Last time we began discussing strategies to implement if you find that you've missed the deadline to serve controverting affidavits on opposing counsel. Now, we'll continue that discussion by considering alternative grounds for challenging the opposing party's initial affidavit.
Controverting aside, you should always evaluate 18.001 affidavits for potential challenges to their sufficiency and get affidavits thrown out if you can. Use your "eagle eyes" to review them thoroughly and ensure they comply with statutory requirements. Admittedly, compliance with the statutory requirements for controverting affidavits is a much higher burden than for the original affidavits, but you should still use every tool in your arsenal!
Timing: If the affidavits are late (delivered less than 30 days before trial) object and/or move to strike immediately. Failure to timely object could result in waiver.
Itemized: Consider whether the affidavits include an itemized statement of the service and charge. If it does not, object and/or move to strike.
Service: If the affidavits were not served, then they are not in compliance with the statute and you should object and move to strike. For example, in Nye v. Buntin, the affidavits were filed with the court on time, but were served on opposing counsel after the deadline, and were thus excluded. Also, the affidavits must be served on each other party to the case; therefore, if the original affidavit is served on one defendant but not the others in a multi-defendant case, the statutory requirements have not been met.
Execution: Consider whether the affidavits were executed by a proper person. If the affidavits are not made by (1) the person who provided the service or (2) the records custodian of the service provider, then the statutory requirements have not been met. However, be careful with this argument. At least one Court of Appeals has recognized an exception here for affidavits executed by custodians at factoring companies (more to come on this topic in a few weeks).
Language: Consider whether the affidavits contain proper language averring to the reasonableness and the necessity of the services at the time and place provided. Section 18.002 provides sample wording for the original affidavits, but the appellate courts have been clear that use of this exact wording is not required.
Sanctions: Are you dealing with a Plaintiff or Plaintiff's attorney against whom discovery sanctions may be appropriate? Consider whether to ask the Court to strike the Plaintiff's 18.001 affidavit as a sanction for discovery abuses. At least one appellate court has upheld such an action. Keep in mind, however, that success on such a request will be depend on the nature and severity of the discovery abuse for which sanction is sought, and the Court may only impose such a sanction if it determines the sanction is just.
Other considerations: Are the affidavits signed? Are there mistakes in the math used in the itemized statement? Do the affidavits accurately reflect paid or incurred amounts? Perhaps you are seeing some weird issue in an affidavit that we have not even thought to address here?
Check back with us next blog as we continue discussing strategies if you find yourself without proper and timely controverting affidavits
Nye v. Buntin, No. 03-05-00214-CV, 2006 Tex. App. LEXIS 7067, at *4 (Tex. App.-Austin 2006).
Tex. Civ. Prac. & Rem. Code § 18.001(e).
Katy Springs & Mfg. v. Favalora, 476 S.W. 3d 579, 604 (Tex. App. - Houston [14th Dist.] 2015, pet. denied).
Adams v. Allstate Cnty. Mut. Ins. Co., 199 S.W.3d 509, 511 (Tex. App.-Houston [1st Dist.] 2006).
Petroleum Solutions, Inc. v. Head, 454 S.W. 3d 482, 489 (Tex. 2014).