Archives for the month of: November, 2014

With the recent news stories about faulty air bags, many people wonder how they can find out if their car, truck or SUV has been recalled for this or other any reason. One excellent way to find an answer is to search http://www.safercar.gov This website is powered by the U.S. Department of Transportation’s National Highway Traffic Safety Administration (also known as the NHTSA). Besides finding car and equipment safety alerts and recalls, you can also find new and used car safety ratings and safety features; report and search car problems; and find out about car seat laws and guidelines. Check out the website. It’s amazing what you can find on it. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C

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Locally, there has been a lot of attention given to the proposal to ban fracking in the City of Denton. This past Tuesday, Denton’s citizens voted to enact a ban on all fracking ban. Almost immediately, lawsuits were filed challenging the ban. The fracking ban has brought significant attention to whether the ban would constitute a taking of private property that violates the United States and Texas Constitutions.   Both the United States and Texas Constitutions prohibit the government from taking private property without just compensation. Most of the time, the application of this protection is straight forward. For instance, when a city physically enters a person’s property for a public purpose and does not pay for the property, the government violates both Constitutions. As the recent debate over the fracking ban suggests, in certain circumstances government regulation can result in a taking of private property without just compensation. However, determining when a regulation has gone too far is considerably more difficult than determining whether a physical taking has occurred.

Whether a regulatory taking has occurred is a legal question that usually involves a complicated and fact intensive evaluation of a particular regulation, the use being regulated, and the land being regulated. That said, there are two basic types of regulatory takings claims property owners can bring against the government when they believe regulation has gone too far. The first is generally called a Lucas or a total takings claim. The second is generally referred to as Penn-Central or partial takings claim.

Total Takings

Under the Lucas rule, a taking occurs when a regulation destroys all economically beneficial use of an owner’s private property. Locally, within the context of the fracking ban, the private property in question is primarily natural gas. Those who own the mineral under their land and those who have leased those mineral will argue that a ban on fracking destroys the economic value of their natural gas deposits. This is because most of these deposits are located in shale formations, and fracking is required to recover the natural gas from this type of rock formation. However, even when a regulation destroys the economic value of private property, in limited circumstances the regulation may still not be a taking.   Applying the Lucas rule, the regulation will not constitute a taking if a neighboring property owner could have stopped the use being regulated under the state’s established property law. For example, if a neighboring property owner could have prevented fracking on the property because the well in the proposed location violated a subdivision’s deed restrictions, the fracking ban would likely still not be considered a taking even though the ban also prevents the minerals from being developed.

Partial Takings

If a total taking has not occurred, a property owner may still bring a partial takings claim under the Penn Central ruling. This type of claim requires the court to consider essentially ad hoc factual inquiries, such as whether the governmental regulation has decreased the value of an owner’s land or otherwise interfered with the property owners “distinct investment-backed expectations.” In the context of the fracking ban, “distinct investment-back expectations” basically means that the gas companies will have to prove that when they entered into an oil and gas lease within Denton’s city limits they had a reasonable expectation they would be allowed to drill and frack gas wells to produce the minerals they had leased.

Now that the frack ban passes, it appears certain that the courts will be asked to decide both total takings and partial takings cases. The issues raised will ultimately require the courts to examine the claims of those on both sides the debate. Does fracking create a special threat to water quality, air quality, or public safety? If so, are those concerns raised on the specific properties where the gas wells would have been drilled? And, what are the impacts of fracking on the property values of surrounding property owners?

Regardless of whether the courts ultimately decide fracking ban is a taking, the lawsuits should clearly address (and hopefully further define) the scope of the legitimate exercise of government power and the limits of that power. I have often wished when watching a political debate that we could put the candidates under oath before starting the debate and have a Judge present who would make the candidates actually answer the questions they are asked. At least as to the fracking ban, my wish may be partially granted. No matter how the fracking ban lawsuits end, local property owners should take this opportunity to become more informed about the constitutional limits on land use regulation and when those regulations should be challenged.

Samuel B. Burke is board certified in Civil Trial Law by the Texas Board of Legal Specialization and can be reached at sburke@dentonlaw.com or www.dentonlaw.com.

In my last blog, i discussed time deadlines, called statutes of limitation, that an adult has to file a lawsuit based on general negligence. but what about medical negligence cases (often referred to as Medical Malpractice)? How long do you, as an adult who is at least 18 years old or older and of sound mind, have to file a lawsuit against a healthcare provider based on medical negligence? If there is an identifiable date of negligence (for example, a botched surgery where it is clear what day the negligence actually occurred, Section 74.25(a) of the TEXAS CIVIL PRACTICE & REMEDIES CODE, sets forth the limitations period for medical malpractice as follows: “[N]o health care liability claim may be commenced unless the action is filed within two years from the occurrence or breach or tort…” If no identifiable date of negligence exists (for example, a physician the patient sees more that once who continues to fail to diagnose the patient’s cancer), then Section 74.25(a) provides, “[N]o health care liability claim may be commenced unless the action is filed within two years from… the date the medical or he alt care treatment that is the subject of the claim or hospitalization for which the claim is made is completed…” Contrary to general negligence cases, the discovery rule (that was discussed in my last blog) typically does not apply in medical negligence cases. Thus, as a general rule with very limited exceptions, the statute of limitations will not be tolled in a medical negligence claim until you knew or through reasonable diligence should have known of the injury that you are complaining about. This can be an extremely harsh result. Therefore, if possible, an in no event, should you let more than two years from the earliest date of any alleged medical or health care malpractice or other wrongful conduct go by without retaining qualified legal counsel and initiating action. If you do not file suit within the applicable statute of limitations, your claims will be forever barred. There is currently a way to extend the statute of limitations against any negligent healthcare provider an additional 75 days. However, certain steps must be followed to do so. Therefore, I would encourage you to hire a qualified attorney to do this. Please note that even if you file suit within the applicable limitations period, you must still exercise diligence in serving the defendant(s). If you fail to do so, your claims will still be barred by the statute of limitations, even if you filed the case within the appropriate deadline. All of this can get rather confusing so the bottom line is do not put off consulting with a qualified personal injury trial attorney to assist you in determining if you have a claim and when a lawsuit must be filed to preserve that claim. Therefore, please feel free to contact me at (940) 891-0003 to set up a cost-free consultation to discuss your case. *Please note that this Blog applies to negligence cases for adults who are of sound mind and medical negligence not based upon inherently undiscoverable conditions (e.g., a surgical sponge not removed during surgery). It does not apply to general negligence claims. It also does not apply to minors or persons of unsound minds. These topics are separate beasts which are better discussed in separate blogs. If look forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.

In Texas, there are dealings, called statutes of limitation, that you must file a lawsuit in or your claims will be forever barred. The statute of limitations for an adult who is at least 18 years old or older and not of unsound mind for a claim based upon negligence* is two years, which begins to accrue when the wrongful act that you complain about causes an injury, regardless of when you may have learned of such injury. The “discovery rule,” however, may defer accrual of the statute of limitations until you knew, or by exercising reasonable diligence should know, of the facts giving rise to your claim. For the “discovery rule” to apply, however, your injury must be both inherently undiscoverable and objectively verifiable. An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed limitations period despite due diligence. The court must decide whether your injury is the type of injury that generally is discoverable by the exercise of reasonable diligence. (It is well-settled that injuries are not inherently undiscoverable when they arise from an immediate and traumatic event, like a car wreck or slip and fall). An injury is “objectively verifiable” if the injury’s existence and the defendant’s wrongful conduct cannot be disputed and the facts on which liability is asserted are demonstrated by direct physical evidence. Please note that the TEXAS CIVIL PRACTICE & REMEDIES CODE currently provides, “If the last day of a limitations period under any statute of limitations falls on a Saturday, Sunday, or holiday, the period for filing suit is extended to include the next day that the county offices are open for business.” TEX. CIV. PRAC. & REM. CODE ann Section 16.072 (Vernon’s 2013). However, this law is subject to change. Even if you file suit within the applicable limitations period, you must still exercise diligence in serving the defendant(s). If you fail to do so, your claims will still be barred by the statute of limitations, even if you filed the case within the appropriate deadline. All of this can get rather confusing so the bottom line is do not put off consulting with a qualified personal injury attorney to assist you in determining if you have a claim and when a lawsuit must be filed to preserve that claim. Therefore, please feel free to contact me at (940) 891-0003 to set up a free cost-free consultation to discuss your case. *Please note that this Blog applies to general negligence cases for adults who are 18 years or older and of sound mind. It does not apply to medical negligence (i.e., medical malpractice) claims. This is a separate beast which I will discuss in my next blog. I look forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.

Previously, I discussed time deadlines, called statutes of limitation, that an adult has to file a lawsuit based on general negligence. but what about when the person injured is under the age of 18? When does a child have to file suit? Currently, if a person is under the age of 18, the time deadline for filing suit does not begin to run until they turn 18. They then have two years from the date that they turn 18 to file a lawsuit based on general negligence. Please note that even if a person files suit within the applicable limitations period, they must still exercise diligence in serving the defendant(s). If they fail to do so, their claims will still be barred by the statute of limitations, even if they filed the case within the appropriate deadline. All of this can get rather confusing so the bottom line is do not put off consulting with an qualified personal injury trial attorney to asset you in determining if you have a claim and when a lawsuit must be filed to preserve that claim. Therefore, please feel fee to contact me at (940) 891-0003 to set up a cost-free consultation to discuss your case. Please note that this Blog does not apply to medical negligence cases, which is a separate beast better discussed in a separate blog. I look forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.