Civil Litigation in Texas – Do You have a Case
Have you been harmed by the actions of another person or business in Texas? The Nacol Law Firm PC, in Dallas TX, represents clients in a broad scope of civil disputes, including:
Business Litigation,
Contract Disputes,
Real estate litigation and disputes,
Corporate litigation,
Probate and Will contests,
Employment agreements,
Breach of contract,
Breach of non-disclosure agreements,
Violation of fair-trade practices,
Breach of fiduciary duty,
Home-builder and seller warranty disputes,
Construction litigation,
Fraud.
Oral Contracts and Quantum Meruit
Oral contracts do exist and are legally enforceable in Texas, as a matter of law, if they meet necessary legal requirements and specificity.
Adequate consideration must be given between the two parties of a verbal contract to make it binding. Adequate consideration is defined in two ways:
(1) having a mutual reciprocal exchange [bargained for exchange] or
(2) having legal value [an individual must do something that he is not legally obligated to do].
If adequate consideration is given between both parties and all other legal requirements are met, then a verbal contract may be held valid in a court of law.
In contract law, quantum meruit is a doctrine that states there is an inferred promise to pay a fair amount for work and the materials provided, even without a lawful, enforceable agreement between the parties.
Having issues with a contract or oral agreement in Texas?
Contact Dallas TX attorney, Julian Nacol of the Nacol Law Firm P.C.
Tel: (972) 690-3333
Your Trust Fiduciary/Trustee—-Friend or Foe??
With the financial conflicts facing individuals and families today and the aging of the general population, more trust beneficiaries and family members are becoming concerned with the fiduciary duties of the trustees of their individual trusts.
The fiduciary duty is a legal relationship, obligation and trust to act in the best interest of the beneficiary. The fiduciary or trustee, must employ undivided loyalty to the beneficiaries concerning all matters related to their trust and will be held accountable if he or she acts adverse or contrary to the interest of this relationship.
The duties of a Trustee Fiduciary include the following:
- The Trustee must be loyal to and administer the trust solely for the benefit of the beneficiaries. The trustee can never take advantage of his or her position for personal gain.
- The Trustee must deal impartially with all beneficiaries, if more than one exists. This can sometimes be difficult, since each beneficiary may have their own agenda and needs to be met.
- The Trustee must obtain possession of the trust assets immediately and keep these assets under his or her control through the entire term of the trust. The Trustee must also enforce claims and defend actions against the assets in the trust.
- The Trustee must keep the trust assets separate and segregated from his or her own personal assets and from assets or funds of any other trust instrument unless the trust itself provides otherwise.
- The Trustee must administer the trust personally and responsibly at all times and only delegate responsibilities that would be in the best interest of the trust, such as a tax advisor or accountant.
- The Trustee must keep the assets productive to pay income to the beneficiaries. The duty of the trustee is to keep trust property invested so it produces income.
- The Trustee must make full disclosures and furnish information to the beneficiaries about the administration and status of the trust. An annual report is standard with an accounting of income, expenses, gains, and losses. Upon request, the Trustee must provide for the beneficiary, complete and accurate information on the nature and amount of the trust property and permit the beneficiary to inspect the accounts and other documents related to the trust.
A Trustee must be honest, responsible, have a high degree of integrity, and a genuine interest in the welfare of the trust and the beneficiaries. It is also very important that the Fiduciary has experience in the investment of assets and management of property to keep the trust income producing.
There can never be a conflict of interest between a Trustee and the beneficiary. The law forbids a Trustee from acting in an adverse manner contrary to the interest of the beneficiary or from acting in his own benefit in relation to the trust.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving clients in the Dallas – Fort Worth Metroplex area for over 30 years
Tel: 972-690-3333
Preventing Custodial Parent From Relocating Children Out of State
Mom and Dad are divorcing or have been divorced and are now sharing joint custody of their children in the same city in Texas. One parent receives a letter from the other parent’s attorney requesting that this parent be allowed to relocate the children to another state so he/she may take a better job position with another company! This is a dilemma no parent ever wants to experience! Child Custody cases involving interstate relocation jurisdiction issues cause much heartache and are costly legal battles.
What can a Parent do to protect themselves from children being relocated away from the non-moving parent to another state without her/his consent? How may this affect the parent’s relationship with the children?
The Texas Family Code 153.002 Best Interest of Child states “The best interest of the child shall always be the primary consideration of the court in determining the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
The Texas Family code does not elaborate on the specific requirement for modification in the residency-restriction context, and there are no specific statutes governing residency restrictions or their removal for purposes of relocation. Texas Courts have no statutory standards to apply to this context.
The Texas Legislature has provided Texas Family Code 153.001, a basic framework on their public policy for all suits affecting the parent-child relationship:
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The public policy of this state is to:
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Assure the children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
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Provide a safe, stable, and nonviolent environment for the child;
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Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
How does The State of Texas treat an initial Child Custody determination?
Texas Family Code 152.201 of the UCCJEA states, among other things, that a court may rule on custody issues if the Child:
*Has continually lived in that state for 6 months or longer and Texas was the home state of the child within six months before the commencement of the legal proceeding.
*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.
*Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state
*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state
Relocation is a child custody situation which will turn on the individual facts of the specific case, so that each case is tried on its own merits.
Most child custody relocation cases tried in Texas follow a predictable course:
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Allowing or not allowing the move.
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Order of psychological evaluations or social studies of family members
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Modification of custody and adjusting of child’s time spent with parents
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Adjusting child support
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Order of mediation to settle dispute
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Allocating transportation costs
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Order opposing parties to provide all information on child’s addresses and telephone #
Help to Prevent Your Child’s Relocation in a Texas Court by Preparing Your Case!
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Does the intended relocation interfere with the visitation rights of the non- moving parent?
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The effect on visitation and communication with the non-moving parent to maintain a full and continuous relationship with the child
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How will this move affect extended family relationships living in the child’s current location?
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Are there bad faith motives evident in the relocating parent?
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Can the non-moving parent relocate to be close to the child? If not, what type of separation hardship would the child have?
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The relocating parent’s desire to accommodate a new job, spouse, or other criteria above the parent-child relationship. A Parent’s personal desire for move rather than need to move?
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Is there a significant degree of economic, emotional or education enhancement for the relocating parent and child in this move?
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Any violation of an order or prior notice of the intended move or a temporary restraining order
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Are Special Needs/ Talents accommodated for the child in this move?
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Fear of child and high cost of travel expenses for non-moving parent or child to visit each other to be able to continue parent- child relationship.
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What other Paramount Concerns would affect the child concerning the relocation from the non-moving parent?
At the Nacol Law Firm PC, we represent many parents trying to prevent their child from relocating to another city or state and having to experience “A Long Distance Parental Relationship” brought on by a better job or new life experience of the relocating parent! We work at persuading courts to apply the specific, narrow exceptions to these general rules in order to have child custody cases heard in the most convenient forum in which the most qualifying, honest evidence is available; cases where the child’s home state or other basic questions are clarified, and cases where a parent has the right in close proximity with their child regardless of other less important factors.
A Director’s Fiduciary Duty to His Corporation
A Director of a Corporation has specific fiduciary duties that precludes activities that might endanger the Corporation. The certificate of formation may limit or eliminate personal liability of Directors in certain respects such as money damages but there are some concrete fiduciary duties that cannot be dispensed with such as:
- Breach the duty of loyalty;
- An act or omission not in good faith that constitutes a breach of a duty or involves intentional misconduct or a knowing violation of law;
- A transaction in which the director received an improper benefit; or
- An act or omission for which liability of a director is expressly provided by Texas Statute.
Of all the mandatory fiduciary duties listed above, the duty of loyalty is the most sacred. The policy in Texas is that a Director’s loyalty is to the Corporation first and to himself second. A Director is generally precluded from entering into any transaction that may personally benefit him. A Director has a personal interest in a transaction if he is a party to the transaction, has a material financial stake in the transaction, or is an immediate family member to the transaction.
A Director may enter into a transaction with the corporation that personally benefits him with these three exceptions:
- The material facts of the relationship governing the transaction are known to the board of directors, and the board in good faith authorizes the transaction by a vote of a majority of the disinterested directors;
- The material facts of the relationship governing the transaction are disclosed to the shareholders who then by vote approve the transaction in good faith; or
- The transaction is fair to the Corporation at the time it is authorized or ratified by the board of directors or shareholders.
If one of these three exceptions apply to a Director that stands to personally benefit from a transaction with the Corporation, then his fiduciary duty of loyalty will likely not be breached. The duty of loyalty is the most important fiduciary duty because many Corporations have Directors which serve concurrently as Directors for other independent Corporations. It is common to have a Director for a Corporation that is also a Director for another Corporation. With one individual sitting as a Director on multiple Corporations it is important that his duty of loyalty remains consistent with each Corporation that he represents.
Julian Nacol, Attorney The Nacol Law Firm P.C. (972) 690-3333
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
Office Hours
Monday – Thursday, 8am – 5pm
Friday, 8:30am – 5pm
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
