FACTS VS. LAW
When a dispute arises, it is based upon some set of facts that have occurred. These facts are frequently disputed. One person might be of the opinion that an event occurred, while the opposite party may not be of the same opinion. Generally, that is why we submit a dispute to the legal process, so that some unbiased forum can listen to the evidence and then determine what has actually occurred. This process is not perfect, but it is a way that we can have our disputes decided with certainty.
The law is something that is constantly changing and evolving. There may be many different areas of the law that are applicable to any one set of facts. Generally, the law that is applicable, is the law that was in effect at the time that the events giving rise to the dispute actually occurred. Differences of opinion can also arise as to which law is applicable to a particular set of facts. Attorneys use their judgment to determine what law or laws are applicable to a particular set of facts and then, under the law that is applicable, how to proceed to defend against or prosecute claims.
In the end the forum, in which the dispute is pending, will determine the true facts, and the correct law to apply to the facts. The forum will then apply the law to the facts to arrive at a final decision. Of course, final isn't always final, someone might appeal a decision.
HOW TO USE AN ATTORNEY
Frequently, persons seek an attorney after a dispute has already occurred. Suit may have even been filed by the time that an Attorney is contacted. By this time, the facts are already in place and cannot be changed. In a perfect world, one would use an Attorney before Suit, before the transaction took place. Attorneys can properly advise you on ways to minimize your risk in a business venture or any transaction. They can suggest ways to minimize potential legal consequences in the future. The old saying, an ounce of prevention is worth a pound of cure, definitely becomes applicable to the legal arena. If you are sued, you need to see an Attorney immediately so that proper action can be taken within the time frames provided by law.
AREAS OF PRACTICE
The summary that follows is a short list of the areas of law that Don R. White, Jr. practices in. After each topic heading is a short synopsis of the particular area of law. It is impossible to list in this format each and every possible cause of action that can arise in a particular dispute or the remedies that may be involved. You are urged to contact an attorney whenever you have a legal question. The time you spend with your attorney may not create certainty but can minimize your potential loss or maximize your potential return from a particular event.
Litigation cases frequently involve many different areas of the law. Causes of action can include fraud, fraud in a real estate transaction, deceptive trade practices, breach of contract, breach of warranty, breach of fiduciary duty, conversion, Residential Construction Liability Act, Fair Debt Collection Practices Act, derivative suits, temporary restraining orders, injunctions, receiverships, accountings, declaratory judgments, interference with contract, personal injury, negligence and others. These causes of action frequently overlap, and can all come into play in certain situations. Generally Litigation involves the process of gathering the facts, urging grounds for relief or for claims in a court, and prosecuting or defending the suit.
An automobile transaction that has gone awry, can include causes of action involving breach of contract, breach of warranty, deceptive trade practices, fraud, conversion, Lemon law and others. There are also certain Federal laws that may be applicable which govern "Sticker Prices", Warranty Disclosures, and Mileage disclosures.
Business law involves many different facets such as employment, advertising, sales of goods or services, contracts, warranties, corporations, collections, etc. Generally an attorney with a business background has an added advantage in counseling you regarding business matters because he or she has had first-hand dealings with similar matters from your perspective.
Collections law focuses on collecting a debt or defending against the collection of a debt. Both the State of Texas and the Federal Government have Acts that govern debt collectors and their activity. Usually a demand letter must be sent prior to suit and that demand letter must comply with the Fair Debt Collection Practices Acts. If results are not obtained from the letter, a specific type of lawsuit called a suit on a sworn account is usually filed. There are many defenses to a suit on a debt and unless these are properly alleged, the defenses may be barred.
Construction law generally involves defects in workmanship or materials such as cracked foundations, or other defects. Construction problems can also arise from deviations from representations or building plans. Construction law can include various causes of action such as breach of contract, breach of warranty (express or implied - see Warranty below), DTPA, and another area not yet discussed, the Residential Construction Liability Act. This Act is commonly referred to as RCLA (phonetically "RECLA"). Under RCLA, a homebuilder has a right to obtain a demand that gives it reasonable detail of your complaints, and then the homebuilder has a right to inspect the home and to make an offer of settlement which may include an offer to repair the defects and/or to pay monetary damages.
Consumer law generally involves all of the different areas listed herein. However, there are some particular laws that have been enacted to benefit consumers specifically. One such law is the Deceptive Trade Practice Act. However, there are others that are applicable to consumers and your attorney needs to know these particular areas in order to properly assert or defend your rights.
A contract can be oral or in writing. Certain types of contracts must be in writing to be enforceable. These contracts include real estate, commissions for the sale of real estate and others. Contract law is a very intricate and detailed area of the law and authors have created endless volumes describing the different doctrines of contract law such as consideration, parol evidence, merger clauses, subordination, subrogation, and others. Generally the more detailed a contract is, the more that risk is eliminated for at least one party, and the chance of a dispute is also decreased. Conversely, the shorter a contract is, generally increases the possibility for a dispute in the future.
Conversion arises when someone, without authority, takes and uses your property, whether for their benefit or not. In Criminal Law, this is commonly called Theft. With Conversion, your remedy is to obtain monetary damages for the value of the item(s) taken, or if returned, for the value of the use of the item while it is in their possession. Depreciation can also be a damage in these types of cases.
A Corporation allows one to start a separate entity in which to operate a business. This separate entity is a creation of the State and allows the shareholders to only be liable for the amount of their investment, assuming that the Corporation was formed correctly and that Corporate formalities have been observed. Thus, the term Corporate Shield means that the shareholders are generally insulated from liability for debts of the corporation. Corporations have evolved and now similar entities have been developed to allow for different types of investors or professions. Limited Liability Corporations, Professional Corporations, and Limited Liability Partnerships are some of the types of entities that fall within Corporate law.
The Texas Deceptive Trade Practices Act is commonly referred to as the DTPA. The DTPA is an act created to benefit consumers of goods and/or services. The act is aimed at settling disputes between consumers and businesses and has some very technical areas, such as offers and counter-offers and time deadlines for each. The DTPA also provides for the possibility of treble (three times) damages which may (but not always) be awarded by a Judge or Jury. The DTPA has several items defined within it that are in themselves deceptive practices, however, other areas of the law such as fraud, breach of warranty, and certain debt collection practices can also fall within the DTPA.
Fiduciary Duty is a duty that is imposed on persons who have business dealings with you and with whom you put great trust and confidence. It is said that when someone owes a fiduciary duty to you, they owe you a duty of loyalty, duty to disclose, and a duty to put your interest above that of their own. Fiduciary duties can arise in relationships such as Attorney-Client, Corporate Director or Officer to the Corporation, Trustee and Beneficiary, and others. A Fiduciary duty can also arise by contract, i.e., the parties can agree that one party owes a fiduciary duty to the other.
Fraud involves a situation where someone makes representations to you, either knowing they are false at the time, or recklessly without knowledge, but intending that you rely on those representations in order to enter into a transaction with them or someone on their behalf. I have handled cases involving Fraud and similar causes of actions, representing either Plaintiffs or Defendants.
This area of law involves both consumers and businesses. It can involve residential leases or commercial leases. The law for both residential and commercial is different in many respects. Usually a problem arises when the tenant has allegedly breached the lease in some manner. If some agreement is not reached, the Landlord may try to evict the tenant from the residence or place of business. For the most part the rights and obligations of each party are spelled out in the lease contract. However, some provisions are overridden by the Texas Property Code or by case law.
Real Estate involves many different areas of the law. Real Estate can include a transaction such as a sale of land or of a home or business. It can also include disputes between landowners, brokers, municipalities, etc. Litigation can arise from easement disputes, property lines, title defects, condemnation, zoning and others.
A warranty is an express affirmation of fact. In other words, it is a statement that someone is warranting or guaranteeing a service or good or other item to be what the person says it is. Most commonly known warranties involve car warranties, or appliance warranties. However, warranties can also be implied by the law. For instance, when someone undertakes to repair or to build a house, the courts have implied a warranty on them that they build or repair the home in a good and workmanlike manner.