February 14, 2020
Dear All:
I did not purposely run a day late just to invade Valentine’s Day. Having done so, consider this my bouquet to you all.
Table of Contents
Your complaint must be sufficiently specific to make the trial court [or agency, in an administrative matter] aware of the issue
Attorney’s Fees
Settlement Agreement
Some complaints may first be raised on appeal, like complaints about substantive defects in an opinion, for example–but a hearsay objection is not a complaint about substance, and a complaint about an affiant’s statement about his own state of mind is not a substantive complaint about the conclusory nature of an affidavit.
Affidavit
The Blurbs
Your complaint must be sufficiently specific to make the trial court [or agency, in an administrative matter] aware of the issue:
Attorney’s Fees: “With respect to this line of testimony, the only objection Nath raised addressed the foundation for Mizell’s opinion: ‘Objection, Your Honor. Lack of foundation on the part of this witness with regard to what appellate fees may or may not be with regard to any matter or this mater. There’s not been a proper foundation with regard to this witness.’ This objection was not sufficient to make the trial court aware of the issue Nath now raises on appeal, i.e., whether appellate attorney’s fees were outside the scope of the Hospital’s pleadings. See Tex. R. App. P. 33.1(a).” Nath v. Tex. Children’s Hosp., Nos. 14-19-00967-CV, 14-20-00231-CV, 2021 Tex. App. LEXIS 992, at *34 (Tex. App.—Houston [14th Dist.] Feb. 9, 2021)
Settlement Agreement: “The Commission also claims that “[r]egardless, Vergo waived its complaint by failing to adequately state it in its motion for rehearing.” “The motion for rehearing is a statutory prerequisite to an appeal in a contested case and must be sufficiently definite to notify the agency of the error claimed so that the agency can either correct or prepare to defend the error.” Scally v. Texas State Bd. of Med. Exam’rs, 351 S.W.3d 434, 444-45 (Tex. App.—Austin 2011, pet. denied) (internal citations omitted); see Tex. Gov’t Code § 2001.145 (providing that “[a] timely motion for rehearing is a prerequisite to an appeal in a contested case”). “The standard is one of fair notice” and does not require “a briefing of the law or facts.” Scally, 351 S.W.3d at 445. The Commission asserts that Vergo did not mention in its rehearing motion “the legal basis that Vergo [*16] now raises: that the ALJ had [a] ‘ministerial duty to enforce’ the Rule 11 agreement to dismiss the case.” But Vergo’s rehearing motion had a section titled “Denial of Settlement Agreement” and expressly stated that “the parties entered into a Rule 11 Agreement settling this case”; “the [ALJ] refused to enter the agreement”; the parties were “forced” “to utilize their resources trying this case” and “to attend a three-day hearing”; and “the ALJ wrongfully denied the settlement agreement.” We conclude that Vergo’s rehearing motion met the standard of fair notice on the legal issue of whether the ALJ should have enforced the Rule 11 Agreement.” Vergo Patio Gardens, Inc. v. R.R. Comm’n of Tex., No. 03-19-00070-CV, 2021 Tex. App. LEXIS 1017, at *15-16 (Tex. App.—Austin Feb. 10, 2021)
Some complaints may first be raised on appeal, like complaints about substantive defects in an opinion, for example–but a hearsay objection is not a complaint about substance, and a complaint about an affiant’s statement about his own state of mind is not a substantive complaint about the conclusory nature of an affidavit.
Affidavit: “To rebut the intent element of 361 Holdings’ takings claim, the Port Authority offered the affidavits of Strawbridge and its director of engineering, David L. Krams. By their first issue, 361 Holdings contend that these affidavits (1) contain hearsay, (2) constitute unqualified expert opinion testimony that is conclusory in nature, and (3) are legally insufficient because they are based on the affiants’ “beliefs” rather than personal knowledge. . . .The Port Authority [*7] responds that 361 Holdings did not preserve this issue because they failed to obtain a ruling from the trial court on their objections or object to the trial court’s failure to rule. See TEX. R. APP. P. 33.1. 361 Holdings reply that their objections go to the substance of the affidavits and therefore may be raised for the first time on appeal. Objections to the form of an affidavit must be preserved in the trial court; objections to the substance of an affidavit may be raised for the first time on appeal. . . . A hearsay objection is an objection to the form of the affidavit. . . . As 361 Holdings implicitly acknowledge, there is no record of the trial court ruling on their objections. Accordingly, they waived their hearsay objection, and we overrule this sub-issue. . . .”
“An objection that an expert’s affidavit is conclusory goes to the substance of the affidavit and therefore may be raised for the first time on appeal. . . . 361 Holdings argue that even though “Krams and Strawbridge only testified as fact witnesses in their respective affidavits[,] . . . they purported to offer opinions regarding the migration of dredge waste onto other properties.” . . . We cannot find an opinion in this testimony [of Krams], and 361 Holdings have not pointed us to any specific statement or explained how such statement constitutes an expert opinion. Krams’s testimony can be summarized by one sentence: [*11] “I have no personal knowledge of migration of dredge materials from the Good Hope DMPA property to any other adjacent property.” This evidence was offered to rebut 361 Holdings’ allegation that the Port Authority was substantially certain that placing dredge spoils at the Good Hope DMPA would damage the Exxon Tracts. . . . A witness’s testimony about his own intention or state of mind, as opposed to another’s state of mind, is not opinion testimony.
“361 Holdings also complain that Krams’s statement that he “believed that the placement of the dredge material posed no threat of contamination” was legally insufficient because it was not based on personal knowledge. Seizing on the word “believed,” appellants cite Kerlin v. Aria for the proposition that “[a]n affiant’s belief about the facts is legally insufficient.” 274 S.W.3d 666, 668 (Tex. 2008) (citing Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)). Again, we disagree with 361 Holdings’ characterization of Krams’s testimony. The affiant in Kerlin was testifying about events that occurred in 1847 and therefore could not satisfy the personal knowledge requirement of Texas Rule of Civil Procedure 166a(f). Id. (“An affidavit showing no basis for personal knowledge is legally insufficient.”). Because Krams had personal knowledge. . . . [*12] about his own subjective beliefs, we overrule 361 Holdings’ sub-issue.” Port of Corpus Christi, LP v. Port of Corpus Christi Auth., No. 13-19-00304-CV, 2021 Tex. App. LEXIS 1120, at *11-12 (Tex. App.—Corpus Christi Feb. 11, 2021)
All for now. Off to make some ice cream for my bride.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com