Not long ago, the Texas Legislature passed a series of laws which significantly alter the rights and responsibilities of homeowners associations. While some associations or HOA’s have complied with these new rules, many still have not, probably because they are unaware of them.HOA’s need to be aware of these new laws, however, because a failure to follow them can prevent the HOA from exercising its rights and enforcing various restrictive covenants against its members.
Throwing a holiday party this year in your home? Having guests over where alcohol will be served? If so, then you know it’s always possible that someone is going to drink too much. And you know things can get out of hand if that occurs. Now you’ll probably get over it if someone throws up on your new rug or trips over the dog, but what about when they get behind the wheel? Can you be held liable if that someone drives drunk and ends up killing someone on the way home?
Generally speaking, in Texas the answer is no, you can’t be held liable. The landmark Texas case in this area of the law is Graff v. Beard ( and in case you were wondering, no, the “Beard” party in that case was not me or any of my extended family members as best I can tell). In that case, the Texas Supreme Court held that a social host has no legal duty to prevent a guest who will be driving from becoming intoxicated or to prevent an intoxicated guest from driving. That is still the law. So if you serve alcohol to a guest and they end up harming themselves or someone else, you generally cannot be held liable for the harm done.
But that doesn’t mean you shouldn’t take precautions when throwing a party or having a gathering in your home. Keep in mind that if someone can still sue you under a premises liability theory if they become injured as the result of a defect on the premises that you were aware of but failed to warn them about. So consider gathering all of your guests together to warn them about dangerous conditions they may be unaware of or might overlook.
As for alcohol, the best policy might be to simply urge your guests to drink responsibly. If you try to do too much, you might find yourself in hot water if you don’t do what you set out to do. In a case decided just last year by the Texas Supreme Court, Nall v. Plunkett, the Court dealt with a situation where some homeowners were sued after they held a New Year’s Eve party where they instituted a rule that anyone remaining in their home after midnight had to stay overnight. Someone broke the rule and tried to drive home after midnight, and another guest tried to stop them and became severely injured. Although the Court ultimately ruled in favor of the homeowners, it did so based on procedural grounds. The Court did not reach the merits of the case. The general rule is that if you undertake a duty, you must do so non-negligently. So for now, the best practice is to use your best judgment and be careful if undertaking any additional duties not otherwise imposed by the law.
Don’t drink and drive. Have a safe and Happy New Year from all of us at Saunders, Walsh & Beard!
Written By: Alex Beard
Ah, the holidays. Tis the season of giving. But for many lawyers and their clients, giving is not on their minds. The client has been wronged and wants justice. But the wheels of justice often turn very slowly, especially around the holidays. The client wants results, but there is nothing to be had.
It doesn’t always have to be that way, especially in business disputes. There are things that can be done to advance the ball down the field. Even some of the most seasoned attorneys sometimes forget about the “extraordinary remedies” that Texas law affords litigants, particularly in suits involving money or property.
In the law, “waiver” is defined as the voluntary relinquishment of a known right. Lawyers waive defenses and legal argument in courts more often than you might think. Sometimes it’s intentional, and sometimes it’s not. Sometimes it’s the result of the lawyer’s mistake. A lawyer forgets to raise a defense, or simply overlooks one.
In a rare move, the Dallas Court of Appeals has levied sanctions against a party for filing a frivolous appeal of a trial court’s order denying that party’s special appearance. In Estate of Deuel-Nash, 2014 WL 5581044 (Tex. App. – Dallas 2014, n.p.h.), the defendant (Nash) in a probate proceeding filed a plea to the jurisdiction (which is different from a special appearance contesting personal jurisdiction) and later filed a “motion to nonsuit” the plea to the jurisdiction. The defendant also served a non-party with a subpoena. The defendant thereafter failed to produce documents in response to a demand from the plaintiff, prompting the trial court to issue an order to the defendant to appear and respond to the plaintiff’s motion to show cause. In response to that order, the defendant filed a special appearance, contesting the probate court’s jurisdiction over him.
