Determining the Existence of a General Partnerships in Texas
General Partnerships in Texas are more common than people think. Individuals in the Dallas / Richardson area that form a business by oral agreement have unknowingly created a general partnership. General partnerships are common when two aspiring entrepreneurs orally decide to start a business and proceed without proper guidance from a lawyer.
The Court will look at five major factors to determine the existence of a general partnership. These factors are:
- Did two or more people express an intent to be partners?
- Did two or more people participate or have the right to participate in control of the existing business?
- Did two or more people agree to share losses or liability for claims by third parties against the business?
- Did two or more people agree to contribute money or other property to the business?
- two or more people share profits of the business?
If the answer is yes to any of these factors there may be a basis for a general partnership. The Court will make the determination of a general partnership on a case by case basis but at least one of the abovementioned factors must be present for the Court to determine that a general partnership exists.
Certain factors will not be considered when a Judge decides to whether a general partnership exists or not. These factors are:
- The right of two or more people to share profits as it pertains to:
a. repayment of a debt;
b. wages or compensation to an employee;
c. payment of rent or interest on a car loan:
d. payment of consideration for the sale of a business or other property: - The existence of joint or common tenancies; and
- Sharing or possession of a right to share gross receipts.
If circumstances dictate that a general partnership is created between two individuals then certain fiduciary duties and obligations arise between the partners. All partners have a fiduciary duty loyalty and care to the partnership and each other. A breach of this fiduciary duty may give rise to actual, punitive damages, and lost profits.
If you believe that through certain actions you have created a general partnership with a third-party. Please contact Nacol Law Firm to aid you in creating a business entity that will safe-guard your assets and protect you from liability.
Julian Nacol, Attorney
Nacol Law Firm, PC
(972) 690-3333
Interference with Child Custody in Texas
In the State of Texas, interference with child custody is punishable both civilly and criminally.
According to the Texas Family Code, a person who takes, retains, or conceals the whereabouts of a child at a time when another person is entitled to possession or access of the child may be liable for civil damages to that person.
The damages that may be recovered are expenses incurred while locating the child, securing the possession of the child, and enforcing the order, including attorneys fees. One may also be entitled to mental suffering and anguish incurred due to the interference and violation of the order. One may also be entitled to exemplary (punitive) damages if the violating party acts with malice, or an intent to harm the other party.
A violator can also be held criminally liable for interfering with child custody. According to the Texas Penal Code, a person commits an offense if they take or retain a child younger than 18 years of age, and:
- The person knows their taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody; or
- when the person has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child; or
- outside of the United States with the intent to deprive a person entitled to possession of or access to the child of that possession or access and without the permission of that person.
A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child. Such an offense is a state jail felony which, if prosecuted, can lead to fines of up to $10,000.00 and anywhere from 180 days to two years in state jail.
Nacol Law Firm – Dallas Custody Attorneys – Dallas Divorce
Disclaimer: The information provided in this article is in no way intended to constitute legal advice. The information provided is merely an overview of the relevant law. Do not act on this information. Always consult an attorney for legal advice.
Mediation : Alternative Dispute Resolution
“Mediation” is a process to aid parties in finding a fair and equitable settlement of disputes without unnecessary court intervention. Most Texas district and county courts require pretrial mediation for a variety of cases in order to help the parties resolve their problems while avoiding extensive court procedures and expenses
Mediation is a process in which the parties, under the guidance of a Mediator, agree upon a legally binding settlement the disputes in issue without a trial. Meditation can take many forms and the process may produce creative solutions without the direct rulings of the court. Courts usually encourage the opposing lawyers to first mediate a dispute and if no progress is made then continue the normal judicial process.
The Mediator that helps bring both sides to an agreement usually is a lawyer, ex-judge, or other specialist who has experience or expert training in the specific areas related to the dispute. A Mediator fees may range anywhere from $160-$500 dollars an hour depending on the case and the complexity of the issues in dispute. Mediators attempt to work with each side to find a reasonable middle ground to which a fair agreement can be structured.
An experienced lawyer is a valuable tool to advance favorable terms of any agreement during a mediation. During a mediation a Mediator will likely place the parties into separate “Caucus” areas, splitting the parties into different rooms to negotiate individually with each party to understand the positions and interests. Once the Mediator has talked to each party he will attempt to discover a common grounds that will fairly or smoothly serve both parties’ interests. If an agreement is reached that neither side is overly happy about, it is often likely that a reasonable compromise has been reached.
The important point of a mediation is to express your concerns and attempt to reach a compromise that is mutually acceptable, smart and fair to both sides. Many courts support this type of dispute resolution because it frees up the courts dockets and allow the parties to consider compromise first without involving the courts. Mediation maybe a cost saver, as the dollars you spend on an attorney for trial can be reduced significantly if a compromise is reached.
Make sure you have an attorney who is experienced in the Mediation process and knows how to craft a smart, fair deal which will result in significant cost savings.
How an Executor of “The Will” Might Be Breaching His/Her Fiduciary Duty
The executor of a Texas will is the person chosen by the deceased to administrate the provisions of the will of his/her estate. The executor must be at least eighteen years old and have no prior felony convictions. Executors are usually family members, accountants, or lawyers. The duties of the executor start at the time of death and finish when the last state and federal taxes, if any, are paid. And the estate is closed or otherwise fully disposed of. Executor responsibilities include accounting of assets in the estate, payment of estate liens and debts, and final distribution of assets to the beneficiaries.
An executor has legal fiduciary responsibilities and must act with utmost honesty, impartiality, and scrupulousness on behalf of the deceased and the estate’s beneficiaries. Rational decisions must be made; and the executor must overcome emotion caused by loss and adhere to the terms of the will.
But what if the Executor decides to put his/her own interests ahead of the estate’s beneficiaries or neglects to carry out his/her responsibilities. Has the Executor of the will breached their fiduciary duty? Some serious examples of an executor’s breach of fiduciary duty include:
- Mismanaging estate assets
- Misappropriating estate assets
- Hiding estate assets
- Failing to notify beneficiaries of their interests
- Using estate assets for the executor’s own benefit
- Unnecessarily delaying distributions to beneficiaries
- Paying themselves large and exorbitant, unearned fees
- Selling estate assets for an inappropriate price
- Ignoring important probate deadlines
- Failing to collect money owed to the estate
If an executor has breached his/her fiduciary duty in an estate where you are a beneficiary, this is a very serious issue that needs immediate attention. If you, as a beneficiary, feel that your interest in an estate is being compromised by your current executor, you should contact a Professional Probate Litigation Attorney immediately for help or the estate could experience serious consequences that will not only cause horrible problems between family and friends but also financial issues in the estate from possible fraud, theft of cash/property, or total disregard of all legal fiduciary responsibilities and duties.
Need Help? Give Us A Call!
The Nacol Law Firm P.C.
Probate Litigation Attorneys in Dallas TX
972-690-3333
Why Texas Employment Agreements Are Critical
Texas is an “At Will” state which gives few rights to an employee that are not created by statute or governed by labor regulations. At-will employees can be terminated for any reason, as long as the reason is not in violation of specific statues or is due to failure or refusal of the employee to commit an illegal act during employment. An Employment Contract is of critical importance in order to create equal rights and obligations that are enforceable. An employment contract must directly limit the employer’s right to terminate an employee without due cause or provide for a “term” of employment that is firm. In the employment contract the employer should unequivocally indicate that termination of the employee’s job will only occur in specific defined circumstances. This contract may also set out the terms on which a company hires an individual or an individual hires a company. If properly prepared, this contract is a legally binding agreement in Texas and is enforceable in a court of law.
In Texas, an oral employment agreement with a term less than one year in duration or which can be fully performed within one year, is generally binding.
Contract terms can flow from a number of sources which may include the following:
• Verbal agreements
• Agreements in writing or document form
• Agreements required by law
• Implied – not written but mutually understood to exist
• An offer letter
• An employee handbook
• A company notice board
• Collective agreements
• Emails
• Faxes
Wrongful dismissal is a breach in the way the employee is dismissed, i.e. without being given proper notice or following the procedures as terms or rights set out in the employment contract.
In order to modify a contract, there must be a subsequent agreement between the parties. Under certain circumstances, the employer may need to make changes to the contract because of economic circumstances. Things that might may be modified include:
• Rate of pay
• Work time
• Duties and responsibilities
• Work Location
• Correcting an error in the contract
• Disciplinary action – check disciplinary procedures to make sure this is done properly
Employees may ask for a change in a contract to:
• Improve their work environment
• Get a raise in pay
• Get more vacation or holiday time
• Change work hours
A breach of the contract occurs when either the employer or the employee violates a condition or term in the contract. A breach may be the result of a verbal or an oral (implied) agreement. If you think a breach of contract has occurred, it is best to take the problem to the employer first and attempt to work out a solution. If you decide to take legal action, remember you will need to prove financial loss in order to receive compensation. Legal action may prompt the employer to counter sue, if the employer thinks it has legal ground. An employer has the legal right to sue the employee for damages just as the employee has the right to sue the employer.
NACOL LAW FIRM P.C.
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Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
