New Rule 902(10)(c) - Affidavit for Medical Expenses

Yesterday (March 1) new Rule 902(10(c) of the Texas Rules of Evidence came into effect. This rule sets out an additional hearsay exception by allowing for proof of medical services by affidavit.

The new rule reads:

(c) Medical expenses affidavit. A party may make prima facie proof of medical expenses by affidavit that substantially complies with the following form: 

[case style]

Affidavit of Records Custodian of ________

STATE OF TEXAS

COUNTY OF ________

Before me, the undersigned authority, personally appeared ________, who, being by me duly sworn, deposed as follows:

My name is ________, I am of sound mind and capable of making this affidavit, and personally acquainted with the facts herein stated.

I am a custodian of records for ________. Attached to this affidavit are records that provide an itemized statement of the service and the charge for the service that ________ provided to ________ on ________. The attached records are a part of this affidavit.

The attached records are kept by ________ in the regular course of business, and it was the regular course of business of ________ for an employee or representative of ________, with knowledge of the service provided, to make the record or to transmit information to be included in the record. The records were made in the regular course of business at or near the time or reasonably soon after the time the service was provided. The records are the original or a duplicate of the original.

The services provided were necessary and the amount charged for the services was reasonable at the time and place that the services were provided.

The total amount paid for the services was $________ and the amount currently unpaid but which ________ has a right to be paid after any adjustments or credits is $________.

________

Affiant

SWORN TO AND SUBSCRIBED before me on the ____ day of ____, ____.

________

Notary Public, State of Texas

Notary's printed name: ________ My commission expires: ________

The new rule has been added to Texas Rules of Evidence.

Free Texas and Federal Evidence Rules Online

Jimmy Verner, partner at VernerBrumley Family Law, publishes mobile and web apps for lawyers and others under the name VernerLegal. VernerLegal has begun hosting free web versions of court rules online. The first two sets of rules are:

Links to these rules also can be found on the Research Page of VernerBrumley Family Law's website.

No Evidence Attorney's Fees Reasonable

Attorney's fees can be awarded by the court in many proceedings under the Texas Family Code. One of them is a suit for modification of the parent-child relationship. But in any of these proceedings, there must be some evidence that the attorney's fees are reasonable.

In In the Interest of A.A.L., No. 12-11-00161-CV (Tex. App. - Tyler May 23, 2012, n.p.h.), the only evidence of attorney's fees presented at trial was:

ATTORNEY: I only need to put her on to introduce some pictures and attorney's fees. I can tell you attorney's fees -

THE COURT: How much?

ATTORNEY: $42,525.00

THE COURT: $42,525.00, okay. Anything else?

The Tyler Court of Appeals found this evidence insufficient to show that the attorney's fees were reasonable.

The Court noted the following factors to be considered when evaluating the amount of reasonable attorney's fees:

(1) the time and labor required, novelty and difficulty of the question presented, and the skill required;

(2) the likelihood that acceptance of employment precluded other employment;

(3) the fee customarily charged for similar services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer performing the services; and

(8) whether the fee is fixed or contingent.

The Court recognized that a trial court need not receive evidence on each of these factors. A trial court could also consider “the entire record, the evidence presented on reasonableness, the common knowledge of the participants as lawyers and judges, and the relative success of the parties.” But the lawyer here

did not testify, nor did he present an affidavit, itemized statements, exhibits, or any other offer of proof, about the reasonableness of his fees. The record is devoid of evidence relating to his experience, the time and labor involved, the difficulty of the task, his hourly rates, the rates customarily charged for similar services, or his fee agreement.

This simply was not enough, held the Court, and reversed the attorney's fee award. The Court remanded the case for a new trial on attorney's fees.

There Must Be Sufficient Evidence to Support Divorce

When spouses agree to a divorce, a divorce decree is prepared, and the divorce is "proved up."  Technically, a prove-up is a trial.  One or both of the spouses testifies about the grounds for divorce, custody and visitation for the children and the division of the community estate. 

Prove-ups also are necessary in default cases.  A default case is one where the other spouse is served with citation (or waives service) but does not file pleadings with the court, make any agreements with the filing spouse, or show up for the prove-up. 

In both types of cases, a busy court docket and the lack of any objection to the divorce can result in a curtailed prove-up.  But all divorce decree must be supported by sufficient evidence.  It can be a mistake to shorten a prove-up because then a spouse can appeal on the ground that the evidence is insufficient to support the decree.

We've written about this issue before, in Newsletter entries for January 8 and February 26, 2004.  The El Paso Court of Appeals has highlighted the problem again in the recent case of Giron v. Gonzalez

By agreed temporary orders, Ms. Giron had temporary custody of the children.  Mr. Gonzalez paid her child support.  But Ms. Giron failed to appear at the divorce hearing.  Mr. Gonzalez obtained a divorce by default against Ms. Giron, alleging no-fault grounds, adultery and cruelty.  The trial court granted him sole custody of the children and suspended Ms. Giron's visitation with the children.  Finally, the trial court forgave past-due child support owed by Mr. Gonzalez.

On appeal, the El Paso Court found that Mr. Gonzalez did not introduce enough evidence into the record to support any finding but no-fault divorce.  To demonstrate its point, the Court quoted the entire prove-up which is copied in the extended entry.
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Sam Spade and Snooping for Evidence

Back in the days before no-fault divorce, it was important to "get the goods" on the philandering spouse.  Images of Sam Spade bursting into a room at the Notell Motel, flashbulb exploding, come to mind.


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But those days are no more - or are they?  A spouse's conduct can affect property division and what rights that spouse will have with respect to the children.  Moreover, investigating a spouse can yield other important information unrelated to sexual misconduct - drug or alcohol abuse, criminal activity, gambling and the like.  Locating a spouse at a specific point in time also can provide an alibi if that spouse is accused, for example, of assaulting the other spouse at that time.

Although the days of Sam Spade are no more, other sources of information provide opportunities to "track" a spouse in different ways.  These ways - some obvious, some not so obvious - include:
  • Credit card statements:  These statements show where a person was, often show what sorts of things were purchased, and can allow estimates of how many people were there (as in restaurant receipts).
  • Florists:  It is amazing that men will use the same florist to send flowers to both their wives and their girlfriends.
  • Cellphone records:  Although a cellphone record cannot pinpoint a person's location, it can yield a wealth of information about who is calling and being called.
  • Tolltag records:  These records allow pinpointing of a person's location at a specific time - assuming, of course, that the car is bring driven by that person.  
Have you ever looked at a photo of your house taken from a satellite?  Perhaps some day we will be able to track people by photographs from space.  For now, other methods must suffice.