This week, we continue our discussion of 18.001 Affidavits by turning to what happens after both 18.001 Affidavits and proper Controverting Affidavits have been served.
Proper affidavits and controverting affidavits have been served. What next?
Congratulations! You have successfully made it through the obstacles in the preceding series of blogs, and you have properly controverted in a timely and statutorily compliant manner. The burning question then becomes – what happens next: which affidavits (if any) are now admissible?
Of the various appellate courts that have directly addressed admissibility of 18.001 affidavits and counteraffidavits, all agree that if a proper affidavit is served and no corresponding counteraffidavit is served, then the affidavit is admissible. This is good to know, but what happens when a proper counteraffidavit was also served? Oddly enough, not many appellate courts have directly addressed this issue.
Of the courts that have, the 14th Court of Appeals and the 4th Court of Appeals have upheld exclusion of both affidavits and counteraffidavits when both meet all of the respective requirements under 18.001. In other words, in these jurisdictions, if both sides meet their burdens, the most likely outcome is that the affidavits cancel each other out and the parties fall back on live expert testimony to establish or contest the reasonableness or necessity of services. However, neither the 14th Court of Appeals nor the 4th Court of Appeals specified whether admission of both proper affidavits and counteraffidavits would be an abuse of discretion.
The 2nd Court of Appeals in Fort Worth has been more clear. Specifically, in the 2nd Court of Appeals, when a proper affidavit and a proper counteraffidavit have been served, it is an abuse of discretion for a court to admit either at trial.
The 2nd Court of Appeals is also the only appellate court that has addressed what happens when a counteraffidavit is served but is found to be insufficient. In such a case, the 2nd Court of Appeals finds that it is not an abuse of the court’s discretion to admit the affidavit and counteraffidavit and let the jury decide which to believe.
Check back next blog as we discuss Factoring Companies and the 18.001 exception they have created.
Gunn v. McCoy, 485 S.W. 3d 75, 103 (Tex. App. – Houston [14th Dist.] 2016, pet. filed); City of Laredo v. Limon, No. 04-12-00616-CV, 2013 Tex. App. LEXIS 13644, 2013 WL 5948129, at 17 (Tex. App. – San Antonio Nov. 6, 2013, no pet.).
Hong v. Bennett, 209 S.W. 3d 795, 802 (Tex. App. – Ft. Worth 2006, no pet.).
Id. at 804.