A Bexar County jury decided to award $2.7 million this week to a local restaurant whose owners said they were fraudulently evicted last year from a North Side Drury hotel.
In the lengthy verdict, which is still pending approval from state District Judge Janet Littlejohn, jurors said Drury Southwest Inc. failed to comply with its lease with Louie Ledeaux #1 Inc.
The hotel chain also committed fraud, made a negligent misrepresentation and relied on a “false, misleading or deceptive act or practice” in dealing with the restaurant owners, the jury found Tuesday.
Louie's Hacienda Mexican Restaurant — an offshoot of a Cajun restaurant at The Forum shopping center — operated on the property of a Drury hotel near Loop 410 and Jones Maltsberger Road from December 2007 until March 2008.
Drury was the first to sue, claiming in court documents that the restaurant “closed the doors intending to not reopen.” The hotel asked the court to bar the restaurant from taking anything, other than food, from the premises because Drury was entitled under the lease to keep all improvements.
The restaurant had invested about $400,000 in equipment at the site, it said.
Louie Ledeaux #1 Inc. later filed a countersuit, claiming Drury had failed to mention during the signing of the lease that the Jones Maltsberger exit along Loop 410 was slated for closure. The hotel also said it would build a patio in an area that it did not own, and that the company would be able to add a sign under the Drury marquee, according to the counterclaim.
While the restaurant operators did meet with hotel representatives to discuss an initiative to make the restaurant more profitable, they were never delinquent in rent and never intended to close, they said in court documents.
The jury decided Drury and its lawyers deserved about $112,533 from the restaurant.
But the verdict, if upheld, will make the hotel chain responsible for paying almost $1.3 million for committing fraud and nearly $1.1 million for engaging in a false, misleading or deceptive act or practice. Jurors also awarded the restaurant $286,088 because Drury didn't comply with the lease and another $158,000 in attorney's fees.
Adapted from the Express News
Thứ Sáu, 31 tháng 7, 2009
Thứ Năm, 30 tháng 7, 2009
HOAs target anti-KB signs
Homeowners in three San Antonio neighborhoods are continuing to battle with KB Home — and now their builder-controlled homeowners associations — about KB's decision to add lower-priced homes to their communities.
Although the fight over changing prices and home sizes has been ongoing for months, at issue now are the “For Sale by Owner” signs planted in some front yards that refer passers-by to the Web site KBLies.com.
Homeowners say the professionally made signs are a way to advertise their homes for sale and meet neighborhood covenants.
But the HOA at the Quarry at Iron Mountain, an upscale community in the Sonterra area, contends the signs violate neighborhood regulations and must be removed by Monday. The HOA board is controlled by KB Home, which has two-thirds of the votes. Covenants say homeowners could be fined $100 a day, and that failure to pay fines could result in a foreclosure proceeding.
Homeowners in Sundance Ridge and Sundance Trails, located west of Loop 1604 near Potranco Road, also have received HOA letters about their yard signs, but will begin having hearings before their board next week.
“I have no faith that they're going to give us any other answer,” Sundance Trails resident Jennifer Czuhajewski said.
Several homeowners from the Quarry at Iron Mountain, Sundance Trails and Sundance Ridge held a news conference Thursday to protest what they say are unfair actions by KB Home and the homeowners associations to suppress their free speech rights.
Quarry at Iron Mountain resident Sharon Cox said she was asked to prove her home is for sale at her HOA hearing earlier this week, and that board members said a legitimate listing would be one with a real estate agent and a number in the Multiple Listing Service.
“We made a sworn statement in front of their attorney that our home was for sale,” Cox said. “Do I need to take a lie detector test? I want to leave this neighborhood.”
There are seven homes listed for sale on the KBLies.com Web site.
“We have a real issue here of constitutional rights,” said Janet Ahmad, president of HomeOwners For Better Building.
Cathy Teague, the spokeswoman for KB Home who sits on the board of the HOAs, said other neighbors have questioned the motivations of the disgruntled homeowners.
“There's no telephone number so that somebody could contact them about the home,” Teague said of the for-sale-by-owner signs. “Any reasonable person would take a look and question whether the intent is to sell the home or to destroy the peace and quiet and harmony of the neighborhood.”
Meanwhile, some other homeowners at the Quarry at Iron Mountain have placed “I love my KB Home” dashboard visors in the windows of their homes or cars.
“We're trying to keep this quiet,” said Fortunato Tinoco, a resident of the Quarry at Iron Mountain who has such a sign in his front window. “It's like when families quarrel. You don't want the whole world to know.”
Tinoco said dozens of other residents signed a petition asking HOA board members to take action against the for-sale-by-owner signs. He does not believe the other homeowners really intend to market their homes for sale.
Resident George Horace, who has an “I love my KB Home” sign, said the negative yard signs have caused potential residents to cancel contracts on homes in the neighborhood. “You can't blame people for walking away,” he said. “They're paying $300,000 for a house. There are plenty of other options.”
Buying a new home in a still-developing community always carries risks, but the stakes have gotten higher as builders face a challenging market. KB has said it had to change the home product in the communities due to the economy.
Although the fight over changing prices and home sizes has been ongoing for months, at issue now are the “For Sale by Owner” signs planted in some front yards that refer passers-by to the Web site KBLies.com.
Homeowners say the professionally made signs are a way to advertise their homes for sale and meet neighborhood covenants.
But the HOA at the Quarry at Iron Mountain, an upscale community in the Sonterra area, contends the signs violate neighborhood regulations and must be removed by Monday. The HOA board is controlled by KB Home, which has two-thirds of the votes. Covenants say homeowners could be fined $100 a day, and that failure to pay fines could result in a foreclosure proceeding.
Homeowners in Sundance Ridge and Sundance Trails, located west of Loop 1604 near Potranco Road, also have received HOA letters about their yard signs, but will begin having hearings before their board next week.
“I have no faith that they're going to give us any other answer,” Sundance Trails resident Jennifer Czuhajewski said.
Several homeowners from the Quarry at Iron Mountain, Sundance Trails and Sundance Ridge held a news conference Thursday to protest what they say are unfair actions by KB Home and the homeowners associations to suppress their free speech rights.
Quarry at Iron Mountain resident Sharon Cox said she was asked to prove her home is for sale at her HOA hearing earlier this week, and that board members said a legitimate listing would be one with a real estate agent and a number in the Multiple Listing Service.
“We made a sworn statement in front of their attorney that our home was for sale,” Cox said. “Do I need to take a lie detector test? I want to leave this neighborhood.”
There are seven homes listed for sale on the KBLies.com Web site.
“We have a real issue here of constitutional rights,” said Janet Ahmad, president of HomeOwners For Better Building.
Cathy Teague, the spokeswoman for KB Home who sits on the board of the HOAs, said other neighbors have questioned the motivations of the disgruntled homeowners.
“There's no telephone number so that somebody could contact them about the home,” Teague said of the for-sale-by-owner signs. “Any reasonable person would take a look and question whether the intent is to sell the home or to destroy the peace and quiet and harmony of the neighborhood.”
Meanwhile, some other homeowners at the Quarry at Iron Mountain have placed “I love my KB Home” dashboard visors in the windows of their homes or cars.
“We're trying to keep this quiet,” said Fortunato Tinoco, a resident of the Quarry at Iron Mountain who has such a sign in his front window. “It's like when families quarrel. You don't want the whole world to know.”
Tinoco said dozens of other residents signed a petition asking HOA board members to take action against the for-sale-by-owner signs. He does not believe the other homeowners really intend to market their homes for sale.
Resident George Horace, who has an “I love my KB Home” sign, said the negative yard signs have caused potential residents to cancel contracts on homes in the neighborhood. “You can't blame people for walking away,” he said. “They're paying $300,000 for a house. There are plenty of other options.”
Buying a new home in a still-developing community always carries risks, but the stakes have gotten higher as builders face a challenging market. KB has said it had to change the home product in the communities due to the economy.
Thứ Ba, 28 tháng 7, 2009
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Thứ Bảy, 25 tháng 7, 2009
HOA Votes to Ban Smoking
It's not just indoor public places in Eau Claire where lighting up is prohibited. Now residents of a south side, owner-occupied housing complex will have to snuff out smoking in their homes, the most recent sign of public anti-smoking sentiment.
Members of the Fairfax Parkside Homeowners Association on Wednesday voted to outlaw smoking inside residences that are part of the 34-unit development. The ban also prohibits smoking in shared spaces, such as porches and garages, but does allow it in yards and on patios.
Of the 19 association members who voted on the issue, 15 favored the anti-smoking regulation proposed by association President Dave Hanvelt, while four argued that residents should be allowed to smoke in their homes.
"This doesn't restrict a smoker from living here," Hanvelt said of the smoking prohibition. "It just means that there are restrictions on where they can smoke."
Fairfax Parkside is believed to be the first Eau Claire development in which homeowners aren't allowed to light up indoors. "I'm not aware of any other instances where that is the case," said Julie Marlette, coordinator of the Tobacco Free Partnership of Eau Claire County.
The adoption of the indoor anti-smoking rule likely won't impact many Fairfax Parkside homeowners, as Hanvelt said he doesn't know of any smokers in the development. But it does restrict future homeowners there from smoking, and visitors also won't be allowed to smoke inside.
"You don't want to have to worry about your non-smoking neighbor moving out and a smoker moving in," he said.
Hanvelt proposed the regulation earlier this year because homeowners in the development own twin homes, or each side of a duplex-style home. Because of their close proximity, smoke from one unit could flow into the one next door.
"If we all lived in separate units, this wouldn't have been necessary," Hanvelt said, noting homeowners association members made sure to allow outdoor smoking so as to not be too restrictive.
The Fairfax Parkside regulation marks an extension of non-smoking rules from public places to private residences. Last year the Eau Claire City Council approved a controversial ban on smoking in indoor public places, including taverns.
The issue prompted heated response from people on both sides of the issue, and opponents were concerned that the ban could open the door to prohibitions on smoking in people's homes.
Word of the smoking restriction enacted at Fairfax Parkside has some people fuming.
"We worried that this might happen, and now it appears that it has," said Sally Jo Birtzer, a nonsmoker who is president of the Eau Claire City-County Tavern League and general manager of Wagner's Lanes. "As long as tobacco is a legal product, people should be allowed to smoke it in their own homes."
While preventing smoking in privately owned homes is unusual, prohibiting the practice in rental residences isn't unheard of in Eau Claire and elsewhere. Some landlords don't allow renters to smoke indoors in an effort to keep those living quarters cleaner and to reduce the chances of a house fire.
Stomping out smoking in multifamily rental units is a growing trend in other parts of the U.S., Marlette said. "I think people are recognizing the exposure that is occurring to secondhand smoke in multiunit housing," she said. "It is definitely a bona fide health issue, and I think we're going to see more requests for those units to go smoke free."
Dave FitzGerald, one of the Fairfax Parkside developers who also lives there, initially questioned whether the non-smoking measure would hinder future sales in an already tough housing market. But FitzGerald, a nonsmoker, said the anti-smoking rule could attract buyers too, especially given that nearly four of every five people don't smoke.
"Could we lose a sale to somebody who is a smoker? Certainly," FitzGerald said. "But I think there is a better chance of having somebody be willing to live here because there isn't any smoking."
Hanvelt knows firsthand the frustrations of living next to a smoker in a shared-space residence. He previously spent thousands of dollars at a former residence retrofitting his unit to prevent cigarette smoke from a next-door neighbor from making its way to his home, but the effort proved unsuccessful, he said.
Now he looks forward to living in a smoke-free environment. "We adopted this for our own safety and health," Hanvelt said. "This is a very nice place to live, and we want to keep it that way."
from the Eau Clair, WI Leader Times
$666,446 in HOA Funds Missing -- FBI Joins Search
The Albemarle County Police Department has opened a joint criminal investigation with the FBI to find out what happened to the $666,446 missing from the Glenmore Community Association’s coffers.
An Albemarle detective and the FBI met with the association’s new treasurer on Tuesday, said police spokesman Lt. Todd Hopwood. The wife of Michael Comer, the former association treasurer who has been reported missing, also made her first public statements about his disappearance.
Comer, 45, was reported missing July 1, the date of a meeting he missed to discuss the association’s first external financial audit. The results of an expanded audit showed that money was removed without authorization over the last four years from operating and reserve accounts.
Comer also was the president of the Glenmore Country Club. Kandi Comer, his wife, is a former professional golfer and the golf director at the club. According to Albemarle County property records, the Comers own a home on Milton Village Lane near Glenmore.
Kandi Comer said in a written statement Tuesday that the family didn’t notice anything suspicious before the disappearance of her husband.
“It is frustrating because we are thinking and worrying about Mike 24 hours a day and want to do something to help find him, but all we can do at this point is continue to pray that he is safe and will come home,” the release said.
Kandi Comer reported her husband missing at 7:30 p.m. July 1, more than seven hours after he reportedly left to take a hike originating from his Wintergreen Resort vacation home. Police found Michael Comer’s unlocked car with his keys and cell phone inside at the house, but didn’t find him in the home or in the surrounding woods during a two-day search.
Hopwood said “obviously the disappearance is part” of the investigation into the missing funds. Albemarle police Sgt. Tim Aylor, the detective handling the case, said the case will require an “extensive investigation.”
Trevor Joscelyne, the association’s president, said the association collects $766 a year from about 720 lot owners for maintenance of the common areas and security. Joscelyne said the association is planning to delay road maintenance to make up for the missing expenditures, which were transferred from the association’s accounts to Glenmore Associates. According to a memo sent to Glenmore residents from Joscelyne and the association’s board of directors, some payments from the country club, which is owned by Glenmore Associates, were recorded but not received.
Glenmore Associates, where Michael Comer was a senior official, announced its intention Monday to repay the association in full. According to the association’s letter, Glenmore Associates will have to sell or refinance assets to repay the entire amount due to the economy. The letter said the company already has paid $50,000, plans to pay another $205,000 in the next two weeks and the remainder with interest within the next year.
“Your board of directors is evaluating this proposed settlement as a preferred alternative to taking legal action to recoup the losses,” the memo said. “We are mindful of the potential cost and duration of litigation, as well as the distinct possibility that it could lead to a devaluation of Glenmore property values far in excess of the approximately $900 per residence that is missing.”
Jeff Gaffney, a top official with Glenmore Associates and Michael Comer’s brother-in-law, didn’t immediately return a call seeking comment for this story.
The community association’s 2009 budget is $732,000. According to the homeowner letter, the association has $488,000 in available funds as of July 1, which is “sufficient cash on hand (to) continue operations for the time being.”
The Glenmore Community Association was incorporated in 1992; Michael Comer became treasurer in 1994. An external audit wasn’t ordered before because previous directors thought the $10,000 price tag would have been burdensome, the letter said, so the association relied on the treasurer to keep accurate books.
According to the association’s memo, the board didn’t look at bank statements because they trusted Michael Comer. The board hasn’t been able to find the paperwork for a $1 million fidelity bond that the former treasurer said was in place to cover half of its annual dues plus accumulated reserves, the letter said. The board now is taking steps to secure the necessary bond.
Kandi Comer said in Tuesday’s statement that her husband’s disappearance has been unspeakably difficult for their family. She described Michael Comer as an honest, hardworking man and a devoted father.
Nelson County Sheriff David Brooks said Tuesday that the investigation into Michael Comer’s disappearance remains open without any leads. Brooks said his office is working with U.S. Immigration and Customs Enforcement to see if Comer may have left the country.
New Advance, Lynchnurg, VA.
An Albemarle detective and the FBI met with the association’s new treasurer on Tuesday, said police spokesman Lt. Todd Hopwood. The wife of Michael Comer, the former association treasurer who has been reported missing, also made her first public statements about his disappearance.
Comer, 45, was reported missing July 1, the date of a meeting he missed to discuss the association’s first external financial audit. The results of an expanded audit showed that money was removed without authorization over the last four years from operating and reserve accounts.
Comer also was the president of the Glenmore Country Club. Kandi Comer, his wife, is a former professional golfer and the golf director at the club. According to Albemarle County property records, the Comers own a home on Milton Village Lane near Glenmore.
Kandi Comer said in a written statement Tuesday that the family didn’t notice anything suspicious before the disappearance of her husband.
“It is frustrating because we are thinking and worrying about Mike 24 hours a day and want to do something to help find him, but all we can do at this point is continue to pray that he is safe and will come home,” the release said.
Kandi Comer reported her husband missing at 7:30 p.m. July 1, more than seven hours after he reportedly left to take a hike originating from his Wintergreen Resort vacation home. Police found Michael Comer’s unlocked car with his keys and cell phone inside at the house, but didn’t find him in the home or in the surrounding woods during a two-day search.
Hopwood said “obviously the disappearance is part” of the investigation into the missing funds. Albemarle police Sgt. Tim Aylor, the detective handling the case, said the case will require an “extensive investigation.”
Trevor Joscelyne, the association’s president, said the association collects $766 a year from about 720 lot owners for maintenance of the common areas and security. Joscelyne said the association is planning to delay road maintenance to make up for the missing expenditures, which were transferred from the association’s accounts to Glenmore Associates. According to a memo sent to Glenmore residents from Joscelyne and the association’s board of directors, some payments from the country club, which is owned by Glenmore Associates, were recorded but not received.
Glenmore Associates, where Michael Comer was a senior official, announced its intention Monday to repay the association in full. According to the association’s letter, Glenmore Associates will have to sell or refinance assets to repay the entire amount due to the economy. The letter said the company already has paid $50,000, plans to pay another $205,000 in the next two weeks and the remainder with interest within the next year.
“Your board of directors is evaluating this proposed settlement as a preferred alternative to taking legal action to recoup the losses,” the memo said. “We are mindful of the potential cost and duration of litigation, as well as the distinct possibility that it could lead to a devaluation of Glenmore property values far in excess of the approximately $900 per residence that is missing.”
Jeff Gaffney, a top official with Glenmore Associates and Michael Comer’s brother-in-law, didn’t immediately return a call seeking comment for this story.
The community association’s 2009 budget is $732,000. According to the homeowner letter, the association has $488,000 in available funds as of July 1, which is “sufficient cash on hand (to) continue operations for the time being.”
The Glenmore Community Association was incorporated in 1992; Michael Comer became treasurer in 1994. An external audit wasn’t ordered before because previous directors thought the $10,000 price tag would have been burdensome, the letter said, so the association relied on the treasurer to keep accurate books.
According to the association’s memo, the board didn’t look at bank statements because they trusted Michael Comer. The board hasn’t been able to find the paperwork for a $1 million fidelity bond that the former treasurer said was in place to cover half of its annual dues plus accumulated reserves, the letter said. The board now is taking steps to secure the necessary bond.
Kandi Comer said in Tuesday’s statement that her husband’s disappearance has been unspeakably difficult for their family. She described Michael Comer as an honest, hardworking man and a devoted father.
Nelson County Sheriff David Brooks said Tuesday that the investigation into Michael Comer’s disappearance remains open without any leads. Brooks said his office is working with U.S. Immigration and Customs Enforcement to see if Comer may have left the country.
New Advance, Lynchnurg, VA.
Utah Man Shot While on HOA Patrol
This is a sad story, involving a man trying to make his neighborhood a better place.
NC Woman charged with stealing $35,000 from homeowner's association
A Flat Rock, North Carolina woman has been charged with obtaining property by false pretenses for allegedly stealing from a homeowner’s association.
Heather Pettit Barnette, 31, was charged with obtaining property by false pretenses by allegedly taking $35,544 from the Shadowbrook Property Owner’s Association, according to court records. Barnette was arrested late last month, but was released from custody without a bond.
The alleged crime occurred between Sept. 20, 2002 and Nov. 15, 2008, according to court records. Barnette is slated to appear in court on this charged on Aug. 28.
Heather Pettit Barnette, 31, was charged with obtaining property by false pretenses by allegedly taking $35,544 from the Shadowbrook Property Owner’s Association, according to court records. Barnette was arrested late last month, but was released from custody without a bond.
The alleged crime occurred between Sept. 20, 2002 and Nov. 15, 2008, according to court records. Barnette is slated to appear in court on this charged on Aug. 28.
Community associations can be easy targets for con artists
Community associations - and their budgets - can be ripe targets for con artists.
Associations are run by unpaid volunteers, some with little more financial experience than balancing a personal checkbook. And many condominium and homeowner associations have large and multiple bank accounts, with checks constantly coming in and going out for maintenance and other projects.
Amid all of that, directors have to learn to fight against possible fraud from those within the community and from the outside.
"Fraud is an ongoing threat to associations. And the likelihood of being a victim escalates during bad times," said Donna Berger, the executive director of the Community Advocacy Network, a lobbying group for associations.
"Association boards are run by volunteers who take time away from families, jobs and hobbies to serve. Con artists know these time constraints and divided attention might leave an opening."
With that in mind, Berger and other experts advise association members to be on guard and take specific steps to prevent fraud.
Berger recommends directors need to take the time, for instance, to create a delicate system of checks and balances to make sure the books remain in order. And don't leave the work to one or two members. The entire board should be up to speed on all financial transactions and practices. Berger's strongest piece of advice: Make sure your association requires two signatures to write an association check.
"If you do not already require two signatures to write an association check, consider implementing this requirement," Berger said. While it might prove to be inconvenient at times, it's a good security measure.
More tips:
Make sure to have a bond in place for every person who has access to association funds.
Pay attention to details. In bad times, employees might be more tempted to steal money by exploiting weaknesses in an association's financial controls. Look closely at what supplies are being ordered, what checks are sent out and all petty cash disbursements.
Review the association's "Employee Dishonesty" coverage under its insurance policy to determine what losses will be covered and not covered. The last thing you want is to be ripped off by an office manager, find out your association is not covered and you owe an insurance bill.
Check your own records regularly. Even if you have professional management in place, it is essential that the board review all bank accounts each month, every month.
Obtain photocopies of checks from the bank and review the payee, amount and authorizing signatures.
A monthly examination will catch checks paid to unauthorized suppliers and vendors or those approved with fraudulent signatures. Also, transfers between all bank accounts should be reconciled. Many fraudulent transactions are intentionally committed near the end of the month to allow the wrongdoer to cover the fraud by categorizing it as an outstanding deposit or a check in transit, Berger said. This usually leaves 30 days for the board and/or manager to forget about the discrepancy or for the employee to cover up the misappropriation.
Look out for red flags. Are checks being sent to a series of companies with similar sounding names? If your association is paying the American Pool Company for monthly services and the American Pool Inc. too, there could be a problem. Also look out for money being sent to businesses using P.O. box numbers rather than street addresses.
By Daniel Vasquez, The Sun Sentinel
Associations are run by unpaid volunteers, some with little more financial experience than balancing a personal checkbook. And many condominium and homeowner associations have large and multiple bank accounts, with checks constantly coming in and going out for maintenance and other projects.
Amid all of that, directors have to learn to fight against possible fraud from those within the community and from the outside.
"Fraud is an ongoing threat to associations. And the likelihood of being a victim escalates during bad times," said Donna Berger, the executive director of the Community Advocacy Network, a lobbying group for associations.
"Association boards are run by volunteers who take time away from families, jobs and hobbies to serve. Con artists know these time constraints and divided attention might leave an opening."
With that in mind, Berger and other experts advise association members to be on guard and take specific steps to prevent fraud.
Berger recommends directors need to take the time, for instance, to create a delicate system of checks and balances to make sure the books remain in order. And don't leave the work to one or two members. The entire board should be up to speed on all financial transactions and practices. Berger's strongest piece of advice: Make sure your association requires two signatures to write an association check.
"If you do not already require two signatures to write an association check, consider implementing this requirement," Berger said. While it might prove to be inconvenient at times, it's a good security measure.
More tips:
Make sure to have a bond in place for every person who has access to association funds.
Pay attention to details. In bad times, employees might be more tempted to steal money by exploiting weaknesses in an association's financial controls. Look closely at what supplies are being ordered, what checks are sent out and all petty cash disbursements.
Review the association's "Employee Dishonesty" coverage under its insurance policy to determine what losses will be covered and not covered. The last thing you want is to be ripped off by an office manager, find out your association is not covered and you owe an insurance bill.
Check your own records regularly. Even if you have professional management in place, it is essential that the board review all bank accounts each month, every month.
Obtain photocopies of checks from the bank and review the payee, amount and authorizing signatures.
A monthly examination will catch checks paid to unauthorized suppliers and vendors or those approved with fraudulent signatures. Also, transfers between all bank accounts should be reconciled. Many fraudulent transactions are intentionally committed near the end of the month to allow the wrongdoer to cover the fraud by categorizing it as an outstanding deposit or a check in transit, Berger said. This usually leaves 30 days for the board and/or manager to forget about the discrepancy or for the employee to cover up the misappropriation.
Look out for red flags. Are checks being sent to a series of companies with similar sounding names? If your association is paying the American Pool Company for monthly services and the American Pool Inc. too, there could be a problem. Also look out for money being sent to businesses using P.O. box numbers rather than street addresses.
By Daniel Vasquez, The Sun Sentinel
Subdivision residents vote to oust HOA board
A neighborhood association dispute is headed to court after homeowners met and voted to remove the association's board of directors and install a new and larger board.
Homeowners in the Ventura and Spring Meadows subdivisions in northeast Bexar County met June 30 and voted 221-1 to remove the association's current board members — President Lisa Pfeiffer, Vice President Vicki Pawelek and Secretary Kathleen Vargas — after a tumultuous eight months that saw the board close its monthly meetings to the public, remove lifeguards from the community pool and discontinue participation in the county Citizens On Patrol program.
The group of homeowners called a special meeting and gathered at Northeast Church of Christ on FM 78 and voted to remove the three board members, to enlarge the board to five members and to fill the board with a new slate of board members.
But attorney Susan Rice, speaking on behalf of the Ventura Homeowners Association, told those gathered that their votes didn't count and that any action taken that evening would end up in court.
“Basically, it's the corporation's position that this is not a properly called meeting, pursuant to the governing documents; nor are the votes that are going to be taken proper.
“It does not mean that tomorrow morning your votes are going to be honored,” she said, adding, “Those are going to be going through the court system and we'll be dealing with those through the courts.”
But Lanny Worel, one of a group of organizers of the special meeting, disagreed.
“We feel that this meeting is lawfully called and … in compliance with association bylaws, and that any and all business that takes place here tonight will be valid and binding,” Worel said.
The association board tried to file a restraining order to keep the meeting from happening, but a county judge found no validity in the association's complaint and allowed the meeting to go forth.
“In November, the board of directors closed the board meetings to all of us, none of us could go,” Worel said. “It was three months later that (they) began sending out invitations. Without an invitation, you couldn't attend.”
Worel was one of five Ventura/Spring Meadows homeowners elected to the board during the meeting. Also elected to the board were Tony Jones, Evelyn Nolde, Stephen Turner and Gary Siegel.
Worel said the board has done everything in its power to stop the group from meeting, despite the group's gathering of enough signatures to properly call a special meeting of the association. The board told Worel's group that the petition contained invalid signatures, but refused to give the group a list of any faulty signatures.
The group decided in May to call the special meeting, assured they had enough valid signatures to do so. A letter dated May 15 was sent to the board, citing articles and sections of the Ventura bylaws that allowed for such a meeting to take place.
Once a quorum was established at the meeting, a motion was made to remove all three current board members from their positions. A ballot vote was taken and the motion passed, 221-1. The next motion sought expansion of the board from three to five members, which was approved 223-0. Names of seven homeowners were put on a ballot and the five were selected.
Residents openly questioned why the board meetings were closed, and asked who was responsible for monitoring the board's actions.
Worel explained that the homeowner associations are governed under the non-profit corporation act and that board meetings are not mandated to be open, “but what we go by is the (people) who have been here for over 20 years, board meetings have always been open except for a short time in 2007, when they simply didn't hold meetings.”
Jones, a subdivision resident since 1999, said, “If you pay your dues, you should have a say in how your money is spent. If they take that away from you, you should also be allowed to say, ‘If I don't have a say, then why am I paying you?'”
Homeowners expressed anger over the board's decision to cancel its lifeguard contract at the pool and replace it with a camera-security system.
“I've never seen a camera give CPR,” Jones said. “By the time you see it on camera, what's happened has happened.”
“It was a total three-person decision,” Worel said. “It was not our decision to do away with the lifeguards and put a web-based camera in there for security.”
The pool was closed for a period of time following a June 11 investigation by the San Antonio Metropolitan Health Department. A resident who spoke during the meeting said she called the health district on June 8 following a weekend swim.
“I was disappointed with the condition of the water, it was filthy,” said resident Yvonne Rex. “That was Saturday; on Monday morning, I called the Metro Health Department and filed a complaint, because they (association management) didn't seem too concerned.
“They officially closed it down (June 11) because of the condition of the water. Come to find out, the filter was broken ... but my question is, how long had the filter been broken, and they were still allowing people to use the pool, with that disgusting water?” she added.
Lifeguards in neighboring subdivisions commonly perform hourly or bi-hourly water sampling in addition to enforcing hourly safety breaks and monitoring pool attendance.
Worel said that since the June 30 meeting, both sides have agreed to enter into mediation.
“We don't know where it will go from here; all we can do is do our best and then carry on,” he said.
By: Jeff B. Flinn, Northeast Herald
Homeowners in the Ventura and Spring Meadows subdivisions in northeast Bexar County met June 30 and voted 221-1 to remove the association's current board members — President Lisa Pfeiffer, Vice President Vicki Pawelek and Secretary Kathleen Vargas — after a tumultuous eight months that saw the board close its monthly meetings to the public, remove lifeguards from the community pool and discontinue participation in the county Citizens On Patrol program.
The group of homeowners called a special meeting and gathered at Northeast Church of Christ on FM 78 and voted to remove the three board members, to enlarge the board to five members and to fill the board with a new slate of board members.
But attorney Susan Rice, speaking on behalf of the Ventura Homeowners Association, told those gathered that their votes didn't count and that any action taken that evening would end up in court.
“Basically, it's the corporation's position that this is not a properly called meeting, pursuant to the governing documents; nor are the votes that are going to be taken proper.
“It does not mean that tomorrow morning your votes are going to be honored,” she said, adding, “Those are going to be going through the court system and we'll be dealing with those through the courts.”
But Lanny Worel, one of a group of organizers of the special meeting, disagreed.
“We feel that this meeting is lawfully called and … in compliance with association bylaws, and that any and all business that takes place here tonight will be valid and binding,” Worel said.
The association board tried to file a restraining order to keep the meeting from happening, but a county judge found no validity in the association's complaint and allowed the meeting to go forth.
“In November, the board of directors closed the board meetings to all of us, none of us could go,” Worel said. “It was three months later that (they) began sending out invitations. Without an invitation, you couldn't attend.”
Worel was one of five Ventura/Spring Meadows homeowners elected to the board during the meeting. Also elected to the board were Tony Jones, Evelyn Nolde, Stephen Turner and Gary Siegel.
Worel said the board has done everything in its power to stop the group from meeting, despite the group's gathering of enough signatures to properly call a special meeting of the association. The board told Worel's group that the petition contained invalid signatures, but refused to give the group a list of any faulty signatures.
The group decided in May to call the special meeting, assured they had enough valid signatures to do so. A letter dated May 15 was sent to the board, citing articles and sections of the Ventura bylaws that allowed for such a meeting to take place.
Once a quorum was established at the meeting, a motion was made to remove all three current board members from their positions. A ballot vote was taken and the motion passed, 221-1. The next motion sought expansion of the board from three to five members, which was approved 223-0. Names of seven homeowners were put on a ballot and the five were selected.
Residents openly questioned why the board meetings were closed, and asked who was responsible for monitoring the board's actions.
Worel explained that the homeowner associations are governed under the non-profit corporation act and that board meetings are not mandated to be open, “but what we go by is the (people) who have been here for over 20 years, board meetings have always been open except for a short time in 2007, when they simply didn't hold meetings.”
Jones, a subdivision resident since 1999, said, “If you pay your dues, you should have a say in how your money is spent. If they take that away from you, you should also be allowed to say, ‘If I don't have a say, then why am I paying you?'”
Homeowners expressed anger over the board's decision to cancel its lifeguard contract at the pool and replace it with a camera-security system.
“I've never seen a camera give CPR,” Jones said. “By the time you see it on camera, what's happened has happened.”
“It was a total three-person decision,” Worel said. “It was not our decision to do away with the lifeguards and put a web-based camera in there for security.”
The pool was closed for a period of time following a June 11 investigation by the San Antonio Metropolitan Health Department. A resident who spoke during the meeting said she called the health district on June 8 following a weekend swim.
“I was disappointed with the condition of the water, it was filthy,” said resident Yvonne Rex. “That was Saturday; on Monday morning, I called the Metro Health Department and filed a complaint, because they (association management) didn't seem too concerned.
“They officially closed it down (June 11) because of the condition of the water. Come to find out, the filter was broken ... but my question is, how long had the filter been broken, and they were still allowing people to use the pool, with that disgusting water?” she added.
Lifeguards in neighboring subdivisions commonly perform hourly or bi-hourly water sampling in addition to enforcing hourly safety breaks and monitoring pool attendance.
Worel said that since the June 30 meeting, both sides have agreed to enter into mediation.
“We don't know where it will go from here; all we can do is do our best and then carry on,” he said.
By: Jeff B. Flinn, Northeast Herald
HOA Fight May Cause Loss Of Services -- from KSAT 12
Northeast Side Complex Faces Water, Electricity, Cable Shutoff
SAN ANTONIO -- The Village at Woodlake Condominiums were once a prime place to live on the city's northeast side off of FM 78. But now, the pool is closed and the complex is in danger of losing some basic services because of a fight involving the homeowners' association.
"Unfortunately, there's gonna be innocent people forced out of their homes," said Denny Huston, the former HOA board president.
The reason is that Travelers Insurance has dropped the insurance that protected the directors and officers of the HOA in case they were sued in their official capacity. Travelers cited the frequency of claims against the HOA as the reason the policy was not being renewed.
"On the tenth of June, at midnight, this HOA basically ceased to exist," said Huston.
In single family home developments, HOAs have more limited duties, but at the Village at Woodlake, the HOA pays for all residents’ water service, basic cable television, outside lighting and landscaping, and if those bills are not paid, then even the electric gate would cease to function. Currently, nobody in the complex is authorized to collect the monthly dues or pay the complex’s bills.
"Our hands are tied as to what's going to happen in the next few weeks," said Huston.
Huston said he’s contacted a number of government offices asking for help, but has been turned down. He produced letters from the Texas Attorney General’s Office and the Texas Secretary of State’s Office, and he said he contacted his county commissioner and the Bexar County District Attorney’s Office. Dee McGee has managed HOAs for more than 30 years and looked into solutions for the Village at Woodlake.
"They will cut their water off," said McGee of Maximum Management Resources.
She could only think of one possible solution. "They'll appoint a receiver who will take over and collect the money and make the payments, get everything sorted out," said McGee.
The problem is that means owners may end up paying a lot more money. She said that people who buy into developments where HOA membership is required should remember that they are co-owners of the HOA, and that if the HOA suffers as a result of continual challenges and lawsuits, they too will suffer.
The Village at Woodlake hopes a government agency will take note of their plight before residents lose water and other basic services.
SAN ANTONIO -- The Village at Woodlake Condominiums were once a prime place to live on the city's northeast side off of FM 78. But now, the pool is closed and the complex is in danger of losing some basic services because of a fight involving the homeowners' association.
"Unfortunately, there's gonna be innocent people forced out of their homes," said Denny Huston, the former HOA board president.
The reason is that Travelers Insurance has dropped the insurance that protected the directors and officers of the HOA in case they were sued in their official capacity. Travelers cited the frequency of claims against the HOA as the reason the policy was not being renewed.
"On the tenth of June, at midnight, this HOA basically ceased to exist," said Huston.
In single family home developments, HOAs have more limited duties, but at the Village at Woodlake, the HOA pays for all residents’ water service, basic cable television, outside lighting and landscaping, and if those bills are not paid, then even the electric gate would cease to function. Currently, nobody in the complex is authorized to collect the monthly dues or pay the complex’s bills.
"Our hands are tied as to what's going to happen in the next few weeks," said Huston.
Huston said he’s contacted a number of government offices asking for help, but has been turned down. He produced letters from the Texas Attorney General’s Office and the Texas Secretary of State’s Office, and he said he contacted his county commissioner and the Bexar County District Attorney’s Office. Dee McGee has managed HOAs for more than 30 years and looked into solutions for the Village at Woodlake.
"They will cut their water off," said McGee of Maximum Management Resources.
She could only think of one possible solution. "They'll appoint a receiver who will take over and collect the money and make the payments, get everything sorted out," said McGee.
The problem is that means owners may end up paying a lot more money. She said that people who buy into developments where HOA membership is required should remember that they are co-owners of the HOA, and that if the HOA suffers as a result of continual challenges and lawsuits, they too will suffer.
The Village at Woodlake hopes a government agency will take note of their plight before residents lose water and other basic services.
Thứ Sáu, 24 tháng 7, 2009
Crossing Fence Lines to Retrieve Wounded Game...or why to avoid the gut shot
It's always great when a blog post results in a call to my office. A few days ago I wrote a post about the importance of having a well-drafted hunting lease. Yesterday, a reader called to inquire about my post. Turns out, he wanted to know whther it is legal in Texas to cross a fenceline/property line in pursuit of an animal you (as a hunter) have wounded on your side of the fence.
That is a fairly common question -- especially in dove season, where fence lines are often the best hunting spots, and wounded birds frequently go down on the neighbor's property.
The answer, too is fairly clear, and may be disappointing:
This information comes directly out of the Texas Parks & Wildlife's Outdoor Annual, Hunting & Fishing Regulations.
So what does this mean? In my mind, it translates to 2 things:
1) never take a shot an an animal unless you know that you can take it down (be realistic about your aim, distances, and firepower); and
2) if you find that tropy buck on the neighbor's property, call the neighbor and ask permission to retrieve it.
If the neighbor cannot be reached, call a Game Warden. Since game waste is also a crime, the Warden is likely to assist you, or at least monitor the situation. remember, RESPECT is an essential element of hunting and of private property rights and the law.
That is a fairly common question -- especially in dove season, where fence lines are often the best hunting spots, and wounded birds frequently go down on the neighbor's property.
The answer, too is fairly clear, and may be disappointing:
"No person may pursue a wounded wildlife resource across a property line without the consent of landowner of the property where the wildlife resource has fled. Under the trespass provisions of the Penal Code, a person on a property without the permission of the landowner is subject to arrest."
This information comes directly out of the Texas Parks & Wildlife's Outdoor Annual, Hunting & Fishing Regulations.
So what does this mean? In my mind, it translates to 2 things:
1) never take a shot an an animal unless you know that you can take it down (be realistic about your aim, distances, and firepower); and
2) if you find that tropy buck on the neighbor's property, call the neighbor and ask permission to retrieve it.
If the neighbor cannot be reached, call a Game Warden. Since game waste is also a crime, the Warden is likely to assist you, or at least monitor the situation. remember, RESPECT is an essential element of hunting and of private property rights and the law.
Thứ Tư, 22 tháng 7, 2009
Time to Sign a Hunting Lease? Better Call a Lawyer!
It's getting to be that time of year again! Time to find the perfect hunting lease, or find the perfect hunters for your land. While many of us are fortunate enough to have regular places to hunt year-after-year, an upcoming deer season often means time to replace the old lease (or hunters/lessees) with someplace (or someone) new and better.
I am amazed at the number of hunting lease ads in newpaper classifieds, on Craigslist, and other impersonal media. My amazement is this: while the economy of advertising to a broad base of prospective hunters or being exposed to a variety of available properties makes sense, the chances of getting a bad apple are increased exponentially by mass marketing. My experience dictates that many landowners, and even more hunters, are not what they appear to be on the internet.
Ever since I was a pup in law school many (many, many perhaps) hunting seasons ago, I have been peppered with inquiries from scorned landowners and hunters who have suffered from bad experiences. It still surprises me how many hunting "leases" are "handshake deals" with little or no documentation. Many times, there is little or no discussion of the important details of a lease arrangement.
As a long-time hunter, I understand the value of a man's word, and like to think of Texas hunters as a fraternity. Anyone who's worn camo to Sunday breakfast at a small town cafe appreciates the comraderie we hunters share. Unfortunately, as a Texas real estate lawyer, I know that lessor/lessee relationshsips can go South real quick when valuable land and animals are involved! It happens far too often.
I have personally represented very successful businessmen who run giant enterprises like well-oiled machines. These talented entrepreneurs know the ins and outs of boardrooms and courtrooms in their professional lives. However, when they get a case of ranch envy or "early-onset Buck Fever," they've written checks for tens of thousands of dollars for hunting leases without so much as a receipt -- much less a written lease agreement! This is a mistake 12 times out of 10.
Texas landowners are particular about their property, and they should be. Game animals are a valuable commodity, and hunting operations are sometimes the largest source of revenue for rural landowners. By the same token, hunters pay millions of dollars every year to chase trophy animals, and they deserve to get their money's worth out of any lease. Often times, hunters will invest hundreds of hours and thousands of dollars into a property that they don't even own. Landowners let starnagers "take over" their properties for 1/2 the year.
All of this amounts to one, all-too-often painful, conclusion: Hunting Leases are business transactions!
In case I haven't been clear enough, let me be so now by offering free advice: DO NOT ENTER INTO A HUNTING LEASE ARRANGEMENT WITHOUT A WRITTEN LEASE. Equally important is having an experienced real estate lawyer (and preferably one who hunts) draft and/or review your hunting lease.
The possibilities for dispute are innumerable: number of permitted hunters, whether non-hunting guests are allowed, the types of vehicles allowed (some landowners abhor 4 wheelers), the class and age of animals that may be harvested, use of alcohol on the property, presence and treatment of livestock, location of deer camp, number and location of feeders/stands/blinds, fishing in stock ponds, type of weapons that may be used, killing of non-game animals and varmits, night hunting and spotlighting, Border patrol and Game Warden issues, amount and type of feed to be supplied, damage to trees and crops, whether dogs are allowed on the property, gates and locks, term of lease, use of lodge/cabins vs. camping, etc., etc., etc.
I've heard all of these disputes and more... and I can promise that they take the excitement out of hunting quicker than a missed shot or wasp nest in your blind! And I didn't even mention potential liability for injuries on the property.
Every prudent landowner/lessor will want to ensure that his or her hunters respect the land and animals, abide all game laws, and behave responsibly upon the leased property. Every hunter/lessee will want to ensure that he and his guests get the best opportunity for a fun and successful hunting season that yields plenty of animals and even more memories. The closest thing that either side can get to a guarantee that this will happen is through a written hunting lease drafted by an experienced real estate lawyer.
Don't leave your investment to chance. Strangers who you know have guns don't make for good enemies...
BTW, that is an 11 point buck I took in Maverick County during the 2007 season. Believe it or not, the lessor let ME draft the hunting lease.
Lubbock HOA Bans Sex Offenders From Neighborhood
LUBBOCK, Texas - The sales pitch for this planned subdivision goes beyond the usual vision of attractive homes and amenities: Homeowners will be required to pass criminal background checks and no convicted sex offenders will be allowed.
It's a concept that might prove right for the times, said first-time developer Clayton Isom, one of three partners in a company creating Milwaukee Ridge on the outskirts of this west Texas city.
The idea was inspired by the killings of two Florida girls - 9-year-old Jessica Lunsford and 13-year-old Sarah Lunde - allegedly by registered sex offenders, Isom said.
"It makes me sick at my stomach every time I hear one of these stories about these innocent girls," said Isom, a graduate student in business administration at Texas Tech University.
Isom and his two partners in I&S Investments, all in their early 20s, own a 213-acre parcel and plan to subdivide it for 665 houses. Relatives and other investors are backing the trio.
Homes will be priced from $100,000 to $150,000.
Builders agreeing to the development's terms will run background checks on home buyers and any juveniles expected to live in the homes. They could be penalized if they even unknowingly sell to a convicted sex offender.
Residents will face penalties if they allow a convicted sex offender to live in their homes, and will be responsible for checking the backgrounds of potential buyers if they sell. Isom's company promises to buy a home back for 85 percent of the lesser of appraised or market value if builders sell to an offender or if an owner or a resident is convicted of a sex offense.
A homeowners association will be the developers' eyes and ears.
There have been no recent reports of high-profile sex offender crimes in Lubbock, but the city has 413 registered offenders, ranking it 16th in the state, which has 46,000 registered sex offenders.
The subdivision's ban appears to be legal, according to the U.S. Department of Housing and Urban Development. Sex offenders are not a protected class under the Fair Housing Act, HUD spokesman Jerry Brown said.
The ban could give residents a false sense of security since it can't keep offenders from living near the subdivision, said Katherine Stark, a board member of the National Fair Housing Alliance. "They're a block away," she said.
However, Rula Maabra, 35, said her family is weighing a move to Milwaukee Ridge because two registered sex offenders live within two blocks of their Lubbock home. She and her husband have children ages 6 and 8.
"You can't protect your kids 100 percent, but knowing that the street I'm living on and the one nearby doesn't have one, makes me feel much better," she said.
It's a concept that might prove right for the times, said first-time developer Clayton Isom, one of three partners in a company creating Milwaukee Ridge on the outskirts of this west Texas city.
The idea was inspired by the killings of two Florida girls - 9-year-old Jessica Lunsford and 13-year-old Sarah Lunde - allegedly by registered sex offenders, Isom said.
"It makes me sick at my stomach every time I hear one of these stories about these innocent girls," said Isom, a graduate student in business administration at Texas Tech University.
Isom and his two partners in I&S Investments, all in their early 20s, own a 213-acre parcel and plan to subdivide it for 665 houses. Relatives and other investors are backing the trio.
Homes will be priced from $100,000 to $150,000.
Builders agreeing to the development's terms will run background checks on home buyers and any juveniles expected to live in the homes. They could be penalized if they even unknowingly sell to a convicted sex offender.
Residents will face penalties if they allow a convicted sex offender to live in their homes, and will be responsible for checking the backgrounds of potential buyers if they sell. Isom's company promises to buy a home back for 85 percent of the lesser of appraised or market value if builders sell to an offender or if an owner or a resident is convicted of a sex offense.
A homeowners association will be the developers' eyes and ears.
There have been no recent reports of high-profile sex offender crimes in Lubbock, but the city has 413 registered offenders, ranking it 16th in the state, which has 46,000 registered sex offenders.
The subdivision's ban appears to be legal, according to the U.S. Department of Housing and Urban Development. Sex offenders are not a protected class under the Fair Housing Act, HUD spokesman Jerry Brown said.
The ban could give residents a false sense of security since it can't keep offenders from living near the subdivision, said Katherine Stark, a board member of the National Fair Housing Alliance. "They're a block away," she said.
However, Rula Maabra, 35, said her family is weighing a move to Milwaukee Ridge because two registered sex offenders live within two blocks of their Lubbock home. She and her husband have children ages 6 and 8.
"You can't protect your kids 100 percent, but knowing that the street I'm living on and the one nearby doesn't have one, makes me feel much better," she said.
Commercial Leases -- Review Before and Long After you Sign!
As an attorney with an active real estate law practice, I regularly review commercial leases before my clients sign them. Over the years I have represented restaurants, manufacturers, nail salons, gyms, hunters, physicians, snack bars, and other various other business tenants negotiate the terms of their Commercial Leases, and agree to the most favorable terms possible. On the flip side, I have represented several owners of commercial properties in the drafting and negotiation of their commercial leases with every imaginable tenant -- from flower shop owners to barbacoa stands (only in San Antonio!) to nationwide anchor tenants.
Recently, however, I was asked to do something new. The prospectivce client called and inquired as to whether i would perform a "mid-lease review." Though I didn't admit it at the time, I had never been asked to do so, and wasn't exactly sure of the purpose for such a review. After inquiring further, I learned that my prospective client -- a tenant in a large strip center in north central San Antonio -- felt something was amiss with their commercial lease, and the payments they were being asked to make for Common Area Maintenance (CAM) charges and other items of "additional rent." The tenant confirmed that he wasn't even sure that anything was wrong, but said he had a "gut feeling" something "just wasn't right."
After being provided with a copy of the Commercial Lease and all of the Invoices/Monthly Statements received from the landlord during the current lease term (3 years into a 7 year lease), I began a detailed review of the tenant's rent and associated obligations. After completing this review, it became clear that my client's suspicions were dead on -- his business had been overcharged by almost $17,000.00, with no sign of correction coming in the future! If the overcharges went unabated, his business could expect to pay up to $41,000.00 more in rent than he was obligated to pay under the terms of the written Commercial Lease.
In this particular case there were 2 issues:
(1) unpaid "build out allowances" granted to the tenant; and
(2) overcharges for CAM expenses.
After bringing the discrepancy to the landlord and management company's attention, the overcharges were credited back to our client. The result was that his business got to skip almost 2 full rent payments -- talk about a shot in the arm!
This experience got me to thinking about all of the complex lease negotiations we've undertaken in the last several years. What if just one-half of the Commercial Leases we negotiated were being misapplied? Think of all of the overcharges, and perhaps even undercharges, that might be taking place on a monthly basis... Think of the thousands of dollars in adjustments that might be necessary...
Many times, the obligations and payments will match-up and there is nothing to worry about. In other instances, there might be discrepancies about repair bills, rent concessions, security deposit burn-downs, taxes and untimely rent escalations. These issues may arise several years after the Commercial Lease has been signed, and when both the landlord and tenant are "asleep at the wheel."
The point of this posting is to encourage landlords and tenants who have signed Commercial Lease Agreements to have those leases reviewed periodically to ensure compliance and smooth sailing. Just because the Lease is signed and the tenant is paying rent doesn't necessarily mean all is well. The best bet, of course, is to have a qualified real estate lawyer review the lease. The amount you pay in attorneys' fees will likely be well worth the peace of mind or potential discrepancy that the lease review yields.
Recently, however, I was asked to do something new. The prospectivce client called and inquired as to whether i would perform a "mid-lease review." Though I didn't admit it at the time, I had never been asked to do so, and wasn't exactly sure of the purpose for such a review. After inquiring further, I learned that my prospective client -- a tenant in a large strip center in north central San Antonio -- felt something was amiss with their commercial lease, and the payments they were being asked to make for Common Area Maintenance (CAM) charges and other items of "additional rent." The tenant confirmed that he wasn't even sure that anything was wrong, but said he had a "gut feeling" something "just wasn't right."
After being provided with a copy of the Commercial Lease and all of the Invoices/Monthly Statements received from the landlord during the current lease term (3 years into a 7 year lease), I began a detailed review of the tenant's rent and associated obligations. After completing this review, it became clear that my client's suspicions were dead on -- his business had been overcharged by almost $17,000.00, with no sign of correction coming in the future! If the overcharges went unabated, his business could expect to pay up to $41,000.00 more in rent than he was obligated to pay under the terms of the written Commercial Lease.
In this particular case there were 2 issues:
(1) unpaid "build out allowances" granted to the tenant; and
(2) overcharges for CAM expenses.
After bringing the discrepancy to the landlord and management company's attention, the overcharges were credited back to our client. The result was that his business got to skip almost 2 full rent payments -- talk about a shot in the arm!
This experience got me to thinking about all of the complex lease negotiations we've undertaken in the last several years. What if just one-half of the Commercial Leases we negotiated were being misapplied? Think of all of the overcharges, and perhaps even undercharges, that might be taking place on a monthly basis... Think of the thousands of dollars in adjustments that might be necessary...
Many times, the obligations and payments will match-up and there is nothing to worry about. In other instances, there might be discrepancies about repair bills, rent concessions, security deposit burn-downs, taxes and untimely rent escalations. These issues may arise several years after the Commercial Lease has been signed, and when both the landlord and tenant are "asleep at the wheel."
The point of this posting is to encourage landlords and tenants who have signed Commercial Lease Agreements to have those leases reviewed periodically to ensure compliance and smooth sailing. Just because the Lease is signed and the tenant is paying rent doesn't necessarily mean all is well. The best bet, of course, is to have a qualified real estate lawyer review the lease. The amount you pay in attorneys' fees will likely be well worth the peace of mind or potential discrepancy that the lease review yields.
Texas Leads the Nation in Private Ranch Holdings
Texas is home to over 142 million acres of private farms, ranches and forestlands, thus leading the nation in land area devoted to privately-owned working lands. These lands account for 84% of the state’s entire land area and provide substantial economic, environmental, and recreational resources to the benefit of the state’s entire population.
By 2007, smaller operations – those less than 100 acres in size – accounted for over 50% the state’s total farming & ranching operations, while occupying only 3% of the land area. This class of smaller operations increased by 22% since 1997, and was the only ownership size class showing an overall net increase in land area across the state.
The amount of land in mid-sized farms & ranches (500 to 2,000 acres) has continued to decline at the rate of about 250,000 acres per year.
Large ownerships – those greater than 2000 acres in size – account for about 4% of all farms & ranches, but they occupy about 62% of the state’s total farm & ranchland. While larger operations have slightly increased in total number since 1997they have decreased in land area by 461,000 acres.
The loss or gain in area represented by large operations varied according to ecological region. For example, since 1997 over 2.8 million acres of larger farms & ranches in the Trans Pecos, Edwards Plateau and South Texas were fragmented into mid-sized and smaller ownerships. In other regions – the High Plains, Rolling Plains, Coastal Sand Plains, Oak Woods & Prairies, and Blackland Prairies – about 2.5 million acres of mid-sized properties were consolidated into larger operations.
San Antonio auto accident lawyers and attorneys
The Baez Law Firm, P.C. is a general practice law firm that handles auto accidents and personal injury for our clients. Our attorneys have helped thousands of people in Texas with their injuries and have recovered what the clients deserved for their settlement.
Insurance companies have lawyers handling their case, and so should you. If you have been injured by an accident, please contact us. You have a limited time to act, or the insurance company will start penalizing you for your delay.
We handle other areas of law as well. Areas such as family law, business law, consumer law, criminal law, appeals. Come see us, and you will know the difference from the moment that you walk through our doors. Your initial consultation is always free.
Insurance companies have lawyers handling their case, and so should you. If you have been injured by an accident, please contact us. You have a limited time to act, or the insurance company will start penalizing you for your delay.
We handle other areas of law as well. Areas such as family law, business law, consumer law, criminal law, appeals. Come see us, and you will know the difference from the moment that you walk through our doors. Your initial consultation is always free.
What is Adverse Possession and When Can It Help Me?
This blog entry is the first of a series related to adverse possession. Adverse possession is a legal principle under which someone can acquire ownership of real property that belongs to someone else. It is a form of “involuntary conveyance.”
Adverse possession is defined by statute in Texas as “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” In other words, a person who does not hold title to real property can peaceably enter upon property owned by someone else and undertake actions (such as use of the property) that are inconsistent with and adverse to the rights of the property’s true owner. If the property’s rightful owner does not diligently attempt to stop the adverse claimant, he may find it difficult to transfer title to his property or even find that he has lost his ownership rights.
Adverse possession can be useful in a variety of situations which are more common than one might expect. For example, if land is occupied or operated by descendants even though title to the property was not transferred through probate from a deceased relative and probate is no longer an option, it may be possible to “clear title” through adverse possession. Adverse possession may be one way to obtain clear title in boundary disputes, such as when a surveyor has discovered that a fence or other structure has not been properly placed along the dividing line between two neighboring properties.
There are several statutes in the State of Texas which describe what factors must exist (and for how long) before a claimant can obtain title through adverse possession. As a result, adverse possession is a complex legal issue, and we strongly suggest that you seek the advice of an attorney (preferably someone versed in the litigation process, as well as real estate law) if you are confronted with either the need to assert or defend against a claim of adverse possession.
Adverse possession is defined by statute in Texas as “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” In other words, a person who does not hold title to real property can peaceably enter upon property owned by someone else and undertake actions (such as use of the property) that are inconsistent with and adverse to the rights of the property’s true owner. If the property’s rightful owner does not diligently attempt to stop the adverse claimant, he may find it difficult to transfer title to his property or even find that he has lost his ownership rights.
Adverse possession can be useful in a variety of situations which are more common than one might expect. For example, if land is occupied or operated by descendants even though title to the property was not transferred through probate from a deceased relative and probate is no longer an option, it may be possible to “clear title” through adverse possession. Adverse possession may be one way to obtain clear title in boundary disputes, such as when a surveyor has discovered that a fence or other structure has not been properly placed along the dividing line between two neighboring properties.
There are several statutes in the State of Texas which describe what factors must exist (and for how long) before a claimant can obtain title through adverse possession. As a result, adverse possession is a complex legal issue, and we strongly suggest that you seek the advice of an attorney (preferably someone versed in the litigation process, as well as real estate law) if you are confronted with either the need to assert or defend against a claim of adverse possession.
Thứ Tư, 15 tháng 7, 2009
Issue of Property Rights Is Likely to Arise in Sotomayor’s Confirmation Hearings
WASHINGTON — Supreme Court nominees almost never comment on recent decisions from the court they hope to join. But both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. broke with protocol and perhaps prudence at their confirmation hearings when it came to a decision that had been issued just months before, Kelo v. City of New London.
Without quite saying Kelo had been incorrectly decided, both men, at the time federal appeals court judges, spoke at length about their doubts concerning its wisdom and consequences. The decision, a 5-to-4 ruling in 2005, allowed local governments to take private property for business development and provoked outrage across the political spectrum.
Judge Sonia Sotomayor will doubtless be questioned about Kelo at her confirmation hearings next month. But her answers will be complicated by her participation in a 2006 decision applying and extending Kelo.
Bart Didden, the property owner on the losing side of that decision, Didden v. Village of Port Chester, said in an interview that he had been contacted by aides to Republicans on the Senate Judiciary Committee who seemed eager to explore Judge Sotomayor’s views on property rights.
The ruling in Didden is not popular among some property rights and constitutional law professors. Eight of them filed a brief in 2006 unsuccessfully urging the Supreme Court to hear an appeal.
“This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and helped write the brief. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.”
But another author of the brief, Richard A. Epstein, said the decision in Mr. Didden’s case was a rare misfire that provided no larger insights into Judge Sotomayor’s thinking.
“It’s a disappointment and it’s wrong and it’s ill thought out,” Professor Epstein, a law professor at the University of Chicago and New York University, said of the ruling. “But it’s not one of six. It’s one of two.” (The other poorly handled decision, he said, was Ricci v. DeStefano, which rejected employment discrimination claims from white firefighters in New Haven.)
The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.
Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser’s company could put a Walgreen’s in the same place.
“Here is a private person standing in the shoes of the government with the power to condemn or not condemn,” Mr. Didden said. “The $800,000 wasn’t going to rehabilitate a public park or build a soccer stadium. It was going into his pocket.”
Mr. Didden refused. The next day the village condemned his property.
Mr. Wasser did not respond to a recent message seeking comment left with an assistant. In a sworn statement in 2004, he denied being “part of an ‘extortion’ plot” and said the accusation was “beyond my comprehension.” The meeting, he said, was a settlement negotiation concerning competing claims to the same property. “An $800,000 figure,” he said, “was an appropriate buyout.”
Mr. Didden and a business partner sued, and a federal judge dismissed their case in 2004. When the case reached Judge Sotomayor’s court, the United States Court of Appeals for the Second Circuit, Mr. Didden said he had reason to be hopeful.
“She was highly engaged,” Mr. Didden said of Judge Sotomayor’s questioning at the argument in 2005. The other members of the panel were Judges Reena Raggi and Peter W. Hall.
“We felt like we got our day in court,” Mr. Didden said. “We felt that she got the point.”
But then more than a year passed. In the end, the decision was terse and unsigned, and it rejected Mr. Didden’s claims.
“It took 54 weeks to issue those four paragraphs,” Mr. Didden said. According to the Administrative Office of the United States Courts, the median interval between argument and decision in the Second Circuit, both then and now, is less than a month.
The brief decision in Didden made two points. First, it said Mr. Didden had filed his suit too late. The village had announced the redevelopment plan in 1999, and Mr. Didden did not sue until 2004. His claim, the court said, was therefore barred by a three-year statute of limitations.
That was a curious ruling, Professor Epstein said, because it required Mr. Didden to sue over his claim of extortion before it happened.
The court also rejected Mr. Didden’s claim that Port Chester should not be allowed to take his property so that another company could build a different drug store. The takings clause of the Fifth Amendment — “nor shall private property be taken for public use without just compensation” — should not apply, he had argued, to such transfers.
Judge Roberts, at his confirmation hearings in 2005, seemed sympathetic to that kind of argument. The takings clause is uncontroversial when it is used to take property for public purposes like roads and schools. But it is a “basic proposition,” Judge Roberts added, that “government can’t take property from A and give it to B.”
No one disputes that Mr. Didden and his partner are entitled to be compensated for his property. Mr. Didden said the final amount had not been determined.
But Judges Roberts and Alito, at their confirmation hearings, said larger issues are involved in government takings.
“It touches some very sensitive nerves,” Judge Alito said. “Taking their home away and giving them money in return, even if they get fair market value for the home, is still an enormous loss for people.”
Judge Roberts, who said he had been surprised by the Kelo decision, said he welcomed new state laws “saying we do not authorize the use of the power of eminent domain to take for a use that’s going to be from one private owner to another.” Such laws, he said, are “certainly an appropriate reaction to a court’s decision in this area.”
He added that the author of the majority opinion in Kelo, Justice John Paul Stevens, had said at a bar association meeting that he would have voted against the takings plan had he been a legislator rather than a judge making a constitutional determination. “The free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials,” Justice Stevens said in the speech.
By ADAM LIPTAK -- New York Times
Without quite saying Kelo had been incorrectly decided, both men, at the time federal appeals court judges, spoke at length about their doubts concerning its wisdom and consequences. The decision, a 5-to-4 ruling in 2005, allowed local governments to take private property for business development and provoked outrage across the political spectrum.
Judge Sonia Sotomayor will doubtless be questioned about Kelo at her confirmation hearings next month. But her answers will be complicated by her participation in a 2006 decision applying and extending Kelo.
Bart Didden, the property owner on the losing side of that decision, Didden v. Village of Port Chester, said in an interview that he had been contacted by aides to Republicans on the Senate Judiciary Committee who seemed eager to explore Judge Sotomayor’s views on property rights.
The ruling in Didden is not popular among some property rights and constitutional law professors. Eight of them filed a brief in 2006 unsuccessfully urging the Supreme Court to hear an appeal.
“This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and helped write the brief. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.”
But another author of the brief, Richard A. Epstein, said the decision in Mr. Didden’s case was a rare misfire that provided no larger insights into Judge Sotomayor’s thinking.
“It’s a disappointment and it’s wrong and it’s ill thought out,” Professor Epstein, a law professor at the University of Chicago and New York University, said of the ruling. “But it’s not one of six. It’s one of two.” (The other poorly handled decision, he said, was Ricci v. DeStefano, which rejected employment discrimination claims from white firefighters in New Haven.)
The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.
Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser’s company could put a Walgreen’s in the same place.
“Here is a private person standing in the shoes of the government with the power to condemn or not condemn,” Mr. Didden said. “The $800,000 wasn’t going to rehabilitate a public park or build a soccer stadium. It was going into his pocket.”
Mr. Didden refused. The next day the village condemned his property.
Mr. Wasser did not respond to a recent message seeking comment left with an assistant. In a sworn statement in 2004, he denied being “part of an ‘extortion’ plot” and said the accusation was “beyond my comprehension.” The meeting, he said, was a settlement negotiation concerning competing claims to the same property. “An $800,000 figure,” he said, “was an appropriate buyout.”
Mr. Didden and a business partner sued, and a federal judge dismissed their case in 2004. When the case reached Judge Sotomayor’s court, the United States Court of Appeals for the Second Circuit, Mr. Didden said he had reason to be hopeful.
“She was highly engaged,” Mr. Didden said of Judge Sotomayor’s questioning at the argument in 2005. The other members of the panel were Judges Reena Raggi and Peter W. Hall.
“We felt like we got our day in court,” Mr. Didden said. “We felt that she got the point.”
But then more than a year passed. In the end, the decision was terse and unsigned, and it rejected Mr. Didden’s claims.
“It took 54 weeks to issue those four paragraphs,” Mr. Didden said. According to the Administrative Office of the United States Courts, the median interval between argument and decision in the Second Circuit, both then and now, is less than a month.
The brief decision in Didden made two points. First, it said Mr. Didden had filed his suit too late. The village had announced the redevelopment plan in 1999, and Mr. Didden did not sue until 2004. His claim, the court said, was therefore barred by a three-year statute of limitations.
That was a curious ruling, Professor Epstein said, because it required Mr. Didden to sue over his claim of extortion before it happened.
The court also rejected Mr. Didden’s claim that Port Chester should not be allowed to take his property so that another company could build a different drug store. The takings clause of the Fifth Amendment — “nor shall private property be taken for public use without just compensation” — should not apply, he had argued, to such transfers.
Judge Roberts, at his confirmation hearings in 2005, seemed sympathetic to that kind of argument. The takings clause is uncontroversial when it is used to take property for public purposes like roads and schools. But it is a “basic proposition,” Judge Roberts added, that “government can’t take property from A and give it to B.”
No one disputes that Mr. Didden and his partner are entitled to be compensated for his property. Mr. Didden said the final amount had not been determined.
But Judges Roberts and Alito, at their confirmation hearings, said larger issues are involved in government takings.
“It touches some very sensitive nerves,” Judge Alito said. “Taking their home away and giving them money in return, even if they get fair market value for the home, is still an enormous loss for people.”
Judge Roberts, who said he had been surprised by the Kelo decision, said he welcomed new state laws “saying we do not authorize the use of the power of eminent domain to take for a use that’s going to be from one private owner to another.” Such laws, he said, are “certainly an appropriate reaction to a court’s decision in this area.”
He added that the author of the majority opinion in Kelo, Justice John Paul Stevens, had said at a bar association meeting that he would have voted against the takings plan had he been a legislator rather than a judge making a constitutional determination. “The free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials,” Justice Stevens said in the speech.
By ADAM LIPTAK -- New York Times
Katrina Survivors Refuse to be Evicted to Homeless Shelter
Controversial ACORN Group as Eviction Advocates?????????
Facing eviction on March 1st, survivors of Hurricane Katrina and members of the ACORN Katrina Survivors Association in San Antonio held a press conference this morning to announce they are refusing to let FEMA push them into a homeless shelter.
"I can't get an apartment without signing a 12-month lease," said ACORN member Yvonne Hayes, who has a 13-year-old disabled son. Ms. Hayes is a homeonwner and social worker in New Orleans and plans to move back to New Olreans once her home is repaired. She adds, "I'm being punished for wanting to go back to my home."
Families have been told their only alternative is to check into a homeless shelter until long term solutions can be identified. Although FEMA refuses to continue paying for hotels, many families still have cases pending. ACORN leaders and organizers have been working with city officials and FEMA to try to find a solution, but, as of this moment, none has been arranged.
Facing eviction on March 1st, survivors of Hurricane Katrina and members of the ACORN Katrina Survivors Association in San Antonio held a press conference this morning to announce they are refusing to let FEMA push them into a homeless shelter.
"I can't get an apartment without signing a 12-month lease," said ACORN member Yvonne Hayes, who has a 13-year-old disabled son. Ms. Hayes is a homeonwner and social worker in New Orleans and plans to move back to New Olreans once her home is repaired. She adds, "I'm being punished for wanting to go back to my home."
Families have been told their only alternative is to check into a homeless shelter until long term solutions can be identified. Although FEMA refuses to continue paying for hotels, many families still have cases pending. ACORN leaders and organizers have been working with city officials and FEMA to try to find a solution, but, as of this moment, none has been arranged.
Dems back S.A. judges for fed seat
The Texas Democratic congressional delegation has submitted to President Barack Obama the names of three local women for a lifetime appointment to the federal bench, sources have told the San Antonio Express-News.
And according to these sources, 144th District Judge Catherine Torres-Stahl, 42, is the early favorite to replace U.S. District Judge W. Royal Furgeson who last year took senior status and moved to Dallas.
Before Torres-Stahl or anyone else becomes the nominee, he or she must still gain the support of Republican Senators Kay Bailey Hutchison and John Cornyn, who have their own judicial selection committee and can block any candidate.
Courthouse sources familiar with the congressional delegation's discussions said that Torres-Stahl, along with 407th District Judge Karen Pozza and San Antonio civil law attorney Sonia Rodriguez, were recommended to the White House.
“It is truly a short list, even shorter than that (the three),” one source told the Express-News on condition of anonymity because of the sensitive nature of the discussions. “She (Torres-Stahl) is the list.”
Another source said it was important to nominate a woman in San Antonio, the headquarters of the Western District of Texas, which includes Waco, Austin, Del Rio, Alpine, Midland/Odessa and El Paso. The San Antonio division has no female district judges.
Despite reportedly being told that she is the delegation's first choice, Torres-Stahl proceeded as normal last week, holding a Thursday fundraiser at the Tower of the Americas that kicked off her re-election campaign.
“I haven't heard anything” regarding the federal seat, she told the Express-News.
The sources, however, say she's been ordered to stay quiet until the White House's official announcement. The head of the delegation, Rep. Lloyd Doggett, D-Austin, declined to comment on any recommendations.
“Consultations between the President and the Texas Democratic delegation are ongoing,” Doggett said in a statement. “No name will be formally released until the process is completed.”
Rep. Charlie Gonzalez, D-San Antonio, likewise declined to talk about any candidates.
“I am not at liberty to discuss specific names that the delegation has forwarded to the White House for consideration,” he said. “We (the delegation) agreed with the White House that we'd keep that private.”
Before Torres-Stahl's name is submitted to the Senate, she must be vetted by the White House and by the Federal Judicial Evaluation Committee, which recommends candidates to Sens. Hutchison and Cornyn, who have the final say on the nomination.
If confirmed, Torres-Stahl will be among the youngest candidates named to the federal bench in San Antonio. Before becoming a state judge, she served three and a half years as a prosecutor on juvenile cases and appeals with the Bexar County district attorney's office.
She also served as a municipal judge for the city of San Antonio, where she ruled on ordinance violations and Class C misdemeanors for nine years.
In 2006, she took on longtime incumbent Mark Luitjen for the 144th District bench and won. She has been hearing felonies, including capital murder cases, ever since.
“We had supported Luitjen when he ran, but she has been just very, very fair on everything I've had before her,” said lawyer Van Hilley. “She has a very patient demeanor. ...I've been impressed with her judicial temperament.”
By Guillermo Contreras and Guillermo X. Garcia - Express-News
And according to these sources, 144th District Judge Catherine Torres-Stahl, 42, is the early favorite to replace U.S. District Judge W. Royal Furgeson who last year took senior status and moved to Dallas.
Before Torres-Stahl or anyone else becomes the nominee, he or she must still gain the support of Republican Senators Kay Bailey Hutchison and John Cornyn, who have their own judicial selection committee and can block any candidate.
Courthouse sources familiar with the congressional delegation's discussions said that Torres-Stahl, along with 407th District Judge Karen Pozza and San Antonio civil law attorney Sonia Rodriguez, were recommended to the White House.
“It is truly a short list, even shorter than that (the three),” one source told the Express-News on condition of anonymity because of the sensitive nature of the discussions. “She (Torres-Stahl) is the list.”
Another source said it was important to nominate a woman in San Antonio, the headquarters of the Western District of Texas, which includes Waco, Austin, Del Rio, Alpine, Midland/Odessa and El Paso. The San Antonio division has no female district judges.
Despite reportedly being told that she is the delegation's first choice, Torres-Stahl proceeded as normal last week, holding a Thursday fundraiser at the Tower of the Americas that kicked off her re-election campaign.
“I haven't heard anything” regarding the federal seat, she told the Express-News.
The sources, however, say she's been ordered to stay quiet until the White House's official announcement. The head of the delegation, Rep. Lloyd Doggett, D-Austin, declined to comment on any recommendations.
“Consultations between the President and the Texas Democratic delegation are ongoing,” Doggett said in a statement. “No name will be formally released until the process is completed.”
Rep. Charlie Gonzalez, D-San Antonio, likewise declined to talk about any candidates.
“I am not at liberty to discuss specific names that the delegation has forwarded to the White House for consideration,” he said. “We (the delegation) agreed with the White House that we'd keep that private.”
Before Torres-Stahl's name is submitted to the Senate, she must be vetted by the White House and by the Federal Judicial Evaluation Committee, which recommends candidates to Sens. Hutchison and Cornyn, who have the final say on the nomination.
If confirmed, Torres-Stahl will be among the youngest candidates named to the federal bench in San Antonio. Before becoming a state judge, she served three and a half years as a prosecutor on juvenile cases and appeals with the Bexar County district attorney's office.
She also served as a municipal judge for the city of San Antonio, where she ruled on ordinance violations and Class C misdemeanors for nine years.
In 2006, she took on longtime incumbent Mark Luitjen for the 144th District bench and won. She has been hearing felonies, including capital murder cases, ever since.
“We had supported Luitjen when he ran, but she has been just very, very fair on everything I've had before her,” said lawyer Van Hilley. “She has a very patient demeanor. ...I've been impressed with her judicial temperament.”
By Guillermo Contreras and Guillermo X. Garcia - Express-News
Bexar County to get 3 New CCL Judges
The Bexar County, Texas Commissioners Court soon will appoint judges to three newly authorized County Courts at Law of Bexar County. The new courts were approved during the 81st Legislative Session and Gov. Rick Perry signed the bill into law.
Under HB 4741, which created the new courts, County Court at Law No. 13 must give preference to family violence cases. The remaining two courts will be County Court at Law No. 14 and No. 15
Bexar County Commissioners Court is responsible for filling a vacancy in the office of judge of a statutory county court, and the appointee holds office until the next general election is held.
Under HB 4741, which created the new courts, County Court at Law No. 13 must give preference to family violence cases. The remaining two courts will be County Court at Law No. 14 and No. 15
Bexar County Commissioners Court is responsible for filling a vacancy in the office of judge of a statutory county court, and the appointee holds office until the next general election is held.
Thứ Sáu, 10 tháng 7, 2009
Austin Lawyer Tip: Five Problems with Form LLC Formation
Many have asked the question, "why go to a lawyer when there is LegalZoom.com?" Well, for some sophisticated business persons with experience in corporate formation, it may be OK. But I have to say, having litigated a lot of disputes between co-owners of a business, LegalZoom.com is NOT a substitute for a lawyer (LegalZoom even admits this openly), and it is very often a pennywise and a pound foolish, emphasis on the foolish.
Now, I know many of you reading this may say, "of course, this is coming from a lawyer". True, I admit to some level of bias on this issue, but being biased doesn't mean I'm wrong.
Five Issues not typically dealt with in Form LLC Agreements
1. The problem of "OK, it's formed, I'm done"
There are many issues not usually dealt with in typical "form" LLC Agreements, but the worst thing is that most signers of LLC formation documents think that when the LLC is formed, everything is done. This is not true. There are so many other issues that need to be dealt with, including election of officers, delegation of duties, initial organization meeting, and many other discussions that need to take place. Now, the reality is that in single member LLC's, the member can do roughly whatever they please with the operation agreement at almost any time, but in two or multi-member LLC's, this is not the case. Think about how much easier it is to deal with issues such as one owner's death, divorce or bankruptcy than before said death, divorce or bankruptcy. Most form LLC agreements, particularly if only the certificate of formation is filed, do not adequately deal with these contingencies, or are not even reviewed by the members before signing the LLC agreement. Wouldn't you want to know whether you're going to be future business partners/co-owners with your business partner's husband or wife if they die? Wouldn't it be nice to know that a bankruptcy trustee will not hold the keys to whether your business can raise future capital? Yeah, I thought so.
2. The problem with the 50-50 ownership LLC
Split ownership sounds good..."hey we'll be partners!"...but in reality, what it means is that no one is really in control and it is management by committee. A properly drafted LLC agreement is a negotiation, and requires that the parties have dispute resolution built into their agreement, either through some sort of buy-sell agreement or arbitration/tie breakers. Nothing worse than a thriving business that is deadlocked on raising capital or operation directives. But Form LLC's are FILLED with them. And I don't get angry when I see them after disputes, I charge hourly to fight over them. But it is sad that this is almost always entirely avoidable with some element of design in the formation documents.
3. The problem with the money in the future
This is a constant problem in litigation with the "form LLC filers". At the beginning, everyone's happy. "Hey, Jimmie Joe, let's open a restaurant called JJSeras! It will be kicks!" "Sure thing, Sera Jean! Let's go halfsies!" All is fine and good. Until one of two things happens...(1)the restaurant does really well and there are disputes over speed of expansion and distribution (when one party stops working at the store), or (2) it totally does horribly and creditors are knocking on the LLC door. Well, if it goes bad, JJ and Sera are covered, right? Yeah, well, not if they had to personally guarantee the lease or credit facilities. And if JJ paid it all, but only owns 50% of the business still, how good does that make JJ feel? A properly done agreement deals with these issues before the dispute arises.
4. The problem with no exit strategy
Most people enter into LLC's with others without really thinking about how they will extricate themselves from it. How will one party buy out the other? How will it be valued? Very frequently form LLC agreements just don't deal with these issues, or are so basic that they really aren't designed for the parties involved and end up being useless. How about deciding on a person to do the valuation? How about agreeing to a system of valuators if there's no agreement? How about a buy-sell agreement?
5. The problem with majority rule
Many people who put investment money into an endeavor are not the ones running the show. Typically, those "money only" guys are doing this as an investment and gambling that JJ and Sera discussed above are going to give them a return on that investment, and are thus willing to be passive investors in the endeavor at a smaller percentage of interest. This makes the problem of the minority interest holder. I'm constantly amazed at people who put in thousands of dollars, get a minority stake, and when you look at the operating agreement, their interests are almost totally worthless because they can be practically eliminated by "majority rule". It sounds great on paper...but if you are a 10% holder, and the other guy owns 90%, and he can decide to dilute shares by "majority rule", well you're in for a heap of hurt.
It just makes sense to have attorneys review these documents. Typically it is not that expensive, and it just makes sense to have someone with experience reviewing those documents. Obviously, if you need assistance in a review, feel free to contact me at (512) 472-2300.
Marc Lippincott
Now, I know many of you reading this may say, "of course, this is coming from a lawyer". True, I admit to some level of bias on this issue, but being biased doesn't mean I'm wrong.
Five Issues not typically dealt with in Form LLC Agreements
1. The problem of "OK, it's formed, I'm done"
There are many issues not usually dealt with in typical "form" LLC Agreements, but the worst thing is that most signers of LLC formation documents think that when the LLC is formed, everything is done. This is not true. There are so many other issues that need to be dealt with, including election of officers, delegation of duties, initial organization meeting, and many other discussions that need to take place. Now, the reality is that in single member LLC's, the member can do roughly whatever they please with the operation agreement at almost any time, but in two or multi-member LLC's, this is not the case. Think about how much easier it is to deal with issues such as one owner's death, divorce or bankruptcy than before said death, divorce or bankruptcy. Most form LLC agreements, particularly if only the certificate of formation is filed, do not adequately deal with these contingencies, or are not even reviewed by the members before signing the LLC agreement. Wouldn't you want to know whether you're going to be future business partners/co-owners with your business partner's husband or wife if they die? Wouldn't it be nice to know that a bankruptcy trustee will not hold the keys to whether your business can raise future capital? Yeah, I thought so.
2. The problem with the 50-50 ownership LLC
Split ownership sounds good..."hey we'll be partners!"...but in reality, what it means is that no one is really in control and it is management by committee. A properly drafted LLC agreement is a negotiation, and requires that the parties have dispute resolution built into their agreement, either through some sort of buy-sell agreement or arbitration/tie breakers. Nothing worse than a thriving business that is deadlocked on raising capital or operation directives. But Form LLC's are FILLED with them. And I don't get angry when I see them after disputes, I charge hourly to fight over them. But it is sad that this is almost always entirely avoidable with some element of design in the formation documents.
3. The problem with the money in the future
This is a constant problem in litigation with the "form LLC filers". At the beginning, everyone's happy. "Hey, Jimmie Joe, let's open a restaurant called JJSeras! It will be kicks!" "Sure thing, Sera Jean! Let's go halfsies!" All is fine and good. Until one of two things happens...(1)the restaurant does really well and there are disputes over speed of expansion and distribution (when one party stops working at the store), or (2) it totally does horribly and creditors are knocking on the LLC door. Well, if it goes bad, JJ and Sera are covered, right? Yeah, well, not if they had to personally guarantee the lease or credit facilities. And if JJ paid it all, but only owns 50% of the business still, how good does that make JJ feel? A properly done agreement deals with these issues before the dispute arises.
4. The problem with no exit strategy
Most people enter into LLC's with others without really thinking about how they will extricate themselves from it. How will one party buy out the other? How will it be valued? Very frequently form LLC agreements just don't deal with these issues, or are so basic that they really aren't designed for the parties involved and end up being useless. How about deciding on a person to do the valuation? How about agreeing to a system of valuators if there's no agreement? How about a buy-sell agreement?
5. The problem with majority rule
Many people who put investment money into an endeavor are not the ones running the show. Typically, those "money only" guys are doing this as an investment and gambling that JJ and Sera discussed above are going to give them a return on that investment, and are thus willing to be passive investors in the endeavor at a smaller percentage of interest. This makes the problem of the minority interest holder. I'm constantly amazed at people who put in thousands of dollars, get a minority stake, and when you look at the operating agreement, their interests are almost totally worthless because they can be practically eliminated by "majority rule". It sounds great on paper...but if you are a 10% holder, and the other guy owns 90%, and he can decide to dilute shares by "majority rule", well you're in for a heap of hurt.
It just makes sense to have attorneys review these documents. Typically it is not that expensive, and it just makes sense to have someone with experience reviewing those documents. Obviously, if you need assistance in a review, feel free to contact me at (512) 472-2300.
Marc Lippincott
Thứ Năm, 9 tháng 7, 2009
San Antonio J.P. Featured in Negative Express News Article
Today's San Antonio Express News contains an article entitled "JP's law license suspended after complaints" which details action taken by the State Bar of Texas against local Justice of the Peace Monica Caballero.
I do not personally know Judge Caballero, but have appeared before her several times on evictions and other cases. Despite the concerns she may have faced in her private law practice, she has always appeared to me to be fair and deliberative, and to have as a good a command on the law as any Justice of the Peace. From what I've seen, her judicial temperment has been fair, and she clearly understands Forcible Entry & Detainer law. She does not appear to me to be biased in favor of or against either landlords or Tenants.
While I understand the public appeal of the story and the EN's right to publish even the personal problems of a public figure, my opinion as an attorney who frequently handles evictions in and around San Antonio, is that Judge Caballero's problems do not disqualify her from serving as JP, or otherwise call into question her ability to perform the functions of the job.
I believe that calls for Judge Caballero's resignation and/or termination are unfounded.
I do not personally know Judge Caballero, but have appeared before her several times on evictions and other cases. Despite the concerns she may have faced in her private law practice, she has always appeared to me to be fair and deliberative, and to have as a good a command on the law as any Justice of the Peace. From what I've seen, her judicial temperment has been fair, and she clearly understands Forcible Entry & Detainer law. She does not appear to me to be biased in favor of or against either landlords or Tenants.
While I understand the public appeal of the story and the EN's right to publish even the personal problems of a public figure, my opinion as an attorney who frequently handles evictions in and around San Antonio, is that Judge Caballero's problems do not disqualify her from serving as JP, or otherwise call into question her ability to perform the functions of the job.
I believe that calls for Judge Caballero's resignation and/or termination are unfounded.
Thứ Tư, 8 tháng 7, 2009
Accused of a crime, come see us
Our law firm has been helping the wrongfully accused in Bexar County, San Antonio and in Texas. We believe that every person deserves a fair chance, including in the criminal courts. The State is going to have a platoon of qualify attorneys handling their cases as prosecutors and so should you.
Our law firm is well known for letting juries know that, people are innocent until proven guilty, and not the other way around. Our trial attorneys will insure that your case is presented fair and with dignity to the jury.
Our lawyers handle jury trials in State and in Federal Court. Let our experience count for you, and let our attorneys take your case to trial and to victory. We handle each case personally by a qualify attorney, and we will give you the personal attention that you deserve.
The Baez Law Firm, P.C. is a general practice law firm in Texas that handles criminal law, family law, business law, personal injury, consumer law, appeals, bankruptcy and many more areas of law. Come see us, and you will know the difference from the moment that you walk into the door. Your initial consultation is free.
Visit us at our website www.TheBaezLawFirm.com or call (210) 979-9777, we care about your legal needs!
Our law firm is well known for letting juries know that, people are innocent until proven guilty, and not the other way around. Our trial attorneys will insure that your case is presented fair and with dignity to the jury.
Our lawyers handle jury trials in State and in Federal Court. Let our experience count for you, and let our attorneys take your case to trial and to victory. We handle each case personally by a qualify attorney, and we will give you the personal attention that you deserve.
The Baez Law Firm, P.C. is a general practice law firm in Texas that handles criminal law, family law, business law, personal injury, consumer law, appeals, bankruptcy and many more areas of law. Come see us, and you will know the difference from the moment that you walk into the door. Your initial consultation is free.
Visit us at our website www.TheBaezLawFirm.com or call (210) 979-9777, we care about your legal needs!
Thứ Tư, 1 tháng 7, 2009
JUDGE WATCH: Another Surprise Move by Judge Samuel Kent as He Resigns Effective June 30, 2009
No one can say that Judge Kent didn't put up an aggressive and creative fight in his defense against the charges levied against him - during the course of that proceeding, Kent took the offense time and again, surprising many with his strategic maneuvers.
And Samuel Kent surprised everyone once again, this week.
You'll recall from our earlier posts that Judge Kent returned to the national spotlight last month, when he sent in his letter of resignation -- with an effective date one year in the future. This would allow him to continue collecting his salary, even from his prison cell, until he was "fired" -- which for an appointed federal judge, means impeachment and trial in Congress.
Say what you will about Kent, this was a smart and shrewd move on his part, from a defense perspective.
Of course, this served to incense many, and the impeachment of Judge Kent began. Then, as the Senate was beginning its trial process by sending two Senate officials over to Judge Kent's jail cell last week to serve a summons upon him, voila.
Another surprise from Judge Kent.
He handed the Senate summons servers a short, terse letter where he resigned effective June 30, 2009. As of today, Judge Kent is no longer a federal judge, his bench is vacant, and he's no longer drawing a government paycheck.
Congress has to decide what it's going to do now. He's already in prison for 33 months. He's broke. They got lots of other business. Maybe Congress just lets this go.
Meantime, one has to wonder: book deal?
And Samuel Kent surprised everyone once again, this week.
You'll recall from our earlier posts that Judge Kent returned to the national spotlight last month, when he sent in his letter of resignation -- with an effective date one year in the future. This would allow him to continue collecting his salary, even from his prison cell, until he was "fired" -- which for an appointed federal judge, means impeachment and trial in Congress.
Say what you will about Kent, this was a smart and shrewd move on his part, from a defense perspective.
Of course, this served to incense many, and the impeachment of Judge Kent began. Then, as the Senate was beginning its trial process by sending two Senate officials over to Judge Kent's jail cell last week to serve a summons upon him, voila.
Another surprise from Judge Kent.
He handed the Senate summons servers a short, terse letter where he resigned effective June 30, 2009. As of today, Judge Kent is no longer a federal judge, his bench is vacant, and he's no longer drawing a government paycheck.
Congress has to decide what it's going to do now. He's already in prison for 33 months. He's broke. They got lots of other business. Maybe Congress just lets this go.
Meantime, one has to wonder: book deal?
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