Hooray for the attorney who cites a case from 1889 and wins! Perhaps we all should review Schmidt v. Huppman, 11 S.W. 175 (Tex. 1889), which held “Where it satisfactorily appears, as in this case, that one spouse brought into the partnership separate funds invested in a particular business, which business was carried on and the profits arising therefrom used in creating and building up the community estate, and the separate funds are employed in the same business at the dissolution of the partnership, upon settlement with the community estate we think the spouse furnishing such separate funds is entitled to reimbursement therefore.” At the trial of this divorce, 123 years after the Schmidt v. Huppman case was decided, the husband proved that his sole proprietor law firm on the date of marriage had $383,233.35 in accounts receivable, $175,391.70 in unbilled time for work in progress, $5,000 in furniture and fixtures, $22,003.74 in accounts payable and $95,307.40 in accrued payroll. ... Read More >
A party can do his own tracing of separate property!
This case stands for the proposition that a party (in this case, the husband) can do his own tracing of financial accounts to prove how much is separate property. In this case, the husband was an attorney and a CPA. There was no objection to his qualifications made to the trial court. The court of appeals reviewed some very complex financial account tracing and approved what the husband calculated. It certainly seems logical that if we allow a party to testify about the value of his house without being a real estate appraiser, that we should allow a party to testify about tracing as long as the methodology is explained and is proper. Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013. Another case decided this month by the San Antonio Court of Appeals is another example of a party tracing (or trying to trace) his own separate property. Unfortunately, this is also a great example of how not to trace and what evidence is insufficient to prove separate ... Read More >
How NOT to show failure to supplement when trying to strike evidence not supplemented 30 days before trial
The wife’s objection to financial documents which she said had not been produced at least 30 days before trial was properly overruled by the trial court because the wife did not show to the trial court that: (1) her discovery request specifically asked for the document, and (2) the objection to the wife’s production request made by the husband was not ruled on by the trial court. Also, the husband’s attorney said that his response stated the documents were available at his office for inspection and the wife’s attorney never came to look at them. The wife would have had to prove that the documents were not really made available for inspection. Part of the moral to this story is that discovery requests and responses are not filed with the clerk, so a party who objects to evidence that was not disclosed in discovery must get the discovery request and response into the record, either as an exhibit in court or at least as an attachment to a motion to compel. This case also says that if ... Read More >
Error to disqualify an attorney because he is a witness unless he is the only witness to specific events, i.e. – necessary to establish an essential fact.
Here, in this divorce action in Fort Bend County, the wife’s lawyer took her to a bank to open an account and oddly took photographs to document the event, the attorney hired the wife to work in her office in spite of pleading the wife was unable to work, and the attorney helped the wife “financially or otherwise” with her psychological treatment. The court of appeals noted,” The hearing record reflects that there is no evidence that relator’s attorney is the only person in possession of facts regarding these allegations. Thus it was not shown the testimony of relator’s attorney is necessary to establish an essential fact.” The court of appeals also concluded there was “no evidence that actual prejudice would result if the attorney does testify as a fact witness.” Mandamus granted. In re Stone, 14th Court of Appeals, 14-13-00311-CV, 4/19/2013. ... Read More >
Texas Supreme Court Clarifies Rule That Allows a Property Owner to Testify About the Value of His or Her Property
by Greg Enos It has long been the rule in Texas that the owner of a property can testify as to the property’s value even if the homeowner cannot qualify as an expert witness. Mata v. Mata, 710 S.W.2d 745, 758 (Tex. App.— Corpus Christi 1986, no writ). The Texas Supreme Court in December 2012 limited that rule and held that the property owner must explain the basis for his or her opinion as to value. Natural Gas Pipeline Co. of America v. Justiss, __ S.W.3d __ (Tex.12/14/2012 - 10-0451), was a nuisance suit for damages, not a divorce. However, the rule articulated by the Texas Supreme Court should apply in divorce cases when a spouse testifies what the family house or a car or a business or the personal property is worth. In such a situation, the spouse must also explain what that opinion is based on. The Supreme Court stated: Because property owner testimony is the functional equivalent of expert testimony, it must be judged by the same standards. Thus, as with expert ... Read More >
The Cost of Sale Is Usually Not Deducted From the Value of a House in a Texas Divorce
A divorce court in Texas should usually not reduce the value of a house because of closing costs and realtor fees because that approach is not consistent with the definition of “fair market value,” and because such closing costs are too speculative. There is no definitive Texas case law on point, but the majority of other states have held that closing costs should not be considered in the value of a house unless a sale is actually imminent or planned. Two older Texas cases could be interpreted to approve of reducing the value of a house in a divorce by the cost of sale. In Pelzig v. Berkebile, 931 S.W.2d 398, 403 (Tex. App. - Corpus Christi 1996, no writ), the court of appeals said,“The judge’s finding of a $99,000 value after deducting ten percent closing costs was within the range of values suggested by the evidence.” In Cole v. Cole, 880 S.W.2d 477, 484 (Tex. App. - Fort Worth 1994, no writ), it is not clear at all what method the trial court used in finding the house had a ... Read More >
Mental Disorder in Court – The Most Bizarre Court Hearing Ever!
Mental Disorder in the Court By Greg Enos Lawyers in Galveston County now know how it felt to serve in Roman Emperor Caligula's court. We see and fear the madness that is cloaked in awesome power and never know when the mad ruler's ire will be aimed at us. This was the scene in Emperor Dupuy's court on February 11 when Dupuy held a hearing to hold attorney Lori Laird in contempt for filing two motions to recuse him. There were eight armed bailiffs supervised by the elected Sheriff of Galveston County, who was being advised by a lawyer from the County Legal Department. The Sheriff even checked behind the judge's bench for weapons before the hearing started. It seemed that the extraordinary security was there as much to protect the attorneys from the judge as to keep order in the court. A felony prosecutor and the D.A.’s head investigator sat in the gallery taking notes about the judge. About 40 people were in the audience, including the County Judge and for a while one ... Read More >
Forget the notary – Unsworn Declarations are Legal in Texas!
It is no longer necessary for affidavits, sworn inventories and attorney's verifications to be sworn to before a Notary Public. The following statute was effective on September 1, 2011: Texas Civil Practices and Remedies Code. Sec. 132.001. UNSWORN DECLARATION. (a) Except as provided by Subsection (b), an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law. (b) This section does not apply to an oath of office or an oath required to be taken before a specified official other than a notary public. (c) An unsworn declaration made under this section must be: (1) in writing; and (2) subscribed by the person making the declaration as true under penalty of perjury. (d) Except as provided by Subsection (e), an unsworn declaration made under this section must include a jurat in substantially the following ... Read More >
New Ethics Opinion Agrees With Me: No Part Time Associate Judges
A brand new ethics opinion from the Texas Center for the Judiciary makes clear what I have argued for years: it is not ethical to allow a part-time Associate Judge to also practice law. The opinion states: Ethics Opinion Number 296 ( 2013 ) PRACTICE OF LAW BY PART-TIME JUDGE FACTS: An attorney has been appointed as a part-time family law associate judge by the district judge. The associate judge continues to represent family law clients before other district courts of that county and before courts in other surrounding counties. QUESTIONS: May a part-time family law associate judge, appointed by a court, represent family law clients before any of the other courts 1. in that county? 2. in surrounding counties? ANSWER: The committee answers Question 1 “No.” The committee answers Question 2 with a qualified “No.” DISCUSSION: A part-time associate judge appointed by a court is governed by the Code of Judicial Conduct. Canon 6D. As stated in Canon 6D(1)1, certain ... Read More >
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