SCOTX rules on limitations period against partners: American Star Energy and Minerals Corp. v. Stowers

Today, the Texas Supreme Court issued its opinion in American Star Energy and Minerals Corp. v. Stowers (no, not that Stowers) and held a limitations period against a partner generally does not commence until after a party obtains a final judgment against a partnership.

At first blush, this opinion strikes me as reaching something of an odd result. A party has the option under the Texas Revised Partnership Act of suing a partnership’s individual partners along with the partnership, but after this case, is there any practical reason to do so? The party can’t seek satisfaction of the partnership debt until the party obtains a judgment against the partnership. Plus, the party generally must give a partnership ninety days to satisfy a judgment before it can go after the partners and their assets. If that’s the case, why would the party sue the individual partners on the front end? I don’t see any real benefit unless the partner assumed liability through a guarantee or is individually liable for the tortious conduct at issue. This case would seem to prolong litigation, not shorten it.

At least the second suit against the partners individually should be straightforward enough. The second suit would have two elements: (1) is there an unpaid judgment against the partnership; and (2) were the partners actually partners at the relevant time? I think in most cases a Court could resolve it on summary judgment.

As an aside, American Star apparently filed the breach of contract suit against the partnership in the mid-1990s. Are these guys giving Jarndyce vs. Jarndyce a run for their money or what?

The bottom line: a party’s cause of action against an individual partner for the debt owed by a partnership doesn’t accrue until ninety days after the partnership fails to satisfy a money judgment against it.


Time to log off

No, this isn’t a GBCW post. But after spending part of my day watching a livestream of llamas scamper through Sun City and reading the furious Twitter debate over the color of a dress (gold/white versus black/blue), I’ve realized it’s time for me to step away from my laptop. Well, step away for at least for the remainder of tonight. I have nothing against silly internet memes, mind you; I’ve just had my fill for today.

Tit for tat

All litigators will occasionally need to extend a discovery or filing deadline. I’ve needed favors in the past and I will need them in the future. The legal profession can be such a grind if you’re fighting with other attorneys all the time about deadlines. Plus, an additional week or two doesn’t often mean much in the big picture of a lawsuit. To that end, I generally grant deadline extensions as a matter of course, no questions asked. Of course, implicit in my agreement is my expectation that the other lawyer will reciprocate if I ask for an extension. If, however, the other lawyer decides to add strings to his or her agreement to my request, all bets are off.

This is basic stuff. You treat me well, I’ll treat you well. But if you try to chisel me, don’t expect any future favors from me. It really is that simple. And heaven help you if I decide I don’t need that extension after all.

Social Media and Litigation

People post a lot of interesting material online. I’ve started to incorporate some social media discovery requests after reading Browning’s Social Media and Litigation Practice Guide and handling two cases where social media posts packed a visible punch.

The first case involved a trial where the plaintiff posted a bunch of Instagram pics and Vine videos of himself. In the videos and pics, the guy smoked pot, popped pills, and played with pistols. The plaintiff’s own posts on social media made it easy for us to depict the plaintiff as a dangerous malingerer. The plaintiff had a weak case to begin with and his unforced errors didn’t help him.

The second case involved a mediation where the plaintiff used a defendant security company’s YouTube videos to show how the security company was a bunch of reckless, wannabe cops. The video dovetailed nicely with the plaintiff’s trial themes.I don’t know whether the YouTube videos had a direct impact on the settlement of the case. Obviously, the videos didn’t hurt the plaintiff in negotiations.

There’s gold in a party’s social media requests. As a matter of course, lawyers need to discover what the other side has posted about an incident. Lawyers also need to figure out what their own clients have posted. I’ve started incorporating social media into my discovery requests and case intake procedures. Simply put, a party has to conduct social media discovery to fully investigate the claims and make recommendations to clients.

My only word to the wise to non-lawyers is this: if you post something on Facebook or Twitter–regardless of your security settings–please understand that a bunch of lawyers, a judge, and twelve citizens may eventually read and use the posts to judge you. Are you comfortable with that scenario? If not, perhaps you should refrain from posting.

Modernist KFC

If you have the chance, try to make these Korean-style chicken wings from the Modernist Cuisine crew when you have a chance. I found the more challenging (read: foreign) ingredients at Super H Mart.

I’ve now made these wings twice and enjoyed the results both times. I particularly enjoyed the gochujang sauce, although the wings have enough flavor and texture that they don’t need sauce. The photo above doesn’t do the wings justice.

MLB to announce new pace of play rules

In its ongoing efforts to quicken the pace of play, Major League Baseball will announce it will implement several changes: (1) managers must initiate replay challenges from the dugout; (2) batters must keep one foot in the box, except for an “established exception;” (3) play will begin promptly following a commercial break; and (4) pitching changes will be subject to a time limit.

The first and third options shouldn’t create many headaches. I don’t think anyone enjoyed seeing managers dither with umpires while waiting for a clubhouse attendant to tell them whether to initiate a challenge. Most folks won’t strenuously object to play beginning immediately following a commercial, although I think we’re somewhat accustomed to a transition from scripted commercial to a pitch from the announcers to play.

The second option—keeping batters in the box—should improve the pace of game play by limiting human rain delays. At the same time, MLB may be glossing over some significant safety concerns in implementing this step. Generally, I want hitters facing mid to upper-90’s heat to be focused on the task at hand. If a hitter has problem focusing in between pitches, I want him to be able to step out and clear his thoughts. Hitters have enough problems avoiding high and tight fastballs. A distracted hitter may be less able to avoid those wayward (or not so wayward) pitches. So as long batters don’t suffer additional injuries, the proposal makes sense. Along these lines, I feel better that the MLBPA signed off on the proposals.

Some of the “established exceptions” may swallow the rule. According to Rosenthal and Morosi, the exceptions used in the 2014 Arizona Fall League included foul balls, foul tips, time being granted by the umpire, and wild pitches. How often do umpires grant time upon request? More importantly, how often do umpires deny a hitter’s request for timeout? Will umpires stop granting timeouts? Should batters have a finite number of timeouts during an at-bat?

I’m curious to see how the league enforces these new rules. MLB plans to assess minimal fines instead of penalizing players within a game (for example, balls or strikes). How minimal are the fines? Will MLB use a sliding scale based on player salaries? I’m also curious to see how this filters down into the minors and amateur ball, where hitters develop their at-bat habits. MLB needs MiLB and the NCAA to implement similar steps in order to make this policy work in the long-term.

As for timed pitching changes, I’m for anything that revives the bullpen cart.

While these changes may help on the margins, I think the explosion in strikeouts has slowed the pace of play more than anything else. MLB’s other potential initiative—eliminating the called strike below the knees—may ultimately be of greater significance.  Dayn Perry and Joe Sheehan have made this point more eloquently, but the explosion in strikeouts is killing pace of play. Shifts are something of a red herring. BABIP has remained roughly constant over the last few years, notwithstanding the increase in defensive shifts. We’re just seeing fewer balls in play and less action in the field. That slows the game—what we think of as the game, anyway—to a crawl. MLB needs to fix the strikeout problem to fix the pace of play problem.

UPDATE: MLB announced the changes this morning.

E-reader? Not so much any more.

I’ve returned to reading hard copies of books and magazines. For the last four years or so, I’d read most books and magazines on my iPad. I enjoyed the convenience of immediately reading a book after downloading it. I also enjoyed having multiple reading options in a single, easy to carry e-reader. I could switch from a book on the Kindle app to The Economist within seconds, and check email in between the two. I multi-tasked like a master…or so I thought.

I eventually realized I wasn’t getting as much out of using my iPad as I thought I was. I ultimately felt distracted by using an e-reader. I didn’t really read on it, at least not in a traditional sense. I might read a page or two and then switch to Twitter. Then I might read another two paragraphs and check Facebook. Then I might read another page and reply to an email. I reached the point where I didn’t sustain my concentration on reading for more than a few minutes. I haven’t had a problem with that for a long time.

I still rely upon hard copies on my law practice. I typically print cases, briefs, and motions instead of reading them on a computer. I comprehend more of a written work when I read a hard copy instead of when I read something on a computer screen. Why should reading for pleasure be any different?

To be sure, I also want to model reading for my infant twins. I think it will be easier and more effective to do so using hard copies.

So, I’ve come full circle. I’ve changed my magazine subscription preferences to hard copy where possible. Today, I actually bought a book from a bookstore for personal enjoyment. I don’t see me using my iPad as an e-reader anytime soon.