Under new law, loser of new ‘motion to dismiss’ pays winner’s attorney fees
After calling for laws against "frivolous lawsuits" during his 2010 re-election campaign, Gov. Rick Perry gave the issue oomph toward the end of the 2011 regular legislative session. On May 6, he declared the reform of "civil remedies and procedures" an emergency item.
The next day, Texas House Republicans used a rare maneuver to force a vote on House Bill 274 by Rep. Brandon Creighton, R-Conroe, barring both debate and floor amendments. On May 30, the session's last day, Perry signed the bill into law, saying that it "provides defendants and judges with a variety of tools that will cut down on frivolous claims in Texas."
Nearly nine months earlier, during his gubernatorial contest with Democratic nominee Bill White, Perry detailed a four-point proposal for changes to the state's legal system in a Sept. 15 press release. One of those, titled "Loser Pays for Frivolous Lawsuits," said that "if a court determines that a lawsuit is groundless or a jury determines a suit is frivolous, then the plaintiff should be required to pay the defendant's attorney's fees."
Does the new law, which takes effect Sept. 1, accomplish that?
House Bill 274, which includes several legal reforms, instructs the Texas Supreme Court to adopt rules for judges to dismiss lawsuits "that have no basis in law or fact” and to "award costs and reasonable and necessary attorney's fees to the prevailing party.”
In an email, Brad Parker of the Texas Trial Lawyers Association, which supported the legislation's final version, summarized that "loser pays" provision this way: "Defendants who believe a case is baseless can seek a dismissal by the judge early in the process," and if the judge rules for the defendant, "payment of the defendant's attorney fees by the plaintiff is mandatory and the case is dismissed."
Perry spokeswoman Catherine Frazier echoed Parker's characterization but said the reverse is also true: "If the defendant files a motion for early dismissal and doesn't get it, he or she pays the plaintiff's attorney fees" for the cost of battling that motion.
Perry's original promise included a wrinkle that did not play out in the measure he signed into law. His mention of a jury potentially deciding a lawsuit is frivolous conflicts with practices in Texas, where legal experts, including Alexandra Albright, associate dean at the University of Texas School of Law, told us that juries are generally not asked to make that determination; the new law doesn't change that.
Still, we rate this promise Kept.
Austin American-Statesman, "Perry: Civil lawsuit reform an emergency,” May 6, 2011
Texas Legislature Online, House Bill 274, 82nd legislative session
Gov. Rick Perry, speech, "Gov. Perry: ‘Loser pays" lets employers spend less time in the courtroom, more time creating jobs,” May 30, 2011
Gov. Rick Perry, campaign press release, "Gov. Perry: We need increased accountability, efficiency in our legal system,” Sept. 15, 2010
Interview with Brad Parker, vice president of legislative affairs, Texas Trial Lawyers Association, June 3, 2011
Email (excerpt) from Brad Parker, vice president of legislative affairs, Texas Trial Lawyers Association, June 4, 2011
Email (excerpt) from Catherine Frazier, deputy press secretary, Gov. Rick Perry"s office, June 6, 2011
Interview with Alexandra Albright, senior lecturer and associate dean at the University of Texas School of Law, June 14, 2011
Interview with Ronen Avraham, professor, University of Texas School of Law, June 14, 2011
Interview with David Chamberlain of Chamberlain McHaney, June 15, 2011
Republican lawmakers introduce legislation requiring plantiffs to pay defendants' attorney fees in frivolous lawsuits
Fielding the re-endorsement of Texans for Lawsuit Reform in September, Gov. Rick Perry took the occasion to call for a four-pronged attack on what he described as frivolous lawsuits.
"Texans and Texas employers are still hit with frivolous lawsuits that cost thousands or even millions of dollars in legal fees to defend,” he said in a Sept. 15 press release. "It is time to introduce a higher degree of balance and accountability into our legal system.”
Perry proposed a "four-point approach that will limit unfounded claims and bring greater accountability and efficiency to our judicial system.” We're tracking each point as an individual promise. (See the others here, here and here.)
Here's the first: "If a court determines that a lawsuit is groundless or a jury determines a suit is frivolous, then the plaintiff should be required to pay the defendant's attorneys' fees.”
On March 14, Perry revisited his call to reform the state's legal system, this time flanked by state Rep. Brandon Creighton and state Sen. Joan Huffman, Republicans sponsoring legislation "designed to guard against frivolous civil litigation in Texas by curbing needless and abusive law suits,” Huffman said in a press release issued that day.
"Loser pays will effectively combat the problem of plaintiffs' lawyers filing questionable lawsuits and rolling the dice with jury and judge in hope striking it rich," Perry said in a speech. "Those lawsuits can grind almost any business to a halt as owners are forced to deal with mounting legal fees and court costs, even if they've done nothing wrong.”
SB 13, which was referred to the Senate Committee on State Affairs on March 14, amends the Civil Practice and Remedies Code so that the prevailing party of a lawsuit can recover attorney fees from an individual, corporation or other legal entity if the claim is for defamation. Under the current law, a person can recover attorney fees only if the claim is for rendered services, performed labor, furnished material, freight or express overcharges, lost or damage freight or express, killed or injured stock, a sworn account, or an oral or written contract.
We rate this promise In the Works.
Texans for Rick Perry, Press release: Gov. Perry: We need increased accountability, efficiency in our legal system, Sept. 15, 2010
Office of the Governor, Press release: Gov. Perry: Lawsuit reforms will expedite justice for legitimate claims and help strengthen Texas' economic climate, March 14, 2011
Office of the Governor, Speech: Gov. Perry: Lawsuit reforms will expedite justice for legitimate claims and help strengthen Texas' economic climate, March 14, 2011
S.B. 13 relating to the reform of certain remedies and procedures in civil actions, filed March 10, 2011
H.B. 274 relating to attorneys' fees, early dismissal, expedited trials and the reform of certain remedies and procedures in civil actions, filed March 10, 2011