Standard Possession Orders for Texas family law cases

Standard Possession Orders for Texas family law cases

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

In the event that you are served with papers ordering you to appear in court for a case related to your child, you probably would have some questions that you would like answered. To begin with, why do you have to go to court in the first place? If you are paying some amount of child support to your child’s mother and see your child with the regularity you may want to just continue doing what you’ve been doing and not have to worry about going to court.

Although taking off work and going to court may be a hassle (and it is), the end result of your going will be a good thing for you, your child and the child’s mom. A court date to establish orders in relation to you and your child will result with you being awarded visitation time as well as rights and duties that pertain to raising your child. It is only then that you formally have rights and duties to that child if you are not married to the child’s mom and have not previously acknowledged paternity.

Step one of the process, if you are not yet the legal father of the child, is to be named as the child’s legal parent. With that comes the ability for you to step in and participate in a negotiation regarding custody, visitation, possession, and access. Unless circumstances require a different conclusion, you and your child’s mother will be named as joint managing conservators of your child. This allows you to share in the rights and duties associated with raising your son or daughter.

What sort of visitation will you be ordered in a Texas family law cases?

The presumption is that you will be ordered visitation that is included within a Standard Possession Order. This order allows you to be able to spend time with your child on a fairly substantial basis throughout the year.

If you live within 100 miles of your child you will have visitation with him or her on the first, third and fifth weekends of each month. You will also have a visitation period each Thursday during the week where you can take your child to dinner and then take him or her back to their other parent’s home. Holidays like Thanksgiving and Christmas will alternate year by year. For example, if you get Thanksgiving this year, your child’s other parent will have Thanksgiving next year. Finally, you are entitled to an extended period of possession during the summertime that lasts for 30 days.

If you do not live within 100 miles of your child, then your periods of possession will look slightly different. For instance, your weekend schedule may be the first, third and fifth weekends of each month, or it may be reduced to as little as one weekend per month. It will all depend on the distance put between you and your child, the frequency with which you can travel and other factors relevant to your case.

Because of the distance between you and your child, there is no mid-week visit on Thursdays when you live more than 100 miles apart. The alternating of holidays would still occur, and you would be provided with an even longer period of extended summer possession. Instead of 30 days of possession, you would have 42.

Changes to the Standard Possession Order may occur based on specific circumstances

If your child under the age of three then it is likely that that the visitation provisions that we just went over will need to be altered slightly to take into consideration your family’s dynamics. For instance, because your infant relies on their mother for food in many cases, he or she must literally be within arm’s reach at nearly all time. As a result, visitation overnights may not be possible for a few years until your child is older. Of course, if your child is comfortable with visiting overnights with you and he or she is bottle fed these limitations may not apply to your case.

What is in your child’s best interests?

Everything that we have discussed today and everything that a court would consider in your family law case are based on what is in that child’s best interests. This is a difficult question to answer because there are a lot of factors that exist for your child and your family that may not exist for other kids and their families. As a result, judges have a tough assignment to make interpretations of your individual circumstances.

However, the Texas Family Code does contain helpful information that can guide your judge in making a determination as to what is in the best interests of your child. What your child wants to see happen is important to a judge, especially if your child is over the age of 12. A motion can be filed with the judge to have him or she confer with your child in their office to determine what your child’s preferences are.

Before I go any further, I want to note that what your teenage child wants is not the be all, end all of your case. Many parents tell me at the beginning of their child custody case that theirs will be a quick and easy case because they know that their child wants to live with him or her. In their mind, all we have to do is file a motion to have the judge talk to their child and the case will quickly be over with. This is not how things actually work, however.

In the real world of family law cases, a judge can speak to your child if a motion is filed. If your child is over the age of 12 the judge must honor that request and speak to your child about their living preference. Any child under the age of 12 may also speak to the judge but in that situation, the judge will get to decide whether or not to speak to a child so young about this subject. All of the other issues that we are going to discuss right now are just as important if not more important as your child’s preference.

The emotional, physical and mental needs of your child now and in the future will be considered by the judge as well. The safety of your child is also important and so if any physical or emotional dangers exist in your home or that of your child’s other parent it is likely that primary conservatorship would be given to the parent whose home life is more conducive to raising a child in a safe environment.

On a practical level, the parenting abilities of you and your child’s other parents will be assessed. You may be the most competent dad in the world, but if you have never really made any time to see your child other than in the weeks prior to your child custody case, it is likely that your parenting abilities would rate rather low with the judge. The reason for this is simple: you have never taken the time to attempt to parent your child.

What are your plans and goals for your child?

A parent with a roadmap of where he or she wants their child to go and how he or she is going to help their child attain those goals is a desirable quality for a parent to possess in the eyes of a judge. Part of those goals is being able to provide your child with a stable home life that allows him or her to reach their potential. If you are moving every six months because you cannot pay your rent, or have significant others causing problems for your children then you will have trouble arguing that your home life provides the best possible environment for raising your kids.

What happens with child support if you do not attend your court hearing?

If you do not attend your court hearing when child support is being determined, you run the risk of having a child support award determined for you. If that doesn’t seem fair, read this: a court may order you to pay child support based off of minimum wages being earned 40 hours a week. That could be what a court determines even if you do not work. That is a tough thing to digest, so if you have the information you want to share with the judge regarding either of these subjects you need to make sure you appear for every hearing that occurs.

What happens if your child comes to live with you? Do you still need to pay child support?

In some situations, your child’s other parent will need you to take care of your child for an extended period of time for any various reason. Maybe he or she has to go care for an ill relative. Maybe he or she has to spend some time in jail. There are a number of reasons why your child’s other parent could approach you regarding the full-time care of your child. If this happens to you, it is reasonable to wonder whether or not you have to pay child support even if you have become the full-time caretaker for your child.

Even if you start to care for your child on a full-time basis and he comes to live with you primarily, you are still responsible for paying child support under your court order. As such, I could not recommend that you stop paying child support. Your child support orders can be modified (changed) and so this responsibility will not be ongoing if modification is requested and granted by your court. However, until that happens you need to pay child support on time and in full.

Can you pay more or less child support than what is laid out in the Texas Family Code?

The Texas Family Code contains the guideline amounts of support that people are expected to pay towards the upbringing of their children. However, it is may happen that your child either needs to receive a higher than guidelines level of support or an amount of money that is below the child support guidelines.

You can ask a judge to order you to be able to pay a non-guidelines level of support for any reason that you would like. It must be shown that the modified amount of child support is in the best interests of your child. The age of your child, their specific needs, their health and the split in custody between yourself and your child’s other parent are the other main factors that I believe a court will look to when assessing a child support amount for you to pay.

Keep in mind that you and your child’s other parent can agree to change the amount of child support that is paid- either upward or downward. If you all can negotiate and agree on a new amount, all you have to do is draft a new set of final orders that reflect that change. A judge can review those new orders and sign off on it as long as it is determined that the change in child support is in the best interests of your child.

More on child support to be posted in tomorrow’s blog

If you have ever wondered when the responsibility to pay child support ends or if you also have to pay for your child’s health insurance as well as child support, please head on back to our blog tomorrow. We will cover this information and more with you all.

In the meantime, if you have any questions about the material that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with one of our licensed family law attorneys. These consultations are a great opportunity to ask questions and receive feedback about your particular circumstances.

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



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The Texas Legislature Has Limited Discovery Of A Defendant’s Net Worth For Exemplary Damage Claims

Originally published by David Fowler Johnson.

Plaintiffs in civil litigation often seek punitive or exemplary damages. “Exemplary damages” means any damages awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages are neither economic nor noneconomic damages. “Exemplary damages” includes punitive damages. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(5). A jury may only award exemplary damages if the claimant proves, by clear and convincing evidence, that the harm resulted from: (1) fraud; (2) malice; or (3) gross negligence. Id. at § 41.003(a). Under Texas case law, exemplary damages may be proper in breach of fiduciary duty cases where the plaintiff can prove by clear and convincing evidence that the action arose by actual fraud, malice, or gross negligence. Murphy v. Canion, 797 S.W.2d 944, 949 (Tex. App.—Houston [14th Dist.] 1990, no pet.); see also Lesikar v. Rappeport, 33 S.W.3d 282, 311 (Tex. App.—Texarkana 2000, pet. denied); Natho v. Shelton, No. 03-11-00661-CV, 2014 Tex. App. LEXIS 5842, 2014 WL 2522051, at *2 (Tex. App.—Austin May 30, 2014, no. pet.).

A jury must consider multiple factors in determining the amount of an exemplary damages award: “(1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; (5) the extent to which such conduct offends a public sense of justice and propriety; and (6) the net worth of the defendant.” Tex. Civ. Prac. & Rem. Code Ann. § 41.011. So, a jury may consider the defendant’s net worth (size) in determining the amount of damages to assess as exemplary damages. A jury may determine that a larger exemplary damages award may be appropriate to punish a larger defendant in order to dissuade future similar bad conduct.

One issue that arises is whether a plaintiff is entitled to discovery into the net worth of a defendant by simply pleading an exemplary damages claim. Many defendants, especially individuals and private entities, understandably consider that type of information to be confidential or even trade secrets. Those defendants have argued that before they have to turn over that type of sensitive information, there should be some evidentiary showing that there is some merit to the exemplary damages claim.

More than twenty-five years ago, the Texas Supreme Court expressly rejected an argument that net-worth discovery should be limited until plaintiffs show that they are entitled to exemplary damages. Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex. 1988) (orig. proceeding), overruled on other grounds by Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding). Under prior Texas law, a party seeking discovery of net-worth information did not need to satisfy any evidentiary prerequisite, such as making a prima facie showing of entitlement to exemplary damages, before discovery of net worth was permitted. In re Jacobs, 300 S.W.3d 35, 40-41 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding [mand dism’d]); In re House of Yahweh, 266 S.W.3d 668, 673 (Tex. App.—Eastland 2008, orig. proceeding); In re Garth, 214 S.W.3d 190, 192 (Tex. App.—Beaumont 2007, orig. proceeding [mand. dism’d]); In re W. Star Trucks US, Inc., 112 S.W.3d 756, 763 (Tex. App.—Eastland 2003, orig. proceeding); Al Parker Buick Co. v. Touchy, 788 S.W.2d 129, 131 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding).

On June 19, 2015, Senate Bill 735 was signed into law changing the way net-worth discovery will be conducted going forward. Act of June 19, 2015, 84th Leg., R.S., ch. 1159, § 2, 2015 Tex. Sess. Law Serv. 3923, 3923 (West 2015). The bill, codified as Section 41.0115 of the Civil Practice And Remedies Code, requires a party seeking net worth discovery to first demonstrate and obtain a finding from the trial court that there is a substantial likelihood of success on the merits of a claim for exemplary damages. See Tex. Civ. Prac. & Rem. Code § 41.0115(a) (West Supp. 2015).

The provisions of section 41.0115 did not become effective until September 1, 2015, and apply only to an action filed on or after that effective date. See Act of June 19, 2015, 84th Leg., R.S., ch. 1159, § 3, 2015 Tex. Sess. Law Serv. 3923, 3923 (West 2015). Parties have requested that courts apply this statute retroactively, but at least one court has expressly denied that request. In re Michelin N. Am., Inc., No. 05-15-01480-CV, 2016 Tex. App.  LEXIS 2467 (Tex. App.—Dallas March 9, 2016, original proceeding). Further, the Texas Supreme Court denied a petition for review seeking a similar holding after full briefing on the merits. In re Robinson Helicopter Co., 2016 Tex. App. LEXIS 378 (Tex. May 13, 2016). So, at this point, the only authority is that Section 41.0115 is not retroactive and only applies to cases filed after September 1, 2015. Of course, this issue becomes less important as time passes and fewer cases that were filed before 2015 exist.

Texas Civil Practice and Remedies Code Section 41.0115 provides:

(a) On the motion of a party and after notice and a hearing, a trial court may authorize discovery of evidence of a defendant’s net worth if the court finds in a written order that the claimant has demonstrated a substantial likelihood of success on the merits of a claim for exemplary damages. Evidence submitted by a party to the court in support of or in opposition to a motion made under this subsection may be in the form of an affidavit or a response to discovery.

(b) If a trial court authorizes discovery under Subsection (a), the court’s order may only authorize use of the least burdensome method available to obtain the net worth evidence.

(c) When reviewing an order authorizing or denying discovery of net worth evidence under this section, the reviewing court may consider only the evidence submitted by the parties to the trial court in support of or in opposition to the motion described by Subsection (a).

(d) If a party requests net worth discovery under this section, the court shall presume that the requesting party has had adequate time for the discovery of facts relating to exemplary damages for purposes of allowing the party from whom net worth discovery is sought to move for summary judgment on the requesting party’s claim for exemplary damages under Rule 166a(i), Texas Rules of Civil Procedure.

Tex. Civ. Prac. & Rem. Code Ann. § 41.0115.

This provision sets up several steps for a plaintiff to obtain net worth information. First, the plaintiff must file a written motion requesting that information. The statute does not state what is required in this motion. The statute does not appear to require that the motion be verified. Presumably, it can be a simple one page motion stating a request for the net worth discovery, and then the movant can elaborate at the hearing. An advocate may choose to have a longer motion that describes the facts, claims, evidence, and explains how the evidence establishes a substantial likelihood of success on the merits.

Second, the plaintiff must set a hearing and provide notice of same to the defendant. There is no express requirement for how much notice should be provided. Certainly, many courts are so busy that a short notice period will not be possible. The Texas Rules of Civil Procedure provide that there should, generally, be at least three-days’ notice of a hearing.

Third, the statute provides that the opposing party can file evidence. The statute does not require a written response though it requires a written motion. So, a party opposing such a motion can forego a written response and simply show up at the hearing and offer evidence and argument to contradict the plaintiff’s motion. However, once again, an advocate may decide to prepare and file a detailed response that contradicts the plaintiff’s claims and evidence.

Fourth, there must be a hearing where the plaintiff must “demonstrate[] a substantial likelihood of success on the merits of a claim for exemplary damages.” Id. The statute does not describe what this standard means or provide other guidance. The Texas Civil Practice and Remedies Code provides that, at trial, a party has to establish a claim for exemplary damages by clear and convincing evidence. Clear and convincing evidence is “proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). While the proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Id. This burden of proof should be compared to a preponderance of the evidence. Under a preponderance of the evidence burden, the fact finder must decide if the plaintiff’s allegations meet the legal standard of the preponderance of the evidence meaning that they are “more likely true than not.” Essentially, the fact finder must be convinced that it is at least 51% likely that the plaintiff’s allegations are correct.

However, Legislative history indicates that the phrase “substantial likelihood is not intended to be the same as the clear and convincing standard” nor is it even a “preponderance standard.” The intent is that, for the “the plaintiff to be entitled to net worth discovery, it’s only necessary that the claimant present a prima facie case, but not to demonstrate that he is certain to win.” The plaintiff need only raise “questions on the merits to make them fair ground for more deliberative investigation.” A similar standard may be the “probably right to recovery” standard that is required for a court to issue temporary injunctive relief. To show a probable right of recovery, an applicant need not establish that it will finally prevail in the litigation, rather, it must only present some evidence that, under the applicable rules of law, tends to support its cause of action. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (Tex. 1961); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211, (Tex. 2002); IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 197 (Tex. App.—Fort Worth 2005, no pet.); Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 638 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); Gatlin v. GXG, Inc., No. 05-93-01852-CV, 1994 Tex. App. LEXIS 4047 (Tex. App.—Dallas April 19, 1994, no pet.); 183/620 Group Joint Venture v. SPF Joint Venture, 765 S.W.2d 901, 904 (Tex. App.—Austin 1989, writ dism’d). To establish a probable right of recovery, a party need only show that a bona fide issue exists as to its right to ultimate relief. Gatlin, 1994 Tex. App. LEXIS at 4047; 183/620 Group Joint Venture, 765 S.W.2d at 904; Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961). The common law clothes the trial court with broad discretion in determining whether an applicant has met its burden. Recon Exploration, Inc. v. Hodges, 798 S.W.2d 848, 851 (Tex. App.—Dallas 1990, no writ).

What type of evidence can a trial court consider in making this determination? The statute provides that this finding may be supported or opposed by “an affidavit or a response to discovery.” So, parties may file affidavits, interrogatory responses from the opposing party, responses to requests for admission, documents, deposition transcripts, etc. The statute, however, does not limit evidence to affidavits and discovery products. A party can potentially call a witness and have live sworn testimony.

Fifth, if the court grants the discovery, the trial court must file a written order that “that the claimant has demonstrated a substantial likelihood of success on the merits of a claim for exemplary damages.” So far there is only one case that has applied Section 41.0115: In re WTG Fuels, Inc., No. 11-19-00390-CV, 2020 Tex. App. LEXIS 280 (Tex. App.—Eastland January 13, 2020, original proceeding). In that case, a trial court allowed the net worth discovery and signed an order that stated:

BE IT REMEMBERED that on this the 25th day of September, 2019, came on to be heard Plaintiffs’ Motion to Conduct Net Worth Discovery for Gross Negligence Claims Against Defendant WTG Fuels, Inc., and the Court having reviewed the pleadings and heard the arguments of counsel finds that said motion should be GRANTED on a limited basis. IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Conduct Net Worth Discovery for Gross Negligence Claims Against Defendant WTG Fuels, Inc. is GRANTED. However, it is limited to discovery of the Balance Sheet of WTG for the current year and the preceding year only.

Id. There was no express finding of that the claimant had demonstrated a substantial likelihood of success on the merits of a claim for exemplary damages. The court of appeals granted mandamus relief to reverse the order, stating: “In the October 9, 2019 order, Judge Satterwhite did not make a finding that Plaintiffs had demonstrated a substantial likelihood of success on the merits of their claim for gross negligence. In the absence of that statutorily required finding, Judge Satterwhite could not exercise discretion to order discovery of WTG’s net worth.” Id. So, the court held that the statute means what it says, the trial court must expressly state that there is a substantial likelihood of success on the merits. There are no implied findings that support the order. However, it should be noted that the statute does not require the trial court to discuss the evidence and explain why the plaintiff met the statutory burden.

If a trial court authorizes net worth discovery, the court’s order will require the defendant to produce the net worth evidence. Tex. Civ. Prac. & Rem. Code Ann. § 41.0115. Section 41.001 of the Texas Civil Practice and Remedies Code defines net worth as: “the total assets of a person minus the total liabilities of the person on a date determined appropriate by the trial court.” Id. at § 41.001. Generally, parties are entitled to only documents that show the current net worth of a defendant. See In re Michelin N. Am., Inc., No. 05-15-01480-CV, 2016 Tex. App.  LEXIS 2467 (Tex. App.—Dallas March 9, 2016, original proceeding); In re Ameriplan Corp., No. 05-09-01407-CV, 2010 Tex. App. LEXIS 31, 2010 WL 22825, at *1 (Tex. App.—Dallas Jan. 6, 2010, orig. proceeding) (mem. op.) (trial court erred in ordering production of corporation’s balance sheets for two prior years and its current and prior income statements because documents did not reflect current net worth).

The statute provides that the court’s order may only authorize use of the least burdensome method available to obtain the net worth evidence. Tex. Civ. Prac. & Rem. Code Ann. § 41.0115. This could include tax returns, financial statements, or Securities and Exchange Commission filings. To the extent the information is already public, a defendant objecting to a request for net worth information could plausibly defeat such a motion by arguing that the publicly available information is equally available to both parties and therefore defendant is not required to produce documents or information in response to request. Potentially, a trial court may permit broader discovery in cases in which it is necessary to provide an accurate reflection of the defendant’s net worth. See In re Brewer Leasing, Inc., 255 S.W.3d 708, 713 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding [mand. denied]) (permitting additional net worth discovery where trial court implicitly found that previously provided unaudited balance sheets did not adequately represent the net worth of the relator).

There is no express right to appeal a trial court’s decision on a motion. Because there is no immediate relief by an interlocutory appeal, one court granted mandamus relief from a trial court’s order granting net worth discovery under the statute. In re WTG Fuels, Inc., No. 11-19-00390-CV, 2020 Tex. App. LEXIS 280 (Tex. App.—Eastland January 13, 2020, original proceeding). The statute does provide that when there is appellate review, the reviewing court may “consider only the evidence submitted by the parties to the trial court in support of or in opposition to the motion.” Tex. Civ. Prac. & Rem. Code Ann. § 41.0115(c). So, a party on appeal should not be able to cite to other evidence in the record to support or attack the trial court’s order. This will require the parties to refile any evidence that they want the court of appeals to consider in conjunction with the motion and response. It is unclear whether the statute abrogates a trial court’s ability to take judicial notice of its own file or a party’s right to incorporate evidence on file with the court in its motion for net worth discovery or response thereto.

Finally, the party seeking net worth discovery via this motion should be prepared to defend a no-evidence or traditional motion for summary judgment on its exemplary damages claim. The statute provides: “the court shall presume that the requesting party has had adequate time for the discovery of facts relating to exemplary damages for purposes of allowing the party from whom net worth discovery is sought to move for summary judgment on the requesting party’s claim for exemplary damages under Rule 166a(i), Texas Rules of Civil Procedure.” Tex. Civ. Prac. & Rem. Code Ann. § 41.0115(d). So, if the plaintiff seeks net worth discovery very early in a case, it should be prepared to have to answer a no-evidence motion for summary judgment on the exemplary damages claim early in the case. A cautious plaintiff may want to wait until near the end of discovery to file a motion for net worth to ensure that it will have time to discover underlying facts and be prepared to respond to a no-evidence summary judgment motion.

The new procedure for obtaining net worth discovery is intended to protect a defendant from the disclosure of confidential information where the plaintiff’s exemplary damages claim is facially meritless. Texas courts will wrestle with how the procedure works in the years to come.

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



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In Sixth Circuit, a Change in Contribution Payment Methods under a Group Health Plan is not a Loss of Coverage under COBRA

Originally published by Haynes and Boone Benefits Group.

In Morehouse v. Steak N Shake, the U.S. Court of Appeals for the Sixth Circuit (the “Sixth Circuit” or “Circuit Court”) reversed a federal district court’s prior holding that a change in contribution payment methods under a group health plan constitutes a loss of coverage under COBRA. The plaintiff was a participant in Steak N Shake’s (“SNS”) group health plan when she sustained a work-related injury. Due to her injury, she took a leave of absence (and thus incurred a reduction in her work hours) and began receiving workers’ compensation benefits. Because the participant was not receiving her usual salary from SNS, SNS instead deducted her contributions toward her plan coverage from her workers’ compensation checks. When the participant’s workers’ compensation payments terminated, SNS informed her that she must continue to pay her required plan contributions out-of-pocket in order to continue her coverage under the plan. When she did not make a required payment, SNS discontinued her coverage without offering her COBRA coverage. The participant filed suit claiming that her reduction in work hours following her injury, together with the required change in her contribution payment method, was a “qualifying event” under COBRA which entitled her to notice of her COBRA continuation coverage rights. The district court agreed and required SNS to pay both compensatory damages and statutory penalties. On appeal, the Sixth Circuit reversed the district court’s decision. The Circuit Court found that a COBRA qualifying event did not occur when the participant first began her leave of absence because, although a reduction in hours (one type of COBRA qualifying event) occurred, the participant did not experience a loss of coverage at that time because (i) her contributions were deducted from her workers’ compensation payments and (ii) her plan coverage continued unchanged.

The Sixth Circuit then considered whether a deferred loss of coverage occurred when SNS changed the participant’s contribution payment method, noting that, under COBRA, a “loss in coverage” occurs when there is a change in the terms and conditions of coverage. The Circuit Court held that SNS’s alteration of the participant’s contribution payment method did not change the terms and conditions of her coverage and thus did not cause a deferred loss of COBRA coverage. As a result, no COBRA qualifying event occurred, and no COBRA election notice would be required.

Although the employer in this case did not violate its COBRA notice obligations toward the participant, the employer was subject to a costly lawsuit to defend its position. When terminating a participant’s group health plan coverage for a reason that does not trigger COBRA rights, an employer should consider communicating proactively with the participant to inform him that the termination of coverage does not entitle him to COBRA continuation coverage.

The Sixth Circuit’s opinion is available here.

The post In Sixth Circuit, a Change in Contribution Payment Methods under a Group Health Plan is not a Loss of Coverage under COBRA appeared first on Haynes and Boone Blogs.

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



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Clark County District Court Judge ONLY worked 14 afternoons in 2018!

Clark County District Court Judge ONLY worked 14 afternoons in 2018!

Clark County Nevada

January 17, 2020

 

The (VIPI) Veterans In Politics International Inc. investigated Stefany Miley Clark County District Court Judge time on the bench. After submitting a Freedom of Information Request we obtained Judge Miley’s entire 2018 calendar going through 5,119 pages. There are 261 workdays in the calendar year 2018 excluding all holidays, Judge Miley was only on the bench for 149 of those days, leaving 112 days unaccounted.

Clark County District Court Judge ONLY worked 14 afternoons in 2018! 1

Judge Miley only worked 14 afternoons, she is hardly on the bench Thursdays and Fridays.  According to our sources, she has been spotted at Lifestyle Athletic Club working out, or getting her nails and hair done at the local beauty shops during work hours.

 

Judge Miley only had 8 Chamber Calendars in 2018. Before you say she must be working at home, it’s illegal for a judge to remove cases from the courthouse. However, they can sign onto a case on their computer or I-Pad. But in Judge Miley’s case signing onto a case from home is not a common practice.

 

Where is her Deputy Marshal when the judge is not in the courthouse? Normally he is sent home with pay because the Deputy Marshal works directly for the judge.

 

According to Transparent Nevada Miley’s pay and benefits is $258,655.11 annually. Judges have the freedom to govern their own calendar, this freedom should have a price when they abuse the system and steal from taxpayers.

Clark County District Court Judge ONLY worked 14 afternoons in 2018! 2 Clark County District Court Judge ONLY worked 14 afternoons in 2018! 3
Judges need accountability, recently we reported that Family Court Judge Mathew Harter was on the bench for 140 days in 2018 click onto the link: veteransinpolitics.org/2019/06/evidence-supports-that-family-court-judge-worked-140-days-for-2018/.

 

During the last legislative session lobbyist for the District Court wanted a 16 percent pay raise that would have increased each judge’s annual salaries by $30,000 per year, that bill never made it out of committee. They also wanted 12 additional judges but only 6 was approved for the family court bench. We don’t need more judges, what we need is judges shown up for work.


Many cases are assigned it’s not a monopoly as suggested. 21-23 days on the bench is an average work month.

 

Many judges will be on the campaign trail, ask a judge to prove to you that they work a full 40-hour workweek, talk is cheap!


The following Judges substituted for Judge Miley in her absents from the bench in 2018:


Linda Bell Judge

Charles Thompson Senior Judge

Joseph Bonaventure Senior Judge

Douglas Smith Judge

Valarie Adair Judge

Tierra Jones Judge

Elizabeth Gonzalez Judge

Michael Villani Judge


The following are the days Judge Miley was on the bench during each month in 2018:


January 2018 worked 13 days

February 2018 worked 13 days

March 2018 worked 13 days

April 2018 worked 8 days

May 2018 worked 15 days

June 2018 worked 16 days

July 2018 worked 9 days

August 2018 worked 16 days

September 2018 worked 10 days

October 2018 worked 15 days

November 2018 worked 12 days

December 2018 worked 9 days

 

Today is the deadline for a judge to file for reelection see link www.clarkcountynv.gov/election/Pages/CandidateFiling.aspx.  

 

Veterans In Politics President moving forward in 2020!

www.youtube.com/watch?v=e-VatbW2vRw

 

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Bluestone v. Randle – Another Case to Watch – Post-Production Costs

Bluestone v. Randle – Another Case to Watch – Post-Production Costs

Originally published by John McFarland.

Last April the Fort Worth Court of Appeals issued its opinion in Bluestone Natural Resources II, LLC v. Randle, No. 02-18-00271-CV, 2019 WL 1716415. The Court decided that, under Randle’s lease, Bluestone could not deduct post-production costs and owed royalty on plant fuel and compressor fuel. Bluestone has petitioned the Supreme Court for review and the Court has asked for briefs on the merits.

Randle’s lease was a printed form with an exhibit. The printed form provided that royalties on gas would be “the market value at the well of one-eighth of the gas so sold or used …” Exhibit A provided that “the language on this Exhibit A supersedes any provisions to the contrary in the printed lease hereof.” One provision in Exhibit A dealt with post-production costs:

Lessee agrees that all royalties accruing under this Lease (including those paid in kind) shall be without deduction, directly or indirectly, for the cost of producing, gathering, storing, separating, treating, dehydrating, compressing, processing, transporting, and otherwise making the oil, gas and other products hereunder ready for sale or use. Lessee agrees to compute and pay royalties on the gross value received, including any reimbursements for severance taxes and production related costs.

The trial court held that Bluestone could not deduct post-production costs, and the Fort Worth Court of Appeals agreed. The Court distinguished Heritage Resources v. NationsBank, 929 S.W.2d 118 (Tex. 1996) and held that the no-deduction clause in the lease’s exhibit modified the royalty clause – in particular, the second sentence of that clause. The second sentence, not present in Heritage, provided an alternate measure of value for royalties – “gross value received” rather than “market value at the well” – and “gross value received” means proceeds prior to deduction of post-production costs. This part of Exhibit A conflicts with the printed royalty clause and so must supersede that clause.

Bluestone argued that the second sentence in the Exhibit A provision did not establish an alternate “valuation point” for the royalty, so the valuation point must still be “at the well” as provided in the printed form. The Court disagreed:

[Bluestone] argues that once an “at the well” measure is baked into the royalty provision, it requires super clarity in any provision that attempts to alter its effect. We construe this argument to mean that once a royalty provides an “at the well” point of valuation, a lease can alter that scheme of valuation only by clearly altering its terms to provide a different point of valuation, such as by striking the words “at the well” when they appear in a lease. …

We do not see how we would be giving Exhibit A its controlling role if we were to cut and past the words “at the well” from Paragraph 3 of the Printed Lease into Paragraph 26 of Exhibit A. In fact, that approach would seem to take exactly the opposite approach mandated by the superseding provision in Exhibit A; we would be resolving the conflict by giving superseding effect to the terms of the Printed Lease. …

In essence, Appellant’s position boils down to the argument that once it appears, the “at the well” measure is so “baked into” the royalty calculation that it has to be physically removed by going to the length of actually striking those words wherever they appear.

The Court noted that the Supreme Court has recognized that  “a proceeds measure–not tied to particular point of sale–creates a measure that does not allow the lessor to net-back its post-production costs,” citing Judice v. Mewbourne Oil Co., 929 S.W.2d 133, 136 (Tex. 1996): Burlington Res. Oil & Gas Co. LP v. Texas Crude Energy, LLC, 2019 WL 983789 at 5; Chesapeake Expl. LLC v. Hyder, 483 S.W.3d 70, 873 (Tex. 2016); and Heritage Res., 939 S.W.2d at 130.

The Court noted that its conclusion may be contrary to that of the El Paso Court of Appeals in Commissioner v. SandRidge, 454 S.W.3d 603 (Ct.App.-El Paso 2014, no pet.), which construed very similar language to allow deduction of post-production costs.

The Court also held that Bluestone had to pay royalty on plant fuel and compressor fuel. Plant fuel was gas produced from the leased premises and burned in the gas plant that processed the lessee’s gas. The compressor fuel was a commingled gas stream that included gas produced from the lease and other leases and was sent to compressors on Plaintiff’s lease and other leases to compress gas produced from the leases. The lease provides that “Lessee shall have free from royalty or other payment the use of … gas … produced from said land in all operations which Lessee may conduct hereunder .. and the royalty … shall be computed after any so used.” The Court held that this provision applied only on gas used on the leased premises. “Hereunder means “under or in accordance with this writing or document.” Plant fuel was not used to operate the lease or produce oil or gas from the lease, but to process gas in the third-party gas plant.

The Court also reasoned that the lease required payment of royalty on “gross value received” from the production; that the lessee received value from the processo in exchange for free use of the gas as fuel; and that Bluestone owed royalties on that value.1

The Court recognized that some of the gas produced from Plaintiff’s lease was used in compressors on the lease and therefor would be covered by the “free from royalty” clause. But the Court held that, because the lessee commingled gas from the lease with other gas, it had a duty to account for the aliquot share of the gas that is burned in compressors on the lease, citing Humble v. West, 508 S.W.2d 812 (Tex. 1974), and had failed to do so, and so was obligated to pay royalty on all production from the lease used as compressor fuel.

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



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ADA Title III Litigation: A 2019 Review and Hot Trends for 2020

ADA Title III Litigation: A 2019 Review and Hot Trends for 2020

Originally published by Seyfarth Shaw LLP.

By Minh N. Vu

ADA Title III Litigation: A 2019 Review and Hot Trends for 2020 4Seyfarth Synopsis:  ADA Title III lawsuits flooded federal courts in 2019 and will likely continue to do so in 2020 with new theories for the courts to consider. 

We are still tallying up the end-of-year numbers, but the number of ADA Title III lawsuits filed in federal courts by the end of November 2019 (10,206) exceeded the number of such lawsuits filed in all of 2018 (10,163).  California courts continue to be the busiest with roughly 43% of the lawsuits, with New York and Florida courts taking second and third place with  24% and 18% of the market share, respectively.  With plaintiffs and their lawyers constantly conjuring up new claims, businesses are not likely to see any relief from these types of suits in 2020.

What types of lawsuits are trending now?

Braille Gift Card Lawsuits.  Starting in October of 2019, more than a dozen blind plaintiffs represented by five attorneys have filed at least 243 lawsuits in the Southern and Eastern Districts of New York alleging that retailers and other businesses have violated the ADA and New York state and city laws by failing to offer for sale gift cards that have all the information printed on the cards shown in Braille. These cases are assigned to at least twenty-nine different judges. A firm in southern California has also jumped on the bandwagon, filing Braille gift card lawsuits in California state court and sending out a number of pre-suit demand letters. Most defendants are digging in for a fight so we expect to see many motions to dismiss filed in the first quarter of 2020.

Website and Mobile App Accessibility Lawsuits.  Although we are still tallying the numbers, lawsuits alleging inaccessible websites and mobile apps accounted for at least a fifth of the total number of ADA Title III lawsuits filed in federal courts in 2019. Most plaintiffs in these cases are blind and claim that the websites in question do not work with their screen reader software which reads website content aloud. A much smaller number of plaintiffs are deaf and are suing about the lack of closed captioning for online videos.

Plaintiffs continue to file these website and mobile app accessibility lawsuits, though the rate at which they were being filed seemed to slow down in the fourth quarter of 2020. The change may be attributable to the fact that some of the lawyers who were filing many of these website accessibility suits in New York have turned their attention to Braille gift card lawsuits.

The big news from 2019 on the website accessibility front was the U.S. Supreme Court’s refusal to hear Domino’s appeal from a Ninth Circuit Court of Appeals decision allowing a blind plaintiff to pursue his lawsuit against the pizza chain for having an allegedly inaccessible website and mobile app. Businesses had hoped that the Supreme Court would hear the case and perhaps take some action to curtail the tsunami of website and mobile app lawsuits.

In 2019, Plaintiffs also made significant headway in persuading California state courts that inaccessible websites violate the state’s non-discrimination statute, including one appellate affirmation of a judgment in favor of blind plaintiff. In fact, one California Superior Court judge decided that the ADA applies to websites of businesses with no physical location where customers go. In reaching this conclusion, this California judge rejected federal Ninth Circuit precedent that the ADA only applies to websites of public accommodations with a nexus to a physical location.

Hotel Accessibility Information on Reservations Websites.  A number of plaintiffs filed lawsuits against hotels for allegedly failing to provide sufficient information about the accessibility of their accessible guest rooms and common areas on their websites, as required by the ADA Title III regulations, to allow travelers with disabilities to make informed decisions about whether a hotel meets their needs. In response to this flurry of lawsuits, many hotels have updated their websites to provide the required information. Now some plaintiffs are filing lawsuits alleging that hotels are not making accessible rooms available for sale on websites operated by third party online travel agencies.

Accessible Hotel Room Dispersion.  Title III of the ADA requires hotels to provide accessible rooms in a range of different room types (e.g. rooms with two beds, premium views, suites) so that people with disabilities have room choices that are comparable to those offered to people without disabilities. One plaintiff in particular has filed more than a hundred lawsuits under this theory, and we have no reason to think she will stop in 2020.

Inaccessible Facilities.  Historically the most prolific category for accessibility lawsuits, we have continued to see in the lawsuit filing numbers and in our practice many lawsuits about allegedly inaccessible physical public accommodations facilities such as hotels, retail stores, restaurants, and shopping centers in 2019. We do not expect this to change in 2020.

***

Be sure to subscribe to our ADA blog to receive notices of developments throughout the year!

Edited by Kristina Launey

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



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Corrupt judges running Unopposed!

Corrupt judges running Unopposed!

Clark County Nevada

January 15, 2020

 

Attention Nevada Attorneys!

Have you had enough of Family Court Judges who…

  • Fail to follow the rule of evidence?
  • Show favoritism and preference to certain counsel?
  • Openly violate our US Constitution?
  • Frequently don’t show up to work?
  • Refuse to follow state laws?
  • Fail to follow Judicial Cannons?

If your answer to any of the above questions is “yes”, then your time is now! Many judges fitting the above description are running unopposed. We are asking why?

We understand that campaigns are costly, but we are here to help you. This is your moment to make a difference! Do not leave corrupt judges to run unopposed continuing to destroy families and enriching certain entrenched and corrupt family law attorneys.

Three years ago the Veterans In Politics International took on the issue of rampant corruption in the Clark County Family Courts and we caused so much sunlight to be focused on this issue, that a couple of the corrupt judges and attorneys we targeted went so far as to collude to frame us at a sham hearing for the very things they do every day. Still, we press on un-phased. Why? Because we have met the victims and we believe in a better judiciary.

Below we have provided information that you can use and other information we are willing to share privately.

Nevada can’t afford to wait another six years of families being destroyed at the hands of corrupt incumbent judges and corrupt attorneys who are now running for judge.

You can make a difference!

The Nevada Bar has made it clear that it will do nothing about corrupt and unethical attorneys, however, we have until Friday, January 17th at 5 pm to let corrupt judges know that the bench is a humble honor, not an assumption.

 

 

 

Mathew Harter

Corrupt judges running Unopposed! 5

RE: Mathew Harter Clark County Family Court Judge Department N

veteransinpolitics.org/2014/07/re-mathew-harter-clark-county-family-court-judge-department-n/

Clark County Family Court Judge Mathew “Half Day” Harter would like a promotion to the Nevada Supreme Court

veteransinpolitics.org/2018/02/clark-county-family-court-judge-mathew-half-day-harter-like-promotion-nevada-supreme-court/

Too many cooks in the kitchen? “Judge Harter should run his own Courtroom without outside help”

veteransinpolitics.org/2014/10/too-many-cooks-in-the-kitchen-judge-harter-should-run-his-own-courtroom-without-outside-help/

Evidence supports that Family Court Judge worked 140 days in 2018

veteransinpolitics.org/2019/06/evidence-supports-that-family-court-judge-worked-140-days-for-2018/

Courtroom Cover-ups and betrayal; business as usual!

veteransinpolitics.org/2018/11/courtroom-cover-ups-and-betrayal-business-as-usual/

Clark County Judges Defy and Deny the Authority of the Nevada State Supreme Court. (Court Facilitated “Kidnapping”)!

veteransinpolitics.org/2018/10/clark-county-judges-defy-and-deny-the-authority-of-the-nevada-state-supreme-court-court-facilitated-kidnapping/

Steve Sanson President of Veterans In Politics Blast Clark County Family Court Judges part 2-2

veteransinpolitics.org/2018/07/steve-sanson-president-of-veterans-in-politics-blast-clark-county-family-court-judges-part-2-2/

 

 

Vincent Ochoa

Corrupt judges running Unopposed! 6

Vincent Ochoa Family Court Judge Admitted to Violating Nevada Custody Laws

veteransinpolitics.org/2014/07/vincent-ochoa-family-court-judge-admitted-to-violating-nevada-custody-laws/

Judge Ochoa’s son arrested for Heroin use and cover-up by an Assistant Sheriff at Metro

veteransinpolitics.org/2014/10/judge-ochoas-son-arrested-for-heroin-use-and-cover-up-by-an-assistant-sheriff-at-metro/

Do you want Judge Ochoa to “like” your children? FaceBook Issues Round #2

veteransinpolitics.org/2014/09/do-you-want-judge-ochoa-to-like-your-children-facebook-issues-round-2/

Judge Ochoa and a FaceBook friends “with benefits?”

veteransinpolitics.org/2014/09/judge-ochoa-and-a-facebook-friends-with-benefits/

Two Clark County Family Court Judges lose Police Endorsement – “Ochoa and Harter”!

veteransinpolitics.org/2014/09/two-clark-county-family-court-judges-lose-police-endorsement-ochoa-and-harter/

Judge becomes debt collector and signs bench warrant to help his attorney friend get paid!

veteransinpolitics.org/2019/09/judge-becomes-debt-collector-and-signs-bench-warrant-to-help-his-attorney-friend-get-paid/

 

 

Charles Hoskin

Corrupt judges running Unopposed! 7

Two Clark County Family Court Judges should be REMOVED from the bench NOT promoted!!

veteransinpolitics.org/2018/12/two-clark-county-family-court-judges-should-be-removed-from-the-bench/

Take a look at the following Clark County Family Court Judges

veteransinpolitics.org/2018/07/take-a-look-at-the-following-clark-county-family-court-judges/

“Letter sent to investigate the problematic Clark County Family Court System”

veteransinpolitics.org/2017/07/letter-sent-investigate-problematic-clark-county-family-court-system/

 

Bryce Duckworth

Corrupt judges running Unopposed! 8

THE POWER OF SPEAKING UP!

veteransinpolitics.org/2017/10/the-power-of-speaking-up/

 

ELECTIONS DEPARTMENT SEE WHO HAS FILED

Corrupt judges running Unopposed! 9

Election Department: Candidate Filing in Clark County

www.clarkcountynv.gov/election/Pages/CandidateFiling.aspx

The post Corrupt judges running Unopposed! appeared first on Veterans In Politics International.

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Decisions, decisions: Somali men convicted of terrorism enter fourth year waiting for appeals court ruling [The San Diego Union-Tribune]

Solano County Supervisor candidates report cash contributions [Times-Herald, Vallejo, Calif.]

Jan. 15–Several Solano County Supervisor campaigns reported receiving additional cash contributions recently, according to numerous contribution reports submitted to the Solano County Registrar of Voters. District 2 candidate K. Patrice Williams reported the largest donation — $5,000 cash from the Boilermakers Local 549 Political Action Committee (PAC), records show. Mitch Mashburn, seeking to represent District […]

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Will Dispute Arises Over Definition of “Personal Effects”

Will Dispute Arises Over Definition of “Personal Effects”

Originally published by Tiffany Dowell.

 

A recent case involving a will devising “personal effects” to a family member is a good reminder of the need to be detailed and complete when drafting a will, and the importance of residuary clauses.

Will Dispute Arises Over Definition of “Personal Effects” 10

Photo by sydney Rae on Unsplash

Background

In 1990, Mildred Ethridge drafted a will that included the following provisions:

I, MILDRED L. ETHRIDGE, (femme sole) of Midland County, Texas, for the purpose of the distribution of my entire estate, real, personal and mixed, which I wish to have take effect at my death, do make, publish and declare this to be my Last Will and Testament, and I do hereby revoke all former wills and testamentaries heretofore made by me at any time.

I hereby appoint and name Fred D. Davis, Jr. as Independent Executor and trustee of my estate, to serve without bond.  I give Fred D. Davis, Jr. all my personal effects to clear my estate after my death.

I give and bequeath my 1/2 ownership in my residence and homestead…to Patricia Petosky. 

Mildred passed away in 1994.  Prior to her death, she gifted her 1/2 ownership interest in the homestead to someone else, leaving Davis as the only named party under the will. Davis was named executor of her estate. 

At her death, Mildred had money in checking accounts and miscellaneous property including furniture and a television. She also had mineral interests that were not specifically devised in her will or included in the inventory submitted to probate.  The mineral lessee began paying royalties to Mildred’s estate and Davis opened a checking account to receive these royalties.  Believing he was entitled to her entire estate, he transferred the royalty payments from the estate’s checking account into his personal account.

Lawsuit

In 2010, Mildred’s heirs discovered they may have been entitled to royalties under her estate. They argued that the mineral interests did not pass under her will. At trial, the court had to construe the meaning of the term “personal effects.”  The court held that this term as more limited than “personal property” and rule that it included only the furniture and television owned by Mildred, but did not include her bank accounts, receivables, and interest in oil, gas, other minerals, royalties, real property, or other personal property.  As to these assets, the court held she died intestate and the intestate succession laws should govern distribution.

Davis appealed the court’s decision regarding the definition of “personal effects.”  The Eastland Court of Appeals affirmed the trial court’s ruling. [Read full opinion here.]

The court noted that, when interpreting a will, a court seeks to ascertain the intent of the testator based on the language included in the will itself.  Terms used in a will are to be given their “plain, ordinary, and generally accepted meaning” unless the will shows they were used in a technical or different sense.

First, Davis argued that the initial clause in her will stated that her intent was to dispose of her entire estate, real, personal, and mixed.  It was her intent, Davis argued, to divide her property into two categories–the 1/2 interest in the Oxford House, and then everything else, which she referred to as “personal effects.”  Davis argues the court should broadly interpret the phrase “personal effects” because Mildred was not an attorney and her will was not drafted by an attorney.

The court rejected this argument. Under the law, the term “personal effects” generally refers “to articles bearing intimate relation or association to the person of the testator” such as clothing, jewelry, toiletries, glasses, dentures, and luggage. Mineral interests do not fall within the scope of “personal effects.”  Further, Mildred indicated she intended to dispose of her entire estate, real, personal and mixed.  By stating she left only her “personal effects” to Davis, it appears she did not intend for that to include her real property as well.

In light of this, Mildred’s will did not dispose of her entire estate.  When a person drafts a will, there is a presumption that he or she intends to dispose of the entire estate.  That presumption is strong, noted the court, but can be overcome in situations where the testator fails to provide for complete distribution of property.  In that situation, the testator is found to have died intestate as to the property not included in the will.  In this scenario, the court upheld the finding that Mildred died intestate as to her mineral and royalty interests and her bank accounts.

Thus, the court affirmed.  Davis was entitled only to the furniture and television, while the bank accounts, mineral interest, and royalty interests passed through intestacy.

Key Takeaways

First, I think the most important reminder from this case is the need for including a residuary clause in a will. Even the most carefully drafted will may omit certain assets.  Whether that be something the testator simply forgot, something purchased after a will was drafted, or something that the testator thought was covered by the will that simply was not, this can certainly happen.  One way to avoid the issue here, where a portion of the estate passed outside the will via intestate succession, is to ensure that a will has a residuary clause.  This clause simply disposes of any estate assets that remain after all of the other devises in the will have been made. In this case, for example, had there been a residuary clause, the bank accounts, mineral rights, and royalty rights would have passed to the person named in the residuary clause.  A sample residuary clause could be: “I give the rest, residue, and remainder of my estate to my husband.”

Second, when writing a will, it is important for the testator to do his or her best to think of all assets owned.  I always recommend that before delving into will drafting or other estate planning, parties gather information on their assets, agricultural business, farm and ranch.  This includes an inventory list that identifies all major assets including real property, vehicles, equipment, mineral rights, royalty interests, bank accounts, retirement savings, investment portfolios, and personal property of significant value such as jewelry, artwork, and firearms. Having a complete inventory list can help to ensure one’s will does bequeath all of one’s assets.

Third, it is important to continue to update a will after it is drafted.  This is particularly important if major life changes occur such as births, deaths, divorces, or the sale or purchase of assets.  It is good practice to do a quick review of one’s will each year to ensure that changes do not need to be made.

Fourth, I always recommend that people at least consider using an attorney to draft a will.  There are certainly documents that I think people can adequately draft themselves without too much worry.  Wills, however, are so important and their interpretation is so critical that using an attorney to ensure that the testator’s wishes are carried out is generally well worth the cost.  Additionally, while there is an up-front cost to have a will drafted by an attorney, it will almost always be less than the cost of litigating a will dispute down the road.

Finally, for anyone serving as an executor of an estate, it is really important to ensure that the executor understands what assets exist and how they are to pass under the will.  Here, it was the executor’s belief that mineral and royalty rights were included in the term “personal effects” that caused the issue leading to litigation. Executors should be extremely careful and prudent before deeding over any assets from an estate.

 

 

 

 

The post Will Dispute Arises Over Definition of “Personal Effects” appeared first on Texas Agriculture Law.

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

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‘Bull’ Case Highlights Importance of Witness Prep

‘Bull’ Case Highlights Importance of Witness Prep

Originally published by Kacy Miller.

Testifying is stressful, regardless of topic. But when it’s about something personal, the witness requires even more intensive coaching to stay composed.

Michael Weatherly in an episode of CBS drama Bull that highlights the importance of witness prep.

Courtesy of CBS

Nothing says Happy New Year like a “Bull” episode with a predictably ridiculous happy ending. This week’s episode, “Look Back in Anger,” involves a civil trial alleging sexual abuse of a minor during camp for at-risk boys. The challenge, however, is the abuse occurred about 25 years ago. Even though New York temporarily lifted the statute of limitations for childhood sexual abuse for one year, suing over abuse from a quarter century ago is challenging, at best.

The plaintiff, Stephen Raposa, had originally hired Bull’s team to sue on behalf of his younger brother, Ryan, who claimed he had been molested at 13 by the camp’s founder, a wealthy businessman named Peter Maybrook. Ryan’s life had since been plagued with drugs, alcohol, theft and, generally, failing to cope in the adult world. One afternoon, Stephen finds Ryan bleeding out in his bathtub: He OD’d and slit his wrists to make sure the deed was done.

The team informs Stephen that despite New York’s new laws, he cannot sue on behalf of his deceased brother. Moments later, Stephen tearfully admits that he too was molested at the camp by Maybrook, and a claim is born.

The episode, as usual, confuses civil procedure with criminal procedure, and most of the time ignores procedure altogether. Apparently in the world of “Bull,” this thing called “discovery” does not exist, which makes for interesting television, but laughable moments. Instead of writing about the litany of far-fetched procedural snafus, I want to focus on a subtle, but critically important, interaction between Bull and his client.

After deciding to take on the case, Bull met with Stephen privately to talk through the details of what happened. (Note: Typically, this sort of meeting would occur before deciding to file a lawsuit, but again, procedural muckety-muck.)

Stephen has not told his story of childhood molestation to anyone before and he is clearly uncomfortable. Bull’s advice to him was spot-on:

[Your discomfort is] completely understandable, but you’ll have to tell the story in front of a jury, and the best way to prepare for that is here. 

Seldom do I wholeheartedly agree with Bull’s musings or tactics, but I can get on board with this one. Witness preparation is one of the most important, but often ignored, elements of trial prep. The law and the facts are the foundation of any successful case, but since human beings are the ones carrying the water for those facts, the people who tell your story must be ready to do so in a concise and compelling way. Unfortunately, the trial (and deposition) setting is so anxiety-producing that I’ve seen even the most composed professionals turn into sweating stammerers who would confess to the Lindbergh kidnapping just to get out of the hot seat.

Witness prep both helps them hone their message and also find ways to manage their (perfectly natural) anxiety. Here’s a rundown of my most crucial witness prep tips:

Acknowledge the Witness’ Discomfort

Whether your witness admits to it or not, he or she is feeling stress and anxiety about the prospect of testifying. And if your witness is testifying about personal issues, as opposed to accounting numbers or business policy, it’s even more difficult. This is especially true with victims in criminal matters; in family law cases, where dirty laundry and mudslinging accusations are almost a given; and in wrongful death or personal injury cases where a witness is testifying about a heart-wrenching loss, be it life or limb.

Empathize with your witness and acknowledge what they’re feeling. Let your witness feel all the feels; it’s OK. It’s not your job to make the feelings go away altogether. Instead, provide feedback that acknowledges what the witness is feeling and offer some support. Lawyering also involves a bit of shrinking (as does jury consulting).

The feelings that emerge when a witness recalls his story should never be overlooked, and I’m here to say, they often are. So, props to Bull for at least acknowledging the witness’ discomfort.

Practice Telling the Story

I’ve worked with witnesses who simply could not share their story without bursting into tears, expressing inappropriate anger or shutting down completely. And I am a friendly face and advocate. Can you imagine how these witnesses would fare in a deposition or on the stand without having told their story multiple times?

The more often a witness talks through her story, the more comfortable she’ll become with telling it. I’m not promising that your witness will turn into a rock star, but with preparation, she will certainly testify more effectively than they would otherwise. And know this: Telling the story does not always involve a formal mock question-and-answer session. Sometimes, you just need to have a casual conversation with your witness and allow her to process the experience, tap into the memory bank and figure out what her story actually is.

Use repetition to your advantage during the prep sessions. The story does not need to be perfect. It does not need to be trial-ready right out of the gate. It just needs to be accurate. Over time, the act of repetition teaches your witness that she can, in fact, tell her story. And tell it well.

Do Not Cram

The opportunities to talk through the story should occur long before the scheduled deposition or actual trial testimony. Do not, I repeat, do not, cram the night before. And do not wait until the witness bombs in a deposition to refine the message.

Ask any of my clients what I nag them about, and they’ll tell you this: Preparing your witness for testimony begins during discovery. It’s an ongoing process, not an eight-hour marathon meeting.

Break your prep sessions into multiple, shorter sessions. Yes, it’s a beatdown scheduling-wise, but it’s actually a win-win. The witness is provided more opportunities to tell her story and you are provided with multiple chances to identify inconsistencies, areas that require some information-gathering, and determining potential strengths and weaknesses from a fact standpoint.

Back to Bull

And now I realize I haven’t told you what happened in “Bull.” The quick version is this: Despite skepticism about Stephen Raposa’s claim that he too was abused by Maybrook (especially after the defense proves that Maybrook was out of the country during the critical date in Stephen’s testimony), Bull and team miraculously find photographic evidence of Maybrook’s affinity for young boys, resulting in a $35 million verdict against him.

The civil trial gave rise to criminal charges that most likely will put Maybrook in prison for a very, very long time.

OK, so I said it was a “happy” ending, and there isn’t such a thing when dealing with matters of sexual abuse. But, at the very least, there was a measure of justice for Raposa, which is something.

This article was originally published by Texas Lawyer on January 8, 2020. Reprinted with permission. © 2020 ALM Media Properties, LLC. All rights reserved.

 

 

Photo: Michael Weatherly as Dr. Jason Bull and Aaron Dean Eisenberg as Stephen Raposa in “Bull” season 4 episode 11: “Look Back in Anger.” Photo: CBS Broadcasting Inc.

The post ‘Bull’ Case Highlights Importance of Witness Prep appeared first on CourtroomLogic.

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

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