Novel question, old writ.

Applying In re: Jorden, 249 S.W.3d 416 (Tex. 2008), which held that a Rule 202 pre-suit deposition was inappropriate in a health care case before service of the appropriate expert report, the Fifth Court held in In re Sandate  that third-party discovery was improper for similar reasons, and granted a mandamus petitition to quash it. No. 05-17-00871-CV (Oct. 19, 2017).

While Sandate does not directly address the requirement of a lack of adequate remedy by direct appeal, Jorden makes clear that this line of authority is not intended as a general invitation to seek mandamus relief about discovery matters:

Correcting whichever view is wrong after final judgment seems very unlikely, as it is hard to imagine how allowing discovery a little too early could ever be harmful error — either by causing rendition of an improper judgment or preventing the presentation of an appeal. If (as relators claim) Texas law prohibits presuit depositions until an expert report is served, those depositions cannot be “untaken” and thus an appellate court will not be able to cure the error and enforce the statutory scheme after trial. As a result, relators unquestionably may lose substantive and procedural rights if review is postponed, rights the Legislature believed (as discussed below) are critical to ensuring access to affordable medical care in the state.

Sandate does, however, contain a muscular summary of when mandamus relief may issue to address a trial court’s legal error:

In civil cases, “[a] trial or appellate court has no discretion in determining what the law is or inapplying the law to the facts, even if the law is somewhat unsettled.” [Jorden, 249 S.W.3d] at 424 (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding) (case of first impression regarding enforceability of contractual jury waiver); see also Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex. 1988) (orig. proceeding) (changing 100 years of case law and granting mandamus for abuse of discretion when trial judge followed then-existing law), disapproved on other grounds by Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding).

Ecclesiastical abstention bars suit v. private school

The Fifht Court granted mandamus relief against a lawsuit about a student’s discipline by a private school, based on the ecclesiastical abstention doctrine. The Court’s thorough analysis observes: “We acknowledge that the dispute does not expressly concern religious doctrine in all respects. But we also note that [In re: St. Thomas High School, 495 S.W.3d 500, 506 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding). and [In re: Vida, No. 04-14-00636-CV, 2015 WL 82717, at *2 (Tex. App.—San Antonio Jan. 7, 2015, orig.
proceeding) (mem. op.)] did not do so either. St. Thomas involved the expulsion of a student based on the school handbook. Vida concerned age requirements in the school’s policy manual. And as the St. Thomas court observed, ‘exclusive focus on the presence or absence of an express dispute concerning religious doctrine demonstrates an unduly narrow conception of [the doctrine’s] applicable protections.'” In re Episcopal School of Dallas, No. 05-17-00493-CV (Oct. 11, 2017). The opinion also reviews and rejects a challenge to the mandamus petition based on the doctrine of laches.

Rule, please.

Arising from what the Fifth Court described as a “motion [that] has been pending for nearly five years without ruling,” it found that “[t]he trial court has had more than a reasonable time to rule, and relator has done what is require to obtain a ruling on the motion.” Accordingly, it granted mandamus relief, observing that “[a]mong the criteria included are the trial court’s actual knowledge of the motion, its overt refusal to act, the state of the court’s docket, and the existence of other judicial and administrative matters which must be addressed first.” Also, while the petitioner asked the the trial court not only consider his motion to reconsider but also direct that it be granted, the Court observed: “We deny that request because, while we have jurisdiction to direct the trial court to exercise its discretion, we are not permitted to tell the trial court how to rule on the motion.” In re Owens, No. 05-17-00919-CV (Sept. 25, 2017) (mem. op.)

Mandatory forum . . . if . . .

The forum selection clause in In re Atos IT Solutions said: “If the Dispute cannot be resolved by Customer and Supplier in accordance with Clause 32.1[the Mandatory ADR Process], the Parties irrevocably agree that the Courts of England shall have exclusive jurisdiction . . . .” “The use of the term ‘if’ connotes a condition precedent that conditions performance rather than a covenant or promise.” (quoting Shin-Con Dev. Corp. v. I.P. Invs., Ltd., 270 S.W.3d 759, 766–67 (Tex. App.—Dallas 2008, pet. denied)). The trial court received evidence about whether that condition had been satisfied here, concluded that it had not, and the Fifth Court thus found no abuse of discretion in the resulting ruling. No. 05-17-00952-CV (Aug. 18, 2017) (mem. op.).

Relators know the way to San Jose.

The Fifth Court found this forum selection clause mandatory and unambiguous: “Any lawsuit relating to any matter arising under this agreement shall be initiated in a State or Federal Court located in San Jose, California.” An attempt to avoid the contract provision by relying upon tort claims failed under Pinto Technology Ventures v. Sheldon (Tex. May 19, 2017): “Dynasty’s claims arise from the business relationship that was struck through the agreements and will require review and interpretation of the agreements by the trial court or trier of fact for Dynasty to prevail. On this record, a but for relationship is evidence between the claims asserted below and the Business Agreement.” In re Bambu Franchising, No. 05-17-00690-CV (Sept. 12, 2017) (mem. op.)

Waiver of “venue” isn’t a waiver of “forum.”

Omnicare and Remarkable had four contracts, all with a forum selection clause which said that Delaware state and federal courts had jurisdiction “to the exclusion of any and all other possible venues.” Remarkable sued Omnicare in four separate Texas counties (one suit per contract); the parties agreed to consolidate them in Dallas, and signed a Rule 11 agreement to do so which said that Omnicare agreed to “waive any objections they may have to venue over the claims against them being in Dallas County.” Omnicare then moved to dismiss, based on the contractual forum selection clause. The Fifth Court conditionally granted mandamus relief in favor of Omnicare, finding that the Rule 11 agreement addressed “venue” – the locale within the Texas system – as opposed to “forum” – the locale outside that system. In re Omnicare Pharmacy, No. 05-17-00246-CV (Aug. 31, 2017).

No discretion means . . . no discretion.

The trial court dismissed Williams’s lawsuit for want of prosecution. Williams moved to reinstate, triggering Tex. R. Civ. P. 165a(3), which requires the court to “set a hearing on the motion as soon as practicable.” The trial court did not do so, and reversal resulted because under the language of this rule, “the trial court has no discretion to fail to hold a hearing.” Williams v. Moreno, No. 05-16-01114-CV (Sept. 7, 2017) (mem. op.) While arising from direct appeal rather than a petition for mandamus, this outcome is a useful reminder as to other such mandatory rules.

Mandamus Week continues . . .

The Discovery Channel may have has Shark Week, but the Fifth Court is having Mandamus Week. The most recent installment is In re: Commercial Metals, which involved a challenge to a protective order about a business’s trade secrets. The Court began by reminding, as to the basic requriements for a writ of mandamus, that “[a] trial court abuses its discretion if it orders discovery exceeding the scope permitted by the rules,” and that “[n]o adequate appellate remedy exists when the trial court compels production beyond the permissible bounds of discovery.” That said, the Court found no abuse of discretion in the particularized procedures used to limit use of the information by plaintiff’s “de facto in house counsel,” and denied the petition. The opinion provides useful guidance on a very practical and recurring issue in business disputes about the use of confidential information. No. 05-16-01214-CV (Aug. 29, 2017) (mem. op.)

Yes, you may have more than 30 minutes for those depositions.

Six tenants intervened in a code enforcement action, seeking to pursue class claims against the property owners. Defendants sought to take their depositions about issues regarding certification, the intervenors moved to quash, and the trial judge allowed the depositions to proceed, but for no more than thirty minutes each. The Fifth Court granted mandamus, finding that “the record includes no evidence or even argument regarding how a deposition of any length wqould cause intervenors to suffer harm or subject them to undue burden,” and also that the intervenors “lack an adequate remedy by appeal because the order severely compromises relators’ ability to present its case on the issue of class certification.” In re: Topletz, No. 05-17-00315-CV (Aug. 24, 2017).

No, you may not have merits discovery yet.

In a forceful statement against merits discovery before the resolution of a special appearance, the Fifth Court granted a writ of mandamus to require that “relator’s deposition be limited to matters directly relevant to the issue of jurisdiction if the deposition is taken before the trial court rules on relator’s special appearance,” because “Rule 120a requires discovery be limited to matters relevant to jurisdiciton prior to a ruling on a special appearance.” In re: Stanton, No. 05-17-00834-CV (Aug. 24, 2017) (mem. op.) (citing, inter aliaIn re: Doe, 444 S.W.3d 603, 608 (Tex. 2014)).