Mandamus issued in a failure-to-rule case when: “Megatel filed its motion to compel arbitration on June 30, 2022, and the motion was initially set for hearing two years ago on November 2, 2022. For various reasons and despite three hearings, two additional settings, and multiple requests, the trial judge failed to rule on the motion to compel arbitration and instead set a jury trial date.” In re Megatel, No. 05-24-01161-CV (Nov. 18, 2024).

In in re Mescioglu, the Fifth Court denied a mandamus petition because it:  (1) it lacked a proper Tex. R. App. P. 52.3(j) certification stating that every factual statement in the petition was supported by competent evidence; (2) omitted or mismatched relevant exhibits admitted into evidence at the hearing; and (3) failed to include every document that was material to the petitioner’s claim for relief and that was filed in the underlying proceeding.  No.  05-24-01096-CV (Sep. 27, 2024) (mem. op.).

In re Dallas HERO grants mandamus relief in a dispute about amendments to the Dallas city charter. The supreme court held that the City’s additions to an election ballot about proposed amendments failed to satisfy the necessary standards for clarity and definiteness, stating:

… the propositions contradict each other, and the ballot language as a whole will confuse and mislead voters because it does not acknowledge these contradictions or address the effect of the primacy provisions, which are chief features central to the character and purpose of the council-initiated propositions. Because the citizen-initiated propositions must appear on the ballot and the parties have agreed to the ballot language for those propositions, we conclude the proper remedy is to direct the city council not to include its duplicative propositions on the ballot.

No. 24-0678 (Tex. Sept. 11, 2024).

In re Marsana de Monserat denied a mandamus petition about the grant of a new trial. As one basis for its holding, the Fifth Court said:

The mandamus record also fails to show that relator made a predicate request to the trial court to correct the alleged deficiencies in its written order. See In re Eagleridge Operating, LLC, 642 S.W.3d 518, 525 (Tex. 2022) (orig. proceeding) (“Due to the extraordinary nature of the remedy, the right to mandamus relief generally requires a predicate request for action by the respondent, and the respondent’s erroneous refusal to act.”). Based on the circumstances here, we conclude that this is not one of those rare occasions where the predicate requirement may be relaxed.

No. 24-00466 (Aug. 9, 2024) (mem. op.). The opinion does not state whether the petitioner’s response to the motion for new trial could have potentially satisfied this requirement.

Twice in recent days, the Fifth Court has reminded: “A relator who delays seeking mandamus relief, even a delay of only a few months, may waive the right to mandamus unless the relator can justify the delay.” So when planning for a potential mandamus, try to avoid having this sentence appear in the opinion about it:

“Based on the petition and the record before us, relators waited until the eve of trial and over ten months from the challenged ruling before seeking mandamus relief.”

E.g., In re Auto Club County Mut. Ins. Co., No. 05-24-00867-CV (July 24, 2024) (mem. op.).

The history-minded will recall that Marbury v. Madison, 5 U.S. 137 (1803), turned on a tension between the Judiciary Act and the Constitution’s grant of federal-court jurisdiction. So too, Justice Young’s concurrence in the denial of the mandamus petition in In re Dailey, No. 24-0382 (Tex. July 5, 2024), in which the petitioner challenged the handling of an FED petition by a justice of the peace:

Article V, § 3(a) of the Texas Constitution, however, provides that “[t]he Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State.” In turn, the statute describing this Court’s general mandamus jurisdiction simultaneously announces some proper respondents (“a statutory county court judge, a statutory probate court judge, a district judge, a court of appeals or justice of a court of appeals, or any officer of state government”) and excludes some potential respondents (“the governor, the court of criminal appeals, or a judge of the court of criminal appeals”). Tex. Gov’t Code § 22.002(a). The only constitutionally impermissible respondent is the governor. See Tex. Const. art. V, § 3(a). But given the enumeration in the current statute, and that the enumeration does not include justice courts (although they are not expressly disclaimed by statute, either), the sounder approach has been to regard this Court’s mandamus jurisdiction as not reaching such courts unless it is necessary to enforce our own jurisdiction. See Pope v. Ferguson, 445 S.W.2d 950, 952 (Tex. 1969).

No. 24-0382 (Tex. July 5, 2024).

It’s an election year, which means election litigation, which brings this reminder from the Fifth Court about its jurisdiction in such cases:

“We do not have jurisdiction to grant any sort of writ other than a writ of mandamus in an original proceeding under the election code. ‘A suit for injunctive relief in an appropriate trial court is the proper avenue for relief if a person is in danger of being harmed by a threatened violation of the election code.'” 

In re Wernick, No. 05-24-00524-CV (May 3, 2024).

In In re CG Searcy LLC, the Texas Supreme Court clarified what hearing exhibits must be included in a mandamus record:

Rule 52.7 requires a relator to file (1) “document[s] . . . material to the relator’s claim for relief” and (2) “a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence.” TEX. R. APP. P. 52.7(a) (emphases added). Because the prepositional phrase “including any exhibits offered in evidence” modifies “transcript of any relevant testimony,” an exhibit that is not relevant or material to the original proceeding need not be included in the mandamus record.

No. 24-0170 (Tex. March 28, 2024).

The supreme court granted mandamus relief in the high-profile abortion case of In re State of Texas, reminding that “we may grant mandamus relief when the trial court effectively resolves the merits of a case in a temporary restraining order,” and applying that principle to hold:

A pregnant woman does not need a court order to have a lifesaving abortion in Texas. Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment. If Ms. Cox’s circumstances are, or have become, those that satisfy the statutory exception, no court order is needed.

No. 23-0994 (Tex. Dec. 11, 2023). Not addressed (because not presented) is whether the courts will be so deferential to medical judgment if it is challenged in the context of a later criminal prosecution, as opposed to the unusual “pre-clearance” type of injunction at issue in this case.

A contentious eviction case was resolved with a straightforward jurisdictional principle in In re Saving Grace #2, LLC:

Here, the county court’s final judgment was signed on September 1, 2022. No appropriate motion to extend the trial court’s plenary jurisdiction was filed within 30 days of the final judgment. Thus, the county court’s plenary jurisdiction expired on October 1, 2022. See Tex. R. Civ. P. 329b(d). The county court’s stay order was entered on May 19, 2023—well past that deadline. Because the county court may not issue a stay order after plenary power expires, see Tex. R. Civ. P. 329b(f) (explaining the limited actions a court may take after plenary power expires), we conclude that the stay order issued seven months after plenary power expired is void.

No. 05-23-00745-CV (Oct. 13, 2023).

The Fifth Court granted mandamus relief in a failure-to-rule case in In re Z Resorts Management LLC–an unusual hybrid of a wrongful-death lawsuit and a dispute about child guardianship. One of the motions addressed the authority of a party to represent a minor’s interests in the litigation. The court rejected an argument that an earlier ruling on a related topic prevented the pursuit of this mandamus petition:

Parguian argues that the Rule 12 Motion serves only to relitigate the trial court’s earlier ruling on the Amended Plea. Because both rulings address Parguian’s capacity to represent the Minor Children, we agree that some questions couldoverlap. But other questions will be new to the issue. The trial court will now have the SAPCR order and the intervening Paternal Grandparents before it when making the capacity decision. Moreover, even if circumstances had not evolved with the signing of the SAPCR order and the intervention of the Paternal Grandparents, the trial court always retained its plenary power to change its capacity ruling. Accordingly, requiring the trial court to rule on the Rule 12 Motion is not an empty or redundant directive

No. 05-23-00425-CV (Sept. 11, 2023) (mem. op.)..

A shareholder’s record request led to Third Eye, Inc. v. UST Global, Inc., which affirmed a judgment requiring compliance with the request. On the question whether the shareholder had an “improper purpose” for the request, the Fifth Court reminded that the “mere fact that stockholders seeking access to a company’s books and records are on unfriendly terms with the company is not a ground for denying mandamus relief,” and concluded:

“Given (1) UST’s undisputed evidence that Third Eye never provided it with the financial information it was contractually obligated to deliver, (2) UST’s stated concern regarding its investment in Third Eye, and (3) Third Eye’s own evidence that it began losing substantial business beginning in 2017, we conclude the evidence was factually sufficient to support the trial court’s conclusion that UST had a proper purpose in requesting to inspect Third Eye’s books and records.”

No. 05-22-00334-CV (May 3, 2023) (mem. op.).

1. As to the required contents of a mandamus petition, Tex. R. App. P. 52.3(j) says: “The person filing the petition must certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.”
2. Tex. R. App. P. 52.7 says: “Relator must file with the petition: (1) a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding … .”

The second requirement means an affidavit or a proper unsworn declaration, which ws not supplied in In re Lancaster: “[R]elators’ attorney declares that she has ‘reviewed the documents contained in the mandamus record’ and that they ‘are true and correct copies of the pleadings, orders, and documents they purported to be, which were filed, submitted, or received in the trial court proceedings and/or in the appellate proceedings in this matter.’ The attorney declares that the facts stated ‘in this affidavit are true and correct and are based upon [her] personal knowledge.’ But the attorney’s unsworn
declaration does not invoke the penalty of perjury.” No. 05-23-00381-CV (May 5, 2023) (mem. op.).

The petitioners in In re Redbird Trails Apts, having been rebuffed once before due to problems with presenting a set of in camera documents to the court of appeals, encountered yet more problems on a second try:

In their re-filed petition, relators inform us that the trial court has destroyed the copy of the records it had inspected, but DFPS has printed out another copy of its records for the trial court. Relators thus advise us that they have a pending request for the trial court to forward that printout under seal.

Based on the particular circumstances here, we conclude that even if the trial court were to forward that printout to us, relators have not met their burden of showing that the documents tendered to this Court in camera are the same documents relators tendered to the trial court.

No. 05-23-00379-CV (April 27, 2023) (mem. op.).

In re Redbird Trails Apts involved a mandamus petition, presented after the trial court conducted an in camera review of certain documents, and determined that none of them were relevant.

Citing Tex. R. App. P. 52.7, the Fifth Court noted: “Relators’ burden is to provide this Court with a sufficient record for mandamus review. … This burden requires them ‘to request that any documents submitted to the trial court for in camera inspection be carried forward under seal so that the appellate court can evaluate this information.'”

The Court then held: “Here, the mandamus record does not include the records inspected by the trial court in camera, and nothing before us reflects that relators have asked the trial court to carry the documents forward to this Court under seal. We are unable to assess the merits of the petition without them.” Accordingly, it denied the petition. No. 05-23-00332-CV (April 17, 2023) (mem. op.).

The Fifth Court granted mandamus relief as to a TRO requiring a law firm to make certain files available to a former firm attorney. It focused on this language in the TRO:

The Court further finds that Plaintiff has demonstrated she and the clients at issue will suffer imminent, irreparable, and extreme injury if the requested relief is not awarded by the Court. Specifically, Plaintiff has demonstrated that she – and the clients – will suffer imminent, irreparable harm for which there is no adequate remedy at law.

And the Court held:

The temporary restraining order … does not provide a nexus between the actions compelled (requiring PJD to give Cheek access to, and allow her to copy, all client files for clients she represented) and an irreparable injury to Cheek. The order merely recites the conclusory statement that Cheek would suffer immediate, irreparable harm for which there is no adequate remedy at law.

In re PJD Law Firm, PLLC, No. 05-23-00012-CV (April 11, 2023) (mem. op.) (applying, inter alia, El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740 (Tex. App.–Dallas 2011, no pet)).

The peititoners for mandamus relief in In re Vega Street 1, LLC argued that the trial court had failed to render judgment in a matter. The Fifth Court saw matters otherwise. Reminding that “an appellate court may not deal with disputed areas of fact in an original mandamus proceeding,” it held:

Here, the record shows respondent provided a path to obtain a judgment by requesting that relators provide a proposed judgment to her. The record contains emails showing that relators e-mailed proposed judgments to respondent at her official e-mail address for her consideration. However, in her response, respondent stated that she had not received the proposed judgments. And the record does not contain file-stamped copies of any proposed judgments. Under these circumstances, we cannot conclude the record conclusively shows respondent actually received the proposed judgments or that she has refused to rule on the motion for judgment.

No. 05-23-00160-CV (April 12, 2023) (mem. op.).

In In re Insight Neurodiagnostics, LLC, the Fifth Court granted mandamus relief as to these discovery requests:

In the underlying litigation, Jones contended that he had been undercompensated by his employer. The Court concluded that these requests by him were overly broad:

• “These requests could cover financial information that does not involved Jones,” and
• “The requests are impermissibly broad because they extend into a time period during which Jones did not work with [defendants].”

The court further observed: “The burden to propound discovery complying with the rules of the discovery should be on the party propounding the discovery, and not on the courts to redraft overly broad discovery so that, as re-drawn by the court, the requests comply with hte discovery rules.” No. 05-23-00014-CV (April 5, 2023) (mem. op.) (citation omitted).

The trial court ordered an increase in juror pay from the usual $40/day to $250/day, to be paid by the plaintiff. The Fifth Court granted mandamus relief against this order; describing a statutory problem and a broader, systemic concern.

• Statute. Tex. Gov’t Code § 61.001 says: “In a specific case, the presiding judge, with the agreement of the parties inovled or their attorneys, may increase the daily amount” paid for jury service; which increase “shall be paid, in equal amounts by the parties involved in the case.” This order was not consistent with this statute.
• Broader systemic concern. The plaintiff invoked the court’s inherent power, but the Fifth Court noted that the state constitution expressly places this issue under legislative control. Jurors are considered “officers of the court,” and art. III § 4 of the constitution says: “The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution … .”

In re Oncor Elec. Deliv. Co., No. 05-23-00298-CV (March 31, 2023) (mem. op.).

In re Torres granted relief in a failure-to-rule mandamus proceeding. The issue of the effect of COVID-19 came up in the Fifth Court’s review of the record, and the Court observed:

Although real parties Diaz and Galvan make the general claim that trial courts are facing staffing shortages and COVID-related delays, the record before this Court does not contain any indication that the COVID-19 pandemic has prevented the trial judge from ruling on the pending motion. … Indeed, as this Court has noted in a prior case, “courts across Texas—including this Court—have continued to fully tend to most business of the courts and serve the citizens of Texas while implementing safety precautions above and beyond recommendations by the Centers for Disease Control and Prevention and accommodating Covid-19-related exigencies.”

No. 05-22-00715-CV (Dec. 7, 2022) (mem. op.) (citations omitted).

In the mandamus case of In re Sunoco Retail LLC:

• “The record further reflects that a hearing took place on November 14, 2022, on real parties in interest’s motion to compel. Relators did not provide a transcript of this hearing, and they did not state that a transcript has been requested and will be provided. Instead, relators include a statement in their petition that ‘[n]o testimony was presented and no exhibits were offered into evidence at the hearing.'”;
• BUT: “In the order granting real parties in interest’s motion to compel, the trial court stated that it had considered ‘the pleadings, evidence, affidavits, and argument of counsel.’ Thus, the trial court’s order indicates that the November 14, 2022 hearing was evidentiary, despite relators’ statement to the contrary.” (cleaned up).

Because “relators make factual statements about what transpired at the November 14, 2022, and they rely upon these statements when arguing the trial court abused its discretion,” the Court concluded that it “cannot evaluate relators’ argument without a record of the hearing,” and thus rejected the mandamus petition. No. 05-22-01225-CV (Nov. 18, 2022) (mem. op.).

In a ruling that arose from an unusual joint mandamus petition, and drew significant amicus attention from trial-focused organizations, the Texas Supreme Court granted mandamus relief on October 7 as to an order requiring a virtual trial:

In a “failure-to-rule” mandamus proceeding about counsel’s motion to withdraw, the Fifth Court held:

“We do not adopt a ‘six-month rule’ or ‘ten-month rule’ or fix any similar bright-line demarcation for cases in which parties seek mandamus relief to compel expeditious disposition of motions. We do not repeat the myriad considerations, referenced above, that guide decision of each unique mandamus petition. All we hold is that—based on particular facts and circumstances here—ten months from filing the motion to withdraw and six months from the trial court’s hearing of the motion without ruling presents an unreasonable time warranting mandamus relief.”

In re Robinson, No. 05-22-00579-CV (Sept. 23, 2022) (mem. op.)

In In re Smith & Nephew Orthopaedics Ltd., a dispute about “stream of commerce” personal jurisdiction, the Fifth Court observed:

As the Texas Supreme Court recently explained in Christianson Air Conditioning and Plumbing, a products liability case, ‘information sought in jurisdictional discovery must be essential to prove at least one disputed factor that is necessary to the plaintiff’s proposed theory or theories of personal jurisdiction.’ In that case, the supreme court observed that simply inserting the phrase ‘in Texas’ or ‘in Texas field conditions’ into a topic, as the plaintiffs in that case did, would not make it essential to prove specific jurisdiction.”

(citations omitted). Applying those principles, the Court reviewed ten corporate-representative deposition topics and held: “[T]he topics are too broad as they seek non-essential information that will not support [Plaintiffs’] stream-of-commerce plus theory.” No. 05-22-00495-CV (Sept. 16, 2022) (mem. op.).

The dispute in In re Brown involved a trial subpoena to a corporate-representative witness. The court of appeals granted mandamus relief, analogizing Tex. R. Civ. P. 199 to Fed. R. Civ. P. 30(b)(6). The corporation, however, had also cited the general subpoena rule – Tex. R. Civ. P. 176 – and the supreme court remanded for consideration of those arguments:

Brown raised the argument that corporate-representative trial subpoenas are available under Rule 176 in both the trial court and the court of appeals. Brown observes that Rule 176.6(b) states that a corporation may “designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization” in response to a valid subpoena “commanding testimony.” Tex. R. Civ. P. 176.6(b). He further notes that an appropriate corporate-representative subpoena may command a person to “attend and give testimony at a . . . trial.” Tex. R. Civ. P. 176.2(a).”

No. 20-0992 (Tex. Sep. 9, 2022).

The supreme court found that an excessive, unexplained delay in filing a mandamus petition barred relief in In re Self, observing:

Relators filed this mandamus petition on August 8, 2022. The petition seeks relief within eighteen days, by August 26, which relators contend is the deadline established by the Election Code for the relief they seek. The Libertarian Party nominated the disputed candidates, who had not paid the filing fee, in April 2022. Under relators’ view of the law, those candidates’ ineligibility attached in April 2022, when they were nominated despite not paying the fee. Nearly four months passed between the facts giving rise to the relators’ claims and the filing of this mandamus action. Relators do not provide any explanation for why these claims could not have been investigated and brought to the courts with the “unusual dispatch” our precedent requires of those who seek to use the court system to alter the conduct of elections.

(footnote omitted, emphasis added). While the “unusual dispatch” concept is unique to election-law cases, Self nevertheless provides a good general reference point for when laches will bar mandamus relief in civil cases more generally. No. 22-0658 (Tex. Aug. 26, 2022).

In In re Five Star Global, LLC, the Fifth Court granted mandamus relief to restore a case to the jury-trial docket, when the effort to enforce a jury waiver came too late:

“In addition to paying the jury fee, real parties also explicitly demanded a jury in six pleadings filed between November 15, 2019 and October 21, 2020. Although real parties deleted the “Jury Demand” paragraph in two of the pleadings, those pleadings still requested a jury in the prayer section, and the “Jury Demand” paragraph even re-appeared in their October 21, 2020 pleading. Moreover, real parties never objected to FSG’s jury demand until they filed their motion to strike in February 2021, which was fifteen months after they initiated the lawsuit against FSG.”

No. 05-22-00153-CV (Aug. 15, 2022) (mem. op.).

The Fifth Court granted mandamus relief based on the attorney-immunity doctrine in In re: Sams:

“Maltezos’s claim is based upon the kind of conduct involved in legal representation. Labeling the conduct as fraudulent or wrongful does not remove it from the scope of Sams’s legal representation. The face of Maltezos’s petition establishes that his claims are barred by the defense of attorney immunity. Accordingly, they have no basis in law and were properly subject to dismissal under Rule 91a. We conclude that the trial court abused its discretion by denying Sams’s motion to dismiss. We conclude further that mandamus relief, rather than appeal, is appropriate in this case to spare the parties and the public the time and money spent on a fatally flawed proceeding.”

No. 05-22-00150-CV (Aug. 15, 2022) (mem. op.)

The Fifth Court granted mandamus relief in a failure-to-rule case when: “The ninth and current trial setting is for June 27, 2022, which is less than a week away. The motions were filed more than three months to over twenty-two months ago; the summary judgment motions were heard more than ten months ago; and the remaining motions were heard almost two months ago. The record reflects that relators have requested rulings multiple times. Further, respondent has a history of failing to rule in this case, which has already required this Court to conditionally grant mandamus relief.” In re Reiss, No. 05-22-00575-CV (June 21, 2022) (mem. op.).

In the context of a mandamus petition about a responsible third-party designation, the Fifth Court rejected a ripeness argument based on the pendency of a related motion:

“We conclude that the trial court’s denial of relator’s motion to designate Michael as a responsible third party was a concrete injury. This injury is not rendered “contingent or remote’ by relator’s pending motion to join Michael as a contribution defendant, because even the granting of that motion would not provide the relief that relator seeks in this proceeding.”

In re Modern Senior Living, No. 05-22-00283-CV (June 17, 2022) (mem. op.) (citations omitted).

In re Weekley Homes was not satisfied as to an electronic-discovery order, and mandamus relief was granted, when the record showed:

• No discovery default by nonmovant. “Meadowbrook responded to Blalock’s discovery requests and produced responsive documents in its possession. Where Meadowbrook found no responsive documents to a request, Meadowbrook confirmed that it diligently searched for responsive documents and found none. Indeed, the record shows that Meadowbrook withheld only five responsive documents, which were baptismal certificates of minors. Moreover, in its response and objections to the RFI, Meadowbrook presented a suggested protocol and parameters for searching the computer and stated that it would allow a search of the computer if an agreement could be reached with Blalock as to search terms and search protocols.”
• No likely benefit. “[Blalock] relied solely on her suspicions that a forensic expert would be able to recover additional relevant materials that may have been deleted from the computer prior to the incident in question. Mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device.”

In re Meadowbrook Baptist Church, No. 05-22-00271-CV (June 15, 2022) (mem. op.)

The well-intentioned mandamus petitioners in In re Diaz sought relief from the trial court not having a hearing on their TCPA motion to dismiss. Unfortunately, the record showed that “the statutory deadline by which the trial court must hold the TCPA hearing had expired prior to relators filing their petition and the trial court may no longer hold the hearing,” thereby mooting the mandamus petition. No. 05-21-01115 (June 3, 2022) (mem. op.).

This blog does not ordinarily cover family-law appeals, but the grant of mandamus relief in In re Barnes involves a novel issue about the scope of a fundamental statute in that area: “We are not persuaded that [Tex. Fam. Code] section 153.002 reaches so far as to allow the family court to require a parent who does not have the right to determine a child’s primary residence and who has little or no possession time to live in a specific school district so that his child can maintain eligibility to attend schools within that district.” No. 05-21-00807-CV (May 27, 2022) (mem. op.).

The Court’s oft-used summary of the required elements for mandamus relief has been updated, see In re Grantham, 05-22-00077-CV (May 20, 2022):

The trial court in In re Alford appointed a special master to resolve discovery issues. Tex. R. Civ. P. 171 gives a trial court the power to “in exceptional cases, for good cause appoint a master in chancery.” Case law clarifies that “a special master may not be appointed merely because ‘a case is complicated or time-consuming, or [because] the court is busy.'” Here, the Fifth Court granted mandamus relief, noting “no indication that the case is unusually complicated or requires specialized knowledge,” and citing this exchange from the hearing on relators’ objection to the master’s appointment:

[Counsel]: Can you explain on the record what the good cause is and what the reasons for the appointment of this order is?

THE COURT: No, but thank you for asking.

No. 05-22-00240-CV (May 16, 2022).

The Fifth Court granted a mandamus petition about a corporate-representative deposition, when “proportionality” was not shown, given the corporation’s other information disclosures: “Safeco supported its proportionality objection with evidence. Safeco provided the trial court with a business record affidavit and two hearing exhibits, one containing a chain of e-mails between counsel and the other containing its supplemental responses to Taiwo’s request for disclosure. Further, the declaration of Barbara Spearman, Senior Complex Resolution Specialist IV for Safeco, stated that Safeco had produced and disclosed ‘1,208 pages of responsive documents and things in this matter, including its entire, unprivileged claim file, which included Plaintiff’s Policy, correspondence between the parties, the police report stemming from the accident and witness statements regarding the Accident.’” In re Safeco, No. 05-21-00873-CV (May 10, 2022) (mem. op.).

After reviewing the several cases that find laches based on an unexplained four-month delay, In re Bottled Blonde Dallas LLC holds: “Here, relator waited more than seven months from the challenged order, and with only a month remaining before trial, to file this petition. Relator has offered no explanation for this lengthy delay. Accordingly, because we conclude that relator’s unexplained delay bars its right to mandamus relief, we deny mandamus relief.” No. 05-22-00353-CV (April 22, 2022) (mem. op.).

An eccleastical-immunity dispute led to the denial of mandamus relief in In re Munger Avenue Baptist Church, in which the Court reminded: “[W]here the petition for writ of mandamus challenges the trial court’s subject matter jurisdiction over the underlying proceeding, relators need not establish the lack of an adequate appellate remedy.” No. 05-21-00539-CV (April 13, 2022).

A good reminder about a basic point of mandamus practice appears in In re Aspen Heights Constr., LLC.: “A court cannot grant mandamus relief unless the error was raised in the trial court.” No. 05-22-00093-CV (March 3, 2022) (mem. op.) (quoting In re Rowes, No. 05-14-00606-CV, 2014 WL 2452723, at *1 (Tex. App.—Dallas May 30, 2014, orig. proceeding) (mem. op.)).

Fans of newspaper comic strips know The Phantom as “the man who cannot die.” Equally resilient is the Texas Supreme Court’s Malooly opinion that requires an appellant to address all bases for affirmance. In re Pepperstone Group Ltd. (a mandamus proceeding, so not technically a Malooly case) involved a situation in which an issue had been raised but not in the proper way to trigger Malooly:

“Although Das’s trial-court reply brief contained an objection that Pepperstone’s response was late under the local rules, he asked only that the trial court not consider Pepperstone’s response in ruling on the motion to compel. Das did not contend that his timeliness objection was an independent ‘ground’ for granting his motion to compel. Accordingly, we reject Das’s argument.”

No. 05-21-00767-CV (Feb. 28, 2022) (mem. op.).

In mandamus practice, there is an important exception to the “four-month rule” and other laches-related doctrines, which is that “the doctrine of laches does not apply to a void order ….” In re Reiss, No. 05-21-00600 (Feb. 18, 2022) (mem. op.).

In case the point wasn’t clear from the Fifth Court’s recent opinion in In re Tekin & Assocs., No. 05-21-00219-CV (Feb. 9, 2022) (mem. op.), the Court restated it in In re Perez-Merino: “Under prior holdings of this court and others, an unexplained delay of four months or more can constitute laches and result in denial of mandamus relief.” No. 05-22-00082-CV (Feb. 14, 2022) (mem. op.).

“Under prior holdings of this court and others, an unexplained delay of four months or more can constitute laches and result in denial of mandamus relief. Here, relator’s April 6, 2021 petition for mandamus was filed seven months and six days after the trial court’s August 31, 2020 order denying the [Rule 91a] motion to dismiss. We conclude that relator’s unexplained delay bars his right to mandamus relief.” In re Tekin & Assocs., No. 05-21-00219-CV (Feb. 9, 2022) (mem. op.).

The defendant in a medical-malpractice cases sought the production of electronic information about the dates when certain photographs of the plaintiff had been taken. The Fifth Court granted mandamus relief to the plaintiff:

“Methodist did not meet the burden of going forward with evidence … Mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device. While the mandamus record suggests Methodist may have been concerned about multiple creation dates, Methodist failed to make an evidentiary showing that the electronic files Cooley produced lacked metadata. Accordingly, Methodist failed to make the good-cause showing necessary to justify the trial court’s order.”

In re Cooley, No. 05-21-00445 (Feb. 2, 2022) (mem. op.) (citations omitted; applying, inter alia, In re Weekley Homes, 295 S.W.3d 309 (Tex. 2009)).

“An unexplained delay of four months or more can constitute laches and result in denial of mandamus relief … Here, relator did not file the petition for writ of mandamus until September 22, 2021–five months after the challenged order. We conclude that relator’s unexplained delay bars their right to mandamus relief.” In re Weatherall Family Funeral Services, LLC, No. 05-21-00826-CV (Nov. 8, 2021) (mem. op.).

In addition to other points about “apex depositions,” the supreme court rejected an argument that an unreasonable delay barred mandamus relief:

“American reasonably explained the year-long period between the trial court’s order compelling Eberwein’s deposition and American’s mandamus filing in the court of appeals. The record establishes that American did not receive notice of the order until four months after its issuance. At that point, the parties were on notice that the order set preconditions to Eberwein’s deposition by requiring Arnette to serve a new deposition notice designating deposition topics. To date, neither has occurred, with no explanation on Arnette’s part. As the trial date loomed, first in December 2020 and now in December 2021, American prudently sought mandamus relief to avoid the necessity of rescheduling the trial. On this record, the delay is neither unexplained nor unreasonable.”

In re American Airlines, Inc., No. 20-0789 (Oct. 22, 2021) (per curiam) (reaching a different conclusion than the Fifth Court of Appeals did in 2020.

The Fifth Court reminded about a basic requirement for mandamus relief in In re Chron: “[W]e conclude that relator has failed to demonstrate that he sought relief in the trial court for the alleged abuse of discretion before bringing his petition for writ of mandamus before this court. Accordingly, we deny the petition for writ of mandamus without prejudice to refiling a petition with a record that reflects that the predicate request requirement has been met.” No. 05-21-00899-CV (Oct. 21, 2021) (mem. op.) (applying In re: Coppola, 535 S.W.3d 506, 50 (Tex. 2017) (orig. proceeding)).

In a supersedeas-bond dispute, the Fifth Court held: “When Real Parties withdrew the deposit without the court’s authorization, they assumed the risk that their withdrawal might be improper and that the court might require them to redeposit the funds. Moreover, Real Parties received the full benefit of having the partition-and-sale order superseded during the years that the order was on appeal. The trial court may determine whether equity requires ordering Real Parties to return the supersedeas to the court’s registry for the court to determine the amount of Relators’ damages during the appeal.” In re Pelley, No. 05-21-00314-CV (Aug. 31, 2021) (mem. op.) (emphasis added).

The supreme court’s August 19 order in a mask-mandate case:

reminds of a basic rule of mandamus procedure, Tex. R. App. P. 52.3(e):

An old lawyers’ adage, sometimes attributed to Carl Sandburg, says in part: “If the facts are against you, argue the law. If the law is against you, argue the facts. …” Such are the battle lines in the Dallas County mask-mandate case now before the supreme court, in which the real-party-in-interest county judge points to an extensive affidavit and the support of several amici, while the SG’s office laser-focuses on the terms of the Government Code.

“An unexplained delay of four months or more can constitute laches and result in denial of mandamus relief.  Here, relators did not file the petition for writ of mandamus until July 28, 2021—more than four and a half months from the challenged oral ruling and three months after the trial court signed the complained-of order. We conclude that relators’ unexplained delay bars their right to mandamus relief.” In re Wages & White Lion Investments LLC, No. 05-21-00650-CV (July 30, 2021) (mem. op.) (citations omitted).

Two recent supreme court opinions involved the enforcement of statutes that the Court saw as prohibiting the filing of the action–In re: Academy, No. 19-0497 (June 25, 2021), in which a federal statute said that the specified kinds of cases about firearms sales “may not be brought in any Federal or State court,” and In re: Facebook, No. 20-0434 (June 25, 2021), about the Communications Decency Act’s command that “[n]o cause of action may be brought” about the subject matters of that Act. Both were enforced by petitions for writ of mandamus, based on the principle that “requiring [Defendant] to ‘proceed to trial–regardless of the outcome–would defeat the substantive right’ granted by” those statutes.

“[R]eal parties expressly renounced their contractual right to a nonjury trial when they repeatedly demanded a jury and paid the jury fee. Having done so, they cannot ask this Court to enforce that contractual right by mandamus. Relator was entitled to rely upon real parties’ conduct. And the record establishes that relator did rely on real parties’ conduct: relator never objected to real parties’ jury demands, and when real parties first indicated the possibility of asserting their contractual right by filing the Notice, relator immediately filed its own jury demand and fee.” In re PlainsCapital Bank, No. 05-20-00765-CV (May 13, 2021) (mem. op.).

• In an 11-1 en banc decision written by Justice Osborne, the Fifth Court granted mandamus relief, allowing Ken Paxton to be named as a responsible third party in a securities-fraud case.
• A dissent by Justice Schenck (the lone Republican, as Justice Myers did not participate) argued that specialized comparative-fault schemes under other relevant statutes should control rather than the general comparative-fault statute.
• A concurrence by Justice Smith expressed frustration at the present rules and practices governing the sealing of court records.

In re: Cook, No. 05-20-00205-CV (April 28, 2021). (A big 600 Commerce shoutout to my friend Ben Taylor for his able assistance in reviewing these opinions).

The Fifth Court granted mandamus relief as to the denial of a responsible third party designation, summarizing the record as follows: “Based on the evidence produced by relators, a jury could infer that Stephens modified and used Del Rio’s scaffolding solely because Electro Acoustics failed to provide him with the necessary equipment to safely perform his work. Accordingly, a jury could conclude Electro Acoustics’s omission was a substantial factor in bringing about Stephens’s injuries. Furthermore, a jury could reasonably conclude that a person of ordinary intelligence could appreciate the danger of requiring an employee to work in high spaces without providing the equipment required to reach and work in the area safely.”  in re Kilmer, No. No. 05-20-00814-CV (April 7, 2021) (mem. op.) (applying Advance Tire & Wheel v. Enshikar, 527 S.W.3d 476, 480 (Tex. App.–Houston [1st Dist.] 2017, no pet.).

The Fifth Court denied mandamus relief in a dispute about third-party document confidentiality, observing that the party resisting discovery (1) “relied, in part, on a non-disclosure agreement that by its very terms expired years before the documents were subpoenaed and produced.” and (2) “relied on the affidavit of the President of one of [the movant’s] portfolio companies, which contains conclusory allegations concerning the confidential nature of [its] business and strategies, and of potential harm. Those assertions, in and of themselves, are not dispositive of the objection to confidentiality.” In re Edelman, No. 05-21-00085-CV (March 5, 2021).

A dissent concluded that one of the documents was protected by Texas’s shield statute, observing: “[The interest implicated by Exhibit M is not merely proprietary but also appears to concern a recurring relationship between a media relations firm and a news reporter, the disclosure of which would directly implicate the journalist’s news gathering rights.”

This is a cross post from 600Hemphill, which follows business cases in the Texas Supreme Court:

On January 15, the Texas Supreme Court granted an emergency stay in In re: Enven Energy Corp., No. 21-0030, as to the denial of a continuance motion involving COVID-19 issues. The parties’ briefs can be reviewed here, and the merits of the mandamus petition remain pending before the Court.

The Fifth Court granted mandamus relief in a proceeding related to the removal of a mechanic’s lien in In re J&S Utilities, No. 05-20-00696-CV (Nov. 24, 2020) (mem. op.), holding as follows:

Abuse of discretion. “[T]he statute allows for an evidentiary hearing regardless of whether claimant elected to file a response. Although the trial court may have had the option of disregarding J&S Utilities’ response under its local rules, the trial court did not have the right to make a determination on submission and forfeit J&S Utilities’ right to an evidentiary hearing. For these reasons, we conclude the trial court abused its discretion by denying J&S Utilities an evidentiary hearing.” (citation omitted).

Inadequate remedy. “The legislature provided for J&S Utilities’ due process rights by the statutory procedure that was enacted, but which the trial court denied to J&S Utilities and which cannot be cured by a subsequent appeal. Mandamus relief, however, will preserve J&S Utilities’ statutory right to an evidentiary hearing on the summary motion.”

In a second visit to the Fifth Court on a discovery dispute involving claims of attorney-client privilege, the Court held: “In this case, neither party has put its attorney fees at issue. The Estate simply suspects that Topletz should be able to make payment on the judgment because he apparently has been able to pay his attorneys throughout this litigation. But that circumstance fails to fall within the kind of acceptable scenario that would permit discovery of the attorney fee information sought here.” In re Topletz, No. 05-20-00634-CV (Oct. 15, 2020) (mem. op.). The Court also reminded: “[N]either the rules of civil procedure nor case law requires evidence in support of an assertion relating to discovery when evidence is unnecessary to decide the matter. Here, evidence is not necessary to show that the requested information is not discoverable because this Court has already determined, as a matter of law, it is not.”

Mandamus relief was granted to compel a trial-court ruling about a motion for judgment nunc pro tunc in a criminal case when: “[R]elator’s third motion for judgment nunc pro tunc has been on file for roughly eleven months. Relator requested a ruling on the motion in the trial court approximately nine months ago. Although an unsigned memorandum was sent to relator, it stated that no ruling has yet been made. Under these circumstances, the trial court failed to fulfill its ministerial duty to rule on relator’s motion within a reasonable time, and relator lacks an adequate appellate remedy.” In re Williams, No. 05-20-00369-CV (Oct. 15, 2020) (mem. op.).

An unusual venue dispute led to a thorough review of the policies underlying the concept of “dominant jurisdiction” and the first-filed rule: “In resolving this dispute we must decide whether a plaintiff who initiates separate lawsuits in the same county against different defendants can claim dominant jurisdiction in one of those cases, after agreeing to transfer venue of that case to a different county and subsequently joining the defendant from the case still pending in the transferor county. Relators … assert that the transferred case lacks dominance over the interrelated case still pending in the original venue. We agree and conditionally grant the writ.” In re Equinor, No. 05-20-00578-CV (Oct. 7, 2020) (mem. op.).

The Fifth Court found that ecclesiastical abstention barred a claim about expulsion from a private school: “Parents’ claims are premised on allegations that Prince of Peace failed to hire qualified staff and appropriately supervise its staff’s interactions with Students, including by failing to report suspected abuse of Students by its staff. Defense of these claims rests on Prince of Peace’s internal and religiously-informed policies and code of conduct. Judicial resolution of the claims would thus require impermissible intrusion in Prince of Peace’s management of these matters.” In re Prince of Peace Christian School, No. 05-20-00680-CV (Sept. 23, 2020) (mem. op.).

Recall from a a recent post that the Fifth Court has recognized the COVID-19 pandemic as a factor to consider in evaluating motions for continuance. That same opinion reminds that trial courts have substantial discretion to conduct virtual trials in an appropriate case:

We also hold that the trial court did not abuse its discretion by overruling Relator’s objection to trial via videoconference. In its emergency orders, the supreme court expressly granted trial courts the discretion, “subject only to constitutional limitations” and “without a participant’s consent,” to require that all participants in hearings, depositions, “or other proceeding[s] of any kind” participate remotely, “such as by teleconferencing, videoconferencing, or other means.” Emergency Order 1, ¶ 2(b); Emergency Order 17, ¶ 3(c). Although the emergency orders do not specify bench trials, these would easily fall under the category of “other proceeding[s] of any kind.” Relator has not claimed that a bench trial by videoconference would violate any of his constitutional rights, so the trial court did not abuse its discretion in requiring Relator to participate in this manner.

(citations omitted).

In re: Sakyi reminds: “the unique and serious circumstances created by the COVID pandemic require flexibility and adaptability in all aspects of our legal system.” the Court went on to grant mandamus relief about the the denial of a motion for continuance, observing: “In this case, all factors weigh in favor of concluding that the trial court’s denial of the continuance was an abuse of discretion. First, this case is not old; at the time the continuance was sought, the case had been on file for less than a year. Second, the discovery sought is central to the underlying divorce suit since RPI’s marriages, if overlapping, may affect the determination of what property is in the marital estate at issue and raise equitable considerations of possible fraud. Indeed, the trial court acknowledged that the conflicting marriage dates created an issue of fact. Third, Relator’s counsel submitted an affidavit describing her diligent efforts to obtain the necessary discovery before trial.” No. 05-20-00574-CV  (Aug. 20, 2020) (mem. op.)

In re Smith held that the statutory stay of certain discovery in health-liability claims did not apply to policies that nursing homes are required to make publicly available. As to the availability of mandamus relief, the Court observed: “It is well settled that mandamus relief is appropriate when the trial court
abuses its discretion by ordering discovery precluded by section 74.351(s). However, it is not clear whether the same is true when the trial court prohibits discovery that the statute permits.” (emphasis in original, citation omitted). The Court concluded that it was appropriate because of the potential effect on the statutorily-required expert report. (While the Court cites, inter alia, a general proposition from the Texas Supreme Court about mandamus relief, it remains to be seen how much weight this case will have in other settings without a similar expert report requirement.) No. 05-20-00497-CV (Aug. 12, 2020) (mem. op.).

The plaintiffs in In re Outreach Housing sought to enforce a (revived) 2006 default judgment that was not final under the applicable standards. The Fifth Court granted mandamus relief as to the trial court’s denial of the defendants’ motion to stay. It found an abuse of discretion in that decision, with irreparable consequences arising from the denial of a meaningful appeal from the 2006 judgment, and some parties’ lack of a meaningful trial. The Court acknowledged a technical point about a potential interlocutory appeal from the denial of the motion, but found that matter too speculative to deny mandamus relief in these circumstances. No. 05-20-00431-CV (July 30, 2020).

The legal structure of local government has received great scrutiny this year as the COVID-19 pandemic has forced all levels of state government to review the emergency powers granted by the Texas Government Code. Less-trendy but also-fundamental aspects of local government operation were at issue in Carruth v. Henderson, when a citizen sought mandamus relief to require the City of Plano to consider a referendum petition about the City’s comprehensive development plan. The Fifth Court expressed sympathy for the City’s position, but found that under the applicable statutes, it had a ministerial duty to accept the petition as “neither the [City] Charter nor the general law has withdrawn comprehensive plans either expressly or by necessary implication from the field in which the referendum process operates …” No. 05-19-01195-CV (July 22, 2020). I am quoted in an excellent column about this situation by Sharon Grigsby in the July 28 Dallas Morning News.

The principle is easy enough to state — because the mandatory-venue statute about injunctive relief “is limited to suits ‘in which the relief sought is purely or primarily injunctive[,] . . . it does not apply when the injunctive relief is ancillary to the other relief sought . . . where the injunctive relief is requested simply to maintain the status
quo pending resolution of the lawsuit.” In re: Zidan shows that reasonable minds can differ about its application, however. The majority opinion saw the plaintiff’s request for injunctive relief as ancillary to the central dispute about the governance of a business entity; the dissent saw it as sufficiently central to implicated the statute. The Fifth Court’s judgment conditionally granted mandamus relief with respect to a Collin County judge’s decision to abate a first-filed case in favor of a Harris County matter. No. 05-20-00595-CV (July 15, 2020) (mem. op.)

In re Perl granted mandamus relief as to jurisdictional discovery requests.

As to scope, it reasoned (as to one set of the requests): “Interrogatory No. 2’s request for “details of how business is conducted between” Relators and Cake Craft, Interrogatory No. 8’s request for Relators’ “work, role and/or services” to Cake Craft, Request for Production No. 5’s requests for documents “regarding your engagement and business relationship” with Cake Craft, and Request for Production No. 15’s request for documents “that detail the inspecting and auditing services that you performed on the Cake Craft defendants” do not focus on any jurisdictional fact. None of these requests are confined to any of the three purposeful availment factors: Relators’ own activities, aimed at Texas, or the specific benefit, advantage, or profit Relators would earn from a Texas relationship.” (emphasis added)

As to adequate remedy, in response to the argument that “the only injury claimed is the ordinary expense of litigation,” the Court observed: “[A]llowing discovery of a potential claim against a defendant over which the court would not have personal jurisdiction denies him the protection Texas procedure would otherwise afford.” No. 05-20-00170-CV (June 2, 2020). LPHS represented the real parties in interest in this case.

Recent orders about conducting trials during the pandemic highlight the different procedural structures of the state and federal courts.

In the state system, the Texas Supreme Court recently released its seventeenth emergency order about when and how jury trials may resume. (An order, incidentally, that I got from the txcourts.gov website, which shows progress in returning that site to normal after the recent hacker attack.)

In the federal system, the recent order in In re Tanner reminds of the considerable district court discretion about such matters: “[T]he district court has given great consideration to the COVID-19 issues addressed by Tanner. . . . [W]hatever each of us as judges might have done in the same circumstance is not the question. Instead, as cited below, the standards are much higher for evaluating the district court’s decision” for purposes of a writ of mandamus or prohibition. No. 20-10510 (May 29, 2020).

In a securities fraud case, a trial court issued a protective order against certain questioning of a nonparty deponent. After thoroughly reviewing Texas discovery law about relevance, a Fifth Court panel majority reversed:

“[W]e conclude the two challenged lines of questioning were not necessarily outside the scope of relevant information. Information concerning other lawsuits is not per se outside the scope of discovery, and relators did not establish below that the circumstances of the non-party’s role in the Servergy and investment adviser situations are so dissimilar to the allegations here as to be irrelevant. Anything reasonably calculated to lead to the discovery of material evidence is generally within the scope of proper discovery.”

In re Cook, No. 05-19-01283-CV (May 20, 2020) (mem. op.) (citations omitted). A dissent saw the matter differently:

“Here, relators have not clearly established that other discovery is unavailable to support their claims and defenses. In fact, the record is clear that the questions prohibited by the protective order were only ‘a few minutes of additional questions’ in a six-hour deposition, and relators were able to explore extensively the nonparty’s relationships with the parties and his familiarity with and participation in the events underlying the case.”

A helpful summary of the requirements for proving up a mandamus record appears in In re Gentry:  “Documents become sworn copies when they are attached to an affidavit or to an unsworn declaration conforming to section 132.001 of the Texas Government Code. The affidavit or unsworn declaration must affirmatively show it is based on relator’s personal knowledge. The affidavit or unsworn declaration is insufficient unless the statements in it are direct and unequivocal and perjury can be assigned to them. An affidavit or unsworn declaration would comply with the rule if it stated, under penalty of perjury, that the affiant has personal knowledge that the copies of the documents in the appendix are true and correct copies of the originals.” No. 05-19-01283-CV (May 18, 2020) (mem. op.)

While mandamus litigation often focuses on whether a clear abuse of discretion occurred, the other relevant factors can also be dispositive. Consider the panel majority in In re Alpha-Barnes Real Estate Services LLC, which observed: “While the trial court’s order presents an error potentially justifying reversal on a direct appeal, has failed to demonstrate the inadequacy of an appeal, particularly given the limited scope of the order and alternative mechanisms by which relator may introduce the same evidence excluded by the order.” It also relied upon laches, noting a lengthy and unexplained delay in seeking mandamus relief. A dissent would have granted the petition, noting the likely effect on the trial, and that the parties had entered a stipulation about the otherwise-unexplained delay.  No. 05-20-00073-CV (March 17, 2020) (mem. op.).

In re Johnson catches the eye as an atypical non-memorandum opinion in a pro se mandamus proceeding arising from a criminal case. The novel feature of the opinion is its footnote (longer than the actual opinion), using the Court’s “discretion to take judicial notice of adjudicative facts that are matters of public record” to review the relevant online docket sheet to establish mootness. No. 05-20-00068-CV (March 11, 2020)

The trial court dismissed Heri Automotive’s counterclaims for forum non conveniens. Heri appealed. The Fifth Court dismissed because “no authority exists authorizing the appeal of the challenged interlocutory order,” and also noted that “appellant cites no authpority, and we have found none, that authorizes mandamus review of an interlocutory order granting a motion to dismiss for forum non conveniens.” Heri Automotive v. Adams, No. 05-19-01215-CV (Feb. 21, 2020) (mem. op.).

Section 171.025 of the Civil Practice & Remedies Code says: “The court shall stay a proceeding that involves an issue subject to arbitration if an order for arbitration or an application for that order is made under this subchapter.” The dispute in In re: Baby Dolls Topless Saloon involved a mandamus petition from a defendant’s perceived inability to obtain an order implementing this stay, during its interlocutory appeal from denial of its motion to compel arbitration.

The panel majority denied the petition, finding  that the issue of arbitrability “has been briefed in the interlocutory appeal and will be decided by the panel of justices assigned to decide that appeal, which is just as the legislature intended when it enacted section 51.016 and provided for an interlocutory appeal of an order denying a motion to compel arbitration. Because we follow the rule of law, we, as one panel of this Court, will not depart from this Court’s prior holding that mandamus will not issue when the legislature has expressly provided an adequate remedy by appeal.”

A dissent would have granted a stay as part of resolution of the mandamus petition, noting: “While our own statute and rules appear to compel the same result by dictating a stay of the overlapping proceedings of whatever court is first asked, we have not  done so here. Accordingly, relator has properly brought the issue before us for mandamus relief that should be available under long recognized mandamus standards and without the need of further machination or a fifth request for stay.” No. 05-20-00015-CV (Feb. 24, 2020) (mem. op.)

In re Catapult Realty arose from a foreclosure that wound a complex path through the Dallas courthouse, and offers two practice reminders about such situations:

1. The judge of one district court signed a TRO on behalf of another district judge. The resulting order was void because “[t]he record does not reflect that another temporary injunction or other evidentiary hearing was held before the 298th district judge prior to her signing the 2nd TRO.”;
2. A county court granted a plea in abatement based on her perceived inability to decide subject-matter jurisdiction. Mandamus relief was proper when this decision was incorrect legally, and where the resulting order “does not specify the circumstances that will allow for the case to be reinstated,” thus denying the plaintiff “the right to proceed to a resolution of the forcible-detainer action within a reasonable time.”

Nos. 05-19-01056-CV & -00109-CV (Feb. 20, 2020) (mem. op.)

In re Parks denied a mandamus petition arising from the striking of counteraffidavits, related to the reasonableness and necessity of certain medical expenses, filed pursuant to Chapter 18 of the Civil Practice and Remedies Code. Applying Fifth Court precedent, the Court drew an analogy to the striking of expert designations, which is not ordinarily addressed by mandamus review. A dissenting opinion argued that “our existing construction raises serious constitutional concerns related to the parties’ rights to a trial by jury, as well as their due process rights to a decision on the merits and to appellate review,” and would have considered the merits of the petition. No. 05-19-00375-CV (Feb. 18, 2020) (mem. op.)

“We are bound by this Court’s prior precedent requiring exceptionally strict compliance with rule 52.3(j)’s requirements. To comply with prior opinions of this Court that interpret mandamus rules, relators should use the exact words of rule 52.3(j) without deviation in their certification: ‘I have reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.’ Because Mr. Stewart failed to use the precise words in the rule, we are bound by precedent to deny mandamus.” In re Stewart, No. 05-19-01338-CV (Jan. 24, 2020) (mem. op.) (emphasis added).

Lovern sued Eagleridge Operating for injuries suffered in a gas line rupture. Eagleridge named Aruba Petroleum as a responsible third party; the Fifth Court found no abuse of discretion in striking that designation. The panel majority concluded that Aruba could not be liable based on the premises-liability analysis in Occidental Chemical v. Jenkins, 478 S.W.3d 640 (Tex. 2016). In re Eagleridge Operating, No. 05-19-01171-CV (Jan. 24, 2020) (mem. op.). A dissent reached a different conclusion, arguing that “[t]he majority opinion’s logic is flawed because it ignores the fact a person can simultaneously act in two different legal capacities that produce distinct legal rights and responsibilities.”

PandaLand sought mandamus relief from the trial court’s grant of a new trial based on application of the Craddock factors. While mandamus jurisdiction has expanded for some types of new-trial grant, the Fifth Court denied relief here, stating: “Mandamus review of a trial court’s order granting a new trial is limited to orders that are void or set aside a jury verdict.” In re Pandaland Holding (HK) Ltd., No. 05-19-01259-CV (Jan. 17, 2020) (mem. op.).

“‘[M]andamus is governed largely by equitable principles, and“a petition for mandamus may be denied under the equitable doctrine of laches if the relator has failed to diligently pursue the relief sought,’ . . . ‘[E]quity aids the diligent and not those who slumber on their rights.’ However, laches does not apply when the order subject to the mandamus proceeding is void. To the extent [Petitioner]’s issues establish that the turnover order, and the subsequent clarification order, are void, mandamus is proper in this case.” Goin v. Crump, No. 05-18-00307-CV (Jan. 8, 2020) (mem. op.) (citations omitted, emphasis added).

In re Andrew Jackson provides two reminders about the record support for a mandamus petition:

1. Rule 52 statement. A petition seeking mandamus relief must contain a certification stating that the relator “has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.” Tex. R. App. P. 52.3(j). Relator’s petition bears an inmate declaration stating relator does ‘verify and declare under penalty of perjury the foregoing statements are true and correct.’ Thus, relator’s certification does not comply with rule 52.3(j).”
2. Record proveup. When submitting a sworn record in support of a mandamus petition: “The affidavit or unsworn declaration must affirmatively show it is based on the affiant’s personal knowledge. . . . [T]he affidavit or unsworn declaration must state the affiant has personal knowledge that the copies of the documents in the appendix are correct copies of the originals.” (applying In re Butler, 270 S.W.3d 757 (Tex. App.–Dallas 2008, orig. proceeding)).

No. 05-19-01428-CV (Dec. 18, 2019) (mem. op.).

161 days after a “dwop” dismissal, the plaintiff learned of that order by reviewing the court website, and successfully sought reinstatement. In re Mart, No. 05-19-01355-CV (Dec. 9, 2019) (mem. op.) Tex. R. Civ. P. 306a, however, only extends the trial court’s plenary power if notice is acquired within 90 days of judgment. Observing that “the cases real party cites demonstrate she had potential avenues to obtain reinstatement of the case other than a Rule 306a(4) motion and motion to reinstate, including a restricted appeal and a bill of review,” the Fifth Court granted mandamus relief because the trial court’s reinstatement order was void.

The Fifth Court conditionally granted mandamus relief as to an order quashing a postjudgment deposition, observing: “[T]rial courts have discretion to control the nature and form of discovery, but that discretion is not unlimited. ‘A trial court abuses its discretion by limiting discovery in the absence of some evidence supporting the request for a protective order.’ In this case, counsel for [movant] presented arguments at the hearing on the motion to quash but did not present evidence in support of the motion. [Movant’s] motion was unverified;the transcript from the April 3, 2019 hearing on the motion to dissolve was not made a part of the record at the hearing on the motion to quash; nor did her counsel request the trial court to judicially notice the evidence from the prior hearing. Because no evidence was presented in support of [Movant’s] motion, we conclude the trial court abused its discretion in granting the motion to quash and motion for protective order.” In re Mustang Asset Recovery Ltd., No. 05-19-01036-CV (Dec. 6, 2019) (mem. op.) (emphasis added, citations omitted).

“The court of appeals granted our stay motion! We’re looking good on the mandamus now!” Not necessarily, as shown by In re Gurley, No. 05-19-01118-CV (Oct. 18, 2019) (mem. op.): ” We stayed the trial court’s September 13, 2019 order granting the motion to expunge the lis pendens pending our disposition of the mandamus petition. On our request, real parties filed a response to the mandamus petition. . . . After reviewing the petition for writ of mandamus, the response filed by real parties, and the applicable law, we conclude relator
has not shown he is entitled to the relief requested.” 

Like its counterpart in Greek mythology, the hydra of mandamus jurisdiction is a many-headed beast – but it only reaches the work of a Justice of the Peace under very limited circumstances: “This Court does not have writ jurisdiction over a justice of the peace unless the justice is interfering with our appellate jurisdiction. See Tex. Gov’t Code Ann. § 22.221(a), (b).” In re Gardner, No. 05-19-01087-CV (Sept. 20, 2019) (mem. op.). The referenced Government Code provisions provide:

Sec. 22.221. WRIT POWER. (a) Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court.

(b) Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against:

(1) a judge of a district, statutory county, statutory probate county, or county court in the court of appeals district;

(2) a judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district; or

(3) an associate judge of a district or county court appointed by a judge under Chapter 201, Family Code, in the court of appeals district for the judge who appointed the associate judge.

A slight variation in the Fifth Court’s standard summary of the mandamus standard appeared in In re Oncor: “Entitlement to mandamus relief requires relator to show that the trial court abused its discretion, which may occur if the trial court fails to correctly analyze or apply the law, In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007), or in making a factual determination lacking evidentiary support, see In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding).” No. 05-19-00288-CV (July 23, 2019) (mem. op.)

July 19 is notable as the birthday of Samuel Colt, and as the day the Fifth Court gave two clean examples of when mandamus is, and is not, available:

• YES. The trial court granted a motion to reinstate after the expiration of plenary power. The Fifth Court granted the writ “instanter” in this situation, since the trial court’s lack of jurisdiction was established with certainty. In re Southern Management, No. 05-19-00653-CV (July 19, 2019) (mem. op.)
• NO. The trial court declined to find certain materials were confidential and thus covered by its protective order–a topic as to which the Fifth Court “afford[s] the trial court broad discretion” and requires “facts showing a particular, specific, and demonstrable injury” and “detailed information to support its claim of privilege or confidentiality.” In re Toyota, No. 05-19-00030-CV (July 19, 2019) (mem. op.)

Valor Energy sued Price Drilling in Dallas County; Price sought transfer to Starr County, where the relevant oil well was located, and the Fifth Court denied Price’s mandamus petition, which was based on the mandatory-venue provision about the location of real estate (CPRC § 15.011). The Court reasoned: “The record shows that the contract was executed in Dallas County, the alleged negligence is based on Price’s performance of its drilling obligations, and the fraud claims relate in part to some actions directed at Valor in Dallas County. Valor does not seek damages for oil that has been wrongfully removed from its property, and does not seek any declarations as to Valor’s or Price’s rights to any portions of the property itself. Rather, Valor seeks breach of contract, fraud, and negligence damages for Price’s failure to fulfill its duties under the contract to re-drill the Well and for the misrepresentations made by Price to Valor regarding Price’s work on the alleged compliance with the terms of the contract.”  In re Price Drilling Rig No. 5 Co., No. 05-19-00344-CV (June 17, 2019) (mem. op.)

The resolution of the TCPA motion in In re Hartley unfolded as follows:

• Radix Realty sued the Hartleys. Panchakarla the intervened on the side of Radix.
• The Hartleys moved to dismiss under the TCPA. The trial court had a hearing on that motion on February 18, 2019.
• The trial court granted the motion on February 22, well ahead of the March 20 statutory deadline.
• Panchakarla moved for a new trial on March 22.
• On May 6, 2019, the trial court vacated its February 22 order and issued a new order denying the Hartleys’ motion to dismiss.

The Hartleys sought a writ of mandamus against the May 6 rulings, and the Fifth Court agreed: “The trial court was statutorily prohibited from granting Panchakarla’s motion for reconsideration and for new trial more than thirty days after the hearing on the TCPA motion and, as such, the trial court’s May 6, 2019 order is void.” No. 05-19-00571-CV (May 24, 2019) (mem. op.)

In In re: Rohrich, the relator sought “a writ of mandamus directing the trial court to vacate a May 2, 2019 show cause order and a March 4, 2019 order compelling production of data referenced in an April 2018 article written by relator.”

“Due to the extraordinary nature of the remedy, the right to mandamus relief generally requires a predicate request for action by the respondent, and the respondent’s erroneous refusal to act.” (quoting In re: Coppola, 535 S.W.3d 506, 510 (Tex.2017) (orig. proceeding) (emphasis added)).

Because “relator ha[d] not presented his arguments to the trial court regarding compliance with the order compelling production or regarding objections to the production,” he was “therefore, not entitled to mandamus relief.” No. 05-19-00578-CV (May 20, 2019) (mem. op.)

A judgment creditor sought mandamus relief, in the trial court, to require the Dallas sheriff to execute necessary title documents after a seizure and forced sale. The Fifth Court (which affirmed the grant of mandamus relief) observed: “An original proceeding for a writ of mandamus initiated in the trial court is a civil action subject to trial and appeal on substantive law issues and the rules of civil procedure as any other lawsuit. This Court has appellate jurisdiction over such proceedings” Gabriel v. Outlaw, No. 05-18-00503-CV (April 22, 2019) (mem. op.)

How long is too long to rule on a pending motion? In In re Hines, it was just under seven months from the first written request for a hearing: “[R]elator’s certified mandamus record includes copies of a motion for judgment nunc pro tunc dated August 24, 2018, and letter requests to the trial court dated September 27, 2018 and November 7, 2018 requesting a hearing on the August 24, 2018 motion for judgment nunc pro
tunc. The trial court has had a reasonable time in which to rule on the motion but has taken no action. Under this record, we conclude the trial court has violated its ministerial duty to rule on relator’s motion for judgment nunc pro tunc within a reasonable time.” No. 05-19-00243-CV (April 15, 2019) (mem. op.) (emphasis added).

In a serious personal injury case, the trial court denied the defendant’s designation of a responsible third party, and the Fifth Court denied mandamus relief for two reasons of substantial general interest:

1. No mandamus relief for an unsettled issue of first impression. The controlling question of law (what legal framework governs the designation of an emergency-care provider as a responsible third party) presented an issue of first impression. The Court noted that “[a]n issue of first impression can qualify for mandamus relief even though the factual scenario has never been precisely addressed when the principle of law has been clearly established,” but concluded: “Mandamus is unwarranted here because the principle of law Yamaha urged the trial court to follow is neither positively commanded nor plainly prescribed under the law.” (Fans of this blog will note that I identified this issue last year as a topic where the “Slate of Eight” could begin to narrow mandamus review.) 
2. Laches from an email announcement of a ruling. The Court found that laches barred mandamus relief, reasoning: “Yamaha waited eight months after the trial court’s July 12, 2018 e-mail ruling to seek mandamus relief, filed the petition only three weeks before trial, and initially offered no explanation for the delay. In its reply brief, Yamaha argues that the e-mail from the court coordinator was not sufficiently clear and specific to be reviewed by mandamus but was, instead, simply an expression of future intent to sign a written order. We disagree. The e-mail states specifically that the judge had granted the motion to strike and, as such, signing an order was merely a ministerial act.” (citations omitted). (For reference here is the first page of the email in question.)

In re Yamaha Golf-Car Co., 05-19-00292-CV (April 8, 2019) (mem. op.)

Amcad sued Freightquotes.com about a misplaced delivery. Freightquoutes moved to dismiss, pointing out that the relevant bill of lading incorporated “terms and conditions” on the company website, which in turn contained a Missouri foum-selection clause. Freightquotes lost in the trial cost and lost again before the Fifth Court. The panel majority (Justice Myers, joined by Justice Carlyle) “conclude[d that] the referring language is ambiguous as to who agreed to which Organization’s terms and conditions and does not unambiguously incorporate by reference Freightquote’s terms and conditions,” and thus denied mandamus relief. The dissent (Justice Whitehill) reasoned that “the parties plainly agreed to governing, written terms and conditions residing at a specific and readily accessible website” that plainly encompassed this dispute. No. 05-18-01028-CV (March 1, 2019) (mem. op.) (both opinions, applying Bob Montgomery Chevrolet Inc. v. Dent Zone Cos., 409 S.W.3d 181, 189 (Tex. App.—Dallas 2013, no pet.)).

In the wake of In re: Houston Specialty Ins. Co., No. 17-1060 (Tex. 2019), the Fifth Court released a revised opinion in In re Texas Christian Univ, concluding that TCU’s filing of a Tarrant County declaratory judgment action established “dominant jurisdiction” as to a damages case filed against it the next day in Dallas County. Applying the Houston Specialty framework, the Court found that the two lawsuits were “inherently interrelated,” a test substantially derived from the compulsory counterclaim rule. The Court found no exception to the applicability of the “first-filed” rule in this situation, noting that complaints about the propriety of the Tarrant County action were for that court, and “as the case currently stands, the Tarrant County court concluded TCU’s claims are not frivolous by denying [Dallas Plaintiff’s] rule 91a motion to dismiss.” No. 05-18-00967-CV (Feb. 6, 2019).

A useful reminder about the black-letter law governing appellate review of TROs – a statement that, while accurate, may be harder to satisfy than it appears – was given in In re Aludogbu: “A party has no remedy by appeal when a temporary restraining order is granted that is not in compliance with the rules, and a writ of mandamus is appropriate in such situations.” No. 05-19-00078-CV (Jan. 24, 2019) (mem. op.)

The relator in In re Tunad Enterprises challenged a sanction; the Fifth Court found presentment problems with two key arguments:

• as to whether the required pretrial payment will substantially harm the relator and have a preclusive effect on his ability to continue to prosecute the case – a colorable argument, in the abstract – “Relator did not make this argument in the trial court and presented no evidence of the alleged harm”; and
• as to an issue with the trial court’s subject matter jurisdiction that was pending in a Rule 91 motion, “it is premature to seek a writ of mandamus without the trial court first ruling on the very matters upon which relief is sought.”

No. 05-18-01157-CV (Oct. 15, 2018) (mem. op.)

Relators superseded a judgment and sought mandamus relief against certain trial court proceedings. The Fifth Court dismissed the petition, observing: “Here, relators did not ask the trial court to dissolve the garnishments or stay the hearing on the motion for sanctions and application for turnover order. The trial court’s ‘Writ of Supersedeas’ provided relators with all of the relief they requested below.” In re: Raley, No. 05-18-01119-CV (Oct. 2, 2018) (mem. op.)

The mandamus petition in In re Lafredo, a divorce proceeding involving a same-sex marriage, addressed whether Obergefell v. Hodges should apply retroactively. As to the requirement of a clear abuse of discretion, in addition to noting that “the existence of an informal or common law marriage is a question of fact to be resolved by the fact finder,” the Fifth Court noted: “The  legal question of whether Obergefell is retroactive has not been determined by the Supreme Court of Texas or by the U.S. Supreme Court. The trial court, therefore, did not fail to correctly analyze or apply the law or reach an arbitrary and unreasonable decision when it determined that relator had not established as a matter of law that no legal marriage existed . . . .”  No. 05-18-01034-CV (Sept. 24, 2018) (mem. op.)

In an opinion from last year in a dispute as to whether Dallas or Ellis County was the proper venue, the Fifth Court remanded for additional proceedings. The trial court then ordered transfer to Johnson County and declined to reconsider, citing a lack of jurisdiction after the transfer. The Fifth Court found that its mandate had  not been followed, and that the expiration of the trial court’s plenary power before the filing of the petitioner’s mandamus petition “does not affect this Court’s authority to enforce its judgments.” Accordingly, it required the trial court to vacate its transfer order. In re F.A. Brown’s Construction LLC, No. 05-18-00804-CV (Sept. 18, 2018) (mem. op.)

In a win for our LPCH client, the Fifth Court denied mandamus relief from two discovery orders, relying primarily on the doctrine of laches. Reminding that “[a]lthough mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles,” the Court reviewed several opinions from Dallas (and other intermediate Texas courts), and held that laches barred mandamus relief when “relators waited more than five months to seek mandamus relief” from the relevant discovery order, and offer[ed] no explanation for the delay.”  In re: Southwest Laboratories, No. 05-18-00832-CV (July 24, 2018) (mem. op.)

The third prong of the Craddock test for setting aside a default judgment – that the defendant “file the motion at a time when granting it will occasion no delay or otherwise work an injury to the plaintiff” – is commonly cited when awarding attorneys’ fees to the plaintiff. The plaintiff in In re: CGI Construction went a step further and also obtained a requirement that the defendant waive its contractual right to arbitrate. The Fifth Court conditionally granted mandamus relief, finding as a matter of law (in light of the strong policy favoring arbitration) that “the trial court may not condition the granting of a new trial and motion to set aside default judgment on waiver of contractual arbitration rights,” and that the plaintiff did not otherwise establish evidence of injury (a lost witness, etc.) if arbitration proceeded. No. 05-18-00320-CV (June 18, 2018) (mem. op.)

The Fifth Court conditionally granted mandamus relief as to the denial of a forum non conveniens motion in In re Ace American, a dispute about the denial of a workers’ compensation claim made by an Arizona resident against an Arizona employer. The claim was reviewed by a Dallas-based adjuster. The Court found that all relevant factors favored Arizona, noting in particular that:

• No authority appeared to support the claim that “the importance of the power to compel witnesses to appear at trial is overemphasized . . . live testimony of physicians, for example, is rare . . . [and] use of video depositions of witnesses obviates the need for witnesses to attend trial,” and
• While part of the alleged tort may have occurred in Texas, the weight of authority did not foreclose that other parts of the alleged tort could have occurred elsewhere – in other words, that there was no singular “place of the alleged wrong” for purposes of the “local interest / localized controversies ” factor.

No. 05-17-01032-CV (June 15, 2018) (mem. op.)

X Extreme Construction won a $200,000 judgment in Dallas district court against three defendants. One of the defendants then sold his house, after which X Extreme  obtained a receivership over, inter alia, the sales proceeds. After more skirmishing, the Dallas court issued a writ of execution to sell the house; the purchasers filed suit in Denton County to enjoin the sale; and the Dallas court ordered the purchasers to dismiss the Denton case. The resulting standoff led to a petition for writ of mandamus, which the Dallas Court of Appeals conditionally granted in In re Marzwanian, No. 05-18-00485-CV (June 12, 2018) (mem. op.) The Court concluded that the Dallas court lacked jurisdiction over the purchasers, who were not parties to the underlying litigation, and that no statute or common law principle required litigation about the purchasers’ title to occur in the court that appointed the receiver.

In a thorough review of sovereign immunity principles, the Fifth Court granted a mandamus petition and found that ERCOT was protected from claims that it misrepresented information about future demand for electric power in Texas. ERCOT v. Panda Power Generation, No. 05-17-00872-CV (April 16, 2018) (applying, inter alia,Brown & Gay v. Olivares, 461 S.W.3dd 117 (Tex. 2015)). Notably, in its discussion of mandamus standards, after noting that a trial court lacks discretion to misapply the law, the Court observed: “This principle applies even when the law is unsettled.” (citing In re: J.B. Hunt Transport, Inc., 492 S.W.3d 287, 294 (Tex 2016) (orig. proceeding).

As a counterpoint to its recent discovery-limiting opinion in In re: Hanover Lloyds, the Fifth Court recently addressed three dimensions of discovery requests in a suit against the NCAA about head injuries, concluding:

• Requests about other types of head injuries were overly broad, especially given the NCAA’s commitment to search for documents about “concussive and sub-concussive blows to the head” without limiting its search to those precise terms;
• The 50-year scope of discovery was reasonable in light of the types of injuries alleged and the issues about the NCAA’s awareness of them;
• Information about other sports was also discoverbale, as the issue was the NCAA’s awareness about the type of head injury in question – “. . . the injury, not the sport, is the proper inquiry.”

In re: NCAA, No. 05-17-00951-CV (March 1, 2018).

Continuing to provide practical guidance about discovery requests (see In re: Sting Soccer Group, 2017), and applying the recent Texas Supreme Court cases about discovery of information about other claims, in the context of a dispute over one claim (see In re: Nat’l Lloyds I, 449 S.W.3d 486 (Tex. 2014), and In re: Nat’l Lloyds II, 507 S.W.3d 219 (Tex. 2016)), the Fifth Court addressed these discovery requests in an insurance claim dispute:

(1) the last twenty-five Haag Engineering reports on a storm damage claim in Texas for one of its insureds that Hanover Lloyds Insurance Company had received before August 31, 2015 (the date of its decision letter in this case) plus the decision letters in those claims. . . .

(2) the last twenty-five Haag Engineering reports on a storm damage claim in Texas for one of its insureds that Hanover Lloyds Insurance Company had received after August 31, 2015 (the date of its decision letter in this case) plus the decision letters in those claims.

It granted mandamus relief against an order to respond to them, reasoning: “[A]ccording to Indoor Sports, it is seeking the information to develop and prove the relationship between Hanover and HAAG, Hanover’s reliance on HAAG’s training, investigation and reports, and the unreasonableness of the investigation and decision made by Hanover in light of the HAAG report and lack of contradictory evidence. Although there is a remote possibility the requested discovery could lead to the discovery of relevant evidence, we fail to see how Hanover’s use of HAAG engineering reports on claims of unrelated third parties is probative of Hanover’s conduct with respect to its handling of this claim.” In re: Hanover Lloyds, No. 05-17-00608-CV (March 2, 2018) (mem. op.)

Archimedes famously said about the lever: “Give me a place to stand and I shall move the world!” Similarly, in review of a mandamus petition about enforcement of a foreign selection clause, the respondent only needs one place to stand: “The trial court denied the motion to dismiss and denied relators’ motion for reconsideration without stating on which grounds it denied the motions. In their petition for writ of mandamus, relators address only six of the seven grounds raised by the real party in interest below. When an appellant fails to attack one of the possible grounds on which a judgment was granted, the judgment must be affirmed.In re Baker, No. 05-17-01320-CV (Feb. 28, 2018) (mem. op.)

Enterprise Fleet Management obtained a judgment against Brazos Rock, and then sued several other parties in Dallas County for fraudulent transfers related to payment of that judgment. In the meantime, a receiver was appointed in Parker County to manage Brazos Rock’s assets. The Dallas defendants lost their plea to the jurisdiction and sought a writ of mandamus to compel transfer to Parker County, where they lived. The Fifth Court rejected their argument, finding no showing of interference with Parker County’s jurisdiction (and thus, an injury that cannot be addressed by direct appeal). “These are two separate suits seeking diffferent relief from different parties. . . . A judgment on the  claims asserted in Dallas County will not interfere with the Parker County court’s ability to manage the receivership or render a judgment in the Parker County suit. Enterprise’s collection efforts may ultimately be impacted by the Parker County suit, but that does not deprive the Dallas County court of jurisdiction over Enterprise’s claims.” In re Ameri-Fab LLC, No. 05-17-01458-CV (Feb. 7, 2018) (mem. op.)

In the case of In re Elavacity, the Fifth Court stayed trial court proceedings after the grant of a TRO (thus ensuring the matter did not become moot, given the short time frame associated with a TRO), and then granted mandamus relief. It identified three defects with the order that made it void:

1. “[I]t does not include an explanation of why it was issued without notice to relators”;
2. “[I]tt does not define the injury it is designed to prevent, does not explain why such injury would be irreparable, and is not specific in its terms”; and
3. “[T]he order enjoins relators from taking certain actions related to Pruvit’s ‘trade secrets, confidential and/or proprietary information,’ and Pruvit’s existing promoters. However, the order does not describe what constitutes a trade secret, confidential information, and/or proprietary information or who is an ‘existing promoter.’”

No. 05-18-00135-CV (Feb. 16, 2017) (mem. op.)

Litigation about this year’s primary election led to a mandamus petition about the ballot in a judicial race, in which the Fifth Court “conditionally granted relator’s petition for writ of mandamus by written opinion and ordered the trial court to vacate the temporary restraining order. We determined that the proceeding in the district court was moot as to the primary election ballot at the time it was heard, and the resulting order was void.” The opposing party then filed a “cross-petition” about the same ballot, as to which the Court similarly held: ” That relief is unavailable because overseas and military ballots have already been printed and mailed for the March primary.” In re Williams, No. 05-18-00068-CV (Jan. 26, 2018) (mem. op.) While turning on an issue unique to election law, the opinion also illustrates how equitable defenses such as laches can affect the resolution of mandamus petitions.

A court of appeals can grant mandamus relief if a trial court refuses to rule within a reasonable time. (A good, recent example is In re Mesa Petroleum Partners LP, an El Paso case I was involved with.) But January 2018 is too soon to complain about alleged inaction in connection with rulings made on December 15, 2017 – in that situation, “[t]o the extent relator seeks a separate order in his motion to clarify, the trial court has not been given a reasonable time in which to sign such an order and relator has not presented a record showing that he has requested an order from the trial court.” In re Venkartaman, No. 05-17-01474-CV (Jan. 9, 2018) (mem. op.)

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).

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.

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.)

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.).

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.)

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).

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.

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.)

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).

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 alia, In re: Doe, 444 S.W.3d 603, 608 (Tex. 2014)).

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).

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).

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.)

A 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.)

The 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.)

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.

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.)

A mandamus petition challenged an order allowing a “court-supervised winding 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.

In re Michelin

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.)

Echoing 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)).

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).

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.)

In the mandamus case of In re Fort Apache Energy Inc., the relators sought relief from a trial setting in Dallas County, alleging that it interfered with the dominant jurisdiction (and slightly later trial setting) of the Kendall County Court.  No. 05-15-00159-CV (Dec. 16, 2015).  The Dallas Court of Appeals denied the petition, finding that the setting did not “amount[] to the kind of direct interference . . . that warrants mandamus relief under currently governing law.”  (citing, inter alia, Abor v. Black, 695 S.W.2d 564, 566 (Tex. 1985) (orig. proceeding).  In a classic disagreement about the scope and role of mandamus proceedings, a dissent would grant relief, arguing that “refusal to correct the trial court’s clear abuse of discretion by mandamus presents a strong likelihood of wasted public and private resources alike.”  The Texas Supreme Court has since accepted a mandamus petition in, and set oral argument for, a similar case, also from Dallas.

It’s worth remembering the shorthand that the Dallas Court uses, in its short memorandum opinions denying mandamus relief, to describe the requirements for the writ: “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). Having carefully reviewed the petition and record in support of the petition, we conclude relator has failed to establish a right to relief.”  E.g., In re Duncan, No. 05-15-01318-CV (Nov. 23, 2015, mem. op.)  While this succinct phrase is not controversial, it is worth noting that Prudential is still the “go-to” cite, and the basic two-factor test still the standard reference, despite the more exotic formulations of the Texas mandamus standards by other cases and commentators in the decade-plus since Prudential.

An opinion denying mandamus relief features one of the more awesome opening sentences in recent history:

“This case involves a gun in exchange for the design of a website deal gone badly.”

Who could have foreseen this becoming problematic? In any event, Thoroughbred Rifles, LLC failed to deliver the rifle promised for the design of its website, so Thomas King filed suit in a Harris County justice court for damages of less than $10,000. Thoroughbred subsequently filed suit in Collin county for damages between $100,000 and $200,000. The district court denied King’s plea in abatement and motion to transfer to Houston, and the Court of Appeals denied King’s mandamus petition. Because Thoroughbred’s damages exceeded the jurisdiction of the Harris County justice court, that court could not acquire dominant jurisdiction over them, making transfer of the claims impossible.

Good on Justice Schenck for the epic opening.

In re King, No. 05-15-01035-CV

A group of plaintiffs collectively named as Nemaha Water Services moved to compel arbitration before FINRA. In a cross-motion, Esposito Securities moved to compel arbitration before the AAA. The trial court denied Nemaha’s motion and granted Esposito’s, sending the case to AAA arbitration. In a hybrid interlocutory appeal and mandamus proceeding, the Dallas Court of Appeals reversed and sent the case to FINRA. Nemaha had signed a letter agreement in which it had agreed to pay Esposito 5% of the total consideration received in a qualifying investment or merger. The contract included a AAA arbitration provision, but the Court of Appeals held that clause was trumped by the FINRA rules, at least in this instance. The case turned on the question of whether Nemaha was a “customer” of Esposito, which would entitle it to invoke arbitration under the FINRA rules. Applying the ordinary meaning of “customer,” the Court held that Nemaha qualified even though it had not paid Esposito the contractual commission. Because Nemaha had contracted with Esposito — a member of FINRA — to purchase financial services for a fee, the Court concluded that Nemaha was entitled to invoke FINRA arbitration. The Court noted, however, that there is authority for the proposition that FINRA arbitration can be superseded by contract, although that was not the case this time.

Morford v. Esposito Sec., LLC, No. 05-14-01223-CV

On July 10, the district court orally denied the special appearance of Ann Stokley. The court did not sign a written order, however, which left Stokley unable to pursue an interlocutory appeal. On September 15, Stokley filed a petition for writ of mandamus with the Dallas Court of Appeals. Two days later, that Court has issued a brief memorandum petition denying relief. Although a trial court abuses its discretion when it fails to rule within a reasonable time, the Court could not conclude that the trial court had done so here in light of “the trial court’s actual knowledge of the motion, whether its refusal to act is overt, the state of the court’s docket, and the existence of other judicial and administrative matters which must be addressed first.” Ms. Stokley will presumably pursue an interlocutory appeal sometime after the trial court issues a written order.

In re Stokley, No. 05-15-01110-CV

Almost a year after the Ebola virus and dozens of news crews arrived in Dallas, the Court of Appeals has conditionally granted mandamus to prevent Texas Health Resources’ insurer from being required to produce a privileged note regarding a plaintiff’s Ebola-related claims. Nina Pham, who contracted the disease while working as a nurse at Presbyterian Hospital, has sued THR on a variety of tort claims for the injuries she sustained from the disease. The single document at issue reflects a conversation among the insurer’s claims adjuster, THR’s associate general counsel, and its risk manager. Although the insurer and its claims adjuster were not parties to the lawsuit, the Court nevertheless held that the communications reflected in the document were privileged. Because the note was made in the course of investigating Pham’s claim, and because the insurer represents the employer rather than itself on claims involving the employer’s liability policy, the note reflected a confidential communication within the scope of the attorney-client privilege.

In re Texas Health Resources, No 05-15-00813-CV

One of the questions appellate lawyers get from time to time is “What’s our deadline to file for mandamus?” The answer is that there is no formal deadline under the rules, but if you wait too long you may end up waiving your right to mandamus. A short opinion from the Dallas Court of Appeals exemplifies the latter principle. On June 6, 2014, the county court at law granted a motion for new trial. On May 27, 2015, a mandamus petition was filed, seeking to require the trial judge to explain its reasons for setting aside the jury verdict and granting a new trial. With the new trial now scheduled for July 8, the Court of Appeals held that the unexplained delay of almost one year to challenge the new trial ruling was too long to justify mandamus relief.

In re Stembridge, No. 05-15-00672-CV