Audrie Lawton Legal Blog

Normally in a legal malpractice suits, a client not only has to prove malpractice, but also must establish that a money loss resulted from the attorney’s negligence.  To establish this requires proving something about the underlying matter.  

The level of what must be proved regarding the underlying litigation (or underlying business or personal transaction) differs from state to state.  There are three general categories of the requirements.  I’ll generalize, using litigation as the underlying matter. Some states allow or require.

Even within these categories, there is variation.  For example in category # 1 above, some states want the reference to be to what a “reasonable trier of fact, or a reasonable judge, as the case may be, would have done.  Other states want the reference to be to what the specific jury or judge would have done.

In most states the rule is that if the attorney’s error occurred in litigation, the “” doctrine requires the aggrieved party to show: (1) that the initial litigation, if handled properly, would have resulted in a judgment in that party’s favor (the so-called suit within a suit rule); and (2) that the resulting judgment was collectable. E.g., see Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948 (Tex. Civ. App. Houston [1st Dist.] 1974, writ ref’d n.r.e.).

However, this requirement of proving the result of the litigation may be overcome in some jurisdictions.  It seems unfair to require a person claiming that a former lawyer bungled earlier litigation to show that the earlier suit, if properly handled, absolutely would have resulted in a judgment in that person’s favor, when in all likelihood that case would have been settled rather than tried.  Statistically, most cases are settled, not tried.   Less than 5% of cases get past pre-trial and legal motions and settlements to a courtroom trial door.

Some jurisdictions permit a party in that position to show that the underlying suit had settlement value and to use that value as a measure of damages. Lieberman v. Employer’s Ins. of Wausau, 419 A.2d 417 (New Jersey 1980); Merzlah v. Purcell, 830 P.2d 1278 (Mont. 1992). Cf. Alva v. Hurley, Fox, Selig, Caprari & Kelleher, 593 N.Y.S.d 728 (Sup. Ct. N.Y. 1993) (providing that New York law requires only proof of actual damages).

In Texas the case of Heath v. Herron, 732 S.W.2d 748 (Tex. App. Houston [14th Dist.] 1987, no writ) affirmed a judgment against an attorney for malpractice based on expert settlement value testimony admitted without objection, about an underlying case which had been settled.  This is not the same level of case law as a case in which objection had been made at the trial level either to the testimony or the instructions on damages.  Likewise in 864 S.W.2d 662 Haynes & Boone v. Bowser Bouldin, Ltd., (Tex.App.-San Antonio 1993) the case involved a defendant in the underlying case who had settled after the malpractice of its attorney.  It was said: “The proper measure of damages is the difference between the value of the settlement handled properly and improperly. Heath v. Herron, 732 S.W.2d 748, 753 (Tex.App.–Houston [14th Dist.] 1987, writ denied).”

Another way to say the above is to list in a checklist style, as follows.

The following items likewise can be listed in a checklist style.

If you are considering buying a home that has previously been occupied, the Seller’s Disclosure is one of THE most important forms in your real estate transaction.  This is the form where the seller tells the buyer what he knows about the property. If there are any defects, he must list them in the disclosure. If the drapes don’t stay in the house, he must let the buyer know. Both the buyer and the seller will sign this disclosure. It is very important that this is correctly filled out. I usually do this on my copy while the owner fills out his copy one check at a time. There are more law suits about property condition than any other portion of a real estate transaction in residential real estate.

It is important to note that many foreclosures are owned by the bank.  Banks in this instance are not considered to have occupied the property and therefore they do not have to present a “seller’s disclosure.”

If you need assistance in any of your real estate needs, contact our lawyers at Smith & Garg, LLC.!

The residential real estate industry in Texas is unique in that the real estate sales contract forms used in most transactions in the state are developed through a state agency, the Texas Real Estate Commission(TREC). TREC’s Broker-Lawyer Committee develops standard contract forms and addenda which are promulgated by the Commission. While the forms are public records and available for anyone to use, they are intended for use by those persons holding licenses to practice real estate in Texas. Though the use of these contract forms and addenda is voluntary, they are used in most transactions.

One distinctive feature of residential real estate contract forms promulgated by the Commission is the “termination option.” The termination option paragraph of the contract gives a potential Buyer, in return for paying an “option fee” to the Seller, the unrestricted right to terminate the contract by giving notice of termination to the Seller within a certain number of days after the effective date of the negotiated contract. The number of days and the amount of the option fee, like sales price and earnest money, are among those features negotiated between a Seller and potential Buyer in the sale contract; in Texas, option fees typically range from $100 to $200, while earnest money ranges from one to several thousand dollars. Option fees are paid directly to the Seller and are non-refundable, while earnest money in Texas is typically paid to and held in escrow by title insurance companies for the Seller; earnest money is either paid to the Seller or refunded to a potential Buyer, depending on a number of factors.

The termination option is popular among homebuyers in Texas because it gives a potential Buyer time to fully evaluate the condition of the property and perhaps renegotiate the initial offer based on inspections, needed repairs, or other considerations. During the option period, buyers may either terminate the contract or proceed to purchase the home. Sellers not only receive the benefit of the option fee payment, but also avoid jeopardizing a successful sale. In addition, during the option period, the Seller can continue to negotiate and accept back-up offers from other potential Buyers.

 Texas Property Code, §92.101 - §92.109, protects the rights of renters regarding their security deposit. Many tenants may not be aware of this law and therefore, do not receive a proper refund of their deposit.  The law states that the landlord has 30 days after the tenant surrenders (leaves) the premises to refund the security deposit. If the tenant fulfills the lease contract, the security deposit is always refundable; a tenant can never waive their right to a refund of the security deposit. However, the landlord can keep part of the deposit if the lease states that a “redecorating fee” or a “make-ready fee” will be deducted from the deposit. If the landlord retains all or part of a security deposit, the landlord is required to give to the tenant a written description and itemized list of all deductions providing the tenant meets certain. These conditions are:

Preventative Steps to Take to Ensure a Deposit Return

A tenant must meet all of the above conditions to ensure a refund of the deposit, but meeting those conditions is not all the tenant should do. The chances of receiving return of the deposit will be increased if the following suggestions are also followed:

Move-in Inventory Inspection.

When you move in your home or apartment, make a lsit and take photos f the apartment and any damage. Typically, you should do a walk through with the owner or manager prior to moving in. Get them to sign an acknowledgement of the damage and note what (if anything) will be done. This will help you when you move out.

Move-Out Notice.

A lease may require that the tenant give the landlord 30 days written notice prior to move-out in order to get the security deposit back. Texas Property Code says that advance notice of move-out can be a condition for return of the deposit if the requirement for advance notice is written into a lease and is underlined or in conspicuous bold print. Even if the lease does not require it, notify the landlord prior to moving.

Move-out Inventory Inspection.

When the tenant prepares to move, the apartment or home should be cleaned and the landlord asked to appear for a move out inspection. The tenant should fill out another inventory form, similar to the move-in inventory. Ideally, you should have a copy of the original move in form - for both your use and the landlord.

Turn in the Keys.

The keys should be turned in on the exact day the tenant vacates the premises. If the keys are turned in later, the landlord may be able to charge the tenant additional rent or other charges under the lease. A tenant’s actual move out date is often considered to be when the keys are turned in.

What Can the Landlord Deduct from the Security Deposit?

A landlord cannot legally deduct for normal wear and tear. This refers to deterioration which occurs during regular, daily, intended use of the rental unit, for example nail holes in the walls from pictures or paintings. See our guide.

Deductions from the Security Deposit

If the landlord makes any deductions from the deposit, a written, itemized accounting of how much is being charged for each item must be sent to the tenant. If the landlord fails to provide such an accounting within 30 days after the tenant moves out, the landlord may forfeit the right to withhold any part of the deposit. Furthermore, the deductions taken from the deposit must be for actual damages suffered by the landlord.

How to Dispute Deposit Deductions

If a tenant receives a list of deductions, it is possible to dispute items on that list. The deductions should be addressed by the tenant in a letter sent to the landlord. The demand letter should include a response to each of the deductions, explaining which charges are being disputed and why. The tenant should keep a copy of the letter and send the original by certified mail, return receipt requested.

If the tenant receives a partial refund along with the list of deductions and wants to dispute some or all of the deductions, the tenant may want to refrain from cashing the check. If the tenant must cash the check then the tenant should tell the landlord in the letter that even though the check has been cashed, it does not mean the tenant agrees with the amount of the check.

If you have a dispute with your landlord or tenant, call the attorneys with Smith & Garg, LLC.!

Generally, legal malpractice consists of two parts: 1) the damages the client has suffered and 2) the wrongs the lawyer has committed. In order to obtain financial compensation, the client must prove both parts of his/her claim (damages and wrongs). In addition, he must show that the lawyer’s mistakes caused the client’s damages.

1) Damages: The client’s damages must be measurable and the client must have suffered some defined economic damage to have a claim against his/her lawyer. Commonly, the damages a client incurs are a result of an underlying case or transaction that has been impaired or devastated by his/her lawyer’s mistakes.

2) The lawyer’s mistakes: The client must be able to prove that the financial damages were caused by the lawyer’s malfeasance. In addition to proving that these wrongs were the cause of the client’s damages, and before he/she is able to get financial compensation, he/she must also show one or more of a broad range of wrongs such as: