Back to Main Page / Back to List of Rules

Rule 73. Failure to Furnish Copy of Pleadings to Adverse Party (1981)

TEXT

If any party fails to furnish the adverse party with a copy of any pleading in accordance with the preceding rule, the court may in its discretion, on motion, order all or any part of such pleading stricken, direct that such party shall not be permitted to present grounds for relief or defense contained therein, require such party to pay to the adverse party the amount of reasonable costs and expenses incurred as a result of the failure, including attorney fees, or make such other order with respect to the failure as may be just.

Amended by order of June 10, 1980, eff. Jan. 1, 1981: This amendment enlarges the sanctions that may be applied in the discretion of the trial court for the failure to furnish a copy of any pleading to the adverse party as required by Rule 72.

ADVISORY OPINIONS

(No. 50) Question: Does the plaintiff show good cause in not filing his controverting affi­davit within the ten days period (Rules 86 and 87) by proving that defendant failed to furnish him with a copy of the plea of privilege (Rules 72 and 73)? The question is stated in another form: After filing suit can the plaintiff disregard it until he is furnished with a copy of the plea of privilege?

Answer: Rule 72 providing for delivery or mailing to the adverse party or, his at­torney of record of any pleading, plea, or motion "which is not by law or by these rules required to be served upon the ad­verse party" is a wholesome rule and ought to be, and we think will be, readily complied with by the attorneys because of its mutual advantage to them. Nevertheless, the Committee thinks that the Rule is di­rectory and failure to deliver to the plain­tiff a copy of the plea of privilege does not dispense with the necessity of the plaintiff's filing a controverting plea; but it may constitute grounds for an extension of the time within which plaintiff should file the controverting plea. Although at­torneys have a duty to keep in touch with the developments in their cases, the ex­tent to which they should inspect the records is naturally affected to some extent by Rule 72 requiring the delivery to them by their adversaries of copies of all plead­ings, pleas or motions filed in the case.

Under Rule 5, which permits the en­largement of the time within which a specified act is required or allowed to be done, and the liberal construction required by Rule 1 to be given to all the rules in order to adjudicate "the rights of litigants under established principles of substan­tive law," a wide discretion is vested in the courts in dealing with questions of the character raised in your inquiry. We are of opinion that the courts have the power, upon consideration of all the facts and circumstances, and in the interest of justice, to permit a controverting affidavit to be filed after the expiration of ten days from appearance day upon compliance by the plaintiff with the provisions of Rule 5. When requests for enlargement are ap­plied for under this Rule each case, must necessarily be determined by the court upon its own facts in accordance with the right of the case.

Ordinarily, where the plaintiff and his attorney have no notice or knowledge of the fact that a plea of privilege has been filed, and the defendant has failed to deliver a copy thereof as required by Rule 72, we would be inclined to feel that this would constitute good cause under Rule 5 for granting of an extension of time for the filing of a controverting plea. This would not render nugatory and void that part of Rule 86 quoted in correspondent's letter, as the filing of a controverting plea would still be a prerequisite to the over­ruling of a proper plea of privilege. It would merely have a bearing upon the time within which the controverting plea could be filed.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 24 (1945).

(No. 59) Question: Under the Rule 169 of the Rules of Civil Procedure, assume that a party is delivered a proper request for ad­missions of fact and does not reply to the same within the time stipulated, and as­sume further that five days prior to the time that the party has to make his reply his attorney files a motion in the court papers for a ten day extension of time to file a reply and no other notice is given to the adverse party of the filing of such mo­tion, and no action is taken on the motion at the time, and no other motion for an ex­tension of time is made, would the court at the trial of the case over three months thereafter have any authority to permit such party to file a reply to the request for admissions?

Answer: We consider that the court would, under the circumstances at hand, have authority, in the exercise of its dis­cretion, to permit the reply to be filed un­less the motion were so worded as not to contemplate an extension at so late a time, and that it would likewise, of course, have the discretion to refuse such permis­sion. Rule 169 gives such authority on motion and notice. Rule 21 requires the clerk on the filing of the motion to make the proper entries concerning it on the motion docket, and renders such filing and entry sufficient notice, since the mo­tion is one in a pending suit. As these entries are to be made by the clerk, any failure to make them is the fault of the clerk. In the fact situation which is sup­posed in the question, the party demand­ing the admission has a clear remedy. It is to be expected that within the ten days allowed by Rule 169 he will have come into possession of a copy either of the sworn statement or else of the motion to enlarge the time for filing the sworn statement, because Rule 72 requires the transmission of a copy of any paper of that kind and Rule 73 puts the party in default of that duty in danger of having to pay for a certified copy. If at the end of the ten days' time the party demand­ing the admission receives no copy what­ever, he very naturally should resort to the papers to ascertain whether any paper has been filed. If, instead of a sworn state­ment as required by Rule 169, he en­counters a motion for enlargement of time, as is permitted by such. Rule, he may thereupon request the court to hear the motion, and he may persist in his request until it is heard. Since the efficacy of this whole proceeding is largely de­pendent upon its completion before the trial commences, it is, of course, to be hoped that the demandant would thus protect himself. The discretion of the court in such a case should be exercised to the end of requiring as prompt a filing of the sworn statement as the circumstances may justify.

It should be added that, in the event respondent's motion is ineffective on ac­count of its wording, a second though more onerous motion could be urged and granted under Rule 169 and subdivision (b) of Rule 5.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 25 (1945).