Texas Fast Track Procedure for Civil Lawsuits

In the last Legislature (82nd), House Bill 274 was passed, which made many changes to the Texas Government Code, Texas Rules of Evidence, and Texas Rules of Civil Procedure in order to try and control the speed and costs of legal actions. They took a two prong approach in order to do this: 1) create Rule 91a and amend Rule 47 of the Texas Rules of Civil Procedure, and 2) create Rule 169 of the Texas Rules of Civil Procedure and amend Rule 190 of the Texas Rules of Civil Procedure. The first changes made affect the ability to dismiss the case and damages. I will talk about these changes in another article. I would like to focus on the portion of the rule changes that promote an expedited action of the cases.

This part I personally believe have been needed for a while, in the sense that it has become too easy for some sides to make it their main defense strategy to delay, stall, and perform excessive discovery merely in an attempt to increase the attorney’s fees to amounts that eventually become un-payable by the claimants. Hopefully, the intent of the law will actually play out in real life, because we all know not everything works out as well as intended.

Again, the rules below only apply to cases where damages are less than $100K (including all penalties, costs, expenses, pre-judgment interest and attorney’s fees) and do not involve the Family, Property, and Tax codes or Chapter 74 of the Civil Practice & Remedies Code.

The first part of the changes involves instituting rules for expedited actions (Rule 169 of the Texas Rules of Civil Procedure). All this really means is that they are trying to put hard and fast deadlines in the case so one side can’t abuse the system with delay tactics, which will expedite the case and keep fees down. Here is a general breakdown (of course, there are exceptions and differences, so I have posted a link to full changes at the end of the article):

  • Discovery is governed by Rule 190.2 (covered below)
  • The court must set the case for trial within 90 days of the discovery period ending, and the court may continue the case twice, but the continuances may not exceed a total of 60 days.
  • As far as the trial goes, each side is allowed no more than eight hours to complete everything. However, the court may allow up to twelve hours per side.
  • The court may refer the case to an alternative dispute resolution procedure once, but may not exceed a half-day. Further, the ADR procedure is not to exceed the total cost of twice the amount of applicable civil filing, and must be completed no later than 60 days before initial trial setting.
  • A party may only challenge the admissibility of expert testimony as an objection to summary judgment evidence under Rule 166 or during the trial on merits.
The next part that was added was intended to stop discovery abuse or, at a minimum, keep discovery to reasonable levels (Rule 190 of the Texas Rules of Civil Procedure). These apply to any case that falls under the expedited actions discussed above and to divorce actions involving less than $50,000. Here are the limitations instituted:
  • All discovery must be completed within 180 days of the first request of discovery by either party.
  • Each party may have no more than six hours total to examine and cross-examine all witnesses in oral depositions. This may be expanded up to ten hours if both parties agree.
  • No more than 15 interrogatories.
  • No more than 15 requests for production.
  • No more than 15 request for admissions.
This is only an over view of the changes if you would like more info or the detailed updates to the rules here is a full copy to the changes of the rules:http://www.supreme.courts.state.tx.us/MiscDocket/13/13902200.pdf

Mechanic’s Lien Research to Protect Yourself

Have you ever gotten into a job and started hearing some bad rumors; such as, you might not get paid for your work? Or the GC on this job doesn’t pay retainage? Well a couple years ago I wrote this article:  Are you going to get paid ask a construction Lawyer to show that Attorneys can be used pro-actively instead of re-actively (which is the more expensive way). I’d like do a quick overview of something you can do yourself to pro-actively protect your business from trouble. Specifically, you can do your own research to determine if the person you are working for is having liens being filed against them currently.

As you might know, almost all larger counties have an online database you can search for deed records. However, you might not know that those same databases keep track of the lien affidavit filings as well. Here are links to the research databases around the DFW area:

Denton County Deed Record Search: https://www.dentoncounty.com/dept/county_clerk/recordsearch.asp

Dallas County Deed Record Search: http://roamdallaspropertyrecords.com/ailis/search.do

Tarrant County Deed Record Search: https://ccrecordse.tarrantcountytx.gov/RealEstate/SearchEntry.aspx

Collin County Deed Record Search: http://countyclerkrecords.co.collin.tx.us/webinquiry/

Each one works a bit differently but usually you can search for the name of the company in some form or fashion (sometimes it takes a little trial and error). Here is a search of somebody you may want to think twice before doing work for:

You will note that we put in the persons first and last name (you could have also put in a corporate name under the last name), and checked, land records. You will get results that look something like this:

As far as looking for Mechanic’s Liens that is the first highlighted area M/L AFDT, depending on the county it may say something different. It gets more interesting with the next two highlighted boxes. Abst Jdgmt means that they have lost in court and have a judgment against them and the abstract is in place to help the prevailing party secure their judgment on any real property owned by that person in that county, and I think we all know what it means when “USA” has a Fed Tax LN on someone.

This is just a quick example on how anyone can use public information to help protect their business. Obviously, if this is you and you are entering into business with someone who’s reputation you don’t know or may be a little dubious, it really pays to do your homework on the front end. If you would rather not do this yourself, then this is an example of what KMDA can do for you for all surrounding counties. We usually provide a report to our client that goes through the various businesses owned by that individual and tells you what type of Judgments and liens they might have against them.

Good Luck and Happy Researching!

Some Good News for the North Texas Construction Industry

Ran across these stories today:

Commercial real estate outlook improving

Commercial property lending coming back to life

A few highlights from the articles:

– North Texas commercial real estate experts expect further recovery next year and say they hope the market will be mostly righted by 2012.

– Petersen predicted “moderate economic growth next year” for the Dallas-Fort Worth area

– “The commercial mortgage-backed securities market has roared back to life,” he said. “And some community banks have also stepped up.”

– commercial property and apartment lending was up by almost a third in the most recent quarter, and the biggest jump–more than 100 percent–was for industrial buildings, according to the Mortgage Bankers Association.

– “If you are a developer, by the end of 2011 you need to think about building.”

– With retail construction at a virtual standstill, merchants are slowly filling up empty space – even sites that might have once been passed over. “We are filling up centers today that we couldn’t fill up in better times,”

Beyond the Dallas Morning News stories the ABC is showing the south’s BCI (Back Log Indicator) as increasing by .79 months year on year (from 5.76 to 6.55 months).  You can see the full report here.   Of course, they take the point of view that it’s falling from the July number, but I think the last few quarters are artificially inflated by all the stimulus  projects.

June Commercial Construction Contracts Down 51%

Ran across this piece of news today: Dallas Commercial Construction Contracts Fall Again in June

So is DFW just lagging the rest of the country on commercial construction?  Down 31% first quarter, Down 10% in May and now 51% for June.  Not a promising direction.

AGC – Metro Area Construction Job Report

I saw this headline pop into my RSS Reader: Houston Dropped 18,400 Construction Jobs in 12 Months ending May 2010 and was pretty amazed at the size of the drop for Houston.   So that got me curious on how the construction employment numbers are looking for our area.  In Dallas we shed 12,900 jobs year on year ending May 2010.  Percentage wise that is a bit worse than Houston (Dallas-11%, Houston-10%).

I thought I would dig a little deeper since the AGC has all the reports sitting right here and see what the trend looks like for the Dallas area.

I would say it doesn’t look great, but the last few months at least show a bit of a bottom.  Let me know what you think, does it look like the construction projects are continuing to drop, maintaining its level, or actually getting better in the DFW area?”

AGC Dallas-Plano-Irving Division employment numbers

Are You Bondable?

With all the government dollars going into construction (like the 4.7 billion dollar “funnel” project that just started), it might be a good idea for small construction companies to be bondable.  The U.S. Department of Transportation’s Office of Small and Disadvantaged Business Utilization (OSDBU) in conjuction with the Surety and Fidelity Association of America (SFAA) are trying to help out the little guys with a 10 week course on becoming bondable.

Here is the link to the release: www.dot.gov/affairs/2010/dot7410.htm

Dallas is a pilot city and the classes start here June 10th.