Frisco Election Results (May 12, 2012 Elections)
The unofficial results are in from the 2012 Texas Limited Uniform Election for city and school officials. To find the winners of your respective districts, visit the link for your county and find your respective district.
The links are below:
Dallas County (I apologize that the link will only take you to the main election page. The results link was not operating at the time of this post.)
Remember, the Texas state and federal primary elections are held on May 29, 2012. I’ll post another article prior to that date. However, early voting has started!
Texas Limited Uniform Election on May 12, 2012
Fellow Texans, Saturday, May, 12, 2012, is a Limited Uniform Election. This is not the primary election. Instead, it is strictly for city and school elections. In many respects, this election is more important because of the direct impact on our daily lives and those of our children.
If you don’t know where to vote or what is on the ballot, you can check with your county clerk. The county clerk maintains sample ballots and election locations. I believe all the counties will allow you to enter your information and see what is on your particular ballot.
Below are the county clerk websites for Dallas County, Denton County, Collin County, and Tarrant County.
Early voting for the primary election starts May 14, 2012, ends May 25, 2012, with the primary election being held May 29, 2012. The primary will include elections for state and federal offices. I’ll try to write more on the primary election at a later date.
What to Expect if You are Wrongly Sued
Many prospective clients approach their prospective attorney with the notion that they should not be sued. Usually, these people are sued under the “cast net” theory. The plaintiff’s rationale is simply this, maybe someone will pay. If you are the client, I feel your pain. Unfortunately, if there is any ground for you to be included in a cast net, it is very difficult to cut you loose.
If a defendant is truly sued in error (mistaken identity), then she may be able to be dismissed quickly. Absent a case of mistaken identity, she’s probably going to be in the case for a while. It makes sense that she may simply file a motion to dismiss. However, Texas doesn’t provide good avenues for her to be dismissed in this manner under the cast net theory. Alternatively, she may believe that she can simply tell her story to the judge or speak to the opposing counsel. A bit of advice, never speak to the judge outside the setting of a hearing without opposing counsel present. Nothing good will come of it. In fact, it is against the rules. Also, it is rare that a defendant will be dismissed by pleading her case to the opposing counsel. Alternatively, the defendant may actually hurt her chances by providing information that could be used against her and her fellow defendants (assuming multiple defendants have been sued).
Usually, defendants will not be voluntarily dismissed until the discovery process is nearing completion. At that point, an opposing counsel may grow a heart or not want to waste time on the defendant. Also, it is the first real time that a defendant may be granted summary judgment by a judge. A motion for summary judgment is a motion that is drafted for a judge. At its essence, it states that no genuine issue of material fact exists either (i) to your defense; or (ii) to the plaintiff’s causes of action against the defendant. Therefore, as a matter of law, the defendant should not be held liable. It is a high standard to overcome.
Defendants are strongly encouraged to hire attorneys. But, defendants should be prepared to be in the case through the discovery process, which may include a motion for summary judgment. Unfortunately, defendants have accumulated a decent amount of attorney’s fees by this point. Considering the defendant doesn’t believe she should have been sued, it seems like insult to injury. Adding further insult is the fact that very few laws allow defendants to be awarded attorney’s fees if they are wrongly sued.
Obviously, this isn’t the cheeriest article ever written. However, it is good for everyone to have an expectation of the process in case they are sued.
Benefit Corporations – A New Type of For-Profit Corporation
Would you be more likely to support a benefit corporation (B-Corps)? I would love to hear your thoughts. Texas has not adopted B-corporation legislation and I’m curious to know the public’s opinion. Benefit corporations (and its cousin Certified B-Corps) is the brainchild of B Lab. Legislation for B-Corporations has already been approved by the legislature in seven states, including, California, New York, Hawaii, Virginia, Maryland, Vermont, and New Jersey.
Benefit corporations are very similar to typical corporations. They may manufacture products, sell retail goods, offer legal advice, or provide essentially any other product or service. The difference is that they perform their core operations while considering the employees, the community, the environment, and other more altruistic factors while making its corporate decisions.
Typical corporations are for-profit entities whose sole purpose is usually to maximize shareholder value within the means of the law. Officers and directors owe a fiduciary duty to the corporation and the shareholders of the company in that respect. Every decision the officers and directors make must be made in the best interest of the corporation and the shareholders. (Sidebar: when a corporation becomes insolvent, the fiduciary duty shifts from the shareholders to the creditors. Also, for you legal nuts, please disregard constituency statutes.)
Officers and directors of a B-corp. need to consider the following effects while taking actions:
(i) the shareholders (are they making enough money); (ii) the employees, contractors, and suppliers (are they paid well, are they local, diversity, etc.); (iii) the interests of customers as beneficiaries of the public benefit; (iv) community and societal factors; (v) the local and global environment; (vi) the short-term and long-term interest of the B-corporation; and (vii) the ability of the benefit corporation to accomplish its public benefit purpose.The model legislation raises many legal questions. At what point is too much emphasis placed on maximizing shareholder value? Do employees and contractors have standing to sue the corporation, its officers, or directors, for breach of some duty? When may shareholders sue for placing too much emphasis on employees or the public benefit? (It should be noted, though, that the general public does not have standing to sue for failure to provide a public benefit.)
The question is not whether B-corporations should replace typical corporations. Rather, is there a place for benefit corporations in our society? Would you be willing to pay more for products and services from a benefit corporation? Would you be more likely to invest in a benefit corporation? If you started a corporation, would you like it to be a benefit corporation? I look forward to reviewing your comments.
For more information on benefit corporations and Certified B-Corps (which are slightly different), you may go to B Labs webpages, www.benefitcorp.net and www.bcorporation.net.
Fifteen Reasons to Get a Will or Update Your Will
Thinking about your death is not the most fun way to spend an afternoon. However, it is an important process of adulthood. Without a will, it is very likely that you will leave behind a mess for your survivors. Below are a few reasons how that happens.
15. You or your spouse has a child from outside your current marriage – Probating estates in which one or both spouses have children outside the marriage are always interesting and difficult. No one is ever really happy at the end of the process. It is critical for you and your spouse to have a will if either of you have children outside of the current marriage. Otherwise, your assets may be distributed in a manner that would have never desired.
14. Your will was executed prior to your divorce – Similar to reason 15, it is always interesting to probate an estate that has not been updated since the last divorce. It is always important to maintain your will consistent with your current relationship status.
13. You have a specific belonging you want to leave to a specific person – If you have something you want to leave specifically to a particular beneficiary, you need a will. This can often be mothers leaving rings to her daughters or a father leaving a baseball card collection to his son. Otherwise, it will be combined with the remainder of your estate and distributed to each beneficiary.
12. Your beneficiaries have predeceased you – If you already have a will, it is not always imperative to make changes to it after the death of a beneficiary. It will depend upon how your original will was written. However, it is very important to have a will if a spouse or child dies. Otherwise, the laws of descent and distribution may distribute your estate in a manner that would be disagreeable to you.
11. Your executor has died or you want to name a new executor – If your executor has died or you want to name a new executor, then you will need to update your will.
10. You want to disinherit or limit their inheritance – If you want to disinherit or limit someone’s inheritance, a will as the tool to dictate your intentions.
9. You have concerns about estate taxes – Estate tax limits seem to be changing on an annual basis for the last few years. It is important to keep abreast of the changes and contact your attorney if you think it could be an issue for your estate.
8. You have minor children – If you have minor children, then you may want to place restrictions on their inheritance. Wills may contain instructions or trusts for handling a minor child’s inheritance. Otherwise, you may be left with a child having greater access to the inheritance than you would like or the court appointing someone to administer the inheritance that you would disapprove of.
7. You have a beneficiary with special needs – If you have a special needs beneficiary, then you may want to place restrictions on his/her inheritance. Wills may contain instructions or trusts for handling an inheritance to a special needs beneficiary. Otherwise, the court may appoint someone to administer the inheritance that you would disapprove of.
6. You don’t want a beneficiary to squander his/her inheritance – Like reason 8 and reason 7, wills may contain special instructions or trusts for handling the inheritance of someone that you think may squander it. Unlike a special needs beneficiary or minor child situation, though, a court is not likely to intervene on behalf of an adult who just likes to waste money.
5. You want to set conditions upon a beneficiary’s inheritance – You may set conditions on your inheritance. If setting conditions is something you want to implement as part of the distribution of your estate, then it should be contained within your will.
4. You have moved to a different state – It is not a requirement to update your will just because you moved to a different state. However, different states do have different laws. If you have moved to Texas, then you may be able to take advantage of “independent administration”. To simplify the process, it helps if your will specifies that you want your executor to serve using independent administration.
3. You own separate property outside of the estate – Texas is a community property state. If you own separate property, then it will be important that you have a will. Otherwise, the Texas intestacy laws will take effect. It’s unlikely that the intestacy laws will administer the separate property in the same manner you desire. Also, it is likely to create confusion for your heirs.
2. Your financial situation has changed somewhat dramatically – If you are now earning substantially more money than you did prior to the signing of your prior will, or you have a windfall financial gain, then you should seriously consider taking another look at your will. Estate tax limitations are changing rapidly and you want to preserve as much of your estate for your beneficiaries as possible.
1. You don’t have a will – At the end of the day, almost every adult needs a will. If nothing else, you should decide how your estate should be distributed, not the state.
As always, you should seek an attorney licensed to practice law in your state for assistance with all your estate planning needs because each person and each family have different factual situations.
9th Circuit Targets Cover Bands and Clubs over Music
Restaurant and bar owners beware. Cover bands find a safe house. You are now a target. The U.S. Court of Appeals for the Ninth Circuit (California if you are wondering) recently affirmed an Order Granting Summary Judgment stating that East Coast Foods, Inc. infringed upon the copyright of Range Road Music, Inc., Sony/ATV Harmony, and others, by playing CD’s and hiring cover bands. Range Road Music, Inc. et al. v. East Coast Foods, Inc. et al., 10-55691, 2012 WL 502510 (9th Cir. 2012). An Order Granting Summary Judgment essentially means that the judge couldn’t find a single genuine issue of material fact. In other words, it’s a pretty high hurdle.
The affirmation of the Summary Judgment also affirmed the damages awarded by the trial court in the sum of $36,000 and
attorneys’ fees in the amount of $162,728.22. As icing, the court pierced the corporate veil and made liable the owners, officers, and directors of the lounge.
One would obviously assume the damages are based upon years of investigative research. One would be wrong. An agent for the music companies walked into the club one night, listened to eight songs, and presumably left. The 8-songs included both live performances and CD’s played by a DJ. Why didn’t he stay longer? Maybe the beer wasn’t good. Regardless, 8-songs could cost you $36,000 in damages and $162,728.22 of your opposition’s attorneys’ fees.
The ruling should obviously get the attention of restaurant and club owners, business lawyers, litigators, and single
men and women, who will now have to find new ways to meet their mate.
In all seriousness, the ruling does bring to the forefront the need for establishment owners and cover bands to obtain licenses from the owners of the song rights.
Do I Need a Will?
Back to the age-old question, “Do I need a will”? Readers can check the post “Last Will and Testament” to review the basic components of a will, and the post “What if I Die Without a Will” to review the laws of descent and distribution in Texas.
In Texas, almost every adult should have a will. A major reason to have a will is to avoid higher administration costs of the estate. Texans are fortunate because the State of Texas allows independent administration of an estate. Independent administration means that an executor only has to go to court to prove-up the will, qualify as executor, and file an inventory and appraisement. Everything else is done outside the court’s purview. In other words, a properly drafted will can greatly reduce the cost of administration of an estate.
A person also needs a will to dispose of estate property as desired. As you can see on the post, What if I Die Without a Will, the state’s default descent and distribution laws may not distribute your property the way you would want. For instance, if a person purchased property prior to getting married, the spouse may not end up with that property after the person dies. Similarly, siblings, nieces or nephews may receive property that the testator wouldn’t dream of leaving to them.
Another issue is minor children. Testator’s with minor children can detail in a will how minor childrens’ shares should be treated, such as minor trusts, guardians, etc. If a person dies intestate (without a will), the court gets to decide who should control the minor’s portion of the estate. And, it may not be who the testator would have named.
The size of an estate is not a good excuse to avoid signing a will because the size of an estate can change. After executing a will, it will remain in effect for the life of the testator unless it is revoked or amended. It is hard to predict ten, twenty, thirty, or even forty years into the future. For instance, a person may own property that could greatly appreciate in value, win the lottery, or receive some other windfall. Also, career earnings could increase along with investments. Even if a testator executes a will when her estate is small, the will would still distribute the estate in the manner the decedent requested.
Similarly, a will can speak to certain tax considerations that may not be important today, but could be important in ten or twenty years. The relevance could arise due to a change in the size of an estate or the change in tax laws, which seem to be changing annually. Such tax considerations could include a marital deduction or a similar tax consideration.
As always, you should seek an attorney licensed to practice law in your state for assistance with all your estate planning needs because each person and each family have different factual situations.
What if I Die Without a Will
When a person dies without a will, the decedent has died “intestate”. So, what happens to the estate? In Texas, the laws of descent and distribution control. This article will focus on a few of the issues. Readers should remember, though, that the rules are very fact dependent and all readers are advised to retain an attorney licensed to practice law in the State of Texas for better clarification of a particular circumstance.
Married with Children.
A. Separate Property. A decedent’s separate personal property goes 1/3 to the surviving spouse and 2/3 to the children, equally. A decedent’s separate real property goes to 2/3 to the children for the life of the spouse and 1/3 to the surviving spouse for the life of such spouse. After the spouse dies, though, the children will own the entire separate real property.
B. Community Property. If the decedent and the surviving spouse are the parents of all the children, then the surviving spouse receives 100% of the real and personal community property of the decedent’s estate. If the decedent and the surviving spouse are not the mother and father of all the decedent’s children, then the children will receive all of the decedent’s share of the community property. The surviving spouse still retains ownership of his/her share of the community property.
Married without Children.
A. Separate Property. A decedent’s separate personal property all goes to the surviving spouse.
A decedent’s separate real property is more difficult. If both of the decedent’s parents are alive, then the decedent’s separate real property goes ¼ to the mother, ¼ to the father, and ½ to the surviving spouse. If the decedent is survived by only one parent, but the decedent is survived by siblings or their descendants, then the separate real property goes ¼ to the surviving parent, ¼ to the siblings or their descendants, and ½ to the surviving spouse. If the decedent is survived by only one parent, and the decedent is not survived by any siblings or their descendants, then the separate real property goes ½ to the surviving parent and ½ to the surviving spouse. If the decedent is not survived by any parents, but some siblings or their descendants have survived the decedent, then ½ goes to the surviving siblings or their descendants and ½ goes to the surviving spouse. If the decedent is not survived by any parent or any siblings or their descendants, then 100% of the separate real property goes to the surviving spouse.
B. Community Property. All of a decedent’s real and personal community property goes to the surviving spouse.
Unmarried with Children. The children of an unmarried person take all property equally.
Unmarried without Children. If both the mother and father survive the decedent, then the mother receives ½ of the estate and the father receives ½ of the estate. If only one parent survives the decedent, then the surviving parent receives ½ of the estate and the surviving siblings, if any, or descendants of any sibling that predeceases the decedent, receive ½ of the estate. If only one parent survives the decedent, and no siblings or their descendants survive the parent, then the surviving parent receives all of the estate. If neither parent survives the decedent, but siblings or their descendants survive the decedent, then the surviving siblings, and descendants or predeceased siblings, receive the entire estate.
Unmarried Person No Descendants. Although the one administering the estate is always advised to consult with an attorney, it is really important if the decedent died with no spouse and no descendants.
Last Will and Testament
Attorneys are frequently asked whether a person needs a will. Almost everyone should have a will. A will, which is commonly known as a person’s “Last Will and Testament”, is a legal document that tells his/her survivors how the testator wants his/her assets distributed. Another common question is whether one should retain an attorney to draft a will. Although it is not required, it is highly recommended to retain an attorney to draft a will. Attorneys are familiar with the probate laws, trusts laws, family laws, property laws, and tax laws, all of which affect wills. Although certain websites offer estate planning packages, it is not wise to use them.
A last will and testament can appear in many forms. This post will focus only on the most basic components of a will from the perspective of Texas law.
Executor. An executor is the person named to administer the estate of the deceased. The executor (executrix if the person is a woman) should be at least 18-years old, competent, and responsible. The executor is responsible for opening the probate procedure, qualifying as the executor, notifying beneficiaries and creditors or the estate, itemizing the inventory of the estate, appraising the inventory of the estate, listing creditors, filing tax returns, and liquidating the estate, paying the creditors, and distributing the remaining assets to the devisees. Also, the executor will be interfacing with the court. The person drafting the will, also known as the testator, may also decide whether the executor should be paid for the efforts or whether the executor should post a bond to serve as executor.
Specific Bequests. The testator should name any assets or personal effects that he/she wants to go to someone specifically. Oftentimes, these items hold sentimental value or fill a need. Examples include a mother leaving her engagement ring to her daughter and a father leaving his baseball card collection to his son. Also, though, a testator may leave a car to a specific person or a specific amount of money to a grandchild.
Residual Estate. The residual estate is most clearly defined as “everything else”. After making specific bequests, the testator should name how he/she wants the remainder of his/her estate to be distributed. Otherwise, the laws of descent and distribution will control.
No-Contest Clause. Most testators decide to put a “no-contest clause” in his/her will. A no-contest clause usually states that if anyone contests any part of the will, then such person will not receive any distributions from the estate. The purpose is to reduce the amount of bickering among family members.
Witnesses and Self-Proving Affidavit. Most wills have two witnesses. The witnesses greatly help to “prove-up” the will. Similarly, the self-proving affidavit is a statement by the testator that he/she did in fact sign the will, and at such time of signing, the testator was competent.
Where to Keep a Will. Where to leave the original of a last will and testament is a topic of interest amongst probate attorneys. The original will should be kept where it can be easily accessed. Contrary to popular opinion, a safe deposit box is not always the best place for a will. If a person dies and no other person has access to the safe deposit box, then someone will have to get a court order to get into the safe deposit box. Leaving the original in the top dresser drawer can be a good idea. Although it is not often accessed while one is alive, it is amongst the first places searched after one dies. Also, a copy of the will may be left with a trusted friend or an attorney. And, it is important that someone knows who has a copy.
Although this article focuses on the basic concepts of a last will and testament, there are a lot of other topics that may be of great importance, such as your financial scenario, tax bracket, and family situation. As always, you should seek an attorney licensed to practice law in your state for assistance with all your estate planning needs.
Stockholder Meetings
Part of running a corporation is observing corporate governance. A major part of corporate governance is holding stockholders’ meetings. The bylaws of a corporation will govern stockholders’ meetings. Below are the more important things to remember about a stockholder meeting.
When to Hold a Stockholders’ Meeting. Typically, stockholders’ meetings are held annually. However, special stockholders’ meetings may be called in accordance with your company’s bylaws or state law. A typical provision would allow shareholders representing 10% or more call a special stockholders’ meeting. The reason for special stockholders’ meetings could be to reshape the board, authorize a merger, sale of substantially all the assets of the company, or some other liquidation event.
Call of a Meeting. Stockholders’ meetings are typically called by either the board or shareholders representing a certain percentage of stock. The corporate bylaws should speak to the procedure.
Agenda. Stockholders’ meetings should follow an agenda. A typical very simple agenda for an annual stockholders’ meeting would be to close old business, elect members of the board of directors, open any new business, and adjourn. The agenda does not need to be anything real formal, but it should look professional.
Notice. Notice of the stockholders’ meeting usually must be provided no fewer than ten days’ prior to the meeting and no more than sixty days’ prior to the meeting. Check the company bylaws for the specific rules. If the company bylaws are silent to the notice requirements, then check the statutes of the state in which the company is incorporated.
Place of Meeting. Most bylaws and state statutes allow a corporation to hold its stockholders’ meetings within or outside the state of incorporation.
Quorum. Quorum must be established for any action to occur at the stockholders’ meeting. Quorum is typically defined as a majority of the voting stock being represented at the meeting by presence or proxy. However, it can be more or less depending upon the actions to be considered. The chairman of the board of directors typically recognizes quorum at the beginning of the stockholders’ meeting.
Election of Chairman of the Meeting and Secretary of the Meeting. This is usually a formality that elects the chairman of the board of director as the chairman of the meeting. Similarly, the corporate secretary is typically elected as secretary of the meeting. However, there are times when one or both are absent. The chairman of the meeting presides over the meeting. The secretary of the meeting takes the minutes.
Conduct of Meeting. There is really no set methodology for conducting stockholders’ meetings. Typically, larger corporations follow more formal rules. The general standard for conducting meetings is Roberts’ Rules. However, most corporate bylaws do not mention any set methodology. It is best, though, to have some order of formality. Usually, corporations follow a motion, second, discussion, vote format. For example, a shareholder would make a motion. Another shareholder would second the motion. The chairman of the meeting would then open the floor to orderly discussion. After discussion, the motion would either be tabled or voted upon.
Adjournment. All stockholders’ meeting should be formally adjourned. The adjournment closes the meeting.
Meeting Minutes. Sometime following adjournment, the secretary of the meeting should draft minutes of the stockholders’ meeting to be approved by the shareholders.