The Texas Supreme Court’s newfound enthusiasm for mandamus review of orders granting motions for new trial after a jury trial (see, e.g., In re: United Scaffolding, 377 S.W.3d 685 (Tex. 2012)) has not been embraced by the courts of appeal (including Dallas) to orders setting aside a default judgment, or orders granting a new trial following a bench trial. A thorough summary of the Fifth Court’s opinions on those subjects appears in In re: Walker, No. 05-17-00404-CV (May 23, 2017) (mem. op.)
The case of In re Bolt reminds when a party can seek mandamus relief to obtain a ruling on a motion. On the one hand, because “[m]andamus is appropriate to compel the performance of a ministerial duty,” it follows that “[a] trial jduge must consider and rule on a motion brought to the court’s attention within a reasonable amount of time, and a writ of mandamus may be issued to compel the trial court to rule in such instances.” But, as is required in other contexts where mandamus may be appropriate, the matter must be presented to the trial court: “To be properly filed and timely presented, a motion must be presentedd to a trial court at a time when the court has authority to act on the motion. The mere filing of a motion with the trial court clerk does not equate to a request that the trial court rule on the motion.” No. 05-17-00495-CV (May 22, 2017) (mem. op.)
The recent memorandum opinion in In re NCH Corp reminds of two basic points about mandamus practice.
- In a mandamus situation arising from the threatened disclosure of trade secrets: “No adequate appellate remedy exists if a trial court orders a party to produce privileged trade secrets absent a showing of necessity. In re Bass, 113 S.W.3d 735, 745 (Tex. 2003) (orig. proceeding) (citing In re Cont’l Gen. Tire, Inc., 979 S.W.2d 609, 615 (Tex. 1998) (orig. proceeding)). Further, a trial court abuses its discretion when it erroneously compels production of trade secrets without a showing that the information is ‘material and necessary.’ Id. at 738, 743.”
- The Fifth Court is using slightly revised “standard” language when denying mandamus relief in a short opinion: “To be entitled to mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). . . . Based on the record before us, we conclude relator has not shown it is entitled to the relief requested. Accordingly, we DENY relator’s petition for writ of mandamus. See Tex. R. App. P. 52.8(a) (the court must deny the petition if the court determines relator is not entitled to the relief sought).
No. 05-17-00360-CV (Apr. 25, 2017) (mem. op.)
A mandamus petition challenged an order allowing a “court-supervised wrinding up” of an LLC that owned over 700 acres of undeveloped land in Denton County. As to the procedural posture of the case, the Fifth Court obseved: “[M]andamus relief is proper to the extent the winding-up order permits execution before the entry of a final, appealable judgment.” On the merits, the court concluded that this order had that effect, “because if SRE is wound up and the property sold in the interim, [Petitioner]’s property rights and purported right to continue the business will be lost forever.” In re Spiritas, No. 05-16-00791-CV (Apr. 6, 2017) (mem. op.)
Yes, it arose in the unusual procedural posture of a Rule 736 home equity loan foreclosure, and no, it is not the recommended practice. That said, the relators in the case of In re: Priester successfully convinced the Fifth Court to reverse direction and, on rehearing, grant a writ of mandamus in their favor “[i]n light of the more developed record and clarified arguments . . . .” No. 05-16-00965-CV (Nov. 21, 2016) (mem. op.)
The relator in the case of In re: Schindler Elevator complained that the trial court “refused to issue findings of fact and conclusions of law explaining the court’s reasoning for denying relator’s motion for leave to designate responsible third parties.” The Fifth Court found no abuse of discretion, noting that the RTP proceeding was not a “trial” within the meaning of the applicable rule, and that the relator had a remedy by direct appeal. No. 05-16-01172-CV (Oct. 10, 2016) (mem. op.)
A basic point, but one that bears frequent repetition, and the Court of Criminal Appeals concurrence ultimately cited by the Fifth Court is a quick and worthwhile read.: “As the party seeking relief, the relator has the burden of providing the Court with a sufficient record to establish his right to mandamus relief.” In re: Johnson, No. 05-16-01094-CV (Sept. 27, 2016) (mem. op.) (citing In re: Jones, No. 05-16- 00230-CV, 2016 WL 836835 (Tex. App.—Dallas March 4, 2016, orig. proceeding) (mem. op.) (citing Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring))).
In its order denying a mandamus petition in the case of In re: Adelphi Group, the Fifth Court reminds: “Although parties may expend time and money if they are ordered to arbitration improperly, delay and expense—standing alone—will not render the final appeal inadequate. Further, mandamus as a remedy for review of orders compelling arbitration should be limited to the comparatively rare cases where the legislature has through statute expressed a public policy that overrides the public policy favoring arbitration.” No. 05-16-01060-CV (Sept. 22, 2016) (mem. op.)
In review of a Dallas case, in In re J.B. Hunt Transport, the Texas Supreme Court clarified the standards for mandamus review of a plea in abatement based on a “dominant jurisdiction” dispute between two Texas courts with jurisdiction over similar cases. The Court confirmed that “[In re: Prudential, Ins. Co., 148 S.W.3d 124 (Tex. 2004) indeed abrogates [Abor v. Black, 695 S.W.2d 564 (Tex. 1985)]’s inflexible understanding of an adequate remedy by appeal. Permitting a case to proceed in the wrong court necessarily costs ‘private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conduct proceedings.'” On the merits, the Court found that there had not been a sufficient factual showing to “estop the plaintiff in the prior action from asserting his plea in abatement. No. 15-0631 (May 27, 2016).
In In re Michelin North America, Inc., the Dallas Court of Appeals conditionally granted a writ of mandamus to protect Michelin from being forced to produce certain discovery. The district court ordered Michelin to produce specifications for tires similar to the allegedly defective tire at issue in that case in addition to financial information for the decade prior to the litigation.
The court of appeals held that Michelin satisfied its burden under Texas Rule of Evidence 507 to resist the discovery of trade secrets through the affidavit of an engineer who worked in Michelin’s legal department but that Michelin failed to satisfy its burden of proving its financial data was a trade secret because it failed to offer an affidavit until after the hearing on the motion to compel (helpful hint: it should be filed 7 days before the hearing under TRCP 193.4(a) if it is in affidavit form). The court also held that the plaintiffs failed to meet their burden under Rule 507 to show “with specificity” exactly how the lack of information would impair the presentation of the case on the merits “to the point that an unjust result is a real, rather than a merely possible, threat.” On the issue of financial information, though Michelin failed to timely prove its trade secrets privilege, Michelin was saved by a secondary argument that the district court’s order was too broad because the discovery included financial information from several years earlier and only current financial information is relevant for calculation of punitive damages.