Often one of the biggest disputes at trial relates to the value of services that a claimant seeks to recover from the opposing party.  At least for routine cases, the form and manner of proving the value of those services is made easier by statute, but when the value of the services is contested, things can get a little complicated.

Section 18.001 of the Texas Civil Practice and Remedies Code allows a claimant to prove up a claim for services rendered by an affidavit rather than by live testimony under certain circumstances.  A party that wishes to controvert those services, must serve a counter-affidavit that spells out the basis for controverting the claim and the affiant must be a person qualified to speak to the subject-matter.

The courts have grafted onto Section 18.001 a variety of additional rules and procedures.  In particular, the courts have recognized that a claimant may move to strike a counter-affidavit, and if that motion to strike is granted, that leaves the claimant with the only admissible evidence (in unchallenged affidavit form) at trial.  Parties defending against such circumstances have sought assistance from the courts of appeals by filing petitions for writ of mandamus to challenge the trial courts’ striking of the counter-affidavits.

The intermediate appellate courts have split on the question of whether mandamus relief is available.  Recently, in a high-profile case, the Dallas Court of Appeals, in a 2-1 decision held that the complaining party had an adequate remedy by ordinary appeal and denied mandamus relief.  Justice Schenck dissented in a lengthy opinion that calls into question many of the court-developed notions relating to Section 18.001 because those interpretations are not tethered to any actual language in Section 18.001, and the interpretations lead to potential denial of the constitutional right to a fair trial.  Amicus briefs were filed in the case by the Texas Association of Defense Counsel and the Texas Trial Lawyers Association, leading one to believe that this case is destined to be taken up to the Texas Supreme Court to ask for a definitive ruling that will clarify the law and resolve the split of authority between the intermediate appellate courts.

In re Parks, No. 05-19-00375-CV (Tex. App.–Dallas Feb. 18, 2020, original proceeding)

By Published On: February 20, 2020Categories: AppellateTags:


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Mike Northrup is a Shareholder and Section Head of the Cowles and Thompson Appellate Practice Group. He practices in both the trial and appellate courts in cases involving personal injury, insurance issues, employment law, commercial disputes, and zoning disputes. He also provides litigation support to attorneys in other sections of the firm. Mike served as a briefing attorney for former Chief Justice Thomas R. Phillips, Texas Supreme Court, 1988-89. He has taught as an adjunct professor at Hastings College of Law and SMU Dedman School of Law. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization.