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)).

Paxton Attorneys’ Fees Mandamus #5

In the fifth appellate proceeding about payment of attorneys’ fees in the prosecution of Attorney General Paxton, the Fifth Court disapproved of a local rule that allowed a judge to depart from the standing fee schedule in particular cases (and thus here, for the payment of the prosecutors pro tem in the Paxton matter): “Rule 4.01B thwarts what we perceive to be the objectives of the [applicable] statute, which are to ensure by means of a duly adopted schedule that (1) appointed attorneys––in this case the prosecutors pro tem––are paid a fair, but not excessive, fee and (2) the commissioners court, which is tasked with the responsibility of settling and directing payments of accounts against the county, can more accurately project the expenses of a fiscal year and budget accordingly. By adopting local rule 4.01B, the Collin County judges partially abdicated to the individual judges the responsibility delegated to them collectively to determine the reasonable fee for appointed counsel and rendered illusory the legislative requirement of setting and applying a fee schedule.” In re Collin County, Texas, County Commissioners, No. 05-17-00634-CV et seq. (Aug. 21, 2017).

How much detail to grant a new trial? THIS much detail –

A new and important issue in Texas procedure has been the amount of detail required of a trial court in granting a motion for new trial. In the case of In re: BCH Development, the Dallas Court of Appeals reversed such an order, carefully laying out the framework for appellate review:

  1. The trial court’s reasons for a new trial must be both sufficiently specific and legally appropriate (satisfied here, where the court identified specific issues involving violation of limine orders, improper jury argument, and evidentiary sufficiency);
  2. Those reasons must be valid and correct. Here, (a) as to the limine order, the Fifth Court either found no violaton or a cure; (b) no incurably improper jury argument (and thus a waiver when there was not a contemporaneous objection); and (c) sufficient evidence on the issue of attorneys’ fees, noting that the amount awarded by the jury was “well within the range supported by” the testimony.

Accordingly, the Court conditionally granted the requested writ of mandamus. No. 05-16-01481-CV (Aug. 15, 2017).


“If” the forum selection clause was enforceable . . .

The parties’ dispute resolution provision 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.” Acknowledging that a writ of mandamus is potentialy available to enforce a forum selection clause, the Fifth Court denied the petitioners’ application here. Procedurally, “[b]oth parties presented evidence as to whether they engaged in the mandatory ADR process.” Legally, “The use of the term ‘if’ connotes a condition precedent that conditions performance rather than a covenant or promise.” Accordingly “[u]nder this record, the trial court did not clearly fail to analyze or apply the law correctly and, thus, did not abuse its discretion.” In re Atos IT, No. 05-17-00952-CV (Aug. 18, 2017) (mem. op.)

See you in Germany –

german flagA dispute arose in Dallas among Theilert Aircraft, a German maker of aircraft engine parts; Bruno Kübler, its “insolvency adminstrator” under German law; Superior Air Parts, a former customer of Theilert; and Technify Motors, the purchaser of Theilert’s assets in the Germany insolvency proceeding. Kübler sought a writ of mandamus to compel enforcement of a forum selection clause in the Theilert-Technify sales agreement (“This Agreement is subject to the laws of the Federal Republic of Germany. To the extent legally permitted, exclusive place of jurisdiction is the seat of the Insolvency Debtor [in Germany].”) The Fifth Court agreed, finding that (1) the “extent legally permitted” language did not make the clause permissive instead of mandatory, (2) the claims between Technify and Kübler arose from the sales agreement, and (3) the potential for parallel litigation between Superior and Technify in Dallas did not overcome the policy in favor of enforcing a valid, relevant forum provision. In re: Kübler, No. 05-16-01443-CV (Aug. 4, 2017). (The Court also addressed and rejected a theoretical issue about the enforceability of a similar clause under German law, finding it irrelevant under the current framework used in Texas courts.)

No expungement then, no expungement now.

th8The appellant in In the Interest of BTG, acknowledging that an order denying the expungement of a lis pendens is not ordinarily appealable, attempted to rely on the Fifth Court’s standard language denying an earlier writ of mandamus. He contended that it granted him an appeal right by agreeing that he had an adequate remedy by direct appeal. ” Appellant, however, misstates our conclusion. In denying the petition, we stated he had ‘not shown he is entitled to the relief requested,’ a burden requiring he show not only that he has no adequate appellate remedy but also that the trial court clearly abused its discretion.” No. 05-17-00465-CV (July 13, 2017) (mem. op.)

No mandamus for setting aside default judgment.

th8The 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.)

When can you seek mandamus to get a ruling?

godotThe 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.)

Mandamus Notes

th8The recent memorandum opinion in In re NCH Corp reminds of two basic points about mandamus practice.

  1. 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.”
  2. 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.)

There’s the windup, and there’s the mandamus petition –

winding_clock_4bA 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.)