OPPORTUNITIES AND
CHALLENGES
IN THE NEW TEXAS RULES OF
CIVIL PROCEDURE
By
JOSEPH SOLIZ
THE SOLIZ LAW FIRM, P.L.L.C.
723 Main St., Suite 902
Houston, Texas 77002
www.solizlaw.com
HMPA CLE LUNCHEON – August 13, 2013
Relevant background
•
The Soliz Law Firm, P.L.L.C., Managing Member (1996-2001; 2003-present)
•
Lone Star College – North Harris, Adjunct Professor (Paralegal Studies Program) (2007-present)
•
El Paso Corp., Senior Counsel (2001-2003)
•
Energulf Resources, Inc., Director (2007-2013)
•
Brill, Sinex & Stephenson, Of Counsel (1991-1995)
•
South Texas College of Law – Adjunct Professor (Oil and Gas Law) (1988-1990)
•
Chamberlain, Hrdlicka, White, Williams & Martin - Associate (1981 -1985); Partner (1985-1991)
•
Gulf Oil Corporation, Staff Attorney (1979-81)
•
Certified, Oil, Gas & Mineral Law by Texas Bd. Of Legal Specialization (1985 – present)
•
Harvard Law School, J.D. (1979)
•
Texas State University – San Marcos, B.A. (1976)
2
NEW RULES – DISTRICT &
COUNTY Courts
On February 12, the Texas Supreme Court adopted
new new and amended rules of the Texas Rules of Civil
Procedure for District and County Courts which:
(1) allow defendants, for the first time in Texas state
court practice, to file the equivalent of a Federal Rule 12(b)(6)
motion for dismissal of baseless causes of action, and
(2) provide an expedited trial procedure for cases
involving less than $100,000 in controversy.
The new rules became effective on March 1, 2013. Some of
the new rules apply to all new and pending cases as of the
effective date, while others apply to new cases only.
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New rules – JUSTICE COURTS
On April 15, 2103, the Texas Supreme Court
adopted new new and amended rules for Justice Courts
(abolishing Small Claims Courts in Texas).
The new Justice Court rules become effective
August 31, 2013. They govern cases filed on or after that
date, and apply to pending cases, except if unfeasible or
work injustice.
4
Claims for relief – 47
• Rule 47 now requires a party, in an original pleading
that sets forth a claim for relief, to make a more
specific statement of the relief sought.
• Rule 47(c): a claimant must specify a range of
monetary relief sought. In a multi-claimant case, each
claimant must plead that he or she seeks monetary
relief of $100,000 or less for the case to be considered
an expedited action.
• A party that does not comply with this requirement
cannot conduct discovery until his or her pleading is
amended to comply.
5
Early Dismissal of Meritless
Cases: Rule 91a
The Basics
• Under new Rule 91a, a party may move to dismiss a cause of
action that has “no basis in law or fact.” A claim has no basis in
law if the allegations, taken as true, together with any reasonable
inferences, “do not entitle the claimant to relief.” A claim has no
basis in fact if “no reasonable person could believe the facts as
pleaded.”
• A motion to dismiss a baseless case under Rule 91a must:
state that it is made pursuant to Rule 91a;
identify each cause of action to which it is addressed; and
specifically state the reasons that the cause of action has no
basis in law, fact, or both.
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Early Dismissal of Meritless
Cases: Rule 91a
Timing of Motion
• A Rule 91a motion must be filed within 60 days after the first
pleading that contains the cause of action at issue is served on the
movant and at least 21 days before the hearing on the
motion. Each party is entitled to 14 days’ notice of the hearing,
although the court may decide the motion on the written
submissions. The response is due 7 days before the hearing. If the
respondent amends the cause of action at least 3 days before the
hearing, the movant may withdraw or amend the motion. If the
movant amends the motion, the Rule 91a time periods begin
again. If the respondent nonsuits at least 3 days before the hearing,
the court may not rule on the motion to dismiss. If the
respondent’s amendment or nonsuit is not timely, however, the
court must rule on the motion and may not consider the
amendment or nonsuit.
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Early Dismissal of Meritless
Cases: Rule 91a
Timing of the Court’s Ruling
• The court must generally rule on the Rule 91a motion within
45 days after its filing. This appears to invite movants to
seek mandamus relief if the court fails to timely
rule. The court may not consider any evidence in
deciding the motion.
8
Early Dismissal of Meritless
Cases: Rule 91a
Mandatory Fee Award
• Except in litigation by or against the government, the
prevailing party on a Rule 91a motion is entitled to an
award of fees and costs incurred on the challenged
cause of action.
• The trial court must consider evidence in deciding the
amount of the mandatory award.
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Early Dismissal of Meritless
Cases: Rule 91a
Application of Rule 91a
• Rule 91a applies to all cases, including those pending
on March 1, 2013, other than cases brought under the
Texas Family Code or in inmate litigation.
10
Early Dismissal of Meritless
Cases: Rule 91a
Effect on Order of Pleadings
• Rule 91a does not affect the order of pleadings under
the Texas Rules of Civil Procedure.
• A party seeking to make a special appearance or
motion to transfer venue must still file those pleadings
before filing a Rule 91a motion to dismiss.
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Expedited Actions: Rule 169
The Basics
• Cases (other than those filed in Justice Court or brought
under the Texas Family Code, Property Code, or Tax Code,
or healthcare liability claims brought under Chapter 74 of
the Texas Civil Practice & Remedies Code) where the
amount of controversy is $100,000 or less (including
penalties, costs, expenses and attorney fees) and no nonmonetary relief will now be governed by expedited trial
procedures, which include streamlined discovery and a trial
schedule aimed at swift resolution.
• Rule 169 is mandatory, absent the exceptions discussed
below.
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Expedited Actions: Rule 169
Removal of Cases from the Expedited Process
• Cases must be removed from the expedited process for any of the
following reasons:
• a claimant amends his or her pleading to seek more than
$100,000;
• a claimant amends his or her pleading to seek non-monetary
relief; or
• “for good cause shown.”
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Expedited Actions: Rule 169
• The comments to Rule 169 provide some guidance on
whether “good cause” exists, which may include:
• cases where damages sought by multiple claimants against
the same defendant total more than $100,000;
• cases where a defendant has filed a compulsory
counterclaim in good faith that exceeds $100,000;
• cases that require an interpreter; and
• cases where the number of parties and witnesses or the
complexity of the legal and factual issues warrants removal
from the expedited process.
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Expedited Actions: Rule 169
Referral of the Expedited Case to ADR
• Under Rule 169(d), the court may refer the case to ADR unless
the parties have agreed not to engage in ADR. The ADR
procedure must meet the following parameters:
• it may not exceed a half-day in length;
• it may not exceed a total cost of twice the amount of the
applicable civil filing fees; and
• it must be completed no later than 60 days before the initial trial
setting.
• The parties may agree to engage in a form of ADR other than as
provided for in the Rule.
15
Expedited Actions: Rule 169
Continuances of Expedited Actions
• A court may continue an expedited case twice, not to
exceed a total of 60 days.
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Expedited Actions: Rule 169
Trial of Expedited Actions
• On any party’s motion, the court must set the case for
trial to begin within 90 days after the discovery
deadline.
• Each side has 8 hours at trial, a change from 5 hours
under the previous version of the Rule.
• The court may extend additional time to “no more
than 12 hours per side” on motion for good cause.
17
Level 1 discovery – 190.2
• All expedited actions are subject to Level 1 discovery and
parties may no longer opt out of Level 1 by agreement.
• Discovery period ends 180 days after the first discovery
request is served.
• Limits interrogatories, requests for production, and requests
for admissions to 15 each (down from 25 interrogatories and
unlimited production and admissions requests).
• Permits request for disclosure of all documents, electronic
information, and tangible items.
18
Level 1 plan modification –
190.5
• Rule 190.5 now prohibits the modification of a
discovery control plan in an expedited action.
• The Judge may still allow additional discovery in
expedited actions if certain conditions are met.
.
19
Medical expenses affidavit –
TRE 902(10)(c)
• New self-authenticating form affidavit for medical
expenses.
• Custodian of Billing Records.
• To be distinguished from non-billing medical records.
20
Justice courts - Rules
• Adopted Rules 500-510.
• Repealed Rules 523-591 and 737-755.
• Repealed Section 92.0563(d) of the Texas Property
Code pertaining to the time in which a hearing shall be
held on a tenant suit seeking certain judicial remedies.
• All changes are effective August 31, 2013.
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Justice Court – case types
• Small claims ($10,000 or less, excluding statutory
interest and court costs, but including attorneys fees)
• Debt claims (same limits as above)
• Repair and Remedy (same limits as above)
• Eviction (possession: rent – same limits as above)
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Application of TRCP and TRE
• The other Rules of Civil Procedure and the Rules of
Evidence do not apply except:
• When the Judge hearing the case determines that a
particular rule must be followed to ensure that the
proceedings are fair to all parties; or
• When otherwise specifically provided by law or the new
rules.
23
Judge develops case
• Rule 500.6: In order to develop the facts of the case, a
judge may question a witness or party and may
summon any person or party to appear as a witness
when the judge considers it necessary to ensure a
correct judgment and a speedy disposition.
• No jury trial exception to Rule 500.6.
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Pretrial discovery
• Pretrial discovery is limited to what the Judge
considers reasonable and necessary.
• Pretrial discovery requests must be presented to the
court for approval by written motion.
• Pretrial discovery can’t be served unless the Judge
issues a signed Order approving the request.
• Rule 500.9.
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CONCLUSION
• Texas lawyers handling cases in state court should consider
filing a Rule 91a motion to dismiss if the circumstances
support one. Given the 60-day deadline, a relatively prompt
decision should be made about the viability of a Rule 91a
motion.
• In light of the mandatory fee award provision of Rule 91a,
due consideration should be given to the viability of the
motion and likelihood that the moving party will prevail.
• The expedited action rules and the new Justice Court rules
should allow resolution of relatively low-dollar cases more
efficiently and cost-effectively.
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