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Jessica E. Saari Demand Letter

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Jessica E. Saari Demand Letter

  1. 1. Law Offices of Alice Black 2100 Main Street Friendly, New Washington 00065 (200) 267-7000  FAX 267-7001 www.ThomasLaw.com February 6, 2012 Mr. Terry Spears Inki Appliances Company 1001 Maple Drive Friendly, NW 00065 Dear Mr. Spears: Mrs. Tatum is an unsatisfied customer who recently purchased a defective microwave from your store on December 9, 2011. This letter is to notify you that she has recently retained the services of this office in an attempt to promptly resolve this matter. On December 19, 2011, Mrs. Tatum went back to your store with her receipt to return the defective microwave. She was told there was nothing you could do for her because she did not have a warranty, even though the microwave stopped working for no apparent reason. A warranty was not mentioned or offered to her at the time of sale. However, according to the New Washington Statue §50-102-314 this does not matter, “a warranty that the goods shall be merchantable is implied…if the seller is a merchant with respect to the goods of that kind.” Clearly, an implied warranty did exist between you and Mrs. Tatum. As a result of you failing to appease her, you breached the implied warranty. In a relevant case, Smith v. Appliance City, a New Washington supreme court decided that a seller has the following three options when there is a breach of an implied warranty: return the purchase price to the buyer, repair the merchandise, or replace it. Mrs. Tatum would like a refund in the amount of the full purchase price. Please mail a check for the requested payment amount to this office by March 5, 2012. If necessary contact this office immediately at (200) 267-7000 to make an alternate form of payment. If your payment is not received by this deadline to resolve this legal matter, I will be filing a claim against you in small claims court. Sincerely, Alice Black Attorney at Law AB/js
  2. 2. Law Offices of Alice Black 2100 Main Street Friendly, Texas 00065 (200) 267-7000 • FAX 267-7001 • www.ThomasLaw.com February 7, 2012 Mrs. Holly Dixon 1001 Maple Drive Friendly, TX 00065 Re: Probate of holographic will Dear Mrs. Dixon: On January 20, 2012, we discussed the matter of challenging the probate of Mr. Thomas Dixon’s holographic will. My legal opinion in this letter is for your benefit and use. After researching the Texas law as of the date of this letter, as based on the facts presented in the fact section of this letter, please contact me if you wish to move forward with your case. FACTS On January 16, 2012, Ms. Mary Cary submitted for probate a will signed by Mr. Dixon. One half of the will is handwritten by Mr. Dixon. The other half is typed by your next door neighbor, Mr. Edgar Mae. Two witnesses were not present when Mr. Dixon prepared this will and a self- proving affidavit is included. ANSWER Based on the facts stated above, you should challenge the probate of Mr. Dixon’s will. After interviewing Mr. Mae, he revealed on the record that Mr. Dixon was too weak to write all of his will. This information and the fact that the will is only one-half handwritten by Mr. Dixon, brings into question Mr. Dixon’s state of mind at the time he prepared the will. Also, since his will is one-half typed by Mr. Mae, and because there were not two witnesses present at the time of preparation, there is argument for the self-proving affidavit to be disregarded. EXPLANATION First on the matter of the included self-proving affidavit, one may think that the number of witnesses present does not matter because of the exception of Tex. Prob. Code. Ann. § 60. However, when applying the statute to Mr. Dixon’s will, because it is one-half typed, the argument can be made that this exception does not apply to Mr. Dixon’s will. The statute says, “Where the will is written wholly in the handwriting of the testator, the attestation of the subscribing witnesses may be dispensed with.” All of a holographic will must be handwritten by
  3. 3. Holly Dixon February 7, 2012 Page 2 the testator, Mr. Dixon, and his is not. Also, the statute says that Mr. Dixon needs to be, “… of sound mind; and that he was not revoked such instrument.” Mr. Mae’s deposition along with your own testimony of your husband’s physical state, due to his illness, puts into question Mr. Dixon’s state of mind at the time. Once the argument is made that the self-proving affidavit does not apply, statute Tex. Prob. Code. Ann. § 59 is the requirement his will needs to meet. According to this statute, “Every last will and testament…shall be in writing…, and shall, if not wholly in the handwriting of the testator, be attested by (2) or more credible witnesses….” Since one-half of the will is typed by Mr. Mae, two witnesses are needed to be present when the will was prepared. There were not two witnesses present; there was only one witness present, Mr. Mae. Clearly, it can be argued that Mr. Dixon’s will does not meet this statute. The facts in your case are similar to the case of Dean vs. Dickey. In this case the court decided that a typed will prepared with only one witness present was denied probate of the instrument. Therefore, when looking to the statutes and when comparing this case to yours, Mr. Dixon’s will can be denied probate after submitted by Ms. Mary Cary. I strongly recommend we move to challenge the probate of Mr. Dixon’s will. Please contact me soon and I can help you proceed with your case. Sincerely, Alice Black Attorney at Law AB/js
  4. 4. Law Offices of Alice Black 2100 Main Street Friendly, New Washington 00065 (200) 267-7000 • FAX 267-7001 • www.ThomasLaw.com February 7, 2012 Mr. Daniel Hope National Insurance Company 459 22nd Street Friendly, NW 00065 Re: Duty to defend insured under automobile insurance policies Dear Mr. Hope: The purpose of this letter is to inform you of the relevant cases, which range from 1995-2007, relating to National’s duty to defend the insured under its automobile policies. The following New Washington cases are summarized and listed below from most recent to oldest. In the case of Wrickles v. Washington Ins. Co., the court ruled that if the insurer fails to defend a claim against the insured, the insurer is liable for any judgment entered against the insured. Also, the insurer may be liable for any reasonable settlement entered into by the insured. In the case of Wilson v. Washington Ins. Co., the court ruled that if allegations in the complaint against the insured fall within the coverage of the policy; however, are excluded by any non- coverage provision in the policy the insurer is under a duty to defend the insured in the primary action. This duty is until a court in the same jurisdiction of the case finds the insurer to be relieved of the liability under the non-coverage provisions of the policy. In the case of Alison v. Lincoln Ins. Co., the court ruled that the duty to defend is when an injured party’s complaint against the insured contains facts that bring the case within the coverage of the policy. In the case of Jamison v. Lincoln Ins. Co., the court ruled that an insurance company may refuse to defend the insured only when allegations in the complaint are completely outside of the insurance policy coverage. Lastly, in the case of State Farm Ins. Co. v. Peterson, the court ruled that the obligation to defend the insured against liability claims exists if the promise to defend is found in the insuring agreement. In conclusion, this letter contains a list of relevant cases from New Washington state that summarize the information you requested concerning your duty to defend the insured under
  5. 5. Daniel Hope February 7, 2012 Page 2 automobile insurance policies. Please feel free to contact me at (200) 267-7000, if you have any further questions. Sincerely, Alice Black Attorney At Law AB/js