Tax Day 2009

Death and Taxes. We've heard it before. Inevitable, right? One of them has a date-certain each year. The other is a moving target.

How are you spending your tax day? Rushing to file at the last possible moment? Sitting back and wondering how you could have spent your refund check so quickly? Attending one of the thousands of Tea Party gatherings around the nation?

The Best Job in the World??!!??

I think some people really enjoy their jobs. Others just tolerate them for the paycheck.

I don't think anyone has a chance to top this one. I'm linking to the Chronicle's page because the direct link is not working. I'm sure the site was knocked down with all the traffic.

Merry Christmas

I wish everyone a happy, safe and Merry Christmas.

Cheney and Gonzalez INDICTMENTS......DISMISSED

And almost as quickly as it started, the indictments against Dick Cheney, Albert Gonzales, State Senator Eddie Lucio Jr. and two district judges have been dismissed.

....an idiot for a client?

Pro se litigants is an interesting topic and many times, they serve as a ripe source of business. An article in today's online issue of the Houston Chronicle discusses the growing practice.

In my experience, most people are able to do a fair to good job representing themselves when everything goes right. The problem arises when things go wrong. Case in point, contracts drafted by non-lawyers typically lack key terms related to payment timing, delivery of goods and services, and dispute resolution. When these contracts have to be litigated, many times, there is very little substance to make a claim on because of the the vagueness of the contract.

As noted in the article, a more serious problem is when a pro se litigant fails to properly preserve error at the trial level. This in essence strips away the losing litigant's ability to appeal the decision.

It is also important to realize that Federal courts in the 5th Circuit (our circuit) do not allow a corporate entity (e.g. Corporation, Limited Liability Company)to appear pro se. As a legal entity separate from the individual, it must be represented by a licensed and admitted lawyer.

Once in a courtroom, there are books' worth of deadlines and procedures that must be followed. The penalty sometimes is the loss of your right to seek judicial remedy for your situation.

Cheney and Gonzalez INDICTED

Houston Chronicle Article

This story piqued my interest for a couple of reasons. First, any time a Vice-President and former cabinet member are indicted on criminal charges it must be big news. Second, the story was supposedly broken by my hometown television ABC affiliate.

If anything is evident from history, and several Law and Order episodes, an indictment is just an accusation. There are several ways in which this can all fade away e.g. the court can dismiss the indictment, the charges can be dropped and/or dismissed.

Despite this, I will be monitoring this situation.

New Website Launch

I had no idea when I wrote my last blog entry about Hurricane Price Gouging that I'd experience so much change because of Hurricane Ike.

The office building suffered significant damage from the storm. We are displaced for four months because of it.

The change of scenery also inspired me to update the old law firm website. Please take a look and send me your comments.

rochalawfirm.com

Post-Hurricane Price Gouging

With hurricane season in full swing, the unfortunate topic of predatory pricing and price gouging arises. For some unknown reason, some individuals will take advantage of others' misfortune at the worst possible time.

Texas takes a very strong stance against these predatory price practices. If you feel you have been unfairly charged for fuel, food, medicine or other necessity, you have a remedy under the Texas Deceptive Trade Practices Act (DTPA). In addition, the Attorney General's office has the authority to prosecute price gougers. You may file a complaint with the AG's office here.

From the AG's website:

Please understand that we cannot act as your attorney. State law prohibits our office from giving individual citizens legal advice or opinions or providing legal representation. If you feel that you need legal advice, you will have to turn to another source such as a private attorney, legal aid society or other organization.

We can file suit only to protect the public interest. State law prohibits our office from filing a lawsuit whose only purpose is to recover money or property for a single person. In those instances, it is appropriate for the consumer to seek legal advice from a private attorney, legal aid society or other organization.

Our office does file suit against companies that violate the laws protecting consumers. However, we file these lawsuits to protect the public interest, not private interests. Whether a lawsuit is in the public interest depends on several factors:

• Severity of the case in terms of economic loss or the number and gravity of law violations
• Possibility of halting a fraudulent scheme quickly
• Extent to which consumers will benefit from public enforcement
• Costs of enforcement as compared to the benefits to the public
• Likelihood of collecting penalties and restitution from the business

The DTPA is a powerful consumer protection law that gives you the right to sue for deceptive practices to recover your economic damages, mental anguish damages, and attorney's fees. In some cases, you may be entitled to recover treble (or multiple) damages if the defendant's acts are intentional.

We have represented clients with DTPA claims on a variety of matters.

Lottery Lawsuits

I, just like many other people, will pass a Texas Lottery billboard and spend the rest of my car trip imagining the possibilities of receiving a lottery payout. The end of all my problems, right?

In some cases, winning the lottery is just the beginning of problems. Domingo v. Mitchell, filed in the 237th JDC of Lubbock County, is a recent case that shows the problem with oral agreements about lottery pools.

For 2004 to 2006, Betty Domingo and Brenda Mitchell pooled their money together to buy lottery tickets. If either woman was short the money, the other would cover and be reimbursed win or lose.

In March 2006, Mitchell was invited to join LGroup LP, a group of women organized to buy lottery tickets. On March 23, 2006, Mitchell received an email from LGroup setting a meeting on the 30th at a restaurant to collect money and select numbers for the April 2006 lottery drawings. Mitchell invited Domingo to be part of the group. Domingo asked how much the group would cost her, Mitchell offered to cover Domingo's cost and be reimbursed at a later time.

On March 30, 2006, LGroup, LP met at a restaurant to collect money and pick lottery numbers. Unfortunately, Mitchell did not have enough money to pay for her dinner and both her share and Domingo's share in the LGroup ($17 per person). So she only paid $17 for herself.

Sure enough, the LGroup won a lottery with a cash-value of $20.9 million. Domingo filed a lawsuit against the members of LGroup and the Lottery Commission to stop the distribution of the lottery proceeds, because Domingo was not recognized as a member of the LGroup for the pay-out.

Mitchell won summary judgment in the trial court based on Domingo's claim of breach of contract. On appeal, the decision was reversed and sent back to the trial court for a full trial.

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So what can we learn from this case? Those informal agreements to buy lottery tickets might be enforceable as contracts. If that's the case, then maybe it's a good idea to take some of the time day dreaming about spending all that money and use it instead to come to a clear understanding about who is buying the lottery tickets, how to share costs, how to share the proceeds and timing of each.

Here today, gone tomorrow

I was recently introduced to United Title of Texas through a current client. All outward signs of the company seemed to point to a solid and stable company.

Imagine my shock when I read this...United Title of Texas Shuts Down Offices Statewide.

According to reports, its Colorado-based parent company lost its access to lines of credit used to cover operating costs.

I see it as another example of the nation's current economic concern kicking around an otherwise strong Houston real estate market.

Thug Zapper or Shock around the Clock

The Houston Chronicle is reporting that the Houston City Council has approved the use of electric fences by businesses to protect property. (Electric Fence Ordinance Story)The vote on council was 9-5 in favor of the ordinance.

Under the ordinance,

•The electric fence must be surrounded by a regular perimeter fence, with warning signs in English, Spanish and Vietnamese. Near homes, the perimeter fence must be a solid barrier to prevent children from poking things through that might touch the charged fence.

•The electric fence must be powered from a 12-volt battery and the current must not exceed 8,000 volts. The current must be pulsating, not continuous.

•The electric fence must be registered with the Houston Fire Department, and first responders should have the ability to shut off the power to the fence.

•The fence cannot be electrified between 8 a.m. and 5 p.m., unless the business is closed on weekends or security guards are on the grounds and can deactivate the fence quickly.

I'm curious to hear what you think about the new ordinance.

Sealed With A WHAT?

I remember as a kid sending out Valentine Day cards to classmates and receiving them each February. It was always a special thrill when the envelopes also came signed SWAK (Sealed With A Kiss).

I imagine the Texas Court of Criminal Appeals rarely receives correspondence with that romantic acronym. But I was shocked to find out it does receive correspondence sealed, or in this case smeared, with human EXCREMENT. This is not the only time it has happened to the highest criminal court in Texas. I'd hate to be the court clerk in charge of opening that mail.

The appeals court sought guidance from the federal court system on how to deal with this type of situation. It seems that the federal courts ALREADY have a rule in place to deal this these type of submissions.

On December 17, 2007, the Texas Court of Criminal Appeals entered Miscellaneous Order 07-101.

In four short sections, it sets out a new rule and consequence:
1. Don't send us stuff that constitutes a health hazard.
2. The Clerk of the Court can throw stuff that is a health hazard away without permission from the court. Oh and if you don't know what a health hazard is, here are a few examples: corrosive or dangerous chemicals, blood, food, feces, urine, or other bodily fluids.
3. The Clerk of the Court will maintain a written log of name, address, and identification numbers of the person who sent the offending material, and a brief description of the item disposed of. I can't wait to see the Freedom of Information Act requests to see THAT list.
4. The Clerk of the Court then gets to send a letter to the sender AND the supervisor of the jail or prison s/he is in, if applicable, telling the sender that any more "treats" like that will get him/her sanctioned by the court. No word on whether the Clerk may return the same generosity and consideration in its letter to the sender.

Believe it or not, this is why I stay on the civil side of the law.

Steroids and the Mitchell Report: MLB at fault

I'm not sure how many of you have had a chance to read the 409-page Mitchell Report. I'm as guilty as the rest of you in passing judgment based on news reports and talking head speculation.

I'm less interested in the names of the ball players that are included in the report. I think it stands to reason that these men are the epitome of the word competitive. It is in their blood, or genes, or souls. I don't have a hard time believing that they would take any step necessary to be the best at what they do. I'm not naive enough to forget that being the best means being paid like the best. But I still say that the competitive juices that flowed through their bodies before the chemical juices ever did, still drive them in their professional careers.

What I think the report shows is that rather than being a problem for a single individual or team, it shows that the steroid problem is a BASEBALL problem. It's one that the entire organization turned its head away from for the sake of its bank accounts and maybe even its very existence.

I didn't grow up a baseball fan. I thought the game was slow and boring. I preferred football to baseball any day. It wasn't until I had a room mate from Puerto Rico that I began to understand and appreciate baseball. For some reason, he grew up loving the Cincinnati Reds. Because they were in the same division as the Astros, I began following the Astros. That summer, I memorized pitching rotations and ERAs, BA's, K's, the works. I spent hours with newspaper print stained hands. Then the strike happened. I couldn't believe it. I felt like I had wasted all that time.

Just like the rest of America, I didn't come back to baseball until the homerun race between Mark McGuire and Sammy Sosa. Baseball knew what it was doing in bringing the fans back. MLB should be as much to blame as anyone named in the report.

So what's the legal angle here?

Noted defense attorney, Rusty Hardin, is now representing Roger Clemens. According to Mr. Hardin, he is only representing him in regards to public relations. There are no criminal or civil claims directed at Clemens.

I think the real fight is going to come along Labor lines. The Commissioner, Bud Selig, has said he will discipline current players as necessary. The Players' Association's lawyers should be busy in 2008 defending its members from these actions. Will MLB break the union or will it pass on this fight for the benefit of the game.......and the owners' wallets?

Who does the mortgage broker represent?

Recently, I had a client ask me to bring a complaint against a mortgage broker for failing to secure financing for a home purchase. It seems that in this time of instability in the mortgage world, there might be more similar complaints. I came across this case from the Texas Supreme Court which hits on an interesting point.

There's an interesting new case from the Texas Supreme Court, (Gaines v. Kelly, 235 S.W.3d 179 (Tex. 2007), which addresses express and implied authority of agents to bind their principal. What's it all about and what does it mean?

The basic facts of the case are that Roger Kelly ("Kelly") had a lease on a large chunk of real estate with an option to purchase. He contacted Robert Thompson (mortgage broker) to help him find financing for the purchase. Thompson contacted Russell Gaines ("Gaines") with Southwest Guaranty Mortgage Corp. to try to get the loan. Thompson received the loan application from Gaines and gave it to Kelly's attorneys. Kelly filled out the application and returned it to Thompson who returned it to Gaines.

According to Kelly, Thompson told him the loan was a "done deal." Of course, it wasn't otherwise we wouldn't be discussing a lawsuit at this point. Gaines requested more information about Kelly's interest in the property and that delay caused Kelly to almost lose the deal and have to take on additional partners to finance the deal without Gaines and Southwest Guaranty Mortgage ("Southwest").

So Kelly sued Gaines and Southwest for breach of contract and fraud based on Thompson's statement that the loan was a "done deal." So the question before the court is (1) Did Thompson have either express or implied authority to bind Gaines/Southwest in the loan deal?

The answer from Judge Medina was NO. Thompson may have been an intermediary between the mortgage company and Kelly, but he never took on the authority to bind Gaines or Southwest on the loan.

Kelly's lawyers pointed out that they sent Gaines a letter referring to Thompson as "your agent." The court said that was not enough evidence to put Gaines or Southwest on the hook. Even if Thompson was an agent for Gaines or Southwest, there was no evidence his agency role included binding either of them to a loan commitment.

There are a lot of different types of agents. The only way to know what authority an agent has is to look at the actions (or inactions) of the principal and not the agents.

Many times, a property buyer will contact a mortgage broker to help secure financing. It's important to remember that the broker is usually just an intermediary. The funding and all those decisions come from the lender. And the lender is the one with the authority to make any financing plan a "done deal."

Dreams to Passions to Plans to Profession

I came across this article from the CoolPeopleCare website. It's an interesting way to view the evolution of dreaming of possibilities and making them realities.

Denial of Unemployment Benefits

In Texas, we enjoy the benefits of "at-will" employment. Unless changed by an employment agreement, employees and employers have the right to start or terminate a job with or without cause.

This concept is different from the question of whether an employee is entitled to receive unemployment benefits after termination. That question is answered by the Texas Labor Code.

In essence, a former employee can be disqualified from receiving unemployment benefits for the following reasons:

• discharge for misconduct connected with the work

• voluntary quit for personal reasons

• refusal of suitable work without good cause

• work stoppage resulting from participation in a labor dispute

• receipt of wages in lieu of notice, workers' compensation, or retirement pension

A recent case from the appellate court in Texarkana, addressed the first reason. In TEXAS WORKFORCE COMMISSION V. BL II LOGISTICS, L.L.C., No. 06-07-00031-CV, the appellate court held that an employer's mere suspicion of misconduct connected with the work is not enough to disqualify a former employee from receiving unemployment benefits.

Send me an email if you would like a copy of the case in pdf form. Email Houston Lawyer at RochaLawFirm@gmail.com