“A Whole New World”: Recent Developments in Texas Mandamus Practice

1. “A Whole New World”:Recent Developments in Texas Mandamus Practice by D. Todd Smith http://texasappellatelawblog.com and Kurt H. Kuhnkkuhn@mailbmc.com

2. Today’s Topics What is mandamus? Recent rule changes Some concepts that will sound familiar— • Abuse of discretion • No adequate remedy at law Recent changes in “adequate remedy” standard Questions

3. What is Mandamus? Extraordinary writ which lies to compel performance of ministerial act or mandatory duty where there is a clear legal right in plaintiff, a corresponding duty in defendant, and a want of any other appropriate and adequate remedy. Black’s Law Dictionary

4. What is Mandamus? Mandamus is a necessary procedural tool meant to give the appellate courts a way to efficiently review and correct significant errors or abuses that otherwise could not be corrected.

5. How Is Mandamus Presented? Petition resembles an appellate brief “Relator” compiles its own record No formal time limit, but equity requires diligence Slightly different page limits depending on court: • 50 pages in CA; 50 for response; 25 for reply • 15/15/8 in supreme court

6. TRAP 52.3Revised Effective 9/1/08 52.3 Form and Contents of Petition. All factual statements in the petition must be verified by affidavit made on personal knowledge by an affiant competent to testify to the matters stated. The petition must, under appropriate headings and in the order here indicated, contain the following: * * * (g) Statement of Facts. The petition must state concisely and without argument the facts pertinent to the issues or points presented. Every statement of fact in the petition must be supported by citation to competent evidence included in The statement must be supported by references to the appendix or record. • * * (j) Certification. 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.

8. What the Court Thinks of Mandamus Mandamus is an extraordinary remedy available “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” To obtain mandamus relief, the relator must demonstrate a clear abuse of discretion for which there is no adequate remedy at law. A party establishes that no adequate remedy at law exists by showing that the party is in real danger of permanently losing its substantial rights. Thus, mandamus will not issue absent “compelling circumstances.” In re TXU Elec., Inc. (Tex. 2001) (Phillips, C.J. concurring)

9. What the Court Thinks of Mandamus Appellate courts cannot afford to grant interlocutory review of every claim that a trial court has made a pre-trial mistake. But we cannot afford to ignore them all either. Like “instant replay” review now so common in major sports, some calls are so important—and so likely to change a contest’s outcome—that the inevitable delay of interim review is nevertheless worth the wait. In re McAllen Medical Ctr. (Tex. 2008)

10. The Rule Mandamus is available when the trial court has committed a clear abuse of discretion for which there is no adequate remedy on appeal. In re Prudential, 148 S.W.3d 128, 135-36, 141 (Tex. 2004).

11. Clear Abuse of Discretion An abuse of discretion occurs when the trial court “reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

12. Clear Abuse of Discretion A court abuses its discretion by acting arbitrarily, unreasonably, or without reference to guiding principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).

13. Clear Abuse of Discretion • With respect to fact issues, an abuse of discretion is shown when the record establishes that “the trial court could reasonably have reached only one decision.” However, “[a] trial court has no ‘discretion’ in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.” Walker v. Packer, 827 S.W.2d at 840. • Can apply even if the law is unsettled.

14. Inadequate Remedy at Law: • Discovery disputes (overbroad, burden, fishing, etc.) • Fails or refuses to rule • Signs a void order • Fails to enforce a mandatory venue provision • Disqualifies or fails to disqualify counsel • Refuses to comply with a statutory judicial strike • Fails to enforce a right to arbitration under the FAA.

15. Expansion of “Inadequate Remedy” In 2004, TSC started applying to things like • Failure to enforce a forum selection clause (AIU) • Failure to enforce a waiver of jury trial provision in a commercial lease (Prudential). “I, of course, agree that an appellate remedy is inadequate if it comes too late to cure the trial court’s error.” In re Prudential, 148 S.W.3d at 141 (Phillips, C.J. dissenting).

16. Why We Needed Prudential The Texas Supreme Court has, until recently, consistently stated as a fundamental principle that a writ of mandamus will not issue in cases where the party seeking the writ has another adequate remedy. Notwithstanding this general principle, the court has recognized over its history that in certain cases of extraordinary circumstances the remedy by appeal will be deemed inadequate. Furthermore, from time to time the court, although mentioning the principle, has taken a more lenient approach to its application and granted mandamus relief in spite of the availability of other legal remedies. In addition, in other cases the court has wholly failed to mention this basic principle.

17. Why We Needed Prudential The problem with defining “inadequate” appeals as each situation “comes to mind” was that it was hard to tell when mandamus was proper until this Court said so. In re McAllen Medical Ctr. (Tex. 2008)

18. The Threshold An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. In re Prudential, 148 S.W.3d at 136

19. The Threshold Under the new standard, mandamus issues to correct “significant rulings in exceptional cases,” such as those involving important issues of first impression, issues likely to recur, and issues that elude answer by appeal. The benefits of the new flexible standard are intended to spare parties and the public the time and expense of unnecessary proceedings, preserve important rights from impairment or loss, and curtail the legislative enlargement of interlocutory appeals as a substitute for early review of trial court orders.

20. The Threshold In no real sense can the trial court’s denial . . . ever be rectified on appeal. To deny . . . mandamus is to deny it any remedy at all. In re Prudential, 148 S.W.3d at 138-40.

21. In re McAllen Medical Center

24. The Case • 400 plaintiffs/224 former patients of thoracic surgeon • One expert presented statutory reports for all plaintiffs, claiming negligent credentialing against hospital • Trial court denied motion to dismiss “[a]fter sitting on the motion for four years” • So, the basic issue was whether all of these cases would have to go through ordinary appellate process

25. The Attitude While rejecting a standard allowing mandamus almost always, we did not adopt a standard allowing it almost never. In re McAllen Medical Ctr. (Tex. 2008)

26. The Attitude Appellate courts cannot afford to grant interlocutory review of every claim that a trial court has made a pre-trial mistake. But we cannot afford to ignore them all either. In re McAllen Medical Ctr. (Tex. 2008)

27. The Threshold Met The [Medical Liability Act] was intended to preclude extensive discovery and prolonged litigation in frivolous cases . . . . if the legislative purposes behind the statute are still attainable through mandamus review. In re McAllen Medical Ctr. (Tex. 2008)

28. The Motivation [I]nsisting on a wasted trial simply so that it can be reversed and tried all over again creates the appearance not that the courts are doing justice, but that they don’t know what they are doing. Sitting on our hands while unnecessary costs mount up contributes to public complaints that the civil justice system is expensive and outmoded. In re McAllen Medical Ctr. (Tex. 2008)

29. A Whole New World?

31. Change in attitude unlikely based on election results

32. Justice Wainwright’s Dissent “The Court creates a whole new world today, jettisoning the well-established precept that delay and expense alone do not justify mandamus review. While such costs are undesirable and should be avoided when appropriate, the requirement of an inadequate remedy on appeal served as a check on appellate entanglement in incidental trial rulings and as a guide to the bench and bar on when to seek mandamus review.”

33. Possible Effects • Increase in mandamus filings • Expansion beyond “traditional” scope of mandamus to include what otherwise would have been considered “incidental” trial court ruling • Increased opportunity for advocacy based on balancing test • Increased cost of litigation

34. SCOTX Cases Since McAllen • In re Poly-America, L.P., 262 S.W.3d 337 (Tex. 2008): severed substantively unconscionable arbitration-clause provisions and compelled arbitration of retaliatory-discharge claim. • In re Baylor Medical Center at Garland, 2008 WL 3991132 (Tex. August 29, 2008): new trial orders can be vacated as long as the trial court retains plenary power over the case. • In re Davis, 2008 WL 3991186 (Tex. August 29, 2008): declining to force local-option election to approve beer and wine sales. • In re Kiberu, 2008 WL 4000808 (Tex. August 29, 2008): sending Rule 202 case back to court of appeals in light of earlier case

35. The Numbers

37. Texas Supreme Court

38. * Five remain pending

39. † 11th Court of Appeals numbers not reported * Three remain pending ** Ten remain pending

40. Additional Sources of Information

42. Feel free to contact me with any questions

44. Feel free to contact us with any questions D. Todd Smith todd@appealsplus.com http://texasappellatelawblog.com (512) 329-2025 Kurt H. Kuhn Brown McCarroll, L.L.P.kkuhn@mailbmc.com http://www.brownmccarroll.com (512) 472-5456