Verbal Lease Agreement

Yesterday, I made an appointment to go speak with my "friend's" attorney. I kept the appointment. He acknowledged that my guitar was somewhere on the premises of the the law office. He presented me with a three-page document which would waive my rights to claim any damages. (He called this agreement a "mutual walk-away".)
Long story, short-- I politely refused to sign the waiver, whereupon he told me that my guitar would not be returned to me, unless I signed.
I countered by telling him that he had no right to deprive me of my property and that I would not leave his office without it. At this point, he said that if I did not sign the waiver then he would file a claim with the court and call the police to have me forceably removed. My response: "Where would you like me to wait?"
I (very peacably) had a seat in the reception area. He then called security from the receptionist's desk, at which point a couple other people (attorneys, I assume) came out to see if there was a problem. I took this opportunity to make my case in front of his peers. Speaking at a reasonable volume (not yelling), I told him that if he could show me where he has the right to hold my property then I would leave. I reiterrated variations of this (calmly, while sitting). He, however, refused to answer my questions saying that he was done talking to me.
I was then escorted off the premises by a sweet, old security guard lady.
Quite an exciting day!

The thot plickens (a variation of the plot thickens). Evidentally you are rather enjoying this. In any event, the guitar is now in the hands of a third party, which is good.

I wrote my last post in a hurry-- I had to see the Democratic debate-- so I probably left out a lot.

One thing I have been wondering...
I recorded my phone call with my "friend's" lawyer before I went in, this morning, and he said some things that I think may incriminate him.
Texas law allows "one party consent" for recording phone calls, so I know I'm good, there. Unfortunately, (I had never used this function of my cell phone, before) it only recorded his voice... not mine.
Does anyone know if this makes a difference with regard to its admissability as evidence should the case go to court?
For that matter, I wonder if it is a legal recording since it only picked up his voice.

A claim for WHAT? What kind of claim is he threatening to file?

Did he give you a copy of the proposed three page waiver so you could consult with an attorney?

I did ask him if I could take a copy of the waiver, but he said no. (I forgot about what you told me before--a few posts back... damn.)

He said he is going to file a claim for breach of contract and for his attorney's fees.

I just realized...
Re: the cell phone recording-- The only thing it proves is that he is denying me possession of my property. But that was even more clearly demonstrated, today, when he had me escorted out of the building. There were plenty of witnesses.

Wow, this is an exciting thread - seriously.

The latest--

This morning, I decided to call my "friend's" attorney's boss to inform him that his employee is illegally holding my property in his office building, hoping that his boss would allow me to come get my stuff. The receptionist told me that he was out to lunch and to call back later.

Apparently, the receptionist informed my "friend's" attorney that I had called, because I soon got a call from him--furious that I tried to contact his boss-- informing me that he was filing for a restraining order against me-- that I was not allowed to call or come by his office, and that I was not allowed to have any communication with his client (my "friend").

Then, not even five minutes later, he called back and left a voice message telling me that he was going to leave my property "downstairs" (whatever that means)-- for me to come and pick up, whether he heard back from me, or not.

I then tried, frantically, to get in touch with an attorney who could advise me on the situation-- but with no luck. I didn't know what to do. Did he suddenly have a change of heart or come to his senses? Or was he setting me up to violate a restraining order?

I decided to go to the nearest police station, but they were not much help. The officer I spoke with said that I could not file a criminal complaint because this was not a criminal case. He referred me to the constable's office. I went to the constable's office, explained the situation, and was given a list of phone numbers.

So, that's about it. Now, I just have to figure out what my next move should be. Any ideas?

No ideas, but reading along, engrossed.

If there is a restraining order filed against you, wouldn't you have to be officially informed of that? (I don't know the answer to that question.)

At this point, all you have is this lying lawyer's word that he was going to file a restraining order against you.

I don't know. It makes sense that I would have to be served with papers or somehow informed by a government official, but I didn't feel like it was worth the risk. I don't know the law that well... I sure didn't want to walk into a trap and end up in handcuffs. I wouldn't put it past him to try something like that. He's already shown himself to be a sheisty bastard.

I can't figure out why he would suddenly change his mind like that. I mean-- just yesterday, I was right there in his office and he refused to return my property to me... He refused to return it to me, again, when we spoke on the phone today-- then, five minutes later he's leaving me a message to come and pick it up! He's acting crazy. All I know for sure is that I can't trust a word he says.

If there was a restraining order you'd know about it. Someone would be coming to your residence or place of work and handing a copy of it to you. (IOW, you would be "served".)

Can't explain the sudden change on the guitar. Maybe he just decided that this was becoming more of a hassle than he wished to be involved in.

He probably realized it was more hassle than necessary and that he had overstepped - see questionable ethics per Debra.

He also, I don't imagine, can't as an officer/ representative of the court, take out a restraining order and then invite you to his premises. Can you imagine the chaos in courts across the country if women/ neighbors and everyone involved in such a dispute could take out a restraining order and then invite their "prey" to their premises a few minutes later, before they are notified of the restraining order? Yikes!

Meanwhile, your guitar is somewhere downstairs, no longer in his care or the care of his client. I imagine Debra will next tell you that they will be responsible for its loss or damages, and provide the statutory backing for that claim. Reasonable care has to be provided when in posession of someone elses property. They can't just leave it somewhere out of their control, and they have to tell you where it is.

Geesh. I wouldn't want to hire this guy.

I assumed this

was what precipitated the change in heart re: the guitar. (He knew he didn't have a leg to stand on and didn't want you talking to his boss about it.)

I'm sure you guys are right. I had not been officially informed of any restraining order, and in hindsight I can see that it was probably just a bluff, anyway. But he was very stern in his warnings to me not to come to his office-- informing me of all the various legal consequences I would face should I decide to come near his office. When he called back-- to me, it sounded like a dare... I mean, he had to call security on me the day before.


[confession time: It is true that I was worried about walking into a "trap", but I also knew that he may have just been trying to un-involve himself in this case (although his immediate 180 makes me doubt that). But if that really was his intention, I admit I was kind of glad that he had just given me good reason NOT to come get my property, because as long as he is holding it "hostage" he is committing a crime against me, and I want (very much) to hold him accountable for that crime. I am not interested in letting him off the hook. Please, you guys, don't come back at me saying how mean I am-- I'm not. I swear, if you had been in my shoes this past week I know most of you would understand. I've been made to feel like a stupid criminal, when in fact, HE is the stupid criminal.]

Echi--

Standing up to posturing bullies is always a laudable effort. Good that you have then energy and the enthusiasm for this particular windmill.

I don't know what grounds he would have to get a restraining order. He obviously doesn't want you to talk to his boss about his unethical conduct. I haven't been able to locate the Texas statutory code on disorderly conduct restraining orders--perhaps I'm looking in the wrong chapters. Can anyone else find it?

If you are served with a "temporary" restraining order, you must obey it until you can have it legally set aside. However, you will be given a copy of his application for a restraining order setting forth the grounds that he relied on and you will be given an opportunity to have a hearing on the matter and to refute his grounds. He will have the burden to prove that he's entitled to have a restraining order.

He did, however, have you escorted out of the building by a security guard when you refused to leave without your property. He has told you that you are not allowed to come to his office. Accordingly, if you show up when you KNOW your license or privilege to be there has been revoked, you could possibly be arrested for criminal trespass.

He also told you not to call or come to his office. Perhaps you could send a friend to go to the downstairs area of his office building to look for your property? If that's not feasible, you may have no other choice than to send a politely worded letter [with a copy to his boss and possibly with a copy to the state bar association--grievance committee] that seeks clarification of the arrangements for the return of your property. Perhaps could word it something like this:

* * *

"On the behalf of your client, [name], you are holding my personal property in violation of statutory chapter on landlord liens and in violation of the penal code, theft of property. On [date], I attempted to make arrangements with you to have my property restored to my possession. In your endeavor to bully and intimidate me, you laughed at me and insulted my intelligence. You made false statements of fact and law when you said my security deposit was nonrefundable. You also refused to restore my property except in exchange for my signature on a three page waiver of claims. Despite your intimidation tactics, I will not agree to sign a waiver of claims in order to get my personal property back.

"You would not give me a copy of the proposed waiver upon request so that I could take it to another attorney for a consultation. When I indicated that I would sit in the reception area until you returned my property, you instructed the building security officer escort me out of the building.

"On [date], I endeavored to talk to your boss regarding your unlawful appropriation of my property and your refusal to return my property unless I signed a waiver of claims. I was informed that your boss was out to lunch and to call back later. Soon thereafter, you called me. You were furious that I had attempted to discuss the situation with your boss. Again, you engaged in intimidation tactics. You threatened to obtain a restraining order against me and you told me never to call or come to your office ever again.

"A few minutes after this irate call, you called again and left a voice mail message instructing me that I could pick up my property "downstairs." I don't know what you mean by "downstairs." Inasmuch as you previously told me never to come to your office again, I am afraid that you are trying to set me up in order to have me arrested for trespassing if I show up at your building and start looking around at some undisclosed location "downstairs" in search for my property.

"Accordingly, I request that you provide me with the arrangements, in writing, for the safe return of my property to my possession."

* * *

You should consider documenting everything that has happened in orderly fashion, making copies of all recordings, and filing a complaint of professional misconduct with the state bar association. This guy is abusive and unethical. He should be held accountable.

The police officer misinformed you. Wrongful conduct can be BOTH a civil wrong AND a criminal wrong. What would he say if you wanted to file a criminal complaint for murder? "Hey man, cannot do . . . that's a civil matter. You'll have to file a wrongful death claim in civil court."

Reread the penal statute on theft. Your "friend" unlawfully appropriated your property with intent to deprive you of your property. Unlawful means without your effective consent. A deprivation can occur in several ways. One way to deprive you of your property is to refuse to restore your property to your possession unless she receives a reward or compensation (meaning, something of value). All elements of the crime are present. It doesn't matter that you refused to fall prey to the extortion attempt. The criminal act doesn't hinge upon the gullibility of the intended victim. The crime was complete when she seized your property, when she knew you didn't consent to her appropriation of your property and that you wanted your property back, and when she refused to restore the property to your possession unless you paid her $225. Her unlawful appropriation and her intent to deprive can be proven beyond a reasonable doubt. IT'S A CRIME. When her extortion proved unsuccessful, she decided to deprive you of your property by use of another means. She intended to sell it on eBay and thus deprive you of your property permanently. You have her voice mail message that proves her criminal intent. Thus, she can be convicted of theft of property and the state can plead the means she used in the alternative.

She doesn't have an "advice of counsel" defense because she was supposed to seek that advice BEFORE she engaged in the conduct. She didn't seek advice of counsel until AFTER her crime was already complete. You also have proof that her lawyer was an accomplice to her wrongful conduct. He also refused to restore your property unless you rewarded his client by signing a waiver of claims. You know your claims against her are worth several hundred dollars.

The fact that her conduct is also a civil wrong doesn't relieve law enforcement authorities of their duty to enforce the criminal laws of the State of Texas.

Look at the First Amendment to the U.S. Constitution. It's applicable to the States via the Fourteenth Amendment. You have a RIGHT secured by the First Amendment to petition the government for redress of grievances. The officer's refusal to take your complaint of theft because, in his opinion, this is a civil matter, violates your right secured by the First Amendment. He is required to take your complaint, to investigate your complaint, and send your complaint and his investigative report to the prosecutor's office. It's up to the prosecutor whether he/she will prosecute the offender. And, if the prosecutor refuses to prosecute, he/she ought to have a valid reason for his/her selective enforcement of the provisions of the criminal code.

This particular bully holds a law license. Unfortunately, he doesn't use his license to honorably practice the law, he uses it as a license to bully and intimidate. He needs to re-evaluate his tactics. Having to defend against a state bar complaint might be the medicine he needs.

My suggestion was that you should do what is right regarding the money, get your guitar back, forget about your ex-friend and move on with life. But this lawyer, if your description of the events of the last few days is accurate is, in non-legal terms, a pr*ck, and if you have the stamina, nail his butt to the wall.
You are very fortunate to have some fine pro-bono legal advice here.