On Thursday, Progressive Insurance filed a mandamus petition complaining that the trial court has not ruled on its motion to allow the late designation of a medical expert. On Friday, the Dallas Court of Appeals denied mandamus, holding that there was nothing in the record demonstrating that the trial court did not intend to rule on the matter before trial. Trial is set to commence today.
In re Progressive County Mut. Ins. Co., No. 05-15-00622-CV
In February and again in March, the Dallas Court of Appeals held that appellate courts will not conduct merits-based review of orders granting a new trial following bench trials. In a very short opinion denying mandamus review, the Court has now extended that holding to orders granting new trial following entry of a default judgment. So unless the Texas Supreme Court weighs in, it appears that the only new trial orders subject to mandamus review under In re Columbia Medical Center will be those that follow jury trials.
In re Klair, No, 05-15-00462-CV
Under Rule 329b of the Texas Rules of Civil Procedure, the trial court loses its plenary power over a default judgment thirty days after it is signed. An exception to this 30 day rule is when a party fails to receive notice within 20 days of the signing of the judgment. In this case, the defendant sought to have a default judgment set aside, alleging that he did not receive notice of the judgment until the 98th day after it was rendered. The trial court granted his motion and vacated the default judgment.
The Court of Appeals, however, granted the defendant’s mandamus petition, because under Rule 306a(4), “a party who does not have actual knowledge of an order of dismissal within 90 days of the date it is signed cannot move for reinstatement.”
A short opinion appears to stand for the proposition that mandamus will not issue to prevent the deposition of a lawyer for one of the parties in the litigation because the appellate court can only speculate what questions might be asked of the attorney. The opinion relies on a pair of cases from the Houston [1st] and Corpus Christi Courts of Appeals that held the future possibility of questions being asked on privileged topics does not justify the prior restraint of barring the deposition altogether. It should be noted that the witness here was apparently involved in the facts underlying the plaintiff’s claims, and that the district judge’s order did provide at least a broad definition of the proper scope of inquiry (although neither caveat is included in the Court of Appeals’ opinion).
In re Hydroscience, Inc., No. 05-15-00366-CV
Less than a month ago, the Court of Appeals held that a Motion for New Bench Trial Is Not Mandamus-able. Now the Court has reiterated that holding where a district judge granted a new new trial after the case had originally been tried to an assigned judge. The Court relied in part on Justice O’Neill’s dissent in In re Columbia Medical Center, which argued that in the situation of a short bench trial, the benefits of a prompt retrial outweigh the detriments of prolonging the case with interlocutory review.
If motions for new bench trial are becoming a thing, we’ll keep an eye on the Supreme Court to see whether it wants to weigh in.
In re Dixon, No. 05-15-00242
Since In re Columbia Medical Center, 290 S.W.3d 204 (Tex. 2009), trial courts have been required to specify their reasons for granting a new trial, and the failure to do so has been subject to appellate review by way of mandamus. In a very short opinion arising out of a divorce case, the Dallas Court of Appeals has recognized a notable exception to that rule. When the trial has been to the court instead of a jury, the concerns about transparency in setting aside a jury verdict are not present. Thus, a trial court does not abuse its discretion in granting a new trial without explanation following a bench trial.
In re Foster, No. 05-15-00179-CV
In one of the last opinions of 2014, the Dallas Court of Appeals denied mandamus relief to VERP Investment LLC, which was seeking to overturn a trial court order requiring it to turn over a computer hard drive to a third-party forensic examiner. The Court denied mandamus because VERP had not included transcripts of the trial court’s hearings or a statement that no evidence was taken at them. That left the Court of Appeals unable to determine whether the trial court had abused its discretion in granting the motion to compel. But VERP persisted, filing a second petition that cured the original’s omissions, and that mandamus petition has now been conditionally granted.
On the merits, the Court of Appeals first noted that an order requiring direct access to an electronic device is burdensome because it is intrusive. Due to that intrusiveness, the party seeking direct access must establish via evidence that the opponent is in default of its discovery obligations. In this instance, however, the movant failed to come forward with any evidence, and “[m]ere skepticism or bare allegations” are not enough to warrant direct access to electronic devices. Therefore, the trial court abused its discretion, and the Court of Appeals directed it to vacate the order granting the motion to compel.
In re VERP Investment LLC (VERP II), No. 05-15-00023-CV
Mandamus, it turns out, will not issue to correct a trial court’s refusal to rule on a motion to dismiss when the movant has not bothered to set a hearing or given notice that the motion would be heard at the pretrial conference. Disappointingly, the Court of Appeals did not reach the novel question of whether Chapter 74 of the Civil Practice & Remedies Code requires a plaintiff to file an expert report when suing a retired physician who owned the cattle that the plaintiff collided with in his vehicle.
In re Archer, No. 05-15-00020-CV
A short opinion denying mandamus in an electronic discovery dispute serves as a reminder of the importance of a hearing transcript in the appellate courts. In this case, VERP Investment lost a motion to compel, but the mandamus record did not include a transcript from either the hearing on the motion or VERP’s subsequent motion for reconsideration. Likewise, the record did not include a statement that no testimony was taken at the hearings, as permitted by TRAP 52.7(a)(2). Those failures left the Court of Appeals unable to determine whether or not VERP’s opponent had made the required evidentiary showing to obtain the electronic discovery. Therefore, VERP could not demonstrate that the trial court had abused its discretion in granting the motion to compel.
In re VERP Investment, LLC, No. 05-14-01403-CV
The Relator in this mandamus action sought to avoid his obligation to respond to post-judgment discovery requests. He argued that the trial court abused its discretion in ordering him to respond because he did not receive notice of the trial date and therefore the judgment against him was void.
The Dallas Court of Appeals denied his mandamus petition because procedurally the Relator did not follow the correct steps to challenge the validity of the underlying judgment. The Court noted that if indeed the Relator did not have notice of the trial setting, the judgment may be voidable. But the proper procedural path to challenging the judgment was for Relator to file a bill of review in the trial court to set aside the judgment (as it had become final and was no longer appealable). Then, if the Relator wanted to avoid enforcement of the judgment pending a decision on the bill of review, he could petition the trial court to enjoin its enforcement.
In this case, the Court noted that until it was set aside, the judgment was valid and therefore the trial court did not abuse its discretion in allowing the plaintiff’s post-judgment discovery. Moreover, because Relator could seek to set aside the judgment and enjoin its enforcement in the trial court, mandamus relief was not appropriate.
The Court of Appeals has granted mandamus relief to direct a Collin County trial court to vacate its order granting a new trial for the plaintiff in a product liability suit. The district court granted the motion based on both factual sufficiency and juror misconduct grounds. The Court of Appeals held that the new trial order could not be sustained on the basis of juror misconduct because the lower court had not conducted an evidentiary hearing — affidavits attached to the motion alone were not sufficient under Rule 327. The Court also concluded that the jury’s verdict for the defense was not contrary to the great weight and preponderance of the evidence, as conflicting testimony from the parties’ design experts adequately supported the jury’s decision that the medical implant at issue was not defective.
In re Zimmer, Inc., No. 05-14-00940-CV
Victor Enterprise, Inc. filed and won a forcible detainer action to collect rent from his tenant, Clifford Holland, for August 2009. While that action was appealed by Holland, VEI filed another forcible detainer to collect rent for December 2009, which he also won, but the county court signed an order suspending execution of the writ of possession. VEI then filed a third forcible detainer action to collect rent for January 2010, which he also won, but the county court enjoined VEI from “initiating, prosecuting, or executing any litigation, action or writ that seeks possession of or eviction of the defendant form his residence.” In the meantime, Holland sought (and obtained) a temporary restraining order in county court requiring VEI to cease prosecuting actions against Holland and to prohibit any sheriff or constable from executing any writ against Holland. On appeal, the Court granted VEI’s request for mandamus, noting that “the county court lacks jurisdiction to interfere with the enforcement of the justice court’s unappealed judgments.” It also found that, given the history of this case, “the writ will issue instanter.”
In this petition for for writ of mandamus, the Court of Appeals denied the relator’s petition to vacate the trial court’s order denying leave to file a fourth amended answer and counterclaim. The Court found that although amendments of a “formal, procedural nature” typically will not result in surprise or prejudice, in this instance the proposed amendment “would have reshaped the case in a way that would require the Court to reopen discovery.”
In this products liability case, the plaintiffs alleged that Goodyear was grossly negligent with respect to its tire manufacturing practices at its North Carolina plant and that the design of the tire was defective because it failed to include a nylon cap ply. Ostensibly to help prove their case, the plaintiffs sought to tour and videotape parts of Goodyear’s plant in North Carolina. The trial court obliged, ordering Goodyear to allow plaintiffs’ counsel, expert witness, and a videographer to enter the facility and document the manufacturing process.
Goodyear resisted by filing a writ of mandamus challenging the trial court’s order permitting the tour. The Court of Appeals sided with Goodyear, reasoning that the main reason the plaintiffs wanted to tour the facility was to create demonstrative evidence (namely, a video to show the jury), not to discover new information. Because that is not a valid purpose to seek entry onto another party’s property, the Court granted Goodyear’s mandamus petition.
The Court of Appeals has conditionally granted mandamus relief in a divorce proceeding to vacate an order requiring a trustee to withhold distributions from the husband and pay them instead to the wife. The trust instrument included a spendthrift provision, which prevents creditors from claiming distributable money or property from the trust, as well as any assignment of a beneficiary’s interest in the trust’s distributions. The Court of Appeals held that the spendthrift provision was enforceable, and that the trial court abused its discretion by ordering the trustee to make distributions in circumvention of the trust’s terms. Because the trustee was a non-party to the divorce proceeding, it also had no adequate remedy at law, thereby justifying the grant of mandamus relief.
In re BancourpSouth Bank, No. 05-14-00294-CV
The Court of Appeals had granted mandamus relief to a witness who had been ordered to submit to a Rule 202 pre-suit deposition. The trial court abused its discretion because the movant failed to offer any evidence at the hearing on the motion, with the result being that it failed to meet the burden of showing that the likely benefit of the deposition outweighed the burden or expense of the discovery. The Court declined to uphold the Rule 202 deposition on the basis of the verified petition alone, holding instead that the findings required by the rule could not be implied from the record.
In re Noriega, No. 05-14-00307-CV
In a contentious trade secret case, a district judge sat through the deposition of Pendragon Transportation’s corporate representative in order to rule on the objections and instructions offered by Pendragon’s attorney. That same day, the trial court sua sponte appointed a special master to attend future depositions and make rulings on the attorneys’ objections. Two months later, Pendragon filed an objection to the special master order, and the trial court overruled that objection a month later. Three months after that ruling, and only 11 days before trial, Pendragon filed its mandamus petition with the Court of Appeals. Given Pendragon’s six-month delay in seeking mandamus to challenge the appointment of the special master, and its failure to disclose that trial was only two weeks away at the time of its filing, the Court concluded that Pendragon had slept on any right it may have had to complain about the special master. However, the Court did grant Pendragon limited relief, holding that the trial court abused its discretion by ordering the company to pay the special master’s expenses in advance. That ruling was contrary to Rule 143, which only permits the court to require security to be posted for costs, not their actual payment prior to entry of a final judgment.
In re Pendragon Transp. LLC, No. 05-13-01749-CV
The Court of Appeals has reiterated that mandamus relief is available when the trial court erroneously denies a defendant’s motion for leave to designate a responsible third party. In this instance, the trial court had denied Greyhound’s attempt to join the owner of a crane truck that had been involved in a collision with a bus. The plaintiff was a passenger in the crane truck, and Greyhound alleged that the truck’s poor condition had proximately caused the accident. Following its own precedent of In re Oncor Elec. Delivery Co., 355 S.W.3d 304, 306 (Tex. App.—Dallas 2011, no pet.), the Court held that Greyhound had met its pleading requirements for naming the responsible third party, and that the improper denial of leave could not be adequately addressed by appeal. Permitting the case to be tried without the third party “would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of Relators’ defense in ways unlikely to be apparent in the appellate record.” The Court therefore conditionally granted mandamus.
In re Greyhound Lines, Inc., No. 05-13-01646-CV
The Court of Appeals has conditionally granted mandamus relief to the wife of a judgment debtor after she became entangled in the creditor’s efforts to collect on the judgment against her husband. Wells Fargo alleged that Catherine Karlseng did not do any actual work for her husband’s law firm, that she only received wages by virtue of her husband’s work at the firm, and that the money was not exempt from execution as wages because her husband was really an independent contractor of the firm. The trial court entered a turnover order. The Court of Appeals held that as a third party to the underlying judgment, Mrs. Karlseng had no adequate remedy at law because she could not supersede the judgment to prevent execution and because the turnover order prevented her from paying her living expenses. The trial court had also abused its discretion, the Court held, because the turnover statute cannot be used to adjudicate third-party ownership claims. As a non-party to the underlying judgment, Mrs. Karlseng would have to be made a party to the proceeding before she could be required to turn over property in which she claimed an ownership interest.
In re Karlseng, No. 05-14-00049-CV
In a products liability and wrongful death lawsuit, Fisher & Paykel Appliances was ordered to produce three reports it had made to the Consumer Product Safety Commission regarding the safety of its gas clothes dryers. F&P objected to the discovery based on Texas Rule of Evidence 502, which states that reports required by law to be made are privileged “if the law requiring it to be made so provides.” The Court of Appeals denied mandamus relief to F&P. The Court rejected application of the Rule 502 privilege because the Consumer Product Safety Act does not provide for any privilege for reports mandated under the statute. The Court rejected F&P’s attempt to have it recognize a more general “self-critical analysis privilege,” holding that such privileges can only be created by statute. The Court also considered the “selective waiver doctrine,” under which the federal Eighth Circuit has held that the privilege for attorney work product is not waived when the material is turned over to a government agency pursuant to subpoena. Noting that most courts around the country have rejected that rule, the Court of Appeals held that “documents transmitted to a regulator as part of an entity’s mandatory reports are not protected from disclosure simply because an attorney chooses which documents or other materials to produce to the regulator or because an attorney prepares or compiles portions of the report to the regulator.”
In re Fisher & Paykel Appliances, Inc., No 05-13-01498-Cl
The Court of Appeals has granted mandamus to prevent three depositions sought by a homebuyer seeking to avoid an arbitration agreement. The trial court granted the builder’s motion to compel arbitration, but had not yet ruled whether the buyer’s claims against two individual employees of the builder were also arbitrable. While their motion was pending, the trial court granted a motion to compel the depositions of the employees and the company to explore whether they had engaged in any fraudulent or criminal conduct. The Court of Appeals held that order was an abuse of discretion. Under In re Kaplan Higher Education Corp., 235 S.W.3d 206 (Tex. 2007), agents who are nonsignatories to their principal’s arbitration agreement may still invoke equity to compel arbitration unless the claimant can demonstrate the agents had unclean hands in the formation of the arbitration provision. In this instance, the buyer alleged only that the individuals had unclean hands in the performance of the contract, not the formation of the arbitration clause. Accordingly, the issue of their unclean hands was an issue for the merits of the case that had to be determined in arbitration, making discovery of those facts inappropriate for a judicial proceeding. The Court therefore directed the trial court to stay the case so that all of the parties could proceed to arbitration. The Court also wrote separately to summarily deny the buyer’s mandamus petition challenging the arbitration order for her claims against the company.
In re Susan Newell Custom Home Builders, Inc., No. 05-13-01474-CV
The Court of Appeals has granted mandamus in another discovery dispute. This time, it regards a trial court’s order for an expert witness to turn over all documents reflecting discussions with the plaintiff and its counsel, as well as all documents relating to the plaintiff’s claims and defenses. But the expert had also performed services for the plaintiff in a capacity that brought him within the scope of the attorney-client privilege, and the Court held that it was an abuse of discretion for the trial court to compel the production of privileged materials and items outside the scope of the rules providing for expert disclosures.
In re Segner, No 05-13-01414-CV
The plaintiff in a personal injury suit sought to compel the deposition of the defendants’ outside counsel, who had also served as the parent company’s secretary. The trial court granted the motion in part, ordering the attorney to testify on certain business-related matters and his investigation of the collision that had injured the plaintiff. The Court of Appeals held that communications and materials provided to the attorney in his capacity as secretary were not privileged, but that information provided to or collected by him as the defendants’ attorney was necessarily privileged and therefore outside the proper scope of discovery. The Court of Appeals conditionally granted mandamus to exclude privileged information from the scope of the business-related topics, and to deny entirely the plaintiff’s attempt to obtain discovery regarding the attorney’s investigation of the accident.
In re Southpak Container Corp., No. 05-13-01457-CV
The Court of Appeals has granted mandamus relief in a discovery dispute over the scope of a corporate representative’s deposition. The underlying lawsuit was for damage to the plaintiffs’ property incurred in the course of moving from Texas to the United Arab Emirates. The plaintiffs sought deposition testimony on two topics that the Court of Appeals held were beyond the proper scope of discovery. First, the Court ruled that the plaintiffs were not entitled to discovery of the defendant’s gross revenues for 2009-13, as the relevant issue for purposes of exemplary damages is the defendant’s current net worth, not its past and present revenues. Second, the Court rejected the plaintiffs’ request for the witness to identify the defendants’ production documents and explain why they had been produced. On that issue, the Court cited In re Exxon Corp., 208 S.W.3d 70, 76 (Tex. App.-Beaumont 2006, orig. proceeding), for the proposition that “discovery regarding the methods of document collection and production invades the work-product privilege.” The opinion does not explain just how far that principle reaches, but attorneys and clients should keep it in mind the next time they are writing or responding to a corporate rep notice.
In re Arpin Am. Moving Sys., LLC, No. 05-13-01446-CV
Benica Brown’s former employer, Digital Intelligence Systems (“DIS”) sued her in Dallas county, where she was employed in DIS’s Dallas office, even though Brown’s employment agreement with DIS (which DIS drafted) specified Virginia as the exclusive forum to resolve any disputes between the parties. The Court conditionally granted mandamus relief, holding that the trial court abused its discretion when it refused to dismiss the action based on the forum selection clause in the employment agreement. The Court specifically rejected DIS’s argument that Virginia would be an inconvenient forum because DIS “certainly could have foreseen that it would be required to litigate against Brown in Virginia, especially given that it drafted the employment agreement containing that requirement and required Brown to sign it.”
The court of appeals conditionally granted mandamus relief after the trial court issued a TRO preventing relators from terminating Greg Marquez’s employment. The TRO stated that Marquez’s injury was irreparably because the loss of his job would result in the loss of health insurance benefits for him and his family, and that he would be unable to obtain medical treatment. The Court of Appeals held that Marquez’s injury was not irreparable because the cost of medical treatment is compensable through monetary damages. Consequently, the trial court abused its discretion by granting the TRO.
In re Southern Foods Group, LLC
The Court subsequently withdrew its opinion and vacated its order in In re Southern Foods Groups. The Court found that because the trial court had orally denied the real party in interest’s request for a temporary injunction, the issues relating to the TRO were moot.
A short mandamus opinion from the Dallas Court of Appeals highlights a limit on the ability of courts to interfere with arbitration. In this case, the trial court stayed the arbitration and ordered the relator to dismiss it because the parties did not have an agreement to arbitrate. But the Texas Arbitration Act only authorizes a court to stay arbitration, not to order that it be dismissed. The Court of Appeals therefore directed the trial court to vacate the dismissal order, but leaving the stay in place while the litigation apparently moves forward in the trial court.
In re Seven Hills Commercial, LLC, No. 05-13-01340-CV
A little over a year ago, country music star Randy Travis was arrested for DWI, an event that was captured on the arresting officers’ dashboard video cameras. After pleading guilty, Travis’ attorney asked the court for a protective order requiring the Department of Public Saftey to destroy all copies and transcripts of the video. The trial court granted the motion. When DPS received a copy of the order, it moved to set it aside, but the trial court denied that motion. In the interim, DPS received an open records request for a copy of the video under the Texas Public Information Act. The Attorney General ruled that parts of the video could be redacted, but the rest of it must be released as public information. DPS sought mandamus relief to set aside the destruction order. Citing the AG’s ruling that the video was public information, the Court of Appeals concluded that the trial court had no jurisdiction to order that it not be released in response to an open records request, and therefore also had no authority to order that it be destroyed.
It will be a while before the video hits the Internet, however. In accordance with the PIA, Travis has filed suit in Austin to set aside the Attorney General’s ruling that the arrest video should be released. The Court of Appeals expressed no opinion on the merits of that challenge.
In re: Tex. Dep’t of Pub. Safety, No. 05-13-00882-CV
The Court of Appeals has granted mandamus relief to the defendants in the defamation lawsuit brought by the teenaged son of baseball player Torii Hunter. The suit arises out of sexual assault charges that a grand jury eventually no-billed. In the subsequent defamation case, the defendants moved to dismiss under the Texas Citizens Participation Act, which requires the plaintiff in such a case to come forward with prima facie evidence of each element of the case at an early stage of the litigation. The plaintiff responded with an emergency motion seeking leave to take the depositions of one of the alleged victims and her mother. The trial court granted leave, but the Court of Appeals held that the plaintiff’s briefing had not stated any “good cause” for the discovery, as required by the TCPA, and at the hearing on the motion had only argued that the depositions were necessary “in order to defend the motion to dismiss.” Without any specific showing of good cause in the record, the Court of Appeals concluded that the trial court had abused its discretion in allowing the depositions and conditionally granted mandamus relief.
In re D.C., No. 05-13-00944-CV
The court of appeals conditionally granted mandamus relief after the trial court appointed a receiver over relators and then expanded the powers of that receiver. The court of appeals found that the trial court’s orders were void as to relators because they were not served with process or otherwise notified of the receivership proceedings, which meant the trial court had no jurisdiction over relators.
In re C.D. Henderson Construction Servs., No. 05-13-00593-CV
The court of appeals has granted mandamus relief in a pair of cases challenging the decisions of trial courts in Dallas and Collin Counties that had granted pre-suit depositions under Rule 202. Reiterating that Rule 202 depositions are not intended for routine use, the court held that the trial courts had abused their discretion because the movants had not presented any evidence that the likely benefit of the depositions outweighed their burden or expense. Although the movant had filed verified petitions as required by Rule 202, those pleadings could not justify the pre-suit depositions because the movant had not sought to admit the verified pleadings at the Rule 202 hearings. Finding that the order granting the depositions was not subject to an ordinary appeal, the court conditionally granted mandamus to vacate the lower courts’ orders.
In re Campo, No. 05-13-00477-CV
In re Doak, No. 05-13-00538-CV
Patrick Curry and PJC Equipment Leasing are the owners of an IAI Westwind II jet. They hired Matthew Webb and MKW Aviation to manage the plane, and MKW maintained possession of it in that capacity. A dispute arose over MKW’s charges, and the trial court granted a writ of sequestration requiring MKW to relinquish the airplane and its records to PJC. MKW then filed a lien against the aircraft for unpaid storage, maintenance, and fuel charges totaling over $35,000. The trial court granted MKW’s application for turnover relief, thereby requiring PJC to hand the plane back over to MKW. In an opinion focused on statutory construction, he court of appeals ended up denying PJC’s mandamus petition challenging that decision. Section 70.302 of the Property Code permits the holder of an aircraft storage and maintenance lien to retain and even retake possession of the subject airplane. The court of appeals rejected PJC’s contention that MKW would have to be a “secured party” to retake possession of the aircraft, ruling instead that being the holder of the aircraft lien was sufficient basis under the statute for reclaiming the property subject to the lien. The trial court therefore did not abuse its discretion in ordering the plane to be returned to MKW.
In re Curry, No. 05-13-00734-CV
Sauer obtained judgments in Pennsylvania and California against Valley Games, a foreign corporation. Sauer domesticated these judgments in the trial court, and filed suit against relator, Valley Games and others for fraudulent transfer and sought to pierce the corporate veil. Sauer obtained an ex parte order for a pre-judgment writ of attachment against relator, and an order requiring relator to deposit $260,000 into the court registry. The court of appeals conditionally granted a writ of mandamus as to both orders. The court found that it was error for the trial court to order the writ of attachment because Sauer’s claims were contingent and unliquidated. As the court noted, such writ “may be issued only when the demand is not contingent, is capable of ascertainment by the usual means of evidence, and does not rest in the discretion of the jury.” The order requiring relator to deposit money in the court’s registry was also error because it is a form of mandatory injunction, and Sauer had not proven that he was entitled to injunctive relief.
In Re Radiant Darkstar Productions, LLC, No. 05-13-00586-CV
ICON appealed the trial court’s order denying their post judgment motion to enforce a pretrial protective order. ICON sought to prevent the City of Lubbock from publicly disclosing an audit of ICON’s administration of the City’s health care plan. The court of appeals concluded that the trial court’s ruling was not subject to direct appeal; the ruling was not a final judgment or an appealable order under a statutory exception. The court rejected ICON’s attempt to characterize the order as a request for injunctive relief or an order relating to the unsealing of court records. The court determined that the proper procedural vehicle to challenge the ruling is to seek mandamus relief. In the interest of judicial economy, the court treated the appeal as a petition for writ of mandamus.
The court of appeals held that the trial court’s order permitting disclosure of the audit contradicted the plain meaning of its earlier protective order. The audit was created using and analyzing protected materials, and the protective order prohibited public disclosure not only of protected materials, but also any knowledge or intelligence taken from or received by those protected materials. Because the order denying ICON’s motion was a clear abuse of the trial court’s discretion, the court of appeals conditionally granted mandamus relief.
Icon Benefit Administrators v. Mullin, No. 05-11-00935-CV
The Dallas Court of Appeals denied a mandamus petition seeking to set aside the trial court’s disqualification of counsel for the plaintiff in a commercial dispute. In re RSR Corp., 405 S.W.3d 265 (Tex. App.–Dallas 2013, orig. proceeding). The Texas Supreme Court later took the opposite review and remanded for further proceedings. In re: RSR Corp., No. 13-0499 (Tex. Dec. 4, 2015). The opinions involve the interplay of the different disqualification standards provided by In re American Home Products Corp., 985 S.W.2d 68 (Tex. 1998), and In re Meador, 968 S.W.2d 346 (Tex. 1998). We will present this case without the usual commentary because our firm represents the real party in interest, but it is a useful read or anyone wondering about what lawyers can and cannot do with a former employee of an opposing party.
The court conditionally granted a writ of mandamus preventing disclosure of a “Confidential Quality Review Occurrence Report” protected by the medical committee privilege. A visitor to the relator Hospital slipped and fell on Hospital premises, and sought damages in a premises liability suit. The visitor sought production of all incident reports made by the Hospital related to her fall. A two-page report titled “Occurrence Report Form” listed the visitor’s name and identifying information, the date and location of her fall, and a description of the occurrence and treatment provided; it was signed by a Hospital nurse. The report also stated “Confidential Quality Review Committee Document (NOT PART OF MEDICAL RECORD).” The Occurrence Reports are given to the Hospital’s quality review committee, which provides general governance for the Hospital’s quality of service. The court held that the Hospital met the standard for claiming medical committee privilege through its privilege log and a doctor’s affidavit because the Occurrence Report was not created in the regular course of business and was not part of a patient’s medical file. The court rejected the visitor’s argument that because this case involves a non-patient visitor, the medical committee privilege cannot apply. Instead, the court found that the medical committee privilege is not limited to evaluation of occurrences relating only to direct patient care.
In re Methodist Dallas Medical Center, No. 05-13-00134-CV
The court granted a writ of mandamus to preventing an administrative judge from granting a rehearing of her recusal order. Relator Amos filed a motion to recuse the trial judge presiding in her criminal case, and the administrative judge assigned to hear the motion orally found “the appearance of impropriety, the appearance of prejudice . . . sufficient” to justify recusal. The administrative judge ordered recusal and transferred the case to a new judge. The trial judge filed a motion for reconsideration challenging the merits and arguing that she had not received notice of the hearing and the opportunity to present or challenge evidence. The administrative judge granted the motion for reconsideration and set a new hearing on the motion to recuse. Amos filed a petition for writ of mandamus seeking relief.
The court held that once a judge refers a motion to recuse to another judge, the challenged judge can take no further action, especially to influence the outcome of the matter. Moreover, once the administrative judge decided the motion and transferred the case to a new judge, she no longer had authority over the matter. Finally, the trial judge had no due process interested in presiding over the particular case. Thus, the motion for reconsideration was improper and any action on that motion was contrary to settled law. Mandamus was an appropriate remedy to prevent waste of judicial resources and interference with the new court’s jurisdiction over the case.
In Re Amos, No. 05-12-01500-CV
In this shareholder challenge to the pending merger of MetroPCS, Deutsche Telekom and T-Mobile, the plaintiffs sought a TRO enjoining the defendants’ use of several “deal protection devices,” including “Poison-Pill Lock-Up” and “Force-the-Vote” provisions. The trial court granted the TRO, agreeing with the plaintiffs that these deal protection devices irreparably harmed shareholders by, among other things, warding off other potential acquirers. Defendants petitioned for a writ of mandamus to vacate the TRO because the trial court failed to address their motion to dismiss or stay the action based on the forum-selection clause in MetroPCS’s bylaws, which mandated Delaware as the proper forum. The Court of Appeals found that because the motion to dismiss or stay was filed before the request for a TRO, the trial court abused its discretion by granting injunctive relief without first ruling on the forum-selection clause issue. Citing the Texas Supreme Court’s holding in In re AutoNation, the Court of Appeals found that “subjecting a party to trial in a forum other than that agreed upon and requiring an appeal to vindicate the rights granted in a forum-selection clause” warrants mandamus. Accordingly, the Court vacated the TRO and stayed the case until the motion to dismiss could be decided.
It was a landmark decision when the Texas Supreme Court decided that trial courts had to explain their reasoning for granting a new trial, and that the failure to do so was reviewable by mandamus. In re Columbia Med. Ctr., 290 S.W.3d 204 (Tex. 2009). Four years later, the correction of such omissions has become a more or less routine part of the job for Texas appellate courts. In this case, the trial court ordered a new trial on the real party in interest’s attorney fees “in light of a verdict in its favor.” Because there was no further explanation in the order granting the new trial, the court of appeals issued a short memorandum opinion ordering the trial court to more fully explain its reasoning. However, the court also denied the relator’s request that the court of appeals enter judgment on the jury verdict, thereby preserving the decision on a new trial for the district court.
In re Whaley, No. 05-12-01518-CV
Maybe things would have gone better for King Lear if the court of appeals had been around to mandamus Goneril and Regan. In this case, Francis Hutchins’ will divided the estate among her three daughters and appointed one of them, Susan Jones, as the executrix of the estate. But before the will was filed with the probate court, another one of the daughters, Karen Coyle, took possession of some of the property, including a Chrysler 300 and some jewelry. Susan filed a “Motion for Turnover Order,” citing both section 37 of the Probate Code and section 31.002 of the Civil Practice & Remedies Code, seeking to force Karen to return the property to the estate. The trial court denied the motion, leaving Susan to seek mandamus relief from the Dallas Court of Appeals.
Karen argued that section 31.002 was inapplicable because it only governs post-judgment turnover orders, and there was no judgment resolving the disputed issue of who should get to keep the property. But while the parties’ arguments below had focused on that question, the court of appeals relied on the Probate Code to determine that the property should be returned pending administration of the estate, and that the trial court had abused its discretion by denying the turnover motion solely on the basis of section 31.002. The court further held that Susan had no adequate remedy at law because she was entitled to possession of the property even in the absence of an appealable judgment. Accordingly, the court of appeals conditionally granted Susan’s petition for writ of mandamus.
In re Estate of Francis J. Hutchins, No. 05-12-01098-CV; see also In re Estate of Francis J. Hutchins, No. 05-12-01163 (dismissing concurrent appeal for lack of jurisdiction because there was no appealable judgment).
A pro se litigant has managed to obtain mandamus relief from the court of appeals. The litigation started after Mr. Florance filed a $129 lien against the property of the Colin County Clerk. The trial court invalidated the lien, and the court of appeals rejected both Florance’s appeal and a subsequent bill of review. But the trial court had also declared Florance to be a vexatious litigant, a ruling that came well after the court lost its plenary power. The court of appeals footnoted that problem in one of its previous opinions, and Florance took the opportunity to challenge the vexatious litigant finding by filing for a writ of mandamus. Although the court of appeals initially denied any relief, the panel changed its mind after Florance filed a motion for en banc rehearing. The panel held that the vexatious litigant order was not an exercise of the trial court’s continuing power to enforce its prior judgment, and that it was otherwise void because it was signed after the expiration of plenary power. Because mandamus is the appropriate mechanism to require a trial court to vacate a void order, the court of appeals conditionally granted the writ.
In re Florance, No. 05-12-00713-CV (mandamus)
In re a Purported Lien or Claim Against Collin County Clerk Brenda Taylor, 219 S.W.3d 620 (Tex. App.-Dallas 2007, pet. denied) (first appeal)
Florance v. State, 352 S.W.3d 867 (Tex. App.-Dallas 2011, pet. denied) (appeal from bill of review)
Florance v. State, No. 05-08-00984-CR (memorandum opinion affirming conviction and 6-month sentence for failure to release fraudulent lien)
Florance v. Buchmeyer, 500 F.Supp.2d 618 (N.D. Tex. 2007) (dismissing lawsuit against state judge, federal judge, district attorney and assistant district attorneys, district attorney’s investigator, county clerk, unknown clerks, city prosecutor, assistant attorney general, Collin County, the State of Texas, and the federal government)
In a short opinion, the court has granted mandamus to a manufacturer of medical devices after the trial court had ordered the manufacturer to produce three emails from its privilege log. The opinion does not go into much detail about the documents, but quickly concludes that they were privileged because they consisted of communications among employees and the company’s in-house counsel made for the purpose of facilitating the rendition of legal services to the company. Accordingly, the court concluded that it was an abuse of discretion to compel their production.
In re Blackstone Medical, Inc., d/b/a Orthofix Spinal Implants, No. 05-12-00763
