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Except by agreement of the parties the Court must rule on a motion unless it has been withdrawn or nonsuited.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.
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.)
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.)
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.
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.