April 3, 2023
Dear Folks:
I just couldn’t send this out on Saturday. It seems unseemly to send out error preservation stuff on April Fool’s Day.
Table of Contents
Absent a knowing and intelligent waiver of the right to court-appointed counsel, a defendant in a parental rights termination case can first complain about lack of court appointed counsel–including a complaint about allowing court appointed counsel to withdraw
An objection that an affidavit is conclusory can first be raised on appeal. Most courts hold that a complaint that an affidavit fails to show personal knowledge is a complaint that must be preserved in the trial court–but the issue is hopelessly muddled among the courts of appeals, with several courts having held both ways. Avoid this quagmire. If your opponent’s affidavit fails to show personal knowledge, object and get a ruling; conversely, make sure your affidavits specifically state they are based on personal knowledge and then show that knowledge
You have to get a ruling, and while implied rulings are possible (as this case shows), it is always better to get an express ruling
Sanctions
Your complaint must be timely, and with evidentiary objections that means you must get a running objection and object to subsequent similar evidence
Demolition
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Capacity
Attorney Fees
Constitution
Evidence
DWOP
Dismissal
Legal Sufficiency
Notice
Registry of Court (Release of Funds)
Post-Judgment Interest
Affidavit
Jury Charge
Expert Report
Blurbs
Absent a knowing and intelligent waiver of the right to court-appointed counsel, a defendant in a parental rights termination case can first complain about lack of court appointed counsel–including a complaint about allowing court appointed counsel to withdraw:
Counsel: “The Department argues that Mother waived her right to representation because she failed to communicate with her attorney despite this admonishment in the court’s original order appointing counsel:
YOUR FAILURE TO TIMELY CONTACT OR MAINTAIN PROPER CONTACT WITH THE APPOINTED ATTORNEY WILL BE CONSIDERED AS GOOD CAUSE TO ALLOW THE WITHDRAWAL OR DISCHARGE OF THE ATTORNEY AS YOUR APPOINTED ATTORNEY WITH NO FURTHER DUTY TO REPRESENT YOU IN THIS CASE.
We reject the Department’s [*8] argument that Mother waived her right to an attorney based on the admonishment contained in the order appointing her counsel. A parent’s waiver of the right to counsel must, at the very least, be knowing and intelligent…. There was no evidence presented at the hearing that Mother knowingly and intelligently waived the right to her court-appointed attorney. Moreover, the trial court made no findings to support a waiver. Even if the trial court found on the record that Mother’s failure to maintain contact with her attorney constituted good cause for withdrawal, section 107.016(2) explicitly contemplates a replacement attorney be appointed for an indigent parent. See § 107.016(2)(C) (appointed attorney continues to serve until relieved or replaced after finding of good cause).” In the Int. of M.H., No. 07-22-00349-CV, 2023 Tex. App. LEXIS 2110, at *7-8 (Tex. App.—Amarillo Mar. 30, 2023, no pet. h.)
An objection that an affidavit is conclusory can first be raised on appeal. Most courts hold that a complaint that an affidavit fails to show personal knowledge is a complaint that must be preserved in the trial court–but the issue is hopelessly muddled among the courts of appeals, with several courts having held both ways. Avoid this quagmire. If your opponent’s affidavit fails to show personal knowledge, object and get a ruling; conversely, make sure your affidavits specifically state they are based on personal knowledge and then show that knowledge:
Affidavit: “1776 first argues the declaration does not show that King had personal knowledge of the terms of the JOAs or the calculation of Marathon’s damages. While 1776 did not raise this argument below, we have noted that “case law from the Texas Supreme Court indicates no objection was required” to preserve an objection to a lack of personal knowledge. See Porterfield v. Deutsche Bank Nat’l Tr. Co., No. 04-20-00151-CV, 2021 Tex. App. LEXIS 8653, 2021 WL 4976560, at *11 (Tex. App.—San Antonio Oct. 27, 2021, pet. denied) (mem. op. on reh’g) (citing Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 666 (Tex. 2010)). This argument is therefore preserved for our review. However, “[a]n affiant’s assertion of ‘personal knowledge may be based on a review of corporate business records.'” Id. (quoting Botello v. MidFirst Bank, No. 05-19-00461-CV, 2020 Tex. App. LEXIS 4515, 2020 WL 3263434, at *3 (Tex. App.—Dallas June 17, 2020, no pet.) (mem. op.)). King’s declaration stated that during the relevant time, he was Marathon’s Service Manager for Joint Interest Accounting Services and his duties included “overseeing the collection of joint interest receivables, which are the joint interest [*30] billings (‘JIBs’) that Marathon sends to working interest owners in units that Marathon operates.” King further stated he was “familiar with the manner in which Marathon maintains these” records and that based on his review of those records, he was “knowledgeable about the amounts that 1776 owes Marathon in unpaid costs and expenses in several wells that Marathon operates,” including the wells drilled under the Culberson Hughes and Longhorn JOAs. These assertions were sufficient to show King’s personal knowledge. See id.” 1776 Energy Partners, LLC v. Marathon Oil EF, LLC, No. 04-20-00304-CV, 2023 Tex. App. LEXIS 2002, at *29-30 (Tex. App.—San Antonio Mar. 29, 2023, no pet. h.)
Affidavit: “Next, 1776 contends that King’s declaration was conclusory. A conclusory affidavit expresses an inference or draws a legal conclusion without providing the underlying supporting facts…. Because a conclusory affidavit is legally no evidence, this complaint asserts a defect in substance that can be raised for the first time on appeal.” 1776 Energy Partners, LLC v. Marathon Oil EF, LLC, No. 04-20-00304-CV, 2023 Tex. App. LEXIS 2002, at *30 (Tex. App.—San Antonio Mar. 29, 2023, no pet. h.)
You have to get a ruling, and while implied rulings are possible (as this case shows), it is always better to get an express ruling:
Sanctions: “Before imposing sanctions under Chapter 10, the trial court must hold an evidentiary hearing…..Blackburne had filed a “Second Amended Motion for Final Summary Judgment and Motion for Sanctions,” and a week before the scheduled telephonic hearing on the motion, the Arthur Parties filed a response in which they objected that the “hearing is not an evidentiary hearing” and so would not afford them, and their attorneys, due process….Because neither the record nor the parties’ briefs indicate that an evidentiary hearing was held, we presume that the hearing was non-evidentiary….And by failing to hold an evidentiary hearing, the trial court impliedly [*26] overruled the Arthur Parties’ objection. See Tex. R. App. P. 33.1(a)(1). But the Arthur Parties are correct: the trial court abused its discretion by sanctioning the Arthur Parties and their counsel over the preserved objection that the scheduled hearing was non-evidentiary.” Arthur v. Blackburne & Brown Mortg. Fund I, No. 14-21-00396-CV, 2023 Tex. App. LEXIS 2079, at *25-26 (Tex. App.—Houston [14th Dist.] Mar. 30, 2023, no pet. h.)
Your complaint must be timely, and with evidentiary objections that means you must get a running objection and object to subsequent similar evidence:
Demolition: “Moreover, Apex’s appeal of the demolition lien came too late. A party aggrieved by a municipality’s order under section 214.001 “may file in district court a verified petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality.” [*14] Tex. Loc. Gov’t Code § 214.0012(a). The petition must be filed “within 30 calendar days after the respective dates a copy of the final decision of the municipality is personally delivered to them, mailed to them by first class mail with certified return receipt requested, or delivered to them by the United States Postal Service using signature confirmation service,. . .” Id. If no petition is filed within that time, the decision becomes final on expiration of the “30 calendar day period.” Id. The record shows all required notices were mailed to Apex in 2011 in accordance with the statute. Further, Apex’s president, Al Benser, conceded at trial that he was aware the demolition occurred by 2013 or 2014 and did not appeal the demolition. Apex filed its counterclaim challenging the demolition in 2020, which is more than thirty days after either the date the notices were mailed to Apex or the date Apex contends it acquired actual knowledge of the demolition. Either way, the counterclaim was filed years after the decision became final. As a result, Apex’s challenge to the demolition was waived. We overrule Apex’s third issue.” Benser v. Dall. Cty., No. 05-21-00725-CV, 2023 Tex. App. LEXIS 1995, at *13-14 (Tex. App.—Dallas Mar. 28, 2023, no pet. h.)
All for now. Y’all have a great week.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com