Month: October 2012

Statute of Limitations: The Expiration Date on Your Lawsuit

By:  Kelly R. Ledbetter

Let’s say you signed a contract to invest in a business, but the business was never launched and now they refuse to return your money. Can you sue? It all depends on how long it’s been.

The statute of limitations is the time limit you have to file a lawsuit. This time limit varies widely both among states and among reasons for filing (“causes of action” or claims). For instance, in Texas, the statute of limitations for breach of written contracts is four years, whereas the statute of limitations for property damage is only two years. In another state, those numbers will probably be completely different. Some causes of action even have periods as short as a one-year limitation. And of course, there can be a lot of caveats and exceptions—like claims that require notice to the defendant or to a government agency, or a “timeout” on the statute of limitations because the injury was undiscoverable.

Information about statutes of limitations in Texas can be found in Chapter 16 of the Texas Civil Practice and Remedies Code, available through the Texas Constitution and Statutes home page. Here’s an example of causes of action that have a four-year statute of limitations:

FOUR-YEAR LIMITATIONS PERIOD. (a) A person must bring suit on the following actions not later than four years after the day the cause of action accrues: (1) specific performance of a contract for the conveyance of real property; (2) penalty or damages on the penal clause of a bond to convey real property; (3) debt; (4) fraud; or (5) breach of fiduciary duty. (b) A person must bring suit on the bond of an executor, administrator, or guardian not later than four years after the day of the death, resignation, removal, or discharge of the executor, administrator, or guardian. (c) A person must bring suit against his partner for a settlement of partnership accounts, and must bring an action on an open or stated account, or on a mutual and current account concerning the trade of merchandise between merchants or their agents or factors, not later than four years after the day that the cause of action accrues. For purposes of this subsection, the cause of action accrues on the day that the dealings in which the parties were interested together cease.

Confusing? A bit. This is why consulting an attorney even before you’re certain whether you have a case is important. Someone trained in the law, who is familiar with all the ins and outs of the statutes of limitations in your state, will readily be able to say whether your cause of action may has already expired.

Below are some helpful links with more information about statutes of limitations. These sites provide helpful information, but they have not been verified and they cannot take the place of the legal advice you can receive only from an attorney.

Read a full definition of “statute of limitations”  here.

NOLO, a free legal information website, offers a handy chart of states, causes of action, and statutes of limitations.

Cornell University Law School’s Legal Information Institute (LII) has a narrative example of a statute of limitations.

Wikipedia contains an overview and further links to statutes of limitations and related topics.


Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.

And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!

How to Get My Business: A Three-Part Series on Attracting Referrals from “BigLaw,” Corporate Counsel, and Lawyers in Niche Practices

The Appellate Section of the Collin County Bar is hosting a three part series on getting business through referrals.  Ever wonder how to get business from peers, opposing counsel, or lawyers you meet at cocktail parties?  We’re asking those questions and more of lawyers in the community who regularly refer business.

First in the series is a panel with partners from Thompson and Knight and Baker Botts, among others.  Learn how to get on the referral radar, ask for business in a meaningful way, get the business, and keep your place on their go-to list.

 What:            Three course lunch (appetizer, entree, and dessert)

Where:          Jasper’s in Plano at 7161 Bishop Rd., Plano, Tx. 75024

When:           November 9, 2012 at noon

How much:    $25


Seating is limited.  Please pre-pay by cash or check to Teresa Moore or Alexis Steinberg, or pay online here.  Contact Alexis Steinberg at or at 972-733-3223 with any questions about online payment, or the event.

Be Careful! Commercial Landlords Should Exercise Care When Tenants Don’t Pay…

By:  Benjamin Tenenholtz

What happens when commercial tenants don’t pay their rent?  Commercial landlords, much like residential landlords, have the right to lock a tenant out of the subject property. However, landlords must be careful to follow very specific rules outlined in the Texas Property Code, lest they subject themselves to a suit for unlawful lockout and reentry onto the property.

1. Make sure your tenant’s rent is delinquent

First, the landlord should make sure that the tenant is actually late in paying all, or at least part, of the rent. This sounds simple, but it is good practice to ensure that your accounting has been done accurately, and there are no outstanding credits or other billing issues.

2. Post notice of lockout

Next, the landlord should post a written notice on the tenant’s front door stating the name and address or phone number of the individual or company from which the tenant can obtain a new key. The new key is required to be provided only during the tenant’s regular business hours, and then ONLY if the tenant pays all delinquent rent.  This is unique to a commercial tenancy, as a residential tenant has a right to reenter regardless of whether he or she has paid the rent.

3. Lockout the debtor tenant

It is important to note that, unlike with residential rental property, the landlord of a commercial property does not need to post advanced notice before locking out the commercial tenant. The posting of notice and the lockout can happen simultaneously.  It should also be noted that to the extent that any provisions in the commercial lease conflict with the law contained in Texas Property Code 93.002, the lease’s language will supersede the Property Code.

4. Take steps to secure payment of delinquent rent

Once a landlord has successfully locked out a non-paying tenant, she can then petition for, and attempt to foreclose upon, a building landlord’s lien. The Property Code is designed to ensure that a landlord’s lien gets paid before other creditors of the debtor tenant. The landlord can also file an application for a distress warrant. A distress warrant allows a landlord to seize some of the debtor tenant’s property (subject to posting a bond) in order to ensure that her landlord’s lien is preserved until it can be foreclosed upon.

5. Be careful!

If you are a commercial landlord or tenant and are unsure of the steps you should take when dealing with a commercial lockout, consult with an attorney. Violation of the rules contained in the Texas Property Code can subject a commercial landlord to fines, attorney’s fees (both for herself and for the wrongfully locked out tenant), and court costs.

Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.

And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!

Helping Clients Help Themselves

While attorneys will write almost all documents related to a client’s case, a client may be asked to take an active role in helping to draft an affidavit.

An affidavit is a written, factual statement signed by the person making it (the “affiant”) and sworn to be true before a notary. Affidavits have a number of purposes in litigation; they may be used to provide testimony when a live witness is not needed, they can demonstrate that a document is a true and correct copy of an original, and they can provide a lawyer with narrative about the facts of the case and the reason for the suit–the story of what happened. An affidavit can be attached to other documents filed with the court as evidence to strengthen your case, or it can become a helpful reference in your attorney’s files.

When utilizing an affidavit as the narrative for the case, the attorney might ask the client to use his or her own written words to describe who, what, when, where, how, and why–any information about the case. Remember that a specific, detailed piece of writing is typically more informative and persuasive than a vague one, so be sure to include dates, names, facts, and details.

Vague: And then the van rear-ended me and pushed me forward into the other car.

Specific: Even though I pulled my car as far onto the right-hand shoulder as possible, the dark blue minivan still clipped my back left wheel and bumper with enough force to propel my vehicle forward ten feet into the rear bumper of the red sedan in front of me.

Vague: He told me he didn’t get the check and I had to move out by the end of the month.

Specific: On May 3, 2012, Mr. Landlord told me in a telephone call that he had not received Check #1001 in the amount of $900.00 for my May rent and that therefore I had to move out of 202 North Street before May 31.

The attorney will then render the client’s testimony into the form and format of an affidavit, including an introductory paragraph declaring that the affiant is competent to testify, has personal knowledge of the facts, and swears that the facts are true. It is important never to invent or exaggerate information in an affidavit, yet it is equally important to include all the relevant information. The final document must be as factually accurate as possible.  Here is a sample affidavit, incorporating this advice.

After the client reviews the draft of the affidavit, perhaps contributing more knowledge, he or she will sign the document in person in front of a notary, who will notarize the document, making it a valid affidavit. It is critical that if the attorney has misquoted the client, or summarized something incorrectly, that the client speak up and correct the affidavit.

What does this mean for you?

If you are considering retaining an attorney, write down a narrative of what happened to you. This will not only help you remember and discuss your situation with precision, but it will also help your attorney know what questions to ask to elicit the best details for your affidavit.  When hiring a lawyer, make sure you find someone who is taking the time and effort to understand your story.  After a jury verdict is the wrong time to realize that your lawyer doesn’t understand your case!

Locked out? Late on rent payments? Out of Luck? Maybe not…

By:  Benjamin M. Tenenholtz

Almost everyone has months where money is tight. And as you may or may not know, if you’re late on rent payments for your rental home or apartment, you may find yourself locked out of your property. While your landlord has a right to lock you out if you don’t pay your rent, he must follow very specific rules in the Texas Property Code in order to lock out a tenant.

1.  Warning of the Lockout

If your landlord locks you out of your residence, he must post a notice on your front door which provides you with a 24-hour on-site location to access your new key, or a 24-hour phone number you can call to have a new key delivered within two hours. The landlord’s notice must also tell you the amount of late rent/charges and he must provide you a new key, at any hour, REGARDLESS of whether or not you pay the delinquent rent. It is important to know that your landlord cannot lock you out on a day on which a designated person is not available, or the on-site management office is not open, for you to pay the delinquent rent.

2.   Notice of Lockout and Legal Niceties

Additionally, your landlord cannot lock you out of your residence at all unless your lease agreement tells you that you can be locked out for failing to pay rent, and you are actually delinquent in paying your rent. In addition to these requirements, the landlord is required to provide a warning notice either: five days before the lockout by local mail, or three days before the lockout by hand-delivery or by posting on your main entry door. This notice should tell you the earliest date you may be locked out, the amount you must pay to prevent the lockout, the contact information for the individual or management office to discuss your rent, and tell you in underlined or bold print that you have a right to get a new key to your residence at any hour, REGARDLESS of whether you pay the delinquent rent.

3.  Remedy for Wrongful Lockout

If your landlord violates any of these laws, you have substantial rights to which you are entitled! You may either regain entry to your residence, or terminate the lease. In addition to these rights, you are entitled to recover a penalty from the landlord of $1,000, one month’s rent, actual damages, court costs, and reasonable attorney’s fees (minus the amount of delinquent rent). Additionally, if your landlord fails to give you a key after you request it, you may be entitled to another month’s rent.

Maybe most important to wrongfully locked out tenants… Your lease cannot waive any of these rights!

So in summary, remember these things:

  1. Warning of Lockout–it should come ahead of time in the mail or on your door or by personal delivery and include delinquent amounts and contact information
  2. Notice of Lockout–Posted on the door to the residence, including the delinquent rent amount but more importantly advising you that a key is available to you at any time, within 2 hours, regardless of your ability to pay the delinquent amounts
  3. Vindicating your Rights–Lockouts not done in strict accordance with the property code are subject to stiff civil penalties.  A lawyer can help you recover the damages and fines your landlord might owe you, but you probably still have to pay your rent.


Take my word for it…Or don’t.

It sounds like the beginning of a joke:  One lawyer says to the opposing lawyer, “take my word for it…” But it’s actually the beginning of an unenforceable agreement.  And not because lawyers are untrustworthy!

To be enforceable, any agreement about any matter in a pending lawsuit must (generally) be in (1) in writing, (2) signed, and (3) filed with the court.  An agreement meeting those three requirements is referred to by lawyers as a “Rule 11” or a “Rule 11 Agreement” after Texas Rule of Civil Procedure 11.  The text of the rule reads:

Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

Above I wrote that it generally has to be in writing.  But from the text you can see that an agreement made in open court and entered of record is also enforceable as a Rule 11 Agreement.  What’s even more useful is that some courts will enforce agreements made on the record at a deposition, and later filed with the court!  So if you can get the other party to agree to terms of a settlement—or even agree to provide you with additional documents—on the record during a deposition, that may be enforceable as a Rule 11.

And here’s another wrinkle:  let’s say you sign what you believe to be a Rule 11 Agreement, but it’s about a suit that you haven’t filed yet.  That means it’s not really a Rule 11, because the suit isn’t pending.  Remember, the text of the rule only relates to pending suits—what then?  Even if you don’t have a valid Rule 11, you may still have a valid contract.  Of course, contracts are also enforceable by a court, but you’ll probably have to file a lawsuit, first.

So moral of the story?  Put everything in writing!  It may not seem important, but you never know when someone will conveniently forget what they’ve agreed to do.