MAPA Founder Bob Alexander

Alexander 2It is with a heavy heart that MAPA announces that one of its founders, Robert “Bob” Warren Alexander, 96, passed away peacefully January 31, 2017, in Muleshoe, Texas. He was born February 19, 1920 in Paris, Texas to Morgan Provine and Grace Clara Alexander. Bob grew up in Paris, Texas, graduated from Paris High School and attended Texas A&M University, graduating with a degree in Petroleum Engineering in 1941.

Bob married Donna Dilley White in 1942 in Council Grove, Kansas. They had three daughters, Julie White, Barbara Dee and Peggy Ann. They were happily married for 72 years. Upon his graduation from A&M he was commissioned as a 2nd Lieutenant and served honorably on the European Front during WWII. Bob was a member of the 9th Armored Division serving as a staff member under General John W. Leonard. He attained the rank of Captain and was awarded the Bronze Star for valor.

Following his discharge from the Army he returned to Austin, Texas where he attended Law School at the University of Texas, graduating with his LLB in 1948. He joined the law firm of Wigley, McLeod, Mills and Shirley in Galveston, Texas and practiced there until 1965 when the Firm was named McLeod, Mills, Shirley, & Alexander. In 1965 he and his partners established the Law Firm of McLeod, Alexander, Powel & Apffel where he practiced until his retirement in February of 1979, handling a number of legal matters for Allstate Insurance and served as Designated Counsel for Atchison, Topeka and Santa Fe Railway (now BNSF Railway).

Shortly after his retirement, Bob and Donna moved to their ranch in Bandera, Texas.

Bob was preceded in death by his parents, his wife, Donna, his brother, George, and his sister, Virginia.  He is survived by his three daughters, Julie Alexander Cage and husband J.D. of Muleshoe, Texas, Barbara Alexander of Eugene, Oregon and Peggy Alexander Frese and husband A.C. of Birmingham, Alabama, eight grandchildren and thirteen great grandchildren.

McLeod, Alexander, Powel & Apffel, P.C. is eternally grateful for the leadership, hard work and example set by Bob  in founding our Firm and the Firm continues uphold his legacy of  integrity and ethics.

FMC Affirms Access Fees Ruling in Favor of Port of Galveston

By: Amanda D. Wright

On June 16, 2014, three private parking lot operators filed a legal action with the U.S. Federal Maritime Commission (“FMC”) against The Port of Galveston and its subsidiary, the Galveston Port Facilities Corporation (“GPFC”) alleging that access fees assessed against the companies to drop off and pick up cruise ship passengers at the Galveston Island Cruise Terminal violated Sections 41102(c), 41106(2), and 41106(3) of the Shipping Act of 1984.

On November 21, 2014, Senior Administrative Law Judge Clay C. Guthridge issued a ruling in favor of the Port and GPFC dismissing the parking lot operators’ claims under Sections 41102(c) and 41106(3) of the Shipping Act.  Judge Guthridge subsequently dismissed the parking lot operator’s remaining claim under 41106(2) of the Shipping Act, with prejudice to refiling, on December 4, 2015.

The private parking lot owners appealed this decision to the FMC itself. On January 13, 2017, the full United States Federal Maritime Commission unanimously affirmed Administrative Law Judge Clay C. Guthridge’s rulings in favor of the Port.

Anthony P. Brown, acting as lead counsel, along with David E. Cowen, Amanda D. Wright, and Jocelyn A. Holland of McLeod, Alexander, Powel & Apffel, P.C. represented the Port entities.

News of this decision is being reported in various cruise industry publications, such as Cruise Industry News.

Insurance Defense

McLeod, Alexander, Powel & Apffel, P.C. represents a number of state, national, and international insurance companies on a wide variety of insurance matters in both state and federal courts.  The Firm has significant experience in successfully defending insurance carriers against claims arising from a variety of matters, including:

  • Windstorm & Hail Claims
  • Property, Fire & Casualty Claims
  • Insured Liability Disputes
  • Insurance Coverage Disputes
  • Bad-Faith Litigation
  • Premises Liability Claims
  • Products Liability Claims
  • Motor Vehicle Accidents
  • General Liability Claims
  • Personal Injury Claims

The Firm is knowledgeable and experienced in mediation, arbitration, negotiation, trial, appeals, and appraisal of a wide range of insurance matters.

MAPA Law receives “Best Law Firm” Recognition

U.S News & World Reports’ Best Lawyers ® has selected McLeod, Alexander, Powel & Apffel, P.C. as one of its 2017 Best Law Firms.  The Firm was nationally recognized as a “Tier 1” law firm in Railroad Law.  The Firm also received the designations of a “Tier 1” in Railroad Law and “Tier 2” in Personal Injury Defense Litigation law firm in the Houston Metro area.

best-law-firms-home-page

Water Rights: “The Supreme Court Giveth and it Taketh Away”

By: Jocelyn A. Holland and James B. Galbraith

In a watershed decision issued in May 2016, the Texas Supreme Court established that groundwater rights, like mineral rights, are a dominant estate over the surface rights.  See Coyote Lake Ranch, LLC v. City of Lubbock, No. 14-0572, ___ S.W.3d ___, 2016 WL 3176683, at *1 (Tex. May 27, 2016).  Although the Court tempered this holding by applying the accommodation doctrine to water rights, the opinion may ultimately take more from Texas landowners than it gives.

In Coyote Lake Ranch, LLC v. City of Lubbock, the Court was asked to decide whether the City of Lubbock’s groundwater rights in 26,600 acres owned by the Coyote Lake Ranch permitted the City to drill wells and install power lines for water extraction, without regard for the Ranch’s surface rights. After concluding that a severed groundwater estate has the same right to use the surface that a severed mineral estate does, the Court turned to the groundwater deed for guidance on limitations on the City’s use.

The deed granted the City the “full and exclusive rights of ingress and egress” over the Ranch, along with the right to use all of the Ranch lands “necessary or incidental to the taking” of the groundwater.  The specific language in the deed provided as follows:

Grantors convey … all of the percolating and underground water in, under, and that may be produced from the hereinafter described tracts of land … together with the exclusive right to take such water from said tracts of land … together with the full and exclusive rights of ingress and egress in, over, and on said lands, so that [the City] may at any time and location drill water wells and test wells on said lands for the purpose of investigating, exploring producing, and getting access to percolating and underground water … together with the rights to use all that part of said lands necessary or incidental to the taking of percolating and underground water and the production ….

2016 WL 3176683, at *2 n.6.  The Ranch argued this language meant the City could only do what was incidental and necessary to access the groundwater subject to the Ranch’s restrictions on the use of the land, so long as the Ranch did not prohibit the City from having full access to the groundwater.  The City argued the language meant it could do everything necessary or incidental to drilling anywhere.

The Court concluded the Deed language was ambiguous and turned to the accommodation doctrine for guidance.

The accommodation doctrine is based on the principle that surface and mineral owners who hold conflicting estates should act with due regard for each other’s rights. After listing the similarities between groundwater and mineral estates, the Court concluded the accommodation doctrine was a proven rule for determining the instant dispute:

What is reasonable, necessary, or incidental for the severed estate cannot be determined in the abstract but must be measured against, and with due regard for, the rights of the surface estate. That is the accommodation doctrine, and we are reluctant to search for a new approach to resolving disputes over a severed estate’s implied right to reasonable use of the surface when a proven rule is at hand.

2016 WL 3176683, at *9. The Court specifically declined to address how the accommodation doctrine would work if both the minerals and groundwater are severed.

Thus, following the Coyote Lake Ranch decision, a Texas landowner may seek relief under the accommodation doctrine from the groundwater owner’s actions.  While on its face the Coyote Lake Ranch decision appears to provide some relief for landowners, the accommodation doctrine imposes a heavy burden of proof.  To prevail, the surface owner must show that,

(1)  the groundwater owner’s use of the surface completely precludes or substantially impairs the existing surface use,

(2)  the surface owner has no available, reasonable alternative to continue the existing use, and

(3)  given the particular circumstances, the groundwater owner has available reasonable, customary, and industry-accepted methods to access and produce the water and allow continuation of the surface owner’s existing use.

While the accommodation rule does give the surface owner some basis to argue for consideration of his surface use needs, the limitations on the application of the accommodation rule historically has provided scant comfort to surface owners.  See, e.g., Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 249 (Tex. 2013) (holding that the “surface owner’s burden to prove that his existing use cannot be maintained by some reasonable alternative method is not met by evidence that the alternative method is merely more inconvenient or less economically beneficial than the existing method.”); Sun Oil Co. v. Whitaker, 483 S.W.2d 808 (Tex. 1972) (refusing to apply accommodation doctrine, despite destruction of landowner’s crops and loss of groundwater, because mineral owner needed underlying groundwater to produce additional oil); Davis v. Devon Energy Prod. Co., L.P., 136 S.W.3d 419, 425 (Tex. App.—Amarillo 2004, no pet.) (accommodation doctrine did not prevent mineral lessee from building caliche roads across land: while caliche might cause some problems, there was no evidence it would destroy landowners’ ability to conduct a profitable farming operation).

It therefore remains to be seen whether surface owners are able to use the accommodation doctrine to their benefit.

In addition, because the Court’s decision turned on the interpretation of the specific contract language, Coyote Lake Ranch underscores the importance of carefully drafting. The majority concluded the groundwater deed did not address whether the City could do everything necessary or incidental to drilling anywhere; the three concurring justices, however, disagreed.  They thought the deed language expressly addressed this issue, and therefore the accommodation doctrine did not apply: “Because the express terms of the parties’ agreement address the issue, the accommodation doctrine does not apply and the Ranch cannot rely on the doctrine to require the City to adopt an alternative plan for different well sites.”

This begs the question: how specific must deed language be to foreclose application of the accommodation doctrine and protect the surface owner’s rights?  The Coyote Lake Ranch decision does not make this clear.  Given the importance of the rights at issue, and the Court’s emphasis and reliance on the conveyance language used deeds or contracts, it would be wise for anyone dealing with groundwater severances to protect their rights by consulting an attorney.

This article has been prepared for educational and informational purposes only and does not constitute legal advice. The laws of other states and nations may be entirely different from what is described in this article. Because of these differences, you should not act or rely on any information on this article without seeking the advice of a competent attorney licensed to practice law in your jurisdiction for your particular problem. The author has endeavored to comply with all legal and ethical requirements in writing this article and does not desire to solicit or represent clients based upon their review of any portions of this article which do not comply with the legal or ethical requirements of the jurisdiction in which the client is located. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.

McLeod, Alexander, Powel & Apffel, P.C. becomes a member of the American Association of Port Authorities

McLeod, Alexander, Powel & Apffel, P.C. is proud to announce its new membership in the American Association of Port Authorities (AAPA).  The AAPA acts as a unified voice of the Americas’ sea port industry, representing over 130 public port authorities in the United States, Canada, Latin America, and Caribbean.  The group provides advocacy and promotes the common interests of the port community in the areas of security, trade, transportation, infrastructure, environmental and other issues related to port development and operations.

The Firm has proudly represented the Port of Galveston since the 1940s.  Firm Officer, Anthony P. Brown currently acts as the Port’s general counsel.

Adoption Options (Revisited)- Galveston County Adoption Day Event

In recognition of National Adoption Month, McLeod, Alexander, Powel & Apffel P.C. Firm Officer, James B. Galbraith revisits and updates  Adoption Options.  Adoption Options was authored by Mr. Galbraith and was originally published by the Texas Young Lawyers Association in 1991.

By: James B. Galbraith

            The are a number of ways that Texans can enlarge their families through adoption, including placement by the State through the Texas Department of Family and Protective Services, placement by a licensed agency, placement by the child’s birth parents, and international adoption.  Legal counsel is invaluable when navigating the complexities of any form of adoption.

“Open” vs. “Closed” Adoptions

            Depending on the type of adoption, adoptive parents can have some, little, or no contact with the birth parents.  In a completely open adoption, the parents meet each other and participate in post-placement visits.  Closed adoptions, on the other hand, are completely anonymous, and most commonly take place through the Texas Department of Family and Protective Services.  Both types of adoptions are rare.  Most adoptions are considered “semi-open”, where the adoptive parents meet the birth mother (and in some instances the birth father) during the adoption process, and exchange pictures and letters as the child grows up.

Texas Department of Family and Protective Services

            The Texas Department of Family and Protective Services (“DFPS”) has a large listing of children available for adoption.  These children have been removed from their birth parents our guardians for abuse and/or neglect, and many have behavioral, learning, medical, and/or psychological issues.  Many of these children are non-infants.  Many loving parents have found satisfying and fulfilling solutions to their quests for enlarged families through an adoption from DFPS.

Private Adoptions

            Private adoptions involve the placement of the child with adoptive parents by the child’s birth parents.  Texas law states that a person who is not the natural or adoptive parent of a child, legal guardian of a child or a licensed child-placing agency may not serve as an intermediary between a prospective adoptive parent and an expectant parent or parent of a minor child.  An intermediary cannot identify the parties for each other, facilitate the placement of the child, or place the child for adoption.  As a result, private adoptions cannot be completely confidential.  If an adoptive couple has found a baby, they must deal with the birth mother directly and not through an intermediary.

            Private adoptions have been authorized by law to allow a birth parent to have some say in choosing adoptive parents.  For example, a family may collectively decide that the child’s grandparents or close family relative will become the adoptive parents.  The birth mother may also place the child for adoption with a non-family member.

            Questions and controversy surrounding private adoptions often arise regarding the expenses the adoptive parents may legally pay in connection with the adoption.  In the State of Texas it is a crime to “buy” a baby or to pay money for the placement of a child.  A birth mother cannot choose adoptive parents based upon which set of proposed adoptive presents the most attractive financial package (car, house, cash, etc.).

            Proposed adoptive parents are only allowed to pay “reasonable medical, legal, and counseling expenses” related to the health of the child.  Reasonable medical expenses can include doctor’s fees, prescriptions, etc.  Paying questionable charges may subject both the adoptive and the birth parents to possible criminal charges.

            Proposed adoptive parents should not give the birth money any money directly.  They cannot give the birth money a check for $5,000.00 and simply note on it that it is for “medical expenses.”  Instead, the proposed adoptive parents should pay the medical provider directly. Although you cannot legally pay an attorney for the placement of a child, you may pay reasonable attorney’s fees related to his or her preparation of documents and representation in proceedings to terminate the birth parents’ rights to the child and in the adoption proceedings.

International Adoption

            In an international adoption, the child being adopted is a foreign national.  There are a number of critical steps and legal issues which must be carefully completed or you may not be able to bring the child home to the United States.

            Not all countries allow American citizens to adopt children from their country.  The U.S. State Department maintains a useful database of information that can assist those looking to adopt internationally to see if an adoption is even an option in any given chosen country.

            In order to immigrate to the United States, at least one of the prospective adoptive parents must be a U.S. citizen.  In order to obtain a visa and travel to the United States, the adoptive child must either have been abandoned by both parents or the sole remaining parent must be unable to provide for the child and be willing to irrevocably release, in writing, the child for immigration and adoption.  Typically, prospective adoptive parents seek “advance processing” to obtain pre-approval to adopt internationally before identifying a specific child.  This process takes a number of months, but ultimately makes for a smoother adoption and immigration.

            Once the prospective parents have been pre-approved, they, usually through an agency, identify a specific child and travel to the foreign country.  Each country has different processes for international adoptions.  An Orphan Petition is then filed to obtain a child’s visa.  In most cases the adoption takes place in the foreign country, and the parents receive an IR3 visa for the child.  Under the Child Citizenship Act of 2000, a child that enters the United States under an IR3 visa automatically gains U.S. citizenship.

            Upon returning to the United States with the child, the adoptive parents may choose to have the foreign adoption recognized by the State of Texas.  This court proceeding results in an order formally recognizing the foreign adoption and allows the adoptive parents to obtain a Texas birth certificate or change the child’s name.

            If the adoptive parents are unable to see the child prior to the adoption proceeding or the proceeding did not occur in the foreign country, the adoption must be finalized in Texas with the same formalities as a domestic adoption.

Interstate Adoption

            If the adoptive parents and the child reside in different states, they must comply with the Interstate Compact laws for the placement of children.  The Interstate Compact Office of each state regulates the movement of children from state to state for adoption purposes.  As a general rule, both the sending and receiving state must approve the placement of the child before the child may leave the sending state.

Adoption of Native American Children

            The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 in order to “protect the best interests of Indian children and to promote stability and security of Indian tribes and families.” 25 U.S.C. § 1902.  ICWA provides federal requirements that apply to state child custody and adoption proceedings involving a child of Native American ancestry who is a member of or eligible for membership in a federally recognized tribe.

Terminating Birth Parents’ Rights to the Child

            Before a child may be adopted, the court must terminate the birth parents’ rights to the child.    Birth parents, both father and mother, are generally required to sign forms relinquishing their rights and indicating their desire to place their child for adoption before the court will terminate their interests.  This requirement applies regardless of whether the adoption is private, through an agency, or through DFPS.

            If the location of the birth father is unknown, the court must be shown that diligent attempts have been made to provide him with notice of the proceedings.  The birth father may be served with notice of the termination proceeding by publication of notice in the newspaper.  The court may require that the publication be in a newspaper of general circulation in the county of birth and/or the county of the birth father’s last known residence.  The rules of notice by publication are complex and must be strictly followed.  Notice by publication provides an avenue for the birth father to later challenge the adoption, so this route should be used only as a last resort to personal service and termination.

            The birth mother’s relinquishment must be freely and voluntarily signed after the birth of the child and after she is free of the effects of any drugs or anesthesia associated with the birth.  The mother’s relinquishment may not be signed until the child is at least 48 hours old.  In the case of a private adoption, properly signed relinquishments generally cannot be revoked for 60 days.  Within this 60-day period, the court generally decides whether to terminate parental rights.  Except in unusual circumstances, the decision to terminate is permanent.  In the case of agency adoptions, the relinquishment is generally irrevocable once properly signed.

            Termination represents the legal end of the rights and relationship that exists between the child and his or her biological parents.  The steps of termination vary according to the type of adoption chosen.  A termination will appoint a Managing Conservator of the child who is responsible to the court for the child’s welfare until the adoption is finalized.  The adoption agency, one or both of the adoptive parents, or the State are commonly appointed as Managing Conservator.

            Parents adopting newborns should check with the hospital where the child is to be born regarding the necessary paperwork needed to be complete prior to the child being released to the adoptive parents.  By law, hospitals must accept Third Party Releases and release the infant to whomever the birthmother dictates.

Adoption Proceedings

            The courts, agencies, and DFPS require a pre-adoptive home screening, also known as a home study, be performed in the home of adoptive parents prior to the placement of the child in the home.  The adoptive parents must also obtain a Texas Criminal History Report.  Courts generally require that the child live in the home for at least six month before granting an adoption.  During this time, the required post-placement supervision process occurs.  The six-month requirement may be waived by the court upon a showing of good cause.  Generally, waiver only occurs in the case of private adoptions as most agencies will not agree to a waiver.

            In all steps of the adoption process, the court must consider the best interests of the child.  During the termination process an attorney, or guardian (referred to as an “amicus attorney” or an “ad litem” in DFPS cases) is commonly appointed by the court to report on the best interests of the child.  A final adoption is truly final and there is generally no way a properly handled adoption may be rescinded or revoked.

This article has been prepared for educational and informational purposes only and does not constitute legal advice. The laws of other states and nations may be entirely different from what is described in this article. Because of these differences, you should not act or rely on any information on this article without seeking the advice of a competent attorney licensed to practice law in your jurisdiction for your particular problem. The author has endeavored to comply with all legal and ethical requirements in writing this article and does not desire to solicit or represent clients based upon their review of any portions of this article which do not comply with the legal or ethical requirements of the jurisdiction in which the client is located. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.

GALVESTON COUNTY ADOPTION DAY FOUNDATION CORDIALLY INVITES YOU TO

 

2016 Galveston County

Adoption Day!!

 

Event Information

Date: Saturday, November 19, 2016

Time: 10:00 a.m.

Location: Galveston County Justice Center,

600 59th Street, First Floor, Galveston, Texas

 

Additional Event Information:

 

2016 Event Chair:

Doryn Glenn; Doryn.Glenn@Co.Galveston.Tx.Us

 

Board President:

Jennifer Burnett; Jennifer.Burnett@Co.Galveston.Tx.Us

 

Volunteer Coordinator:

Shauna Correia; CorreiaLawFirm@Verizon.Net

 

Look for the event on Facebook at

“Galveston County Adoption Foundation” and check out our website at www.GalvestonAdoptionFoundation.org!

Achieving Perfection—The Basics of Mechanic’s & Materialman’s Liens in Texas

By: Amanda D. Wright

            Good work is hard to come by.  The State of Texas has granted mechanics, artisans, and materialmen commonly known as “contractors”) a means to place a lien on buildings and articles made, furnished, or repaired by them for value.  The State of Texas provides for two different types of liens: a constitutional lien and a statutory lien.

Constitutional Liens

            The State of Texas is unique to all other states in that it provides contractors a self-executing constitutional lien.  Article XIV, Section 37 of the Texas Constitution provides that all “mechanics, artisans and materialman of every class, shall have a lien upon the building and articles made or repaired by them for the value of their labor done thereon, or material furnished therefore; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”

            In order to establish a constitutional lien, a contractor must have “privity” of contract with the owner of the building or article.  Because of the privity requirement, constitutional liens are often of little use to subcontractors who rarely have a contractual relationship with the property owner.  Work done on a property, but not on a building or something affixed to the building is usually not eligible for a constitutional lien.

            Because the constitutional lien is self-executing or automatic, the contractor is not required to file a notice of lien or comply with any other statutory lien provisions before filing a lawsuit to enforce its lien.  However, filing a statutory lien is highly recommended because constitutional liens may not be enforced against a subsequent, innocent, bonafide purchaser of the property.  Statutory liens may also receive preferential status over constitutional liens so the prudent contractor will seek to perfect his statutory lien rights in order to secure priority status over other liens.

Statutory Liens

            In order to enforce their lien against subsequent purchasers of the property and secure their place in line before liens of other contractors, contractors must “perfect” their mechanic’s liens by meeting a series of legal requirements.  Chapter 53 of the Texas Property Code sets forth the requirements for a statutory lien. Depending on the contractor’s status on the project, different set of requirements apply.

Statutory Liens by the Original Contractor

            A contractor with a direct contractual relationship with the property owner may perfect his statutory lien on a residential property by filing an affidavit with the County Clerk in the county where the property is located.  The sworn affidavit is required to be filed no later than the 15th day of the third month after the day the indebtedness accrues, and served upon the owner, by certified mail, no later than the 5th date after the affidavit is filed with the County.  In order to be valid, the affidavit must substantially comply with the requirements of the statute.  Due to the strict requirements of the statute, and the importance of properly securing your lien, the assistance of an attorney is highly recommended when perfecting a statutory lien.

            The indebtedness to the contractor is said to accrue on the last day of the month in which the contractor provides notice that the contract has been completed, or the last day of the month in which the work has been completed, finally settled, or abandoned.  The date of accrual can be easily tracked through this handy chart:

Work Last Performed in Lien Affidavit Due By
January April 15
February May 15
March June 15
April July 15
May August 15

June

September 15
July October 15
August November 15
September December 15
October January 15
November February 15
December

March 15

 

Statutory Liens by a Subcontractor

            Subcontractors (also referred to as “derivative claimants”) who do not have a contract directly with the property owner must meet the same requirements as contractors.  In addition to meeting these requirements, subcontractors must also send the property owner and the contractor notice of the subcontractor’s claim on or before the 15th day of the second month in which all or part of the labor or materials were provided.  The notice must contain special language and meet the requirements of the Property Code so the assistance of an attorney in drafting the notice is highly recommended.

Enforcing a Mechanic’s Lien

            A mechanic’s lien is enforced by judicial foreclosure on the property.  Lawsuits to foreclose based upon a lien must be filed within one year of the last day to file the lien affidavit, or within one year of completion of the project, termination of the work, or abandonment of the project.

Homestead Exemption to Mechanic’s Liens

            The Texas Constitution and Property Code carve out an exception to foreclosure of mechanic’s liens for homesteaded properties.  However, Article XVI, Section 50(a) (5) of the Texas Constitution allows for a forced sale of a homestead property in order to pay a contractor who has provided work and/or materials for improvements or repairs of the homestead.  In order to foreclose upon the homesteaded property; the contractor must have executed a written contract with all of the owners of the homestead property before work commenced.

Challenging a Mechanic’s Lien

            A property owner may challenge a mechanic’s lien on their property by filing a lawsuit to declare the claim or lien invalid or unenforceable under the Texas Property Code.

Filing a False Mechanic’s Lien

            Contractors seeking to file a mechanic’s lien on a property must be cautious to properly represent the indebtedness and their right to a lien.  The Texas Property Code provides that it is a misdemeanor for a contractor to intentionally, knowingly, or recklessly make a false or misleading statement in a lien affidavit.  A contractor that is found guilty of filing a false or misleading affidavit may be punished by a fine of up to $4,000.00, confinement in jail for up to one year, or both.

            Additionally, there are civil ramifications for filing false or misleading lien documents.  The Texas Civil Practice and Remedies Code generally provides that the filing of false documents with the court (in the case of mechanic’s liens with the County Clerk) may subject the violator to liability for actual damages of $10,000.00 or greater, court costs and fees, and exemplary damages to be determined by the court.

            The filing of a mechanic’s lien is an essential step in legally securing your ability to collect for your hard work and materials.  Due to the strict requirements of the statute, and the importance of properly perfecting your lien, the assistance of an attorney is highly recommended.

This article has been prepared for educational and informational purposes only and does not constitute legal advice. The laws of other states and nations may be entirely different from what is described in this article. Because of these differences, you should not act or rely on any information on this article without seeking the advice of a competent attorney licensed to practice law in your jurisdiction for your particular problem. The author has endeavored to comply with all legal and ethical requirements in writing this article and does not desire to solicit or represent clients based upon their review of any portions of this article which do not comply with the legal or ethical requirements of the jurisdiction in which the client is located. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.

Appeals court halts Mostyn Hurricane Rita lawsuit, alleged “discovery abuse” at issue

“The Ninth Court of Appeals recently stayed a Hurricane Rita lawsuit brought against the Texas Windstorm Insurance Association, finding temporarily relief should be granted to prevent ‘undue prejudice.’

” Around a decade ago, plaintiff David James, who is represented by Houston attorney Steve Mostyn, filed suit against TWIA, Brush County Claims and adjuster David Gutierrez, alleging the defendants underpaid his Rita claim.

“According to court records, on Sept. 13 TWIA and the other two defendants filed a petition for a writ of mandamus, seeking to compel Judge Gary Sanderson, 60th District Court, to vacate an August 29 ruling, which ordered them produce photographs and estimates for all Hurricane Rita property claims within a one-mile radius of James’ property.

“The following day, the Ninth Court issued an order, finding ‘temporary relief is necessary to prevent undue prejudice.’

“The case has been stayed until justices issue an opinion.

“In their petition, TWIA and the other defendants argue the discovery request is the same type of ‘overly broad, unduly burdensome and irrelevant’ request that the Texas Supreme Court held as such in the case of In re National Lloyds.

“’This case follows what has become a familiar pattern of discovery abuse in bad faith insurance lawsuits: the plaintiff-insureds convince the trial court to let them ‘dredge the lake’ of their insurer’s claim files on the tenuous allegation that they may uncover something useful,’ TWIA’s petition states.

“When Hurricane Rita struck Jefferson County on Sept. 24, 2005, James had windstorm and hail insurance on his Groves home. James and his wife Sue filed a claim for damages and TWIA assigned Brush Country Claims.

“Brush sent its adjuster, David Gutierrez, to inspect the James’ property, court records show.

“According to the petition, Gutierrez and other Brush adjustors tried to inspect the house multiple times. However, despite the James’ claim for interior damage, they repeatedly refused permission for the adjusters to enter the house.

“A year later, the James finally gave a Brush adjuster permission. Upon entering, the adjuster discovered that with the exception of one room, the interior had been completely gutted down to the studs with all the drywall, wood trim, fixtures and other elements removed.

“As a result, the Brush inspectors were never able to observe the house’s interior condition following Hurricane Rita, nor did the James ever provide any photographs of the interior’s condition, the petition states.

“Brush submitted an estimate to TWIA that, despite the couple’s refusal to let adjusters inspect the interior, included interior damages.

“TWIA rejected the estimate of interior damages as speculative and unreliable, due to the adjusters’ inability to perform an actual inspection of the claimed interior damages, but paid the couple for the exterior damage, the petition states.

“’The James intentionally refused to permit any interior inspections of their house until after they had removed all the evidence, if any, of storm damage by gutting it down to the studs,’ the petition states.

“’In an effort to salvage their own misdeeds, the James seek discovery of other Hurricane Rita claims filed with TWIA in hopes of using other claimants’ interior damages as some indication of the damage to the interior of their house.’

“TWIA and the other defendants argue discovery is “not a tool to ‘fish’ for information,” and that the plaintiffs “are not entitled to engage in overbroad and irrelevant discovery in an effort to create a basis for their claims.”

“The defendants further argue the plaintiffs’ experts have no foundation for their opinions on the alleged damage caused by Rita.

“’The Texas Supreme Court held that discovery regarding one insurance claim does not justify a search into other claims in the hopes of finding something supportive of one’s lawsuit,’ the petition states.

“’Yet that is exactly what the Trial Court ordered in this case. Ignoring the on-point guidance of In re National Lloyds and this Court’s prior holdings, Respondent subjected TWIA to overbroad, unduly burdensome and irrelevant discovery.

“’Mandamus is the proper remedy in such situations, and TWIA therefore petitions this Court for relief.’

“The defendants are represented by Beaumont attorney James Old Jr., as well as David Salyer, April Marburger and Jocelyn Holland, attorneys for the Galveston law firm McLeod, Alexander, Powel & Apffel.

“In addition to Mostyn, the plaintiffs are represented by Randal Cashiola of the Beaumont law firm Caashiola & Bean.

“Appeals case No. 09-16-00331-CV

“Jefferson County District Court case No. B-183464”

SE Texas Record

By: David Yates

Published September 20, 2016

Immigration Law

McLeod, Alexander, Powel & Apffel, P.C. offers representation and various legal services for individuals in need of immigration assistance.  The Firm is now accepting immigration clients in need of the following services:

 

  • Immigrant Visas
  • Deportation Defense
  • Naturalization
  • Deferred Action for Childhood Arrivals (DACA)
  • Employment Based Petitions
  • Fiancé and Marriage Visas
  • Green Card/ Legal Permanent Resident
  • Removal of Conditions