Bailment - A Clarification

If property is repaired or stored, a basic understanding of bailment law is essential. As always, bailment law is complex and involves analysis of facts and issues specific to your case. I strongly recommend you seek advice of a competent attorney regarding specifics of your case/issues. This is not legal advice, but only a general, broad discussion of some bailment issues.

Generally speaking, a “bailment” exists where there is (1) a contract, express or implied, (2) delivery of property to the bailee, and (3) acceptance of the property by the bailee. For example, where a customer delivers a vehicle for repairs to a repair shop and contracts with the shop for repairs to the vehicle, a bailment exits once the repair shop accepts the vehicle in conjunction with the contract for repairs. “Bailor” is the party who delivers personal property to another in a contract of bailment. “Bailee” is the party to whom personal property is delivered under a contract of bailment. There are several different kinds of bailment, and each has its own duties and obligations.

There is a misconception that once a bailment is established, there is an absolute duty on the Bailee to return the property to the Bailor. If, using this example, after repairs are completed and the Bailor is told to retrieve its property and before it can, unknown thieves break into the Bailee's premises and steal the Bailor's property, some would argue that the Bailee is liable to the Bailor for this theft and property loss. Such argument relies upon the notion that the Bailee warranted he/she would return the Bailor's property, and failure to return the property, regardless of cause of loss, is a breach of warranty and contract. This is not necessarily the law in Texas. In the example above, once a bailment is created, it continues until the property is redelivered to the bailor or the bailor is notified to pick up its property. Berlow v. Sheraton Dallas Corp., 629 S.W.2d 818, 821 (Tex.App.—Dallas 1982, writ ref’d n.r.e.). As such, in the foregoing example, there may be an argument that the Bailee acted reasonably in performing under the repair contract, timely notified the Bailor of the completion of repairs and need to retrieve its property, and took reasonable steps to secure the Bailor's property. Thus, there may be no liability at all to Bailee for the loss of property, in the foregoing example.

Bailment issues, like all legal issues/cases, require examination and analysis by a qualified attorney. There are few issues where liability is established as a matter of law, and a qualified attorney should be consulted in all cases.

Venue 101 - Why is this lawsuit filed there?

Many of my clients ask me how lawyers decide where to file a lawsuit. If often seems that lawsuits are filed in inconvenient places far away from where the actual dispute occurs. Or it seems like a lawsuit is filed in a place more convenient to one party than others. Where a lawsuit gets filed is called "venue". Venue is subject to significant legal and factual analysis; much of it voluminous, case specific, and confusing. The following discussion is obviously not to be construed as legal advice or an exhaustive discussion of venue law. This is only a very broad, brief, and general discussion, and analysis of where a suit is filed should be handled by competent legal counsel.

That having been said, generally speaking, where a suit gets filed is often determined by what kind of suit it is. Federal lawsuits, state court lawsuits, and arbitrations are all subject to their own venue laws and rules. Venue also depends upon the issues giving rise to the suit, and some cases are subject to mandatory venue rules; i.e. statutes or laws state they must be filed in a particular venue. Additionally, parties can decide where suit is to be filed by agreement or contract. I will generally discuss Texas state court venue in cases common to my practice: contract cases, real estate cases, and tort cases.

Many contracts have one or more provisions establishing venue (called forum selection clauses). Such provisions are often accompanied by provisions establishing which state's law governs the contract and whether the contract is subject to arbitration. These provisions are written to benefit the party that drafts the contract. Anyone signing a contract should be wary of these clauses. For instance, I have seen many contracts that involve local business, but mandate another state's law governs the contract or require litigation/arbitration be filed in another city, county, or state. These clauses are often enforceable and can be very difficult to overcome. If there are no such provisions in the contract, suit typically can be filed in any county where the breach occurred, where the contract was to be performed, or where the property/premises at issue are located.

Cases involving disputes over real property (purchase and lease) typically are filed in the county where the land/premises is located. Leases sometimes contain forum selection clauses that mandate suit be filed in a particular county. Again, it is important to be aware of such a clause when signing any contract or lease.

If the dispute involves a tort (such as negligence), suit may be filed either where the incident occurred or where the defendant in the suit resides. If more than one event gives rise to the suit (such as a case involving numerous vehicle collisions over more than one county during a lengthy police chase), then suit can be filed in any county where one of the accidents occurs. Likewise, if there are numerous defendants that reside in multiple counties, then suit may be filed in any county where one of the defendants resides. Once venue is established as to one defendant, it is usually valid for all defendants.

Where a suit is filed is often a complex decision for a lawyer to make. Sometimes it is mandated by contract, statute, or law. Other times several places are venue options, and lawyers have to analyze the benefits of competing counties for suit. As is often the case, there may be no simple answer to a simple question like "Why is this suit filed there?"