HOA Liable for Wild Animal Attacks on Common Areas? Probably Not in Texas

A lawsuit out of Georgia poses interesting questions regarding the liability of a homeowners association for wild animal attacks.

In that case, an elderly woman was mauled by a sizeable gator who took up residence in an HOA-owned lagoon. The victim's family filed suit, alleging that the HOA was negligent in not removing the wild gator. An excellent synopsis of the case can be found in the Claims Journal at this link.

While the chances of getting mauled by a gator are pretty slim in the vast majority of Texas, there are many dangerous wild animals throughout the Lone Star State. Nevertheless, our HOA-meets-wild animal laws, focus more on urbanization's effect on deer populations (and trapping) than on attacks.

However, the liability of Texans for injuries inflicted upon invitees by wild animals on their premises is an interesting study.

Texas law has long recognized the doctrine of FERAE NATURAE, which makes the acts of wild animals an exception to the duty of care owed to a visitor on a given premises. Meaning "animals of a wild nature or disposition," ferae naturae is a common law doctrine tracing its origins back to the Roman empire whereby wild animals are presumed to be owned by no one specifically but by the people generally. State v. Bartee, 894 S.W.2d 34, 41 (Tex.App.—San Antonio 1994, no pet.). Specifically, ferae naturae provides that wild animals belong to the state and no individual property rights exist as long as the animal remains wild, unconfined, and undomesticated. Even one's status as the owner of land upon which the animals ferae naturae are found is insufficient to confer individual property rights to the animals thereon. Lone Star Gas Co. v. Murchison, 353 S.W.2d 870, 876 (Tex.Civ.App.—Dallas 1962, writ ref'd n.r.e.).

The rule of law has developed that a landowner cannot be held liable for the acts of animals ferae naturae, that is, indigenous wild animals, occurring on his or her property unless the landowner has actually reduced the wild animals to possession or control, or introduced a non-indigenous animal into the area. Gowen v. Willenborg, 366 S.W.2d 695, 697 (Tex.Civ.App.—Houston [1st Dist.] 1963, writ ref'd n.r.e.).

The general rule is this: Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person's safety, as well as the extent of that threat. Thus, ordinary attacks by rattlesnakes, rutting bucks, fire ants and scorpions would probably not succeed in Texas.

However, a premises owner in Texas could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.

The facts related to the HOAs knowledge about and actions related to the gator will probably be dispositive in the Georgia case.

Judge, not ref, settles HOA hoop feud

More HOA litigation hijinks. This time, Association money was spent to litigate a homeowners right to keep her basketball hoop. According to reports out of Omaha, the goal-tending Mom "won a slam dunk victory in court."

Read the full story here: Judge, not ref, settles hoop feud - Omaha.com

Houston Area HOA Sues to Stop Individual from Acting as HOA

San Antonio HOA Lawyer Trey Wilson wrote:

The battle over who is the the "official" homeowner's association governing a Park Harbor community, has ended-up in the Houston Court of Appeals.

According to the Court, the Park Harbor Improvement Association, Inc., sued appellant, Mildred Dunn, for usurping its duties and attempting to act as the official homeowner's association governing the Park Harbor community at issue. The Association sought injunctive relief and a declaratory judgment that Dunn had no authority to act. Dunn counterclaimed for defamation and sought injunctive relief to prevent the Association from acting as the authorized governing body of the Park Harbor community.

On August 30, 2011, in three orders, the 234th District Court granted summary judgment in favor of the Association on all claims and denied Dunn's motions for summary judgment. The trial court declared that Dunn has no authority to act as the homeowners' association; has no authority to levy or collect assessments, dues, or fines and fees; and has no authority to file documents on behalf of the Park Harbor community with the Texas Secretary of State or the Harris County Clerk. In addition, the trial court permanently enjoined Dunn from taking various related actions.

On February 9, 2012, the Court of Appeals of Texas, First District, Houston, dismissed Dunn's appeal, deeming it premature. We'll continue to track this case.

Not all association revenue is tax exempt – Condos and HOAs – Sun-Sentinel

Not all association revenue is tax exempt – Condos and HOAs – Sun-Sentinel

Limitations of the Quitclaim Deed in Texas

With surprising frequency, Texans seeking to transfer title to real estate without the assistance of an experienced real estate lawyer utilize Quitclaim Deeds. Perhpas this is because of the wide availability of these forms on the internet, and in free databases. However, there are many pitfalls associated with using the Quitclaim Deed, and its limitations are plenty. For these reasons, quitclaim deeds are viewed with disfavor in Texas.

The essence of a quitclaim deed is an effort to pass any title, interest or claim of the grantor, but not professing that such title is valid, nor containing any warranty or covenants for title. See Porter v. Wilson, 389 S.W.2d 650, 655-56 (Tex.1965). A quitclaim deed is not a conveyance or a muniment of title. Adamson v. Doornbos, 587 S.W.2d 445, 447-48 (Tex.Civ.App.—Beaumont 1979, no writ).

By itself, a Quitclaim Deed does not establish any title in those holding the deed, but merely passes the interest of the grantor (if any) in the property. Stated simply, a Quitclaim Deed suffices only to give the grantee whatever title that grantor has. If the Grantor has no title to the property interest in question, then none passes.

More importantly, a subsequent purchaser is not a bona fide purchaser if the conveyance is made by quitclaim (conveyanvce without warranty). See Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286, 291-92 (1951) (purchaser of a quitclaim deed takes with notice of all defects in the title and equities of third persons); Kidwell v. Black, 104 S.W.3d 686, 691 (Tex.App.-Fort Worth 2003, pet. denied); Hall v. Tucker, 414 S.W.2d 766, 769 (Tex.Civ.App.-Eastland 1967, writ ref'd n.r.e.).

Although there is an appropriate application for quitclaim deeds in Texas, these circumstances are rare, and a General Warranty Deed or Special Warranty Deed is the preferential instrument for conveyance.

Grounds for Annulment in Texas: Under Influence of Alcohol or Narcotics

A marriage may be annulled if, at the time of the marriage, the person seeking the annulment was under the influence of alcohol or narcotics and did not have the capacity to consent to the marriage. However, it is important to note that, the person seeking the annulment cannot have voluntarily lived with the other person to the marriage since the effects of the alcohol or narcotics ended. So a person regretting a marriage six weeks after the fact cannot claim that he or she was intoxicated and seek an annulment if they have been living together since the marriage.

References: Texas Family Code 6.105

Article by Sarah F. Berry, Attorney

Music and Band Legal Issues and Texas Law

With SXSW coming up in Austin in early March, I thought it was interesting to look at Texas law related to music and intellectual property rights.  Granted, most Copyrights are federal in nature (the Article I, Section 8, Clause 8 of the Constitution dictates this), but there are rights above and beyond the Copyrights.  Rather than fully regurgitate, there is an excellent article that was in the March issue of the Texas Bar Journal.  See that article HERE. One of the things most frequently missed is that the ownership of the music Copyright does not necessarily confer the right to use the artist's name and image, which for those producers can be a trap for the unwary.  Which basically is something that is more words to the wise, be sure to get any agreements related to the production of video and music rights in writing.  This includes you venues out there...just because they played at your restaurant and you recorded it doesn't mean you have the right to post same on Youtube.  If you want to post it, make sure you get that right in an agreement (and perhaps ought to be in your agreement related to payments to the band). 

What is a Texas Public Information Report (PIR)?

A Public Information Report in Texas is an annual report made to the Texas Comptroller under Tax Code Section 171.203 by "any corporation or limited liability company on which the franchise tax is imposed even if those businesses are not required to pay the tax". 

The report generally must contain:

• the name of each corporation or limited liability company that the filing business owns 10% or greater interest in and the percentage owned; 
• the name of each corporation or limited liability company that owns a 10% or greater interest in the filing business;
• the name, title, and mailing address of officer or director of the filing business when the report is filed and the expiration date of each of the terms;
• the name and address of the agent for the service of process for the filing business ; and
•  the address of the business’s principal office and principal place of business.

The report must be sent to all of the filing business’s non-employee officers and directors. Finally, a person authorized by the filing business must sign the report and certify that all of the information in the report is correct and that a copy has been sent to all of the required people.

Interesting to note, a public information report is only required of LLC's and corporations (S corps and C corps), but it appears to not be required for other entities, like limited partnerships or limited liability partnership.  Also, it is filed with the Texas Comptroller's Office (not the Texas Secretary of State), for the Comptroller will forward same to the Secretary of State.  The report is mailed by the filing business to the non-employee officers and directors so that said officers have the opportunity to object to their inclusion with a sworn statement disclaiming the role (to avoid potential imposed liability).

(Drafted by Eric Rupe; Edited by Marc L. Lippincott for the firm.)

Texas Juries Issue Warnings to District Attorney, County Jail Officials But Don't Hold Anyone Criminally Liable.

Juries usually have a single, solid voice that answers "guilty" or "innocent," simple as that -- but that's not what is happening in the State of Texas today when it's public officials like the Harris County District Attorney's Office or those responsible for running the Travis County Jail that have been called on the carpet.

Austin Jury

This week, a federal jury down in Austin spent lots of time hearing testimony and reviewing evidence about the case of Rachel Jackson, a 21 year old woman who died while she was being held in the Del Valle Jail (part of Travis County) under a “psych lockdown.”

The Jackson family argued that Travis County and its jail psychiatrist, Dr. John S. Ford, were responsible for the young woman's tragic death in a jail cell because Dr. Ford prescribed thioridazine to inmate Jackson but he failed (among other things) to follow the warnings on the drug packaging to check her potassium levels as well as her heart's electrical activity before giving her the antipsychotic drug. If he had bothered to do so, the family argued, then he would have known that thioridazine can cause sudden death by causing the heart to beat out of its normal rhythm.

You can read the warning for yourself online: seems pretty serious and pretty long for someone - especially a doctor - to just disregard.

There was also evidence presented at trial that the inmate told her Travis County jailers that her heart was racing, to which the jailer did not get her medically checked out; and that days later, she told a Travis County jail nurse that she was having chest pains, and that the jail nurse did not record in her file any of her vital signs at the time.

The family of Rachel Jackson sued Travis County for her wrongful death, but the jury did not find that the county was responsible for the woman's death. So the family loses its lawsuit.

Here's the thing: most always, all we would know from the jury was their verdict. Period. However, in this case the federal trial judge, the Honorable Sam Sparks, approved the jury's request that a written statement they had compiled there in the jury room be read into the record.

So, the jury foreman stood up there in the courtroom, just as forepersons do whenever they announced they have reached a decision, and read a statement that the jury couldn't find that Travis County was the proximate cause of Rachel Jackson's death, they "...do see significant opportunity for improvement in the processes, documentation and communication within the Travis County Correctional Center."

Houston Jury

We've been monitoring the Grand Jury investigation of the Houston BAT Van Controversy (read all the details here) and now, the Grand Jury has spoken: the Harris County District Attorney's Office will not face any indictments for criminal wrongdoing.

Once again, however, there's the unusual twist to the story: the jury isn't speaking in the usual way, in the decision it has handed down. No. This jury has also sat together and drafted a joint statement, which has been released to the public.

A one-page statement from the jury was read by Grand Jury foreman Trisha Pollard, which criticized the Harris County District Attorney's Office for its "unexpected resistance" to the investigatory process and singled out Harris County prosecutor Rachel Palmer for invoking her Fifth Amendment right not to testify in order to avoid self-incrimination. The grand jury's statement also accused the District Attorney's office of investigating the grand jurors themselves as well as the special prosecutors assigned to oversee the case.

All that being revealed, the Grand Jury still found that "there was no evidence of a crime" on the part of the Harris County District Attorney's Office and so no indictments would be issued.

Jury Statements Are Worth What, Exactly?

These jury statements may make the jurors feel better, but legally they do squat. Verdicts are what count with juries. And in both of these instances, the public officials have been found innocent of a death and of tampering with the judicial process of fair trials, etc.

When juries have this much doubt and concern, one has to remember that where there is smoke there is fire and that something smells bad in Texas today.