After learning that Buxboro Independent School District would not re-open campuses until September 8th and dismayed that her children Digger (12), Trixie (9) and Hustler (5) would not receive personal instruction, Anna Nicole Pawlenty posted on a Facebook mom group “I’m in Buxboro, and I’m ‘podding up.’ Who’s with me?” . Can just anyone home school their children? What are the implications?
Reeling from months of governmental orders that required all restaurants to close their doors, Chez Quis was elated to re-open and welcome back its diners, even at a reduced capacity. But elation quickly turned to despair when Chez Quis learned that one of its longtime customers, Abe Froman, had sued the restaurant for allegedly contracting the coronavirus (COVID-19) while dining there. Has Chez Quis jumped out of the frying pan and into the fire? Continue Reading Stay Shut Down or Be Sued? The Risk to Your Business from COVID-19 Premises-Liability Claims
When restaurants were ordered to shutter – and before PPP – Ernest Bux’s sister Cookie Bux who owns Beef O’Bux Restaurants was in a bind. Should she lay off or furlough employees who were showing up for work to her empty restaurant chain? What’s the difference between laying off employees and furloughing them? What are her options? Continue Reading What Does a Furlough Mean to My Employees?
Before the pandemic, Ernest Bux’s niece Chit Bux signed a lease with Iona Mall in an upscale strip shopping center and hired a contractor to build out her dream business – a beauty salon “Cuts & Fluffs.” When Dallas County ordered businesses to shutter last spring, Chit’s “essential business” construction on her salon continued toward meeting the originally scheduled July 1st opening date – perhaps the worst time to open a high-touch, close-quarters beauty salon. Having dealt with other unsuccessful startups in that same space, Iona needed Cuts & Fluffs to succeed; Chit needed a different opening date – much later when people were less fearful of crowds. Chit called Iona, her contractor and her banker who was shepherding her SBA loan. Can Chit work something out with Iona without completely modifying her lease? Continue Reading Can an Email Exchange Modify a Lease?
The extraordinary measures designed to slow the spread of coronavirus (COVID-19) continue to cause constitutional clashes. My last post’s opening hypothetical about members of a congregation being ticketed for attending church services has now become a reality, and the Supreme Court has given its first hint on how it would strike the balance between fundamental constitutional rights and the government’s interest in preserving public health. Continue Reading COVID-19 v. the Constitution: The Conflict Continues
Driving through Oklahoma recently and watching Tiger King of late, Ernest “Big Daddy” Bux was intrigued that they are apparently 5,000 to 15,000 tigers in the United States and only 3,500 in the “wild.” Hearing that an 8-12 week old cub offered for “cub petting” in a roadside petting “zoo” could pay back over $1 million, Big Daddy decided that his Big Bux Ranch was big enough to add a roadside business and raise pet tigers. Does the State of Texas permit Big Daddy to keep pet tigers? Does Big Daddy have any liability for keeping them? Continue Reading Tiger King 2.0: Is a Texas Roadside Zoo Permissible?
In an attempt to slow the spread of coronavirus (COVID-19), the county judge has issued a shelter-in-place order that prohibits all public gatherings. Violations are a misdemeanor punishable by a fine of $1,000 or 180 days imprisonment. Defying the order, Reverend Elmer Gantry opens his church on Sunday morning to a smaller but still enthusiastic congregation. As the members leave at the end of the service, they are met by a sheriff’s deputy, who hands each of them a ticket for violating the order. Reverend Gantry proclaims that fining people for attending church violates their constitutional right to freely exercise their religion. Will the First Amendment be their salvation? Continue Reading COVID-19: Are Your Constitutional Rights Quarantined Too?
Wanting to diversify his investments, Ernest “Big Daddy” Bux signed a franchise agreement with GA Fitness last year. Construction by Big Daddy’s contractor Bill Toosuit is scheduled to be completed for in time for an early May grand opening in the new strip center owned and managed by Mawl & Mawl. Last week, in response to the COVID-19 pandemic, the town’s mayor and the state governor prohibited any gathering of more than 10 people and directed that all bars, restaurants and gymnasiums close. Now that gymnasiums are prohibited from opening, Big Daddy’s business is almost certain to fail, and Mawl & Mawl loses a tenant. If Big Daddy stops construction and buys out his current lease obligation, Bill Toosuit loses his construction project and Mawl & Mawl loses a long-term tenant. Can Big Daddy get out of his lease obligations? And his construction contract? Are there other options to get to a win-win? Continue Reading Can COVID-19 Trigger a Force Majeure Defense?
Wanting to diversify his investments, Ernest “Big Daddy” Bux signed a franchise agreement with GA Fitness last year. Construction by Big Daddy’s contractor Bill Toosuit is scheduled to be completed for in time for an early May grand opening in the new strip center owned and managed by Mawl & Mawl. Last week, in response to the COVID-19 pandemic, the town’s mayor and the state governor prohibited any gathering of more than 10 people and directed that all bars, restaurants and gymnasiums close. Now that gymnasiums are prohibited from opening, Big Daddy’s business is almost certain to fail, and Mawl & Mawl loses a tenant. If Big Daddy stops construction and buys out his current lease obligation, Bill Toosuit loses his construction project and Mawl & Mawl loses a long-term tenant. Can Big Daddy get out of his lease obligations? And his construction contract? Are there other options to get to a win-win? Continue Reading Can COVID-19 Make a Contract Impossible to Perform?
Sometime ago Ernest “Big Daddy” Bux conveyed a pipeline easement to Nodding Donkey Pipelines for the construction, operation and maintenance of a 24-inch pipeline across his Big Bux Ranch. In an email sent before Christmas, Lannie Landman with Nodding Donkey requested an easement for a second pipeline on the North side of the existing line. Landman’s January email stated “Pursuant to our conversation earlier, Nodding Donkey agrees to pay you $70.00 per foot for the second 24 inch line it proposes to build.” Big Daddy responded “We accept.” Subsequent Nodding Donkey exhibits attached to an email depicted the new easement both on the North and South sides of the existing pipeline and offered $15 to $25 per foot. Yet another email from Big Daddy attached a proposed amendment to the R.O.W. agreement between the parties. Does Big Daddy have an enforceable agreement at $70 per foot? Can an email exchange create an enforceable contract? What about the Statute of Frauds?
Yes, since passage of the 2001 Uniform Electronic Transactions Act electronic records and signatures may create an enforceable contract for the sale of real estate – if the email(s) satisfies the Statute of Frauds. To satisfy the Statute of Frauds, there must be a “written memorandum which is complete within itself in every material detail.” In a more complicated recitation of these very facts, the Texas Supreme Court recently found that there was no enforceable contract. The conflicting email exchanges, including the introduction of a new investor in Nodding Donkey who offered substantially less, made it clear that oral testimony would be required to sort out the details – the very thing that the Statute of Frauds is intended to stop. The Texas Supreme Court held that the material contract terms offered by Big Daddy were incomplete and did not satisfy the Statute of Frauds.
As first blogged by my partner Jamie Ribman in 2009, great care must be exercised when using email. If you are negotiating a deal, be aware that unless you have disclaimers in your text saying that email communications are not binding upon the parties, and that the deal is subject to the preparation of a written and signed contract, the email exchange may become an enforceable contract. If you are determined only to have “ink” signatures, make sure that typewritten names within your e-mail state that they are for contact purposes only and are not the “signature” of the sender.
Tilting the Scales in Your Favor
A worthy substitute, perhaps, is an on-line electronic signature solution. The Texas Realtors, for example, make Digital Ink available for free and DocuSign at a discount. Products such as these make electronic documents and signatures legally binding for nearly every business or personal transaction around the world – exceeding the requirements of the ESIGN Act and the Uniform Electronic Transactions Act.