Based on hundreds of public comments, the Texas Supreme Court has amended and issued final approval for a new procedural rule for expedited actions in cases with less than $100,000 at issue.
The revisions seem to respond directly to hundreds of public comments on the draft rule that the court had issued on Nov. 13, 2012. Many comments criticized the draft rule's mandatory nature and opposed its prohibition of alternative dispute resolution in expedited actions. Many comments raised concerns with the limits on discovery and trial time. [See previous coverage: "Expedited-Actions Rule Faces Opposition From Bar Sections" and "$100,000 Bar: Plaintiff, Defense Groups Join Forces to Oppose Mandatory Rule for Expedited Actions"]
The final version of the rule remains mandatory; however, it includes significant changes to the ADR provision and also extends the trial time from five to eight hours per side.
According to the court’s Feb. 12 Final Approval of Rules for Dismissals and Expedited Actions, suits filed in justice courts are exempt.
First, the court amended Rule 47 to require litigants to plead more specifically for the damages they seek. In comparison to the draft, the final version of Rule 47 excludes family law cases. But in other types of suits, a plaintiff’s original petition now must list the damages sought, in five categories:
- The first category triggers the expedited action rule: suits seeking only monetary relief of $100,000 or less, including damages, penalties, costs, expenses, pre-judgment interest and attorney fees.
- The second category is $100,000 or less plus non-monetary relief.
- The third category includes suits seeking relief between $100,000 to $200,000. In comparison, in the draft rule, this category extended to $500,000, and subsequent categories continued from there.
- The forth category includes suits seeking $200,000 to $1 million. T
- he fifth category includes suits seeking over $1 million.
TRCP 169 indicates expedited actions won’t apply to suits under the Family Code, Property Code, Tax Code or certain suits by inmates.
The rule limits a plaintiff’s recovery to $100,000, plus post-judgment interest. But this cap doesn’t apply to a counter-claimant seeking more than $100,000.
A court must remove suits from the expedited process on any party’s motion showing good cause or if a claimant, other than a counter-claimant, files an amended pleading seeking non-monetary relief.
In the final version of the rule, the Supreme Court provided guidance on the factors for trial courts to determine “whether there is good cause to remove the case from the process,” including:
- multiple claimants seeking damages against the same defendant totaling more than $100,000;
- a defendant’s counterclaim exceeds $100,000; and
- “the number of parties and witnesses, the complexity of the legal and factual issues, and whether an interpreter is necessary.”
Compared to the draft, the final TRCP 169 adds a provision to allow courts to continue an expedited-action case twice, not to exceed 60 days.
The final rule increases the trial time from five to eight hours per side, and allows parties to file good-cause motions with the court to extend the time up to a maximum of 12 hours per side.
The biggest revision to Rule 169 involves alternative dispute resolution. The draft version said, unless the parties agreed to ADR or a contract required it, a court couldn’t order the parties to ADR. The new version changes that completely.
“Unless the parties have agreed not to engage in alternative dispute resolution, the court may refer the case to an alternative dispute resolution procedure once,” says the final rule. Among other things, the rule indicates that the ADR session can’t exceed a half-day in length, limits the cost of the procedure, and indicates ADR must be done at least 60 days before trial.
The Supreme Court’s final version of TRCP 190, which includes the discovery process for expedited actions, is much the same as the draft version of that rule change. Discovery will last 180 days, starting with the first request for discovery. Each party gets six hours for oral depositions of all witnesses. Parties are limited to 15 each of requests for interrogatories, production and admissions. However, as one of the requests for production, a party may request materials “that the disclosing party has in its possession, custody or control and may use to support its claims or defenses.”
-- Angela Morris