TEXAS UPDATE!
By
Chamberlain♦McHaney
TEXAS
LAWYERS
HALLOWEEN
UPDATE: Two
Halloweens ago Tx/Up! went trick & treatin’ and got nothing for treats
but a bag full of restraining orders. Last Halloween we changed our
strategy and dressed up as oil company executives and got a bag full of billions
of dollars. This year, we are going to dress up as Dick Cheney so we can
accidentally shoot all our competition.
DAVID CHAMBERLAIN
HAS BEEN NAMED THIS YEAR’S TOP DEFENSE BAR
LEADER IN THE NATION BY DRI AND A TEXAS SUPER LAWYER BY TEXAS MONTHLY
MAGAZINE: At
its annual meeting in San Francisco earlier this month,
DRI bequeathed the Fred Sievert Award to
David
Chamberlain as The Outstanding Defense Bar Leader
in the country. Chamberlain was President of the
Texas Association of Defense Counsel in 2005
and was recently elected to serve as the
Texas State Representative to
DRI.
DRI is the largest national association of
defense lawyers in the United
States.
Chamberlain was also named a 2006
Texas Super Lawyer this month by
Texas Monthly Magazine and the Center for Law
and Politics. Only 5% of Texas attorneys are selected as
Texas Super
Lawyers.
Sign Here:
You Hereby
Agree We May Kick Your Rear: Sandra Willis brought suit
against Gary Willoughby and his self-defense company, “Willoughby's
Enterprise-Back Off” after she was injured in one of its self-defense
classes. (Tx/Up! Note: The irony here is
just
too much for
us). Willoughby moved for summary judgment contending that, not only
was the risk of injury inherent in self-defense activity, but Sandra expressly
released Willoughby from liability when she signed a
pre-occurrence written release. (Tx/Up! Note: The pre-occurrence release read something
like this: While teaching you to defend yourself, we may kick your rear…and you
will like it). The court noted that
the common law doctrine of assumed risk is no longer viable in
Texas, yet assumed risk based upon contract
remains alive and well. Thus, Sandra, having executed a pre-occurrence
release and waiver of injury, effectively relieved Willoughby of the duty to
protect her from foreseeable injury while instructing her in self-defense.
Summary Judgment for Defendant Willoughby was affirmed. Willis v.
Willoughby, No. 07-05-0190-CV
(Tex.
App.--Amarillo September 13,
2006).
TEXAS SUPREME COURT JUDGE
CLEARED OF WRONGDOING: Texas Supreme Court Justice
Nathan
Hecht is a long time
friend and colleague of Harriet Miers, a recent Bush nominee for an open seat
on the United States Supreme Court. While Miers’ nomination was under
consideration last fall by the
United
States Senate, Judge Hecht answered a number
of questions from the media about his knowledge of Meyer’s qualifications for
the job. As most long time friends would do, Hecht made favorable public
comments about Miers to the media.
A complaint was filed against Hecht
alleging that he improperly used the imprimatur of his office as a Texas Supreme
Court Judge to endorse Miers for the job. Tx/Up! never really understood the basis of
this complaint. It’s not like Hecht’s favorable comments helped Miers or
anything. In any event, the State Commission on Judicial Conduct issued a
public admonition of Hecht finding that he had violated the
Texas Code of Judicial Conduct by publicly
"endorsing" Miers. Specifically, the Commission found that Hecht
violated the Code, which provides that "A judge shall not authorize the
public use of his or her name endorsing another candidate for any public
office”; and which further provides that "A judge shall not lend the prestige of
judicial office to advance the private interests of the judge or others . .
."
Hecht appealed this admonition to “The
Special
Court” appointed to hear the appeal.
Last Friday, “The Special
Court” reversed the Commission and
stated that the "authorization" provision of the Code did not prohibit
"endorsing" but prohibited a judge from authorizing the public use of his name
endorsing another candidate. The Court held that Hecht did not authorize
the use of his name endorsing Miers for the job. The Court held that the
Commission failed to meet its burden of proving Hecht violated the Code and
dismissed the Commission's public admonition. In Re Honorable Nathan Hecht, Texas
Supreme Court Justice
THE SILENT
AND THE DEAD: Former Enron
CEO Ken Lay has been cleared of his federal
criminal conviction because he died. The trial court sitting in
Houston ruled that the conviction could not
stand because Lay was unavailable to effectively assist his lawyers on
appeal. Hmmmm… seems to us that he was also ineffective in assisting his
lawyers at trial.
TEXAS SUPREME COURT
CHANGES TEXAS EMPLOYMENT LAW:
Back in 1994, The
Texas Supreme Court in Light v. Centel Cellular Co.,
883 S.W.2d 642 (Tex.
1994) considered the
question of enforceability of covenants not to compete in the context of at-will
employment agreements. In that case, the court held that, based
the Texas Covenants Not to Compete Statute,
non-compete clauses were never enforceable unless the employer also had a
corresponding obligation at
the time the agreement was made. Last week, the Court did an
about-face, and held that such clauses are enforceable at the time the employer
performs the promises it made in exchange for the
covenant.
Kenneth Johnson was
already employed with Alex Sheshunoff Management Services [ASM] when it presented him with an
employment agreement reiterating the terms of Johnson's at-will employment and
adding a non-compete clause. Johnson signed the agreement as a condition
of his continued employment with Sheshunoff. After the agreement was
signed, Johnson was given confidential information and received additional
training as promised under the agreement. Johnson also promised not to
divulge confidential information, a covenant he presumably violated when
he was hired by Sheshunoff's primary competitor. Sheshunoff sued for
breach of contract and for statutory violations. The lower appellate court
held the clause unenforceable, stating that the contract was illusory. The
lower court reasoned:
“At the heart of the parties' dispute is whether ASM's promise to
provide special training and access to confidential information was illusory.
Under section 15.50, the relevant inquiry is whether ASM's promise was binding
at the time that the agreement was made. . . . ASM's promise to give Johnson
access to training and confidential information in the future was illusory
because ASM could have fired Johnson immediately after he signed the agreement
and escaped its obligation to perform. . . . Thus, ASM's acceptance of Johnson's
promise to maintain confidentiality by later providing confidential information
created a unilateral contract but not an otherwise enforceable agreement at the
time the agreement was made.”
The
Texas Supreme Court reversed, and in the
process changed the law. In enforcing the contract, the court held that a
unilateral contract formed when the employer performs a promise can satisfy the
requirements of the Covenants Not to Compete Act. While a covenant not to
compete cannot be a stand-alone promise from the employee lacking any new
obligation from the employer, it is enforceable when supported by the employer's
performance of its contractual obligations, even if the employer's promises are
illusory at the time the contract is signed. Alex Sheshunoff Mgt. Svcs. L.P. v.
Kenneth Johnson (Tex. Oct 20,
2006).
Over 200
professionals attended our 11th ANNUAL ULTIMATE CLAIMS
HANDLING SEMINAR earlier this month,
reinforcing its position as one of the largest private client seminars of its
kind in Texas. Said former
US Congressman
Tom
Foley: “I wish I had attended this seminar
before I sent those emails.” Mark your calendar to attend the
12th annual seminar next year on October 5,
2007 at the CityPlace
Conference Center in Dallas, Texas.
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Chamberlain♦McHaney is an
AV (Highest Rated) Firm and listed in A.M. Best’s Directory of Recommended
Attorneys.
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Happy Halloween from the
Editors and Staff
Chamberlain♦McHaney
Texas
Lawyers
512-474-9124
visit us
at www.chmc-law.com.