Last year, we blogged about the forthcoming new Texas Rules of
Civil Procedure governing pretrial motions to dismiss and
expedited actions for claims under $100,000. ("
Motions to Dismiss in Texas state court - coming soon!"
Dec. 31, 2012; "
New rules for cases seeking $100,000 or less (and more),"
Nov. 27, 2012). Well, they're nearly here. On
February 12, the Supreme Court of Texas approved the final version
of the new rules, which will become effective on March 1.
Although the Court made a number of changes to the preliminary
version of the rules, most of these changes merely clarified the
rules. Substantively, organizations and lawyers on the defense
side were unsuccessful in their last-minute push to make the rules
voluntary, while those who favor mediation were partially
successful in restoring mediation to the expedited action
rule.
The only substantive change to new Rule 91a, governing dismissal
of baseless causes of action, was to change the deadline for filing
a nonsuit of a challenged cause of action, and for withdrawing or
amending a motion to dismiss in response to an amended pleading,
from seven days before the hearing to three days before the
hearing. A wording change also clarified that evidence may be
received regarding attorneys' fees and costs.
Several substantive changes were made to new Rule 169, governing
expedited actions:
- The court may continue the case twice, not to exceed a total of 60 days;
- The length of trial has been expanded from five hours per side to eight hours per side; on a motion showing good cause, this may be expanded to up to twelve hours per side;
- The ban on court-ordered mediation has been replaced with a limitation to a single half-day mediation, with total cost not to exceed twice the filing fees; mediation must be completed no later than 60 days before the initial trial setting;
- A comment has been added describing factors to be considered in determining whether to remove the case from the expedited action process or extend the time limit for trial; these include aggregate damages sought by multiple claimants exceeding more than $100,000, a good-faith counterclaim seeking more than $100,000 or seeking non-monetary relief, the number of parties and witnesses, the complexity of the legal and factual issues, and whether an interpreter is necessary.
Many issues will arise as courts and lawyers begin to gain experience with the new rules. Time will tell whether they accomplish their goals of eliminating meritless claims and streamlining small cases. But for better or worse, the rule-drafting phase has ended and the implementation phase is about to begin.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
