State court rejects child molester’s appeal

State appeals court affirms, again, Solano juvenile murder conviction

FAIRFIELD — The 1st Appellate District of the state Court of Appeals this week affirmed that Latasha Brown does not have the right to a juvenile court transfer hearing under a state law enacted 10 years after the California Supreme Court had already refused to hear a separate appeal of her conviction. Brown had filed a […]

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Trump seeks more time to consider appeal in biofuel waiver case

Appeals court upholds ruling Trump cannot block critics on Twitter

NEW YORK — The 2nd Circuit Court of Appeals upheld its decision Monday that President Donald Trump cannot block critics on Twitter, rejecting his long-shot bid to reargue the case. Trump had asked for a nine-judge panel to reconsider the ruling. A majority rejected that bid. Judge Barrington Parker, writing for the majority, said Trump’s […]

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Once More, With Feeling: Business Entities Must be Represented in Court by a Licensed Attorney

Once More, With Feeling: Business Entities Must be Represented in Court by a Licensed Attorney

Originally published by Carrington Coleman.

R2Go Transport LLC a/k/a Ready 2 Go Transport LLC v. Xellex Corp.
Dallas Court of Appeals, No. 05-19-01246-CV (March 18, 2020)
Chief Justice Burns (Opinion, linked here), and Justices Molberg and Nowell
Ken Carroll

The Dallas Court of Appeals reminded us today that business entities in the State of Texas cannot appear in court pro se or through non-lawyer employees or members. Generally, except for the performance of ministerial tasks (like posting bond), only a licensed attorney may represent a business entity in a Texas court. The rule originated with respect to corporations in Kunstoplast of America, Inc. v. Formosa Plastics Corp., U.S.A., 937 S.W.2d 455 (Tex. 1996). It now extends to virtually all “fictional legal [business] entities,” including partnerships and limited liability companies. See, e.g., Sherman v. Boston, 486 S.W.3d 88, 95-96 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). “Allowing a non-attorney to present a company’s claim would permit the unlicensed practice of law.” Id. (trial evidence presented for LLC by non-lawyer “had no legal effect” and was “legally insufficient to support a judgment”). The rule applies in all courts, trial and appellate—other than small claims courts, for which there is an express statutory exception. Tex. Gov’t Code § 28.003(e) (“A corporation need not be represented by an attorney in small claims court.”).

Here, R2Go’s counsel was allowed to withdraw from the appeal. When the LLC did not obtain replacement counsel, despite having been warned and ordered to do so, the Dallas Court dismissed its appeal, because it could not proceed with its appeal without being represented by a licensed attorney.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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In A Venue Dispute, Court Held That A Personal Injury Claim Against An Estate Representative Could Be Filed In The County Where The Estate Was Pending

Originally published by David Fowler Johnson.

In UPS Ground Freight, Inc. v. Trotter, parties filed claims against an estate representative based on a car accident in the county where the estate was being administered. No. 12-19-00135-CV, 2020 Tex. App. LEXIS 1127 (Tex. App.—Tyler February 10, 2020, no pet. history). A defendant, employer of the decedent, moved to transfer venue to the county where the accident happened. The trial court denied the motion to transfer, and the defendant filed an appeal.

The independent administrator alleged that venue was proper pursuant to Texas Civil Practice and Remedies Code Section 15.031 because the estate was being administered in that county. The defendant argued that Section 15.031 did not apply because the suit was not one against the administrator “as such, to establish a money demand” against the estate. They contended that the statute limits its applicability to suits involving a claim for a fixed, liquidated sum, and the plaintiffs sought an undetermined amount of personal injury damages.

The court of appeals noted that the term “money demand” was not defined by the statute. It held: “Venue statutes dictating permissible counties in which to sue an administrator of an estate must be read in conjunction with Texas Estates Code provisions regarding procedures for pursuing claims against an estate.” Id. The court noted that the Texas Estates Code defines “claims” as liabilities of a decedent that survive the decedent’s death, regardless of whether the liabilities arise in contract or tort or otherwise. Id. (citing Tex. Est. Code Ann. § 22.005(1)).

The court then discussed the claims process for estate administration. In light of this framework, the court looked to the Texas Civil Practice And Remedies Code to determine the proper county in which the plaintiffs could file suit against the estate administrator for their alleged personal injury damages. The court held:

Pursuant to Section 15.031, a suit against an estate administrator, in her capacity as administrator, to establish a money demand against the estate which she represents, may be brought in the county in which the estate is being administered. A suit for personal injury damages caused by the alleged negligence of the decedent is a suit for unliquidated damages. A suit for personal injury damages against the estate administrator is a “suit to establish a money demand” because the result is that the unliquidated demand is reduced by judgment to a liquidated amount. Therefore, Appellees were entitled to file their personal injury lawsuit against McElduff, as estate administrator, in Rusk County, where Clark’s estate is being administered to establish a money demand.

Id. (internal citations omitted).

The court noted that venue was not exclusive, and that the plaintiffs could have filed suit in the county where the accident occurred. The court also noted: “Because Appellees’ claims against the administrator and Appellants arise out of the same transaction, occurrence, or series of transactions or occurrences, venue in Rusk County is also established as to Appellants.” Id. The court affirmed the trial court’s order denying the motion to transfer venue.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Texas Supreme Court coronavirus update

Originally published by Staff Report.

Editor’s Note: The Texas Supreme Court issued the following advisory.

Chief Justice Nathan L. Hecht ordered the Supreme Court Building indefinitely closed to the public Wednesday in expanding efforts to thwart spread of COVID-19. The State Preservation Board also closed the adjacent Capitol complex.

Under an order issued late Tuesday the Texas Supreme Court emphasized that court-ordered child-custody schedules following school calendars shall follow the original school schedule as published even as so many schools close to constrain the developing coronavirus pandemic.

“Possession and access shall not be affected by the school’s closure that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic,” the order clarified. But parties were not barred by the order from altering a possession schedule by agreement if allowed by the foundational court order, or courts from modifying their orders.

The latest order follows one Monday that postponed four cases set for oral argument March 25 in Austin. The Court last week canceled oral argument set for April 9 in El Paso.

The Supreme Court has issued two other orders and joined with the Texas Court of Criminal Appeals in one to address potential judicial ramifications from the coronavirus threat in Texas.

In efforts to protect court participants and court staff because of coronavirus concerns, the Supreme Court and Court of Criminal Appeals issued a joint emergency order that clears the way for video- and teleconference proceedings and to postpone deadlines affecting cases.

The order follows Gov. Greg Abbott’s statewide disaster declaration and runs no later than 30 days after the governor’s disaster order ends.

The joint order follows two others by Chief Justice Nathan L. Hecht assigning district and court of appeals judges to hear enforcement cases challenging involuntary quarantines. Both were issued under emergency powers in the Texas Health and Safety Code for controlling infectious disease.

Under the order, state courts may modify or suspend any and all deadlines and procedures, “whether prescribed by statute, rule, or order,” and may extend limitations statutes in any civil case. Court proceedings may be conducted outside a court’s usual location in the venue county but must provide reasonable notice and access to the participants and the public. Any such modifications and limitations may be discretionary and without a participant’s consent but are required when “risk to court staff, parties, attorneys, jurors and the public” exists.

In court proceedings, sworn statements made out of court or sworn testimony given remotely, such as by teleconferencing, videoconferencing or other means, may be considered as evidence. The order allows anyone involved in any hearing, deposition, or other proceeding of any kind – “including but not limited to a party, attorney, witness, or court reporter, but not including a juror” – to participate remotely.

The order notes that its provisions are subject only to constitutional limitations.

The order also:

  • Requires every participant in a proceeding to alert the court if the participant has, or knows of another participant who has, COVID-19 or flu-like symptoms, or a fever, cough or sneezing and that courts take any other reasonable action to avoid exposing court proceedings to the threat of COVID-19.
  • Take any other reasonable action to avoid exposing court proceedings to the threat of COVID-19.

On March 6 the Supreme Court issued a first order assigning 31 district judges to hear cases involving involuntary quarantines outside their judicial administrative regions and followed that March 13 by assigning 21 Texas appeals court judges to hear appeals in any court-of-appeals district from involuntary quarantine cases.

No challenges to ordered quarantines had been reported by March 16.

The joint emergency order runs until May 8, unless extended by the chief justice. Both judicial-assignment orders are scheduled to end September 30.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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What Is Past Is Prologue: The Ninth Circuit Again Rules That Prior Salary Cannot Justify Pay Differences

What Is Past Is Prologue: The Ninth Circuit Again Rules That Prior Salary Cannot Justify Pay Differences

Originally published by Seyfarth Shaw LLP.

By Christine Hendrickson and Nolan R.Theurer

Seyfarth Synopsis: The Ninth Circuit, in an en banc decision following remand from the Supreme Court, held that employers cannot justify pay disparities under the federal Equal Pay Act by showing that those disparities are based on employees’ past earnings. We hope you will join Seyfarth’s Pay Equity Group for an Equal Pay Day 2020 webinar on March 31, 2020, to discuss this case and more about the current state of pay equity law. You can register for the webinar here.

On Thursday, February 27, 2020, the Ninth Circuit, sitting en banc, issued a decision in Rizo v. Yovino, holding the prior salary cannot be used as a “factor other than sex” to justify pay differences under the federal Equal Pay Act. The ruling tracks the earlier Ninth Circuit opinion written by late U.S. Circuit Judge Stephen Reinhardt, which was discarded by the U.S. Supreme Court because Judge Reinhardt died before the decision was published. With the February 27th ruling, the Ninth Circuit joined the Tenth and Eleventh circuits in holding that the Equal Pay Act precludes employers from relying solely on prior salary to justify pay differences. This is in contrast to decisions in the Seventh and Eighth Circuits, which held that such reliance does not by itself violate the Equal Pay Act.

The Facts Underlying The Ninth Circuit Case

The original Ninth Circuit case, Rizo v. Yovino, 854 F.3d 1161 (9th Cir. 2017), was brought by Aileen Rizo who worked as a math consultant for the Fresno County public schools. The County classified management-level employees in salary levels that contain progressive pay steps. New math consultants were placed into Level 1, which contained ten salary steps with compensation ranging from $62,133 to $81,461. To determine the starting salary for a new consultant, the County considered the candidates’ most recent prior salary and added 5% to assign the starting salary step within Level 1.

Rizo previously worked as a middle school math teacher in Arizona. Consistent with the County’s practices, Rizo was to receive a 5% increase over her prior salary. However, doing so would have resulted in a starting salary that was lower than the minimum salary level for new math consultants. The County addressed the issue by setting Rizo’s starting salary at the minimum of the Level 1-Step 1 salary range, along with a slight increase to account for her advanced education.

Several years later, Rizo learned that at least one of her male colleague’s starting salary was set at the Level 1-Step 9 salary range and that the other math consultants, all of whom were male, all earned more than she was paid. After raising internal complaints regarding the disparity between her compensation and that of her male counterparts, Rizo filed suit raising allegations under the federal Equal Pay Act, Title VII, and the California Fair Employment and Housing Act.

The Trial Court Decision

The County moved for summary judgment, arguing that although Rizo earned less than her male colleagues, the pay differences were not based on her sex, but were instead based on her prior salary, a legally-permissible “factor other than sex.” The district court disagreed, holding that, under the Equal Pay Act, prior salary alone can never qualify as a factor other than sex. The district court reasoned that basing one’s starting salary exclusively on prior salary carried too great a risk of perpetuating gender-based wage disparities.

The Court of Appeals’ Original Decisions

The Ninth Circuit Court of Appeals initially reversed the District Court, relying on its prior decision in Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). which held that an employer can maintain a pay differential based on prior salary (or any other gender-neutral factor) if it shows that the factor effectuates some business policy and if the employer uses the factor “reasonably in light of the employer’s stated purpose as well as its other practices.” The Ninth Circuit held similar reasoning applied to Title VII claims as well.

However, the Ninth Circuit then granted en banc review “to clarify the law, including the vitality and effect of Kouba.Rizo v. Yovino, 887 F.3d 453, 459 (2018) (en banc). On April 9, 2018, the Ninth Circuit, sitting en banc, overruled Kouba, holding that prior salary cannot be the sole justification to explain a pay differential between a man and woman under the federal Equal Pay Act. Writing for the majority, Judge Reinhardt wrote that a worker’s salary history can never be a non-sex factor because women have historically earned less than men. He opined that if the law lets employers point to women’s past salaries to justify paying them less, it would “perpetuate that gap ad infinitum.

The Appeal to The U.S. Supreme Court

Defendant Fresno County Superintendent of Schools Jim Yovino appealed the Ninth Circuit’s ruling to the U.S. Supreme Court, arguing that the en banc opinion relied on Judge Reinhardt’s vote, and should be vacated due to Judge Reinhardt’s death eleven days prior to the date the opinion issued. Agreeing with the Appellant and noting that judges are “appointed for life, not for eternity,” the Supreme Court vacated the Ninth Circuit opinion. Yovino v. Rizo, 139 S.Ct. 706 (2019).

The February 27, 2020 Court of Appeals Decision

This Thursday, the en banc Ninth Circuit echoed Judge Reinhardt’s April 2018 opinion, holding that past salary is not a “factor other than sex” and reviving Rizo’s suit under the Equal Pay Act. Writing for the majority, Judge Morgan Christen wrote that “setting wages based on prior pay risks perpetuating the history of sex-based wage discrimination.” Rizo v. Yovino, No. 16-15372, 2020 WL 946053 (9th Cir. 2020).

“The express purpose of the act was to eradicate the practice of paying women less simply because they are women,” Judge Christen wrote for the majority. Id. at *1. “Allowing employers to escape liability by relying on employees’ prior pay would defeat the purpose of the act and perpetuate the very discrimination the EPA aims to eliminate.” Id.

In concurring opinions, two judges said their colleagues should have taken the more moderate approach of some other circuits.

In her concurrence, Judge Margaret McKeown said Fresno Schools’ policy did not justify the disparity between Rizo’s pay and that of her male coworkers, but salary history “may provide a lawful benchmark” for setting pay if considered alongside other factors such as education and training. Judge McKeown’s concurrence was joined by Judges Richard Tallman and Mary Murguia. Id. at 14.

Judge Consuelo Callahan also concurred, joined by Judges Tallman and Carlos Bea. She stated that an employer should be permitted to use past salary as a factor in setting pay, as long as its use “does not reflect, perpetuate, or in any way encourage gender discrimination.” Id. at 19.

Implications For Employers

As a result of Thursday’s ruling, there is a clear Circuit court split regarding the use of prior salary to explain pay disparities. Employers should be aware of the split and approach this area with caution. Following this decision, the Ninth, Tenth and Eleventh Circuits have held that the Equal Pay Act precludes employers from relying solely on prior salary, whereas the Seventh and Eighth Circuits, have ruled that such reliance does not by itself violate the Equal Pay Act. Id. at 19.

Employers should also be aware of numerous salary history bans that prohibit employers from seeking and, in some cases, relying on prior pay in setting starting wages.

Careful evaluation of your policies and practices around the use of prior salary is encouraged. Given the maze of federal, state, and local laws that govern the use of wage history, employers should evaluate the laws that apply to their operations to ensure they are not unwittingly running afoul of these potentially conflicting obligations.

Seyfarth’s Pay Equity Group continues to track these developments closely. We hope you will join us for a webinar on March 31, 2020, Equal Pay Day 2020, to hear more about the current state of pay equity law. You can register for the webinar here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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bust of Julius Caesar

ADA and FHA Quick Hits – Great Caesar’s Ghost edition.

Originally published by Richard Hunt.

bust of Julius Caesar“Beware the Ides of March” was what the prophet warned Caesar according to Shakespeare. It didn’t go well for him, but the latest batch of ADA and FHA decisions are something of a mixed bag. Before getting to that news though I want to make sure everyone who wants one has a copy of my white paper on HUD’s new guidance on service and assistance animals. If you are interested just email me. You will be added as a subscriber to this blog and I’ll email a copy of the paper. But now on to the news.

Standing and intent to return – the Strojnik factor

It is elementary that an ADA plaintiff must establish some likelihood of a future injury in order to have standing. Strojnik v. 1530 Main LP, 2020 WL 981031 (N.D. Tex. Feb. 28, 2020) is one of a small number of Texas cases addressing this issue. Judge Brown’s analysis is worth reading because it looks at the 5th Circuit authorities and explains why the “deterrent effect” doctrine is not sufficient to give a plaintiff standing in the absence of any intent to return. The “deterrent effect” doctrine is, in fact, a mis-named and mis-used substitute for intent to return. A plaintiff who never intended to go back cannot have been deterred from going back by some condition at the defendants’ place of business. Sloppy language and slopping thinking in the Nnth Circuit are the origin and support of the ADA litigation industry.

Strojnik suffered a similar fate in Strojnik v. IA Lodging Napa First LLC, 2020 WL 906722, at *3 (N.D. Cal. Feb. 25, 2020) although the Court found his pleadings to be more comprehensively inadequate. The opinion ends on the heartening note that the Court will have more to say about Strojnik’s litigation tactics in an upcoming order on the defendant’s motion to declare Strojnik a vexatious litigant.

ADA Pleading

Strojnik v. 1530 Main LP also adopts a helpful pleading standard for a showing of present injury. Instead of pleading specific ADA violations Strojnik simply attached photographs of allegedly non-compliant features of the hotel to his Complaint. Without an explanation of how each pictured condition affected his disability the Court found the Complaint was inadequate.

Schutza v. Union City Investments LLC, 2020 WL 905605 (S.D. Cal. Feb. 25, 2020) is a must-read opinion for anyone faced with generic ADA pleadings. The complaint, like most of those from serial filers, alleged the existence of access barriers without saying just what was wrong. That was not enough for the Court:

But were the dining tables too high? Were they too low? Where were the paths of travel? How were they inaccessible? Plaintiff leaves everyone guessing. As Plaintiff’s allegations are only “naked assertions devoid of further factual enhancement, and the Court need not accept “legal conclusions” as true, the Court finds Plaintiff’s allegations for this element of an ADA claim insufficient.

The Court grants leave to amend, and the nature of the problems is such that they can be cured by amendment if the problems really exist, but forcing the plaintiff to do the work of identifying ADA barriers to access with some specificity will at least test the legitimacy of the claims.

ADA Title II and sovereign immunity

As a starting note, readers interested in this issue should read William Goren’s recent blog on the 11th Circuit’s decision concerning the State of Florida. Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 874042 (E.D. La. Feb. 21, 2020) looks at the issue in the context of a state funded stadium. The discussion is worth reading, but the plaintiff’s decision to concede sovereign immunity for damage claims makes the holding  somewhat unimportant. For more about this case see the discussion below on the merits of the ADA claims in the same lawsuit.

The cost of default

In California small businesses continue to find that the cost of default in a typical serial plaintiff lawsuit is cheaper than any amount of defense. In Acosta v. Martinez et al, 2020 WL 1026890 (E.D. Cal. Mar. 3, 2020) the defendant was ordered fix ADA violations and pay $4000 in statutory damages plus $1,823 dollars in attorneys’ fees. The usual warning applies of course – if the cost of repair is excessive a defense based on the readily achievable standard doesn’t make sense.

The defendant didn’t do quite so well in Arroyo v. Melendez, 2020 WL 869211 (C.D. Cal. Feb. 21, 2020), but no statutory damages were awarded because the court declined to exercise jurisdiction over Unruh Act claims, so total monetary award was only $3245.75.

The defendant lost even more in Johnson v. Johnson, 2020 WL 901517 (N.D. Cal. Feb. 25, 2020), with an award of $4492 in fees and costs. A default strategy needs to take into account the individual court to guess at what the cost will be.
The same strategy can be even cheaper outside of California. In Hillesheim v. SNA LLC, 2020 WL 1077570 (D. Neb. Mar. 6, 2020) the plaintiff recovered only $2718.40 in attorneys’ fees and costs. If the injunctive relief was inevitable the result was a bargain.

Rutherford v. JJ’s Mkt. and Liquor, 2020 WL 883220 (C.D. Cal. Feb. 24, 2020) reached a similar result, with an award totaling $2591.00 in fees and costs. The Court had previously refused to exercise jurisdiction over Unruh Act claims, so there were no damages.

Halfway moot

You can absolutely moot an ADA claim by shutting down the public accommodation and selling the property on which it operated according to Johnson v. Baird Lands, Inc., 2020 WL 978629 (N.D. Cal. Feb. 28, 2020). That does not, however, eliminate a damage claim under California’s Unruh Act. Johnson recovered $4000 in statutory damages, but nothing more.

All the way moot

I have categorized Harty v. Nyack Motor Hotel Inc., 2020 WL 1140783 (S.D.N.Y. Mar. 9, 2020) as a mootness case because that is the most obvious basis for the court’s holding. The defendant simply took down their allegedly inaccessible website, an act sufficiently dramatic to moot any claim about it. The rest of the opinion catalogues the pro se plaintiff’s other failures, which were many. It is worth reading because some of the failures are common in complaints from more sophisticated plaintiffs.

Pleadings, franchises, and claims based on admitted ignorance.

In Chapman v. CKE Restaurants Holdings, Inc. 2020 WL 1230130 (E.D.N.C. Mar. 12, 2020) the plaintiff managed all the usual standing hurdles only to be tripped up by the fact that ignorance is not a reasonable basis for a lawsuit. The plaintiff sued the purported owner of a large number of franchised restaurants. The court agreed that she had alleged both injury and intent to return, but found that she had not connected the defendant to her injuries because she did not plead the necessary ownership and control. Equally important, her class allegations rested on the existence of a policy that failed to make the restaurants accessible or, in the alternative, the lack of an effective ADA policy. The court was unwilling to accept mutually inconsistent alternatives as a sufficient basis for a lawsuit since the plaintiff was clearly only speculating. The case was dismissed without prejudice and the plaintiff can in theory plead a claim that can withstand a motion to dismiss; whether she will be able in fact to do so remains to be seen.

Underline those hyperlinks if you want your arbitration clause to stick

Theodore v. Uber Techs., Inc., 2020 WL 1027917 (D. Mass. Mar. 3, 2020) is one of several cases concerning Uber’s arbitration agreement with its customers, and deals with the broader issue of “clickwrap” agreements.* It is most interesting because it contains a detailed analysis of much of the relevant law and draws a very specific distinction between hyperlinks that are underlined and those that are merely in a different color. Comparing a 2nd Circuit case in which a clickwrap agreement was found to give sufficient notice with a 1st Circuit case in which it was not the Court concludes that because the relevant hyperlinks were not underlined they were insufficiently conspicuous. I think the lesson is clear – app and website operators need to say to hell with sleek design and make sure it isn’t possible for a user to fail to notice a clickwrap agreement. Aesthetics are nice but it is unlikely a good looking interface drives enough profits to make up for the legal expense of litigating a case instead of arbitrating it.

Group homes, zoning and the Fair Housing Act

Valencia v. City of Springfield, Illinois, 2020 WL 1035229 (C.D. Ill. Mar. 3, 2020) is the latest in a series of decisions in the long-running dispute between two group homes, the Department of Justice and the City of Springfield. This decision is critical because based on its holding many municipal zoning ordinances are intentionally discriminatory on their face. The City’s zoning ordinance distinguished between group homes in which unrelated individuals resided together and “family” residences in which up to five unrelated individuals could live together. Group homes were subject to minimum spacing requirements while “family” homes were not. Thus, a group home with five unrelated residents would be treated differently than a “family” home with the same number of unrelated residents. The Court had no trouble finding the ordinance was discriminatory on its face.

That finding could have an impact on many municipal zoning ordinances because in the last twenty to thirty years municipalities have adopted zoning plans intended to permit group homes for the disabled in residential districts while continuing to regulate such homes. A typical ordinance will do what the City of Springfield ordinance did – define a permitted group home as one providing some service to unrelated individuals, define a “family” as a number of related individuals plus some number of unrelated individuals, and then impose limits on the group home whether or not it has fewer unrelated individuals than a “family.” The Court’s finding that such limits are intentionally discriminatory is a warning to municipalities to review their zoning practices for provisions that were originally intended to comply with the FHA but, because their consequences are discriminatory, in fact violate the FHA.

Stadium line of sight litigation

Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 874046 (E.D. La. Feb. 21, 2020) and the companion opinion Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 874039 (E.D. La. Feb. 21, 2020) are too long to summarize, but there are a couple of key holdings. First, the Court rejects the idea that limitations on an ADA claim based on a failure to make altered areas accessible runs from the first date the plaintiff visits the altered premises. The Court finds that limitations runs from the last visit, not the first. Second, the Court rejects a claim that the plaintiff’s standing is limited to the particular seats he occupies, finding that he faces at least a threat of discrimination from all discriminatory conditions. Beyond this the opinion demonstrates that line of sight litigation is complicated because stadiums are complicated and what can be done is therefore subject to reasonable disagreement. The same is true of comparing lines of sight for wheelchair bound spectators and standing spectators and even deciding which of many entities involved in owning and operating the stadium may be liable. Unless settled these cases seem doomed to go to trial.

And more on alterations

In Lewis v. Phan, 2020 WL 885751 (W.D. Wash. Feb. 24, 2020) the Court ultimately denied a summary judgment on the central claim of discrimination, but the discussion of alteration claims is a reminder that clear thinking is required for businesses planning on a renovation of some kind. The court points out that when a building is “altered” there are two obligations; to make the altered area accessible to the “maximum extent feasible” and, if the altered area is a primary function area, to create an accessible route to it from the building exterior, subject to the limit that the cost not be “disproportionate.” If the altered area includes the route from the building exterior to the interior then it is part of the “maximum extent feasible” standard. If not, it is subject to the “disproportionate” cost standard.  The parties in this lawsuit failed to tell the Court which standard applied, with the result that they were sent away to think further about it.

City sidewalks as services

Hamer v. City of Trinidad, 2020 WL 869818 (D. Colo. Feb. 21, 2020) is a lawsuit that has been around awhile, with a trip to the 10th Circuit and the Supreme Court along the way.** In this latest decision the principal substantive ruling is that sidewalks constitute a “service” of the City that are therefore required to be accessible under the ADA. The Court also takes up limitations again in light of the Tenth Circuit’s holding, but only to conclude that fact issues preclude summary judgment.

Am. Council of Blind of Metro. Chicago v. City of Chicago, 2020 WL 1139243 (N.D. Ill. Mar. 9, 2020) is one of those cases that reaches what seems to be a momentous result without the least discussion. In contrast to Hamer v. City of Trinidad, which included extensive discussions in the District Court and Court of Appeals concerning how and why to apply the ADA’s statute of limitations to city services in the form of sidewalks, American Council of the Blind disposes of the issue with a single sentence: “As noted above, however, plaintiffs are not seeking damages for those (or any other) events, but instead seek to remedy dangerous conditions they claim are ongoing.”  This decision seems likely to provide the tail end of a string cite about continuing violations, but nothing more.

Is an auto repair shop a public accommodation?

Pomponio v. Brand Motors, LLC, 2020 WL 922450 (N.D. Cal. Feb. 26, 2020) is one of those rare cases in which the defendant claims it is not a public accommodation. The Court granted a motion to dismiss based on the lack of fact allegations to support the claim it was a public accommodation, but granted leave to amend. It is frankly hard to imagine an auto repair shop that is not a public accommodation, at least with respect to the area in which customers are dealt with, but it is imaginable that an appointment only shop that never allowed customers on the premises could avoid ADA coverage.

ADA Website lawsuits – long arm jurisdiction

Mercer v. Rampart Hotel Ventures, LLC, 2020 WL 882007 (S.D.N.Y. Feb. 24, 2020) is the District Court’s confirmation of the magistrate’s recommendation I discussed in ADA and FHA Quick Hits – Hearts & Flowers Edition. That discussion covers the same material.

* See my earlier Quick Hits blog, Quick Hits or just search “Uber” above to find all my blogs on ride-sharing issues. For arbitration, see “Browsewrap could tame the ADA website litigation monster.” and other blogs with the word “arbitration.”
** See my earlier blogs, Another ADA case heads to the Supreme Court – City of Trinidad v Hamer, and Eternal liability under ADA Title – It’s what you don’t do that matters, as well as the mention in Quick Hits – He’s making a list and checking it twice, which will provide a link to William Goren’s discussion of the topic.

 

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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Court Holds That Devise Of “Personal Property” In A Will Included Tangible And Intangible Property, Including Money In Bank Accounts

Originally published by David Fowler Johnson.

In In re Estate of Debra E. Hunt v. Arabia Vargas, a trial court granted summary judgment interpreting a will to devise a large share of the testatrix’s personal property to her life partner. No. 01-19-00216-CV, 2020 Tex. App. LEXIS 1036 (Tex. App.—Houston [1st Dist.] February 6, 2020, no pet. history). The will stated: “I give all of my remaining household and personal property to Arabia Vargas.” The partner contended that the testatrix bequeathed to her all personal property-including intangible personal property such as the bank accounts. The residuary beneficiaries argued that the bequest of personal property was limited to household items and tangible personal property and that intangible personal property, including the money in bank accounts, and real property were subject to the will’s residuary clause to them. The probate court sided with the partner and declared that the testatrix had bequeathed all personal property to the partner other than the specific items bequeathed to another individual. The residuary beneficiaries appealed.

The appellate court first discussed the general rules for interpreting the term “property” in a will:

In a will, an unqualified reference to “property” encompasses everything of exchangeable value that the testator owned, including real and personal property whether tangible or intangible. In its ordinary usage, the term “property” is comprehensive. “Personal property,” in contrast, excludes real property but otherwise remains broad in definition, including everything other than real property that is subject to ownership. Because “personal property” has a settled legal meaning, a court ordinarily need not look beyond these words to ascertain a testator’s intent if she uses them. The legal definition of “personal property” is so well established that it generally does not allow for an interpretation other than the one ascribed to it by the law.

Id. The appellate court disagreed with six different arguments raised by the residuary beneficiaries and held that the bequest unambiguously conveyed all of the testatrix’s personal property-tangible and intangible-to the partner. The court of appeals affirmed the trial court’s judgment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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“No Obligation” Clause Dooms Oil and Gas Asset Bid

“No Obligation” Clause Dooms Oil and Gas Asset Bid

Originally published by Charles Sartain.

In Chalker Energy Partners III LLC v. LeNorman Operating LLC, the Texas Supreme Court reaffirmed its belief in the sanctity of the written contract and the freedom of parties to negotiate and agree to contracts as they desire.

Chalker and other sellers wanted to sell leases in several Panhandle counties. LeNorman signed a Confidentiality  Agreement, which had a provision entitled “No Obligation”, “ … unless and until a definitive agreement has been executed and delivered, no contract … providing for a transaction … shall be deemed to exist and neither Party will be under any legal obligation of any kind whatsoever with respect to  such transaction … “

After a bidding war between LeNorman and Jones Energy, the Sellers declined to sell and LeNorman elected not to pursue the transaction. Then, after the bidding deadline the Sellers offered to sell 67 percent of the assets, LeNorman emailed what it termed a “counter-proposal”, setting a deadline and adding that it would not be modifying or accepting any changes. Sellers’ representative emailed an acceptance before the deadline, subject to a “mutual agreeable Purchase and Sale Agreement”, sent LeNorman a revised draft PSA, and took off for Thanksgiving. LeNorman sent a redlined PSA for consideration.  During that time Jones made another offer that was accepted and Jones acquired the assets.

LeNorman sued for breach of contract. The Sellers counterclaimed for breach of the Confidentiality Agreement and the bid documents. The trial court concluded that a PSA was a condition precedent and there was no meeting of the minds. The court of appeal reversed, finding fact issues.

Both sides agreed that unless there was a definitive agreement executed and delivered there was no contract. The No Obligation Clause did not define “definitive agreement” but said that term did not include “an executed letter of intent or any other preliminary written agreement or offer, unless specifically so designated in writing at and executed by both parties.”  The Court deemed the emails to be a preliminary agreement and a document such as a more formalized PSA would satisfy the definitive agreement requirement.

The Court concluded that Chalker’s Thanksgiving weekend acceptance of LeNorman’s offer subject to a mutual agreeable PSA did not create a fact issue. Instead, the definitive agreement referenced in the No Obligation Clause was a condition precedent to contract formation.

Takeaway – the practical effect on contract negotiations

The Court’s rationale was that if the exchange of agreed-to drafts were sufficient to raise a fact question as to the existence of a definitive agreement then the No Obligation Clause would be stripped of its meaning and utility. Even worse, such clauses would mislead parties operating under the assumption that they could freely engage in negotiations without binding themselves to proposals in an email exchange. By agreeing to the No Obligation Clause the parties provided themselves with the freedom to negotiate without fear of being bound to a contract.

Waiver?

To establish waiver by conduct, the conduct must be unequivocally inconsistent with claiming a known right.  The Court concluded that the negotiations were subject to the bidding procedures and the Confidentiality Agreement and the parties had not waived the right to a definitive agreement. Waiver was decided as a matter of law. The parties consistently agreed that a deal was subject to a mutual agreeable PSA. Chalker’s failure to object to the deviation between the contractually required bidding procedures and the emails was not evidence of an intentional relinquishment of the right to require a definitive agreement such as a PSA.

Have you ever seen the so-bad-its-good Plan 9 from Outer Space? This is gonna be painful, but here is your musical corollary.

 

 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Meanwhile, back on factual sufficiency review

Meanwhile, back on factual sufficiency review

Originally published by David Coale.

After the 2018 election, an LPCH colleague and I wrote about the potential for renewed interest in “factual sufficiency” review–closely related to “legal sufficiency” review, but placed in the exclusive jurisdiction of the intermediate courts of appeal under the state constitution.

An example appeared in In re C.V.L., where a panel majority reversed the termination of a parent-child relationship in a factual sufficiency review: “[E]vidence that Father used methamphetamines twice during the underlying proceedings and Bonds’ unsubstantiated belief that Father will use drugs again in the future because he used drugs twice in the past is not enough under a factual sufficiency review to permanently deprive Father and child of a relationship when weighed against all of the contrary, uncontroverted evidence presented at trial and the strong presumption that a child’s best interests are served by maintaining the parent–child relationship.” 

A dissent saw the court of appeals’ role differently: “This case presents important questions regarding an appellate court’s ability to second guess a factfinder’s pivotal credibility determinations in a termination case given the supreme court’s admonition that despite the heightened standard of review in termination cases, courts of appeals must nevertheless still provide due deference to the factfinder’s credibility determinations.” No. 05-19-00506-CV  (Dec. 13, 2019, pet. filed) (mem. op.)

Factual sufficiency review in this type of family-law case involves unique issues that may not arise in commercial disputes, but the case is still an important example of how this standard works in practice.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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