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With Halloween just around the corner, it seems only fitting that it should be the topic of this week’s blog post.  While you are decorating your house, carving your pumpkins, and picking out your costumes, you might not be thinking about avoiding legal entanglements that may result from the celebration.  Thankfully, you read my blog, and I have compiled a short list of things for you to consider this holiday weekend:

• Costume etiquette – Besides being tasteful and conscientious enough not to wear your “naughty librarian” costume to your kid’s school’s fall festival, there are other places you should avoid wearing your costume. Do not wear your Halloween mask while driving.  Many masks will block your periphery vision, resulting in impaired driving ability, and a ticket.  It would also be inappropriate to wear your ski mask into a convenience store or bank.
• Decorating your house – Premises liability is always a concern when having guests over for parties. Halloween is probably the only holiday that someone might decorate with pointy objects and other tools of mayhem.  If you use such decorations, be sure they are secure and out of reach.
• Drink (and serve) responsibly – Alex Beard covered this topic last December, but it applies to Halloween parties as much as it applies to Christmas and New Year’s Eve parties.
• Prepare the front entrance for trick-or-treaters – Again with the premises liability. On Halloween, if you turn your lights on and decorate, you are inviting the public onto your property.  When you invite the public onto your property, you owe the public certain legal duties.  If you know that you have a loose cobble stone that could twist an ankle, you should probably get that fixed before Halloween night.  Just picture the little boy and his baby brother walking up your cobble stone path, hand in hand, when one of them twists an ankle, pulling the other down on top of them.  Given the number of plastic assault weapons in my home, I can always imagine numerous ways a child can hurt him/herself.  Think ahead and make sure that your front lawn and walkway are safe for children before turning your lights on this Halloween.
• Treats, not tricks – Every year, the morning after Halloween, I see a car covered with eggs or a house draped in toilet paper. I admit that I laugh, but I am also very grateful that I am not the one trying to get TP out of a tree or having to get paint chips repaired.  Remember, a “trick” can also be classified as “vandalism” or “willful destruction of private property.”
• Flaming Pumpkins of Death – NFPA’s most recent statistics show that decorations were the first item to be ignited in an average of 860 reported home structure fires per year from 2009-2013, causing an estimated average of one civilian death, 41 civilian injuries and $13.4 million in direct property damage. Nearly half of all decoration fires in homes are the result of decorations being too close to a heat source. I found this statistic HERE, along with a nice list of safety tips.

After researching and writing this blog post, I have decided that Halloween is a really hazardous holiday.  Be safe and please share any additional suggestions you may have for avoiding a truly scary Halloween.

 

Email has become the standard form of written communication in the business world.  It should come as no surprise that the laws have adapted to accommodate this new age of electronic communication.  We routinely enter into contracts while shopping online, but the formality of the experience leaves little question that we are entering into an enforceable agreement.  What many of us fail to recognize is that an enforceable agreement can be reached as a result of an exchange of emails.The Texas Uniform Electronic Transactions Act, Chapter 322 of the Texas Business & Commerce Code, is the law applicable to the creation of enforceable contracts by electronic means.  For the purpose of this article, there are two provisions of the Act that are of particular interest:

• 322.002(8) – “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
• 322.005(b) – This chapter applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct.  (Emphasis added).

The definition of “electronic signature” is so broad as to include a standard typed “signature” attached to most emails.  If you have created a standard email template that includes your typed signature, then you are intending to sign it.  If you are intending to sign the email, then even your standard typed email signature will be an “electronic signature” for the purpose of the Act.

Section 322.005(b) requires that the parties agree to conduct transactions by electronic means.  If it was left at that, then there would be little cause for concern or argument, but that is not the case.  The statute allows the courts to look beyond the existence of an express agreement to determine whether the parties impliedly consented to transact business electronically.  Given the amount of business conducted via email, a party would be hard pressed to argue that it had not impliedly consented to transact business by electronic means.

            The most recent case interpreting the Act comes out of the Federal District Court for the Northern District of Texas.  In the case of Williamson v. Bank of New York Mellon, 947 F.Supp.2d 704 (N.D. Tex 2013), the attorneys for the parties exchanged emails regarding settlement terms and reached an agreement.  After the emails were exchanged, the plaintiff fired her attorney and refused to abide by the terms of the negotiated settlement.  The defendant filed the emails with the court and sought to enforce the agreement pursuant to Texas Rule of Civil Procedure 11.  The issue before the court was whether the emails constituted a signed written agreement between the attorneys.  In finding that the emails constituted a signed written agreement, the court applied the Texas Uniform Electronic Transactions Act and concluded that the plaintiff’s former attorney’s act of signing his email with his typed name was sufficient to create a contract under the Act.  Specifically, the court held, “A typed name at the end of an email is similar to a ‘signature’ on a telegram, the latter of which can satisfy the statute of frauds.”  Id. at 709.

            In its opinion, the Federal Court specifically disagrees with an earlier opinion out of the Fort Worth Court of Appeals entitled Cunningham v. Zurich Am. Ins. Co., 352 S.W.3d 519, 530 (Tex.App. – Fort Worth 2011, pet. denied).  The facts in Cunningham are very similar to the facts in Williamson.   In the Cunningham case, the court concluded that a standard signature block did not evince an intent to sign an email under the Act.  The Federal Court rejects this decision on well-reasoned grounds:  1) the attorney created the signature block and directed his email client to attach it to his outgoing emails; 2) the Act is to be construed broadly; and 3) allowing a signature block to have the same effect as a typed signature is consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices.  Williamson, 947 F.Supp.2d at 710-11.  In practice, the Fort Worth’s opinion will be controlling within its jurisdiction, but it will be on equal footing with the Williamson opinion as persuasive case law throughout the rest of Texas.

            In conclusion, it is important to be aware that your typed signature on an email may create an enforceable contract.  The best practice would be to treat your emails like the typed, wet-signature, letters of yesteryear.  In the alternative, if you wanted to be particularly careful, you may consider ditching your standard signature block or amend it to specifically disclaim an intent to transact business via email.

Ahh, HOA’s.  You either love ‘em or you hate ‘em.  And those who hate ‘em usually have a good reason.  Maybe the HOA is on their case about a fence needing repair.  Maybe it’s that dues haven’t been paid on time and the HOA is threatening foreclosure (yes, strange as it may seem, most HOA’s have the authority to take your home if you do not pay).  Maybe it’s a fine that was imposed because you went on vacation and forgot to have someone cut the grass. No infraction is too small for some HOAs.

I’ve represented homeowners in disputes with their HOAs, and let me tell you, nothing surprises me anymore.  Sure, there are some good HOAs out there.  But there are also a lot of bad ones, ones that will spare no expense in “ensuring a homeowner’s compliance.” That often means legal action, with the homeowner viewed as easy prey.

It doesn’t have to be that way. Fortunately the laws governing homeowners associations are beginning to change, with more protections built in for homeowners.  But a lot more work is left to be done.  I will be attending a conference in a couple of weeks where some of these changes will be discussed.  I’ll make another blog entry upon my return.

In the meantime, check out Jacquielynn Floyd’s editorial in Dallas Morning News about how living is easy IF you bow to your HOA.

https://www.dallasnews.com/news/2015/10/05/are-you-on-your-homeowners-association-s-radar/

The 2015 Texas Legislature did a lot of good work during the 84^th Legislative Session.  Many of the most notable bills passed involved the budget, tax cuts, education and transportation.  If you are the typical Texan, you will likely acknowledge that these laws are important and that they will ultimately affect your life in some minor way whether you realize it or not.  That being said, I have skimmed through the most recent legislative update and identified some new laws that might interest you on a more immediate level.  Here is my list of interesting new laws that have, or will soon, go into effect:

• HB 7 – No more $200 annual occupation tax!!! Practicing in one of the formerly taxed occupations, I am very pleased with this one.
• HB 910 and SB 11 – These laws concern the new open carry and concealed carry laws. To learn more about these laws, please see my earlier post HERE.
• HB 11 – More money to fund border security. This is  a high profile, highly debated issue, so I am just going to say that $800 million dollars is a lot of money.  Maybe they should have left the occupation tax in place.
• HB 40 – There can be no local regulation of oil and gas. If you want to complain about the earthquakes in North Texas, then you need to talk to the people in Austin, not your local city council.
• SB 339 – Epilepsy patients can now obtain doctor-prescribed, non-recreational “low-THC cannabis.” The first step on the slippery slope to legalizing recreational marijuana.  I would say that it’s never going to happen, but I have been wrong before.
• HB 1150 – Yes! We can legally buy fireworks to celebrate Texas Independence Day, San Jacinto Day, and Memorial Day.  Of course, if there is a burn ban in place, and there usually is, the question of whether you can actually set off your fireworks is to be determined
• HB 554 – Finally, if you accidently forget to take your Glock out of your briefcase before entering an airport, you will not immediately be arrested. You will have the option to leave the screening area (or get arrested).  You might miss your flight, but you will not spend the day in a holding cell.
• SB 462 – This law creates a means by which real estate can be transferred upon death without the time and cost associated with a formal probate. While this law may not immediately affect you, it is certainly something to be aware of when planning your estate.
• HB 2398 – This is another new law that may not affect you, but it might. This law repeals both the criminal offense and the juvenile offense of truancy.  There is now only the civil offense of truant conduct.  As an added bonus, all past criminal records created as a result of the old laws are being expunged.

That concludes my list of interesting new laws.  What does it say about our state, or maybe just me, that of the 1,300+ laws that were enacted, I could only find ten worth mentioning in this blog?

Please feel free to add to the discussion in the comment section below.  Thanks for reading.

The last “out” was just made in our baseball anti-slapp case where a coach sued another coach and the president of the league for “ruining his reputation” stemming from events at a 7 year old’s baseball game (see prior entries here and here).     After appeal, and reversal, the Trial Court just ordered the Plaintiff to pay the Defendant’s   legal fees totaling over $60,000.00!  The Judge also sanctioned the Plaintiff $20,000.00 to deter him and others from filing similar lawsuits.  That’s a judgment FOR the Defendants to be paid by the Plaintiff for over $80,000.

I suspect that the Coach who sued, wishes he would have moved on to enjoy his summer, as we suggested, instead of filing a lawsuit over such a silly event.

Freedom of speech and protection from this type of lawsuit, is alive and well in Texas!   So, the next time a loudmouth bully with more money than sense threatens to sue a volunteer Board Member or coach for turning him in for bad conduct, wish them luck and tell them to save their money.  They may need it to pay your legal fees.   A home run for Texas volunteers and youth sports!