Bench in bluebell fieldA huge fan of the Hill Country, Skare D. Katz buys a large piece of undeveloped land from the Solable Family outside of Austin.  Skare D. plans to build a ranch for retirement. One Saturday while Skare D. is visiting the property to visualize his plans, a woman shows up and stands underneath a large oak tree, staring at the ground.  Skare D. approaches the woman and asks her for her name.  The woman responds, “Inka Solable.”  When Scare D. asks Inka what she’s doing there, Inka responds, “This is where my great-grandfather is buried.  I come pay my respects every Saturday.”  Dumbfounded, Skare D. responds, “Ma’am, I appreciate that, but I own this property now.  I don’t want you coming by every Saturday.”  Inka replies, “I have a right under the law to access this property when I want.  I’ll see you in Court!”  Is Inka right? Continue Reading The Grave Reality of a Cemetery on Your Property

Love LetterOn Valentine’s Day, Zack takes Kelly, his high school sweetheart who goes to a different college, to the Max for a romantic dinner.  At the end of the meal Zack says, “Kelly, I want us to promise each other that after college we’ll both move back to Bayside and get married.  Will you marry me?”  Kelly responds, “Oh Zack, that’s wonderful!  I love you so much and I promise.”  Delighted, Zack puts the engagement ring on Kelly’s finger and says, “That’s great Kelly!  Now there’s one more thing – I spent every dime I made working last summer on this ring.  Will you promise me that if we don’t get married after college you’ll return this ring?”  Kelly writes on her napkin “I promise to return my engagement ring if we don’t get married after college,” signs her name and gives it to Zack.

Two years later, Kelly decides to take make a surprise visit to Zack’s school one weekend.  When she arrives she finds Zack at a party kissing another woman.  “You two-timing slime ball!  We’re through and never getting married,” Kelly tells him.  Zack asks for the ring back and Kelly refuses.  Three months later Zack sues Kelly for the ring.  He still has Kelly’s napkin from Valentine’s Day.  Does he have a good case even though he’s a pig? 

Written Promises Around Engagements Are Enforceable

We covered this topic many years ago under a different fact scenario and the law has not changed since then.  Zack is entitled to the ring. Kelly promised in writing to return the ring if they did not get married after college.  Importantly, Kelly’s written promise was not conditioned on who broke off the engagement or why it was broken off.  Thus, Zack gets the ring although his actions caused Kelly to call off the engagement.

What if Kelly Didn’t Give Zack the Napkin?

Kelly probably gets to keep the ring because it was Zack’s fault that the engagement ended, even though Kelly called it off.  In the absence of an enforceable written agreement, Texas follows the conditional gift rule, which requires Kelly (the donee) to return the ring to Zack (the donor) if Kelly is at fault in terminating the engagement.  But, Texas courts allow the donee to keep the ring if the donee can prove that there was a justified reason for calling off the engagement.  Zack’s cheating should be enough, absent other facts.

Tilting the Scales in Your Favor

While some people might find the conditional gift rule offensive, other people may see it as a reasonable approach.  Regardless, it’s important to remember that if you have significant assets you are bringing into a new marriage, you may want to consult with an attorney about whether you should have a prenuptial agreement in place in case the marriage does not work out.

Yesterday Alluring Allison drove her brand new 2011 BMW to Wally World. Wanting to avoid that first door ding, Allie parked her beloved Beamer away from the other cars. Little did she know that Robby Redneck was loading up his pickup truck just up the hill from her. After unloading all of his shopping carts Robby drove away without returning them to the cart corrals conveniently located in the parking lot. Sure enough, a gust of the wind sent two carts careening down the hill into Allie’s Beamer. Does Allie have a claim against Robby or Wally World and its errant shopping carts?

If she can find him, Allie has a claim against Robby for negligence. Although possible, Allie’s claim against Wally World is less certain. Underlying both claims is the legal concept of negligence. The general question is did either Robby or Wally World owe a duty to other shoppers like Allie to guard against the damage likely to result from a runaway shopping cart? When cart corrals are stationed in the parking areas, it is reasonable to conclude that all shoppers like Robby have a responsibility to leave their carts where they will not damage other cars. On a windy day, shoppers can expect that unattended carts will be a hazard if not placed in the corrals.

Wally World undoubtedly placed the cart corrals in the lot to avoid that very risk. Moreover, Wally World hired employees to round up loose carts and return them to the building for arriving shoppers. Finding Wally World, or any other retail owner, liable for a claim on their premises requires more than mere negligence. Allie must be an “invitee” to the parking lot, i.e., a shopper. And, Wally World must have some “knowledge” of the problem, probably more than knowing it is a busy shopping day and the wind is blowing hard. Nevertheless, if those circumstances are such that a judge or jury could conclude that they posed “an unreasonable risk of harm” that Wally World (through its supervisors and employees) knew or should have known about and should have protected Allie from but failed to do so, then Wally World could be found liable for Allie’s damages.

Tilting the Scales in Your Favor. There is probably a good reason why there are no Texas cases on these facts. Finding Robby and proving that it was his un-corralled shopping carts that hit Allie’s Beamer is likely to be difficult and time consuming. Moreover, convincing a judge or jury that Wally World knew or should have known and failed properly to respond to the dangerous conditions that caused the personal damage claim would be very difficult. Finally, the most likely reason why there are no Texas cases on this subject is that the likely amount of personal property damages is pretty low. This kind of claim, if filed as a lawsuit, would likely be in Small Claims / Justice of the Peace Court.

In a retail shopping center, both the “legal” and the courteous conduct is to leave your shopping cart in the corral. If you are Wally World you might want to redouble your shopping cart attendants in the parking lot on a very busy and/or a windy March day to round up the strays faster. If you have a new Beamer, you might want to consider which way the March winds are blowing and whether you are parked uphill or down from the likely direction the wind and the carts might be blowing.