Member Article

For the first time, Texas rules permit a motion to dismiss.

On February 12, the Texas Supreme Court released the final version of Texas Rule of Civil Procedure 91a, which (1) establishes procedures for dismissal of civil claims, and (2) provides for the mandatory award of attorneys’ fees to the prevailing party.

Here are the key features:

• A motion to dismiss can be filed when the cause of action “has no basis in law or fact.” A claim has no basis in law if the allegations, taken as true, together with any reasonable inferences, “do not entitle the claimant to relief.” A claim has no basis in fact if “no reasonable person could believe the facts as pleaded.”
• The trial court may not consider evidence in deciding the motion.
• The prevailing party is entitled to an award of costs and fees incurred on the challenged cause of action. In deciding the fee award, the trial court must consider evidence.
• The filing of a motion to dismiss does not waive a party’s ability to make a special appearance to challenge jurisdiction or move for a venue transfer.
• The rule becomes effective in all pending and future cases beginning March 1.

Here are the timing considerations:

• Any motion to dismiss must be filed within 60 days of the first pleading containing the challenged cause of action and at least 21 days before the motion is heard;
• The party opposing the motion may respond up to 7 days before any hearing on the motion or may amend its pleadings or take a nonsuit up to 3 days before any hearing;
• The trial court must grant or deny the motion within 45 days of its filing, but may not rule on a claim that is timely nonsuited.

What this rule will mean:

• The fact that the rule includes a mandatory fee award will prevent reflexive usage of motions to dismiss. But for those willing to risk a fee award, the option to shut down meritless claims early in a case should prove popular.

Other New Rules Effective March 1, 2013

• The Texas Supreme Court also issued final rules providing for expedited consideration of certain cases seeking total damages of $100,000 or less. Under these rules, qualifying lawsuits are subject to discovery limitations and must be set for a streamlined trial within 90 days after discovery closes.As part of these changes, Rule 47 was amended to require greater specificity of damage pleadings in all civil suits.
• The Texas Supreme Court approved a new form for all civil court filings.

To see the full text of the new rules click here.

For more information, please visit the Business Litigation or Appellate pages of the Haynes and Boone, LLP website or contact one of the attorneys below.