January 2010 Headnotes

Dallas Bar Association

HEADNOTES

Focus Real Property & Construction Law

January 2010 Volume 34 Number 1

Ike Vanden Eykel To Be Inaugurated As 101st President

by Jenna P. Wright

O

n Saturday, January 23, 2010, the Dallas Bar Association will inaugurate Ike Vanden Eykel as its 101st president. Ike brings to the Bar not only leadership, years of service and a wealth of experience in law and the DBA, but also an enthusiasm for the Dallas Bar, its members and its programs.

“My plan for the DBA this year will focus on adding strength and definition to the first-class programs the Bar already has in place,” says Mr. Vanden Eykel. “I view this Ike Vanden Eykel as an opportunity to build on what my predecessors have established—to make the DBA stronger and to help direct our association’s future.”

Mr. Vanden Eykel began his tenure with the Dallas Bar Association in 1998 when close friend and law school buddy W. Mike Baggett, shareholder and chairman emeritus at Winstead, suggested that he would get a lot out of working as a board member of the bar.

Once the decision to become involved was made, Mr. Vanden Eykel assumed various leadership positions in the bar and the community. He was first elected to the Board of Directors of the DBA in 2000, and has served as Vice-Chair, Chair of the Board, as well as Second Vice-President, First Vice-President and President-Elect.

He served as President of the Board of Directors of the Community Service Fund and is currently a Trustee and a Fellow of the Dallas Bar Foundation. He was General Chair of the Campaign for Equal Access to Justice. He has been active in both the local and state Family Law Section.

In 1994, when then-president Peter Vogel contacted Koons, Fuller, Vanden Eykel & Robertson, the firm became one of the first six firms in Dallas to underwrite the Dallas Volunteer Attorney Program through the Campaign for Equal Access to Justice. To date, Koons Fuller has donated more than $200,000, not including what the firm’s individual attorneys have donated personally to the program. “We believe in pro bono and make it a priority from top to bottom,” says Mr. Vanden Eykel. The firm also made a sizable contribution to the Mansion Expansion Campaign.

In the community, Mr. Vanden Eykel has served as a member of the Boards of Directors of the Dallas Opera, Heritage Farmstead, Collin County Children’s Advocacy Center, Inc., the Child Abuse Prevention Center and the Domestic Violence Legal Help Center.

Born in Slayton, Minnesota, Mr. Vanden Eykel’s family moved to Wheaton, a western suburb of Chicago when he was two years old.

Early in life, Ike thought about becoming a minister. However, in seventh grade, he took an aptitude test that recommended he become a lawyer. By the time that Ike had made up his mind to pursue an education in law, he had already obtained a Bachelor of Science degree from Drake University and family was on the move again.

Mr. Vanden Eykel’s father was a captain with American Airlines and was head of Flight Training when the organization moved its headquarters from New York to Dallas-Fort Worth. The family followed.

Now in Texas and ready to embark on the next part of his journey, Mr. Vanden Eykel decided to attend Baylor Law School to become a trial lawyer. He graduated with his JD from Baylor in 1973.

After law school, he settled in Dallas and started practicing business litigation with Stroud & Smith, a firm which ultimately merged with Vial Hamilton. He continued his business litigation practice continued on page 11

Becoming part of the solution: Donors Contribute to the Campaign for Equal Access to Justice

Top, left: Michael & Judy Shore Top, right: DBA President Christina Melton Crain poses with Equal Access to Justice Campaign donors (left to right, back row) Robert Tobey of the DBA Business Litigation Section; DBA President-Elect Ike Vanden Eykel, managing partner, Koons, Fuller, Vanden Eykel & Robertson, P.C., Andy Payne of Payne Mitchell Law Group; (front row) Alan Dorantes of AT&T; Sally Crawford, partner, Jones Day; and Campaign Chair Scott McElhaney, partner with Jackson Walker, LLP. Left: Hon. Deborah Hankinson

by Alicia Hernandez

T

he Dallas Bar Association and Legal Aid of NorthWest Texas will recognize major donors to the Annual Campaign for Equal Access to Justice at the Inaugural of Ike Vanden Eykel on January 23. The annual fundraising campaign culminates at the Inaugural and supports the Dallas Volunteer Attorney Program, a joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas. Since it began in 1993, the Campaign has raised more than $4.7 million for legal aid to the poor.

Michael and Judy Keller Shore have been major donors to the campaign for 12 years, supporting this year’s Campaign with a gift of $25,000. The Shores have donated $280,000 to the campaign since 1999.

Honorable Deborah G. Hankinson, a major donor for seven years, continues to demonstrate her support for legal services to the poor. Justice Hankinson contributed $25,000 to this year’s Campaign, and she has given $140,000 to the campaign since 2003.

Payne Mitchell Law Group donated $25,000 to this year’s campaign. Over the last three years, Andrew Payne and his firm have donated $51,750 to the Campaign.

“Payne Mitchell Law Group is pleased to again support DVAP,” says Andy Payne. “Lawyers alone can provide life-changing pro bono services. As a profession, we have an obligation to commit both time and resources to pro bono legal services. Payne Mitchell is proud to do their part in DVAP’s important work.”

Inside 3 The 2010 Vision: Bar Presidents Look Forward 6 Perfection of Liens 8 Trial Masters 12 Green-Tinted Commercial Office Leases

Koons, Fuller, Vanden Eykel & Robertson, P.C. has been a major donor for 15 years. With their 2010 gift of $15,000, the firm has contributed more than $200,000 to the Campaign.

The following have generously donated at the $10,000 level: AT&T, the DBA Business Litigation Section, Exxon Mobil Corporation, Jones Day and the Thompson & Knight Foundation.

As of our print date, the campaign has raised more than $440,030.

Dedicated volunteers have donated their time and fundraising skills to make this year’s campaign a success.

Scott M. McElhaney, a partner with Jackson Walker LLP, a DBA Community Service Fund board member and Vice-Chair of the 2009 DBA Board of Directors, is this year’s Campaign Chair. Jerry Alexander, a partner with Passman & Jones, P.C. and a member of the 2009 DBA Board of Directors, is this year’s Vice-Chair.

The 2009 Campaign Committee Members are 2007 DBA President Beverly Godbey, 2009 DBA President-Elect Ike Vanden Eykel, 2009 Second Vice President Paul K. Stafford, 2009 DBA Board Chair Sally Crawford, 1990 DBA President Al Ellis, Mike Forshey, Michael Hurst, Christina McCracken, Greg Sampson, Anne Shuttee, Lindsey Stengle, Dena Stroh and Diane Sumoski.

As a part of the annual campaign, the committee sponsored several telephone banks where lawyers volunteered to call attorneys in continued on page 13

Renew Your DBA Membership Dues Today!

DBA membership dues statements for 2010 have been mailed, and are now due.

You won’t want to miss any of our great benefits. n Nearly 400 FREE CLE programs each year n n Membership in substantive law sections n n Headnotes each month * Dallas Bar Online every Friday morning n n Use of the Belo Mansion and Pavilion n Invitations to social events n n Networking and committee involvement n And much more!

2 H e a d n o t e s l D a l l a s B a r A s sociation

Calendar

January Events

JANUARY 8

Friday Clinic - North Dallas* “Evidence Update,” Andy Sommerman and Hon. Martin Hoffman. 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. Food is allowed inside the Conference Center. Thank you to our sponsor, Griffith Nixon Davison, P.C. (MCLE 1.00)*

JANUARY 15 Noon

Friday Clinic—Belo

FEBRUARY 5

Friday Clinic—Belo

Noon

FRIDAY, JANUARY 1

DBA Office closed for New Year’s Day

MONDAY, JANUARY 4 Noon

Tax Section “Ethics: A Checklist for Planning in a Changing Environment,” Michael V. Bourland. (Ethics 1.00)*

Peer Assistance Committee

3:30 p.m.

Investiture of Justice Carolyn Wright

TUESDAY, JANUARY 5

Noon

Corporate Counsel Section “Unions 10—The State of the ‘Union’ in 2010,” Steve Rahhal. (MCLE 1.00)*

Tort and Insurance Practice Section “Trends in Jury Selection—What You Can and Can’t Do,” Hon. Jim Jordan. (MCLE 1.00)*

DAYL Aid to the Homeless Committee

6 p.m.

DAYL Board of Directors

WEDNESDAY, JANUARY 6 Noon

Employee Benefits/Executive Compensation “Employee Benefits Litigation Update,” James R. Raborn.

5 p.m.

Solo & Small Firm Section Topic Not Yet Available

5 p.m.

Bankruptcy & Commercial Law Section “Case Law Update,” Gerrit Pronske & Hon. Harlin ‘Cooter’ Hale.

Bankruptcy & Commercial Law Section

THURSDAY, JANUARY 7 Noon

Construction Law Section “Common Issues in Commercial Construction Bankruptcies,” Douglas Uloth. (MCLE 1.00)*

St. Thomas More Society

FRIDAY, JANUARY 8

Noon

Friday Clinic - North Dallas* “Evidence Update,” Andy Sommerman and Hon. Martin Hoffman. 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. Food is allowed inside the Conference Center. Thank you to our sponsor, Griffith Nixon Davison, P.C. (MCLE 1.00)*

Trial Skills Section “Recent Trial Science: What the Most Cutting Edge Studies Have to Say about How We Persuade Jurors,” Scott McWilliams, Ph.D. (MCLE 1.00)*

MONDAY, JANUARY 11

Noon

Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

TUESDAY, JANUARY 19

FRIDAY CLINICS Noon

January 2010

Alternative Dispute Resolution “Update on Texas Subrogation and Lien Laws,” Judy Kotsura. (MCLE 1.00, .5 Ethics).

Real Property Law Section Topic Not Yet Available

TUESDAY, JANUARY 12 Noon

Business Litigation Section “The Constitution and Original Intent,” Dr. Rick Beeman. (MCLE 1.00)

Mergers and Acquisitions Section Topic Not Yet Available

DAYL Equal Access to Justice Committee

4 p.m.

5:30 p.m.

Senior Lawyers Committee

6 p.m.

Home Project Committee

Government Law Section Topic Not Yet Available

WEDNESDAY, JANUARY 13

J. Reuben Clark Society

Summer Law Intern Program

Noon

Antitrust & Trade Regulation Section Topic Not Yet Available

American Immigration Lawyers Assoc

International Law Section Topic Not Yet Available

3 p.m.

Section & Committee Chair Happy Hour

6 p.m.

Dallas Hispanic Bar Association

Community Involvement Committee

Entertainment Committee

Law in the Schools and Community

Speakers Committee

DAYL Elder Law Committee

WEDNESDAY, JANUARY 20 Noon

Energy Law Section Topic Not Yet Available

Health Law Section Topic Not Yet Available

Law Day Committee

Pro Bono Activities Committee

5:15 p.m.

Public Forum Committee Municipal Justice Bar Association Non-Profit Law Study Group LegalLine

THURSDAY, JANUARY 21

Christian Legal Society

Dallas Gay & Lesbian Bar Association

UPL Subcommittee

Christian Lawyers Fellowship

DAYL Judiciary Committee

5:15 p.m.

LegalLine

Admissions and Membership

Publications Committee

Dallas Asian American Bar Association

3:30 p.m.

DBA Board of Directors

6 p.m.

J.L.Turner Legal Association

FRIDAY, JANUARY 15 Noon

Friday Clinic - Belo Topic Not Yet Available

Mentoring Committee

Sports & Entertainment Law Section “The Digital Millennium Copyright Act: Recent Developments and Trends,” Murray W. Camp. (MCLE 1.00)*

DVAP New Lawyer Luncheon

Juvenile Justice Committee

Legal Ethics Committee

Transition to Law Practice Committee

THURSDAY, JANUARY 28 Noon

Criminal Law Section Topic Not Yet Available

Environmental Law Section Topic Not Yet Available

5 p.m.

Labor & Employment Law Section Topic Not Yet Available

FRIDAY, JANUARY 29 Noon

Family Law Section “Your Reliability Toolbox: Using Daubert Factors to Challenge Mental Health Testimony,” John Zervopoulos.

Collaborative Law Section Topic Not Yet Available

Noon

Minority Participation Committee

Noon

Noon

Dallas Area Real Estate Lawyers Association

Noon

Dallas Criminal Defense Lawyers Association

DAYL Barristers for Babies

7:45 a.m.

Appellate Law Section Topic Not Yet Available

11:30 a.m.

WEDNESDAY, JANUARY 27

Noon

Dallas Area Real Estate Lawyers Discussion Group

THURSDAY, JANUARY 14

Courthouse Committee

11:30 a.m.

7:45 a.m.

CLE Committee House Committee

FRIDAY, JANUARY 22 Noon

Intellectual Property Law Section “Legislative Update,” Sharon A. Israel.

Entertainment Committee

Media Relations Committee

MONDAY, JANUARY 25

Memorial & History Committee

MONDAY, FEBRUARY 1 Tax Section Topic Not Yet Available

TUESDAY, FEBRUARY 2 Noon

Corporate Counsel Section Topic Not Yet Available

Morris Harrell Professionalism Committee

DAYL Aid to the Homeless Committee

6 p.m.

DAYL Board of Directors

Tort and Insurance Practice Section Topic Not Yet Available

WEDNESDAY, FEBRUARY 3 Noon

Employee Benefits/Executive Compensation Section Topic Not Yet Available

Lawyer Referral Service Committee

5 p.m.

Bankruptcy & Commercial Law Section Topic Not Yet Available

Noon

Computer Law Section Topic Not Yet Available Securities Section “The New/Proposed Executive Compensation Disclosure Rules for the Upcoming Proxy Season,” Roger W. Bivans. (MCLE 1.00)*

Criminal Justice Committee

Golf Tournament Committee

Noon

Construction Law Section Topic Not Yet Available

Pictorial Directory Committee

DVAP Landlord/Tenant CLE

Judiciary Committee

Family Law Section Board

St. Thomas More Society

TUESDAY, JANUARY 26 Noon

Probate, Trusts & Estates Section “Judicial and Non-Judicial Trust Modifications and Terminations,” Mark K. Sales and Philip M. Lindquist. (MCLE 1.00)*

THURSDAY, FEBRUARY 4

MONDAY, JANUARY 18 Noon

Labor & Employment Law Section Topic Not Yet Available

PEARL STREET CONSTRUCTION UPDATE During the month of February, the Pearl/Olive exit on Woodall Rogers will be closing. This project will take approximately four months.

TXDOT has posted directions for getting to and from the Arts District during the construction on their Web site at www.thedallasartsdistrict.org/construction.html.

You’re Invited!

Martin Luther King Jr. Luncheon Monday, January 18, 2010 Noon at the Belo Mansion MLK Justice Award to be presented to Kim Askew. $12.76 per person. RSVPs required. Contact BAvina@dallasbar.org

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar.

All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KTarangioli@dallasbar.org.

Jan u a ry 2 0 1 0 â€

Dal l as Bar A ssoci ati on l Headnotes 3

The 2010 Vision: Bar Association Presidents Look Forward

by Cherika N. Latham

T

he sister bar organizations continue to serve as a powerful arm of the Dallas Bar Association. Championing their member’s interests, supporting their community’s goals and wrestling with changing economic conditions, these leaders are focused on solutions.

The Dallas Asian American Bar Association might be one of the newer organizations on the list, but Hope Shimabuku, a licensing attorney at Research in Motion, has her eye on making a big impact for her members in 2010.

Ms. Shimabuku is a cum laude graduate of SMU Dedman School of Law, and received her undergraduate degree from The University of Texas at Austin.

Inspired by her predecessors and mentors, Ms. Shimabuku was encouraged to take her presidential role to the next level. As she looks toward the future, her biggest goal is to assess the immediate and practical needs of her members and find ways to address them. When asked about the importance of her organization’s role, she said “We have a duty to help our membership, and that assistance will positively affect the external community.� To learn how you can make a meaningful difference with this organization, visit www.daaba.org.

Jennifer Edgeworth will serve as the 2010 President of the 2,500-member Dallas Association of Young Lawyers.

A partner at Hermes Sargent and Bates, Ms. Edgeworth’s practice is primarily devoted to environmental litigation, products liability, construction and commercial litigation. A cum laude graduate of Texas Christian University, she was recognized as TCU’s Outstanding Young Professional in 2009. Additionally, she holds a MBA and a law degree from Baylor University.

Jennifer Edgeworth

Karen McCloud

Ms. Edgeworth plans to use those personal insights gleaned during her years of membership in DAYL. She hails the organization’s 150 volunteer projects as one of its most important features.

When asked about why she decided to assume this role, she said “I feel certain that were it not for DAYL, I would not be the lawyer I am today.� Although her commitment to community service will remain a strong focus, she also plans to grow and streamline the mentoring programs. Additionally, she looks forward to working with the other bar associations to collaborate on future projects. For more information on how you can get involved, visit www.dayl.com.

Jose Ortiz will serve as the Dallas Hispanic Bar Association President for 2010. He is a Senior Attorney at the U.S. Department of Education Office for Civil Rights. In his current position, he enforces laws prohibiting discrimination in institutions that receive federal financial assistance. He is a graduate of The University of Texas at Austin and the St. Mary’s University School of Law. Additionally, Mr. Ortiz was commissioned as an Army Officer.

The DHBA’s mission is to provide

Jose Ortiz

legal services to the Hispanic community, to enrich and ensure the success of its members in the legal profession in Dallas and to actively become involved in issues affecting the Hispanic community. With his vision aligned with that goal, Mr. Ortiz is focused on “elevating qualified Latino candidates to positions of leadership in the bar and in the greater community.� As a leader, a soldier and an attorney, Mr. Ortiz is well-equipped for the job. To learn about ways you can connect with this organization, visit www.dallashispanicbar.com.

Karen McCloud’s 2010 presidential role is certain to be welcomed by the J.L. Turner Legal Association. A graduate of The University of Texas at Austin and Georgetown University Law Center, Ms. McCloud is an attorney at Francis Goodman. Her practice includes discrimination and wrongful termination, ERISA and complex personal injury disputes. Her many leadership roles have included Dallas Women Lawyers Association President, a member of the DAYL Board of Directors and an AtLarge Director of the Texas Young Lawyers Association.

A well-established leader in bar asso-

Hope Shimabuku

ciations and activities, Ms. McCloud is dedicated to furthering the JLTLA’s mission to improve the quality of life in the African-American community through education, service and scholarship. Ms. McCloud will turn her adept leadership skills toward growing the number and activity level of her membership, as well as community service. In fact, Ms. McCloud said that “Community service will be key in 2010.� To that end, she will be looking for additional ways to partner with other bar memberships and local non-profits. She also plans to increase the number of networking events and CLE credit opportunities. For more information, visit the organization’s dynamic new Web site at www.jltla.org.

The commonality among the goals of these incoming presidents—meeting needs and providing opportunities— is exciting. As 2010 rolls out for each organization, one thing is definite—programs that benefit their organization, the greater bar and the community-at-large will be on each president’s agenda. †HN Cherika N. Latham serves as in-house counsel at GuideStone Financial Resources of the SBC. She can be contacted at Cherika.

Latham@guidestone.org.

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4 H e a d n o t e s l D a l l a s B a r A s sociation

January 2010

Headnotes

President's Column

Published by: DALLAS BAR ASSOCIATION

Take One For The Team by ike vanden eykel

Team (tem) n. a number of persons associated in some joint action.

Teamwork (tem´wûrk) n. coordinated effort on the part of a group of persons acting together as a team or in the interests of a common cause.

A

s we approach the second decade of this century and as I begin my service as the 101st President of the Dallas Bar Association it seems both relevant and important to reflect on where the DBA has been so that we can see where we are going as we move forward. My use of the word “we” is not accidental. The success of our Bar Association is the result of the collective and cumulative efforts of a great number of dedicated people who have been an essential part of what I want to call: TEAM DBA. Team DBA has been led in an All-Star fashion. The latest in a long line of distinguished Team Captains (a.k.a.

Presidents) to whom we owe our collective gratitude is Christina Melton Crain who ably guided our organization in 2009 with competence, grace and poise. We are indebted to Christina for her efforts on behalf of our Bar. Her countless hours of contribution and her gift of leadership were welcomed and appreciated.

Team DBA is the theme for my term as President because we will succeed or fail as a Team! The same principle has been true of our organization for many years. The DBA was organized for the common good of its members. As an organization, we have proven in the past that our horizons as a Team are virtually limitless. When we work together to achieve a common goal most anything is possible. In 1977, our Bar purchased the Belo Mansion under the able leadership of Robert H. Thomas. A truly visionary move by a truly strong Team! Then in 2001, we snatched victory from the jaws of defeat by successfully completing the Raise the Bar Campaign, and building the Pavilion at The Belo Mansion—Team DBA in action.

“Individual commitment to a group effort—that is what makes a team work, a company work, a society work, a civilization work.”—Vince Lombardi We saw the goal, embraced it and moved forward. Team DBA was resolved to raise the funds necessary to build the Pavilion. That was the goal, and with the leadership and vision of Mike Baggett, Robert Jordan, Rob Roby, Mark Shank, Nancy Thomas and many others, we established a winning tradition. The true character of our Bar and its members came through and showed the world that the Dallas Bar Association is one of the prominent bar associations in this country.

Our past accomplishments are Hall of Fame material, but as the old ball coach once said, “We don’t rebuild. We just reload and keep on winning.” Team DBA does not rest on our laurels and past victories. We don’t move into a new season cluttered by a raft of new plays and formations. For there is one true goal that we strive to meet, constantly working to

improve and enhance the profession and the life of its members and continue to focus on quality services.

Our organization is lead by a distinguished Board of Directors for 2010. The line-up that will back me up this year is as follows: President Elect: Barry Sorrels; First Vice President: Paul Stafford; Second Vice President: Sally Crawford; Secretary/Treasurer: Wesley Young; Immediate Past President: Christina Melton Crain; DAYL President: Jennifer Edgeworth; J.L. Turner President: Karen McCloud; DHBA President: Jose Ortiz; DAABA President: Hope Shimabuku; Chair of the Board Scott M. McElhaney; and Board Members: Jerry C. Alexander, Wm. Frank Carroll, Leon Carter, Rob Crain, Laura Benitez Geisler, Michael K. Hurst, Michele Wong Krause, Hon. Marty Lowy, Mary K. Scott, Diane Sumoski, Debra K. Thomas and Brad C. Weber.

The work of our Board is complimented by a quality staff that is lead by our All-Star Executive Director Cathy Maher, who we are truly privileged to have on our Team!

The real heroes of Team DBA are the members serving in the many Sections and Committees of the DBA who put the ideas and dreams into action and serve our community. The relentless efforts of our members in these groups create and sustain our momentum and success as a Team.

I would be remiss if I did not recognize the daily contributions of our Team Members at Culinaire. Lead by John Daly and featuring our Hall of Fame Chef Elijah Coe, our on-going partnership with Culinaire is an integral part of our success as an organization.

As you all know, timing is essential—on the field, in the courtroom and the boardroom. We have just weathered an economic storm of epic proportions. The timing indicates to me that it’s not new programs, but a back-to-basics approach, that is called for in 2010. Our focus this year will be enhancing the quality of what we are already doing as an organization. We will look at the future of our Bar and try to determine what we need to do, right now, to remain relevant and successful and continue to meet the ever-changing needs of our members. We will intensify our efforts on our programs and attempt to improve our delivery of quality services for our members, as well as our community.

We are truly blessed as a profession and we will not shirk our duty to those less fortunate in 2010. In this time of economic hardship, we need to rise above all political and philosophical differences and galvanize our resolve as an organization to maintain and enhance our previous success on behalf of those we serve.

Our strength of character will continue to make a positive and meaningful contribution to our community and our members.

There is much to do in the New Year. So let’s get started and make 2010 a championship season!

HN

The Dallas Bar Association invites you to become a Sustaining Member. The DBA headquarters is located in the beautiful historic Belo Mansion and the Sustaining Membership level permits us to continue to preserve and maintain our home.

A Certificate of Appreciation; z Acknowledgement at the Annual Meeting; and z Recognition

in Headnotes and in the pictorial DBA Member Directory.

Please be sure to check the box next to Sustaining Member on your 2010 Dues Statement and help support your DBA home. Contact Kim Watson for more information: (214) 220-7414 or kwatson@dallasbar.org.

OFFICERS President: Ike Vanden Eykel President-Elect: Barry Sorrels First Vice President: Paul K. Stafford Second Vice President: Bill Mateja Secretary-Treasurer: Wesley Young Immediate Past President: Christina Melton Crain Directors: Jerry C. Alexander, Karen McCloud (President, J.L. Turner Legal Association), Wm. Frank Carroll, Leon Carter, Rob Crain, Laura Benitez Geisler, Michael K. Hurst, Michele Wong Krause, Hon. Marty Lowy, Scott M. McElhaney, Hope Shimabuku (President, Dallas Asian American Bar Association), Mary K. Scott, Jennifer Edgeworth (President, Dallas Association of Young Lawyers), Diane Sumoski, Debra K. Thomas, Jose Ortiz (President, Dallas Hispanic Bar Association) and Brad C. Weber.

Advisory Directors: Penny Brobst Blackwell (PresidentElect, Dallas Association of Young Lawyers), Eric Blue (President-Elect, J.L. Turner Legal Association), Hon. Teresa Guerra Snelson (President-Elect, Dallas Hispanic Bar Association) and Eunice Kim Nakamura (President-Elect, Dallas Asian American Bar Association).

Delegates, American Bar Association: Kim J. Askew, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Beverly Bell Godbey, Timothy W. Mountz, Robert R. Roby, Mark K. Sales HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Jessica D. Smith Calendar: Kathryn Tarangioli In the News: Judi Smalling Art Director: Laura E. Heymann Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen, Timothy G. Ackermann and Suzanne Raggio Westerheim Vice-Chairs: Lea N. Clinton, Paul R. Clevenger Members: H. Joseph Acosta, Natalie L. Arbaugh, Wesley J. Bailey, Heather J. Barbieri, Vance L. Beagles, Barbara Boudreaux, Quentin Brogdon, Lance E. Caughfield, Christina Melton Crain, Pat Driscoll, Dawn E. Fowler, Floyd R. Hartley Jr., John Thomas Hayes, Paul W. Herring, Dyan M. House, Arshil A. Kabani, Mike Keliher, Jamie McKey, Elizabeth Jo McShan, Thomas L. Mighell, Mitchell S. Milby, Clay Miller, Jennifer Mitchell, Hon. Jim Moseley, Sonia Navia, Heather Bailey New, Irina B. Plumlee, Laura Anne Pohli, Robert D. Ramage, Andrew Baxter Ryan, Gregory W. Sampson, Steven D. Sanfelippo, Barry Sorrels, Paul K. Stafford, Scott B. Stahl, Amy E. Stewart, Sherry L. Talton, Debra K. Thomas, Ike Vanden Eykel, Peter S. Vogel, Elizabeth A. Wilson, Sarah Q. Wirskye, Jenna P. Wright.

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 Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberley Watson Projects & Communications Assistant: Kathryn Tarangioli Publications Assistant: 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

As a Sustaining Member, your support contributes to the continued upkeep of our historic building. In honor of your support, you will receive all of the regular DBA Member benefits, plus: z

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.

Copyright Dallas Bar Association 2010. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.

SUSTAINING MEMBER

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.

Jan u a ry 2 0 1 0

Dal l as Bar A ssoci ati on l Headnotes 5

Meet Our Staff Catharine M. Maher, Executive Director (214) 220-7401 • cmaher@dallasbar.org Cathy joined the DBA in 1978 as an Interviewer in the Lawyer Referral Service. Since then, she has served as Membership Director, as Events Coordinator, as Executive Director of the Dallas Bar Foundation, and as Associate Executive Director. She was appointed to her current position in 1994 and oversees all operations of the Association.

MAHER

Biri Avina, Program Assistant, Lawyer Referral Service (214) 220-7416 bavina@dallasbar.org Biri joined the LRS in 1999.

She handles telephone referrals to LRS panel members, assists AVINA with coordination of the Minority Clerkship Luncheons, MLK Luncheon and assists with other special projects.

Shawna Bush, Accounting Assistant (214) 220-7453 sbush@dallasbar.org Shawna joined the staff in 2008. She is responsible for billings, postings, bank reconciliations, deposits and assists with special projects such as BUSH the Inaugural, Golf Tournament and the Bench Bar Conference.

Sherri Evans, Controller (214) 220-7440 sevans@dallasbar.org Sherri joined the DBA in 1997.

She manages the finances for the DBA and Community Service Fund, handles human resources, business operations, information technology, and EVANS serves as liaison to the Public Forum Committee, House Committee, Library Committee and Peer Assistance Committee.

Marcela Mejia, Interviewer, Lawyer Referral Service (214) 220-7410 mmejia@dallasbar.org Marcela joined the LRS in 2005. She handles telephone MEJIA referrals to members, maintains the records of panelist’s insurance and assists with special DBA projects.

Elizabeth Philipp, Executive Director Dallas Bar Foundation (214) 220-7487 ephilipp@dallasbar.org

Jessica Smith, Communications & Media Director (214) 220-7477 jsmith@dallasbar.org

Elizabeth joined the DBF in 2007 and manages the charitable and educational endeavors PHILIPP of the DBF, including the Fellows Program and the Hughes Scholarship Program.

Teddi Rivas, Staff Assistant & MCLE Coordinator (214) 220-7447 trivas@dallasbar.org Teddi joined the staff in 1978.

She coordinates MCLE credit for more than 350 DBA programs each year, serves as liaison RIVAS to the Community Involvement Committee and Speakers Committee, serves as receptionist and assists with special projects.

Jessica joined the DBA in 2009.

Responsibilities include oversight of the content, design and publiJ. SMITH cation of Headnotes. She interfaces with the local media, coordinates the annual Philbin Awards and coordinates special programs for the media.

Rhonda Thornton, Events Coordinator (214) 220-7403 rthornton@dallasbar.org Rhonda joined the staff in 2001.

She manages events including the annual Inaugural, Bachendorf’s Reception, Pro Bono Golf THORNTON Tournament, Bench Bar Conference, Mother’s Day Brunch and the Holiday Party.

Kim Watson, Membership Coordinator (214) 220-7414 kwatson@dallasbar.org

Judi Smalling, Publications Assistant (214) 220-7452 jsmalling@dallasbar.org Judi joined the staff in 2008.

Judi oversees and coordinates production of the pictorial directory including the on-line SMALLING directory, handles all address changes, classified advertising for Headnotes, assists with the Philbin Awards and other special projects.

Amy Smith, Law-Related Education & Program Coordinator (214) 220-7450 asmith@dallasbar.org Amy joined the staff in 2006.

She coordinates all levels of the Texas High School Mock Trial A. SMITH Program, Law Day activities, Law in the Schools activities, Summer Law Intern Program and E-Mentoring.

Kim joined the staff in 2009.

She manages the records of more than 10,000 DBA members, coordinates the New MemWATSON ber Reception, conducts special membership drives and works closely with the Admissions & Membership Committee.

Kathryn Zack, Projects & Communications Assistant (214) 220-7484 kzack@dallasbar.org Kathryn joined the staff in 2006.

She coordinates North Dallas and Belo CLE programs, the Senior Lawyers Dinner, Special ZACK CLE programs, Clerk & Coordinator Seminar and Awards, DBA Online, the Committee selection process and various senior lawyers activities.

MEET THE DVAP STAFF IN FEBRUARY

Ted M. Akin ) 4,000+ cases mediated ) Full-Time Mediator since 1989 ) 90%+ settlement rate ) 35 years of judicial experience ) Justice retired 5th Court of Appeals ) Chair - The Civil Collaborative Group ) Member - The Association of Attorney-Mediators

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) Distinguished Mediator - Texas Mediator Credentialing Association ) Panel - FINRA Dispute Resolution ) Panel - CPR: International Institute for Conflict Prevention & Resolution

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6 H e a d n o t e s l D a l l a s B a r A s sociation

Focus

January 2010

Real Property & Construction Law

Perfection of Liens

by Misti Beanland

D

uring these tough economic times, your client may need assistance in collecting sums owed for unpaid work performed and/ or materials supplied on a construction project. The odds of collecting increase substantially with timely and proper notices and a Mechanic’s and Materialman’s Lien under Chapter 53 of the Texas Property Code (TPC).

This article concerns Subcontractors and Suppliers’ Mechanic’s and Materialman’s Liens (Liens) on non-residential, commercial projects.

Subcontractors and suppliers will be collectively referred to as the “Lien Claimant.”

Determining the Issues

A. With whom did the Lien Claimant’s contract? The deadlines to send notices and file liens relate to where in the chain of the construction the Lien Claimant is situated. This article focuses on those contracting with an “original contractor” or a “subcontractor” as defined in TPC §§53.001 (6) and (13), respectively.

B. When was the unpaid work and/or material furnished? This is to compute the deadlines for sending notices and filing the Lien.

C. Who is the correct owner and what is the correct legal description of the property? The Lien must contain all of the items listed in TPC §53.054.

This includes the correct name of the owner, or reputed owner, and a legal description that is sufficient to identify the property. A title search and the lat-

est filed deed for the property will provide this information.

Perfecting the Lien

If the Lien Claimant has a contract with someone other than the owner or original contractor, i.e. a supplier to a subcontractor: 1. Send notice to the original contractor on or before the 15th day of the second month for each month the unpaid work and/or materials were furnished. Include the name of the party with which the Lien Claimant contracted, a description of the project, the amount owed and copies of the statement and/or invoices identifying the amount owed. TPC §53.056(b).

2. Send notice to the owner, or reputed owner, and original contractor on or before the 15th day of the third month for each month unpaid work and/or materials were furnished.

Include all the required information in TPC §53.056. To trap funds owed to the original contractor, the notice must contain the statement in TPC §53.056(d).

3. File a lien containing all the information in TPC §53.054 with the County Clerk in the County where the property is located. Do so by the earlier of: (1) the 15th day of the fourth month after the last labor and/or material were furnished; or (2) the 30th day after the earlier of the work by the original contractor being completed, terminated or abandoned. TPC §§53.052, 53.053 and 53.103.

4. Send a copy of the executed lien to the owner, or reputed owner, and original contractor not later than the

CSI :CPA

fifth day after the date the lien is filed.

TPC §53.055.

Notices are by certified mail. If the Lien Claimant has a contract with an original contractor, the Lien Claimant need only perform steps 2-4 above.

Unpaid Retainage

If the Lien Claimant’s contract contains a provision for withholding retainage, and the contract is with an original contractor, the Lien Claimant must give notice to the owner, or reputed owner, by certified mail, not later than the 15th day of the second month following the first furnishing of materials and/or labor to the project after the date the agreement for retainage has been entered into. TPC §53.057. If the Lien Claimant’s contract is with a subcontractor, this notice must also be sent to the original contractor.

Statute of Limitations

Suit must be filed to foreclose the lien before the later of: (1) two years after the last day a claimant can file the lien under TPC §53.052; or (2) within one year after completion, termination or abandonment of the original contractor’s work for which the lien is claimed. If suit is not filed before this deadline, the Lien is discharged of record. TPC §§53.157 and 53.158.

Owner’s Limited Liability

ited to: (1) the amount of funds paid to the original contractor after receipt of a TPC §53.056 notice; and/or (2) 10 percent of the contract price of the work to the owner or 10 percent of the value of the work if the owner fails to withhold the required amount for 30 days after the contract is completed, abandoned and/or terminated. TPC §53.101. Additionally, all properly-perfected Lien Claimants share the funds on a pro rata basis. TPC §53.122. HN Misti L. Beanland is a partner with Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, LLP., and the Secretary of the Dallas Bar Association Construction Law Section.

NEED A REFERRAL? Take out an Area of Practice and/or Foreign Language Proficiency listing in the 2010 DBA Member Directory to get great exposure for your practice.

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Listing cost: $25.00 For more information and an order form, contact Judi Smalling at JSmalling@dallasbar.org or (214) 220-7452.

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Jan u a ry 2 0 1 0

Focus

Dal l as Bar A ssoci ati on l Headnotes 7

Real Property & Construction Law

The Sunsetting of the TRCCA

by Tim R. Sherry and Justin McKinley

T

he Texas Residential Construction Commission (the Commission) and the Texas Residential Construction Commission Act (TRCCA) were sunset on September 1, 2009. As a result, residential construction defect disputes are now exclusively governed again by the Residential Construction Liability Act (RCLA). The primary substantive and procedural features of the TRCCA, the statutory minimum residential construction performance standards and warranties and the state sponsored inspection and dispute resolution process (SIRP) are conspicuously absent from RCLA.

Warranties

In June of 2005, the Commission promulgated statutory minimum residential construction performance standards and warranties. These standards and warranties are codified at Section 430.001 of the Texas Property Code. Moreover, the statutory warranties expressly superseded all implied warranties by excluding the warranty of good workmanship and incorporating the warranty of habitability. While the statutory warranties and performance standards could not be waived, they could be modified to be more stringent. Thus, the effect of Section 430.001 was to create a minimum threshold for builder performance, while pre-empting builder exposure to nebulous implied warranties.

As the law reverts to its prior form, the now defunct Title 16 provides a useful bearing on the current state of building and performance standards. Under

the statute, homes built prior to its adoption were to be constructed “according to any express warranty provided in writing by the builder or, if there is no express warranty, the usual and customary residential construction practices in effect at the time of the construction.”

However, one obvious complication with using this “customary” standard is that after more than four years of implementation the statutory standards and warranties have arguably become customary.

In this post-TRCCA context, the resurrection of the Texas Supreme Court’s decision in Centex Homes v. Buecher is important. The Centex Homes Court held that, generally, the implied warranty of habitability may not be waived.

However, parties may waive the implied warranty of good workmanship when their agreement provides sufficient detail on the manner, performance, or quality of the desired construction. In the absence of requisite detail, the implied warranty of good workmanship serves as a “gap-filler” or “default warranty.” Further, “good and workmanlike” was held to mean the performance of a “generally proficient builder engaged in similar work and performing under similar circumstances.” Finally, in rejecting caveat emptor and noting the importance of a home purchase to a family, the Court held that a policy favoring a builder over an inexperienced buyer is “manifestly a denial of justice.”

Application of the “good and workmanlike manner” definition from Centex Homes will likely lead to results resembling the TRCCA mandate. However, with the current dearth of judicial guid-

ance regarding what “gaps” in construction contracts might require judicial supplementation and how cognizant an inexperienced buyer must be of any express warranties, parties should be aware that, to the extent a builder’s express warranties fail to fully displace the former statutory warranties, any attempted waiver of common-law implied warranties will remain imperfect.

Dispute Resolution

Disputes concerning new homes often result in emotional homeowers who are frustrated with repeated, unsuccessful attempts by the builder to assuage their concerns by the time they take legal action. This frustration often removes rational, financially motivated decision-making from the process. And since the amount in controversy is generally relatively small, residential construction disputes are usually difficult to settle.

Under the TRCCA, a homeowner with a complaint regarding a construction defect had to submit a request for inspection, with the appropriate fee, to the Commission, after providing the builder with written notice of the defects and an opportunity to inspect. The Commission would then appoint a third-party inspector who would observe the alleged defects and issue a determination. If either party disagreed with the inspector’s recommendation, it could appeal to a panel of three Commission-appointed inspectors who would review the recommendation. Though not binding, the determination of the initial inspector and/ or appellate panel created a rebuttable

presumption with respect to most of the matters in the recommendation. After the inspector’s recommendation, the builder could make an offer to settle the dispute in accordance with the provisions of the RCLA. Frequently, this process resulted in a resolution.

With the elimination of the SIRP, parties, particularly builders, should look for opportunities to resolve disputes short of costly litigation or arbitration. Contracts should require mediation before formal dispute resolution.

Builders should also include an enforceable, binding arbitration clause in their contracts and be familiar with and use the statutory offer of settlement procedure found in the RCLA, which conveniently limits a builder’s potential liability if compliance is established.

The TRCCA sunset represents a move away from certainty in residential construction performance standards and warranties. The lack of clearly defined standards will create uncertainty in residential construction disputes for some time; however, it will not change their fundamental nature.

Given the inherent difficulty in resolving residential construction disputes, parties should endeavor to supplant the SIRP by contract. Through thoughtful dispute resolution contract terms, and intelligent use of the RCLA settlement provisions, parties should be able to achieve the desired result: prompt and cost-efficient resolution.

HN Mr. Sherry is an associate attorney with the law firm of Canterbury, Elder, Gooch, Surratt, Shapiro & Stein, P.C. who may be reached at tsherry@canterburylaw.com. Mr. McKinley is a law student at Southern Methodist University, who may be reached at jmckinley@smu.edu.

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8 H e a d n o t e s l D a l l a s B a r A s sociation

January 2010

• TRIAL MASTERS •

Young attorneys had the chance to learn from the trial masters—Frank Branson of the Law Offices of Frank Branson; Randy Johnston of Johnston*Tobey, P.C.; Rod Phelan of Baker Botts, L.L.P.; and Mark Werbner of Sayles Warbner P.C.—while attending a mock trial sponsored by the DBA CLE Committee. The Honorable Catharina Haynes served as presiding judge and the Honorable Craig Smith was the moderator of the Jury Selection Panel. In addition, Kacy Miller of CourtroomLogic Consulting was the moderator of a Trial Strategies Panel, and provided on-site technology, as well.

The event was presented by the DBA CLE Committee, led by chair Mary Scott, and attendees received 7 hours of CLE credit.

Thank you to our sponsors!

Beal Research Benchmark Legal Media Courtroom Logic Consulting Digital Verdict Inc. DBA Trial Skills Section

Don’t miss your chance to win one of these fabulous Sewell prizes:

An Infiniti G37 Sedan, Lexus IS350, or Cadillac CTS

On-line raffle sale ends January 23 at 1 p.m.!

Tickets also available at the Inaugural.

Runner-Up Receives From Neiman Marcus $1,000 Gift Card, Lunch for Four at NM Café And Custom Natura Bisse Gift Basket

Say when.

Second Runner-Up Receives From Bachendorf’s A Bachendorf’s Stainless Steel All Swiss Automatic Day-Date Water-Resistant Watch Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, which provides legal services to the less fortunate in our community.

No more than 1,500 tickets will be sold.

Purchase raffle tickets online until January 23 at 1 p.m. at https://www.dallasbar.org/dvap/raffle.asp or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201).

DBA Offices closed Saturday.

However, tickets will be available during the Inaugural.

Drawing will be held at the DBA Inaugural Ball on January 23, 2010.

The winner need not be present to win.

The winner is responsible for all taxes, title and licensing.

Prize is non-transferable. No cash option is available.

Whether it’s one graphic for a hearing, or an entire suite of services focused on strategic preparation, CourtroomLogic can custom-design a program to pinpoint your needs. For an ultra-efficient, cost-competitive method of jury research, ask about the benefits of conducting FirstInsight™ early in discovery.

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Jan u a ry 2 0 1 0

Focus

Dal l as Bar A ssoci ati on l Headnotes 9

Real Property & Construction Law

Conveying Real Property Without Damaging a Title Policy

by Keenan Kolendo

A

client asks for your help in transferring title to real property in Texas between affiliated entities. Naturally, the client wants to minimize costs and certainly does not want to purchase a new title insurance policy. It already has an Owner’s Title Insurance Policy naming the existing owner (Parent) as the insured. You prepare a standard special warranty deed form to limit the Parent’s warranty liability. The deed is signed and recorded and fee simple title is conveyed to the Parent’s affiliate.

You may have made a mistake. That simple transaction can result in losing the benefit of the Title Policy. If a title failure occurred before the Parent acquired the property (Title Failure), then it is possible that neither Parent nor Affiliate could make a claim on the Title Policy.

The Parent may not make a claim because it did not suffer the loss. Affiliate may not transfer the loss to Parent through a warranty claim because the Title Failure occurred before Parent acquired the property and is therefore excluded from the special warranty.

In some cases, however, Affiliate may nonetheless make a claim for the Title Failure, but only if the Title Policy issued after May 1, 2008. The definition of the term “insured” in such title poli-

cies should include a grantee named in a conveyance deed—i.e. the Affiliate— if it paid no valuable consideration and either the grantor or grantee wholly owns the other or they are wholly owned by the same owner. Thus, many affiliates may receive the benefit of the grantor’s insurance policy. But what if this does not apply?

Using a general warranty deed would likely produce a different result. Here, the Title Failure should result in a breach of the Parent’s warranty of title. Affiliate can then make a warranty claim against Parent and Parent can make an equivalent claim against the Title Policy. Note that under Texas law the maximum liability for a warranty breach (assuming there was no fraud or other bad act) is limited to the consideration received.

But using a general warranty deed has its own drawbacks. A general warranty of title creates a perpetual and contingent liability not only to the grantee, but also to successor owners. Further, the scope of grantor’s liability for a general warranty of title is not limited to matters covered by its title insurance policy or matters arising from grantor’s actions.

Thus, Parent is left with a potentially difficult choice: (i) convey by a limited warranty deed and either lose the benefit of title insurance, or bear the expense of a new title insurance policy; or (ii) convey by a general warranty deed and incur

Justinian Award Nominations Due Soon The 28th Annual Justinian Award will be presented in April 2010 at the Belo Mansion.

Nominations must be submitted no later than January 11, 2010. Nomination forms can be found at www.dallaslawyersauxiliary.org.

Dallas County Probate Practice Manual 2009 The 2009 Dallas County Probate Manual is now available.

Order forms can be found on the Probate Section page at www.dallasbar.org.

Cost is: $70 (Section Members); $80 (Non-Members) Section members who volunteer for a DVAP case receive a free manual.

For each manual sold, $25 will be donated to DVAP. For more information, contact Norm Lofgren at nlofgren@lrmlaw.com.

a broad contingent liability.

One may address these issues in the deed by limiting the scope of claimants who may claim under the warranty and by limiting the scope of recourse available against the warrantor. The following is an example—untested, to the author’s knowledge—of such a limited warranty: To have and to hold the Property unto Grantee, and Grantee’s successors and assigns forever; and Grantor does hereby bind itself, its successors and assigns to Warrant and forever defend, all and singular, the Property unto Grantee, and Grantee’s successors and assigns, against every person whosoever lawfully claiming or to claim the Property or any part thereof; subject, however, to the Permitted Exceptions and in accordance with and strictly limited by the following specific limited warranty of title and not otherwise, this specific limited general warranty as hereinafter set forth, being the only warranty of title made hereunder by Grantor: Limited general warranty Grantor shall pay to Grantee or to any transferee, assignee or successor-in-interest of Grantee in and to the Property any loss which Grantee or such trans-

feree, assignee or successor-in-interest of Grantee may sustain by reason of (a) defects, liens or encumbrances existing prior to or at the date of that certain Owner Policy of Title Insurance in effect at the time Grantor acquired record title to the Property (the “Policy”), and not excluded from the coverage of the Policy by the exceptions or by the Conditions and Stipulations thereof, such payment and sole liability for such matters hereunder on the part of Grantor not to exceed amounts actually recoverable under the Policy by reason of such defect, lien or encumbrance or any proportional reduction or lesser coverage thereunder, or (b) claims by, through or under Grantor, Grantor’s liability for which shall not be so limited.

An issuer of the Title Policy may contend that the deed is a contrivance to create an artificial claim under the Title Policy. So, if it is critical to the client to know that title insurance is in place, then it is safest to purchase a new title policy for Affiliate. Otherwise, consider using a limited warranty. HN Keenan Kolendo is an associate in the real estate practice group at Haynes and Boone, LLP. He can be contacted at keenan.kolendo@haynesboone.com.

High School Mock Trial Volunteers Needed! Earn CLE credit!

Volunteers are needed to evaluate teams in the High School Mock Trial competitions held January, February and March 2010. (Min. 3 hr. commitment per trial.)

Sign-up on-line at www.dallasbar.org/thsmtc or contact Amy Smith at asmith@dallasbar.org.

DVAP’s Finest Christina McCracken

Christina L. McCracken is a litigation attorney with Gordon & Rees, L.L.P. She is a native of Dallas and practiced law for several years with her late father, Howard C. McCracken, Jr. Christina states, “My father was an honorable attorney. After he died, I heard many stories from judges, attorneys and former clients of his just and fair handling of cases and how cared for the legal needs of those in poverty.” During law school, Christina volunteered with Legal Aid and had success in obtaining social security benefits withheld for years from a client. Unfortunately, the day the favorable decision came granting the benefits, she was notified that her client had died from the medical condition. This event impacted Christina’s motivation for immediate redress for those in poverty.

When her law career brought her practice to downtown, she became involved with DVAP. According to Christina, “DVAP is an exceptional organization with the most talented and dedicated attorneys and staff.” In the spring of 2008, Christina spoke about the range of services offered to the poor through DVAP to a group of international lawyers during an International Visitor Leadership Program. Christina is the 2009-2010 Vice-Chair of the DBA Pro Bono Activities Committee and has served on the Equal Access to Justice Campaign Committee. “Volunteering with DVAP has brought me some of the most exciting and memorable experiences in my practice of law. In fact, I understand I am the first DVAP volunteer attorney to deliver a baby during a DVAP client’s mediation: Gregory (5 lbs. 7.1 oz.) born in November 2008.” Thank you, Christina!

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

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

A joint legal aid program of the Dallas Bar Association and Legal Aid of NorthWest Texas (formerly Legal Services of North Texas).

10 H e a d n o t e s l D a l l a s B a r A ss ociation

Focus

January 2010

Real Property & Construction Law

Five Things Every Non-Construction Lawyer Should Know

by Michael S. Nixon

C

onstruction law is an area of practice that involves complex statutes and lengthy contract documents.

This article is intended to provide practitioners not familiar with this area of law a basic understanding of a few key concepts.

1. Mechanic’s & Materialman’s Liens

A mechanic’s lien on real property is created by statute and protected by the Texas Constitution. The lien is created in favor of any person supplying labor or materials for a building or structure for the value of the labor or materials supplied. Texas lien law is extremely complicated. It is impossible to adequately detail the “notice” and “content” requirements of Chapter 53 of the Texas Property Code in the scope of this article. If you decide to represent a contractor or subcontractor who wants to file a lien, the advice is simple: read the statute. After doing so, read it again, because strict compliance with the notice timelines is required.

Perhaps even make yourself a checklist detailing the statutory requirements to make sure your claim is perfected. Go above and beyond to ensure you comply with the statutory requirements.

Also, take note that an original contractor may be able to avail himself of a Constitutional lien under Article 16, Section 37 of the Texas Constitution.

2. Fraudulent Liens

When you have decided to file a lien affidavit, you must determine the appropriate amount of the lien claim.

Texas law has historically imposed severe civil and even criminal penalties on any claimant who records false or fraudulent legal documents. Section 12.002 of the Texas Civil Practice and Remedies Code creates a statutory cause of action against any claimant who files a “fraudulent lien.” Various courts throughout the state have, in the past, applied the penalties of section 12.002 to claimants who, though

not acting with specific fraudulent intent, filed mechanic’s lien affidavits with incorrect information. This law puts claimants in a precarious position, as a broad range of incorrect information in a mechanic’s lien affidavit may expose a claimant to potential liability for filing a “fraudulent lien.” However, a newly adopted section to this statute, effective September 1, 2009, now requires a claimant to act with “intent to defraud” to be liable under section 12.002.

only come through a judicial order.

5. Retainage

Retainage is money that is “earned” by a general contractor on a project but withheld until completion of construction or some other agreed-upon date.

Under section 53.101 of the Texas Property Code, an owner of a construction project is required to retain 10 percent of the contract price or 10 percent of the value of the work performed by the general contractor. At

the outset of the project, an owner should know: (1) how much “retainage” must be withheld, and (2) how long the funds must be retained. Subcontractors that attempt to assert a claim against the retained funds must comply with certain statutory deadlines for notices and filing a lien claim against the retained funds. HN A partner of the law firm Griffith Nixon Davison, P.C., a business litigation firm, Michael S. Nixon practices in the area of complex construction litigation.

3. AIA Documents

Every 10 years, the American Institute of Architects (AIA), working with owners, contractors, attorneys, architects, engineers, and others, has traditionally updated its construction contracts. In 2007, the AIA updated its forms, including the A101 and A201 documents that comprise the standard construction contract between an owner and a contractor. One of the many changes to these agreements requires parties to select, by checking a box, either arbitration or litigation as the forum for binding dispute resolution. The previous version of the AIA documents stipulated that the parties arbitrate their disputes. Under the new forms, if the parties do not select arbitration, the default provision requires the parties to litigate their dispute.

4. Removables

The law regarding removables comes into play when a contractor is not paid after supplying materials to a construction project. Texas law provides an opportunity for an unpaid contractor to remove materials it has supplied and/or installed on the project, provided the contractor can prove the materials can be removed without material injury to the land, to the pre-existing structure of the building, or to the item itself.

The contractor must obtain an order permitting removal of the materials from the property. Removables include plumbing fixtures, air conditioning units and interior doors. It is important to understand that the right to remove materials is not self-executing and can

Christina Melton Crain, DBA’s 2009 president, is recognized by the Board of Directors with an oil painting of The Belo Mansion by Texas artist Jerral Derryberry. His work is currently represented and sold in fine art galleries and national exhibitions. More of his work can be seen at www.jerralderryberry.com.

ART SHOW Artist Jerral Derryberry invites all DBA members to attend his one-man show at Gasanova Gallery, 200 S. Rogers, Waxahachie, TX. Friday, February 26, 7-10 p.m. Special Preview Night Saturday, February 27, 7-10 p.m. Opening Reception February 28—March 26 Show available at the gallery

VAWA Celebrates 15 years Staff Report

I

n 1871, Alabama became the first state to rescind the legal right of men to beat their wives. In 1967, one of the nation’s first domestic violence shelters opened in Maine. In 1976, Pennsylvania became the first state to pass legislation providing for protective orders for battered women.

And, in 1985, U.S. Surgeon General C. Everett Koop identified domestic violence as a public health issue that cannot be dealt with by the police alone.

These are just a few of the important historical events that led to the U.S. Congress’ enactment of the Violence Against Women Act on September 13, 1994. In 2009, the White House, Department of Justice and Office on Violence Against Women commemorated the 15th anniversary of this landmark legislation that demonstrated a unified, national effort to combat domestic violence and other crimes perpetrated against women and families.

VAWA revolutionalized the way American communities address domestic violence. Many efforts that

seem routine today developed in direct response to VAWA legislation. The 1994 Act required a coordinated community response to domestic violence and sexual assault and stalking crimes. It strengthened federal penalties for repeat sex offenders and included a federal “rape shield law”.

It created full faith and credit provisions that required states and territories to enforce protective orders issued by other states, tribes and territories.

It provided legal relief for battered immigrants making it more difficult for abusers to use immigration law to prevent victims from calling the police or seeking safety. To assist communities with these initiatives, the Act created grant programs for various services, including victims’ assistance, shelters and educational programs, and the Act funded the National Domestic Violence Hotline, which opened on February 21, 1996, and received its two millionth call on September 30, 2008.

VAWA was reauthorized in 2000 and 2005. Both reauthorizations allowed critical grant programs to continue, established new programs and strengthened federal laws. VAWA 2000 emphasized assisting immigrant victims, elderly victims, victims with disabilities and victims of dating violence. It expanded interstate stalking laws to include interstate cyberstalking, and it added entering or leaving Indian country to the interstate domestic violence and stalking crimes created in VAWA. VAWA 2005 provided increased emphasis on violence against Indian women, sexual assault and youth victims.

Despite the progress American communities have made in combating domestic violence, there is still much work to be done. A variety of services are available in Dallas to victims of domestic violence. Genesis Women’s Shelter, the Family Place, Brighter Tomorrows and the Salvation Army are shelters that provide safe haven

and services for victims of domestic violence. Legal Aid of NorthWest Texas, Mosaic Family Services and the LAW Center at Central Dallas Ministries provide free legal assistance to victims of domestic violence.

The Dallas County District Attorney’s Office has specialized family violence and protective order courts and can obtain protective orders for victims of domestic violence. All of these programs have more information available on the internet about the services available.

The Texas Council on Family Violence is one of the largest domestic violence coalitions in the nation and is an excellent resource for those interested in public policy. It provides education and training in communities throughout Texas and the nation, works on legislative matters on behalf of domestic violence victims and supports prevention efforts across the state.

Help is also available 24 hours a day, 365 days of the year by contacting the National Domestic Violence Hotline at 1-800-799-SAFE. The Hotline provides crisis intervention, information and referral to victims of domestic violence, perpetrators, friends and families. HN

Jan u a ry 2 0 1 0

Dal l as Bar A ssoci ati on l Headnotes 11

Be Part of the Team continued from page 1

with Seeligson, Douglass, Falconer & Vanden Eykel and, in January of 1990, he moved a practice group to Koons, Fuller, McCurley & Vanden Eykel.

In July of 1992, he became managing partner of the firm that is today Koons, Fuller, Vanden Eykel & Robertson. His firm now consists of 25 attorneys practicing in four different offices and is the Southwest’s largest law firm that handles exclusively family law cases.

Mr. Vanden Eykel came to prominence during the 1980s as a champion of fathers’ rights. While practicing with the firm of Seeligson, Douglass, he was named one of D Magazine’s Best Lawyers in Dallas after successfully representing a number of fathers in child custody cases, a rare feat in those days. And in 2003, Vogue magazine named him one of the Top Lawyers for Women in Texas. Board Certified in Family Law and Civil Trial Law by the Texas Board of Legal Specialization, Mr. Vanden Eykel is among the most respected family lawyers in the nation.

He recently discussed “Divorce and the Economy” nationally on the Fox Business Network. In addition, he is often a commentator on local television and radio. He recently appeared on Good Day Dallas to explain the changes taking place in divorce, due to the downturn in the economy.

Also among Mr. Vanden Eykel’s accolades is being named one of the

Top 10 Divorce Lawyers in America.

He is often described as the “reigning king” of Texas divorce and the “divorce law jedi” by The Dallas Morning News.

After he represented an area housewife, Mr. Vanden Eykel was depicted in the book, My Husband Is Trying to Kill Me, and a television movie, Dead Before Dawn.

Mr. Vanden Eykel is a prolific author who has teamed with firm members to write books on how to make the divorce process less painful. He has written a book on Texas family law entitled, Successful Lone Star Divorce, and coauthored the Texas Family Law Practice Guide and a has recently written a new book with fellow Koons Fuller attorney Rick Robertson, titled Protecting Your Assets From A Texas Divorce. In addition, Mr. Vanden Eykel and attorney Sharla Fuller have collaborated on an additional book, Lone Star Divorce: The NEW Edition, which is on the bookstore shelves now. He is also the co-author of a new edition of the assets book with partners Heather King, Charla Conner and Rick Robertson.

Mr. Vanden Eykel and his wife, Cathy, have been married for 31 years and have three children. The eldest, Eric, is 28 years old and in the doctorate program in religious studies at Marquette University. He will marry on January 9, and will give the invocation at Mr. Vanden Eykel’s inaugural.

Daughter Lindsey, 23 years old, is an accomplished athlete who was on the

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U.S. National gymnastics team and is a two-time national champion on the uneven bars. Lindsey recently graduated from UCLA, is planning to take the LSAT, and would like to follow in her father’s footsteps. Rounding out the family is the Vanden Eykel’s youngest son Steven.

While careers and daily obligations take the Vanden Eykel family members in different directions, they regroup at their family home in Wild Rose, Wisconsin, as often as they can—a time cherished by all as they get a chance

to catch up and remember what life is all about.

The inauguration of Ike Vanden Eykel is a culmination of more than 10 years of continued service to the Dallas Bar Association and the Dallas community. During his tenure, he will continue to build on the foundation and legacy that is the Dallas Bar Association. HN A former co-chair of the Publications Committee, Jenna Wright practices trial advocacy and appellate law through the Law Offices of Jenna Wright, PC.

Four Justices of the Dallas Fifth Court of Appeals had the unique opportunity to swear in their children, who had recently passed the bar exam. (Left to right) Kathleen FitzGerald Perdon, Justice Kerry FitzGerald; Sean Michael O’Neill, Justice Michael O’Neill; Justice Robert M. Fillmore, Katherine A. Fillmore; Justice Elizabeth Lang-Miers and Ellen Miers Peeples.

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12 H e a d n o t e s l D a l l a s B a r A ss ociation

Focus

January 2010

Real Property & Construction Law

Green-Tinted Commercial Office Leases

by Christy Fields

W

ith the media craze surrounding climate change, carbon footprints and sustainability, commercial landlords and tenants have created their own frenzy around “green” leases.

This article examines what it means to be “green,” the ratings systems, and the driving forces behind green leases. It then touches upon some office lease provisions addressing sustainability practices.

Green Rating Systems

A green building or lease incorporates ecologically-sustainable construction, development and management principles to ensure that a building’s operation and maintenance minimizes environmental impact. This relates to energy and water efficiency, minimal use of non-renewable resources, improved indoor environmental quality, alternative transportation methods, reduction of construction waste, and recycling measures.

A landlord can address any one or more of these areas and label itself “green.”

Many landlords, however, seek certification to bolster that “green” designation.

LEED (Leadership in Environment and Energy Design.) uses consensusbased standards and awards LEED points on a 100-point scale, based on building specifics. There are a variety of categories, including energy savings, water efficiency, CO2 emissions reduction, improved indoor environmental quality, and resources and their impacts.

Credits are weighted to reflect their Commercial Properties Ad_finalHR.pdf 5/22/09 9:02:52 potential environmental impacts.

TheAM number of points, if at least 40, deter-

mines which one of four levels of LEED certification a building qualifies for: certification, silver, gold or platinum.

Green Globes™. Under Green Globes, buildings are awarded one to four Green Globes based on that building’s sustainable features. The categories include project management policies and practices, energy, water, resources, emissions and indoor environment.

Green Globes points are weighted toward energy conservation.

The percentage of points awarded, if at least 35 percent of the total, determines the number of Green Globes received. The Green Building Initiative’s Green Globes is the only rating system to include site visits, by a trained third-party assessor, as a certification requirement.

Energy Star®. Energy Star, originally designed to identify and promote energy-efficient products, now extends to cover new homes and commercial and industrial buildings. To qualify, a commercial building or manufacturing plant must score at least 75 percent or better. Performance is compared against other, similar types of facilities as rated on a scale of 1-100.

What’s Driving Green Leases?

The current political, economic and cultural climate has prompted the green lease movement, including factors such as: • Newly enacted building regulations requiring more energy-efficiency; • “Green” tenants seeking “green” leases; • Corporate social responsibility policies and “climate governance;” and • Anticipation of new legislation,

especially the President’s carbon reduction plan.

Moreover, many are realizing the environmental impact of office buildings. In this country alone, office buildings account for 72 percent of electricity consumption and 39 percent of energy use, as well as 14 percent of potable water consumption.

Lease Provisions

Landlord. Commercial landlords and tenants will each have their own concerns. Landlords will want flexibility in maintaining their certification/rating level throughout the lease term, including by revising their rules to conform to changes (e.g. in certification standards).

They will also want the ability to recover costs to maintain that certification status, and assurance that the tenant’s buildout and operations conform to, and do not harm, the building’s sustainability efforts and certification. Landlords may also wish to address their rights of access needed to ensure these terms.

Tenant. While landlords desire flexibility, tenants will want the green agenda to be specified in the lease, with specific sustainability goals. Tenants will want to ensure delivery and maintenance of the specified standard, for the term of the lease, as well as remedies for failure to do so, and mechanisms for measuring compliance. They will also quite possibly want to limit the landlord’s reimbursement for “green” expenditures.

Certification and Operations. The lease should include acknowledgment that the landlord’s operations and building are consistent with sustainability practices, and that the tenant must com-

ply therewith.

Term and Expiration. Lease terms over ten years are favored under LEED as conserving resources (think moving and tenant improvements). And what will tenant be required to do upon expiration or earlier termination as to removal, demolition and/or recycling of its improvements?

Gross vs. Net Expenses. A gross lease builds operating expenses into the rent.

These landlords can increase net operating income by “going green”—i.e. by reducing operating costs. But landlords with net leases will want to pass along the costs of certification and of following their sustainability practices.

Electricity Consumption. Submetering utilities encourages tenants to save energy, by such means as installing Energy Star equipment or by installing motion sensors or daylight controls.

These tenants will want energy record audit rights.

Tenant’s Maintenance. Include provisions to ensure that the tenant’s maintenance and repair activities comport with the landlord’s sustainability practices, and with any established standard (e.g., LEED Platinum).

Most current commercial office leases lack serious incentives for either party to act in an environmentally-sustainable manner. But as the political, economic and cultural climate continues to evolve to make sustainable practices mandates, or at least more accepted, green leases will become more the norm than the exception. HN Christy L. Fields is a real estate attorney with Powell Coleman & Arnold LLP and can be reached at cfields@pcallp.com.

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Jan u a ry 2 0 1 0

Dal l as Bar A ssoci ati on l Headnotes 13

A Late Notice Must Be Prejudicial to Deny Coverage

By Lyndon F. Bittle and Dena DeNooyer Stroh

T

o trigger the insurer’s duty to defend and/or indemnify, insurance policies require the policyholder to give the insurer notice of a claim, loss, or occurrence within a specified time period, or within a time frame described as “promptly,” “as soon as practicable,” or the like. Whether an insured timely complied with a notice requirement is a frequently-litigated issue, which often turns on whether the insurer has to show prejudice caused by late notice to escape liability. The Texas Supreme Court has recently reversed long-standing Texas law on this issue.

Based partly on a question certified from the Fifth Circuit, the Texas Supreme Court recently addressed whether an insurer must show prejudice to deny payment on a claims-made policy where notice was not made as soon as practicable, but was given within the period specified by the policy. In 2003, the Fifth Circuit confidently answered that question under Texas law: no prejudice was required, based on a fundamental difference between occurrence policies and claims-made policies, and on a strict construction of the latter’s “condition precedent” language. By 2007, in XL Specialty

Insurance Co. v. Financial Industries Corp., the Fifth Circuit was less confident in its assessment of Texas law, indicating that it was hesitant “to follow [its own] precedent in light of four related cases” pending before the Texas Supreme Court.

Before answering the certified question in XL Specialty, the Texas Supreme Court issued PAJ, Inc. v. Hanover Insurance Co., 243 S.W.3d 630 (Tex. 2008), holding that a policyholder’s failure to provide notice of an advertising injury claim “as soon as practicable” under an occurrence policy, absent proof that the late notice prejudiced the insurer, “does not deprive the insurer of the benefit of the bargain and thus cannot relieve the insurer of the contractual coverage obligation.” Foreshadowing its answer to the XL Specialty question, the Court relied on an earlier case, Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691 (Tex. 1994) whose approach had been described by the Fifth Circuit as consistent with a “modern trend in favor of requiring proof of prejudice.”

Then, in two cases decided on the same day in 2009, the Texas Supreme Court committed Texas firmly to the position that prejudice is required to avoid coverage on late notice grounds unless the notice came after a specific

Become Part of the Solution continued from page 1

Dallas and ask them for a contribution to the campaign. The Campaign is also sponsoring the Sewell Choice Raffle to raise additional funds for the Dallas Volunteer Attorney Program. This year’s grand prize is the winner’s choice of one of three cars from Sewell—an Infiniti G37 Sedan, Lexus IS350 and Cadillac CTS. Runner-up will receive, compliments of Neiman Marcus, a $1,000 Neiman Marcus Gift Card, lunch for four at the NM Café and a Custom Natura Bisse Gift Basket. Second runner up receives, from Bachendorf’s, a Bachendorf’s watch. Raffle tickets are $100 apiece, or six for $500, and are available for purchase at the Dallas Bar Association’s business office or online at www.dallasbar.org/dvap/raffle.asp until noon on Friday, January 22, or at the inaugural ball at 6:00 p.m. on January 23. No more than 1,500 raffle tickets will be sold. The raffle drawing will be held at the inaugural on January 23,

and raffle ticket purchasers need not be present to win.

Additional volunteers who have graciously supported the campaigns telephone banks and raffle ticket sales include Mandy Childs, 2009 DBA President Christina Melton Crain, Diane Couchman, John Thomas Hayes, Barkley Miller, Vynessa Nemunaitis and the entire Dallas Volunteer Attorney Program (DVAP) staff.

DVAP recruits, trains and supports pro bono attorneys in providing free, civil legal aid to the poor in Dallas. The program’s services are provided to lowincome residents who meet financial eligibility guidelines. To receive legal services, the gross annual income of a family of four must be less than $27,563.

There are an estimated 1.2 million people living in poverty in the Dallas/ Fort Worth area. Volunteers and staff work very hard to serve those who need access to the justice system, but more help is needed.

date required by the policy – modifying what had previously been accepted as the state’s well-settled law. In Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance Co., 288 S.W.3d 374 (Tex. 2009), the Supreme Court held that the “as soon as practicable” provision was not a material part of the bargainedfor exchange under the claims-made policy. Thus the insurer was not prejudiced by the delay in receiving notice and could not deny coverage based on Prodigy’s alleged failure to provide notice as soon as practicable. The Court noted that the policy’s explicit requirement of notice within the policy period could be enforced without showing prejudice, although that requirement had not been breached in that case. In Financial Industries Corp. v. XL Specialty Insurance Co., 285 S.W.3d 877 (Tex. 2009), the Texas Supreme Court answered the Fifth Circuit’s certified question and applied the rule it had adopted in Prodigy to a claimsmade policy with no specified reporting period other than “as soon as practicable.” The Court held that the insured’s immaterial breach of the policy’s prompt notice provision did not deny the insurer the benefit of the claims-made nature of its policy, and therefore did not justify a denial of coverage.

Volunteers can interview clients at any of the program’s 10 monthly Neighborhood Legal Clinics or represent DVAP clients in bankruptcy, consumer, family, benefits, landlord-tenant, housing, will and probate cases. DVAP volunteer receive malpractice insurance, free CLE, and mentoring through the program.

The Dallas Bar Association and Legal Aid of NorthWest Texas are proud and appreciative of all the lawyers and

The Fifth Circuit has since extended this analysis in East Texas Medical Center Regional Healthcare System v. Lexington Insurance Co., 575 F.3d 520 (5th Cir. 2009), which held (applying Prodigy and XL Specialty) that the insurer was required to show prejudice from notice of a lawsuit given nearly seven months after the policy period where the policy did “not establish a particular number of days within which all claims must be reported,” but simply required notice as soon as practicable. The Fifth Circuit also held that, to avoid coverage, the insurer would have to show it was prejudiced by the insured’s breach of a requirement to “immediately” forward litigation papers.

The modern trend in Texas and across the country requires an insurer to be prejudiced before disclaiming coverage when its policyholder provides late notice of a claim. Ultimately, this trend will help policyholders retain coverage despite HN minor breaches of their policies.

Lyndon F. Bittle and Dena DeNooyer Stroh are litigation partners in Carrington, Coleman, Sloman & Blumenthal, LLP, whose business litigation practice includes insurance coverage matters, primarily representing policyholders. Mr. Bittle is chair of the firm’s insurance practice, and Ms. Stroh co-chairs the insurance practice. They can be contacted at lbittle@ccsb. com and dstroh@ccsb.com, respectively.

legal professionals who have contributed to the success of these programs over the years, again demonstrating the legal profession’s strong commitment to community service and helping those in need.

For more information on how to donate to the Campaign or to volunteer for the Dallas Volunteer Attorney Program, contact Alicia Hernandez at ahernandez @dallasbar.org or 214-220-7499. HN Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services.

Campaign for Equal Access to Justice The Dallas Bar Association and Legal Aid of NorthWest Texas thank the following donors for their support of pro bono legal services to the poor in Dallas. Their significant contributions will benefit the Dallas Volunteer Attorney Program.

PRESIDENT’S CIRCLE

Hon. Deborah G. Hankinson • Payne Mitchell Law Group Shore Chan Bragalone LLP • Anonymous Donor

PATRON LEVEL

Koons, Fuller, Vanden Eykel & Robertson, P.C.

PLATINUM LEVEL

AT&T • DBA Business Litigation Section • Exxon Mobil Corp. • Jones Day McKool Smith, P.C. • Thompson & Knight Foundation GOLD LEVEL Akin Gump Strauss Hauer & Feld LLP * Baker Botts, LLP * Baron & Budd, P.C. * Bruneman, Lake, Griffin & Westhoff, PLLC * Carrington, Coleman, Sloman & Blumenthal, L.L.P * Crain Lewis, LLP * DBA Construction Section * DBA Family Law Section * DBA Intellectual Property Section * DBA Probate Section * Diamond Apgar Attorneys * Fulbright & Jaworski L.L.P. * Haynes and Boone, LLP * Hon. R. T. Scales * Jackson Walker L.L.P. * K&L Gates * Locke Lord Bissell & Liddell, LLP * Patton Boggs LLP * Sayles Werbner, P.C. * Waters and Kraus, L.L.P.

SILVER LEVEL

A.H. Belo Corporation * Andrews Kurth LLP * Bracewell & Giuliani LLP * Bruegger & McCullough, P.C. * Dallas Association of Young Lawyers * DBA Appellate Law Section * DBA Mergers & Acquisition Section * DBA Real Property Section * DBA Securities Section * DBA Tort & Insurance Practice Section * David W. Elrod * Drew F. Nachowiak * J. Mark Hollingsworth * Joel K. B. Winful * John & Jackie McElhaney * Robert Edwin Davis * Simon, Eddins & Greenstone Llp * Vinson & Elkins LLP * Zelle, Hofmann, Voelbel & Mason LLP.*

As of 12/18/09. To make your contribution, please visit www.dallasbar.org/dvap.

14 H e a d n o t e s l D a l l a s B a r A ss ociation

In the News

January 2010

January

FROM THE DAIS

Judge Jay E. Robinson of the City of Dallas Municipal Court, spoke to the Municipal Justice Bar Association of Dallas on “Does the Complaint Warrant a Warrant?It’s Probably Cause for Discussion”.

Mitchell S. Milby of Clark & Milby, PLLC, gave a course on Construction Contracts and Specifications to the Department of Civil Engineering at the University of Texas-Arlington.

Eugene Flynn, of Eugene J. Flynn, P.C. was the discussion leader on “Immigration/Open Borders” at the Dallas Libertarians Meetup Group.

Marcos G. Ronquillo, of Godwin Ronquillo PC, was a panelist on the topic “Cowboys, Community and Commerce – Spurring Diversity,” at the American Contract Compliance Association’s 23rd National Training Institute.

Howard L. Gilberg of Guida, Slavich & Flores, P.C. presented “DFW Business Risks and Rewards” at the North Texas Clean Air Coalition’s Operation Clean Air program, and presented “Municipal Setting Designations: Allocation and Resolution of Environmental Risk in Real Property Transactions” to the State Bar of Texas 31st Annual Advanced Real Estate Law Course.

Carl Butzer of Jackson Walker LLP, spoke at the New York State Bar Association Intellectual Property Law Section on “Creating the Future of IP Law”. Mary Emma Karam of the firm spoke American Academy of Physical Medicine & Rehabilitation’s 2009 Annual Assembly & Technical Exhibition on “Preparing to Enter Practice – Negotiating Contracts.”

Wayne Malecha spoke at a national conference of State Farm Insurance agents on “You Protect Others, But Are You Protected?” and Paul C. Watler spoke to the Harris County civil district judges on “Free Flow of Information Act”.

Jeff Drummond of Jackson Walker L.L.P. spoke at the State Bar’s Texas Health Law Conference on “New and Improved Privacy: The HITECH Changes to HIPAA and the FDA Red Flags Rule.”. Byron F. Egan of the firm spoke at the Penn State 6th Annual Institute on Corporate, Securities, and Related Aspects of Mergers and Acquisitions conference on “Private Company Acquisition: A Mock Negotiation”. Wayne Malecha spoke at a national conference of State Farm Insurance on “You Protect Others, But Are You Protected?” and Ashley Scheer spoke at the 68th Annual HR Southwest Conference on “ADA: The Art of Accommodating”.

Carl Butzer of Jackson Walker L.L.P. spoke at the New York State Bar Association Intellectual Property Law Section’s Fall Meeting, on “Creating the Future of IP Law”. Byron Eagan of the firm spoke twice at the American Bar Association’s 14th Annual National Institute on Negotiating Business Acquisitions and Katherine Staton co-chaired the International Aviation Womens Association’s (IAWA) 21st Annual Conference, Rendez-Vous in the EU: A New Era of Cooperation.

Susan Jordan of Jordan Law spoke at HealthTexas Provider Network’s New Physician On-Board Training on “Survivor Texas: How to Avoid and Respond to Complaints to the Texas Medical Board”.

Earl F. Hale Jr., Melinda G. Jayson of Melinda G. Jayson, P.C., James J. Juneau of Juneau, Boll, Stacy & Ucherek, Cecila H. Morgan of JAMS, Robert C. Prather, Sr. of Snell, Wylie & Tibbals, and William

B. Short, Jr. of Coats Rose P.C. were speakers at the State Bar of Texas ADR Section “Arbitrator’s Roundtable” in Fort Worth.

Allen J. Dickey of Munsch Hardt Kopf & Harr, P.C. spoke at the 43rd Annual William W. Gibson, Jr. Mortgage Lending Institute in Austin on “Securitized Loan Workouts”. Mark D. Downey of the firm presented at a webinar hosted by EthicsPoint on “Not Just Another Day At The Office: Recent Changes in the Law Affecting the Workplace.” D. Ronald Reneker spoke on “The Trial Notebook: Still Useful in the 21st Century” at a seminar at the University of Houston and Robert H. Voelker discussed fair housing issues while a panelist at the annual Texas Association of Affordable Housing Providers annual conference.

Richard Wilhelm spoke on “Operations in a Downturned Economy” at the North Texas Apartment Owners Breakfast.

Jerry Selinger of Patterson & Sheridan, LLP presented “ Update on Bilski v. Kappos” at the Fall 2009 Meeting of the Tennessee Intelectual Property Law Association.

Chad Ruback, of The Ruback Law Firm, spoke on “Appellate Issues in Workers’ Comp Cases” at a recent seminar sponsored by Workers’ Comp Publications.

Sally C. Helppie of Tipton Jones spoke about financing film properties at the 19th annual Texas Entertainment Institute and spoke at the Austin Film Festival.

Linda Wilkins of Wilkins Law Group, P.C. spoke on “The Evolving Role of the Compensation Committee” at The Boardroom Connection.

KUDOS

Lisa Blue and her late husband Fred Baron of Baron & Blue have been awarded the 2009 J. Chrys Dougherty Good Apple Award by Texas Appleseed.

Craig A. Woodcook of Ben E. Keith Company, has been selected to head the Chairman’s Task Force for the State Fair of Texas.

John P. Baker of Burford & Ryburn, L.L.P. has been named a Fellow of the Texas Bar Foundation.

Sally Longroy and Diane Sumoski of Carrington, Coleman, Sloman & Blumenthal, L.L.P., have been named to new leadership positions in the Section of Litigation of the American Bar Association. Longroy was appointed as a Director of Division II of the Section of Litigation and Sumoski has been named Chair of the Special Committee on MultiDistrict Litigation.

Jim Chester of Cowles & Thompson, PC has been named a Fellow of the Texas Bar Foundation.

Christina Melton Crain has been named

by Texas Lieutenant Governor David Dewhurst as a public member to the Texas Public Transportation Advisory Committee.

Cynthia M. Stamer at Curran Tomko Tarski LLP has been named Chair of the Employee Benefit Plans and Other Compensation Arrangements Group of the ABA’s Real Property Trust & Estates Section.

Judge King Fifer of Dallas County Court at Law 2 has been honored with 2009 ABOTA Trial Judge of the Year Award.

Tollie (Nick) Nicholas Jr. and Philip P. Romero of Downs Stanford, P.C., have coauthored an article entitled “The Trouble

With The Acts of God Defense in Texas” published on the website of The Insurance Journal, August 2009. Laura D. Schmidt of the firm has been named Co-Chair of the National Association of Subrogation Professionals’ 2011 Annual Conference.

Barbara Elias-Perciful, Director of Texas Lawyers for Children, has received the American Bar Association’s 2009 Child Advocacy Award for her service on behalf of abused and neglected children.

Liza Farrow-Gillespie of Farrow-Gillespie & Heath, LLP has been named to the editorial board of the NAELA Journal, published by the National Academy of Elder Law Attorneys.

Marcos G. Ronquillo, of Godwin Ronquillo PC, has been selected to receive the 2009 President’s Award from the Dallas Hispanic Bar Association.

Joseph F. Coniglio, of Greenberg Traurig, LLP, has been elected to membership in the Fellows of the Texas Bar Foundation.

G. Michael Gruber, of Gruber Hurst Johansen & Hail, received the 2009 Foundation Award of Excellence from the Dallas Association of Young Lawyers Foundation.

Rafael Anchia of Haynes and Boone, LLP, has received The Institute of Human Relations Award presented by the American Jewish Committee and also is the recipient of the 2009 Mexican American Legal Defense and Educational Fund Matt Garcia Public Service Award .

Danika Mendrygal of the firm has been elected to the board of directors for the North Texas Chapter of the Partnership for Philanthropic Planning abd Purvi J. Patel has been elected chair of the International Trademark Association’s Young Practitioners Committee Ken Riney, of Hermes Sargent Bates, L.L.P., was awarded the Texas Young Lawyers Association’s President’s Award of Merit.

Mark A. Melton of Hunton & Williams LLP has been selected by the Dallas Junior Chamber of Commerce as one of the 2009 “Five Outstanding Young Dallasites.

Angel Reyes III, of Reyes Bartolomei Browne, was awarded the 2009 Quality & Excellence Entrepreneur Pacesetter award by The Greater Dallas Hispanic Chamber of Commerce.

Sonya Hoskins with Robinson & Hoskins, L.L.P. received the 2009 Chairman’s Award for Volunteer of the Year from the Dallas Black Chamber of Commerce.

Don Swaim of Rose•Walker, L.L.P., has been named to the Texas chapter of the American Board of Trial Advocates.

Lisa Songy of Shannon, Gracey, Ratliff & Miller, LLP, has been elected to the Council of the Insurance Section of the State Bar of Texas.

Sidney Powell of Sidney Powell, P.C., has been elected a Fellow of the Litigation Counsel of America.

David J. Maldonado of Special Counsel, Inc. has been selected to serve as Region XII President of the Hispanic National Bar Association.

Earsa Jackson of Strasburger & Price, LLP has been appointed director of the ABA Forum on Franchising Litigation and Dispute Resolution Division. Gary Lawson of the firm has been awarded the American Airlines Veterans Initiatives 2009 Community Citizenship Award. Richard D. Rafferty has been selected for Dallas Theater Center’s Board of Trustees and Robert J. Witte has been named as one of the 2009 Ten Outstanding Young Americans by The United States Junior Chamber (Jaycees).

Greg W. Curry with Thompson & Knight LLP, has been elected President of the Texas Association of Defense Counsel. Scott Stolley of the firm has been named a Fellow of the American Academy of Appellate Lawyers.

Yvette Ostolaza of Weil, Gotshal & Manges LLP was selected by the Dallas Women Lawyers Association (DWLA) as the 2009 Louise B. Raggio Award recipient.

ON THE MOVE

Fred J. Meier has joined Carstens & Cahoon, LLP as a partner.

James D. Jordan, of Jackson Walker L.L.P, has published a new book titled “Double Cross”. Russ Meyer, with the firm, has been appointed Chairman of the State Bar of Texas Court Rules Committee for its 2009-2010 term and Kurt Schwarz has been accepted to participate in Leadership Dallas for the 2009-2010 class.

Erin Bogdanowicz has joined Cordell & Cordell as an associate.

Michele Wong Krause of The Wong Krause Law Firm, received the 2009 Award for Outstanding Contributions in Professional Services from the Greater Dallas Asian American Chamber of Commerce.

Jack Ormond is the Assistant DA in the Collin County District Attorney’s office.

Charles W. Sartain, with Looper Reed & McGraw, was appointed to the Texas Independent Producers and Royalty Owners Association Sunset Task Force.

Allyson N. Ho, with Morgan Lewis & Bockius LLP, has been elected to membership in the American Law Institute James C. Ho of the Office of the Solicitor General of Texas, received the 2009 Presidential Award for outstanding service by the National Asian Pacific American Bar Association Lawrence G. Newman has published a book titled “The Complete Guide to Nonprofit Corporations”.

Paul M. Jolas with Regency Energy Partners has been elected Chief Legal Officer.

George A. “Tony” Mallers has joined Cowles & Thompson, P.C., as shareholder.

Molly Steele has joined the Louisiana firm of Curry & Friend, PLC.

Gil L. Daley, II, of The Law Office of Gil L. Daley, II, PC has moved to 325 N. St. Paul Street, Ste. 2550, Dallas 7520. phone: 214.698.5988.

Peter A. Franklin, Melissa S. Hayward, Erin Lovall, and Doug Skierski have openned a new law firm, Franklin Skierski Lovall Hayward LLP located at 10501 N. Central Expry.,Suite 106, Dallas, TX 75231. Phone: (972) 755-7104.

Alan F. Arnold and Soña J. Garcia have joined Gordon & Rees, LLP as Associates. Margaret R. Mead has joined the firm as Senior Counsel and Andrew L. Wallace has joined as a Partner.

Mugdha Kelkar, Peter Lacina, and Carolyn Mitchell have joined Greenberg Traurig, LLP as associates.

Matthew Acosta and Chalene M. Wandrisco have joined Jackson Walker L.L.P. as associates.

Jan u a ry 2 0 1 0

Classifieds

Dal l as Bar A ssoci ati on l Headnotes 15

January

OFFICE SPACE

Three offices available upstairs and 2 offices available downstairs with a secretarial area available downstairs as well.

Historic West End building in downtown Dallas is over 100 years old (was first city jail) and has been renovated and is charming. The offices can rent individually or as a package. Contact Sarah Brown, Craig Miley or Tonya Spears at 214.692.8800 or sarah@mileybrown.com or craig@mileybrown.com.

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. Three offices available with very nice secretarial stations. Negotiable. Call Kay 214-761-6463.

Office Space Available: 6060 N. Central.

Seeking attorney with portable practice to sublease office (13.5’ x 14.5’). Conference room, high speed internet access, fax, copier, kitchen, free parking, possibility of referrals. Contact Rob @ 214.528.6040.

Lovers Lane Office Near Tollway. One (1) or two (2) offices available. Includes parking, conference room, kitchen, copier, fax and telephone answering. Downtown courthouses approximately ten (10) minutes away. Please call 214.953.1560.

DALLAS/BRYAN PLACE—Office Space for lease, purchase or lease to purchase, up to 3,500 square feet in 2-story Victorian house at 3000 San Jacinto Street. Call Ken Fuqua 214-828-1900.

Walnut Glen Tower (Walnut Hill/Central) Beautiful, new, spacious offices in Class A building with views of down-

town 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.

Please call (214) 750-1600 for details.

Two offices available for rent in our historic West End building with a secretarial area available as well. Each of the two offices rent at $650 each and the secretarial area would be an additional $500.

The two offices can rent individually or as a package. Contact Craig Miley at 214692-8800 or craig@mileybrown.com.

Up to 5,000 square feet of office space @ Lincoln Centre for lease. Includes use of three conference rooms, receptionist, telephone system, copiers, fax and high-speed internet. Call: Lydia @ 972-458-5350 or email: lwitherspoon@stromberglawfirm. com.

Northpark/Central Expwy—Law firm has two offices for sublease in Class A building. Best views in town overlooking downtown and Park Cities. Great location with excellent finish out, elevator exposure and easy access to/from Central Expwy. Includes use of large conference room, secretarial space and kitchen.

High-speed DSL, telephones, copier/ scanner and on-site storage also available. Call 214-292-4202.

Great furnished sublease opportunity in newly constructed Saint Ann Court at 2501 No. Harwood for 2,000 to 3,300 RSF, including 7 exterior offices. This space will be available on January 1, 2010

2010 Pictorial Photo Shoot The DBA Pictorial Photographer is coming to take photos for the 2010 DBA Member Directory on:

Thursday, Jan. 7 9 a.m. to 3 p.m. at the Belo Friday, Jan. 8

and will be competitively priced. This is 1st generation space in Uptown and has Elevator Lobby exposure with a Double Glass Door entrance. It is highly finished space with unobstructed views on the 18th floor. For information contact Ed Nash or Bill Zei at McLeod-Zei Commercial Real Estate Advisors at 214-523-9093, enash@ mcleodzei.com or bzei@mcleodzei.com.

file cabinets, internet, phone, fax and covered parking. Call (214) 468-3022.

Luxurious Office Space for Rent/Sublease in an Law Firm at the Urban Towers of Las Colinas. Currently available 2 (12X10) Offices, 1 (12X11) Office and 3 standard size cubicles, Secured Parking, Onsite Gym, Beautifully furnished offices, 2 Large conference rooms, Use of Receptionist and phone system. They do not have to be rented or subleased together. This is a must see!! Please call for an appointment. Melody Downs 972432-9400 or mdowns@brewerlegal.com.

Hidden in the shadow of CityPlace.

For Lease ±3,000 ft. second floor, 4225 Office Parkway, two blocks east of Central, one block north of Haskell. Recently remodeled. $12.75 full serve + 40% electric. Some covered parking, nice reception, conference and kitchen. 972367-6540 or 972 367-6527 or pbogner@ stoneeagle.com.

POSITION AVAILABLE

Partner-Level Commercial Litigator.

Dallas real estate law boutique, consisting of transactional lawyers with large-law firm experience, is seeking a partner-level commercial litigator with real estate, creditor’s rights and/or bankruptcy experience. We are interested in candidates with a minimum of 8 years experience and a self-supporting book of portable business. Office sharing and other alternative arrangements may be considered. Please send your resume to dallasrealestatelaw@yahoo.com.

Executive suites. All amenities bundled at one reasonable rate including conference, kitchen, high-speed Internet, T-1 phone rates, internet fax, receptionist, 24/7 HVAC, 24/7 access, etc. Beautiful garden building in Richardson directly at the DART stop near 75 Central and Spring Valley. Current tenant roster is largely attorneys. 972-367-6540 or 972367-6527. pbogner@stoneeagle.com.

Turtle Creek law firm seeks experienced business litigation attorney with minimum 3 years civil litigation experience, including first chair trial experience; compensation negotiable and competitive. Respond to Dallas Bar Association, Box 01-10B, 2101 Ross Ave., Dallas, TX 75201.

DALLAS OFFICE SPACE. Bilingual receptionist, Conference Room, Kitchen, etc. Location is convenient to all Dallas Court and Traffic arteries.

Please call 214-696-9253 for a tour.

Office Space near old downtown Plano and Collin Creek Mall. One block East of Central Expressway (75). Prime first floor location, 2 offices available. Sizes available: 244 sq. ft and 179 sq. ft. Practice in a relaxed yet professional environment which includes conference rooms, kitchen, DSL and reception area. Lots of accessible visitor parking. Call 972-4222424 for details.

POSITION WANTED

Summary Judgment and Motion Assistance. Top 15% of class, law review, verdicts in state and federal courts, 16 years’ experience. Specializing in motions and complex legal research. $120/hour. Writing samples provided upon request. Inquiries: petersmythe@federalappeals.net.

SERVICES

North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas.

One office (approx. 13.5 x 13.5) with builtin mahogany secretarial carrel (located in outer office area). Access to three conference rooms, copier, postage meter and two kitchens. Receptionist services available.

Please call Kristi at 972-934-4100.

MEXICAN LAW EXPERT—Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues - forum non conveniens, Mexican claims/defenses, personal injury, moral damages, Mexican contract law.

Co-author, leading treatise in field. J.D., Harvard Law. David Lopez 210-2229494 / dlopez@pulmanlaw.com.

Uptown at the Quadrangle. Business Litigation law firm located at the Quadrangle has available office and secretarial area.

Includes use of conference rooms, copier,

CLASSIFIED ADVERTISING WORKS! For great results, call now to place your ad: (214) 220-7452.

11 a.m. to 2 p.m. at the North Dallas CLE

IRS REPRESENTATION

You Are Invited — Judicial Investiture —

Justice Carolyn Wright Fifth District Court of Appeals Monday, January 4, 2010 3:30 p.m. at the Belo Mansion

est

1990

current

Reception to follow.

IRS TAX PREPARATION

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delinquent n corporate n personal payroll taxes n irs audits

(972) 385-8182

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(877) 590-2500

16 H e a d n o t e s l D a l l a s B a r A ss ociationâ€

January 2010