TEXAS SMALL-FIRM PRACTICE TOOLS

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1 TEXAS SMALL-FIRM PRACTICE TOOLS CINDY STORMER Managing Editor: Lisa Dunne Acquisitions Editor: Neil Stadtmore Editor: Production: Anne Loughman Anne Loughman Amanda Winkler V O L U M E 1 James Publishing Contact us at (800) or

2 Texas Small-Firm Tools F-2 Copyright 2012 James Publishing, Inc. ISBN: This publication is intended to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher does not render legal or other professional services. If legal advice or other expert assistance is required, seek the services of a competent professional. Persons using this publication in dealing with specific legal matters should exercise their own independent judgment and research original sources of authority and local court rules. The publisher and the author make no representations concerning the contents of this publication and disclaim any warranties or merchantability or fitness for a particular purpose. We view the publication of this work as the beginning of a dialogue with our readers. Periodic revisions to it will give us the opportunity to incorporate your suggested changes. Call us at (714) or send your comments to: Managing Editor James Publishing, Inc Cadillac Ave., Suite H Costa Mesa, CA Rev. 1, 9/07 Rev. 2, 10/08 Rev. 3, 11/09 Rev. 4, 10/10 Rev. 5, 11/11

3 F-3 About the Author ABOUT THE AUTHOR Cindy Stormer has been a practicing Texas attorney for over twenty years. She is currently an Assistant District Attorney in Dallas. She has been the elected District Attorney in Cooke County, an Assistant District Attorney in Fort Worth, and an Assistant City Attorney for Dallas, and she had a successful small firm practice for fourteen years. Stormer s law firm was a general practice law firm handling civil and criminal trials, family law, personal injury, real estate, negligence, estate planning, and probate law. In addition to a varied trial career with extensive jury trial experience, she has written approximately three hundred appellate briefs. Stormer is licensed to practice law in Texas; the U.S. District Court, Northern District of Texas, and the Eastern District; and in the United States Supreme Court. She has been a part-time Adjunct Instructor at North Central Texas College and Tarrant County College where she has taught Texas Trial Practices; Civil Litigation; Family Law; Probate, Trusts and Estates; Torts; Legal Research; Legal Writing; Criminal Procedure and Evidence; Government; English as a Second Language, and other courses. She has also taught at the Basic Prosecutor s Course sponsored by the Texas District and County Attorneys Association, and at the Advanced Criminal Law Course for the State Bar of Texas, and various police academies. She is on the planning committee for professional development for the State Bar of Texas. She was in charge of the legal curriculum for the Dallas Police Academy when she was the Chief Attorney for the Dallas Police Department. She was a police officer and in police work for ten years before becoming an attorney. She has been named Outstanding Attorney of the Year by Court Appointed Special Advocates of Texas and Distinguished Alumni by Tarrant County College. She is a Life Fellow of the Texas Bar Foundation.

4 Texas Small-Firm Tools F-4 EDITORIAL ADVISORY BOARD Frederick S. Adams, Jr. Dallas, Texas Scott Agthe Austin, Texas Jeff Akins San Antonio, Texas Sally S. Andrews Houston, Texas Celia Trimble Boone Abilene, Texas Lawrence G. Boyd Dallas, Texas Michael S. Burg Houston, Texas Sharon E. Conway The Woodlands, Texas Mary Lou Flynn-DuPart Jackson Walker LLP Houston, Texas David Gossom Wichita Falls, Texas Stephen Hamilton Boatwright & Hamilton Lubbock, Texas Raymond V. Jobe Dallas, Texas John H. Kim Houston, Texas Brian S. Riepen Dallas, Texas James D. Runzheimer Arlington, Texas David L. Sargent Hermes Sargent Bates, L.L.P. Dallas, Texas Brendetta Scott Hughes Watters Askanase Houston, Texas

5 F-5 Table of Contents ABBREVIATED TABLE OF CONTENTS Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12 Chapter 13 Chapter 14 Chapter 15 Chapter 16 Civil Litigation Car Accident Cases Consumer Protection and Fair Trade Practices Business Litigation Landlord-Tenant Relations Employer-Employee Relations Credit and Collections Organizing and Operating a Small Business Buying and Selling a Small Business Marriage Dissolution Estate Planning Estate Administration Guardianships DWI Defense Misdemeanor Defense Real Estate Table of Cases Table of Statutes Index

6 Texas Small-Firm Tools F-6 TABLE OF CONTENTS VOLUME 1 CHAPTER 1 Civil Litigation I. General Policies and Procedures A. General Points 1:01 The Lawyer s Creed and Rules of Professional Conduct 1:02 Written Policies and Procedures 1:03 Telephone Procedures 1.04 Confidentiality 1:05 Billing Records 1:06 Keeping Clients 1:07 Avoiding Malpractice 1:08 Protection Regarding Social Security Numbers 1:09 Scams B. Keeping Up With All the Dates 1:10 Calendars 1:11 Tickler System C. Getting Paid 1:20 Choosing Cases That Pay 1:21 Time Keeping and Billing 1:22 Fees and Costs as Part of a Recovery 1:23 Court Appointed Representation 1:24 Ethical Considerations II. Reviewing and Accepting Cases 1:30 The Initial Client Interview 1:31 Accepting the Case 1:32 Employment Contracts 1:33 Declining Representation 1:34 Statute of Limitations 1:35 Fees 1:36 Advising Veterans About Benefits 1:37 Suing Government Entities III. Pre-Suit Activities A. Documents 1:40 Demand Letters 1:41 Correspondence B. Research 1:50 Local Rules 1:51 Investigating the Case 1:52 Notice Requirements 1:53 Internet Research

7 F-7 Table of Contents IV. Initiating the Action A. General Points 1:60 Preparing the Petition 1:61 Supplemental and Amended Pleadings 1:62 Verified Pleas 1:63 Legal Documents B. Courts & Jurisdiction 1:70 Federal Courts 1:71 State Courts Generally 1:72 District Courts 1:73 Constitutional County Courts 1:74 County Courts at Law a.k.a. Statutory County Courts 1:75 Probate Courts 1:76 Justice of the Peace Courts 1:77 Municipal Courts 1:78 Other Considerations in Determining the Court C. Filing the Lawsuit 1:80 Try to Settle First 1:81 The Clerk s Office 1:82 Service of Process 1:83 Whom to Serve 1:84 Substituted Service 1:85 Service by Publication D. Parties 1:90 Jurisdiction Over Parties 1:91 Capacity 1:92 New Parties 1:93 Impleader 1:94 Interpleader 1:95 Intervention 1:96 Immunity V. Default Judgment 1:100 Seeking a Default Judgment 1:101 Challenges to a Default Judgment VI. Defending a Lawsuit A. General Points 1:110 Representation by Attorney or Pro se 1:111 The Defendant s Options 1:112 Answer 1:113 Affirmative Defenses B. Objecting to Jurisdiction 1:120 Make a Special Appearance 1:121 Include an Answer 1:122 Request a Hearing 1:123 Affidavits 1:124 Don t Invoke the Court s Jurisdiction 1:125 Sanctions on Special Appearance

8 C. Removal to Federal Court 1:126 Diversity Jurisdiction 1:127 Fraudulent Joinder 1:128 Motion to Remand D. Venue and Forum Challenges 1:130 Venue Challenges 1:131 Forum Non Conveniens 1:132 Notice and Time Limitations 1:133 Hearing 1:134 Sanctions 1:135 Appeals 1:136 Mandatory Venue Provisions 1:137 Permissive Venue VII. Motions 1:140 General Points 1:141 TROs and Temporary Injunctions 1:142 Motion for Continuance 1:143 Summary Judgments VIII. Discovery A. General Points 1:150 Governing Rules and Discovery Control Plan 1:151 Service and Response Times 1:152 Filing 1:153 Objections to Discovery 1:154 Motions to Compel 1:155 Protective Orders 1:156 Discovery Traps B. Types of Discovery 1:160 Requests for Disclosure 1:161 Interrogatories 1:162 Requests for Admissions 1:163 Depositions 1:164 Defending a Deposition 1:165 Inspection of Documents and Other Things 1:166 Physical and Mental Exams 1:167 Electronic Discovery C. Subpoenas & Business Record Affidavits 1:170 Subpoenas and Subpoenas Duces Tecum 1:171 Business Records Affidavits IX. Alternative Dispute Resolutions 1:180 General Points 1:181 Mediation 1:182 Arbitration X. Withdrawals and Dismissals 1:190 Withdrawals 1:191 Motion to Dismiss Texas Small-Firm Tools F-8

9 F-9 Table of Contents XI. Trial and Post-Trial 1:200 Prepare 1:201 Requesting a Jury Trial 1:202 Peremptory Challenges 1:203 The Jury Charge 1:204 Witness Preparation 1:205 Judgment 1:206 Motion for New Trial 1:207 Bill of Review Forms Form 1:10 Lawyer s Creed Form 1:20 Office Procedures Manual Form 1:30 Telephone Procedures Form 1:40 General Information Intake Questionnaire Form 1:41 Privacy Policy as to Social Security Numbers Form 1:50 Checklist: Interview Form 1:60 Filing and File Control Form 1:70 File Information Sheet Form 1:80 Contract for Employment Form 1:90 Contract for Employment (With an Evergreen Clause) Form 1:100 Declining Representation Letter Form 1:110 Statute of Limitations Form 1:120 Fees: Court Form 1:130 Fees: Attorney Form 1:140 Time Sheet Form 1:150 Affidavit Form 1:160 Tape Recording Form 1:170 Internet Sources for Legal Research Form 1:180 Original Petition Form 1:190 Checklist for the Petition Form 1:200 Certificate of Service Form 1:210 Certificate of Conference Form 1:220 Affidavit of Indigency (Pauper s Oath) Form 1:230 Courts Federal Form 1:240 Courts State Form 1:250 Abatement Form 1:260 Appeal Letter to Client (From JP Court) Form 1:270 Appeal Bond From JP Court Form 1:280 Procedures for Filing the Lawsuit Form 1:290 Order for Service of Process Form 1:300 Alternate Service Motion and Order and Affidavit (Rule 106) Form 1:310 Notice by Publication Form 1:320 Motion and Order of Appointment of an Ad Litem After Publication Form 1:330 Statement of Evidence Form 1:340 Impleader/Joinder/Original Third-Party Petition Form 1:350 Interpleader Form 1:360 Intervention Form 1:370 Default Judgment Form 1:380 Answer Form 1:390 Procedures for Filing the Answer Form 1:400 Special Appearance Form 1:410 Motion for TRO and Temporary Injunction Form 1:420 Motion for Continuance and Order

10 Texas Small-Firm Tools F-10 Form 1:430 Request for Disclosure Form 1:440 Interrogatories Form 1:450 Verification Form 1:460 Request for Admissions Form 1:470 Procedures: Discovery Form 1:480 Depositions Form 1:490 Deposition Notice Form 1:500 Deposition Letter Form 1:510 Stipulation for Taking Telephone Deposition Form 1:520 Deposition by Written Questions Form 1:530 Request for Production Form 1:540 Motion for Physical/Mental Exam Form 1:550 Discovery Answers/Objections to Discovery Form 1:560 Checklist for Preparing and Challenging Objections to Discovery Form 1:570 Motion to Compel Discovery Form 1:580 Protective Order Against Discovery Form 1:590 Subpoena Application Form 1:600 Subpoena Duces Tecum Application Form 1:610 Subpoena Form 1:620 Procedures: Subpoena Form 1:630 Business Records Letter Form 1:640 Business Records Affidavit Form 1:650 Release Agreement Form Form 1:651 Arbitration Clause Form 1:660 Withdrawal Motion and Order Form 1:670 Withdrawal Letter Form 1:680 Withdrawal Letter 2 Form 1:690 Motion to Substitute Counsel Form 1:700 Tickler Form 1:710 Attorneys Fees Testimony Form 1:720 Order for Payment Form Form 1:730 Application and Order to Be Paid Form 1:740 Memorandum of Law Form 1:741 Rule 11 Agreement Form 1:750 Request for a Jury Trial Form 1:760 Jury Charge Form 1:770 Instructions for Witnesses Form 1:780 Moral Turpitude Form 1:790 Voir Dire Form 1:800 Introducing Tangible Evidence Form 1:810 Common Objections Form 1:820 Best Evidence Rule Form 1:830 Court Reporters Form 1:840 Impeachment Form 1:850 Notice of Nonsuit Form 1:860 Motion to Dismiss for Want of Prosecution Form 1:870 Judgment Form 1:880 Release of Judgment Form 1:890 Motion for New Trial Form 1:900 Findings of Fact and Conclusions of Law Form 1:910 Notary Acknowledgment Form 1:920 Motion for Summary Judgment Form 1:930 Petition for Order to Take Oral Deposition Under Rule Form 1:940 Motion for Mediation

11 F-11 Table of Contents CHAPTER 2 Car Accident Cases I. General Points 2:01 Essential Elements 2:02 Problems With Personal Injury Work 2:03 Referral Agreements II. Types of Personal Injury Actions 2:10 Car Accidents Are Typical 2:11 Wrongful Death Claims 2:12 Survival Actions 2:13 Medical Malpractice 2:14 Health Care Treatment Decisions 2:15 Other Types of Actions III. Office Procedures 2:20 The Initial Client Contact: Telephone Procedures 2:21 Interviewing the Client 2:22 Evaluating the Client and the Case 2:23 The Contract 2:24 Termination of Employment Contract 2:25 Record Authorizations 2:26 Advances to Cover Costs IV. Investigating the Case A. Liability 2:30 Determining Liability and Causation 2:31 Act Quickly 2:32 Hiring an Investigator 2:33 Retaining Experts B. Damages 1. General Points 2:40 Damage Definitions 2:41 Gathering the Data 2:42 Medical Records and Bills 2. Types of Damages 2:50 Past Medical Expenses 2:51 Future Medical Expenses 2:52 Disfigurement 2:53 Physical Pain 2:54 Mental Anguish 2:55 Loss of Consortium 2:56 Loss of Household Services 2:57 Lost Wages and Earning Capacity 2:58 Physical or Mental Impairment 2:59 Property Damage 2:60 Exemplary Damages 2:61 Prejudgment Interest C. Insurance Coverage 2:70 Determine Insurance Coverage 2:71 Liability

12 Texas Small-Firm Tools F-12 2:72 Personal Injury Protection (PIP) 2:73 Comprehensive 2:74 Uninsured Motorist/Underinsured Motorist V. Pleadings 2:80 Statute of Limitations 2:81 Filing a Petition 2:82 Insurer Cannot Be Joined as a Third-Party Defendant 2:83 Forum Non Conveniens 2:84 Answering a Petition VI. Dealing With Insurance Companies A. The Opponent s Insurer 2:90 Insurance Adjusters 2:91 Reserves 2:92 Notice Letters 2:93 Timing for a Demand Letter 2:94 Determining the Amount of the Demand 2:95 Writing the Demand Letter 2:96 Brochures and Videos 2:97 Negotiations 2:98 The Client s Medical Records and Exam B. The Client s Insurer 2:100 Uninsured/Underinsured Coverage 2:101 Insurer s Subrogation Rights 2:102 Stacking Policies 2:103 Personal Injury Protection (PIP) C. Bad Faith 2:110 Duty of Good Faith and Fair Dealing 2:111 The Bad Faith Cause of Action 2:112 Document Delays and Unfair Dealing 2:113 Stowers: Failure to Settle for Policy Limits 2:114 Stowers: When Representing Plaintiffs 2:115 Stowers: When Representing Defendants 2:116 Punitive Damages Cannot Be Excessive VII. Settling the Case A. Types of Settlements 2:120 Cash (Lump Sum) 2:121 Structured Settlements 2:122 Tax Implications B. Working With the Client 2:130 Client s Refusal to Settle 2:131 Capacity and Authority 2:132 Settlement With Minors or Incompetents C. The Settlement Agreement 2:140 Review the File and Procedures 2:141 Settlement Agreement as a Contract 2:142 Consideration 2:143 Writing and Filing Requirements 2:144 Collusive Agreements Are Illegal

13 F-13 Table of Contents 2:145 One Satisfaction Rule 2:146 Affect of Settlement on Co-Defendant 2:147 Release D. Third Parties 2:150 Subrogation Claims 2:151 Tax Consequences 2:152 Paying the Bills 2:153 Unknown Responsible Third Parties VIII. Discovery 2:160 Comply With Requests You Receive 2:161 Informal Discovery and Request for Disclosure 2:162 Interrogatories, Production & Admissions 2:163 Documents and Physical Exams 2:164 Depositions IX. Arbitration and Trial 2:170 Arbitration 2:171 Prepare for Trial 2:172 Trial Evidence 2:173 The Physician 2:174 Evidence of Settlement Offers 2:175 Surveillance Evidence 2:176 Perjury for Underreported Income Forms Form 2:10 Procedures Telephone Intake Form 2:20 Questionnaire: Basic Case Form 2:30 Questionnaire: Complex Case Form 2:40 Interview Form 2:50 Declining Representation No Insurance Form 2:60 Declining Representation No Fault Form 2:70 Contract for Employment Simple Form 2:80 Contract for Employment Complex (Includes a Power of Attorney) Form 2:90 Medical and Employment Records Release Form 2:100 Initial Letter to Personal Injury Client Form 2:110 Notice of Unsatisfied Judgment Form 2:120 Referral Agreement Form 2:130 Letter of Protection (LOP) Form 2:140 Letter to the Investigator Form 2:150 Open Records Request (For Police Report) Form 2:160 Expert Letter Form 2:170 Petition for Personal Injury Form 2:180 Notify Defendant Letter Form 2:190 Notify Defendant s Insurance Letter Form 2:200 Motion in Limine, Plaintiff s Form 2:210 Motion in Limine, Defendant s Form 2:220 Letter to Uninsured Motorist/Underinsured Motorist Carrier Form 2:230 Medicare Letter Form 2:240 Medicaid Letter Form 2:250 Subrogation Letter Form 2:260 Demand Letter Form 2:270 Demand Letter for PIP Form 2:280 Payment Letter

14 Texas Small-Firm Tools F-14 Form 2:290 Form 2:300 Form 2:310 Form 2:320 Form 2:330 Form 2:340 Form 2:350 Form 2:360 Form 2:370 Form 2:380 Form 2:390 Form 2:400 Form 2:410 Form 2:420 Form 2:430 Form 2:440 Form 2:450 Form 2:460 Form 2:470 Form 2:480 Form 2:490 Form 2:500 Office Procedures Checklist for Plaintiff Checklist for Defense Settlement Letter Release Discontinue Representation Letter Letter Encouraging Settlement Final Hearing in a Case Involving an Injured Child Letter to Insurance Company Documenting Delay Bad Faith Letter Stowers Letter Recorded Statement Interrogatories Plaintiff Interrogatories Defendant Letter to Accompany Interrogatories Admissions Production Request to Inspect Premises Deposition Questions Jury Charge Voir Dire Personal Injury Trial Script CHAPTER 3 Consumer Protection and Fair Trade Practices I. General Points 3:01 The DTPA Unlawful Acts 3:02 Statute of Limitations 3:03 The Initial Client Contact 3:04 The Contract 3:05 Consumer Status II. Notice 3:10 Notice Letter: Timing 3:11 Notice Letter: Contents 3:12 Failure to Give DTPA Notice 3:13 Failure of Defendant to Request Abatement III. Damages 3:20 Actual Damages 3:21 Treble Damages 3:22 Mental Anguish 3:23 Criminal Penalties 3:24 Attorney Fees 3:25 Expert Testimony Needed to Support Damages for Cost of Replacement IV. Pretrial Activities 3:30 Mediation 3:31 Offers to Settle 3:32 Discovery

15 F-15 Table of Contents V. The DPTA Action 3:40 Venue 3:41 Jurisdiction 3:42 Pre-Emption 3:43 Exceptions 3:44 Restraining Orders & Civil Penalties 3:45 Trials in Actions on Small Amounts 3:46 Post-Judgment Relief VI. The Petition and Answer 3:50 The Petition 3:51 The Answer 3:52 Contribution or Indemnity 3:53 Statutory Defenses VII. Other Considerations With DTPA 3:60 Intent 3:61 What the DTPA Does Not Cover 3:62 Warranties 3:63 Proportionate Responsibility 3:64 Waiver 3:65 Professionals 3:66 Medical Providers VIII. Other Areas of the Law That Protect Consumers 3:70 Right to Cancel Certain Consumer Transactions 3:71 Copy of Contract and Notice of Cancellation 3:72 Timeshares and Health Treatment Facilities 3:73 Telephone Solicitation 3:74 Credit Protection 3:75 Identity Theft 3:76 Residential Construction Commission Act 3:77 Credit Card Defense for Consumers Forms Form 3:10 Demand/Notice Letter Form 3:20 Interrogatories and Production, DTPA Form 3:30 Admissions in DTPA Form 3:40 Motion and Order for Mediation Form 3:50 Original Petition in DTPA Form 3:60 Checklist for DTPA Form 3:70 Memorandum of Law on DTPA Form 3:80 Trial, DTPA Form 3:90 Discovery Against Credit Card Companies CHAPTER 4 Business Litigation I. General Points 4:01 Litigation Issues Unique to Businesses 4:02 Foreign Corporations

16 Texas Small-Firm Tools F-16 II. III. Initiating Business Litigation A. Tolling the Limitations Period 1. General Points 4:10 Tolling Provisions Must Be Pleaded 4:11 Tolling Despite Commencement of Suit 4:12 Statutes of Repose (Persons Protected) 2. Defendant s Absence 4:20 Defendant s Absence From State 4:21 Absence Does Not Toll With Real Estate 4:22 Tolling for Absence Applicable Only to Individuals 3. Disability and Minority 4:30 Minority and Unsoundness of Mind 4:31 Married Minors 4:32 Disability Must Exist at Accrual of Action 4. Other Bases for Tolling 4:40 Fraud 4:41 Death 4:42 Filing in Wrong Court 4:43 Agreement of the Parties 4:44 Related Counterclaims and Cross-Claims B. Selecting the Court 4:50 Corporations 4:51 Partnerships 4:52 A Business s Principal Office 4:53 Tort and Contract Actions 4:54 Long-Arm Jurisdiction C. Identifying the Business 4:60 Assumed Names 4:61 Suing a Corporation 4:62 Suing a Partnership 4:63 Misnomer 4:64 Relation Back When a Party Is Misidentified 4:65 Capacity D. Serving a Corporation 4:70 Whom to Serve 4:71 Substituted Service on the Secretary of State 4:72 Service by Publication or Posting E. Other Issues 4:80 Corporation Must Be Represented by an Attorney 4:81 Failure to Pay Franchise Taxes 4:82 Personal Liability When the Franchise Tax Is Not Paid 4:83 Suing a Dissolved Corporation 4:84 Spoliation 4:85 Shareholders 4:86 Investigating the Defendant s Finances Typical Business Litigation Actions A. Notes & Leases 4:90 Promissory Notes 4:91 Leases

17 F-17 Table of Contents B. Mechanic s, Contractor s, and Materialman s Liens 1. General Points 4:100 Authority and Construction 4:101 Obtaining a Mechanic s Lien 4:102 Perfecting the Mechanic s Lien 4:103 Notice of the Lien 4:104 Necessity of Dealing With the Owner 4:105 Foreclosing on a Lien 4:106 Sham Contracts to Prevent a Lien 4:107 Releasing a Lien 2. Specific Types of Property 4:110 Abandoned Property 4:111 Liens on Homesteads 4:112 The Affidavit for a Homestead Lien 4:113 Liens on Vehicles 4:114 Liens on Fixtures 4:115 Liens on Services to Horse Owners C. Contracts 4:120 Statutes of Limitations 4:121 Changing the Limitation Period 4:122 Contracts to Arbitrate a Dispute 4:123 Contracts Affecting Jurisdiction 4:124 Elements for a Breach of Contract Action 4:125 Installment Contracts 4:126 Assignment of Contract Claims 4:127 Attorney Fees 4:128 Artistic Work D. Torts 1. General Points 4:130 Statute of Limitations 4:131 Fraudulent Concealment 4:132 Insurance Coverage 4:133 Mental Anguish 4:134 Keep Tort Issues in Mind in Business Litigation 2. Defamation 4:140 Definitions 4:141 Slander Per Se 4:142 Publication 4:143 Defenses 4:144 Privileged Matters 4:145 Business Disparagement 3. Negligence 4:150 Gross Negligence 4:151 Negligent Misrepresentation 4. Other Torts 4:160 Fraud 4:161 Civil Conspiracy 4:162 Conversion 4:163 Malicious Prosecution and Abuse of Process 4:164 Nuisance

18 Texas Small-Firm Tools F-18 4:165 Tortious Interference With Business Relations 4:166 Tortious Interference With a Contract 4:167 Intentional Infliction of Emotional Distress 4:168 Continuing Torts E. Bankruptcy 4:170 Types of Bankruptcy 4:171 Bankruptcy Documents 4:172 Exempt Property Alternatives 4:173 Texas Exemptions 4:174 Initial Bankruptcy Interview 4:175 Representing a Creditor 4:176 Electronic Filing 4:177 Motion to Lift Stay 4:178 Debts Not Dischargeable F. Copyright, Patents, and Trademarks 4:180 Distinguishing Copyrights, Patents, and Trademarks 4:181 Copyrights 4:182 Copyright Notice 4:183 The Application G. Oil and Gas 4:190 The Surface Lease IV. Pleadings and Judgments 4:200 Estoppel 4:201 Attaching Documents to the Pleadings 4:202 Declaratory Judgments 4:203 Summary Judgments 4:204 Motion for JNOV 4:205 Finality of Judgments 4:206 Revival and Enforcement of Judgments 4:207 Attorney Fees Forms Form 4:10 Letter to Secretary of State Form 4:20 Citation by Posting Form 4:30 Affidavit for Citation by Posting Form 4:40 Appointment of Attorney Ad Litem After Posting Form 4:50 Notice by Publication Form 4:60 Affidavit by Publication Involving Land Form 4:70 Checklist in Preparation of the Pleadings Form 4:80 Note Secured Form 4:90 Note Unsecured Form 4:100 Promissory Note Form 4:110 Release of Lien or Note Form 4:120 Bill of Sale Form 4:130 Petition for Suit on a Sworn Account Form 4:140 Lease Form 4:150 Mechanic s Lien Intake Form 4:160 Mechanic s Lien Letter Form 4:170 Mechanic s Lien Foreclosure Form 4:180 Mechanic s Lien Letter to Client Form 4:190 Mechanic s Lien Notice Letter

19 F-19 Table of Contents Form 4:200 Form 4:210 Form 4:220 Form 4:230 Form 4:240 Form 4:250 Form 4:260 Form 4:270 Form 4:280 Form 4:290 Form 4:300 Form 4:310 Form 4:320 Form 4:330 Form 4:340 Mechanic s Lien Affidavit Original Petition for Breach of Contract Provision for Tolling of Statute of Limitations Contract Breach of Contract Interrogatories Petition, Conspiracy and Tortious Interference With Existing Contract Petition, Libel Original Petition for Declaratory Judgment Proof of Claim Motion for Relief From Stay Motion for Judgment Notwithstanding the Verdict Release Interrogatories in Aid of Judgment Leased Property Checklist Collaborators Agreement CHAPTER 5 Landlord-Tenant Relations I. General Points 5:01 Rental Agreements and Leases 5:02 The Initial Client Interview 5:03 Self-Representation II. Forcible Entry and Forcible Detainer (Eviction) A. General Points 5:10 Definitions 5:11 Bad Faith or Harassment 5:12 Attorneys Fees 5:13 Non-Lawyer Representation 5:14 Eviction by New Owner of Building After Foreclosure 5:15 The Lockout Alternative 5:16 Wrongful Eviction 5:17 Constructive Eviction B. The Eviction Action 5:20 Statute of Limitations 5:21 Jurisdiction 5:22 Proper Parties 5:23 Notice to Vacate 5:24 Demand for Attorneys Fees 5:25 The Petition 5:26 Service of Process 5:27 Substituted Service Supports Default Judgment 5:28 The Answer 5:29 Issues in Eviction Actions 5:30 The Eviction Hearing 5:31 Writ of Possession 5:32 Appeal

20 Texas Small-Firm Tools F-20 III. Landlord s Duties A. Deposits and Payments 5:40 Duty to Mitigate Damages 5:41 Cash Payments 5:42 Rental Application Deposit 5:43 Refund of Security Deposits 5:44 Bad Faith Retention of Security Deposit 5:45 Late Fees 5:46 Premises Liability With Leased Premises; Commmon Area and Retained-Control B. Condition of the Unit 5:50 Smoke Detectors 5:51 Security Devices 5:52 Utilities C. Liens and Seized Property 1. Residential Leases 5:60 General Points 5:61 Seizure of Property 5:62 Sale of Property 2. Commercial Leases 5:65 Commercial Buildings 5:66 Agricultural Products or Crops IV. Tenant s Rights and Duties 5:70 Tenant s Obligations Under the Lease 5:71 No Subletting 5:72 Fixtures 5:73 Requesting Repairs 5:74 Lien on Landlord s Property 5:75 Last Month s Rent 5:76 Receipt for Cash Payment 5:77 Right to Summon Emergency Assistance 5:78 Mobile Home Lots 5:79 Right to Vacate and Avoid Liability Following Certain Sex Offenses V. Tenant s Repair and Deduct Remedy 5:80 Repair and Deduct Procedure 5:81 Improper Repair and Deduct 5:82 Casualty Loss 5:83 Closing the Unit 5:84 Landlord May Not Retaliate VI. Personal Property Left on Premises 5:90 Property Removed From Premises 5:91 Property That Must Be Returned to the Tenant 5:92 Property Presumed Abandoned After Three Years 5:93 Tenant s Remedy for Improper Removal VII. Fair Housing Practices 5:100 Discrimination Prohibited 5:101 Familial Status as Discrimination 5:102 Disabilities

21 F-21 Table of Contents 5:103 Contact Government Officials 5:104 Enforcement and Appointment of Attorney 5:105 The Complaint 5:106 Civil Penalties 5:107 Criminal Penalties Forms Form 5:10 [Reserved] Form 5:20 Lease Residential Form 5:30 Lease Agricultural Form 5:40 Client Intake Questionnaire Form 5:50 Checklist for Evictions Form 5:60 Instructions for the Eviction Case Form 5:70 Eviction Notice Letter Form 5:80 Eviction Petition Form 5:90 Courtroom Script Form 5:100 Release of Lease CHAPTER 6 Employer-Employee Relations I. General Points 6:01 Employer s Workers Compensation Insurance Election 6:02 Employee s Workers Compensation Claim 6:03 Vicarious Liability 6:04 Negligent Hiring II. The Employment Contract 6:10 First Client Meeting With Terminated Employee 6:11 Employment at Will 6:12 Modification of Employment at Will to Prevent Discrimination 6:13 Modification of Employment at Will to Prevent Retaliation 6:14 Modification of Employment at Will by Written Policies 6:15 Employment for a Definite Period 6:16 Independent Contractors 6:17 Leased Employees 6:18 Covenants Not to Compete 6:19 Statute of Frauds III. Hiring A. The Hiring Process 6:31 Recruiting 6:31 Application Forms 6:32 Interviewing Applicants 6:33 References and Offers of Employment 6:34 New Hire Reporting B. Immigration Issues 6:40 Hiring Illegal Immigrants Is Prohibited 6:41 Cannot Exclude Authorized Aliens 6:42 No Match Letter 6:43 Best Hiring Practices

22 Texas Small-Firm Tools F-22 IV. Office Policies A. General Policies 6:50 Office Procedures / Policy Manual 6:51 Drug Policies 6:52 Posted Notices 6:53 Employment of Children 6:54 Use of Polygraph 6:55 Record Keeping 6:56 Sexual Harassment B. Wages and Paydays 6:60 Paydays 6:61 Minimum Wage 6:62 Overtime Pay 6:63 Vacation Pay 6:64 Garnishment of Wages C. Safety and Health 6:70 Texas Requirements 6:71 Federal Requirements 6:72 Health Care D. 6:80 Include Policy in Office Manual 6:81 Electronic Communications Act 6:82 Texas Penal Code 6:83 Privacy Interest Defense V. Discrimination and Harassment A. General Points 6:90 Employment Discrimination Is Prohibited 6:91 Equal Employment Opportunity Commission (EEOC) 6:92 Disparate Treatment and Disparate Impact 6:93 Employer s Defenses 6:94 Hostile Work Environment 6:95 Burden Shift B. Types of Discrimination 6:100 Discriminatory Notice or Advertisement 6:101 Discrimination in Hiring 6:102 Age Discrimination 6:103 Sexual Discrimination 6:104 Retaliation 6:105 Disabilities 6:106 Race Discrimination 6:107 Religious Discrimination C. Sexual Harassment 6:110 Statutory Claim for Sexual Harassment 6:111 Hostile or Offensive Work Environment 6:112 Vicarious Liability D. Damages for Discrimination or Harassment 6:115 Statutory Damages 6:116 Caps on Damages

23 F-23 Table of Contents VI. Termination of Employment A. Grounds and Procedures 6:120 Termination Based on Good Cause 6:121 Statement of Discharge B. Improper Terminations 6:130 Wrongful Discharge 6:131 Constructive Discharge 6:132 The Whistleblower Act 6:133 Family and Medical Leave Act (FMLA) 6:134 Refusal to Perform Illegal Act C. Post-Termination Actions and Procedures 6:140 Lien for Unpaid Compensation 6:141 Unemployment Compensation 6:142 Intentional Infliction of Emotional Distress 6:143 Attorneys Fees 6:144 Blacklisting Forms Form 6:10 Intake Checklist Form 6:20 Employment at Will Form 6:30 Application Employment Form 6:40 Interview Employment Form 6:50 Texas Employer New Hire Reporting Program Form Form 6:60 Equal Employment and Reasonable Accommodation Form 6:70 Anti-Drug Policies Form 6:80 Office Procedure Disclaimer Sexual Harassment Form 6:90 , Fax, and Internet Use Policy Form 6:100 Employment Eligibility Verification Form I-9 Form 6:110 Checklist Employer/Employee CHAPTER 7 Credit and Collections I. General Points 7:01 Initial Meeting With a Debtor-Client 7:02 Statute of Limitations 7:03 Written Acknowledgment Constitutes New Promise 7:04 Oral Acknowledgment 7:05 Statute of Frauds 7:06 Investigating the Debtor 7:07 Investigating the Creditor 7:08 Checklist of Available Procedures II. Debt Collection A. General Points 7:10 Creditor Is Responsible for Collection Agency 7:11 Creditor May Ratify Collector s Improper Practices 7:12 Debtor May Not Hinder Secured Creditors 7:13 Asset Protection Planning 7:14 Ethics and Professionalism in Debt Collection

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