Family Court Debate turns heated with local veterans group and family attorney!

Family Court Debate turns heated with local veterans group and family attorney!

Clark County Nevada

August 22, 2021

 

Veterans In Politics video internet talk show interviewed Louis Schneider a former Prosecutor and owner of Law Offices of Louis Schneider.

Schneider hails from Massachusetts has made Nevada his home.

Schneider has been practicing law for 17 years added that he has chosen family law over criminal law because in family law you can make a real difference, and in criminal law, most of your clients have done something wrong and you get them a soft landing.

Schneider has his own personal demons about the family court in Massachusetts.

Schneider said in family law he will not take a relocation case because it’s heartbreaking to take one parent from the other.

Schneider said in Nevada the judges have to reunite the parents by law, but we all know that’s not what happens.

Schneider said family court judges are the hardest working judges in the county.

Schneider kept repeating the judges look for the “best interest of the children”. The host repeatedly asks what does that means, but couldn’t get a straight answer.

The host brought up the issue that judges abuse their discretion, fail to follow the rule of evidence, and fail to follow Nevada Law and Federal Law. Schneider said he doesn’t see that in the courtroom.

 

DRUG TESTING IN FAMILY COURT

The host wanted to know why the family court judge order litigants to get a drug test on pure allegations without any evidence to support the allegations.

The host pounded on the issue and said according to Nevada Law only a criminal judge can order drug testing of litigants and civil judges has no jurisdiction to make such an order adding that family court judges are civil judges not criminal.

Schneider added that former family court judge Cynthia Dianne Steel wouldn’t order a litigant to take a drug test because it’s a violation of their constitutional rights without probable cause and it’s a criminal court case matter.

Schneider said if you are ordered to take a drug test and you refuse, it’s deemed dirty.

The host said wait a minute if you stand up for your constitutional rights and the law, how is your lack of drug testing deemed dirty? The host said that judges are legislating from the bench. If they want to change the law they need to lobby the legislature for the law to change until then they need to follow the law.

Schneider said it’s the policy of the court. But here is the problem a court policy is not law!

The host brought up the 14th Amendment that gives you equal protection under the law adding if judges want to skirt the law they are no different than anyone else.

Schneider refuses to listen to the law by echoing the safety of children, in other words, you can violate the law if it’s for the safety of the children.

The host once again saying that is not the law, amend the law and stop violating the law. A family court judge cannot order a litigant to take a drug test.

 

JURY TRIAL

The host suggested having a jury trial or a tribunal in family court when dealing with the relocation of children and termination of parental rights.

Schneider said that family court cases are complex and you can’t trust a jury to do that. The host pushed back and said wait a minute, in criminal court a jury decides prison or freedom, life or death, but a jury can’t make a decision on relocation or termination of parental rights, that is totally Ludacris!

Taking someone’s child is a civil death.

The host said one person that has the power to take a child from a parent breeds bias and corruption.

Schneider said a jury doesn’t have the understanding about family court, but yet a jury can decide if you live or die. We still can’t make sense from what Schneider is trying to say he is basically telling us that juries are idiots.

The host brought up the fact that the Constitution said that a parent has a right to parent their children.

The host stated that mediation is mandatory under Nevada State Law. Schneider said he believes mediation is the policy of the court, but yet some judges don’t order litigants to go to mediation before trial.

 

SCHNEIDER GIVES PRAISE TO THE FOLLOWING JUDGES:

Rena Hughes former disgraced judge who was sanctioned by the Nevada Commission on Judicial Discipline and the only sitting judge to lose her election in the primary. Hughes alienated a child from her mother, conducted ex-parte communication, threatened the 11-year-old child with jail, denied court observers in the courtroom, and a tyrant in a black robe.

Bryce Duckworth storms off the bench like a toddler, has predetermined a case without hearing any evidence, doesn’t enforce his own court orders, demonstrates bias in the courtroom, and is a total hypocrite.

Charles Hoskin puts his friends in Hearing Masters job positions by ignoring the votes of the majority judges, destroyed hundreds of elderly Nevadans lives even a documentary entitled The Guardians on Amazon showed how this judge reamed havoc on Nevada residents, he has the most letters for Against in the Nevada Commission on Judicial Selection history when he was attempting to secure the appointment to the Nevada Appellate Court.

Duckworth and Hoskin need to join Hughes at The Abrams Law Firm.

 

ELECTING JUDGES

Schneider said lawyers are paying for judges’ campaigns that breed abuse.

The host stated he has conversation from attorneys that feel threatened if they run against a judge, this is the reason why corrupt judges get a free ride by running unopposed.

The host stated that we have to find a way to remove bad judges by placing into law Remove or Retain. If a judge runs unopposed and Remove receives the most votes the seat becomes vacated, the Nevada Commission on Judicial Selection interviews candidates and sends three names to the Nevada Governor, from the three names Governor picks a person to fill the vacancy, and the following election year the person picked by the Governor runs for retention.

 

PRO SE LITIGANT

Schneider said pro se litigants receive a lot of leeway from judges.

Schneider was giving praise to the Legal Aid Center of Southern Nevada for their pro bono work. The host fired back and said before they take your case you have to be destitute out on the streets and if it’s pro bono work why does the judge order the other side to pay for the opposing parties’ pro bono attorney?

The host suggested the name pro bono needs to be changed to something else because pro bono means free.

 

NEVADA STATE BAR

Schneider said the Nevada State Bar beats up on one-man operations but refuses to go after established law firms.

The host brought up the fact that attorneys walk-off cases without notice abandoning the litigant in the courtroom and the judges allow this to happen. Schneider said that this behavior is against the law.

The host said if we keep turning a deaf ear and a blind eye to the corruption in our courtroom, it becomes normalized.

Schneider said he doesn’t see any corruption in the courtroom and he loves all the judges on the bench.

Schneider said that he takes offense when the host says the family court is corrupt.

 

VETERANS SERVICE-CONNECTED DISABILITY BENEFITS

Schneider said a family court judge cannot order the federal government to garnish your service-connected disability benefits.

The host said that the federal law protects a veteran’s disability benefits but some family court judges believe that they are entitled to take it from them.

 

VEXATIOUS

The host said corruption has many faces, many items make a judge corrupt not just cash payments.

The host wanted to know why litigants are considered to be vexatious when attorneys are just as bad or in some cases worse but yet they are not considered vexatious by the court. In addition, this is a violation of their constitutional right to be heard in a court of law.

Vexatious is used to shut the litigant up!

 

In Closing:

Schneider said all it takes for evil to triumph is for good people to do nothing!

Click on the link below to watch the explosive and informative interview:

Family Court Debate turns heated with local veterans group and family attorney Louis Schneider

www.youtube.com/watch?v=yyC7bLtUJ54

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Texas Custody Schedule Changed Due to School Absences

Originally published by Robert Epstein.

iStock-1252096710A parent’s behavior may affect their rights to access and possession of their child in a Texas custody case.  In a recent case, the trial court’s order provided that the schedule would change if the child had a certain number of unexcused absences or instances of tardiness while in the mother’s care.

According to the appeals court’s opinion, the trial court entered a custom possession order (CPO) as part of a modification order at the end of January 2020.  Pursuant to the CPO, the father had the right to possession of the child from Wednesday morning to Friday morning each week and from Friday morning to Monday morning every other weekend, and the parents alternated holidays and school breaks.  The CPO also provided that the mother’s possession schedule would change to the Standard Possession Schedule if the child had a total of any combination of five unexcused absences and “tardies” from school, as determined by the school, while in the mother’s possession.

Father Moves to Impose Standard Possession Order

The father moved to confirm and clarify the order and requested an injunction in April 2020.  He alleged the child had been tardy five days and absent two days during the fall semester of 2019.  He asked the court to confirm and clarify that the standard possession schedule was in effect and to grant an injunction.

 

He testified the child’s official school record showed the five tardy days and two unexcused absences and that the mother was responsible for getting the child to school on those days.  He presented a business records affidavit of the school’s records custodian dated January 30 and the child’s attendance records.  The records showed the child had four unexcused absences and five tardy days, including the specific days identified by the father.  He also testified that his attorney had attempted to resolve the issue without going to court.

The mother presented a business records affidavit dated June 16.  The attached records did not show the child was tardy on three of the dates on which he was shown tardy in the records introduced by the father.

The child’s kindergarten teacher testified she would rely on the records dated June 16.  She testified children are sometimes sent to the office when they arrive late, and that she and the office personnel can both input tardies.  She also testified that the system she uses and the system used by the office are different and that the two sets of records were from two different systems.

The mother testified she did not know if she was responsible for getting the child to school on three of the dates, which were on the days the parents alternated possession.

The trial court ordered the parties to use the standard possession and access schedule and awarded the father attorney fees.

Mother Appeals Trial Court’s Confirmation of Standard Possession Order

The mother appealed, arguing the trial court abused its discretion because it did not have sufficient evidence to support the order.  She argued the kindergarten teacher was an expert, and the trial court should have relied on the June records because the teacher testified she would rely on them and because they were more recent.

The appeals court noted the trial court had recognized the teacher as an expert in teaching, but not in education administration.  She had testified she was unfamiliar with generation and interpretation of school attendance records.  Although she acknowledged the discrepancy in the records, she could not explain it.  The appeals court further noted the trial court could have found she would rely on the June records because she was familiar with that report and not the one the father submitted.  The trial court had the discretion to discount her testimony.

Appellate Court Finds that Trial Court Properly Considered Conflicting Evidence

The appeals court noted that the trial court could also have found the January attendance records were more reliable than the June attendance records.  The June records contained a summary of absences and tardiness on a single page, which the appeals court noted was blurry and hard to read.  The January records included a “detailed accounting of the daily reports of attendance, absences, and tardies. . .”

Additionally, the court could have believed the father’s testimony that the mother was responsible for getting the child to school on the identified tardy and absent days.  The mother had admitted she was responsible on some of the days and did not remember who was responsible on the other days.

The appeals court found the trial court did not abuse its discretion in deciding to apply the standard schedule because there was substantial and probative evidence supporting it.

The appeals court found there was insufficient evidence supporting the award of attorney fees and remanded the case to the trial court on that issue, but otherwise affirmed the trial court’s order.

Walk into Court Prepared: Call McClure Law Group Today

A significant issue in this case is the conflicting evidence presented by the parties. Although the mother presented a witness to testify about the records, that witness was unable to explain the discrepancy.  If you are experiencing a custody dispute, a skilled Texas custody attorney can work with you to identify the evidence to best support your case.  Please contact McClure Law Group at 214.692.8200 to set up a consultation.

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



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What goes into an award of spousal support here in Texas?

Texas appeals court asked to reconsider same-sex divorce case

Originally published by On behalf of Laura Dale.

The battle for equal rights for same-sex couples didn’t end when the Supreme Court quashed the Defense of Marriage Act in 2015. New sorts of battles — many of them related to the way that same-sex couples were treated in the past — were just beginning.

One of those battles is determining what exactly makes a marriage when your marriage isn’t recognized under the laws of your state. Same-sex couples who were in long-term, committed relationships that fall technically short of the definition of marriage only because the parties were of the same gender find themselves facing this question often when such a marriage comes to an end.

Why does the date of a same-sex marriage matter if the couple is splitting? It’s simply because the start and end of a marriage is both a social and a financial contract. The date of a marriage often informs issues like how much spousal support a dependent spouse is due or what assets are really marital assets and subject to division in a divorce.

Now, the Texas Fifth District Court of Appeals is being asked to grant a new divorce trial to a man who split from his partner of 15 years just prior to the Obergefell v. Hodges decision that made same-sex marriage legal throughout the country. A lower court said that no marriage existed because there was no legal same-sex marriage in Texas.

The plaintiff and his attorneys argue that the couple did everything short of legally marry. They say that since they were prevented from doing so by a law that is now considered unconstitutional, that shouldn’t prevent the court from treating their relationship as a marriage.

Cases like this will, unfortunately, continue to come up for a long time into the future. That’s why same-sex couples seeking a divorce are wise to look for attorneys who understand their unique concerns.

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



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Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

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

One of the cool parts of being a family law attorney with the Law Office of Bryan Fagan is that there is never a dull moment. There are always unique people with unique circumstances who walk through our door with questions about their lives and their families.

Like Texas, many other states lay out a specific percentage of a non-custodial parent’s income to pay in child support to the custodial parent. Texas has it that for one child, a non-custodial parent should pay 20% of their net monthly resources towards the support of that child. For two children, 25% would go towards child support. The percentages increase by increments of 5% until you reach five or more kids topping out at 40%. In this way, courts have a straightforward mechanism to be put into action for determining child support in most cases. It has become so predictable that the guideline levels of support will be implemented that most attorneys and clients don’t bat an eye when the issue of paying guideline support is raised.

Recently, a potential client presented a scenario where he and his wife were divorced in a state other than Texas, and after the divorce the man’s ex-wife and children had moved to Texas. The state that the children and ex-wife had previously lived in was a higher than average cost of living state and our potential client was ordered to pay child support that is above and beyond the “guideline” levels of support for that state.

Our potential client was thus left with a child support order that obligated him to pay an amount of child support that was above and beyond what is proscribed in the family code of his native state. When a judge decides regarding any subject that is related to a child, he or she must do so based on what is in the best interests of that child. This is a standard that most every state utilizes when applying the law towards the specific circumstances of a child and their family.

Based on the needs of that child, their current circumstances, the ability of their parents to provide the necessities of life and any medical/social/educational needs of that child, an amount of child support will be ordered. Whether the parties to the divorce agreed in mediation to that level of child support or a judge ordered that the amount be paid after a trial, the fact is that the current child support order for this man obligates him to pay an above guidelines level of support.

Where does the Law Office of Bryan Fagan come into play?

Here is where our office becomes relevant to the discussion. This gentleman contacted us about representing him in a child support modification case. His thoughts on the matter center around the reduced level of expenses that his ex-wife is responsible for now that his children live in the Great State of Texas. Having moved from another state whose cost of living is much higher than Texas, our potential client wanted to see what a judge would consider as far as reducing the above guidelines level of child support. Is there a basis in prior court cases to argue that an out of state child support order can be modified to see a reduction in the child support obligation based on circumstances like this?

Today’s blog post from the Law Office of Bryan Fagan will seek to answer that question. As I see it, there are two parts to this discussion that we have to tackle. The first is whether or not a Texas Court has the jurisdiction to modify an out of state child support order. The second is what basis in the law would a family court judge have to reduce the above guidelines level of child support when there has been a change in the cost of living associated with raising children.

When does a Texas court gain the jurisdiction to modify an out of state child support order?

There are a couple of ways that a child support order that comes from a court outside of Texas could be modified, potentially, by a Texas family court. The Texas Family Code states in section 159.613 that if both the child support obligor (parent who pays child support) and the oblige (parent who receives child support payments) and the child all reside in Texas then our state has attained jurisdiction over the case and may modify and/or enforce the out of state order.

Likewise, when only one party (parent) live in Texas, then a modification is possible even if both parents do not reside in Texas. This occurs when the parent bringing the modification cases (in our above scenario, the father) is not a resident of Texas and the responding party (the mother in our example) lives in Texas and is subject to personal jurisdiction in Texas. Here, too, a Texas family court would have jurisdiction over the case.

What have Texas courts stated about subject matter like this?

So now we at least have a basic understanding of how a Texas court gains the ability to make rulings regarding an order issued by an out of state court. The jurisdiction to do so is critically important. You may be in a situation like our potential client- having seen a change in circumstances that have materially affected your family since the issuing of that order. Thus, some portion of your prior order is no longer suitable for you or your children. However, if you cannot successfully argue to a Texas court that jurisdiction is proper in Texas you will not be able to make an argument about any of the facts and circumstances that justify a modification.

A fairly recent Texas state appellate court decision would further assist us in our discussion. In re Dennis J. Martinez, 450 S.W.3d 157 (2014) contains within it a good discussion of the relevant law regarding how and when an out of state court can lose jurisdiction over a case and its parties.

This court notes that in section 159.205 of the Texas Family Code, our state law provides only two ways in which a court may lose jurisdiction over a case and its parties about a family law matter. First, the obligor, the oblige, and the child would have to all move out of the state that issued the order (as we discussed previously). Another and less likely scenario would be that all individuals file written consents in Texas allowing a Texas court to assume jurisdiction and modify the other state’s order.

As noted above, the circumstances under which a court may modify a support decree from another state are found in section 159.611 of the Family Code. SeeTEX. FAM.CODE ANN. § 159.611. A modification is permitted by the non-rendering state under the circumstances outlined in section 159.611 because under such circumstances the rendering state no longer has a sufficient interest in the modification of its order.

If you are facing a situation like a gentleman who contacted us about potentially representing him in a child support modification case here in Texas, you need to consider whether or not a Texas court will even be able to hear your arguments and potentially grant you whatever relief you are requesting. Keep in mind that if you cannot clear this jurisdictional hurdle you won’t even get the opportunity to submit any of your arguments to the court as to why your child support order needs to be modified.

Can a Texas court grant a reduction in the child support obligation of a parent under an out of state order?

Here is the question that our potential client is interested in knowing the answer to. He wanted to find out what facts and circumstances would need to be in play that could lead to a court in Texas reducing his above guidelines level of child support that he is currently obligated to pay.

A modification of a child support order is warranted when the petitioning party (the person asking for the modification) can provide evidence showing a material and substantial change in the circumstances of one of the parties to the order or a child of the order. As the court in Tucker v. Tucker, 908 S.W.2d 530 (1995), notes, there is an inherent fact-finding nature of child support issues and the cases that are made up of those issues.

The high court in Texas was stating what every family law attorney worth his salt could tell you: that family law cases are extremely fact-specific. If you would like to modify a child support order then you will need to present facts clearly and concisely to the court. This means that your initial petition to the court and in your oral arguments inside of a modification hearing need to display the requisite level of material and substantial change needed to grant the modification.

Cost in living expenses has been a factor alleged by prior parties seeking child support modifications

Part of the analysis that your court will look at when considering whether or not to grant a child support modification is the expenses incurred by the custodial parent who is raising the children on a day to day basis. Remember- our potential client would like to make an argument that because his ex-wife and kids now live in Texas, with its lower cost of living than their native state, is no longer in need of a child support payment that is above the guidelines of his home state.

Costs associated with special education for your child, school tuition and things of this nature are relevant to our discussion. A court would look to the expenses of your ex-spouse to determine whether there is sufficient evidence in the record to compare the expenses of her and your children at the time that the original child support order was issued and what the expenses are now. This means that you will need to do some digging to produce this kind of evidence, especially if the child support order is from a decade ago.

In the case, In the Interest of C.C.J. and C.M.J, Minor Children, 244 S.W.3d 911 (2008), the court went over a good analysis when that has to be shown to a court to justify a modification:

To determine whether there has been a material and substantial change in circumstances, the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. London v. London, 192 S.W.3d at 15. 

In that case, the parent who was attempting to modify the prior court order was the mother. She was arguing for an increase in the level of child support based on a material and substantial change in the circumstances of her and her children. Her expenses, she attempted to argue, had increased dramatically in recent years, while the income of her ex-husband had increased. The evidence she presented, the court determined was insufficient to justify an increase in child support. Here is what the appellate court determined:

Here, without both historical and current evidence of the financial circumstances of Mother and the children, the trial court had nothing to compare. See id. Because there is no evidence in the record of the financial circumstances of Mother or the children at the time of the entry of the divorce decree, we conclude the trial court’s finding of “a substantial and material change of circumstances since the rendition of the prior order” is not supported by the record. Accordingly, we conclude the trial court abused its discretion in increasing Father’s monthly child support obligation.

What does the Texas Family Code have to say about a decrease in the needs of a child about child support?

The Texas Family Code states that an increase in the needs, the standard of living, or lifestyle of the oblige since the rendition of the existing order does not warrant an increase in the obligor’s child support obligation. Texas Family Code section 156.405. I would also argue that the opposite could also be potentially held by a Texas court. Specifically that an argument that a decrease in the needs, the standard of living or lifestyle of the custodial parent is not necessarily a reason in and of itself to modify a child support obligation.

A Texas case that is important for our purposes is In the Interest of J.A.H. and M.K.H, Children, 311 S.W.3d 536 (2009). Here, as in the prior case we discussed, a mother was attempting to argue that an increase in her expenses due to a change in the cost of living after a move justified an increase in the child support obligation of her ex-husband. What the court found, in this case, was that all of the evidence submitted by the mother tended to show that there had been a change in her circumstances rather than a change in a substantial change in the circumstances of her children.

The court argued that simply showing a change in lifestyle and not a material or substantial change in circumstances of the children does not in and of itself justify a modification of the child support order. If you attempt to argue that because your ex-spouse’s mortgage payment has decreased or that their utility bills are lower and that justifies a decrease in the child support obligation, then this case should give you pause.

How are the needs of your child taken into account by a court?

Specifically, to justify an award of child support above the guidelines outlined in the Texas Family Code, your ex-spouse must show that there would be needs of your child that would be unmet but for the higher than guidelines level of support. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993). Note that the needs of your child are not the bare necessities of life, either. Each court will decide as to what the needs of your child are. Like we mentioned earlier in this blog post, the facts of your case will guide the judge in large part.

The bottom line: if you wish to modify a child support order come with plenty of evidence

Whether yours is an out of state child support order or an order that originates in Texas, you need to come to court with plenty of evidence that justifies the modification request A family court judge has the authority to reduce a level of child support that is currently set above the guidelines of your home state, but to earn that decrease in the support obligation you have to submit sufficient proof showing a change in the conditions of your spouse, your children or you. A material and substantial change regarding the cost of living is a trickier argument to make than one based on a change in your income or an increase (or decrease) in the educational or medical needs of your child.

Please consider contacting the Law Office of Bryan Fagan if you have questions about today’s material. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions in a comfortable and pressure free environment.

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



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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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