington Institute for Black Solidarity with Israel

Moderated by: Gary Lawson Lawson Attorneys PLLC

Charles Pulman

Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P.

Ethical Considerations of Dual Representations in Real Estate Column Ethics

BY ANASTASIA TRIANTAFILLIS

It is common for an attorney to represent more than one party in construction and real estate matters, especially since these cases involve several parties on both sides of Lady Justice’s scale. A seller or buyer in a real estate transaction and his or her agent, broker, or home inspector may have the same claims or defenses against the adverse parties, giving rise to a common litigation strategy. A contractor and its subcontractor, agent, employee, or board member may also strategically defend common interests. But litigation can evolve significantly until final resolution, and conflicts may arise to disturb such dual representation.

Derivative of Rules 1.05, 1.06, and 1.09 of the Texas Disciplinary Rules of Professional Conduct, dual representation is not allowed when the representation involves interests that are materially and directly adverse or appear to become adverse. Concerning conflicts with a former client, a lawyer who formerly represented a client in a matter shall not represent another person in a

matter adverse to the former client if the representation in reasonable probability will involve a violation of Rule 1.05.

By way of example of the application of the above are the cases that follow. The first case relates to the requisite showing of prejudice for a potential conflict, and the second shows the complexity of a potential conflict.

In In re Ace Real Prop. Investments , LP , the Beaumont Court of Appeals held that a party complaining of a conflict of interest for purposes of disqualification of counsel from representation of two potentially adverse parties must show prejudice. 09-17-00479-CV, 2018 WL 915192, (Tex. App.—Beaumont Feb. 15, 2018, no pet.). The Ace Real counsel entered an appearance for a joined party that was brought in the case by an adverse party. The conflicted counsel made an appearance on behalf of plaintiff’s broker from the subject real estate transaction.

Six days after an answer was filed, the conflicted counsel withdrew and stated he never intended to represent the broker but made the appearance solely to protect the property owner.

Although the Beaumont Court of Appeals did not decide whether counsel had violated Rule 1.06 by making an appearance for a potentially adverse party, the court observed that even if such violation had occurred, the claimant on the motion to disqualify had to demonstrate actual prejudice that would require disqualification of counsel, and not just allegations that such representation could lead to unfair trial.

A more complex scenario is when parties believed to be aligned at the outset of litigation are later discovered to be adverse. In the case of In re Hoar Construction, LLC , the Houston Court of Appeals held a trial court did not abuse its discretion when it granted disqualification of counsel because there was a reasonable probability of disclosing confidential information of a former client to an adverse party. 256 S.W.3d 790 (Tex. App.—Houston [14th Dist.] 2008, no pet.). In this multi-party case, a conflict arose when a former client was to become a party of interest in the subject case and assume the assigned rights of its previously adverse

Drone Law Basics and Upcoming Changes

CONTINUED FROM PAGE 1

to remotely broadcast identification information that will provide the FAA and law enforcement information about the drone and the location of its pilot.

Only community-based organizations and educational institutions may apply for a FRIA. A primary purpose for FRIAs is to provide a place where students attending an educational institution and other individuals can learn to

DVAP’s Finest

JON MCCURLEY

Jon McCurley is a sole practitioner.

1. How did you first get involved in pro bono?

I went to UNT Dallas College of Law, and they had a pro bono hour requirement for graduation. DVAP has a “Pro Bono Spring Break” that would allow me to get 40 pro bono hours in one week. I jumped at the opportunity and still work with DVAP years later.

2. Describe your most compelling pro bono case. During COVID, Dallas had several rent relief programs. My client had not applied for rent relief, which would allow a 60-day stay of the eviction proceeding. In addition, the landlord needed to provide a witness that could testify. The judge allowed a five-day reset for the landlord to provide a witness. There was a rent relief table in the lobby of the court, so my client could apply for rent relief, and the judge gave him a 60-day stay on his eviction to get the rental payments. Although simple, this case benefited a client who needed to be made aware of the help he could get.

3. Why do you do pro bono?

Saedra Pinkerton said I have to. But also, it is fun! And I have met the best people, other attorneys, and clients.

4. What impact has pro bono service had on your career?

I have a great network of people who volunteer. The relationships give me more resources when I take a case out of my wheelhouse.

5. What is the most unexpected benefit you have received from doing pro bono?

I don’t know if this is just one, but getting to help the community and help other attorneys when they are just getting into the pro bono game. Even mundane cases can be impactful to our clients. I have an affection for Driver’s License Restoration cases; they cannot catch you riding dirty if you are Not Riding Dirty.

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

To volunteer or make a donation, call 214/748-1234, x2243.

fly drones safely without having to be licensed drone pilots, although FRIAs will also be used to provide drone hobbyists with a place to fly without having to obtain a drone pilot’s license.

A very undeveloped but significant area of drone law deals with “counterdrone” operations, and attorneys dealing with drone issues will eventually encounter this issue. Drones present risks to privacy and security interests and, from a construction law perspective, drones present a significant risk to the protection of intellectual property, confidential information, and construction progress status.

Almost without exception, it is illegal for a civilian to shoot down a drone. Various facilities (e.g., prisons, military bases, and outdoor development of intellectual property processes) have adopted a variety of protections. Texas made national news when its

party. Counsel for the former client was representing the cross-claimants in the subject litigation, and the previous representation depended on the outcome of the subject case. Relying on Rule 1.05 and 1.09, the appellate court affirmed the trial court’s disqualification of counsel, finding that the previous and current representative cases were relevant, and any communication of confidential information by the former client created a threat of violating Rule 1.05 by disclosing such communication to adverse parties in the current lawsuit.

Thus, a conflict not present at the initiation of representation may later “reveal” itself as discovery and pleadings progress. Performing periodic conflict checks on matters as they continue to develop, and new discovery is obtained or new parties are added, can help to timely address any conflict issues and avoid potential disciplinary consequences.

Anastasia Triantafillis is an Associate at Walters, Balido & Crain, LLP and can be reached at anastasia.triantafillis@ wbclawfirm.com.

state anti-drone law designed to protect “privacy” rights was declared unconstitutional by the District Court for the Western District of Texas in a case arising out of the construction of the new Texas Rangers stadium in Arlington. See Nat’l Press Photographers Ass’n v. McGraw, 594 F. Supp. 3d 789 (W.D. Tex. 2022). Texas is expected to adopt changes to comply with the holding in that case.

Drone regulation is evolving and will continue to evolve as technology changes. Inevitably, attorneys that focus on construction law will be faced with drone and counter-drone issues. The FAA is the primary source of aviation law in the United States, and it is reasonably prompt at responding to inquiries regarding drone regulation. HN Frank L. Broyles, of the Law Office of Frank L Broyles, can be reached at frank.broyles@utexas.edu

Understanding and Evaluating Damages in Construction Cases

BY ALEX BELL AND TY VESSELS

Civil lawsuits in commercial construction cases are almost always about the money damages. Parties file the lawsuits as a last effort to get what was promised or to repair damaged or defective construction. Presenting, defending against, and evaluating damages is no small task. Expert testimony, with proper supporting references, is often requried to establish damages in a case. Assessing damages in a construction lawsuit requires a careful analysis of the facts of the case and the available legal theories of recovery.

Generally, three types of damages can be awarded in a construction lawsuit: direct damages, consequential damages, and liquidated damages. Direct damages flow directly from the defendant’s breach of contract or other wrongful conduct. Examples of direct damages in a construction lawsuit might include the cost of repairing or replacing defective work, the cost of remedying code violations, or the cost of completing unfinished work. Repair costs can seem straightforward but have many nuances. For example, a plaintiff can recover repair costs if the repair costs do not exceed the value of the property being repaired. Put differently, using the repair cost as a measure of damages is “unfair” when such costs are imprudent and unreasonable, considering the property’s probable change in market value if the repair is made. In such cases, the measure of damages becomes the difference between the fair market value of the property with and without the defect, rather than the cost to repair.

Consequential damages are damages that are not a direct result of the breach of contract but are a consequence of the

breach. Examples of consequential damages in a construction lawsuit might include lost profits or business opportunities, increased construction costs, or damage to a company’s reputation. There is usually a preagreed daily rate for such damages, so the dispute is over how many days of delay a party is responsible for or whose fault it was that the Project was delivered late.

Liquidated damages are fixed damages agreed upon in advance by parties to a contract, included as a provision specifying the payment amount if breached. Texas courts enforce such provisions if reasonable and not a penalty, meaning they must accurately estimate actual damages from a breach to be considered valid.

In evaluating these different categories of damages, you should consider the following:

Scope of Repair

Consider whether the estimated work is necessary for the repair. Do all the listed items need to be removed and replaced, or is there a less expensive way to achieve the same result?

Betterment

The plaintiff is not entitled to prop erty improvement beyond its original or intended condition. Consider whether the repair is an upgrade on what was promised in the original contract. In other words, does the repair plan or estimate put the building back in the like-new condition, or does it include upgrades in quality or quantity that put the damaged party in a better position than they originally con tracted for in the construction contract?

Pricing

Supporting documents must provide adequate information to evaluate the repair’s labor costs and item prices. Rough order of magnitude pricing is not specific enough for legal damages.

Delay, Disruption, Acceleration

Assess the impact of the delay or disruption on the Project, including any resulting increased costs or lost profits. Compare the productivity of a contractor or subcontractor during a period (often called a ‘measured mile’) when there were no delays or disruptions to the productivity while there were delays or disruptions in the work. The plaintiff must prove that the costs incurred resulted from the defendant’s breach or other wrongful conduct. Expert witnesses are necessary to evaluate delays, their impact on the Project as far as time and money, and to offer an opinion on who is responsible for the various delays.

Expert Opinion

A damages expert should be prepared to testify that each element of damage is “reasonable and necessary.” Typically, a qualified construction or design professional needs to testify on the amount of damages with one exception—owners may be allowed to testify about repair costs if they have received bids or estimates for their work. Experts can often pull market pricing from different construction databases or solicit work from construction subcontractors or professionals who could be hired to perform the remedial work.

Finally, it is crucial to check the relevant Project contracts, as many contracts now include provisions limiting damages exposure or eliminating specific categories of damages. Consequential damages are often waived by agreement of the parties. A general limitation of the contractor’s or designer’s liability is also becoming a standard provision that must be factored into the damages analysis. HN

Alex Bell is a Partner and Ty Vessels is an Associate at Ziegler Gardner Bell, PLLC. They can be reached at abell@zgblaw.com and vessels@zgblaw.com, respectively.