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     By now, we should all be sensitive to the evolving groundswell of law which could affect those of us (I’m among the guilty) who text and drive. As lawyers, we are waiting to see where all of the various state legislatures end up drawing the lines and how severe the penalties they will ascribe? Although not illegal in every jurisdiction yet, we know that while we are operating a motor vehicle, we ought not be reading or sending texts. The National Safety Council informs us that texting while driving (“TWD”) causes 1,600,000 accidents per year and that number will likely only continue to swell. Given the volume of accidents caused by TWD, it should come as no surprise that 330,000 people are injured each year and that 11 teens die every day in TWD accidents. Additionally, the National Highway Transportation and Safety Administration reports that TWD makes us twenty-three times more susceptible to crashing. Insurance companies and various safety organizations have done a fairly good job of educating us all on the dangers of TWD. That is, much as the MADD battle cry of the 90’s became “Don’t Drink and Drive,” we have now added “Don’t Text and Drive” to the automobile safety lexicon.

     But should the driver who TWD or who reads texts while driving be the only responsible party in the unfortunate event of an accident caused by the driver’s temporary inattention to the road? A recent case out of New Jersey could completely re-shape the jurisprudence on TWD. In Kubert v. Best, et al. and Shannon Colonna, the Superior Court of New Jersey – Appellate Division took up an issue of first impression; whether, as a matter of civil common law, one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text.

     On the afternoon of September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passenger. As they came around a curve, a pick-up truck being driven north by eighteen-year-old Kyle Best crossed the double center line of the roadway into their lane of traffic. David Kubert attempted to evade the pick-up truck but could not. The front driver’s side of the truck struck the Kuberts and their motorcycle. The collision severed, or nearly severed, David’s left leg. It shattered Linda’s left leg, resulting in a compound fracture of her femur. Ultimately, both David and Linda each lost a leg as a result of the accident. The Kuberts’ attorney subsequently developed evidence which demonstrated that Kyle Best and his girlfriend, Shannon Colonna, had been texting each other all day long, including at the moment that the accident occurred. Although the Kuberts were able to prove that Best and Colonna were texting at the moment of the accident, it was not proven that Colonna knew that Best was driving while she was sending him texts that day. Without sufficient proof of Colonna’s knowledge of Best’s whereabouts at the time she was texting him, the Kuberts were not able to prevail in their novel legal theory against Colonna. However, the New Jersey court held that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving. And with that, the sure-to-be controversial gauntlet has been thrown down and legislatures and courts from other states will likely soon follow with similarly reasoned laws and opinions. Will Texas follow?

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Proactive Planning is the Greatest Gift

Who Needs an Estate Plan?

The short answer, everyone. Anyone with any type of property, no matter the size of your estate; anyone with family members they want to protect from the costs and time associated with probate; anyone with minor children; and anyone who wants a certain person, people, organization, etc. to receive some or all of their property upon their death.

Contents of a Simple Estate Plan:

  • A Will
  • Durable Power of Attorney (for finances and property)
  • Medical Power of Attorney
  • Advance Directive to Physicians

Purposes of the Will?

1. Protects Minor Children

A Will is the easiest way to transfer guardianship of minor children. You can choose guardians and alternates for your children as well as guardians of the estates of the minor children. A Will can also create a trust to protect the finances of your minor children.

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Enforcement of Child Support

Under current Texas law regarding the enforcement of child support, there is a gaping loophole that allows parties to play games withholding much needed child support without the intended consequences of jail time.  In Texas, a person obligated to pay child support (an obligor) can be sentenced to jail time for nonpayment of that child support. Even in Texas, a debtor-friendly state, child support is held to a different standard, and judges here in Collin County, Denton County, and Dallas County send these non-paying obligors to jail regularly – especially repeat offenders.

The typical course of action is this:
1. Person obligated to make child support payments fails to make those payments in part or in full.
2. Person entitled to receive child support payments files an enforcement action in Court, in which he or she asks the judge to enforce the original order and force the obligor to pay current and past child support (and attorney’s fees for having to bring this action), and sets a hearing in front of the judge.
3. The person bringing the enforcement action has to pay for attorney’s fees up front and hopes to be reimbursed for these fees.

This is where things change depending on the particular facts of each case. Sometimes an obligor cannot afford to make the payments. Sometimes an obligor will come to an agreement to pay the back owed child support (arrearages), by setting up a payment plan (including interest). In other cases, the obligor will plead his or her case in front of the judge and ask for lower payments. Texas judges have a range of sanctions to impose on non-paying child support obligors. First, the judge can lower the payments based on a change in the obligor’s circumstances provided that the obligor has properly requested a modification of child support. However, the change in child support is not likely to negate the arrearage that has accrued and on which the enforcement is based. The judge will still likely confirm the arrearages and set up a payment plan for the obligor to pay the back support with interest. A judge may also find the obligor in contempt of court. In doing so, the judge may issue jail time – up to six months per offense of missing a payment. The judge may send the obligor directly to jail or may put the obligor on a suspended commitment, similar to probation, in which the obligor must remain current on his or her account or he or the suspended commitment would be revoked and the obligor would go to jail to serve the remainder of the suspended sentence.

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Facebook: I lose sleep over it

Postings on Social Media like Facebook & Twitter are quickly finding their way into the courtroom

Facebook sometimes keeps me up at nights. And not for the reasons you might think. While I admit that I am prone to browse my Facebook newsfeed every couple of days, and even less frequently post a picture or a thought, I wouldn’t classify myself as a Facebook junkie. No, Facebook (and other social media platforms, for that matter) impairs my slumbering at times because I worry about its effect on my clients’ cases. To otherwise bury my head in the sand and not have angst about the material my clients feel the need to post on their Facebook pages would render me negligent in the care of their legal matter. I learned my lesson the hard way. Let me explain by telling you about a case I once handled.

A cautionary tale:

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State Employees Learn the Hard Way about FOIA Requests; Just ask ex-Arkansas Razorback Football Coach Bobby Petrino

It started as just another Sunday afternoon in the bucolic foothills of the Ozark Mountains for the revered Coach Bobby Petrino. Still basking in the after-glow of his team’s successful 11 win season which culminated in a Cotton Bowl victory, Coach Petrino headed to his on-campus office on his beloved Harley-Davidson. After a team meeting with players and coaches, he mounted his bike again and headed out for a nice ride, not unlike he would frequently take on those pleasant spring afternoons in northwest Arkansas. Sounds innocuous, right? It wasn’t.

As the world now knows, at some point that afternoon, Coach Petrino lost control of his bike on a rural highway and suffered some relatively serious structural injuries (though it could have been much worse) to his back and some cosmetic injuries to his head and face. Given the stature of Coach Petrino in Arkansas, the wreck was briefly a front-page story on ESPN and other national news organizations. But, in essence, it was just another motorcycle accident. Big deal, right? It was page 2 news the next day and back page news the day after.

Then, Coach Petrino, after being discharged from the hospital a few days later, inexplicably stepped in front of a microphone at a press conference called at his behest and uttered the words that have forever changed his life – “well, when I came out of the ditch there was a lady there that had flagged down a car.” Umm, excuse me, Coach, did you say there was a lady there? A lady just happened to be strolling down a country highway and happened upon the aftermath of your crash? And with that, the hounds were unleashed.

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