Rules are not Law!
Supreme Court ruling of Arizona v. Miranda, which says rules, cannot abridge substantive rights. Arizona v. Miranda "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."
TITLE 28 Section 2072b states: (b) Such rules shall not abridge, enlarge or modify any substantive right.
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PART II RULES OF PRACTICE IN DISTRICT and COUNTY COURTS
Section 6 Costs and Security Therefor
TRCP 125 PARTIES RESPONSIBLE
Each party to a suit shall be liable to the officers of the court for all costs incurred by himself.
American Commercial Colleges, Inc. v. Davis, 821 S.W.2d 450, 454 (Tex.App-Eastland 1991, writ denied). "[T]he jury found that the reasonable and necessary costs were ,000.00. Costs should not have been submitted as ajury question. The right to costs is based entirely on statutes or procedural rules; the trial court is the proper authority to determine and award costs."
TRCP 126 FEE FOR EXECUTION OF PROCESS DEMAND
No sheriff or constable shall be compelled to execute any process in civil cases coming from any county other than the one in which he is an officer, unless the fees allowed him by law for the service of such process shall be paid in advance; except when affidavit is filed, as provided by law or these rules. The clerk issuing the process shall indorse thereon the words "pauper oath filed," and sign his name officially below them; and the officer in whose hands such process is placed for service shall serve the same.
TRCP 127 PARTIES LIABLE FOR OTHER COSTS
Each party to a suit shall be liable for all costs incurred by him. If the costs cannot be collected from the party against whom they have been adjudged, execution may issue against any party in such suit for the amount of costs incurred by such party, but no more.
TRCP 128 REPEALED
TRCP 129 HOW COSTS COLLECTED
If any party responsible for costs fails or refuses to pay the same within ten days after demand for payment, the clerk or justice of the peace may make certified copy of the bill of costs then due, and place the same in the hands of the sheriff or constable for collection. All taxes imposed on law proceedings shall be included in the bill of costs. Such certified bill of costs shall have the force and effect of an execution. The removal of a case by appeal shall not prevent the issuance of an execution for costs.
TRCP 130 OFFICER TO LEVY
The sheriff or constable upon demand and failure to pay said bill of costs, may levy upon a sufficient amount of property of the person from whom said costs are due to satisfy the same, and sell such property as under execution. Where such party is not a resident of the county where such suit is pending, the payment of such costs may be demanded of his attorney of record; and neither the clerk nor justice of the peace shall be allowed to charge any fee for making out such certified bill of costs, unless he is compelled to make a levy.
TRCP 131 SUCCESSFUL PARTY TO RECOVER
The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.
Martinez v. Pierce, 759 S.W.2d 114, 114 (Tex. 1988). "Taxing of costs against the successful party in the trial court is contrary to [TRCP] 131...." Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 152 (Tex.l988). "[T]he court of appeals ordered that the costs of appeal be taxed equally between TEC and the farm workers.... We reverse the judgment of the court of appeals and order that all costs be assessed against the State. [TRCP] 131 provides that the successful party to a suit shall recover all costs incurred."
Laughlin v. Aectra Tradings & Transp., Inc.,__ S.W.3d __, __ (Tex-App- Houston [ 14th Dist.] 1999, n.p.h.) (No. 14-98-00368-CV; 9-23-99). "[I]n the present case, the parties settled the issues prior to trial, therefore, there is no 'successful' party. Thus, the trial court could not assess the costs of the receivership pursuant to [TRCP] 131."
Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 168 (Tex.App- Houston [14th Dist.] 1996, writ denied). TRCP 131 "requires that the successful party to a suit recover costs from the adverse party, unless the trial court finds good cause to adjudge the costs otherwise and states its reasons on the record pursuant to Rule 141."
TRCP 132 REPEALED
TRCP 133 COSTS OF MOTION
The court may give or refuse costs on motions at its discretion, except where otherwise provided by law or these rules.
TRCP 134 135 REPEALED
TRCP 136 DEMAND REDUCED BY PAYMENTS
Where the plaintiffs demand is reduced by payment to an amount which would not have been within the jurisdiction of the court, the defendant shall recover his costs.
TRCP 137 IN ASSAULT and BATTERY ETC
In civil actions for assault and battery, slander and defamation of character, if the verdict or judgment shall be for the plaintiff, but for less than twenty dollars, the plaintiff shall not recover his costs, but each party shall be taxed with the costs incurred by him in such suit
TRCP 138 COST OF NEW TRIALS
The costs of new trials may either abide the result of the suit or may be taxed against the party to whom the new trial is granted, as the court may adjudge when he grants such new trial.
TRCP 139 ON APPEAL and CERTIORARI
When a case is appealed, if the judgment of the higher court be against the appellant, but for less amount than the original judgment, such party shall recover the costs of the higher court but shall be adjudged to pay the costs of the court below; if the judgment be against him for the same or a greater amount than in the court below, the adverse party shall recover the costs of both courts. If the judgment of the court above be in favor of the party appealing and for more than the original judgment, such party shall recover the costs of both courts; if the judgment be in his favor, but for the same or a less amount than in the court below, he shall recover the costs of the court below, and pay the Cost of the court above.
Keene Corp. v. Gardner, 837 S.W.2d 224,232 (Tex. App.-Dallas 1992, writ denied). "Because the appellate relief given appellant is de minimis compared to appellees' overall award affirmed on appeal, we assess all costs of this appeal against appellant."
TRCP 140 NO FEE FOR COPY
No fee for a copy of a paper not required by law or these rules to be copied shall be taxed in the bill of costs.
TRCP 141 COURT MAY OTHERWISE ADJUDGE COSTS
The court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.
Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex.l985). TRCP 141 "permits a court to assess costs on the prevailing party for good cause as shown on the face of the record."
Laughlin v. Aectra Tradings & Transp., Inc., __ S.W.3d __, __ (Tex.App- Houston [ 14th Dist. ] 1999, n.p.h.) (No. 14-98-00368-CV; 9-23-99). "(A]l though the matter [of costs] is left to the court's discretion to resolve the issue based upon principles of equity, the court should set forth in its order the reasons which prompted it to tax the costs for good cause."
TRCP 142 SECURITY FOR COSTS
The clerk shall require from the plaintiff fees for services rendered before issuing any process unless filing is requested pursuant to Rule 145 of these rules.
TRCP 143 RULE FOR COSTS
A party seeking affirmative relief may be ruled to give security for costs at any time before final judgment, upon motion of any party, or any officer of the court interested in the costs accruing in such suit, or by the court upon its own motion. If such rule be entered against any party and he failed to comply therewith on or before twenty (20) days after notice that such rule has been entered, the claim for affirmative relief of such party shall be dismissed.
TransAmerican Nat. Gas Corp. v. Mancias, 877 S.W.2d 840, 844 (Tex.App- Corpus Christi 1994, orig. proceeding). TRCP 143 "generally allows the trial court to require a party to post security for costs that have already accrued, but not to fix a specific amount for anticipated costs which a party is required to pay or post security for prematurely." See also Hager v. Apollo Paper Corp., 856 S.W.2d 512,515 (Tex.App.-Houston [1st Dist.] 1993, no writ).
TRCP 143a COSTS ON APPEAL TO COUNTY COURT
If the appellant fails to pay the costs on appeal from a judgment of a justice of the peace or small claims court within twenty (20) days after being notified to do so by the county clerk, the appeal shall be deemed not perfected and the county clerk shall return all papers in said cause to the justice of the peace having original jurisdiction and the justice of the peace shall proceed as though no appeal had been attempted.
Farmer v. McGee Sens., Inc., 704 S.W.2d 927,929 (Tex.App.-Tyier 1986, no writ). "Since no notice [of costs] had been given, the trial court erred in applying [TRCP] 143a to dismiss Farmer's appeal."
TRCP 144 JUDGMENT ON COST BOND
All bonds given as security for costs shall authorize judgment against all the obligors in such bond for the said costs, to be entered in the Final judgment of the cause.
Mosher v. Tunnell, 400 S.W.2d 402,404 (Tex.App. -Houston [1st Dist.] 1966, writ refd n.r.e.). TRCP 144 "provides the bond shall authorize judgment against the obligors for said costs. This means such costs as shall be adjudged against the principal whatever be the amount."
TRCP 145 AFFIDAVIT OF INABILITY
In lieu of filing security for costs of an original action, a party who is unable to afford said costs shall file an affidavit as herein described. A "party who is unable to afford costs" is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs. Said affidavit, and the party's action, shall be processed by the clerk in the manner prescribed by this rule.
1. Procedure. Upon the filing of the affidavit, the clerk shall docket the action, issue citation and provide such other customary services as are provided any party. After service of citation, the defendant may contest the affidavit by filing a written contest giving notice to all parties, provided that temporary hearings will not be continued pending the filing of the contest. If the court shall find at the first regular hearing in the course of the action that the party (other than a party receiving a governmental entitlement) is able to afford costs, the party shall pay the costs of the action. Reasons for such a finding shall be contained in an order. Except with leave of court, no further steps in the action will be taken by a party who is found able to afford costs until payment is made. If the party's action results in monetary award, and the court finds sufficient monetary award to reimburse costs, the party shall pay the costs of the action. If the court finds that another party to the suit can pay the costs of the action, the other party shall pay the costs of the action.
2. Affidavit. The affidavit shall contain complete information as to the party's identity, nature and amount of governmental entitlement income, nature and amount of employment income, other income, (interest, dividends, etc.), spouse's income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses. The affidavit shall contain the following statements: "I am unable to pay the court costs. I verify that the statements made in this affidavit are true and correct." The affidavit shall be sworn before a Notary Public.
3. Attorney's Certification. If the party is represented by an attorney who is providing free legal services, without contingency, because of the party's indigency, said attorney may file an affidavit to that effect to assist the court in understanding the Financial condition of the party.
Griffin Indus., Inc. v. 13th Ct. of Appeals, 934 S.W.2d 349,354 (Tex.l996). If a contingency fee agreement between an attorney and an party "provides that the attorney is to pay or advance costs, and the [party] makes no further showing [at a hearing to determine indigency status], the agreement would be some evidence that the [party] has a source of funds from which to pay costs. But, when the facts establish that the attorney will not or cannot pay those costs, ... we cannot erect a legal Fiction that an indigent has the ability
to pay [costs]."
Creel v. D.A. for Medina Cty., 818 S.W.2d 45,46 n.2 (Tex.l991). "We note that the [CPRC] allows a court to dismiss actions Filed in forma pauperis on a Finding that the allegation of poverty is false or the action is frivolous or malicious."
Equitable Gen. Ins. Co. v. Yates, 684 S.W.2d 669, 671 (Tex.l984). "An uncontested affidavit of inability to pay is conclusive as a matter of law."
Holt v. F.F. Enterprises, 990 S.W.2d 756, 758 (Tex.App.-Amarillo 1998, no pet.). "[U]nder [TRCP] 145, the defendant is the only party who may contest an affidavit of inability to pay costs. While the case remains in the trial court, neither the trial court clerk nor the reporter have standing to contest a party's indigent status. However, after judgment, both the clerk and reporter, who may be required to provide a free appellate record, have standing to contest an affidavit of indigence."
Varkonyi v. Troche, 802 S.W.2d 63,65 (Tex.App- El Paso 1990, orig. proceeding). "The trial court's order of denial [of indigent status] failed to comply with (TRCP] 145 which requires that there should be contained in the denial order 'Reasons for such a Finding."'
TRCP 146 DEPOSIT FOR COSTS
In lieu of a bond for costs, the party required to give the same may deposit with the clerk of court or the justice of the peace such sum as the court or justice from time to time may designate as sufficient to pay the accrued costs.
Mosher v. Tunnell, 400 S.W.2d 402, 404-05 (Tex. App.-Houston [ 1st Dist.] 1966, writ refd n.r.e.). "The deposit of court costs, as distinguished from a bond as security for costs, is provided for by [TRCP] 146 and clearly contemplates a deposit only for accrued costs."
TRCP 147 APPLIES TO ANY PARTY
The foregoing rules as to security and rule for costs shall apply to any party who seeks a judgment against any other party.
Exparte Shatter, 649 S.W.2d 300,302 (Tex.l983). " [O]ne who involuntarily comes into court and does not seek any affirmative relief cannot be required to post a cost bond."
TRCP 148 SECURED BY OTHER BOND
No further security shall be required if the costs are secured by the provisions of an attachment or other bond filed by the party required to give security for costs.
Buck v. Johnson, 495 S.W.2d 291,298 (Tex. App.-Waco 1973, writ refd n.r.e.). "(T)he option lies with the party ruled for costs, and not with the court, as to whether a cost bond shall be furnished or a deposit in lieu of bond."
TRCP 149 EXECUTION FOR COSTS
When costs have been adjudged against a party and are not paid, the clerk or justice of the court in which the suit was determined may issue execution, accompanied by an itemized bill of costs, against such party to be levied and collected as in other cases; and said officer, on demand of any party to whom any such costs are due, shall issue execution for costs at once. This rule shall not apply to executors, administrators or guardians in cases where costs are adjudged against the estate of a deceased person or of a ward. No execution shall issue in any case for costs until after judgment rendered there-for by the court.
Nelon v. Thomas, 329 S.W.2d 148, 151 (Tex.App-Texarkana 1959, writ ref'd n.r.e.). "The order [for costs] was clearly an interlocutory order of the trial court and it was not one of the type of interlocutory orders made ... appealable by any of the statutes and rules of civil procedure of this state...."
Section 7 Abatement and Discontinuance of Suit
TRCP 150 DEATH OF PARTY
Where the cause of action is one which survives, no suit shall abate because of the death of any party thereto before the verdict or decision of the court is rendered, but such suit may proceed to judgment as hereinafter provided.
Palomino v. Palomino, 960 S.W.2d 899, 900-01 (Tex.App.-El Paso 1997, pet. denied). "When a party to a suit dies, the suit will not abate if the cause of action survives the death of that party. The general rule in Texas is that a cause of action for divorce is purely personal and becomes moot and abates upon the death of either spouse ... However, when a trial court has rendered judgment on the merits in a divorce case, the cause does not abate when a party dies, and the cause cannot be dismissed."
TRCP 151 DEATH OF PLAINTIFF
If the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear and upon suggestion of such death being entered of record in open court, may be made plaintiff, and the suit shall proceed in his or their name. If no such appearance and suggestion be made within a reasonable time after the death of the plaintiff, the clerk upon the application of defendant, his agent or attorney, shall issue a scire facias for the heirs or the administrator or executor of such decedent, requiring him to appear and prosecute such suit. After service of such scire facias, should such heir or administrator or executor fail to enter appearance within the time provided, the defendant may have the suit dismissed.
Gracey v. West, 422 S.W.2d 913, 918 (Tex.l968). TRCP 151 "requires defendant to have a scire facias issued bringing in a deceased plaintiffs representative and his failure to appear before defendant can have the cause discontinued."
TRCP 152 DEATH OF DEFENDANT
Where the defendant shall die, upon the suggestion of death being entered of record in open court, or upon petition of the plaintiff, the clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit and upon the return of such service, the suit shall proceed against such administrator or executor or heir.
Estate of Pollack v. McMurrey, 858 S.W.2d 388, 390 n.2 (Tex.l993). "Scire facias ... provides for substitution of any person or persons succeeding to the rights of the original party, whether executor, administrator, heir, or person holding the same practical relation."
Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex.l987). After the death of the defendant, the plaintiff "filed an amended petition naming the Estate of Bruce L. Crow as defendant. The attorney who had represented Crow filed an amended answer on behalf of the Estate.... Trial was had on those pleadings." Held: The trial court had no jurisdiction, because the plaintiff did not sue the personal representative.
TRCP 153 WHEN EXECUTOR ETC DIES
When an executor or administrator shall be a party to any suit, whether as plaintiff or as defendant, and shall die or cease to be such executor or administrator, the suit may be continued by or against the person succeeding him in the administration, or by or against the heirs, upon like proceedings being had as provided in the two preceding rules, or the suit may be dismissed, as provided in Rule 151.
TRCP 154 REQUISITES OF SCIRE FACIAS
The scire facias and returns thereon, provided for in this section, shall conform to the requisites of citations and the returns thereon, under the provisions of these rules.
Mackintosh v. State, 845 S.W.2d 361, 363 (Tex. App- Houston [1st Dist] 1992, no writ). "[T]here is a provision for amending the scire facias documents if necessary and the court is apprised of the necessity. [If] The [TRCPs] provide that scire facias shall conform to the requisites of citations under the rules."
TRCP 155 SURVIVING PARTIES
Where there are two or more plaintiffs or defendants, and one or more of them die, upon suggestion of such death being entered upon the record, the suit shall at the instance of either party proceed in the name of the surviving plaintiffs or against the surviving defendants, as the case may be.
First Nat'l Bank v. Hawn, 392 S.W.2d 377, 379 (Tex-App.-Dallas 1965, writ refd n.r.e.). "Having elected to proceed under [TRCP] 155 against the surviving defendant, approving a judgment against that defendant ... and that judgment having become final ... (the plaintiff] had no right to ... suggest [the other defendant's] death and endeavor to reinstate the suit as to his legal representative."
TRCP 156 DEATH AFTER VERDICT OR CLOSE OF EVIDENCE
When a party in a jury case dies between verdict and judgment, or a party in a non-jury case dies after the evidence is closed and before judgment is pronounced, judgment shall be rendered and entered as if all parties were living.
Nacogdoches Mem. Hosp. v. Justice, 694 S.W.2d 204.206 (Tex.AoD- Tyier 1985. writ ref'd n.r.e.). "The obvious purpose of [TRCP] 156 is merely to avoid a mistrial in a jury case upon the death of [al party occurring after a jury has resolved all material disputed issues of fact."
TRCP 157 REPEALED
TRCP 158 SUIT FOR THE USE OF ANOTHER
When a plaintiff suing for the use of another shall die before verdict, the person for whose use such suit was brought, upon such death being suggested on the record in open court, may prosecute the suit in his own name, and shall be as responsible for costs as if he brought the suit.
TRCP 159 SUIT FOR INJURIES RESULTING IN DEATH
In cases arising under the provisions of the title relating to injuries resulting in death, the suit shall not abate by the death of either party pending the suit, but in such case, if the plaintiff dies, where there is only one plaintiff, some one or more of the parties entitled to the money recovered may be substituted and the suit prosecuted to judgment in the name of such party or parties, for the benefit of the person entitled; if the defendant dies, his executor, administrator or heir may be made a party, and the suit prosecuted to judgment.
TRCP 160 DISSOLUTION OF CORPORATION
The dissolution of a corporation shall not operate to abate any pending suit in which such corporation is a defendant, but such suit shall continue against such corporation and judgment shall be rendered as though the same were not dissolved.
TRCP 161 WHERE SOME DEFENDANTS NOT SERVED
When some of the several defendants in a suit are served with process in due time and others are not so served, the plaintiff may either dismiss as to those not so served and proceed against those who are, or he may take new process against those not served, or may obtain severance of the case as between those served and those not served, but no dismissal shall be allowed as to a principal obligor without also dismissing the parties secondarily liable except in cases provided by statute. No defendant against whom any suit may be so dismissed shall be thereby exonerated from any liability, but may at any time be proceeded against as if no such suit had been brought and no such dismissal ordered.
Osborne v. St. Luke's Episcopal Hasp., 915 S.W.2d 906, 908 (Tex.App- Houston [1st Dist] 1996, writ denied). "Although the Nov. 19 summary judgment did not explicitly dispose of the 8 nonappearing defendants that were not properly sued or served, such a judgment is normally considered final for purposes of appeal and the case stands as if there had been a discontinuance as to the parties not served."
Young v. Hunderup, 763 S.W.2d 611, 612-13 (Tex. App.-Austin 1989, no writ). "Where the judgment disposes of all named parties except those which have not been served and have not appeared ... the judgment is considered final for purposes of appeal and the case stands as if there had been a discontinuance as to those parties not served." Contra Reed v. Gum Keepsake
Diamond Center, 657 S.W.2d 524,525 (Tex.App- Corpus Christi 1983, no writ) (judgment was not final because co-defendant was not served, did not waive the service, did not make an appearance, and was not dismissed).
TRCP 162 DISMISSAL OR NON SUIT
At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-suit shall be served in accordance with Rule 21 a on any party who has answered or has been served with process without necessity of court order. Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal, as determined by the court. Any dismissal pursuant to this rule which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered by the court.
In re Bennett, 960 S.W.2d 35, 38 (Tex.l997). " [P]laintiffs have the right under [TRCP] 162 to take a nonsuit at any time until they have introduced all evidence other than rebuttal evidence. Such a nonsuit may have the effect of vitiating earlier interlocutory orders and of precluding further action by the trial court.... [11] Appellate timetables do not run from the date a nonsuit is Filed, but rather from the date the trial court signs an order of dismissal. [ If ] While ... a trial court has no discretion to refuse to sign an order of dismissal once notice of a nonsuit has been Filed, ... [the] court is free to 'impose [ ] sanctions while it retain[s] plenary jurisdiction' even when a motion for sanctions is Filed after the notice of nonsuit is Filed."
Scott & White Mem. Hosp. v. Schexnider, 940 S.W.2d 594,595 (Tex.l996). "Does the trial court have the power during its plenary jurisdiction to grant a motion for sanctions under [TRCP] 13 even though the motion was not pending when a nonsuit is Filed? [Yes.] At 596: A trial court need not reinstate a case in order to exercise its powers under Rule 13."
Farmer v. Ben E. Keith Co., 907 S.W.2d 495,496 (Tex.l995). "When a judgment is interlocutory because unadjudicated parties or claims remain before the court, and when one moves to have such unadjudicated claims or parties removed by severance, dismissal, or nonsuit, the appellate timetable runs from the signing of a judgment or order disposing of those claims or parties. ... The appellate timetable does not commence to run other than by signed, written order, even when the signing of such an order is purely ministerial."
Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854-55 (Tex.l995). "In Texas, our general rule is that plaintiffs have the right to take a nonsuit at any time until they introduce all evidence other than rebuttal evidence. ... Such a nonsuit may have the effect of vitiating earlier interlocutory orders. ... A decision on the merits, such as a summary judgment, however, is not vitiated.... This includes partial summary judgments."
TRCP 163 DISMISSAL AS TO PARTIES SERVED ETC
When it will not prejudice another party, the plaintiff may dismiss his suit as to one or more of several parties who were served with process, or who have answered, but no such dismissal shall in any case, be allowed as to a principal obligor, except in the cases provided for by statute.
Texas Cab Co. v. Giles, 783 S.W.2d 695, 697 (Tex App.-El Paso 1989, no writ). "Unless the settlement with the deleted defendant was properly presented to the trial court, there generally could have been no dismissal to that defendant under [TRCP] 162 or 163, a.' the dismissal would have prejudiced the codefendant."
TRCP 164 REPEALED
TRCP 165 ABANDONMENT
A party who abandons any part of his claim or defense, as contained in the pleadings, may have that fact entered of record, so as to show that the matter; therein were not tried.
In re Shaw, 966 S.W.2d 174, 177 (Tex.App- Paso 1998, no pet.). "Whether a pleading has been abandoned is a question of law which we review de novo. Formal amendment of the pleadings is not required in order to show abandonment. Indeed, a stipulation may form the basis for abandonment."
In re R.G., 865 S.W.2d 504,508 (Tex.App.--Corpis Christi 1993, no writ). TRCP 165 "permits the abandonment of claims; however, the rule has been interpreted to require abandonment 'before but not after trial of the cause and entry of the judgment.' This is the same requirement as for the non-suit."
TRCP 165a DISMISSAL FOR WANT OF PROSECUTION
1. Failure to Appear. A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket. If the court determines to maintain the case on the docket, it shall render a pretrial order assigning a trial date for the case and setting deadlines for the joining of new parties, all discovery, Filing of all pleadings, the making of a response or supplemental responses to discovery and other pretrial matters. The case may be continued thereafter only for valid and compelling reasons specifically determined by court order. Notice of the signing of the order of dismissal shall be given as provided in Rule 306a. Failure to mail notices as required by this rule shall not affect any of the periods mentioned in Rule 306a except as provided in that rule.
2. Non-Compliance With Time Standards. Any case not disposed of within time standards promulgated by the Supreme Court under its Administrative Rules may be placed on a dismissal docket.
3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers on file. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing. The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.
In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, or, within such other time as may be allowed by Rule 306a, the motion shall be deemed overruled by operation of law. If a motion to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.
4. Cumulative Remedies. This dismissal and reinstatement procedure shall be cumulative of the rules and laws governing any other procedures available to the parties in such cases. The same reinstatement procedures and timetable are applicable to all dismissals for want of prosecution including cases which are dismissed pursuant to the court's inherent power, whether or not a motion to dismiss has been filed.
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628,630 (Tex.l999). "The trial court's authority to dismiss for want of prosecution stems from two sources: (1) [TRCP] 165a... and (2) the court's inherent power. [A] party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either Rule 165a or its inherent authority. The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal."
Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex.l995). "The operative standard (to reinstate after dismissal for want of prosecution) is essentially the same as that for setting aside a default judgment. ... A failure to appear is not intentional or due to conscious indifference within the meaning of the rule merely because it is deliberate; it must also be without adequate justification. Proof of such justification -accident, mistake or other reasonable explanation -negates the intent or conscious indifference for which reinstatement can be denied. ... Also, conscious indifference means more than mere negligence."
Thordson v. City of Houston, 815 S.W.2d 550,550 (Tex.l991). Under the language in TRCP 165a(4), "it was not within the discretion of the trial court to fail to hold an oral hearing on the motion to reinstate."
McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990). "A proper motion to reinstate must be verified and Filed with the clerk within 30 days of the signing of the order of dismissal. ... Since [the plaintiff] did not File a verified motion to reinstate within 30 days of the signing of the order of dismissal, the trial court's jurisdiction to reinstate the case expired."
Daley v. Powerscreen Tex. Holdings, Inc., __ S.W.3d__,__(Tex-App- Houston [14th Dist.] 1999, n.p.h.) (No. 14-98-00132-CV; 9-30-99). "An oral hearing is required on any timely Filed, verified, motion to reinstate even if the grounds stated in the motion do not warrant mandatory reinstatement of the case. At __ n.2: Thus, ... (1) such a motion to reinstate cannot simply be taken up on a submission docket without oral hearing; and (2) a hearing must be held on a motion to reinstate even where a hearing was already held on the dismissal."
Northbrook Prop. & Cas. Ins. Co. v. C& C Erection, Inc ., __ S.W.3d __, __ (Tex.App.-San Antonio 1999, n.p.h.) (No. 04-98-01063-CV; 9-22-99). "Whether a plaintiff has prosecuted a case with diligence is generally a question of fact. To decide the due diligence issue, the trial court may consider the entire history of the litigation. The traditional factors considered are: (1) the length of time the case was on File; (2) the extent of activity in the case; (3) whether a trial setting was requested; and (4) the existence of reasonable excuses for the delay. No single factor is dispositive. The existence of a belated trial setting or an asserted eagerness to proceed to trial is not conclusive and does not preclude the dismissal of the action."
Burton v. Hoffman, 959 S.W.2d 351, 353 (Tex. App-Austin 1998, no pet.). Under TRCP 165a "a trial court may dismiss a case for failure to appear at trial or a hearing, and the clerk is required to send notice of the court's intention to dismiss and the date and the place of the dismissal hearing to the attorney of record." Texas DPS v. Deck, 954 S.W.2d 108, III (Tex. App.-San Antonio 1997, no writ). "[A] court, on its own, can reinstate a case after dismissal."
Rohus v. Licona, 942 S.W.2d III, 112 (Tex.App- Houston [1st Dist.) 1997, no writ). "A notice of intent to dismiss does not comply with [TRCP] 165a if the notice does not also provide notice of the date and place of the dismissal hearing."
Section 8 Pretrial Procedure
TRCP 166 PRETRIAL CONFERENCE
In an appropriate action, to assist in the disposition of the case without undue expense or burden to the parties, the court may in its discretion direct the attorneys for the parties and the parties or their duly authorized agents to appear before it for a conference to consider:
(a) All pending dilatory pleas, motions and exceptions;
(b) The necessity or desirability of amendments to the pleadings;
(c) A discovery schedule;
(d) Requiring written statements of the parties' contentions;
(e) Contested issues of fact and simplification of the issues;
(f) The possibility of obtaining stipulations of fact;
(g) The identification of legal matters to be ruled on or decided by the court;
(h) The exchange of a list of direct fact witnesses, other than rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before the time of trial, who will be called to testily at trial, staling their address and telephone number, and the subject of the testimony of each such witness;
(i) The exchange of a list of expert witnesses who will be called to testify at trial, staling their address and telephone number, and the subject of the testimony and opinions that will be proffered by each expert witness;
(j) Agreed applicable propositions of law and contested issues of law;
(k) Proposed jury charge questions, instructions, and definitions for a jury case or proposed findings of fact and conclusions of law for a nonjury case;
(1) The marking and exchanging of all exhibits that any party may use at trial and stipulation to the authenticity and admissibility of exhibits to be used at trial;
(m) Written trial objections to the opposite party's exhibits, staling the basis for each objection;
(n) The advisability of a preliminary reference of issues to a master or auditor for Findings to be used as evidence when the trial is to be by jury;
(o) The settlement of the case, and to aid such consideration, the court may encourage settlement;
(p) Such other matters as may aid in the disposition of the action.
The court shall make an order that recites the action taken at the pretrial conference, the amendments allowed to the pleadings, the time within which same may be filed, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions, agreements of counsel, or rulings of the court; and such order when issued shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or
extend it to all actions.
Koslow's v. Mackie, 796 S.W.2d 700, 703 (Tex. 1990). TRCP 166 "obviously includes the power to order the parties through their attorneys (or through themselves if appearing pro se) to confer to narrow the issues for the written pretrial conference report."
Provident Life & Ace. Ins. Co. v. Hazlitt, 216 S.W.2d 805, 807 (Tex.l949). "The purpose of [TRCP 1661 is to simplify and shorten the trial.... [N]o controverted issues of fact could be adjudicated at [the pretrial] conference, but orders could be entered disposing of issues which are founded upon admitted or undisputed facts."
Lindley v. Johnson, 936 S.W.2d 53,55 (Tex.App-- Tyier 1996, writ denied). "When a trial court's pretrial scheduling order changes the deadlines set forth in a procedural rule, the trial court's order prevails."
Masterson v. Cox, 886 S.W.2d 436,439 (Tex.App- Houston [ 1st Dist.] 1994, no writ). There is "no rule or caselaw that authorizes the trial court to hear evidence of both liability and unliquidated damages in a pretrial conference and to dispose of a case on the merits...."
TRCP 166a SUMMARY JUDGMENT
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of damages.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be Filed and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may File and serve opposing affidavits or other written response. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on File at the time of the hearing, or Filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.
(d) Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery products not on File with the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are Filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs: (i) at least twenty-one days before the hearing if such proofs are to be used to support the summary judgment; or (ii) at least seven days before the hearing if such proofs are to be used to oppose the summary judgment.
(e) Case Not Fully Adjudicated on Motion. If summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file, interrogate counsel, ascertain what material fact issues exist and make an order specifying the facts that are established as a matter of law, and directing such further proceedings in the action as are just.
(f) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the afFiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.
(g) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
(i) No-Evidence Motion. After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.
SJ Hearing
Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.l998). "An oral hearing on a motion for summary judgment may be helpful ... just as oral argument is often helpful on appeal, but since oral testimony cannot be adduced in support of or opposition to a motion for summary judgment, an oral hearing is not mandatory. Notice of hearing or submission of a summary judgment motion, however, is required, although as the court of appeals said, it is not 'jurisdictional'. The hearing date determines the time for response to the motion; without notice of hearing, the respondent cannot know when the response is due."
SJ Notice
Lenert v. State Farm Lloyds Ins. Co., __ S.W.3d __, __ (Tex-App- Corpus Christi 1999, n.p.h.) (No. 13-97-422-CV; 8-26-99). "The 21 day notice requirement does not apply to a resetting of the motion provided the non-movant had 21 days notice."
Traditional SJ
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217,224 (Tex.l999). " [N] either of the agreed case management orders facially purports to shift the burden of raising fact issues on limitations, the discovery rule, or causation to the [Ps]. The [Ps] only agreed to and the orders only obligated them to provide, on a day certain, the affidavits described above. We conclude that neither case management order served to shift the burden of proof under [TRCP] 166a(c)."
Park Place Hasp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex.l995). For defendants "to prevail, they were required to prove that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law.... In reviewing a summary judgment, we must accept as true evidence favoring the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor."
Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.l995). "A defendant who conclusively negates at least one of the essential elements of each of the plaintiffs causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment."
No-Evidence SJ
Thomas v. Clayton Williams Energy, Inc., __ S.W.3d __, __ n.l (Tex.App- Houston [14th Dist.] 1999, n.p.h.) (No. 14-98-00583-CV; 9-23-99). "[A]fter reviewing the record, it is unclear whether [D] moved for summary judgment under [TRCP] 166a(b) or [TRCP] 166a(i). As a result, [D] failed to give [P] 'fair notice' that it was moving for summary judgment under rule 166a(i)."
Saenz v. Southern Un. Gas Co., 999 S.W.2d 490, 493-94 (Tex.App-El Paso 1999, n.p.h.) (No. 08-98- 00175-CV; 7-29-99). "To marshal one's evidence is to arrange all of the evidence in the order that it will be presented at trial. A party is not required to present or arrange all of its evidence in response to a summary judgment motion."
Aguirre v. South Tex. Blood & Tissue Ctr., ___ S.W.3d __, __ (Tex.App.-San Antonio 1999, n.p.h.) (No. 04-98-00688-CV; 7-21-99). "A no-evidence summary judgment is the functional equivalent of a pretrial directed verdict...."
Grant v. Southwestern Elec. Power Co., 998 S.W.2d 383, 387-88 (Tex.App.-Texarkana 1999, n.p.h.). "[D's] motion contained both a no-evidence summary judgment motion under [TRCP] 166a(i) and an ordinary summary judgment motion, under [TRCP] 166a(b) & (c). The rules do not prohibit such a hybrid motion, but we think the better practice is either to File two separate motions, one containing the no evidence summary judgment and one containing the ordinary summary judgment, or to File one document containing both motions but with the arguments and authorities for each clearly delineated and separate from one another."
Denton v. Big Spring Hasp. Corp., 998 S.W.2d294, 298 (Tex.App- Eastland 1999, n.p.h.). "The motion must specifically state the elements for which there is no evidence. ... The rule requires a motion to be specific in alleging a lack of evidence on an essential element of a plaintiffs cause of action, but it does not require that the motion specifically attack the evidentiary components that may prove an element of the cause of action."
Abraham v. Ryland Mtg. Co., 995 S.W.2d 890,892 (Tex.App.-El Paso 1999, n.p.h.). "There is no reference to any element of [P's] cause of action as [TRCPI 166a(i) requires, nor is there any reference to any specific allegation contained in [P's] petition. Accordingly, [D's] motion did not meet the requirements of the Rule and the trial court could not have appropriately granted summary judgment on that ground."
Lampasas v. Spring Ctr" Inc., 988 S.W.2d 428,432 (Tex.App.-Houston [HthDist.] 1999, n.p.h.). "The new no evidence summary judgment shifts the burden of proof to the nonmovant to present enough evidence to be entitled to a trial. If the nonmovant is unable to provide enough evidence, then trial court must grant the motion."
Macias v. Fiesta Mart, Inc., 988 S.W.2d 316,316- 17 (Tex.App- Houston [1st Dist.] 1999, n.p.h.). "In a no-evidence summary judgment, the movant must specifically state the elements as to which there is no evidence. The burden then shifts to the non-movant to bring forth evidence that raises a fact issue on the challenged elements."
Esco OU& Gas, Inc. v. Sooner Pipe & Sap. Corp., 962 S.W.2d 193,197 n.3 (Tex.App.-Houston [1st Dist] 1998, pet. denied). Under TRCP 166a(i) "the plaintiff as the nonmovant [has] the burden to raise a triable issue on each element essential to the plaintiffs case against each defendant."
Form of the Motion or Response Abbott Lab., Inc. v. Segura, 907 S.W.2d 503, 507 (Tex.l995). "[A] motion for summary judgment 'shall state the specific grounds [and] issues not expressly presented by written motion, answer, or other response shall not be considered on appeal as grounds for reversal.'"
In re B.LV., 870 S.W.2d 12, 13 (Tex.l994). "A summary judgment should not be based on a pleading deficiency that could be cured by amendment."
McConnell v. Soathside ISD, 858 S.W.2d 337,341 (Tex.l993). "In determining whether grounds are expressly presented, reliance may not be placed upon briefs or summary judgment evidence."
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.l979). "The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant's summary judgment proof is legally insufficient."
Digby v. Texas Bank, 943 S.W.2d 914, 928 (Tex. App.-El Paso 1997, writ denied). "Because the rules do not require a written reply to a non-movant's response on summary judgment, substantive objections to the non-movant's affidavits may be raised for the first time on appeal."
SJ Evidence
Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). "An expert's testimony will support summary judgment only if it is 'clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.' Conclusory statements by an expert are insufficient to support or defeat summary judgment."
Trico Tech. Corp. v. Montiel, 949 S.W.2d 308,310 (Tex.l997). "The mere fact that the affidavit is self serving does not necessarily make the evidence an improper basis for summary judgment. Summary judgment based on the uncontroverted affidavit of an interested witness is proper if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. 'Could have been readily controverted' does not mean that the summary judgment evidence could have been easily and conveniently rebutted, but rather indicates that the testimony could have been effectively countered by opposing evidence."
United Blood Servs. v. Longoria, 938 S.W.2d 29,30 (Tex.l997). "When a party relies on expert testimony, this requirement includes proof of the expert's qualifications. [II] Whether a witness is qualified to offer expert testimony is a matter committed to the trial court's discretion."
Benchmark Bank v. Crowder, 919 S.W.2d 657,663 (Tex.l996). "McCool's testimony is not part of the summary judgment record. McCool's affidavit was filed 2 days before the summary judgment hearing. Summary judgment evidence may be Filed late, but only with leave of court.... There is no order in this record granting the Crowders leave to File McCool's affidavit late."
Wilson v. Burford, 904 S.W.2d 628,629 (Tex.l995). "Defendants moved for summary judgment [but their] motion did not incorporate or refer to any specific summary judgment evidence. However, an accompanying brief referred to a deposition attached to the brief.... [ It ] The deposition transcript ... was ... proper summary judgment evidence on which both the movant and the respondent could rely...."
McConathy v. McConathy, 869 S.W.2d 341, 341 (Tex-1994). "(D]eposition excerpts [and other discovery] submitted as summary judgment evidence need not be authenticated. At 342: All parties have ready access to depositions taken in a cause, and thus deposition excerpts submitted with a motion for summary judgment may be easily veriFied as to their accuracy."
Casso v. Brand, 776 S.W.2d 551,558 (Tex.l989). "If the credibility of the affiant ... is likely to be a dispositive factor in the resolution of the case, then summary judgment is inappropriate. On the other hand, if the non-movant must, in all likelihood, come forth with independent evidence to prevail, then summary judgment may well be proper in the absence of such controverting proof."
Watts v. Hermann Hasp., 962 S.W.2d 102, 105 (Tex.App- Houston [IstDist.] 1997, no pet.). "Without a proper objection, defects in the authentication of attachments in support of a motion for summary judgment or response are waived."
Final vs. Partial SJ
Newco Drilling Co. v. Weyand, 960 S.W.2d 654, 656 (Tex.l998). "[A] plaintiff cannot avoid the effects of a partial summary judgment by subsequently filing a nonsuit, and any issues decided in the partial summary judgment are dismissed with prejudice. (A] plaintiff, who after suffering an adverse summary judgment allows his claims to be dismissed for want of prosecution, should likewise be barred from having a second bite at the apple."
Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex-1997). "In the present case, the court of appeals held that the [summary] judgment was interlocutory, even though it appears on its face to be Final. The court of appeals interpreted Mafrige v. Ross, 866 S.W.2d 590 (Tex.l993)] as instituting merely a presumption of finality when a summary judgment purporting to be Final is presented for appellate review. Reading Mafrige narrowly, the court of appeals refused to apply it to a situation in which the summary judgment appeared Final but was not appealed. This was error."
Page v. Geller, 941 S.W.2d 101, 102 (Tex.l997). "[W]hen a trial court grants more relief than requested and, therefore makes an otherwise partial summary judgment Final, that judgment, although erroneous, is final, and it is appealable. On appeal, the court of appeals must treat the judgment as any other Final judgment. It is to consider all matters raised on appeal and reverse only those portions of the judgment that were rendered in error."
Cincinnati Life Ins. Co. v. Gates, 927 S.W.2d 623, 625(Tex.l996). "Under [TRCP] 166a, a trial court cannot grant summary judgment for a reason that the movant does not present to the trial court in writing. ... [R]ule 166a does not prevent an appellate court from affirming the judgment on other grounds the parties properly raised before the trial court, when the trial court grants summary judgment specifically on fewer than all grounds asserted. Rather, our rules of appellate procedure give appellate courts the authority, when reviewing judgments of lower courts, to render the judgment or decree that the court below should have rendered."
Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex.l995). "A partial summary judgment is a decision on the merits unless set aside by the trial court. ... It becomes Final upon the disposition of the other issues of the case. ... Once a judge announces a decision that adjudicates a claim, that claim is no longer subject to the plaintiffs right to nonsuit. ... A nonsuit sought after such a judicial pronouncement results in a dismissal with prejudice as to the issues pronounced in favor of the defendant."
Mafnge v. Ross, 866 S.W.2d 590,592 (Tex.l993). "If a summary judgment order appears to be Final, as evidence by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as Final for purposes of appeal. If the judgment grants more relief than requested, it should be reversed and remanded, but not dismissed."
Pleadings in SJ Cases
Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex.l995). "Because the Sosas timely filed their second amended original petition, it superseded their first amended original petition containing the statements on which the defendants based their motion for summary judgment. Contrary to statements in live pleadings, those contained in superseded pleadings are not conclusive and indisputable judicial admissions. ... Therefore, the basis for the defendants' motion no longer existed and summary judgment was improper."
Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.l995). "Generally, pleadings are not competent evidence, even if sworn or verified." Natividad ". Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.l994). "A review of the pleadings [when a summary judgment is based on the pleadings] is de novo, with the reviewing court taking all allegations, facts, and inferences in the pleadings as true and viewing them in a light most favorable to the pleader. The reviewing court will affirm the summary judgment only if the pleadings are legally insufficient."
Motion for Continuance
Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex.l996). "When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. [ If ] The determination to allow the Enterprise Parties more time for discovery was within the trial court's discretion."
Flores v. Snelling, __ S.W.3d __, __ (Tex. App-Texarkana 1999, n.p.h.) (No. 06-98-00046-CV; 9- 14-99). "We do not find that [TRCP 166a(i)] places a burden of proof on the movant to show that adequate time for discovery has passed. If a Rule 166a(i) motion is filed and the nonmovant feels there has not been adequate time for discovery, the nonmovant should file a motion for continuance and has the burden of supporting the need for the motion for continuance."
TRCP 166 170 REPEALED
TRCP 171 MASTER IN CHANCERY
The court may, in exceptional cases, for good cause appoint a master in chancery, who shall be a citizen of this State, and not an attorney for either party to the action, nor related to either party, who shall perform all of the duties required of him by the court, and shall be under orders of the court, and have such power as the master of chancery has in a court of equity.
The order of reference to the master may specify or limit his powers, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only and may Fix the time and place for beginning and closing the hearings, and for the filing of the master's report. Subject to the limitations and specifications stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of books, papers, vouchers, documents and other writings applicable thereto. He may rule upon the admissibility of evidence, unless otherwise directed by the order of reference and has the authority to put witnesses on oath, and may, himself, examine them, and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner as provided for a court sitting in the trial of a case.
The clerk of the court shall forthwith furnish the master with a copy of the order of reference.
The parties may procure the attendance of witnesses before the master by the issuance and service of process as provided by law and these rules.
The court may confirm, modify, correct, reject, reverse or recommit the report, after it is filed, as the court may deem proper and necessary in the particular circumstances of the case. The court shall award reasonable compensation to such master to be taxed as costs of suit.
Academy of Model Aeronautics, Inc. v. Packer, 860 S.W.2d 419,419 (Tex.l993). "[T]he trial court abused its discretion in entering an order referring all pending and future discovery matters to a master."
Republic Ins. Co. v. Davis, 856 S.W.2d 158, 160 (Tex.l993). "Republic did not have the opportunity to object [to the master's report before the trial court adopted it]. Consequently, without reaching the question of whether an objection is required, we conclude that Republic has not waived error...."
Simpson v. Canales, 806 S.W.2d 802, 811 (Tex. 1991). TRCP 171 "permits appointment of a master only 'in exceptional cases, for good cause'.... [T]his requirement cannot be met merely by showing that a case is complicated or time-consuming, or that the court is busy."
AlU lns. Co. v. Mehaffy, 942 S.W.2d 796,803 (Tex. App.-Beaumont 1997, orig. proceeding). "The cases construing [TRCP] 171 provide that if a party timely and formally objects to a master's ruling, that party is entitled to a de novo hearing before a judge or jury. We conclude this right is automatic and not subject to a harmless error analysis."
TRCP 172 AUDIT
When an investigation of accounts or examination of vouchers appears necessary for the purpose of justice between the parties to any suit, the court shall appoint an auditor or auditors to state the accounts between the parties and to make report thereof to the court as soon as possible. The auditor shall verify his report by his affidavit staling that he has carefully examined the state of the account between the parties, and that his report contains a true statement thereof, so far as the same has come within his knowledge. Exceptions to such report or of any item thereof must be filed within 30 days of the filing of such report. The court shall award reasonable compensation to such auditor to be taxed as costs of suit.
AlU lns. Co. v. Mehaffy, 942 S.W.2d 796, 800-01 (Tex. App.-Beaumont 1997, orig. proceeding). "[T]he order does not state what authority the court relied upon in appointing the auditor. ... Although the word 'auditor' is used, it does not appear [TRCP] 172 was the basis since this was not 'an investigation of accounts or examination of vouchers.'"
Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 656 (Tex.App- Houston [14th Dist.] 1987, writ denied). "The audit report before this court contains no ... affidavit as is required by [TRCP] 172. ... Further, 6 days before trial Sabine filed an objection to the audit. Therefore, the trial court did not err in admitting evidence that contradicted and supplemented the auditor's report."
TRCP 173 GUARDIAN AD LITEM
When a minor, lunatic, idiot or a non-compos mentis may be a defendant to a suit and has no guardian within this State, or where such person is a party to a suit either as plaintiff, defendant or intervenor and is represented by a next friend or a guardian who appears to the court to have an interest adverse to such minor, lunatic, idiot or non-compos mentis, the court shall appoint a guardian ad litem for such person and shall allow him a reasonable fee for his services to be taxed as a part of the costs.
Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1998). "A guardian ad litem is entitled to a reasonable fee for his services to be taxed as a part of the costs. ... Generally, trial courts employ the same factors used to determine the reasonableness of attorney's fees to ascertain an appropriate guardian ad litem fee. These factors include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood ... that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered."
American Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d 491, 493 n.2 (Tex.l995). "A guardian ad litem is not an attorney for the child but an officer appointed by the court to assist in properly protecting the child's interests.... A guardian ad litem is the personal representative of the minor appointed to protect the interests of the minor in a lawsuit in which the minor is a party.... The guardian ad litem is required to participate in the case to the extent necessary to protect the minor."
Brownsville Valley Reg. Med. Cent. v. Gamez, 894 S.W.2d 753, 755 (Tex.l995). "The trial court can appoint a guardian ad litem pursuant to [TRCP] 173 only when there is a conflict of interest between the minor and next friend. ... When the conflict of interest no longer exists, the trial court should remove the guardian ad litem."
Korn v. Simmons, __ S.W.3d __, __ (Tex. App-Dallas 1999, n.p.h.) (No. 05-96-01777-CV; 9-3- 99). "Although a guardian ad litem has considerable latitude in determining what activities, including hearings and conferences, are necessary to adequately protect the minor's interest, the trial court has discretion to determine whether a guardian ad litem's activities were beyond the scope of his duties."
TRCP 174 CONSOLIDATION SEPARATE TRIALS
(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.
In re Ethyl Corp., 975 S.W.2d 606, 611-12 (Tex. 1998). "The maximum number of claims that can be aggregated is not an absolute, and the particular circumstances determine the outer limits beyond which trial courts cannot go. I If] While considerations of judicial economy are a factor, '[c]onsiderations of convenience and economy must yield to a paramount concern for a fair and impartial trial.'"
Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex.l996). "A severance may ... be necessary in some bad faith [and contract] cases. A trial court will ... confront instances in which evidence admissible only on the bad faith claim would prejudice the insurer to such an extent that a fair trial on the contract claim would become unlikely. One example would be when the insurer has made a settlement offer on the disputed contract claim."
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex.l994). "[A] trial court, if presented with a timely motion, should bifurcate the determination of the amount of punitive damages from the remaining issues.... Under this approach, the jury First hears evidence relevant to liability for actual damages, the amount of actual damages, and liability for punitive damages... and then returns Findings on these issues."
Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 716 (Tex.App-Dallas 1997, no writ). TRCP 174 "gives the trial court broad discretion to consolidate cases with common issues of law or fact. [ If ] In deciding whether to consolidate, the trial court must balance the judicial economy and convenience that may be gained by the consolidation against the risk of an unfair outcome because of prejudice or jury confusion. [ If ] Even if the cases share common questions of law and fact, an abuse of discretion may be found if the consolidation results in prejudice to the complaining party."
TRCP 175 ISSUE OF LAW and DILATORY PLEAS
When a case is called for trial in which there has been no pretrial hearing as provided by Rule 166, the issues of law arising on the pleadings, all pleas in abatement and other dilatory pleas remaining undisposed of shall be determined; and it shall be no cause for postponement of a trial of the issues of law that a party is not prepared to try the issues of fact.
Garcia v. TEIA, 622 S.W.2d 626, 630 n.3 (Tex. App.-Amarillo 1981, writ refd n.r.e.). "The language of [TRCP] 175 imposes on the partly relying upon a dilatory plea a duty to demand action by the court thereon at the time the rule requires action by the court, and his failure to do so is a waiver of the plea."
Section 9 Evidence and Discovery
A Evidence
TRCP 176 SUBPOENAS
176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must:
(a) state the style of the suit and its cause number:
(b) state the court in which the suit is pending;
(c) state the date on which the subpoena is issued;
(d) identify the person to whom the subpoena is directed;
(e) state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2;
(f) identify the party at whose instance the subpoena is issued, and the party's attorney of record, if any;
(g) state the text of Rule 176.8(a); and
(h) be signed by the person issuing the subpoena.
176.2 Required Actions. A subpoena must command the person to whom it is directed to do either or both of the following:
(a) attend and give testimony at a deposition, hearing, or trial;
(b) produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person.
176.3 Limitations.
(a) Range. A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served. However, a person whose appearance or production at a deposition may be compelled by notice alone under Rules 199.3 or 200.2 maybe required to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2).
(b) Use for discovery. A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.
176.4 Who May Issue. A subpoena may be issued by:
(a) the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party;
(b) an attorney authorized to practice in the State of Texas, as an officer of the court; or
(c) an officer authorized to take depositions in this State, who must issue the subpoena immediately on a request accompanied by a notice to take a deposition under Rules 199 or 200, or a notice under Rule 205.3, and who may also serve the notice with the subpoena.
176.5 Service.
(a) Manner of service. A subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness's attorney of record.
(b) Proof of service. Proof of service must be made by Filing either:
(1) the witness's signed written memorandum attached to the subpoena showing that the witness accepted the subpoena; or
(2) a statement by the person who made the service staling the date, time, and manner of service, and the name of the person served.
176.6 Response.
(a) Compliance required. Except as provided in this subdivision, a person served with a subpoena must comply with the command stated therein unless discharged by the court or by the party summoning such witness. A person commanded to appear and give testimony must remain at the place of deposition, hearing, or trial from day to day until discharged by the court or by the party summoning the witness.
(b) Organizations. If a subpoena commanding testimony is directed to a corporation, partnership, association, governmental agency, or other organization, and the matters on which examination is requested are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization.
(c) Production of documents or tangible things. A person commanded to produce documents or tangible things need not appear in person at the time and place of production unless the person is also commanded to attend and give testimony, either in the same subpoena or a separate one. A person must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand. A person may withhold material or information claimed to be privileged but must comply with Rule 193.3. A nonparty's production of a document authenticates the document for use against the nonparty to the same extent as a party's production of a document is authenticated for use against the party under Rule 193.7.
(d) Objections. A person commanded to produce and permit inspection or copying of designated documents and things may serve on the party requesting issuance of the subpoena-before the time specified for compliance-written objections to producing any or all of the designated materials. A person need not comply with the part of a subpoena to which objection is made as provided in this paragraph unless ordered to do so by the court. The party requesting the subpoena may move for such an order at any time after an objection is made.
(e) Protective orders. A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b)-before the time specified for compliance- either in the court in which the action is pending or in a district court in the county where the subpoena was served. The person must serve the motion on all parties in accordance with Rule 21 a. A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed.
(f) Trial subpoenas. A person commanded to attend and give testimony, or to produce documents or things, at a hearing or trial, may object or move for protective order before the court at the time and place specified for compliance, rather than under paragraphs (d) and (e).
176.7 Protection of Person from Undue Burden and Expense. A party causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena an adequate time for compliance, protection from disclosure of privileged material or information, and protection from undue burden or expense. The court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship.
176.8 Enforcement of Subpoena.
(a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.
(b) Proof of payment of fees required for fine or attachment. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered.
Automatic Drilling Machs., Inc. v. Miller, 515 S.W.2d 256, 259 (Tex.l974). "On motion ... made ... the court is authorized by [now TRCP 176.7] to quash or modify the subpoena if it is unreasonable or oppressive or condition denial of the motion on advancement of reasonable costs by the party in whose behalf the subpoena was issued."
St. Luke's Episcopal Hasp. v. Garcia, 928 S.W.2d 307, 310 (Tex.App- Houston [14th Dist.] 1996, orig. proceeding). "In determining whether a deposition notice or subpoena duces tecum is unreasonable and oppressive, the following factors are relevant: '(1) the quantity of materials subpoenaed, (2) the ease or difficulty of collecting and transporting the materials, (3) the length of time before the deposition, (4) the availability of the information from other sources, and (5) the relevance of the materials.'"
Dr. Pepper Co. v. Davis, 745 S.W.2d 470,471 (Tex. App.-Austin 1988, orig. proceeding). "The uncontroverted proof is that [ the witness ] is a resident of Dallas and that the distance between Austin and Dallas is approximately 200 miles. It follows that [the witness] is beyond the subpoena power of the district court of Travis County."
Kieffer v. Miller, 560 S.W.2d 431,432 (Tex.App- Beaumont 1977, writ ref'd n.r.e.). "Plaintiffs' motion for a writ of attachment for [the witness] contained no affidavit that 'all lawful fees' had been paid or tendered to [the witness]. This, in and of itself, was adequate grounds for the trial judge to deny plaintiffs' request for a writ of attachment for [ the witness ]."
TRCP 177 179 REPEALED
TRCP 180 REFUSAL TO TESTIFY
Any witness refusing to give evidence may be committed to jail, there to remain without bail until such witness shall consent to give evidence.
TRCP 181 PARTY AS WITNESS
Either party to a suit may examine the opposing party as a witness, and shall have the same process to compel his attendance as in the case of any other witness.
TRCP 182 182a REPEALED
TRCP 183 INTERPRETERS
The court may appoint an interpreter of its own selection and may fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.
TRCP 184 184a REPEALED
TRCP 185 SUIT ON ACCOUNT
When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath. A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be. No particularization or description of the nature of the component parts of the account or claim is necessary unless the trial court sustains special exceptions to the pleadings.
Vance v. Holloway, 689 S.W.2d 403, 403-04 (Tex. 1985). "The petition and affidavit filed by Vance clearly met the requirements of [TRCP] 185. Holloway answered by way of an unverified general denial only. He failed to meet the requirements of [TRCP] 185 and 93(10) which state that a written denial of the plaintiffs action must be verified. [If] Holloway ... therefore, waived his right to dispute the amount and ownership of the account."
Rizk v. Financial Guardian Ins. Agency, Inc., 584 S.W.2d 860,862 (Tex.l979). "In the absence of a sworn denial meeting the requirements of the rule, the account is received as prima facie evidence as against a defendant sued thereon, and the defendant may not dispute the receipt of the items or services, or the correctness of the stated charges...."
Powers v. Adams, __ S.W.3d __, __ (Tex.App-- Houston [14th Dist] 1999, n.p.h.) (No. 14-97-01246- CV; 8-5-99Y "Under [TRCP 185]. a plaintiffs petition on sworn account must contain a systematic, itemized statement of the goods or services sold, reveal offsets made to the account, and be supported by an affidavit staling the claim is within the affiant's knowledge, and that it is 'just and true.'"
Bird v. Forst Deposit Nat'1 Bank, 994 S.W.2d 280, 282 (Tex-App- El Paso 1999, n.p.h.). "We find that a credit card issued by a financial institution does not create the sort of debtor-creditor relationship required in order to bring suit under [TRCP] 185."
Worley v. Butler, 809 S.W.2d 242,245 (Tex.App- Corpus Christi 1990, no writ). "To prevail in a cause of action on sworn account, a party must show: (1) that there was a sale and delivery of the merchandise or performance of the services; (2) that the amount of the account is just, that is, that the prices were charged in accordance with an agreement or in the absence of an agreement, they are the usual, customary and reasonable prices for that merchandise or services; and (3) that the amount is unpaid."
B Discovery
TRCP 186 189 REPEALED
TRCP 190 DISCOVERY LIMITATIONS
190.1 Discovery Control Plan Required. Every case must be governed by a discovery control plan as provided in this Rule. A plaintiff must allege in the first numbered paragraph of the original petition whether discovery is intended to be conducted under Level 1,2, or 3 of this Rule.
190.2 Discovery Control Plan-Suits Involving ,000 or Less (Level 1).
(a) Application. This subdivision applies to:
(1) any suit in which all plaintiffs affirmatively plead that they seek only monetary relief aggregating ,000 or less, excluding costs, pre-judgment interest and attorneys' fees, and
(2) any suit for divorce not involving children in which a party pleads that the value of the marital estate is more than zero but not more than ,000.
(b) Exceptions. This subdivision does not apply if:
(1) the parties agree that Rule 190.3 should apply;
(2) the court orders a discovery control plan under Rule 190.4; or
(3) any party files a pleading or an amended or supplemental pleading that seeks relief other than that to which this subdivision applies.
A pleading, amended pleading (including trial amendment), or supplemental pleading that renders this subdivision no longer applicable may not be filed without leave of court less than 45 days before the date set for trial. Leave may be granted only if good cause for filing the pleading outweighs any prejudice to an opposing party.
(c) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations:
(1) Discovery period. All discovery must be conducted during the discovery period, which begins when the suit is filed and continues until 30 days before the date set for trial.
(2) Total time for oral depositions. Each party may have no more than six hours in total to examine and cross-examine all witnesses in oral depositions. The parties may agree to expand this limit up to ten hours in total, but not more except by court order. The court may modify the deposition hours so that no party is given unfair advantage.
(3) Interrogatories. Any party may serve on any other party no more than 25 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory.
(d) Reopening discovery. When the filing of a pleading or an amended or supplemental pleading renders this subdivision no longer applicable, the discovery period reopens, and discovery must be completed within the limitations provided in Rules 190.3 or 190.4, whichever is applicable. Any person previously deposed may be redeposed. On motion of any party, the court should continue the trial date if necessary to permit completion of discovery.
190.3 Discovery Control Plan-By Rule (Level 2).
(a) Application. Unless a suit is governed by a discovery control plan under Rules 190.2 or 190.4, discovery must be conducted in accordance with this subdivision.
(b) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations:
(1) Discovery period. All discovery must be conducted during the discovery period, which begins when suit is filed and continues until:
(A) 30 days before the date set for trial, in cases under the Family Code; or
(B) in other cases, the earlier of
(i) 30 days before the date set for trial, or
(ii) nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery.
(2) Total time for oral depositions. Each side may have no more than 50 hours in oral depositions to examine and cross-examine parties on the opposing side, experts designated by those parties, and persons who are subject to those parties' control. "Side" refers to all the litigants with generally common interests in the litigation. If one side designates more than two experts, the opposing side may have an additional six hours of total deposition time for each additional expert designated. The court may modify the deposition hours and must do so when a side or party would be given unfair advantage.
(3) Interrogatories. Any party may serve on any other party no more than 25 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory.
190.4 Discovery Control Plan-By Order (Level 3).
(a) Application. The court must, on a party's motion, and may, on its own initiative, order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit. The parties may submit an agreed order to the court for its consideration. The court should act on a party's motion or agreed order under this subdivision as promptly as reasonably possible.
(b) Limitations. The discovery control plan ordered by the court may address any issue concerning discovery or the matters listed in Rule 166, and may change any limitation on the time for or amount of discovery set forth in these rules. The discovery limitations of Rule 190.2, if applicable, or otherwise of Rule 190.3 apply unless specifically changed in the discovery control plan ordered by the court. The plan must include:
(1) a date for trial or for a conference to determine a trial setting;
(2) a discovery period during which either all discovery must be conducted or all discovery requests must be sent, for the entire case or an appropriate phase of it;
(3) appropriate limits on the amount of discovery;
and
(4) deadlines for joining additional parties, amending or supplementing pleadings, and designating expert witnesses.
190.5 Modification of Discovery Control Plan. The court may modify a discovery control plan at any time and must do so when the interest of justice requires. The court must allow additional discovery:
(a) related to new, amended or supplemental pleadings, or new information disclosed in a discovery response or in an amended or supplemental response, if:
(1) the pleadings or responses were made after the deadline for completion of discovery or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and
(2) the adverse party would be unfairly prejudiced without such additional discovery;
(b) regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends.
190.6 Certain Types of Discovery Excepted. This rule's limitations on discovery do not apply to or include discovery conducted under Rule 202 ("Depositions Before Suit or to Investigate Claims"), or Rule 621a ("Discovery and Enforcement of Judgment"). But Rule 202 cannot be used to circumvent the limitations of this rule.
In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex.l999). " [C]ourts may limit discovery pending resolution of threshold issues like venue, jurisdiction, forum non conveniens, and official immunity."
TRCP 191 MODIFYING DISCOVERY PROCEDURES and LIMITATIONS. CONFERENCE REQUIREMENT SIGNING DISCLOSURES DISCOVERY REQUESTS RESPONSES OBJECTIONS FILING REQUIREMENTS
191.1 Modification of Procedures. Except where specifically prohibited, the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit by the agreement of the parties or by court order for good cause. An agreement of the parties is enforceable if it complies with Rule II or, as it affects an oral deposition, if it is made a part of the record of the deposition.
191.2 Conference. Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed.
191.3 Signing of Disclosures, Discovery Requests, Notices, Responses, and Objections.
(a) Signature required. Every disclosure, discovery request, notice, response, and objection must be signed:
(1) by an attorney, if the party is represented by an attorney, and must show the attorney's State Bar of Texas identification number, address, telephone number, and fax number, if any; or
(2) by the party, if the party is not represented by an attorney, and must show the party's address, telephone number, and fax number, if any.
(b) Effect of signature on disclosure. The signature of an attorney or party on a disclosure constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.
(c) Effect of signature on discovery request, notice, response, or objection. The signature of an attorney or party on a discovery request, notice, response, or objection constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, notice, response, or objection:
(1) is consistent with the rules of civil procedure and these discovery rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
(2) has a good faith factual basis;
(3) is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
(4) is not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
(d) Effect of failure to sign. If a request, notice, response, or objection is not signed, it must be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, notice, response, or objection. A party is not required to take any action with respect to a request or notice that is not signed.
(e) Sanctions. If the certification is false without substantial justification, the court may, upon motion or its own initiative, impose on the person who made the certification, or the party on whose behalf the request, notice, response, or objection was made, or both, an appropriate sanction as for a frivolous pleading or motion under Chapter 10 of the Civil Practice and Remedies Code.
191.4 Filing of Discovery Materials.
(a) Discovery materials not to be filed. The following discovery materials must not be filed:
(1) discovery requests, deposition notices, and subpoenas required to be served only on parties;
(2) responses and objections to discovery requests and deposition notices, regardless on whom the requests or notices were served;
(3) documents and tangible things produced in discovery; and
(4) statements prepared in compliance with Rule 193.3(b) or (d).
(b) Discovery materials to be filed. The following discovery materials must be filed:
(1) discovery requests, deposition notices, and subpoenas required to be served on nonparties;
(2) motions and responses to motions pertaining to discovery matters; and
(3) agreements concerning discovery matters, to the extent necessary to comply with Rule 11.
(c) Exceptions. Notwithstanding paragraph
(a)-
(1) the court may order discovery materials to be filed;
(2) a person may File discovery materials in support of or in opposition to a motion or for other use in a court proceeding; and
(3) a person may File discovery materials necessary for a proceeding in an appellate court.
(d) Retention requirement for persons. Any person required to serve discovery materials not required to be filed must retain the original or exact copy of the materials during the pendency of the case and any related appellate proceedings begun within six months after judgment is signed, unless otherwise provided by the trial court.
(e) Retention requirement for courts. The clerk of the court shall retain and dispose of deposition transcripts and depositions upon written questions as directed by the Supreme Court.
191.5 Service of Discovery Materials. Every disclosure, discovery request, notice, response, and objection required to be served on a party or person must be served on all parties of record.
In re Alford Chevrolet-Geo, 997 S.W.2d 173, 184 (Tex.l999). "[W]e expect class-action litigants to cooperate on discovery plans and make any agreements reasonably necessary for the efficient disposition of the case."
Groves v. Gabriel, 874 S.W.2d 660, 661 n.3 (Tex. 1994). Plaintiff "complains that [D's] motion to compel discovery did not contain the certificate of conference required under (nowTRCP 191.2]. Because this rule is for the beneFit of the trial court, the court's failure to require a certificate of conference does not justify mandamus relief."
USAA v, Thomas, 893 S.W.2d 628,629 (Tex.App-Corpus Christi 1994, writ denied). TRCP 191.2 "ensures that parties will make good faith efforts to settle discovery disputes before Filing sanctions motions and that sanctions motions will be Filed only when court intervention is absolutely necessary. At 630: We hold that the trial court abused its discretion by granting the motion for sanctions without the required certificate of conference."
TRCP 192 PERMISSIBLE DISCOVERY: FORMS & SCOPE; WORK PRODUCT; PROTECTIVE ORDERS; DEFINITIONS
192.1 Forms of Discovery. Permissible forms of discovery are:
(a) requests for disclosure;
(b) requests for production and inspection of documents and tangible things;
(c) requests and motions for entry upon and examination of real property;
(d) interrogatories to a party;
(e) requests for admission;
(f) oral or written depositions; and
(g) motions for mental or physical examinations.
192.2Sequence of Discovery. The permissible forms of discovery may be combined in the same document and may be taken in any order or sequence.
192.3 Scope of Discovery.
(a) Generally. In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(b) Documents and tangible things. A party may obtain discovery of the existence, description, nature, custody, condition, location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations) that constitute or contain matters relevant to the subject matter of the action. A person is required to produce a document or tangible thing that is within the person's possession, custody, or control.
(c) Persons with knowledge of relevant facts. A party may obtain discovery of the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case. A person has knowledge of relevant facts when that person has or may have knowledge of any discoverable matter. The person need not have admissible information or personal knowledge of the facts. An expert is "a person with knowledge of relevant facts" only if that knowledge was obtained firsthand or if it was not obtained in preparation for trial or in anticipation of litigation.
(d) Trial witnesses. A party may obtain discovery of the name, address, and telephone number of any person who is expected to be called to testify at trial. This paragraph does not apply to rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before trial.
(e) Testifying and consulting experts. The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which a testifying expert will testify;
(3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;
(4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them;
(5) any bias of the witness;
(6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert's testimony;
(7) the expert's current resume and bibliography.
(f) Indemnity and insuring agreements. Except as otherwise provided by law, a party may obtain discovery of the existence and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the indemnity or insurance agreement is not by reason of disclosure admissible in evidence at trial.
(g) Settlement agreements. A party may obtain discovery of the existence and contents of any relevant portions of a settlement agreement. Information concerning a settlement agreement is not by reason of disclosure admissible in evidence at trial.
(h) Statements of persons with knowledge of relevant facts. A party may obtain discovery of the statement of any person with knowledge of relevant facts-a "witness statement"-regardless of when the statement was made. A witness statement is (1) a written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical, electrical, or other type of recording of a witness's oral statement, or any substantially verbatim transcription of such a recording. Notes taken during a conversation or interview with a witness are not a witness statement. Any person may obtain, upon written request, his or her own statement concerning the lawsuit, which is in the possession, custody or control of any party.
(i) Potential parties. A party may obtain discovery of the name, address, and telephone number of any potential party.
(j) Contentions. A party may obtain discovery of any other party's legal contentions and the factual bases for those contentions.
192.4 Limitations on Scope of Discovery. The discovery methods permitted by these rules should be limited by the court if it determines, on motion or on its own initiative and on reasonable notice, that:
(a) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or
(b) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
192.5 Work Product.
(a) Work product defined. Work product comprises:
(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a partly and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
(b) Protection of work product.
(1) Protection of core work product-attorney mental processes. Core work product-the work product of an attorney or an attorney's representative that contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories-is not discoverable.
(2) Protection of other work product. Any other work product is discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means.
(3) Incidental disclosure of attorney mental processes. It is not a violation of subparagraph (1) if disclosure ordered pursuant to subparagraph (2) incidentally
discloses by inference attorney mental processes otherwise protected under subparagraph (1).
(4) Limiting disclosure of mental processes. If a court orders discovery of work product pursuant to subparagraph (2), the court must-insofar as possible-protect against disclosure of the mental impressions, opinions, conclusions, or legal theories not otherwise discoverable.
(c) Exceptions. Even if made or prepared in anticipation of litigation or for trial, the following is not work product protected from discovery:
(1) information discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and contentions;
(2) trial exhibits ordered disclosed under Rule 166 or Rule 190.4;
(3) the name, address, and telephone number of any potential party or any person with knowledge of relevant facts;
(4) any photograph or electronic image of underlying facts (e.g., a photograph of the accident scene) or a photograph or electronic image of any sort that a party intends to offer into evidence; and
(5) any work product created under circumstances within an exception to the attorney-client privilege in Rule 503(d) of the Rules of Evidence.
(d) Privilege. For purposes of these rules, an assertion that material or information is work product is an assertion of privilege.
192.6 Protective Orders.
(a) Motion. A person from whom discovery is sought, and any other person affected by the discovery request, may move within the time permitted for response to the discovery request for an order protecting that person from the discovery sought. A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion does not waive the objection or assertion of privilege. If a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply. A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion.
(b) Order. To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, the court may make any order in the interest of justice and may-among other things-order that:
(1) the requested discovery not be sought in whole or in part;
(2) the extent or subject matter of discovery be limited;
(3) the discovery not be undertaken at the time or place specified;
(4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court;
(5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.
192.7 Definitions. As used in these rules-
(a) Written discovery means requests for disclosure, requests for production and inspection of documents and tangible things, requests for entry onto property, interrogatories, and requests for admission.
(b) Possession, custody, or control of an item means that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item.
(c) A testifying expert is an expert who may be called to testify as an expert witness at trial.
(d) A consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert.
Scope of Discovery
G.M. Corp. v. Gayle, 951 S.W.2d 469,474-76 (Tex. 1997). "'The policy behind the consulting expert privilege is to encourage parties to seek expert advice in evaluating their case and to prevent a party from receiving undue benefit from an adversary's efforts and diligence.' [If] Without the consulting-expert privilege, parties would be reluctant to test an uncertain theory, for fear that it would provide evidence for the other side. [If] [T]he consulting-expert privilege is intended to allow 'a consultant to investigate an accident without the risk of furnishing a potential expert witness or at least a theory of recovery or defense to the opposing party.' [If] [W]e conclude that the trial court's crash test order constitutes an abuse of discretion by infringing on General Motors' consulting-expert privilege."
K-Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.l996). No "discovery device can be used to 'fish."'
lrving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 18 (Tex.l996). "[R]outine business records of a health-care entity such as a patient's medical records do not become privileged and are not shielded from discovery simply because a medical peer review committee has reviewed or considered them."
Ford Motor Co. v. Leggat, 904 S.W.2d 643, 649 (Tex.l995). "Settlement agreements are discoverable, to the extent they are relevant. Settlement agreements themselves, of course, are not admissible at trial to prove liability."
Monsanto Co. v. May, 889 S.W.2d 274, 276 (Tex. 1994). "A party is entitled to discovery that is relevant to the subject matter of the claim, and which appears reasonably calculated to lead to the discovery of admissible evidence." See also Volkswagen, A.G. v. Valdez,
909 S.W.2d 900,902 (Tex.l995); Texaco, Inc. v. Sanderson, 898 S.W.2d 813,814 (Tex.l995).
Aluminum Co. v. Bullock, 870 S.W.2d 2, 4 (Tex. 1994). TRCP 192.3(e) "provides for discovery of not only the identity, but also the expected substance of the testimony of expert witnesses who will testify at trial. ... When [the expert's] opinion concerning [D's] negligence changed due to the review of additional facts, the [Ps] then had a duty to supplement their discovery responses to disclose the material change."
HousingAuth. ofElPaso v. Rodriguez-Yepez, 843 S.W.2d 475,476 (Tex-1992). "The broad scope of discovery is tempered by the trial court's discretion, properly invoked under [TRCP 192.6], to narrow the scope of discovery on a case by case basis with a protective order."
Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984), overruled on other grounds. Walker v. Packer, 827 S.W.2d 833, 842 (Tex.l992). "[T]he ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed. For this reason, discovery is not limited to information that will be admissible at trial. To increase the likelihood that all relevant evidence will be disclosed and brought before the trier of fact, the law circumscribes a significantly larger class of discoverable evidence to include anything reasonably calculated to lead to the discovery of material evidence."
In re Doctors' Hasp., __ S.W.3d __, __ (Tex. App.-San Antonio 1999, orig. proceeding) (No. 04-99- 00465-CV; 8-11-99). We read TRCP 192.3(e)(5) "to permit discovery of bias evidence, other than the personal financial records and appointment books of nonparty witnesses. By ordering the production of these personal records, the trial court abused its discretion."
In re W&G Trucking, Inc., 990 S.W.2d 473,475-76 (Tex.ADD.-Amarillo 1999. n.o.h.). "Relators contended that because the investigator obtained Jamison's statement believing that it was and would remain privileged under former [TRCP] 166b(3)(c), [TRCP] 192 should not be applied to 'this transition case.' (If] As a general rule procedural rules apply to suits filed before the effective date of the rules, provided no vested right is impaired. In this instance the repeal of Rule 166b and the adoption of Rule 192 have not deprived relators of a defense or other substantive right. ... Accordingly, we hold that Rule 192 is applicable to cases pending on Jan. 1, 1999 and that its application in this case has neither violated nor caused relators undue prejudice."
Limitations on Scope of Discovery
In re Alford Chevrolet-Geo, 997 S.W.2d 173, 182 (Tex.l999). " [l]t is within the trial court's discretion to schedule discovery and decide whether and how much discovery is warranted to determine any [class] certification questions. Factors in determining the scope of precertification discovery include the importance, benefit, burden, expense, and time needed to produce the proposed discovery."
Protective Orders
General Tire, Inc. v. Kepple, 970 S.W.2d 520, 524 (Tex.l998). "To the extent that discovery, whether filed or unfiled, is a 'court record' under [TRCP] 76a, the court must follow the stricter standards of that rule to limit its dissemination. At 525: [W]e hold that when a party seeks a protective order under [TRCP 192.6] to restrict the dissemination of unfiled discovery, and no party or intervenor contends that the discovery is a 'court record,' a trial court need not conduct a hearing or render any findings on that issue. |
