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« Update: Ness Motley and James Down | Loser pays: clearing up some confusion »

May 19, 2004

Prisoners escaping jail? Sue the plumber

Cameron County's revenues apparently depend heavily on its warehousing of federal prisoners in its jail. But the U.S. Marshals pulled federal prisoners after a series of escapes. So Cameron County is suing the builder of the jail, and all of the contractors and subcontractors--including the plumber, who noone blames. Jo Rae Wagner, the president of the plumbing company, speaks out; such "shotgun" listing of plainly innocent defendants is common. The newspaper gets counterbalance from two law professors who assure readers that such defendants don't have to pay anything to be dismissed from the suit, but apparently haven't actually tried to get such a defendant out of a suit without incurring legal expenses or tried to recover legal fees for the frivolous suit. (Allan Essex, "Company calls county lawsuit unjustifiable", Valley Morning Star, Mar. 27).

To obtain sanctions for a frivolous lawsuit in Texas, a defendant has to prove, after an evidentiary hearing, that the lawsuit was not only groundless, but was brought in bad faith. To do this, one must overcome the presumption that papers are filed in good faith. Tex. R. Civ. Proc. 13; GTE Comm. Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). "A trial court may not base Rule 13 sanctions on the legal merit of a pleading or motion." Aldine ISD v. Baty, 999 S.W.2d 113, 116-17 (Tex. App. Houston 1999). The lawyer of "empty head and pure heart" avoids sanctions--and the defendant ends up incurring additional fees and costs over the evidentiary hearing, no matter how groundless the initial suit. So when you hear that recovery is possible for frivolous lawsuits, remember that the judicial system has a different definition for "frivolous" than the layperson does. (Tex. Rules of Civ. Proc. 13).

[cross-posted from Overlawyered, where it ran Mar. 28, 2004]

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