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Top Ten Reasons to Plan Your Estate Now – Number Three

In Articles, Blog

If you have a special needs child, do you have a plan in place that will allow your child to receive government assistance if something were to happen to you? Or would your child inherit assets that would disqualify him or her from receiving government assistance? Special Needs Trusts are instruments used by parents of special needs children, which allow …

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Assumption of Risk in Texas: A Very Brief Introduction

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Assumption of risk was once an affirmative defense in Texas tort cases. When successfully asserted, the affirmative defenses completely barred a plaintiff’s recovery. Historically, this affirmative defense to tort claims has been used frequently in negligence cases. However, the Texas Supreme Court has now abolished the defense. As explained by the Texas Supreme Court: “[T]he common law affirmative defenses of …

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Texas Construction Contracts: Pay-When-Paid or Pay-If-Paid?

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There is a big difference between so-called “pay-when-paid” clauses and “pay-if-paid” clauses. Pay When Paid A “pay-when-paid” clause relates to the timing of payment, such that the subcontractor gets paid when the general contractor gets paid. The general contractor remains obligated to pay a subcontractor regardless of whether the general contractor is ultimately paid by the owner. If payment by …

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No Tort Liability of Project Architect for Economic Damages Suffered by Contractor or Subcontractor

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LAN/STV v. Martin K. Eby Const. Co., Inc., 11-0810, 2014 WL 2789097 (Tex. June 20, 2014). The Eby opinion involves three parties: (1) the general contractor, (2) the architect, and (3) the Dallas Area Rapid Transportation Authority (“DART”). DART contracted with the architect, LAN/STV, to create the plans, drawings, and specifications for light rail project in downtown Dallas. Martin K. Eby …

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An Overview of Collateral Estoppel in Adversary Proceedings

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Collateral estoppel applies to adversary proceedings. The doctrine of collateral estoppel or issue preclusion provides that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Dowling v. United States, 493 U.S. 342, 347 (1990) (citing Ashe v. Swenson, 397 …

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Texas Franchise Tax Challenged

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The Texas Supreme Court heard arguments this week in a case that could have significant implications on the Texas franchise tax. Nestle USA and two Texas-based companies, Switchplace LLC and NSMBA Relators, sued the State of Texas arguing the Texas franchise tax is unconstitutional.  The franchise tax charges one-half of one percent to wholesalers, but a full one percent to …

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Update: Arbitration Provision in Trust Enforceable

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In Rachal v. Reitz, No. 11-0708, 2013 WL 1859249 (Tex. May 3, 2013), the Texas Supreme Court determined whether an arbitration provision contained in an inter vivos trust was enforceable against the trust beneficiaries. The trust contained a provision requiring all disputes regarding the trust and the trustee to proceed to arbitration. When a trust beneficiary sued the trustee alleging that the trustee …

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Introduced Bill Would Allow Substituted Service via Facebook

In Blog

Last week, the Texas Legislature introduced H.B. No. 1989 which, if enacted, would allow substituted service through social media websites in certain circumstances.  Under the proposed bill, if a court authorizes substituted service under the Texas Rules of Civil Procedure, the court may order service via an electronic communication sent to the defendant through a social media website. The court …

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Rule 11 Agreement Filed Over A Year After It Was Signed Is Enforceable

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In Markarian v. Markarian, the Dallas Court of Appeals upheld a trial court’s ruling that a final divorce decree signed by the parties, and filed over a year after it was signed, was enforceable pursuant to Rule 11 of the Texas Rules of Civil Procedure. Rule 11 provides that agreements must be (1) in writing, (2) signed, and (3) filed …