Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

Since 1985, the test for whether a writ of mandamus will issue in connection with a trial court's refusal to grant a plea in abatement under the doctrine of dominant jurisdiction has required proof of an active interference by one court with the jurisdiction of another court.  The loosening of mandamus standards does not appear to have changed that requirement.  The Texarkana Court of Appeals reaffirmed that rule in In re Martin.

The underlying dispute involves a fight between brothers Scott Martin and Ruben Martin over a family-owned company, Martin Resource Management Corporation (M.R.M.C.).  Scott initially sued M.R.M.C and Ruben in Harris County, complaining of a wrongful issuance of shares of stock aimed at diluting Scott's voting power.  M.R.M.C. subsequently filed suit against Scott in Gregg County and eventually limited his claim to one for breach of fiduciary duty.  Although some of the factual bases for alleged liability against Scott arose after the Harris County suit, the court of appeals points out that at least a part of the basis for the breach of fiduciary duty claim was the filing of the Harris County lawsuit.

The trial court issued a writ of injunction against Scott prohibiting Scott from taking any action to prevent M.R.M.C.'s prosecution of the Gregg County case or preventing M.R.M.C. from participating in the Gregg County trial.  The injunction was apparently issued because of Scott's attempts to have the Harris County court enjoin M.R.M.C. from proceeding with the Gregg County case.  The court of appeals denied mandamus relief upon a finding that the trial court's injunction against Scott does not amount to an interference on the part of the Gregg County Court with the Harris County trial court proceedings.  The court's opinion may be found here.

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The Fort Worth Court of Appeals recently held that it was error for a trial court to order that an attorney not file a notice of appeal until his client directed him to do so.  After trial, Relator's counsel sought to have appellate counsel substiuted in for any possible appeal.  The Texas Department of Protective and Regulatory Services (Department) opposed the request and argued that no appellate counsel should be appointed, and no notice of appeal should be filed, until Relator expressed his desire to appeal.  The trial court signed an order denying the substitution and prohibiting counsel from filing a notice of appeal unless Relator so directed.  Relator sought mandamus relief and argued that whether counsel has authority from a client to file a notice of appeal is an issue for the appellate court regarding its jurisdiction.  The court of appeals agreed, holding that "to the extent there is a factual dispute concerning the lawyer's authority to file a notice of appeal, the dispute must be resolved by the court of appeals . . . ."  The court also held that "[t]he trial court does not, however, have the authority to interfere with our jurisdiction by prohibiting a party from filing a notice of appeal."  Accordingly, the court granted the petition and ordered the trial court to vacate its order prohibiting the filing of a notice of appeal.  The court's opinion in In re J.R.J. can be found at this link.

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The Amarillo Court of Appeals dismissed a Petition for Writ of Mandamus against a justice of the peace because a court of appeals does not have jurisdiction to issue a writ of mandamus against a justice of the peace.

In In re Smith, the relators sought a writ of mandamus against a justice of the peace in Floyd County, Texas to order the JP to set a case for a jury trial and to enforce a Rule 11 Agreement and for other assorted requests.  The court of appeals noted that its power to issue writs is derived from the constitution and from statute and neither of those authorities afford jurisdiction to issue a writ of mandamus against a justice of the peace.  Accordingly, the court dismissed the petition for writ of mandamus for lack of jurisdiction.  The court's opinion may be found here.

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Here's one to put in your mandamus file.  The Dallas Court of Appeals has held that the trial court abused its discretion by denying a special exception and that the relators had no adequate remedy by appeal.  Of course, there's more to this holding than meets the eye.

This is a sharolder derivative suit governed by Delaware law.  Delaware law requires a party bringing such an action to first make demand that the board of directors bring suit and refuse to do so, or show that the demand would be futile.  Under Delaware law, the plaintiffs must make a particularized showing in their pleading of the facts relating to this requirement.  The plaintiffs did not do so, and the defendants/relators specially excepted to the pleading.  District Court Judge Martin Hoffman denied the special exceptions.

The court of appeals held that Judge Hoffman abused his discretion by denying the special exceptions.  On appeal, the plaintiffs appear to have tried to provide the specificity that should have been contained in their trial court pleading.  The appellate court rejected the explanations on the merits and also pointed out that the allegations were not contained in the trial court pleading.  Citing the Texas Supreme Court's opinion in In re Schmitz, 285 S.W.3d 451, 459 (Tex. 2009), the court of appeals also held that the relators/defendants did not have an adequate remedy by appeal.  I took a look at Schmitz.  It's a mandamus action from a shareholder deriviative action governed by Texas law.  The Court in that case concluded that the plaintiffs had not complied with the demand requirement before bringing suit, and that the appellate remedy would be inadequate if a shareholder were permitted to sue without complying with the statutory prerequisite demand.

The court of appeals' opinion in In re Brick may be found here.

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The San Antonio Court of Appeals reaffirmed that the fact that an attorney for one of the parties may also be a witness does not require disqualification under Rule 3.08 of the Disciplinary Rules of Professional Conduct.  In this case, counsel for the relator was a potential witness with knowledge of some arguably relevant facts.  The Real Party in Interest filed a motion to disqualify Relator's counsel pursuant to Rule 3.08, which the trial court granted.  Relator filed a petition for writ of mandamus seeking to vacate the trial court's order.  In an opinion by Chief Justice Catherine Stone (left), the court of appeals held that "[t]he fact that a lawyer serves as both an advocate and a witness does not, standing alone, compel disqualification."    The court reiterated that (1) the lawyer's testimony must be necessary to establish an "essential fact" on the client's behalf, and (2) the opposing party must demonstrate it would suffer actual prejudice as a result of the lawyer's dual roles as advocate and witness.  Because neither was shown in this case, the court granted relator's petition for writ of mandamus.  The court's opinion in In re Tipps can be found here.

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Texas Appellate Rule 52.3(k)(1)(A) requires that an appendix to a Petition for Writ of Mandamus must contain a certified or sworn copy of any order complained of, or any other document showing the matter complained of.  Appellate courts are very strict in enforcing this requirement.  So much so that even when the Respondent trial judge does not dispute how she ruled, the court of appeals will not accept the petition for writ of mandamus unless the order is in the appendix.

Thus, the Dallas Court of Appeals denied a petition for writ of mandamus in In re Oncor Electric Delivery Co., where the relator had not produced a copy of the order complained of--specifically, the trial court's denial of Oncor's motion to join responsible third party.  Instead, Oncor pointed the court to the transcript of the hearing on Oncor's motion for rehearing of that issue wherein the trial judge recited at the outset of the hearing, "My understanding is, is that this is Defendant's motion to reconsider the court's denial of the responsible third-party motion."  The appellate court denied the petition for writ of mandamus due to the failure to provide a definite oral or written ruling of the denial of the motion to join responsible third party.  The court's opinion may be found here.

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In a mandamus setting, it can sometimes be a challenge to ensure that you've brought forward all the documents and hearing transcripts required to establish an abuse of discretion.  The Houston Fourteenth District Court of Appeals has suggested the record in a death penalty sanctions case may need to be fairly comprehensive.  In In re Le, Le filed a petition for writ of mandamus asserting that the trial judge abused his discretion by assessing death penalty sanctions against her.  In a 2-1 split decision, the majority of the panel concluded that the mandamus record was incomplete such that it could not find any abuse of discretion.  Why?  Because death penalty sanctions necessarily require the court to look back at the whole history of the litigant's abuses and Le's record did not include all of the discovery hearing transcripts leading up to the sanctions hearing.  The majority also concluded that Le failed to advise the trial judge that a monetary sanction threatened her ability to continue the litigation.  The majority felt that this requirement was a necessary preservation predicate, and such effort would also establish the inadequate-remedy-by-appeal element of mandamus.  The majority's opinion may be found here.

Justice Christopher dissented, arguing that the monetary sanctions were almost three times the amount assessed in Braden v. Downey and included a future payment, and yet the Braden court found an abuse of discretion.  Justice Christopher also took issue with the plaintiff's conclusory affidavit that asserted that the plaintiff was prejudiced by delay in discovery, and she questioned whether that single statement could justify death penalty sanctions.  The dissenting opinion may be found here.

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Once upon a time, if there was doubt about whether an arbitration agreement was subject to the Federal Arbitration Act (FAA), a party complaining of a denial of a motion to compel arbitration had to file (1) an interlocutory appeal AND (2) a petition for writ of mandamus, then seek to consolidate the two separate proceedings.  The separate mandamus is not required since September of 2009, when Texas Civil Practice and Remedies Code Section 51.016 went into effect and allowed for an interlocutory appeal of agreements subject to the FAA.  (why this statute was not located with the other interlocutory appeal provisions is a mystery to me).

The El Paso Court of Appeals points out the implications of the adoption of Section 51.016 on mandamus practice in In re H.D. Vest Inc.  In short, the court denied a petition for writ of mandamus because the court concluded that the Relators have an adequate remedy by appeal under Section 51.016.  The court's opinion may be found here.

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I recently wrote another blog entry about what happens when the parties or the trial court fail to follow the appellate court mandate.  Now, here's another:

In a prior appeal, the Fort Worth Court of Appeals held that the Plaintiff's expert report was adequate as to one of two claims and inadequate as to the second claim.  The appellate court's mandate affirmed the portion of the trial court's judgment that denied the doctor's motion to dismiss as it pertained to the claim on which the expert's report was deemed adequate.  However the judgment was reversed as to the claim on which the report was deemed inadequate and the case was remanded for consideration of whether the trial court should allow the plaintiff to cure the deficiency in the expert affidavit.  Following the remand, the plaintiff elected not to cure the affidavit as to the claim on which the report was deemed inadequate.  The defendant doctor then sought dismissal of all claims on the grounds that the plaintiff had not amended the expert report.  The trial court granted the motion and dismissed all the claims against the doctor.

The plaintiff filed a petition for writ of mandamus and asserted that the trial court had failed to carry out the appellate court's mandate insofar as it related to the affirmed portion of the trial court's judgment.  The court of appeals granted the petition for mandamus and held that a second interlocutory appeal was not required because the plaintiff was entitled to have the trial court give effect to the judgment and mandate issued.  The court's opinion in In re Richardson may be found here.

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A couple of opinions--one state and one federal--reiterate the effect of an appellate court's mandate following remand of the case back to the trial court.

 The Fifth Circuit Court of Appeals held that a prior decision decertifying a class certification "foreclosed the re-litigation of the class certification" on remand to the trial court.  Gene and Gene, L.L.C. filed suit against BioPay, L.L.C. alleging violation of the Telephone Consumer Protection Act of 1991 due to the sending of unsolicited advertisements from one fax machine to another.  After the district court certified the class, BioPay filed an interlocutory appeal.  The Fifth Circuit reversed the certification, held that the issue of consent precluded certification, and remanded to the district court "for further proceedings not inconsistent with this opinion."  After remand, Gene & Gene discovered a searchable datebase that it contended established a common method of establishing the issue of consent.  Gene & Gene moved to recertify and the district court granted recertification.  A second appeal followed. 

Two judges on the Fifth Circuit panel held that the law-of-the-case doctrine or mandate rule foreclosed the district court from reconsidering the certification.  Alternatively, the two-judge majority held that the evidence discovered on remand was not substantially different from the evidence before the court in the first opinion.  The third judge on the panel concurred in this latter holding.  The court's opinion in Gene & Gene, L.L.C. v. BioPay, L.L.C., may be found here.

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Last year, the Texas Supreme Court shook things up a little with its opinion in In re Columbia Medical Center, in which it granted a petition for writ of mandamus and ordered a trial court to state the reasons for granting a new trial.  Prior to that time, mandamus relief was not available to a litigant that suffered the granting of a new trial.   But one question raised by In re Columbia Medical Center's result is "to what effect?"  Once the trial court states its reasons, is that the end of the discussion?  Or can the reasons be used as a basis to challenge the new trial order itself?

The El Paso Court of Appeals was recently presented with that issue in In re Toyota Motor Sales, U.S.A. Inc.  Following a jury verdict in favor of Toyota, the trial court entered judgment on the verdict.  The Plaintiff filed a motion for new trial, seeking a new trial "in the interest of justice" because of evidence presented and arguments made relating to whether the driver of the Toyota had been wearing his seatbelt at the time of the accident.  The trial court granted the motion for new trial "in the interest of justice" "because Defendant willfully disregarded, brazenly and intentionally violated the Court's orders in limine, evidentiary rulings, instructions and orders concerning a crucial evidentiary issue relating to seat belt use."  In what appears to be an alternate basis for the new trial, the court invoked its inherent authority to sanction, and referred to the same conduct by Defendant as the basis for a new trial.

Toyota sought mandamus relief to compel the trial court to vacate the order, arguing that the grounds were not sufficient.  The court of appeals concluded that In re Columbia does not authorize such relief and that the trial court's order satisfies In re Columbia.  The court overruled Toyota's issue challenging the new trial, and then separately declined to address whether Toyota has an adequate remedy by appeal.  The court's opinion may be found here.

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Each election season is sure to bring a slew of new mandamus opinions as decisions of our election officials are challenged.  That's what happened in In re Cercone. 

Albert Cercone, who is the Republican Party nominee for Dallas County Justice of the Peace, Precinct 3, Place 1, filed a petition for writ of mandamus to challenge the possible certification and placement of Democratic candidate Joseph Ramirez Miller on the ballot.

Under the facts of the case, it appears that the original Democratic candidate for that position was declared "ineligible" by Darlene Ewing as Chair of the Dallas County Democratic Party.  As a result, Ewing certified Miller as the replacement candidate and reported the certification to Bruce Sherbet, the elections administrator for Dallas County.

Upon review of the Election Code, the Dallas Court of Appeals held that the declaration of ineligibility did not rest upon valid grounds because a deficiency in the number of signatures required to put a name on the ballot is a deficiency in the application for office, not a deficiency in eligibility of the applicant.  Notably, however, the Court did not issue a writ of mandamus against either Ewing or Sherbet.  To obtain mandamus relief, Cercone was required to show that he first demanded that Ewing perform her duty not to declare the initial candidate ineligible.  Cercone did not do so.  The Court also declined to grant mandamus relief against Sherbet because Sherbet had no duty to inquire into the validity of the certification of Miller. 

The court's opinion may be found here.

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The Dallas Court of Appeals reversed a district court's order denying a plea to the jurisdiction that had been filed by the Texas attorney general, who had intervened in the proceeding for the purpose of contesting jurisdiction.  The court of appeals held that Texas district courts lack jurisdiction to grant divorces to same-sex couples legally married in other states.  Construing Texas Family Code Section 6.204(c), Justice Kerry FitzGerald, writing for a three-judge panel, held that section 6.204(c) "deprives the trial court of subject matter jurisdiction."  The court further held that the state law prohibiting a divorce of parties to a same-sex marriage does not violate the Equal Protection Clause of the 14th Amendment to the United States Constitution.  The court's opinion on In re J.B. & H.B. can be found at this link.

Mandamus aficionados may wish to study the portion of the court's opinion holding that the attorney general had no adequate remedy by appeal because of the exceptional nature of the case involving (1) principles of subject-matter jurisdiction, (2) constitutional challenges, (3) potential interference with the State's right to be heard, and (4) potential interference with the State's right to appeal the denial of a plea to the jurisdiction.

One issue not addressed was the district court's ruling that the State did not have standing to intervene.  The court of appeals avoided addressing the standing issue by reasoning that the district court had ruled the State lacked standing after the State had filed an interlocutory appeal to complain of the district court's earlier denial of the plea to the jurisdiction.   The court of appeals held that the district court's order addressing standing was signed in violation of the automatic stay set out in Texas Civil Practice and Remedies Code Section 51.014(b).

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The Tyler Court of Appeals recently confirmed that individual federal tax returns are discoverable to the extent they are relevant and material.  In this case, the tax returns were relevant to the claims and the court found that the parties had agreed to the production of the returns.  But that was not the end of the matter.  The court of appeals also found that not all of the information contained in the tax returns was relevant.  Thus, the court of appeals held the trial court abused its discretion by ordering the tax returns produced in their entirety when only portions of the returns dealing with specific income were relevant.  Accordingly, the court of appeals conditionally granted the petition for writ of mandamus and ordered the trial court to vacate its order that the party to produce all individual tax returns from 1999 to the present in their entirety.  The court's opinion in In re Guniganti can be found at this link.

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The Fort Worth Court of Appeals recently held that an order directing that sanctions be paid prior to final judgment is an abuse of discretion unless the court makes express findings as to why the sanctions do not preclude the sanctioned party from continuing the lawsuit.  In this case, the trial court awarded over $19,000 in sanctions against the plaintiff for discovery abuse payable within thirty days.  The plaintiff filed a writ of mandamus arguing that the sanctions were unwarranted and, even if proper, the sanction should not have been payable within thirty days.  The court of appeals deferred ruling on the discovery issues and amount of the sanctions but held that the order to pay within thirty days was an abuse of discretion because the sanction threatened the plaintiff's ability to continue the lawsuit.  The Court stated:

If a litigant contends that a monetary sanction precludes access to the court, the district judge must either (1) provide that the sanction is payable only at a date that coincides with or follows entry of a final order terminating the litigation; or (2) make express written findings, after a prompt hearing, as to why the award does not have such a preclusive effect.

The Court denied the plaintiff's request for mandamus as to the propriety of the sanctions, but granted the petition and ordered the trial court to modify the sanctions order to provide that the sanctions be payable upon termination of the litigation.  The Court's opinion in In re Spence can be found at this link.

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After waiting more than a decade for some guidance from the Texas Supreme Court on the meaning of "net worth" in discovery matters, we thought we were going to get just that--at least until last Friday, that is.  In last Friday's orders, the high court granted the motion to dismiss filed by the real parties in interest.

I understand that the basis for the motion was that after the supreme court expressed interest and requested briefing, the real parties in interest went back to the trial court and asked the court to vacate its discovery order, which the court did.  The real parties then sought dismissal of the mandamus proceeding, and it appears that the court obliged.

I've written a couple of prior entries about the In re Jacobs case.  Those entries may be found here and here, for those curious to read more about Jacobs.   

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Texas Rule of Civil Procedure 171 allows a court to appoint a master in chancery "in exceptional cases, for good cause."  In its In re Behringer Harvard Tic Management Services LP opinion, the Dallas Court of Appeals reminded us of what the Texas Supreme Court said about "exceptional cases" almost 20 years ago.  A court's busy schedule and general reference to complexities of discovery do not make a case exceptional.  Thus, the court of appeals conditionally granted a petition for writ of mandamus to order the district court in this case to vacate an order appointing a special master to handle in camera review of documents.  The court's opinion may be found here.

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Sometimes when a party gets a default judgment against another party, there's a rush to make the judgment final.  But as American Express Centurion Bank and American Express Bank found out in In re Daredia, you've got to be careful about what you ask for because there are consequences.

In the trial court, the American Express entities sued two defendants, Pervez Daredia and Map Wireless, Inc.  Map Wireless did not answer, while Daredia did.  American Express took a default judgment that contained language reciting that the "judgment disposes of all parties and all claims in this cause of action and is therefore FINAL."  Oops.  Apparently, American Express forgot that there was another party--Daredia.

American Express realized its mistake only too late--after the trial court's plenary jurisdiction had expired.  At that time, American Express tried to correct the judgment with a motion for judgment nunc pro tunc.  The trial court granted the motion. 

On Petition for Writ of Mandamus, the Texas Supreme Court, in reliance on its opinion in Lehmann v. Har-Con Corp., pointed out that Lehmann did not require that you use the exact language suggested in that opinion--only that the judgment reflect on its face an intent to make it final.  And the court held that this judgment did just that.   The court also reiterated the differences between errors made in entering a judgment, which are clerical, and errors made in rendering a judgment, which are judicial.  All too often state practitioners carelessly mix these concepts, but here we have a prime example of where the distinction is all the difference.  Here, the error was in the rendition of the judgment because the trial court rendered (signed) precisely the judgment American Express asked the trial court to render.

Because Daredia had no adequate remedy by appeal once the trial court set aside the final judgment, the Supreme Court held that mandamus relief was available.  The court's opinion may be found here.

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The Dallas Court of Appeals recently held that a trial court abused its discretion by ordering production of irrelevant net worth information.  The Court first acknowledged that "net worth is relevant and discoverable when punitive damages may be awarded."  The Court  noted the "corollary to that rule is that when punitive damages are not recoverable, information about net worth is not relevant and, as a result, not discoverable."  In this case, a patron had consumed alcohol and drove her vehicle causing an accident and injuring the plaintiffs.  The driver pleaded guilty to two counts of intoxication assault.  The plaintiffs sued the defendant for serving the driver "excessive amounts of alcohol."  The Court of Appeals, citing section 41.005(a) of the Civil Practice and Remedies Code, held that punitive damages were not recoverable against the defendant because the claims arose from the criminal conduct of another.  Because punitive damages were no recoverable, the net worth information was not relevant.  Accordingly, the Court conditionally granted the petition ordering the trial court to vacate its order compelling production of net worth information.  The Court's opinion in In re Islamorada can be found here.

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Few writs of mandamus are granted in Dallas, so when I see one in the daily case updates I like to check the opinion out.  I was glad I did so today!  The Dallas Court of Appeals issued an informative opinion today conditionally granting a writ of mandamus to vacate an order that compelled the production of information containing Goodyear's trade secrets. 

Although I generally consider discovery to be a 4-letter word (at least the process of drafting discovery requests and objecting to the other side's requests), the question of whether certain information is discoverable often provides for interesting legal research and analysis.  The question of whether documents should be protected from discovery on the basis of confidentiality or trade secret status is one of those interesting issues.  Too often, however, opinions don't include a detailed analysis of the arguments, objections, and evidence presented in the trial court on discoverability or lack thereof.  Today's opinion in In re the Goodyear Tire & Rubber Company is an exception to that rule.

Justice Lang-Miers provides us with a detailed analysis of the evidence and arguments presented by both sides.  Although it appears that this was not really a close case -- Goodyear provided ample evidence to support its contention that the documents contained trade secrets -- the opinion gives good examples of what types of evidence should be filed to meet your burden of proof.  Those examples can be molded for use in other cases, products cases or otherwise.  The opinion also helps future parties on the losing end of a motion to compel to get a second bite at the apple.  The court did not determine whether the trade secret information is discoverable.  It simply held that Goodyear met its burden to prove the documents contained trade secrets and the plaintiff failed to meet her heightened burden of proving  that the information is necessary to a fair adjudication of her claim.  So, although the original order will be vacated, the plaintiff can return to the trial court and seek to compel production of the information again.  The court's opinion may be found here.

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