Tag Archives: Houston civil appeal

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

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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)?

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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

Defending Mr. Ed (A Horse Law Update)

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horse 2The title is a bit of a misnomer. Mr. Ed, the talking horse of television fame, would not need a legal defense team. Mr. Ed could talk. Jasper the horse, however, can not talk.  So when Jasper (or rather his owner) was sued by a former caretaker who alleged Jasper was a dangerous horse who attacked his caretaker unprovoked, Jasper needed lawyers. Fortunately for Jasper, he lived in Texas—and in Texas, according to a recent opinion from the Houston 14th Court of Appeals, mere “horse” play (bad pun intended) is not actionable thanks to the Texas Equine Act.

Jasper, in his early life, had been malnourished and presumably abused by a previous owner before the SPCA removed Jasper and brought him back to good health. In August of 2009, Jasper was rescued by Tisa McKim and brought to her stables.

Brenda Young often cared for horses at Jasper’s stable, and upon seeing an advertising flyer posted at the stable, Tisa agreed to pay Brenda each time she fed Jasper or cleaned his stall—$2.50 for the former, $3.00 for the latter. Brenda was given wide discretion in Jasper’s care. Tisa specified feeding instructions considering Jasper’s prior malnourishment, but other decisions were left to Brenda. On January 3rd, 2010, after caring for Jasper for three months, Brenda led Jasper to the paddock to feed him.  During the walk, Brenda stopped to chat with another horse owner. Jasper grazed beside Brenda for a while—then suddenly and without warning, Jasper turned and kicked her.

Brenda sued Tisa for negligence. Tisa moved for summary judgment, arguing the Equine Act, Chapter 87 of the Texas Civil Practice and Remedies Code, shielded her from liability. The Act provides immunity for horse owners against all participants of equine activities due to the inherent risk of equine activities. The trial court agreed that Tisa was immune under the Act and granted her summary judgment motion. Brenda appealed.

On appeal, Brenda claimed the Equine Act only shielded equine sponsors of tourists and other consumers of equine activities from liability. The 14th Court of Appeals did not agree. The Court reasoned that the statute applied to all participants of equine activities, and that leading a horse to a paddock for feeding is an equine activity. Accordingly, Tisa was not liable for Brenda’s injuries resulting from her participation in an equine activity.

Brenda argued alternatively that because Tisa did not warn her that Jasper was an adopted, previously mistreated animal, Tisa willfully disregarded Brenda’s safety and the Equine Act did not offer immunity. Summary judgment evidence showed that mistreated horses may experience “flashbacks” of their mistreatment and may act unpredictable. But the Court held that the evidence was insufficient to create a fact issue because there was no explanation as to what exactly a “horse flashback” is. Nor was there an explanation why someone who held themselves out as qualified to care for horses needed warning of previous malnourishment or the danger of standing behind a horse. Finally, evidence showed Jasper to be well-behaved and “gentlemanly.” The Court held that immunity under the Equine Act still applied, even to rescue horses.

Fortunately for “Gentlemanly” Jasper, the Equine Act continues to provide horse owners with a shield from liability, ensuring that people like Tisa McKim will not be punished for rescuing and caring for abandoned and mistreated animals like Jasper. And for caretakers of horses, one would be wise to remember the immortal words of Christopher Stone: “Horses are uncomfortable in the middle and dangerous at both ends.”

The full opinion can be found at Young v. McKim, 373 S.W.3d 776 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).

El Apple: A Delicious Spanish Fruit or a New Pitfall for Attorneys Seeking Fees?

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apples2Although the Texas Supreme Court handed down its El Apple opinion over 10 months ago, attorneys continue to submit inadequate affidavits and fail to provide redacted fee bills in discovery, causing a number of trial courts to outright deny the recovery of attorney’s fees even in cases where such fees are available under the various statutes authorizing recovery of attorney’s fees.

The pitfall is an easy one to fall into. That is because for nearly 30 years an attorney could submit an affidavit containing the number of hours worked, the rate charged, and an obligatory statement that the fees are “reasonable and necessary,” and this would be sufficient evidence for an award of attorney’s fees. Alas, not any more.

The Texas Supreme Court now requires, at least in cases utilizing the Lodestar Method to calculate attorney’s fees, that an attorney submit “contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed.” El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012). These billing records must include “at a minimum, documentation of the services performed, who performed them and at what hourly rate, when they were performed, and how much time the work required.” Id. at 764.

There is an open question as to whether these new requirements for detailed, contemporaneous billing records apply in cases not relying on the Lodestar Method for calculating attorney’s fees. Given the broad language of the El Apple opinion, however, it is likely that the reasoning is applicable in all instances where an attorney is seeking “reasonable and necessary” attorney’s fees, encompassing nearly all attorney’s fees awards in Texas. A prudent trial attorney would be well-advised not only to keep reasonably-detailed contemporaneous billing records, but to provide redacted copies of those records to opposing counsel before the discovery deadline to avoid issues of admissibility at trial.

While El Apple will continue to be a poisonous fruit to unwitting trial lawyers in their efforts to recover attorney’s fees, savvy trial lawyers will savor the sweet taste of victory when they use this appellate gem to obtain a well-documented and reasoned fee award rightfully belonging to the client.

The full El Apple case can be found here: http://www.supreme.courts.state.tx.us/historical/2012/jun/100490.pdf.

Appellate Law for Texas Trial Lawyers

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Thank you for visiting TexAppBlog.com! This Blog chronicles important appellate decisions that impact all areas of Texas court practice. What is unusual about this particular blog is that it is an appellate blog created for trial lawyers instead of appellate lawyers. Why create an appellate blog for trial lawyers? Simple. Because by the time you decide it is time to call an appellate lawyer, it is often too late to preserve error or perfect an appeal. Trial lawyers face potential appellate issues from initial client contact through post-trial motions, and everything in between. From failing to include a “Mother Hubbard” clause in a summary judgment order to refusing to provide attorney’s fees invoices and waiving your right to recover attorney’s fees, costly errors and omissions await the unsuspecting trial lawyer at every turn. How is one to avoid the seemingly endless array of snares and pitfalls awaiting at every step of litigation? TexAppBlog.com: Preserving error since 2013.