Hot Topics for Trial Lawyers
A compilation of journalistic articles to keep you abreast of changing developments and current events in the litigation realm. If you are interested in writing for this Hot Topics segment, email tnuckols@texasbar.com
Overlooked Gems (or Traps) For Trial Lawyers
Posted 7/17/08 Sean Michael Reagan, Leyh & Payne, L.L.P.The Texas Civil Practice & Remedies Code is filled with traps for the unwary and contains numerous interesting rules of law that can operate as both a shield and a sword in the litigation battlefield. Included below are several overlooked or unrecognized provisions of the Civil Practice & Remedies Code that trial lawyers should be aware of.
A. Section 16.070 - Contractual Limitations Period
There have been instances where a party to a contract attempts to limit its exposure to liability by inserting a contractual provision that establishes a limitations period that is shorter than the standard four-year limitations period for bringing a breach of contract action. For example, a party may insist on including a contractual provision requiring that all claims arising out of the contract be brought within one year from the date of the alleged breach.
The contract is then subsequently breached and the complaining party brings suit after the one-year statute of limitations period set forth in the contract. The defending party moves for summary judgment on the grounds that the claim was not timely filed pursuant to the negotiated upon limitations period contained in the contract. The motion for summary judgment, however, will be denied pursuant to Section 16.070 of the Civil Practice & Remedies Code, as Section 16.070 dictates that a contractual provision that establishes a limitations period shorter than two years is void as a matter of law.
Specifically, Section 16.070 provides:
(a) Except as provided by Subsection (b), a person may not enter a stipulation, contract, or agreement that purports to limit the time in which to bring suit on the stipulation, contract, or agreement to a period shorter than two years. A stipulation, contract, or agreement that establishes a limitations period that is shorter than two years is void in this state.
(b) This section does not apply to a stipulation, contract, or agreement relating to the sale or purchase of a business entity if a party to the stipulation, contract, or agreement pays or receives or is obligated to pay or entitled to receive consideration under the stipulation, contract, or agreement having an aggregate value of not less than $500,000.
Consequently, if you run across a contract that calls for a limitations period that is shorter than two years, be advised that the contractual provision, even if freely negotiated and agreed upon, is void as a matter of law under Section 16.070 of the Civil Practice & Remedies Code unless it falls under the narrow exception provided for in Subsection (b).
B. Section 18.061
It is not uncommon in personal injury litigation for the defendant to offer his condolences or express sympathy for the plaintiff’s injuries, especially in catastrophic injury cases.This situation usually involves one of two situations. The first is when the defendant communicates to the plaintiff either immediately after an accident or shortly thereafter that he or she “is sorry” or some other expression of sympathy. The other situation arises during a deposition or trial testimony when the defendant testifies more or less “I am really sorry for what happened,” and Plaintiff’s counsel attempts to use these expressions of sympathy to argue to the jury that the defendant was negligent, i.e., “there would not be any reason for you to apologize if you did nothing wrong.”
Another possible scenario arises when plaintiff’s counsel argues to the jury that “the defendant has not shown any remorse or expressed any sympathy for the plaintiff・s injuries,” or something along these lines when the defendant has not expressed any sympathy for the plaintiff’s injuries in order to paint the defendant as a soulless and indifferent tortfeasor. Under either instance, the defendant is at a significant disadvantage because whether or not he or she expressed any sympathy, plaintiff’s counsel can use it against him or her in front of the jury. This is a classic “damned if you do, damned if you don’t” situation.
This evidence, however, is inadmissible under Section 18.061 of the Civil Practice & Remedies Code. Specifically, Section 18.061 of the Civil Practice & Remedies Code provides:
(a) A court in a civil action may not admit a communication that:
(1) expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident;
(2) is made to the individual or a person related to the individual within the second degree by consanguinity or affinity, as determined under Subchapter B, Chapter 573, Government Code; and
(3) is offered to prove liability of the communicator in relation to the individual.
(b) In this section, “communication” means:
(1) a statement;
(2) a writing; or
(3) a gesture that conveys a sense of compassion or commiseration emanating from humane impulses.
(c) Notwithstanding the provisions of Subsections (a) and (b), a communication, including an excited utterance as defined by Rule 803(2) of the Texas Rules of Evidence, which also includes a statement or statements concerning negligence or culpable conduct pertaining to an accident or event, is admissible to prove liability of the communicator.
Consequently, any expression of sympathy or the communication of sympathy is not admissible. A fine line must be drawn however; a statement to the effect of, “I am so sorry, it・s all my fault,” will be admissible as an admission by a party opponent, as set forth in Subsection (c).
For example, following a routine traffic accident, a statement by the driver allegedly at fault to the effect of, “I am sorry, are you okay,” will not be admissible under Section 18.061 of the Civil Practice & Remedies Code. Conversely, a statement to the effect of, “I am sorry, I was not paying attention and I did not see the red light,” will be admissible.
C. Section 71.005 - Evidence Relating to Marital Status
In wrongful death causes of actions, defense counsel will often attempt to explore the surviving spouse’s romantic relationships since the death of his or her spouse in an effort to weaken the surviving spouse’s loss of consortium, loss of companionship, loss of society, and mental anguish claims arising out of the death of his or her spouse. Typically, defense counsel will inquire as to whether the surviving spouse is currently dating anyone or whether he or she has remarried or has plans to remarry. Under Section 71.005 of the Civil Practice & Remedies Code, this line of questioning and any evidence with regard to the same is inadmissible with the lone of exception of a ceremonial remarriage.
Specifically, Section 71.005 of the Civil Practice & Remedies Code provides:
In an action under this subchapter, evidence of the actual ceremonial remarriage of the surviving spouse is admissible, if it is true, but the defense is prohibited from directly or indirectly mentioning or alluding to a common-law marriage, an extramarital relationship, or the marital prospects of the surviving spouse.
Therefore, evidence that the surviving spouse has actually remarried is admissible, but any evidence concerning a common-law-marriage or the martial prospects of the surviving spouse is inadmissible. Considering that nearly all of the damages recoverable by a surviving spouse in a wrongful death action derive out of the loss of the marital relationship, Plaintiff’s counsel must carefully guard against any mention or implication that the surviving spouse has engaged in a new relationship.
D. Section 30.007 Production of Financial Institution Records
Oftentimes, when a party requests records from a financial institution, the party will fire off a subpoena or a request for production to a financial institution without giving a second thought to Section 30.007 of the Civil Practice & Remedies Code and Section 59.006 of the Texas Finance Code. Section 30.007 of the Civil Practice & Remedies Code provides that “[c]ivil discovery of a customer record maintained by a financial institution is governed by Section 59.006, Finance Code.” Therefore, any request for the records of a financial institution must comply with Section 59.006 of the Finance Code, which is the exclusive method for obtaining an individual or entity・s financial records from a financial institution. Section 59.006 of the Texas Finance Code has several strict requirements a requesting party must follow and adhere to before a financial institution is required to produce any records with regard to its customer.
First, a financial institution’s obligation under Section 59.006 of the Texas Finance Code to produce financial records is dependent on whether the customer whose records are at issue is a party to the lawsuit. If the customer is not a party to the lawsuit, the requesting party must give the customer notice advising the customer of his rights, as well as a copy of the request served upon the financial institution. Additionally, the requesting party must file a certificate of service stating that the customer has been mailed or served with a copy of the notice and a copy of the record request served upon the financial institution. The requesting party must also request the customer・s written consent authorizing the financial institution to comply with the request before the financial institution has an obligation to produce any records.
If the customer does not execute the written consent on or before the date compliance is requested, it is the requesting party’s obligation to seek an in camera inspection with the court by filing a written motion, as a financial institution may not produce the customer’s records until it receives the customer’s written consent or a court order to produce the records.The judge then reviews the documents and determines which documents should be produced and then enters a protective order preventing the records being produced from being disclosed to a person who is not a party to the lawsuit or to be used by a person for any purpose other than resolving the dispute before the court.
If the customer is a party to the lawsuit, the customer bears the burden of preventing or limiting the financial institution’s compliance with the records request by filing a motion to quash or a motion for a protective order.
Once the proper procedures for requesting the records have been followed, the financial institution’s deadline to comply with the request is the later of:
(1) the 24th day after it receives receipt of the record request;
(2) the 15th day after the date of receipt of a customer’s written consent to disclose a record; or
(3) the 15th day after the date a court orders production of a record after an in camera inspection of a requested record.
Therefore, a financial institution is entitled to at least twenty-four (24) days to comply with a record request under Section 59.006(f) of the Finance Code.
One last note of interest is that the requesting party is required to pay the financial institution’s reasonable costs of complying with the request, including costs of reproduction, postage, research, delivery, and attorney・s fees before the financial institution is obligated to comply with the request. In the alternative, the requesting party can post a cost bond in an amount estimated by the financial institution to cover the costs of producing the records.