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

The Dallas Court of Appeals has held that "due process requires that a party be given the opportunity to present its arguments to a court before the court makes a ruling." (citing TRAP 52.4).

In In re Victor Enterprises, Inc., the trial court (Dallas County Court at Law No. 1) granted a petition for writ of mandamus without requesting a response from Victor Enterprises.  Victor Enterprises sought mandamus relief in the court of appeals.  Interestingly, the court of appeals requested a response from the real party in interest.  The real party in interest filed no response.  The court of appeals concluded that the trial court abused its discretion by granting the petition without requesting a response or allowing Victor Enterprises time to file a response.   The writ of mandamus was conditionally granted.  The court's opinion 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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At least that's how the Texas Supreme Court's version of Matthew 7:13 reads.  In a per curiam opinion, the Court recently demonstrated its vigilance in policing overly-broad discovery orders.  In this product liability case, the plaintiff sought all documents of consumer complaints regarding "the sidestep on any model backhoe."  John Deere objected to the request as overly broad.  The trial court narrowed the request to models with step assemblies similar to the allegedly defective model, but did not impose a reasonable time limit.  The Court reaffirmed that discovery orders compelling production must set reasonable time limits and that "[a]n order that compels overly broad discovery is an abuse of discretion for which mandamus is the proper remedy."  Accordingly, the Court granted the petition and vacated the trial court's discovery order to the extent it failed to set a reasonable time limit.  The Court's opinion in In re Deere & Company can be found here. 

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At least since the Texas Supreme Court's 1994 opinion in Transportation Insurance Company v. Moriel, questions of the right to discovery of a defendant's net worth information, the definition of "net worth", and the scope of information relating to net worth have been simmering in the district courts and in the courts of appeals.  The latest opinion on the subject has been issued by the Fourteenth District Court of Appeals and the concurring opinion makes case for why it's time for the Texas Supreme Court to address these thorny issues.  The majority's opinion in In re Jacobs may be found here.  The concurring opinion may be found here.

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The Dallas Court of Appeals recently held that the major transaction exception to the prohibition on venue agreements only applies if the value of the transaction is contained in the agreement itself.  In this original proceeding, the parties entered into a settlement agreement involving real estate in which the parties agreed that venue of any dispute would be in Dallas County.  Plaintiff brought suit in Dallas County, the defendant moved to transfer to the county in which the property was located.  The plaintiff argued that venue in Dallas County was proper under section 15.020 of the Texas Civil Practice and Remedies Code because the transaction involved consideration of more than $1,000,000.  The Court disagreed and held that in order for section 15.020 to apply, the "agreement must contain the agregated stated value of the consideration."  Because the settlement agreement did not contain the amount, the trial court abused its discretion by denying the defendant's motion to transfer to the county of mandatory venue.  As a result, the Court granted the defendant's petition for writ of mandamus.  The Court of Appeals decision in In re Togs Energy, Inc. can be found at this link. 

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The Amarillo Court of Appeals recently issue an opinion in In re Lagaite, in which the Court dismissed the petition for writ of mandamus for want of jurisdiction.  The petitioner complained of medical treatment he received while incarcerated in a Texas prison and evidently named the medical doctor as the respondent.  Noting that Texas Government Code Section 22.221(a) and (b) grant mandamus jurisdiction to protect an appellate court's jurisdiction or to issue writs against a district or county court judge, the court of appeals concluded it did not have jurisdiction.  The Court's opinion may be found here.

I had a similar issue come up in an appeal I handled many years ago and I recall that there were a few cases out there in which mandamus had issued against persons other than a district or county court judge and protection of the appellate court's jurisdiction was not in issue.  I would be interested in hearing from any of our readers whether they are familiar with other cases in which a court of appeals issued a writ of mandamus against someone other than a district or county judge and protection of the appellate court's jurisdiction was not in issue.

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The Fort Worth Court of Appeals recently reaffirmed that orders denying a motion to dissolve a prejudgment writ of garnishment are interlocutory and, therefore, not appealable.  Accordingly, the Court dismissed the appeal.  The Court's memorandum opinion in MRI Country Bend Invest. Fund, L.P. v. Capitol Painting & Construction, Inc. dismissing the interlocutory appeal can be found here. 

If you are looking to challenge the denial of a motion to dissolve a prejudgment writ of garnishment, the Dallas Court of Appeals held in In re Texas American Express, Inc. that such an order may be challenged by mandamus.  That opinion can be found here. 

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The Dallas Court of Appeals held that plaintiffs were not entitled to take the depositions of George W. and Laura Bush in relation to the ongoing dispute over the location of the proposed Bush Presidental Library.  The Court stated:

For reasons of comity and the policy considerations discussed in [United States v.]Poindexter, we conclude the decision to allow the deposition of a sitting or former President is not controlled by the standards applicable to apex depositions.   . . . Our review of the record indicates that real parties in interest Vodicka and Tafel did not meet either prong of the Poindexter standard.

The bottom line was that the real parties in interest did not establish Bush's testimony was material or necessary and specifically failed to produce a list of proposed questions for trial court review under a "meticulous standard." Accordingly, the Court granted George W. Bush's petition for writ of mandamus and ordered the trial court to enter an order quashing the depositions of the former President and First Lady.   The Court's opinion in In re President George W. Bush can be found at this link.

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The San Antonio Court of Appeals has issued an interesting opinion in a mandamus proceeding involving what is described as an unsuperseded judgment.  In In re Romero, Gonzalez & Benavides, L.L.P., there was a dispute between the law firm of Romero, Gonzalez & Benavides (RG&B) and attorney Mark Cantu regarding the right to a portion of a settlement recovery.  The funds in question were placed into the registry of the court and the trial court subsequently ruled that the funds belonged to RG&B and signed a final judgment to that effect. 

After Cantu appealed, RG&B filed a motion seeking the release of the funds.  The trial court ruled that it would not release the funds while Cantu's appeal was pending.  RG&B filed a petition for writ of mandamus seeking to force the release of the funds.

The court of appeals holds that the trial court abused its discretion because Cantu had filed no supersedeas bond to suspend execution on the judgment.  Appellate Rule 24.1 allows for the filing of a cash deposit in lieu of a bond.   Cantu could have deposited one year's worth of post-judgment interest and court costs to be added to the existing funds on deposit with the court and arguably the judgment is fully suspended.   Or, the trial court could have ordered alternate or lesser security and held that the funds on deposit were sufficient to supersede the judgment.  I have not read the parties' mandamus briefs to know of any of this was tried or argued, but from the court of appeals opinion, it does not appear as the trial court treated its order as an order regarding supersedeas (reviewable by motion rather than mandamus) and it does not appear that the parties asserted that the trial court's order was an order relating to supersedeas.  Nonetheless, it seems as though Rule 24 provides a simple avenue for relief for Cantu.  The Court's opinion may be found here.

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The Beaumont Court of Appeals has held that a contractual waiver of jury clause does not extend to non-contractual claims brought against non-signatory joint tortfeasors or alleged conspirators.

In In re Wild Oats Markets, Inc., Kuykendahl-WP Retail, L.L.P. ("Kuykendahl") had a lease agreement with Wild Oats Markets, Inc., which contained a contractual waiver-of-jury-trial clause.  Kuykendahl brought suit against Wild Oats for breach of the agreement.  Kuykendahl also sued Whole Foods Market, Inc. for tortious interference with the lease and for engaging in a conspiracy with Wild Oats to commit fraud.

The trial court struck Kuykendahl's jury demand with respect to its claims against Wild Oats, but set Kuykendahl's claims against Whole Foods for a jury trial.  Wild Oats sought mandamus relief, asserting that the contractual waiver necessarily included Kuykendahl's claims against Whole Foods.  Noting that Wild Oats had not shown that Kuykendahl had waived its right to a jury trial on its tortious interference claim against Whole Foods (for conduct occurring prior to Whole Foods' merger with Wild Oats), the court of appeals denied Wild Oats' petition for writ of mandamus.   From the court's opinion, it is unclear how the trial court intended to try claims for fraud and conspiracy when part of them were to be tried to a jury and part were to be tried to the bench.  The court's opinion may be found at this link.

Update: Wilds Oats and Whole Foods (which was not a relator in the court of appeals) have now filed a petition for writ of mandamus in the supreme court. See Case No. 09-0278.  The supreme court has called for a response.

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 Void orders of a trial court may occur in a number of different circumstances.  The Corpus Christi Court of Appeals discusses one such circumstance in Silguero v. State.

The trial court dismissed the State's action for forfeiture for want of prosecution and the State timely filed a motion to reinstate, but the motion was not verified.  More than 30 days after the dismissal, the trial court granted the motion to reinstate.  The trial court subsequently rendered a judgment of forfeiture and the Silgueros filed an appeal as well as a petition for writ of mandamus, each asserting that the trial court's order of reinstatement was void.

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The Dallas Court of Appeals recently held that a provision calling for application of the Texas General Arbitration Act necessarily excludes application of the Federal Arbitration Act.  First, the Court held that because the motion to abate was made under  the FAA, the Court had jurisdiction to review the trial court's order by mandamus.  Next, the Court acknowledged the Texas Supreme Court's test that a general choice of law clause will not be read to exclude federal law unless the clause "specifically excludes the application of federal law."  Third, the Court acknowledged that the FAA generally controls transactions involving interstate commerce.  Lastly, the Court held that the parties excluded application of federal law by agreeing that the Texas General Arbitration Act applied.  The Court noted that a general choice of law provision does not specifically exclude  federal law because "the FAA was part of the substantive law of Texas."  Nevertheless, by naming the Texas Act, the parties excluded the FAA.  The Court's opinion in In re Olshan Foundation Repair Co., L.L.C. can be found at this link.

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With its opinion in In re Butler, the Dallas Court of Appeals reminds us that there has been an important change to mandamus procedure.  Appellate Rule 52.3 was amended effective September 1, 2008, and now requires a certification by the person filing the petition for writ of mandamus that he or she has reviewed the petition and every factual statement is supported by competent evidence in the appendix or record.  Previously, Rule 52.3 required factual statements to be verified by affidavit, which sometimes presented difficulties for appellate counsel who might not have the requisite personal knowledge.

Despite the change in Rule 52.3, the Dallas Court of Appeals reiterates that a sworn or certified copy of the order or other document complained of still must be included in the appendix to the petition.  An affidavit swearing that the order is "to my knowledge" a true copy of the original is an equivocal statement implying something less than personal knowledge and it does not comply with the requirement for sworn copies.  The Court's opinion may be found at this link. 

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The Corpus Christi Court of Appeals recently held that a respondent is entitled to notice and an evidentiary hearing before having its counsel disqualified.  First, the court determined it had jurisdiction to issue a writ of mandamus against a presiding judge of a administrative judicial district because the judge was acting in the capacity of a district judge when he heard the oral motion to disqualify.  Second, the court determined that a party is entitled to notice and hearing prior to disqualification.  The court stated:

While we agee that the alleged disqualifiying conflict is significant, if the disqualifyig status is proved, we disagee that one party's bare allegation of the conflict is sufficient to establish disqualification as a matter of law when the opposing party is seeking to enforce its right to an evidentiary hearing on the constitutionally protected right to counsel of the party's choosing.

The court of appeals' opinion in In Re Lopez can be found at this link.

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The Amarillo Court of Appeals recently held  that a party may be ordered to sign a medical records authorization in response to a request for disclosure pursuant to TRCP 194.2.  The defendant served a request for disclosures including a request for execution of an authorization to release medical records under Rule 194.2(j).  The plaintiffs argued they could respond by either producing the medical records or executing an authorization permitting  the release of  medical records.  The trial court disagreed and ordered the plaintiffs to execute the authorizations.  Plaintiffs sought mandamus relief from the court of appeals.  In denying the plaintiffs' petition, the court of appeals stated that "the option belongs to the party requesting disclosure, not the one responding to it.  If a legitimate request is sought, then the respondent cannot unilaterally comply with the request by simply delivering selected medical records."  The court's opinion in In Re Soto can be found at this link.  

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 "The overarching question before the en banc Court is whether a writ of mandamus should issue directing the transfer of this case from the Marshall Division of the Eastern District of Texas--which has no connection to the parties, the witnesses, or the facts of this case--to the Dallas Division of the Northern District of Texas--which has extensive connections to the parties, the witnesses and the facts of this case."

So begins the majority opinion in a case addressing whether mandamus is appropriate to correct a district court's ruling on a motion to transfer venue pursuant to 28 USC sec. 1404(a).  By a 10-7 vote, the United States Court of Appeals for the Fifth Circuit answered in the affirmative and ordered the case transferred.  The majority and dissenting opinions in In re Volkswagen of America, Inc. can be found at this link.

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The Houston Fourteenth District Court of Appeals has held that a Relator must challenge all possible grounds supporting a trial court's ruling by its Petition for Writ of Mandamus or the Relator waives its complaint.  In In re TCW Global Project Fund II, Ltd., No. 14-08-00116-CV (Sept. 24, 2008), the Relator filed a Petition for Writ of Mandamus complaining of the trial court's order denying a motion to dismissed based on a forum selection clause.  The Court of Appeals holds that TRAP 52.5's requirement that a Relator "may file a reply addressing any matter in the response" is indistinguishable from TRAP 38.3's language providing that the Appellant "may file a reply brief addressing any matter in the appellant's brief."  The opinion of the court may be found here.

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