One more Daily Dawg Classic, AKA a rerun.

When someone is accused of wrongdoing they have the opportunity to admit they were at fault and accept the consequences. So, for example, the police officer pulls you over for going 30 in a 20 MPH school zone. You can say: “Yes, I did that, and I am sorry. I am ready to accept the consequences.”

But if you feel that you are being wrongly accused, there are three basic responses available to you.

You can say NO: “NO. I didn’t do that. I’m not guilty.”

Or you can say YES BUT: “YES, I did what you say, BUT there was a good reason. Let me explain.”

Or you can say SO WHAT?: “Yes, I did exactly what you said that I did. SO WHAT?”

We think these three responses apply across the board, from children in school, to poor drivers, to defendants in lawsuits.

Of course, lawyers have special labels to describe these three defenses. The “NO” defense is what we call a “general denial.” Your lawyer files a response to the lawsuit that flat out denies every allegation the plaintiff has made. This puts the burden of proof where it belongs—on the plaintiff who is bringing the lawsuit. You say I was driving 30 in the 20 MPH zone? I deny it! Prove it!!

The “YES BUT” defense is referred to as an “affirmative defense.” It admits the truth of the basic allegation, but then offers a worthy excuse. For example, “YES, I admit that I was driving 30 MPH in the school zone, BUT the blinking light was not blinking, and besides that my mother was in the emergency room, and I was rushing to be by her side.”

The “SO WHAT” defense is usually accompanied by a Motion for Summary Judgment. It acknowledges the truth of the allegation, and then contends that there was no violation of law. “Yes, I was driving 30 MPH. Yes, the light was blinking. But it was a Sunday afternoon and there was no school. No school—no school zone. The speed limit was actually 35. No violation of the law.”

Most good lawyers will offer all three defenses. “My client didn’t do it, Your Honor. But even if he did, he had a good reason for what he did. And even if it was not such a good reason, what he did is not a violation of law—so toss this case out!”

It’s kind of like playing defense in football. Your football team has three lines of defense: the line, the linebackers, and the secondary. If your linemen stop the play at the line of scrimmage, there is no damage to your team’s cause. If, however, the linebackers stop the play after a gain of 7 yards, you have paid a price. And if the runner runs free for 25 yards before the safety makes the tackle, you have paid a heavy price.

Cases that are dismissed early on are usually dismissed due to the SO WHAT defense. This is accomplished by a Motion to Dismiss early on, arguing that there is simply no basis for legal liability here. For the football analogy—this is a sack or a stop by the line.

If your defense is a YES BUT defense, your litigation costs will be higher. You have to marshal facts and evidence to show the court that there is an “affirmative defense.”

And if that doesn’t work, you are down to a factual struggle over what actually happened. This is when we have expensive jury trials that are long and costly in every sense, even if you “win.” It’s like you prevented the touchdown, but you gave up a lot of yardage.

Football season will soon be upon us and so I decided to dust off this old analogy.

DAWG BONE: DEFENDING A LAWSUIT IS LIKE DEFENDING A FOOTBALL PLAY…..SORT OF.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Here’s another Daily Dawg Classic from years past. It came to mind recently when I had the opportunity to introduce my sister to DQ Blizzards. She has lived in Texas for decades and had never had one. Can you believe that???

DEAR DAWG:

I cannot figure out how the UIL puts high schools into classifications. I mean, I know the basics—the 6A schools are big and the 1A schools are small. But how exactly do they do it? Is there a science to it? STUCK IN THE MIDDLE AT 3A.

DEAR STUCK IN THE MIDDLE:
We once heard a very clear explanation about this, from none other than Dr. Charles Breithaupt, former Executive Director of the UIL. According to Dr. B, the UIL can do this classification thing just by driving around the state and looking around in each town. Here’s the criteria:

Your town has no DQ: You are 1A
Your town has one DQ: You are 2A
Your town has one DQ and a Sonic: You are 3A
Your town has a Walmart: You are 4A
Your town has a Super Walmart: You are 5A

We think the 6A classification is reserved for places with multiple Starbucks.
Hope that clears it up for you!

DAWG BONE: THE UIL PROCESS MAY SEEM MYSTERIOUS BUT IT ALL MAKES SENSE.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: How practicing law is a little like playing football…

The cafeteria worker finished her shift at 2:30, but failed to “clock out.” Exactly 12 minutes later she struck a student with her car, flipping him into the air. The student had a skull fracture and a traumatic brain injury. The court’s opinion in the subsequent lawsuit tells us that the student has since had multiple brain surgeries and is relearning how to walk, eat, and otherwise function.

The injured student sued the school district and the case largely turned on where the cafeteria worker was headed, and why she was headed there. That mattered because school districts are legally liable for injuries that result from a motor vehicle accident only when the driver of the vehicle was negligent, and was acting within the “scope of employment.” The school district sought to dismiss the case, arguing that the driver was not within the scope of her employment.

She was driving to the school admin building to meet with someone from HR who could answer some questions she had about her health insurance. So the lawyer for the student emphasized that she was driving from one school building to another, and was going into a meeting with a representative of the school district who could clarify some questions about the district-issued health insurance plan.

However, that was not enough to convince the court that the driver was acting within the scope of employment. Her shift was over. She was no longer on the clock and the fact that she failed to “clock out” did not change that. She was not being paid. Her supervisor did not tell her to drive to the admin building, or to meet with the HR representative about the health insurance. In short, the cafeteria worker was on a personal errand when this accident occurred. The school district is not liable.

Notice, however, that the case did not turn on whose car she was driving. She was driving her personal car, but that was not the relevant issue. If her supervisor had directed her to report to another campus due to a shortage in the cafeteria, it’s very likely that the court would have viewed that as being within the scope of her employment.

It’s a sad case all around. The student was seriously injured and the worker was fired and pled guilty to assault with serious bodily injury. It’s Alief ISD v. Velazquez, decided by the Court of Appeals in Houston on May 18, 2023. It’s located at 2023 WL 3555495.

DAWG BONE: MOTOR VEHICLE + NEGLIGENCE + EMPLOYEE IN THE SCOPE OF EMPLOYMENT = ISD LIABILITY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: UIL classifications

Let’s put this one under the category of Daily Dawg Classic. We published this one several years ago, but I’m in a bit of a time crunch, so I resurrected it for today. Enjoy.

DEAR DAWG: I used to be a public school administrator, but I have retired from that business and I’m now serving as principal of a nice little Christian school. I expect that life will be easier for me now. So many laws that apply to the public schools do not apply here. Like Chapter 37. I attended one of your Toolbox Trainings and appreciate it, but as you know, here in the private sector we have a much bigger toolbox.

So I was preparing a new Student Code of Conduct, and thought it would be a good idea to incorporate Biblical principles. We teach Bible, and emphasize it as the core textbook for life its ownself. So it just seems natural to me that we would also incorporate it into our Code of Conduct. So with that in mind, what do you think about leading off the Code with the following:

If a man has a stubborn and rebellious son who will not obey the voice of his father or the voice of his mother, and, though they discipline him, will not listen to them, then his father and his mother shall take hold of him and bring him out to the elders of his city at the gate of the place where he lives, and they shall say to the elders of his city, ‘This our son is stubborn and rebellious; he will not obey our voice; he is a glutton and a drunkard.’ Then all the men of the city shall stone him to death with stones. Deuteronomy 21: 18-21.

Do you think that sets the right tone? WANTING TO DO THINGS RIGHT.

DEAR WANTING:
Well, we think it’s helpful that the Scripture verse tells us that stoning is to be done with “stones.” But as far as tone….no, we think you could find something more appropriate. You are right that private schools have a lot more flexibility, but we think “stoning” goes a bit too far. You might run into some problems with the local district attorney on that one. Furthermore, your private school is subject to non-discrimination laws, and we notice that this provision only targets one gender. What…you’ve got no “stubborn and rebellious” daughters????
So while we think that incorporating Biblical principles is a great idea at a Christian school, we would suggest something that is less likely to lead to constitutional violations and criminal prosecution. How about: “Train up a child in the way he should go; even when he is old he will not depart from it.” Proverbs 22:6. And maybe you could even add another gender to that.

DAWG BONE: THE AUTHOR OF DEUTERONOMY WOULD MAKE ONE HECK OF AN ASSISTANT PRINCIPAL.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: tragic accident leads to litigation

As is often the case, the good things in a stuffy judicial opinion are often hidden in the footnotes. Footnote 4 in a recent Texas Supreme Court case reads as follows:

A “tax ferret contract” has been defined as an agreement to locate property that has been omitted from the tax rolls.” Kinder Morgan wields the term “tax ferret” as a condemnation. Mr. Lemon is eager to assure us that he is no such thing. We assume the parties mean no disrespect to the furry mammal himself, a beloved pet of Queen Elizabeth I, celebrated annually on National Ferret Day, April 2.

This deserves some background, no? Mr. Lemon is a lawyer hired by Iraan-Sheffield ISD to sue the Pecos County Appraisal District, challenging the appraised value of Kinder Morgan’s mineral interests. The contract with Mr. Lemon was a contingent fee arrangement, whereby he would recover 20% of what his lawsuit produced for the district. Kinder Morgan filed a motion asserting that Mr. Lemon should be removed from the suit because the district had no authority to enter into a contingent fee agreement in a tax-related suit.

That’s why Kinder Morgan accused Mr. Lemon of being a “tax ferret” and Mr. Lemon responded by labeling Kinder Morgan as a “tax cheat” and “progeny of Enron.” The Supreme Court gently scolded the parties for the name-calling and declared that it would decide the case based on the provisions of the Texas Tax Code “none of which use mammalian metaphors.”

The court ultimately agreed with Kinder Morgan that the district lacked the legal power to retain a lawyer on a contingent fee basis, at least in this type of litigation. The court carefully noted that it was not addressing the power of local school boards to engage counsel on a contingent fee in other types of cases, such as tort suits. But in cases involving tax appraisal, the court held that a contingent fee was not authorized. So even though the school board had voted to sign off on the contingent fee deal, they were acting “ultra vires” when they did so. In other words, they did not have the power to do what they did—so what they did never happened. That’s sort of a simple explanation of “ultra vires.”

That’s not the end of this interesting case. The Supreme Court held that the lower court went too far when it dismissed the case entirely. The Supreme Court thought the school district should have been given the opportunity to change its agreement with Mr. Lemon, or hire other counsel. However, any lawyer retained to do this work would have to be retained on a regular fee, rather than a contingent fee.

This is an interesting tactic for school districts to employ when they believe that taxable values are way out of whack. The Court’s ruling does not preclude such a challenge, so perhaps we will see more of this. But it will not be on a contingent fee.

It’s Pecos County Appraisal District v. Iraan-Sheffield ISD, decided by the Texas Supreme Court on May 19, 2023. It’s cited at 2023 WL 3556711.

DAWG BONE: CONTINGENT FEES ARE THE NORM FOR CONTRACTS TO COLLECT DELINQUENT TAXES.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!