Feb 27, 2013 | Uncategorized
New Rules from Texas Supreme Court
As of March 1st we will have a few new rules impacting civil cases in Texas, but in an on-going practice the Supreme Court has decided to make the rules and decisions retroactive by adding the language under paragraph #3:
“Rule of Civil Procedure 91a and Rule of Evidence 902(10)(c) apply to all cases, including those pending on March 1, 2013.” (emphasis added).
Rule 169 and amendments to TRCP 47 and 190 apply to cases filed on or after March 1, 2013.
What are these rules and what do they mean for those of us who actually try cases.
We need to understand the rules to get a good handle on what they mean to our cases currently filed and those to be filed on or after March 1st. First up: Rule 91a. Skip over the fact that we have had rules to handle baseless causes of action for about as long as Texas has been around, let’s see what it does (I have summarized what I believe are the key parts):
Rule 91a Dismissal of Baseless Causes of Action
91a.1 A party may move to dismiss a cause of action on the grounds that it has no basis in law or fact.
A cause of action has no basis in law if the allegations, taken as true, together with the inferences reasonably drawn from them, do not entitle the claimant to the relief sought.
A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.
91a.2 The motion must state:
- That it is made pursuant to this rule;
- Must identify each cause of action to which it is addressed; and
- Must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.
91a.3 The motion must be filed:
- Within 60 days after the first pleading with the challenged cause of action was served on movant;
- Filed at least 21 days before the motion is heard; and
- Granted or denied within 45 days after the Motion is filed.
91a.4 Response to Motion must be filed no later than 7 days before hearing.
91a.5 If the Movant files a withdrawal of the motion or the respondent files a nonsuit of the challenged cause of action – The court may not rule on the motion to dismiss.
If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant before the hearing date may file a withdrawal of the motion or an amended motion directed to the amended cause of action.
Except by agreement of the parties the Court must rule on a motion unless it has been withdrawn or nonsuited.
Any amended motion restarts the time periods.
91a.6 Hearing:
Each party is entitled to at least 14 days’ notice of hearing;
The court may (not required) to have oral hearing;
Court may not consider evidence in ruling on motion and must decide motion based solely on the pleadings.
91a.7 Attorney Fees and Cost of Court – Required
The Court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees. The Court must consider evidence regarding cost and fees in determining award (only evidence allowed).
91a.8 No impact on Special Appearance or Motion to Transfer Venue
91a.9 Rule is in addition to other procedures that authorize dismissal.
So if you file a Motion under rule 91a someone is going to be paying attorney fees and costs. I find it hard to believe that someone would file a pleading that would meet the requirements to dismiss a claim under this section.
Rule 47 Amended:
Now any pleading claiming damages must include (everything as before) and the following:
A statement that the party seeks:
- Only monetary relief of $100,000.00 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or
- Only monetary relief of $100,000.00 or less, and non-monetary relief, or
- Monetary relief over $100,000.00 but not more than $200,000.00; or
- Monetary relief over $200,000.00 but not more than $1,000,000.00; or
- Monetary relief over $1,000,000.00
A party that fails to plead one of the above amounts may not conduct discovery until such is amended to comply.
Rule 169 Expedited Actions:
Apply to all claimants (not counter-claimants) that only monetary relief of $100,000.00 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees.
Does not apply to Family Code, Property Code, Tax Code or Chapter 74 actions.
If you fall under this section you may not recover more than $100k, other than post-judgment interest.
Removal the Court from Expedited Process:
The Court must remove case from process:
- On motion and showing good cause by any party; or
- If any claimant seeks any non-monetary relief
A pleading (amended, supplemental) that would remove the suit from the expedited process may not be filed without leave of the Court unless it is filed before the earlier of 30 days after discovery period is closed or 30 days before the date set for trial.
If suit is removed from the expedited process the court must reopen discovery under Rule 190.2(c).
Expedited Actions Process
Discovery – Rule 190.2
- Discovery period begins from date suit is filed until 180 days after first request for discovery is served on any party.
- Depositions – No more than 6 hours for examination and cross in oral depositions. Parties may agree to expand limit to 10 hours. Court may modify deposition hours.
- Interrogatories – No more than 15 served on any party, other than asking to identify or authenticate specific documents.
- Request for Production – No more than 15 served on any party.
- Request for Admissions– No more than 15 served on any party.
- Request for Disclosure– In addition to those under 194.2 a party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support it claims or defenses.
(If a case is removed from the expedited process, the discovery period reopens and discovery must be completed under 190.3 or 190.4 whichever applies. Any person previously deposed may be redeposed.)
Trial Setting:
The Court must set the case for a trial date that is within 90 days after the discovery period ends. The Court may continue the case twice, but not to exceed a total of 60 days.
Time limits for Trial:
Each side is allowed no more than 8 hours from jury selection through closing. On motion and showing of good cause the court may extend it to a maximum of 12 hours per side. (Time spend on objections, bench conferences, bills of exception and challenges for cause to a juror are not included in the time limit.)
ADR:
The court may refer the case to ADR once (unless the parties have agreed not to) the procedure must:
- a. Not exceed a half day;
- b. Not exceed a total costs of 2x applicable filing fees;
- c. Be completed no later than 60 days before trial setting.
Expert Testimony:
A party may only challenge the admissibility of expert testimony as an objection to summary judgment evidence under Rule166a or during the trial on the merits. Does not apply to motion to strike for late designation.
Medical Records Affidavit are now under TRE 902(10)(c) which is the approved form for a prima facie proof of medical expenses by affidavit post Haygood v. Escobeda.
Feb 26, 2013 | Uncategorized
I love the Houston Livestock Show and Rodeo. My favorite event is bull riding and saddle bronc. If you are a fan (or want to be) just subscribe to this blog and make a comment. We will be giving away 4 lower level seats to the Rodeo for Gary Allen tonight Feb. 26th. Only requirement is that you subscribe, post a comment and be able to pick up the tickets or have someone pick them up in Sugar Land before 6:00pm. Also I would suggest checking daily as I might have other tickets. Winner will be selected randomly from all those who sign up and comment.
Feb 18, 2013 | Uncategorized
New Rules from Texas Supreme Court
As of March 1st we will have a few new rules impacting civil cases in Texas, but in an the Supreme Court has decided to make the rules and decisions retroactive by adding the language under paragraph #3:
“Rule of Civil Procedure 91a and Rule of Evidence 902(10)(c) apply to all cases, including those pending on March 1, 2013.” (emphasis added).
Rule 169 and amendments to TRCP 47 and 190 apply to cases filed on or after March 1, 2013.
We need to understand the rules to get a good handle on what they mean to our cases currently filed and those to be filed on or after March 1st. First up: Rule 91a. Skip over the fact that we have had rules to handle baseless causes of action for about as long as Texas has been around, let’s see what it does (I have summarized what I believe are the key parts):
Rule 91a Dismissal of Baseless Causes of Action
91a.1 A party may move to dismiss a cause of action on the grounds that it has no basis in law or fact.
A cause of action has no basis in law if the allegations, taken as true, together with the inferences reasonably drawn from them, do not entitle the claimant to the relief sought.
A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.
91a.2 The motion must state:
- That it is made pursuant to this rule;
- Must identify each cause of action to which it is addressed; and
- Must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.
91a.3 The motion must be filed:
- Within 60 days after the first pleading with the challenged cause of action was served on movant;
- Filed at least 21 days before the motion is heard; and
- Granted or denied within 45 days after the Motion is filed.
91a.4 Response to Motion must be filed no later than 7 days before hearing.
91a.5 If the Movant files a withdrawal of the motion or the respondent files a nonsuit of the challenged cause of action – The court may not rule on the motion to dismiss.
If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant before the hearing date may file a withdrawal of the motion or an amended motion directed to the amended cause of action.
Except by agreement of the parties the Court must rule on a motion unless it has been withdrawn or nonsuited.
Any amended motion restarts the time periods.
91a.6 Hearing:
Each party is entitled to at least 14 days’ notice of hearing;
The court may (not required) to have oral hearing;
Court may not consider evidence in ruling on motion and must decide motion based solely on the pleadings.
91a.7 Attorney Fees and Cost of Court – Required
The Court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees. The Court must consider evidence regarding cost and fees in determining award (only evidence allowed).
91a.8 No impact on Special Appearance or Motion to Transfer Venue
91a.9 Rule is in addition to other procedures that authorize dismissal.
So if you file a Motion under rule 91a someone is going to be paying attorney fees and costs. I find it hard to believe that someone would file a pleading that would meet the requirements to dismiss a claim under this section.
Rule 47 Amended:
Now any pleading claiming damages must include (everything as before) and the following:
A statement that the party seeks:
- Only monetary relief of $100,000.00 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or
- Only monetary relief of $100,000.00 or less, and non-monetary relief, or
- Monetary relief over $100,000.00 but not more than $200,000.00; or
- Monetary relief over $200,000.00 but not more than $1,000,000.00; or
- Monetary relief over $1,000,000.00
A party that fails to plead one of the above amounts may not conduct discovery until such is amended to comply.
Rule 169 Expedited Actions:
Apply to all claimants (not counter-claimants) that Only monetary relief of $100,000.00 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees.
Does not apply to Family Code, Property Code, Tax Code or Chapter 74 actions.
If you fall under this section you may not recover more than $100k, other than post-judgment interest.
Removal the Court from Expedited Process:
The Court must remove case from process:
- On motion and showing good cause by any party; or
- If any claimant seeks any non-monetary relief
A pleading (amended, supplemental) that would remove the suit from the expedited process may not be filed without leave of the Court unless it is filed before the earlier of 30 days after discovery period is closed or 30 days before the date set for trial.
If suit is removed from the expedited process the court must reopen discovery under Rule 190.2(c).
Expedited Actions Process
Discovery – Rule 190.2
- Discovery period begins from date suit is filed until 180 days after first request for discovery is served on any party.
- Depositions – No more than 6 hours for examination and cross in oral depositions. Parties may agree to expand limit to 10 hours. Court may modify deposition hours.
- Interrogatories – No more than 15 served on any party, other than asking to identify or authenticate specific documents.
- Request for Production – No more than 15 served on any party.
- Request for Admissions– No more than 15 served on any party.
- Request for Disclosure– In addition to those under 194.2 a party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support it claims or defenses.
(If a case is removed from the expedited process, the discovery period reopens and discovery must be completed under 190.3 or 190.4 whichever applies. Any person previously deposed may be redeposed.)
Trial Setting:
The Court must set the case for a trial date that is within 90 days after the discovery period ends. The Court may continue the case twice, but not to exceed a total of 60 days.
Time limits for Trial:
Each side is allowed no more than 8 hours from jury selection through closing. On motion and showing of good cause the court may extend it to a maximum of 12 hours per side. (Time spend on objections, bench conferences, bills of exception and challenges for cause to a juror are not included in the time limit.)
ADR:
The court may refer the case to ADR once (unless the parties have agreed not to) the procedure must:
- a. Not exceed a half day;
- b. Not exceed a total costs fo 2x applicable filing fees;
- c. Be completed no later than 60 days before trial setting.
Expert Testimony:
A party may only challenge the admissibility of expert testimony as an objection to summary judgment evidence under Rule166a or during the trial on the merits. Does not apply to motion to strike for late designation.
Medical Records Affidavit are now under TRE 902(10)(c) which is the approved form for a prima facie proof of medical expenses by affidavit post Haygood v. Escobeda.
Jan 25, 2013 | Uncategorized
The information for this blog is in part from the article written by John Tomasic, the link to the article is at the bottom of the post.
Lori Stodghill 31-years old, seven-months pregnant with twin boys arrived at St. Thomas More hospital in Cañon City on New Year’s Day 2006. She was vomiting and short of breath and she passed out as she was being wheeled into an examination room. Medical staff tried to resuscitate her but, as became clear only later, a main artery feeding her lungs was clogged and the clog led to a massive heart attack. Stodghill’s obstetrician, Dr. Pelham Staples, who also happened to be the obstetrician on call for emergencies that night, never answered a page. His patient died at the hospital less than an hour after she arrived and her twins died in her womb.
Similar stories happen across the U.S. every day, The deaths by medical error far outweigh those caused by guns or other hot button topics. This story probably would have been buried deep within the paper if it was printed at all, but for the title of the article and argument made by the hospitals attorneys.
Unborn babies (fetuses) are not considered babies and are allowed to be aborted or die without repercussion. That is apparently the law in Colorado and as such the attorneys for the hospital stated that the Court “should not overturn the long-standing rule in Colorado that the term ‘person,’ as is used in the Wrongful Death Act, encompasses only individuals born alive. Colorado state courts define ‘person’ under the Act to include only those born alive. Therefore Plaintiffs cannot maintain wrongful death claims based on two unborn fetuses.”
I am both Catholic and an attorney and have strong feelings regarding this matter, but from a legal standpoint the defense appears correct, from a church standpoint – it is in violation of the fundamental beliefs as I understand them. So which is the correct path for the hospital to follow the legal argument which they will probably win under the current status of the law or the moral beliefs of the faith. The reports about the case in the media (social and otherwise) have implied the Church is hypocritical in stating an unborn baby is a baby until it could impact their bank account. I believe there is a different explanation.
The hospital is (I assume) insured and the insurance company would be the ones to provide not only the defense of the claim, but the attorneys to fight it and ultimately be responsible to pay any judgment. As such they are the ones who make the arguments including which defenses they are going to use. In some cases, the defendant may want to settle a case or not agree with the defense, but if it’s a viable defense then they may not have an option. I have been involved in cases where the Defense counsel and insurance carrier denied the claims and it was obvious the Defendant did not agree with those actions. In some cases the insurance carriers and their counsel seem just as willing to sacrifice their own insureds’ reputations and financial security as those against who they are defending the claim. I urge the representatives of the hospital to come forth and clear up the issue. It would be easy to say they believe the unborn baby is a person and they wish to change the laws so as to give those babies (through their parents) the right to bring actions for injury or death. If I am wrong and the hospital administrators truly believe that the unborn baby is not a person then they should resign immediately.
While the focus has become on what the hospital claims regarding the babies the true story is being lost. A mother, wife and children all died apparently due to the malpractice and uncaring actions of a hospital.
http://coloradoindependent.com/126808/in-malpractice-case-catholic-hospital-argues-fetuses-arent-people
Jan 17, 2013 | Uncategorized
Carpenter sisters voted to 2012 All-SCAC Women’s Soccer ‘Second Team’
Former Fort Bend Austin High School players
Melissa (Sugar Land, Texas), a senior forward, netted three goals in 2012 which tied for 15th in the SCAC. 27 shots tied for 16th, while two assists were 18th.
Michelle (Sugar Land, Texas), a sophomore midfielder, ended the 2012 season tied for second in the SCAC with three game-winning goals. A .263 shooting-percentage was third best, while 13 points was tenth in the league. Five goals and three assists were 11th, respectively.
Jul 12, 2012 | Uncategorized
Here is the Van:
15 Passenger vans are one of the most used type of transportation for colleges, church and community groups. What a great concept one vehicle which allows a small group to all travel together, but there is one small problem they are extremely unstable and have a tendency to roll over. NHTSA research shows overloading 15-passenger vans both increases rollover risk and makes the vehicle more unstable in any handling maneuvers. Tire pressure can vary on front and back tires that are used for 15-passenger vans. This is why the agency urges vehicle users to make certain the vans have appropriately-sized and load rated tires that are properly inflated before every trip. Taking into account the fact that tires degrade over time, NHTSA recommends that spare tires not be used as replacements for worn tires. In fact, many tire manufacturers recommend that tires older than 10 years not be used at all.
Following are safety tips for anyone planning a trip in a 15-passenger van:
- Never overload the vehicle.
- If you are a passenger, make sure you buckle up for every trip.
- If you are an owner, make sure the vehicle is regularly maintained.
- Owners should have suspension and steering components inspected according to the manufacturer’s recommended schedule and replace or repair these parts as necessary.
- Owners should ensure that vehicles are equipped with properly sized and load-rated tires.
- Owners should also make sure drivers are properly licensed and experienced in operating a 15-passenger van.
- Before every trip, drivers should check the tires for proper inflation, and make sure there are no signs of wear or damage. Correct tire size and inflation pressure information can be found in the owner’s manual and on the door pillar.
http://nhtsa.gov/About+NHTSA/Press+Releases/2012/Consumer+Advisory:+NHTSA+Offers+Tips+for+Safe+Travel+in+15-Passenger+Vans/
Here is the Scam:
The 15 passenger van is unstable. The van rolls over. The van has caused severe injuries and deaths. The government and manufacturers know it and rather than fix the problem, they try and warn the user and when that doesn’t work blame the user. I know you are thinking “Come on Brent, they told the users about the issues what else do you want them to do?” Glad you asked, but first let’s talk about the “warnings”. For my engineer friends out there (and anyone with common sense) if you can correct a dangerous condition you are to do so; If you can’t correct the condition — you build in as much safety as you can and if you can’t do either then (and only then) you warn the users. So why have the manufacturers skipped the first two and moved straight to the warnings. Simple answer is because NHTSA and courts have let them. So let’s talk about these warnings and what they really tell us:
1st: NHTSA research shows overloading 15-passenger vans both increases rollover risk and makes the vehicle more unstable in any handling maneuvers. Now that is a warm and cozy feeling that in any handling maneuvers the van is unstable and has an increased rollover risk. So don’t overload it right. So what does that mean? I have had the pleasure of deposing a Ford engineer who explained it to me. All you have to do is look in the owner’s manual and find the vans maximum weight. Simple. So now I know, but how do I know how much I have in the van? Well he explained you take the empty weight of the vehicle as you have it and then you take it to a scale or weigh station and weigh it. Then you have your starting empty weight. Now each time you have a person get in the van you get their weight and add that along with any luggage or any other item that is brought onto the van. Add all that up and then you have the total (don’t forget to do so with a full tank of gas) now you have your total weight which you should then verify by driving to a scale to make sure it is correct (some people may not be completely honest about their weight). So that is all you have to do to make sure the van is not overloaded. So where do you find the empty weight or the max weight to use as a reference. Apparently not on the specs page at Ford.com or in the owners’ manual. According to Edmunds.com a 2007 E-150 XLT Passenger van has curb weight (empty) of 5186 lbs. and a gross weight of 8500 lbs. This means that leaves 3314 lbs. of people and stuff you can put in or on the van before it is overloaded. So if you load up the van with a church group, their bags and coolers of water and soda and you are almost guaranteed to be overloaded. This is because the van was originally designed as a cargo van and not a passenger van and the engineers did not design it to have seating positions for 15 people. In addition to the actual weight you have an issue with the distribution of the weight. Instead of it being on the floor of a cargo van, you the majority of the weight being raised up off the floor to seat level and above causing the van to become top heavy greatly adding to the instability. So taking all that into consideration – it is pretty much a miracle if you do not overload the van if you are using it to it full 15 passenger capacities.
Now I know the manufacturers engineers and NHTSA is smarter than me and figured all this out a long time ago, so what did they do? Change the design by making it more stable and increasing rollover resistance? Nope. They tell you to:
“Buckle up.” That way when it rolls over you may survive – if the roof doesn’t crush, if the windows don’t come out and have you going outside, if you are not hit by something flying around the van, etc., etc.
“Make sure van is maintained.” Code for we know this is an unstable van and any little issue is going to make a very bad design completely insane.
“Make sure proper tires.” Code for even though we know it rolls over with the tires we recommend this will give us something else to try and point blame.
“Make sure drivers are properly licensed and experienced.” What the heck does that mean? The only license required is a regular drivers’ license which is who normally drives them. Again this is another after the rollover we can blame the driver for “faulty response” which means our professional test drivers have rolled these vans, but we except you inexperienced driver to do better than our highly paid and trained test drivers.
“Make sure to check tires and pressure before each trip.” Code for that way when it rolls over and we come out for the inspection we can again blame the driver because one tire was 3psi lower than it should have been. Oh and by the way, do not use the spare to replace a tire on the van because it probably is defective due to aging.
These vans are dangerous and will rollover in almost any use when loaded as the manufacturers intended by their design. They sell them as these great safe vehicles for taking up to 15 people and their things places knowing that they have a high potential to rollover. When the rollover they know will occur does, they then blame the driver because he/she should have known how dangerous it was.
The solution is not to try and warn and then blame the users when the vans rollover, but to correct the know defect and danger. Until that is done, it is unfortunately going to continue to kill and maim the drivers and passengers of the 15 passenger vans.
