This is the fourth and final post in a series discussing the new rules for Expedited Actions in Texas mandated by the 2011 Amendments to Texas Government Code § 22.004(h) and implemented through the Texas Rules of Civil Procedure, including amendments to Rules 47 and 190, and the addition of new Rule 169.

In many cases, the amount of damages sought by a party may increase over time or with newly discovered evidence.  Moreover, often the complexity of a case has little to do with the ultimate amount in controversy, thus making a clear presentation at trial under the time constraints imposed by the new Expedited Action Rules nearly impossible.  Fortunately, the rules recognize these practicalities and provide some relief.

Rule 169(c) governs removal of a case from the expedited action process.  Under this rule, a court must remove a suit from the expedited action process when a party files a motion demonstrating good cause, or if any claimant, other than a counter-claimant, files a pleading or an amended or supplemental pleading that seeks any relief other than the monetary relief allowed under Rule 169(a)(1).  Accordingly, if a plaintiff files an amended pleading seeking damages which exceed $100,000, or other relief such as equitable or injunctive relief, Rule 169(c) mandates that the court remove the case from the expedited action process.  Likewise, on a motion and showing of good cause by any party, the same result must occur.  The removal of a case from the expedited action process requires the court to reopen discovery under Rule 190.2(c).  From there, the case will be governed by Level 2 or Level 3 discovery procedures under Rules 190.3 or 190.4, whichever is applicable.  In addition, depositions may be reconvened as provided under those rules, and the trial court should continue any expedited action trial setting to accommodate completion of discovery.

Removal of a case from the expedited action process is somewhat peculiar in its treatment of counterclaims.  As discussed previously, Rule 169(a)(1), defining the application of the Expedited Action Rules, on its face precludes consideration of the value of a counterclaim in the calculation of the amount in controversy.  Thus it appears that a counterclaimant seeking removal of a case from the expedited trial process cannot rely on the amount in controversy, but must bring a motion showing good cause under Rule 169(c).  However, Comment 3 to Rule 169 provides that “[i]n determining whether there is good cause to remove the case from the process or extend the time limit for trial, the court should consider factors such as whether the damages sought by multiple claimants against the same defendant exceed in the aggregate the relief allowed under Rule 169(a)(1), whether a defendant has field a compulsory counterclaim in good faith that seeks relief other than that allowed under Rule 169(a)(1), the number of parties and witnesses, the complexity of the legal and factual issues, and whether an interpreter is necessary.”

So, while the rule itself precludes consideration of the amount in controversy, the comment to the rule allows that to be taken into consideration in the determination of good cause.  What effect this invitation to consider a compulsory counterclaim in the context of good cause will have on courts facing the issue remains to be seen.  However, one thing is clear, the mere filing of a counterclaim which exceeds the $100,000 threshold is insufficient under Rule 169(a)(1) to trigger an automatic removal from the process.

In conclusion, the new Expedited Action Rules, with their time limitations for discovery and trial, appear readily able to facilitate the legislature’s stated intent to “promote prompt, efficient and cost-effective resolution of civil actions” for cases in which the amount in controversy does not exceed $100,000.  The question of whether the new Expedited Action Rules will promote the interests of justice in affording a fair adjudication of claims and counterclaims subject to them is an open question.  Although the new rules place significant limitations on the litigation process, the Texas Supreme Court’s promulgation of guidelines such as those set forth in Comment 3 to Rule 169 evidences its recognition that not all cases may fit the mold of an expedited action regardless of the amount in controversy.  It will be interesting to observe the results as cases begin to move through the court system under these new rules.