THE COLANERI FIRM_ P.C by xiangpeng



 2021 E. Lamar Boulevard, Suite 100                                            Telephone (817) 640-1588
 Arlington, Texas 76006                                                              Fax (817) 640-1680

 JANET K. COLANERI*^♣♦                                                        JOHN D. WHITE
 *Board Certified in Civil Trial Law                                 PAIGE ANDERS LEWIECKI
 and Personal Injury Trial Law
 Texas Board of Legal Specialization
 ^ Also licensed in Arkansas
 ♣Also licensed in Louisiana
 ♦Also licensed in Oklahoma

 If you have any questions or comments please feel free to contact us at the numbers above or via
 e-mail at FYI letters are also available at

                                            July 2008

A Note to Our Subscribers – If you would like       provided the deceased with any alcohol.
to receive our FYI letters and other firm           Additionally, there was no evidence that
bulletins via e-mail please send an e-mail          either the store or the store owner knew who
request to and we’ll         would be at the party or who would consume
be happy to add you to the electronic               the beer. The duty imposed by Dram shop
distribution list.                                  provisions to not serve alcoholic beverages to
                                                    a person it knows or should know is
Dram Shop Act Does Not Impose Liability             intoxicated is measured at the time of sale
for Future Actions Beyond The Seller’s              when the provider has control.
Control. Sheffield v Drake. Plaintiffs sued
Defendant grocery store, Defendant store            New Trial Ordered When Juror Was a
owner and several teenagers after their 16          Witness. Siller v LPP Mortgage, Ltd.
year old son was killed in an auto accident the     In a wrongful foreclosure case, the trial court
night of a party with other teens. There was        committed reversible error by not striking a
evidence a store employee knew the                  juror and declaring a mistrial because the
individual buying beer was purchasing it for        juror failed to disclose her personal
his underage brother’s party. Store and store       knowledge about the facts of the case during
owner filed motions for summary judgment            voir dire. At the close of the evidence, the
arguing the Dram Shop Act was Plaintiffs’           juror approached the bench and informed the
exclusive remedy.        One of the teenage         court and attorneys she had been present at
defendants filed a motion for summary               the foreclosure sale and knew “beyond a
judgment arguing he did not entrust his             doubt” that the notice of foreclosure sale had
vehicle to the driver involved in the one           been posted, a disputed fact in the case.
vehicle accident in which the deceased was a
passenger or to the deceased, if the deceased       Guardian Ad Litem Awards Were
was the driver. Plaintiffs appealed the adverse     Supported By Insufficient Evidence.
summary judgments.          Court of Appeals        Magna Donnelly Corp. v DeLeon. Husband
affirmed the summary judgments finding that         suffered fatal injuries in a single vehicle
Plaintiffs produced no evidence that the            rollover accident. Wife, individually, as
deceased was driving when the accident              representative of Husband’s estate and as next
occurred or that the store or store owner           friend of their three minor children, sued Ford
                                                     July 2008
                                                      Page 2

Motor Company. A settlement was reached                          Insurance Covered Only Tiles Damaged By
with and Wife requested the appointment of                       Hail, Not The Entire Roof. All Saints
guardians ad litem to represent the children.                    Catholic Church v United National Insurance
Three weeks later, two of the guardians ad                       Co. After a hailstorm damaged some church
litem appeared to approve the settlement and                     roof tiles, which were Hardi-Slate, Plaintiff
testified regarding their fees. The trial court                  decided to replace the entire roof due to
ordered Defendants to pay $3,000 in                              alleged defects in Hardi-Slate (premature
compensation to each guardian ad litem.                          aging due to rot, delamination, etc.). Plaintiff
Defendants complained of the fees on appeal.                     sued Defendant insurer when it paid only for
The Court of Appeals reversed the ad litem                       those tiles damaged due to hail. The Court of
payments and remanded for reconsideration                        Appeals, in affirming Defendant’s summary
holding that the ad litems took on tasks that                    judgment, held that the remaining tiles were
were more appropriately performed by the                         not damaged by a covered peril and therefore
children’s attorney.                                             not covered.

Failure To List Personal Injury Claim On                         Unauthorized Practice of Law Committee v.
Bankruptcy Schedules Foreclosed Claims.                          American Home Assurance Co., et al.
Ferguson v Building Materials Corp. of                           Motion for rehearing filed by UPLC.
America. A tractor-trailer collided with a                       Following a decision by the Texas Supreme
vehicle and careened into a building in which                    Court upholding the right of insurance
Husband was standing, causing it to collapse                     companies to utilize staff counsel offices to
around him in 2005. Husband and Wife filed                       represent their insureds, the Unauthorized
suit against the driver of the tractor-trailer and               Practice of Law Committee has filed a Motion
others. While that suit was pending, Plaintiffs                  for Rehearing. We will keep you apprised as
filed for bankruptcy (Chapter 13). They listed                   this case continues to develop.
the personal injury suit under "Suits &
administrative      proceedings,      executions,                US SUPREME COURT – The Right to
garnishments, & attachments" in their                            Bear Arms. District of Columbia v. Heller.
Statement of Financial Affairs, including the                    On June 26, 2008, the United States Supreme
cause number and a notation that the case was                    Court issued a new decision that affects what
pending. The trustee's notes of their creditors'                 type of regulations the federal government
meeting show that they mentioned the suit to                     may impose on an individual’s right to keep
the trustee. However, Plaintiffs did not list the                and bear arms. Following enactment of a law
lawsuit on their Schedule B, which required                      in the District of Columbia prohibiting
them to list their personal property. In 2006,                   individuals from owning guns, the United
Defendants filed motions for summary                             States Supreme Court was asked to decide
judgment claiming Plaintiffs' suit was barred                    whether the right to keep and bear arms
by judicial estoppel because they had failed to                  expressed in the Second Amendment protects
identify their claims as assets in the                           the right of individuals to possess firearms, or
bankruptcy schedules. The trial court granted                    whether the amendment applies only to a
the motions and the Court of Appeals                             collective right connected to militia service.
affirmed holding that the doctrine of judicial                   The Court found that the Second Amendment
estoppel is intended to protect the judicial                     protects an individual right to possess
system rather than litigants.                                    firearms, explaining that “there seems to us
                                          THE COLANERI FIRM, P.C.
                                       2021 E. Lamar Boulevard, Suite 100
                                            Arlington, Texas 76006
                                                 (817) 640-1588
                                                   July 2008
                                                    Page 3

no doubt on the basis of both text and history,                  •        In Washington state it is illegal for
that the Second Amendment conferred an                                    a candidate to buy anyone a drink
individual right to keep and bear arms.” The                              on election day.
Court did note that “the right secured by
Second Amendment is not unlimited.” The                          •        A law passed in the 1950s in
secured right is not “a right to keep and carry                           Avignon, France made it illegal
any weapon whatsoever in any manner                                       for any flying saucer to land in the
whatsoever and for whatever purpose.” The                                 city.
Court further indicated that longstanding
prohibitions on the possession of weapons by                     •        The      federal    Employment
certain groups or at certain locations, such as                           Retirement Income Security Act
schools and government buildings, remain                                  defines an employee as “any
undisturbed by this opinion.                                              individual employed by an
                                                                          employer” (Well duh!)
ARE ACTUALLY ON THE BOOKS:                                       •        In Xenia, Ohio it is illegal to spit
                                                                          in a salad bar.
   •       In Kentucky it is illegal to
           transport an ice cream cone in                        •        It is against the law in Fairbanks,
           your pocket.                                                   Alaska to give a moose a beer.

   •       In Hazelton, Pennsylvania there it                  SEE YOU NEXT MONTH!!!
           is illegal to sip a carbonated drink
           while lecturing students in a
           school auditorium.

   •       In Chicago, people who are
           diseased, maimed, mutilated or
           “otherwise an unsightly or
           disgusting object” are banned from
           going out in public.

   •       In Mesquite, Texas it is illegal for
           kids to have unusual haircuts.

   •       In Oklahoma people who make
           ugly faces at dogs may be fined
           and jailed.

   •       In Alabama it is illegal for a driver
           to be blindfolded while operating a

                                        THE COLANERI FIRM, P.C.
                                     2021 E. Lamar Boulevard, Suite 100
                                          Arlington, Texas 76006
                                               (817) 640-1588

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