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

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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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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The Houston (Fourteenth) Court of Appeals recently held that a trial court abuses its discretion if it conditions a trial setting on the payment of sanctions.  Here, after a plaintiff and his attorney were sanctioned $45,000 and $5,000, respectively, they challenged the sanctions order by mandamus.  In its memorandum opinion, the court of appeals began by holding that because the plaintiff and his attorney did not claim that the sanctions threatened their ability to continue the litigation, they had an adequate remedy by appeal and, thus, were not entitled to mandamus relief with respect to the sanctions.

In addition to awarding sanctions, however, the order set the trial for the "next available trial date following payment of the fees in full as ordered herein."  Citing precedent, the court held that "[a] sanctions award that impedes the prosecution of the case warrants extraordinary relief."  Accordingly, the court of appeals conditionally granted mandamus and ordered the trial court to delete the language in the sanctions order that conditioned the trial setting on the payment of sanctions.  The court's opinion in In re Gawlikowski can be found here. 

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