by Joshua M. Sandler and Rafael C. Rodriguez
December 2014 Dicta
Imagine a scenario whereby you meet a prospective client over lunch and you learn from the client that her company is being sued for breach of contract. She tells you she wants to file a counterclaim for breach of fiduciary duty. So you give the client your best elevator speech on how knowledgeable you are on the law, sign her up, and proceed to draft and file a counterclaim along with some written discovery. The client expresses enthusiasm for your zeal and you are sitting pretty. Until, of course, the opposing party responds to your discovery requests and (not so subtly) indicates that you may not conduct discovery due to your failure to comply with Rule 47(c). The client, to whom you pitched yourself as very knowledgeable on the law, now has second thoughts.
Rule 47 prohibits a party seeking affirmative relief from conducting discovery until the party’s pleading specifies the range of monetary relief sought
A party who fails to comply with Rule 47(c) may not conduct discovery until the party’s pleading is amended to comply. Rule 47(c) is easy to satisfy. It states that except in suits governed by the Texas Family Code, every party who sets forth a claim for relief in an original pleading—whether it is an original petition, counterclaim, cross-claim, or third-party claim—must specify the range of monetary relief sought.
And if a party does not comply with Rule 47(c), she may “not conduct discovery until the party’s pleading is amended to comply.” Consequently, a party’s failure to comply with Rule 47(c) can be a gift to the opposing side.
How failure to comply with Rule 47 can be beneficial to the opposing side
Consider our example above. Assume the aforementioned counterclaim was filed, that it did not comply with Rule 47(c), and that written discovery was served on opposing counsel the next day, which was just before the close of discovery.
In this instance, opposing counsel could timely serve you with his responses to your written discovery, but rather than provide a substantive response, he could object on the basis that Rule 47 precludes you from conducting discovery until you fully comply with the rule. He might also file special exceptions regarding your failure to comply with Rule 47(c).
In that case, even if you amended your counterclaim to comply with Rule 47(c), you still may be unable to conduct discovery without seeking leave of court because the discovery deadline has likely run.
The opposing party should also be wary of potential Rule 47 pitfalls
If not handled diligently, Rule 47 could also bring about some predicaments for the opposing party. Consider a situation wherein an original petition that is noncompliant with Rule 47 is filed and you answer on behalf of the defendant. When plaintiff serves you with discovery, you timely respond by objecting on the basis of noncompliance with Rule 47(c). The next day, plaintiff amends his petition so that he is now compliant with Rule 47(c). So, now that the amended petition is filed in compliance with the rule, do you have 30 days from the date of the amendment to serve your responses (sans the Rule 47 objection) or must plaintiff serve you again with the discovery?
On September 4, 2014, the 13th Court of Appeals examined this issue and held that a party’s time to respond to discovery requests begins to run as of the date the amended petition is filed in compliance with the rule. In re Greater McAllen Star Properties, Inc., No. 13-14-00423-CV, 2014 WL 4401422, at *6 (Tex. App.—Corpus Christi Sept. 4, 2014, orig. proceeding). In other words, a defendant could potentially waive his objections if he fails to timely respond to the discovery after the plaintiff complies with Rule 47.
Avoid the pitfalls of Rule 47
Rule 47 is easy enough to keep out of your hair. If you are a party with affirmative claims for relief, make sure your original pleading complies with the rule. And if you are defending against a party who is noncompliant with Rule 47(c), don’t get too cute or you may end up waiving some important objections. Remember, if the shoe were on the other foot, how would you like opposing counsel to handle the situation?
Joshua M. Sandler and Rafael C. Rodriguez are trial lawyers at Gruber Hurst Johansen Hail Shank LLP and practice in the areas of commercial litigation and employment law. They can be reached at email@example.com and firstname.lastname@example.org.