Tips & Advice

Ending a Trial before it Starts – Dispositive Motions

When it comes to lawsuits, pretrial motions are able to resolve many questions that arise from the case. A motion is a request that is filed by the lawyer asking the court to rule on a particular matter. There are two general types of motions: first is the dispositive motion, in which the court’s decision terminates the litigation process and even end the dispute before trial starts. The second type is the non-dispositive motion, where the court ruling responds to an incidental question that comes up during litigation.

In this article, we’ll be looking at dispositive motions that can end trials before they start.

Motion to Dismiss

The Motion to Dismiss is sometimes filed at the very early stages of the litigation process, before Discovery of Information starts. This is often filed by the defendant and his or her side when they believe that the case or complaint is legally invalid. These motions are often based on the following:

  • Lack of subject matter jurisdiction. This is used when the court has no power to rule or decide over the controversy. As an example, the defendant files a motion to dismiss because the case should be handled by a probate court, and not a civil court.
  • Lack of personal jurisdiction. This is used when the court has no power to make rulings that affect the defendant personally. As an example, a person who lives in Texas, is involved in an accident in California, and is then being sued in New York (with which he has minimum contact with), and then the court in New York will generally have no jurisdiction over the defendant.
  • Improper venue. Venue is the location of the court. State laws determine the place within the state where a person can be sued. However, note that the usual resolution in this type of concern is not to dismiss the case, but to transfer it to a different and more proper venue.
  • Insufficiency of process. A case may be dismissed if it can be proven that there was a technical error in the summons, or if the process was not followed properly.

Summary Judgment Motion

There are cases when key facts are not questioned and require that judgment or interpretation be made for one of the parties. This is called summary judgment because the case is summarily judged before the trial even starts. Here, a person of authority – often a judge or a jury will decide what the acceptable facts are. If the facts are not questioned or disputed, then there is no more need to try the case.

Motion for Default Judgment

In the event that the defendant fails to respond to the complaint, or to file for a motion to dismiss within the time period specified in the summons, then he or she will be in default. When this happens, the plaintiff can ask the clerk or court to take note of this in the file, in a procedure that is called the entry of default. This is a serious situation for the defendant as this usually means that he or she has given up the right to contest about his or her responsibility to the plaintiff.

If you are looking for a personal injury lawyer who can help you build or look into your case, contact today to schedule a consultation with our experts.

What to Do After a Car Accident

Car accidents can be frightening and can put those involved in a state of shock. No one ever wants to be in a car accident, so when it happens it can be frustrating for the involved parties. This is true no matter who is at fault. It is best to remember to stay calm, cool and collected after an accident because getting upset never helps the already negative situation. There are certain things that one must remember to do after an accident, if you are not severely injured. If you are not injured or only suffer from minor injuries, it is best to remember to:

Check that Everyone Involved is OK

The first thing that you must do following an automobile accident is to make sure that you are alright, as well as your passengers and those in the other involved vehicle(s). If anyone is in need of medical attention, more severe than a first aid kit can handle, call an ambulance immediately. The health and well being of the involved parties is the most important thing in a car accident.

Call the Police

Even if you are involved in a minor car accident, it is always a good idea to get the police involved. It is best, even if you are at fault, to contact the police for insurance reasons. Most of the time, police will not arrive on scene unless the accident is more serious, or someone involved is seriously injured. However, it is better to try and call them just in case. If they do arrive at the scene of an accident, they can determine who was at fault. Having a filed police report can help you in terms of insurance down the line, even if the cost is having a ticket given on the scene.

Swap Insurance Information

It is always extremely important to exchange insurance information after a car accident, if all involved parties are not seriously injured. It is best to copy down all information and it also wouldn’t hurt to take photos of the other persons insurance card for reference, in case you lose your written copy. If the other driver is uninsured, file a claim with your insurance company as soon as possible. It is smart to copy down the full name, phone number, address, insurance agency name and client number and the license plate. All of this information can help you either get compensation for the accident or give it if it is needed.

Record the Scene

It is very smart to either keep a small camera in your glove compartment or to have a phone with a camera on it at all times. These can come in handy in the event of an accident because you will be able to properly record all of the damage caused by the accident. You should not only take photos of your own car, but also of the other cars involved.

After you have recorded the scene and swapped insurance information it will be time for you to file a claim with your insurance agency.

If you have any questions regarding what to do after a car accident, or are seeking legal counsel for an Austin car accident related case, contact (BDF&A) today!

Lacking Contractual Capacity

To create a contract, it is required that both parties can become involved in the contract. When it amounts to legally binding agreements, specific individuals are at all times regarded as being short of legal ability, or “capacity”, to contract. As a legal issue, they are essentially assumed not to understand what they are doing. These individuals – lawful minors and the mentally ill, for instance – are situated into an exclusive group. If they become involved in a contract, the agreement is deemed “voidable” by them, as the individual who was short of capacity to become involved in the agreement in the first place. Voidable signifies that the individual who was short of capacity to become involved in the contract can either terminate the contract or allow it to move forward as settled on. This safeguards the party who is short of capacity from being coerced to go through with a deal that profits from his or her shortage of know-how.

Minors Possess No Contractual Capacity

Minors, those below eighteen years old in many states, are short of the capacity to make a contract. As a result, a minor who authorizes a contract can either stick to the deal or void the contract. However, there are some exceptions. For instance, in many states, a minor cannot void a contract for essentials such as food, clothing, and accommodation. In addition, a minor can void a contract for shortage of capacity only while still below the age of majority. In many states, if a minor becomes eighteen years old and has not done anything to void the contract, then the contract can no longer be voided.

Mental Incapacity

An individual who is short of mental capacity can void, or have a guardian void, many contracts, except contracts for necessities. In many states, the standard for mental capacity is whether the party knew the significance and result of the words encompassing the contract or transaction. This is termed the “cognitive” test. A few states use what is dubbed the “affective” test: a contract can be void if one party cannot act in a sensible way and the other party has cause to be aware of the condition. A few states use a third measure, termed the “motivation” test. Courts in these states gauge capacity by the individual’s ability to determine whether or not to become involved in the agreement. These tests might generate an unreliable outcome when employed to mental conditions like bipolar disorder.

Alcohol and Drugs

Individuals who are inebriated by drugs or alcohol are normally not believed to be short of capacity to contract. Courts normally decide that those who are voluntarily intoxicated should not be permitted to evade their contractual duties, but instead must assume responsibility for the outcome of their self-induced changed mental state. However, if a party is so far gone as to be incapable of comprehending even the type and outcome of the agreement, and the other sober party benefits from the individual’s condition might be voidable by the intoxicated party.

Circumstances in a Breach of Contract Claim

In a contract dispute over a breach of contract, a person should bring up as many legal defenses as possible, including “affirmative defenses.” It is normally insufficient to merely refuse legal misconduct. An individual must reply with every credible argument that validates his or her stance. Furthermore, if a person does not introduce defenses in the initial phases of a breach of contract lawsuit, he or she might be stopped from bringing them up afterward.

What is an Affirmative Defense to a Breach of Contract Claim?

Many defenses to a breach of contract claim are implied as “affirmative defenses.” As a legal issue, this indicates that the party bringing up the defense, the individual sued for breach of contract, has the burden of establishing the defense, if the dispute proceeds to trial.

An affirmative defense does not oppose the initial claims or facts (for instance, that there was a breach of contract), but in its place alleges justifying facts or conditions that cause the breach claim to be moot. In other words, it is like stating, “Although I breached the contract, the other party should not be successful in the lawsuit.” For instance, a teenage singer does not come for a concert and is accused of breaching his contract to supply entertainment services. Despite whether he breached the agreement, the young man might claim the affirmative defense that he needed the capacity to become involved in the contract in the first place because he is a minor.

Frequent Affirmative Defenses to a Breach of Contract Claim

How a person frames his or her legal defenses in a breach of contract lawsuit is restricted only by his or her attorney’s mind and his or her capacity to finance legal cost. The following are a few of the most frequent defenses:

  • The contract was presumed to be in writing. If the other side disputes that an oral agreement should be imposed against the individual, he or she could defend him or herself by maintaining that a “statute of frauds” expects the kind of contract – for instance, for the sale of real property – to be in writing.
  • The contract is vague. If the necessary terms were never approved, a person could defend by claiming that the contract is vague. This implies either the parties did not think the deal was conclusive or that the court could not distinguish the basics, even by suggestion. Agreements to agree like letters of intent or agreements in principle are normally deemed vague and thus inapplicable, even though courts will need the parties to act in good faith to attain an agreement.
  • There is an error. An individual can defend him or herself by establishing that a mutual mistake was made as to a basic fact in the contract. The person cannot use this defense we mentioning an error in judgment by one party.
  • An individual needed capacity to contract. If the individual could not comprehend what he or she was doing when he or she became involved in the deal, the contract might be voidable.
  • A person was fraudulently encouraged to become involved in a contract. A contract will be unacceptable if it was encouraged by lies, under duress, or by a reliable individual’s undue influence.
  • The contract is unacceptable. A contract will not be imposed if it is totally partial.
  • Estoppel. When one party makes a statement absolving the agreement’s performance and the other party depends on that statement, the initial party might be stopped from afterward refuting that statement and maintaining a breach.
  • The contract is illegal. A contract is inapplicable if its object or the thing negotiated for is illegal or needs the destruction of records. Contracts that might ultimately assist illegal reasons will sometimes be imposed. A court will sometimes dissolve the unlawful feature from the agreement, leaving the remainder of the contract applicable.

Contact our Austin business attorney today for a free consultation. Let us help you in your breach of contract case

When Friends Should Not Let Friends Drive Their Car

Most everyone has been in a situation where a friend needs to borrow a car to go shopping or borrow a truck to move. Friends are generally willing to help a friend out. That is what friends do. What happens if your friend is involved in an accident while driving a borrowed vehicle?

Insurance coverage and language varies from state-to-state and from one insurance company to another, so it is always important to know what the policy says before loaning a vehicle. Generally, insurance policies have some statement like the following:

The insured person “may include any person with respect to an accident arising out of that person’s use of a covered auto with the permission of you or a relative.”

So in reading this all that is necessary for the vehicle to be covered by the insured insurance, is the fact that “permission” to drive the vehicle was granted by the owner/insured. What happens when the vehicle is borrowed by a person who has no driver’s license or has a history of reckless driving?

Negligent Entrustment

A friend might be making a terrible mistake by letting an unlicensed or reckless friend drive their vehicle. Negligent entrustment is the act of lending a car or other potentially dangerous object, like a gun, to a person who is incompetent, reckless, or unlicensed.

Five elements must be met to show negligent entrustment:

  1. The owner gave permission for the person the drive.
  2. The person had no valid license or had a history of recklessness and incompetence.
  3. The owner knew or should have known the person had no license or a history of recklessness and incompetence.
  4. The driver was negligent when the accident happened.
  5. It was the driver’s negligence that caused the accident.

Negligent entrustment extends beyond friendship. The employer is responsible for their employees that use company vehicles, as well. Additionally, the offending object does not need to be a car; it could be a gun, boat, or RV. The fact that a person entrusted another person with something that needed to be handled with care and respect, knowing the person using the object was incapable for being responsible, makes the owner liable for any damages caused.

Punitive Damages

Even if the owner’s auto insurance covers the actual damages of the accident, the punitive damages may not be covered. In Texas, there are occasions where insurance pays the punitive damages awarded by a jury. However, if the insurance refuses to pay on the grounds of negligent entrustment, the owner can have an unimaginable bill. Punitive damages are meant to punish the behavior, in the case of negligent entrustment, the punishment falls on the owner of the car, business, or gun. Even if the insurance will cover the punitive damages, they might exceed the limit on the insurance policy.

If you have been in an Austin car accident involving a borrowed vehicle, company vehicle, or unlicensed driver, contact an experienced attorney who can get you the compensation you deserve for the injuries you have suffered.