Tag Archives: Civil procedure

Texas Supreme Court Decides Email is Here to Stay, Amends Rules of Civil Procedure Accordingly

Posted on by

emailWhen it comes to civil courts in Texas, the theme for 2013 was “fast-tracking.” The Texas Rules of Civil Procedure saw a number of changes related to triaging and expediting low-dollar controversies and eliminating “frivolous” cases early in the litigation process. While limiting requests for production and depositions in cases under $100,000 is all well and good, civil courts in Texas face much greater problems on a day-to-day basis.

One such problem is the underutilization of technology. Before 2014, email didn’t exist as far as the Texas Rules of Civil Procedure were concerned, electronic filing by fax was the equivalent of placing an envelope in the mail, and FedEx was a great way to send birthday gifts, but an unacceptable way to send discovery requests. But a new day has dawned, and 2014 is upon us…

The theme for Texas courts in 2014 is “upgrading”—bringing the courts into the 21st century through judicial mandate. The rules go into effect January 1, and they will impact your practice immediately. So without further ado, let’s take a look at the new rules (the order adopting the amendments can be found here):

Three-Day Response Extension Only Applies to Mailed Documents

Under the new rules, the three-day extension for response deadlines under Rule 4 only applies to mailed documents. It does not apply to documents served by fax anymore. It also does not apply to documents sent by UPS, FedEx, or another commercial delivery service. So, for example, motions for summary judgment served by fax (before 5:00 p.m.) or FedEx can be sent 21 days before the hearing, instead of 24.

Service by Email and Commercial Delivery Service

New Rule 21a allows parties to serve documents by email and commercial delivery service (e.g., FedEx and UPS). Documents served by commercial delivery service are deemed served upon deposit with the delivery service. The Rule doesn’t say when service by email is complete.

Email Addresses in Signature Blocks

Under new Rules 21(f)(2) and 57, pleadings and documents that are electronically filed must contain the attorney’s email address.

Redaction of Home Addresses and Other Sensitive Data

Under new Rule 21c, a party cannot file a document without redacting any sensitive data, unless the sensitive data must be included by statute, court rule, or administrative regulation. “Sensitive data” includes driver’s license numbers, social security numbers, birth dates, and home addresses (among other things).

While these Rules seem straightforward, there are pitfalls awaiting unsuspecting litigators. For example, in 2013, you had 33 days to respond to discovery requests sent by fax. Now, in 2014, you have 30, and if you inadvertently calendar the old response deadline, you waive your objections or deem the admissions. Same for discovery received via FedEx. Very troublesome indeed…

But fortunately for you, you began your 2014 with a quick read of these revised rules, and now you won’t begin the New Year with deemed admissions because you miscalendared a deadline. Happy New Year from TexAppBlog!!

TRCP 47: The Overlooked Rule That Can Ruin Your Discovery Plan

Posted on by

prohibitedMuch ado is being made about the recent changes to the Texas Rules of Civil Procedure, especially the new dismissal rule (TRCP 91a, for more information see https://texappblog.com/2013/05/07/trcp-91a-a-state-court-12b6/) and the expedited action rule (TRCP 169). But one often overlooked procedural rule implemented with the dismissal and expedited action rules has some attorneys wondering why their discovery is not being answered.

Texas Rule of Civil Procedure 47, entitled (innocuously enough) “Claims for Relief,” was revised as part of an implementation package to allow courts to triage cases into expedited and non-expedited actions:

Rule 47. Claims for Relief

An original pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third-party claim, shall contain:

(a) a short statement of the cause of action sufficient to give fair notice of the claim involved;

(b) a statement that the damages sought are within the jurisdictional limits of the court;

(c) except in suits governed by the Family Code, a statement that the party seeks:

(1) only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or

(2) monetary relief of $100,000 or less and non-monetary relief; or

(3) monetary relief over $100,000 but not more than $200,000; or

(4) monetary relief over $200,000 but not more than $1,000,000; or

(5) monetary relief over $1,000,000; and

(d) a demand for judgment for all the other relief to which the party deems himself entitled.

With the exception of subsection (c)—the procedural rule for implementing the expedited action rule—this should all sound very familiar to Texas practitioners. However, it is the text after the rule that carries the “bite”:

. . . A party that fails to comply with (c) may not conduct discovery until the party’s pleading is amended to comply.

You read that correctly. No discovery until your pleading (filed after March 1, 2013) is brought into compliance with the new rule. More than a few attorneys have been confounded in recent months by the objection “Discovery is not permitted at this time in accordance with the Texas Rules of Civil Procedure.” Thankfully, you will not be among them.

The full text of the rule can be found here: http://www.supreme.courts.state.tx.us/miscdocket/13/13902200.pdf

TRCP 91a: A State Court 12(b)(6)?

Posted on by

frivilousAttorneys in Texas have a new weapon in the ever-constant battle against “frivolous” lawsuits. The only question that remains is whether that weapon will ever see the battlefield, or, like the often-touted (but almost never used) “loser-pays” offer of settlement, will the rule remain locked within the pages of the Texas statutes—never to see the light of a Texas courtroom?

The new dismissal rule, Texas Rule of Civil Procedure 91a, began as a bright idea within the hallowed halls of the Texas legislature. “The Legislature . . . directed that a more determined effort be made to reduce the expense and delay of litigation, while maintaining fairness to litigants.”

While certainly anyone who has had the misfortune of dealing with a vexatious litigant can sympathize with the desire to fast-track dismissals of frivolous lawsuits, as Milton Friedman once observed, “The government solution to a problem is usually as bad as the problem.”

In response to the perceived wide-spread problem, the legislature passed HB 274. HB 274 added Government Code § 22.004(g), which calls for rules “for the dismissal of causes of action that have no basis in law or fact on motion and without evidence . . . [to be] granted or denied within 45 days of the filing of the motion to dismiss.”

The Texas Supreme Court, in complying with the mandate of § 22.004(g), promulgated the new Texas Rule of Civil Procedure 91a, entitled “Dismissal of Baseless Causes of Action.”

The new rule provides: “Except in a case brought under the Family Code or a case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, 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 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.”

Anyone who has stepped foot in a federal court or a law school civil procedure course should have at least some familiarity with the language of the new Rule 91a, as the language tracks Federal Rule of Civil Procedure 12(b)(6) (as interpreted post-Twombly):

Legal Insufficiency

FRCP 12(b)(6) – “Failure to state a claim upon which relief can be granted”

TRCP 91a – “[A]llegations . . . do not entitle the claimant to the relief sought.”

Factual Insufficiency

FRCP 12(b)(6) – Must cross “the line between possibility and plausibility of entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

TRCP 91a – “[N]o reasonable person could believe the facts pleaded.”

While the prospect of a state court 12(b)(6) sounds encouraging at first, the problems with the new rule become apparent as you continue reading. According to the rule, “the court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court. The court must consider evidence regarding costs and fees in determining the award.”

That’s right, you read that correctly: mandatory attorney’s fees. If the bells and whistles in your risk-adverse mind are not going off, you just might be one of the few who has invoked the “loser-pays” offer of settlement under HB4.

It remains to be seen if attorneys will use the new dismissal rule to pare-down or eliminate groundless lawsuits, or equally important, whether judges will grant these new motions to dismiss in appropriate cases. Until some data is available, I suspect the “bite” of mandatory attorney’s fees will serve as a sufficient deterrent to widespread use.

The new rule can be found at: http://www.supreme.courts.state.tx.us/miscdocket/13/13902200.pdf