One should always be careful of falling victim to using and reusing forms because it may come back to bite you.  Many drafters of affidavits start out by having the affiant state something like, "I have personal knowledge of the facts set forth below."  This language by itself may not be sufficient to give anything contained in the affidavit weight, as is demonstrated by the opinion in Vince Poscente International, Inc. v. Compass Bank, issued by the Dallas Court of Appeals.

In that case, Compass Bank obtained a summary judgment on a sworn account under a personal guarantee agreement.  Compass supported its motion for summary judgment with an affidavit of Paula Shaw.  In the affidavit, Shaw stated she had personal knowledge of the facts.  She also stated that she was custodian of records at Compass.  She testified that Compass was the owner and holder of the note in question and that the defendants personally guaranteed the debt and then defaulted on paying the note.

On appeal, the defendants challenged the affidavit as conclusory because Shaw had not shown that she was employed by Compass, what her job title was or explain the basis for her personal knowledge.  In analyzing the complaint, the court of appeals noted that Shaw did not show how she came to have knowledge by showing that she was employed by Compass, what her job position and responsibilities were and how those duties gave her personal knowledge.  Because of those omissions, the court determined that the affidavit was conclusory and amounted to no evidence.  Therefore, the court reversed the summary judgment.  The court’s opinion may be found here.

Note:  If Shaw had merely proven up the records as business records, her affidavit might have been sufficient.  But here, she went further to attest to who owned and held the note, to the default on the note, and to acceleration of the note.  Nothing in the affidavit shows how she knew any of those substantive facts, therefore more was needed.

In the heat of the rush to get a mandamus filed with the court of appeals, it’s easy to overlook basic mandamus requirements.  That appears to be what happened in In re Moffitt, a mandamus proceeding filed in the Amarillo Court of Appeals.

Mr. Moffitt sought a mandamus to compel the Hutchinson County District Judge and Court Coordinator to issue a bench warrant and to hold a telephonic conference for final hearings.  The court of appeals first noted that its mandamus jurisdiction was limited to writs necessary to enforce its jurisdiction and writs against specified district or county court judges.  The court of appeals concluded that it lacked jurisdiction to issue mandamus against the court coordinator because the coordinator was not a judge and Mr. Moffitt had not indicated that mandamus was necessary to protect the court’s jurisdiction over a pending appeal.

Turning to the remaining target of the mandamus–the district judge–the court of appeals pointed out that Mr. Moffitt had not attached a copy of the document that he was complaining of, which is required by Appellate Rule 52.3(k)(1)(A).  Additionally, on the merits, the court concluded that the failure to finalize a divorce proceeding within a 5- to 6-month period was not unreasonable.  The court therefore denied the mandamas as it pertained to the district court.

The court’s opinion may be found here.

The El Paso Court of Appeals recently dismissed an appeal because the appellant failed to comply with a trial court’s post-judgment orders.  Here, a final judgment was entered against the appellant and the appellant did not pay the judgment or file a supersedeas bond.  The appellee sought post-judgment discovery.  The appellant failed to answer the discovery resulting in two successive trial court orders both compelling discovery and awarding sanctions against the appellant.  After the appellant failed to comply with the second order, the appellee filed a motion to dismiss the appeal.  The court of appeals granted the motion citing TRAP 42.3(b), which authorizes an appellate court to dismiss an appeal for failure to comply with a court order, and dismissed the appeal.  The court’s opinion in Byrnes v. Ketterman can be found at this link.

The Dallas Bar Association Appellate Law Section will be hosting its monthly luncheon at the Belo Mansion on Thursday, February 21st at noon.  Jerry Bullard from Adams, Lynch & Loftin, P.C. will present  "2013 Legislative Preview," which will give us a look at topics of interest to the appellate practitioner that may be taken up by this year’s Texas legislature.  One hour of CLE is available. 

The Dallas Court of Appeals reaffirmed the requirement that a claim be presented to the opposing party in order to recover attorney’s fees under Chapter 38 of the Civil Practice and Remedies Code.  Here, the party seeking fees argued that the offers exchanged at mediation constituted presentment for purposes of CPRC Section 38.002.  The Court rejected the argument holding that the evidence of mediation did not prove that "prior to trial, [the defendant] had the opportunity, by taking specific action, to avoid paying attorney’s fees."  The Court further stated that there was no evidence of a specific demand demonstrating the amount owing.  Finally, the Court rejected the argument that the trial court should have reopened the evidence on attorney’s fees because the party failed to show it was entitled to fees by failing to prove presentment.  Accordingly, the Court affirmed the trial court’s refusal to award attorney’s fees.  The Court’s opinion in Helping Hands Home Care, Inc. v. Home Health of Tarrant County, Inc. can be found at this link.

The Dallas Bar Association’s Appellate Law Section will have its final meeting of the year on Thursday, December 20, 2012, at noon at  the Belo Mansion.  The speaker will be Dallas Court of Appeals Justice Doug Lang, who will speak on "Civility: Ethics, Professionalism, or Both?"  One hour of CLE credit is available.

The Dallas Court of Appeals recently confirmed that attorney’s fees are not economic damages.  In this case, a party objected to testimony regarding attorney’s fees because the opposing party failed to include the attorney’s fees information in its response to a TRCP194.2(d) request to disclosure the amount and method of calculating economic damages.  The court of appeals stated that "the calculation of attorney’s fees incurred [ ] is not an economic damage . . . ."  Thus, it is clear that attorney’s fees are not damages except in rare and narrow circumstances.  The court of appeals also reiterated that a contractual provision regarding attorney’s fees controls over statutory requirements, such as Chapter 38.  The court’s opinion in Jespersen v. Sweetwater Ranch Apartments can be found here.

This case is interesting in light of the current dispute concerning whether attorney’s fees must be superseded on appeal.  The Texas Supreme Court recently heard oral argument on November 7th in the Nalle Plastics case in which the issue is squarely presented.  In a nutshell, the issue in Nalle Plastics is whether the phrase "compensatory damages" includes attorney’s fees. 

There has been much focus on the nature of attorney’s fees (compensatory vs. penal) in an effort to determine whether attorney’s fees are compensatory.  But there is a simpler answer.  We are all familiar with the variety of damages under Texas law, e.g., actual, direct, consequential, special, exemplary, etc.  The question is not whether attorney’s fees are "compensatory" but whether they are damages at all.  If they are not damages, they can’t be compensatory damages, as compensatory damages are merely a subset of damages generally.  So unless a party seeks attorney’s fees as damages, they are not compensatory damages.

Justice Bob Fillmore will speak to the Collin County Bar Association at noon on Friday, October 19th at the Center for American and International Law in Plano.  Justice Fillmore will speak on "Practice Tips in the Fifth Court of Appeals."  Lunch is provided free to members who RSVP to admin@collincountybar.com.

Justice Fillmore was appointed by Governor Rick Perry to the Fifth Court of Appeals at Dallas in 2009, and was elected in 2010, to an unexpired term and is running for re-election in 2012.  He is a Visiting Professor of Law at the  Southern Methodist University Dedman School of Law, teaching in the area of regulatory law and policy.  Earlier in his career, he was an adjunct faculty member of the University of Kansas School of Law, teaching a course on trial advocacy.  He has two grown daughters and resides in Plano with his wife Judy.

The Dallas Bar Association Appellate Law Section will have its regular monthly meeting on Thursday, October 18th, 2012, at noon at the Belo Mansion.  The speaker this month is Stacy Obenhaus of the Gardere law firm. Stacy will be speaking on "The Role of the U.S. Courts of Appeals in Shielding the Executive Branch from Civil Liability for Torture."  One hour of CLE credit is available.