Category Archive for: ‘Texas Trial Law Advocate’

Texas Supreme Court Rules Franchise Tax is Constitutional

On October 19, 2012, the Texas Supreme Court held that the Texas franchise tax does not violate the Texas Constitution.  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 businesses …

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Tenth Court of Appeals Rules City is Immune From Suit

On November 1, 2012, the Tenth Court of Appeals held that the City of Bruceville-Eddy was immune from being sued in a declaratory judgment action brought by Daniel Ferguson, former Chief of Police.  See City of Bruceville-Eddy v. Daniel Ferguson, No. 10-12-00109-CV. The trial court had previously denied the City’s motion to dismiss for lack of jurisdiction.  The City argued …

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Foreclosing on Residential Property under the Protecting Tenants at Foreclosure Act of 2009

In response to the housing collapse in 2009, the United States Congress enacted the Protecting Tenants at Foreclosure Act of 2009 (the “Act”) to protect tenants who live in residential properties that are being foreclosed from abruptly losing their homes. Lenders foreclosing on residential properties must comply with the obligations presented by the Act before filing a forcible detainer action …

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Top Ten Reasons to Plan Your Estate Now – Number Three

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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A Primer on Expedited Actions Under Texas Rule of Civil Procedure 169

  In 2011, the Texas Legislature passed House Bill 274, which called upon the Supreme Court of Texas to promulgate procedural rules and amendments for expedited civil actions. The Supreme Court formed a task force to answer the legislature’s call, and the task force proposed several modifications to the Texas Rules of Civil Procedure. On November 13, 2012, the Supreme …

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Texas Supreme Court to Determine if Arbitration Clause in Trust is Enforceable

In Rachal v. Reitz, 347 S.W.3d 305 (Tex. App.–Dallas 2011, pet. filed), a beneficiary of a trust (the “Beneficiary”) sued the trustee (the “Trustee”), alleging failure to provide an accounting and breach of fiduciary duties.  The Trustee filed a motion to compel arbitration and to stay litigation, arguing that the Beneficiary must arbitrate his claims against the Trustee pursuant to …

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Strict Compliance Required for Default Judgment

In Bailey’s Furniture, Inc. v. Graham-Rutledge & Co., No. 05-11-00710-CV, the Fifth District Court of Appeals reaffirmed the long standing rule that strict compliance with Texas Rule of Civil Procedure 106(b) is necessary to establish proper service on a defaulting defendant.    In this case, the plaintiff unsuccessfully attempted to serve Charles Bailey, registered agent for Defendant Bailey’s Furniture on …

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Texas Supreme Court Holds Chiropractor Had a Duty to Disclose

In Felton v. Lovett, No. 11-0252, 2012 WL 5971207 (Tex. 2012), a patient, who suffered vertebral arterial dissection and stroke as a result of a neck manipulation, brought an action against a chiropractor, alleging that he failed to disclose risks associated with the neck manipulation procedure.  The jury found in favor of the patient and awarded damages against the chiropractor.  …

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Texas Supreme Court Enforces “Differing Site Conditions” Clause

 In El Paso Field Services, LP v. MasTec North America, Inc., No. 10-0648, 2012 WL 6634023 (Tex. Dec. 21, 2012), MasTec entered into a lump sum contract with El Paso to construct a $ 3.6 million butane pipeline for El Paso.  The contract contained a “differing site conditions” clause, which shifted the risk for unanticipated conditions to MasTec. MasTec also …

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Supreme Court of Texas to Issue Decision on Spoliation of Evidence

The Surpreme Court of Texas heard argument in September 2012, in Brookshire Bros., Ltd. v. Aldridge, No. 12-08-00368-CV, 2010 WL 2982902 (Tex. App.—Tyler July 30, 2010, pet. granted) (mem. op.). The issues presented involve whether the trial court erred by admitting evidence of spoliation and including a spoliation instruction in the jury charge of a slip-and-fall case. Aldridge slipped and fell …

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