Voiding Contracts for Fraudulent Misrepresentation

Misrepresenting a good or service, in order to sell that good or service, is fraud.  In the case of Clay v. Brand, the Arkansas Supreme Court said that “misrepresentation of a material fact is actionable fraud.”  You cannot promise to sell someone a box of hammers, and sign a contract with them for “tools,” then send them a box of wrenches, and say “sorry, you signed a contract.”  If you promised hammers as the foundation for the contract, you must provide hammers.

Usually, in contract disputes, parties are not allowed to bring in external evidence (called “parol evidence” in legalese) of the terms of the contract.  That is, you usually cannot say, “yeah, I know the contract say x, but we really agreed to y, and here’s some evidence to show we really agreed to y.”  The primary rule is – if the contract states the terms of the agreement clearly, in black and white, then those are the terms of the agreement.

Fraudulent misrepresentation is something of an exception.  In the case of Sellers v. West-Ark Contruction Co., the Arkansas Supreme Court noted that parol evidence is usually off limits in contract cases, but said, “Parol evidence, however, is admissible to show fraudulent inducement to contract.”  That is, if the contract was based on fraud, you can prove the fraud to void the contract.

The party that wants to void a contract on the grounds of fraudulent misrepresentation has to prove the fraud to the satisfaction of the Court by a three-part test.  In the case of Croley v Baker, the Arkansas Supreme Court said, “In order to establish fraudulent misrepresentation, it must be shown by the party seeking rescission that the person making the representations knew them to be false, or else, not knowing, asserted them to be true;  that it was the first party’s intent to have the other party rely on them to its injury;  and that the representations were, in fact, relied on.”  That is, the party seeking to void a contract for fraudulent misrepresentation has to show: 1. the other party made material representations that he knew or should have known were false; 2. the party that made those representations intended for the other party to rely on them – that his purpose in making them was to induce the other party to sign a contract;  and 3. that the other party did in fact rely on those representations when they signed a contract.

If you think that this situation might have happened to you, and you want to determine whether or not you can void a contract that you signed on the basis of it, call the Law Offices of Watson & Watson for a consultation today.  Our firm has successfully litigated lawsuits in this specific field of law, we know what to look for, and how to handle them.  Our attorneys at one of our three offices would be happy to discuss your case with you.

Can You Go To Jail For Failing to Pay Child Support?

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Can You Go To Jail For Failing To Pay Child Support?

The State of Arkansas rigorously enforces child support obligations.  If a payor gets behind on payments, the Office of Child Support Enforcement (OCSE) will often garnish the payor’s wages.  This ensures that the payor meets his or her monthly obligation, and pays down any debt that has accumulated.  In some situations, however, garnishment is not possible.  A payee often has little recourse but to file a lawsuit to hold the payor in contempt of court.  In these lawsuits, jail time is indeed a possibility.

The Arkansas Supreme Court recently clarified the law on imprisonment for failure to pay child support.  We do not have debtor’s prison in Arkansas, but a court can sentence you to jail for contempt.  That is, a court cannot sentence you to jail for being unable to pay.  A court can sentence you to jail for refusing to pay.  Therefore the law requires courts to first assess a payor’s ability to pay.  If the court determines that the payor has the ability to pay child support, but refuses to, then the court can impose a sentence of jail time.

Take Action

If you are behind on child support for any reason, your should contact the OCSE and make sure they understand your reasons.  The competent professionals there will work with you and help you meet your obligations.  If you have been sued for unpaid child support, however, you should immediately contact an Arkansas family lawyer.  Family lawyers can help you prove that you were unable to pay child support at the time, or help you limit the damage if you were.  Watson & Watson, Attorneys at Law, has many years of experience in family and domestic law in the state of Arkansas, and will fight to help you get back on track.

Why Do You Need A Will?

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One of the most common duties of general practice attorneys in Newport AR, or any other place, is assisting clients with the preparation of wills and trusts.  These are legal instruments that allow a person to determine where their property will go upon their death.  To understand why you might need or want to devise a will or a trust for your property, it may be helpful to consider what would happen to your property if you passed without a will or a trust.

In Arkansas, if you pass away without a will or a trust, your assets will go to your nearest relatives according to the laws of “intestate succession.”  This means that, after your widow (if any) and creditors take a large portion, your assets and property (your “estate”) will pass in roughly the following manner:

  1. To your surviving children in equal shares. If one of your children passes away before you, and that child had children (your grandchildren), the share that would have gone to the deceased child passes to the grandchildren to divide equally.
  2. If there are no surviving children or descendants of children, your widow will take your entire estate.
  3. If there are no surviving children or descendants of children, and there is no widow, your parents will take your entire estate.
  4. If there are no surviving descendants, widows, or parents, your brothers and sisters (or their descendants) will take your entire estate.
  5. If there are no surviving descendants, widows, parents, or siblings or descendants of siblings, your grandparents, aunts and uncles, or their surviving descendants, will take your entire estate.
  6. If there are none of the above, your surviving great grandparents, great aunts, and great uncles, or their surviving descendants, will take the entire estate.
  7. If there are none of the above, but you have a surviving spouse who you were married to for less than three years (and did not include in a will), then that surviving spouse or her surviving descendants will take your entire estate.
  8. Finally, if none of the above exists, your entire estate will go to the county that you resided in at the time of death.

The laws of intestate succession were designed with general fairness in mind and do not take into consideration the deceased’s individual wishes.  For that, you need a will.  Moreover, if you acquire unique property after the creation of a will, and that property is not allocated according to that will or any other instrument (such as a trust), then that property will pass according to the laws of intestate succession.  Therefore, if you have specific ideas about how you would like to leave any or all of your property upon your death, call an experienced lawyer in Northeast Arkansas today for help planning your estate.

***DISCLAIMER*** The laws of intestate succession described above are written here casually for the purposes of this blog post only and should not be relied upon as a primary source.  As with any sensitive legal matter, you should seek the advice of a licensed attorney before making decisions about your estate.

What You Need To Know If You Have Been In A Car Wreck In Arkansas

Arkansas Personal Injury Law

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In the modern era of mass marketing, we have all become familiar with the clever and humorous mascots for insurance companies.  The Aflac duck, the Geico gecko, the deep-voiced gentleman from Allstate – these characters are as familiar as Mickey Mouse and Superman to American television viewers.  They present an image of insurance companies as caring, friendly entities that want nothing more than to help you in your time of need.  But if you have been in a car accident in Arkansas, you know that nothing could be further from the truth.

The first thing you need to know if you have been in a car accident in Arkansas is that the other party’s insurance company is going to view you, and treat you, as an enemy.  They are not there to help you.  They are there to save as much money as possible.  Therefore our advice is usually to refuse to give insurance companies recorded statements or to describe your injuries for them before speaking to an attorney.  Their intention is often to encourage you to say things like “I wasn’t really hurt” so that they can use those statements against you.  You are not obligated to answer their questions when they call.

The second thing you need to know if you have been in a car accident in Arkansas is that you have three years to make a claim, so there is no rush (Ark. Stat. Sec. 16-56-104).  Insurance companies generally want you to sign a release agreeing not to sue them as soon as possible.  They will often contact you immediately after the accident with offers of fast cash in exchange for your signature, and suggest that their offer will be taken off the table soon if you don’t agree.  You should call their bluff.  You have three long years from the date of the accident to make them pay, and therefore you should feel free to seek medical attention for your injuries without worrying about the insurance company losing patience.

Unfortunately personal injury is a complicated field of the law with different rules in each state.  Insurance companies are armed with intimate knowledge of these laws and are prepared to take advantage of that knowledge to limit the amount that they pay injured people to the greatest extent possible.  Therefore, if you are injured in a car wreck or in any other type of accident, your best course of action is almost always to hire a personal injury attorney with the skill and knowledge necessary to prevent insurance companies from taking advantage of you and to secure for you the full settlement that you deserve.  Even after your attorney’s fee is paid, the difference between what an insurance company will offer you up front and what an attorney can get for you is often extreme.

Watson & Watson, Attorneys at Law, have been practicing for 45 years and have some of the best rates anywhere in the state.  The typical attorney’s fee in the state of Arkansas is 33% of the total settlement for negotiated settlements, and 40% for cases that go into litigation.  Watson & Watson is a family firm with low overhead, and therefore offers fees of 25% for negotiated settlements, and 33% for cases that go into litigation.  What this means is that you will receive the same total settlement from Watson & Watson that you would receive from any skilled personal injury firm in the state, but you will get a larger share of it for yourself.  Therefore, if you have been injured in an accident that was not your fault, call Watson & Watson today for a free consultation.