Waiver of Right to Arbitration in Texas

If you have an arbitration clause in an agreement, you may need to rethink using litigation as a discovery device or pressure tactic prior to seeking arbitration; because by doing so, you may unintentionally waive your right to arbitration. The Texas Supreme Court recently ruled that a party can waive its right to arbitration by pursuing litigation. (Perry Homes v. Cull, 258 S.W.3d 580 (Tex.2008). In Perry Homes v. Cull, there was an arbitration clause in the warranty agreement purchased by the Culls. However, when problems arose, the Culls filed suit rather than seeking arbitration. Perry Homes requested arbitration which the Culls vigorously opposed. After fourteen months of discovery and right before the case was set for trial, the Culls, who had opposed arbitration all along, requested the Court to compel arbitration. The Court granted the Culls’ motion, and over objection of Perry Homes, the case was sent to arbitration. The Culls obtained a large award against Perry Homes in arbitration. Perry Homes argued that the Culls had waived their right to arbitration by substantially invoking the judicial process. Through appeals, the case went all the way to the Supreme Court. The Court used a two part test to determine whether the Culls’ right to arbitration had been waived. In order for a party to have waived its right to arbitration, it must be found that the party substantially invoked the judicial process and that the opposing party was prejudiced. A party is prejudiced when there is an inherent unfairness in the terms of delay, expense, or damage to a party’s legal position because the opposing party forced an issue to litigation but then later seeks to arbitrate the same issue. In this case, the Court found that Perry Homes was prejudiced because the Culls had opposed arbitration and engaged in extensive discovery, even using the Court to compel discovery, but then switched to arbitration right before trial.

Cop Watch: Austin Cops Pay Out Their Second $1 Million in 2 Months Time for Wrongful Death Shootings

Be careful in Austin, boy howdy.

Last month, the Austin City Council approved a $1,000,000 settlement in the case brought by Kevin Alexander Brown's family. Seems Kevin Brown, 25, was shot as he was running from an Austin policeman already under suspicion for using excessive force.

Brown was shot dead at the scene, only two days after the press announcement that the US Department of Justice was investigating the possible use of excessive force by members of the Austin Police Department.

This month, here comes the Austin City Council approving another $1,000,000 settlement -- this one for the shooting death of 18-year-old Daniel Rocha.

Rocha was killed during a traffic stop -- shot by a cop who said she was afraid he had gotten ahold of her (or her partner's) Taser and was about to use it on them. The Taser was found 10 feet away from Rocha's body.

Oh, and one interesting point to note: 18-year-old Daniel Rocha was shot in the back.

When Can the Cops Shoot to Kill?

Police are allowed to shoot - and even kill - when they are under the reasonable belief that either they or others are in danger of imminent (and possibly fatal) harm.

With Brown, running away hardly seems like a threat of harm. Let him go and you're totally safe, right?

With Rocha, even if he had a Taser those things aren't guns - they can stop you, they are painful, but they don't kill people. Plus, no one stopped to check and make sure Rocha even had the Taser ... talk about excessive force.

Will Two Million Bucks Send a Message?

Two million bucks. In two months time. Maybe paying that much money out of city coffers will make someone train these cops to stop and think.

Meanwhile, if you're stopped by a cop in Austin -- be very, very careful.

Sources:

Austin American Statesman
http://www.statesman.com/news/content/news/stories/local/06/04/4shooting.html

Austin American Statesman
http://www.statesman.com/news/content/news/stories/local/12/12/1212rocha.html

Texas Waiting Period for New Marriage After Divorce

Sometimes we are asked the question: “How long do I have to wait before I can remarry?” Despite the obvious question – “Why are you trying to remarry so soon after you just divorced?” Nevertheless, if you are not dissuaded by a recent divorce, (say, for example, your adulterous relationship has produced a child) here’s how it works: After your divorce, you are not permitted to remarry another person before the 31st day after the date the divorce was “decreed” (usually meaning the day the Decree was signed). The only proviso is that when “good cause” is shown (again perhaps the child example above) the court can waive the prohibition against remarriage if a record of the proceedings is made (in open court with a court reporter) or with “written findings of fact” prepared and signed by the Judge. The only exception is that the former spouses can remarry at any time.

Divorce Name Change in Texas

At the time a divorce is granted (or annulment or suit to declare a marriage void) the court shall grant a name change to a name used prior to the divorce, unless the court states in the decree a reason for denying the change of name. The court cannot deny a change of name solely to
keep last names of family members the same. You should also be aware that you can apply for a “Change of Name” certificate from the clerk of the Court.

FAQ: Can I get Alimony in Texas?

No. There is no “Alimony” per se under Texas law. However, the Court can grant “spousal maintenance” in certain limited circumstances, such as when: (1) there has been a conviction (or a grant of “deferred adjudication”) for an act involving family violence within two years of the filing for divorce, or during the pendency of the divorce, (2) the parties have been married for at least ten years and the spouse seeking the maintenance “lacks sufficient property” . . . “to provide for the spouse's minimum reasonable needs” and when any one of the following [a, b, or c] exist: (a) the spouse seeking the maintenance is unable to support him or herself through “appropriate employment because of an incapacitating physical or mental disability,” (b) the spouse seeking the maintenance is the custodian of a child of the marriage (of any age) who requires substantial care and personal supervision because of a physical or mental disability, or (c) the spouse seeking the maintenance “clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs.”

Sheriffs in Atlanta Overwhelmed by Evictions -- Is the San Antonio, Bexar County Sheriff Next? Evictions Deluge Not Unique to San Antonio

Flood of home evictions overwhelms sheriffs
Atlanta Business Chronicle - by Joe Rauch Staff Writer

On June 19, sheriff's deputies Mark LaBoy and Joe Buico stood inside the living room of a Gwinnett County house after evicting its former owner at gunpoint. Eight movers cleared the ranch-style home in Lilburn. The eviction was the deputies' second of the day. Thirteen more were waiting.

Metro Atlanta's record foreclosures are overwhelming some counties' sheriff's departments' ability to keep up with the resulting wave of evictions. "We do this two days a week from 9 a.m. to noon, then we go to our real jobs," said LaBoy, who, with Buico, is normally assigned to the domestic violence unit.

Through the first five months of 2008, Gwinnett County's evictions are 8 percent higher than the same period last year, in the first days of the mortgage crisis. So far this year, the county is averaging 685 evictions per month, up from 633 last year.

The traditional one- to two-week backlog of eviction notices has bloomed into a six-week wait for some banks and repossessors. "This started about a year ago, and it hasn't let up," said Maj. David Parr, head of the Gwinnett County Sheriff Department's civil division who oversees the eviction program. Parr said the department schedules evictions every day of the week in morning and afternoon shifts, and plans to do "as many as we can get to."

All of the department's deputies are used for some work on the eviction shift. The department assigns two deputies to each eviction, Parr said, "because we've been attacked before. It's understandably an emotional time for people. We've sent as many as four deputies if we're concerned the situation may get out of control."

The data shows how unpredictable the volume of evictions can be.
In February, the county served 177 more eviction orders than in the same month the year before. This May, the county's 681 evictions were a 7 percent drop from May 2007's total of 736. Other counties have reported similar activity.

The Cobb County Sheriff's Office has seen overall eviction levels rise, and home evictions begin to roughly equal apartment cases. Apartment evictions typically account for about 75 percent of all eviction orders in the county.
Bob Hodge, a real estate agent for foreclosed properties, said he has noted an increase in eviction work in his business, and expects to market roughly 300 foreclosed and eviction homes this year, primarily in urban neighborhoods throughout the city. "Depending on the county, you could get an eviction done as quickly as six or seven days after an order was issued," said Hodge, president of Circle Real Estate Services LLC. "Now it's at least two to three weeks in the best case."
Hodge said the demand has pushed some repossessors to evict during the holiday season between Thanksgiving and Christmas -- a move generally avoided because of the potential emotional impact on a family.

Jason Nelms, a field supervisor for Eviction Services Inc., said business has been "consistent and busy" since the housing market began to slow 18 months ago. Nelms' company is one of the largest eviction moving companies in Georgia.
Evictions force renters or homeowners from their properties by legal order, typically served by county sheriffs or marshals. But the process can vary slightly from county to county.

The lag time from foreclosure or late payment to actual eviction varies, like
Georgia's foreclosure process, which is not judicially monitored. "The bottom line is eviction is driven by an individual's inability to repay," said Russell James, a University of Georgia assistant professor who studies housing and eviction trends. "Lenders don't want to take back houses or evict, but it is used when they make a judgment that the person is unwilling or incapable of repayment."
Only a fraction of foreclosures ever become evictions. Homeowners typically leave before an eviction is required, moving when the home is sold at foreclosure. James estimates that roughly 0.25 percent to 1 percent of home foreclosures ever become an eviction, but the dramatic rise of foreclosures is creating a corresponding spike in evictions.

For the former homeowner evicted by LaBoy and Buico on June 19, the end came after negotiating with mortgage lenders and attorneys during a five-month foreclosure process.

Robyn H., who declined to give her last name, said she lost her home after being laid off by a local engineering firm. Even though she had a fixed-rate mortgage, she was unable to keep up with payments when new work didn't materialize. "I've got nothing left," she said.

Evictions Don't Just Effect the Poor, and San Antonio Isn't the Only Evictions Hotbed.

Court rules the eviction of Bianca Jagger was proper
By Jef Feeley and Phil Milford - Bloomberg News

Bianca Jagger, the human rights activist who once was married to rocker Mick Jagger and has fought for refugees in Darfur and Iraq among other places, is homeless herself — in a way. A New York appeals court ruled last week that she was properly evicted from a rent-stabilized $4,600-a-month apartment at 530 Park Avenue based on her tourist-visa status.

The owners of the posh Upper East Side Manhattan building had the right to oust Jagger after 20 years since she was in the U.S. on a so-called B-2 visa and couldn't show the apartment was her “primary residence,” the New York Court of Appeals decided. “We conclude that, absent some unusual circumstance, a primary residence in New York and a B-2 visa are logically incompatible,” Judge Robert S. Smith wrote in a four-page decision released Oct. 23.

Jagger, also the mother of interior designer Jade Jagger, has been an advocate for human rights in world hotspots. She moved out of the apartment temporarily several years ago, saying it had mold, and withheld the monthly rent payments, according to court records. Jagger sued building owner Katz Park Ave. Corp., claiming the apartment was uninhabitable. Katz later rented the apartment to a new tenant.

Roger D. Olson, a lawyer for the Nicaraguan-born British citizen, told the appeals court Sept. 3 that his client was the equivalent of a “snowbird,” a New York City resident who spends the winter elsewhere and returns in the spring. Such residents still qualify to participate in the rent-control program, he argued.

Magda Cruz, a lawyer for Katz, argued that New York's rent-stabilization laws were set up “to provide affordable housing for New York residents,” and that federal immigration law bars visitors on tourist visas from claiming they have their primary residence in the U.S.

If you are involved in a legal dispute requiring eviction or other landlord-tenant disputes -- in San Antonio or anywhere in Texas -- the experienced lawyers at R L Wilson, P.C. Law Firm have the experience and knowledge you need. Call us today to discuss your eviction law issue at 210-223-4100 or visit us at www.saevictionlawyer.com