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Chutes & Ladders in the CPRC
©2016©2016
Shannon A.S. QuadrosShannon A.S. Quadros
Kilmer Crosby & Walker PLLCKilmer Crosby & Walker PLLC
713-204-4144713-204-4144
What we will learn today
1. That the CPRC is a treasure trove of substantive and
procedural provisions that can make or break your case.
2. There is no method to the madness – the CPRC touches on
almost every type of law
3. This is not an exhaustive list but highlights some key
provisions that every practitioner needs to know
Ladder No. 1: Ladder No. 1: The Unsworn The Unsworn DeclarationDeclaration
CPRC § 132.001CPRC § 132.001
• Unsworn declarations may be used in lien of a written sworn declaration, verification, certification, oath, or affidavit required by statute or rule of law
• Does not apply to lien affidavits, real or personal property instruments to be recorded, or on oaths of office.
CPRC § 132.001 (cont.)CPRC § 132.001 (cont.)• Form of the declaration: "My name is ________ (First) ________ (Middle)
________ (Last), my date of birth is ___________, and my address is _____ (Street), _____ (City), _____ (State), _____ (Zip Code), and _____ (Country). I declare under penalty of perjury that the foregoing is true and correct.
Executed in _______ County, State of ________, on the _____ day of _____ (Month), _____ (Year).
___________________Declarant”
CPRC § 132.001 (cont.)CPRC § 132.001 (cont.)• Where you can use it:- Client is on vacation in Big Bend and
cannot get to a notary or if they are in Mexico and notarization is a whole other animal there. They can sign the verification to the interrogatories or in support of a TRO / TI in their hotel and fax it over to you.
- Summary judgment affidavits apply too!
CPRC § 132.001 (cont.)CPRC § 132.001 (cont.)• This provision is very popular with the
prison inmate population!• They have a slightly different form that
requires they provide their inmate number and correction unit name and location.
• State employees also have a slightly modified jurat form that requires they specify what governmental agency they work for
CPRC § 132.001 (cont.)CPRC § 132.001 (cont.)Case law examplesCase law examples
• Cell phone company employee's letter was an unsworn declaration sufficient to authenticate cell phone records that accompanied the letter, as required for records to be admissible in capital murder trial, as records of regularly conducted business activity, where employee acknowledged in the letter that he was subject to criminal punishment if his statement were false.
Dominguez v. State, 441 S.W.3d 652, 658-59 (Tex. App.—Houston [1st Dist.] 2014, no pet.)
CPRC § 132.001 (cont.)CPRC § 132.001 (cont.)Case law examplesCase law examples
Jurat was sufficient to allow unsworn declaration of former employer's former human resources director to substitute for notarized affidavit in support of motion to compel arbitration in former employee's age-discrimination action. Although jurat failed to contain former director's address and date of birth operative part of jurat was portion subjecting former director to penalty of perjury.United Rentals, Inc. v. Smith, 445 S.W.3d 808, 812-13 (Tex. App.—El Paso 2014, no pet.)
Chute No. 1: Chute No. 1: Frivolous PleadingsFrivolous Pleadings
CPRC § 9.011 et seq.CPRC § 9.011 et seq.• TRCP provides that signing of a
pleading certifies that to the signatory’s best knowledge, information, and belief that the pleading is not:– Groundless and brought in bad faith;– Groundless and brought for the purpose of
harassment; or– Groundless and interposed for any
improper purpose such as to cause delay or increase litigation costs
CPRC § 9.011 et seq.CPRC § 9.011 et seq.• If a Court determines, on its own motion or
at the request of a party to the case, that a pleading was signed in violation of the TRCP, the Court SHALL IMPOSE A SANCTION ON THE SIGNATORY, THE REPRESENTED PARTY, OR BOTH.
• But….the Court can only do so 90days after the date of the determination.
• Ch 9 only applies to torts, Ch. 10 is broader but does not provide for monetary sanctions
CPRC § 9.011 et seq.CPRC § 9.011 et seq.• Potential sanctions:
– Striking of the pleading;– Dismissal of a party; or– Reasonable expenses of the other party
incurred as a result of the offending pleading including costs, attorney’s fees, witness fees, expert fees, and deposition expenses.
CPRC § 9.011 et seq.CPRC § 9.011 et seq.The Safe HarborThe Safe Harbor
• If the offending party withdraws or amends the pleading in question, before the 90 day after the determination, the Court may not order the offending party to pay for the other party’s expenses.
• That does not mean you still cannot have your case dismissed!
• Liability under this Chapter is separate from potential liability under the TRCP or other chapters in the CPRC for frivolous pleadings.
CPRC § 9.011 et seq.CPRC § 9.011 et seq.• Potential sanctions:
– Striking of the pleading;– Dismissal of a party; or– Reasonable expenses of the other party
incurred as a result of the offending pleading including costs, attorney’s fees, witness fees, expert fees, and deposition expenses.
CPRC § 9.011 et seq.CPRC § 9.011 et seq.Case Law ExamplesCase Law Examples
Court of Appeals upheld sanction award of over $30,000 and dismissal of case with prejudice when homeowner sued wife of contractor’s owner purely to harass wife. Plaintiff was even provided opportunity to withdraw pleading but “doubled down” and filed additional claims against the wife.Gilbert v. Moseley, 453 S.W.3d 480, 486 (Tex. App.—Texarkana 2014, no pet.)
Ladder No. 2:Ladder No. 2:Affidavits Affidavits
Concerning Cost & Concerning Cost & Necessity of ServicesNecessity of Services
CPRC § 18.001 et seq.CPRC § 18.001 et seq.• Unless controverting affidavit is served, an
affidavit that the amount a person charged for a service was reasonable and necessary is sufficient to support a finding of fact that the amount charged was reasonable and necessary.– Only applies to civil actions– Must be made by the person providing the service
or person in charge of records– Must be served on other party at least 30 days
before trial though the supporting records need not be filed with the clerk.
CPRC § 18.001 et seq.CPRC § 18.001 et seq.• Most often used with medical expenses in support
of a personal injury claim.– Great way to save on witness fees of a medical
professional at trial!• Attorney’s do not use it enough when proving up
damages at summary judgment or in advance of trial.
• Starts the clock for the other side to provide counter-affidavit. Deadline that’s often missed.
• PRACTICE TIP: Send it with responses to discovery
CPRC § 18.001 et seq.CPRC § 18.001 et seq.The CounteraffidavitThe Counteraffidavit
• Counteraffidavit must be served not later than 30 days after the original affidavit is received AND at least 14 before evidence is first presented at trial.
OR• With leave of court at any time before
commencement of evidence at trial.• Counteraffidavit must give notice of basis on
which the party serving it intends at trial to controvert the claim reflected by the initial affidavit.
CPRC § 18.001 et seq.CPRC § 18.001 et seq.
• Practice Point:– Serving the affidavit early on in the case will also
put pressure on defendant to identify and provide an expert to provide a countervailing affidavit.
– Serving the affidavit just before the 30day mark to trial gives the opposing party just 14days to provide a response.
– This provision lets you get away with hearsay ( a true exception to the TRE) and submit evidence that can form the basis of a finding of fact.
CPRC § 18.001 et seq.CPRC § 18.001 et seq.Case Law ExamplesCase Law Examples
Attorney fees contained in affidavit filed with summary judgment motion as proof of fees incurred by vendor and purchaser in prospective purchaser's action were presumed reasonable in the absence of a counter-affidavit contesting the fees. To create a fact issue regarding attorney fee award on summary judgment, the nonmovant must file a counter-affidavit contesting the reasonableness of the movant's attorney's fee claim; unless a controverting affidavit is filed, an affidavit as to the amount of attorney's fees is presumed reasonable.
Petrello v. Prucka, 415 S.W.3d 420, 431 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
CPRC § 18.001 et seq.CPRC § 18.001 et seq.Case Law ExamplesCase Law Examples
Physician's counteraffidavits, offered by defendant in personal-injury action, did not show how physician was qualified as an expert to contravene matters contained in plaintiff's affidavits, and thus were insufficient to controvert plaintiff's averments that medical expenses he incurred were reasonable and necessary, where similarly worded counteraffidavits merely stated physician's training and experience as an orthopedic surgeon, but plaintiff's affidavits related to services provided by a hospital, pharmacies, a chiropractor, a diagnostic center, a nurse anesthetist, and doctors who were not orthopedic surgeons. Turner v. Peril, 50 S.W.3d 742, 747 (Tex. App.—Dallas 2001, pet. denied)
Chute No. 2: Chute No. 2: Disclosure of Disclosure of
Intimate Visual Intimate Visual MaterialMaterial
CPRC § 98B et seq.CPRC § 98B et seq.• I call this the Texas Sexting Act (became effective
Sept 1, 2015)• A defendant is liable to the person depicted in the
“intimate” image or video if the defendant discloses the material without the depicted person’s consent; there was an expectation the material was private; the disclosure causes harm to the depicted person; and disclosure reveals the identity of the depicted person even if that disclosure is from information from a third-party.
CPRC § 98B et seq.CPRC § 98B et seq.• Court shall award:
– Actual damages including mental anguish;– Court costs; – Reasonable attorney’s fees; and– Exemplary damages may be recovered.
• Injunctive relief available– Court may award $1,000.00 for willful violations of the
injunction or $500.00 for unintentional violations PER occurrence.
• Cause of action is cumulative with other remedies
CPRC § 98B et seq.CPRC § 98B et seq.• Jurisdiction
– Court had personal jurisdiction over a defendant if:
• Defendant resides in the state• Claimant resides in the state• Material is stored on a server that is located in this state• Material is available for view in this state
– Texas Court’s essentially have jurisdiction! (Defendant might make an Int’l Shoe i.e. sufficient contacts argument…good luck!)
CPRC § 98B et seq.CPRC § 98B et seq.• No cases yet, but consider this hypotheticalJack and Jill are seniors in High School. Jill sends Jack
(her boyfriend) an explicit picture which was for his eyes only. Sadly, Jack shares the picture with his buddies on the football team. Football team shares it with the cheerleading squad and soon the whole school has it. You can’t see Jill’s face but you see that tattoo she got on her waist last summer. The girls on the cheerleading squad recognize it as Jill’s and she’s outed. Jill is now embarrassed and teased at school. Jill has to go to get counseling and has to be home-schooled until graduation.
CPRC § 98B et seq.CPRC § 98B et seq.• You now have a civil cause of action• Attorney’s fees are mandatory. • Should not be too difficult to prove some
damages, so attorney’s fees will follow.• You may have some insurance coverage i.e. a
pocket to pick. (Some insurers may argue no coverage because of potential criminal acts).
• It’s not just teenagers or young adults, the AARP has articles on how seniors can protect themselves!
Ladder No. 3:Ladder No. 3:Religious Holy Day Religious Holy Day
CPRC § 30.005.CPRC § 30.005.• If a party or an attorney representing a party
in a civil action is required to appear at court on a religious holy day observed by the client or the attorney, the court shall continue the civil action.
• The party or attorney must file with the court an affidavit stating the grounds for the continuance and that the party or attorney holds religious beliefs that prohibit them from participating in the court proceeding on the specified day.
CPRC § 30.005.CPRC § 30.005.Case law Ex.Case law Ex.
Writ of mandamus granted in part requiring Harris County Family Judge continue trial on days that overlapped with Jewish holy days of Sukkot, Shmini Atzerat and Simchat Torah.
In re Blank, 01-13-00792-CV, 2013 WL 5276108, at *1 (Tex. App.—Houston [1st Dist.] Sept. 18, 2013, no pet.)
Chute No. 3: Chute No. 3: Personal Personal
Responsibility for Responsibility for Food ConsumptionFood Consumption
CPRC § 138.001 et seq.CPRC § 138.001 et seq.• I call this the High Fructose Corn Syrup
Lobby Has More Money Than You Act or the Cheeseburger Bill.
• A claimant may not bring suit or not have a suit brought on their behalf against a manufacturer, seller, trade association or agricultural producer for claims arising out of weight gain or obesity because of long-term consumption of food produced by said sellers, trade associations etc.
CPRC § 138.001 et seq.CPRC § 138.001 et seq.• Stems from class-action suits brought against
soda manufacturers, trade groups etc. claiming that these groups were promoting obesity and weight gain resulting in long-term health and, consequently, financial damages to consumers.
CPRC § 138.001 et seq.CPRC § 138.001 et seq.• There is a bad boy provision though….• There is no prohibition on suit if the
manufacturer or seller knowingly or willfully violates a federal or state statute applicable to manufacturing, marketing, distribution, advertisement, labeling, or sale of food.
• It is only a matter of time before a food retailer will be caught red-handed of knowingly misrepresenting food characteristics in its ads. Plaintiff's lawyers –keep your pencils sharpened!
Ladder No. 4:Ladder No. 4:Texas Uniform Trade Texas Uniform Trade
Secrets ActSecrets Act
CPRC § 134A.001 et seq.CPRC § 134A.001 et seq.• Also known as TUTSA. It is Texas’
adoption of the Uniform Trade Secrets Act. Brings Texas in line with the vast majority of states on this issue. Notably, NY is not an adoptee.
• Applies to misappropriation of trade secrets after Sept 1, 2013.
• Pros and Cons to this over prior law– Greater protections for trade secret holders– Frivolous claims result in award of attorney’s fees to
prevailing party
CPRC § 134A.001 et seq.CPRC § 134A.001 et seq.• Specifically defines what a trade secret
can be:– Formulae– Patterns– Compilations– Programs– Devices– Methods– Techniques– Processes– Financial Data– Customer lists (current or potential)
CPRC § 134A.001 et seq.CPRC § 134A.001 et seq.• But to have those categories qualify as a trade
secret, the secret must– Have independent economic value from not being
generally known or ascertainable by proper means; and
– Is the subject of efforts to maintain its secrecy.
– So if you can google something and put some independent thought into it to come up with a top 100 customer list, that’s not a trade secret or if trade secret holder did nothing to protect its secret
CPRC § 134A.001 et seq.CPRC § 134A.001 et seq.• Relief available:
– Injunctive relief for actual or threatened misappropriation
– Court may impose a reasonable royalty payment as part of an injunction
– Defendant may be required to take certain affirmative steps
– Actual damages for loss– Exemplary damages up to 2x of actual damages if theft
was willful or malicious– Reasonable attorney’s fees may be available to
prevailing party
CPRC § 134A.001 et seq.CPRC § 134A.001 et seq.• Practice points:
– Caution clients to not use this merely as a dilatory tactic or a means to coerce an opponent; bad faith claims under TUTSA could cause you to pay the other sides’ fees.
– TUTSA specifically allows you to look to the case law of other states to seek interpretation of issues regarding application of the law.
– TUTSA provides for and favors protective orders to preserve the secrecy of the trade secret.
– Watch out for limitations - CPRC §16.010 provides that a misappropriation of a trade secret that continues over time is a single cause of action and the SOL runs without regard to whether the misappropriation is a single or continuing act. So claimant has 3 years after actual discovery or when should have known.
CPRC § 134A.001 et seq.CPRC § 134A.001 et seq.Case Law ExampleCase Law Example
Once trade secret information becomes available to the general public, a party that has been enjoined from using the information due to misappropriation may apply to have the injunction terminated. The court may choose to continue the injunction for an additional reasonable period of time, however, to eliminate any commercial advantage derived from the misappropriation such as possessing the trade secrets before other potential competitors. Again, the injunction is intended to eliminate a wrongfully gained competitive advantage and put the defendant in the same position as other prospective sellers.
Halliburton Energy Services, Inc. v. Axis Techs., LLC, 444 S.W.3d 251, 259 (Tex. App.—Dallas 2014, no pet.)
Chute No. 4: Chute No. 4: Limitations and Limitations and Acceleration of Acceleration of Mortgage NotesMortgage Notes
CPRC § 16.035 & §26.038CPRC § 16.035 & §26.038• I call this the Mortgage Lenders Lobby Has
More Money than You Bill.• Became effective June 17, 2015.• The issue?
– Prior to enactment (i.e. the golden days of the mortgage crisis) default on a mortgage did not, on its own, start the statute of limitations clock if the mortgage note contained an acceleration clause.
– In those cases, the cause of action for breach of the mortgage note accrued upon the exercise, by the lender, of its option to accelerate.
CPRC § 16.035 & §26.038CPRC § 16.035 & §26.038– A clear and unequivocal notice of intent to accelerate was
sufficient to establish acceleration unless there was some evidence to demonstrate the lender abandoned acceleration.
– However, if a lender continued to accept payments from a borrower after it had otherwise declared the note due and payable, it could be deemed to have abandoned acceleration.
– Why this matters? Lenders were essentially declaring default but oftentimes stretching the process over years. Consumers got wise and started to use statute of limitation defenses
CPRC § 16.035CPRC § 16.035Statute of Limitations on real property liens:–(a) A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.–(b) A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action–(d) On the expiration of the four-year limitations period, the real property lien and a power of sale to enforce the real property lien become void.–(e) If a series of notes or obligations or a note or obligation payable in installments is secured by a real property lien, the four-year limitations period does not begin to run until the maturity date of the last note, obligation, or installment.
CPRC §26.038CPRC §26.038• (a) If the maturity date of a series of notes or obligations or a
note or obligation payable in installments is accelerated, and the accelerated maturity date is rescinded or waived . . . before the limitations period expires, the acceleration is deemed rescinded and waived and the note, obligation, or series of notes or obligations shall be governed by Section 16.035 as if no acceleration had occurred.
• (b) Rescission or waiver of acceleration is effective if made by a written notice of a rescission or waiver
• (d) A notice served under this section does not affect a lienholder's right to accelerate the maturity date of the debt in the future nor does it waive past defaults.
CPRC § 16.035 & §26.038CPRC § 16.035 & §26.038Practice Point:1.If you represent lenders, encourage them to use this with impunity! You can continue to collect payments from the obligor on the note and threaten acceleration ad infinitum.2.If you represent a consumer, you’ve lost a tool in your toolbox to defend against a mortgage note you believe to have been unlawful or perpetrated through some fraud.
Ladder No. 5:Ladder No. 5:Claims on behalf of Claims on behalf of Trafficked PersonsTrafficked Persons
CPRC § 98.001 et seq.CPRC § 98.001 et seq.• Provides for a cause of action for victims of
human trafficking against defendants.• Includes claims for forced labor (bigger and
more common issue than most believe)• Definition trafficking includes receiving “a
benefit from participating in a venture” that involves the prohibited conduct.– E.g.: Landlords, transportation providers etc.
• Chapter to be liberally construed.
CPRC § 98.001 et seq.CPRC § 98.001 et seq.• Defendants who engage or benefit from
trafficking or persons is liable to the person trafficked for damages arising from the trafficking of that person.
• NOT A DEFENSE TO LIABILITY that defendant has been acquitted or has not been prosecuted criminally.
• Shareholders and members of venture are jointly and severally liable.
CPRC § 98.001 et seq.CPRC § 98.001 et seq.Damages AvailableDamages Available
Court shall award:•Actual damages•Mental anguish damages (even if no other damages are evidenced)•Court costs•Reasonable Attorney’s Fees•Exemplary damages•Joint & Several Liability for entire amount (proportionate responsibility doesn’t apply!)
CPRC § 98.001 et seq.CPRC § 98.001 et seq.Damages AvailableDamages Available
• Remedies are cumulative• Don’t forget FLSA claims• Mandatory Victim Restitution Act• Courts, prosecutors, law enforcement, and
NGOs, are all eager to help.
Chutes & Ladders in the CPRC
©2016©2016
Shannon A.S. QuadrosShannon A.S. Quadros
Kilmer Crosby & Walker PLLCKilmer Crosby & Walker PLLC
713-204-4144713-204-4144
