Trial by Ambush

[cjtx2]

I had a bad experience with a JP judge in Texas who ruled for a JDB plaintiff despite my objections.

I objected to a last minute Business Records Affidavit as unfair surprise that would prejudice the result against me. The court denied my objection and admitted the evidence. I also objected on grounds that it was hearsay, but my objection was overruled.

The JDB's attorney stated that rules of evidence do not apply to JP court.

At first I thought this non lawyer judge did not require a business records affidavit so nobody filed it.

After reviewing all the cases that have gone before this court in the last few months, over 90% filed a business records affidavit at least one month before trial even when there was no motion for discovery.  That includes both OC's and JDBs.

Other precincts in the same county, where the judge is a lawyer have both a business records affidavit and an affidavit of no military service filed in advance. 

Also, according to the petition, the case was for account stated, which has a much lower burden of proof than a breach of contract. However, at trial, the JDB attorney claimed breach of contract.

Again, I objected because of unfair surprise. An account stated assumes that the balance is right because there was never a dispute. But I introduced a declaration stating that I had disputed the account with both the OC and the JDB and even provided the dispute letters and return receipts. The judge did not admit the evidence. It looked like he did not know about declarations. I think this was another abuse of discretion.

As I am writing my motion for new trial, is it valid to pursue a different cause of action at trial after specifically pleading something else? I imagine there is some leeway for pro se's but this petition was drafted by a lawyer and it was specific.  I mean, it did not request "any other relief to which plaintiff may be entitled" or something general like that.

Is it possible the judge does not know why most plaintiffs file a business records affidavit in advance to avoid unfair surprise claims? 

[Goody_Ouchless]

What would you have done differently had they presented their affidavit(s) earlier? 

[cjtx2]

For one, I would subpoena the affiant to cross examine some of the assertions in the robo affidavit form, including the amount of time spent specifically on my account that qualified the affiant to claim she had personal knowledge of the records, the number of (robo) affidavits signed that day, whether the notary public was physically there when it was signed or whether it was  part of a batch that was notarized somewhere else, along with specific knowledge of the record keeping practices of the OC's custodian of records, whether she verified somehow the accuracy of the records, her explanation of how they bought the account at a deep discount because the records were not guaranteed to be accurate/reliable/collectable, but somehow without any investigation into it, they magically became accurate just because she alleges so .

[BV80]

 

9 hours ago, cjtx2 said:

Also, according to the petition, the case was for account stated, which has a much lower burden of proof than a breach of contract. However, at trial, the JDB attorney claimed breach of contract.

What was the basis of the judge’s ruling?   Did he reference account stated or breach of contract?

 

[cjtx2]

52 minutes ago, BV80 said:

What was the basis of the judge’s ruling?   Did he reference account stated or breach of contract?

 

He did not specify. Only stated "judgment for plaintiff".

But during arguments he made it clear that it was ok for the plaintiff to pursue breach of contract. The attorney's opening statement was all about breach of contract (mentioned it a dozen times). My opening statement was a rebuttal referencing the petition and that it would be unfair surprise to allow a different cause of action than what was plead. I was put on notice to defend from account stated, not anything else.

[BV80]

23 minutes ago, cjtx2 said:

He did not specify. Only stated "judgment for plaintiff".

But during arguments he made it clear that it was ok for the plaintiff to pursue breach of contract. The attorney's opening statement was all about breach of contract (mentioned it a dozen times). My opening statement was a rebuttal referencing the petition and that it would be unfair surprise to allow a different cause of action than what was plead. I was put on notice to defend from account stated, not anything else.

If it were me, I’d consult an attorney,  I would want to know for a fact that I have a claim and be able to cite something in the way of the court rules or case law to support the claim. 

[Goody_Ouchless]

Looks, from your posting history, that this wasn't your first rodeo. Any reason you didn't just elect arbitration and take the easy win? 

[texasrocker]

Apparently there was no discovery conducted.  What happened prior to all of this?  Did you ask for the JP court's approval to begin discovery?

[cjtx2]

I have found several cases that apply TRCP 193.5(b) regarding disclosing discoverable evidence at least 30 days before trial to avoid unfair surprise. So that explains why so many plaintiffs file business affidavits at least a month before trial.

More specifically for JP courts, there is nothing as far as rules of evidence, (except whatever the judge feels like applying) but as far as pleadings, they can only be amended no less than 7 days before trial for the same reason, to avoid unfair surprise. TRCP 502.7(a).

 

[cjtx2]

5 hours ago, Goody_Ouchless said:

Looks, from your posting history, that this wasn't your first rodeo. Any reason you didn't just elect arbitration and take the easy win? 

I wish I could but the credit card agreement did not include arbitration.

[Harry Seaward]

18 minutes ago, cjtx2 said:

I have found several cases that apply TRCP 193.5(b) regarding disclosing discoverable evidence at least 30 days before trial to avoid unfair surprise. So that explains why so many plaintiffs file business affidavits at least a month before trial.

More specifically for JP courts, there is nothing as far as rules of evidence, (except whatever the judge feels like applying) but as far as pleadings, they can only be amended no less than 7 days before trial for the same reason, to avoid unfair surprise. TRCP 502.7(a).

 

Does this mean you did not request permission to conduct discovery?

[cjtx2]

4 hours ago, texasrocker said:

Apparently there was no discovery conducted.  What happened prior to all of this?  Did you ask for the JP court's approval to begin discovery?

A week or so after I filed my response, the court scheduled trial, leaving very little time for discovery. Other cases filed on the same date as mine with the same court (and served around the same time) have not been scheduled for trial yet.

I thought about requesting discovery, but I had seen that it was customary for plaintiffs to file a business record affidavit even when there was no discovery request. I just did not know exactly how widespread the practice was (now I know for a fact that over 90% of plaintiffs file a business affidavit 30 days in advance with this court). So I assumed that because they never filed it, either they did not have anything or were not going to show up at trial.

I also considered the option they would try to surprise me at trial, but I never thought the judge would let them get away with it over my objections of unfair surprise and prejudice.

And of course I stated that I had a right to confront the affiant and cross examine.

[cjtx2]

1 minute ago, Harry Seaward said:

Does this mean you did not request permission to conduct discovery?

Correct.

[Harry Seaward]

4 minutes ago, cjtx2 said:

I never thought the judge would let them get away with it over my objections of unfair surprise and prejudice.

It's only a surprise if you ask for it and they didn't provide it.

[cjtx2]

2 minutes ago, Harry Seaward said:

It's only a surprise if you ask for it and they didn't provide it.

True. But lack of discovery goes both ways, so there was no excuse not to admit my proof of dispute, which was also introduced at trial. There was an abuse of discretion (and bias).

Also, a change in pleadings at the last minute is unfair surprise by definition.

[Harry Seaward]

10 minutes ago, cjtx2 said:

so there was no excuse not to admit my proof of dispute, which was also introduced at trial.

Yes, that's possible. The question the Appellate Court is going to be looking at is whether allowing the dispute evidence would have likely changed the outcome of the case.

10 minutes ago, cjtx2 said:

Also, a change in pleadings at the last minute is unfair surprise by definition.

"Unfair surprise" is intrinsically tied to prejudice. If you don't establish for the record how the surprise is prejudicial, it's not unfair. 

[cjtx2]

7 minutes ago, Harry Seaward said:

"Unfair surprise" is intrinsically tied to prejudice. If you don't establish for the record how the surprise is prejudicial, it's not unfair. 

I stated that I prepared a defense for the cause of action described in the petition (account stated) and that the elements for the non-plead breach of contract are different and I did not have advance notice to prepare for it. 

[Harry Seaward]

There's a lot of questions we don't have answers for, so we're just guessing at this point. Breach of contract and account stated are not mutually exclusive. Account stated can be alleged in a breach of contract cause of action. A plaintiff can rely solely on an account stated claim if there is no contract in writing. If there is a contract, and the plaintiff can show account statements were sent and not disputed in a timely manner, they can rely on an account stated claim to establish the amount owed in a breach of contract cause of action. 

So without knowing how the complaint was written, and what was presented at trial, it's impossible for us to break down the game film. 

[cjtx2]

7 minutes ago, Harry Seaward said:

There's a lot of questions we don't have answers for, so we're just guessing at this point. Breach of contract and account stated are not mutually exclusive. Account stated can be alleged in a breach of contract cause of action. A plaintiff can rely solely on an account stated claim if there is no contract in writing. If there is a contract, and the plaintiff can show account statements were sent and not disputed in a timely manner, they can rely on an account stated claim to establish the amount owed in a breach of contract cause of action. 

So without knowing how the complaint was written, and what was presented at trial, it's impossible for us to break down the game film. 

Good guesses, btw.

The complaint was on a JP form, so it was extremely brief (3 sentences or so).  

"Plaintiff's claim is for account stated. The claim arises from a XXX credit card account entered into by defendant(s) with XXXX bank, Account No. XXXXX (the Account). The Account is in default and plaintiff sues herein for actual damages, costs of court".

They attached a copy of last statement, bill of sale and worksheet with account info to the petition.

At trial, their business records affidavit included a worksheet with info about the account (dated a year after they bought it), copy of the agreement, bill of sale and a year of account statements.

Aside from the usual claim of personal knowledge of the assignee's records (but nothing about the original creditor's recordkeeping practices), and that the records were integrated and are maintained under the ordinary course of business, it states that there are "no known un-credited payments, counterclaims or offsets against it as of the date of sale".

I introduced proof that the account was disputed with both the OC and the JDB with copies of the disputes and return receipts but the judge did not admit it into evidence.

I also had proof that they were reporting to the credit bureaus that the account was in dispute and the lawyer admitted to it. So there was no way they could prevail on an account stated claim.

[texasrocker]

1 hour ago, cjtx2 said:

I thought about requesting discovery, but I had seen that it was customary for plaintiffs to file a business record affidavit even when there was no discovery request. I just did not know exactly how widespread the practice was (now I know for a fact that over 90% of plaintiffs file a business affidavit 30 days in advance with this court). So I assumed that because they never filed it, either they did not have anything or were not going to show up at trial.

I also considered the option they would try to surprise me at trial, but I never thought the judge would let them get away with it over my objections of unfair surprise and prejudice.

And of course I stated that I had a right to confront the affiant and cross examine.

You screwed yourself by assuming and by not even attempting to begin discovery.  There is hardly anything that is going to be considered an unfair surprise if there was no discovery.  The main problem is there is still no case law established for the vague Texas JP court "new rules" to hold up or strike down any individual judge's idea of how he can interpret them.  Of course you could have been denied approval to begin discovery if you had asked but that in itself could have blazed the trail for a precedent. 

[cjtx2]

2 minutes ago, texasrocker said:

You screwed yourself by assuming and by not even attempting to begin discovery.  There is hardly anything that is going to be considered an unfair surprise if there was no discovery.  The main problem is there is still no case law established for the vague Texas JP court "new rules" to hold up or strike down any individual judge's idea of how he can interpret them.  Of course you could have been denied approval to begin discovery if you had asked but that in itself could have blazed the trail for a precedent. 

You are absolutely right about how subjective JP rules are. However, the fact that so many plaintiffs file a business affidavit with JP courts at least a month in advance suggests there is a reason for doing so. For sure, it is not done out of the goodness of their hearts. There must be some local precedent requiring it.

 

[Harry Seaward]

1 hour ago, cjtx2 said:

There must be some local precedent requiring it.

Statues, caselaw and rules of procedure are the only thing an appellate court will be looking at, so that's where i would spend every ounce of research energy. Trying figure out why things happen in other cases is a waste of resources unless it's tied to one of the three things i mentioned. 

Edit: trial/justice court rulings in other cases are not caselaw. 

[cjtx2]

2 hours ago, Harry Seaward said:

Statues, caselaw and rules of procedure are the only thing an appellate court will be looking at, so that's where i would spend every ounce of research energy. Trying figure out why things happen in other cases is a waste of resources unless it's tied to one of the three things i mentioned. 

From JP court there is still a long way to the appeals court. Right now I am shooting for a new trial, which is limited by the JP's lack of a legal degree (and knowledge).

When you appeal a judgment from JP, it goes to county court and it is tried de novo (with a real judge).

I am not sure what is the difference with a writ of certiorari. It has the same effect (trial de novo), but the deadlines are much more laxed (90 days instead of 21 from judgment date).

An appeal bond or inability to pay has to be approved by the JP. But if you go with a writ of certiorari, the bond or inability to pay is approved in county court.

[Harry Seaward]

8 hours ago, cjtx2 said:

When you appeal a judgment from JP, it goes to county court and it is tried de novo (with a real judge).

Who decides if you are granted this initial level of appeal? 

[cjtx2]

 

31 minutes ago, Harry Seaward said:

Who decides if you are granted this initial level of appeal? 

The filter seems to be posting a bond or inability to pay document. The bond for a defendant is twice the amount of the judgment. Plaintiff's bond if they decide to appeal is $500.

When you post an inability to pay document, the other party may challenge it and if they are successful, you get no appeal.