The Dallas Court of Appeals has issued an Opinion in a mandamus proceeding that establishes a new standard for mandamus relief. In In re Pendragon Transportation, LLC, Pendragon complained of a trial court order that appointed a special master to attend depositions in the case and to make rulings on any objections, assertions of privilege, and instructions not to answer, in real-time. Pendragon also complained that the order required Pendragon to pay the special master's fees up front. In support of its order, the trial court found that the exceptional circumstances of the case justified taking the action in question. Pendragon filed a written objection to the order over two months after it was rendered, and four months later Pendragon sought mandamus relief from the court of appeals.
In its opinion, the court of appeals notes that the threshold for "exceptional" circumstances to appoint a special master is quite high, but the court ultimately concludes that Pendragon was not entitled to mandamus relief as to the appointment of the master because of its delay in seeking mandamus relief without providing any justification for the delay. However, in addressing the portion of the order requiring that Pendragon pay the special master's fees in advance, the court of appeals concludes that there was a clear abuse of discretion and no adequate remedy by appeal, and the opinion adds this reasoning:
Because the trial court's order regarding fees was clearly in direct contravention of the rules of civil procedure, Pendragon's delay in filing its petition does not bar its right to relief on this issue.
Whether the court intended this change in mandamus practice remains to be seen, but it now becomes the law that delay is not an obstacle to mandamus relief if you are faced with a clear and direct contravention of the rules of civil procedure. The Court's opinion may be found here.
Thanks to Andy Korn for calling this one to my attention.