E-mail alert 4-15-03

The McTexLaw Email Alert for May 15, 2003

NOTE: this Email Alert is being distributed on May 17, 2003, in order to get beyond the May 16 legislative deadline for passage of legislation and to confirm the fallout from the Democrats’ Red River Runaway. The next set of legislative deadlines is May 23-28, followed by June 1 and 2. The last day for Gov. Perry to do his part is June 22. We have a list of all important legislative dates on our 2003 Legislation Tracking Center, www.mctexlaw.com/2003legislation.asp.

New on The McTexLaw Business Owner’s Resource Center:

2003 Legislative Update No. 2 for Business Owners: Narrowing the Field

We are in the last days of figuring out which bills have a real chance to become law. The Democrats’ Red River Runaway to avoid redistricting (read “desperately try to keep their power”–no reason to leave it up to the voters, now, is there?) has killed a bunch of the bills we were concerned with, so I suppose there’s an upside to these antics. For example, every franchise tax bill is dead for this session, so the franchise tax remains a voluntary tax. It’s all over June 2, so click the headline for our legislative update as of May 15, 2003 and see which bills still alive may affect you.

Illegal Discrimination by Employees Against Customers

Talk about making a mountain out of a molehill. Arguello and Govea, both Hispanics, went into a local Conoco convenience store/gas station to buy some beer and other goodies. They got into a “heated confrontation” with the employee cashier, with this employee inappropriately making several racially derisive remarks. Govea’s lawyer actually made a federal case out of this by alleging that Govea was deprived of his ability to enter into a contract on non-discriminatory terms, as prohibited by the United States Code, Section 1981. While I certainly can agree that the employee in this case acted inappropriately, consider that this case went to a jury, and the jury ruled against Conoco and in favor of Govea. It took an appeal (actually two) to straighten things out, but in the process of winning Conoco paid a pretty high price. Click the headline to read about how your employees can create federal anti-discrimination liability for your business in the context of simply selling your products and services. Let this be a word to the wise on employee training. Arguello, et al. v. Conoco, Inc., Case No. 01-11549, (5th Cir. May 5, 2003).

New on The McTexLaw Commercial Real Estate Resource Center:

2003 Legislative Update No. 2 for Real Estate: Narrowing the Field

We are in the last days of figuring out which bills have a real chance to become law. The Democrats’ Red River Runaway to avoid redistricting (read “desperately try to keep their power”–no reason to leave it up to the voters, now, is there?) has killed a bunch of the bills we were concerned with, so I suppose there’s an upside to these antics. For example, nearly every franchise tax bill is dead for this session, so the franchise tax remains a voluntary tax. It’s all over June 2, so click the headline for our legislative update as of May 15, 2003 and see which bills still alive may affect you.

How NOT to Modify a Written Contract: The Snakebit Pool Repair case

Owner DiMiceli was living the life of Riley, what with his nice home, his big swimming pool, and his 2 story cabana. But when his cabana burned down and the fire damaged his pool, he cut one too many corners trying to fix the pool, by hiring himself as his own general contractor, thereby proving the old adage yet again that “he who hires himself has a fool for a contractor.” In the process of repair, nearly everything that could go wrong did, and so DiMiceli and one of his subcontractors ended up in court firing away at each other. In the end, the only winners were the subcontractor’s lawyers, whose bill was more than all the other damages combined. Click the headline to learn more about who was responsible for what, and why. DiMicelli v. Affordable Pool Maintenance, Inc., Case No. 04-02-00497 (Tex. App.–San Antonio, Delivered and Filed May 7, 2003).

WE’RE MOVING!

As of June 1, 2003, our offices will be “relocated,” which is just a politically correct way to say we’re going to put ourselves through a very painful and expensive process (moreso for staff, of course), the result of which will be that we’ll drive a different course to the office every workday. Our new contact information will be:

17400 Dallas Parkway, Suite 112
Dallas, TX 75287-7306
972-381-9800 Office
972-381-9802 Facsimile

That’ll put us on the Northbound service road of the North Dallas Tollway, about 3 buildings South of Trinity Mills. This office building is half in Dallas County, and half in Collin County, due to some rather brilliant planning.

I have no idea in which county our offices lie, but I’m sure the county tax assessor’s office will let me know, and hopefully it’ll be just one assessor, not two. We look forward to continuing to serve our clients and colleagues from this more convenient, better centralized location.

How could that location be more centralized than our current offices? Because it’s closer to my home, and a short commute is one of the nicest luxuries of all.

THE TALE OF A LAWYER’S EXPENSE BILL: LIVIN’ LARGE JUST GOT LARGER

Those of you who know me personally know that I’m a huge racing fan, particularly of NASCAR Winston Cup racing. Every year about this time they run “The Winston”, NASCAR’s all star event, at Lowe’s Motor Speedway in Charlotte, the geographic center of the world that is stock car racing. Long about 2 years ago, it was Dale Earnhart, Jr.’s rookie season. He won here at Texas Motor Speedway, and then won the 16th running of The Winston, which had a purse of $2 million for one night race (still think this is a redneck sport? Go ahead–we can’t hear you think). He’s the only driver to ever win the event as a rookie.

Unfortunately, all did not end well for everyone that night, for as some fans began crossing a pedestrian bridge on their way back to what can only be described as “elaborate ritualistic tailgating ceremonies,” an 80 foot section of the 320-foot bridge collapsed and fell 17 feet onto the highway below, injuring 107 fans, 48 seriously, including the Taylor family from Virginia. Apparently, the 11 cables buried in the concrete were all corroded, at least contributing to the collapse.

The Taylors–Cindy, Marty and their son–filed suit against Lowes Motor Speedway and the walkway’s builder, Tindall Corp. In 2003, the Taylors’ case finally went to trial–and lasted for 10 weeks. During that time, the plaintiffs lawyers racked up a total of $355,373.85 in actual expenses for food, traveling and lodging. Yes, that’s right–$35,537.38 per week for 10 weeks. And since they won a $4+ million jury verdict, these Decadent Plaintiffs Lawyers asked the court to award them an extra $355,373.85 (that’s nearly a 10 percent increase) to pay these costs.

Now I’m sure we all understand that a jury trial is stressful, and the major actors in the melodrama, the lawyers, need to be decently taken care of. But how in the world can anybody–even a bunch of obviously Decadent Plaintiffs Lawyers–rack up those sorts of expenses? Obviously, there’s “decent” and then there’s “decadent.”

Well, to start, the plaintiffs’ lawyers were from Greenville, North Carolina, and the trial was in Charlotte, which cost $21,974.42 in travel alone. Adding significantly to the bottom line, more than $17,600 came from meals, several of which cost more than $200 at some of Charlotte’s swankiest restaurants, including:

Jan. 16, Mimosa Grill $493.92
Jan. 18, Mimosa Grill $271.11
Jan. 20, Carlo’s Italian Grill $242.28
Jan. 21, Bistro 100 $259.89
Jan. 22, Carlo’s Italian Grill $247.52
Jan. 23, Bistro 100 $216.33
Feb. 6, Bistro 100 $457.48
March 8, Mimosa Grill $288.28
March 13, Bistro 100 $212.97
March 17, Bistro 100 $454.50 (an early celebration, perhaps?)
March 20, Morton’s of Chicago $248.33

Don’t you just wonder what portion of these bills were for food as opposed to alcohol? It’s a wonder these guys didn’t have hangovers during the Days of Trial. And of course these lawyers couldn’t just stay at your local Holiday Inn. They needed the best hotels in the city for their troubles and to ease their heavy burdens. Then there was the private airplane costs at over $17,500, and $72,7556.81 in expert witness fees.......and on and on.

Tindall’s lawyer, who had to travel back and forth from Greensboro and did so on less than $7,000, was “stunned” when he got the $355,000 request. And he did the only thing he could do. He fought the request. The judge took the matter under advisement on a Tuesday, and issued his wise ruling the following Friday, May 3, 2003. The Decadent Plaintiffs Lawyers got a whopping $21,475.13 of their expenses awarded, a mere 6% of what they requested. The award included some expert witness fees, and the $208.46 in filing fees. That’s.....about.....it.

The family will probably have to pay at least some of the costs not awarded. After all, someone must pay for the decadence, and why should the ones who had control over incurring them have to carry this burden? Their lead attorney is on record as saying he would work out a “fair arrangement” with them, of course consider this from the lawyer who just won, probably, 40% of the Taylors’ $4 million judgment, or somewhere around $1.6 million. I guess that’s just not enough. At least both the plaintiffs and their lawyers have plenty of money to play with, but is it any wonder why Decadent Plaintiffs Lawyers are vilified by the public? Maybe we should add a required “mitigation of damages” requirement on the lawyers, as well as the parties, to help solve this problem. In the meantime, it’s just one more reason to protect yourselves from frivolous lawsuits and all the tangential costs involved with them, including Decadent Plaintiffs Lawyers.

SLICED AND DICED

Every year, Texas loses about 250,000 acres of midsized Texas farms and ranches, according to a new study by the American Farmland Trust and Texas Cooperative Extension. Most often, these ranches are sliced and diced into smaller fragments, usually due to a change in land use.

What’s driving this phenomenon? Finding land for hunting and recreation is overwhelmingly the biggest motivator for land buyers today. For more information visit www.farmland.org, and for help with subdividing your farm or ranch, give us a call.

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