A Primer on Expedited Actions Under Texas Rule of Civil Procedure 169

In 2011, the Texas Legislature passed House Bill 274, which called upon the Supreme Court of Texas to promulgate procedural rules and amendments for expedited civil actions. The Supreme Court formed a task force to answer the legislature’s call, and the task force proposed several modifications to the Texas Rules of Civil Procedure. On November 13, 2012, the Supreme Court adopted the final proposed rules and amendments. This primer provides a review of major portions of the expedited action process.

 

Application of the Expedited Action Process

 

Texas Rule of Civil Procedure 169 governs expedited actions and is intended to reduce the expense and delay of litigation of cases of a certain amount-in-controversy, while maintaining the fairness to litigants. Application of Rule 169 is mandatory if a case falls within the definition of an expedited action.[1] Rule 169 applies to suits in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $ 100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees.[2] Injunctive relief is not available in expedited actions.[3] An action cannot be expedited if a party in the suit has filed a claim governed by the Family Code, the Property Code, the Tax Code, or a healthcare liability claim under Chapter 74 of Texas Civil Practice & Remedies Code.[4]

 

To easily identify suits subject to Rule 169, the pleading requirements of Rule 47 have been amended to require claimants to plead a specific range of the amount-in-controversy. Under Rule 47(c), the claimant’s pleading must now contain 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 $ 500,000; or

(4)   Monetary relief over $ 500,000 but not more than $ 1,000,000; or

(5)   Monetary relief over $ 1,000,000.

 

A party that does not include a Rule 47(c) statement in its pleadings may not conduct discovery until the party’s pleading is amended to comply.[5]

 

However, simply because a suit meets the Rule 167 amount-in-controversy requirement does not mean the suit must remain an expedited action. A court must remove a suit from the Rule 169 process (1) on a motion and showing of good cause by any party or (2) if any claimant, other than a counter-claimant, files a pleading or an amended or supplemental pleading that seeks any relief other than the monetary relief of $ 100,000 or less.[6]

 

Additional deadlines have been enacted for pleadings that would remove a proceeding from the expedited action process. Pleadings that would remove an action from the Rule 169 process may be filed without leave of court if filed before the earlier of 30 days after the discovery period is closed or 30 days before the date set for trial.[7] Leave to amend a pleading that would be subject to removal may only be granted if good cause for filing the pleading outweighs any prejudice to an opposing party.[8]

 

Discovery in Expedited Actions

 

Discovery in expedited actions is governed by Rule 190.2 (Level 1),[9] which has also been amended to be more restrictive than its former versions. The discovery period begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party.[10] Total time for depositions is 6 hours per party, but the parties can agree to increase the total to 10 hours per party.[11] Under the new Level 1 discovery plan, each party is limited to 15 interrogatories, 15 requests for production, and 15 requests for admission.[12] In addition to the typical information available through Requests for Disclosures, a party to an expedited action may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.[13] This request for disclosure is not considered a request for production.[14]

 

Trial of Expedited Actions

 

Living up to their title, expedited actions can be filed and tried in less than a year. On any party’s request, the court must set the case for a trial date that is within 90 days after the discovery period ends.[15] Thus, it is possible for an expedited action to go to trial 270 days after it is filed, if discovery requests are served concurrently with the petition.[16]

 

Quick trials of expedited actions are favored under Rule 169. A court cannot order an expedited action to Alternative Dispute Resolution unless the parties have agreed to engage in ADR or are required to do so by contract.[17] At trial, each side is allowed a total of five (5) hours for voir dire, opening statements, presentation of evidence, examination, cross-examination, and closing statements.[18] Time spent on objections, bench conferences, and challenges for cause are not included in the time limit.[19]

 

The Supreme Court mandated a maximum allowable recovery for expedited actions. If a suit is subject to Rule 169, no party may recover a judgment in excess of $ 100,000, excluding post-judgment interest.[20] Comment 3 to Rule 169 specifically precludes application of the rule from Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990), which states a “trial court must allow a trial amendment that increases the amount of damages sought in the pleadings to that found by the jury unless the opposing party presented evidence of prejudice or surprise.” The maximum recovery in an expedited action is $ 100,000, period.

 

Conclusion

 

It remains to be seen how the expedited action process will affect the already crowded dockets of many district courts. The process should drive attorneys to diligently prosecute their smaller cases.