FAQ’s

Tort litigation or tort law is commonly referred to as the body of the law which allows an injured person to obtain compensation from the person who caused the injury. A tort can also be described as occurring when someone deliberately or through carelessness causes harm or loss to another person or their property. Tort law is the basis of personal injury law.

Tort law is basically an area of law that deals with situations where one person’s behavior or action has caused another person to suffer some type of loss or harm. It is important to note that tort is not necessarily an illegal act, although it could be, that causes the loss or harm. The law allows anyone who is harmed to recover their loss.

Torts may be categorized in several ways, however they are commonly divided into:

• Negligence
• Intentional Torts
• Quasi-Torts

The businessdictionary.com defines contract law as, “the body of law that governs oral and written agreements associated with exchange of goods and services, money, and properties.” It includes topics such as the nature of contractual obligations, limitation of actions, freedom of contract, privity of contract, termination of contract, and covers also agency relationships, commercial paper, and contracts of employment.

All civil actions are subject to statute of limitations. After this time, the case cannot ever be brought to trial, regardless of how good a case it was. The following statutes of limitation apply:

• Professional negligence- 2years
• Professional malpractice-2years
• Personal injury-2 years
• Fraud 4 years
• Libel / Slander / Defamation-1 year.
• Injury to Personal Property- 2 years.
• Product Liability- 2 years.
• Contracts: Specific performance of a written contract- 4 years
• Wrongful death- 2 years
• Fraud- 4 years from the date of discovery

Arbitration is similar to trial in that there is evidence presented to a third party that ultimately renders a decision. In most cases the finding of the arbitrator(s) is final and binding against the parties. Instead of an elected Judge, an arbitration has one or more independent third person(s) who act(s) as judge and jury. In the past, cases that are arbitrated are generally resolved faster than conventional lawsuits because there is less bureaucracy and court congestion is not a problem. However, in recent years, arbitration’s have become very expensive and time consuming as a result of the discovery that needs to be accomplished and the expense of having 1-3 arbitrators paid for by the parties.

A controversy filed and brought before a court or the filing of a lawsuit is commonly referred to as litigation. If a dispute between one or more parties is not settled by agreement between the parties outside of court, it would eventually be heard and decided by a judge or jury in a court. Litigation is also used to distinguish the filing of a lawsuit from handling disputes amongst parties in alternate dispute resolution methods such as mediation.

The freedictionary.com defines mediation as, “the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result.” Why is this repeated? Mediation differs from arbitration in which the third party (arbitrator) acts much like a judge but in an out-of-court less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation), and is often ordered by the judge in such cases. Mediation also has become more frequent in contract and civil damage cases. There are professional mediators, or lawyers who do some meditation for substantial fees, but the financial cost is less than fighting the matter out in court and may achieve early settlement and an end to anxiety. However, mediation does not always result in a settlement. Why repeated?

The freedictionary.com defines mediation as the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration in which the third party (arbitrator) acts much like a judge but in an out-of-court less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation), and is often ordered by the judge in such cases. Mediation also has become more frequent in contract and civil damage cases. There are professional mediators, or lawyers who do some meditation for substantial fees, but the financial cost is less than fighting the matter out in court and may achieve early settlement and an end to anxiety. However, mediation does not always result in a settlement.

The Texas Deceptive Trade Practices Act (DTPA) is a consumer protection law that was established by the Texas Legislature to address claims by consumers for fraudulent or deceptive business practices. Many people are often concerned, when they purchase a product or service, that the business they bought the product from will fail to deliver on their part of the transaction. Consumers can get help from the provisions in the DTPA. As a consumer who has been a victim of consumer fraud, you may be entitled to financial compensation for your damages.

How Does the DTPA Work?

The legislature wanted the consumers to have to first address their concerns in writing prior to being able to file a lawsuit. The DTPA requires the consumer to gather their information and put the business on notice prior to filing a claim. If you believe that you have a case that involves your rights under the Texas DTPA, you or your lawyer must first notify the alleged violator of your complaint and allow 60 days for a response. In many cases, a DTPA lawyer can look at all of the provisions of the DTPA and help you propose a settlement offer that can then be accepted or rejected. If the details of an offer are not to you and your attorney’s satisfaction and the time for settlement expires, a lawsuit may be filed.

Is there a Time Limitation on Filing Your DTPA Claim?

You only have two years from the date the deceptive act or practice occurred to file a DTPA lawsuit. There are some variations on the time having to do with when you may have found out about the problem or the notice letter, but you should consult with an attorney about the exact deadlines related to filing your notice letter and your petition.

The procedures in Texas and the United States Constitution require that an individual is entitled to proper notice before a hearing that affects them or their property (personal or “real”). This requirement is usually fulfilled by proper service of what the legal system calls “process.” Properly delivering the paper work to the person at issue, the “party,” is called service of process. Service of process in a civil lawsuit includes the delivery of the Plaintiff’s written petition along with the citation that you get from the Court Clerk when you file the petition. The citation informs the defendant of the date and time to appear before the court to file and answer.

There are 12 elements of a valid citation. They are:

1. Has the title in the header (style) “State of Texas”
2. Contains the full name and the detailed location of the court
3. Must be signed by the clerk under the seal of the court
4. Shows date of the filing of petition
5. Shows the date that the clerk issued the citation
6. Clearly demonstrates the file number
7. Shows the names of the parties
8. Is directed to the Defendant
9. Needs to clearly show the address of the Plaintiff filing the petition or all of the contact information of the Plaintiff’s attorney
10. Must specifically show the due date of the Defendant’s answer as required by the rules
11. The address of the clerk must be clearly displayed.
12. The citation must also state that in case of failure to file an answer, judgment by default may be rendered for the relief demanded in the petition.

Failure to have a proper person serve the Defendant with a petition in a proper manner will cause the service to be ineffective. No person who is a party or interested in the outcome of a suit shall serve process (serve a citation). The following are a list of people who can serve:

1. Any sheriffs may serve civil process
2. Constables may serve all civil process in the constable’s county or in a county contiguous to the constable’s county.
3. Any person authorized to serve by law or written order of the court who is not less than 18 years of age
4. Any person certified to serve who is authorized under the order of the Supreme Court of the State of Texas

The concept of a precept refers to, “the Texas Rules related to a writ or warrant issued by an authorized person demanding another’s action, such as a judge’s order to an officer to bring a party before the court,” as described by Black’s Law Dictionary. Every officer or authorized person shall sign off on all precepts as to the date and time on which they were received. After service, the serving official shall note the manner in which the process was served as well as the time and place the precept was served.

Posting of a Service of Process is a method of serving civil process when an officer is unable to serve a person who is avoiding service. The service can be posted on someone’s door, the courthouse door, or on the door of their business. To effectively be a “posted” service, the person posting the service must include:

1. The date and the time the service was received
2. How the notice was posted
3. The time and place the notice was posted
4. The executing persons signature
5. If the service was achieved by a Peace officer, then the return needs to state the department name and the elected official’s name.
6. Once the return is complete, the return is then sent to the court, the plaintiff’s attorney requesting the service or issuing party.

A subpoena is a document commanding a person to appear before a court or a court related proceeding and is subject to a penalty for failing to comply.

How a subpoena is issued?

The clerk of the appropriate court, a licensed attorney, or a certified officer authorized to take depositions may issue a civil subpoena for any witness who resides 150 miles or less from a county in which the suit is pending. The witness must be tendered the appropriate fee as part of the service. The subpoena must be delivered to the person or the person’s attorney of record for the particular case. There are fines and penalties for not complying with a subpoena.

An administrative subpoena or summons is often issued by governmental agencies such as Texas Workforce Commission, Civil Service, Attorney General, and others for administrative hearings. Generally, there are penalties for ignoring these types of subpoenas.

An injunction is, “a court order commanding or preventing an action,” as defined by Black’s Law Dictionary. Usually, a party is restrained from doing something, such as, opening a liquor store next to an elementary school or carrying an open truck of dangerous chemicals through a neighborhood, until a court has a chance to review all of the circumstances. In order to get an injunction, the person making the complaint must show that there is no plain, adequate, or complete remedy from a legal proceeding, and that an irreparable injury will result unless relief is granted. In some instances, the order can command someone to undo some wrong or injury.

Protecting Medical, Financial, and Other Sensitive Information

Over the last fifty years, federal and state privacy laws have been enacted and updated in response to new technologies, information products, and data storage capabilities. Although these laws have varying focuses, one common theme is the protection against the unauthorized use or collection of private records. In addition, many of the laws enable affected persons to file privacy lawsuits to sue and hold accountable those who have obtained or used personal information unlawfully.

The Gramm–Leach–Bliley Act (GLB), or Financial Services Modernization Act of 1999 (15 U.S.C. §§ 6801 et seq.), is a financial privacy law that regulates the collection, disclosure, and protections of consumers’ personally identifiable, nonpublic information by financial institutions, such as banks, debt collectors, lenders, etc.

Health Insurance Portability and Accountability Act (Pub. Law No. 104-191 §§ 262,264: 45 C.F.R. §§160-164)
HIPAA addresses the security and privacy of health data maintained or transmitted by health plans, health care providers, health care clearinghouses, and other related entities. In addition to other health privacy laws, HIPAA requires health plans and health care providers to provide a written notice of how protected health information about an individual will be used, as well as an accounting of the circumstances surrounding certain disclosures of the information.

Cable Communications Policy Act (47 U.S.C. § 551)
Cable television companies are required to inform subscribers about the personal data collected and how that data is disclosed. The Act prohibits the collection and disclosure of personal information without authorization, and provides damages for violation of this Act of a minimum of $1,000, plus punitive damages, costs, and attorney fees in suits against cable television companies.

Electronic Communications Privacy Act (18 U.S.C. § 2701, et seq.)
The ECPA is a computer privacy law that prohibits tampering with computers or accessing computerized records without authorization. Title I of the ECPA protects wire, oral, and electronic communications while in transit.

Telephone Consumer Protection Act (47 U.S.C. § 227)
The TCPA is a broad statute governing telemarketing in the United States and implicating cell phone privacy. The Act make unlawful the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages received by cell phones, and the use of fax machines to send unsolicited advertisements without consumer consent.

Video Privacy Protection Act (18 U.S.C. § 2710)

The VPPA prohibits videotape sale or rental companies from disclosing customers’ names and addresses, or the subject matter of their purchases or rentals for marketing uses, unless the customers have been notified of their right to stop such disclosures. Video companies found in violation of the Act may be held liable for damages of at least $2500, punitive damages, costs, and attorney fees.

Wiretap Statutes (18 U.S.C. § 2510, et seq.; 47 U.S.C. § 605)

This Act prohibits the use of eavesdropping technology and the interception of electronic mail, radio communications, data transmission, and telephone calls without consent, safeguarding financial privacy, and preserving other sensitive information.