Mandamus: Try, Try Again.

th8Yes, it arose in the unusuth8al 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: TexasBarToday_TopTen_Badge_VectorGraphicPriester 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.)

No findings, no mandamus

th8The 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.)

Another Mandamus Reminder

th8A 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))).

No mandamus of order compelling arbitration

th8In 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.)

Dominant jurisdiction, clarified.

clipartscalesjusticeIn 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).

“It’s a secret” still a valid discovery objection.

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.

In re Michelin


Mandamus Mantra Modified

In the otherwise unexceptional case of In re Thorpe, the Fifth Court augmented its customary citation when denying mandamus relief [“Ordinarily, to obtain 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)”] with an additional one: “Mandamus is not a substitute for appeal.  In re: Bernson, 254 S.W.3d 594, 596 (Tex. App.–Amarillo 2008, orig. proceeding).”  No. 05-16-00148-CV (Feb. 25, 2016) (mem. op.)

Marbury, Mandamus, and Default Judgments

writEchoing Justice Marshall’s classic head fake in Marbury v. Madison about jurisdiction, the case of In re Ralston Outdoor Advertising Ltd. offered a similar maneuver about Texas mandamus standards.  After first expanding the Fifth Court’s usual citation to In re: Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) to include its discussion of balancing (“An appellate remedy is ‘adequate’ when any benefits to mandamus review are outweighed by the detriments.”), the Court then denied mandamus relief based on longstanding pre-Prudential precedent : “Texas courts have long held that a plaintiff denied a default judgment has an adequate appellate remedy.” (citing Jackson v. McKinsey, 12 S.W.2d 1044, 1045 (Tex. Civ. App.—Fort Worth 1928, no writ)).


Do not destroy the truck after a truck accident.

After a deadly 18-wheeler accident, the trucking company “decided to have the remains of the tractor and part of the trailer cut in half and crushed.”  The district court allowed a spoliation instruction in the subsequent litigation, and the Fifth Court affirmed, noting: “the severity of the crash, [the CEO’s] years of experience in the industry, his previous dealings with obtaining police reports, and his awareness to preserve the [electronic control mechanism].”  That said, particularly given the company’s protection by the workers’ compensation statutes, the death penalty sanctions entered by the district court did not have a “direct relationship” to that destruction.  In re: J. H. Walker Inc., No. 05-14-01497-CV (Jan. 15, 2016) (mem. op.)  This opinion presents a thoughtful application of the Texas Supreme Court’s recent analysis of spoliation in Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.2d 9 (Tex. 2014).

Mandamus granted after failed mediation

After the second mediation of a wrongful death case failed to yield a settlement, the trial judge ordered the Chief Claims Officer (a resident of Alabama not otherwise involved in the case) of the defendant’s carrier (a nonparty) to appear at a show cause hearing.  The Fifth Court granted a mandamus petition about that order: “[W]e conclude the judge lacked jurisdiction to order Thomas, a non-party who did not attend either mediation and who lives outside the trial court’s subpoena range, to appear and explain why ProAssurance should not be sanctioned.”  In re ProAssurance Ins. Co., No. 05-15-01256-CV (Jan. 4, 2016) mem. op.)