VI. Business Articles

BREACH OF CONTRACT & FRAUD

Fraud is a false representation of a past or existing fact made to induce action on someone's part. If, in fact, a person reasonably relies upon this false representation and the representation was material, then, if that person was damaged by the fraud, he or she may very well bring a lawsuit to recover damages. Should the representation have been made with knowledge, then punitive damages may be recovered. Fraud may also be involved when a person promises to do something in the future. To show fraud in this type of situation, it would have to be shown that the person never intended to do the act that was promised. The most common contract is when two parties promise to do something. It is a contract because each promise is based on the other's promise to pay and you promised to pay if served. Except for these common day to day occurrences, it is always a good idea to have your contract in writing. Should a contract be broken, the law allows for the recovery of attorney's fees.

WHAT TO DO IF YOU ARE SUED

When you are sued in a civil case, a lawsuit has been filed with the clerk of a Court or Judge asking for money damages. The paperwork notifying you that you are being sued is required by law to tell you the deadline and the place that you are required to file a written answer to the lawsuit. You are also required to send a copy of your written answer to the other side.

If you do not file a written answer at the correct place before the deadline, then the judge may be required to enter a judgment for money damages against you just as if a full trial had taken place and you had lost.

If you have insurance you must promptly notify your insurance company of a claim or lawsuit that is covered under your policy. The insurance company is generally required by the insurance contract to pay for a lawyer to represent you in the settlement or trial of a claim in addition to paying any damages for which you may be found liable. The fact that the insurance company must provide you with a lawyer at no charge to you is especially important if you believe that it is a frivolous claim and you wish to fight the claim.

You have the right to represent yourself without a lawyer if you are sued. However, you are still required by law to follow the same rules of procedure, follow the same rules of evidence, and meet the same deadlines as a lawyer. The laws and the rules of ethics that require a judge to be fair and impartial to both sides strictly forbid a judge from helping someone who is trying to handle a lawsuit without a lawyer.

Remember, you or your lawyer must answer the lawsuit in writing and the answer must be filed before the deadline at the correct place.

WRONGFUL TERMINATION OF EMPLOYMENT

Employees have very few rights under Texas Law if they are terminated.

The general rule in Texas is that an employee may be terminated, laid off, or fired at any time the employer chooses. If this happens usually the only right the discharged employee has is to file for unemployment compensation with the Texas Workforce Commission. This rule applies even if the employer did not have good cause for discharging the employee.

There are basically five types of exceptions to this general rule:

No. 1. If you have a written contract with the employer or a union contract, you may have a right to sue the employer for breach of the contract.
No. 2. If the employer fires you because you filed a workers compensation claim, you may sue. This may be difficult to prove since the employer will often claim there were other reasons to avoid this rule. If your employer does not have workers compensation insurance you can sue your employer only if you can prove the injuries were caused by the employer's negligence. However, if the employer has workers compensation insurance, you cannot sue the employer unless there is a death caused by gross negligence or injuries are caused by intentional acts of the employer.
No. 3. If you are fired because you refuse to do something illegal or because you report a violation of the law by your employer, you may have a right to sue.
No. 4. You may have a right to sue if you are discriminated against or harassed by your employer due to age, race, religion, or sex. Usually unfair treatment or conflict between you and an employer or supervisor is not discrimination unless you can prove a pattern of similar unfair treatment or conflict against all employees of that race, religion, sex, or age by the employer or supervisor.
No. 5. You may have a right to sue if your employer violates a Federal labor law such as the Family Medical Leave Act or the Americans With Disabilities Act.
There are a few other exceptions that may occur under special circumstances. If you are terminated, you should talk to a lawyer who practices and specializes in labor law

ANNEXATION BY A MUNICIPALITY

The City of Belton sent out notices last week of its intention to annex 12 tracts of land into the city limits of the City of Belton. Many of the landowners are upset because of what Belton city taxes will do to their monthly house/land payment. The first question that many of my clients and neighbors have asked is Can this be stopped? The answer is No, if the City of Belton follows the rules.

Article 11, Section 5 of the Texas Constitution grants cities of more than 5,000 population the right to adopt and amend their own charters. This is interpreted by Texas Courts as giving these cities the right to do anything the Texas Legislature can do, including fixing and extending their boundaries, subject to the Legislatures right to control the method and procedure for doing this. The Legislatures rules and procedures controlling annexation are contained in Chapter 43 of the Texas Local Government Code.
Here are the basic rules:

1. The City can only annex territory within its Extraterritorial Jurisdiction (ETJ), which for a city the size of Belton is one mile from the current city limits. The area annexed cannot exceed 10% of the current area of the city, but the city can carry over any annexation capacity not used in earlier years. A strip or spoke annexation must be 1000 feet wide.
2. Before starting the annexation process, the City must develop a Service Plan describing how ALL municipal services will be extended to the annexed area. These services can be provided directly by the City or by contract. The service plan must provide that full municipal services will be substantially in place within 22 years after the annexation. Necessary construction to extend or provide these services must begin within 2 years of the annexation. The City must conduct 2 public hearings for interested persons where the service plan is made available and explained. By law, the service plan is a contractual obligation of the City.
3. Within 60 days after annexation, the City must provide police and fire protection, solid waste collection, maintenance of existing water and waste water facilities, plus maintenance of roads, streets, street lights, parks and playgrounds, or other publicly owned facilities.
Even if you go to Court and get the annexation declared void because the City did not follow the procedural rules or get disannexed for the City's failure to provide services, all you get is a delay. The City has the right to then start over and do it right the next time.

TRANS TEXAS CORRIDOR / EMINENT DOMAIN

The Trans Texas Corridor and the widening of I-35 in Temple will cause many citizens to lose their land to Eminent Domain. Eminent Domain is the right of the government or its agencies to take a private citizen's land for a public use and/or purpose.
When the government takes private land, it must pay fair market value for the land taken and damages, if any, to land next to the public land. Fair market value is determined by its present use. However, a landowner may present evidence showing that the land can be adapted for another use that gives the land a greater value. No evidence of sentimental value or even goodwill of an established business is to be considered.
Adjacent land can be damaged by the public taking or the public use of land. Some examples would be a taking of land that cuts off/limits access to a business, or affects normal drainage, or splits or reduces the size of a block of land so that it cannot be used as in the past, or the public use reduces the value of the private land next to it, etc. Any of these may entitle the adjacent private landowners to damages. Here is how it works:

1. The government appraisers first make an offer and try to negotiate a direct purchase.

2. For those landowners who refuse to sell, the government files a petition in Court describing the land and the landowners.

3. The judge then appoints three disinterested landowners in the county as special commissioners to determine the value or damages to the land.

4. The special commissioners schedule hearings on the value or damages for all of the land listed in the petition. The government's lawyers will object and stop you if you do not follow the formal rules of evidence, so most people need a lawyer to help them. After hearing the evidence, the commissioners make a final award or finding of value or damages.
5. Any party may object to the commissioners findings on or before the first Monday after 20 days by filing a written objection with the Court. The case will then be tried before a Court Judge or Jury just like any other case.
6. But, if the government pays or deposits the amount found by the commissioners, the government is entitled to immediate possession of the land, even if the landowner objects or appeals further.

Because of the special evidence and procedure rules involved, it is helpful to hire an experienced trial lawyer. The most common attorneys' fee arrangement for this type of work is to give the lawyer a percentage of any amount the lawyer wins for you over and above the last offer of the government before the original condemnation petition was filed.